The Advocate's Devil (21 page)

In Haskel’s times a lawyer was respected for his integrity, for his ability to be counsel to the situation, for resolving
conflicts. Sure, winning was important, even back then, only it wasn’t everything. Today, with lawyers advertising their wares
like cereal or dog food, winning had become paramount. Lawyers, like athletes, were judged by their won-and-lost record, by
the amount of media coverage they received, by their latest high-profile victory.

Rudy Giuliani was the perfect example. He had catapulted media coverage of his prosecuting years into the job of New York
City mayor. If Rudy had followed Haskel’s advice, where would he be now?

Yet a part of Abe yearned for the bygone era in which Haskel was able to emerge as the greatest and most respected lawyer
in Boston without ever seeing the inside of a television or radio studio. “I never comment about a legal matter outside the
courtroom,” Haskel would always say in response to media requests. And he always abided by his beliefs.

There was, of course, another side—a better side—to Abe. He had done more than his share of pro bono work for obscure defendants
who had no real shot at winning. And why? Not for glory or fame or money—but just because he believed in the adversarial system
of justice, under which every defendant was entitled to the best defense. He knew that using the media to level the playing
field was part of that system. Yet he also knew that it fed his personal ambitions as well. “The adversarial system,” Haskel
had taught his students, “is the worst possible system of justice—except for all the others.” Haskel understood how easily
the system could be abused by unscrupulous and ambitious lawyers, yet how essential it was to the survival of liberty. He
never had any difficulty striking the appropriate balance. For Abe it was always a struggle.

Even though Abe was embarrassed about his ambitious side, he needed to discuss his present dilemma with Haskel. As usual,
Jerome let him in, and as usual, Haskel was seated at his desk. Rather, he was dozing at his desk. How sorry he looked and
how sad. Abe decided to let the old man snooze while he soaked up the atmosphere of Haskel’s quiet study. His eyes focused
on a black-and-white photo from Haskel’s wedding to Estelle. The bride was slightly taller than the groom, so that she seemed
to dominate her husband. The young Haskel had his hand on her shoulder. He was dressed in a black morning coat, his tallis
peeking out from beneath his jacket.

“I’ll tell you a secret.”

Abe jumped. Haskel had startled him.

“I had to stand on a box for that. I was a head shorter than Estelle, at least. Did you ever notice?”

Abe smiled, shook his head. “How do you feel today?”

“Well enough. Have you come to babble at me or will you let me take part in the dialogue for a change?”

“I don’t babble, Haskel. Sometimes I just don’t want to disturb you.”

“So you talk to yourself and pretend it’s me?”

“Something like that.”

“So talk.”

“Wait a minute. Do you mean all this time you heard me talking to you and just pretended to be, well, you know, out of it?”

“No, when I’m out of it, I’m gone. I don’t know where I go. Sometimes I let you blabber so I can sleep.” Haskel’s impish grin
made him appear for one instant to be the young groom of the faded old photograph.

Abe ran down the entire scenario for Haskel, who up till now had only heard bits and pieces of the Campbell situation. He
did not tell Haskel that he had already decided to remain on the case, because he wanted Haskel to believe he was really seeking
advice on what to do.

Haskel seemed to sense that Abe had reached a decision, but he mistakenly assumed that Abe had decided to abandon Campbell
to protect his own career. He pointed a finger at Abe, almost pedantically, as if he were back in the classroom, admonishing
a student who was about to make a mistake. “Can one abandon a client upon learning unpleasant facts?” Haskel asked. “Is that
not when the client needs you most?” Then, diverging from his usual approach, Haskel gave Abe direct advice. “You cannot leave
the case now, because if you do, the world will perceive a message from your leaving. And it is a message you have a sacred
obligation not to send.

“Moreover,” Haskel continued, “it is always possible that Justin and Rendi may be wrong. The client may yet be innocent in
spite of the unpleasant facts. The great talmudic commentator Rashi wrote that a magistrate who had changed his mind about
a defendant’s innocence must ‘search out every possibility, on the minuscule chance that perhaps his original judgment was
correct and the accused really is innocent.’”

That part was easy for Abe. What bedeviled him was his realization that he was remaining on the case as much for his own self-aggrandizement
as for his ethical obligation to Campbell. He wondered whether he would stay on if the case involved some poor schnook named
Jones who was certain to be convicted rather than a rich superstar named Campbell. Might he not have found an ethical loophole
through which to crawl out? Might he not be more easily convinced by Justin’s and Rendi’s evidence? He thought he knew the
answer. Yet he wasn’t absolutely sure. What he was sure about was that now he had to believe in Campbell’s innocence, and
he wanted to win, badly. Maybe so badly that it was clouding his judgment.

“Leave now, Abraham. I’m tired, and soon I’ll probably be raving. How bad do I look when I slip out of this dimension, can
you tell me?”

“You look like you,” Abe lied.

“When I die, Abraham, will you make sure they bury me with my glasses? Jerome is too flighty, and I’m afraid that by the time
the undertaker gets here, with all the commotion, I’ll be separated from my glasses.”

“Of course I will, Haskel.” Abe turned to go.

“Thank you, Abraham.”

“For what?”

“For not asking me why on earth I would want to be buried in glasses.”

“I think I know.”

“Do you know me so well?”

“I know myself. I would be afraid I’d get bored and not be able to read.”

Abe could hear the music of Haskel’s laughter all the way down the front stoop and into the street.

C
AMBRIDGE
—
T
HURSDAY,
M
AY
25

It was now only ten days before Charlie Odell’s scheduled execution, and this was the day Abe had to tell Duncan, the New
Jersey prosecutor, whether Justin would testify against Nancy Rosen. Abe had tried everything—from the Supreme Court, to the
governor, to
Nightline
. Nothing had worked. The prosecutor had persisted in his claim that Odell was the killer and that Abe, Justin, and Nancy
had contrived a phony story about a fugitive who would never be caught.

“If Nancy Rosen is telling the truth,” Duncan had responded on
Nightline
, “then let her tell us where the real murderer is so we can catch him and hear a confession from his own mouth.”

Nancy remained unwilling to tell the prosecution anything about her client’s whereabouts. The prosecution was prepared, however,
to stop the execution if Justin would testify against Nancy. “At least that would show that you’re not in a conspiracy together,”
Duncan said to Abe. “And if she goes to jail, she’ll tell us where Owens is—eventually.”

It boiled down to Justin and Abe having to choose between sacrificing Nancy’s career or saving Charlie’s life. There were
no other options, and time had run out. If Justin were to testify against Nancy, it would still take a couple of days to work
out the mechanics of halting Odell’s execution. It was now or never. Abe and Justin had to make the tough decision.

“Abe, this is one decision you’ve got to make for me,” Justin said. “I’m just too emotionally involved. I’m too close to Nancy.
I know what I want to do. I just don’t know what I should do.”

“You’ve really got no choice but to testify against Nancy. I know you’re Nancy’s friend. You’re also Charlie Odell’s lawyer.
And Charlie’s innocent life is on the line.” Abe thought of Haskel’s talmudic story about the Roman general who demanded that
one person be handed over for execution or the entire city would perish. “Duncan wants Nancy in particular, and for good reason.
After all, she
is
guilty of alerting her client and encouraging him to escape. Odell, on the other hand, is innocent.”

“I know you’re right, Abe, only that doesn’t make me feel any better about it.”

Abe phoned Duncan. “You will have your pound of flesh,” he said.

“Have Mr. Aldrich in Newark tomorrow, nine
A.M
., in front of the grand jury,” Duncan ordered. “And if Ms. Rosen finds out, the deal is off. He testifies at nine. We have
an indictment by ten. Ms. Rosen is arrested by eleven. With any luck we’ll have Owens in custody by the close of business.”

“The deal is as soon as Justin testifies, Odell walks—whether you find Owens or not.”

“That’s right. As long as you don’t tip Rosen so that she can join Owens.”

“Don’t worry,” Abe said. “You’ve got me over a barrel.”

“That’s exactly where I want you. Tomorrow, nine
A.M
.”

N
EWARK
—
F
RIDAY,
M
AY
26

The morning went as planned. Justin testified that Nancy Rosen had told him she’d given Owens advance warning so that he could
skip town. Nancy was arrested, and Odell’s case was dismissed on the motion of district attorney Kevin Duncan, who announced
that a nationwide manhunt was under way for the real killer.

Late that afternoon Charlie Odell was transferred from death row to the state mental hospital, where he would stay for several
weeks before being released. Abe and Justin were there to meet him. After tearful thank-yous from Odell, Justin was off to
the Newark jail to visit Nancy.

It was ironic, Justin thought, that he had helped save the life of a career criminal—even one who was innocent of
this
crime—by destroying the life of a career do-gooder—even one who may have violated the law
this
once. In the Newark Women’s House of Detention he went through the familiar routine. Nancy was brought to the visitors room,
wearing her blue prison garb. If anyone could look dignified in a convict’s outfit, it was Nancy. Once seated, they picked
up their prison telephones and spoke through the Plexiglas.

“I’m so sorry, Nancy. I had no choice.”

“I know. I knew it would probably end this way when I sent my letter.”

“You’re going to be convicted and probably disbarred—and I’m the government’s star witness. I feel awful.”

“If it makes you feel any better, Justin, I would have testified against you if our situations had been reversed. You did
the right thing.”

“But
you’re
paying the price.”

“Look, Justin, I never thought I’d last this long in the profession. I’m a radical, a revolutionary. I knew that someday I’d
have to choose between my bar certificate and my conscience. And this is a hell of an exit. How many lawyers can have their
professional tombstone read ‘She saved an innocent life’?”

“You realize that you’re going to be sentenced to prison.”

“That’s where a radical belongs. I’m going to be one hell of a jailhouse lawyer.”

“Nancy, I’m not going to rest until we get you out of here and your bar certificate returned.”

“First you’ve got to help Duncan put me in and take it away.”

“Don’t I know it. That’s the last position I ever expected to find myself in: helping an SOB prosecutor put my friend in prison
for doing the right thing. I feel like an absolute shit. You’re a real heroine. I wish we could change places, like Darnay
and Carton in
A Tale of Two Cities
.”

“This is not a tale,” Nancy replied as her eyes filled with tears.

C
AMBRIDGE
—
S
UNDAY,
M
AY
28

This was a busy time for Justin. In addition to his unwelcome role in the Odell case, the young man had been put in charge
of researching the ethical limits of exactly what a lawyer could do in defense of a client who had lied to him. It was a murky
area with only a few clear signposts.

Today, a Sunday, was being devoted to this issue. Abe and Justin were anticipating a full day of work. Emma had been ticked
off, Abe knew, because she had wanted to lasso him into going to the artsy cinema house she loved so much, and he hated putting
her off. He felt guilty. Did all fathers feel this way, he wondered, or just the ones who were bringing up their kids alone?
Oh, well, he’d make it up to her later—somehow.

“If Moses came down from Mount Sinai with a list of commandments for lawyers defending clients they thought were guilty,”
Justin joked, “he wouldn’t have needed two tablets.”

“How so?” Abe asked him.

“There aren’t more than a handful of rules. The problem is every one of them is riddled with exceptions, loopholes, and uncertainty.”

“Give me a for-instance,” Abe said, using a phrase his father had loved. (And to which his mother would always respond, “A
for-instance is not an argument.”)

Justin thought a moment. “A lawyer can’t knowingly mislead the judge. As an officer of the court, he owes the judge an obligation
of candor.”

“Okay. That’s the first commandment. It seems all too clear.”

“It’s not,” Justin replied. “You can certainly plead your client ‘
not
guilty,’ even if you know he
is
guilty.”

“Yeah, but that’s just a formal plea. Nobody is misled by that. A plea of ‘not guilty’ means that you are demanding a trial,
not that you
believe
your client didn’t do it.”

“In other words, it’s a legal fiction, like so much else in the law,” Justin said. “Okay. I’ll give you that one. How about
cross-examining a witness you
know
is telling the truth and trying to make her out to be a liar? Can you do that to Jennifer Dowling in this case?”