sails.
“The jury, ladies and gentlemen, is our watchman, or watch-woman, as the case may be,” Patterson said, nodding to Gloria Morales. “The jury is the keeper of the lighthouse. The jury is the seaman, or seawoman, in the bird’s nest. The jury keeps a close eye, a protective lookout, just as Peter Tupton was our watchdog over the Everglades.”
Or watch cat, I thought, my mind tumbling into a void of the absurd as I tried to pay attention.
“You have to understand and keep clear that this is not the death of a man, this is the death of a husband, a special person. This was Melinda’s spouse and soul mate, and she is without him, for now and forever. And remember this, marriage is God’s greatest invention.”
Greater than football?
“But now, instead of facing a future of togetherness, she has only black hours of loneliness. Her husband was taken from her, and not by the will of God, but by the negligence of man. Now, instead of a future filled with love, there is a future filled with fear. The fear of waking up at night alone, the fear of hearing noises in the dark, the fear of…”
Having to listen to lawyers babble on.
“…eternal loneliness, the fear of not having the security of her husband. Who is there to share her life? There is nobody who wants to see the scrapbooks or the home movies. There is nobody with whom to share the memories, because the only person who would have cared is gone.”
Patterson paused and turned toward the widow. As if on cue, the jurors followed his gaze. Melinda Tupton wore a navy-blue pleated skirt and a matching double-breasted jacket over a white silk blouse. No makeup, no earrings. Her eyes were moist and red. With the jury still transfixed, Patterson asked, “How do you put a monetary figure on that loss?”
If the jurors didn’t know, H.T. Patterson could tell them. Very generously. But before scribbling numbers on the blackboard, he had another question for the panel. “When Mr. Lassiter stands up, what’s the first thing he’s going to do?”
Ask the judge for a five-minute recess so he can take a piss.
“He’s going to remind you of something he said in voir dire and something the judge will say in his instructions. The judge will tell you that your verdict is not to be based on sympathy. Fine with us. We don’t want sympathy. Melinda Tupton has had all the sympathy she’ll ever need. She had a funeral. She had tears. She had notes and cards and flowers. Today, she’s here for what she’s entitled, money damages. So let us now talk about the items of damages which the law provides. Let us talk of loss of comfort, society, and consortium. Mental anguish and suffering. Lost support, lost…”
And talk he did. More about her empty world. A couple of old saws about the value of human life, and how much money we spend protecting the lives of our astronauts and pilots or searching for one capsized boater in the Gulf Stream. Lawyers are great at making non sequiturs sound like eternal verities. When he finally built to a crescendo, Patterson asked the jury for $6.5 million. Nobody winced or gasped. Not even me.
Before I stood up, Nicky Florio clasped me on the shoulder. It was as close to a display of affection and goodwill as I would get. I walked toward the jury box, being careful not to knock over the lectern. It is unpleasant having jurors laugh at you. When I was a public defender, just out of night law school, I was snakebit. I originally attracted Marvin the Maven’s crowd because they thought I was better than a stand-up act in the Borscht Belt. In one of my first criminal trials, I tried to discredit a prosecution witness by asking, “You’re not an unbiased witness, are you, sir? Isn’t it true that you, too, were shot in the fracas?”
“No, sir,” he answered. “I was shot midway between the fracas and the navel.”
Now I planted myself in front of the box and thanked all the good folks who gave up their normal routine to come downtown and risk being mugged. Briefly, I agreed that Peter Tupton was a fine fellow, and it was a shame for him to die before his appointed three score and ten. Then I hammered away at liability. I told the jurors that not every accident ought to lead to a lawsuit. I talked about personal responsibility as one of the great American character traits. Ruling for the plaintiff, I implied, was somehow unpatriotic.
“There were more than a hundred people at the party, and only one got falling-down drunk. How can that be the host’s fault? In this country of self-sufficiency and freedom of action, we take care of ourselves.”
As I spoke, I watched myself. Our brains let us do that. We raise a camera, look down, and listen and judge ourselves. On the surface, I was doing fine. A B+ in trial tactics, a solid B in performance. But there are other subjects in my personal report card, and another part of my brain was computing the moral responsibility of my actions. Lawyers aren’t supposed to do that. We really are hired guns. Give us the targets and the ammo, and we’ll blast away. But here I was, grading the culpability of my own actions, just as I was saying…
“You heard a grieving widow, and it is right and proper that she grieve. What is not right is that my client be made to pay for her grief. You heard the testimony from Mr. Gondolier. He sees a wobbly Peter Tupton and warns him, ‘Watch it, those mimosas can sneak up on you.’ Mr. Tupton should have known that he couldn’t handle his liquor. He’s drinking in the hot sun, and he’s warned, but he goes on drinking. He wanders into the house and snoops around the host’s desk. I’m not here to cast aspersions, but it wasn’t very polite. No sir, that’s not the kind of conduct you expect from a guest.
“Then he goes back outside and drinks some more and becomes belligerent for no reason, except one. His judgment was clouded. He was intoxicated. He harangues Mr. Gondolier over the proposed golf course. He’s behaving badly, rudely. Then he goes back into the house and ends up in the wine cellar, where he continues to drink his host’s champagne, but not by invitation. There is but one conclusion, ladies and gentlemen, and that is that the harm which befell Peter Tupton was of his own making. Nicholas Florio was not the proximate cause of Peter Tupton’s death. Peter Tupton was.”
So my personal report card had me failing the course in basic decency and morality, even though I did everything by the book. I had an ethical obligation to use Gondlier’s testimony because I did not know it to be false. When I surreptitiously taped Guillermo Diaz, I broke the rules but did the right thing. Now, I followed the rules, but what I did was unalterably wrong.
After I sat down, H.T. Patterson got his last chance. It’s the plaintiff’s great advantage in a civil case, the government’s in a criminal trial. Rebuttal. The last word.
He pointed out that we had no corroboration for the testimony of Rick Gondolier, an associate and dear friend of Nicholas Florio. He harked on the animosity between Florio, a filthy-rich developer, and the saintly Peter Tupton. He hinted at a vague conspiracy and the bizarre nature of his client’s death. Finally, he told a little story.
“There once was a smart-aleck young boy who wanted to fool a wise old man,” Patterson said. “The boy captured a small bird and asked, ‘Wise old man, what do I have in my hand?’ And the wise old man said, ‘You have a bird, my son.’ ‘But is the bird alive or dead?’ the boy asked. And the old man smiled a sad smile and answered, ‘The bird is in your hands, my son.’”
Patterson turned to look at me, though I didn’t hold any birds. “The old man knew that if he answered that the bird was dead, the boy would open his hand, and the bird would fly free. If he answered that the bird was alive, the boy would squeeze the life out of it. So it is with Mr. Lassiter, who controls the premises, the party guests, the testimony of Nicholas Florio and Rick Gondolier. We introduce evidence of a shocking revelation made by Peter Tupton in the Florio home, and Mr. Lassiter has a ready explanation. A golf course! Really, now. The party guests were friends of Mr. Florio and Mr. Gondolier. They don’t contradict their friends’ testimony. Peter Tupton didn’t have any friends at the party, so Mr. Lassiter holds all the marbles. He holds the bird in his hand. We present the evidence of excessive drinking at the party, and Mr. Lassiter presents his statistics that we are not in a position to refute. Nine ounces per person. Do you believe that? We weren’t there, and you weren’t there, but you can use your common sense. An answer for everything, that’s their defense. They say they even had champagne left over, so how much drinking was going on…?”
Then it came to him.
I saw the emotions cross his face. One after the other.
Confusion, then delight, then terror.
Because he hadn’t asked the question of Nicky Florio when he could have. And now it was gone, though he gave it a shot, anyway.
“And what happened to that leftover champagne?” Patterson asked. “Where did it go after-”
“Objection, Your Honor.” I was calm, quiet. No need for alarm. “There’s been no testimony about the disposition of the champagne. Rank speculation is not comment on the evidence.”
