by Paul Levine
“Right, Mrs. Morales.” H.T. Patterson looked in awe at the woman, as if she had just solved the mysteries of cold fusion. “One hundred percent cor-rect!” Bouncing on his toes, Patterson moved closer to the jury box rail. “And do you promise to follow the judge’s instructions as to the law in this case?”
Now that was an easy one.
“Yes,” Mrs. Morales said, “of course.”
“All of you now,” Patterson boomed, his gaze sweeping across the jury box, “will you all follow the judge’s instructions as to the legal duty of a social host to his guests?”
Patterson stepped back and watched as eight heads nodded. After preaching to hundreds at his inner-city church, this couldn’t be too hard. We needed six jurors and two alternates, and so far Patterson was skillfully indoctrinating the panel with his slant on the case. At the same time, he was working on a corollary of Festinger’s Dissonance Theory: Public commitment leads to behavior change. Get a juror to publicly commit to a position—the accused is presumed innocent, or injured persons deserve compensation, or the moon is made of green cheese—and the juror will pattern his or her behavior to the commitment in order to avoid dissonance. That’s a fancy way of saying that most people feel bad about lying.
Outside the courthouse, the temperature had dipped into the forties. I liked the chill in the air, though I hoped it wouldn’t remind the jurors of Peter Tupton’s blue feet. A Canadian cold front had dipped through the Midwest, bringing snow as far south as Atlanta. Frightened central Florida citrus growers hauled out the smudge pots and put their faith in black smoke and midnight waterings. In Mia-muh, everyone turned off their A/C, except me, because I don’t have any. Across the bay, the women in Bal Harbour retrieved their furs from storage, and the trendy types along Ocean Drive on South Beach dusted off their leather motorcycle jackets.
The winds had clocked around from southeast—the direction of the soggy Caribbean air—to northwest. As the temperature plummeted, the TV news guys went gaga with shots of locals bundled up and tourists from Quebec sunning on the beach as if nothing were amiss. That morning, I could see my breath as I picked up the paper from under my Poinciana tree. I read the usual assortment of Miami news—murders, mayhem, and the destruction of the Florida Keys coral reef—and had my usual breakfast of fresh winter strawberries and a high-protein shake of OJ, banana, and eggs. I foraged in my closet, found a wool herringbone suit that needed some fresh air, and headed for court.
My juror selection consultants—Marvin the Mayen, Saul the Tailor, and Max (Just Plain) Seltzer—were kibitzing in the front row of the gallery. Altogether, they’d lived about 225 years, and I valued their experience more than the sheepskin of a newly minted Ph.D. Marvin, who owned a shoe store in Brooklyn for fifty years, was immaculate in a sharkskin suit and highly buffed black oxfords. Saul, who hand-sewed suits for Fiorello La Guardia, carried a straw hat that he always clutched in his lap during crucial testimony. Max, who claimed to have invented the egg cream, was balder than one of Peter Tupton’s endangered eagles. Monday through Friday, they bused over from Miami Beach and wandered from courtroom to courtroom in search of the best action.
I explained the dissonance theory to Marvin one time, and he just waggled a liver-spotted hand at me. “Dissonance-schmissonance. Just look at their shoes, boychik. If a man’s heels are run-down and the shoes unpolished, he doesn’t care about his appearance. He won’t pay attention. If he’s wearing expensive Italian loafers with tassels, all buffed up, he’s too concerned about himself. No feeling for the other guy. With women, it’s not so easy, but then, with women, what is?”
H.T. Patterson was a pro, and he worked the jury venire carefully. He didn’t ask whether the jurors believed a party host had to protect a slobbering drunk from himself. That was my angle. Patterson wanted to focus on the careless host, encouraging teetotalers like Peter Tupton to drown in a river of champagne.
It’s all how you phrase the questions, and sometimes you can mislead without meaning to. In one case, I asked prospective jurors whether they believed bus drivers should exercise caution in rounding curves. The jurors naturally believed there’d been a crash. They were let down to learn during opening statement that the bus had merely swerved, and my client, an overweight woman, was tossed off the toilet, jamming her bare buttocks into the open emergency window. It took firemen an hour to free her and the jury ten minutes to award her two thousand dollars, which hardly seemed worth the trouble.
“Mrs. Morales, have you or any member of your family ever been injured due to the negligence of others?” Patterson asked.
He was touching all the bases. When we’re not overbilling clients or having three-hour lunches, lawyers sit around reading articles titled “Constructivism and the Study of Human Communication.” We learn the not-surprising fact that attitudes are the product of our backgrounds. A defense lawyer in a criminal case doesn’t want a juror whose husband is a cop. She’ll knowhow often bad guys go free, and even if the evidence is weak this time, the bum probably deserves to be sent away for Lord knows what. A plaintiff’s lawyer in a PI. case doesn’t want an insurance adjustor on the jury because the verdict will be for pocket change. And so on.
Some lawyers claim cases are won in opening statement. Others say the best closing argument takes the prize. But trial maven Stuart Grossman, a bearded wizard of a plaintiff’s lawyer, once told me it was voir dire. Picking jurors with the right background, or more appropriately, excluding jurors with the wrong background, is the key to the case. “They’ve got to like your client even more than you do,” Grossman said.
With me, that was easy. I dislike most of the paying customers. Unlike friends, clients are seldom chosen. They simply walk through your paneled doors and into your life. A lawyer is a rocky isle in the middle of a swift-flowing river. Downstream are the treacherous falls. Clients are wretched, capsized souls frantically reaching for a handhold as they are carried to the precipice. If you save one, it is usually only temporary, for the river rages on.
“Now, Mrs. Morales, do you understand that this is not a criminal case?” H.T. Patterson asked.
Next to me at the defense table, Nicky Florio shuffled uncomfortably. From behind me, I heard Saul the Tailor. “That’s a nice dress, but in this weather, she shouldn’t be sleeveless. She’ll catch a cold before the week is out.”
Max (Just Plain) Seltzer responded, “She carries a sweater, she’ll be fine.”
Marvin the Mayen said, “Navy-blue pumps, good arch support. An honest woman. Jacob’s a putz if he don’t take her.”
Mrs. Morales gave the question some thought before nodding her agreement. “I understand. Nobody goes to jail here.”
Not always true. I’ve been held in contempt in both criminal and civil cases. These days, I don’t try a case without packing a toothbrush in my briefcase.
Patterson appeared pleased with her answer. “Cor-rect again, Mrs. Morales. The standard by which you ladies and gentlemen will judge this case is called pre-pon-der-ance of the evidence…”
Patterson intoned the words as if he were speaking of the Holy Grail. “Not proof beyond a reasonable doubt,” he continued. “In order to prevail, all I have to do is prove by the greater weight of the evidence that Nicholas Florio, the defendant, was negligent, and that his negligence caused the death of Peter Tupton. This is the reason you see a scale as the symbol of justice.” Patterson stretched his arms, one to each side. “Our case is won by a slight tipping of the scales.” He lowered his right hand and raised his left. “You don’t need absolute moral certainty or proof beyond a reasonable doubt.” Now his right hand was at his waist and his left at his shoulder. “You can have doubts! Doubts are acceptable. Doubts are the norm. But if there is the slightest tilt in the scales—”
“Objection, Your Honor!” I was on my feet. “This is supposed to be voir dire, not closing argument.”
Judge Dixie Lee Boulton peered through her bifocals at H.T. Patterson, who stood, hands stretched out
, a slight tilt to the right side, a look of childlike innocence on his handsome face. Dixie Lee was past retirement age, but no one had the heart to tell her. She was hard of hearing, absentminded, and hadn’t read any law since the Magna Carta, but she was fair and honest, and I’ll take that over a brilliant scoundrel any day. “Is there a question coming, Counselor?” she asked.
“Indeed there is, Your Honor.” Patterson bowed to the judge, then returned his gaze to the jury box. “Do you understand that your job is to balance the scales of justice? Can your scales be as accurate as those which the old miners used in the Gold Rush days, the Forty-niners…”
The only 49ers I knew played in windy Candlestick Park.
“Those old miners used to pay for their salt pork and beans with gold dust, and a single flake would tip the scales of the honest merchant—”
“Reminds me,” Saul the Tailor whispered behind me, “I gotta pick up a quarter-pound corned beef on the way home.”
“That’s what this case is about,” Patterson concluded, “a single flake of gold dust.”
Melinda Tupton was a perfect widow. Not pretty, not plain. Not fat, not skinny. Not intimidating, not cowering. Brown hair, not long, not short. A blue calf-length dress with white buttons and a single strand of white pearls. A fine, strong nose, a steady voice, an ability to look the jurors straight in the eye.
“Tell us about your husband, your late husband, Mrs. Tupton.” H.T. Patterson backed away from the witness stand. With a good witness, you get out of sight. Let the jurors focus on your star. Come into view only if you need to do a fast shuffle to distract them.
“He was a good man, the best I’ve ever known…”
I’ve never met a dead husband who wasn’t.
“We began dating at the University of Miami about ten years ago. He was getting his master’s in marine biology. He’d done his undergrad work in petroleum engineering and had worked for one of the oil companies, until he got fed up. When I met him, he said he would spend his life protecting the environment. He said it was a calling to educate people and fight to save the planet.”
He said, he said.
I could have objected, of course. Classic hearsay, and not an exception to the rule in sight. Or I could just take a two-by-four and hit the widow upside the head. It would have the same effect on the jury. They wanted to hear Peter Tupton’s story, and the only one who could tell it was his widow. Young lawyers sometimes get carried away with the rules of evidence and challenge everything objectionable. They’re on their feet the whole trial. As you get older, you rest your feet and hoard your objections. If the answer doesn’t hurt, stay in your chair. Even if it does, sometimes you’re better off being quiet. Don’t highlight the weakness of your case by trying too hard to keep out answers or documents the jury is likely to hear or see anyway.
Melinda Tupton took us through the courtship and marriage, Peter’s early jobs with the Department of Environmental Resources and the federal Environmental Protection Agency. Then came the opening with the Everglades Society, an executive, policy-making position with public exposure. He leaped at it. This was his destiny.
“He loved the natural beauty of the Glades, its incredible variety of plant and animal life. He studied its history. Sometimes he would use Indian terms or call it by the name the Spanish explorers used, El Laguna del Espiritu Santo, the Lagoon of the Holy Spirit.”
‘This was getting a tad too mystical for my tastes. And was it my imagination, or did Melinda Tupton look straight at Gloria Morales when speaking Spanish with perfect intonation? Oh brother, this one was slick.
The widow told us how Tupton had prepared position papers for congressional investigative teams. He fought the sugarcane barons whose fertilizer drained into the great slough and who tampered with its water level through vast irrigation. He battled the developers and the froggers and the hunters and the macho off-road vehicle rednecks and everyone else whose vision was so crabbed they only saw the River of Grass as their own personal playground or cesspool.
“Peter discovered the source of the mercury pollution in the Glades,” she said proudly. “It comes from local garbage incinerators and is carried to the west by the prevailing breezes, then dumped into the saw grass in afternoon thunderstorms. Peter wanted to preserve the natural habitat for all the animals and to preserve the water supply for the millions of us”—she turned toward the jury box—“for all of us who live here.”
Then we learned about the wildlife her husband loved so much. Patterson had already played the television-interview tape, so the images of the hawksbill turtle and the seaside sparrow were fresh in the jurors’ minds. Melinda Tupton droned on about nocturnal opossums and pink flamingos and tiny fiddler crabs. She described how to tell the difference between the American crocodile with its long, narrow snout and olive-green color and the alligator with its blunt nose and black back.
“Peter loved the animals so much. Even the mosquitoes…”
Oh give me a break, lady.
Patterson let her keep going for a while, then got down to business. “Referring to Plaintiff’s Exhibit Twelve, Mrs. Tupton, can you identify this document?”
Patterson handed a one-page letter to the witness. “Yes, that’s a letter from Mr. Florio to my husband, threatening to sue him if he didn’t stop making trouble—that’s what the letter says, ‘making trouble’—for him with the Army Corps of Engineers and the Collier County Commission. It’s called a SLAPP suit, Strategic Lawsuit Against Public Participation, and…”
Next to me, Nicky Florio’s thick neck was threatening to burst out of his white-on-white shirt. I had to shoosh him, so I could hear the witness.
“…it’s what happens when a rich company files a frivolous suit to silence its opposition.”
“Objection!” Sometimes, I don’t heed my own advice. “Your Honor, the question was whether the witness could identify the document. That didn’t call for her opinion of the character of an unfiled lawsuit.”
“Sustained.” Dixie Lee leaned toward the witness and gently admonished her, “Please just answer the question, Mrs. Tupton.”
Score one for our side.
Patterson took the letter back and replaced it on the clerk’s desk. He shuffled some note cards, found what he wanted, and asked, “Did there come a time when Mr. Tupton had a meeting with Mr. Florio?”
“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.”
