Legal Reserves

by James Rosenberg

  Tanner sat with an impish smile and had no difficulty speaking directly to the jurors. Mike’s questions were simple, and Tanner’s answers were even simpler as he offered little in substance, unable to articulate how his life was different since his mom had returned from her detention at the department store. Mike presumed that the jury sympathized with Tanner, no matter how unaffected he acted.

  Mike did not ask a lot of questions of Tanner, again wanting the jurors to see that he and his sister were good kids caught up in a bad situation. Tanner was another face of the travails the family had endured.

  Jack didn’t rise when he said, “No questions for this witness.”

  Stan nodded to indicate Mike had covered Martha’s damages appropriately. Mike worried that the jurors were focused on her lack of physical injuries. If the jurors didn’t buy that Martha was hurt, they had lost the case. Calling more witnesses to testify about her problems wouldn’t serve any purpose. Mike was ready to shift to putting on the people who would establish the company’s liability for handcuffing Martha Gebbert to a table.

  Mike glanced at the jury, wanting some sign they supported him. All he saw were blank faces impassively staring towards the window, waiting for the trial to continue.

  Chapter 52

  September 11, 2018, 9:30 a.m.

  Trial Day 2

  “THE PLAINTIFF WILL call Steven Lombard for cross-examination.”

  Jeri turned to the jurors. “Parties are able to call witnesses associated with the other side as witnesses in their own case. Because Mr. Lombard is employed by the defendant, plaintiff may call him as a witness in her case and cross-examine him.”

  The jurors nodded and turned their attention to the witness stand, seeing a young, well-dressed man, take his place in the box. Mike stood at the edge of the jury box, ready to put on testimony to prove the company’s liability.

  Within two minutes of putting Lombard on the stand, Mike established that the witness was 26 years old, already divorced, and had held three jobs for less than six months before the department store hired him. He was a high school graduate, but received no further education and had no background in security or law enforcement before he became a detective for the company.

  Mike moved to question Lombard about the training the company provided. “Before you began as a security guard, you went through a training course.”

  “Yes,” Lombard said.

  “The course lasted three days.”

  “Yes.”

  “A man named George Magnuson ran your training.”

  “Yes, Mr. Magnuson taught us a lot.”

  “Mr. Magnuson was a store detective for the company who was fired by the company three months later.”

  “I believe that is true.”

  “For, and I read from his personnel file, ‘gross incompetence.’“

  “News to me.”

  “Other than what Mr. Magnuson taught you, you received no training from anybody else.”

  “Also true.”

  “Mr. Lombard, did you receive any written guidelines from the company on how to handle shoplifters?”

  “Yes, in our training materials.”

  Mike held up the binder of materials. He began reading, “When you locate a shoplifter, you are to take him or her off the sales floor to the designated shoplifter detention area.”

  “Yes, you are reading correctly.”

  “The rules of Wendell’s encourage you to handcuff a suspect to assist in your investigation.’“

  “Yes, they taught us to place shoplifters in cuffs.”

  “I’ll read further: ‘A suspect who is handcuffed will remain in handcuffs until they sign the theft admission form.’’“

  “Exactly.”

  “They taught you to handcuff suspects to a bar on the table in the designated shoplifter detention area.”

  “Yes, so they couldn’t do any harm to us.”

  “So let me get this straight. Whenever you handcuffed someone, you chain them to a table until you decide to release them and you only release them if they sign the theft admission form admitting they stole something.”

  “Correct.”

  “Sir, what if your suspect didn’t’ steal anything?”

  “I’m sorry, I don’t understand.”

  “What if they didn’t steal something?”

  “Oh they stole something. If we detain them, we’re positive they’ve taken something and they taught us not to listen to their excuses and trust what we see.”

  “So, once you decide to stop someone, you take them downstairs and handcuff them to the bar on the table, and they will stay there until they sign the form admitting they’ve committed theft.”

  “You got that right.”

  Mike informed the witness he wanted to discuss the day he handcuffed Mrs. Gebbert.

  “Mr. Lombard,” Mike began, “you were stationed in a small office off of the sale’s floor.”

  “Yes, I was monitoring the surveillance system.”

  “More to the point, you sat in a room spying on the people who come to buy things at your store.”

  “I wouldn’t call it spying.”

  “You watched people when they didn’t know you were watching them.”

  “Everyone is aware there are cameras in retail stores,” Lombard returned.

  “You were spying.” Mike wanted Lombard to concede this point.

  “Objection,” Jack said, trying to protect his witness. “Plaintiff’s counsel is arguing with the witness.”

  Jeri held her hand up to prevent further discussion. “The objection is sustained. Mr. Reigert, move on.”

  Mike changed tack. “Your job is to watch your customers and decide from the small room where you are watching if they are stealing.”

  “My job is to protect the assets of the company and make sure any item that leaves the property has been paid for.”

  “You watched Mrs. Gebbert select three different products.”

  “True.”

  “She was carrying them to a register.”

  “I couldn’t tell where she was going. She was wandering through the store. She appeared to be walking aimlessly. “

  “You would agree she didn’t try to steal those items.”

  “Well, she never paid for them. I didn’t know if she was going to pay for them. It looked like she might have tried to conceal them, but I stopped her before she got to the register.”

  “Meaning you arrested her before you gave her a chance to buy those items.”

  “I detained her after she took the chocolates without paying for them.”

  “Let’s watch the surveillance footage so we can discuss why you arrested her.”

  Mike turned his back on the witness and signaled Stan to play the tape. Black and white video images formatted in a 3x4 grid appeared on the screen.

  “These are the twelve monitors the company placed in the ceilings throughout the store.”

  “Yes.”

  Movement was evident on all twelve camera displays simultaneously.

  “You are responsible for watching all of the monitors at once and you may be viewing the screens for your entire eight-hour shift.”

  “I guess you are right, but usually I will go out on the floor and patrol after watching the cameras for a while.”

  Mike directed Stan to pull up camera six alone on the full screen.

  Mike turned toward the witness. “Camera six is the only camera you used to determine Mrs. Gebbert did something wrong?”

  “That is correct.”

  An image of Mrs. Gebbert was displayed on the screen. The grainy and imprecise picture suggested the system utilized by the department store was not of a recent vintage.

  “You watched Mrs. Gebbert while she selected three items to purchase.”

/>   “Yes, I was watching her.”

  “She didn’t do anything unusual to get your attention, did she?”

  “I think she was acting a little bit suspicious, but I have learned sometimes the ones who appear to be the most trustworthy do the worst things. I guess that proved true here,” Lombard said.

  “Really, let’s watch what happened that day.”

  On the video, Mrs. Gebbert casually walked through the aisles until she arrived at a counter in the candy section.

  “By the way,” Mike interjected, “you actively followed Mrs. Gebbert with the camera system, didn’t you?”

  “Yes, I was using a toggle switch to move the camera so I could watch what she did.”

  Utilizing a red LED pointer light to direct Lombard’s attention to a particular portion of the image on the screen, Mike continued, “Mr. Lombard, Mrs. Gebbert approached the display and saw an open box of candy.”

  “I wouldn’t agree. The box was not opened.”

  “The lid on the box was off.”

  “That is true.”

  “Which allowed her to easily take a piece of the chocolate to sample.”

  “Didn’t look so easy to me. She had to break the cellophane covering the candy.”

  “Mr. Lombard, the image you watched on your eight-by-twelve-inch screen provided you all of the information you utilized to decide to detain Mrs. Gebbert, correct?

  “What do you mean?”

  “She didn’t do anything suspicious before that. She ate the candy conspicuously like a person would eat a sample. So the only reason you detained her was because you thought she opened the box of candy with her finger?”

  “Yes, that is true.”

  “Did you retain the box of candy so this jury could examine it?” Mike asked, sweeping his hand towards the jurors to suggest he was including them in the process.

  “No, I left the box at the candy department. They probably threw it away.”

  “Mrs. Gebbert was completely surprised when you stopped her,” Mike continued, boring in. “She acted as though she didn’t steal anything, correct?” Mike pointed to the video which showed Martha covering her mouth with her hand when Lombard first approached her.

  “Most people who commit theft act like they didn’t do anything. The stuff some people do amazes me when they are caught red-handed.”

  “She told you she didn’t take anything.”

  “And I told her the video caught her opening up the chocolates,” Lombard said, sitting erect and not twitching.

  “Exactly what I wanted to talk about,” Mike said, excited that Lombard had helped him jump to his next area of questioning. “Let’s watch the video.” Stan anticipated Mike’s plan and jumped the tape to the section where Martha selected the chocolate. “I can see the box of chocolates sitting on the counter, and my client reaches in to grab one. Nothing is on the video to suggest she opened the cellophane, is there?”

  The video displayed an image of Mrs. Gebbert reaching into the box of candy and picking a piece and eating it. Mike had watched this portion at least one hundred times, yet couldn’t see any reflection to suggest the covering was intact and certainly couldn’t determine if she broke the wrapping. The camera image lacked sufficient detail for him to make that determination. The jurors intently watched the screen.

  Lombard studied the images, which in the courtroom were much bigger than when he watched them on his workplace monitor. On the video, Martha grabbed the chocolate. “There, you can see a glimmer of the cellophane as she breaks it.”

  Stan and Mike had discussed how to deal with this issue many times before and decided to replay the video multiple times because they did not believe anyone could definitively see anything on the videotape. As the video depicted Martha approaching the candy display, the jurors leaned forward to examine the images. Once they sat back to indicate they had completed their inspection, Mike moved on to another area of questioning.

  “Let’s talk about what you did once you took Mrs. Gebbert downstairs,” Mike said, inching closer to Lombard. “When you took her to the basement, you didn’t allow Mrs. Gebbert to leave.”

  “I guess you are right. I took her off the sales floor so I could complete the appropriate forms and to give us privacy so she wouldn’t be unnecessarily embarrassed.”

  “You had no concern about her privacy. You wanted to maintain control.”

  “Objection, he is arguing with the witness again,” Jack said, jumping to his feet.

  “The objection is sustained. Ask a question Mr. Reigert.”

  “Isn’t the reason you take a person who you stop for shoplifting into the basement is because the person becomes disoriented and has no chance of walking away.”

  “I took Mrs. Gebbert to a room to process her. She didn’t ask to leave.”

  “You took her to that room. You took all of her possessions and handcuffed her.”

  “Our procedures are clear. To protect the people in the room we handcuff all suspects. There were some situations where people became violent and tried to hurt our security guards, so for our protection, we cuff everyone. Here, the suspect got agitated, so I put her in handcuffs to make sure.”

  “I can only wonder why people become upset when you falsely accuse them of shoplifting.”

  “Objection, that is outrageous!” Jack again jumped to his feet. “I move to strike counsel’s statement.”

  “The objection is sustained and the jury is to disregard Mr. Reigert’s statement. Mr. Reigert, be careful. You are getting close to the line with those remarks.” Mike turned with his back to the jurors and smirked at Jack, knowing that despite the objection being sustained, they heard what he said.

  “Mr. Lombard, Mrs. Gebbert told you she didn’t steal anything and she refused to sign your admission form, didn’t she?”

  “True.”

  “So she is locked to the table and you tell her she is not going anywhere until she signs the form.”

  “You are not being accurate. I handcuffed her to the table so nobody got hurt and explained to her about signing the document.”

  “You told her you would allow her to leave if she signed the form.” Mike’s voice edged louder as he crept closer to the witness.

  “Yes, because all the paperwork would be complete.”

  “But she wouldn’t agree to sign the form.”

  “No, she was being difficult.”

  “So, you wouldn’t let her out of the handcuffs.”

  “True.”

  “Fine,” Mike said dismissively, “let’s focus on what happened in the room. You held Mrs. Gebbert in handcuffs for over two hours.”

  “I believe that is true.”

  “You took all of her personal items away from her, including her cellphone.”

  “Yes.”

  “So she couldn’t call anyone and she couldn’t leave the room unless you let her go.”

  “Also true.”

  “She kept denying she took anything.”

  “And I told her multiple times I saw her take something on the videotape.”

  “She asked to see a manager.”

  “Yes, and I told her a manager didn’t have authority to let her go, I was in charge.”

  “So your company’s policy empowers a twenty-six-year-old security guard with less than one year experience, while the manager of the store who has worked for the company for over twenty-five years can’t override your decisions.”

  “Yes, because they trained me to handle these situations.”

  “Of course,” Mike said, not hiding his sarcasm. “By the way, you don’t have any video of what happened in the room, do you?”

  “No, policy is not to have cameras in the room.”

  “That way it becomes your word against the other person’s word.”

  “I suppos
e.”

  “Just so we are clear−you accuse Martha Gebbert of stealing a piece of chocolate. You take her off the sales floor so nobody can see what you are doing. You take her to the basement and chain her to a table. You put a paper in front of her and tell her you won’t let her go until she signs the document admitting she committed a crime she denied committing so far.”

  Lombard thought for a moment and nodded. “Yes, that is true.”

  “Mrs. Gebbert was in the room for over two hours.”

  “I think that is true.”

  “Most of the time she was in the room by herself.”

  “Yes, but I would come back and check on her.”

  “You were actually checking to see if she signed the form, but every time you came back, she refused to sign and kept asking to speak with someone else.”

  “Yes, but I told her I was the only one she could talk to.”

  “How long would you have let her stay handcuffed until you let her go?”

  “I don’t know. I let her go when she signed the admission form.”

  “Sir, isn’t the only reason she signed the form was because that was the only way you would release her?”

  “I don’t know why she did what she did. I think she signed the form because she stole something.”

  Mike frowned, not sure if he should stop his questioning with Lombard’s repeated assertion Mrs. Gebbert stole the chocolate, but recognized if the jury at this point still thought of her as a thief he had little chance of convincing them with further questioning. “I have no more questions for this witness,” Mike said as he returned to his chair.

  Jack stood immediately to try to obtain some beneficial information from his own witness. He spent a few minutes asking about Lombard’s background in high school and the few jobs he held before the department store hired him. He drew out more specifics on his training wanting to create the impression the company trained him well.

  “Mr. Lombard, how many people have you stopped for shoplifting since you began to work for the company?”

  “I believe I stopped about a hundred fifty shoplifters.”

  “Sounds like a lot,” Jack replied with forced seriousness.

  “I don’t know if it’s a lot. Lots more people take things from the store, but they teach us not to stop anyone unless we see them take something and if we maintain visual contact with them until we detain them. That way we don’t make mistakes.”