Mortal Sin jl-4 Page 12

Explanation

  On Thursday, I called Nicky Florio to testify. He marched to the stand as if he owned it. I let him talk about himself, and he was good at it. In five minutes, we had established he was a prominent figure in the community, a contributor to charities of every denomination, and a hell of a party giver. I had cautioned him to be humble, or at least to put a lid on the arrogance, and he carried it off well. We polished up the speech from his deposition, and it worked.

  “I’m truly sorry about Mr. Tupton, a man I admired,” Florio said, looking the jury straight on. “But what could I have done? I had a house and patio full of guests, a hundred people to attend to. The way I see it, and I don’t mean to be disrespectful, a man’s simply got to take responsibility for his own actions.”

  Florio wore his sincerity like a vestment, and the jury seemed to buy it. Two of the men nodded, or were they falling asleep?

  I asked Nicky how much champagne was served at the party. We totaled up the bottles on a blackboard, figured the number of ounces consumed and divided by the number of guests, allowing some for spillage and half-empty glasses. It worked out to only nine ounces per guest. Jurors like numbers and hard data, and I was trying to reinforce the concept that most guests voluntarily limited their intake, and who’s to blame if Tupton didn’t? That had H.T. Patterson yelling up a storm of objections. “The average consumption of champagne at the party is irrelevant! What matters is how much they served to one guest, the late Peter Tupton.”

  “The statistics are relevant to show the basic air of normalcy at the party,” I responded.

  Judge Boulton shrugged and denied the objection. I asked how-much champagne had been purchased for the party and established that two-and-a-half cases were left over when the party ended about 8:00 P.M. and the catering crew cleaned up. Hardly a scene of wild, drunken debauchery.

  And then it hit me.

  The leftover champagne.

  The question that gnawed at me, but that I couldn’t ask.

  I wondered if Patterson figured it out, too. My questioning had led him to a wide-open door. If he went through it, he could destroy Florio’s credibility and blow us out of the water. He could prove, or at least support by inference, just what he’d been beating his breast about the other day, the reckless, even willful, conduct that caused Peter Tupton’s death. I sneaked a peek at the plaintiff’s table. No sign of recognition. No furious taking of notes.

  I sat down, holding my breath, waiting for Patterson to sink us on cross-examination. Patterson stood up, buttoned his white linen suit coat, and approached the witness stand. Then he simply repeated much of what he had elicited from Florio during the plaintiff’s presentation. I started breathing again. I leaned back and watched Nicky Florio. It made me wonder. Does every murderer look so good in a custom-made suit?

  I like to try my cases in a reasonable order, liability first, damages last. But with experts, it doesn’t always work that way. My economist had to catch a plane, so I put him on in the middle of my liability case. In contrast to the plaintiff’s expert, mine predicted that, had Tupton lived, not only wouldn’t he have accumulated a couple million bucks, he’d probably be in hock to his bank and the credit card companies.

  The trial was spinning along, but I felt as if I were swimming in Jell-O. I asked my questions but didn’t listen to the answers, a cardinal sin for trial lawyers. I still hadn’t decided what to do with Rick Gondolier until he strode into the courtroom after lunch. He wore a black silk suit with padded shoulders, a white-on-white shirt and black silk tie with turquoise flowers. The thick blond hair was combed straight back and flipped up just above his shoulders. The diamond earring faced the jury box, causing Gloria Morales to nudge her neighbor, point at Gondolier, and discreetly tug at her own ear.

  All in all, my witness looked like Miami Vice ’s version of a major drug dealer with soap-opera good looks. If I were on the jury, I wouldn’t believe anything after his name and occupation, and maybe not even that much. Or was I projecting my own jealousy? Damn, Charlie, you were right. I can’t be objective. I can’t help my client because I’m thinking of me, not him. I believe Nicky Florio is guilty of far worse than serving too much champagne to a tipsy, wimpy guest. But why do I think that? Because of the evidence or my own tangled emotions?

  Gondolier promised to tell the truth, the whole truth, and nothing but the truth, and lightning didn’t strike him dead. He smiled his pearly whites at the jury, and they smiled back. I hitched up my pants and decided to see if this Las Vegas slickster could tote the mail.

  I took him through his background, trying to make a casino operator seem like a priest. I let him talk about the hundreds of thousands of dollars won by housewives and retired folks at the bingo hall, then I asked him about the party.

  “Did there come a time that you saw Peter Tupton?”

  “Several times,” he said. “Nicky introduced me to him by the buffet table near the pool.” Gondolier gestured toward the defense table, where Florio nodded his approval. “That was early afternoon.”

  “Can you describe that first meeting?”

  “Nothing remarkable. I told Mr. Tupton I knew of his work and that I was a proud member of the Audubon Society and the Sierra Club. He told me he had visited the bingo hall. It was very pleasant.”

  “What was Mr. Tupton’s physical condition at the time?”

  Gondolier seemed to think about it. “Nothing unusual. It was very hot outside, and all of us were in swim trunks. The buffet table was in the shade, and there was a slight breeze from the water, but it was still hot. Mr. Tupton was drinking a mimosa. More than one, actually. I wandered off to say hello to Mrs. Florio and some of the guests, Mr. de La Torre from National Sugar, the mayor, a few others.”

  “Did there come a second time you saw Mr. Tupton?”

  “Yes.”

  “And when was that?”

  “Perhaps an hour later.”

  “And what transpired then?”

  “It was still brutally hot, and I saw Mr. Tupton by the seawall. He was alone and seemed to be talking to himself. He was wobbling…”

  Oh boy. Where did this come from? Gilding the lily, Gondo?

  “…so I told him to watch the mimosas, they sneak up on you. As I recall it, he giggled and grabbed another drink from a waiter who was passing with a tray on his way to the pool. Then he said he had to relieve himself and headed toward the house.”

  “Did there come another time that you encountered Mr. Tupton?”

  Out of the corner of my eye, I was watching Patterson. Alert but not alarmed. He didn’t know what was coming, and with this witness, neither did I.

  “Maybe twenty minutes later,” Gondolier said, “he came back, all in a lather.”

  “Could you be more specific?”

  “He’d been in the house, and apparently he’d seen some papers in Nicky’s den. He was ranting and raving…”

  Patterson was wide awake. He couldn’t believe we were shooting ourselves in the foot like this. Gondolier was eliminating any chance I could claim that it never happened. Just wait, H.T. This witness has been sucker-punching guys since the sixth grade.

  “…about our golf course.”

  “Your golf course?”

  “Yeah. Apparently, he’d seen the plans for the course at Cypress Estates, and he was very unhappy about it. He was saying something about golfers yelling ‘fore’ and scaring off the birds, something like that. At first I thought he was joking, the way some people do when they drink too much. But he kept up, carrying on about the threats to the animals.”

  “Objection!” Patterson called out, glaring at me.

  “Grounds?” the judge asked.

  Patterson’s eyes darted back and forth. “Violates the dead man’s statute.”

  For once I was ready. “Not so, Your Honor. Section 90.602 only applies to probate proceedings where the witness has a financial stake in the estate. These statements are party admissions that are exceptions to the hearsay rule and not
covered by the dead man’s statute.”

  “Overruled,” Judge Boulton declared.

  So Gondolier told the story his way: A party guest who was a drunken lout raised a ruckus over nothing, a golf course, for crying out loud. I looked at Patterson. He was doing his best to keep the jury from seeing his dismay. He hadn’t wanted the mystery of the den solved. It destroyed the insidious implication that Nicky Florio wanted Peter Tupton dead to cover up some horrible secret.

  Rick Gondolier’s yarn sounded just fine. Much like Florio, he was a good witness. So good, in fact, I almost believed him.

  After Rick Gondolier left the stand, I took a deep breath and rested the defendant’s case. I hadn’t even had time to consider whether I had violated my own ethical rules. I hadn’t lied to the court, but I was pretty sure my witness had. I shoved the thought to the deepest recesses of my mind. There would be time for self-analysis later.

  The judge told us we’d give closing arguments at nine the next morning, so I had to prepare something to say. I did this the usual way. I headed to Coconut Grove in my ancient but amiable convertible and changed from my uniform-Lane’s men’s store off-the-rack blue suit, 46 long, white shirt, burgundy tie-into cutoffs and sneakers. I was shirtless. That can get you arrested in Palm Beach, but thankfully, Miami doesn’t try to emulate the snob mob to the north.

  It was an unusually humid day for March. The cold front was a distant memory. As thunderheads gathered in the western sky over the Everglades, I jogged the vita course in the park along Bayshore Drive. I did pull-ups, first palm-out for the triceps, then palm-in for the biceps. I jogged some more and was nearly sideswiped by two Rollerblading teenage girls in satin shorts and bikini tops. A coed volleyball game was under way on the grass. Bicyclists and speed walkers and mothers with strollers shared the asphalt paths that cut through the park to the shore of Biscayne Bay.

  I stopped alongside an inclined plank, dropped to the ground, and did elevated push-ups. While I worked on my body, I was folding, spindling, and collating my thoughts. Later, at home, I’d bang out some notes on my old Royal typewriter. I like it because it works even during a power outage.

  The wind was picking up, shifting direction from the bay to the Everglades. The white clouds turned an angry gray, and fat raindrops started plopping, wet and cold, on my bare back. A bolt of lightning cracked, followed by a thunderclap. When I looked up, there was an open patch of sky, the darkness parting just where the land ended and the bay began. Something caught my eve. A billowy cloud on the landward side resembled the face of a bearded, hatchet-jawed man. In the sky-or was it in my mind-the cloud took on a wrathful countenance. I studied it as another lightning bolt creased the air, flashing across the face, which then appeared to glower directly at me from on high. As it moved across the sky, the cloud took shape, the face darkening into a shadowy silver-black furious glare.

  It looked familiar. I remembered an old musty text I had read, or at least skimmed, in college. Introduction to Mythology. I had needed a three-credit elective, and it sounded easier than quantum chromodynamics.

  And there he was. A familiar face.

  Zeus, lord of the sky, chief deity of the pantheon.

  So why was he so pissed off at me?

  Chapter 11

  A Bird in the Hand

  “I don’t want to become excited,” H. T. Patterson was saying, his voice rising to fever pitch. “I don’t want to get emotional.” His eyes filled with a reservoir of tears. “I simply wish to address your attention, ladies and gentlemen, to the circumstances under which this man died. Needlessly died. Died deprived of comfort and dignity. This was an unnecessary death caused by the negligence of the defendant. And when you consider compensation for that needless, wrongful act, do not strip the last vestiges of dignity from his memory. No, let your verdict stand as a recognition by you of Peter Tupton’s humanity and dignity.”

  Dignity seemed to be the key word here, I thought. Patterson had already run through the liability portion of his closing argument, and now he was sharpening his tools to ask for umpteen million dollars. But he wasn’t as confident as he had been after the widow’s testimony. Rick Gondolier had taken some of the wind out of his 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 d
owntown 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.”