The Advocate's Devil (36 page)

“Father… Stan, isn’t that inconsistent with what you said you would do?”

“Yes, it is inconsistent, just as our roles are inconsistent. My role is to save souls. Yours is more earthly, and there is
no higher calling here on earth than to save lives. I wish I were free to do that, but I’m not.”

“Our situations aren’t really that different, Stan. By
not
disclosing the information, I might in the long run be saving
more
lives, because more clients would confide in me and I could talk them out of doing terrible things.”

“Look, Abe, it isn’t the role of a lawyer to play God and take a life in the short run in the hope of saving more in the long
run.”

“I made a
promise
of confidentiality to my client. Are you telling me to break a solemn promise?”

“Saving a life is more sacred than keeping a promise—for a lawyer.”

“Remember, you’re a lawyer, too.”

“Yes, I am. However, I don’t take confession
as a lawyer
. I take it
as a priest
. If someone told me something
as a lawyer
, not as a priest, which could save a life, I would disclose it.”

“Has that ever happened to you?”

“No. Nor have I ever been told anything,
as a priest
, that could save a human life.”

“I wonder what you would really do if that ever happened? If you really
could
save a life by disclosing what you learned as a priest in confession? You seem like too good a person to sit idly by watching
an innocent human being, whom you could save, die.”

“I wonder, too. I hope my faith will never be tested,” Father Maklowski said.

“Mine sure
is
being tested, and I feel like I’m failing the test.”

Abe left the archdiocese more uncomfortable than ever. He was still convinced that he could not do to a client what a priest
would not do to a penitent: violate the rules.

He went back to the office, where Justin was waiting, hoping that the meeting with Father Maklowski had changed Abe’s mind.
Abe related his conversation and got right to the bottom line.

“Nothing Father Maklowski said persuades me to blow the whistle on Campbell.”

“Nothing you or anybody else has said persuades
me
,” Justin answered, “that we have to stand idly by while our former client rapes and maybe kills yet another innocent woman.”

“Justin, the reality is that lawyers, priests, even doctors, often have to stand idly by, because of the importance of confidentiality.
It’s the price society pays for encouraging confidential communications,” Abe replied.

“Doctors have to disclose child abuse when they observe symptoms, even when it means blowing the whistle on a patient.”

“And look at what that’s caused.”

“What?”

“A lot of abusing parents have stopped taking their kids to doctors, because they’re afraid of being turned in,” Abe said.
“That’s why lawyers have rejected the whistle-blower approach taken by doctors and psychologists.”

“I guess there’s no easy answer,” Justin acknowledged.

Abe noticed a box on the desk next to the computer. It was marked “Davka CD-ROM Aggadic Midrashim, Second Edition.”

“What is that?”

“It’s that computerized Talmud program I told you about. It came from the Hebrew College. I’ve been playing with it.”

“Have you found anything helpful?”

“Not really. Just a story about an old judge who used to be the vice president of the Sanhedrin—the old talmudic supreme court.”

“What’s the story?”

“You’re not going to like it. I certainly don’t.”

“Why not?”

“Believe it or not, this old judge—his name was Shimon, the son of Shetah—actually confronted a situation a bit like ours.”

“How so?”

“Well, he had presided over a case in which a guilty murderer was let off because there was only one witness. The Bible expressly
requires at least two witnesses—in capital cases. The acquitted murderer then goes out and kills again, and the judge sees
him with ‘the sword in his hand, the blood dripping, and the dead man still twitching.’”

“Quite graphic.”

“Yeah, these guys knew how to write some gut-wrenching stuff.”

“So what does the judge do?” Abe asked.

“Nothing. That’s the point. He asks the murderer the same question we’ve been asking ourselves.”

“What?”

“Here, let me read it to you, straight from the Talmud: ‘Wicked one, who killed this man? You or I?’”

“So what does the judge answer?”

“He answers that
he
, the judge, is surely
not
responsible, because he followed the biblical rule, requiring two witnesses.”

“Well, that seems right, doesn’t it?”

“Maybe for a judge, certainly not for a lawyer,” Justin said.

“To the contrary. It seems to me more justified for a lawyer than for a judge.”

“Why so?”

“Well,” Abe explained, “both have to obey the law. A lawyer’s primary responsibility is to his client, while a judge’s is
to society in general. If a judge does the right thing by occasionally letting a guilty person go free—perhaps even to murder
again—it would seem to follow that an advocate can’t be blamed for doing the same thing.”

“Maybe that’s the source Haskel was referring to when he told you to look where others have looked.”

“Maybe he was referring to
all
the sources we’ve found. So far it’s three to zip. Legal, Catholic, Jewish—they all point in the same direction. We must
keep quiet. Hard as it is, that is the
right
thing to do—both as lawyers and as human beings.”

“Even if Campbell rapes and kills again?”

“We can’t know that for sure, Justin.”

“Yes, we can. I’ve also done some research on serial rapists.”

“What did you find?”

“It’s a fairly frequent phenomenon. There have been an average often each year in New York alone.”

“What do they have in common?”

“First, they stalk particularly vulnerable women who are afraid to complain—such as prostitutes, drug addicts, unregistered
aliens. Second, they don’t stop until they get caught. Third, they leave few clues. Finally, they become increasingly violent
with time.”

“That sounds a lot like Campbell, except that he’s turned to high tech.”

“The worst part of it is that it’s virtually certain he won’t stop on his own.”

“How can you be so sure?”

“Let me quote Lisa M. Fried, a sex crime expert in the New York DA’s Office,” Justin said, shuffling through his notes. “‘This
is the most repetitive type of crime in the world. It’s not just a fear, it’s a knowledge. A serial rapist will rape again.’”

“Those are statistical generalizations, Justin. We can’t know for sure that Campbell will rape or kill again.”

“Yes, we can. You know it and I know it. There’s no reason to believe he’s any different from the others except that he’s
smarter.”

“‘The prince of darkness is a gentleman,’” Abe said, quoting his favorite playwright.

“That means it’s going to take even more time until he’s caught, leaving an even longer trail of victims.”

“Under the rules,
we
are not responsible, even if Campbell were to rape or kill again—any more than the priest or the judge would be. We, too,
have an obligation to a higher authority. We are bound by our oath. We must remain silent. We have no choice.”

“We always have a choice, Abe. There’s always the option of civil disobedience. That’s what Nancy Rosen did. She went to jail
because she chose to break a bad law for a good purpose.”

“That’s not
our
decision to make, Justin. Diderot was right when he warned that anyone who takes it upon himself to break a bad law thereby
authorizes everyone else to break the good ones.”

“
I
urged her to break the law.”

“That was
your
job.
Her
job was to resist your urging.”

“I was
right
, Abe. It was for a higher good.”

“Maybe. This particular situation wouldn’t be for a higher good. Remember that our whole system, especially the role of defense
counsel, is based on the theory that it’s ‘better for ten guilty to go free than for one innocent to be wrongly convicted.’”

“It’s a nice theory, Abe. Does it make sense when one of those ten guilty is bound to kill yet another innocent?”

“I don’t know, Justin. I don’t know. What I do know is that I won’t break the rule. I just can’t do it. I
believe
in these rules, damn it. And I just won’t break them.”

“Let me ask you this, Abe,” Justin persisted, assuming the role of Socratic teacher. “What if you not only knew for sure
that
Campbell was going to kill, but you also knew for sure
whom
he was going to kill?”

Abe tried to squirm out of the question. “How could I know who unless Campbell told me?”

“No fair, Abe. Stick to my hypothetical. Say we figured it out by the computer, or some other way. Say it turned out to be
Ms. Scuba Diver, the jury foreperson. Remember, he said he would meet her for a drink. Could you live with yourself if you
knew that a
particular
woman, Ms. Scuba Diver, was about to be killed—not some
statistical
woman, but an
actual
woman whom you knew. Could you really play by the rules and stand idly by while the blood of this woman was spilled?”

“I don’t know, Justin, I really don’t know.”

“If you’re uncertain about
that
situation, how can you be so damn certain about
our
situation?”

“Because in our case, we don’t know
who
the woman will be.”

“Why does that make a difference?”

“I don’t know, it just does. At least to me.”

“Yeah, me too. And yet it’s a psychological difference, not a moral one, damn it. It’s harder to let someone die if you know
who she is than if she’s just some abstract statistic. But it
shouldn’t
make a difference.”

“You’re very convincing, Justin. You’d make a great law professor.”

“Maybe that’s what I ought to become. At least they don’t kill people the way we did.”

“We didn’t kill anyone, damn it. Don’t ever say that, Justin. It’s not fair.”

“Tell that to the mother of Campbell’s next victim—the one whose life we’re
not
going to save because you have to follow some damn rules.”

B
OSTON
—
W
EDNESDAY,
A
UGUST
16

“Abe, I’ve known you for more than ten years,” Rendi said, pouring him a glass of 1982 Château Margaux, “and I’ve never seen
you so upset about a work-related matter.”

“This isn’t only about work,” Abe said, guzzling the fine wine as if it were root beer. “It’s about what it means to me to
be a lawyer and a human being. This is the worst position I’ve ever been placed in during my career. I feel absolutely impotent.”

Rendi and Abe both smiled—sadly—at the sexual reference, since Abe had in fact lost all interest in sex of late.

Rendi had invited him over to her Beacon Hill apartment for a warm, friendly, perhaps even romantic dinner, without sexual
overtones—except perhaps to restoke the flames for the future. Rendi’s small one-bedroom home always seemed entirely out of
character for its occupant. It was warm, gracious, and beautifully decorated with antiques from the archaeological digs in
which she’d participated over the years. Abe could never imagine Rendi—the most impatient person he knew—digging slowly, cautiously,
and reverently through layers of dirt in search of small treasures from the ancient past. Even the gentle Elizabethan lute
music seemed to reflect her aspiration toward serenity, rather than the chaotic reality of her life.

Rendi remembered, painfully, how Abe’s guilt over having slept with her just weeks before Hannah’s death in that tragic accident
had made it impossible for him to become sexual with her for more than a year afterward.

“This isn’t like Hannah’s death,” Rendi insisted—getting right to the point, as usual. “
This is
about your professional life. It’s a horrible dilemma you’re in, but it’s not about people you love. It’s not about Emma.
It’s not about your health, though it’s having an effect on your health. It’s not about us,” she added tentatively, not quite
certain how their relationship could be classified.

“I know that,” Abe said without quite convincing himself, “and I’m thankful that this isn’t
that
kind of a personal crisis. Still, it
is
a personal crisis. It’s tearing me apart, both as a lawyer and as a person. It’s making me realize how much of my personal
self is tied up in my professional role as a defense lawyer. It’s making me challenge everything I’ve believed in and advocated
for a quarter of a century. It’s driving me nuts, Rendi. I’ve made up my mind not to blow the whistle on Campbell, and my
decision is eating at my guts.”

Like most professional advocates, Abe had developed a talent for making hard decisions quickly and then immediately distancing
himself from the emotions of the decision. “A litigator does not have the luxury of
mutcher
ing over past decisions,” Haskel used to say, employing the Yiddish word for “obsess” or “torment.” Yet that was precisely
what Abe was doing:
mutcher
ing himself to distraction over his decision not to blow the whistle on Campbell.

“And that bastard Campbell really knows that he’s bedeviling you. I wonder if that turns him on, too?”

“It’s not really his fault, Rendi. He is what he is—a sick, miserable person. There are plenty of others out there like him.
If it weren’t Campbell, it could be someone else. Every advocate has his or her devil. Mine happens to be Joe Campbell.”

“That’s because this is not a problem that is capable of being answered by some snap of the fingers. This is the kind of problem
that plagues philosophers. It’s the eternal conundrum. There is no perfect solution. You have to choose the least imperfect
one.”