Randy Singer - The Justice Game

Andrew Lassiter thumbed through some papers. “We’ve got to get our shadow jurors in place,” he replied, not looking at Jason.

It was Andrew’s way of saying he was going to stick around despite what Jason had done in court. They talked for a few minutes about the shadow jury, neither saying a word about Jason’s selection of the actual jurors. Andrew thought that he could have a shadow jury in place by Thursday.

“Do the best you can,” Jason said. “And Andrew-” his friend looked up-“I appreciate you hanging in there with me.”

“Don’t worry about it,” Andrew said, the eyes blinking. “You’re going to make me rich.”

Jason furrowed his brow. “How?”

Andrew put on his glasses, brushed his hair out of his eyes, and stared at Jason for a few seconds. “When we impanel this shadow jury, I’m going to bring in two extra jurors who will be just like the last two that you kicked off the panel. When the case is over, we’ll compare the opinions of the two you picked with the two I recommended that you leave on. It’ll make for great marketing materials: man versus machine-look what happens when you rely on your instincts.”

“Clever,” Jason said.

“Yeah. And if you lose with the panel you selected, particularly if my jurors would have gone the other way, it will be great for business.”

“No offense,” Jason said, “but I hope your marketing plan goes down in flames.”

“Ms. Starling, does the plaintiff have an opening statement?”

“We do, Your Honor.”

Kelly stood and walked toward the jurors, holding nothing but a remote control. After months of pretrial discovery, deposition disputes, and a bevy of motions, she couldn’t believe that the moment had finally arrived.

“‘By our readiness to allow arms to be purchased at will and fired at whim, we have created an atmosphere in which violence and hatred have become popular pastimes.’”

She looked at Juror 3, Rodney Peterson, the only African American left on the jury. A history professor. A Democrat. A man active in the inner city. “Those are not my words,” Kelly said. “They are the words of Dr. Martin Luther King Jr.”

She stopped a few feet in front of the jury box and surveyed all the jurors. “What Dr. King said is true. And nobody has been more ready to allow guns to be purchased at will and fired at whim than the defendant-MD Firearms.”

Kelly had placed a large screen hooked up to an LCD projector in front of the witness box. She pushed a button on her remote, and the first fact flashed on the screen.

“According to the Bureau of Alcohol, Tobacco, and Firearms, the federal agency tasked with oversight of our gun laws, one percent of gun stores sell the weapons traced to 57 percent of gun crimes. ‘How can that be?’ you might ask. That doesn’t seem statistically possible. And you’re right-it’s not.

“Unless… those gun stores help things along a little bit. Unless a few stores, a few renegade dealers, find ways to supply the black market for guns and make money from it. Maybe they sell a bunch of guns to legal purchasers, knowing that those purchasers are supplying the guns to criminals. Maybe they fudge the paperwork. Maybe they lose the paperwork. However they do it, these dealers are merchants of death, making money by supplying the street gangs and thugs and drug dealers with lethal firearms.

“The evidence in this case will show that Peninsula Arms was one such dealer.”

For the next few minutes, Kelly took the jurors through a series of PowerPoint slides that demonstrated her point. She started with a map of the United States, highlighting those cities that had filed lawsuits against renegade dealers. Using a blowup of the federal firearms transaction record, she explained how a straw sale occurred-having an eligible purchaser fill out the paperwork knowing that the gun was in reality going to somebody else who couldn’t have purchased it on his own.

She showed them slides full of statistics gleaned from the various lawsuits. Two dealers had sold 30 percent of the guns traced to street crimes. One was Peninsula Arms. In 2006 alone, 251 guns previously sold by Peninsula Arms were linked to murders or aggravated woundings in Philadelphia, Washington, Baltimore, and New York City. As part of their investigation, undercover agents from New York City had enticed Peninsula Arms clerks into an illegal straw sale. It wasn’t hard.

“MD Firearms knew about these lawsuits and these statistics. And what did they do with this knowledge about one of their biggest dealers?” Kelly asked. She walked over to the table where Jason Noble and Case McAllister were sitting. “Did they stop selling to Peninsula Arms until the dealer straightened up?”

Kelly looked down at Case, who returned her gaze with an unrepentant stare. At that moment, she was pretty sure Case wanted to shoot out her kneecaps. Perfect.

“Did they help the ATF set up a sting so that Peninsula Arms could be prosecuted? Did they even send their dealer a lousy warning telling them to curtail the straw sales or MD Firearms might have to stop supplying them?”

Kelly gave a small derisive laugh and headed back toward the jury. “No. I’ll tell you what they did-they kept on selling guns to Peninsula Arms. And you know why?”

Kelly hit the button and showed the profit margins on an MD-9. “Here’s why-two hundred dollars per gun. Nearly a million dollars last year from Peninsula Arms alone.”

She paused, letting that number sink in. “Now, in case you think I’m just making this up-that MD Firearms isn’t really motivated just by money, they did us the favor of putting it all in writing. How fitting that in a case about distribution of firearms, Mr. McAllister over there should be so kind as to create a memo that can only be referred to as a ‘smoking gun.’”

Page by page, Kelly took the jury through the McAllister memo. The man had analyzed the profits made through four troublesome dealers, including Peninsula Arms. He had argued that shutting off these four dealers (which, Kelly pointed out, together accounted for over 50 percent of the guns traced to crimes in the northeast cities) would generate lawsuits by the dealers and serve as a tacit admission that MD Firearms had a duty to monitor its dealers.

“According to Mr. McAllister, a cost-benefit analysis suggested that MD Firearms should continue selling guns to all licensed dealers-even if they were acting illegally in the sales of those guns.”

Kelly got mad just thinking about it. She didn’t have to manufacture emotion-her anger was real. If McAllister and Davids had acted responsibly, Rachel Crawford might still be alive.

“Do you know what’s missing from Mr. McAllister’s cost-benefit analysis?” Kelly demanded. “Do you know what just happened to slip his mind, just fall through the cracks?”

She stopped, jaw clenched, lips pursed. “The cost of innocent human life-that’s what. The devastation to a young couple like Rachel and Blake Crawford. The death of a tiny baby twenty-two weeks into gestation, little Rebecca Crawford, tucked safely inside her mother’s womb.”

Kelly paused, pulling the images from the 3-D ultrasound up on the screen. “Unfortunately for MD Firearms, Mr. McAllister is not the only one who gets to do a cost-benefit analysis on whether they should have stopped selling guns to Peninsula Arms.

“You, ladies and gentlemen, get to do your own cost-benefit analysis. Was MD Firearms acting responsibly by knowingly selling to dirty dealers? Or did their failure to exercise reasonable care cost Rachel Crawford her life?”

Kelly let the question hang there for a moment as she prepared to change gears. She wanted to tell the jury about Ed Poole. She needed to make sure Jason Noble either put him on the stand or paid the price for pulling him as an expert.