The Advocate's Devil

by Alan M. Dershowitz

  Abe, who believed in his gut that Odell was innocent of this crime, had taken over the case on appeal on a pro bono basis and had lost in the state and federal courts. The judge had set an execution date—two months hence. Now the case had taken several new twists.

  First, Charlie Odell had developed prison psychosis. He had literally gone crazy on death row and had to be given massive doses of Thorazine, Librium, Valium, and other antipsychotic drugs just to keep him from banging his head against the brick walls and killing himself. How ironic, Abe thought. The state wants to kill Charlie. Now Charlie wants to kill himself. So the state has to stop him from killing himself so that they can kill him. The Supreme Court had ruled that a condemned man must be cured of his insanity before he can be executed, so that he could understand the nature of the punishment.

  Now apparently fate had thrown them another curveball.

  “So what’s the latest?”

  “I went to law school with a woman named Nancy Rosen,” Justin said. “She was one of Haskel Levine’s students during his last couple of teaching years. Her parents were wealthy New York real estate people. Predictably, she rebelled, became a radical, and went to work for Bill Kunstler. She didn’t get along with him, so she opened a storefront law office in Newark.”

  “Another baby boomer who rejected the silver spoon in her mouth?”

  “Don’t stereotype us, Abe. I drove a cab to get through law school. The spoon was silver all right, but it had tarnished a long time ago, and we didn’t have enough money to polish it. Poor Mayflower trash, my mother calls us. Poor but proud.”

  “So what about Ms. Rosen?”

  “Well, you’re not going to believe this. She called me to say that she knows who killed Monty Williams but she can’t tell us because it was told to her by a client and falls under the rule of confidentiality.”

  “My God, Justin, can’t you plead with her? We’re talking about life and death.”

  “I begged her to reconsider. Her exact words were ‘My client’s life is also on the line. I have to protect my client even if he’s guilty as sin.’”

  Nancy Rosen was right under the rules of legal profession, of course. But she was wrong, Abe thought, a hundred percent wrong, according to the rules of decency and morality.

  “Please, Justin, get her to think about it.”

  “I can only try, Abe. Meanwhile, I better get over to Campbell’s hotel. I’ll check in later.”

  Abe nodded absently, absorbed in the situation Justin had just presented to him. How much influence could Justin have over a former classmate? He tried to put himself in the young woman’s position.

  Abe needed Haskel’s wisdom—or at least his presence—to help him make some tough decisions about the Charlie O. case. It was almost twelve weeks to injection day, and in the world of legal remedies, twelve weeks was a blink of the eye. The fact that Haskel’s phone was still busy was a good sign. Perhaps it meant that the old man was having a good day.

  Briefcase in hand, Abe left the office, flinging himself into the cool March air. He walked briskly, covering the half mile to Haskel’s house in seven minutes. Abe always had been somewhat frightened by Haskel’s home. It was almost exactly the opposite of his own—closed off, stuffy, the windows covered by heavy drapes. After Jerome, the home companion, let him in, it was clear that illness was hanging in the air, advancing toward its ultimate destination.

  When Jerome took Abe into Haskel’s study, the older man was quite alert, poring over the Boston Globe with his glasses pushed up on his forehead in the old way he had that made Abe’s heart hurt. How often had he seen his mentor with just those same glasses pushed back up on the great dome of his head.

  Haskel motioned for Abe to move closer to his desk chair. There were so many books and periodicals in Haskel’s office that he arranged them in stacks like giant toadstools on the floor. Abe usually ended up seated on the ancient mahogany desk, his back against the room’s lone window, facing Haskel. Above Haskel’s large head were a series of old oil paintings of bearded European rabbis. “My inspirations,” Haskel would call them. Now Abe leaned toward the elderly man, who whispered, “Abraham, can I confide in you?”

  Haskel always insisted on calling Abe by his full biblical name, though Abe clearly preferred the shortened, more American version. To Haskel, Abe would always be Abraham, since the mentor thought it appropriate to his protégé’s confrontational legal style. “The patriarch Abraham was, after all, the first defense attorney in recorded history,” Haskel had long ago told Abe. “He argued with God in defense of the condemned cities of Sodom and Gomorrah.”

  “Yeah, but he lost,” Abe had replied.

  “It’s not a disgrace to lose an argument with God,” Haskel had replied. “You’ve lost to some lesser opponents.”

  As Abe recalled that story, he placed his hand on the old man’s shoulder and nodded. “You can always confide in me, Haskel.”

  Haskel whispered in his ear, “I don’t always take all the medicine they give me. Sometimes, when I feel like being myself, I hide the pills under my lips and flush them down the toilet later.” Haskel then put a gnarled finger to his mouth, removed the pill Jerome had given him earlier, and crushed it with surprising strength into powder. “This makes me feel a little more in control of my life. Is there anything so terrible about that? Who, after all, am I cheating?”

  “You’re cheating yourself, you’re cheating me, Haskel,” Abe pleaded. “They’re miracle drugs. They really do make a difference. You’re entitled not to suffer.”

  Haskel shook his head vehemently. “It’s my decision, not yours or anyone else’s. I’ll think about what you said, but it is very important for me to make the decision. Do you understand?”

  Abe nodded—how could he not agree?

  “So, tell. It’s about Charlie O.?”

  “How do you know?”

  “Because you came to see me in the middle of a workday. You do that only if it is something important. And I know that the most important case you have now is that young man on death row.”

  Abe was astonished at the things Levine remembered, compared with the things he let go. It seemed as though his diseased memory still had a very refined selectivity about it. Haskel could forget that he was eating cereal in the middle of breakfast. Yet he could instantly remember the most painful case of his protégé’s career.

  Haskel and Abe had previously discussed Charlie’s prison psychosis. Now Abe filled him in on Nancy’s phone call to Justin.

  “Your Mr. Charlie faces the same struggle I do. People want to keep him alive, so he can die when they are ready.”

  Haskel’s eyes were changing focus, and Abe knew any minute he would be lost. He had learned that if he sat quietly for a few minutes, his mentor would sometimes snap back. As he watched Haskel, he noticed a stain on the old man’s pants. Haskel was struggling against the dementia trying to overpower him—a battle he could sometimes win by recounting stories from his youth in Vilna, where as a twelve-year-old yeshiva student he had mastered the Jewish sacred texts, as well as calculus, geometry, and algebra.

  “Have I told you about the trip my father and I took to Berlin before the war?” Levine’s father was a melamed, a simple Hebrew-school teacher.

  “Many times.”

  “About the swimming lesson?” Haskel asked, then continued without giving Abe a chance to reply. “My father wanted so much for me to attend the University of Berlin. We traveled there. As it happened, Hitler was giving a speech that day.”

  Haskel had told Abe a number of times about this trip, painting a spooky picture of himself and his father in their side locks and dark clothing as they were taunted and spat upon by Nazi hoodlums. They had stayed long enough to hear Hitler speak, then he and his father had taken the next train back to Lithuania.

  “On the ride home, my father asked me this question: ‘According to Jewish law, what are the three things a father must teach his son by the time he becomes a Bar Mitzvah?�
� Well, I was frightened by the hoodlums, but not so much that I could not answer this question, since it had been ingrained in me. ‘First Torah; then a trade’—and the third, which had always fascinated me—‘to swim.’”

  “‘And which is the most important?’ my father asked me. The correct answer, I thought, was Torah, of course, because it includes everything. So then my father asked, ‘But what is the most important mitzvah in the Torah?’ The answer, I knew, was ‘Pickuach nefish’—the obligation to save life.

  “Then my father smiled at me and asked: ‘Which of the three obligations comes closest to the saving of life?’ Without answering, I smiled back at my father, signaling to him that I understood what he was telling me. By then my father had already taught me Torah. He had directed me toward a profession. But that day in Berlin he taught me how to swim. I remember his words exactly. He said, ‘Never swim against the current; always look for dangers beneath the surface; and always anticipate a change in the weather.’ This was my father’s way of gently telling me I would not be going to Berlin—that the climate, the weather, was wrong there. And so he sent me here. And you know the rest of my story.” As indeed Abe did.

  Haskel’s father had sent him first to study in Boston at a Jewish high school and then on to Harvard and Harvard Law School. After one year at the law school, Haskel volunteered for the United States Army, served as a translator near the front, and made heroic efforts to locate his family. After the war he found out that they had all perished at Treblinka. Haskel returned to Harvard, completed his degree, served as a law clerk to Justice Felix Frankfurter, and began his brilliant career at the bar. In his spare time he taught trial practice at Harvard, wrote three books about jurisprudence, learned half a dozen more languages—each one of which he spoke with hardly a trace of an accent—and cultivated flowers, a hobby that Abe believed kept Haskel more firmly grounded than most of his colleagues. In his late thirties he married Estelle, the widow of one of his colleagues and a woman several years his senior. They had no children.

  Abe had been one of Haskel’s first students in trial practice, and a close relationship had developed between them.

  Haskel’s method of teaching confused many of the students, who were looking for answers, especially in a course as practical as trial strategy. But Haskel didn’t give answers, only more questions. “I don’t answer questions,” he would gently advise his students. “I question answers.

  “My job,” he said, “is to deepen the level of your confusion. Your job is to find answers that work for you. Only you can do that. I can help by questioning your answers.”

  Abe had a natural affinity both toward Haskel’s method of teaching and toward Haskel as a person. Both were old-fashioned men, though very different in their attitudes toward spirituality and religion. While Haskel had initially abandoned his faith in God after learning of his family’s fate, he had gradually returned to it. Now, facing death, Haskel was more spiritual than ever. Abe was a skeptic. “How can you still believe,” he had once asked Haskel, “after what God allowed to happen to your family?”

  “My dear friend Abraham,” a much younger and more impish Haskel had replied, “I must respond to your probing question with a question of my own: After surviving an event as cataclysmic as the Holocaust, how can one not believe?”

  “Believe in what? A God who punishes the virtuous and rewards the evil? That’s what happened during and after the Holocaust. Innocent Jews died, and guilty Germans lived a good life.”

  “Let me tell you a story about the Holocaust that my friend Elie Wiesel once told me,” Haskel had responded. “It took place during the darkest days at Auschwitz, when all was hopeless. A great Hasidic rabbi summoned God to a din Torah—a lawsuit. The rabbi accused God of abandoning his people in their time of greatest need. Witnesses were summoned, evidence was taken, and the jury voted. Elie told me that God was unanimously convicted by the jury—and then everyone prayed.”

  “But then after they prayed, they were gassed,” Abe had replied in a tone of anger. “Wouldn’t they have been better off trying to resist than relying on a God who doesn’t keep his promises?”

  “Is it so much better to rely on human beings who fail to keep their promises to God?”

  It was typical Haskel—always answering hard questions with harder questions and with stories—filled with rabbis, talmudic scholars, and, of course, lawyers. Haskel’s stories reflected the dual worlds that his mind and soul would always inhabit: the rational world of secular law and the mystical world of religion.

  Abe had never been religiously observant, but he identified strongly with Jewish ethics and the historical experience of Jewish persecution. He was also a respectful skeptic—about everything. He had once bought a T-shirt for Haskel that read “Question authority—but raise your hand first.” It perfectly captured the attitude of respectful skepticism by which both Abe and Haskel lived their lives. Haskel treasured the T-shirt, though he never wore it. “I am not the T-shirt type,” he’d explained apologetically.

  Though Abe was skeptical about nearly everything, he believed in rules. Even during the freewheeling sixties and seventies, he had never smoked pot, engaged in civil disobedience, or flouted the law. He was, he acknowledged with a mixture of pride and embarrassment, something of a square. Never do anything in private you wouldn’t be proud to defend in public, he would tell Emma. Abe had broken that rule once, and it still haunted him.

  Now he tried to draw Haskel back to the present. It wasn’t clear how much Haskel understood as Abe recounted Nancy Rosen’s call. When Abe explained that Nancy knew who the real killer was, Haskel responded by reminiscing about Nancy, to whom he had taught trial strategy at Harvard Law School.

  “She was a dedicated soul,” he recalled, “always calling into question the conventional wisdom.” Haskel asked one of his traditional questions, but this time Abe’s mind was wandering and he did not immediately grasp its relevance: “Can a lawyer who defends civil disobedience by others refuse to engage in it herself?”

  Haskel wanted to keep talking, ostensibly about the Odell case, but really about his own situation. Or maybe it was about the Odell case. “Is a man himself,” Haskel asked, “when he takes medicine that makes him so different? Is Charlie alive on those drugs? Or is he already dead?”

  Abe pleaded with him to take his medicine, then noticed that Haskel had drifted away. Gently he kissed his mentor on the head and thanked him for his advice.

  Haskel suddenly awoke. “What advice? Why thanks? For asking a few questions and complaining about my medicine? It’s you I must thank, for listening and for trusting me, even now.”

  Abe walked down Brattle Street, passing the pre-Revolutionary wooden homes and the nineteenth-century brick mansions. He began to wonder what would happen when Haskel died. Would he become one of those blubbering fools who visit their parents’ graves and “talk” to them? Abe understood that strange phenomenon a bit better now that he would sit with Haskel and “talk” to his nearly unconscious body.

  While Abe contemplated life without Haskel’s physical presence, an idea popped into his head about how to win the battle for time in the Odell case. Had Haskel knowingly put it there? It was impossible to tell, since by this time their two minds were as one.

  It didn’t really matter whose idea it was. It was a doozy.

  Abe glanced at his watch: 5:45. He stopped on the sidewalk and pulled his cellular phone from his briefcase.

  “Justin? It’s me. Can you hear me all right?… Good, listen. Haskel just gave me a way to buy some time for Charlie. It’s chancy, but…”

  Chapter Four

  It was hot that night at the old Boston Garden. Maybe it was one of Red Auerbach’s fabled tricks for putting his opponent at a disadvantage—like not repairing parts of the famed parquet floor so that only the home team would know where the dead spots were. Abe had managed to reach Emma at school and talk her into leaving her feminist group a bit early in order to meet him in fro
nt of the “will call” window, where two loge tickets were waiting in Abe’s name.

  Abe loved these opportunities to be alone with Emma at a sports event. He found it easier to talk to her when they were both looking at something else rather than at each other. And sports—especially basketball—were a shared passion. Abe enjoyed the periodic father-daughter, one-on-one games in their backyard court, most of which Emma won.

  The evening news had carried the story that Abe was representing Campbell, and several fans congratulated Abe on his new client. When the opposing players were introduced, the fans gave the usual friendly boos to Ewing and Oakley, but when Campbell’s name was called, there was a smattering of cheers. One fan yelled out, “She asked for it,” and another screamed, “Now that you’re through with her, I want her!”

  Emma turned to her father in disgust. “These guys have already tried and convicted the woman. It’s revolting, but typical. Now do you understand why so few rape victims complain?”

  “C’mon,” Abe replied, “lighten up. These are sports fans. What do you expect? They’ve obviously had a few brews.”

  Joe was right about his game not being up to par. His performance during most of the first half was well below his usual aggressive style of play. He seemed lethargic, uninvolved. But near the end of the second quarter, he hit two quick jump shots, one of them from three-point land. He seemed to smile at Abe as the official put his arms in the air to signify the three. The half ended with the Knicks ahead by four points.

  During the half-time break, Abe phoned the office and reached Justin. “I’m glad you called. I found something unbelievable.”