Authors: Alan M. Dershowitz
“It’s like the wrestler,” Abe explained to Justin and Rendi over a quick lunch at recess. Campbell had declined his offer
to join them, preferring to work out in a nearby gym.
Rendi groaned, and Abe knew he must have bored her with the wrestler story ten thousand times. But it was new to Justin.
“Okay,” Justin said, knowing he would regret it, “tell me about the wrestler.”
“It seems this wrestler was accused of biting off the ear of another wrestler during a match. The defendant wrestler’s lawyer
was cross-examining the only eyewitness—the referee. Reaching the apex of his examination, he asked, ‘You didn’t actually
see my client bite off his opponent’s ear, did you?’ The witness responded, ‘No, I didn’t actually see him bite it off.’ Instead
of stopping, the lawyer asked one more question: ‘So how do you
that he actually bit it off?’ Without hesitation, the witness replied, ‘Because I saw him spit it out!’”
Puccio continued her examination of Dowling after the lunch break.
“After Campbell asked you for ‘as good a blow job as you gave Nick Armstrong,’ what did you say?”
“I told him to stop. I yelled ‘Stop!’ The more I yelled, the more persistent Campbell became, until he forced me to submit.
He raped me. He hurt me. He knew I wanted him to stop, but he deliberately raped me, and he enjoyed it.”
“Are you absolutely certain,” Puccio asked, “that you communicated your lack of consent to him?”
Jennifer Dowling looked directly at Campbell as she answered: “I have never been more certain of anything. He knew I wanted
him to stop. Yet that seemed to turn him on even more. He wanted to rape me, and he did.”
Campbell locked eyes with Jennifer Dowling. He shook his head almost imperceptibly. Then he turned ever so slightly to make
fleeting contact with Ms. Scuba Diver. Now her look of disbelief seemed to be directed at Jennifer Dowling.
“Your witness, Mr. Ringel,” Cheryl Puccio said.
This was the ethical lawyer’s nightmare: cross-examining a rape victim who he suspected was telling the truth. It was not
as bad as in the old days, when defense lawyers could ask about the complaining witness’s entire sexual history and when some
juries wouldn’t convict unless the victim had been a virgin. In those days defense lawyers had no choice but to do the “sleaze
thing,” as Emma called it. Thank God for the rape shield laws, Abe thought. At least we don’t have to do
anymore. Nonetheless, the defense lawyer still had to try to prove the complaining witness was a liar—regardless of what
he personally believed.
As Abe approached Jennifer Dowling and introduced himself to her, he tried to forget about his ethical qualms. She is the
enemy, he repeated to himself. It is my job to discredit her. She is all that stands between Campbell’s conviction and acquittal.
I’ve got to get the jury to disbelieve her.
Abe always began his cross-examination by going for the jugular. None of this “work your way up to the killer question” stuff
for him. There may be a role for foreplay in sex, but not in cross-examinations, he thought. If there’s a weakness, exploit
it during the first minute. Get the jury on your side right away, and then they’ll be rooting for you during all the rest
of the cross-examination.
“Ms. Dowling, you admitted on direct examination that you have no idea how my client, Joe Campbell, could have found out about
your little problem at work. Is that correct?”
“Yes, it is.”
“You certainly never told him, did you?”
“No, I didn’t.”
“You have no friends or work associates in common, do you?”
“Not to my knowledge.”
“What do you mean, ‘not to my knowledge’? You would
, wouldn’t you, if you had friends or work associates in common?”
“I guess so.”
“So, the fact is that you don’t know anyone in common, right?”
“And you know of no way, do you, for Mr. Campbell to have learned about your problem?”
“No, I don’t. That’s why I was so surprised.”
“Your Honor,” Abe said pointedly to the judge, “I move to strike Ms. Dowling’s statement about being surprised as not responsive
to my question.”
“Sustained,” Judge Gambi agreed. “Please limit your answers to Mr. Ringel’s questions.”
“Okay, Ms. Dowling. So it seems right to you that my client could not have known about your problem at work, is that correct?”
“Yes, that is correct.”
“Now, Ms. Dowling, that seems to leave only two choices, doesn’t it: one, that my client knew something that it seems impossible
for him to know; or two, that you weren’t telling the truth when you swore to the jury that he whispered to you about that
problem. Which is it, Ms. Dowling?”
“Objection, Your Honor.” Puccio shot up. “He’s arguing with the witness, not questioning her.”
“Overruled, Ms. Puccio. There’s a fine line between an argumentative question and a questioning argument. This one is close,
but it falls on the right side of the line. You may answer, Ms. Dowling.”
“I am telling the truth, Mr. Ringel.”
“So it’s your position that my client is capable of doing the impossible, is that right?”
“Sustained. This time you’ve crossed the line into argument, Mr. Ringel. That question will be struck. You need not answer
it, Ms. Dowling.”
“Thank you, Your Honor,” Abe said. “Now, Ms. Dowling, you say you are telling the truth, right?”
“Well, let me ask you this. Were you telling the truth when you initially told the police that it was my client who first
made sexual advances toward you?”
“I don’t remember telling that to the police.”
“May I please show the witness the police report that describes her account of what happened?”
“Do you want it in evidence?” the judge asked.
“No objection from us,” said Puccio.
Abe gave Jennifer a copy of the police report and asked her to read it silently. “Is that a generally accurate summary of
what you told the police on the night you claimed you were raped?”
Jennifer nodded her head in the affirmative.
“Now, would you read the first sentence to the jury.”
Jennifer read out loud: “Complaining witness acknowledges that she initially consented to perpetrator’s advances, including
“Now, a fair reading of that sentence suggests, does it not, that it was my client who made the initial advances?”
“Objection.” Puccio rose. “The document speaks for itself.”
“Okay,” Abe acknowledged, “the document does speak for itself, and the jury can decide for itself what it means. So, let me
ask you about what
told the police. Did you tell them during your initial interview that it was
, and not my client, who
suggested having sex, and that it was
, and not my client, who made the first physical sexual advance?”
“I didn’t feel comfortable telling the officer—”
question first,” Abe interrupted. “Did you or did you not tell the police you were the aggressor during the first interview?”
“No, I did not. I can explain.”
“I’m sure you can. But the
is, is it not, that you withheld information from the police when you were first interviewed?”
“That’s correct, but the reason—”
“Ms. Puccio will, I’m sure, give you an opportunity to explain why you didn’t tell the whole truth. Right now, I’m just interested
that you didn’t tell the whole truth.”
“Sustained. Mr. Ringel’s speech will be struck. You are to ignore it. Please ask the next question.”
“Ms. Dowling, is there anything else you didn’t tell the police at your first interview?”
“Probably. I can’t remember.”
“Well, let me try to help you remember. Did you tell them that you had removed your bra when you went to the bathroom?”
“No, I didn’t.”
“Did you tell them that you returned from the bathroom with your shirt unbuttoned and the rest of your clothing removed?”
“Did the police instruct you to tell them everything that happened?”
“Yes, they did.”
“And yet you withheld these facts.”
“I didn’t think they were that important.”
you thought they were important enough to tell the jury.”
“Yes, I did.”
“Is that because Ms. Puccio advised you that you should testify about these facts?”
“On what grounds?”
“Lawyer-client advice,” Ms. Puccio said halfheartedly.
lawyer, Ms. Puccio,” the judge ruled. “You know that. You’re the
lawyer. Objection overruled. You may answer.”
Jennifer looked to Puccio, who nodded as if to give her permission to answer. “Yes, Ms. Puccio told me to tell everything—to
hold nothing back.”
“And are you holding absolutely nothing back now?”
Jennifer hesitated. “I don’t think so, but it’s possible I may have forgotten a few things.”
Abe knew he had succeeded in planting in her mind the possibility that he might know certain facts that she had forgotten.
Her confidence was shaken. Now was the time to question her about the incomplete information she had given the police.
“It is a fact, is it not, that you did not tell the police that it was you, rather than my client, who initiated the sex because
you thought they wouldn’t believe you if you told them the whole truth. Is that not the fact?”
“I thought they wouldn’t take me seriously.”
“And they wouldn’t believe you, is that right?”
“Yes, that’s right.”
“So you were willing to tell less than the whole truth in order to be believed, is that correct?”
“Everything I said was true.”
“But not the whole truth, right?”
“Not every detail.”
“You deliberately left out the fact that you initiated the sex because you wanted to be believed, right?”
“I guess that’s right.”
“And several months before that, you deliberately lied under oath in a deposition about whether you had oral sex with your
boss, because you were afraid that if you told the truth, no one would believe you were sexually harassed. Right?”
“Yes, but then I told the truth.”
“Only after your friend testified about what you had admitted to her. Right?”
“That’s right. But I did tell the truth.”
“And it is the fact, is it not, that you would be willing to tell
jury less than the whole truth in order to get them to believe you. Is that right?”
“No, I’m telling the whole truth now.”
“You weren’t telling it when you spoke to the police, right?”
“I left out a few things.”
“I guess so.”
“And is it fair, in your view, to characterize a statement that omits important facts as a ‘half-truth’?”
“I guess so.”
“And what, then, is the half that is
the truth, Ms. Dowling?”
“Objection. The term
“Fine,” Abe said. “Let the jury decide what the half that isn’t the truth should be called.”
“Sustained. The jury will ignore Mr. Ringel’s speeches, and Mr. Ringel will stop making them. Do you understand, Mr. Ringel?”
“Yes, Your Honor. May I resume my questioning?”
Abe continued to pound away. Jennifer became more confused and distraught until he sensed he might be risking a backlash.
He had been caught up in the heat of battle. Now he knew he had reached that critical point when he began to feel a personal
tinge of disgust overtaking the pleasure of professional success. The time had come to pull back and show his warmer self.
Was he doing this out of genuine concern—or as a tactic? “Would you like to take a break, Ms. Dowling?”
The judge waited silently while Jennifer remained mute, breathing heavily. Perspiration formed on her forehead and tears welled
up in her eyes. If Abe hadn’t psyched himself up to objectify her as the enemy, he would have felt a more extreme set of emotions:
guilt, pity, sadness, sorrow. He couldn’t afford that now. He had to win.
“Let’s get this over with, if you don’t mind, Mr. Ringel.” Her voice gained strength as she uttered these words. Behind him,
he could sense Campbell concentrating on their exchange.
“Actually, a short recess is a good idea,” Judge Gambi said. “Let’s all take a five-minute break. Ms. Dowling, you may step
Jennifer exited the courtroom with the prosecutor by her side. Abe could imagine what that little tête-à-tête would be like.
He’d been involved in a few of those himself—like with Charlie, for example. It was a merry-go-round of emotions being a trial
lawyer, yet it was a whole lot worse being on the witness stand. Women lawyers, Abe thought, seemed better at handling the
client’s emotions, even if that seemed a sexist attitude. Or maybe it was just Abe Ringel who had trouble handling the shifting
emotions of a trial.
Abe took a seat beside Campbell, who was rubbing his forehead with eyes closed. The jury had been instructed to remain in
the courtroom during the brief recess. Ms. Scuba Diver, Abe noted, was looking intently at the defendant, as were several
of the older women, all of whom seemed too galvanized to move. Many of the court spectators also kept their seats, probably
afraid to lose them.
The courtroom began to fill up, and then the bailiff announced that recess was over. Whenever Abe heard that phrase, he thought
back to the monitor in elementary school signaling the end of the punchball game he and Alex O’Donnell always played during
Just then Joe glanced over at the jury box and smiled openly at Julianne Barrow, Ms. Scuba Diver. To his horror, Abe found
himself urging on his client silently. He couldn’t help it; Joe’s rapport with the prospective foreperson was important. She
is the enemy, he told himself, repeating it like a mantra several times as he watched Jennifer reenter the courtroom. It was
clear she had been crying. He could sense her fear.