“Ms. Dowling?”
“Let’s get this over with, if you don’t mind, Mr. Ringel.” Her voice gained strength as she uttered these words. Behind him, he could sense Campbell concentrating on their exchange.
“Actually, a short recess is a good idea,” Judge Gambi said. “Let’s all take a five-minute break. Ms. Dowling, you may step down.”
Jennifer exited the courtroom with the prosecutor by her side. Abe could imagine what that little tête-à-tête would be like. He’d been involved in a few of those himself—like with Charlie, for example. It was a merry-go-round of emotions being a trial lawyer, yet it was a whole lot worse being on the witness stand. Women lawyers, Abe thought, seemed better at handling the client’s emotions, even if that seemed a sexist attitude. Or maybe it was just Abe Ringel who had trouble handling the shifting emotions of a trial.
Abe took a seat beside Campbell, who was rubbing his forehead with eyes closed. The jury had been instructed to remain in the courtroom during the brief recess. Ms. Scuba Diver, Abe noted, was looking intently at the defendant, as were several of the older women, all of whom seemed too galvanized to move. Many of the court spectators also kept their seats, probably afraid to lose them.
The courtroom began to fill up, and then the bailiff announced that recess was over. Whenever Abe heard that phrase, he thought back to the monitor in elementary school signaling the end of the punchball game he and Alex O’Donnell always played during recess.
Just then Joe glanced over at the jury box and smiled openly at Julianne Barrow, Ms. Scuba Diver. To his horror, Abe found himself urging on his client silently. He couldn’t help it; Joe’s rapport with the prospective foreperson was important. She is the enemy, he told himself, repeating it like a mantra several times as he watched Jennifer reenter the courtroom. It was clear she had been crying. He could sense her fear.
“You are still under oath,” Judge Gambi reminded Jennifer as she retook the stand.
Jennifer nodded silently. Abe approached the stand. Joe smiled once more at Ms. Scuba Diver. The trial went on.
“Now, Ms. Dowling, is it not a fact that after you were fired from your job, you went to see a psychologist—”
“Objection, objection. Sidebar,” Puccio yelled.
“In my chambers, now,” Judge Gambi ordered them.
“What is this all about?” the judge asked Abe when they reached her tiny, run-down suite. “You know that we have a psychotherapist-patient privilege in this state.”
“We also have the Sixth Amendment, Your Honor,” Abe insisted. “And that gives Mr. Campbell the right to confront his accuser with all relevant evidence that could help him defend himself.”
“Your Honor,” Puccio countered, “Ms. Dowling confided in the psychotherapist on the basis of an explicit promise that what she said would be confidential. She bared her soul at a time of real emotional need, and it would be unconscionable to have that all spread out on the public record.”
“Your Honor,” Abe rebutted, “what if she admitted to the psychologist that she had made up the entire story of the alleged sexual harassment episode in order to cover up her own inadequacies at work?”
“Do you have any evidence of that, Mr. Ringel?” Judge Gambi shot back.
“No. That’s why I want to question her about it—to develop evidence.”
“It’s a goddamned fishing expedition,” Puccio objected. “He’s just fishing for dirt. He’s got no basis.”
“Do you have any basis, Mr. Ringel?”
“Yes, I do. My client tells me that Ms. Dowling told him that she had gone to a psychologist after an unpleasant episode several months earlier. It is fair to infer that she was referring to the events that led up to her firing.”
“Do you have any basis for believing that she told the psychologist anything that would be relevant to your defense?” the judge pressed.
“We can only find that out by asking either the witness or the psychologist—or by looking at the psychologist’s notes,” Abe said.
“I’m sure there is nothing relevant there, Your Honor,” Puccio insisted. “It was a series of psychotherapeutic sessions, not a confessional. Jennifer didn’t confess to her psychologist that she lied, because she didn’t lie.”
“With all due respect, Your Honor, how does Ms. Puccio know? Has she seen the notes? Has she spoken to the psychologist?”
“No, I haven’t, but neither have you.”
“That’s my point,” Abe said triumphantly. “Nobody knows. For all we know, Ms. Dowling may have sought treatment because she is a pathological liar, and the psychologist will tell us she isn’t cured even now!”
“You’re reaching, Mr. Ringel,” Judge Gambi said.
“Of course I am,” Abe acknowledged. “Because I can’t get the evidence and I have to assume the worst. What if—just what if—I’m right?”
“How can we find out without breaching the confidentiality of the privilege?” Judge Gambi asked.
“I have a suggestion,” Abe said.
“I’m not surprised. What is it?” the judge asked.
“Why don’t you, Your Honor, review the notes yourself—if there are any notes. If not, question the psychologist. If you conclude that there is nothing of relevance to my defense, I will not persist down this line. On the other hand, if you do find that there is relevant material—material that I could use to impeach Ms. Dowling’s credibility—then it will be turned over to me and I can use it to question her.”
“Well, Ms. Puccio, what do you think?”
“I object strenuously. It’s not that we don’t trust you, Your Honor. What Ms. Dowling confided to her psychologist was not intended for anyone else’s eyes or ears, even a judge’s. They were matters of the utmost privacy.”
“Mr. Ringel?”
“Your Honor, there is no right to that kind of privacy in the text of the Constitution—no psychotherapist-patient privilege. There is a right to confront witnesses and to subpoena evidence. And I have a right to ask Ms. Dowling about what she told her psychologist. I also have a right to ask her—and I fully intend to—whether she went to a rape counselor after she had sex with my client.”
“Why is that relevant?” the judge asked.
“Because she claims that she was raped, and my client denies it. If she didn’t go to a rape counselor, that would corroborate my client’s denial. And if she did, then I would have a right to know what she told the rape counselor. Again, she may have admitted to the rape counselor that she made the whole thing up.”
“This is outrageous, Your Honor,” Puccio complained. “If defense attorneys are allowed to get the records of rape counselors, then no rape victims would ever confide in them. It’s like the lawyer-client privilege. I can’t subpoena Mr. Ringel’s notes of what Mr. Campbell told him, even if they were to show he admitted raping Ms. Dowling.”
“They would show no such thing.”
“I’m just making an analogy.”
“It’s not analogous,” Abe said, “because the lawyer-client privilege is protected by the Bill of Rights, whereas these other privileges aren’t.”
“The psychotherapist-patient privilege is protected by a statute in this state,” Judge Gambi said.
“The Bill of Rights trumps a statute, Your Honor.”
“Yes, Mr. Ringel, it does. However, the statute is also important. It protects an important relationship that the state wants to encourage—between a patient and her psychologist or rape counselor. I will not allow a fishing expedition into these therapeutic records—certainly not without more than the unsupported inferences you’ve come up with thus far.”
“Well, can you, at least, look at the records?”
“No, I won’t. They are confidential—even from me. As a lawyer, Mr. Ringel—and a very good one—you must surely appreciate the sacrosanct nature of privileged and confidential information. You would raise the roof if anyone suggested that I read the notes of your lawyer-client meetings. I understand your desir
e to fish for some poisonous eels, Mr. Ringel. I’m not going to let you ask any questions about Ms. Dowling’s psychologist or rape counselor—if she had one. These issues are out of bounds.”
“With respect, I preserve my objection for appeal—if we have to appeal—and having preserved it, I have no further questions for Ms. Dowling.”
After the lawyers and the judge returned to the courtroom, Puccio rose for redirect examination. She asked Dowling to explain why she had not told the police everything. Now a bit calmer, Dowling did a credible job explaining her fear that the police—who were all men—might scoff at her if she acknowledged that she had initiated the sexual advances.
Abe’s point had been made, and he did not need to re-cross-examine her. He concluded that Jennifer Dowling’s testimony, standing alone, would probably not be enough to convict Campbell. He had created—manufactured?—a reasonable doubt about her credibility, even though he suspected that she might have been telling the truth. He had done his job well.
Yet the case was far from over. Although Jennifer’s testimony by itself would probably not convict Campbell, if it were to be corroborated by hard scientific evidence, the jury might still find him guilty beyond a reasonable doubt. That was why the state’s next witness, Dr. Mary Stiller, a gynecologist at Massachusetts General Hospital, was so crucial. Dr. Stiller had examined Dowling on the night of the alleged rape and had observed and photographed the intravaginal abrasion. She testified that the abrasion was consistent with forcible sex.
Abe asked only three questions on cross-examination.
“Is it not the fact, Dr. Stiller, that Jennifer Dowling’s abrasion is equally consistent with consensual sex between a man with a large penis and a woman who has never given birth to a child?”
“Yes, it is.”
“Is it not the fact that your physical examination cannot distinguish between these two possible causes?”
“That is true.”
“Is it not true, therefore, that the abrasion alone cannot prove, to a reasonable medical certainty, that Jennifer Dowling was raped?”
“That is true.”
“No further questions.”
Cheryl Puccio rose for redirect.
“The abrasion would be consistent only with rape, would it not, if the man who caused the abrasion had a smaller-than-average-sized penis?”
Abe jumped to his feet. “Objection, objection. I move for a mistrial. How dare Ms. Puccio try to put those words in Dr. Stiller’s mouth! She knows that there is no evidentiary foundation for her factual premise about the size of the penis at issue here.”
“Into chambers, both of you,” Judge Gambi barked. “Now. I don’t want any of this discussed in front of the jury.”
Abe was steaming as he entered the judge’s chambers. “I’ve never seen such a cheap shot,” he growled at Puccio. “I thought you were above that.”
Judge Gambi called for order and directed her anger at Puccio. “That was a cheap shot, Ms. Puccio. You know there’s no evidence in the record of Mr. Campbell’s size.”
Cheryl Puccio responded calmly, “Your Honor, I have a good faith basis in fact for my question. My next witness will testify as to the size of Mr. Campbell’s penis.”
“That’s ridiculous,” Abe said. “The prosecution has not even asked to examine the item at issue. How could she possibly know?”
“There’s more than one road to Rome,” Puccio said with a smile.
“Okay, Ms. Puccio,” Judge Gambi directed. “If you’ve got any evidence, I want to know about it now. No more games.”
“I do have the evidence. My next witness is Charlene Green, a young woman who has had sex with Mr. Campbell on several occasions. She will testify as to the size of his penis.”
“Your Honor, that is entirely inadmissible and prejudicial. I don’t know who this Green woman is. Unless she takes a tape measure to bed with her, she can’t possibly give evidence as to Campbell’s size.”
“No, she doesn’t use a tape measure, but she has had quite a bit of experience. She is what they call a ‘groupie,’ Your Honor. She has slept with many basketball players, and she can qualify as something of an expert on penis size. She can’t give you inches, Your Honor, but she is prepared to swear under oath that in her experience, the defendant in this case is smaller than average.”
“Your Honor,” Abe interjected, “even if she were an expert—which we dispute—she would only be an expert on basketball players. And even if my client were smaller than the average basketball player—which we do not concede—that would not necessarily mean that he was smaller than average for the entire population. This woman has a skewed view of size from sleeping with too many large basketball players.”
“Okay,” Judge Gambi said. “I’ve heard enough. We’re not going to turn this rape trial into a debate about what is an average-sized penis. I will not allow my courtroom to be demeaned in that manner. No, Ms. Puccio. No discussions of penis sizes. I will strike your last question, Ms. Puccio, and tell the jury to disregard it and forget it.”
“That’s not enough, Your Honor,” Abe demanded. “Telling the jury to forget that Ms. Puccio implied that my client has a smaller than average penis is like telling a group of people not to think about an elephant—or in this case a mouse. The jurors are going to assume she was telling the truth. I’ve got to be able to combat that impression.”
“What do you propose as a remedy, Mr. Ringel?”
“Let me at least argue to the jury that there is no evidence in the record to support any conclusion other than that the size of my client’s penis is proportional to the rest of him.”
“It isn’t,” Puccio insisted.
“So says some groupie.”
“So say several groupies we interviewed. Unfortunately, none of the others would testify.”
“Enough, enough,” Judge Gambi ruled. “You can both argue anything you please, as long as it is based on evidence that is before the jury. This Green woman will not be allowed to testify. Now let’s wrap up the trial, please.”
Puccio had no further witnesses. Her case would stand or fall on the testimony of Jennifer Dowling and the corroborative medical evidence described by Dr. Stiller. Now the big question was whether Campbell would testify. If he did, the entire dynamic of the trial would change. Everything else would fade into the background as the jurors focused on only one question: Was Campbell telling the truth or was he lying? If Campbell did not testify, that same question would focus on Jennifer Dowling. Abe had to make the decision before morning.
“I have this friend in New York who gets a million dollars to try a case,” Abe mused over dinner with Justin and Rendi. “He tells me that fifty thousand of it is for the time and expenses. The remaining nine hundred and fifty thousand is for his judgment on whether the defendant should testify or not. That’s how important this decision is.”
“Edward Bennett Williams used to say, ‘Always put the defendant on, unless he has a record as long as Long Island,’” Justin said. “I read it in his autobiography.”
“Gerry Spense says, ‘Never put a defendant you think may be guilty on the stand,’ because the jury will always see through him,” Rendi added.
“They’re both wrong,” Abe said. “A lawyer should never say ‘never’ or ‘always.’ Every case is different. There are no universal rules. That’s why I’m less certain about your theories of Campbell’s guilt. I’m still not sure whether he did it. And I’m still operating on the assumption that he didn’t. You’ve got to sit and listen to the government’s case and then evaluate your client’s individual strengths and weaknesses.”
“Look at those Menendez kids,” Rendi interjected. “Guilty as could be, and great actors. They put it over on enough of the jurors to get a deadlock in the first trial.”
“So what’s the right approach here?” Justin asked.
“I don’t know yet. I’m still thinking.”
“What does Campbell want to do?” Rendi asked.
“Why do you say that?” Rendi asked.
“Because he hasn’t pressed me in the last day or two. He didn’t even want to come to dinner tonight, even though he knows we’re talking about this. He’s out with some friends.”
“Will he go along with your recommendation?” Justin asked.
“I don’t know. All I can do is give him my best judgment.”
“What is your best judgment?”
“My best judgment at this point is that we probably have it won without Campbell taking the stand, yet it’s far from certain that we’ve won.”
“Can Campbell help us or hurt us?” Justin asked.
“Yes.”
“What do you mean, ‘yes’?” Justin asked.
“He can help us and he can hurt us, and I just don’t know how he’ll do.”
“You’ve been over his story ten times with him.”
“Right. And every time it comes out a bit different. Not the words, but the music. His affect changes all the time, and jurors look at that kind of thing.”
“What about the ethical problem?” Justin asked.
“The ethical problem has become more of a tactical problem at this point. The ploy we practiced of bringing him right to the edge and then not asking him the crucial questions would backfire in light of how explicit and direct Jennifer Dowling was.”
“So what’s it going to be, Abe?”
“I’m going to leave it to Campbell. I’ll lay out the options, give him my best assessment of the costs and benefits, and let him decide.”
“That’s not like you. This is your call. You’re the guy with all the experience.”
“Yeah, except this is not an experience call. Campbell is unique, and this case is unlike any I’ve ever had before. This guy has a rapport with the jury like I’ve never seen. It’s his life. It’s his call. Try to reach him, Justin. He’s eating at Chef Chang in Brookline. I told him he might have to cut his dinner short. Tell him to meet us at the office in half an hour.”
The Advocate's Devil Page 21
