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Entertainment Weekly

TV Recaps

NCIS recap: 'Burden of Proof'

Bill Inoshita/CBS

Posted on

We gave it an A

NCIS

9/23/03 - 1/1/70

type
TV Show
genre
Action, Crime
performer
Mark Harmon, David McCallum, Pauley Perrette
broadcaster
CBS
seasons
15
Current Status
In Season
tvpgr
TV-14
genre new
29033802, 29033822

It’s always a pleasure to watch NCIS when it’s firing on all cylinders, and tonight, those cylinders were all engaged.

The team takes on the case of Gabriel Hicks, who’s a decade into a death sentence for murdering Lt. Edward O’Connell. Hicks swears he was framed during the joint NCIS/FBI investigation. Mark Mason, the NCIS agent who worked the case, died five years ago, so Gibbs takes the lead in the new investigation in advance of Hicks’ retrial.

O’Connell was abducted by man in blue van and forced to withdraw $1,200 from his bank before he was murdered. However, the evidence against Hicks was all circumstantial: He drove a blue van, was found in possession of cash, and lied about his alibi that night. The best witness, a woman selling fruit near the bank, was never found.

Although Hicks’ attorney, federal public defender Jessica Schafer, finds no evidence of a frame job, she does ask Ducky to return to town to review the original case notes and O’Connell’s exhumed body. (Ducky was out of town during the initial autopsy, which was handled by a city ME.) Ducky and Palmer confirm death by blunt force trauma, but the body’s deteriorated condition tells them something new: O’Connell was killed while kneeling, but the fatal blow was delivered by a left-handed swing. And Hicks? You guessed it; he’s a righty.

A familiar face worked the case for the FBI 11 years ago: Fornell! Over lunch, he declares Hicks as guilty as they come, although Gibbs remains unconvinced, particularly because of the left-handed murder by a right-handed man.

When Torres and McGee examine the original murder scene, they discover new evidence. O’Connell’s license had been tucked behind a “no trespassing” sign nailed to a tree, and the tree’s growth over the last 11 years dislodged the license enough to allow it to be found.

Abby confirms that blood smeared across the license picture belonged to O’Connell. Then Bishop finds that this MO (victims’ licenses found at the scene with blood smears over the faces) matches four unsolved D.C.-area murders.

Fornell immediately declares Hicks the serial killer, leading to a shouting match with Gibbs, who wants to continue investigating Hicks’ innocence. Fornell is particularly incredulous that they want to search for Witness X, the fruit woman, especially since the driver’s license murders stopped after Hicks was locked up.

Jack, meanwhile, has befriended attorney Jessica, so Gibbs invites himself along on the women’s next appointment with Hicks. Hicks swears to Gibbs and Jack that he’s not a liar, he just got his dates mixed up, and he’s suspicious that Mason got a promotion following his conviction. He dreams of being a free man and going out for ice cream: two scoops of vanilla, just like his late father used to get.

After they leave, Jack says she didn’t notice any psychopathic tendencies and asks what Gibbs’ famous gut picked up. He seems flattered that his reputation traveled all the way to California but otherwise declines to comment.

Speaking of Jack, the Young Turks continue to worry about her profiling them, particularly when rumors spread that she keeps a locked cabinet in her office full of profiling materials on her colleagues. In fact, she’s already pegged Torres as a fan of regular pedicures, and he in turn convinces Bishop that Jack diagnosed her as having “feet like a werewolf.” (Jack said no such thing; Torres just likes messing with Ellie. It’s an understandable reaction.)

Anyway, 11 years ago, Abby’s mass spectrometer couldn’t pick up anything useful from Witness X’s fruit bags collected at the scene, but thanks to recent tech upgrades, it’s now able to detect farm equipment rust protectant sold at a particular paint store.

Torres arrives to ask after Witness X, and the owner, a jovial man who goes by “Pop,” says a current employee used to take them home for his aunt to use in her fruit-selling business. But the employee, Ray, takes one look at Torres and bolts. Torres gives chase and eagerly throws himself into hand-to-hand combat to bring Ray down.

At NCIS HQ, Gibbs asks Torres handle Ray’s investigation solo and forge a connection. Torres does a bang-up job, complaining that they both have old man bosses and complimenting Ray’s boxing. It works, and Ray admits that he’s been cashing his aunt’s annuity checks since she moved away.

Ray doesn’t know where she is now, but he provides her name: Mary Smith. Despite such a common name, the team tracks her down, and she tells Gibbs that she tried to sell the man in the blue van some oranges that day. He told her to walk away or she’d regret it. She doesn’t remember what he looked like, beyond the fact that he was black and in his 40s.

As Hicks is white and much younger, Gibbs asks why Mary didn’t tell anyone 11 years ago. Oh, but she did; she told the FBI agent, Fornell. (Next page: Gibbs chooses between ethics and loyalty)

Gibbs confronts Fornell, who admits to knowing Mary’s whereabouts and covering it up. Gibbs isn’t the only one who listens to his gut; Fornell’s tells him that Hicks is the murderer, and he threatened Mary so much that she lied for him and then disappeared.

Disgusted, Gibbs points out that the late NCIS agent Mason wasn’t the only one to get a promotion out of all of this. Fornell says this information will ruin his career, endanger his relationship with his daughter, and allow a serial killer to walk free. Then he accuses Gibbs of hypocrisy for being upset that Fornell took it upon himself to condemn Hicks. Then Gibbs kicks him out of his house.

Brutal, friends. Just brutal. Gibbs and Fornell have always had an Odd Couple-style friendship. Sure, there were some sharp edges, but those two men have been in each other’s lives for so long that this falling out is painful to watch.

It’s clearly weighing on Gibbs, who shouts at his team and then gets even shoutier when Jessica says she knows about Witness X and will call Gibbs to testify about their conversation. She also reminds him of the ramifications of a Brady violation, which states that the prosecution must hand over all exculpatory evidence or risk a vacation of the sentence.

Fuming, Gibbs storms into Jack’s office to accuse her of telling her new friend Jessica about Witness X, but Jack calmly denies it. Then she gets him to admit his quandary: If he tells the truth, a friend will lose everything. But if he lies, he’s resentencing an innocent man to death.

Jack then points to the wooden cabinet that’s just been delivered to her office. “I think you’re trying to distract me with a hand-crafted piece of furniture,” Gibbs says. But she launches into a story: Her dad made it for her mom before they were married. Her dad made the bottom drawers too tight to function, but her mom loved it just the way it was. Even though it’s empty, she loves having it in her office because it reminds her that even extraordinary people make mistakes. It’s the response to those mistakes that defines us. Then she leaves her office and tosses Gibbs her keys, telling him to lock up when he’s done, just the way he did the night they met.

Cut to Gibbs on the stand the following day at Hicks’ retrial. He testifies that he located Mary Elaine Smith, who identified a 40-something African American man as the driver of the van. Gibbs then says that Mary gave the same statement 11 years ago to Tobias Fornell. The courtroom erupts, and although we don’t see it happen, it appears as though Hicks’ conviction is vacated thanks to the aforementioned Brady violation.

Gibbs joins Fornell on a bench outside the courtroom, and his old friend says he’s the one who tipped off Jessica about Witness X. He’s been carrying this burden for so long that he finally transferred it to Gibbs, who’d do the right thing.

After giving a statement to the media, Hicks says farewell to Gibbs, saying he plans to get two scoops of chocolate ice cream in honor of his dad. “Vanilla, wasn’t it?” Gibbs corrects him. Hicks shrugs off his mistake, but the truth slams Gibbs right in his fabled gut.

He and Jack follow the newly freed Hicks to the batting cages, watching from the car and debating whether he’s a liar and, if so, whether that also makes him a murderer. Knowing they’re watching, Hicks transitions from right-hand batting to left-hand batting. He’s a switch hitter, and he played them. Steely eyed, Gibbs declares, “Game’s not over.”

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