Malice kac-19

by Robert K. Tanenbaum

  "No, no," he cried. "I promise, it's over between Lisa and me. Ow! Ow! Okay, uncle. I knew all along you were my lovely wife, Marlene."

  "That's better, lover boy," Marlene purred.

  "So what brings you to Boise so late, my dear? I was expecting you in the morning."

  "Carnal desires," she replied. "And maybe to deliver a little good news for my best boyfriend." He'd already heard the report about finding Maria Santacristina; now she filled him in on that after-noon's confrontation with Huttington and Barnhill. "One of the conditions for not seeking the death penalty is that Huttington answer truthfully at any court case he is required to attend, including yours on Monday morning."

  "Oh, most beauteous and intelligent siren, this is wonderful news beyond all hope," Karp waxed.

  "Now, that's more like it," Marlene said, giggling and allowing her hands to wander.

  "I'll say," he replied.

  On Sunday, Karp had interviewed a pale and quivering Kip Huttington, who'd been placed on suicide watch in the Boise city jail. They went over Huttington's testimony, which left him staring blankly at the table in front of him as one tear after another splashed down. Karp did not feel sorry for him one bit, either.

  The next stop had been to see Rufus Porter, who started to play tough guy again-saying his dad would get him a lawyer "and get my co-urst confession tossed out"-until Marlene dropped his Valknut medallion on the table. "Recognize this, Rufus?" she asked. "We have plenty of bits and pieces, including that tattoo under your biceps, which comes in loud and clear in the photograph Hamm took. Not to mention the feds want to talk to you about some weapons violations with your fingerprints all over them. Ever hear what fed pens are like? State joints are kindergartens by comparison. Now, do you still want to play games?"

  Porter's lip started to tremble, and then he started to blubber. "No, what do you want to know?"

  Karp looked around the courtroom and saw Coach J. C. Anderson sitting in back, only this time he was sitting on the plaintiff's side. The coach nodded and he returned the acknowledgment. Marlene was sitting in the front row with Fulton, Lucy, Ned, and a young woman Karp did not recognize as he walked up to say hello.

  "Oh, there you are," his wife said, and then touched the young woman lightly on her shoulder. "Butch, I'd like you to meet Maly Laska."

  Laska appeared nervous, but her handshake was firm. "Nice to meet you," she said, then looked at Marlene. "Boy, when your wife says she's going to do something, she doesn't hold back, does she?"

  Karp smiled, thinking of the many ways that applied to Marlene Ciampi. "No, she doesn't," he said. "Thanks for coming… And thanks for what you did-that took courage."

  Laska blushed and mumbled something about it not being a big deal. Karp excused himself and joined his co-counsel and client at the plaintiff's table, ignoring requests by several members of the press who'd followed him down the aisle.

  Unlike during the first days of trial, when it was still just a civil lawsuit by a small university baseball coach for what the press had essentially boiled down to wrongful termination, the courtroom was now packed with reporters. They smelled blood and were schooling in preparation for a feeding frenzy.

  Karp rose with everyone else when Judge Sam Allen strode into the courtroom, wondering if this was how the Indian war chief Crazy Horse felt when told about Custer entering the Valley of the Little Big Horn. Bring 'em on.

  The massacre commenced when Zusskin called James Larkin to the stand, though like Custer, neither the lawyer nor the investigator seemed to sense the impending disaster. Instead, Zusskin reviewed the abbreviated transcript and then asked Larkin why it was only nine pages long.

  "Well, my job was to ask only a few pertinent questions and get the answers," Larkin said. "You have to remember, this wasn't for a court hearing, where it's my understanding that both parties receive all of the information. I sometimes interview hundreds of people, and if I transcribed every four-hour conversation and kept every tape, we'd never get anywhere. Think of it as, I was the person asking the questions for the ACAA panel and then reporting the answers. Nothing more."

  "And what were those questions, Mr. Larkin?" Zusskin asked.

  Larkin held up his big hands and ticked off the questions one fat finger at a time. "Did Coach O'Toole know about the party? Did he contact the escort service and pay for the…um, entertainment? Did he pay for alcohol that he knew would be consumed by the two recruits, who were underage? And did he attempt to interfere with my investigation by telling Mason and Dalton not to cooperate or to lie?"

  "And those questions were answered in the nine pages of the transcript you provided, in accordance with the rules and regulations of the ACAA, to the hearing panel?"

  "Yes."

  "Was there anything else that was substantive or relevant that perhaps you should have included?"

  "No, not that I can think of. The interviews weren't all that long because, as I said, I was really only after those specific answers to my specific questions."

  "So if Mr. Mason and Mr. Dalton testified in this courtroom that your transcript was missing statements in which they denied that Coach O'Toole did these things, your answer would be?"

  "What can I say, they're lying," he answered, looking at the jury.

  Zusskin gave a meaningful look to the jury and said, "No more questions. Your witness."

  As Karp approached the witness stand Larkin tried to stare him down, but he got such a dose of "the Karp Glare" that he wilted, looked over at the jury, and laughed in his high, squeaky voice.

  Karp held up the abbreviated transcript. "This is nine pages long," he said. "Steele Dalton and Michael Mason both testified that most of what they said isn't on here."

  Larkin leaned back in the witness chair and looked at his fingernails. "Anything substantive, or relevant, is included in that transcript, all in accordance with ACAA protocol."

  "And this is the transcript that the ACAA panel that heard Mikey O'Toole's case used to suspend him?" Karp asked.

  "Well, that and some other things," Larkin responded.

  "And if I recall your testimony at a pretrial hearing regarding the admissibility of this transcript, the tape recording of these interviews was destroyed?"

  "No, actually, what happened is I had my secretary transcribe the recording and then I used the tape again for another interview," Larkin replied. "Now I wish I hadn't."

  "I see," Karp said with a slight smile. "Then you will be happy to hear that I have that tape and wouldn't you know, you didn't record over it after all." He reached behind him for the cassette tape on the plaintiff's table and held it up.

  "Your Honor, it is the plaintiff's intention to offer into evidence this copy of a tape marked on the outside 'Dalton-Mason' and also a certified transcript from that tape, one hundred and thirty-five pages in all. Your Honor, I am compelled to inform the court that we have good reason to represent to you that the defense has been well aware of this tape and its contents. We, of course, have copies for counsel, which"-he turned to see that Meyers was giving Zusskin a copy-"have just been handed to them."

  The judge raised his eyebrows and looked over at Zusskin, who sat in stunned silence. He appeared to be unable to speak, so the young attorney next to him shouted, "Objection!"

  "Yes, Miss Welt," Allen said mildly. "What exactly is your objection?"

  "I, um, I don't know, but I'm sure we have one," the young woman said, nudging Zusskin.

  The poke in the shoulder seemed to bring Zusskin to his senses. "What is this nonsense?" he sputtered, rising shakily to his feet and poking the bigger transcript with his finger. "This is a fake."

  Karp enjoyed the moment, then turned to the judge. "Your Honor, if the defense will not stipulate to the admission in evidence of the tape and the corresponding certified transcript, then we'll ask that Mr. Larkin step down temporarily so that we can make an offer of proof by calling Coach J. C. Anderson to the stand to vouch for its authenticity and provenance."


  Zusskin and the ACAA reps all swiveled in their seats to look at Coach Anderson, who glared right back. "Your Honor, Coach Anderson, as you know was a member of the ACAA panel that voted to sanction my client. He has since had a change of heart and obtained a copy of the supposedly 'destroyed' tape, which he gave to me. If the defense would prefer, we could just play the tape in its entirety. I'm sure the jury will be able to distinguish the voices of the two young men and Mr. Larkin and will be able to determine if it is all part of the same interview. Then they can make a decision if anything substantive, or relevant, was left out."

  "I really must object," Zusskin complained. "This is…" He groped for a word.

  "Unfair?" Karp said helpfully. "Unfair, as in how you stacked the deck against Mikey O'Toole?"

  "Mr. Karp," Judge Allen said dryly. "If you don't mind, can we proceed, please? I believe you asked if the defense would prefer you call Mr. Anderson to the stand, or play the tape, or simply stipulate that they are accepting your exhibits without a fight."

  "Pretty much, Your Honor," Karp replied.

  Zusskin turned to look at the ACAA reps, the leader of whom made a signal with his hands. The lawyer plopped down in his seat and waved a hand at Karp. "Go ahead. We withdraw our objection."

  Nice, Karp thought, they just threw Larkin under the bus.

  "Well, then, Mr. Karp, please proceed."

  "With the court's permission." Karp handed copies of the transcript to the court clerk. Feeling that he now had everybody's attention, he turned back to the witness, who was looking pale as he leafed through his copy of the new transcript.

  "Mr. Larkin, have you had a chance to glance at the papers in your hand?"

  Larkin looked up like a condemned man at a firing squad. "Uh, yes."

  "Good. Now, can you tell us what is on those pages?"

  "It's a transcript," Larkin said weakly. He looked over at the defense table, but Zusskin was now almost prone and watching a pencil he was twirling in his fingers.

  "A transcript of what, Mr. Larkin?" Karp said, circling in the water.

  "Of my conversation with Steele Dalton and Michael Mason."

  "And contains the nine pages of transcript that the jury has already seen. Is that correct?"

  "Yes."

  "Which means there's about another one hundred and twenty-six pages they haven't seen? Am I right?"

  "Yes."

  "Very good, Mr. Larkin. Now, I'm going to ask you to read from the transcript, but first I want to make sure I'm recalling correctly. You previously testified that there was nothing else substantive or relevant in the interviews with Mr. Dalton and Mr. Mason, except what was included in the nine pages you provided the ACAA panel, am I correct?"

  "Well, I meant that in my opinion…uh, I," Larkin stammered.

  "I asked you a simple question and that requires a simple answer," Karp said. "Nothing substantive or relevant, that's what you said, right?"

  Larkin gave up. "That's right. Yes, it's true."

  "Okay, Mr. Larkin, let's read together, like a little play. Only I'll read your parts and you read the rest. Let's start with the interview of Mr. Dalton, on page forty-three. You in the right place?"

  "Yes."

  "Okay, let's see, you said, 'I'm going to ask you again, was Coach O'Toole aware of the party?'"

  "'Uh-huh.'"

  "Go on with that sentence, Mr. Larkin. And please remember that the jurors are reading along with us and will notice any deviation from the truth."

  "Um, sure… 'Uh-huh…well, at least that's what Rufus Porter told us on the way to the party. We asked if Coach O'Toole knew we were going, and Porter told us that the coach knew all about it.'"

  Karp nodded. "Very good, Mr. Larkin. Now, again directly from the transcript, you asked the following question and received the following answer. Question, quote: 'Did Coach O'Toole tell you himself about the party or paying for alcohol or strippers?' And Dalton's answer was?"

  "Let's see, uh, he said, 'No. We didn't see Coach O'Toole again after the last meeting. We were in our rooms getting ready for bed when Porter showed up and said we could go to a special party only for certain guys.'"

  Like shooting fish in a barrel, Karp thought. "All right, let's skip forward about thirty pages, nothing very substantial in there, I'm sure. Now, page seventy-eight, starting about the fourth line down. You there? Good. Okay, question by you: 'Did Coach O'Toole tell you not to cooperate with this investigation?' And his answer was?"

  "His answer was: 'No. He told us to cooperate. He said he wasn't worried because he didn't do anything wrong.'"

  Karp glanced back at the plaintiff's table as Larkin read. Mikey O'Toole sat with his head bowed, wiping at his eyes. Karp thought of his friend Fred O'Toole and how he'd died.

  Jumping over into the interview with Mason, Karp got Larkin to read through the lines that showed that Mason had confirmed Dalton's story. Porter had showed up after bed check and offered to take them to a party. But other than Porter's word, there was no indication that Coach O'Toole knew what was going on.

  "This is on page one hundred and twenty," Karp said. "You asked, 'Did Coach O'Toole tell you to lie to ACAA investigators if they asked you questions about the party?' Now, read the next lines."

  "'That's not what he said,'" Larkin read. "'He told me to tell the truth. He said there's never such a thing as one lie because one lie creates another lie until nobody knows what the truth is.'"

  Karp closed his copy of the transcript. "Until nobody knows what the truth is," he repeated. "Mr. Larkin, after what we just heard, do you still feel that the only substantive, relevant information was on the nine pages of the transcript you created?"

  Larkin shrugged. "It was my opinion that the boys were lying to protect the coach."

  "Nine pages of truth, to a hundred and twenty-six pages of lies," Karp said. "That's a whole lot of lying, Mr. Larkin. So many lies that nobody knows what the truth is, right, Mr. Larkin?"

  "Objection," Zusskin said wearily. "Counsel is making a speech."

  Karp looked at Larkin, then Zusskin, then the representatives of the ACAA, and snorted in disgust. "I withdraw the 'speech,' Your Honor. And I'm done with this witness."

  Zusskin rose tiredly to his feet for redirect, but he seemed lost as he blinked at Larkin without speaking. One of the ACAA reps reached over the bar and tugged on his coat; the attorney leaned back and listened. When he looked up, it was with relief written all over his face.

  "Your Honor, we have no further questions for Mr. Larkin," he said. "But may I approach the bench?"

  "Be my guests," the judge said, and nodded to Karp and Meyers to join them.

  Zusskin smiled at Karp as he walked up, as if ready to offer the deal of a lifetime. "My clients-the ACAA and the university, which, considering the current circumstances of Mr. Huttington and Mr. Barnhill, is now represented by the Board of Regents-have decided that there is no reason to continue this trial. They are prepared to offer a very generous sum to settle the case, as well as reinstate Coach O'Toole to his former position at the University of Northwest Idaho."

  "May I inquire as to the change of heart?" the judge asked.

  Zusskin spread his hands, shook his head, and smiled. "Just that the jury might misinterpret some of what has been said here. And we are concerned that the complainant, Rufus Porter, may not have been entirely truthful."

  "No, as a matter of fact, everything he said was a lie," Karp remarked. "Your clients are just trying to buy their way out of one huge expensive embarrassment."

  "So, Mr. Karp, does that mean you are turning down the offer to negotiate a settlement?" the judge asked with an amused look on his face.

  "No, I owe it to my client to present the offer," Karp said. "Give me just a moment."

  Every eye in the courtroom followed Karp's mission to the plaintiff's table, where he sat and spoke quietly to O'Toole for perhaps thirty seconds with Meyers listening in. Then Karp stood up and returned to the judge's bench with a big smile on
his face, which Zusskin misinterpreted.

  "We have a deal?" Zusskin grinned.

  "No way." Karp grinned back.

  "What?" Zusskin replied, frowning.

  "No way, Jose," Karp chuckled. "My client wants complete vindication from this jury and this court."

  The judge sat back and said aloud so that everyone in the courtroom could hear, "Well, then on that note, Mr. Zusskin, call your next witness, please."

  Zusskin put his hands in his pants and rocked back on his heels. "Uh, Your Honor, we had intended to call Clyde Barnhill to the stand, but given the circumstances of which I'm sure you've been made aware, we, uh, won't be doing that."

  "So are you resting, Mr. Zusskin?"

  Zusskin looked back at the ACAA reps, who nodded as one. "Looks that way, Your Honor," he said, and tried to smile but failed.

  Allen straightened up. "Well, then, if there are no further witnesses, I guess we can move to closing arguments. Yes, what is it, Mr. Karp?"

  "Your Honor, there is one request, we'd like to recall Kip Huttington back to the stand."

  Zusskin whirled and stalked back up to the judge, where, when Karp and Meyers joined him, he whispered, "He can't do that. Mr. Huttington has already appeared and been dismissed. And in light of what happened over the weekend, I doubt Mr. Huttington's lawyer will let him take the stand unless it is to invoke his Fifth Amendment privileges against self-incrimination."

  "Au contraire," Karp whispered back. "Mr. Huttington has waived his Fifth and his right to an attorney. Your Honor, I am recalling Mr. Huttington to correct the record from his prior testimony. He will testify, among other things, that he lied when he said that Coach O'Toole confessed to him."

  The judge nodded. "Then by all means, let's get him up here and hear what he has to say."

  The spectators in the courtroom gasped as a handcuffed Kip Huttington shuffled into the courtroom wearing a jail jumpsuit. A deputy walked alongside with a hand on his arm, though it looked like it was more to support the quaking man than out of concern he might attempt escape.