The Advocate's Devil

by Alan M. Dershowitz

  “Are you always right?” Justin asked.

  “I wish. The frustrating part of my job is that I rarely find out if I was right. Even when my side wins, that doesn’t prove I was right about a particular juror. I know I’ve been wrong a few times, and I try to learn from my mistakes.”

  “Try not to make too many in this case, please,” Abe implored him. “I’ve really got to win this one.”

  “That’s a funny way to put it. You didn’t say I shouldn’t make mistakes because Campbell is innocent, but because you have to win. That’s not like you, Abe. Are you trying to tell me something?”

  “No, Henry, I’m not trying to tell you anything. Just get me the best damn jurors you can. The twelve real ones, and the twelve shadows.”

  “It’s only the real ones who count,” Rendi noted with her usual cynicism.

  Chapter Twenty-five

  BOSTON—MONDAY, JUNE 19

  The opening day of a high-visibility criminal trial was generally a media circus, with TV cameramen pushing and shoving each other to get into position to capture the video images that would make it onto the evening news. Lawyers likewise competed for the perfect sound bite. Walking confidently yet humbly through the camera gauntlet, and expressing the appropriate sentiments could be a daunting experience even for the most seasoned advocate. This day was no different as Abe and his legal team made their way into the nineteenth-century courthouse in which the case of Commonwealth v. Campbell would be conducted.

  “Ask yourself one simple question,” Abe said as a dozen microphones were shoved in his face. “Why would a handsome basketball star who had women running after him need to rape?” The question hung in the air as the lawyers and spectators entered the large baroque courtroom over which the Honorable Marie Gambi presided.

  The trial had been set to begin as soon as the playoffs concluded. The Knicks’ surprising loss in the Eastern Conference finals had given Campbell a few days’ respite between courtside and courtroom. He had used the days to rebound from media speculation about the impact the rape accusation had had on his playoff performance—which had been good, but not great. Now he was determined to do whatever he had to do. This was not a game. If he lost, there would be no next season.

  “Let’s get on with jury selection,” Judge Gambi said, banging her gavel.

  Marie Gambi—“everybody’s favorite aunt,” as she had been described in a recent newspaper article—was universally regarded as the epitome of fairness. A former nun, she had married a wealthy computer executive after leaving the convent and then entered law school at the age of forty. After graduation she had become a well-respected prosecutor and then a judge. She was the only Massachusetts judge who refused to wear a robe in court. “Makes me look and feel too much like a nun,” she’d explained.

  Today, like most days, Judge Gambi was wearing a blue jacket, white blouse, and gray skirt. Even now, in her late fifties and twenty years after forsaking the veil, Abe thought she still looked like a nun. She had also retained some old-fashioned attitudes, such as not allowing her courtroom trials to be televised—a policy that had not endeared her to the media. Yet she didn’t seem to care. “Trials are serious events. Nobody is going to sell dog food during recesses in my trials,” she had said.

  Abe quickly used up his six peremptory challenges—challenges for which a lawyer did not have to give a reason—after picking only eight of the jurors. So he was pretty much stuck with the remaining four. Abe could smell cigarette smoke on the wool of Pullman’s jacket. It wasn’t often that he felt claustrophobic in a courtroom, but this jury selection was beginning to drag on: because of all the pretrial publicity, Judge Gambi had taken the unusual step of allowing the lawyers to question the jurors. Campbell was quiet and had given Abe no trouble, thank God, because right now the luck of the draw was working against them, and Abe had all the trouble he could handle—especially when the clerk called the woman who quickly became known as “Pullman’s nightmare” and then later “Ms. Scuba Diver.”

  Ms. Julianne Barrow was twenty-nine, a Wellesley graduate who worked as an investment banker in downtown Boston. She was tall, well dressed, and beautiful, with long blond hair cascading over her dark blue designer jacket. She exuded an air of comfortable confidence, just the kind of woman to stay away from. “That’s your foreperson,” Pullman warned. “Do everything you can to get rid of her.”

  While he proceeded to ask questions of Julianne Barrow, it became clear to Abe that he could uncover no disqualifying features in her background or opinions. No one close to her had ever been raped or accused of rape. She believed in date rape, but also believed that not all women always tell the truth. So how could he get rid of her?

  There was one possible chink in her armor. “Have you ever been married?” Abe knew the answer since Rendi’s hasty investigation had discovered she was divorced.

  “I think you must know the answer to that, Mr. Ringel. You’ve investigated me, I’m sure.”

  She was smart, and not one to take anything lying down. Was that good or bad for them? Abe wondered.

  “You’re right, Ms. Barrow,” he said. “I know you are divorced. How recently?” He knew exactly how recently, but he had to say something.

  “Six months.”

  “That’s recent. I’m sure you’re still smarting, am I right?”

  “You mean am I still a man hater?” She smiled.

  Abe couldn’t help smiling back. She was a charmer, this one, pretty smooth. He wanted desperately to get rid of her. This woman might just be the one juror who saw through his client.

  “I mean, are you distracted at all by those recent personal events?” he asked her. “You must have lost a lot of personal time and might feel pressured if the trial goes on for a while.”

  “Don’t worry about my personal life, Mr. Ringel. I have the right and privilege to serve on a jury, without regard to my marital status, isn’t that so?”

  That was an odd answer, Abe thought. Most busy people tried to stay away from jury duty. It certainly couldn’t have been the way she wanted to spend a few weeks, unless she was filling up time. Abe had seen jurors like this before—lonely, even desperate people with little personal adventure. That could be trouble. Jurors like that tended to draw things out and drag the process on. Yet this did not seem to capture her essence. After all, she had a good job. Maybe she wanted to serve on the jury because she believed in the system? Or because she had an ax to grind?

  Ostensibly Abe changed the subject. “Do you have hobbies, Ms. Barrow?”

  “I scuba dive, I rock climb.”

  “A regular daredevil, aren’t you?”

  “I stay busy.”

  Abe tried to get the judge to strike Julianne Barrow “for cause.” However, he couldn’t come up with a reason that persuaded Judge Gambi. “You should have saved more of your peremptories,” she said.

  For a moment Abe thought he heard a scolding in the judge’s voice. When he walked away from the bench toward the defense table, he took a deep breath and realized it was just the critical voice in his head scolding him.

  He should have saved more of his peremptories. It was always a gamble. In his last case he had saved two of his peremptories till the very end and then never used them, because the last few jurors had been okay. Then he’d wished he had used them on some of the earlier jurors. He had lost and decided not to waste his valuable peremptories in future cases by saving them. Now he was sorry.

  Abe apologized to Campbell for his blunder. Campbell seemed unconcerned.

  “Let me handle Ms. Scuba Diver,” Campbell sent a flirtatious smile in her direction.

  The jury selection dragged on. Three other jurors he would have liked to challenge got on the jury. They weren’t nightmares; they were just not that good. One was a Hispanic man in his thirties who was a construction worker on the new tunnel being built to the airport. He was married with two daughters. Two others were white, male civil servants in their fifties of nondescript backgr
ound. The last regular juror was a black woman in her thirties who was a single mother of two boys and a part-time nurse.

  Pullman wanted Abe to try to strike the black woman for cause. He whispered to Abe: “My research shows that black women are murder on men charged with rape, regardless of the race of the defendant or the complaining witness.”

  “I’ve got no cause to strike her,” Abe said in a low voice. “And in any event, I have a good feeling about her.”

  “Your feelings are diddley compared with my research,” Pullman insisted.

  “Maybe so. But we’re stuck with her, so we just have to make the best of it.”

  Abe was basically satisfied with nine of the twelve jurors, plus the two alternates. Four of the regular jurors had come right out of Pullman’s central casting: gray-haired grandmas who could have come straight from a mah-jongg or canasta game at the Fontainebleau Hotel in Miami Beach. One was Irish from Somerville; one was Italian from North Cambridge; one was Jewish from Lexington; and one was Armenian from Watertown.

  Then there was a black man, a plumber in his early forties from Winchester. He was married with no children. The other four “good” jurors were working-class white men—two Italians, one WASP, and one Greek.

  Finally, after three days of contentious selection, Judge Gambi was able to say, “We have a jury.”

  Abe turned to Pullman with a look of resignation. “Now get me twelve good shadows so we can find out how bad it really is.”

  As Pullman and Rendi left the courtroom in search of shadows, Abe and Justin hunkered down for the trial. It could be as short as two or three days—if Campbell didn’t have to take the stand. Or it could go as long as two weeks if he did testify and the state put on a rebuttal case. Nothing was ever predictable about a criminal trial, especially when a man like Joe Campbell was the defendant.

  Chapter Twenty-six

  Judge Gambi directed Prosecutor Cheryl Puccio to call her first witness. Joe Campbell, dressed in a blue blazer with gray pants and a red tie, seemed to be in a different world. He didn’t even lift his head as Jennifer Dowling walked past him contemptuously. He was deep in thought.

  Abe looked at Campbell and wondered what could be going through his client’s mind. Campbell was still unfathomable to him, as were most of his clients—innocent or guilty. No matter how many different types of defendants Abe had dealt with, he never could think the way they did. Thank God. Abe recalled an accused stock swindler he’d once defended who spent the entire trial immersed in red herrings and stock tables. He was acquitted and he made a killing in the market at the same time. For all Abe knew, Joe Campbell might be thinking about his next game—or planning his next predatory adventure. In any event, Abe needed him to focus on events in the courtroom.

  “Pay attention, please,” Abe insisted. “I need you to tell me when Jennifer is lying, even about the most minute details, so that I can zero in on cross-examination.”

  “Sure, sure,” Campbell said, quickly returning from whatever universe his head was in.

  “I also need you to make eye contact with the jurors,” Abe added. “Jurors sometimes look for a defendant’s reaction to the evidence.” He could see that he was getting nowhere with Campbell, so he decided to tell him an anecdote that Haskel used to relate to his students. “Joe, please listen to this little story.”

  “If you insist.”

  “I insist.” At this point he’d do headstands if it meant Joe would pay attention to the proceedings. What next—a marching band? Anyway, Abe tried on his best raconteur skills.

  “A defendant was once on trial for murdering his wife. No corpse had been found, but the circumstantial evidence was convincing. During his closing argument the defense lawyer told the jurors that they were in for a great surprise: when he counted to ten, the allegedly dead wife would walk through the courtroom door. ‘One, two,’ the lawyer began. By ‘seven’ every juror had his eyes riveted on the door. ‘Eight, nine, ten,’ the lawyer counted. The jurors waited expectantly, but the door remained closed. The defense attorney smiled and explained to the jurors, ‘See, each of you turned your eyes to the door. You each must have had a reasonable doubt about whether the wife was really dead. My little experiment,’ the lawyer declared victoriously, ‘proved that you had a reasonable doubt and you must, therefore, acquit the defendant.’ Despite this logic the jury convicted the defendant. Afterward the disappointed defense lawyer asked one of the jurors how she could have voted for conviction after the jurors had all looked at the door. ‘Yes, we all looked at the door,’ the juror explained, ‘but we noticed that the defendant didn’t. He knew nobody was walking through that door.’”

  Abe placed an arm on Campbell’s shoulder. “Take that story to heart, Joe. You damn well better be looking at the door.”

  This time, it seemed, Campbell had listened to Abe. He stared intently at the jurors as Jennifer Dowling began her testimony.

  Cheryl Puccio was a first-rate courtroom performer. She was a handsome woman in her late thirties, not too glamorous or sexy, and very credible to jurors. She wore gray tailored suits that made her look a bit masculine, without being threatening. Her voice was soothing, if a bit monotonic. She spoke quickly, never smiling. Cheryl Puccio was all business, no nonsense. She exuded sincerity. No one would choose her for a partner at a long formal dinner party, yet Abe knew that she was perfect for the role in which she was cast—the champion for a young woman victimized by a predatory man.

  “Please tell the jury your name.”

  “My name is Jennifer Dowling,” the witness said firmly as she fiddled with the bottom of her dark business suit. Abe was pleased to notice how similarly Campbell and Dowling had dressed for their courtroom confrontation.

  “What do you do for a living?”

  “I work in advertising for a Manhattan firm.”

  Out of the corner of his eye, Abe studied Joe’s reaction to Jennifer. Did he project pity? Anger? Contempt? The amazing thing to Abe was that Joe’s emotion was zero. It was hard to imagine that there had ever been anything between them. Jennifer, he noticed, seemed to be expending a lot of energy avoiding the defense side of the courtroom. If the jury picked up on this, how would they interpret it?

  “When did you first meet the defendant, Joseph Campbell?”

  “I met him on March 10, near the office building where I work.”

  “Was it a chance meeting?”

  “Yes.”

  Abe heaved an inaudible sigh of relief at Jennifer’s answer. He had been fairly certain that neither Cheryl Puccio nor Jennifer Dowling was aware of Justin’s theory about how Campbell had come to meet Jennifer.

  Cheryl Puccio took Jennifer uneventfully through the first meeting and then the subsequent dinner at Stellina’s in Water town. At the mention of Stellina’s, the juror from Watertown whispered something to the woman on the adjoining seat.

  “No talking to other jurors until all the testimony is complete,” Judge Gambi admonished.

  Everyone in the law business knew that jurors disregarded this ritualistic warning. But rituals were essential to the survival of all institutions—even trials.

  Now Puccio was taking Jennifer to the Charles Hotel. This would be the next crucial test. Would Jennifer tell the truth about her original desire to have sex with Campbell? Or would she fudge? Abe hoped she would fudge. Most date rape victims did, he knew, because they feared that if they told the whole truth—including the fact that they had originally consented to sexual foreplay or more—the jury would conclude that they’d been asking for it.

  In one of their strategy planning sessions, Abe had shown a videotape of the cross-examination of Patricia Bowman, the complaining witness in the William Kennedy Smith case. At one point Bowman denied that she had even had any sexual interest in Smith. When she said she couldn’t remember how her panty hose ended up in her car, Abe had stopped the videotape.

  “That’s when the case ended,” he’d said. “After that the jury stopped listening t
o Patricia Bowman, because they stopped believing her.” Turning to the Campbell case, Abe had continued, “We’ve got to look for a point like that in Jennifer Dowling’s story. If we can catch her in a lie—even an insignificant lie—the jury will stop listening to the rest of her story, even if it’s true.”

  “Why would a woman who has really been raped ever lie about what went on before?” Justin had asked.

  “Because they believe that if they were to tell the truth about welcoming the man’s advances up to a certain point and then saying no, some of the jurors would refuse to convict, even if they believed her testimony.”

  Rendi had been angry over this. “Some people just can’t seem to get it through their thick skulls that rape isn’t a crime of morality. It’s a crime against a woman’s right to choose whom she will or won’t have sex with.”

  “We know that, Rendi,” Abe had replied. “Not all jurors believe it.”

  To Abe’s surprise and chagrin, Jennifer Dowling told the truth about who had initiated the sex. Possibly, Abe calculated, Puccio had shown her the same Patricia Bowman videotape.

  Jennifer told the jury the details: that she had wanted to have sex with Campbell, that she went into the bathroom to put in her diaphragm, that she returned wearing only her unbuttoned shirt, that she had initiated the discussion about sex with Campbell, and that she had reached for his genitals.

  While Jennifer went through her catalog of consent, Joe gently nodded his head in agreement. Abe noted that Campbell had positioned himself so that he seemed to be directing all his silent commentary toward the jury—specifically the assertive Ms. Scuba Diver.