Unclean Hands, page 16
He handed her a copy of her former testimony, and she read it.
She looked up. "Yes, that's what I said."
"Didn't it appear as if Mr. Hawkins was the aggressor?"
Bortz paused while Spencer pointed a finger at her deposition transcript.
"I guess that's accurate," she responded.
"Mr. Hawkins acted like a maniac?"
"Yes, that's what I said," she said, her words barely audible.
Spencer moved closer. "You worried about the safety of the manager as Mr. Hawkins continued to fight him?"
"Yes."
"You felt you needed to help get the situation under control."
"That's probably true, but Mr. Askew requested my help."
"Which you willingly gave."
"That's true."
Spencer paced in front of Bortz, whose eyes moved to the side to follow him. "After you began to help out, Mr. Hawkins continued to resist," he said.
"I guess. The situation was out of control."
"In fact, two other people joined in to stop Mr. Hawkins."
"Sir, I don't know why they came in. I think the manager requested more help."
"Ma'am, even with four people on top of him, the man continued to struggle."
Bortz paused and Spencer again lifted her deposition, so she could see it. "I think that's right," she said. "The manager told us not to let go."
"The whole time you sat on top of him, you worried about your safety and the other good Samaritans holding down the shoplifter."
"Yes, that's true."
Spencer smiled. "No further questions."
The judge dismissed the witness when Rick indicated he had no follow-up.
As Bortz walked past him, he forced a smile while scribbling a note to Arnie. "She helped–but they scored some serious points on cross."
Arnie nodded as the judge turned to address the jurors.
Chapter Forty-Nine
Judge Markum faced the jurors. "It's getting late in the day. We've accomplished a good amount today, and we'll hear from one more witness before adjourning." He turned back towards the lawyers. "Who's the next witness?"
Arnie stood to address the jurors. "Plaintiff calls Officer Peter Mitinger."
A uniformed officer arose from the back of the courtroom and swaggered without hesitation to the front of the courtroom. The cop locked eyes with the bailiff and raised his right hand. After she swore him in, he moved into the witness box upon completing his oath and adjusted the microphone.
A copy of Mitinger's police report detailing Jerry Hawkins' death rested in front of Rick. Yellow marker highlighted the word "shoplifter" the eighteen times it appeared in the report. Rick squirmed in his seat hoping Arnie would be able to elicit the few facts they needed without the cop emphasizing his conclusion Jerry stole while in the store.
"Please state you name," Arnie said in a conversational tone.
"Peter Mitinger."
"You are a police officer for Mahoney County, is that correct?"
"It is."
"For how long?"
"Seventeen years."
Arnie reached to adjust his tie. "Did you respond to a call from the B & D parking lot on June, twentieth?"
"I did."
"What did you find when you got there?"
"My partner, officer Menendez and I responded. I got out of the car first. I identified a group of people holding down a suspect in the northeast portion of the lot."
"Were they on the ground?"
"Yes."
"How many people were involved?"
"May I review my report?" The officer requested.
Arnie nodded.
Mitinger reviewed what he had written. "Five people total. The shoplifter and four people trying to detain him."
A scowl snuck across Arnie’s face. "Officer, when you arrived, you didn't know if the person held down was a shoplifter or not, did you?"
Mitinger pondered the question. "I didn't."
"In fact, you never did any investigation into whether this person had stolen anything, did you?"
"Didn't see much point to it, by the time we got there."
"Perhaps," Arnie responded. "But you never tried to figure out why the B & D manager decided to hold down Mr. Hawkins, did you?"
"The manager told me he was a shoplifter."
"So, you didn't do any investigation. You obviously never talked to Mr. Hawkins. You relied on what the manager told you after he just killed the man."
Crotec shot out of his seat. "Objection, Your Honor. That is incredibly argumentative."
Markum shook his head. "Sustained. Mr. McBride, please rephrase."
Arnie smiled and turned back to the witness. "You use the word, 'shoplifter' only because this is what the manager told you, but not because you did any independent investigation?"
Mitinger relented. "I guess that's true."
"Can we refer to him as the victim, since we can agree he died and because you don't have any independent knowledge of what Mr. Hawkins did while in the store?"
"I guess that's fair." A small concession, but the use of the word "shoplifter" would be avoided until, at least, cross-examination.
"Thank-you." Arnie moved closer to the jury box. "So, when you and officer Menendez arrived, four people laid on top of the victim."
"There were four people around the victim. I wouldn't necessarily say they were all on top of him."
"Fine. Will you agree each of the four people was touching the victim."
"Yes."
"Did each of the four people hold down the victim?"
"It appeared that way." Mitinger’s lips curled at the edges.
"Did the victim move at all?"
"No."
"Did it appear these four people prevented the man from moving?"
"I don't know that. I can only say he didn't move."
Arnie shook his head and moved closer to the witness. "So what did you do?"
"I ordered them to get off the man."
"Did they?"
"Yes."
"Then what did you do?" Arnie asked as slowly as he could.
"I noticed the man didn't respond. He was face-down. I directed a question to him, but he didn't answer. I became concerned." Mitinger's eyes narrowed. "I touched the man, but there was nothing, so I turned him over. His face was bluish. I didn't think he was breathing, and I couldn't find a pulse."
"This was serious?"
"Absolutely. My partner immediately got down on the ground and began to perform CPR. I called for an ambulance and for backup. I then started to do crowd control. A few minutes later the ambulance arrived. They took over treating the man. While trying to revive him, they got him into the ambulance. I don't believe he ever regained consciousness. I checked on him at the hospital and learned he passed away."
Mitinger looked down briefly.
Arnie let the testimony sink in with the jury before proceeding. "Officer, did you get statements from the people involved?"
"I spoke with the four individuals on the ground with the man when we arrived."
"Did any of those people identify him or herself as being in charge?"
"Well, the manager of the store indicated he instructed the lot kid to stop the man because he thought he took something. He also said he asked for help in detaining the man. So, yeah, I guess he was."
"Thank you, Officer Mitinger. I have no more questions."
Crotec stood with his yellow pad in his right hand, his other rubbing his bushy hair. "I only have a couple of questions for you."
Arnie nudged Rick. They figured the cop would be helpful for them because he established how Jerry died, but couldn't offer much on the shoplifting issue. No matter what Crotec did with the cop, they would still be left with a dead person on the store's pavement once he left the stand.
"Officer, Seb Crotec. I represent the defendants in this case. You weren't in the store when Mr. Hawkins was in there, correct?"
"No, I got there when he was detained in the parking lot."
"So, you can't say what he did in the store or if he left the store without paying for certain items."
"That's true."
"When you interviewed Morgan Askew immediately after you arrived, did Mr. Askew offer you his view on what Mr. Hawkins did when he was in the store?"
"He did. He said Mr. Hawkins stole merchandise from the store."
"He said this right away. Right then and there?" Crotec asked, waving his arms.
"Correct."
"You, however, didn't investigate whether Mr. Hawkins committed theft while in the store?"
"No, I didn't."
"Why not?"
Mitinger twisted a bit in his seat. "It didn't seem to make much sense at that point. He was dead."
"You mean if Mr. Hawkins was alive, if a store manager said someone stole from the store, you would've investigated to determine if it was true."
"Sure. We do it all the time."
"I know, and it's because theft is common?"
"That's correct."
"Final question, sir. A store maintains the absolute right to stop shoplifters, doesn't it? To put it another way, the law allows it to detain shoplifters if it has a reasonable suspicion the person stole from it."
"Absolutely. In fact, that's what it should do. They should detain a person, call the police, and let us do the investigation."
Crotec shook his head. "That's all the questions I have. Thank you."
Arnie stood behind counsel table. "Let me follow-up. The law also says a store detaining a suspected shoplifter must do it in a reasonable manner."
"It does."
"Is strangling someone to death a reasonable way to detain someone?"
Before Arnie completed his question, Crotec shot to his feet. "Objection. Move to strike counsel's question."
Arnie smiled and said to the court. "I'll withdraw the question. I know it would be a hard one for him to answer." Arnie returned to his seat and signaled he was done with his questions, hoping the jury caught the significance of the withdrawn question.
Noting the questioning was complete, the judge dismissed the witness and said to the jury, "That's a fair amount for one day. I'm dismissing you until tomorrow morning."
As the jurors filed out, Rick patted Arnie on the shoulder. "Nice job. We ended right where we wanted with the image of Jerry dead in the parking lot. I'm going to visit my daughter in the hospital. I'll try to catch you in the office later–if I can make it."
Arnie packed up the remaining papers and Rick allowed himself the luxury to focus on Sammie for the first time since he entered the courtroom in the morning. He grabbed his bag and dashed out the door.
Chapter Fifty
The sweet, antiseptic hospital smell smacked Rick as he forced his way through the revolving door. The guard at the security station nodded as he made a direct path to the elevator. The ride up to the eighth floor seemed to pause on every floor, and with no one else in the elevator, Rick kept pushing the button for Sammie's floor.
It was a fifteen-minute drive from the parking lot next to the courthouse to the hospital, during which for the first time since the judge gaveled court into session, Rick allowed his thoughts to focus solely on his daughter. This wasn't life threatening, he kept reminding himself, but he still couldn't wrap his mind around how his daughter was lying in a hospital room or how potentially life affecting this might be for her
Sammie's floor at the hospital treated kids who faced the enormity of a variety of cognitive and emotional issues. A few days earlier, he heard out-of-control screaming coming from a room down the hall. That experience, with the doctors and staff rushing to the situs of the noise, unnerved Rick as he imagined what they did behind closed doors to help the child calm down. From everything he'd seen in his limited time at the hospital, the staff maintained high levels of professionalism despite constant calls for their attention for children who lacked certain innate control mechanisms.
Relief flooded Rick turning into Sammie's room, finding her resting peacefully in bed, a small, over-loved doll lying in her arms. He waited at the door resting his head against the frame, watching her rhythmic breathing. On the far side of the bed, Molly dozed in a chair, her legs stretched out on the bed. As he eased into the room, Molly's eyes opened, following him as he slipped into the seat next to her.
Molly removed her legs from the bed and stretched her arms above her head, smiling at Rick. "You're wiped out. You shouldn't have come."
Rick scoffed and shook his head.
"How's your trial going?"
"It's fine. How's she doing?" He touched Sammie's leg, releasing a torrent of emotion–part love, part guilt and part fear for what his daughter might face.
"Today was a little rough. They're figuring out how to adjust her meds. It might take a little time."
"How's Sammie taking all this?"
"I'm not sure. She's happy most of the time, but then she isn't."
"How long is she going to be in here?"
"They say probably one more night, but they're also telling me that it's going to be a long road once we get home."
Rick stared straight ahead and mumbled, "I'm sure."
Silence engulfed them as they watched their daughter sleep. Rick leaned his head back against the cinder block wall. After a few minutes, he turned to Molly. "I haven't been a responsible father–or ex-husband for that matter. I need to do better. I will be better and do whatever I can to help out."
Molly turned her head to Rick. "Don't make promises you can't keep. I want more from you. I just can't depend on you at this point."
Rick nodded and then lowered his head. Molly placed a hand on his leg. "She's probably not waking up before morning. You're in the middle of this trial with lots of work to do. I'll tell her you came here, but you should go."
Rick shook his head. "No, I'm staying for a while. This is more important."
Molly gazed at the wall above Sammie's bed and smiled. At eleven, a young nurse came in to inform Rick he had to leave. He put on his suit jacket, kissed Sammie's forehead and waved to Molly as he walked out of the door.
Chapter Fifty-One
Byron Hucklesbee, big as a tree and dressed in baggy jeans, sat in the back of the courtroom with a blank stare on his face. The jurors studied him, assuming he would be the next witness, but he never looked in their direction.
The dilemma facing Rick was excruciating, but similar to ones lawyers deal with in every trial. How hard should he crush a witness? The quick answer laypeople might give is to destroy every witness when given a chance.
Rick knew better.
Sometimes, even adverse witnesses offer helpful testimony, obviating the need to resort to extreme cross-examination. Most lawyers knew to put aside questions designed to make a witness look like a fool when he actually helps their case. Avoiding making the witness look silly when not necessary can score additional points with jurors who understand that other options exist to circumvent the witness having to bow at the lawyer’s feet.
As much as jurors enjoy watching a witness squirm on cross, sometimes withering questioning ticks off a jury. Even green, inexperienced lawyers know elderly witnesses are exempt from in-your-face, overly aggressive questioning–same with the infirmed.
Rick needed to avoid offending the jury with intense questioning of any witness whose ability to respond was at issue or who engendered sympathy with them.
Byron Hucklesbee presented such a conundrum for Rick. Tall, overweight and displaying minimal apparent intelligence, he'd worked at B & D for ten years as a lot attendant. He managed to pass his high school equivalency examination, but the B & D managers testified at their depositions that he may have reached the zenith of his employment opportunities when he was given supervisory responsibilities for the parking lot. The people in charge at the store knew he was hardworking and followed directions, but when pressed, admitted that any instructions with more than two steps was more than he could handle.
At his deposition months before, Byron could barely articulate a complete sentence, offering incoherent responses to the simplest questions. With even a limited use of leading questions, Rick could get him to admit to almost anything.
Because Byron worked for the other side, Rick could call him as an adverse witness and deploy cross-examination by leading him through his testimony. Though confident he could get Byron to admit on the stand he had killed his own mother, Rick knew there was limited utility to any of Byron's admissions as the jury might disregard his testimony and hold it against Rick for beating up a naïve person.
Rick mentally took off his boxing gloves and replaced them with an empathetic smile when he called Byron as the next witness. He would allow Byron to tell his own story without putting too many words in his mouth.
After taking his oath and placing himself in the witness box, Byron’s eyes darted around the courtroom, unable to focus on anything in particular. His attention moved from the judge to the jurors and then to Rick, before circling again.
Rick waved his fingers to grab Byron's gaze and inwardly preached patience to resist the urge to get confrontational.
"What's your name?" Rick asked, confident Byron would not get flustered handling it.
"Byron."
Two jurors smiled.
Close. "What's your full name?"
"Byron Hucklesbee." He nodded and his wide smile was returned by three more jurors.
It took almost ten minutes to establish Byron's work history with B & D and his routine of returning lines of shopping carts to the store from the parking lot each shift. One thing Byron had a handle on was his job duties, as he did the same tasks every day he worked.
Without trying to get any extraneous details from Byron, Rick turned to Jerry's death. He asked, "Byron, were you involved in trying to stop a shoplifter in the parking lot?"
Byron nodded. "You mean when the guy died?"
"Yes. How did you become involved?"
"My manager, Mr. Askew, told me to stop the man. He had stolen something from inside the store."
