The Justice Game (25 page)

    Judge Shaver still loved his wife and believed the marriage could work. But as Kelly listened to the judge share, it became clear that Lynda Shaver had divorced him emotionally years before.

    The turning point came on a cold night in January. Earlier that day, Judge Shaver, who had been on a short list for the Fourth Circuit Court of Appeals, had been told it was not yet his turn. He had done his job that day with his normal enthusiasm, never saying a word to Kelly about the disappointment. She only found out through his assistant.

    Late that evening, in his car outside Kelly’s apartment, tears welled up in the judge’s eyes. Not because he had been passed over—he still hadn’t breathed a word about his professional disappointment—but because his wife, in a fit of anger the night before, had admitted to an affair with another partner in her firm. The affair had been going on for nearly a year.

    “We’ve haven’t had a real marriage for a long time,” Lynda Shaver had told the judge. “If we want to stay together for the kids and your career, that’s one thing. But let’s at least be honest about it.”

    That night, Kelly reached over and touched his hand.

Kelly skipped her morning swim on Monday. She put on a black skirt with a gray suit jacket and understated earrings. She wore the same sports watch with a small blue Velcro strap that she wore during her swimming workouts.

    It took her three and a half hours to reach the Hilton hotel on the Virginia Beach boardwalk at 30th Street. She would have preferred taking depositions in the plush B&W conference rooms, but Melissa Davids wouldn’t come to D.C. Rather than get in a big fight and have to postpone the deposition, which was no doubt exactly what Davids wanted, Kelly had agreed to drive to Virginia Beach.

    To add insult to injury, Jason Noble had told Kelly that his office wasn’t yet furnished, so they would have to use a hotel conference room. After a heated exchange about who should pay, they agreed to split the costs.

    Kelly arrived half an hour early to stage the room. The videographer and court reporter both wanted to know where the witness would be sitting. “At that end of the table,” Kelly said, pointing toward the end with the view. She wanted Davids looking out at the ocean—maybe it would distract her. Kelly would tell Jason that the lighting for the video would work better this way.

    The witness and her lawyers didn’t bother showing up until ten minutes after the scheduled start time. They hadn’t called Kelly to let her know they would be late and gave no excuses once they finally arrived. There were terse introductions and handshakes. Jason Noble’s hand was cold and clammy.

    Melissa Davids looked smaller and older than she had when Kelly met her on the set of Fox News. She wore jeans and a sweater, and her hair was pulled back from her face. Case McAllister had on a classic gray suit, monogrammed cuffs on his shirtsleeves, his trademark bow tie, and a pair of scuffed cowboy boots. Jason Noble must have gotten the
dress casual so it looks like we’re not worried
memo from Davids. He wore jeans and a blue pin-striped shirt rolled up at the sleeves. He tried to project a casual everyman image, right down to the lack of socks.

    A beach thing, no doubt.

As Kelly Starling worked her way through the preliminary questions, Jason leaned back in his chair and sized her up. Even in her cross-examination mode, she had that fresh, all-American thing going—smooth skin, intriguing brown eyes, and perfect white teeth. Some intensity came from the angular jawline and the eyes that narrowed as she fired questions at Davids, using the clipped tone of a prosecutor. She was five or six years older than Jason, experienced enough to know what she was doing but young enough to hold the attention of the young men on the jury.

    Today, she was all business.

    Melissa Davids got off to a good start. She never took her eyes off Starling, paused before each answer, and volunteered no extraneous information. Jason began to relax just a little. Maybe she didn’t need his coaching after all.

    In law school evidence class, Jason and his classmates had studied the antitrust lawsuit against Microsoft and discussed how arrogant and evasive Bill Gates looked during his deposition. The lesson, according to Jason’s professor, was that even smart CEOs needed a prep session.

    That professor had apparently never met the stubborn and self-confident Melissa Davids.

“Let me turn your attention to the MD-9,” Kelly said. At trial, she planned to bring in a replica gun and parade it all over the courtroom. But depositions weren’t quite so conducive to grandstanding.

    “I wondered when you might get around to that,” Davids said.

    “A recent study by the
Tidewater Times
found that this gun ranks fourth among assault guns traced by the ATF to violent crimes. Are you aware of that?”

    “I don’t read the
Tidewater Times,
” Davids sneered.

    “Your company has had some trouble with the ATF, haven’t you?”

    “We’ve never been convicted of a single violation.”

    “That wasn’t my question. Your company has had some trouble with the ATF, haven’t you?”

    “Objection,” Jason said, “asked and answered.”

    “That’s the problem,” Kelly said. “It wasn’t answered.”

    Davids stared at Kelly for a few seconds. “I think it was.”

    “Okay. Then let’s walk through it. A few years before the assault weapons ban, the MD-9 was redesigned when the ATF went to court to pull your firearms manufacturing license, isn’t that right?”

    “The ATF went to court to revoke our license. We settled the case when we got tired of spending money on lawyers. So yes, we slightly redesigned the MD-9 to address their concerns. But the settlement agreement specifically denied any liability.”

    “The ATF was upset because people buying the MD-9 could easily convert it into an illegal fully automatic machine gun in a matter of minutes using only a file, isn’t that right?”

    Davids scoffed. “You can convert fertilizer into a bomb, too. That doesn’t make fertilizer manufacturers criminals.” She turned and looked at the camera. “We sold it as a semi-automatic. What people did when they got it home was their business.”

    Kelly leaned forward. The witness was getting under her skin. “How many converted MD-9s were traced to crimes?”

    “I have no idea.”

    “More than ten?”

    “Who knows?”

    “More than a hundred?”

    “Could be.”

    “More than a thousand?”

    “She said she doesn’t know,” Jason interjected, still leaning back in his chair. He didn’t have a single piece of paper on the table in front of him, as if this proceeding was too inconsequential to even take notes.

    “Maybe this will refresh your memory,” Kelly said. She slid a document to Melissa Davids and provided Jason with a copy. She asked the court reporter to mark the document as an exhibit.

    “Can you tell me what that document is?” Kelly asked.

    “A brief filed by the ATF in the case we’ve been discussing.”

    “Please look at page three, the second paragraph. How many MD-9s had been converted into fully automatic weapons and traced to crimes?”

    “Eight hundred thirty-three,” Davids said.

    “And that didn’t concern you?”

    Davids scoffed. “We redesigned the gun so this couldn’t happen. Is that so hard to understand?”

    Kelly felt her face redden, the anger rising to the surface. “Just answer the question. Did this fact concern you?”

    “Criminals sometimes modify our guns. Criminals sometimes use them to kill innocent people. Every time somebody dies, that concerns me. However, my hope is that sometime before this deposition is over, you might actually want to talk about whether it’s fair to try and hold
us
accountable for everything these criminals do.”

For three hours, Kelly Starling hammered away at the witness while Jason looked on, occasionally lodging an objection. At 1:30 he insisted they break for lunch. Forty-five minutes later, they were back at it, with Kelly focusing on MD Firearms’s manufacture of silencers.

    “Did Larry Jamison use a silencer?” Jason asked. “I must have missed that.”

    Kelly shot him a look. “You’ll have your chance to ask questions when I’m done,” she said.

    “Maybe mine will be relevant,” Jason responded, though they both knew Jason would have no questions. You ask questions of your own witness at trial, not at depositions. Why give the other side a roadmap of where you’re going?

    If nothing else, Jason’s comment made Melissa Davids smile.

    Kelly, on the other hand, did not seem amused. She ratcheted up her intensity, and the questions flew faster.

    Davids refused to use the term
silencer,
calling it a Hollywood misnomer, but admitted that MD Firearms sold the outer tubes for “sound suppressors” while other Georgia manufacturers sold the matching internal parts. That way, each company avoided the federal regulations requiring registration by purchasers of complete suppressors. The companies advertised together and sometimes exhibited at the same gun shows with the result that thousands of unregistered sound suppressors were on the street.

    The ATF took the companies to court over the suppressor issue, Davids conceded. This time the judge ruled against the ATF. Kelly pulled out a copy of a letter that one of the CEOs had written to the editor of an Atlanta paper the day after an incendiary article about the court’s ruling. The letter compared the strong-arm tactics of the ATF to the tactics of Hitler and Stalin. When Davids said she agreed with those sentiments, Kelly marked the letter as an exhibit.

    It was nearly 3 p.m. when Kelly finally started asking questions about Peninsula Arms.

    “Do you know what an illegal straw sale is?” Kelly asked.

    “Of course.”

    “Explain it to me.”

    Davids looked at Jason. “Is it my job to explain the law to her?”

    “Not really,” Jason said. He was still working hard at acting disinterested. “But maybe if you do, we can get out of here faster.”

    Davids sighed. “A straw purchase transaction is when an eligible purchaser of a firearm buys a gun on behalf of another person who is an ineligible purchaser of a firearm. Let’s say, for example, that you’ve been involuntarily committed to a mental institution. Jason here couldn’t buy a firearm and fill out the paperwork on your behalf and give that firearm to you.”

    “And if a store knowingly participates in such a sale, they’ve violated federal law, is that right?”

    “Of course.”

    “Do you monitor your dealers to make sure they don’t engage in illegal straw sales?”

    It was a loaded question. For the first time, Davids seemed to hesitate before answering. “That’s not our job.”

    “Do you train your dealers on how to avoid straw sales?”

    “That’s not our job either.”

    “If it came to your attention that one of your dealers was engaging in hundreds of illegal straw sales and that the guns were ending up in the hands of street criminals, would you cut that dealer off from your products?”

    They were on thin ice now. “That’s a hypothetical,” Jason said. “I’m instructing the witness not to answer.”

    Kelly’s brown eyes flashed. “Do I need to call the judge and get a ruling?”

    Jason motioned to the phone. “Help yourself.”

    He knew she wouldn’t do it. Judges hated refereeing deposition disputes. They would always chide both lawyers for acting like a couple of kids fighting on the playground. Plus, Jason was pretty sure he would win this objection—the question called for speculation, not facts.

    Kelly turned back to the witness. “You’re aware that the cities of New York, Washington, Baltimore, and Philadelphia have filed lawsuits against rogue gun dealers based on guns they sold that were later traced to crimes on the streets of those cities?”

    “Yeah, I’m aware. You want my opinion on those suits?”

    “That won’t be necessary.”

    “Didn’t think so.”

    “You’re also aware that undercover agents from those cities conducted a number of obvious straw purchases in several stores, including Peninsula Arms, and even captured some of those transactions on video—right?”

    Davids snorted. “In my opinion, the ATF should have prosecuted those undercover agents for illegally buying guns and the stores for illegally selling them.”

    “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.