The Advocate's Devil

by Alan M. Dershowitz

  “I’m so sorry, Nancy. I had no choice.”

  “I know. I knew it would probably end this way when I sent my letter.”

  “You’re going to be convicted and probably disbarred—and I’m the government’s star witness. I feel awful.”

  “If it makes you feel any better, Justin, I would have testified against you if our situations had been reversed. You did the right thing.”

  “But you’re paying the price.”

  “Look, Justin, I never thought I’d last this long in the profession. I’m a radical, a revolutionary. I knew that someday I’d have to choose between my bar certificate and my conscience. And this is a hell of an exit. How many lawyers can have their professional tombstone read ‘She saved an innocent life’?”

  “You realize that you’re going to be sentenced to prison.”

  “That’s where a radical belongs. I’m going to be one hell of a jailhouse lawyer.”

  “Nancy, I’m not going to rest until we get you out of here and your bar certificate returned.”

  “First you’ve got to help Duncan put me in and take it away.”

  “Don’t I know it. That’s the last position I ever expected to find myself in: helping an SOB prosecutor put my friend in prison for doing the right thing. I feel like an absolute shit. You’re a real heroine. I wish we could change places, like Darnay and Carton in A Tale of Two Cities.”

  “This is not a tale,” Nancy replied as her eyes filled with tears.

  Chapter Twenty -three

  CAMBRIDGE—SUNDAY, MAY 28

  This was a busy time for Justin. In addition to his unwelcome role in the Odell case, the young man had been put in charge of researching the ethical limits of exactly what a lawyer could do in defense of a client who had lied to him. It was a murky area with only a few clear signposts.

  Today, a Sunday, was being devoted to this issue. Abe and Justin were anticipating a full day of work. Emma had been ticked off, Abe knew, because she had wanted to lasso him into going to the artsy cinema house she loved so much, and he hated putting her off. He felt guilty. Did all fathers feel this way, he wondered, or just the ones who were bringing up their kids alone? Oh, well, he’d make it up to her later—somehow.

  “If Moses came down from Mount Sinai with a list of commandments for lawyers defending clients they thought were guilty,” Justin joked, “he wouldn’t have needed two tablets.”

  “How so?” Abe asked him.

  “There aren’t more than a handful of rules. The problem is every one of them is riddled with exceptions, loopholes, and uncertainty.”

  “Give me a for-instance,” Abe said, using a phrase his father had loved. (And to which his mother would always respond, “A for-instance is not an argument.”)

  Justin thought a moment. “A lawyer can’t knowingly mislead the judge. As an officer of the court, he owes the judge an obligation of candor.”

  “Okay. That’s the first commandment. It seems all too clear.”

  “It’s not,” Justin replied. “You can certainly plead your client ‘not guilty,’ even if you know he is guilty.”

  “Yeah, but that’s just a formal plea. Nobody is misled by that. A plea of ‘not guilty’ means that you are demanding a trial, not that you believe your client didn’t do it.”

  “In other words, it’s a legal fiction, like so much else in the law,” Justin said. “Okay. I’ll give you that one. How about cross-examining a witness you know is telling the truth and trying to make her out to be a liar? Can you do that to Jennifer Dowling in this case?”

  “You bet I can, and I will, because she is a liar. She lied to the police about a whole bunch of stuff.”

  “That’s a cop-out, Abe,” Justin insisted, “because we know—but the judge and jury don’t know—that Jennifer is telling the truth about the ultimate issue: that Campbell raped her.”

  “I don’t know any such thing, and neither do you. In any event, that’s for the jury to decide.”

  “Sure it is, but you’re deliberately trying to mislead them into deciding it falsely.”

  “Look, I don’t make the rules. Nobody says I can’t cross-examine a witness who I may suspect is telling the truth. In fact, I’m obligated to, under the rules.”

  “In other words, you just follow orders—like the psychiatrist in New Jersey.”

  “Cheap shot, Justin. These are good rules.”

  “Well, maybe, and yet there’s no question that they often lead to bad results. They create confusion and uncertainty because they’re so unclear.”

  “Why the hell do you think they’re so unclear?” Abe felt like banging his fist on the desk, but he settled for shouting. “It’s because most of the bar association honchos who wrote them don’t know the first thing about real life. And because those who do, don’t want to confront the tough issues.”

  “Calm down, Abe. You asked me for the rules, and I’m telling you there’s not much there, except for the one pretty clear one.”

  “Which one is that?”

  “You can’t call Campbell as a witness if you know he’s going to lie about anything—that’s clear.”

  “Really? Is the word know all that clear? Do we really ‘know’ what you suspect about Campbell?”

  “No,” Justin admitted. “We don’t know for sure. You choose not to know for sure. Listen, you’re absolutely correct that the word know is the lawyer’s out—the fudge word. Even some of the Supreme Court justices recognize that. I guess it’s up to each lawyer’s conscience as to whether he ‘knows.’ What does your conscience say, Abe?”

  “Hey, wiseguy, I haven’t checked lately. I only do that as a last resort, and I haven’t reached that point yet.”

  “You will soon.”

  “I’m not so sure. What if I call him and limit his direct examination so that he doesn’t get close to any possible lies?”

  “How can you possibly do that?”

  “I didn’t say I could. But what if? What if I just ask him about the events leading directly up to the rape? I don’t ask him how he first met her, and I stop before I get to the ultimate act.”

  “How could you do that without the jury knowing that you’re trying to pull the wool over their eyes?”

  “I don’t know, but let’s think it through before we abandon that possibility.”

  Abe loved this part of his work: the one-on-one exchange with his bright young protégé. The effort to outthink and outmaneuver his opponent. The attempt to fit a winning tactic into an acceptable ethic—to use his brain to avoid his conscience.

  “Okay, let’s run through it,” he told Justin. “You be Campbell and I’ll put you through my direct examination. Let’s see if it works. You’ve gotta testify truthfully, without volunteering anything, okay?”

  “Okay, shoot.”

  Abe stood up and gave his best imitation of himself examining his client. He walked Justin through the New York meeting, careful not to ask any question that would require the defendant to disclose that it wasn’t a chance encounter:

  “Describe how you and Ms. Dowling began to converse on March 10.”

  “Tell the jury, please, how you came to agree to meet in Boston the following week.”

  “How did you end up in her hotel room?”

  The questions were all carefully crafted to elicit only the truth—yet as both Abe and Justin knew, it might only be a partial truth. However, it was enough to satisfy the ethical responsibility of the lawyers.

  Abe continued to elicit “the truth” as he led Justin through the early evening of March 15 and into the hotel room. Here he had to be very careful.

  “Did there come a time when Ms. Dowling excused herself and went into the bathroom?”

  “Did she tell you why she was going?”

  At this point Justin stepped out of his role. “Abe, you’re getting me to tell some truth, not the whole truth.”

  “Hey, that’s my job. One of the most important functions an advocate performs is to separate the
part of the truth that helps the client from the part that hurts.”

  “And to withhold the part that hurts,” Justin asked rhetorically, “even if without it you get a half-truth?”

  “Exactly. Any criminal lawyer who disclosed the ‘whole truth,’ if it hurt his client, wouldn’t be practicing long.”

  “Sounds better in theory than it feels in practice,” Justin groaned as Abe resumed his role.

  “Did she say or do anything to you that led you to believe she wanted to become sexually intimate with you?”

  “Please tell the jury what she said and did.”

  “Did you understand that to constitute consent?”

  “No further questions!”

  It was a masterful job of taking the witness to the edge—the legal equivalent of sexual foreplay. Let the jury infer what happened next, and let it also infer that Abe did not ask any more questions in order to spare everyone in the courtroom the indelicacy of a clinical description of intimate sexual acts.

  “Great job, Abe,” Justin acknowledged. “You got me to tell the truth—or at least not to lie—and still convey the impression that it was consensual. However, you’ve only postponed the inevitable ethical crisis.”

  “How so?”

  “I’ll show you. Now you be Campbell and I’ll be Puccio.”

  “Go ahead.”

  Justin gave his version of the prosecutor’s stare at the mock defendant: “Mr. Campbell. Your very fine attorney has taken you up to the point of intercourse. Now I’d like to ask you some questions about the act itself. It is a fact, is it not, Mr. Campbell, that just before the act of intercourse, Ms. Dowling withdrew her prior consent and told you to stop?”

  Abe tried his best Oliver North face: “No, sir, that is not a fact. She was more anxious than ever for me to enter her. In fact, she pleaded with me to enter her as quickly as possible.”

  “Wait a minute, time out!” Justin shouted, making a “T” with his hands. “You’re breaking our rule. You just had Campbell lie through his teeth. If he did that in real life, you would be obliged to stand up and tell the judge that he was lying.”

  “No, I wouldn’t. You think he’s lying. I don’t—at least not with any certainty.”

  “Okay then, I’ll ask another question: ‘Is it not a fact that you picked Jennifer Dowling to go out with because you knew that she had lost a sexual harassment case?’”

  “No, I wasn’t aware of that until after we made love.”

  “Stop, Abe. You know that’s a lie.”

  “Yes, I do, now show me a rule that says I have to correct a lie that is elicited by the prosecution on cross-examination.”

  “Right here,” Justin said, opening a thick volume to the Supreme Court decision to the Nix v. Whiteside case. “It says in black and white that a lawyer may not assist his client in committing perjury or elicit an answer he knows to be false.”

  “Now, Justin, think for a minute. Did I—the defense attorney—elicit that false answer from Campbell? Or was it you, the prosecutor, who elicited the false answer on cross-examination?”

  “So, what’s the difference?”

  “Everything,” Abe said emphatically. “It makes all the difference in the world that it is the prosecutor who is eliciting an answer which he doesn’t know is false. I’m not responsible.”

  “That’s just plain sophistry,” Justin replied.

  “Those sophists were great lawyers,” Abe said. “All of law is sophistry. On these kinds of distinctions are civilized societies built.”

  “It’s a bullshit distinction, Abe, and you know it.”

  “I know it. You know it. Yet the law doesn’t explicitly forbid it. And what the law doesn’t forbid, it permits. And what the law doesn’t forbid a defense attorney to do to help his client, it requires him to do.”

  “So you think that the law permits or even requires you to put Campbell on the stand so long as you don’t knowingly elicit false answers on direct examination, even though you believe that the prosecutor will elicit false answers from him on cross-examination?”

  “Yes, if it would help Campbell win. That’s what I think unless and until you can show me otherwise.”

  “It’s a cop-out, Abe. Even if you don’t believe Joe’s guilty. You know—I mean really know—that he lied to you about how he used his computer, and that he has a history of kinky sex.”

  “I’m not going to ask him about that, and the prosecutor doesn’t know about the computer stuff, and even if she were to find out about his history, she can’t use it.”

  “So you’re taking advantage of the prosecutor’s limitations?”

  “Of course I am, and there’s nothing wrong with that.”

  “Depends on how you define wrong.”

  “Now, Justin, please write a memo to the file summarizing our little discussion.”

  “One cover-your-ass memo coming up.”

  “Enough. Let’s get Campbell in here to prepare him in case he has to testify. This is going to be a tiptoe through the bird droppings.”

  “No sweats today, Joe,” Abe said over the telephone. “When you come to my office, you should wear a conservative suit or a blue blazer. Like you will wear in court. I want to approve each of your court outfits.”

  “So this is the dress rehearsal, costumes and all.”

  Normally Abe laughed when a client tried to ease the tension with humor, but he was beginning to distance himself emotionally from his client. He realized, of course, that while in the courtroom or the courthouse corridors, he would have to be chummy. That was a big part of a criminal defense lawyer’s job—pretending to like the client.

  And some lawyers pretended better than others. When Mike Tyson’s trial lawyer, Vince Fuller, distanced himself physically from the former champ, the media and the jurors picked up on it. At the other extreme, John Gotti’s lawyer, Bruce Cutler, always went out of his way to embrace his client. Abe Ringel generally took a middle position with his clients, whether he really liked them or not—patting them on the back affectionately, but not intimately.

  There was no need for Abe to pretend in the privacy of his own office on that Sunday afternoon. No one except Justin and Rendi would be there. Only when Emma came by to join them for dinner did he have to put on something of a show. Emma was totally unaware of any of the negative information Rendi and Justin had turned up about Campbell. As far as she was concerned, Joe was still Mr. Nice Guy, and Abe could not tell her otherwise. The constraints of confidentiality did not permit disclosure to a seventeen-year-old with a boyfriend who lived and died for the Knicks star.

  Campbell flew up from New York on the noon shuttle. He only had a few hours, since the Knicks were leaving for the next round of the playoffs that night, and he had to be back at La Guardia by eight P.M.

  At one-thirty Campbell sauntered into the office, where Abe awaited him along with Justin and Rendi. Abe figured having the whole legal team there might lend an air of formality to the meeting. It was time Campbell started to take his situation seriously.

  Unfortunately, his mode of dress made it plain that he had not gotten the message. He was sporting a casual light brown cashmere jacket, a dark brown shirt, a bright pink tie knotted loosely, rust pants, and brown Mephisto shoes. His expensive cologne seemed to match his outfit.

  Abe took one look and shook his head. “You’re not trying to seduce the jurors. You’re trying to convince them. None of those glamour boy clothes. I want something conservative. You’re dressed for sex, Campbell, not for court.”

  “I’m sorry, Abe, this is about as conservative as I’ve got. I wore this to Reggie Lewis’s funeral.”

  Abe noted that Campbell’s demeanor had toned down a bit since their confrontation, as though the athlete wanted to smooth things over between them. “Then go out and buy something more conservative,” he said, “unless you want the trial to be your funeral. Go to Brooks Brothers or Saks. I want a white button-down shirt, dark suit, blue tie, muted colors. You’re not a
Benetton ad. I want you to look like a choir boy, understand?”

  “Yeah, I understand. I’m getting clothing advice from the man who was voted the worst-dressed lawyer in Boston for three years running.”

  Abe had to force a smile. He paid scant attention to his wardrobe, which consisted primarily of old-fashioned, loose-fitting, rumpled suits and a few birthday sweaters he had received from Emma and Rendi. “When I win a case,” he said, “everyone knows it wasn’t the clothes. In any event, I’m not the one on trial. You are.”

  “I thought you were so big on the truth. Yet you’re telling me to wear a lie, aren’t you?”

  “You don’t dress under oath,” Abe replied, thinking back to one of his first draft card—burning cases in which he’d represented a long-haired hippie. Abe had insisted that the hippie shave before the sentencing, but the client had refused. Abe had warned him that his defiant attitude could cost him several extra months in jail. When the sentencing judge had seen the defendant’s long hair, he’d smiled and said: “Finally, an honest defendant who didn’t get a haircut just to impress the judge. How refreshing! I’m going to take six months off your sentence for your honesty.” Since that case, Abe had often been hesitant to second-guess judges and juries on matters of dress and appearance. This time, however, he was sure.

  Rendi wasn’t. “Wait a minute, Abe. Let’s think this through. Would it be so bad if some of the women jurors saw exactly how sexy Campbell really looked in his seduction outfit? After all, he’s not on trial for seducing Jennifer Dowling. He’s on trial for raping her.”

  “You’re thinking like a woman, not like a lawyer,” Justin said.

  “Maybe that’s exactly what we need,” Abe responded. “Rendi, do you really think that women jurors want to be seduced by a defendant?”

  “No, what they want is to be able to determine for themselves whether the alleged victim could have been seduced.”