Malice

22

It wasn't until hours after the shooting that Karp heard about the assassination attempt. He, O'Toole, Meyers, and Fulton had been holed up in a room at the Grove Hotel in downtown Boise reviewing the case, going over strategy, and running through O'Toole's testimony and what he could expect on cross-examination.

Meanwhile, Marlene had been coordinating the various needs and requests of the 221B Baker Street Irregulars, who would be arriving in Sawtooth a few days before the trial. "We're having a hard time getting the right equipment to the site. It will be there, but it might not be until the day the trial starts," she'd told Karp that day before they heard the news from back East. "Sorry, but we may be pushing it to help you."

"That's okay," he'd replied. "I hope you find Maria Santacristina, but we're not counting on it. I'm going into this thinking we're going to have to dance with the dates we brought to the ball. But I'll save you a spot on my dance card for the second day if you think you can keep up."

"Oh, I can keep up, buster," Marlene responded. "If I remember correctly, it's Marlene, ten, Butch, zero, for who quit first out of our last ten dances?"

"Who's counting," Karp said, and laughed. "Besides, I wasn't talking about that kind of dancing."

Not until he got back up to his room later and turned on the television did he learn about the St. Patrick's Day Parade events in New York City. Stunned, he'd glanced at the telephone and saw that the message light was blinking, which had turned out to be a call from Lucy-saying she was all right and would be in touch shortly-and another from Marlene, who was in Sawtooth, angrily scolding him for turning off his cell phone and then relaying the news from Manhattan.

They tried to assassinate a U.S. senator! Of all the terrorist acts that had been attempted or accomplished in recent years, this one struck Karp as more a thrust right to the heart of what America stood for than all the bloody massacres. Not worse, nothing was worse than the taking of innocent lives, nothing more reprehensible than murder in the name of God. But those events were easily seen for what they were: evil, senseless-serving only to harden the resolve of the West to stand up to terrorists.

This, however, had been an attempt to shake fundamental American values by trying to silence a voice that was warning the American people not to let fear carve away at their civil liberties. A voice that was demanding the truth regarding what was really behind Kane's escape and the attack at St. Patrick's Cathedral, the bombing of the Black Sea Cafe, the murder of Cian Magee, and the attempted hijacking of the Staten Island Ferry.

It made him wonder if maybe the conspiracy nuts were in some way right, maybe the enemy within was more dangerous than the enemy without. After all, what did it matter if the terrorists were defeated if there was nothing left worth saving? If the Constitution could be ignored, or shelved for convenience, if a senator could be selected for assassination because he demanded the truth, why was he, Butch Karp, in a federal courtroom in Boise fighting for one man's right to those constitutional protections?

Officially, the Department of Homeland Security had released a preliminary report stating that Paul Stewart, a disgraced member of the NYPD, had been acting on his own. "It appears that Stewart had not selected any particular person," according to the press release. "But that he intended to shoot 'targets of opportunity' in an attempt to avenge his dismissal from the New York Police Department and gain publicity."

Neighbors of Stewart in the Bronx apartment complex he lived in had been quoted by the media as saying the shooter was an angry man whose wife had left him following his dismissal from the NYPD. The reports noted that Stewart had been kicked off the force after being implicated in the burgeoning "No Prosecution" files investigation by the DAO.

"He told me that he was going to get even with the city," an anonymous man was quoted as saying in the Times.

Stewart's past and alleged statements had led to widespread speculation that Stewart's intended targets had been the mayor and the chief of police. "He may have also hoped to shoot District Attorney Butch Karp, who he apparently blamed for his dismissal," the Times story reported.

Karp, of course, knew better than the "official version" released by the Homeland Security Department. He'd been told the entire story by Lucy and filled in on other details by Jojola. However, Jon Ellis had requested that no one contradict the department "while we investigate Lucy's information about the Sons of Man and see if we can locate them."

The department press release had also indicated that Stewart's plot had been foiled by "concerned citizens, who acted bravely and swiftly in the face of great danger to themselves." The citizens had not been named "out of regard for their safety, in the unlikely but possible event that Stewart had an accomplice."

Even Stupenagel had not yet picked up on Lucy's involvement. Television clips of the assassination attempt had been played ad nauseam. However, most of the cameras had concentrated on the viewing platform or had swung around wildly in the confused melee and had difficulty picking out the shooter and the "concerned citizens" until it was over. Then the television cameras had focused on shots of Stewart lying on the ground with the hilt of a knife protruding from his back and federal agents escorting several people away from the scene with blankets over their heads to protect their identities.

One week removed from St. Patrick's Day, Karp stood in a federal courtroom in Boise, Idaho, still trying to come to grips with the enormity of the attempt to kill Thomas McCullum. He was a few minutes from the beginning of voir dire, the jury selection process for the O'Toole trial, but his mind was back in Manhattan.

If the assassination attempt and the various other terrorist acts associated with it weren't enough to worry about, Manhattan was still serving up plenty of other "normal" crimes to keep the DAO hopping while he was gone. Two days before the O'Toole trial was to begin, Assistant District Attorney Harry Kipman, who was acting DA while he was on leave, had called to let him know that they had a new high-profile homicide case.

Charlie Campbell, the Manhattan borough president and a candidate for the Eighth Congressional District, had returned home to his Upper West Side brownstone to find that his three young children-one of them an infant-were missing. His wife, Jessica Campbell, who was discovered asleep in the master bedroom, woke and happily announced that she'd saved their children from Satan and that they were in heaven.

They haven't found the bodies, Kipman had said. And the press is all over this one big-time. They're already running stories that Mrs. Campbell suffered from postpartum depression and had attempted suicide after her second child's birth.

Where's she now? Karp had asked.

Locked up at Bellevue, Kipman had replied. She wouldn't say what she did with the kids, except that they're in "a better place." And now her husband has her lawyered up. No murder weapon either. Oh, and here's irony for those of you out in Idaho, the family station wagon is gone, too, presumably on the road to heaven. Not to be too obtuse, but I'm guessing we're looking at an insanity defense.

"I'd bet on it, Karp had replied. And it's not going to be pretty if we pursue multiple murder charges against a popular borough president's wife suffering from postpartum depression.

Karp had told Kipman to handle the case like any other homicide. And no one's to say anything to the press, he'd added.

Now he needed to concentrate on helping Meyers and O'Toole. Early that morning, a Wednesday, he rose before the sun was up and went down to the hotel's workout room. He hit the weights hard and then spent thirty minutes on the stationary bike, working up a sweat while he filed away the happenings in Manhattan so that his mind would be clear in court. His wounded leg ached as he showered, ate a room service breakfast, and then walked to the courthouse. But the pain seemed to help him focus on the present so that by the time he reached the courthouse steps and saw O'Toole and Meyers waiting for him, he was ready for battle.

They tried to assassinate a U.S. senator! With an effort, Karp turned his attention to the front of the courtroom, where a moment later federal district court judge Sam Allen entered and immediately asked for the jury pool to be escorted in and seated in the pews.

Tall and rangy, Allen was a native son of Idaho who when not in the black robes of his profession preferred a cowboy hat and boots more fitting for his ranch west of town. He spoke in a slow, measured Western drawl, but Karp had found him to be sharp as a Spanish spur, to stick with the Western imagery.

Allen had the bailiff call out twelve names from the pool. Those called rose and made their way to the jury box, where the judge first questioned them to see if any had sufficient reason to be excused, and then told Karp he could begin his questioning.

Karp introduced himself and "my co-counsel, Richard Meyers, and our client, Coach Mikey O'Toole." He then began to set the stage for what he hoped would be the theme of the trial. But instead of the usual mundane personal opinion questions asked of each juror, he'd addressed the twelve potential jurors who'd been seated with a series of questions. At the same time, he made sure that his voice was loud enough for the rest of the jury pool to hear. "How many of you have ever felt you were falsely accused of something?"

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 cannot 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."