Second Degree (Benjamin Davis Book Series 2) Read online

  “Did you have sex with all seven while employed at Nichols & Garcia PC?” Willis emphasized the PC part of the question.

  “No, some of them were when I worked in New York as a resident and fellow.”

  “How many at Nichols & Garcia?”

  “Three: my girlfriend, Robyn Eden, the two plaintiffs.”

  Davis considered whether Garcia was lying. If what he said were true, then no other lawsuits against the company or Nichols personally were out there.

  “Did you have sexual relations with other Nichols & Garcia employees in addition to Ms. Eden?”

  With his answer he was about to give Willis a new client. Davis looked at Sullivan who, through his eyes, acknowledged the importance of the answer to the last question.

  Sullivan raised his voice and objected, “We’re here on the Howard case.”

  Sullivan hesitated, looked at Davis, decided they wanted to know the answer to the question, and then withdrew his objection. Davis agreed they should let him answer. It would come out anyway. They were better off knowing the name of the other employee.

  “How do you define sex?”

  It was Bill Clinton all over again. Davis knew Willis must have thought about the possibility of defining sex. Willis actually looked at his notepad for the first time. Despite their exchanges, Davis admired Willis’s ability. He’d gotten Garcia to admit he’d had sex with Howard and Perkins.

  From the next few questions Davis realized that Willis anticipated Garcia’s playing games with semantics. He read from his notepad, “Let’s divide the definition into parts. How many Nichols & Garcia PC employees did you have intercourse with?”

  “Is that anal and vaginal, or just vaginal?”

  “Let’s stick to the vaginal, and we’ll get to anal next.”

  Garcia was playing with Willis, but Willis didn’t care because it was on video. Neither a judge nor a jury would appreciate a smart-ass. Willis planned on filing the video with the court in support of some yet undetermined motion. Assuming that human nature was what it was, Judge White would watch the video despite its more than four-hour length.

  “I had vaginal intercourse with Robyn Eden and another Nichols & Garcia employee.”

  “Who?”

  “Donna Burns.”

  Paul stood, and Garcia followed.

  “It’s three thirty-four. We’ve reached our deadline. Dr. Garcia has a plane to catch. He’s got to go back to the hotel to pick up his bag first.”

  Willis protested, “I never agreed to any deadline. You made that statement, and none of the attorneys present agreed.”

  Davis and Sammie were momentarily stunned. Davis’s mind was racing. What was the point of objecting at this point? What would the objection be? Charles Garcia had just slandered Donna Burns, but Davis couldn’t just yell out “liar!”

  The liar spoke, “I’ve got a plane to catch. We’re leaving.”

  Harrelson walked out, followed by Lester Paul and Dr. Charles Juan Batista Garcia.

  Over his shoulder, Paul looked at Donna Burns and said, “You’re welcome to use my conference room. I’m sure you’ve got a lot to talk about.”

  The door closed. The court reporter and the videographer decided to leave their equipment set up.

  Willis was right behind them. As he left, Willis, loud enough for everyone to hear, said his parting words to the videographer: “I’m sure we’ll all want copies of the tape, even Paul. Can we have them by tomorrow?”

  “No problem.”

  The door shut again. It was just Donna, Sammie, Sullivan, and Davis.

  “It’s not true! The little bastard’s lying,” Donna shouted in rage.

  Davis certainly knew that was a possibility. Garcia was many things, and a liar was one of them. Pervert was another.

  Sammie spoke up for the first time since the deposition began. “Are you willing to take a lie detector test to prove your innocence?”

  Donna shot back, “I thought you were innocent until proven guilty?”

  “Not in employment law. You’ve got no contract. Remember what happened to Dr. Garcia when he refused to take a test.”

  Confidently Donna said, “When and where?”

  Davis responded, “Tomorrow at my office. I’ll call you with the time. Don’t talk to Dr. Nichols about what happened. Either Sammie or I must be present when you speak to him. We’ll show him a small part of the video, including the end. He can form his own opinion.”

  Sullivan, as the company’s attorney, informed Donna that she should take the morning off and that they would call her at home when they got the video and the lie detector test set up.

  Donna practically ran from the room.

  Sullivan looked at the Davises. “Holy shit! I didn’t see that one coming. What do you think, Ben?”

  “No way. She’s solid, she’s honest, and she cares about Nichols. She’s been with him for more than twenty years. I know this woman. She didn’t let Garcia near her. He’s a damn liar, and he, Paul, or Harrelson thought of this. My guess is, it was Harrelson. He’s disreputable, and Paul’s not that creative.”

  Neither Sullivan nor Sammie agreed or disagreed. Davis suspected they wanted to see the results of the test. So did he.

  CHAPTER TWENTY-EIGHT

  THE POLYGRAPH

  Tuesday, April 22, 1997

  The videotape was delivered to Davis’s office at ten fifteen. Davis had been informed that because of a backlog, it could take as long as a week to get the transcript. They needed the video; the transcript could wait. The tape was far more revealing. You could hear the intonation of the witness’s voice and watch the body language.

  A black cloud was hanging over the team. Did Donna have sex with Garcia? Dr. Garcia produced no proof of their relationship, yet the pressing question was, why did Lester Paul cut off Garcia’s testimony? The day certainly ended dramatically. Everyone in the room but the Garcia team was shocked by the last answer. Willis didn’t expect it, and Donna Burns almost had a coronary.

  What if there was proof of his sexual relations with Donna? She knew there was a running video camera in the storage room, but then again she was the person responsible for collecting the tapes and reviewing them every morning. Davis delegated that assignment to her because he trusted her implicitly.

  Davis believed in and had relied on polygraphs for years. A polygraph was only as good as the person who administered the test and analyzed its results. For the last ten years, Davis had used Robert Escher, a former FBI agent, who performed them for the bureau for more than twenty years. He lived in Bowling Green, Kentucky, and agreed to drive to Nashville to administer the test.

  In the meantime, Davis sat Dr. Nichols, Morty, Sullivan, and Bella in the conference room to watch the last thirty minutes of the tape. He trusted their judgment and wanted their opinions as to Dr. Garcia’s truthfulness. Sammie also sat in; she wanted to see and hear the testimony again.

  Davis decided he’d better call Liza. Tonight was the first night of Passover, and the family and Morty would be gathering at Davis’s home for their Seder. Davis was supposed to help with the preparation of the Passover meal, which began at sunset.

  Passover was Davis’s favorite holiday; it was Thanksgiving with more than five thousand years of tradition. Each year Davis told the story of the Jews’ escape from Egypt. His was the Cecil B. DeMille version, starring Yul Brynner and Charlton Heston. For Davis it was an acceptable reason to overeat Jewish delicacies.

  Liza answered on the third ring. “Hi, honey. When will you be home?”

  “I’ve got quite an emergency. Bob Escher is coming in this morning to do a polygraph, and I’m not sure how long that will take. If the results go badly, it’s going to be a long day. I promise to leave the office as soon as I can. I’ll give you a status report at noon. I know you’re busy cleaning and cooking for tonight. I love you.”

  Liza knew not to ask any questions. Davis wouldn’t answer them. Liza didn’t argue with her husband on the phone. She
had a Passover meal to prepare. Unlike Sammie and Morty, she wasn’t part of the firm and therefore wasn’t privileged to confidential information. She was an outsider and had been his entire career.

  Davis returned to the conference room to see Nichols looking stunned. He’d absolutely trusted Donna Burns to manage his office and his money. How could this be possible?

  “What do you think, Ben?”

  “No way. Garcia’s a lying piece of shit. I’m a good judge of character, and Donna’s not his type.”

  Nichols turned to Morty. The old man looked deep in thought.

  “She certainly didn’t like Garcia. Was that because she was smarter than the rest of us or because after they had sex, he shunned her for a younger woman? I’ve known Donna a long time. She genuinely cares about you. I vote no way also.”

  Nichols apparently wanted to get a consensus before he expressed his opinion.

  Sullivan conceded that he didn’t know Donna, but based on the tape, he thought that Garcia was lying. Nichols turned to Bella.

  She didn’t hesitate. “I’m ashamed of you, Peter Nichols. Donna is my contemporary at your office. Could you see me having sex with Dr. Garcia? In fact, I’m ashamed of all of you for even considering what this pervert has said about this fine woman. As far as I’m concerned, she’s innocent until proven guilty.”

  Sammie looked down at the table and felt disgusted with herself. She’d said things yesterday to Donna that she shouldn’t have.

  When Donna walked into the conference room, she put on a brave face. Dr. Nichols jumped to his feet, ran over, and gave her the biggest bear hug he could.

  Davis interjected, “This is a bunch of bullshit. Let’s get this test done and let the Davises celebrate their holiday.”

  For some unexplained reason the mood changed on a dime. Donna started crying. Bella and Sammie started right afterward. The men held it together, but they also felt the emotion of the moment. No one felt good about questioning the integrity of this fine woman.

  Just then Robert Escher walked in the conference room, unannounced. Reception had been left unattended. Introductions were made, and Escher suggested that they use Davis’s private office. He’d performed polygraphs in there before. Only Escher, Davis, and Donna were present for the test.

  He placed Donna behind Davis’s desk and explained that Davis’s office would intimidate her and her defenses would be lowered. Escher asked her dozens of questions, some easy, while others were very direct and accusatorial. Escher mixed them up.

  “What is your favorite color?”

  “Have you ever stolen money from Nichols & Garcia, or before Dr. Garcia arrived in 1995?”

  It took forty-five minutes to complete the exam. As an experienced FBI agent, Escher had no problem asking the embarrassing questions, such as, “Did you have sex with Dr. Garcia?” Only Escher had access to the machine, so Davis had no idea how the test was progressing. It really didn’t matter because he couldn’t understand the results anyway.

  Escher didn’t keep them waiting long. He spent ten minutes analyzing the data. “In my professional opinion, with ninety-seven degrees of certainty, Donna didn’t have sex with Dr. Garcia.”

  Escher joked, “She eats a box of chocolates, alone, every Christmas and doesn’t share a piece. They’re her chocolates, not stolen, so no harm, no foul. However, if a box goes missing, she’s your best suspect.”

  Davis smiled. Escher knew how to break the tension. Davis and Sullivan were relieved the company representative didn’t have intercourse with Garcia.

  Nichols blurted out, “What can we do to this little bastard?”

  The lawyers and Sammie, all four of them, sat silently around the table. After stroking his red beard and clearing his throat, Sullivan spoke first: “You could file a slander lawsuit against Dr. Garcia, but he’s already got two civil lawsuits and the board charges pending against him. One more suit isn’t going to make a significant difference. You have the added problem that he slandered you while testifying. There’s a qualified privilege for testimony given in a civil case. Witness’s testimony is afforded extra protection.”

  Morty went next, “We need to prove that Dr. Garcia’s a liar, in Judge White’s mind. Let him watch the video, and then file a motion for contempt against Garcia for perjury under seal. Provide him with Donna’s affidavit and the results of the polygraph test. Even if White doesn’t find perjury, he’ll still figure Dr. Garcia’s a liar. This must all be filed under seal or our court filing would be a republication to the world of Garcia’s slander. You also need to write Willis and Paul and demand that they not file the video or the transcript open in the record but under seal.”

  Davis began dictating to Bella, who knew shorthand,

  To Jackson Willis, Lester Paul, and David Harrelson,

  At the end of Dr. Garcia’s deposition he slandered the representative of Nichols & Garcia, Donna Burns, by falsely asserting that they engaged in sex. Please be advised that this office intends to file under seal the video and other supporting evidence that prove Dr. Garcia’s perjury. Please be advised that if you intend to file either the video or the transcript with the court, you should do so under seal. An open filing would be republication of the slander, and this office would seek to hold you personally liable for such wrongful conduct. If you have any questions concerning this demand, please do not hesitate to contact me.

  Benjamin Davis

  The letter was faxed to all concerned. After the holiday, both Davis and Willis would file motions and the video under seal.

  Judge White put his feet up, grabbed his bag of popcorn, and watched the four-hour video.

  CHAPTER TWENTY-NINE

  A CONTINUATION OF LIES

  Monday, May 19, 1997

  The resumed deposition of Dr. Garcia began as scheduled at nine o’clock. David Harrelson wanted to continue it, but short of Garcia being hospitalized, the deposition was going forward. Judge White entered an order, which provided the following:

  I reserve judgment on the defendant Nichols & Garcia’s motion for contempt against Dr. Garcia. This motion will require a hearing to be scheduled at a later date.

  I grant the Plaintiff Howard’s motion to set guidelines for the deposition of Dr. Garcia. The deposition will begin on May 19th, 1997, at nine o’clock and shall continue as deemed necessary by Mr. Willis, Mr. Sullivan, and Mr. Davis until completed. There shall be a luncheon break at noon and, if necessary, a dinner break at six. Comfort breaks shall occur after an attorney has completed a line of questioning. If necessary, the deposition shall resume on May 22nd, the date Ms. Howard’s deposition is scheduled to begin in this case since counsels for the parties are available.

  All questions are relevant under Rule 26 of the Tennessee Rules of Civil Procedure, unless protected by the attorney-client privilege or the attorney work product doctrine. All names of patients and/or employees of Nichols & Garcia PC, who the defendant Garcia had sex with, of any kind, will be identified, but remain confidential, and the video and transcript of the deposition may be filed only with the court under seal. No one in attendance of Dr. Garcia’s deposition will discuss the substance of Dr. Garcia’s testimony with any third party, particularly the press. I will hold any person who violates this confidentiality clause in contempt, subject to fine and incarceration.

  I will be available to counsel on May 19th and 22nd to prevent any obstructive conduct by counsel or non-responsiveness by the witness.

  Signed the Honorable William White, Judge of the Circuit Court of Davidson County, Tennessee

  Harrelson resented that the court’s order was made the first exhibit for the resumed deposition.

  Willis began, “When we left off, we were talking about the employees of Nichols & Garcia with whom you had various types of sex, and you indicated that you had sex with Donna Burns, correct?”

  “Yes.”

  “When did this occur?”

  “The first month I was there, in December 1995.”

 
; “Who other than you knew about this act?”

  “She does.”

  “So it’s your word against hers?”

  “I suppose. There are no pictures or videotape.”

  “Where did this allegedly happen?”

  “The first time on the couch in Dr. Nichols’s office. The second time was in the copier room.”

  “When was the second occasion?”

  “It was in late January. I’d say one of the last days of the month.”

  Harrelson was surprised that Donna was still the company representative for Nichols & Garcia. He thought she might skip the deposition. He was dead wrong. She was there, and she was fuming. Sullivan and Davis kept looking at each other and then at Donna. Garcia stepped in it. The videotapes of the copier room were saved, and by omission they could prove Garcia a liar. Harrelson kept waiting for her to explode and lunge across the table at Garcia.

  Willis continued, “You indicated the last time we were together that you had sex with four other patients when you were a resident and fellow in New York?”

  “Correct.”

  “Who at New York Presbyterian Hospital knew you were having sex with patients?”

  “I know at least several of the other residents and Professor Gaines. He questioned me about it.”

  Harrelson already knew about the incident. Garcia almost got thrown out of the residency program over it. Harrelson was watching Davis, trying to determine whether he appreciated the importance of the last answer. He was convinced that Davis did understand based upon his body language. Dr. Gaines’s name was one of the references on Garcia’s resume. The arrogant kid never changed his resume after the reference learned of his sexual exploits. Harrelson knew that Dr. Gaines was one of two of the references that McCormick & Associates were unable to reach because he was on sabbatical.

  McCormick’s attorney, Karl Maddox, objected; Davis suspected he probably didn’t know what else to do. Dr. Garcia’s testimony just created a good argument for the claim against McCormick & Associates. If McCormick had reached Dr. Gaines, Gaines might have warned Nichols of Dr. Garcia’s tendency to have sex with patients.