The Advocate's Devil

by Alan M. Dershowitz

  “Not very much. I will have eternity to be free of pain and to be asleep. I cherish the few remaining hours of lucidity I have left, even if they come with the price tag of pain and anxiety.”

  “I have something for you to read,” Abe said, opening up The New York Times to the story about the Plaza Hotel killing.

  “Please, Abraham, read it to me. My eyes hurt when I read.”

  Abe read aloud the brief news account.

  “A terrible tragedy. I know how worried you must be with Emma going to New York.”

  “It’s not about Emma, although I am worried about her. It’s about Joe Campbell.”

  “I’m so proud of you, Abraham. You won that difficult case without violating any ethical rules. I was worried about you during that case, especially after you confided in me what you had found.”

  Abe felt fortunate that today seemed to be one of Haskel’s good days. “I must confide in you again, Haskel. Both Justin and I think that Joe Campbell was responsible for this killing in New York.”

  “Did he tell you?”

  “No, no,” Abe responded. “Quite the opposite. He denies it vehemently. Says he was at home.”

  “So how can you be so sure? There are hundreds of such killings in New York every year.”

  “We are sure, Haskel. As sure as anyone can be. Remember how I told you that Campbell would use his computer to look for women who would be unlikely to report a rape? Well, this woman fit that description, and her story could be found through his computer database. We checked it.”

  “Abraham, you know I don’t understand computers. Is there any other possibility? Could it be coincidence?”

  “There is always another possibility, but the circumstantial evidence points to the conclusion that Campbell found out about her secret, just like he found out about Jennifer Dowling’s secret, and deliberately stalked her and raped her.”

  “And killed her?”

  “Probably not deliberately, but I can’t even be sure of that.”

  “And you know all this because of what you learned when you were representing Mr. Campbell?”

  “Yes. He confided in me about his use of computer searches only after I explicitly promised him confidentiality. Without his confidential admission to me, we could never have figured out the pattern.”

  “So now, my dear Abraham, you have information that would help to stop this awful man from doing further terrible injuries, yet you cannot disclose this information because you obtained it in confidence?”

  “That’s exactly right, and I need your help in figuring out a way to disclose this information and stop this guy.”

  “Are you sure you are asking the correct question, my dear Abraham?”

  “What do you mean?”

  “Do you really want to figure out a way to disclose what you learned in confidence?”

  “I don’t know, Haskel. What I do know is that I must do something. I can’t wait for him to kill again. I feel responsible for this woman’s death.”

  As Abe uttered these words, a vision of Hannah crossed his mind. She was driving her car, distracted by her concerns about Abe and Rendi.

  “Do you feel that responsibility as a lawyer?”

  “What do you mean, Haskel?”

  “As a lawyer, did you have any other option than silence?”

  “Well, maybe not as a lawyer, but certainly as a human being I had the option of blowing the whistle on him. I could have done what Shakespeare said: ‘Tell truth and shame the devil.’”

  “Aha,” Haskel said. “Did you really have that option, Abraham? Were you really freer as a human being than as a lawyer?”

  “Haskel, now I’m really getting confused,” Abe said, wondering to himself whether it was Haskel who was confused.

  “Abraham, think about Abraham,” Haskel said.

  Abe did not know whether Haskel was asking him to think about himself or about the biblical patriarch after whom he was named. Haskel made it clear in his next sentence:

  “And then think about Socrates.”

  Haskel fell asleep as Abe wondered what Abraham and Socrates had in common. While waiting for Haskel to awaken, he recalled one similarity between the two historical figures. Both were prepared to sacrifice that which was most dear to them—in Abraham’s case, his beloved child, Isaac; in Socrates’ case, his own life—in order to demonstrate their faith. Abraham demonstrated his faith in God, who vindicated that faith by saving Isaac. And Socrates had demonstrated his faith in the Athenian system of justice, which failed to vindicate him by ordering his death. How this all related to Joe Campbell and his deadly computer eluded Abe. But at least he had an opening for when Haskel awoke.

  A full hour passed before Haskel stirred. And when he did awaken, it was not the same Haskel as the one who had fully understood Abe’s dilemma. He seemed more confused, less focused, and even more elliptical than usual in his questions.

  “Haskel, I hope you had a good nap.”

  “I don’t dream anymore.”

  “I think I understand your reference to Abraham and Socrates.”

  “Menschen. They were both menschen,” Haskel mused, employing the Yiddish-German word for “man” or “human being.”

  “So?”

  “So, you’re a mensch, too, Abraham. Act like a mensch.”

  “I think I understand what you are telling me,” Abe said now. “I must search for a single answer to the question of what is the right thing to do. There is no correct human way, unless it is also the right legal way. That is why Socrates willingly swallowed the hemlock and why Abraham willingly set out to sacrifice his son.”

  “You are one person, Abraham. You must find one answer.”

  “Where do I find that one answer?” Abe implored.

  “Where others before you have looked,” Haskel said, his eyes beginning to cloud over.

  Abe watched the old man struggling to convey some last thoughts before he drifted off once again. He placed his ear close to Haskel’s mouth to make out the words.

  “The old books give guidance, not answers. Sometimes there are no answers. Always make sure you are asking the right question.”

  As Abe thought about the question, he watched his dear friend drift off into a troubled sleep.

  This time he could not wait around for Haskel to awaken. He had exhausted the old man, and he was no nearer a solution, except that he realized Haskel was right in rejecting the dichotomy between the human solution and the legal solution. That was one characteristic Haskel had in common with Emma. Both had integrated their ethics into their personalities. Maybe that’s what wisdom really is, Abe thought. He needed to search for a wise approach rather than a clever gimmick.

  Was there such an elegant solution?

  Chapter Thirty-four

  As he was walking from Haskel’s house back to his home, Abe found himself thinking about Nancy Rosen, that she was really in prison for a conspiracy to achieve justice. She had sacrificed her freedom to resolve a conflict between saving the innocent life of a stranger and hurting her own client. She had opted for an inelegant solution that had saved Charlie Odell’s life and preserved her own client’s freedom—at least for a time—but at the high cost of her own imprisonment and disbarment.

  In Nancy’s heroic act of self-sacrifice, Abe thought, there must be a lesson—a clue as to what he should do. As he entered his home, still thinking about Nancy, his phone rang.

  “Abe, it’s Nancy. Guess where I’m calling from? I’m home! I’ve just been released, and I want to thank you—and I also want to argue with you and Justin.”

  “I’ll accept the thanks, Nancy. I’m so happy you’re finally out.”

  “The Lord giveth and the Lord taketh away. Justin put me in and Justin got me out. It’s almost biblical.”

  “I guess it’s true what they say about everyone getting a little religion in prison.”

  “Not really, but if you tell them you’re Jewish, they give you kosher food, which is a hell
of a lot better than the regular prison fare. So I got some religion—temporarily. It’s called playing the system.”

  “Owens did the deal?”

  “Yeah, and he’s not that unhappy. He’s looking to serve no more than about eight. He’ll be younger than I am when he gets out. It all worked out okay, I guess. Though I disagree with Justin’s willingness to testify.”

  “Look, you know he plays by the rules. The rules said he could testify, and we both wanted to help you.”

  “I know, but I wouldn’t have done it, even to help Justin. He knows that.”

  “We both know that, Nancy. You are a very different lawyer—and person—than we are. Now let me ask you a question.”

  “Okay, shoot.”

  “What if you knew that Owens was going to kill someone else? Would you still not have ratted him out?”

  “Depends on who he was going to kill. Remember, I’m a revolutionary.”

  “Cut the rhetoric, Nancy. I know that you could never sit back and allow your client to kill an innocent person.”

  “No way. If life has taught me anything, it’s that standing by when you should be doing something always comes back to haunt you. I would definitely do something.”

  “What?”

  “I don’t know. I wouldn’t just play by your rules. Remember, those are the rules that put me behind bars. Got to go now. I haven’t even called my mother yet. Ask Justin to call me when he gets a chance.”

  “Bye.”

  As Abe hung up the phone, the doorbell rang. It was Justin. Without even walking in, he began to speak loudly.

  “Abe, I think I’ve figured out what to do!”

  “Calm down, Justin. And come in. Everyone on Brattle Street can hear you. By the way, Nancy’s out. Call her. She’s pissed at you.”

  Justin caught his breath and sat down in the living room. “That’s great about Nancy, and typical. We’ll patch it up. Don’t worry about her. Now here’s my plan for Campbell. We should start doing exactly what Campbell has been doing—searching through our computer databases for vulnerable women. As soon as we find anyone who fits the profile of Campbell’s victims, we warn them—anonymously, of course—to stay away from Campbell.”

  “Nice try, Justin, only it won’t work,” Abe replied. “Campbell is right. There are too many vulnerable women out there. We have no idea how he picks and chooses among them. We’d be calling hundreds of women. And some of them might call the cops. We would still be blowing the whistle on our client on the basis of lawyer-client confidences.”

  “Well, something has to work, Abe. Unless you can come up with something better, we’re just going to have to go with an imperfect plan,” Justin said. “I couldn’t take reading another news story like the one about Midge Lester. It would drive me into a mental hospital.”

  “Haskel told me to look for an answer where others before me have looked. You’ve searched out the legal ethics materials, have you found anything?” Abe asked.

  “Same old clichés about a lawyer’s duty to his client and to the court. No way out of this one. There is no exception to the obligation of confidentiality in a case like this. The rules provide that if Campbell were to tell us that he was planning a future crime, we could blow the whistle on him. That’s the only out.”

  “The ‘future crimes exception,’” Abe agreed. “But he has to tell us. It’s not good enough that we figure it out from what he told us about the past.”

  “And Campbell hasn’t told us that he’s planning to commit any future crimes,” Justin said. “Maybe we can trick him into telling us about his future plans—and then we can blow the whistle.”

  “No way he’s going to tell us anything. That’s wishful thinking. He vehemently denies everything. And whatever we know, we learned in the course of representing him for a past crime. He told us about his computer MO only after I promised him confidentiality.”

  “Damn it, he really conned you into making that promise. Remember his bullshit speech about how his reputation as a gentleman would be ruined if you ever disclosed that he checks out women on his computer? I think it was all a ploy.”

  “It wouldn’t be the first time.”

  “How so?”

  “Remember Paula Hawkins?”

  “No. It was before my time.”

  “Awful case. It almost destroyed me. Paula was accused of poisoning her much older husband. She shocked me by actually confiding that she did it. I’ll never forget her words: ‘I killed the old man in self-defense. He was boring me to death.’”

  “Did she want to testify?”

  “No. She knew I couldn’t let her.”

  “So what happened?”

  “I defended the case on forensic grounds, and the jury came back with manslaughter.”

  “Not bad.”

  “Not good enough for her. She hired a new lawyer who accused me of ‘ineffective assistance of counsel’ for not letting her testify.”

  “So what happened?”

  “The prosecutor asked me for an affidavit explaining why I had decided not to put her on the stand. He had a hunch she might have confessed to me.”

  “I hope you gave it to him. After all, she was accusing you of screwing up the case. You’re allowed to defend yourself.”

  “No way,” Abe replied. “I don’t help prosecutors keep my former clients in prison—even if I have to fall on the sword.”

  “So what happened?”

  “The judge ruled that I had been ineffective and freed Paula.”

  “Do you think she set you up?”

  “Probably.”

  “What about Campbell?”

  “I don’t know. Maybe. If I could prove that it was a ploy—that it was a fraud from the get-go—I probably could blow the whistle, but there’s no way I can prove it. We’re just guessing.”

  “Sounds like a pretty good guess to me.”

  “It’s not enough. I made the promise. And I’m just not allowed to blow the whistle,” Abe insisted. “No way. If I do, I’m in clear violation of the Code of Professional Responsibility. No wiggle room. None.”

  “I guess you’re like a priest who learned something terrible during confession.”

  “Father Ringel.” Abe smiled. “Somehow I can’t conjure up the image, but it does give me an idea.”

  Chapter Thirty-five

  NEWTON—FRIDAY, AUGUST 11

  In all of Abe’s years in the Boston area, he had never been to this place. It frightened him a little, putting him in mind of the stories his grandfather Zechariah had told him about growing up in Poland amid religiously inspired anti-Semitism. Now he was entering the rectory of the Boston Catholic Archdiocese for an appointment with Father Stanislaw Maklowski, Boston’s leading authority on the Catholic confessional. Somehow Abe had expected dark corridors, with eerie shadows. Instead he saw bright rooms, with colorful portraits of past cardinals bedecked in red.

  Father Maklowski was as bright and accessible as his surroundings. He was sitting on a large comfortable ottoman, smoking a cigar. “I picked up the habit when I worked in Cuba before the revolution,” he explained. “I wish I could offer you a Montecristo, but domestic is the best I can do. Want one?”

  “No thanks, Father,” Abe said.

  “Please, call me Stan. You’re not here for confession, Abe. So we can dispense with titles. What can I tell a famous lawyer like you about our arcane rules regarding the seal of the confessional?”

  “As I told you when I called for the appointment, this is going to have to remain fairly abstract, because it involves a real case that I can’t tell you about. Okay?”

  “So you don’t even trust a priest?” Father Maklowski joked.

  “It’s not that I don’t trust you, Stan. I’m just not allowed to tell you. I hope you understand.”

  “Sure I do. I guess you don’t know I’m a lawyer, too. I don’t practice. I graduated Notre Dame Law School, passed the Illinois bar. I’m also a canon lawyer, but I’ve done the priest thing a
ll my adult life. I keep up with legal ethics and occasionally do a guest lecture at Boston College. So go ahead, throw me your best hypothetical.”

  “Okay, Stan. Here it is. What if a priest learned information during a confession that led him to believe that the penitent was going to kill someone? Could he reveal it to prevent a murder?”

  “Hey, Abe, that’s my favorite hypothetical. I always use it when I’m teaching new priests about the seal.”

  “So what do you tell them?”

  “Under our rules, it’s not even a close question. No way can a priest disclose it.”

  “What can he do?”

  “Plead, cajole, threaten eternal damnation. Anything short of disclosure.”

  “Do priests really stick to that rule?”

  “You bet they do. Look, Abe, in real life almost no one ever gets information about a future crime. Of course, it has happened, and we just don’t tell.”

  “Has any priest, to your knowledge, violated the rule and disclosed?”

  “Yes, just recently. In Italy, of all places. Practically in the shadow of the Vatican.”

  “What happened?”

  “A well-intentioned local priest—I’m told he’s a real good guy, I don’t know him personally—took confession from a penitent who told the priest that he had committed several murders on behalf of the Mafia.”

  “They were past murders, right?”

  “Hold your horses, Abe. I’m getting to that.”

  “Go on.”

  “The priest believed that if he disclosed that the murders—which had been unsolved to that point—were done by the Mafia, this disclosure would prevent future Mafia murders.”

  “So he thought he would be saving lives by blowing the whistle on his penitent.”

  “No, he never blew the whistle on the penitent. That would have gotten him in real trouble.”

  “What did he do?”

  “He just delivered a sermon in his local church in which he disclosed that an unnamed person had confessed to having committed the murders on behalf of the Mafia.”

  “Didn’t people want to know the killer’s name?”