“Rendi may have a point,” Abe said. “A friend of mine who specializes in rape cases tells me that it’s a lot easier to win when the defendant is good-looking than when he’s ugly. Jurors have a hard time believing any woman actually consented to have sex with a really ugly guy.”
“I still think Campbell should dress for the courtroom and not the barroom,” Justin said. “It sends a message of arrogance when a defendant dresses too casually. Court is a serious place.”
Campbell had been watching the verbal volleys like a spectator at a tennis match. Now he spoke. “Okay, I’m convinced. No rust pants, all right? I get your drift. I’ll dress conservative, but with an attitude. I’ll be seductive, but not obvious. Does that satisfy everyone?”
Abe, Rendi, and Justin nodded in agreement.
“Okay, now that we’ve got that settled,” Abe said, “the next subject is your size.”
“I’m a forty-four extra-large. Why? Are you gonna buy me a jacket?”
“I’m not talking about your jacket size,” Abe said, looking directly at Campbell. “I’m talking about your penis size.”
“What the hell are you talking about? Have you gone crazy? You want to talk about the size of my dick?”
“Look, if you feel more comfortable talking about this with Rendi out of the room, I’m sure she would understand.”
“I’d feel more comfortable,” Campbell said, glancing at Rendi, who was having difficulty keeping a professional poker face, “discussing my dick size with Rendi rather than with you. It’s none of your goddamned business. And it would only make you jealous, anyhow.” He shot a triumphant look at Rendi, who smiled politely.
“Am I to take that remark as confirmation that your penis is unusually large?” Abe asked. Without waiting for an answer, he continued, “Your penis is my business, because your penis caused a vaginal abrasion in Ms. Dowling that can be explained in only two ways: rape or consensual sex with a man who has an unusually large penis. Which is it?”
“All right, if you insist. I’ve got a big dick. I’m a big guy. Big guys have big dicks.”
“Not all of them,” Rendi chimed in. “I’ve done research in the medical journals on this issue.”
“I’ve got a big dick,” Campbell insisted. “And so do most of my teammates.”
“All right, enough of this,” Abe said. “I only raised the issue to decide whether to have you examined by a doctor, who could take actual measurements. I didn’t want you going to any doctor if you had a small penis, because the prosecution would have access to the medical reports. Now I can set up an appointment with Dr. Costello at Mass. General.”
“No doctor is gonna measure my dick.”
“Why not?” Rendi asked playfully. “Afraid you won’t measure up?”
“Cut it out, Rendi,” Abe said, though he understood her reason for joking. As the only woman in the room, she was setting the comfort level. “This is serious stuff. Look, Joe, you have no choice. If we don’t produce specific medical evidence of your penis size, the prosecution will make medical hay out of the abrasion. We need equally solid medical evidence from you.”
“Speaking of solid,” Campbell said, “does the doctor have to give me an erection before he measures me? After all, I did have an erection when I bruised her. How the hell is he gonna give me an erection? Are they gonna use a pretty nurse?”
“I have no idea,” Abe responded. “They know how to do those things. Please spare me the details. Just agree to see Dr. Costello.”
“No way. I won’t do it. I don’t have to do it.”
“Yes, you do—if you want to win.”
“No, I don’t. Can’t you just argue to the jury that since I’m such a big guy I must have a large penis and then let them surmise the rest?”
“I guess I could, except it wouldn’t be nearly as effective as medical testimony about your specific size.”
“It would depend—wouldn’t it—on whether the actual size was bigger or smaller than what the jury would surmise from your brilliant advocacy?” Campbell smirked as he realized he was beating Abe at his own game.
“Are you trying to tell us something?”
“Why don’t we just leave it at that. I’m gonna refuse to submit to an exam. You’re gonna point to my height and suggest to the jury that my dick is proportional to the rest of my body. And the jury is gonna believe what it wants to believe. Now can we please turn to a more comfortable subject?”
“Okay, if you insist.” Despite his misgivings, Abe had to concede that he was impressed with Campbell’s ability to grasp the subtleties of legal maneuverings. “Let’s move on to your testimony.”
“I’m testifying. It’s that simple.”
“I wish it were that simple, only it’s not, because you lied to us, and if you lie to the jury, we have to tell the judge, and I just can’t take that chance.”
“No problem. I won’t lie to the jury.”
“That’s correct. If you do testify, you’re going to do it our way.
Abe then explained his contingency plan—he, Abe, would not ask how Joe came to meet Jennifer or about the sex itself. He would stop at the point where Jennifer consented.
“You’re selling me down the fucking river to protect your own ass,” Campbell responded angrily. “The jury will see right through you. They’ll scratch their heads and wonder why you didn’t ask me the sixty-four-thousand-dollar questions.”
“Well, I can’t ask you the sixty-four-thousand-dollar questions, because I’m afraid you may give perjured answers.”
“I don’t give a flying fuck what you’re afraid of. I’m afraid of going to prison. Your ass is no more valuable than mine, and I’m paying you to protect mine. I told you I’m going to tell the truth, and that’s the truth.”
“I’m sorry, Joe, I just don’t feel comfortable asking you questions that I suspect you’re going to answer falsely.”
“The prosecutor is sure as hell gonna ask me. And I’m gonna give her the same answer I would give you.”
“She doesn’t know that the answer is false. She just thinks it’s false. In any event, that’s her problem, not mine. And you’re not her client. You’re her adversary. The rules are different.”
“God, what a bullshit profession law is. These rules don’t make sense to anyone but a lawyer.”
“They’re no sillier than the ‘illegal defense’ rules in the NBA. Every profession has its own silly rules. I’ve gotta live by mine, just like you’ve gotta live by yours. If you violate the illegal defense rules, you get a technical foul. If I ask you a question that I know you’ll answer falsely, I get a technical.”
“So take the technical. That’s part of the game. Coach Riley tells us that drawing a technical at the right time can be a great move.”
“The difference is if you get a technical, your opponent gets one point. A technical in law means I’m out of the game—for good. No way I’m putting my license on the line for you.”
“Well, there’s no way I’m putting my ass on the line for your license.”
“In life you have to make compromises. I think this compromise would work—if we ever have to use it.”
“I don’t compromise when my life’s on the line. How about if I just blurt it out in answer to another question? Say you ask me, ‘Did she say she wanted to have sex with you?’ And instead of me just saying, ‘Yes, she did,’ I add, ‘And then we had sex, and it was entirely consensual.’”
“Not good enough. I might still have to stand up and tell the judge what I know, since it was in response to my question.”
Campbell shook his head. “It’s just such bullshit, such bullshit.”
“You can call it bullshit if you like. For me it’s the law, and I’ve got no choice but to follow it.”
“We’ll see,” Campbell said mysteriously. “We’ll see.”
They might have gone on longer except that Emma entered Abe’s office. She looked especially pretty, as if she had dressed up to meet Daddy
’s star client. Surprised at how quickly the afternoon had gone, Abe rose, signaling the meeting was over.
“Hello, there, little miss—or I should say ‘ms.’?”
Campbell had stood to greet Emma, and at his full height Abe had to admit he was a handsome man, especially dressed the way he was.
“You look cool, Mr. Campbell,” Emma blurted out, surprising everyone, herself most of all.
“Thank you—and so do you.”
Abe followed this exchange with his legal ear as he thought about what an impact Joe would have on a jury, on or off the stand.
Joe prepared to leave. “I have to get to the airport. I have a driver downstairs. Can I offer anyone a lift anywhere?”
What a sweetheart he could be—or at least appear to be—when he wasn’t feeling cornered, Abe thought. He’d have to remember to make his client feel safe in the courtroom.
“Well, I do want to extend an invitation to all of you to a Celtics game—next season.”
“Sounds like a plan!” Emma said, looking at Abe with the expression she always used when she wanted him to agree.
“We’ll let you know, Joe,” Abe demurred. “Emma’s leaving for college soon, and she won’t be around much next year.”
“Hey, that’s great—where are you going?”
“Barnard,” Emma said.
“Good. You can become a Knicks fan and root for a winning team.”
Chapter Twenty-four
CAMBRIDGE—MONDAY, MAY 29
“Older women. Lots of them,” barked Henry Pullman. “With grandchildren. Stable families. No screwing around. No divorces. Kids who got married young. Miami Beach—in-the-winter types. Snowbirds. Italians, Irish, Jews, Greeks, maybe even some WASPs. No black women. No young women, regardless of race. And absolutely no well-educated or well-read people. Not dunces. Just not geniuses. And boring lives. No excitement. Their most adventurous trip should be a Princess cruise. No bungee jumpers, or hang gliders. They drive Chevys or Buicks. No BMWs. Boring. Boring. That’s our jury. That’s who we want.” Satisfied with his statement, Henry Pullman toyed with his bearded chin.
They were sitting in Abe’s office, poring over a pile of survey results, demographic data, and investigative reports. Pullman, a slim, gray-haired, gray-bearded man in his early seventies, was the expert Abe had hired to help pick the jurors who were most likely to acquit Campbell. Pullman was a veteran of many high-profile trials. A former union organizer from the Bronx, he had pioneered the science—or was it an art?—of helping lawyers select jurors who would be most sympathetic to their case. When he’d begun his work back in the late 1960s representing radicals who were charged with anti-Vietnam draft protests, he had been widely criticized by the established bar for trying to skew juries in favor of one side rather than helping to secure an unbiased venire. Now, even the most established law firms were using him and the clones who had followed him into what had become one of the great growth industries of the 1980s—scientific jury selection. Despite the competition, Henry Pullman was still the expert’s expert.
“What about sports fans?” Abe asked.
“Don’t worry. Puccio will get rid of them, especially Knicks fans. That won’t hurt us. Sports fans can be dangerous. They idolize their heroes, and they can be the most vicious if they’re disappointed. Stay away from fans, especially fanatics.”
“What about young men? Yuppies, jocks?”
“Bad news. They’re jealous. They’re also trying to score with feminists. Bad news.”
“Why are older women so good?”
“Because they disapprove of young women going to hotel rooms with men. They were taught that only sluts go to a man’s room. Also, they want to justify their own conservative lives. Limits—they understand limits,” Pullman said. “They will believe that Jennifer Dowling asked for it. They’re good for us. Believe me. Older women are the ones who got William Kennedy Smith acquitted.”
Rendi would be responsible for doing the investigative field work on the jury panel once it was available. She was sitting next to Abe, seething at the sexist and other stereotypes that Pullman was invoking.
“You’re assuming that all older women think the same,” she said.
“Au contraire, my dear,” Pullman replied as if he had heard this criticism a million times—which he had. “Every person is an individual. We don’t have the luxury of learning enough about every person to make an individualized judgment. Indeed, that’s where you come in. The more you can learn about every prospective juror as an individual, the less we will have to stereotype. So it’s all up to you. If you get me the personalized data, I’ll base my recommendations on that. Where you can’t, then it’s back to basics. And the basics tell me that, as a rule, older women are the best in date rape cases.”
“It seems so manipulative.”
“Look,” Pullman replied, “the prosecutor has vast resources at its disposal—police, investigators, data banks. Defendants need me to help level the playing field.”
“Only rich defendants get to use your talents,” Rendi shot back. “Legal aid can’t afford you. Even middle-class defendants can’t afford you.”
“I’m a luxury,” Pullman acknowledged, showing off his expensive brown tweed jacket with the leather elbow patches. “Just like Abe Ringel is a luxury. Poor defendants can’t afford him, either. It’s not a fair world.”
“You know, people always complain when rich defendants get expensive lawyers,” Abe said. “No one ever complains when rich people get expensive doctors.”
“Rich people have earned the right to have the best,” Pullman replied.
“You’ve certainly come a long way from your radical labor days, Henry,” Abe chided him.
“So have you, Abe. We’ve both become full-fledged capitalists, and we both feel a bit guilty. Just not enough to keep us from making a good living.”
“What else can you tell us? What do your polls show? Do people believe Campbell or Dowling?”
“It depends on who you ask. It’s all in the demographics. Young women believe Dowling. Old women don’t. The most important poll result we’ve got is that almost everyone—even those who believe Dowling—seem to like Campbell. People like him, even if they think he may be guilty.”
“That means we should put him on the witness stand,” Justin said to Abe.
Before Abe had a chance to respond, Pullman interjected. “Not so fast, young man. Maybe it means exactly the opposite.”
“How so?”
“People seem to like Campbell from afar. Without having heard him testify. Maybe my poll results mean that he doesn’t have to testify—that his favorability rating will be better if they don’t hear him try to wiggle out of this.”
“Interesting point,” Abe said. “We’ll have to wait and see. That’s going to be my call.”
“What about a shadow? Do you want a shadow? And if so, how many? Four? Six? Twelve?”
“What the heck is a shadow?” Justin asked.
“A shadow jury,” Pullman explained. “After the real jurors are picked, I try to find a group of people—twelve is best—who are just like the real jurors. Same age, sex, background, race, politics, attitudes. I hire them to sit in the courtroom and listen to everything the jury hears. When the jury leaves, they leave. I call them the shadow jury.”
“What good do they do?”
“Every day after court is over, I interview each of them—separately. I try to find out what impact the testimony and arguments had on them: who they believed, what arguments were persuasive, who they liked, who they hated, what they don’t understand. Then I tell Abe what he has to do to improve his case. It’s all based on the assumption that the shadow jurors are similar to the real ones and are evaluating the evidence and arguments the same way.”
“Quite an assumption,” Rendi said. “It could be all wrong.”
“It could be, but it’s the best we can do. Much better than lawyers making these judgments alone. My research shows that
lawyers, even the best ones, are often out of touch with ordinary jurors.”
“Isn’t the shadow idea similar to what the prosecutors did in the O. J. Simpson case?” Justin asked.
“What do you mean?”
“They put together some kind of a mock jury in Phoenix to try out their case.”
“What happened?”
“They acquitted him.”
“I bet the prosecutors changed a few things after that,” Rendi said.
Pullman is certainly right about lawyers needing help,” Abe added. “When I first began to practice, I couldn’t afford a shadow, so I had my mother, Sylvia, come to court.”
“How did she do?” Justin asked.
“Great—when the jury consisted of older women. Not so great when we drew young men.”
“It’s the same principle,” Pullman said.
Abe continued, “Even Haskel, who was certainly never a man of the people, used to tell his students that on the weekend before a jury trial, a lawyer should go to the movies, watch television, and ride on the subway, instead of working in the library. ‘Do what the jurors will be doing,’ he advised. ‘Read what the jurors will be reading. Watch what they will be watching. Get inside their heads.’”
“It’s all so damn manipulative,” Rendi said. “I bet Haskel never used a jury expert.”
“Wrong again, my dear,” Pullman said with a smile. “Haskel hates what I do. Still, he did use me—most reluctantly. How do you think I got to meet Abe?”
“He did hate to use you,” Abe confirmed. “He wouldn’t allow his personal feelings to hurt a client.”
“And he even listened to me,” Pullman said proudly. “I’ll never forget when he was appointed to be one of the defense lawyers in the antiwar conspiracy prosecution against Dr. Spock, the baby doctor. It was one of my first cases. I was a rookie. There was a juror named Charles White. Gentile name. Haskel had learned from a local rabbi that he was Jewish. He wanted him on the jury because he felt that a Jew would be more sympathetic to draft evasion, since so many Jews had come to this country to avoid serving in the Czar’s army. I disagreed. ‘A Jew who changed his name to Charles White wants to prove he’s more American than Uncle Sam,’ I told him. He will be utterly unsympathetic. He listened to me, and he struck him from the jury. Later Charles White wrote to Haskel, criticizing him for defending draft dodgers. I was right.”
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