The Advocate's Devil (30 page)

At dinner that night, Henry Pullman gave his report on the shadow jurors. “The jurors liked Puccio’s argument that Dowling
didn’t have to tell the truth about who initiated the sex. Puccio has managed to turn that negative into a positive.”

“Anything else?” Abe asked.

“Yeah. There are still a couple of shadows who tell me in private that they can’t vote to convict a guy for rape if the woman
was asking for it, even if she changed her mind.”

“That’s good for us, right?” Justin asked.

“Wrong. That’s what they’re willing to say in private—to an old man like me. Most likely they won’t be willing to say that
to their fellow jurors. They may be afraid to vote for acquittal on that basis and be thought of as sexist, or worse.”

“So it’s bad?”

“No, not necessarily. It’s a wild card.”

“Bottom line, Henry?” Abe inquired.

“Bottom line is that it doesn’t look like a unanimous acquittal to my shadows. But then again, my shadows have not had the
dubious benefit of being made love to by the eyes of the great White Knight. Who knows!”

“Nor can they look into the eyes of Jennifer Dowling,” Rendi added.

“Is there anything I can ask the judge for in her instructions that could help us with the issues your shadows came up with?”
Abe asked.

Pullman thought for a moment, consulted his notes, and replied, “Yes, there is.”

“What?”

“My jurors were very impressed with Puccio’s argument that this isn’t a case about reasonable doubt. It’s a case about whether
or not you believe Jennifer. They like that because it empowers them. They’re used to deciding whether someone is telling
the truth or lying. They think they’re good at that. It requires basic common sense. They hate this reasonable doubt stuff.
They don’t know how to think that way—about probabilities and stuff like that.”

“So what can the judge tell them that will help us?”

“You’re asking the wrong guy
that
question,” Pullman said. “Abe, you’re our expert on jury instructions.”

“I’ve got to think about that one, Henry. Thanks for the info. I’ll try to have an answer for that problem by morning.”

“Any proposed changes in my instructions, Counsel, before I deliver them?”

“Yes, Your Honor. I have two,” Abe responded. “First, I would respectfully request the court to give a specific instruction
requiring the jury to find
beyond a reasonable doubt
that Dowling is telling the truth.”

“No way, Your Honor,” Puccio responded quickly. “Our burden is not to prove the truth of any particular witness’s testimony
beyond a reasonable doubt. Our case as a whole must meet that burden—not each component of it.”

“How can your whole case be proved beyond a reasonable doubt, unless your
critical
witness is believed beyond a reasonable doubt? You yourself argued yesterday that your whole case turns on whether the jury
believes Jennifer is telling the truth.”

“Good point, Mr. Ringel,” noted Judge Gambi. “How do you respond, Ms. Puccio?”

“Let me give you an example,” she replied. “Assume that the jurors believe Jennifer’s uncorroborated testimony, but not beyond
a reasonable doubt. Then they hear this corroboration, which they also believe, but not beyond a reasonable doubt. In that
case, neither the testimony
standing alone
, nor the corroboration
standing alone
, would satisfy the standard of proof beyond a reasonable doubt. Yet
both together
—they can add up to proof beyond a reasonable doubt.”

“
Better
point,” Judge Gambi acknowledged. “Now it’s your turn, Mr. Ringel.” The judge was obviously enjoying this exchange between
two very able lawyers. Abe was not, because he knew he had been bested by Puccio. He tried to respond to her compelling point,
without any real hope of success.

“Ms. Puccio is trying to argue that two weak pieces of evidence, neither of which alone satisfies the standard of proof beyond
a reasonable doubt, can be slapped together, and somehow the heat of the collision will magically produce a result that is
greater than the sum of its parts. That defies both the laws of physics and the laws of logic.”

“Nice try, Mr. Ringel. Ms. Puccio wins this round. I will not require the jury to conclude beyond a reasonable doubt that
Ms. Dowling’s testimony, standing alone, establishes guilt, because in this case her testimony does not stand alone. It is
the jury’s decision whether the medical evidence provides corroboration.”

“My next request, Your Honor, is that you not give the standard instruction in which proof beyond a reasonable doubt is defined
as that ‘level of proof on which you would act in the most important decisions of your life.’”

“What’s wrong with that instruction, Mr. Ringel? I give it all the time and nobody ever objects to it.”

“What’s wrong, Your Honor, is that rational people always make important decisions on the basis of a mere preponderance of
the evidence, as well they should. For example, if there are two medications for a particular heart condition, and one is
slightly better than the other—say one has a fifty-five percent cure rate and the other a forty-five percent cure rate—and
both have equivalent risks and side effects, only a fool would go with the forty-five percent when he could have the fifty-five
percent.”

“What does that have to do with reasonable doubt?”

“That’s exactly my point. It has nothing to do with reasonable doubt.”

“Now you really are confusing me, Mr. Ringel.”

“Let me try to explain.”

“Go ahead. It’s your motion.”

“Okay, Your Honor. In a criminal case, the jury is
supposed
to go with the forty-five percent,
not
the fifty-five percent. If the jury concludes that it is fifty-five percent likely that the defendant is guilty and only
forty-five percent likely that he is innocent, they should go with the forty-five percent and acquit, not with the fifty-five
percent. Even if it’s seventy-five percent to twenty-five percent, the juror should go with the twenty-five percent for innocence.
That’s what it means to say ‘better ten guilty go free than one innocent be convicted.’ And that type of thinking is counterintuitive
for most jurors, because it is
not
the way they decide other important issues in their lives. So you should explain the difference to them.”

“What
would
you have me say?”

“With respect, Your Honor, I would like you to say exactly the opposite from what you usually say.”

“You certainly know how to ask for the moon, Mr. Ringel. Be more specific.”

“I would respectfully ask Your Honor to instruct the jury that they should
not
make their decision in this case the same way that they make decisions about important issues in their own lives. You should
tell them that a decision in a criminal case is
very
different from other decisions, because we are much more afraid of an erroneous guilty verdict than of an erroneous not guilty
verdict.”

“Go on, Mr. Ringel.”

“Therefore, even if, for purposes of deciding whether to hire him as a baby-sitter or allow him to date your daughter, you
would conclude that Mr. Campbell
probably
did rape Ms. Dowling, you should not conclude that he did it for purposes of deciding this criminal case,
unless
you believe that the evidence that he did it is so strong that it leaves you with absolutely no reasonable doubt.”

“Well, Ms. Puccio,” Judge Gambi said, turning to the prosecutor, “Mr. Ringel makes a convincing argument that I’ve been giving
the wrong instruction for ten years. Can you help me convince myself that I’ve been right all these years?”

“I’ll try, Your Honor. People understand that important decisions aren’t always made on a mere preponderance of the evidence.
You don’t have open-heart surgery unless you’ve resolved all your reasonable doubts. The traditional instruction reflects
that common sense, and you’ve been right to give it all these years.”

“I’m flattered by your support, Ms. Puccio, but I think that Mr. Ringel is correct. I’m not going to give my usual instruction.
Nor will I give Mr. Ringel’s understandably pro-defendant instruction. What I will say is that criminal trials are different
and that the jury should not convict merely on the basis of the usual level of certainty it requires in other decisions, but
rather on the basis of proof beyond a reasonable doubt. I’ll leave the rest to their good old-fashioned common sense.”

“That’s agreeable to me, Your Honor,” Abe said.

“I don’t agree, Your Honor,” Ms. Puccio said.

“Ms. Puccio, I’ve made up my mind.”

Judge Gambi then ordered the marshal to lock all the doors, requested quiet in the courtroom, and solemnly read her instructions.
It always bothered Abe how much more seriously judges took their own instructions than they did the arguments of the lawyers.
Spectators were free to walk in and out during the lawyers’ arguments. When the judge instructed, it was like a papal mass.

After reviewing the elements of the crime of rape and the rules of evidence, Judge Gambi gave the “reasonable doubt” instructions
she had promised. The jurors seemed to pay particular attention to that part of the judge’s presentation.

Then Judge Gambi issued her final words to the jury: “Your first task is to select a foreperson who will preside. He or she
has no greater or lesser influence than anyone else. You should listen to others and maintain an open mind until the final
vote. In the end, you must decide whether or not you believe that the defendant has been proven guilty beyond a reasonable
doubt. If you so conclude, you should vote to convict, without regard to your feelings toward the defendant, the complainant,
or anyone else. If you conclude that there is a reasonable doubt, you should vote to acquit, without regard to your feelings
toward the defendant, the complainant, or anyone else. Now, go and do justice.”

Abe was satisfied with the instructions. It was fair, down the middle. Henry Pullman soon confirmed his assessment. “She didn’t
change a single vote. It’s still the same. They’re all over the lot.”

As the jurors left the courtroom to deliberate, none gave any sign as to which way they were leaning—no smiles, no glances
at the defendant, no clue at all. Even Ms. Scuba Diver averted her eyes from the direction of the defense table and walked
straight out.

Now it was time to play the lawyer’s favorite guessing game: When would they return? Would a short deliberation mean an acquittal
or a conviction? Would a long deliberation signal a hung jury?

“I sure hope it’s not a hung jury,” Campbell said with a sigh. “That would be terrible for my endorsements. And we would have
to go through the whole thing again.”

“A hung jury would be a hell of a lot better than a conviction,” Justin replied.

“There won’t be a conviction,” Campbell added quickly. “I’m not worried about that. Ms. Scuba Diver would never allow that.”

“How can you be so sure?” Abe asked.

“Don’t worry, Abe. I’m not a Mafia defendant. I didn’t bribe any jurors. I just know women. That’s my expertise, like yours
is knowing judges.”

“I don’t try to seduce judges.”

“We each have our way.”

“There’s no legitimate way you can be as certain as you sound,” Justin insisted.

Abe interjected: “Let’s not open up any cans of worms, Justin. Your curiosity will just have to remain unabated.”

“Hey, c’mon, guys,” Campbell interrupted. “I don’t want you to think I’m some kind of corrupter of jurors or some kind of
nut psychic. So I’ll tell you my deep, dark secret. It’s very simple. When I play basketball, especially on the road, I often
pick out an attractive, unaccompanied woman in the stands and make eye contact with her—while I’m on the court and when I’m
on the bench. I’ve developed this ability to make love with my eyes. And I know when it’s working. If it’s working, I arrange
to have one of the ball boys deliver a note to her in the stands, inviting her for a drink. It almost always works. I know
what I’m doing.”

“That’s a drink. This is a verdict. Could be different,” Rendi said.

“We’ll see who is right,” Campbell said. “When this case is over, I’ll meet Ms. Scuba Diver for a drink and ask her. That’s
how confident I am.”

A stunned silence greeted Campbell’s display of bravado.

Five o’clock arrived with no verdict. The jury was sent to the Howard Johnson’s Motor Lodge for dinner and a good night’s
sleep. Deliberations would resume at nine A.M. the next morning.

There was no more frustrating time for a lawyer than when the jury was deliberating. There was absolutely nothing Abe could
do to affect the outcome of the Campbell case. Yet he was so focused on the case that he couldn’t possibly turn his attention
to other matters.

Like most lawyers, Abe hated not to be in control—not even to know what was going on. Part of him wanted to get away from
the entire case—to be with Emma, to talk about her schoolwork, her plans for Barnard, her boyfriend, her life. This was her
last year at home. He would miss her, despite his periodic trips to the Big Apple. After she left home, their relationship
would never be the same.

Abe had arranged a dinner with Campbell, Justin, Rendi, and Pullman. There was really nothing to talk about except speculation
concerning the outcome of the case. Why not invite Emma, Abe thought. This wouldn’t be a lawyer-client confidential meeting.
It was more of an obligatory social event. He could sit next to Emma and talk to her, while the others gossiped about Judge
Gambi, Cheryl Puccio, the jurors, and Jennifer Dowling. He called her.

Emma was thrilled with the invitation. “Thank you for finally treating me as a grownup, Daddy, and for finally recognizing
that I
can
be trusted with secrets.”

“Nice try, Emma. Rules are rules. You can’t be trusted with
legal
secrets yet. No one outside the legal team can be. This is a social dinner. No secrets tonight.”