“Well, if you don’t do it, Ms. Puccio, his argument will ring hollow. No harm, no foul. Overruled. Please wrap it up, Mr. Ringel.”
“Thank you, Your Honor. Back to my request. As Ms. Puccio is making her final argument, I would ask each of you to think of what I would probably say if I had a chance to reply to her. When you hear her make an argument, try to listen to it from my perspective. In that way, you will help level the playing field. In that way, the trial will become a search for truth, rather than a game in which the home team gets the advantage of batting last.
“Let me give you an example. If Ms. Puccio were to argue that Ms. Dowling told the truth by admitting that she had inserted her diaphragm, you should reply—because you know I would reply if I had the opportunity—that she had no choice but to tell the truth about that, since the rape kit showed the presence of spermicide. That is the sort of thing I would like you to do for me—and for justice. Play the role of defense lawyer during the prosecutor’s rebuttal. In that way, no arguments will remain unanswered. I thank you for your attention, and I urge you to think carefully about your verdict. If you do, I am confident that it will be not guilty.”
Abe sat down, satisfied that he had put forth the best possible case for Campbell without crossing into any ethical minefields. At this moment he even believed his client was innocent. Were the jury to vote now, he was convinced it would acquit. Unfortunately, the jury didn’t vote after the defendant’s closing argument. It voted after the prosecutor’s rebuttal and the judge’s instructions. Either or both of these could change the dynamic of the deliberations.
Cheryl Puccio was known for her rebuttal summations, which were the true test of a great prosecutor. A lawyer could plan the main part of her closing arguments. The rebuttal summation—the last word—could rarely be planned. It had to pick up on the strongest points of the defense lawyer’s summation and turn them against the defendant and in favor of the prosecution. Puccio was a master of this art form. Now it was her case to win.
She picked up her notepad and walked to the jury box, pausing just long enough to look each of the jurors in the eye, as if to say to them “This isn’t a game. Don’t be hoodwinked by Ringel’s clever arguments. Get back to basics. This man Campbell is a rapist.” That’s what her eyes said. Her words were different, more subtle.
“Ladies and gentlemen, Mr. Ringel is right. There are some I-don’t-knows and maybes in this case. This is not L.A. Law or Perry Mason. This is real life, where no announcer tells you before the last commercial break what actually happened. There are always uncertainties in real-life cases. That is why the judge will instruct you that proof beyond a reasonable doubt is not proof to an absolute certainty. Fanciful doubts, such as those which Mr. Ringel has tried to plant in your minds, are not enough for acquittal. For you to acquit this man, your doubts must be reasonable. They must be based on reason, not whim, not gut feelings, not sympathy, but rather on facts, evidence, reality.
“With that in mind, let’s return to the evidence in this case. The central question is, Do you believe Jennifer Dowling? If you do, then you can have no reasonable doubt about the defendant’s guilt. There is no wiggle room there. If she is telling the truth, then he is guilty beyond a reasonable doubt. This is not a case where reasonable people could have different views about whether Jennifer Dowling did or did not consent. If you believe her, as you should, she clearly withdrew her prior consent in unequivocal language: ‘No,’ ‘Stop.’ Mr. Campbell could not have misunderstood that withdrawal of consent. Nor is he entitled—as a matter of law—to believe that ‘stop’ means ‘go’ and ‘no’ means ‘yes.’ If you believe Jennifer Dowling, then you must convict Joe Campbell.
“Now, let me tell you why you must believe that Jennifer Dowling is telling the truth. If she were lying—if she were trying to frame an innocent man—why would she admit that it was she who asked for sex? She could easily have said it was Campbell who asked. After all, there were no other witnesses. Second, she admitted that she made the first sexual move with her hands. She could easily have lied about that—if she were a liar. Again, no other witnesses to contradict her. Finally, she admitted that she took off her undergarments.”
At this point Campbell looked directly at Ms. Scuba Diver, who nodded in recognition, as if to say “Of course she admitted all that. Once the presence of spermicide was shown, Dowling had little option but to acknowledge that she had initially consented to sex.”
Several of the other jurors, having been asked by Abe to act as his surrogate, also seemed to understand that Puccio was overstating her case. Several furrowed brows and questioning looks made Abe very hopeful about what was going on.
Puccio resumed her closing argument, unaware of the interplay between Campbell and Ms. Scuba Diver but a bit concerned about the furrowed brows. Quickly she improvised a response.
“To be sure, there was some physical evidence that Jennifer Dowling had consented to sex—the spermicide, for example. Remember there was no hard evidence of who initiated the sex. And yet she told the truth—a truth that certainly doesn’t help her cause. She trusts you, ladies and gentlemen of the jury, to believe that she changed her mind, as she had every right to do. She trusts you not to hold the truth against her. And you should not.
“The medical evidence is merely corroborative of Jennifer Dowling’s testimony. It helps you decide whether or not to believe her. Our case stands squarely on her credibility. If you conclude she is telling the truth, you should convict. If you conclude she is lying, you should acquit. It really is as simple as that.
“Before you retire to deliberate, I ask you to do one thing. Please. Look Jennifer Dowling straight in the eye and ask yourself: Is she lying?’”
When Cheryl Puccio issued this solemn challenge to the jury, Abe could not bring himself to accept it. He could not look Jennifer Dowling in the eye. He hoped the jurors were not looking at him. Out of the corner of his eye, he saw that the other jurors had accepted Puccio’s clever challenge. They were looking directly at Jennifer Dowling. All except for Julianne Barrow. She was looking Joe Campbell in the eye. Joe was not glancing back at her. He was looking Jennifer Dowling straight in the eye and shaking his head, as if to accuse her of lying. What a piece of work this guy is, Abe thought. He really took to heart the story about the corpse walking through the door.
Again Cheryl Puccio missed this byplay. It was becoming apparent to Abe that Joe played to the jury only when Puccio was focused on examining witnesses and Judge Gambi’s attention was elsewhere. Now the prosecutor finished her rebuttal summation:
“Ladies and gentlemen of the jury, I ask you not to brand Jennifer Dowling a liar. I ask you to believe her. And if you do, you have no choice but to convict Joe Campbell of rape. Thank you.
It was vintage Puccio. Unemotional, factual, and compelling. She had used Abe’s arguments in her favor. She sat down, and every eye in the courtroom turned to the jurors’ faces in an effort to read their minds. Had she gotten through to them? Had the dynamic shifted away from Abe and Campbell and in her favor?
A few apparent nods of agreement seemed to suggest that Puccio had gotten through to some of the jurors. That was to be expected. So were the poker faces on several other jurors. There was no way of counting noses from the few ambiguous signs. And in any event, minds could change even after all the arguments. The judge’s instructions changed minds. The discussion in the jury room changed minds. A restless night of sleep sometimes changed a mind. Even with all the scientific breakthroughs in jury evaluation, the dynamics of a jury decision were still largely in the realm of speculation. Abe knew enough never to be cocky in a jury case.
At dinner that night, Henry Pullman gave his report on the shadow jurors. “The jurors liked Puccio’s argument that Dowling didn’t have to tell the truth about who initiated the sex. Puccio has managed to turn that negative into a positive.”
“Anything else?” Abe asked.
“Yeah. There are still a couple of shado
ws who tell me in private that they can’t vote to convict a guy for rape if the woman was asking for it, even if she changed her mind.”
“That’s good for us, right?” Justin asked.
“Wrong. That’s what they’re willing to say in private—to an old man like me. Most likely they won’t be willing to say that to their fellow jurors. They may be afraid to vote for acquittal on that basis and be thought of as sexist, or worse.”
“So it’s bad?”
“No, not necessarily. It’s a wild card.”
“Bottom line, Henry?” Abe inquired.
“Bottom line is that it doesn’t look like a unanimous acquittal to my shadows. But then again, my shadows have not had the dubious benefit of being made love to by the eyes of the great White Knight. Who knows!”
“Nor can they look into the eyes of Jennifer Dowling,” Rendi added.
“Is there anything I can ask the judge for in her instructions that could help us with the issues your shadows came up with?” Abe asked.
Pullman thought for a moment, consulted his notes, and replied, “Yes, there is.”
“What?”
“My jurors were very impressed with Puccio’s argument that this isn’t a case about reasonable doubt. It’s a case about whether or not you believe Jennifer. They like that because it empowers them. They’re used to deciding whether someone is telling the truth or lying. They think they’re good at that. It requires basic common sense. They hate this reasonable doubt stuff. They don’t know how to think that way—about probabilities and stuff like that.”
“So what can the judge tell them that will help us?”
“You’re asking the wrong guy that question,” Pullman said. “Abe, you’re our expert on jury instructions.”
“I’ve got to think about that one, Henry. Thanks for the info. I’ll try to have an answer for that problem by morning.”
Chapter Twenty-nine
“Any proposed changes in my instructions, Counsel, before I deliver them?”
“Yes, Your Honor. I have two,” Abe responded. “First, I would respectfully request the court to give a specific instruction requiring the jury to find beyond a reasonable doubt that Dowling is telling the truth.”
“No way, Your Honor,” Puccio responded quickly. “Our burden is not to prove the truth of any particular witness’s testimony beyond a reasonable doubt. Our case as a whole must meet that burden—not each component of it.”
“How can your whole case be proved beyond a reasonable doubt, unless your critical witness is believed beyond a reasonable doubt? You yourself argued yesterday that your whole case turns on whether the jury believes Jennifer is telling the truth.”
“Good point, Mr. Ringel,” noted Judge Gambi. “How do you respond, Ms. Puccio?”
“Let me give you an example,” she replied. “Assume that the jurors believe Jennifer’s uncorroborated testimony, but not beyond a reasonable doubt. Then they hear this corroboration, which they also believe, but not beyond a reasonable doubt. In that case, neither the testimony standing alone, nor the corroboration standing alone, would satisfy the standard of proof beyond a reasonable doubt. Yet both together—they can add up to proof beyond a reasonable doubt.”
“Better point,” Judge Gambi acknowledged. “Now it’s your turn, Mr. Ringel.” The judge was obviously enjoying this exchange between two very able lawyers. Abe was not, because he knew he had been bested by Puccio. He tried to respond to her compelling point, without any real hope of success.
“Ms. Puccio is trying to argue that two weak pieces of evidence, neither of which alone satisfies the standard of proof beyond a reasonable doubt, can be slapped together, and somehow the heat of the collision will magically produce a result that is greater than the sum of its parts. That defies both the laws of physics and the laws of logic.”
“Nice try, Mr. Ringel. Ms. Puccio wins this round. I will not require the jury to conclude beyond a reasonable doubt that Ms. Dowling’s testimony, standing alone, establishes guilt, because in this case her testimony does not stand alone. It is the jury’s decision whether the medical evidence provides corroboration.”
“My next request, Your Honor, is that you not give the standard instruction in which proof beyond a reasonable doubt is defined as that ‘level of proof on which you would act in the most important decisions of your life.’”
“What’s wrong with that instruction, Mr. Ringel? I give it all the time and nobody ever objects to it.”
“What’s wrong, Your Honor, is that rational people always make important decisions on the basis of a mere preponderance of the evidence, as well they should. For example, if there are two medications for a particular heart condition, and one is slightly better than the other—say one has a fifty-five percent cure rate and the other a forty-five percent cure rate—and both have equivalent risks and side effects, only a fool would go with the forty-five percent when he could have the fifty-five percent.”
“What does that have to do with reasonable doubt?”
“That’s exactly my point. It has nothing to do with reasonable doubt.”
“Now you really are confusing me, Mr. Ringel.”
“Let me try to explain.”
“Go ahead. It’s your motion.”
“Okay, Your Honor. In a criminal case, the jury is supposed to go with the forty-five percent, not the fifty-five percent. If the jury concludes that it is fifty-five percent likely that the defendant is guilty and only forty-five percent likely that he is innocent, they should go with the forty-five percent and acquit, not with the fifty-five percent. Even if it’s seventy-five percent to twenty-five percent, the juror should go with the twenty-five percent for innocence. That’s what it means to say ‘better ten guilty go free than one innocent be convicted.’ And that type of thinking is counterintuitive for most jurors, because it is not the way they decide other important issues in their lives. So you should explain the difference to them.”
“What would you have me say?”
“With respect, Your Honor, I would like you to say exactly the opposite from what you usually say.”
“You certainly know how to ask for the moon, Mr. Ringel. Be more specific.”
“I would respectfully ask Your Honor to instruct the jury that they should not make their decision in this case the same way that they make decisions about important issues in their own lives. You should tell them that a decision in a criminal case is very different from other decisions, because we are much more afraid of an erroneous guilty verdict than of an erroneous not guilty verdict.”
“Go on, Mr. Ringel.”
“Therefore, even if, for purposes of deciding whether to hire him as a baby-sitter or allow him to date your daughter, you would conclude that Mr. Campbell probably did rape Ms. Dowling, you should not conclude that he did it for purposes of deciding this criminal case, unless you believe that the evidence that he did it is so strong that it leaves you with absolutely no reasonable doubt.”
“Well, Ms. Puccio,” Judge Gambi said, turning to the prosecutor, “Mr. Ringel makes a convincing argument that I’ve been giving the wrong instruction for ten years. Can you help me convince myself that I’ve been right all these years?”
“I’ll try, Your Honor. People understand that important decisions aren’t always made on a mere preponderance of the evidence. You don’t have open-heart surgery unless you’ve resolved all your reasonable doubts. The traditional instruction reflects that common sense, and you’ve been right to give it all these years.”
“I’m flattered by your support, Ms. Puccio, but I think that Mr. Ringel is correct. I’m not going to give my usual instruction. Nor will I give Mr. Ringel’s understandably pro-defendant instruction. What I will say is that criminal trials are different and that the jury should not convict merely on the basis of the usual level of certainty it requires in other decisions, but rather on the basis of proof beyond a reasonable doubt. I’ll leave the rest to their good old-fashioned common sense.”
<
br /> “That’s agreeable to me, Your Honor,” Abe said.
“I don’t agree, Your Honor,” Ms. Puccio said.
“Ms. Puccio, I’ve made up my mind.”
Judge Gambi then ordered the marshal to lock all the doors, requested quiet in the courtroom, and solemnly read her instructions. It always bothered Abe how much more seriously judges took their own instructions than they did the arguments of the lawyers. Spectators were free to walk in and out during the lawyers’ arguments. When the judge instructed, it was like a papal mass.
After reviewing the elements of the crime of rape and the rules of evidence, Judge Gambi gave the “reasonable doubt” instructions she had promised. The jurors seemed to pay particular attention to that part of the judge’s presentation.
Then Judge Gambi issued her final words to the jury: “Your first task is to select a foreperson who will preside. He or she has no greater or lesser influence than anyone else. You should listen to others and maintain an open mind until the final vote. In the end, you must decide whether or not you believe that the defendant has been proven guilty beyond a reasonable doubt. If you so conclude, you should vote to convict, without regard to your feelings toward the defendant, the complainant, or anyone else. If you conclude that there is a reasonable doubt, you should vote to acquit, without regard to your feelings toward the defendant, the complainant, or anyone else. Now, go and do justice.”
Abe was satisfied with the instructions. It was fair, down the middle. Henry Pullman soon confirmed his assessment. “She didn’t change a single vote. It’s still the same. They’re all over the lot.”
As the jurors left the courtroom to deliberate, none gave any sign as to which way they were leaning—no smiles, no glances at the defendant, no clue at all. Even Ms. Scuba Diver averted her eyes from the direction of the defense table and walked straight out.
Now it was time to play the lawyer’s favorite guessing game: When would they return? Would a short deliberation mean an acquittal or a conviction? Would a long deliberation signal a hung jury?
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