Randy Singer - The Justice Game

“Were you aware that Peninsula Arms received at least three separate citations from the ATF for illegal straw sales?”

“I might have been aware of that.”

Jason tensed, fighting the instinct to object in order to keep his client out of trouble. Objections only drew attention to the answer and signaled to the other lawyer that they were on to something.

But Jason knew that Davids’s last answer-that she “might” have been aware of the ATF citations-was skating dangerously close to perjury. While reviewing his client’s business records to determine which ones to produce, he had looked through MD Firearms’s e-mails, electronic documents, and files. Most of the files contained bland records about the design of the MD-9 or sales documents or contracts with various gun distributors and dealers. Jason had barely been able to stay awake as he reviewed the stuff. But one three-page memo from Case McAllister to Melissa Davids had caught his attention. It was entitled “Sales to Dealers Sued by Northeast Cities.”

The document was the proverbial “smoking gun,” written nearly a year before the Crawford shooting and addressing the issue of whether MD Firearms should stop supplying the rogue dealers who had been sued by the city governments.

In the memo, Case had analyzed precisely how many MD Firearms guns had been traced to crimes in the cities involved in the lawsuits and what dealers had sold the guns. His analysis showed that four dealers, including Peninsula Arms, were responsible for nearly half the guns used in those crimes. Case had analyzed the profits made from sales to those particular dealers and the estimated costs of defending a lawsuit by the dealers if MD Firearms tried to discontinue sales to them. He also cautioned that taking steps to discontinue sales to some dealers would serve as an admission by MD Firearms that they had a duty to monitor all dealers and could therefore lead to lawsuits whenever their guns were used in crimes.

His conclusion: “A careful cost-benefit analysis suggests we should continue selling guns to all licensed and qualified dealers.”

Melissa Davids had hand-scratched her response across the top of the memo: “No kidding. Whatever happened to free enterprise?”

It was the kind of memo that Kelly Starling would love to wave around during her closing argument, arguing that MD Firearms cared only about profits, not the lives of innocent victims like Rachel Crawford. Jason intended to make sure that she never got that opportunity.

As part of pretrial discovery, Kelly had made an official request for all relevant documents possessed by MD Firearms. But Jason had withheld Case’s memo.

In doing so, he knew he was on shaky legal ground. On its face, the memo contained legal advice and was therefore covered by the attorney-client privilege. But when Jason talked to Case McAllister about the memo, he learned that Davids had actually forwarded the document by e-mail to the CEO of another gun manufacturer who was facing the same decision.

“Twice a year, some of the executives of the biggest gun companies get together and talk about issues of mutual concern,” Case had explained. “One of the ongoing issues, of course, was the litigation filed by the cities. Another CEO was seriously considering shutting off sales to renegade dealers. Melissa was determined to talk him out of it and sent him the memo without checking with me first.”

By providing the memo to a person outside the company, Davids had arguably waived the attorney-client privilege. But that wasn’t the end of the analysis. Jason’s research had turned up a possible justification for still withholding it from Kelly Starling-something called “joint defense doctrine.” If two companies were both targets of a lawsuit and conducting a “joint defense,” they could arguably share documents without waiving the attorney-client privilege. It was a stretch, but the doctrine at least gave Jason a good faith reason to keep the memo from seeing the light of day.

Still, it made him uncomfortable when Davids pretended to know so little about the sales patterns of these dealers.

Kelly Starling slid a nineteen-page spreadsheet in front of the witness and provided Jason with a copy. Even though Jason hadn’t produced the Case McAllister memo, Kelly had apparently done her own homework.

“This is a spreadsheet containing information about guns traced to crimes in the cities that filed lawsuits and the stores that sold the guns,” Kelly said. “In 2006 alone, 251 guns bought from Peninsula Arms were linked to murders or aggravated woundings in these four cities. None of those guns was used by its original owner. Only one other dealer had a greater number of guns involved. Did it ever occur to you that maybe you should discontinue selling guns to Peninsula Arms and this other dealer, Brachman’s Gun Shop, based on their obvious involvement with gun traffickers?”

“I told you-it’s not our job to monitor gun dealers.”

Kelly snorted at the blow-off answer. “That’s not my question. Did you ever consider whether you should stop selling guns to Peninsula Arms?”

“No,” Davids said. “If anybody had suggested such a thing to me, I would have told them I still believed in the Second Amendment and the free enterprise system.”

Because he knew about the McAllister memo, this answer really made Jason squirm. Davids had phrased her answer in hypothetical terms, so she technically wasn’t lying. But the answer was not the whole truth, either.

Kelly made a few notes on her legal pad, as if she knew she was getting warm but couldn’t quite figure out what she was missing. “Even though you knew Peninsula Arms had been cited for straw purchases three separate times by the ATF, had engaged in straw sales with undercover agents from New York City, and was linked to over 200 guns in one year used in crimes by unregistered owners, you didn’t think you had any responsibility to cut them off?”

Davids didn’t blink. “Let me put it to you this way,” she said. “If you came into a car dealership with three DUIs, do you think that car dealership is going to sell you the car?” She didn’t pause long enough for Kelly to answer. “Of course they are. And when you kill somebody on your fourth DUI, you know whose fault that is? The government’s, that’s who. They’re the ones that should have put your sorry butt in jail the third time. It’s not the car dealer’s fault. It’s not their job to regulate your conduct.”

Kelly Starling made a face, as if kicking herself for asking one too many questions. But she was committed to this line of questioning now. “Let’s try a different analogy, Ms. Davids. If you’re a bartender and your patron has already had one too many drinks and he’s searching his pockets for his car keys, you think you can just sell him another beer and not worry about it?”

For the first time all day, Melissa Davids smiled at Kelly. “Perfect example. Maybe the accident victim could sue the drunk driver. And maybe the accident victim could sue the tavern that gave him another drink. But you don’t get to sue Anheuser-Busch.”

After the deposition, Jason drove Case McAllister and Melissa Davids to the airport. They had just enough time to check their guns through baggage and make the flight.

“Good job today,” Jason said.

“Don’t give her a big head,” Case warned.

Davids smirked. “It must have been all the practice.”

Jason showed up at his new office on Tuesday in jeans and an old sweatshirt. He left his winter jacket on for the first hour while the space heated up. He had leased the second floor of a nondescript brick building on Laskin Road about a mile from the beach. The first floor housed an insurance agent and a mortgage broker. There was adequate parking, the building was fairly new, and the marquee out front now displayed Jason Noble, Attorney at Law in the third slot from the top.