JL04 - Mortal Sin (11 page)

“Yes, they had lunch one day to discuss Peter’s opposition to Mr. Florio’s planned project in the Everglades.”

“And when did this occur?”

“Sometime in July. About two weeks before Peter’s death.”

Oh brother. Here it comes, the stock option, or what Patterson will call a bribe, if he gets the chance. I was leaning forward in my heavy walnut chair.

“What transpired at this meet—”

“Objection!” I was on my feet in world-record time. “Unless it is established that Mrs. Tupton was present, the question is improper.”

Judge Boulton didn’t even look at Patterson before ruling. “Sustained.”

Score two for our side.

“Did Mr. Florio offer your husband anything at this meeting?”

“Objection, leading.” I was still standing, moving closer to the bench, as if my voice would reach the judge’s ears quicker.

“Sustained.”

On a roll now. Hey, I’m getting good at this.

“Did your husband tell you what transpired—”

“Objection, hearsay.”

“Sustained.”

Patterson paused and riffled through more of his note cards. There was no way he could get what he wanted into evidence. Apparently, there were no witnesses to the meeting, no documents that would reflect the conversation. Other than making me look a little frantic to keep out some evidence, Patterson had dug a dry well.

Patterson cleared his throat. “Now, Mrs. Tupton, did there come a time that your husband went to the Florio house for a party?”

“Yes, Sunday, August ninth.”

“Did you go along?”

“No. I was volunteering at the hospital that day.”

Ouch. She probably discovered a cure for cancer during her lunch break.

“Mrs. Tupton, do you miss your husband?”

I didn’t need to hear the answers. Direct examination is pre-ordained. I could write the script. Every day. The house is so empty without him.

Her eyes glistened. “So very much. Everywhere I look, in his study, in his workshop, there are so many reminders of him.”

“Why did your husband go to the home of a man who was threatening to sue him?”

Because my husband was a saint. He’d try to talk the devil out of his pitchfork.

“Because Peter was always willing to talk. He believed that he could reason with Mr. Florio. He took along photographs and a videotape of the animal life in the Everglades. All the studies about the aquifer, the water table, everything.”

“Was your husband a drinker?”

No, unless you count when he offered a toast to Mother Teresa at a charity dinner.

“No, sir. Once in a while, he’d have a glass of wine with dinner, that’s all.”

“When is the last time you spoke to your husband?”

Before he left for the party, and I left to scrub the floors of the ICU, he gave me a kiss and told me how much I meant to him.

“When he called me at the hospital from the Florios’ house.”

Huh?

I had taken her deposition, and she never mentioned a phone call. Of course, I hadn’t asked…

“And what did your husband say to you?”

“He—”

“Objection! Hearsay, Your Honor.” No way I was going to get sandbagged.

With a look of pure tranquility, H.T. Patterson turned to the judge. “May we approach the bench, Your Honor?”

Dixie Lee Boulton waved us up. The court reporter, a dazed-looking young woman who chewed gum relentlessly, brought her little machine to the side of the bench away from the jury. The judge leaned our way, both of us straining to get close. “What is it, Mr. Patterson?” the judge whispered. “Sure sounds like hearsay to me.”

“Once the question’s answered, Your Honor, it’s going to fall right into the excited utterance exception of Section Ninety-point-eight-oh-three, subsection two.” Patterson cocked his head toward me. “You’re familiar with the statute, aren’t you, Jake?”

“I’ve rubbed up against it once or twice,” I said, turning toward the judge. “Anytime a lawyer’s got some hearsay, he thinks he can put an exclamation point on the statement and get it in. Your Honor, the statute’s only used for the truly exceptional statement made under stress—’He’s got a gun!’—that sort of thing.”

“Mr. Lassiter’s right,” Patterson conceded, “but we fit into the rule.”

“Only one way to find out,” the judge told us. “Bailiff, take out the jury.”

When the jurors had filed into their little room, H.T. Patterson asked the question again. With the jury out of earshot, the judge, Marvin the Mayen, and I all listened expectantly. At the defense table, Nicky Florio scowled.

“What did your husband say to you on the phone?”

“Peter was so excited. I could hear it in his voice. He was hyper, talking a mile a minute, saying he was in Mr. Florio’s den, and he didn’t have much time. Everybody else was at the pool. He had come into the house looking for a bathroom. At first, he was just looking around. Mr. Florio had all these alligator hides, mounted bonefish, boar heads, and other pretty disgusting trophies. Then Peter looked on Mr. Florio’s desk. He said he knew he shouldn’t, but couldn’t help himself.” Melinda Tupton cleared her throat and looked at the judge. “There was a document, he didn’t say exactly what, but he’d read it quickly and then called me, more excited than I’d ever known him. ‘ The condos are a cover!’ That’s what he kept saying, shouting really. ‘The condos, the shops, the town, it’s all a cover!’ He said it was a nightmare, worse than anything he had imagined. Those were his last words to me. ‘It’s a nightmare, worse than anything I had imagined.’”

I couldn’t have picked up my jaw from the floor with both hands, so I made up for lack of poise with excessive volume. “Outrageous, Your Honor! It’s still hearsay. I can’t cross-examine
Mr.
Tupton, so we’re left with this supposed excited utterance allegedly heard over the telephone about an unseen document not in evidence, a document obviously not related to the issue of my client’s alleged negligence in serving alcohol to an intoxicated guest. So the statement is hearsay on hearsay, and further, the statement is not relevant or material. It’s prejudicial and inflammatory. It’s…”

“Overruled. Bring in the jury.”

Story of my life. Little victories followed by a major squashing. So I got to listen to the story again. This time Mrs. Tupton dispensed a tear or two just as she said, “Those were his last words to me.”

“Where’s Gina?” I asked Nicky Florio while I packed my trial bags at the lunch recess. I wasn’t taking them anywhere, but I didn’t want to leave my notes on the defense table. Like newspaper reporters, lawyers can read upside down, and I didn’t need H.T. Patterson scanning my papers.

“Why, you miss her?”

There was an edge to his voice, and I didn’t like it. “I just like a wife to stand by her man. The old Tammy Wynette routine. It looks better for the jury. Besides, Gina makes a good appearance.”

“Oh, you noticed.”

We headed toward the elevators, fighting the crowd of lunchtime lawyers, hungry as a school of bluefish, pushy as…well, as a crowd of lawyers. “Hey, Nicky. What gives? Why you giving me grief?”

“Forget it. You know I hired you because Gina asked me to. Old times’ sake. Some guys wouldn’t have done it. They’d be jealous, threatened, that sort of thing. But a real man, Jake, a real man controls his emotions. You lose control, you make mistakes. You make mistakes, you get hurt. You with me?”

Or against me, my mind was asking.

“I think so,” I said.

The elevator doors opened, and we elbowed our way in. “Good. I’ve gotta keep my mind on business. Gondo and I are trying to get Cypress Estates off the ground, and I’m stuck in court all day listening to that little jackrabbit bad-mouth me.”

In the lobby, Marvin the Mayen and his friends were standing under a mural of the Spanish explorers making nice with the Calusa Indians. It is only one of many lies to be found in the courthouse. “
Nu
, Jacob, how you doing,
boychik
?”

“I don’t know, Marvin. I think Patterson scored some points this morning.”

Marvin fingered the part on his toupee and seemed to think about it. “Window dressing. Just window dressing, Jacob. Nobody cares about the boids.”

In the cool, dark confines of Paul Flanigan’s Quarterdeck Lounge across the street from the courthouse, I munched a burger and drank three iced teas. No beer during trial. Florio sipped at his coffee, black. I can never understand guys who skip lunch. By noon, I could eat the animals mounted in Nicky Florio’s den.

“What about her story?” I asked. “What’d Tupton see in your den?”

“The fuck should I know?” Nicky straightened the knot on his flowery silk tie. “It’s the first time I heard about it.”

“What’d he mean about the condos being a cover?”

“Who knows? The guy was three sheets to the wind. Besides, like you said, what’s the relevance?”

“I’m not sure, yet. I just don’t like surprises, so it would help if you’d tell me everything you’ve got planned for Cypress Estates.”

“Look, Jake, I got certain business matters that are private, and I don’t go around broadcasting them until the time is right. In business, timing is everything.
Capisce?
”

“I’m your lawyer.”

He gave me a look. “Yeah, so what?”

“So I owe you certain duties, confidentiality for one.”

“And loyalty, too. Isn’t that right, Jake?”

“Sure. It’s in the rules. A lawyer can’t engage in conflicts of interest.”

“Rules.” Nicky Florio’s smile was nearly a smirk.

“You don’t believe in them.”

“Only losers play by the rules, and you’re not a loser, Jake.”

“What are you saying?”

“The gods make their own rules. One of the old Romans said that.”

“I’m not following you.”

“Oh, I think you are. I don’t play by anyone else’s rules, Jake, and neither do you. If you did, you wouldn’t have your dick on the chopping block with the Bar Association. And you wouldn’t have conflicts of interest, would you?”

I stayed quiet. I thought I knew where he was going, but I wasn’t going to help him get there.

“The fact is, Jake, you and I are a lot alike. Hope that doesn’t insult you, Counselor, but it’s the truth. You don’t believe me, just ask Gina. A woman like Gina has great instincts. She knows men, Jake. She knows us better than we do.”

T
HERE ARE FEW SURPRISES IN TRIALS ANYMORE, THANKS TO THE
discovery rules, a lawyer learns the other side’s case before trial. Your opponent must provide you with a witness list and copies of all exhibits. You can ask written questions under oath and require production of documents. You cross-examine all your opponent’s witnesses before ever setting foot in a courtroom. So, it’s not like Perry Mason. I have yet to see a bombshell witness fly through the courtroom doors to save the day. Never have I even heard of a member of the gallery standing up and proclaiming, “All right, I admit it, I killed Norby Frebish, and I’d do it again!”

Still, you must be quick on your feet. You may think you are fully prepared—a sturdy ship maintaining a steady course—but it never works quite that way. At best, you’re a rickety boat sliding down treacherous waves in a sea peppered with unseen mines. As in a stage play, you rehearse and rehearse. Unlike a play, in court, after the first act, you often tear up the script.

You need
strategy
, and that is different from preparation. Building your case is one thing. Changing it as you go is another. Imagine you are building a house. You dig the foundation and carefully follow the plans. You lay every block in line, drive every nail straight, and align every wall true.

That is the way most people live and work. But with generals, coaches, and lawyers, it is different. Just when you get that two-by-four in plumb, some joker with a sledgehammer whacks it out of place. Lay in the wiring, and the same joker shreds it. As soon as the windows are in place, you hear the sound of tinkling glass.

The lawyer, like the general, must have a plan, but must also foresee the opponent’s next move. And when the move is a surprise, you’d better have plans A, B, and C ready. If war is endless boredom interrupted by moments of sheer terror, trial work is deadening preparation followed by panicky ad-libbing.

I didn’t expect the excited utterance from Melinda Tupton, and I was unsure how it would play, Tupton’s fears about a document so sinister as to evoke his worst nightmares. For once I didn’t agree with Marvin the Mayen. I doubted that the intent was to provoke sympathy for the Everglades animals. No wood storks died in the Florio wine cellar. I thought Patterson was simply trying to create animosity toward Nicky Florio. It even helped Patterson’s case that the document was unseen by the jury. What is more horrifying than the unknown?

Maybe Patterson’s strategy went like this:

First, convince the jury that Peter Tupton was a good man.

Second, suggest that something planned by Nicky Florio repulsed and terrified Tupton.

Ergo, as Charlie Riggs would say, Nicky Florio is a bad man.

At the essence of every case is the attempt to get the jury to like your client and hate the opposition. When liability is foggy, it makes the hard evidence less important than raw emotion.

It was just after lunch when I finally figured out what Patterson was doing. It became clear as I was thumbing through the plaintiff’s proposed jury instructions.

The instructions are the last words the jurors hear before retiring to their little room. Each side prepares an independent set. The introductory ones are innocuous. Jurors are told to test the believability of witnesses based on their experiences. They are instructed not to base their verdict on sympathy, an important one for the defense in a death case. They are told that negligence is the failure to use due care and that they should also evaluate the comparative negligence of the plaintiff, which can reduce a verdict.

I was standing at the clerk’s table, skimming through Patterson’s requested instructions.

Ho hum.

The standard stuff. Believability of Witnesses, Prejudice and Sympathy, Definition of Negligence, Punitive Damages. Whoops. What was that again?