The Advocate's Devil

by Alan M. Dershowitz

  Now Puccio was up to the critical point in the testimony.

  “So you were willing to have sex with Joseph Campbell as you both lay in bed. Did something then happen that caused you to change your mind?”

  “Yes.”

  “What happened?”

  “Mr. Campbell whispered something in my ear.”

  “What was it that he whispered?”

  “At first I wasn’t certain. Then he whispered it again, this time a bit more loudly and more clearly.”

  “Are you now sure you know what he said?”

  “Yes, I am positive. He made it crystal clear.”

  “Please tell the jury exactly what he said.”

  As Jennifer began to answer, Abe turned to watch Campbell’s reaction to what Jennifer would say. This would be the first time he would hear the words Joe had allegedly spoken. He wondered what words could have so quickly changed Jennifer from a willing sex partner into an unconsenting rape victim.

  “He said these words.” Jennifer was speaking softly but clearly. “‘Give me as good a blow job as you gave Nick Armstrong at your office. I hear you give world-class head in order to get ahead.’”

  Jennifer began to weep softly. Several of the jurors were looking at her as she sobbed. Ms. Scuba Diver’s eyes were fixed firmly on Campbell’s head, which was shaking gently back and forth. He must have been aware that the forewoman was observing him as he squinted slightly and formed a silent tsk, tsk sound. The effect of these subtle movements by Campbell was to send a pained message of disappointment in Jennifer for finally crossing the line from truth to falsehood.

  At first Abe didn’t understand what Campbell was trying to do. Then it hit him: Campbell was testifying without taking the witness stand. He was having a running, silent, private conversation with Ms. Scuba Diver, the most important and dangerous member of the jury. Campbell was trying to seduce her, but not physically. He was going for her mind. And from the look on Ms. Scuba Diver’s face, Joe Campbell seemed to be scoring, as usual.

  Puccio, who was busy comforting Jennifer, missed the entire scene, as did Judge Gambi. Jennifer stopped weeping, wiped her eyes with a tissue, and continued with her testimony.

  Puccio asked her to explain the significance of Campbell’s words.

  Jennifer spoke haltingly as she disclosed the secret that had nearly destroyed her life. “Last year I performed oral sex on the vice president of my company in an effort to obtain a promotion.”

  As soon as she uttered these words, a collective gasp could be heard through the courtroom. It was as if the prim and proper Jennifer Dowling had suddenly stripped naked in front of the jury. Courtroom observers and jurors turned to each other in astonishment and began to converse.

  “This is not a spectator sport,” Judge Gambi shouted, banging her gavel. “There will be no sounds from the audience, or the press, and especially the jury. Continue, Ms. Puccio.”

  Cheryl Puccio had known, of course, the answer Jennifer Dowling would give to her question. Still, she had no choice but to ask it. If she didn’t, Abe would, and it was always better to blunt the impact of cross-examination by bringing out the worst material first on direct examination. In any event, her answer was a crucial, if risky, building block to the state’s case.

  After the audience quieted down, Puccio continued her direct examination.

  “Are you proud of what you did?”

  “No, I am mortified. It was stupid, immoral, and desperate. I really believed that it was the only way I could avoid losing my job.”

  “And did you lose your job anyway?”

  “Yes, I did.”

  “How come?”

  “Because the man on whom I performed oral sex told his boss, the president, that I give ‘world-class head.’ The president then asked me to perform oral sex on him, and I refused. So he fired me.”

  Abe could have objected on hearsay grounds to Jennifer’s testimony about what the vice president allegedly told the president, but he wanted the story to come out so that he could prove she had lied during the deposition in her harassment suit.

  Puccio then asked Jennifer a question that made Abe’s heart skip a beat. “Do you know how Mr. Campbell learned about what had happened between you and your bosses?” Abe waited for Jennifer to answer. He wondered whether they had somehow found out about the computer printouts.

  Fortunately Jennifer said, “I have no idea.”

  At this point Campbell shrugged and raised his hands slightly, as if to signal both pity and triumph. Then he shook his head again to make it clear that Jennifer Dowling was simply not telling the truth. This time Abe could see Ms. Scuba Diver respond with her own modest gesture of disbelief. Abe hoped that Ms. Barrow was directing her disbelief at Jennifer Dowling rather than at Joe Campbell.

  Abe had been surprised by Puccio’s last question. She must have known that Jennifer’s answer would now give him a basis for challenging her entire story. He began to compose his argument in his mind: “Of course Jennifer Dowling has ‘no idea’ how Joe Campbell could have learned of her deep, dark, and shameful secret, because there is no corroboratory evidence that Joe Campbell did know of it.” He’d been spared the ethical quandary of whether he could ask Jennifer the question on cross-examination because Puccio had asked it on direct. Abe surmised that Puccio simply did not want to leave a loose thread hanging. Lawyers often made the mistake, he mused, of believing that it was their job to tie up all loose ends—to create a neat, symmetrical little bundle. However, life was full of loose ends, and lawyers often hurt their cases by being too fastidious and neat when it didn’t serve their clients’ interests. Cheryl Puccio had asked one too many questions.

  “It’s like the wrestler,” Abe explained to Justin and Rendi over a quick lunch at recess. Campbell had declined his offer to join them, preferring to work out in a nearby gym.

  Rendi groaned, and Abe knew he must have bored her with the wrestler story ten thousand times. But it was new to Justin.

  “Okay,” Justin said, knowing he would regret it, “tell me about the wrestler.”

  “It seems this wrestler was accused of biting off the ear of another wrestler during a match. The defendant wrestler’s lawyer was cross-examining the only eyewitness—the referee. Reaching the apex of his examination, he asked, ‘You didn’t actually see my client bite off his opponent’s ear, did you?’ The witness responded, ‘No, I didn’t actually see him bite it off.’ Instead of stopping, the lawyer asked one more question: ‘So how do you know that he actually bit it off?’ Without hesitation, the witness replied, ‘Because I saw him spit it out!’”

  Chapter Twenty-seven

  Puccio continued her examination of Dowling after the lunch break.

  “After Campbell asked you for ‘as good a blow job as you gave Nick Armstrong,’ what did you say?”

  “I told him to stop. I yelled ‘Stop!’ The more I yelled, the more persistent Campbell became, until he forced me to submit. He raped me. He hurt me. He knew I wanted him to stop, but he deliberately raped me, and he enjoyed it.”

  “Are you absolutely certain,” Puccio asked, “that you communicated your lack of consent to him?”

  Jennifer Dowling looked directly at Campbell as she answered: “I have never been more certain of anything. He knew I wanted him to stop. Yet that seemed to turn him on even more. He wanted to rape me, and he did.”

  Campbell locked eyes with Jennifer Dowling. He shook his head almost imperceptibly. Then he turned ever so slightly to make fleeting contact with Ms. Scuba Diver. Now her look of disbelief seemed to be directed at Jennifer Dowling.

  “Your witness, Mr. Ringel,” Cheryl Puccio said.

  This was the ethical lawyer’s nightmare: cross-examining a rape victim who he suspected was telling the truth. It was not as bad as in the old days, when defense lawyers could ask about the complaining witness’s entire sexual history and when some juries wouldn’t convict unless the victim had been a virgin. In those days defense lawyers had
no choice but to do the “sleaze thing,” as Emma called it. Thank God for the rape shield laws, Abe thought. At least we don’t have to do that anymore. Nonetheless, the defense lawyer still had to try to prove the complaining witness was a liar—regardless of what he personally believed.

  As Abe approached Jennifer Dowling and introduced himself to her, he tried to forget about his ethical qualms. She is the enemy, he repeated to himself. It is my job to discredit her. She is all that stands between Campbell’s conviction and acquittal. I’ve got to get the jury to disbelieve her.

  Abe always began his cross-examination by going for the jugular. None of this “work your way up to the killer question” stuff for him. There may be a role for foreplay in sex, but not in cross-examinations, he thought. If there’s a weakness, exploit it during the first minute. Get the jury on your side right away, and then they’ll be rooting for you during all the rest of the cross-examination.

  “Ms. Dowling, you admitted on direct examination that you have no idea how my client, Joe Campbell, could have found out about your little problem at work. Is that correct?”

  “Yes, it is.”

  “You certainly never told him, did you?”

  “No, I didn’t.”

  “You have no friends or work associates in common, do you?”

  “Not to my knowledge.”

  “What do you mean, ‘not to my knowledge’? You would know, wouldn’t you, if you had friends or work associates in common?”

  “I guess so.”

  “So, the fact is that you don’t know anyone in common, right?”

  “That’s right.”

  “And you know of no way, do you, for Mr. Campbell to have learned about your problem?”

  “No, I don’t. That’s why I was so surprised.”

  “Your Honor,” Abe said pointedly to the judge, “I move to strike Ms. Dowling’s statement about being surprised as not responsive to my question.”

  “Sustained,” Judge Gambi agreed. “Please limit your answers to Mr. Ringel’s questions.”

  “Okay, Ms. Dowling. So it seems right to you that my client could not have known about your problem at work, is that correct?”

  “Yes, that is correct.”

  “Now, Ms. Dowling, that seems to leave only two choices, doesn’t it: one, that my client knew something that it seems impossible for him to know; or two, that you weren’t telling the truth when you swore to the jury that he whispered to you about that problem. Which is it, Ms. Dowling?”

  “Objection, Your Honor.” Puccio shot up. “He’s arguing with the witness, not questioning her.”

  “Overruled, Ms. Puccio. There’s a fine line between an argumentative question and a questioning argument. This one is close, but it falls on the right side of the line. You may answer, Ms. Dowling.”

  “I am telling the truth, Mr. Ringel.”

  “So it’s your position that my client is capable of doing the impossible, is that right?”

  “Objection.”

  “Sustained. This time you’ve crossed the line into argument, Mr. Ringel. That question will be struck. You need not answer it, Ms. Dowling.”

  “Thank you, Your Honor,” Abe said. “Now, Ms. Dowling, you say you are telling the truth, right?”

  “Right.”

  “Well, let me ask you this. Were you telling the truth when you initially told the police that it was my client who first made sexual advances toward you?”

  “I don’t remember telling that to the police.”

  “May I please show the witness the police report that describes her account of what happened?”

  “Do you want it in evidence?” the judge asked.

  “Yes.”

  “No objection from us,” said Puccio.

  Abe gave Jennifer a copy of the police report and asked her to read it silently. “Is that a generally accurate summary of what you told the police on the night you claimed you were raped?”

  Jennifer nodded her head in the affirmative.

  “Now, would you read the first sentence to the jury.”

  Jennifer read out loud: “Complaining witness acknowledges that she initially consented to perpetrator’s advances, including cunnilingus.”

  “Now, a fair reading of that sentence suggests, does it not, that it was my client who made the initial advances?”

  “Objection.” Puccio rose. “The document speaks for itself.”

  “Sustained.”

  “Okay,” Abe acknowledged, “the document does speak for itself, and the jury can decide for itself what it means. So, let me ask you about what you told the police. Did you tell them during your initial interview that it was you, and not my client, who first suggested having sex, and that it was you, and not my client, who made the first physical sexual advance?”

  “I didn’t feel comfortable telling the officer—”

  “Please answer my question first,” Abe interrupted. “Did you or did you not tell the police you were the aggressor during the first interview?”

  “No, I did not. I can explain.”

  “I’m sure you can. But the fact is, is it not, that you withheld information from the police when you were first interviewed?”

  “That’s correct, but the reason—”

  “Ms. Puccio will, I’m sure, give you an opportunity to explain why you didn’t tell the whole truth. Right now, I’m just interested in the fact that you didn’t tell the whole truth.”

  “Objection.”

  “Sustained. Mr. Ringel’s speech will be struck. You are to ignore it. Please ask the next question.”

  “Ms. Dowling, is there anything else you didn’t tell the police at your first interview?”

  “Probably. I can’t remember.”

  “Well, let me try to help you remember. Did you tell them that you had removed your bra when you went to the bathroom?”

  “No, I didn’t.”

  “Did you tell them that you returned from the bathroom with your shirt unbuttoned and the rest of your clothing removed?”

  “No.”

  “Did the police instruct you to tell them everything that happened?”

  “Yes, they did.”

  “And yet you withheld these facts.”

  “I didn’t think they were that important.”

  “Yet today you thought they were important enough to tell the jury.”

  “Yes, I did.”

  “Is that because Ms. Puccio advised you that you should testify about these facts?”

  “Objection.”

  “On what grounds?”

  “Lawyer-client advice,” Ms. Puccio said halfheartedly.

  “You’re not her lawyer, Ms. Puccio,” the judge ruled. “You know that. You’re the state’s lawyer. Objection overruled. You may answer.”

  Jennifer looked to Puccio, who nodded as if to give her permission to answer. “Yes, Ms. Puccio told me to tell everything—to hold nothing back.”

  “And are you holding absolutely nothing back now?”

  Jennifer hesitated. “I don’t think so, but it’s possible I may have forgotten a few things.”

  Abe knew he had succeeded in planting in her mind the possibility that he might know certain facts that she had forgotten. Her confidence was shaken. Now was the time to question her about the incomplete information she had given the police.

  “It is a fact, is it not, that you did not tell the police that it was you, rather than my client, who initiated the sex because you thought they wouldn’t believe you if you told them the whole truth. Is that not the fact?”

  “I thought they wouldn’t take me seriously.”

  “And they wouldn’t believe you, is that right?”

  “Yes, that’s right.”

  “So you were willing to tell less than the whole truth in order to be believed, is that correct?”

  “Everything I said was true.”

  “But not the whole truth, right?”

  “Not every detail.”

  “You delibera
tely left out the fact that you initiated the sex because you wanted to be believed, right?”

  “I guess that’s right.”

  “And several months before that, you deliberately lied under oath in a deposition about whether you had oral sex with your boss, because you were afraid that if you told the truth, no one would believe you were sexually harassed. Right?”

  “Yes, but then I told the truth.”

  “Only after your friend testified about what you had admitted to her. Right?”

  “That’s right. But I did tell the truth.”

  “And it is the fact, is it not, that you would be willing to tell this jury less than the whole truth in order to get them to believe you. Is that right?”

  “No, I’m telling the whole truth now.”

  “You weren’t telling it when you spoke to the police, right?”

  “I left out a few things.”

  “Deliberately, right?”

  “I guess so.”

  “And is it fair, in your view, to characterize a statement that omits important facts as a ‘half-truth’?”

  “I guess so.”

  “And what, then, is the half that is not the truth, Ms. Dowling?”

  “Objection. The term half-truth is self-explanatory.”

  “Sustained.”

  “Fine,” Abe said. “Let the jury decide what the half that isn’t the truth should be called.”

  “Objection.”

  “Sustained. The jury will ignore Mr. Ringel’s speeches, and Mr. Ringel will stop making them. Do you understand, Mr. Ringel?”

  “Yes, Your Honor. May I resume my questioning?”

  “Go on.”

  Abe continued to pound away. Jennifer became more confused and distraught until he sensed he might be risking a backlash. He had been caught up in the heat of battle. Now he knew he had reached that critical point when he began to feel a personal tinge of disgust overtaking the pleasure of professional success. The time had come to pull back and show his warmer self. Was he doing this out of genuine concern—or as a tactic? “Would you like to take a break, Ms. Dowling?”

  The judge waited silently while Jennifer remained mute, breathing heavily. Perspiration formed on her forehead and tears welled up in her eyes. If Abe hadn’t psyched himself up to objectify her as the enemy, he would have felt a more extreme set of emotions: guilt, pity, sadness, sorrow. He couldn’t afford that now. He had to win.