Malice

by Robert K. Tanenbaum

  Karp looked into twelve pairs of eyes. “We will learn from the evidence the real truth in this case—that the defendants acted with malice, meaning they knew the charges against Coach O’Toole were false and acted with a reckless disregard for truth.” He allowed his voice to rise and grow tight. “That, ladies and gentlemen, is the legal definition of malice. Justice cries out, good conscience demands, and common sense dictates that you will not permit this malice to breathe another moment.”

  Karp took his seat and calmly watched Zusskin rise from his like some great Shakespearean actor relishing the moment before he delivers his lines. “That was a beautiful speech,” the attorney said at last. “The sort of speech we might expect on the Fourth of July—all about American birthrights and the Constitution. I myself might have been moved by those words in some other time and place. But ladies and gentlemen of the jury, in this courtroom today, those words were little more than smoke and mirrors intended to disguise what this trial is really about. Allow me to return for a moment to what we believe are the true facts of this case.”

  Rufus Porter, he said, had been a dedicated member of the university baseball team who “through no fault of his own…and with questionable reasoning saw his minutes on the playing field dwindle. As such, he became desperate to please his coach so that when that coach asked him to do something they both knew was not right, he went ahead and did it anyway. He was the instrument of Mr. O’Toole’s bid to lure players who might lead his team to a national championship.”

  The facts will show, he said, that the recruits in question had been truthful when they said that Mr. O’Toole was aware of the party and had sponsored it. “And they told this to an objective investigator for the ACAA shortly after these allegations came to light, not months later when a New York City police detective hunted them down on behalf of Mr. O’Toole and got a different story. You’ll also hear from other corroborating witnesses that calls were placed from Mr. O’Toole’s office and that alcohol and the services of strippers were purchased using a credit card entrusted to Mr. O’Toole by the university.

  “But I agree with Mr. Karp somewhat. The allegations raised by Rufus Porter against Mr. O’Toole are not really what this trial is about. This trial is about whether the ACAA panel, and the university, was acting in accordance with their rules and regulations when they conducted an investigation, held a hearing, and then suspended Mr. O’Toole for violating those rules and regulations.”

  Zusskin looked up at the ceiling of the courtroom for a moment and sighed. “A few minutes ago, Mr. Karp eloquently spoke about our rights as Americans. Well, he left out some rights, including the right of private entities and institutions to conduct their affairs without undue interference from the government. Let me give you an example. What should be the role of the courts when a member of a country club is expelled for consistently breaking the rules regarding the wearing of a shirt with a collar? Should our courts be tied up because the rule breaker was not given the opportunity to cross-examine or confront the club’s board of directors? Or say an employer terminates the employment of someone who is not performing their job in a satisfactory manner or in accordance with the rules and regulations surrounding that employment. What if it was a doctor or an airline pilot who got caught drinking on the job? Should they be able to sue the hospital or airline because they were not afforded a trial? The government will step in to protect certain classes from discrimination based on race, religion, national origin, gender, or age, but do we want the government telling private entities how to conduct themselves at every little turn?”

  Zusskin pointed out that the jurors could expect the plaintiff to attack the transcript of the interviews of the two recruits “because it is not the entire transcript of every little thing that was said. For the purposes of the hearing, the transcript only dealt with the questions and answers relevant to the panel. Did Coach O’Toole know about the party? Did he encourage Rufus Porter to take two recruits out of the dormitory and show them a ‘good time’? And did Coach O’Toole facilitate this ‘good time’ by making arrangements with an escort service and paying for them as well as the alcohol that was consumed by these underage recruits? And, lastly, did he then attempt to interfere with the investigation of these charges?”

  Zusskin pointed out that the ACAA investigator, Larkin, was following standard procedure when he transcribed only the statements that were relevant and then reused the tape. “There was nothing malicious, a word Mr. Karp likes to throw around, about Mr. Larkin’s actions.”

  Zusskin walked back to the defense table, where, with his back to the jury, he winked at Karen Welt, who was watching him with adoration. As if suddenly remembering something, he turned back to the jury. “If you please, one last comment regarding Mr. Karp’s little story about Coach Anderson. I believe that his point was that fair play is as American as apple pie. But in sports, doesn’t fair play mean playing by the rules of the game? We might not like all of those rules—heck, I played safety for my college football team and would have loved to pop those receivers before they caught the ball—but we have to abide by the rules or we are not playing fair. My point is that Mr. O’Toole signed a contract agreeing to abide by the rules, including the use of panels to hear complaints and make rulings. And now he doesn’t want to play by those rules. We believe that you should insist that he does. Thank you.”

  Boy, he’s good, Karp thought as Zusskin took his seat and Judge Allen asked them to call their first witness.

  “Thank you, Your Honor,” Meyers said, rising from his seat. “We call Mikey O’Toole.”

  O’Toole got up from his seat at the plaintiff’s table and climbed into the witness stand, where he was sworn in. He then sat and smiled at the jurors. “Good morning,” he said quietly. Most returned the greeting and a few even smiled back.

  The first part of O’Toole’s testimony repeated Karp’s opening regarding who he was, how he came to be a coach at the university, and a brief history of his time there leading up to the recruiting event. They then entered the more delicate area of when and how O’Toole learned of the party that led to the dismissal of Rufus Porter from the team.

  Karp and Meyers had decided that the best offense was to go after the ACAA case against O’Toole. They didn’t want to rely just on a strategy centered on whether O’Toole had received a fair hearing that protected his rights to due process without showing that the allegations against him were false and that the entire case had been a farce from the beginning.

  “At what point did you learn about the party?” Meyers asked.

  “After Rufus was…” O’Toole had been about to say “arrested” but caught himself just in time. “After Rufus violated team rules and was dismissed for conduct detrimental to the team. It was after that I was told by Clyde Barnhill, the university’s attorney, that Porter was accusing me of the allegations.”

  “Did you at any point encourage Rufus Porter to show these two recruits a ‘good time’ by taking them to a party where alcohol was served and they would engage in sexual conduct?”

  “I did not.”

  “Did you arrange for strippers from the Pink Pussycat Escort Service or pay for such activities?”

  “No.”

  “Did you pay for alcohol?”

  “No.”

  Meyers asked if it was possible for someone else to have used the telephone in his office and have access to the credit card.

  “Yes,” O’Toole replied. “I let students, including my players, use the office—sometimes to call home, or as a place to do their homework. Sometimes they just hang out there before or after practice, and I’m not always around. I trust them.”

  “What were your instructions regarding the recruits on the night in question?”

  “They were to attend a team dinner and then be taken back to the dormitory with lights out at ten p.m.”

  After the review of the history, Meyers moved on to the ACAA hearing, asking O’Toole to recall what he could of how it w
as conducted and what questions he was asked. “How long did it take the panel to reach a decision to suspend you?”

  “About an hour.”

  “An hour. And can you explain to the jury the effect the ACAA decision to suspend you will have on your career?”

  O’Toole tried to clear his throat and when he couldn’t, he reached for a glass of water and drank before answering. “It’s over,” he said simply.

  “By that you mean it’s over at the University of Northwest Idaho?”

  “No,” O’Toole said, shaking his head. “It’s over at the college level, and probably high school, everywhere.”

  “How do you know that?”

  “I’ve made some calls regarding open positions at other colleges and universities.”

  “And what’s been the response?”

  “In at least three circumstances, the athletic directors have said they would like to hire me, but they can’t,” O’Toole replied.

  “They can’t?”

  O’Toole shook his head again. “They’d never get it past the administration at their schools…. I’m the guy who gave recruits alcohol and paid for strippers and sex. I’m damaged goods. The press would tear them apart.”

  “Have you explained that you’re innocent of the charges?”

  “Yes, and I think they believe me,” O’Toole replied. “But it doesn’t matter. I’m a pariah. The publication of the charges against me contemporaneous with my firing has ended my coaching career.”

  Meyers had intended to ask a few more questions but could tell that his friend was on the verge of breaking down, so he decided to quit. “Thank you, Coach O’Toole,” he said, and turned to Zusskin. “Your witness.”

  Zusskin began his cross-examination of O’Toole by asking if there was a reason Rufus Porter might have wanted to “do anything to get more playing time.”

  O’Toole shrugged. “I’m sure all athletes want to impress their coaches.”

  “Was his playing time diminishing?”

  “Yes,” O’Toole acknowledged. “There are better players on the team.”

  A loud snort from the spectator section momentarily stopped the proceedings. All eyes focused on a large man in the second row behind the defense table. But with Judge Allen staring at him, Big John Porter made no other sounds.

  Zusskin turned back to O’Toole. “It’s my understanding that after a final meeting, you essentially just sort of turned the recruits over to your players and you had no way of knowing what happened after that, am I correct?”

  “Well, yes. I trusted my players to follow my rules.”

  “Which included handing the responsibility of watching out for these teenagers to young men not much older than they were?”

  “Yes.”

  “Mr. O’Toole, we’ve heard a lot about how easy it is to use your office. Would you say there’s a lot of privacy in the office?”

  “No, not really,” O’Toole replied. “There’s often quite a bit of activity.”

  “So it might be difficult for someone to use your office and privately place a call to an escort service, pay for it with a credit card taken from a drawer in your desk, and then call in an order of booze and also pay for that?”

  O’Toole shook his head. “Well, not really. They’d just have to pick a time when no one was around. Like during practice there are usually not many other people there.”

  “I see,” Zusskin replied in a manner meant to imply that he did not see at all and neither should the jury.

  Zusskin ended his cross-examination by showing O’Toole the contract he’d signed with the university. “Does this contract state that you agree to abide by the rules, regulations, and decisions of the American Collegiate Athletic Association?”

  “Yes.”

  “And would that include the decision reached by the ACAA hearing panel following its procedures?”

  “I guess.”

  “You guess? Is there another possible answer?”

  “No. I meant that I guess that would include the decision reached by the ACAA panel.”

  “Was this a valid contract when you were asked to appear before the ACAA panel?”

  “Yes.”

  “One last question, Mr. O’Toole. I just want to make sure we’re clear about this. You were given the opportunity to make a statement in your defense at the ACAA hearing?”

  O’Toole nodded. “Yes, but—”

  “I didn’t ask for an explanation,” Zusskin interrupted. “The universe is full of justifications. Just a simple yes or no.”

  “Yes.”

  When Zusskin sat down, Karp and Meyers conferred for a moment before the young attorney rose for redirect.

  “Coach O’Toole,” Meyers said, emphasizing O’Toole’s title, which he’d noticed Zusskin had purposefully avoided, “did you think that signing that contract superseded your constitutional rights as an American citizen?”

  “No, I did not,” O’Toole replied.

  “And I think you were about to add to your answer to Mr. Zusskin’s question about whether you were allowed to give a statement to the hearing panel.”

  “Yes.”

  “Would you elaborate now, please.”

  “I was allowed to give a brief statement, essentially denying these accusations. But I wasn’t—or you weren’t, as my attorney—allowed to cross-examine Rufus Porter, or the ACAA investigator, Jim Larkin, or anyone who spoke against me and we weren’t permitted to call any witnesses on my behalf, in my defense.”

  “One last question. Coach O’Toole, is it accurate to say that you were prepared to abide by the rules, as Mr. Zusskin asked you, as long as they were administered in a fair, impartial, and honest fashion?”

  “Yes, that would be accurate.”

  “Thank you, Coach O’Toole, that’s it from me,” Meyers said, and looked at Zusskin, who didn’t bother to look up from his notes when he replied, “No further questions.”

  The opening statements and O’Toole’s testimony had taken the trial up to the noon hour, when Judge Allen called for a lunch break. When court resumed, Karp called the baseball players Clancy Len and Tashaun Willis as character witnesses, although technically the purpose was to ask them if they had any knowledge of Coach O’Toole sponsoring or paying for parties “at which alcohol is served to underage players and strippers are present.”

  Both young men had replied in the negative. Even at team parties at the coach’s house, players were allowed to drink beer only if they were twenty-one or older “and we have to give him our car keys.” Although not said in so many words, the love and the respect both young men had for their coach was unmistakable.

  Of more importance, however, Karp thought was the testimony of two athletic directors from other colleges and universities who, as O’Toole had indicated, testified under Meyers’s questioning that they would have loved to hire him.

  “In fact, we were preparing an offer after baseball season last spring to try to lure Coach O’Toole from the University of Northwest Idaho to come coach for us,” said David Huff, the athletic director of a Division I university known for its baseball teams. “When all of this came out, I was prepared to go to bat for him with my administration and the Board of Regents. I hoped we might even go to the ACAA and get the suspension lifted, maybe with probation. But the administration felt it would be a public relations disaster, and I wasn’t allowed to offer him the job.”

  “Did you end up hiring another coach for the position?” Karp asked.

  “Yes,” Huff answered, and then surprised him by turning to O’Toole. “Sorry, Mikey,” he added. “You know who my choice would have been.”

  After the athletic directors, Karp called Steele Dalton to the stand. When the young man was situated, Karp handed him a copy of the partial transcript that had been presented to the ACAA panel. After giving the young man a minute to read the transcript, he asked, “Would you say that is a complete record of your conversation with Mr. Larkin?”

  “Hell, no,�
� Dalton answered. “A lot of stuff got left out.”

  “What do you mean by that?” Karp asked.

  “I was pretty nervous when the ACAA investigator guy was asking me the questions,” Dalton said. “So I was just sort of going, like, ‘uh-huh’ because I wasn’t sure what he wanted.”

  “Was there any particular reason you were nervous?” Karp asked as if this were the first he’d heard of the claim.

  “Well, yeah,” Dalton replied, pointing to where Larkin was examining his fingernails at the defense table. “He’s a big guy and the ACAA can mess you up as a player if you get on their bad side. Even before he turned on the tape recorder, he sort of got in my face and said I’d be in a lot of trouble if I lied to protect Coach O’Toole. He said he knew for sure that Coach O’Toole knew about the party and had paid for it. He also said that the underage drinking and sex stuff might hurt my eligibility if I didn’t cooperate with the ACAA.”

  “And this was not recorded?”

  “No, it was not,” Dalton replied. “Only after he said all that stuff did he turn on the recorder and that’s when I just sort of said whatever would get me out of there. But even then we had to stop and start over when he didn’t like the way I said my answers.”

  “What do you mean by that?”

  “Well, for instance, he asked me if Coach O’Toole had approved of the party,” Dalton answered. “I told him the truth and that was that. When Rufus showed up at the dormitory, Rufus told me that Coach O’Toole sent him to take me and Mike Mason to a party for ‘special’ recruits.”

  “What was Mr. Larkin’s reaction?”