The Justice Game

77

Kelly’s original strategy had been to ask Melissa Davids as few questions as possible on cross-examination. She had already grilled the witness on all the good stuff during the depositions that the jury had watched. Before the CEO took the stand, Kelly had even thought about saying, in a self-satisfied way, that she had already asked her questions in the deposition and would stand on that testimony.

But the longer Davids testified, the more angry Kelly became. By the time Jason sat down, the entire Green Bay Packers football team couldn’t have stopped Kelly from going after this witness.

“Cute answer,” Kelly said sarcastically. “You think this is a joke?”

Jason stood to object but Davids waved him off.

“Getting sued is never a joke,” Davids said. “I take it very seriously when somebody accuses me of causing another human being’s death.”

“Good. Because I have some serious questions.” Kelly prowled the well of the courtroom, a panther stalking her prey. “Let’s start with the types of weapons you sold in your nice little family business.”

“Objection, Judge,” Jason said. “Argumentative.”

“Sustained. Ms. Starling, we can do without the sarcasm.”

“Let’s start with the original design of the MD-9, a design that made it easy for customers to convert the gun into an illegal fully automatic assault weapon.”

“The MD-9 was a perfectly legal semi-automatic pistol,” Davids responded. And before Kelly could ask her next question, Davids tried to preempt her. “I know… next you’re going to ask whether I was aware that a large number of customers converted it into a fully automatic pistol and whether the ATF got involved and all that-am I right?”

The arrogance of the woman’s answer infuriated Kelly. “Your Honor,” she said, “please tell the witness to just answer the question.”

Garrison complied, delivering a stern little lecture to Melissa Davids.

“I was just trying to save us some time,” Davids said.

“You also had a run-in with the ATF over your sales of silencers; is that right?”

Davids nodded. “The ATF ranks right up there with trial lawyers.”

Kelly ignored the answer, firing off a series of questions about the way MD Firearms had circumvented the laws regulating the registration of silencers.

“You sold the outer tubes for the silencer, and other companies sold the internal parts, right?”

“If you’re talking about sound suppressors, that’s correct.”

“More than six thousand tubes sold by MD Firearms, and only four buyers registered their suppressors. Does that sound right?”

“Approximately.”

“What did you think folks were doing with all those suppressors?” Kelly asked. “Sneaking up on deer if they missed with the first shot?”

Davids smirked. “Do you think this is a joke?” she asked mockingly. “I thought we were going to ask serious questions here.”

“You seem to have a knack for providing criminals with the weapons they need,” Kelly stated.

“Objection!” Jason said. “That’s not a question.”

“I’ll withdraw it,” Kelly said.

“I’ll answer it,” Davids said testily. “We already had one court rule in our favor when the ATF sued us on the issue of the suppressors. Unless I’m missing something, you don’t get to appeal that decision here.”

The women dueled for a half hour, keeping each juror on the edge of his or her seat. For Kelly, it was like beating her head against a brick wall. She decided to end on a sure bet.

“The jury watched your first deposition, where you denied under oath ever thinking about whether you should stop selling guns to Peninsula Arms.” She handed Davids a copy of the memo from Case McAllister.

“Is that your handwriting at the top of this memo, which has been marked as Plaintiff’s Exhibit 27?” Kelly asked.

“Yes.”

“And this is a memo where the company’s attorney, that man right there, Case McAllister, was analyzing the pros and cons of whether you should discontinue sales to certain problematic dealers, including Peninsula Arms, right?”

“Objection. The memo speaks for itself.”

“Sustained.”

Kelly nodded, taking a step closer to Davids. “Why don’t you read Case McAllister’s conclusion and what you wrote right next to it?”

Davids studied the memo for a moment. “Case wrote, ‘A careful cost-benefit analysis suggests we should continue selling guns to all licensed and qualified dealers.’ And I wrote, ‘No kidding. Whatever happened to free enterprise?’”

“If Mr. McAllister had included in his memo the fact that keeping these gun dealers in business would cost many innocent people their lives, would you have come to the same conclusion?” Kelly asked.

“Objection,” Jason said. “Calls for speculation.”

Davids turned to Judge Garrison. “I’d like to answer the question if I could,” she said.

“I’ll allow it,” Garrison ruled.

“I would have told him that a lot of innocent people have already lost their lives on the field of battle to protect our rights as Americans,” Davids said, “including the right to bear arms as memorialized in the Second Amendment. I would have told Mr. McAllister that he should remember those lives the next time he starts weighing which side of the debate the innocent deaths stack up on.”

Kelly waited a few seconds before asking the next question. Now they were getting somewhere. “Does the Second Amendment say you have to supply shady dealers? Is the Second Amendment a license to kill?”

“The Second Amendment,” Davids said emphatically, “is a license to prevent tyranny, arm the innocent, and thwart criminals.”

“I have one last question, Ms. Davids. And I would appreciate a yes or no answer.” Kelly took another step toward the witness. She waited two or three seconds, absorbing the total quiet of the courtroom. “Was the Second Amendment in place on the date that Rachel Crawford was gunned down by Larry Jamison?”

“Of course.”

“Then maybe the Second Amendment is not enough. Maybe we need to use a little common sense and discretion too.”

“Objection,” Jason said.

“Withdrawn,” Kelly said, returning to her seat.