The Advocate's Devil

by Alan M. Dershowitz

  “Thanks, Nancy. I really owe you. If there’s any trouble over this, you can count on me.” And Justin anticipated that there certainly could be trouble for Nancy. Big trouble.

  Abe and Justin arrived at the prosecutor’s office on the fifth floor of the old courthouse a few minutes after four. Justin had briefed Abe about what Nancy had told him on the phone. It always bugged Abe that prosecutors were housed in the same building as the judges, while defense attorneys were relegated to offices a few blocks away. One look at the dreary gray walls and institutional furniture in the office quickly reminded Abe of why he preferred to be an outsider.

  District Attorney Kevin Duncan was there with his chief assistant and a state trooper. He got right down to business.

  “Let’s be straight with one another, Mr. Ringel. You’ve got a guy on death row who you say is innocent. There is no way you can prove his innocence in court without Ms. Rosen’s client, Owens. Rosen’s own testimony would be hearsay and probably not admissible on lawyer-client privilege grounds. If you want to save Odell, you’ve got to help us find Owens.”

  “I have no problem with that,” Abe replied. “I’ve got no responsibility to Owens. He’s not my client. How can I help you find him? I don’t know anything about him.”

  “Nancy Rosen does. She knows about his friends, his family, where he probably went. We have reason to believe that if Nancy Rosen wanted to help us find Owens, she could.”

  “So why don’t you ask Nancy? What do you want from me?”

  “We’ve asked Nancy, and she won’t help us. Claims she knows nothing. We don’t believe her.”

  “So what do you want me to do?”

  “You can help us put pressure on her. We intend to indict Nancy Rosen for obstruction of justice, and we believe Mr. Aldrich could help us prove that Ms. Rosen advised her client to flee. We want Mr. Aldrich to testify against Nancy Rosen.”

  “No way I’m gonna testify against Nancy Rosen,” Justin said.

  “You’ve got no choice, Mr. Aldrich. Odell’s on death row, and that’s where he’s staying unless you help us find Owens. The only chance we have of finding Owens is by squeezing Rosen’s tit in a wringer. And, Mr. Aldrich, you’re the wringer.”

  “You son of a bitch!” Abe jumped out of his chair as if he were about to attack Duncan. “You’re holding Charlie Odell hostage against Nancy Rosen.”

  “That’s your characterization, Mr. Ringel. I would put it differently. Mr. Aldrich has information that could help us prove that a local lawyer committed a felony—an ongoing felony, since Owens is still at large. We have an interest in finding Owens, and yourclient Odell has an interest in finding Owens. Can we work together? Or does the status quo remain?”

  “By the status quo, you mean Odell dies.”

  “That is the status quo, Mr. Ringel.”

  “We’ll think about it,” Abe said, knowing that he couldn’t ask Justin to help the prosecutor put his friend Nancy in prison. “You’re scum, Duncan. You would actually allow a man you know is innocent to be executed if my young associate here doesn’t testify against Nancy Rosen?”

  A sardonic smile appeared on the prosecutor’s lips. “I don’t know that he is innocent. I only know that your friend Rosen claims that another man, who is conveniently missing, apparently admitted that he did it. We get these false confessions all the time, Mr. Ringel, especially in high-profile cases, you know that. And I don’t even know for sure that Owens ever really admitted anything to Rosen.”

  “What about the stuff that only the real killer would know?”

  “I don’t know what you’re talking about, Mr. Ringel. Information gets out. Rosen probably heard about it through the courthouse grapevine. Wouldn’t be the first time.”

  “Duncan, you really are a worm.”

  “And one more thing, Mr. Ringel. I don’t want you or Mr. Aldrich telling Nancy Rosen about my offer to you. If you do, she might decide to follow Owens into hiding, and then we would come after the two of you for obstruction of justice. You’ve got exactly three days to decide whether Odell dies or Rosen goes to jail. There is no third alternative. It’s a tough choice. I hear you’re both good at making tough choices. Mr. Ringel, Mr. Aldrich, have a nice day.”

  Chapter Nineteen

  CAMBRIDGE—TUESDAY, MAY 23

  Haskel’s condition was worsening every week. Now there were days of absolute silence. Abe would visit almost every morning on the way to his office and talk to his old mentor. Sometimes he would get no response at all. Other times he would see a smile, a frown, a tear, a twinkling of Haskel’s deep old eyes. Abe wasn’t even certain he was really seeing these responses. Maybe Haskel was reacting to his own inner dialogue rather than to Abe’s soliloquy. On some days Haskel would speak, often in delphic terms, occasionally with long, rambling stories.

  Today Abe sat at Haskel’s side to ponder his response to the awful choice the New Jersey prosecutor had inflicted upon him and Justin. In recounting the meeting with Duncan, Abe characterized Charlie Odell as a hostage and the prosecutor as a tyrant. Suddenly Haskel began to speak, softly and indistinctly at first, but then in a singsong voice reminiscent of a young student learning the ancient Talmud. Abe listened carefully to every word.

  “There was once a walled city in Roman-occupied Judea in which a thousand Jews lived peacefully. A Roman general laid siege to the city, and no food or water was allowed in. The tyrannical general sent a message to the elders of the city that they had two choices. Either they must turn over to the Romans one citizen of the city for execution or everyone in the city would die of starvation.”

  After telling the story, Haskel stopped and nodded off to sleep. Abe tried to arouse him, but to no avail. His visit was over. There would be another tomorrow. In the meantime, Abe had to figure out what Haskel meant by his cryptic story and whether it provided any guidance to him in the tough decision he now had only two days to make.

  “Justin,” Abe called out as he walked into the reception area of his office, “I need you to do an unusual bit of legal research this morning.”

  Justin bounded out of his office with that eager look only recent law school graduates seemed to have all of the time. “Sure, Abe. Library? Computer? What’s the task today?”

  “Neither,” Abe responded. “Today you study one of the oldest legal documents in history.”

  “I love legal history, especially the old English dooms. What do you want me to look up?”

  “This isn’t English. It isn’t even in English. I need you to look up something in the Talmud.”

  “The Talmud? They don’t teach that stuff in law school, and I don’t read Hebrew.”

  “Actually, it’s in Aramaic, which was the everyday language of the Jews at the time the Talmud was compiled. It’s a bit like the case reports that we read today. The Talmud records legal discussions among the leading rabbis during the third, fourth, and fifth centuries.”

  “Abe, don’t you think we have enough on our plate without digging up ancient rabbinical decisions?”

  “Haskel told me a story today. I think it comes from the Talmud. Maybe it has some answers that could help us in the Odell case.”

  “How can a fifteen-hundred-year-old discussion help us in the Odell decision?”

  “Couldn’t hurt,” Abe replied, shrugging. “Got any better ideas?”

  He recounted Haskel’s story about the walled city and asked Justin to find out how the old rabbis had resolved the dispute over whether to sacrifice one innocent person in order to save an entire city. He told Justin to call around to various rabbinical seminaries to get a lead on the story and to find out if any English translations were available.

  A few hours later Justin was back again. He had found the talmudic reference to which Haskel was referring, and it was as elusive as Haskel’s story. The old rabbis had agreed that if the tyrant requested a specifically named hostage, he should be turned over and the city saved. However, if the tyrant requested just any hostage, none
should be selected by the city elders for execution, even if that meant the destruction of the entire city and its inhabitants.

  “There was a certain logic to their thinking,” Justin explained. “If the tyrant picked the victim, it became the responsibility of the tyrant. If the elders decided, the burden would be on them.”

  “No wonder so many of us Jews become lawyers,” Abe said. “These talmudic distinctions are even more difficult to figure out than the legal distinctions in the English common law. How does it help us with the Duncan decision?”

  “Let me think about that a little more.”

  “Okay. But do it quickly. We have only two days to make our decision.”

  Chapter Twenty

  CAMBRIDGE—WEDNESDAY, MAY 24

  When Abe arrived at his office for the morning confrontation with Joe Campbell, the athlete was already in Abe’s inner office, pacing quickly back and forth in his designer sweat suit as if he were warming up for a game. He was, in fact, in the midst of the NBA playoffs. The Knicks had swept the Heat in the previous round and were awaiting the outcome of a closely contested series between the Pacers and the Bulls that would determine their next opponent.

  “Well, Joe, you’re here early. I thought ballplayers like to sleep late.”

  “Has it occurred to you that I’m anxious to get this bit behind me? I need to concentrate on earning a living.”

  “Yeah, except you have nothing to worry about. You’re innocent, right, Joe?”

  “You know that better than anybody.”

  “Do I?”

  The question hung between them.

  Abe took a file folder out of the old oak file cabinet adjoining his desk, riffled through the papers, and looked at Joe. “We’ve got a big problem that I’ve got to put to you directly.”

  “What do you mean we, Kemo Sabe?” Joe asked. “Only I have a problem, remember. You’re not accused of anything.”

  At least not yet, Abe thought as he turned the conversation more confrontational. “I do have a problem, and my problem is you.

  “What do you mean?”

  “I don’t think you’ve been leveling with me.”

  “I told you I was sorry, and that it wouldn’t happen again. Can’t we put that behind us and get on with my case?”

  “I’m not talking about that lie,” Abe said. “Justin and Rendi believe that your entire story of when you met Jennifer and found out about her harassment suit is a bald-faced lie.”

  Suddenly Joe Campbell’s entire demeanor seemed to change. He was no longer the polite young man who had so impressed Abe at the Four Seasons. Now he was a trash-talking jock.

  “What the fuck are you saying? How dare you? I told you that I would tell you the truth, and I expect you to believe me. I’m not paying you to sit here and insult me,” Joe said angrily, starting to get up. “Every goddamned lawyer in the country would give their right testicle to be representing me. And you sit here and call me a liar. Fuck you.”

  Abe hated this part of the lawyer’s job—looking your client straight in the eye and telling him that you question his entire story. They didn’t teach you how to do it in law school, and there was no instructional manual among the volumes that lined Abe’s office. A quarter century of experience had taught Abe how important this kind of confrontation could be in winning a case, especially when the client was lying but might still be innocent of the charges—a phenomenon more common than most outside observers might suspect.

  Abe was prepared for Joe’s reaction, and he responded in an even tone. “Please stop acting. I am actually trying to help you. I’m your doctor and I’ve just read your CAT scan and it shows me you have operable cancer. Do you want me to pretend you don’t or do you want me to try to cure you?”

  “What the hell does this have to do with CAT scans and cancer? You can’t see a lie on a CAT scan.”

  “My staff and I look at the evidence, and the evidence shows our trained eyes—just like a CAT scan shows a doctor’s trained eye—that you may not be telling us the truth. Why would you lie to us, Joe, if you’re innocent?”

  “Holy shit! Now you’re telling me—my own goddamned, highly paid defense lawyer—that I’m guilty. Who appointed you prosecutor? Who appointed you God? I don’t have to take this. I’ll go down the block, I’ll look in the Yellow Pages. Any kid out of law school could win this case, especially after what we’ve dug up on Jennifer.”

  “I’m not telling you that I think you’re guilty. The truth is I still believe that you’re probably innocent, though I’m not as sure as I used to be, and I don’t think you’ve told me the truth about everything. I do have to tell you, though, that Justin and Rendi believe you’re guilty. And they have found some troubling documentation that supports their view.”

  “What the hell are you talking about? What documentation? What about the facts concerning Jennifer?”

  “Justin and Rendi think that you knew everything about Jennifer before you decided to go out with her. That’s why you picked her. They believe it was a setup from the get-go, that you always pick women who have something in their past—a false accusation of rape or sexual harassment, something that will make it impossible for them to bring a successful rape charge. Are they right, Joe?”

  Joe looked stunned. Then he muttered, “Well, Counselor, do you believe them?”

  “I don’t know. Justin has found some interesting stuff on the computer. Like the fact that you got the printout on Jennifer a few days before you went out with her. Also the computer request you made was for cases of false sexual allegations.”

  There was a look of total shock on Joe’s face. It was clear that Joe Campbell had never before been confronted with this accusation. Abe could not tell whether the look was one of shocked guilt or shocked innocence. For the first time, Joe Campbell was speechless. Abe waited a beat and then continued. “You’re not making it any easier. I need to find out who you really are.”

  This time Joe was not silent. “Who the hell do you think you are, Sherlock fucking Holmes? Cut the shit and get back to earth. You’re a goddamned criminal lawyer. You work for me. Your job—your only job—is to get me off. Not to tell me I’m lying, and not to tell me your associate—whose hourly fee I’m paying—thinks I’m guilty because of some computer games he’s playing with himself. It’s all bullshit.”

  “Explain to me why it’s bullshit, Joe. I’d love to be persuaded. Here, take a look.” Abe handed Joe the folder with the computer printouts and explained Justin’s theory of how they showed that the search had predated Joe’s “chance” encounter with Jennifer. Joe studied the printouts carefully, his demeanor pensive.

  “It’s all rather complicated, Abe,” he said, pointing to the Jennifer Dowling printout. “Actually, I did several searches. The first was for Jennifer Dowling. I did that search after I met her—like I told you. I don’t know why there’s no time notation. Maybe CompuLaw did that only for law firms. Maybe the last part of the printout was irrelevant so I threw it away. Maybe CompuLaw just screwed up. That kind of thing happens, you know.”

  “What about the more general search for all false sex complaints?”

  “I did do that—right after I did the Dowling search and found out about her false complaint. I wanted to know more about why women make false complaints.”

  “Why did you want to know?”

  “Intellectual curiosity, I guess—and I wanted to understand Jennifer Dowling. I wanted to be sure she wasn’t the kind of woman who might try to set me up.”

  “That’s just what Justin thought—originally,” Abe said. He was impressed by Joe’s ability to come up so quickly with a plausible explanation.

  “Justin was right—originally. Why did he change his mind?”

  “Because there’s more, Joe—even if you’re telling the truth about the computer stuff.”

  “What?”

  “Our investigator, Rendi Renaad, has come up with disturbing information about your sexual predilections from some of yo
ur groupie friends.”

  “You got our investigator to dig up dirt on me?” Joe asked, his demeanor once again belligerent. “Who the fuck do you think you are, the National Enquirer?”

  “No, I’m your lawyer, and hard as this may be for you to believe, I’m trying to help you. She’s found some pretty nasty stuff.”

  Joe paused, got up, and hovered above Abe, looking at him menacingly. Abe put his finger on the silent alarm he had installed several years earlier, after a woman client accused of murdering her abusive husband had attacked Abe during an emotional confrontation. He was about to press when Joe walked away, turned back, and said softly:

  “Mr. Ringel, I have no choice but to insist that you fire Rendi and Justin. I want them off my case. They don’t believe in me, and I don’t want to pay for people to dig up dirt on me.”

  “I’m sorry, Joe. That’s my call, not yours. If I’m in charge of your defense, I decide who works with me. I need them. And I need them to dig up everything on you. Better them than the prosecutor. Everything Justin and Rendi learn is confidential.”

  “I don’t care. They’re off my case.”

  “The only way they’re off your case is if I’m off your case.”

  “Okay, if you insist. You’re fired, too—effective immediately, along with your entire team. I will not be needing your services any longer. Send me your final bill.”

  Abe was prepared for that response. “I wish it were that easy, Joe, only it’s not.”

  “What do you mean, it’s not? I have an absolute right to fire you and your team, don’t I?”

  “Of course you have that right, but you may not want to exercise it.”

  “Why the hell not? You think I’m afraid of you?”

  “That’s not it,” Abe answered him. “I promised you I would never disclose anything I learned about you as your lawyer, and I’m bound by that commitment. You have to understand how the system works. If you and I part company at this point—no matter how we put it for public consumption—it will send a clear message.”