"Well, as much as he would let me," Dalton replied. "He turned off the tape recorder and told me that I was lying. He said that if I didn't start telling the truth, he would personally see that I lost my scholarship and he'd make sure the story about the party and the strippers got in my hometown newspaper so that my parents and all my friends would see it…"
"Was there something you were ashamed of?"
"Well, Rufus said that Coach O'Toole had paid the strippers to give us oral sex and, well, that's what happened," Dalton replied, turning red and keeping his eyes averted from the jury.
"So did he turn the tape recorder back on after that?" Karp asked.
"Yes," the young man said, and held up the abbreviated transcript. "That's what this is. I was scared and just decided that I would just agree with whatever he asked and get the hell out of there."
"Now, Mr. Dalton, according to the transcript provided to the ACAA panel, you agreed with Mr. Larkin's statements that Coach O'Toole asked you not to cooperate with the ACAA investigation and that if questioned, you were supposed to lie. Is that true?"
"What? That I agreed with Mr. Larkin or that Coach O'Toole asked me not to cooperate and to lie?" Dalton asked.
Karp smiled. "Thank you for pointing out for the jury that after more than a quarter of a century, I still don't know how to separate my questions. I suggest you consider a career in law," he said as a ripple of laughter went around the courtroom. "Let's start with whether you agreed with Mr. Larkin's statements that Coach O'Toole told you not to cooperate and to lie."
"Well, first I told him that it wasn't true," Dalton said. "In fact, I called Coach O'Toole after Mr. Larkin contacted me and said he was flying out to interview me about the party and accusation against the coach."
"And did Coach O'Toole tell you not to cooperate and to lie?"
"No, just the opposite," Dalton said. "He said that he had nothing to hide and that I should answer Mr. Larkin's questions truthfully."
"And you did that?"
"I tried," Dalton said. "But Mr. Larkin kept accusing me of trying to protect Coach O'Toole. He said he was going to send a full report of what occurred at the party to my mom."
"Sounds like a schoolyard bully. Have you since told your parents about what happened?" Karp asked before Zusskin could react to the first statement.
"Yes," Dalton replied.
"And what was their response?"
Dalton took a deep breath and let it out. "They were pretty unhappy. That's not the way I was raised. I guess I was just trying to be a big man on campus."
"Did they blame Coach O'Toole?"
"At first," Dalton said. "They thought that there should have been more supervision. But after they heard the truth, they realized that it wasn't Coach O'Toole's fault. I was a man now, and I had to take responsibility for my actions."
"Were there any parental repercussions?"
Dalton nodded. "Yeah, they took my car away and grounded me for the summer." Again, laughter swirled around the courtroom.
"Your witness," Karp said with a smile, and turned to Zusskin.
The attorney approached the stand holding up the abbreviated transcript like Moses holding up the stone tablets. "Mr. Dalton, did you or did you not give these answers to the questions put to you by Mr. Larkin?"
"I did, but-"
"I'm not asking 'but,'" Zusskin interrupted. "You just got done telling us that you're a man now and had to take responsibility for your actions, which means answering my question yes or no. You have a copy of the transcript. Did you give these answers to Mr. Larkin?"
"Yes, sir."
"All right," Zusskin said. "I believe that the bailiff has already distributed copies of the transcript, so let's all read along, shall we? I direct the panel's eyes to line three of the first page."
"Do you mean line three of the page numbered seven?" Karp asked innocently.
"Yes, Mr. Karp," Zusskin replied. "I'll read the part of Investigator Larkin, who asked, 'Was Coach Mikey O'Toole aware that you were going to a party that other recruits were not invited to?' And your reply was?"
Dalton looked at the transcript and recited his line. "I said, 'Uh-huh.'"
"Good," Zusskin said. "Then Larkin asked, 'Did Coach O'Toole pay for the beer and entertainment, including sex with prostitutes, at this party?' And you answered?"
"'Uh-huh.'"
Zusskin turned to the next page. "This is a bit later in the interview…"
"Objection," Karp said. "The middle portion of the interview is not here, so Mr. Zusskin is only reading what he wants and out of context."
Zusskin looked at the judge. "Your Honor, Mr. Karp is aware that this was all discussed at a pretrial hearing and knows full well that you have admitted this transcript-the transcript used by the ACAA hearing panel to render its decision, I might add."
"Overruled," Allen said without further comment.
Zusskin nodded and looked back down at the transcript. "The jury will note the following sequence beginning at line thirteen, where Larkin asked, 'Did Coach O'Toole tell you not to cooperate with this investigation?' Your answer, Mr. Dalton?"
"He said I didn't have to…"
"Then Larkin asked, 'Were you, in fact, told to lie if someone asked you questions about this case?' Your reply?"
"'Uh-huh.'"
Zusskin closed the transcript. "Mr. Dalton, you told the jury that Mr. Larkin threatened you and that you gave other answers, but there is no record of that, am I right?"
"Well, he recorded some of it," Dalton replied. "So I don't know what happened to it."
"And we have your word on that?"
"Yes."
"But we also have these affirmative answers to Mr. Larkin's questions?"
"Yes."
"And we also know that you are a young man who by his own admission snuck out of a dormitory, illegally consumed alcohol, and-excuse the expression, ladies and gentlemen of the jury-got a blow job from a hooker?"
Dalton nodded. "Yes, I did all those things," he said.
"So now we're supposed to believe a young man who would do those things?"
"It's the truth."
"Which truth, Mr. Dalton? The real truth or what you made up for Mr. Karp-"
"Objection," Karp said. "Counsel knows better than that."
"Sustained," Allen said. "Mr. Zusskin, please rephrase your question."
"Yes, Your Honor," Zusskin replied. "So which truth are we to believe, Mr. Dalton, what you told plaintiff's investigator a couple of weeks ago, or when you were questioned by Mr. Larkin several months ago?"
"I guess now," Dalton replied.
"You guess?"
"Well, yeah, only the stuff that makes Coach O'Toole look bad is on here," Dalton said, thumbing through the transcript.
Karp then kept the redirect short and sweet. "Mr. Dalton, did Coach O'Toole to your knowledge ever tell you that he was aware of this party, or that he arranged for alcohol or strippers?"
"No."
"Did he ask you to lie or not cooperate with the ACAA investigation?"
"No."
"How would you describe Coach O'Toole?"
Dalton shrugged. "He was great. I mean, he told us that if we joined the team, he expected us to work hard, follow the rules, and get good grades or we wouldn't play. But he also seemed fair and like we'd be judged on our ability and work ethic."
"Why didn't you end up signing at the University of Northwest Idaho?"
"Because of all the stuff that happened after this came out," Dalton said. He carefully picked his next words, as he'd been instructed at a pretrial hearing not to mention the rape charges against Rufus Porter. "It looked like Coach O'Toole wouldn't be there anymore. And to be honest, I thought that Rufus Porter was an ass and I didn't want to be on the same team with a guy like that."
"Why, you little…"
Karp and the rest of the courtroom turned to see Big John Porter fuming in his seat. He looked like he was about to say something else, but Clyde Barnhill, who was sittin
g next to him, put a hand on his shoulder and whispered something. Big John closed his mouth and glared at Dalton.
"Spectators will refrain from making comments, or they will be removed from this courtroom," Allen said. "Am I understood?"
Porter nodded but continued to glare at Dalton. When Dalton was dismissed, Big John began to rise to follow him. However, Fulton saw what was happening and got up to escort the young man. The big detective hesitated at the end of the pew with his eyes on Porter, who swallowed hard and sat down.
"Is there a problem?" Judge Allen asked, looking at the two large men.
Fulton turned to the judge and shook his head. "No, sir. No problem here."
24
"The Defense calls E. Kip Huttington." attorney Karen Welt sounded nervous as she turned to look back at the table where her client, the university president, conferred with her co-counsel, Steve Zusskin.
Sitting at the defense table, Karp almost felt sorry for the young woman, who appeared to be in her early thirties and for the most part had hardly participated in either the pretrial motions hearing or the trial itself. It was obvious that Zusskin was directing traffic for the defense, and even now seemed to be instructing Huttington.
Swallowing hard and nodding to Zusskin, who kept a hand on his arm, Huttington finally rose and crossed the floor to the witness stand to be sworn in.
Karp looked at his watch. Almost one o'clock in the afternoon on Friday. He'd wrapped up the plaintiff's case by calling the former recruit, Michael Mason, to the stand for what was nearly a carbon copy of Dalton's testimony, and then a similar cross-examination by Zusskin, who'd gone through the same exercise of making Mason read from the abbreviated transcript.
Returning from the lunch break, Karp and Meyers told O'Toole that they felt they had a slight edge but not a clear-cut victory. A lot would hinge on whether the jury believed Dalton and Mason, the two lawyers agreed.
"Still, compared to what we were up against before Detective Fulton found and talked to Dalton and Mason, and we learned the truth about their interviews with Larkin," Karp said, "I'll take what we got anytime."
As Welt began by having Huttington introduce himself and wade through his version of the history regarding the O'Toole case, Karp looked again at his watch and wondered how his wife and the 221B Baker Street Irregulars were doing up in Sawtooth. If things went according to plan, she'd said she would know whether their mission would pan out by the time court was finished for the day. Until then, he couldn't expect to hear anything, as there was no cell phone reception in that part of Idaho.
There was little new or unexpected to Huttington's testimony. According to the university president, he'd only been following the rules and regulations of the ACAA when he first turned over Rufus Porter's complaint, and then when he declined O'Toole's request for a name-clearing hearing. "On the advice of counsel, we thought that any such hearing might breach our standing with the ACAA as the final arbiter of such matters," he said, and then repeated what he'd told O'Toole. "And we wanted the university-and Coach O'Toole-to move on and get this terrible business behind us."
Meyers's cross-examination of Huttington contained no fireworks either. Indeed, by the time his co-counsel finished, Karp thought the jury would think Huttington was a witness for the plaintiff. Under Meyers's questioning, Huttington's testimony was largely laudatory of Coach O'Toole. No, there'd never been a complaint lodged against the coach. Yes, the coach had one of the highest graduation rates for schools the size of Northwest Idaho, and yes, his squads had for the past two years been all-American academic teams because of their high grade point averages.
"Thank you, Mr. Huttington," Meyers said, and sat down to see if there would be a redirect.
Glancing over at the defense table, Karp noted that Zusskin was once again giving orders, only this time to Welt. She looked almost frightened as she nodded repeatedly and then stood to approach the witness stand.
"Mr. Huttington, do you like Coach O'Toole?" Welt asked.
Huttington looked at O'Toole and his mouth twisted as if he'd bitten into something sour. "I would have to say that prior to all of this that yes, I liked Coach O'Toole," he replied.
"What do you mean 'prior to all of this'; have you changed your mind?"
"Well, actually, I didn't believe he was capable of this sort of…'mistake,' is what he called it," Huttington said. "Not until the day he came to my office and said something that changed my opinion of him, which until that time was very high."
This is rehearsed, Karp thought, and whispered to Meyers, "Something's coming out of left field. I can feel it."
"And would you tell the jury, please, what it was that he said," Welt asked.
"Yes, it was quite sad, really," Huttington said, shaking his head. "It was after the news stories broke about Rufus Porter's accusations against Coach O'Toole. He called and asked if he could come see me 'as a friend.' As I said, I liked him and was anxious to help if I could, so I said sure. He showed up at my office and immediately broke down and started to cry."
Karp glanced at O'Toole, whose face was turning red. The younger man reached for a glass of water but his hands were trembling so hard that when he brought it to his lips the water sloshed out and splashed on the table.
"Steady, Coach," Karp whispered. "You're at bat, and everybody is watching. You have to shut it out, focus on the pitch."
O'Toole acknowledged that he heard by nodding. And Karp noticed that his hand was steadier when he put the glass back down.
"Did he say why he was crying?" Welt asked, and looked at the jury as if this behavior was strange indeed.
"Yes, he said he'd made a mistake," Huttington replied. He glanced at the jury, too, and then at Zusskin, before turning back to Welt. "He said that he was responsible for the party and planned it because he was anxious to get Mason and Dalton to sign. As everybody knows, he wants to get invited to the College World Series and 'needed the horses.'"
"Was there anything else he said, something to indicate that there were deficiencies on his current team?" Welt asked.
"Yes," Huttington answered. He looked at the jurors and apologized. "I'm sorry about the language here, but he said that he needed Dalton and Mason because they were white, smart, and better team players compared to the 'me-first, dumb-ass blacks' on his team."
"Did he use the term blacks?"
"No, and again my sincere apologies if this offends anyone, but the word he used was 'niggers.'"
Everybody in the courtroom seemed to inhale at once. O'Toole covered his mouth while in the back row, Len Clancy shouted, "That's a lie. He never uses that sort of language."
Judge Allen banged his gavel to restore order as Meyers jumped to his feet. "I object to all of this, Your Honor. None of this was in any deposition of Mr. Huttington by either the plaintiff or the defense."
"Is that true, Ms. Welt?" Allen asked.
"It just was brought to our attention last week," the attorney replied. "I believe Mr. Huttington had his reasons to hide the truth."
Allen turned to the witness. "Mr. Huttington, is there a reason you didn't report this before?"
Huttington shifted uncomfortably in his seat. "Yes, Your Honor. As I said, I personally liked Coach O'Toole and didn't believe the accusations against him. Even when he made these admissions, I still saw him as a basically good man who made a mistake and was sincerely apologetic. I am a Christian and believe that when a man asks for forgiveness, it should be given. Also, I felt that he came to me in confidence, as a friend, and that I could not betray that trust."
"And that's why you kept this important information to yourself?" Allen asked with a scowl.
"Well, I should point out this isn't the first mention of this issue," Huttington said. "Myself and Mr. Barnhill met with Coach O'Toole and told him that we thought that the ACAA would be more lenient if he just admitted that he made a mistake. I was referring to his admission when we told him that. We at the university hoped all of this could be resolve
d so that with a lesson learned we could move on. He chose instead to deny the accusations."
"For the record, Your Honor," Zusskin said, rising from his chair. "We intend to call Mr. Barnhill to the stand and will stipulate that we expect his testimony will confirm what Mr. Huttington just said about the meeting with Mr. O'Toole."
The judge turned to Karp and Meyers. "Gentlemen, your response?"
"Just a moment, Your Honor," Karp said, and began whispering to Meyers, who nodded and smiled grimly. Reaching to the shelf behind him for the three-ring binder containing his deposition of Huttington, Meyers stood up. "May I approach the witness, Your Honor?"
"You may."
Meyers strode across the floor and nearly tossed the binder to Huttington. "Is this a copy of your deposition taken last February?" he asked without regard for formalities or manners.
Huttington made a show of opening the binder and leafing through several of the pages. Finally, he said, "Yes, it appears to be."
"Turn to the second-to-last page," Meyers continued.
Huttington did as told. He looked up and tried to smile at the jury, though to Karp it came off more as a grimace.
"Now look four lines from the top, which begins with me asking you a question," Meyers said. "You there?"
"Yes."
"I asked, 'Is there anything else you can think of that would be relevant or significant regarding this case? Something I might have missed or was omitted?' Is that an accurate reading of what I said?"
"Yes."
"You can skip Mr. Barnhill's response, but I then said, 'Mr. Huttington, I asked you a question. This is a deposition and you must answer my questions, even if your attorney objects. And do remember you're under oath.' Is that correct?"
"Yes."
"And you acknowledge here today, in front of this jury that you were under oath to tell the whole truth, just like you are today," Meyers said, letting his anger show.
"Yes," Huttington replied. "I was…I am…under oath."
"Yes, please remember that," Meyers said. "Now read the next line, which you addressed to Mr. Barnhill."
"I said, 'That's okay, Clyde, we have nothing to hide here.'"
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