The Advocate's Devil (27 page)

“You are still under oath,” Judge Gambi reminded Jennifer as she retook the stand.

Jennifer nodded silently. Abe approached the stand. Joe smiled once more at Ms. Scuba Diver. The trial went on.

“Now, Ms. Dowling, is it not a fact that after you were fired from your job, you went to see a psychologist—”

“Objection, objection. Sidebar,” Puccio yelled.

“In my chambers, now,” Judge Gambi ordered them.

“What is this all about?” the judge asked Abe when they reached her tiny, run-down suite. “You know that we have a psychotherapist-patient
privilege in this state.”

“We also have the Sixth Amendment, Your Honor,” Abe insisted. “And that gives Mr. Campbell the right to confront his accuser
with all relevant evidence that could help him defend himself.”

“Your Honor,” Puccio countered, “Ms. Dowling confided in the psychotherapist on the basis of an explicit promise that what
she said would be confidential. She bared her soul at a time of real emotional need, and it would be unconscionable to have
that all spread out on the public record.”

“Your Honor,” Abe rebutted, “what if she admitted to the psychologist that she had made up the entire story of the alleged
sexual harassment episode in order to cover up her own inadequacies at work?”

“Do you have any evidence of that, Mr. Ringel?” Judge Gambi shot back.

“No. That’s why I want to
question
her about it—to develop evidence.”

“It’s a goddamned fishing expedition,” Puccio objected. “He’s just fishing for dirt. He’s got no basis.”

“Do you have any basis, Mr. Ringel?”

“Yes, I do. My client tells me that Ms. Dowling told him that she had gone to a psychologist after an unpleasant episode several
months earlier. It is fair to infer that she was referring to the events that led up to her firing.”

“Do you have any basis for believing that she told the psychologist anything that would be relevant to your defense?” the
judge pressed.

“We can only find that out by asking either the witness or the psychologist—or by looking at the psychologist’s notes,” Abe
said.

“I’m sure there is nothing relevant there, Your Honor,” Puccio insisted. “It was a series of psychotherapeutic sessions, not
a confessional. Jennifer didn’t confess to her psychologist that she lied, because she didn’t lie.”

“With all due respect, Your Honor, how does Ms. Puccio know? Has she seen the notes? Has she spoken to the psychologist?”

“No, I haven’t, but neither have you.”

“That’s my point,” Abe said triumphantly. “Nobody knows. For all we know, Ms. Dowling may have sought treatment because she
is a pathological liar, and the psychologist will tell us she isn’t cured even now!”

“You’re reaching, Mr. Ringel,” Judge Gambi said.

“Of course I am,” Abe acknowledged. “Because I can’t get the evidence and I have to assume the worst. What if—just what if—I’m
right?”

“How can we find out without breaching the confidentiality of the privilege?” Judge Gambi asked.

“I have a suggestion,” Abe said.

“I’m not surprised. What is it?” the judge asked.

“Why don’t
you
, Your Honor, review the notes
yourself
—if there are any notes. If not, question the psychologist. If you conclude that there is nothing of relevance to my defense,
I will not persist down this line. On the other hand, if you do find that there is relevant material—material that I could
use to impeach Ms. Dowling’s credibility—then it will be turned over to me and I can use it to question her.”

“Well, Ms. Puccio, what do you think?”

“I object strenuously. It’s not that we don’t trust you, Your Honor. What Ms. Dowling confided to her psychologist was not
intended for
anyone
else’s eyes or ears, even a judge’s. They were matters of the utmost privacy.”

“Mr. Ringel?”

“Your Honor, there is no right to that kind of privacy in the text of the Constitution—no psychotherapist-patient privilege.
There is a right to confront witnesses and to subpoena evidence. And I have a right to ask Ms. Dowling about what she told
her psychologist. I also have a right to ask her—and I fully intend to—whether she went to a rape counselor
after
she had sex with my client.”

“Why is that relevant?” the judge asked.

“Because she
claims
that she was raped, and my client denies it. If she didn’t go to a rape counselor, that would corroborate my client’s denial.
And if she did, then I would have a right to know what she told the rape counselor. Again, she may have admitted to the rape
counselor that she made the whole thing up.”

“This is outrageous, Your Honor,” Puccio complained. “If defense attorneys are allowed to get the records of rape counselors,
then no rape victims would ever confide in them. It’s like the lawyer-client privilege. I can’t subpoena Mr. Ringel’s notes
of what Mr. Campbell told him, even if they were to show he admitted raping Ms. Dowling.”

“They would show no such thing.”

“I’m just making an analogy.”

“It’s not analogous,” Abe said, “because the lawyer-client privilege is protected by the Bill of Rights, whereas these other
privileges aren’t.”

“The psychotherapist-patient privilege is protected by a statute in this state,” Judge Gambi said.

“The Bill of Rights trumps a statute, Your Honor.”

“Yes, Mr. Ringel, it does. However, the statute is also important. It protects an important relationship that the state wants
to encourage—between a patient and her psychologist or rape counselor. I will not allow a fishing expedition into these therapeutic
records—certainly not without more than the unsupported inferences you’ve come up with thus far.”

“Well,
can you
, at least, look at the records?”

“No, I won’t. They are confidential—even from me. As a lawyer, Mr. Ringel—and a very good one—you must surely appreciate the
sacrosanct nature of privileged and confidential information. You would raise the roof if anyone suggested that
I
read the notes of your lawyer-client meetings. I understand your desire to fish for some poisonous eels, Mr. Ringel. I’m
not going to let you ask any questions about Ms. Dowling’s psychologist or rape counselor—if she had one. These issues are
out of bounds.”

“With respect, I preserve my objection for appeal—if we have to appeal—and having preserved it, I have no further questions
for Ms. Dowling.”

After the lawyers and the judge returned to the courtroom, Puccio rose for redirect examination. She asked Dowling to explain
why she had not told the police everything. Now a bit calmer, Dowling did a credible job explaining her fear that the police—who
were all men—might scoff at her if she acknowledged that she had initiated the sexual advances.

Abe’s point had been made, and he did not need to re-cross-examine her. He concluded that Jennifer Dowling’s testimony, standing
alone, would probably not be enough to convict Campbell. He had created—manufactured?—a reasonable doubt about her credibility,
even though he suspected that she might have been telling the truth. He had done his job well.

Yet the case was far from over. Although Jennifer’s testimony
by itself
would probably not convict Campbell, if it were to be corroborated by hard scientific evidence, the jury might still find
him guilty beyond a reasonable doubt. That was why the state’s next witness, Dr. Mary Stiller, a gynecologist at Massachusetts
General Hospital, was so crucial. Dr. Stiller had examined Dowling on the night of the alleged rape and had observed and photographed
the intravaginal abrasion. She testified that the abrasion was consistent with forcible sex.

Abe asked only three questions on cross-examination.

“Is it not the fact, Dr. Stiller, that Jennifer Dowling’s abrasion is equally consistent with consensual sex between a man
with a large penis and a woman who has never given birth to a child?”

“Yes, it is.”

“Is it not the fact that your physical examination cannot distinguish between these two possible causes?”

“That is true.”

“Is it not true, therefore, that the abrasion alone cannot prove, to a reasonable medical certainty, that Jennifer Dowling
was raped?”

“That is true.”

“No further questions.”

Cheryl Puccio rose for redirect.

“The abrasion would be consistent
only
with rape, would it not, if the man who caused the abrasion had a
smaller
-than-average-sized penis?”

Abe jumped to his feet. “Objection, objection. I move for a mistrial. How dare Ms. Puccio try to put those words in Dr. Stiller’s
mouth! She knows that there is no evidentiary foundation for her factual premise about the size of the penis at issue here.”

“Into chambers, both of you,” Judge Gambi barked. “Now. I don’t want any of this discussed in front of the jury.”

Abe was steaming as he entered the judge’s chambers. “I’ve never seen such a cheap shot,” he growled at Puccio. “I thought
you were above that.”

Judge Gambi called for order and directed her anger at Puccio. “That
was
a cheap shot, Ms. Puccio. You know there’s no evidence in the record of Mr. Campbell’s size.”

Cheryl Puccio responded calmly, “Your Honor, I have a good faith basis in fact for my question. My next witness will testify
as to the size of Mr. Campbell’s penis.”

“That’s ridiculous,” Abe said. “The prosecution has not even asked to examine the item at issue. How could she possibly know?”

“There’s more than one road to Rome,” Puccio said with a smile.

“Okay, Ms. Puccio,” Judge Gambi directed. “If you’ve got any evidence, I want to know about it now. No more games.”

“I do have the evidence. My next witness is Charlene Green, a young woman who has had sex with Mr. Campbell on several occasions.
She will testify as to the size of his penis.”

“Your Honor, that is entirely inadmissible and prejudicial. I don’t know who this Green woman is. Unless she takes a tape
measure to bed with her, she can’t possibly give evidence as to Campbell’s size.”

“No, she doesn’t use a tape measure, but she has had quite a bit of experience. She is what they call a ‘groupie,’ Your Honor.
She has slept with many basketball players, and she can qualify as something of an expert on penis size. She can’t give you
inches, Your Honor, but she is prepared to swear under oath that in her experience, the defendant in this case is smaller
than average.”

“Your Honor,” Abe interjected, “even if she were an expert—which we dispute—she would only be an expert on basketball players.
And even if my client were smaller than the average basketball player—which we do not concede—that would not necessarily mean
that he was smaller than average for the entire population. This woman has a skewed view of size from sleeping with too many
large basketball players.”

“Okay,” Judge Gambi said. “I’ve heard enough. We’re not going to turn this rape trial into a debate about what is an average-sized
penis. I will not allow my courtroom to be demeaned in that manner. No, Ms. Puccio. No discussions of penis sizes. I will
strike your last question, Ms. Puccio, and tell the jury to disregard it and forget it.”

“That’s not enough, Your Honor,” Abe demanded. “Telling the jury to forget that Ms. Puccio implied that my client has a smaller
than average penis is like telling a group of people not to think about an elephant—or in this case a mouse. The jurors are
going to assume she was telling the truth. I’ve got to be able to combat that impression.”

“What do you propose as a remedy, Mr. Ringel?”

“Let me at least argue to the jury that there is no evidence in the record to support any conclusion other than that the size
of my client’s penis is proportional to the rest of him.”

“It
isn’t
,” Puccio insisted.

“So says some groupie.”

“So say several groupies we interviewed. Unfortunately, none of the others would testify.”

“Enough, enough,” Judge Gambi ruled. “You can both argue anything you please, as long as it is based on evidence that is before
the jury. This Green woman will not be allowed to testify. Now let’s wrap up the trial, please.”

Puccio had no further witnesses. Her case would stand or fall on the testimony of Jennifer Dowling and the corroborative medical
evidence described by Dr. Stiller. Now the big question was whether Campbell would testify. If he did, the entire dynamic
of the trial would change. Everything else would fade into the background as the jurors focused on only one question: Was
Campbell telling the truth or was he lying? If Campbell did not testify, that same question would focus on Jennifer Dowling.
Abe had to make the decision before morning.

“I have this friend in New York who gets a million dollars to try a case,” Abe mused over dinner with Justin and Rendi. “He
tells me that fifty thousand of it is for the time and expenses. The remaining nine hundred and fifty thousand is for his
judgment on whether the defendant should testify or not. That’s how important this decision is.”

“Edward Bennett Williams used to say, ‘Always put the defendant on, unless he has a record as long as Long Island,’” Justin
said. “I read it in his autobiography.”

“Gerry Spense says, ‘Never put a defendant you think may be guilty on the stand,’ because the jury will always see through
him,” Rendi added.

“They’re both wrong,” Abe said. “A lawyer should never say ‘never’ or ‘always.’ Every case is different. There are no universal
rules. That’s why I’m less certain about your theories of Campbell’s guilt. I’m still not sure whether he did it. And I’m
still operating on the assumption that he didn’t. You’ve got to sit and listen to the government’s case and then evaluate
your client’s individual strengths and weaknesses.”

“Look at those Menendez kids,” Rendi interjected. “Guilty as could be, and great actors. They put it over on enough of the
jurors to get a deadlock in the first trial.”

“So what’s the right approach here?” Justin asked.

“I don’t know yet. I’m still thinking.”