JL04 - Mortal Sin (12 page)

Buried in the stapled stack of the plaintiff’s instructions was one simply entitled Punitive Damages.

If you find for plaintiff Melinda Tupton, as Personal Representative of the Estate of Peter Tupton, and against defendant Nicholas Florio, you may consider whether in the circumstances of this case it is appropriate to award punitive damages, in addition to compensatory damages, as punishment and as a deterrent to others. Punitive damages may be awarded in your discretion if the conduct of defendant Florio was so gross and flagrant as to show a reckless disregard of human life or safety.

The jury-charge conference would come at the end of the case, but I couldn’t wait. I buttonholed H.T. Patterson at the plaintiff’s table. “What the hell’s this?”

He shrugged. “The standard punie charge, right out of the book. You may recall we amended the complaint to include the claim.”

“I recall, but that’s a throwaway. There’s no evidence to support—”

“No evidence! Jake my boy, were you listening this morning? It’s quite obvious. Peter Tupton had discovered something so heinous that your client dispatched him.”

“Are you out of your mind! You can’t prove that.”

“I’m not claiming it was a premeditated murder, and you’re half-right. There’s no way I could prove it, at least not in criminal court. But, Jake, we’re downtown with the buzzards, who, strangely enough, only circle the civil courthouse. I’ve always wondered why they stayed away from the criminal-justice building, but—”

“What’s your point?”

“Simple. I only need to prove my case by a preponderance of the evidence, and the way I figure it, the jury will conclude that Florio discovered Tupton in the den. They argued over the document. Nicky Florio’s not the kind of guy to pull out a gun. He tries to smooth-talk Tupton, maybe even offers him a bribe again.”

“What do you mean
again
? My objection was sustained. Your client never got to answer—”

“But there was the question, wasn’t there, Jake? Come now. You knowhow jurors pick up the slant on things. You were sweating bullets to keep out the answer, and you did it, but the jurors saw it. They think your guy’s dirty, and frankly, so do I.” Patterson gave me his cat-to-the-canary smile. “You want to hear more?”

“I’m all ears.”

“Whatever Florio tries, threat or bribe, it doesn’t work. Tupton’s too honest. Florio isn’t used to this. He’s been buying off zoning boards and county commissioners for so long, he doesn’t know what to do. He needs time to think. Tupton’s already had too much to drink. Florio wants him to drink some more. At first, I thought they probably went back out to the pool. But no, at this point, Tupton’s getting loud and excited. You heard his wife’s testimony. He was hyper, and there are politicians and journalists outside. Florio can’t afford a scene. And if you recall, none of the guests can place Tupton outside again after he went inside to piss.”

“Or to spy.”

“Have it your way. But there’s a wet bar in the den, did you know that?”

I didn’t know, and I didn’t answer.

“It’s really quite a nice bar.” Patterson smiled malevolently. “When we had the inspection of the house in discovery, we took photos. Polished teak, I believe. So perhaps Florio offered Tupton something a little stiffer than a mimosa. Just a couple of men in a dark, paneled den. A little scotch, perhaps. Tupton would be staggering by now. From the den, it’s just a short walk down the hall to the wine cellar. No one would see them. There are two chairs in there, bleached wood to match the shelving. White pads for comfort. Maybe open a bottle of wine, or more champagne, the good stuff, showing his guest respect.”

“I still haven’t heard anything about murder.”

“And you won’t, not in this courtroom. Florio just wanted to keep Tupton on ice…sorry about that, keep him away from the crowd, buy some time. I figure he left him there with all the bottles and goes to get his partner, what’s his name?”

“Rick Gondolier.”

“…who’s making nice with the ladies out by the pool. Florio and Gondolier come back, and there’s Tupton sprawled out on the floor, passed out, with some expensive champagne running down his chin. They just leave him there. It gives them time to figure out what to do when he wakes up. Except…”

Except he wakes up dead, I thought.

“…he doesn’t wake up. Are you following me, Jake? Florio doesn’t figure Tupton’s going to die, but he doesn’t really give a shit. That’s the essence of punitive damages, isn’t it? Complete disregard for the well-being of another.”

H.T. didn’t have to say the rest. The damages are assessed in an amount sufficient to punish the defendant. The richer the defendant, the bigger the award. Biggest bummer of all, punitive damages are the equivalent of a criminal fine, and insurance won’t cover them.

“So, Jake, I’m wondering if the blackboard is big enough to hold all the zeros I’m going to put up there in closing argument. How does ten million sound to you?”

Like a funeral dirge, I thought.

“Why tell me all this?” I asked. “Why lay out your case?”

“To give you a chance to save us all a lot of work. The trial, appeals, years of delays.”

“How much?”

“Five million,” he said with a shrug. “Think about it.”

I thought about it. H.T. Patterson had succeeded in making a simple negligence case into a civil version of a murder trial. I hadn’t been ready for it, and now I was beating myself over the head. I had deposed Melinda Tupton. What should I have asked? Did your husband call you and make an excited utterance? No, of course not. But a simple “When was the last time you spoke to your husband?” would have done quite nicely.

The case had turned from the negligence of a social host serving alcohol to a guest—a tricky case for a plaintiff because jurors expect people to take care of themselves—to something far different.

Gross negligence.

Willful and wanton misconduct.

Reckless disregard of human life.

Punitive damages.

Yeah, let old Jake handle the case. He can’t fuck it up. And if he does, the insurance company will cover his ass. Not anymore, Nicky.

I stood up for cross-examination of Melinda Tupton and strode confidently toward the witness stand. Never let them see your fear. I buttoned my navy-blue suitcoat, proving I could walk and accomplish other rudimentary tasks simultaneously. My shirt was white, a tad too tight at the collar, which is what happens when you have an eighteen-and-a-half-inch neck. My tie was burgundy and didn’t have any gravy stains, as far as I could tell. My face was tanned but felt overheated and flushed.

What to ask?

There was the stuff about Florio’s threatened STAPP suit. I could get her to admit that her husband’s main tactic was doing the same thing, threatening suit. These days, it’s sometimes a race to the courthouse to see who files first, the developer or the bird-watchers. But that was a double-edged sword. Tupton’s threats could provide the motive for killing him—or letting him die—even without the mysterious document in the den.

The document.

Whatever it was, Nicky either didn’t know or wouldn’t tell me. I could ignore it, of course, and try to show the jury it didn’t bother me. I could also hope that the tooth fairy would deposit silver dollars under my pillow. On the other hand, by getting into the phone call and the document, I might open the door to redirect examination that could go even further than the so-called excited utterances on whose petard I was now hoisted.

I opted for the low-key approach and hoped I would know what to do when the time came. My questions were so soft, the jury had to lean forward to hear them. You don’t come out of the box swinging wildly at a widow lady. Not unless you want the jury to lynch you and bankrupt your client.

I asked about her education and her job as a public school teacher, gently implying that she was self-supporting and didn’t need a fortune to sustain her. I asked her age, thirty-four, not to be impolite, but to let the jury know that there was still time for her to meet, to marry, and to procreate. I asked—because I knew the answers—whether she had been treated by a psychiatrist for depression after her husband’s death, whether she had missed an excessive amount of work, and whether she needed sleeping pills or other medication.

No, no, and no.

Slowly, I asked one boring question after another, trying to build an impression that might chip away at the mental-anguish claim, the ominous intangible that lights up the scoreboard in wrongful-death cases. The conclusion I wanted the jury to reach was simple: This is a young, strong, intelligent, vital woman who will survive, and in time, prosper. So don’t break the bank at Monte Carlo to help her out.

I established that her husband had been a workaholic who spent little time fixing things around the house, or repairing the cars, so as to reduce the lost-services claim. I purposely did not ask if she had started dating or planned to remarry because it angers jurors, and the answer wouldn’t have helped my case. I made no gestures and accepted every answer kindly and tried to let the jury know that I am a decent-enough fellow who does not strangle kittens or malign widows.

I paused and walked back to the defense table. Nicky Florio looked up at me expectantly. His eyes seemed to be pleading for more. He couldn’t believe I was finished.

Neither could I.

I put all my notes on the table, turned, and moved closer to the witness stand. “On direct examination,” I began, “you testified about a phone call from your husband on August ninth.”

She nodded, prompting the judge to remind her to keep the answers audible for the court reporter.

“During this phone call,” I said, “your husband seemed excited, did he not?”

Melinda Tupton sat with her legs crossed, her hands folded in her lap. “Yes.”

“Was his voice louder than usual?”

“Yes, somewhat.”

“Was he speaking rapidly?”

“Yes.”

“Some of his words slurred?”

“Not slurred, exactly. But he wasn’t as articulate as usual. It’s hard to explain.”

“Did he say he’d been drinking?”

A pause. She was thinking about it. “Yes. He either told me outright, or I asked him, I don’t remember which. Either way, he said he’d been drinking champagne mixed with orange juice.”

“And the reason you think you may have asked him is that he didn’t sound quite like himself?”

“That’s right.”

“Mr. Tupton was not a heavy drinker, was he?”

“No, I already said that when Mr. Patterson asked.”

I smiled my tolerant smile. “I understand, Mrs. Tupton, but this is cross-examination, and your answer may lead us to something else, so please bear with me. The few times you saw your husband drink, he became tipsy, didn’t he?”

Bluffing her.

She couldn’t know if I knew…

Holding my breath now.

The book says you don’t ask a question on cross-examination unless you know the answer. But instinct told me I was right and that Melinda Tupton was honest. The book also says that you try to frame the question to get admissions. You’re allowed to lead the witness. The perfect cross-examination does not elicit a series of long-winded explanations. The answers should be a string of yes’s and no’s, depending how you phrase the questions.

“I’m not sure what you mean,” Melinda Tupton said.

Not knowing where I was going, but figuring the truth would hurt her case. Still, not wanting to lie.

Fake a risk, now. Chide her, let the jury see her reluctance to answer, but be careful not to offend. “Come now, Mrs. Tupton, you know the meaning of the word ‘tipsy.’”

“Objection, argumentative!” H.T. Patterson was not going to imitate a potted plant.

“I’ll rephrase,” I offered before the judge could rule against me. “Could your husband hold his liquor?”

This time the answer came quickly. “No.”

Heaven praise an honest woman.

“So it took only a couple of drinks to make him inebriated?”

“Yes.”

“People respond differently to alcohol, don’t they, Mrs. Tupton?”

“Objection!” Patterson was on his feet again. “Calls for an opinion. Outside the witness’s expertise. No predicate. And irrelevant.”

“Anything else?” Judge Boulton asked.

“It’s a silly question,” Patterson said.

“Overruled. It’s a matter of common observation.”

“I suppose they do,” the witness said.

“Some people get loud and obnoxious. You’ve seen that, haven’t you?”

“Yes.” Her voice barely a whisper.

“Some people get sleepy and quiet.”

“Yes.” Softer still.

“And your husband would become excited and hyper, would speak rapidly, wouldn’t sound quite like himself.”

“Yes.”

Though her voice was faint, I heard the answer, and so did the jurors. But I wanted them to hear it again, so I fibbed. “I’m sorry, Mrs. Tupton. I couldn’t quite hear you. When your husband became inebriated, he would become excited and wouldn’t quite sound like himself, correct?”

“Yes, that’s correct.”

“And when you spoke to him on the phone on August ninth, you knew he’d been drinking, didn’t you?”

“I thought so, yes.”

Time for a quick change of pace. Keep her off-balance. “Your husband wasn’t the kind of man to snoop through someone else’s desk, was he?”

Whack!
Patterson slapped the top of the plaintiff’s table. “Objection! Mischaracterizes the evidence. No one
snooped
through—”

“Denied,” Judge Boulton declared. “The jury heard your direct exam and can make up its own mind.”

I turned back to the witness, my eyes asking her to answer.

“No,” Mrs. Tupton said. “He wasn’t like that.”

“But he changed when he became inebriated, didn’t he?”

“I suppose we all do, to an extent.”

“He became less inhibited?”

“I guess.”

“Did you ask him what it was he had found in Mr. Florio’s den?”

“Yes.”

I walked back to my table and picked up my trusty yellow notepad. I thumbed past my A”s and O’s diagram of a sprint draw play and found my notes of the direct examination. “But he ‘didn’t say exactly what it was.’ Weren’t those your words?”