Karp had to be careful how he worded the reasons behind Rufus Porter's dismissal from the team. At a pretrial hearing, Zusskin had successfully argued that the plaintiff and his attorneys should not be allowed to say that Rufus Porter had been kicked off the team because of the sexual assault charges filed by Maly Laska. "The charges were dropped," the attorney had pointed out. "And even if the case had been adjudicated and Porter found guilty, it would be unfairly prejudicial to the rights of the defendants to a fair trial because they would be seen in the same light as an accused rapist."
The judge agreed and said that the plaintiff and his attorneys would be limited to saying that Porter had been dismissed "for conduct detrimental to the team." And that O'Toole had refused to reinstate him despite pressure from the university.
Karp hoped that the jurors would sense that there was more to the story. But at least they would have some motive for Porter to unjustly accuse the coach. "And," he now told the jurors, "only when Coach O'Toole refused to let Porter back on the team did he make these grossly unfair and untrue accusations."
"However," Karp went on, "although we will prove to you that these allegations were false, they are not what this lawsuit is about." He went on to explain how based on Porter's charges, O'Toole had been brought before an ACAA hearing panel "and without the opportunity to confront his accuser, or present evidence, or call witnesses of his own, Coach Mikey O'Toole was summarily suspended from coaching for a period of ten years."
Karp let the number sink in before continuing. "Ten long years, ladies and gentlemen, a veritable death sentence to his coaching career. But the injustice did not stop there. When Coach O'Toole asked the university through its president, E. 'Kip' Huttington, for the opportunity to clear his name at a public hearing conducted at the university, his request was denied. He was told that it would not be in the best interest of the school and-if you can somehow get your arms around this-that it would not be in his own best interest. He was told to move on with his life…to move on with his life having been denied the birthright of every American to face his accusers, defend his innocence against malicious lies, and continue to pursue his chosen profession."
Karp hoped that his "little speeches" from his voir dire questioning of the day before were resonating with the jury. "During the course of this trial, you will hear us discuss something called a liberty interest. Now, most of us think of liberty as 'freedom'-for instance, the freedom, or liberty, to live where we want, or do what we want and say what we want as long as we don't commit a crime or infringe on the liberty of other people. However, our courts have also held that there's another type of liberty, and that's the liberty to seek employment in the career of our choice. And it is that liberty, ladies and gentlemen, that was taken from Coach O'Toole without a fair hearing."
It was at this point that Karp stopped to go over his conclusion, which he'd altered the night before after his confrontation with Coach Anderson. "If I may, I'd like to divert for a moment to tell you a story about one of the members of the ACAA hearing panel that so cavalierly acted to destroy our client's life. That man is sitting in the back of the courtroom right now-the white-haired gentleman in the last row behind the defendant's table."
Everyone in the courtroom turned to look at Coach Anderson, whose eyes narrowed and cheeks blushed but who otherwise made no indication that he had unexpectedly become the focal point of Karp's statement. "His name is J. C. Anderson, who some of you may recognize as one of the most successful college football coaches of his era."
"Objection," Zusskin said, his baritone reverberating off the wooden walls of the courtroom as he stood up from his seat between Welt on one side and Huttington on the other. "Coach Anderson is not a participant in this trial. I see no purpose to this little anecdote."
"Mr. Karp?" Judge Allen said.
"Your Honor, if you'll bear with me for a moment, I think it will become clear how this 'little anecdote' applies to what we are doing here today," Karp said.
Judge Allen's lips twisted as he considered, and then he nodded. "I'll allow it; however, please get to your point quickly."
"Thank you, Your Honor," Karp said. "I will." He then repeated the story of hearing Anderson speak at the basketball camp. "I never forgot what he said about life not being a matter of winning and losing, but about fair play. And in the end, fair play is also what this trial is really all about. It was something that Coach Anderson and the other members of that hearing panel seemed to have forgotten."
Karp studied the twelve faces of the jurors and noted their eyes flitting from him to the coach and back. It was time to deliver his message. "We intend to prove by a preponderance of the evidence that the truth of this case is that the American Collegiate Athletic Association and the University of Northwest Idaho and its president, Huttington, acting in concert, created and disseminated false and defamatory accusations that have so stigmatized Coach O'Toole that even should his suspension be lifted, or if he waits ten long years, it will prevent him from coaching again. How do I know? Well, you will hear from athletic directors of other colleges and universities-men who will acknowledge that even though Coach O'Toole is eminently qualified, they would never be allowed to hire him given the nature of the charges brought against him."
Karp looked into twelve pairs of eyes. "We will learn from the evidence the real truth in this case-that the defendants acted with malice, meaning they knew the charges against Coach O'Toole were false and acted with a reckless disregard for truth." He allowed his voice to rise and grow tight. "That, ladies and gentlemen, is the legal definition of malice. Justice cries out, good conscience demands, and common sense dictates that you will not permit this malice to breathe another moment."
Karp took his seat and calmly watched Zusskin rise from his like some great Shakespearean actor relishing the moment before he delivers his lines. "That was a beautiful speech," the attorney said at last. "The sort of speech we might expect on the Fourth of July-all about American birthrights and the Constitution. I myself might have been moved by those words in some other time and place. But ladies and gentlemen of the jury, in this courtroom today, those words were little more than smoke and mirrors intended to disguise what this trial is really about. Allow me to return for a moment to what we believe are the true facts of this case."
Rufus Porter, he said, had been a dedicated member of the university baseball team who "through no fault of his own…and with questionable reasoning saw his minutes on the playing field dwindle. As such, he became desperate to please his coach so that when that coach asked him to do something they both knew was not right, he went ahead and did it anyway. He was the instrument of Mr. O'Toole's bid to lure players who might lead his team to a national championship."
The facts will show, he said, that the recruits in question had been truthful when they said that Mr. O'Toole was aware of the party and had sponsored it. "And they told this to an objective investigator for the ACAA shortly after these allegations came to light, not months later when a New York City police detective hunted them down on behalf of Mr. O'Toole and got a different story. You'll also hear from other corroborating witnesses that calls were placed from Mr. O'Toole's office and that alcohol and the services of strippers were purchased using a credit card entrusted to Mr. O'Toole by the university.