Unclean Hands, page 21
"What does the store do to combat theft?"
"Like I said, it's a constant problem, but one we address through our training and our vigilance. We station a uniform police officer at the front of the store who primarily acts as a deterrent so when people see him they think twice about stealing. There isn't an officer there all the time, and he wasn't scheduled when Mr. Hawkins came into the store. We also allow undercover security guards to walk the store looking like they are shoppers, but if they see suspicious activity they will move to stop it."
Crotec nodded. "How often do they catch people stealing?"
"All the time." Oliver threw up his hands. "I've seen some of these detectives catch four people on one shift. There's so much paperwork involved when they catch someone it usually takes ninety minutes to complete the processing."
"Do any of the people working in the store other than the police officer and the security guards have responsibility for combating shoplifting?"
"In some ways we all do. We tell our team members to be vigilant in keeping an eye on their surroundings and if they see anything suspicious, they should notify a manager. The staff is instructed not to stop anyone if they suspect someone is stealing–but they can act if directed by a manager."
"What do managers do with respect to suspected shoplifters?"
Oliver's lips turned up at the edges. "We’re trained to watch suspected shoplifters and only stop them if we maintain eye contact from the time they take something, until they pass the point of sale. If they stuff something in their pocket on the sales floor, we have the right to stop them right there, but we don't. We wait until they go past a checkout counter to give them a chance to buy the item. Also, if we are distracted, like if a customer asks us a question, and we lose visual contact, we are instructed not to stop a shoplifter."
"Interesting," Crotec said. "Do you want to stop shoplifters?"
Oliver paused. "What I would want is for people to pay for what they put in their carts. Then none of us would need to worry about any of this. But lots of people steal and I want to protect the store and our customers."
"Mr. Oliver, do you receive sufficient training on how to detain a shoplifter?"
"We do. We attend lots of seminars. Our Loss Prevention Department teaches us and assists us. I'm comfortable that all the managers at the store are more than competent to handle shoplifters." He glanced over at Morgan Askew and nodded.
Crotec shifted back towards his counsel table. "Let me ask you about another issue. Did you review video to find other instances of Jerry Hawkins shoplifting from the store?"
"I did. I presumed he tried to steal on other occasions. In other shoplifting situations I went back and found other instances of theft which was much easier because they used their shopper's cards, so we had a record of when they shopped in the store. Here, Mr. Hawkins didn't use a card. We utilize software that can identify people through facial recognition, and I searched it to find other times Mr. Hawkins was in the store. The hard drive automatically overwrites the video after ninety days. So once I started, I only had that much time to review."
"So what did you find?"
"Mr. Hawkins was very busy. He employed different methods for shoplifting, but we found them. In the three months before his event in the parking lot, he shopped in the store six times that we could uncover. In those occasions he purchased thirty-six dollars of product," Oliver paused for effect. "but, he took over six hundred dollars of our items without ever paying for them."
"You can't be serious," Crotec said with a slight shake of his head.
"Oh, I am. Unfortunately, this is fairly common at any retail establishment."
Crotec nodded with solemnity. "That's all my questions for this witness."
Arnie stood and approached with a scowl etched on his face. He didn't waste any time searching for a question to ask. "Mr. Oliver, your managers weren't trained in how to detain possible shoplifters, were they?"
"I would disagree with that," Oliver said, wrinkles appearing on his brow. He turned away from Arnie and toward the jurors. "Our managers undergo extensive training to help them deal with any possible situation."
Arnie held up his hand. "My question was limited to detention." He held up a binder. "There is nothing in any of your training manuals about how to properly detain someone, is there?"
"That's probably true," Oliver conceded.
Arnie stepped towards the jurors after receiving the concession. "You admit shoplifting occurs all the time."
"Correct."
"You are trained to stop suspected shoplifters."
"True."
"Yet, nothing in your training materials teaches you how to safely detain someone."
"I just told you that."
Arnie smiled. "So when Mr. Askew went to detain Jerry, Mr. Askew had no training in how to do it safely."
"I disagree. We had lots of instruction and I believe Mr. Askew had enough to do it safely."
"There was no training on the potential risks of sitting on top of someone, was there?"
"No, probably not."
Arnie approached the witness while raising the papers he held. "The lot attendant, Byron Hucklesbee, he didn't have any training on how to detain a suspected shoplifter, did he?"
"I imagine not."
"No training on how to approach a suspected shoplifter."
"No."
"So he was not aware of the danger in taking someone down and sitting on him, was he?"
"Probably not."
"Yet, your assistant asked him to do just that?"
"I'm not sure. It seemed like Mr. Askew sought some assistance, but was always in charge."
Arnie shook his head and turned his back on the witness to relocate to the front of defendants’ counsel counsel table. "One more area Mr. Oliver. How many hours did you spend reviewing video following Jerry through your store on his visits before the night he was killed?"
Oliver thought for a moment. "Probably about twenty hours."
"That's a lot of time spent for something that isn't even relevant to what Mr. Askew did that night."
"We thought it was relevant that he kept coming to the store and stealing from us."
Arnie held up his hand. "Sir, at the time Mr. Askew stopped Jerry on the night he died, Mr. Askew had no knowledge of what Jerry may or may not have done on other visits to the store, did he?"
"I guess not."
"Therefore, what Mr. Askew did on those other occasions played no role in the decisions he made."
"I suppose you are correct."
"So, Jerry was killed only because of what Mr. Askew saw that afternoon and not on other days."
"I wouldn't put it that way, but I would agree that Mr. Askew made his decision to detain Mr. Hawkins based solely on what he saw Mr. Hawkins do that afternoon."
"The other times aren't relevant to the decisions Mr. Askew made?"
"I guess you're correct."
Having received one last concession, Arnie announced he had no more questions and threw Rick a weary expression of relief.
Chapter Fifty-Nine
Dammit, let's just get this over, Rick thought as Marlon Copelman wedged into the witness box. He sat at counsel table with the folder marked "defendant's liability expert" opened in front of him. He had a sense of what Copelman was about to say–everything bad that ever happened occurred because Jerry Hawkins took a few things from B & D.
This is not going to be fun.
Rick turned his attention to the chubby man in the plaid sports coat who was spreading his report in front of him.
Despite his stature, the witness displayed no shortcomings in confidence. His gaze never wavered from the jurors, taking pains to make sure he spoke directly to them. He had testified in courtrooms across the country and his comfort in these surroundings was evident.
Fifteen minutes elapsed while he served up his qualifications as Spencer stood by counsel table almost as a bystander, not having to ask many questions. Copelman emphasized his familiarity with shoplifting and state statutes authorizing stores to prevent shoplifting. Despite the limitation of supposedly only talking about his qualifications, Copelman primed the jury to recognize the prevalence of shoplifting and the company's rights under the Merchant's Act to detain suspected shoplifters.
When given the opportunity to question Copelman regarding his qualifications, Rick avoided attacking his credentials head-on, but wanted to lay the groundwork for his later questioning.
"Sir," Rick said, "you have testified on behalf of individuals suing companies twice, correct?"
The witness reviewed his resume. "That appears to be correct."
"Yet, you have testified for stores and other defendants in shoplifting matters forty-seven times."
"That is also correct."
"Thank you, Mr. Copelman. I will want to discuss your opinions in those cases later." Rick sat, releasing the witness for his substantive testimony, while implicitly conceding he was qualified to offer his opinion to this jury, yet reminding them to wait before reaching any conclusions.
The witness breezed through his direct examination, offering a substantive basis for the store's detention of Jerry Hawkins and their right to utilize force, especially in response to Jerry throwing a punch at the cart boy. He pieced together his argument to make killing Jerry Hawkins almost seem like something which should happen with more frequency.
He summarized at the end: "Under the law, any retailer has the right to detain a suspected shoplifter. The shoplifter has no right to resist and no right to engage in a physical altercation. If he does and that altercation escalates, it is the shoplifter who bears responsibility, not the shop owner, which is acting completely within its rights and authority. Mr. Hawkins was an aggressor and chose to fight his way out when the store personnel confronted him. The company was within its rights. Mr. Hawkins clearly was not."
Spencer wanted to tie the bow on this testimony. "In your opinion, did the store act reasonably under the circumstances?"
Copelman held his gaze with one juror before responding. "Absolutely. The law is there to protect the store and their honest customers from the dangers of shoplifting. Not only can the store lose money through theft, but innocent bystanders can be hurt. Here, B & D employees protected not only the assets of the store, but also its customers. By detaining Mr. Hawkins and preventing him from running dangerously through the parking lot, they protected unsuspecting customers from danger. I applaud their courageous actions."
The testimony took little more than thirty minutes and allowed Copelman to emphasize that Jerry's theft put everyone else's actions in motion and had he been a law-abiding shopper, nothing bad would have happened to him.
Rick didn't have any interest in further discussing shoplifting. He stood in front of the witness, intending to emphasize the killing.
"Mr. Copelman, Jerry Hawkins died because four people sat on him with one having a knee in his back. They suffocated him."
Copelman looked uneasy and turned to the jury. "Without rehashing the chain of events, it started with Mr. Hawkins stealing. Yes, he ultimately died and yes, four people laid on top of him, but you're forgetting to include the fact he continued to struggle and fight to get loose."
"Will you agree that it's improper for four people to detain a person by sitting on him and holding him so he can't move?"
"What I will say is there are probably better ways to accomplish this objective, but when a suspect struggles, you have to do whatever works under the circumstances."
A grimace formed on Rick's face. "The reason why it's improper to sit on a person who is struggling, is because of exactly what happened here. Someone could die."
"I suppose that's true."
"None of the employees from B & D received any training on the proper method of how to detain a suspected shoplifter, did they?"
"I did not see any evidence of that specific training."
"Like you said, sometimes people when accused of stealing will not comply–they may act out."
"That's true."
"So, you agree shoplifting is foreseeable, correct?"
"Yes, all retailers must deal with it."
"It's also foreseeable that people accused of shoplifting may act out?"
"Yes."
"Based on what you said, more physical means of detention will prove necessary."
"Yes, that's true."
"If a store does not properly train its employees on how to detain someone when they act out, they will end up in a situation like what happened to Mr. Hawkins."
"Perhaps."
Rick moved forward towards the witness. "Come on, Mr. Copelman. Shoplifting is foreseeable. People don't like to be accused of stealing, so acting out is foreseeable. If a store decides to detain someone who is acting out, it will have to act physically by perhaps sitting on them."
"Yes, I agree to that."
More of the whites of Rick's eyes appeared. "So if this is all foreseeable, doesn't a store have an obligation to train its employees on how to deal with a suspected shoplifter who may act out?"
Copelman shook his head. "I'm not sure I agree. . ."
Rick interrupted. "Because if they don't train him properly that person could die."
"I don't agree. I don't believe Mr. Hawkins dying was foreseeable by anybody. The store had a reasonable policy of training, consistent with every other similar company."
"That's the best you got, Mr. Copelman?” Rick scoffed. “They didn't know they would kill Mr. Hawkins. You can do better, can't you?"
Spencer shot up. "Objection. Move to strike."
The judge held up a hand preventing any argument. "The objection is sustained. Mr. Waterston's last question is stricken. Any further questions?"
"I do." He turned back to the witness. "Mr. Copelman, the forty-seven times you testified on behalf of a corporation in a wrongful detention case, you opined that their policies are reasonable, correct?"
"I believe you are correct. That's because the policies are fairly similar and consistent with the law."
Rick continued. "The two times you were hired by a person suing a company, you offered the contrary opinion–that the company acted improperly."
"I can't say I remember my testimony from every case. It was a long time ago."
Arnie handed Rick a stack of deposition transcripts. Rick grabbed them. "I got them all here. For example, in Myers v. Trader Vick's, you testified on page forty-two, 'The Company’s training was clearly lacking and this led to the manager improperly detaining the plaintiff.' You said that, didn't you?"
"If it's there, I said it."
"C'mon sir, I'll go through each one, but didn't you offer testimony in every case on the side of the plaintiff that the company's policies were insufficient?"
Copelman bit his lip. "I suppose that's true."
Rick smiled. "So, each time you testify, your opinion is favorable to the side that is paying you?"
"I call them as I see it, counselor. Those were well-reasoned opinions."
Rick stared at Copelman. "Well-compensated opinions, you meant to say." Before Spencer could object, he said, "I have no further questions for this witness."
Spencer conferred briefly with Crotec and then stood. "Mr. Copelman, explain why B & D 's policy is reasonable in your professional opinion."
Copelman nodded and turned to the jurors. "B & D, like every other major retailer, understands that some people will come onto their property not with the intent to shop, but with the intent to steal. Like every other retailer, B & D maintains the right to detain suspected shoplifters. What this means is, it's reasonable and expected the company will deploy eimployees to make sure that when people on their property select merchandise, they actually pay for it. If they don't, B & D can detain them for prosecution by calling the police.
“It's exactly what happened here. Mr. Askew reasonably attempted to detain Mr. Hawkins, but the situation escalated, through no fault of Mr. Askew. Mr. Hawkins, as the bad actor, bears the responsibility for the consequences he set in motion by stealing and fighting."
Spencer glanced at Crotec who nodded his head. "Thank you, Mr. Copelman."
Rick stood to make sure the judge allowed him one more opportunity with this witness.
"Mr. Copelman, the assistant manager instructed the cart person, Mr. Hucklesbee, to stop Mr. Hawkins in the parking lot."
"Yes."
"He tried to grab Mr. Hawkins, didn't he?"
"All in the course of trying to detain Mr. Hawkins."
"Which is the point, isn't it? Nobody trained Mr. Hucklesbee on how to detain, so he escalated the situation and initiated the first physical contact with Mr. Hawkins. If he didn't do that, Mr. Hawkins would still be alive."
"I don't agree with your analysis. Again, Mr. Hawkins started this whole chain of events by stealing and could have stopped the chain by submitting to the store's proper authority to detain. By failing to do so, Mr. Hawkins created the situation that led to his demise."
Rick blew out a breath, wondering if he should try harder to convince this witness of the flaws with his reasoning. With a grim understanding he wouldn't be able to shake the witness's testimony, he announced, "Nothing further."
As Rick took his seat, Arnie passed him a note. "You made your point. The jury knows this guy is a hired gun."
Chapter Sixty
His arm stiff and his hand pointed up to the ceiling, Michael McGarrity made taking the oath appear as solemn as giving last rites. Dressed in a black suit, crisp white shirt and a small red bow tie, he seated himself in the witness stand with his hands clasped together, ready to offer his story.
"My name is Michael McGarrity, but my friends call me Mick," he said as his six-foot-four frame consumed the witness box. His easy smile pulled in the jurors. Making people feel at ease was part of his nature and an asset in putting seats in the pews of his church every Sunday. He explained his role as pastor and the role the Lord had played in his life before Crotec had a chance to ask.
"Were you in the parking lot the afternoon Jerry Hawkins died?" Crotec asked.
