The Advocate's Devil (24 page)

“So have you, Abe. We’ve both become full-fledged capitalists, and we both feel a bit guilty. Just not enough to keep us from
making a good living.”

“What else can you tell us? What do your polls show? Do people believe Campbell or Dowling?”

“It depends on who you ask. It’s all in the demographics. Young women believe Dowling. Old women don’t. The most important
poll result we’ve got is that almost everyone—even those who believe Dowling—seem to
like
Campbell. People like him, even if they think he may be guilty.”

“That means we should put him on the witness stand,” Justin said to Abe.

Before Abe had a chance to respond, Pullman interjected. “Not so fast, young man. Maybe it means exactly the opposite.”

“How so?”

“People seem to like Campbell from
afar
. Without having heard him testify. Maybe my poll results mean that he
doesn’t
have to testify—that his favorability rating will be
better
if they don’t hear him try to wiggle out of this.”

“Interesting point,” Abe said. “We’ll have to wait and see. That’s going to be
my
call.”

“What about a shadow? Do you want a shadow? And if so, how many? Four? Six? Twelve?”

“What the heck is a shadow?” Justin asked.

“A shadow jury,” Pullman explained. “After the real jurors are picked, I try to find a group of people—twelve is best—who
are just like the real jurors. Same age, sex, background, race, politics, attitudes. I hire them to sit in the courtroom and
listen to everything the jury hears. When the jury leaves, they leave. I call them the shadow jury.”

“What good do they do?”

“Every day after court is over, I interview each of them—separately. I try to find out what impact the testimony and arguments
had on them: who they believed, what arguments were persuasive, who they liked, who they hated, what they don’t understand.
Then I tell Abe what he has to do to improve his case. It’s all based on the assumption that the shadow jurors are similar
to the real ones and are evaluating the evidence and arguments the same way.”

“Quite an assumption,” Rendi said. “It could be all wrong.”

“It could be, but it’s the best we can do. Much better than
lawyers
making these judgments alone. My research shows that lawyers, even the best ones, are often out of touch with ordinary jurors.”

“Isn’t the shadow idea similar to what the prosecutors did in the O. J. Simpson case?” Justin asked.

“What do you mean?”

“They put together some kind of a mock jury in Phoenix to try out their case.”

“What happened?”

“They acquitted him.”

“I bet the prosecutors changed a few things after that,” Rendi said.

Pullman is certainly right about lawyers needing help,” Abe added. “When I first began to practice, I couldn’t afford a shadow,
so I had my mother, Sylvia, come to court.”

“How did she do?” Justin asked.

“Great—when the jury consisted of older women. Not so great when we drew young men.”

“It’s the same principle,” Pullman said.

Abe continued, “Even Haskel, who was certainly never a man of the people, used to tell his students that on the weekend before
a jury trial, a lawyer should go to the movies, watch television, and ride on the subway, instead of working in the library.
‘Do what the jurors will be doing,’ he advised. ‘Read what the jurors will be reading. Watch what they will be watching. Get
inside their heads.’”

“It’s all so damn manipulative,” Rendi said. “I bet Haskel never used a jury expert.”

“Wrong again, my dear,” Pullman said with a smile. “Haskel hates what I do. Still, he did use me—most reluctantly. How do
you think I got to meet Abe?”

“He did hate to use you,” Abe confirmed. “He wouldn’t allow his personal feelings to hurt a client.”

“And he even listened to me,” Pullman said proudly. “I’ll never forget when he was appointed to be one of the defense lawyers
in the antiwar conspiracy prosecution against Dr. Spock, the baby doctor. It was one of my first cases. I was a rookie. There
was a juror named Charles White. Gentile name. Haskel had learned from a local rabbi that he was Jewish. He wanted him on
the jury because he felt that a Jew would be more sympathetic to draft evasion, since so many Jews had come to this country
to avoid serving in the Czar’s army. I disagreed. ‘A Jew who changed his name to Charles White wants to prove he’s more American
than Uncle Sam,’ I told him. He will be utterly unsympathetic. He listened to me, and he struck him from the jury. Later Charles
White wrote to Haskel, criticizing him for defending draft dodgers. I was right.”

“Are you always right?” Justin asked.

“I wish. The frustrating part of my job is that I rarely find out if I was right. Even when my side wins, that doesn’t prove
I was right about a particular juror. I know I’ve been wrong a few times, and I try to learn from my mistakes.”

“Try not to make too many in this case, please,” Abe implored him. “I’ve really got to win this one.”

“That’s a funny way to put it. You didn’t say I shouldn’t make mistakes because
Campbell
is innocent, but because
you
have to win. That’s not like you, Abe. Are you trying to tell me something?”

“No, Henry, I’m not trying to tell you anything. Just get me the best damn jurors you can. The twelve real ones, and the twelve
shadows.”

“It’s only the real ones who count,” Rendi noted with her usual cynicism.

B
OSTON
—
M
ONDAY,
J
UNE
19

The opening day of a high-visibility criminal trial was generally a media circus, with TV cameramen pushing and shoving each
other to get into position to capture the video images that would make it onto the evening news. Lawyers likewise competed
for the perfect sound bite. Walking confidently yet humbly through the camera gauntlet, and expressing the appropriate sentiments
could be a daunting experience even for the most seasoned advocate. This day was no different as Abe and his legal team made
their way into the nineteenth-century courthouse in which the case of
Commonwealth
v.
Campbell
would be conducted.

“Ask yourself one simple question,” Abe said as a dozen microphones were shoved in his face. “Why would a handsome basketball
star who had women running after him
need
to rape?” The question hung in the air as the lawyers and spectators entered the large baroque courtroom over which the Honorable
Marie Gambi presided.

The trial had been set to begin as soon as the playoffs concluded. The Knicks’ surprising loss in the Eastern Conference finals
had given Campbell a few days’ respite between courtside and courtroom. He had used the days to rebound from media speculation
about the impact the rape accusation had had on his playoff performance—which had been good, but not great. Now he was determined
to do whatever he had to do. This was not a game. If he lost, there would be no next season.

“Let’s get on with jury selection,” Judge Gambi said, banging her gavel.

Marie Gambi—“everybody’s favorite aunt,” as she had been described in a recent newspaper article—was universally regarded
as the epitome of fairness. A former nun, she had married a wealthy computer executive after leaving the convent and then
entered law school at the age of forty. After graduation she had become a well-respected prosecutor and then a judge. She
was the only Massachusetts judge who refused to wear a robe in court. “Makes me look and feel too much like a nun,” she’d
explained.

Today, like most days, Judge Gambi was wearing a blue jacket, white blouse, and gray skirt. Even now, in her late fifties
and twenty years after forsaking the veil, Abe thought she still looked like a nun. She had also retained some old-fashioned
attitudes, such as not allowing her courtroom trials to be televised—a policy that had not endeared her to the media. Yet
she didn’t seem to care. “Trials are serious events. Nobody is going to sell dog food during recesses in my trials,” she had
said.

Abe quickly used up his six peremptory challenges—challenges for which a lawyer did not have to give a reason—after picking
only eight of the jurors. So he was pretty much stuck with the remaining four. Abe could smell cigarette smoke on the wool
of Pullman’s jacket. It wasn’t often that he felt claustrophobic in a courtroom, but this jury selection was beginning to
drag on: because of all the pretrial publicity, Judge Gambi had taken the unusual step of allowing the lawyers to question
the jurors. Campbell was quiet and had given Abe no trouble, thank God, because right now the luck of the draw was working
against them, and Abe had all the trouble he could handle—especially when the clerk called the woman who quickly became known
as “Pullman’s nightmare” and then later “Ms. Scuba Diver.”

Ms. Julianne Barrow was twenty-nine, a Wellesley graduate who worked as an investment banker in downtown Boston. She was tall,
well dressed, and beautiful, with long blond hair cascading over her dark blue designer jacket. She exuded an air of comfortable
confidence, just the kind of woman to stay away from. “That’s your foreperson,” Pullman warned. “Do everything you can to
get rid of her.”

While he proceeded to ask questions of Julianne Barrow, it became clear to Abe that he could uncover no disqualifying features
in her background or opinions. No one close to her had ever been raped or accused of rape. She believed in date rape, but
also believed that not all women always tell the truth. So how could he get rid of her?

There was one possible chink in her armor. “Have you ever been married?” Abe knew the answer since Rendi’s hasty investigation
had discovered she was divorced.

“I think you must know the answer to that, Mr. Ringel. You’ve investigated me, I’m sure.”

She was smart, and not one to take anything lying down. Was that good or bad for them? Abe wondered.

“You’re right, Ms. Barrow,” he said. “I know you are divorced. How recently?” He knew exactly how recently, but he had to
say something.

“Six months.”

“That’s recent. I’m sure you’re still smarting, am I right?”

“You mean am I still a man hater?” She smiled.

Abe couldn’t help smiling back. She was a charmer, this one, pretty smooth. He wanted desperately to get rid of her. This
woman might just be the one juror who saw through his client.

“I mean, are you distracted at all by those recent personal events?” he asked her. “You must have lost a lot of personal time
and might feel pressured if the trial goes on for a while.”

“Don’t worry about my personal life, Mr. Ringel. I have the right and privilege to serve on a jury, without regard to my marital
status, isn’t that so?”

That was an odd answer, Abe thought. Most busy people tried to stay away from jury duty. It certainly couldn’t have been the
way she wanted to spend a few weeks, unless she was filling up time. Abe had seen jurors like this before—lonely, even desperate
people with little personal adventure. That could be trouble. Jurors like that tended to draw things out and drag the process
on. Yet this did not seem to capture her essence. After all, she had a good job. Maybe she wanted to serve on the jury because
she believed in the system? Or because she had an ax to grind?

Ostensibly Abe changed the subject. “Do you have hobbies, Ms. Barrow?”

“I scuba dive, I rock climb.”

“A regular daredevil, aren’t you?”

“I stay busy.”

Abe tried to get the judge to strike Julianne Barrow “for cause.” However, he couldn’t come up with a reason that persuaded
Judge Gambi. “You should have saved more of your peremptories,” she said.

For a moment Abe thought he heard a scolding in the judge’s voice. When he walked away from the bench toward the defense table,
he took a deep breath and realized it was just the critical voice in his head scolding him.

He
should
have saved more of his peremptories. It was always a gamble. In his last case he had saved two of his peremptories till the
very end and then never used them, because the last few jurors had been okay. Then he’d wished he had used them on some of
the earlier jurors. He had lost and decided not to waste his valuable peremptories in future cases by saving them. Now he
was sorry.

Abe apologized to Campbell for his blunder. Campbell seemed unconcerned.

“Let me handle Ms. Scuba Diver,” Campbell sent a flirtatious smile in her direction.

The jury selection dragged on. Three other jurors he would have liked to challenge got on the jury. They weren’t nightmares;
they were just not that good. One was a Hispanic man in his thirties who was a construction worker on the new tunnel being
built to the airport. He was married with two daughters. Two others were white, male civil servants in their fifties of nondescript
background. The last regular juror was a black woman in her thirties who was a single mother of two boys and a part-time nurse.

Pullman wanted Abe to try to strike the black woman for cause. He whispered to Abe: “My research shows that black women are
murder on men charged with rape, regardless of the race of the defendant or the complaining witness.”

“I’ve got no cause to strike her,” Abe said in a low voice. “And in any event, I have a good feeling about her.”

“Your feelings are diddley compared with my research,” Pullman insisted.

“Maybe so. But we’re stuck with her, so we just have to make the best of it.”

Abe was basically satisfied with nine of the twelve jurors, plus the two alternates. Four of the regular jurors had come right
out of Pullman’s central casting: gray-haired grandmas who could have come straight from a mah-jongg or canasta game at the
Fontainebleau Hotel in Miami Beach. One was Irish from Somerville; one was Italian from North Cambridge; one was Jewish from
Lexington; and one was Armenian from Watertown.

Then there was a black man, a plumber in his early forties from Winchester. He was married with no children. The other four
“good” jurors were working-class white men—two Italians, one WASP, and one Greek.