Malice kac-19

by Robert K. Tanenbaum

  Half of the hands, including those in the pews, went up. "I'm not just talking about being accused of something big, like a crime," he added. "Maybe you were just a child and someone unfairly accused you of taking something. Or you were at work and your boss or a co-worker insinuated that you had done something wrong when you had not."

  Nearly all the hands were up. "Now, how many of you felt that you weren't given a chance to prove your innocence?" Most of the hands remained lifted. "I see," Karp said. "And how many of you believe that a person should have the right to defend himself from accusations by calling witnesses and presenting evidence that could exonerate him?"

  The hands were all up and in the same moment so was the defendant's attorney. "I object to this style of questioning, Your Honor," said Steve Zusskin, who was representing the ACAA. A young woman named Karen Welt was nominally representing the university, but she remained seated, watching Zusskin. "He's making little speeches to the jury."

  "I don't believe that there are any hard and fast rules about how I'm supposed to conduct voir dire," Karp replied.

  Allen tilted his head and gave Karp a funny look, but said, "I'll allow it. Just tone down the fife and drums, Mr. Karp."

  "Yes, Your Honor," Karp replied, and turned back to the potential jurors. "My next question is: Do you believe a person has the right to cross-examine-we in the legal profession call this confrontation-witnesses who make accusations against them?"

  Again the show of hands was nearly a hundred percent. "And what would be your opinion of any agency-whether it's the government or a private entity-that refused to grant these basic rights and then deprived a man of his livelihood and smeared his reputation?"

  "Your Honor, another speech, and mischaracterizations," Zusskin complained.

  "Mr. Karp, I'll allow this, but it's the last of these mass questions."

  "Yes, Your Honor," Karp agreed. He could tell by the way the jurors' eyes narrowed at the thought of being deprived of a right to make a living that he had most of them right where he wanted them. He pointed to a woman in the jury box. "Yes."

  The woman turned red but managed to stutter, "Uh, hello, my name is Pam Jensen, and my son, Donald, was expelled from high school because a campus cop saw a hatchet in the back of his car. He wasn't allowed to explain that he'd been on a camping trip that weekend and left all of his gear, including the hatchet, in his car. They just said, 'Rules are rules, no exceptions.' And there's nothing we can do about it, so now he's going to have to make up those classes he missed this summer and won't be able to graduate with his classmates."

  "I see," Karp replied. "Anybody else?" A middle-aged man with the look and demeanor of an accountant raised his hand. "Yes, sir," Karp said.

  "I'm Morty Feldman," the man said. "We used to belong to the Cherry Hills Country Club until I was kicked out because of anonymous complaints that I wasn't wearing the proper shoes on the golf course. It wasn't true, and even if it was, there are members who've broken the rules far worse than that-but, of course, they're not Jewish. But I wasn't allowed to question my accusers. It was just a letter in the mail saying my membership would not be renewed because of 'rules infractions.' My lawyer tried to file a lawsuit for discrimination, but because there are other Jewish members, the case was dismissed."

  Several more potential jurors discussed grievances ranging from being unfairly accused of shoplifting as teenagers "just because I was with some friends who were" to allegations of stealing items from work based on circumstantial evidence and hearsay. By the end of jury selection, Karp had used only a few of his peremptory challenges, including dismissing the president of the Boise Rotary Club, who said she felt that private entities should be allowed to make decisions based on their own bylaws and regulations not withstanding what she labeled "lofty ideals to the contrary."

  Zusskin had used all of his challenges to dismiss those potential jurors-including Jensen and Feldman-who'd seemed most aggrieved when answering Karp's questions. But he'd also seemed confused as to how to counter Karp's strategy, except to ask those in the jury pool if they understood the difference between public and private entities.

  When it was over, Karp was pleased with how jury selection had gone, but he knew that this wasn't going to be a slam-dunk case. In a civil case, the burden of proof wasn't as high as in a criminal case where a jury had to be convinced of a defendant's guilt "beyond a reasonable doubt." Here, he and Meyers would only have to show that the "preponderance of evidence," a "more likely than not" standard, indicated that the defendants-the ACAA and the university and its representative, Kip Huttington, acting in concert-had wronged O'Toole.

  He and Meyers would have to contend with telephone records indicating that a call had been made from O'Toole's office to the Pink Pussycat Escort Service, which had supplied the strippers, as well as the credit card receipt for five hundred dollars to the service, and another receipt for purchases from Campus Liquors. Both were electronic payments so there were no signatures, but the credit card had been issued to O'Toole and was supposed to have been in his possession. There was a new issue as well, because the party's hostess had "suddenly recalled" having overheard Rufus Porter talking to someone he addressed as "Coach" about "paying for entertainment."

  Karp thought he and Meyers would be able to deal with those issues. However, the wild card would be how the jury responded to the testimony of the two recruits at the center of the scandal, Steele Dalton and Michael Mason.

  They were the reason that Fulton had called Marlene on the day she'd met with Santacristina/Katarain. The detectives had just finished interviewing the two young men and they'd been "very cooperative." So cooperative, in fact, that after jury selection was over and the jurors were sent home, Karp had made a motion challenging the admissibility of the "abbreviated transcript" of the Dalton and Mason interviews that ACAA investigator James Larkin had used at O'Toole's hearing.

  "The two witnesses will testify that the transcript is grossly incomplete," Karp argued. "And we've been informed by the defendant that the tape recording of the interviews is no longer available, nor is a complete copy of the transcript."

  Zusskin countered that by the ACAA's rules, Larkin had not been required to keep a copy of the tape and "for the purposes of the hearing, the completeness of the transcript was not relevant."

  "Not relevant?" Karp scowled. "I guess due process wasn't relevant either."

  "This wasn't a court of law," Zusskin said. "It was a hearing before a private entity, operating as it always has under its rules and regulations. When Coach O'Toole took the job, he signed a contract saying, in part, that he would abide by those rules and regulations, which include abiding by the decisions of a duly appointed ACAA panel. The ACAA is like a private club that has the right to kick out members who break the rules of the club. As long as there are no violations of a federally protected class, such as in age, religion, national origin, or race discrimination, normal due process protections do not apply."

  "The ACAA was acting jointly, in concert, with a public entity-the university-and participated in creating and disseminating false and defamatory charges pertaining to Coach O'Toole, which have significantly stigmatized him and will prevent him from obtaining future employment as a college baseball coach," Karp said. "It is plaintiff O'Toole's position that indeed Fourteenth Amendment due process applies, and had the university offered Coach O'Toole his requested name-clearing hearing, he would have demonstrated from the evidence-not hearsay or innuendo or speculation, but from the facts-that the charges are totally false."

  Zusskin listened to Karp with his arms folded across his chest and a slight smile on his face. "Judge Allen, Your Honor, this is all very interesting, and I'm sure a jury would be on their feet, applauding Mr. Karp's passionate oratory," he said in reply. "But we are trying to focus on a very narrow issue here-the admissibility of the transcript used at the hearing. We want to present it to the jury, as it was heard by the panel that reached this decision. We physically can
not produce a complete copy as the tape recording is unavailable, not because of some sinister plot, but because the ACAA was not required to keep it."

  Karp was about to respond again but Judge Allen interrupted. "That's all right, Mr. Karp, I believe I understand your argument," he said. "However, I'm going to allow the so-called abbreviated transcript into evidence, otherwise the jury won't even know what you're complaining about. You'll get the opportunity to call this investigator, Mr. Larkin, and ask him why it appears in this form, and you'll have the opportunity to call the two witnesses to, I assume, rebut or expand on the transcript. Then it will be up to the jury to decide who is telling the truth."

  Karp accepted the judge's ruling and winked when he turned to Meyers and O'Toole. Later, as they left the courtroom, he told them that he had not expected to win the motion, "but sometimes even good judges, like Allen, need to be reminded of what's really at stake."

  Walking out of the courthouse, they'd almost run into an elderly man who was standing outside the doors, smoking a pipe. Even forty years after he'd seen him as a high school basketball player, Karp recognized the tough, weathered visage of Coach J. C. Anderson. The old man smiled and raised his pipe. "They wrapped up in there? They wouldn't let me smoke this thing inside."

  "Yes, we're through for the day," Meyers said. "Butch, this is-"

  "Coach Anderson," Karp finished the sentence. "We met once a long time ago." He intended to walk past the man, but then turned. "When I was a teenager, I heard you talk about the importance of fair play and how it would matter when we became adults. It stuck with me all these years, and I've lived a lot of my life by that. What I don't understand is what happened to you?"

  The smile disappeared from Anderson's face and his jaw set tight. "I don't need you to lecture me on principles, Mr. Karp," he said. "I've been part of this system for nearly sixty years as a player and a coach. It's not perfect but it's what we got."

  "If this is the system, Coach Anderson, then the system is broken," Karp replied. "No, I take that back. The system isn't just broken, it's become evil and venal. What sort of fair system would take a man's job and destroy his reputation based on a bunch of hearsay and lies without at least giving him the chance to defend himself? I can't believe that you would be part of that."

  The old man continued to glare for a minute and looked like he might hit Karp. But then his expression softened and he ran a liver-spotted hand through his white hair. "I don't know what I'm part of anymore," he said. "It's just not the same world that I grew up in. Payoffs. Betting on games. Kids getting recruited on college campuses with sex and drugs. Everybody cheats and commits crimes with impunity. Does any of it matter?"

  "Yes, it matters," Karp replied. "And you could have done the right thing. You could have been a voice for fair play."

  The coach looked like he was about to say something, but then turned and walked back inside. Karp stood and watched him go, wondering what had caused him to bait an old man. But it had given him an idea for his opening statement in the morning.

  "Want to grab some dinner?" Meyers asked.

  "Would love to," Karp replied, "but I think I'm eating in the room tonight. I've got to cram for a test."

  O'Toole laughed. "Now you're sounding like one of my players."

  Karp smiled. "Or your brother."

  23

  Twelve expectant faces. twelve pairs of eyes. seven men. Five women. All white. And all with their attention riveted on Butch Karp as he stood for a moment at the lectern, going over the conclusion to his opening statement in the O'Toole trial one last time in his mind.

  Meyers had asked him to give the opening statement. "I'd prefer the closing arguments," the young lawyer explained. "I think if I have any jitters, they will be at the beginning of the trial, but by the end I'll be in the groove."

  After the jury was seated and had been instructed by Judge Allen as to their duties, he turned to Karp. "Your opening statement, Mr. Karp."

  Karp rose from his chair.

  So Karp had started the morning laying out the basics of the case for the jurors, beginning with a brief history of O'Toole's tenure at the university, his accolades and accomplishments.

  "Coach O'Toole loved the university and had decided that even should an offer come from a larger school, the University of Northwest Idaho was where he wanted to be," he said. "However, all of this changed in the spring of last year when a former player on Coach O'Toole's baseball team-a player who'd been dismissed from the team, and whose father is a major contributor to the university's athletic programs-claimed that O'Toole had asked him to show two recruits 'a good time.' According to this player, Rufus Porter, a good time included taking them to a party where they consumed alcohol and engaged in sexual acts with strippers-all allegedly paid for by Coach O'Toole from a university athletic account."

  Karp had to be careful how he worded the reasons behind Rufus Porter's dismissal from the team. At a pretrial hearing, Zusskin had successfully argued that the plaintiff and his attorneys should not be allowed to say that Rufus Porter had been kicked off the team because of the sexual assault charges filed by Maly Laska. "The charges were dropped," the attorney had pointed out. "And even if the case had been adjudicated and Porter found guilty, it would be unfairly prejudicial to the rights of the defendants to a fair trial because they would be seen in the same light as an accused rapist."

  The judge agreed and said that the plaintiff and his attorneys would be limited to saying that Porter had been dismissed "for conduct detrimental to the team." And that O'Toole had refused to reinstate him despite pressure from the university.

  Karp hoped that the jurors would sense that there was more to the story. But at least they would have some motive for Porter to unjustly accuse the coach. "And," he now told the jurors, "only when Coach O'Toole refused to let Porter back on the team did he make these grossly unfair and untrue accusations."

  "However," Karp went on, "although we will prove to you that these allegations were false, they are not what this lawsuit is about." He went on to explain how based on Porter's charges, O'Toole had been brought before an ACAA hearing panel "and without the opportunity to confront his accuser, or present evidence, or call witnesses of his own, Coach Mikey O'Toole was summarily suspended from coaching for a period of ten years."

  Karp let the number sink in before continuing. "Ten long years, ladies and gentlemen, a veritable death sentence to his coaching career. But the injustice did not stop there. When Coach O'Toole asked the university through its president, E. 'Kip' Huttington, for the opportunity to clear his name at a public hearing conducted at the university, his request was denied. He was told that it would not be in the best interest of the school and-if you can somehow get your arms around this-that it would not be in his own best interest. He was told to move on with his life…to move on with his life having been denied the birthright of every American to face his accusers, defend his innocence against malicious lies, and continue to pursue his chosen profession."

  Karp hoped that his "little speeches" from his voir dire questioning of the day before were resonating with the jury. "During the course of this trial, you will hear us discuss something called a liberty interest. Now, most of us think of liberty as 'freedom'-for instance, the freedom, or liberty, to live where we want, or do what we want and say what we want as long as we don't commit a crime or infringe on the liberty of other people. However, our courts have also held that there's another type of liberty, and that's the liberty to seek employment in the career of our choice. And it is that liberty, ladies and gentlemen, that was taken from Coach O'Toole without a fair hearing."

  It was at this point that Karp stopped to go over his conclusion, which he'd altered the night before after his confrontation with Coach Anderson. "If I may, I'd like to divert for a moment to tell you a story about one of the members of the ACAA hearing panel that so cavalierly acted to destroy our client's life. That man is sitting in the back of the courtroom right now-the white-ha
ired gentleman in the last row behind the defendant's table."

  Everyone in the courtroom turned to look at Coach Anderson, whose eyes narrowed and cheeks blushed but who otherwise made no indication that he had unexpectedly become the focal point of Karp's statement. "His name is J. C. Anderson, who some of you may recognize as one of the most successful college football coaches of his era."

  "Objection," Zusskin said, his baritone reverberating off the wooden walls of the courtroom as he stood up from his seat between Welt on one side and Huttington on the other. "Coach Anderson is not a participant in this trial. I see no purpose to this little anecdote."

  "Mr. Karp?" Judge Allen said.

  "Your Honor, if you'll bear with me for a moment, I think it will become clear how this 'little anecdote' applies to what we are doing here today," Karp said.

  Judge Allen's lips twisted as he considered, and then he nodded. "I'll allow it; however, please get to your point quickly."

  "Thank you, Your Honor," Karp said. "I will." He then repeated the story of hearing Anderson speak at the basketball camp. "I never forgot what he said about life not being a matter of winning and losing, but about fair play. And in the end, fair play is also what this trial is really all about. It was something that Coach Anderson and the other members of that hearing panel seemed to have forgotten."

  Karp studied the twelve faces of the jurors and noted their eyes flitting from him to the coach and back. It was time to deliver his message. "We intend to prove by a preponderance of the evidence that the truth of this case is that the American Collegiate Athletic Association and the University of Northwest Idaho and its president, Huttington, acting in concert, created and disseminated false and defamatory accusations that have so stigmatized Coach O'Toole that even should his suspension be lifted, or if he waits ten long years, it will prevent him from coaching again. How do I know? Well, you will hear from athletic directors of other colleges and universities-men who will acknowledge that even though Coach O'Toole is eminently qualified, they would never be allowed to hire him given the nature of the charges brought against him."