Unclean Hands, page 15
Rick grabbed a plastic cup with water on the table to his right and took a quick sip.
"The manager of the B & D store, a man named Morgan Askew, will tell you he thought Jerry stole a few items even though he paid for many other products. Before he could assure himself Jerry stole anything, Mr. Askew accused him of being a thief and then chased him out of the store, determined to catch Jerry at any cost.
"In the parking lot, Mr. Askew realized Jerry was too far in front of him, so he called for help from a young cart person who tackled Jerry. It's apparent Jerry was stunned, suddenly accosted in the parking lot, so he tried to get away. Ultimately, the cart person, the store manager and two other people sat on Jerry to prevent him from moving. Jerry was helpless and couldn't breathe. He desperately tried to free himself so he could get a breath into his lungs, but Mr. Askew insisted that his band of vigilantes not relent. They were going to sit on top of Jerry until the police arrived–no matter how long that took."
He stared at one of the jurors in the back row for a moment.
He continued: "It took nearly seventeen minutes for the police to answer the call a customer placed to nine-one-one. They pulled their squad car alongside the four people imprisoning Jerry and instructed them to get off. When they did, Jerry was lifeless. Despite the attempts by the paramedics, they were unable to resuscitate Jerry. The store had killed him."
Rick paused again hoping to see a glint of furor in the eyes of the jurors hearing Jerry was killed even though he shopped at the store. After surveying the members of the jury, he couldn't determine what they thought.
"You may be thinking to yourselves, 'Did Jerry have to die?' No, of course not. Jerry Hawkins was killed because B & D never trained its employees how to detain shoplifters. During this trial you're going to hear all about how shoplifting is a problem for all retailers. How people come into their stores and take items without paying. What you aren't going to hear about is a coherent training program at B & D to give their employees the skills to confront and detain shoplifters without harming that person or other shoppers in the store. What you won't hear from their employees is that they understood how to deal with shoplifting or how the store provided them with appropriate techniques to deal with shoplifters who become aggressive.
"Because B & D never trained its work staff, managers like Morgan Askew would physically challenge accused shoplifters. The company told them to lower the rate of shoplifting at the stores, but never warned them how accusing someone of shoplifting could lead to violence–and in this case the death of Jerry Hawkins.
"You will hear from experts in retail shoplifting and medical experts and what they will tell you is simple–Jerry Hawkins died as a result of the negligence of B & D in failing to follow industry standards in establishing a training program so its employees could detain Jerry Hawkins, if appropriate, without killing him.”
Without allowing his gaze to stray from the jurors, Rick flipped a page in his binder to signal his movement to a new topic.
"Emily Hawkins will tell you how she has suffered because B & D killed her husband. She lost her husband, her rock, the man she relied on to cope with the problems life would throw at them. She lost his future income. No Jerry didn't have a job at the time of his death, but he was working hard to educate himself to become a computer programmer. They lost every dollar he would earn in the future, which he will never earn because B & D ended his life prematurely.
"Emily is also seeking to recover for Jerry's pain and suffering for the seventeen minutes they sat on him and squeezed the life out of his body. She is seeking to recover for losing her husband and what he brought to the household and to their marriage.
"She is also seeking compensation for the loss of Jerry's income, his conscious pain and suffering and her loss of the services and society of her husband. Emily can't get her husband back and you can't return to her their future. The only thing you can give her is money and although it won't change what her future is now, it will compensate her for her losses. Her losses are significant and under Pennsylvania law we can't ask for a specific amount of money from you, but you will understand the extent of her suffering and will have the tools at your disposal to compensate her appropriately. It feels crass to ask for a large sum of money from you, but it would be so much worse not to."
None of the jurors blanched in the slightest at Rick's suggestion they would award her a huge amount of money–an amount most of the jurors would not make in fifty years of working. He neared the end of his opening statement. "Ladies and gentlemen, the negligence of the defendants stole Emily Hawkins' husband away from her. We are asking you to compensate her for this enormous loss. We thank you for taking time from your busy lives to hear our case and know you will listen to the evidence with care."
Rick stepped back, away from the jurors. The courtroom remained silent.
Chapter Forty-Seven
Sebastian Crotec eased out of his chair and reached forward to grab his yellow pad. His slow walk towards the jury caused Rick to imagine a peacock preening for a potential mate. The same punch in the gut sensation that hit Rick when Crotec made no attempt to hide his enjoyment of terminating Rick's employment years before, struck him again as Crotec waited to speak to the jurors.
Rick's desire to help Emily motivated him as they prepared for the trial. He now realized his antipathy towards Spencer and Crotec was nearly as strong of a motivational force. He wanted to win, but humiliating opposing counsel at the same time would make victory so much sweeter. He exchanged glances with Arnie as they steeled themselves for the body blows they both knew their case was about to endure.
"Good morning, members of the jury," Crotec said in an easy manner, as if addressing the school PTO. "It's a shame Jerry Hawkins died. It's a shame people like Morgan Askew have to get involved in stopping a shoplifter, and it's a shame people like Morgan, and companies like B & D, get sued when trying to protect the public against thieves. Jerry Hawkins didn't need to die, but he continued to fight–trying to avoid being caught and handed over to the police. Jerry Hawkins was out of control and never stopped trying to get away. Because of his actions, he died.
"Myself, Mr. Spencer and the people from B & D will say the same–it's a shame Jerry Hawkins died–but one thing none of us will say is Jerry Hawkins died because of anything wrong anyone from B & D did. Nothing could be further from the truth. The evidence in this case will prove to you that the people from B & D acted appropriately, within the bounds of the law and did not act negligently on the afternoon Jerry Hawkins died."
Crotec placed a fist near his shoulder. "The following facts are not in dispute: One, Jerry Blevins tried to steal from B & D." Crotec lifted his index finger away from his hand. "Two, all retailers, including B & D, have the right under the law to stop shoplifters and detain them until the police arrive." The middle finger on Crotec's hand joined the first. "Three, Morgan Askew verbally told Mr. Hawkins to stop and warned him a B & D employee would use force to detain him." Crotec raised his next finger. "Four, Mr. Hawkins ignored the demand to stop and continued to flee the scene. And five, even after Mr. Askew stopped Mr. Hawkins, he continued to struggle, forcing people passing by to assist Mr. Askew and ultimately leading to his death."
Crotec extended his fifth finger and let the image of a stop sign linger before the jury. "Mr. Hawkins would be alive today if at any point in the process he heeded these warnings and stopped."
Crotec lowered his hand and took a step backwards. "This case is simple. Yes, it's a shame Mr. Hawkins died, but when a person decides to steal, he elects to take on risks and one of those is getting caught. A person assumes the risk he will get hurt if he shoplifts, gets caught and then attempts to fight his way out of it. Mr. Hawkins assumed those risks that night and as the evidence will prove to you, this is the reason he died.
"You're going to hear evidence from the people at the store and expert witnesses about the prevalence of stealing. Most of you might be surprised, but it is a constant threat that stores are under. The people from B & D will tell you about how its employees are trained to be diligent about being aware of what people are doing while in the store, and if they suspect a person is about to steal, they are given tools to stop the person from shoplifting or on how to detain the person until the authorities arrive."
Crotec turned to Rick. "Mr. Waterston suggested the employees from B & D want to be law enforcement officials. Wrong! The police are the experts and B & D relies upon their expertise to get the shoplifters out of the stores and to prosecute them when they are caught. The police need the help of merchants to properly observe shoplifting when it occurs and then to reasonably detain shoplifters until the police arrive. This is laid out in the law as the judge will instruct you at the end of the case.
"Ultimately, what we have here is a store and its employees doing exactly what they should be doing to prevent and deter shoplifting. Under the law, B & D is supposed to detain shoplifters until the police arrive. What B & D did was entirely reasonable under the circumstances. Jerry Hawkins would be alive today if he hadn't stolen from the store or resisted the efforts of the B & D employees to detain him. That is why his death, although a complete shame, was not the fault of the defendants and that is why at the end of the trial we will ask you to return a verdict in their favor."
Crotec drifted back to his seat.
Emily Hawkins' muffled crying was the only sound in the courtroom.
Chapter Forty-Eight
Judge Markum assessed the state of the jurors after having heard the opening statements. He turned to Rick. "Counsel, there is almost two hours before the end of the day. Let's see how much testimony we can get in."
Rick stood and announced, "Plaintiff calls Deandra Bortz to the stand."
The order a party calls witnesses at trial is monumentally important. The first witness must be strong and compelling-a dud as a first witness risks losing the jury before they hear the meat of the testimony. On the other hand, the first witness must lay the groundwork for the entire case and put it in context. Sometimes, a witness's testimony, without an appropriate foundation laid by other witnesses, can be incomprehensible to the jury and its impact muted.
The obvious witness for Rick to bat lead-off would be Emily. The jury needed to hear from her and bond with her if it was ever going to award her the amounts of money Rick wanted it to. She, however, didn't observe Jerry's death, so couldn't offer any insight into the events in the parking lot.
Her job in testifying was to lay out her damages, paint a picture of their life before this happened and to engender sympathy. Rick needed to paint a picture of what happened to Jerry before letting the jury hear from Emily. He planned to call some B & D employees as part of his case, but felt it too risky to lead with one of them.
Those fireworks could wait just a little. No, the independent and spirited Deandra Bortz would take on this role, even if she didn't comprehend how important she was to the future of Emily Hawkins.
The jurors' eyes followed Bortz as she walked from the back of the courtroom until she stood in front of the tipstaff with her right hand in the air. Her hair, pulled back into a ponytail, gave her an approachable air which contrasted with the tight green sweater which emphasized her ample bust. She swore to tell the truth and walked up the two steps to sit in the witness chair. After fiddling with the long, skinny microphone, she raised her head and smiled.
Rick offered a small Hail Mary she would limit her answers without providing too much extraneous information. He knew in court prayers often go unanswered.
He led her through some preliminary introductory questions so that the jury knew her name, her address and that she lived with her dog and Princess the cat. Bortz's smile radiated when she described how much she enjoyed shopping at B & D, which Rick hoped would emphasize her independence as a witness, not wanting to stick it to the big company, but only trying to recollect the details of a tragic evening.
Rick moved into the meat of her testimony. "Why did you go to B & D the night Jerry Hawkins died?" He asked, not wanting to provide too much unnecessary personal detail and seeking to steer their conversation to the events that lead to her helping to detain Jerry Hawkins.
"No particular reason," Bortz said, "I go there sometimes after work. I'm a massage therapist and when I'm done, I like to find something for dinner or maybe buy some clothes."
Inwardly, Rick groaned, realizing that reining in Deandra Bortz and having her provide limited responses would prove to be difficult.
"Did you ever make it into the store?"
"No, I didn't. I wanted to, but then I got caught up in the situation in the parking lot and before I knew it, the police arrived and then I got upset. So, I just left and never shopped." Bortz blushed, realizing she was rambling.
Rick smiled at her paternally and held up a hand. "Tell you what–let's all slow down. I will try to ask you simple questions and you just try to answer those, okay?"
Her head bobbed.
"What happened when you got out of your car?"
"I noticed a disturbance close by."
"Please describe the disturbance."
"Two men were fighting, rolling around on the ground."
"Did you notice other people?"
She shook her head. "At that moment, no. I believe I was the only person in the vicinity."
"How did you get involved?"
"I really didn't want anything to do with it. I planned on just walking to the store, but one of the men involved yelled at me to help him."
Rick moved to the far corner of the edge of the jury box, wanting to make sure she spoke loud enough that every juror could hear her. "What did he say?"
"While he wrestled with the other guy, he identified himself as a manager and said the other man stole from the store and was trying to escape. He claimed the man was dangerous and might hurt other people."
"So what did you do?"
"At first I didn't think he was speaking to me, so I pointed at myself–like, 'are you talking to me?' He repeated he needed help. They continued to roll around on the ground, so I figured I might be able to help out."
"Did you?" Rick scrunched his nose a bit.
"Yes.” She responded. I walked over, and he started giving me detailed instructions. He told me to grab his arm. So I did–which didn't seem to help too much. He then yelled at another gentleman to help and that man came over and grabbed his other arm. Another kid from the store also came to help. With the three of us helping, we subdued the man."
"Ever seen the man who directed you before?"
"Yes, I knew he was the manager of the store."
"Is he in the courtroom today?"
"Yes." She extended her index finger in the direction of the defendant's counsel table.
Rick turned his head to where she pointed "Let the record reflect she has identified B & D manager, Morgan Askew."
He turned back to the witness. "After you subdued Mr. Hawkins, what happened."
"The manager told us not to get off. He kept giving us orders–mainly to stay on top of the guy."
"Did anything ever change?"
"Well. . . ," Bortz turned pensive. "After a while, it seemed to get quiet. Some people gathered around. We didn't talk much, but I asked the manager at some point if we should get off of him."
"How did he respond?"
"He told us not to move."
Rick moved to the front of his counsel table, but noted that most of the jurors were jotting notes on their pads. "Tell me the positions of everyone assisting the manager."
Bortz lifted her head towards the ceiling. "Lets see–I held his right arm and the other gentlemen secured his left. The young cart person laid on his legs and the manager straddled his back."
"How was Mr. Hawkins positioned?"
"He faced the ground. The manager told us not to move until the police showed up. That took forever." She threw her hands in the air.
"What happened when the police arrived?"
"I was so tired when they got there. It's not easy lying on the ground, trying to make sure someone doesn't move." She took a breath. "Two officers came. One of them told us to get off of the man, so they could take charge. We got moved away, but the man didn't move. Not at all. One of the policemen turned him over and his face was lifeless–his eyes closed. They immediately started to do CPR and then the paramedics took over when they showed up. I gave my name to the other police officer and left. He called me a couple of days later and I gave him a statement."
Rick took a step back and turned to opposing counsel. "No further questions. You may cross-examine."
Spencer stood and moved to the lectern in front of counsel table, placing his notes and clearing his throat. "Ms. Bortz, Virgil Spencer representing B & D, we met at your deposition." Bortz nodded and waited for his question.
"Ma'am, you would agree that when you got out of your car there was a huge fight ten feet from where you stood."
"I'm not sure I'd call it a huge fight. A disturbance, perhaps."
Spencer moved forward towards the witness. "Do you remember four months ago the lawyers in this case all asked you questions while you were under oath at your deposition?"
"Yes."
Spencer waved the bound copy of her deposition. "I direct your attention to page forty-nine, line twelve; didn't you say, and I quote, 'I got out of my car and there was a huge fight ten feet from my car.'
