Karp thought he and Meyers would be able to deal with those issues. However, the wild card would be how the jury responded to the testimony of the two recruits at the center of the scandal, Steele Dalton and Michael Mason.
They were the reason that Fulton had called Marlene on the day she'd met with Santacristina/Katarain. The detectives had just finished interviewing the two young men and they'd been "very cooperative." So cooperative, in fact, that after jury selection was over and the jurors were sent home, Karp had made a motion challenging the admissibility of the "abbreviated transcript" of the Dalton and Mason interviews that ACAA investigator James Larkin had used at O'Toole's hearing.
"The two witnesses will testify that the transcript is grossly incomplete," Karp argued. "And we've been informed by the defendant that the tape recording of the interviews is no longer available, nor is a complete copy of the transcript."
Zusskin countered that by the ACAA's rules, Larkin had not been required to keep a copy of the tape and "for the purposes of the hearing, the completeness of the transcript was not relevant."
"Not relevant?" Karp scowled. "I guess due process wasn't relevant either."
"This wasn't a court of law," Zusskin said. "It was a hearing before a private entity, operating as it always has under its rules and regulations. When Coach O'Toole took the job, he signed a contract saying, in part, that he would abide by those rules and regulations, which include abiding by the decisions of a duly appointed ACAA panel. The ACAA is like a private club that has the right to kick out members who break the rules of the club. As long as there are no violations of a federally protected class, such as in age, religion, national origin, or race discrimination, normal due process protections do not apply."
"The ACAA was acting jointly, in concert, with a public entity-the university-and participated in creating and disseminating false and defamatory charges pertaining to Coach O'Toole, which have significantly stigmatized him and will prevent him from obtaining future employment as a college baseball coach," Karp said. "It is plaintiff O'Toole's position that indeed Fourteenth Amendment due process applies, and had the university offered Coach O'Toole his requested name-clearing hearing, he would have demonstrated from the evidence-not hearsay or innuendo or speculation, but from the facts-that the charges are totally false."
Zusskin listened to Karp with his arms folded across his chest and a slight smile on his face. "Judge Allen, Your Honor, this is all very interesting, and I'm sure a jury would be on their feet, applauding Mr. Karp's passionate oratory," he said in reply. "But we are trying to focus on a very narrow issue here-the admissibility of the transcript used at the hearing. We want to present it to the jury, as it was heard by the panel that reached this decision. We physically cannot produce a complete copy as the tape recording is unavailable, not because of some sinister plot, but because the ACAA was not required to keep it."
Karp was about to respond again but Judge Allen interrupted. "That's all right, Mr. Karp, I believe I understand your argument," he said. "However, I'm going to allow the so-called abbreviated transcript into evidence, otherwise the jury won't even know what you're complaining about. You'll get the opportunity to call this investigator, Mr. Larkin, and ask him why it appears in this form, and you'll have the opportunity to call the two witnesses to, I assume, rebut or expand on the transcript. Then it will be up to the jury to decide who is telling the truth."
Karp accepted the judge's ruling and winked when he turned to Meyers and O'Toole. Later, as they left the courtroom, he told them that he had not expected to win the motion, "but sometimes even good judges, like Allen, need to be reminded of what's really at stake."
Walking out of the courthouse, they'd almost run into an elderly man who was standing outside the doors, smoking a pipe. Even forty years after he'd seen him as a high school basketball player, Karp recognized the tough, weathered visage of Coach J. C. Anderson. The old man smiled and raised his pipe. "They wrapped up in there? They wouldn't let me smoke this thing inside."
"Yes, we're through for the day," Meyers said. "Butch, this is-"
"Coach Anderson," Karp finished the sentence. "We met once a long time ago." He intended to walk past the man, but then turned. "When I was a teenager, I heard you talk about the importance of fair play and how it would matter when we became adults. It stuck with me all these years, and I've lived a lot of my life by that. What I don't understand is what happened to you?"
The smile disappeared from Anderson's face and his jaw set tight. "I don't need you to lecture me on principles, Mr. Karp," he said. "I've been part of this system for nearly sixty years as a player and a coach. It's not perfect but it's what we got."
"If this is the system, Coach Anderson, then the system is broken," Karp replied. "No, I take that back. The system isn't just broken, it's become evil and venal. What sort of fair system would take a man's job and destroy his reputation based on a bunch of hearsay and lies without at least giving him the chance to defend himself? I can't believe that you would be part of that."
The old man continued to glare for a minute and looked like he might hit Karp. But then his expression softened and he ran a liver-spotted hand through his white hair. "I don't know what I'm part of anymore," he said. "It's just not the same world that I grew up in. Payoffs. Betting on games. Kids getting recruited on college campuses with sex and drugs. Everybody cheats and commits crimes with impunity. Does any of it matter?"
"Yes, it matters," Karp replied. "And you could have done the right thing. You could have been a voice for fair play."
The coach looked like he was about to say something, but then turned and walked back inside. Karp stood and watched him go, wondering what had caused him to bait an old man. But it had given him an idea for his opening statement in the morning.
"Want to grab some dinner?" Meyers asked.
"Would love to," Karp replied, "but I think I'm eating in the room tonight. I've got to cram for a test."
O'Toole laughed. "Now you're sounding like one of my players."
Karp smiled. "Or your brother."
23
Twelve expectant faces. twelve pairs of eyes. seven men. Five women. All white. And all with their attention riveted on Butch Karp as he stood for a moment at the lectern, going over the conclusion to his opening statement in the O'Toole trial one last time in his mind.
Meyers had asked him to give the opening statement. "I'd prefer the closing arguments," the young lawyer explained. "I think if I have any jitters, they will be at the beginning of the trial, but by the end I'll be in the groove."
After the jury was seated and had been instructed by Judge Allen as to their duties, he turned to Karp. "Your opening statement, Mr. Karp."
Karp rose from his chair.
So Karp had started the morning laying out the basics of the case for the jurors, beginning with a brief history of O'Toole's tenure at the university, his accolades and accomplishments.
"Coach O'Toole loved the university and had decided that even should an offer come from a larger school, the University of Northwest Idaho was where he wanted to be," he said. "However, all of this changed in the spring of last year when a former player on Coach O'Toole's baseball team-a player who'd been dismissed from the team, and whose father is a major contributor to the university's athletic programs-claimed that O'Toole had asked him to show two recruits 'a good time.' According to this player, Rufus Porter, a good time included taking them to a party where they consumed alcohol and engaged in sexual acts with strippers-all allegedly paid for by Coach O'Toole from a university athletic account."