Robert Tanenbaum - Malice

"So, Mr. District Attorney, did you overhear our topic of discussion on this auspicious occasion?" Hall asked.

"I did," Karp replied.

"Well, then, would you care to weigh in?" Epstein asked, shooting the others a sly glance.

The way the others suddenly grew rapt with attention gave Karp the impression that he was not so much being asked to weigh in as he was being weighed. Taking a seat, he joined the fray. "Well, prosecutors should do their talking in court. It's not advisable to engage in press conferences or encounter-type give-and-takes with the media. Just proceed in an orderly and fair fashion."

"Would you care to elucidate further on that position?" Hall asked, as if facing a witness on the stand.

The obvious challenge might have intimidated another man. But on the list of things Karp loved most in life were first his wife and kids, followed shortly thereafter by discussing the law. He shifted to address his opponent more directly and winced when the movement put a little too much pressure on the wounded muscle of his leg.

The others noticed the reaction and asked solicitously if he was all right. "We, of course, heard about the unfortunate incident," Plaut said.

"Hell of a way to try to win an election," faux Albert Einstein said. "And by the way, the name's Bill, Bill Florence. I used to be an editor on that fish-wrapper the New York Post."

"Guess she lost her head, and the name's Saul Silverstein, I was in ladies' apparel for a time," the heavyset man cracked.

The others groaned at the reference to the fact that by the time Marlene finished emptying her gun at her husband's assailant, there wasn't much left above her neck.

"Forgive my friends Mr. Florence and Mr. Silverstein for their tasteless senses of humor," Sunderland said, shooting the pair a dirty look. "They don't know any better. And by the way, my friend Mr. Silverstein is being unusually humble this morning. He wasn't just in 'ladies' apparel,' he practically invented women's slacks in the late forties."

"What? What?" Silverstein objected, as if Sunderland was reading something into his comment that he had not intended.

"My apologies, Mr. Karp, you'll find that the Sons of Liberty Breakfast Club and Girl-Watching Society is comprised of ancient cynics," Plaut noted. "The commentary can at times grow somewhat morbid or, as the good friar noted, a bit dark for some tastes."

Karp held up his hand and smiled. "No apologies necessary, gentlemen. No one understands more than those of us working at the DAO that if it wasn't for the ability to laugh at dark humor, we'd all go mad."

"The name's Geoffrey Gilbert," the effete-looking man said, laughing. "I'm an artist, which makes me 'the sensitive one.' But I'm quite sure that Mr. Karp understands satire, even if it's dark satire."

"Might I ask about the name of your group?" Karp ventured. "If my memory serves, the Sons of Liberty were a secret band of revolutionaries before and during the War of Independence."

"Very good, Mr. Karp," Sunderland said. "The name's a bit grand for the likes of us. But it does serve as a reminder as we have these little debates that we owe that right to other men who pledged their lives, their fortunes, and sacred honor to defend it."

"Hear, hear," Florence added. "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants; it is its natural manure."

"So spoke Thomas Jefferson," Sunderland pointed out. "But come, let's not be so dramatic with Butch, as he has asked me to call him, or he might not want to come out and play with us anymore."

Karp caught what seemed to be a meaningful glance between Florence and Sunderland.

"I was just staying with the revolutionary theme," Florence complained. "But fine, Butch, accept my apologies and do go on with your take on our question of the day."

Karp looked around at the faces of those who waited for him to speak. Their hair was gray, or they were bald, and the wrinkles aged their faces, but their eyes were bright with intelligence and so engaged in the debate that they seemed younger than their years in spirit. Not a fool among them, he thought.

"Well, the courts have held that part of the intent of the confrontation clause is that no citizen be deprived of his liberty interests without the right to hear the evidence against him, prepare his defense, confront any witnesses, and present witnesses and evidence of his own," Karp said. "So it's important that the DA proceed meticulously, cautiously, and prudently and avoid not only a rush to judgment but also the lamentable, egocentric, politically cool press conference that is unseemly and prejudicial to the accused."

"But how does that deprive the players of their liberty interest? They were all granted bail and free prior to trial," Hall noted.

"A liberty interest is not just whether a person has been deprived of his physical freedom," Karp replied. "The courts have also held that a Fourteenth Amendment liberty interest includes the right to pursue the career of one's choice. In this case, the young men in question were suspended from the university even though they had not been tried, much less found guilty, reminiscent of an act of academic McCarthyism that certainly could affect the pursuit of their chosen careers. Who is going to hire someone publicly branded a sex criminal? Even if later tried and acquitted, the stain will remain. They have been stigmatized by an avalanche of pretrial publicity. Prosecutors must be sensitive and professional to avoid that occurrence. It's why DAs should avoid press conferences and do their talking in court, not in front of the cameras."

"But the defense lawyers also made statements to the press that their clients' DNA did not match any samples taken from the alleged victim," Hall pointed out. "Wasn't this also trying the case in the court of public opinion?"

"Yes," Karp acknowledged. "But the defense attorneys made their statements only after the prosecutor went in front of the cameras to proclaim the players' guilt. Obviously, both sides are playing to the potential jury pool. But it seems to me that the prosecutor jumped to his conclusion despite the fact that this young woman showed up drunk at a party so that she could be paid to take her clothes off."

"So you're saying that strippers can be raped with impunity?" Florence asked.

"Of course not," Karp replied. "But look what came to light after the prosecutor made his comments to the press. It's not just the negative DNA tests either, or even that it took three days for her to come forward with these allegations-we can agree that victims of sexual assault may delay due to embarrassment or fear. But then her story kept changing. First she was raped by thirty men, then ten, then three. Then we learn that several years earlier, she accused three other men of raping her but nothing came of those allegations either. Also, there's the alleged timeline exonerating one of the accused. Perhaps all of this should have been ascertained and weighed before the lives of these young men were damaged without the benefit of a trial."

"But isn't the prosecutor supposed to take the side of the victim and be her advocate?" Gilbert asked.

Karp shook his head. "That's a common misconception created by television and by inept prosecutors. It is a defense attorney's duty to zealously protect the rights of the client and force the state to prove its case beyond a reasonable doubt before it can deprive that client of his liberty and sometimes even"-he looked at Sunderland and smiled-"his life. However, competent prosecutors engage in a two-step threshold analysis before charging anyone with a crime. First, you have to determine if the defendant is factually guilty. Once convinced that the defendant is a thousand percent factually guilty, you go to the next step, and that is: Is there legally admissible evidence to convict the defendant beyond a reasonable doubt? We may have factual guilt, but not have legally admissible evidence to convict. For example, we may have a defendant's statement that was taken in violation of a Fifth Amendment privilege, or we may have incriminating physical evidence, but there may be a Fourth Amendment infirmity that could prohibit admissibility. However, once there is factual guilt and legally admissible evidence, the prosecutor's duty is to go forward. He should be resolute and firm but compassionate and sensitive to the task at hand. It is a prosecutor's job to do this objectively, without taking sides."