The Advocate's Devil

by Alan M. Dershowitz

  “Yeah, that you’re a shyster and that I want to replace you with a real lawyer. No skin off my back, only some off yours. No big deal. You’ll survive.”

  “That’s not the message.”

  “Then what is it?”

  Abe stood up and grabbed a law book from the shelf, quickly finding the page he wanted Joe to look at. “Since the Supreme Court’s decision a couple of years back in a case called Nix versus Whiteside, there has been an epidemic of lawyers dropping out of cases on the eve of trial. And no matter how they try to explain it, everybody in the system knows what it means. Here, read this paragraph.”

  “Well, I’m not in the system, and I don’t want to read any damn law books. You tell me what it says.”

  “It covers the situation where the lawyer believes his client is planning to lie on the witness stand. If a lawyer knows that, he either has to drop out of the case or blow the whistle on his client, and no lawyer can survive with a reputation as a whistle-blower, so they take the easy way out.”

  “What’s the easy way out?”

  “They quit, or more likely they arrange to be fired. Every judge, every prosecutor, every journalist, every court watcher, knows what it means. Firing me at this juncture would be like taking out a full-page ad in the Sunday New York Times confessing your guilt. Do you want to do that?”

  “Goddamn it. You win.”

  “This isn’t about winning. At least, not against you,” Abe said. “Part of me wishes you would fire us without shooting yourself in the foot. You can’t, and I can’t quit, because I would be screwing you if I did. So now I have a problem, Kemo Sabe. My problem is that I know too much for both our good. I still suspect, despite your explanation, that you may have used your computer to find out about Jennifer before you met her. I don’t know why. And I don’t know whether you raped her. My gut still tells me you didn’t, but not because of anything you’ve told me. It’s because Jennifer Dowling’s story is so weak. I have difficulty believing anything you tell me. And I also know that whether you’re innocent, guilty, or somewhere in between, it will still be difficult for the state to convict you because you’re a great con artist.”

  “Well, at least I’m glad to hear that you think it will be difficult to convict me,” Campbell said, looking out the window. “If you’re gonna stay being my lawyer, I want you to do everything in your power to make sure it stays difficult—no matter what you may think of me or what your damn assistants believe.”

  “I’ll do everything the law allows me to do, but I’m not doing anything improper for you or anyone else,” Abe responded.

  “What does that mean? What exactly won’t you do for me?”

  “I can’t allow you to lie on the witness stand.”

  “Hold your horses, Counselor. I’m gonna make your life easy. I’m a reasonable guy. I understand your problem, and I’m going to solve it.” Campbell looked Abe solemnly in the eye. “I swear to you that I won’t lie on the witness stand.”

  The athlete had gained control over himself. Suddenly he looked sincere. This guy is a trip, Abe thought as he imagined Campbell using this same show of sincerity in his countless seduction routines. Was there anything that threw him out of control? Maybe that was the key. Campbell never lost control. That could be hell on anyone’s sex life.

  Joe was now talking quietly, though there was velocity behind his words. “One thing is not negotiable.”

  “What’s that?”

  “If I decide that I want to testify, I’m damn well going to testify. I’m not going to lose this case—and my freedom and career—because my own lawyer doesn’t believe me. I’m telling you right now, I’m innocent and I’ll testify truthfully.”

  Abe started to get angry. “Who do you think I am? Some dumb groupie who will fall for that show of sincerity? I have a friend in Hollywood who always tells me that ‘sincerity is the essence of good acting; if you can fake that, you can fake anything.’ Who do you think you’re conning here? You want me to feel good because you’ve looked me straight in the eye and lied to me?”

  “No, I really mean it,” Campbell said. “This whole situation has been hell for me, and I’m beginning to realize that I do have a problem. There is something sick about looking up the secret backgrounds of women I’m dating. I’m going to go to some shrink.”

  “You’re right again.” Abe shrugged. “At least legally. If you tell me that you’re going to testify truthfully, I am legally bound to accept that, since I can’t know for sure that you’re lying. I don’t have a crystal ball. After all, some defendants whose lawyers think they’re lying tell the truth. Personally, I’m not sure whether I believe you. Legally, I have to believe you, because I have no hard proof to the contrary. I don’t know how I’m going to deal with the conflict.”

  “Is that supposed to be some kind of a threat?”

  “No, it’s just a human being talking to himself as a human being. As a lawyer, I’m satisfied with what you’ve told me. I have to be, despite my doubts. As your lawyer, I am required to err on the side of believing you.”

  “That sounds very schizoid.”

  “Maybe, but some of us are human beings as well as professionals. And every so often there’s a conflict between those personas. It’s not your problem. It’s mine. You’re my problem.”

  “Where does that leave me?” Campbell asked.

  “With a lawyer who believes you may be lying, and who isn’t sure whether you’re innocent or guilty, but who has to try to prevent the prosecution from proving that you’re lying and guilty. I hate being in that position. But that’s my problem.”

  “As long as it doesn’t become my problem,” Campbell replied. “I mean what I say about my right to testify.”

  There was a menacing look on his face as Abe showed him to the door. Abe couldn’t worry about that now. He had to worry about how to defend his client without losing his bar certificate—or his soul.

  PART II

  A Jury of

  His Peers

  Chapter Twenty-one

  CAMBRIDGE—THURSDAY, MAY 25

  Although one part of Abe wished that Campbell could have fired him, another part wanted desperately to continue on as Campbell’s trial lawyer. Like every lawyer, Abe dreamed about that one great legal victory that would propel him into the casebooks that law students read and the popular TV talk shows that everyone watched. Few lawyers achieved that dream, but those who did—Abe thought to himself—had it made for life. They would always be known as “the lawyer who won the ‘X’ case.” F. Lee Bailey would always be known as the lawyer who won the Sheppard case; Howard Weitzman as the lawyer who won the DeLorean case; William Kunstler as the lawyer who won the Chicago 7 case; Roy Black as the lawyer who won the William Kennedy Smith case. And a part of Abe Ringel wanted to be known as the lawyer who won the Campbell case.

  Abe Ringel was already well-known around Boston and among his professional colleagues. He hoped a victory in the Campbell case would propel him into that small circle of lawyers whose names were immediately recognized around the country. Abe smelled that victory, and he resented the complications Justin and Rendi had uncovered.

  This was also the part of him that Abe Ringel was most ashamed of. He never discussed his ambitious side with Haskel. Haskel wouldn’t have understood, and he certainly wouldn’t have approved. To Haskel, the law was not a business or an entertainment. It was a high calling, a learned occupation, an honorable profession. Haskel hated self-promotion, lawyer advertising, public relations, and everything else that went along with the new trend toward lawyers as moneymakers and headline grabbers. “A lawyer’s only advertisement should be the quality of his legal work,” Haskel had always taught his skeptical students.

  Abe wanted to believe in Haskel’s approach to the practice of law, yet he couldn’t always live by those principles. Abe rationalized his frequent appearances on radio and television by telling himself that Haskel’s way was right for Haskel’s era, but that the increasing
competitiveness of law practice and the increasing use of the media by ambitious prosecutors had made Haskel’s way anachronistic for today’s lawyers.

  In Haskel’s times a lawyer was respected for his integrity, for his ability to be counsel to the situation, for resolving conflicts. Sure, winning was important, even back then, only it wasn’t everything. Today, with lawyers advertising their wares like cereal or dog food, winning had become paramount. Lawyers, like athletes, were judged by their won-and-lost record, by the amount of media coverage they received, by their latest high-profile victory.

  Rudy Giuliani was the perfect example. He had catapulted media coverage of his prosecuting years into the job of New York City mayor. If Rudy had followed Haskel’s advice, where would he be now?

  Yet a part of Abe yearned for the bygone era in which Haskel was able to emerge as the greatest and most respected lawyer in Boston without ever seeing the inside of a television or radio studio. “I never comment about a legal matter outside the courtroom,” Haskel would always say in response to media requests. And he always abided by his beliefs.

  There was, of course, another side—a better side—to Abe. He had done more than his share of pro bono work for obscure defendants who had no real shot at winning. And why? Not for glory or fame or money—but just because he believed in the adversarial system of justice, under which every defendant was entitled to the best defense. He knew that using the media to level the playing field was part of that system. Yet he also knew that it fed his personal ambitions as well. “The adversarial system,” Haskel had taught his students, “is the worst possible system of justice—except for all the others.” Haskel understood how easily the system could be abused by unscrupulous and ambitious lawyers, yet how essential it was to the survival of liberty. He never had any difficulty striking the appropriate balance. For Abe it was always a struggle.

  Even though Abe was embarrassed about his ambitious side, he needed to discuss his present dilemma with Haskel. As usual, Jerome let him in, and as usual, Haskel was seated at his desk. Rather, he was dozing at his desk. How sorry he looked and how sad. Abe decided to let the old man snooze while he soaked up the atmosphere of Haskel’s quiet study. His eyes focused on a black-and-white photo from Haskel’s wedding to Estelle. The bride was slightly taller than the groom, so that she seemed to dominate her husband. The young Haskel had his hand on her shoulder. He was dressed in a black morning coat, his tallis peeking out from beneath his jacket.

  “I’ll tell you a secret.”

  Abe jumped. Haskel had startled him.

  “I had to stand on a box for that. I was a head shorter than Estelle, at least. Did you ever notice?”

  Abe smiled, shook his head. “How do you feel today?”

  “Well enough. Have you come to babble at me or will you let me take part in the dialogue for a change?”

  “I don’t babble, Haskel. Sometimes I just don’t want to disturb you.”

  “So you talk to yourself and pretend it’s me?”

  “Something like that.”

  “So talk.”

  “Wait a minute. Do you mean all this time you heard me talking to you and just pretended to be, well, you know, out of it?”

  “No, when I’m out of it, I’m gone. I don’t know where I go. Sometimes I let you blabber so I can sleep.” Haskel’s impish grin made him appear for one instant to be the young groom of the faded old photograph.

  Abe ran down the entire scenario for Haskel, who up till now had only heard bits and pieces of the Campbell situation. He did not tell Haskel that he had already decided to remain on the case, because he wanted Haskel to believe he was really seeking advice on what to do.

  Haskel seemed to sense that Abe had reached a decision, but he mistakenly assumed that Abe had decided to abandon Campbell to protect his own career. He pointed a finger at Abe, almost pedantically, as if he were back in the classroom, admonishing a student who was about to make a mistake. “Can one abandon a client upon learning unpleasant facts?” Haskel asked. “Is that not when the client needs you most?” Then, diverging from his usual approach, Haskel gave Abe direct advice. “You cannot leave the case now, because if you do, the world will perceive a message from your leaving. And it is a message you have a sacred obligation not to send.

  “Moreover,” Haskel continued, “it is always possible that Justin and Rendi may be wrong. The client may yet be innocent in spite of the unpleasant facts. The great talmudic commentator Rashi wrote that a magistrate who had changed his mind about a defendant’s innocence must ‘search out every possibility, on the minuscule chance that perhaps his original judgment was correct and the accused really is innocent.’”

  That part was easy for Abe. What bedeviled him was his realization that he was remaining on the case as much for his own self-aggrandizement as for his ethical obligation to Campbell. He wondered whether he would stay on if the case involved some poor schnook named Jones who was certain to be convicted rather than a rich superstar named Campbell. Might he not have found an ethical loophole through which to crawl out? Might he not be more easily convinced by Justin’s and Rendi’s evidence? He thought he knew the answer. Yet he wasn’t absolutely sure. What he was sure about was that now he had to believe in Campbell’s innocence, and he wanted to win, badly. Maybe so badly that it was clouding his judgment.

  “Leave now, Abraham. I’m tired, and soon I’ll probably be raving. How bad do I look when I slip out of this dimension, can you tell me?”

  “You look like you,” Abe lied.

  “When I die, Abraham, will you make sure they bury me with my glasses? Jerome is too flighty, and I’m afraid that by the time the undertaker gets here, with all the commotion, I’ll be separated from my glasses.”

  “Of course I will, Haskel.” Abe turned to go.

  “Thank you, Abraham.”

  “For what?”

  “For not asking me why on earth I would want to be buried in glasses.”

  “I think I know.”

  “Do you know me so well?”

  “I know myself. I would be afraid I’d get bored and not be able to read.”

  Abe could hear the music of Haskel’s laughter all the way down the front stoop and into the street.

  Chapter Twenty-two

  CAMBRIDGE—THURSDAY, MAY 25

  It was now only ten days before Charlie Odell’s scheduled execution, and this was the day Abe had to tell Duncan, the New Jersey prosecutor, whether Justin would testify against Nancy Rosen. Abe had tried everything—from the Supreme Court, to the governor, to Nightline. Nothing had worked. The prosecutor had persisted in his claim that Odell was the killer and that Abe, Justin, and Nancy had contrived a phony story about a fugitive who would never be caught.

  “If Nancy Rosen is telling the truth,” Duncan had responded on Nightline, “then let her tell us where the real murderer is so we can catch him and hear a confession from his own mouth.”

  Nancy remained unwilling to tell the prosecution anything about her client’s whereabouts. The prosecution was prepared, however, to stop the execution if Justin would testify against Nancy. “At least that would show that you’re not in a conspiracy together,” Duncan said to Abe. “And if she goes to jail, she’ll tell us where Owens is—eventually.”

  It boiled down to Justin and Abe having to choose between sacrificing Nancy’s career or saving Charlie’s life. There were no other options, and time had run out. If Justin were to testify against Nancy, it would still take a couple of days to work out the mechanics of halting Odell’s execution. It was now or never. Abe and Justin had to make the tough decision.

  “Abe, this is one decision you’ve got to make for me,” Justin said. “I’m just too emotionally involved. I’m too close to Nancy. I know what I want to do. I just don’t know what I should do.”

  “You’ve really got no choice but to testify against Nancy. I know you’re Nancy’s friend. You’re also Charlie Odell’s lawyer. And Charlie’s innocent life is on the line.
” Abe thought of Haskel’s talmudic story about the Roman general who demanded that one person be handed over for execution or the entire city would perish. “Duncan wants Nancy in particular, and for good reason. After all, she is guilty of alerting her client and encouraging him to escape. Odell, on the other hand, is innocent.”

  “I know you’re right, Abe, only that doesn’t make me feel any better about it.”

  Abe phoned Duncan. “You will have your pound of flesh,” he said.

  “Have Mr. Aldrich in Newark tomorrow, nine A.M., in front of the grand jury,” Duncan ordered. “And if Ms. Rosen finds out, the deal is off. He testifies at nine. We have an indictment by ten. Ms. Rosen is arrested by eleven. With any luck we’ll have Owens in custody by the close of business.”

  “The deal is as soon as Justin testifies, Odell walks—whether you find Owens or not.”

  “That’s right. As long as you don’t tip Rosen so that she can join Owens.”

  “Don’t worry,” Abe said. “You’ve got me over a barrel.”

  “That’s exactly where I want you. Tomorrow, nine A.M.”

  NEWARK—FRIDAY, MAY 26

  The morning went as planned. Justin testified that Nancy Rosen had told him she’d given Owens advance warning so that he could skip town. Nancy was arrested, and Odell’s case was dismissed on the motion of district attorney Kevin Duncan, who announced that a nationwide manhunt was under way for the real killer.

  Late that afternoon Charlie Odell was transferred from death row to the state mental hospital, where he would stay for several weeks before being released. Abe and Justin were there to meet him. After tearful thank-yous from Odell, Justin was off to the Newark jail to visit Nancy.

  It was ironic, Justin thought, that he had helped save the life of a career criminal—even one who was innocent of this crime—by destroying the life of a career do-gooder—even one who may have violated the law this once. In the Newark Women’s House of Detention he went through the familiar routine. Nancy was brought to the visitors room, wearing her blue prison garb. If anyone could look dignified in a convict’s outfit, it was Nancy. Once seated, they picked up their prison telephones and spoke through the Plexiglas.