The trio rushed through dessert and hurried over to the office. Campbell arrived a few minutes later with Emma in tow. “My friends got tied up in New York. I called your house. Your daughter answered and was kind enough to join me for dinner. She told me all your secrets.”
“I don’t tell her any secrets. Not mine and not yours.”
“Your daughter knows a lot about basketball—for a girl.” Campbell smiled teasingly.
“I know a lot even for a boy,” Emma shot back.
“All right, Emma, you got your treat—dinner with an NBA star. Now it’s time for you to skedaddle. We’ve got decisions to make and you can’t participate in them.” If Abe had any thoughts about Emma having dinner with Campbell, he kept them to himself.
“I hope Joe takes the stand. He’ll be a great witness,” Emma asserted.
“Thank you, F. Lee Ringel, and good night.”
“Good night, Daddy. Good night, Joe. Justin, Rendi, see you around.”
As Emma was leaving, Abe gestured to Joe to sit next to Justin. “Okay, let’s get down to business. It’s decision time. Joe, it’s your call. To testify or not to testify—that is the question.”
“To testify,” Campbell said matter-of-factly. “Now wasn’t that easy?”
“Wait a minute. It’s not that easy. Even putting aside the ethics issue, Puccio will grill you like you’ve never been grilled before.”
“No, she won’t.”
“Why not? Have you seduced her, too?”
“She wishes. No, I haven’t seduced her. And you’re right, she would grill me if she could.”
“Well, she can—if you testify.”
“No, she can’t,” Campbell said with a smile, “because I’ve testified already, and I don’t have to take the witness stand.”
“How many Chinese beers did you have for dinner?” Rendi inquired. “Don’t you understand that if you testify, you get cross-examined. And you haven’t testified yet.”
“Yes, I have,” Campbell replied smugly. “Just before the trial began, Abe told me this story about a guy on trial for murdering his wife—”
“You mean the corpse-walking-through-the-door story,” Justin broke in. “We’ve all heard that one.”
“Well, I hadn’t. And it gave me a great idea. I’m surprised none of you noticed it.”
“I noticed it,” Abe said.
“What the hell are you talking about?” Justin asked.
“I’ve been testifying throughout the prosecution’s case. I’ve made eye contact with several jurors, especially the scuba-diving one you were all worried about. She knows what my position is. She knows what I admit and what I deny. And she believes me—without my ever having said a word.”
“He may be right,” Abe said. “I did see what he was doing. He may already have given his best testimony, without even having sworn an oath to tell the truth. At least as far as Ms. Scuba Diver is concerned.”
“My God,” Justin said. “You learn something new every day in this game. I’ve never heard of this one before, testifying without saying a word.”
“Actually, I’ve seen it before,” Abe said. “An entirely different context, but the same principle.”
“What happened there?” Justin asked.
“It was a Mafia case. A former associate of a major crime figure had made a deal with the feds and was testifying against his former boss. The boss never said a word. He looked the witness right in the eye as if to say ‘You rat on me and your entire family is dead.’”
“What did the witness do?”
“He freaked. Changed his entire testimony. The mobster got off.”
“That’s what I call confronting the witness,” Justin said.
“That wasn’t the same principle at all,” Rendi said. “The mobster used fear. Joe used lust.”
“Getting back to Campbell,” Abe said, “Henry Pullman tells us we’re in trouble. Most of his shadow jurors, especially the young feminist and the black woman, believe Jennifer Dowling. Another shadow was very impressed with the doctor, and several of the other women keep talking about the vaginal abrasion and the size of Campbell’s penis. Right now there’s six for conviction, only three for acquittal, and three up in the air. The majority seems likely to swing the others to their side. Henry says we’ve got to put Campbell on.”
“That’s because I haven’t made eye contact with the shadow jurors,” Campbell said. “The shadows haven’t heard—or seen—me testify, only the real jurors have.”
“What about the abrasion?” Justin asked. “Several of the shadows seem impressed with that and were clearly influenced by Puccio’s question about your being smaller than average.”
“I’ve taken care of that.” Campbell smiled.
With that comment, every eye in the room turned to Campbell’s gray cashmere trousers, which were unusually tight around the inner thigh. The outline of his penis was plainly discernible.
“I dress left, and my tailor knows how to bring out the best in me.”
The boast seemed justified as six eyes looked down on what appeared to be a cylindrical bulge in his pants.
“You’re wearing falsies!” Rendi exclaimed with a mixture of admiration for Campbell’s ingenuity and disgust for his duplicity.
“If that’s not his,” Justin said, “we may be participating in a fraud on the court. Don’t we have an obligation, Abe, to check the evidence?”
“Don’t be silly,” Abe replied. “We don’t know whether it’s true or false, and in the absence of evidence to the contrary, we have an obligation to believe our client.” He turned to Campbell. “That’s the last time you’re wearing those pants. You’ve made your point, so to speak. Now, please, back to baggy pants. I don’t want Puccio or the judge seeing what you’re doing.”
“No chance,” Campbell said. “That’s the last place either of them would ever look. Ms. Scuba Diver has had her eyes on me since the time Puccio asked the question, and when I wore these pants the next day, she gave me a knowing glance as if to say you’ve proved your case to me.”
As much as Abe hated to admit it, he knew he could trust Campbell’s reading of people—the man had made his reputation on his ability to read the opposition.
“Well, I guess the decision is easy,” Abe said. “Campbell has certainly convinced me that in light of everything we now know, the defense should probably rest.”
“And it certainly avoids the ethical issues we were worried about,” Justin added.
“Well, at least it changes the ethical issue,” Abe said. “I’m still going to have to tiptoe through a lot of ethical tulips in my closing argument.”
“So it’s decided,” Rendi declared with a sigh of relief. “No defense. We rest.”
“It’s gonna shock the hell out of Puccio,” Justin said with satisfaction. “She’s been preparing for weeks to cross-examine Campbell and to put on a strong rebuttal case. I heard through the grapevine that she even got the son of one of her friends—a college basketball player—to act the part of Campbell in a mock cross-examination. What do you think she’ll do?”
“She has no choice. The prosecution has rested. The defense will rest first thing in the morning tomorrow. She had better be ready with her closing argument. I’m sure as hell not ready for mine yet, but at least she goes first.”
Chapter Twenty-eight
“The defense rests, Your Honor. We’re ready for closing arguments,” Abe announced.
Cheryl Puccio showed her surprise. “Wait a minute, please, Your Honor. Can we meet in chambers?”
“All right, everyone in my chambers.”
As they were walking toward Judge Gambi’s chambers, Puccio whispered to Abe, “You son of a bitch. You really sandbagged me. I was sure you were going to put Campbell on. And I was ready for him.”
“That’s why I didn’t put him on.” Abe smiled. “My job is to sandbag you.”
“This isn’t a game, Mr. Ringel,” Puccio said angrily. “You’re representing a dang
erous rapist, and you know it. That’s why you’re not putting him on. You would be suborning perjury if you put him on.”
“I’m glad you know so much about my tactics—and my ethics.”
When they entered Judge Gambi’s chambers, Puccio immediately asked for a one-day delay in the trial so she could work on her closing argument.
“No way, Your Honor,” Abe objected. “My client is entitled to a speedy trial and a speedy verdict. Lawyers are supposed to be prepared for anything.”
“Mr. Ringel deliberately lulled me into thinking that he was planning to put on a defense.”
“I was planning to put on a defense. I prepared Mr. Campbell to testify. Ms. Puccio’s case turned out to be so weak that I don’t have to put him on.”
“That’s entirely your call,” Judge Gambi said. “And the prosecution should have been ready for it. I certainly wasn’t surprised. I thought it could go either way. I’m ready with my instructions. As a courtesy, I will give the prosection the morning to do its homework, but the state’s closing argument begins at one P.M. sharp and ends at two forty-five P.M. Defense goes from three P.M. to five P.M. Prosecution gets fifteen minutes for rebuttal. This case is not all that complex. My instructions begin at nine A.M. tomorrow. I’ll be done by ten, and the jury will have the case by ten-fifteen. With any luck, we could have a verdict by tomorrow afternoon.”
That afternoon Puccio’s closing argument, like the woman herself, was direct, no-nonsense, without dramatics. After speaking for twenty minutes, she came to the heart of her case:
“There is one unusual aspect of this case that I will now touch on. Joe Campbell did not rape in order to get sex. He could have gotten sex from Jennifer Dowling without raping her. She testified that she was willing, indeed eager, to have a sexual relationship with him. Then Joe Campbell deliberately said something to her that led her to change her mind. Why he did that we can only surmise, but that is not part of our burden of proof. We do not have to prove to you why Joe Campbell wanted to rape Jennifer Dowling—only that he did rape her. Somehow he found out something that he knew would upset Jennifer, and he whispered it to her. We don’t know how he found out, and that’s not something we have to prove, either. All we have to prove is that Jennifer said no for whatever reason and that Joe Campbell forced her to have sex with him for whatever reason.
“And you heard her testify that she did say no. Why would she lie about something like that, especially after she acknowledged that she originally did want to have sex with him?
“Moreover, Ms. Dowling’s testimony is corroborated by physical evidence. Mr. Campbell caused an abrasion that you heard Dr. Stiller say is consistent with forced sex. Oh, sure, it’s also consistent with consensual sex with a man with a very large penis. We have heard absolutely no evidence, however, about the size of Joe Campbell’s penis, and there is no reason for you to assume that it is anything but average.”
Several jurors murmured at the mention of Campbell’s penis size, but a rap from Judge Gambi’s gavel quickly silenced them.
Cheryl Puccio ended her argument with a logical review of all the prosecution’s evidence and a simple request for a verdict of guilty so that Jennifer Dowling might get on with her life.
Now it was Abe’s turn. His only turn. Puccio would get to rebut Abe’s argument. She would get the last word. He had to make his argument so convincing that even Puccio’s rebuttal would not change the juror’s minds. He could feel the adrenaline.
“Men and women of the jury, you have heard a truly brilliant presentation by one of the best prosecutors in the county. She has to be good, because the facts of her case don’t make sense. Think about how many times she admitted to you that she couldn’t explain what she claimed were facts. Review them in your own minds. She couldn’t explain why Joe Campbell supposedly raped Jennifer Dowling if he knew that Jennifer was ready, willing, and eager to have sex with him voluntarily. She couldn’t explain how Joe Campbell supposedly learned about Jennifer’s very private secret, or why he would whisper it to her just before they were beginning to have voluntary sex. She had no idea whether this six-foot-three-inch man has a penis that would be average for a man who is five feet nine inches or for a man who is six inches taller than the average man.
“The prosecutor has made a heroic effort to fill these gaping holes in her Swiss cheese by trying to persuade you that she does not have the burden of proving these unknowns. And the judge will tell you that she is right, as a strict matter of law. However, as a matter of simple logic, how can you convict a man of one of the most heinous crimes on the books without understanding why he would do it, how he obtained the secret information that the complaining witness claims he had, and whether his physiology is consistent with evidence of rape or consensual sex. There are just too many I-don’t-knows, maybes, and uncertainties in this case for you to find Joe Campbell guilty beyond a reasonable doubt.
“There are only two pillars to the prosecution’s house of cards, and both are shaky at best. The first is Jennifer Dowling. She makes a good witness. Smart, attractive, and with no obvious motive to lie. Yet she admitted to you that she deliberately lied about her sexual harassment claim and changed her story only after her friend testified against her. She admitted that she told a half-truth to the police in order to get them to believe her. And the other half of a half-truth is a half-lie. Would she not also be willing to present a half-lie to you in order to get you to believe her?
“Most of what Jennifer Dowling told you was the truth. Indeed, only a small portion of it was false. She did want to have sex with Joe Campbell. That is true. She did put in her diaphragm. She did take off her bra in the bathroom. She did suggest sex to my client. She did reach down and touch his genitals. All of this is true.”
Throughout his summation, Abe fought to stay focused on the here and now. For one instant, as his eyes caught Jennifer’s, he was distracted. A wave of self-doubt swept through him. He thought fleetingly of Nancy Rosen’s valor compared with his own conflicting motivations, and—not for the first time—he silently cursed Alex O’Donnell for the “favor” of bringing him to Joe Campbell. Then he pushed his doubts back. It was too late now—now he must win.
“What is false—and what defies common sense—is that Joe Campbell would suddenly change from a warm, gentle person into a monster who is whispering strange things into Jennifer Dowling’s ear and then pouncing on her like a teenage boy whose hormones are raging out of control. Such transformations from Dr. Jekyll into Mr. Hyde may make interesting fiction, but they are not the stuff of real life. Why would Joe Campbell take by force what he was offered willingly? Why would he deliberately destroy the mood of romance? Why would he risk his entire career, his fortune, and his liberty for something that Jennifer Dowling was all too willing to give him without any risk?
“Yes, sex is a strong and powerful force. It makes people—both men and women—do and say things that seem entirely out of character. Still, you cannot answer these difficult questions by general speculations about sex. You must look to the evidence, and there is nothing in the evidence in this case that answers those questions.”
Abe looked at the jurors to try to get some sense of how he was doing. How did the women react to his suggestion that women were sometimes driven by sex to lie? How did the men react to his Dr. Jekyll and Mr. Hyde reference? He hoped to see signs of approval so that he could skip the next—and most dangerous—part of his argument. There were no overt signs, just cold stares. He had to go on.
“Now we come to what may be the hardest part of your job. If you conclude—as I urge you to under the evidence—that Joe Campbell is innocent, your job is easy. You are required to go with your conclusion and find him not guilty. If you are uncertain about his innocence or guilt, your job is also easy. You must find him not guilty.
“Now here’s the hard part. If any of you think he is probably guilty, you must still find him not guilty, because ‘probably’ isn’t enough. You must be certain beyond
a reasonable doubt. It’s hard to vote not guilty when you believe the defendant is probably guilty. In your personal decisions about important matters, you generally go with the probabilities. And why not? If something is more probable than not, you should go with the more probable, rather than with the less probable.
“A criminal trial is different. Our tradition says that it is better for ten guilty defendants to go free than for even one innocent defendant to be wrongfully convicted.
“Sometimes I wish our country had the Scottish verdict of ‘not proven.’ That’s easier to say than ‘not guilty,’ when you think the defendant probably is guilty, but when you’re not convinced beyond a reasonable doubt. I sincerely hope that none of you will have to reach that hard decision and that all of you will agree with me that the evidence in this case points unerringly in the direction of innocence. Since I cannot know what is in each of your minds, I must take the precaution of talking to you as if some of you may believe that Joe Campbell is probably guilty. If there are any of you on the jury who think that, I ask you to listen to the judge’s instructions on reasonable doubt and to remember that a vote for a verdict of not guilty is not a vote for innocence. It is a vote that the prosecution has not satisfied its heavy burden of proving beyond all reasonable doubt that the defendant is guilty.”
Abe was nearing the end. Now it was time for a gambit that he himself had invented and used successfully in numerous cases—none, however, quite like this one.
“One final request before I turn the lectern back to my distinguished adversary. The prosecutor always gets the last word. That is a powerful advantage. I cannot anticipate and answer every argument she will make. Indeed, some prosecutors deliberately reserve certain arguments for rebuttal because they know there will be no opportunity for the defense to respond to them.”
“Objection, Your Honor. He’s charging me with something that other prosecutors may do.”
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