Malice

24

"The Defense calls E. Kip Huttington." attorney Karen Welt sounded nervous as she turned to look back at the table where her client, the university president, conferred with her co-counsel, Steve Zusskin.

Sitting at the defense table, Karp almost felt sorry for the young woman, who appeared to be in her early thirties and for the most part had hardly participated in either the pretrial motions hearing or the trial itself. It was obvious that Zusskin was directing traffic for the defense, and even now seemed to be instructing Huttington.

Swallowing hard and nodding to Zusskin, who kept a hand on his arm, Huttington finally rose and crossed the floor to the witness stand to be sworn in.

Karp looked at his watch. Almost one o'clock in the afternoon on Friday. He'd wrapped up the plaintiff's case by calling the former recruit, Michael Mason, to the stand for what was nearly a carbon copy of Dalton's testimony, and then a similar cross-examination by Zusskin, who'd gone through the same exercise of making Mason read from the abbreviated transcript.

Returning from the lunch break, Karp and Meyers told O'Toole that they felt they had a slight edge but not a clear-cut victory. A lot would hinge on whether the jury believed Dalton and Mason, the two lawyers agreed.

"Still, compared to what we were up against before Detective Fulton found and talked to Dalton and Mason, and we learned the truth about their interviews with Larkin," Karp said, "I'll take what we got anytime."

As Welt began by having Huttington introduce himself and wade through his version of the history regarding the O'Toole case, Karp looked again at his watch and wondered how his wife and the 221B Baker Street Irregulars were doing up in Sawtooth. If things went according to plan, she'd said she would know whether their mission would pan out by the time court was finished for the day. Until then, he couldn't expect to hear anything, as there was no cell phone reception in that part of Idaho.

There was little new or unexpected to Huttington's testimony. According to the university president, he'd only been following the rules and regulations of the ACAA when he first turned over Rufus Porter's complaint, and then when he declined O'Toole's request for a name-clearing hearing. "On the advice of counsel, we thought that any such hearing might breach our standing with the ACAA as the final arbiter of such matters," he said, and then repeated what he'd told O'Toole. "And we wanted the university-and Coach O'Toole-to move on and get this terrible business behind us."

Meyers's cross-examination of Huttington contained no fireworks either. Indeed, by the time his co-counsel finished, Karp thought the jury would think Huttington was a witness for the plaintiff. Under Meyers's questioning, Huttington's testimony was largely laudatory of Coach O'Toole. No, there'd never been a complaint lodged against the coach. Yes, the coach had one of the highest graduation rates for schools the size of Northwest Idaho, and yes, his squads had for the past two years been all-American academic teams because of their high grade point averages.

"Thank you, Mr. Huttington," Meyers said, and sat down to see if there would be a redirect.

Glancing over at the defense table, Karp noted that Zusskin was once again giving orders, only this time to Welt. She looked almost frightened as she nodded repeatedly and then stood to approach the witness stand.

"Mr. Huttington, do you like Coach O'Toole?" Welt asked.

Huttington looked at O'Toole and his mouth twisted as if he'd bitten into something sour. "I would have to say that prior to all of this that yes, I liked Coach O'Toole," he replied.

"What do you mean 'prior to all of this'; have you changed your mind?"

"Well, actually, I didn't believe he was capable of this sort of…'mistake,' is what he called it," Huttington said. "Not until the day he came to my office and said something that changed my opinion of him, which until that time was very high."

This is rehearsed, Karp thought, and whispered to Meyers, "Something's coming out of left field. I can feel it."

"And would you tell the jury, please, what it was that he said," Welt asked.

"Yes, it was quite sad, really," Huttington said, shaking his head. "It was after the news stories broke about Rufus Porter's accusations against Coach O'Toole. He called and asked if he could come see me 'as a friend.' As I said, I liked him and was anxious to help if I could, so I said sure. He showed up at my office and immediately broke down and started to cry."

Karp glanced at O'Toole, whose face was turning red. The younger man reached for a glass of water but his hands were trembling so hard that when he brought it to his lips the water sloshed out and splashed on the table.

"Steady, Coach," Karp whispered. "You're at bat, and everybody is watching. You have to shut it out, focus on the pitch."

O'Toole acknowledged that he heard by nodding. And Karp noticed that his hand was steadier when he put the glass back down.

"Did he say why he was crying?" Welt asked, and looked at the jury as if this behavior was strange indeed.

"Yes, he said he'd made a mistake," Huttington replied. He glanced at the jury, too, and then at Zusskin, before turning back to Welt. "He said that he was responsible for the party and planned it because he was anxious to get Mason and Dalton to sign. As everybody knows, he wants to get invited to the College World Series and 'needed the horses.'"

"Was there anything else he said, something to indicate that there were deficiencies on his current team?" Welt asked.

"Yes," Huttington answered. He looked at the jurors and apologized. "I'm sorry about the language here, but he said that he needed Dalton and Mason because they were white, smart, and better team players compared to the 'me-first, dumb-ass blacks' on his team."

"Did he use the term blacks?"

"No, and again my sincere apologies if this offends anyone, but the word he used was 'niggers.'"

Everybody in the courtroom seemed to inhale at once. O'Toole covered his mouth while in the back row, Len Clancy shouted, "That's a lie. He never uses that sort of language."

Judge Allen banged his gavel to restore order as Meyers jumped to his feet. "I object to all of this, Your Honor. None of this was in any deposition of Mr. Huttington by either the plaintiff or the defense."

"Is that true, Ms. Welt?" Allen asked.

"It just was brought to our attention last week," the attorney replied. "I believe Mr. Huttington had his reasons to hide the truth."

Allen turned to the witness. "Mr. Huttington, is there a reason you didn't report this before?"

Huttington shifted uncomfortably in his seat. "Yes, Your Honor. As I said, I personally liked Coach O'Toole and didn't believe the accusations against him. Even when he made these admissions, I still saw him as a basically good man who made a mistake and was sincerely apologetic. I am a Christian and believe that when a man asks for forgiveness, it should be given. Also, I felt that he came to me in confidence, as a friend, and that I could not betray that trust."

"And that's why you kept this important information to yourself?" Allen asked with a scowl.

"Well, I should point out this isn't the first mention of this issue," Huttington said. "Myself and Mr. Barnhill met with Coach O'Toole and told him that we thought that the ACAA would be more lenient if he just admitted that he made a mistake. I was referring to his admission when we told him that. We at the university hoped all of this could be resolved so that with a lesson learned we could move on. He chose instead to deny the accusations."

"For the record, Your Honor," Zusskin said, rising from his chair. "We intend to call Mr. Barnhill to the stand and will stipulate that we expect his testimony will confirm what Mr. Huttington just said about the meeting with Mr. O'Toole."

The judge turned to Karp and Meyers. "Gentlemen, your response?"

"Just a moment, Your Honor," Karp said, and began whispering to Meyers, who nodded and smiled grimly. Reaching to the shelf behind him for the three-ring binder containing his deposition of Huttington, Meyers stood up. "May I approach the witness, Your Honor?"

"You may."

Meyers strode across the floor and nearly tossed the binder to Huttington. "Is this a copy of your deposition taken last February?" he asked without regard for formalities or manners.

Huttington made a show of opening the binder and leafing through several of the pages. Finally, he said, "Yes, it appears to be."

"Turn to the second-to-last page," Meyers continued.

Huttington did as told. He looked up and tried to smile at the jury, though to Karp it came off more as a grimace.

"Now look four lines from the top, which begins with me asking you a question," Meyers said. "You there?"

"Yes."

"I asked, 'Is there anything else you can think of that would be relevant or significant regarding this case? Something I might have missed or was omitted?' Is that an accurate reading of what I said?"

"Yes."

"You can skip Mr. Barnhill's response, but I then said, 'Mr. Huttington, I asked you a question. This is a deposition and you must answer my questions, even if your attorney objects. And do remember you're under oath.' Is that correct?"

"Yes."

"And you acknowledge here today, in front of this jury that you were under oath to tell the whole truth, just like you are today," Meyers said, letting his anger show.

"Yes," Huttington replied. "I was…I am…under oath."

"Yes, please remember that," Meyers said. "Now read the next line, which you addressed to Mr. Barnhill."

"I said, 'That's okay, Clyde, we have nothing to hide here.'"

"Nothing to hide," Meyers repeated. "So skip a couple of lines to your answer to my question, which was, 'Is there anything else you can think of that would be relevant or significant regarding this case? Something I might have missed or was omitted?'"

"I said, 'Uh, no, I can't think of anything to add that would be relevant or significant,' and then you asked if I was sure," the university president replied.

"Thank you for adding that," Meyers replied tightly. "And were you sure?"

Huttington nodded.

"The court reporter couldn't hear that, Mr. Huttington. Were you sure?"

"I said I was but that was because-" Huttington began to say, but was interrupted by Meyers.

"I didn't ask you to explain anything, as Mr. Zusskin likes to inform witnesses," the young attorney spat. "However, my next question to you is…wouldn't you think that a conversation with Coach Mikey O'Toole in which he admitted he'd made a mistake and had sponsored this party would be relevant or significant?"

"I suppose, but like I said, I was trying to protect him," Huttington replied.

"You suppose? You suppose it might be relevant or significant?" Meyers said, looking to the jury, some of whom had smiles on their faces as they watched the young attorney light into the witness, who was turning paler by the moment.

"Yes, in hindsight, I should not have tried to protect Coach O'Toole," Huttington replied.

"And maybe you should have answered honestly-since I 'suppose' you understood you were under oath-when asked if you could think of anything else that was relevant or significant," Meyers shot back.

"Objection," Zusskin said, trying to sound as if this was all making a mountain out of a molehill. "Counsel should save it for his closing arguments."

"And maybe counsel should warn his client about perjury," Meyers replied.

Allen rapped his gavel once. "Gentlemen, quit the sniping. The objection is overruled. However, if you have anything else to say, Mr. Meyers, please frame it as a question to the witness."

"Yes, Your Honor," Meyers said, and turned back to the witness stand. "So, Mr. Huttington, I believe a few minutes ago you told the jury that during this alleged meeting between you and Coach O'Toole at which he admitted he'd made a mistake, he also said he did it because he was desperate to sign Mr. Dalton and Mr. Mason because, and I believe I have the quote correct here, they were 'white, smart, and better team players compared to the "me-first, dumb-ass blacks" on his team.' Is that correct?"

"Yes, uh, that's approximately what he said," Huttington replied, looking desperately at Zusskin, who looked back without emotion.

Meyers moved closer to the witness stand but turned to face the jury when he said, "Such a vicious, malicious, terrible thing to say…and yet you made no mention of it when I asked you if you had anything relevant or significant to add to your deposition."

Huttington looked at the young attorney in front of him and shook his head, then shrugged. "I guess I wasn't…I don't know…I guess I wasn't…"

"What, Mr. Huttington, you guess you weren't telling the truth?" Meyers finished for him.

"Objection!" Zusskin thundered. "Counsel just asked and answered his own question!"

"Sustained," Allen replied mildly. "Mr. Meyers, please allow the witness to answer your questions for himself."

"Yes, thank you, Your Honor," Meyers replied. "All right then, Mr. Huttington, did you tell the truth when I asked you if there was anything relevant or significant to add to your deposition?"

"I…well, no," Huttington replied weakly.

"So why should the jury believe you're telling the truth now?"

Huttington looked at his lawyers, who were looking down at the defense table. "I don't know," he said.

"Neither do we. No further questions for this witness," Meyers retorted, and walked back to the plaintiff's table, where O'Toole and Karp greeted him with smiles.

After Huttington's testimony, Zusskin had called a representative of the ACAA to explain the rules and procedures governing complaints and hearings. It was largely fodder to take up time until the end of the day so that the defense could use the weekend to recoup and plan their counter on Monday, which would be highlighted with the testimony of investigator Jim Larkin.

As the spectators and the defense counsel filed out of the courtroom, Karp looked back and saw that there was one last spectator still standing in the pews. Coach J. C. Anderson looked at him, then shook his head and left. Same to you, Coach, he thought.

However, it turned out that he was wrong about Anderson. An hour later, as he was awaiting a call from Marlene, there was a knock on the door of his hotel room.

Opening the door, Karp found Anderson standing in the hall. Without saying anything, the old coach handed him a large envelope. Inside had been a tape cassette and a large sheaf of papers.

Karp had looked at the papers, which turned out to be a 135-page transcript of Larkin's interview with Steele Dalton and Michael Mason. "But how? Why?" he asked as he invited Anderson into the room.

"The how is simple," Anderson replied. "Zusskin kept the tape in his desk drawer at ACAA headquarters in Boise. The day after the hearing, I dropped by to ask him a few questions you'd raised about the transcript. He had the tape lying on his desk but stuck it in the drawer when he saw me look at it. He told me it had been taped over, but I figured he was lying or he wouldn't have bothered to hide it. So after your little speech about me the other day, I had a friend, a former secretary of mine who I had a thing with a long time ago, borrow it for me. She also made the transcript."

"And the why?" Karp asked.

Anderson looked at him for a long moment. "The why is a little more complicated."

The old man walked over to Karp's window, which faced north into the mountains. "Beautiful view, no wonder Coach O'Toole likes it here," he said, and took a deep breath.

"I believe in the system, Mr. Karp. For most of my adult life, I've abided by its rules and regulations and believed that it had the best interests of the student-athlete at heart. A lot of good people, who believed the way I did, have worked for that organization. Yes, there have been times when the association has been heavy-handed and arrogant. However, I looked at all the good things the association did and decided the good outweighed the bad."

The coach tapped on the window and turned back to face Karp. "But I've noticed a lot of changes with the association over the past ten, even fifteen years. It used to be about the student-athlete, now it's about the association and those in charge, about the power they wield and are unwilling to give up, even when they're wrong. It's a big corporation now, with overpaid executives telling coaches that they can't give a kid money to get home for Thanksgiving or they could be suspended… And in the end, they're just a bunch of hypocrites who along with the universities rake in hundreds of millions of dollars in television revenues and ticket sales off the backs of college athletes."

"What I don't get," Karp said, "is why they went after Mikey O'Toole so hard on such a flimsy case. Even if any of it was true, and it isn't, they didn't have enough incontrovertible evidence to nail him for a parking ticket."

"That I don't know," Anderson said. "I'm aware there's some animosity there, a holdover from Mikey's brother, or maybe what the kid said at the funeral about his brother being blackballed. They got their noses out of joint on that one. Or maybe they did believe Porter based on bad fruit not falling far from a rotten tree. But a lot of it was also driven by the university-it was clear they wanted him out-and by Zusskin, but you'd have to ask him."

The coach stuck out his hand. "But I mostly brought that to you because of what you said to me about my little talk on fair play when you were a kid. I must have given that speech ten thousand times, and I believe every bit of it. You reminded me of that."

Karp shook the coach's hand. "See you Monday in court?"

"I'd rather not take the stand, if that's what you mean," the coach said. "But if you need me to, I will."

"I'll see what I can do to avoid it."