Sypher trial Day 5
By: Travis K. Kircher
Witness: Dana Kolter
"The United States calls Dana Kolter."
Moments later, Dana Kolter, a stout man with gray hair and a receding hairline, made his way to the witness stand. Kolter was at one time Karen Sypher's attorney – and the lawyer who originally sent the letter to Rick Pitino in which the UofL basketball coach is accused of rape.
He began by telling the jury that he had been a general practice attorney since 1979.
Assistant U.S. District Attorney John Kuhn began by asking Kolter to describe how he first met Karen Sypher in 2005.
"I was in the parking garage where my car is parked and met her there," Kolter said. He went on to say that he harassed her for parking in his reserved parking spot.
Later he said she "seemed very upset" and he apologized for being "rude" and "self-absorbed." He said he gave her his card and said he was sorry.
Kuhn then asked Kolter to recall the other times he had met Sypher. Kolter said he saw her in Christmas of 2005.
"I know I saw her on her birthday in 2006," he said.
Kuhn asked him to explain how he could be so certain.
"Because we kissed that day for the first time," Kolter explained, adding that he felt a "connection" with her.
Both Kolter and Sypher were married at the time, though Kolter claims he didn't know Sypher was married, initially.
Kuhn then asked how their relationship developed. Kolter said they spoke on the phone various times and later "discussed our sexual attraction with each other."
At this time, Kolter testified, he wanted to start his own motorcycle business. In September 2006, he attended the "Hot Bike" convention at the convention center – he says the trade show was not a success due to rain. Kuhn asked him why the date stands out in his mind.
Kolter said, bluntly, that he and Sypher had sexual relations on that date. Kolter testified that, after this encounter, he asked Sypher if she was his girlfriend and she said yes.
Kolter also testified that, in Jan. 2007, he wrote a letter to Tim Sypher on behalf of his wife to inform him that she wanted a divorce.
"Did you see Mrs. Sypher on a regular basis?" Kuhn asked.
Kolter said he saw her, "from time to time."
Kuhn asked if he would describe his relationship with Sypher as, "more than strictly business?" Kolter agreed that it was.
At this point, Kuhn asked Kolter to recall the day of Feb. 14, 2008.
"Well, it was Valentine's Day, of course," Kolter said.
He said Karen Sypher came by his office and brought him a Valentine's present.
"I believe it was cakes," he said.
Kolter said they engaged in sexual relations in his office. He also admitted to taking photographs of this encounter. Four of these photographs were submitted for the court to view. The first three were of Karen Sypher sitting in a desk chair – dressed normally and smiling – and appeared to show no sexual activity. The other photograph was difficult to make out, but allegedly portrayed Sypher and Kolter engaging in sexual relations, though only the back of Sypher's head could clearly be seen.
Kolter said Sypher was aware that the pictures were being taken.
Kuhn then asked Kolter to recall March 21, 2009.
"Do you remember that day?" he asked.
"Unfortunately," Kolter said. "It's seared into my brain."
He said Sypher came to visit him.
"She called me first to ascertain where I was, and she was very upset," Kolter testified. "Very upset. Extremely distraught."
Kolter said she came to his house and he "tried to calm her down."
He said Sypher told him she had been raped by Rick Pitino.
He testified that he told her to go to the police – that she should immediately call the Commonwealth Attorney's Office.
"I'm not the cops," he told the jury.
Instead, he said, Sypher wanted him to call Pitino.
"She wanted me to contact him," Kolter said. "She was afraid of the repercussions of it becoming public."
Kolter said Sypher was acting erratically and he wanted her to see a psychiatrist or rape counselor.
Kuhn asked Kolter why he didn't take Sypher to the authorities himself – why he originally gave Sypher the names of three other attorneys who could handle this case for her.
"It was a self-preservation thing," he said. "I was afraid of what was going to happen, to be honest with you."
He said he was worried of having to stand before a court and admit his sexual relations with Sypher – just as he was today. He said another attorney would be "more appropriate than somebody who was her lover."
Kolter said that, shortly after this, the two of them had sexual relations again.
He testified that he isn't sure if he agreed to represent Sypher that evening or not.
"I was afraid of being crushed like a grape," he told the jury.
Moments later, he began to sob.
"If what she was telling me was true, they might have killed her," he wept. "I had to help her."
The sobbing abruptly ended and he continued, adding that, "she said she only trusted me."
Kolter told the jury that he agreed to represent Sypher under a contract that awarded him 10 percent of any settlement that was reached – an amount that was far less than the 33-1/2 percent he typically awarded.
"10 percent is extremely low, isn't it?" Kuhn asked. Kolter agreed.
Kolter said Sypher later told him about the threatening phone calls Pitino received – phone calls he said she claimed to know nothing about.
Kuhn asked Kolter if he was concerned that his client might be involved.
"Absolutely!" he said, adding that he told her that, "I don't want to be involved in any way, shape or form if she was involved in those calls."
He said he also believes he told her it would be considered extortion if she was responsible in any way for the calls.
He said he wrote the letter accusing Pitino of the rapes "because that's what lawyers do." The letter threatened a lawsuit if a meeting for mediation wasn't set up within two days of its receipt.
Kolter testified that he told Sypher that, "this is going to affect more than you and Rick Pitino," adding that it would impact the "whole community."
He also said he had several concerns about Sypher's story. Among them: her account that Rick Pitino asked her to drive him home on the night he allegedly raped her at Porcini – and she agreed.
"I thought about post-traumatic stress and all of the weird things I'd seen in family court," he told the jury, trying to explain how he could believe Sypher's claim that she agreed to take him home.
To explain Karen Sypher's decision to marry Tim Sypher – a man she claimed threatened her and her children if she didn't get an abortion – he mentioned Stockholm Syndrome.
Some time later, he also learned that the first alleged rape took place on the night of July 31, 2003.
"She said it was snowing," Kolter explained to the jury.
Kolter testified that Sypher seemed upset over the abortion that took place in 2003.
"She told me she had nightmares of seeing the heartbeat," he said.
Did he believe her?
"I believed her," Kolter told the jury.
Kolter testified that he was so nervous about the letter to Rick Pitino, that he had Sypher sign it under oath, adding that truth "is the only weapon I had in my arsenal."
He said this was a highly unusual move for him then, but since then he makes it a standard practice.
"Seriously," he said to laughter, "anything they tell me, I want it under oath!"
Ironically, he said, his wife notarized the letter.
In April 2008, he said the FBI showed up at his house. He said he waived attorney-client privilege and gave them all of his files.
"I felt I had to," he said.
Did he believe her when she wrote the letter?
"I believed she was doing the best to tell the truth," Kolter said, adding that he believed he had "probable cause."
Court dismissed at about 4:30 for the weekend.
Witness: Tim Sypher Part III
NOTE: As with previous blog entries, we will refer to Tim Sypher and Karen Sypher as "Tim" and "Karen" to avoid confusion.
As Jim Earhart, attorney for Karen Sypher, continued his cross examination, he turned toward the so-called "demand note" signed by Karen Sypher and delivered to Rick Pitino while in a hotel in West Virginia on March 6, 2009.
Earhart directed Tim Sypher to his previous testimony that the letter originated shortly after he met with Karen Sypher when she had taken her mother to the doctor's office.
"Why are you with Karen at a doctor's office?" Earhart asked.
Tim replied that he wanted to "figure out" who made the threatening phone calls to Rick Pitino, adding that, "that was the most important thing" and this might be the "last time" he would get to talk to her before leaving for West Virginia.
"This is the new little problem?" Earhart offered. Tim agreed.
Tim testified that Karen maintained she had no idea who made the calls.
"Her mother said that and Jacob said that and everybody said that," he said.
Tim went on to say that Karen began telling him things that Rick Pitino should give her. Tim said he couldn't remember it all and she should make a list of what she wanted.
"Who cares what she wants?" Earhart demanded. "How is that going to help you?"
"In fact, you told her to write it down didn't you?" Earhart said later, also accusing Tim of specifically telling Karen to write the statement at the end of the note that said she would protect Pitino's name for life.
"You can stop right there, sir," Tim said. "I didn't tell her to write any of that stuff."
"Karen had no intention to write anything to Rick Pitino," Earhart said a moment later.
Tim later testified that the moment Karen wrote that note, he knew their marriage was over. Earhart said the marriage was probably over before she wrote the note.
"In fact, she didn't even give you the list, did she?" Earhart demanded. "You sent Jacob to go get it."
"I asked for the note, that's all," Tim replied. "She wrote it down. I had nothing to do with it."
"You had everything to do with it, Mr. Sypher," Earhart said.
Tim said that Karen filed for divorce on March 22, 2009.
Witness: Tim Sypher
NOTE: In keeping with yesterday's blog entry, I will refer to Tim Sypher as "Tim" and Karen Sypher as "Karen" to avoid confusion.
Tim Sypher's testimony continued this morning, beginning shortly before 11:30. Court was scheduled to begin at 10 a.m. but closed door discussions delayed the start of testimony. My understanding is that the attorneys were discussing the possible inclusion of evidence – specifically taped phone calls between Tim Sypher and Karen Sypher's son, Jacob Wise – but I can't be certain.
The fact that we didn't hear those calls this morning leads me to believe that the prosecution lost that battle.
Assistant U.S. District Prosecutor John Kuhn opened Tim Sypher's second day of testimony by producing quarterly and yearly statements from the college fund that was set up for Tim and Karen's daughter.
Tim's testimony would seem to indicate that the fund was Coach Rick Pitino's idea, not his own. He testified that Pitino "made a reference" to setting up the fund.
"I said, ‘Yeah, that'd be great,'" Tim testified.
When Kuhn asked whose name the account was put in, Tim answered that his sister was named the administrator of the account. He later said he didn't tell Karen Sypher – his wife – about the account at the time.
"I just thought it would be the right thing to do," he said. "And to be honest, I didn't trust my ex-wife."
Statements showed that on March 30, 2007, there was no money in the account. By June 29, 2007, the account held $10,000 – funds Kuhn said were given to him by Rick Pitino to establish the account.
He said another $10,000 was added the following year, and at the end of Dec. 31, 2008, over $16,000 was in the account. (The fund lost money due to the falling stock market during that period, he said.)
Kuhn later produced stationery with notes on them. The second item was a Christmas card from Tim's mom and dad – a card bearing an image of Nantucket. There was a note written near the bottom of the card which said, "Daisy, this is Nantucket," and the writer indicates that he "loves it" but "not as much as I love you."
When asked about these references, Tim testified that "Daisy" and "Hoke" were their nicknames for each other. He said the names came from the movie, "Driving Miss Daisy" and that, "we just made those up after I had drove her to Cincinnati."
Moments later, Kuhn gave up the floor and Karen Sypher's attorney, Jim Earhart, rose for his cross examination of Tim.
"In July 2003, where did you live?" Earhart asked.
Tim said he resided on Forest Lake Drive in Prospect, where he had lived since moving to Louisville from Boston in 2001.
"There came a point in time when you moved from that particular residence?" Earhart asked.
He said yes – that he moved there to live with Karen in 2004.
Earhart then delved into Tim's dating life prior to meeting Karen. At the time, Tim said he was 43-years-old and single, and had been dating various women associated with Rick Pitino.
The topic of testimony then turned toward Karen's pregnancy in 2003.
"You were called in to assist with this little problem?" Earhart asked.
"Yes sir," Tim said, adding later that Pitino asked him to set up a meeting.
"So Coach Pitino put you in contact with her to set up this meeting?" Earhart asked.
Tim replied that he did.
Earhart then had Tim recall the events of that meeting: that he pulled up in his car and invited Karen to get inside, but she chose instead to follow him to his condo, where the meeting would take place. Karen, Tim and Pitino walked inside the condo and Pitino asked Tim to go upstairs.
Earhart then recalled Tim's earlier testimony that he was, "very nervous" during this meeting and asked him why.
"I just wanted this day over with, that's all," Tim replied.
Some time after that meeting, Earhart recalled, Tim started calling abortion clinics.
"You didn't call abortion clinics in Louisville," Earhart said. "That was at the direction of Coach Pitino?"
"Yes," Tim said. "I believe he said to get an abortion clinic out of town."
Earhart drew Tim's attention to his testimony yesterday that, on the night before he drove Karen to Cincinnati to get an abortion, the two of them shared a phone call that lasted 21 minutes. Tim said it was rare for him to talk on the phone this long.
"Did you have a point to make that day with that phone call?" Earhart asked.
Tim replied that it was probably about setting up the trip and making sure everything was okay.
Tim was then asked to recall the trip to Cincinnati. Earhart asked if Karen rode in the back of the car.
"No, she rode in the front," Tim said.
Earhart noted Tim's testimony that, when they got to Cincinnati, they parked near the side of the river and had a "heart to heart," with Tim testifying that he told her to go to her "happy place."
"What does that mean?" Earhart asked.
Tim testified that it meant to close her eyes and think about things that make her happy.
There then came a brief exchange between Earhart and Tim. Earhart asked Tim if he only went to the abortion clinic in Cincinnati once (on Aug. 29). He said he believed so – but he might have visited the clinic a couple of days earlier, on Aug. 27. He said he couldn't remember.
"I just know that the 29th will always stay in my head," he said.
A frustrated Earhart questioned how Tim could possibly be unsure whether he visited the clinic once or twice, even producing Tim's calendar to make certain.
"In fact, the abortion had already been set up by you, hadn't it?" Earhart asked, figuring that Tim would have wanted to facilitate one trip.
Later, Earhart told Tim, "you've just taken care of a little problem....This is a situation that is potentially devastating to Rick Pitino."
"I believe so, yes," Tim said, adding a moment later that, "He asked me if I would take care of something for him, and I said yes."
Earhart added that Karen Sypher was now probably someone you would not want to have around Rick Pitino – for the sake of his reputation. (Likely suggesting Karen Sypher's claim that Tim Sypher was paid to marry her.)
"We hit it off," he said. "Me and Karen hit it off."
"We clicked," he added later.
"I was single and – I guess – I was there at this time," he said. "To this day, I wonder: if it wasn't me, who would it have been?"
Earhart then mentioned the nicknames, pointing out that Karen would always be reminded of their drive to an abortion clinic every time she heard the name "Daisy" and "Hoke."
"A lot of times, yes," Tim Sypher said.
Earhart said Tim would "resurrect" those memories at every mention of the names.
He also pointed out that some of the quarterly financial statement from the college fund were lost, and that anything could have happened to the account during this period.
"Like I said, they might have gotten lost in the shuffle," Tim said.
The court broke for lunch moments later.
U.S. District Court
1st Floor - Media Room
The judge is giving us a break today. We don't have to be in court until 10 a.m. That means extra time for coffee and doughnuts this morning. Woo-hoo!
Some random thoughts to start out the day:
The courtroom is not nearly as crowded now that the so-called "star witness" -- Rick Pitino -- has completed his testimony. The gaggle of onlookers has mysteriously vanished. Oh, there are still courtroom observers -- again, mostly older folks with lots of time on their hands -- but there are several open seats. Big names draw big crowds, I suppose.
Blogging yesterday was an interesting -- and somewhat difficult -- affair.
It was difficult because portions of Pitino's testimony concerned some of the seamy details between what happened between the coach and Ms. Sypher. It's painful to see a sports icon like Pitino -- any public official for that matter -- describe these events with such embarrassing specificity.
The courtroom is a great equalizer. No private detail seems to be off limits. It seems that every witness has to fork over embarrassing tidbits about their own lives. There are tape recordings. Abortion records. Accounts of marital problems. Bar receipts. Any private detail or unflattering moment is dragged into the spotlight for all the world to see.
It's all legal of course. It's all a matter of public record.
But at the same time, it makes a journalist walk out feeling dirty. After Pitino's testimony, I was faced with a dilemma: How much do we post and how much do we hold back? On the one hand, you don't want to post seamy details for the sake of saying, "Guess what happened in court today? We heard Pitino say THIS! We heard Sypher's attorneys say THAT!"
On the other hand, you don't want one of the legal teams to accuse you of covering up or whitewashing what the other side said. And some of the "seamy details" really are pertinent to what one side or the other is claiming.
So I thought about it -- and I didn't post everything. While the gist of what was said is there, I summarized (in somewhat less descriptive language than what was used on the stand) some of what was said yesterday.
I'm hoping that what I posted stayed true to the facts, while not reading like a tabloid story.
And I'm trying to do my job professionally, which is this: to create a detailed, public record of what happened (and maybe learn a little about how the legal system works) -- not sit and "enjoy" watching the players in this case describe the sad events that brought them here, like a curious onlooker gawking at a bad train wreck. These are real people, and they deserve respect.
Anyway, that's what's weighing on my mind this morning.
It's 9:54 -- I've got six minutes before court begins. Up again today: Tim Sypher, Karen Sypher's ex-husband. (The last witness to testify yesterday.) Fox 41 photog Bill Tingley told me a few moments ago that he saw Tim and Karen Sypher both enter the courthouse.