The Advocate's Devil (29 page)

“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.”

“Well, if you don’t do it, Ms. Puccio, his argument will ring hollow. No harm, no foul. Overruled. Please wrap it up, Mr.
Ringel.”

“Thank you, Your Honor. Back to my request. As Ms. Puccio is making her final argument, I would ask each of you to think of
what I would probably say if I had a chance to reply to her. When you hear her make an argument, try to listen to it from
my perspective. In that way, you will help level the playing field. In that way, the trial will become a search for truth,
rather than a game in which the home team gets the advantage of batting last.

“Let me give you an example. If Ms. Puccio were to argue that Ms. Dowling told the truth by admitting that she had inserted
her diaphragm, you should reply—because you know I would reply if I had the opportunity—that she had no choice but to tell
the truth about
that
, since the rape kit showed the presence of spermicide. That is the sort of thing I would like you to do for me—and for justice.
Play the role of defense lawyer during the prosecutor’s rebuttal. In that way, no arguments will remain unanswered. I thank
you for your attention, and I urge you to think carefully about your verdict. If you do, I am confident that it will be not
guilty.”

Abe sat down, satisfied that he had put forth the best possible case for Campbell without crossing into any ethical minefields.
At this moment he even believed his client was innocent. Were the jury to vote now, he was convinced it would acquit. Unfortunately,
the jury didn’t vote after the defendant’s closing argument. It voted after the prosecutor’s rebuttal and the judge’s instructions.
Either or both of these could change the dynamic of the deliberations.

Cheryl Puccio was known for her rebuttal summations, which were the true test of a great prosecutor. A lawyer could plan the
main part of her closing arguments. The rebuttal summation—the last word—could rarely be planned. It had to pick up on the
strongest points of the defense lawyer’s summation and turn them against the defendant and in favor of the prosecution. Puccio
was a master of this art form. Now it was her case to win.

She picked up her notepad and walked to the jury box, pausing just long enough to look each of the jurors in the eye, as if
to say to them “This isn’t a game. Don’t be hoodwinked by Ringel’s clever arguments. Get back to basics. This man Campbell
is a rapist.” That’s what her eyes said. Her words were different, more subtle.

“Ladies and gentlemen, Mr. Ringel is right. There are some I-don’t-knows and maybes in this case. This is not
L.A. Law
or Perry Mason. This is real life, where no announcer tells you before the last commercial break what actually happened.
There are always uncertainties in real-life cases. That is why the judge will instruct you that proof beyond a reasonable
doubt is not proof to an absolute certainty. Fanciful doubts, such as those which Mr. Ringel has tried to plant in your minds,
are not enough for acquittal. For you to acquit this man, your doubts must be
reasonable
. They must be based on reason, not whim, not gut feelings, not sympathy, but rather on facts, evidence, reality.

“With that in mind, let’s return to the evidence in this case. The central question is, Do you believe Jennifer Dowling? If
you do, then you can have no reasonable doubt about the defendant’s guilt. There is no wiggle room there. If
she
is telling the truth, then
he
is guilty beyond a reasonable doubt. This is not a case where reasonable people could have different views about whether
Jennifer Dowling did or did not consent. If you believe her, as you should, she clearly withdrew her prior consent in unequivocal
language: ‘No,’ ‘Stop.’ Mr. Campbell could not have misunderstood that withdrawal of consent. Nor is he entitled—as a matter
of law—to believe that ‘stop’ means ‘go’ and ‘no’ means ‘yes.’ If you believe Jennifer Dowling, then you must convict Joe
Campbell.

“Now, let me tell you why you must believe that Jennifer Dowling is telling the truth. If she were lying—if she were trying
to frame an innocent man—why would she admit that it was she who asked for sex? She could easily have said it was Campbell
who asked. After all, there were no other witnesses. Second, she admitted that she made the first sexual move with her hands.
She could easily have lied about that—if she were a liar. Again, no other witnesses to contradict her. Finally, she admitted
that she took off her undergarments.”

At this point Campbell looked directly at Ms. Scuba Diver, who nodded in recognition, as if to say “Of course she admitted
all that. Once the presence of spermicide was shown, Dowling had little option but to acknowledge that she had initially consented
to sex.”

Several of the other jurors, having been asked by Abe to act as his surrogate, also seemed to understand that Puccio was overstating
her case. Several furrowed brows and questioning looks made Abe very hopeful about what was going on.

Puccio resumed her closing argument, unaware of the interplay between Campbell and Ms. Scuba Diver but a bit concerned about
the furrowed brows. Quickly she improvised a response.

“To be sure, there was some physical evidence that Jennifer Dowling had consented to sex—the spermicide, for example. Remember
there was no hard evidence of
who
initiated the sex. And yet she told the truth—a truth that certainly doesn’t help her cause. She trusts you, ladies and gentlemen
of the jury, to believe that she changed her mind, as she had every right to do. She trusts you not to hold the truth against
her. And you should not.

“The medical evidence is merely corroborative of Jennifer Dowling’s testimony. It helps you decide whether or not to believe
her. Our case stands squarely on her credibility. If you conclude she is telling the truth, you should convict. If you conclude
she is lying, you should acquit. It really is as simple as that.

“Before you retire to deliberate, I ask you to do one thing. Please. Look Jennifer Dowling straight in the eye and ask yourself:
Is she lying?’”

When Cheryl Puccio issued this solemn challenge to the jury, Abe could not bring himself to accept it. He could not look Jennifer
Dowling in the eye. He hoped the jurors were not looking at
him
. Out of the corner of his eye, he saw that the other jurors had accepted Puccio’s clever challenge. They were looking directly
at Jennifer Dowling. All except for Julianne Barrow. She was looking Joe Campbell in the eye. Joe was not glancing back at
her. He was looking Jennifer Dowling straight in the eye and shaking his head, as if to accuse her of lying. What a piece
of work this guy is, Abe thought. He really took to heart the story about the corpse walking through the door.

Again Cheryl Puccio missed this byplay. It was becoming apparent to Abe that Joe played to the jury only when Puccio was focused
on examining witnesses and Judge Gambi’s attention was elsewhere. Now the prosecutor finished her rebuttal summation:

“Ladies and gentlemen of the jury, I ask you not to brand Jennifer Dowling a liar. I ask you to believe her. And if you do,
you have no choice but to convict Joe Campbell of rape. Thank you.

It was vintage Puccio. Unemotional, factual, and compelling. She had used Abe’s arguments in her favor. She sat down, and
every eye in the courtroom turned to the jurors’ faces in an effort to read their minds. Had she gotten through to them? Had
the dynamic shifted away from Abe and Campbell and in her favor?

A few apparent nods of agreement seemed to suggest that Puccio had gotten through to some of the jurors. That was to be expected.
So were the poker faces on several other jurors. There was no way of counting noses from the few ambiguous signs. And in any
event, minds could change even after all the arguments. The judge’s instructions changed minds. The discussion in the jury
room changed minds. A restless night of sleep sometimes changed a mind. Even with all the scientific breakthroughs in jury
evaluation, the dynamics of a jury decision were still largely in the realm of speculation. Abe knew enough never to be cocky
in a jury case.