A/N: I'm very sorry for the incredible delay in updating. I've had internet access issues that have kept me off-line for a month. Thank you for your patience, I hope you haven't lost interest in the story!

Once again, thanks to RebeccaInley for her painstaking work as a beta, and to Lynn for support, encouragement and insight.


No Contest


"No. Opening." McCoy said harshly, gaze holding Regan's. "Those are my instructions." His fingers bit into her wrist.

The Code of Professional Responsibility left Regan no choice but to nod. Her stomach twisted. Help me Ellie, oh god, it hurts, help me… Cutter wastearing McCoy to pieces in front of her, and she was helpless to stop it.

She turned to the judge. "Defense has no statement at this time," she said, and sank back into her seat.

McCoy released her wrist, and Regan put her hands in her lap, out of sight of the jury, and unobtrusively rubbed at the livid marks his fingers had left, working her fingers to restore feeling. She glanced angrily at McCoy and was surprised to see what seemed to be a look of horror on his face. He's come to his senses two seconds too late, she thought, and leaned toward him.

"Don't worry, I can still open at the beginning of our case," she reassured him.

"What?" McCoy asked hoarsely, as if her words made no sense to him, as if she were speaking a foreign language he had to travel a great distance to hear.

"Don't worry – " Regan said again.

"I'm not worried," McCoy said dismissively, and turned his attention back to the front of the courtroom.

Regan turned as well. In her peripheral vision she could see Cutter watching the defense table. She cut her eyes to the right to see him better, but couldn't read his expression. Don't know him well enough. Was he curious? Speculative? Pleased with himself?

All of the above, Regan concluded.

Looking at the jury, Regan thought that Mike Cutter had every reason to be pleased with himself. The jury had heard the dog-whistle he'd been blowing – Jack McCoy is an alcoholic womanizer – and he'd successfully provoked her into forgetting the importance of the jury's opinion of her. When Regan caught the gaze of one of the women in the jury, the woman quickly looked away. Bad sign, Regan thought, her stomach turning.

"Mr. Cutter, are you ready to proceed?" Wright asked.

"Yes," Cutter said.

Here we go. Keri Dyson. And I got nothing.

"The people call Dr Elizabeth Rodgers," Cutter said.

As the call went out into the hallway, Regan stared at Cutter. He's not calling Dyson. Not yet.

A reprieve. But Regan didn't feel reprieved. What's Cutter up to?

Liz Rodgers strode down the aisle, through gate and across the well. She settled herself in the witness stand and took the oath in a crisp voice.

"Dr Rodgers, you are the Chief Medical Examiner for New York City, correct?" Cutter asked.

"That's right," Rodgers said. To Regan, she sounded pissed off at the question. But then, Liz Rodgers always sounds pissed off about something.

"I'm showing you a medical report," Cutter said, picking up a file from the prosecution table and walking toward the witness stand.

Regan scrambled to her feet. "Your honor, I'd like to be heard on the question of the admissibility of that report," she said quickly, grabbing Dr Jordan's affidavit.

"You can't be pretending there's a discovery issue," Cutter said in mock astonishment. "You've had this report since day one."

"Approach," Wright said wearily.

"Your honor," Regan said as she reached the bench, hurrying to keep Cutter from getting a word in edgewise, "defense was provided with a copy of this report, but without the opportunity to examine the original."

"You could have requested that at any time," Cutter countered.

"Evidence has only just come to light that cast doubt on the veracity of this document," Regan said desperately. "Given this, and the best evidence rule – "

"Which doesn't prohibit mechanically produced copies – " Cutter interrupted.

"Except where a party has raised a genuine question about the accuracy of the copy," Regan said.

"I've yet to hear your genuine question," Wright said to her.

"Your honor, defense has an affidavit from the doctor whose signature appears on that document, stating that he did not treat Keri Dyson, does not work at Mercy and was not in Manhattan on the night in question," Regan said. She glanced at Cutter and thought he looked genuinely surprised. "Given this, defense seeks to have the report Mr. Cutter is about to tender in evidence subjected to expert examination and testing."

"That doesn't sound unreasonable, Mr. Cutter," Wright said, "Even if it is a motion that should have been made in limine. Do you have any knowledge of this discrepancy?"

"None, your honor," Cutter said.

"I'll tell you what I'll do," Wright said. "You, Mr. Cutter, can continue on this line. But you will make the original document available to the defense for their testing immediately. I will take judicial notice of the results of these tests. And if the document turns out to be a forgery, the jury will hear about it – from the bench, not just from the defense."

Cutter glanced down at the file he held. "Your honor, the People have a notarized copy of this document, not the original."

"Well, get the original," Wright ordered. "Get your complaining witness to sign a release and get the original file from the hospital."

"Yes, your honor," Cutter said.

"And, Ms Markham, I'm warning you, if you're playing fast-and-loose here, I won't be happy," Wright said.

"I can present the affidavits to you immediately, your honor," Regan said, doing just that. "My associate was about to return to Baltimore to interview witnesses who can confirm Dr Jordan's presence in Baltimore on the night – "

"Get your DA's investigators on it," Wright ordered Cutter. He held out the affidavit Regan had handed up to his clerk. "Copy to the People," he instructed.

"Your honor, it's never been the responsibility of the prosecution to support defense – " Cutter started.

"You are running very close to EC 7-13," Wright said.

"I think that's debatable," Cutter said.

"I guarantee you the chance of debating it before the ethics committee," Wright said. "Evidence has been brought to your attention that a key piece of prosecution evidence may be unreliable. Follow it up!"

"Yes, your honor," Cutter said, conceding.

"Carry on, both of you," Wright said, shooing them back toward the tables.

As Regan took her seat she saw Cutter lean over to speak to Connie Rubirosa. The ADA's eyes widened, and she got hastily to her feet and left the courtroom. Chasing down the original document, Regan thought to herself, and the Baltimore witnesses. And, I hope to God, asking Keri Dyson a few very pointed questions.

"What the hell were you doing?" McCoy asked her angrily.

"I can't stipulate to this exhibit and then challenge it later on the basis of evidence that is already in my possession," Regan said. She looked over the bar to Danielle Melnick for support.

"Best of bad choices," Danielle said, nodding. "I hate tipping my hand this early, but sometimes you don't have an option."

"You've no substantive reason to challenge it at all," McCoy said.

"The man who signed it was in another city at the time," Regan said. "That's substantive. Now shut up and let me do my job."

"You might need these," Danielle said, leaning forward to hand Regan a sheaf of papers. "Depositions from the ADAs at the bar that night."

"I think Cutter's going to call them and try to get character in by the back door," Regan said. "What do I do?"

"Get used to the words 'Objection – inadmissible under Molineux',' Danielle said with an elegant shrug.

Regan gave Danielle one last imploring look and turned back to watch Mike Cutter continue his cross-examination.

"Dr Rodgers, I'm showing you a copy of a medical report, People's 1," Cutter resumed. "Will you tell the jury what it shows?"

"It's an ER report from Mercy General," Rodgers said, sounding bored. "Patient's name Keri Dyson, treated in the small hours of May 4 this year."

"Last Friday," Cutter prompted.

"If you say so, I don't have a calendar handy," Rodgers said dismissively. "Anyway, according to this chart, Ms Dyson was treated for facial contusions and a fractured cheekbone by Dr Rob Jordan."

"What is your expert opinion on the cause of these injuries?" Cutter asked.

"Two or three blows to the face," Rodgers said.

Regan glanced at the jury and saw them rapt. She looked at McCoy. He was staring straight ahead, back ramrod straight.

"With a weapon?" Cutter asked.

"Probably with a fist," Rodgers said.

"Severe blows?" Cutter asked.

"It's hard to comment without having examined Ms Dyson," Rodgers said.

"But if pressed?"

"Asked and answered," Regan objected, and Wright nodded.

"Move on, Mr. Cutter," he advised.

"Any other injuries?" Cutter asked.

"Bruising to the neck consistent with the patient having been held by the neck, perhaps choked," Rodgers said, and Regan heard McCoy's breath catch. Rodgers flipped the file closed. "It's my opinion that these impacts would have left corresponding marks on the hand of the – "

"Thank you, Dr Rodgers," Cutter said, cutting her off. He turned toward Regan. "Your witness."

Regan began to stand. McCoy reached as if to take her wrist again but stopped abruptly before he touched her. "No cross," he instructed.

"Jack!" Regan said, bending toward him and trying to keep her voice too low for Cutter or the jury to hear. "I can't leave that testimony unchallenged – "

McCoy shook his head "EC 7-7. The authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on the lawyer," His voice was harsh and final. "No cross."

Regan swallowed hard against threatening nausea. "No questions for this witness at this time," she told Judge Wright, and saw his eyebrows go up.

As she sat down this time she was sure she saw Cutter staring at her. He must wonder what I'm up to, she thought sickly. I wish this really was some brilliant legal ploy.

Cutter's next witness was Bill Fitzgerald. Fitzgerald reluctantly testified that McCoy had been very 'affectionate' with Keri Dyson at the Lord Roberts, that he had seemed intoxicated, that they had left together 'walking very close'. Regan thought glumly that Fitzgerald was an excellent witness for the prosecution – obviously unwilling to say anything derogatory about McCoy, but obeying the requirements of the court and his oath, both as witness and as an officer of the court. The jury will add ten percent to everything he says, on the assumption he's downplaying it, Regan thought.

Skimming his deposition while Cutter questioned him, Regan noted a few questions on her pad. She might not be able to undo Cutter's dog-whistle – Were you surprised to see Mr. McCoy and Ms Dyson leave together? And why not? – but she could get in a few good points about how little McCoy had had to drink, how quickly he'd become intoxicated.

As she began to rise to her feet, McCoy turned to her and reached out to lay his right hand flat over her legal pad, covering her notes. "No cross," he said.

Regan paused, looking down at his hand because she thought that if she looked at his face she'd quite possibly punch it. His ring caught the light, the JJM disappearing and reappearing in the late morning sun through the courtroom window. Regan laid both her hands over his. Her grazed knuckles and bruises made her hands look like a laborer's or a farmer's compared to his.

Well, I'm the brawler, she thought. And I'd fight his battles for him – if he'd let me.

"Jack…" she whispered, caught between nausea and tears.

"No cross," McCoy said coldly, and drew his hand from under hers.

Regan nodded tiredly, and rose to her feet. "No questions for this witness at this time," she told the court.

Judge Wright frowned at her. "The witness is excused," he said. "And you, Ms Markham, approach."

When Regan reached the bench, Cutter close behind, Wright covered the microphone with his hand and said: "What the hell are you playing at?"

"I'm not playing at anything," Regan said. "I'm following the instructions of my client. As required to by the Code of – "

"Yes, yes," Wright said, waving her to silence. "Do you mean that what I thought I overheard is correct? Your client has specifically instructed you to offer no opening statement and no cross-examination?"

"Yes, your honor," Regan said.

Wright's lips tightened. "Goddamn it," he said. "I thought I told you I wouldn't have this trial turned into Jack McCoy's personal circus."

"And I listened, your honor," Regan said. "But … "

"I understand," Wright said grimly. He let go of the microphone. "We'll have the luncheon recess now for an hour. And I'll see prosecution, defense, and the defendant in my chambers. Right now!"


.oOo.


A/N: EC 7-13 of the Professional Code of conduct is the part that declares that prosecutors should not avoid pursuing evidence just because it might be exculpatory.

I am here, and will in the rest of the story, play a little fast-and-loose with the Molineux standard – established in People v. Molineux, 168 N.Y. 264 (1901), the Molineux standard determines the admissibility or otherwise of evidence of acts unrelated to the act charged but which are, or may be considered to be, relevant to the guilt or otherwise of the defendant. It is generally held that evidence of prior acts or character is inadmissible if it goes only to prove that the defendant is the type of person who might be expected to commit the act in question, but admissible to establish motive, opportunity, intent, preparation, common scheme or plan, identity, absence of mistake or accident. There are in a number of jurisdictions, including Federally, exceptions allowing the admissibility of evidence concerning sexual offences.