The Runaway Jury Read online

Chapter Ten

  After moving along with impressive punctuality, the trial hit a snag on Wednesday morning. The defense filed a motion to prohibit the testimony of Dr. Hilo Kilvan, an alleged expert from Montreal in the field of statistical summaries of lung cancer, and a small battle erupted over the motion. Wendall Rohr and his team were particularly enraged at the defense tactic; the defense so far had tried to bar the testimony of every plaintiff's expert. Indeed, the defense had proved quite effective at delaying and attempting to bar everything for four years. Rohr insisted that Cable and his client were once again stalling, and he made an angry plea to Judge Harkin for the imposition of sanctions against the defense. The war over sanctions, with each side demanding monetary penalties from the other and the Judge so far denying same, had been raging almost since the initial suit was filed. As with most large civil cases, the subplot of sanctions often consumed as much time as the real issues.

  Rohr ranted and stomped in front of the empty jury box as he explained that this latest motion by the defense was the seventy-first-"count 'em, seventy-one!"-to be filed by the tobacco company seeking to exclude evidence. "We've had motions to exclude evidence of other diseases caused by smoking, motions to prevent evidence of warnings, motions to prevent evidence of advertising, motions to exclude evidence of epidemiological studies and statistical theories, motions to preclude reference to patents not used by the defendant, motions to exclude evidence of subsequent or remedial measures taken by the tobacco company, motions to preclude our evidence of the testing of cigarettes, motions to strike portions of the autopsy report, motions to exclude addiction evidence, motions-"

  "I've seen these motions, Mr. Rohr," His Honor interrupted when it appeared as if Rohr might name them all.

  Rohr hardly missed a beat. "And, Your Honor, in addition to the seventy-one-count 'em, seventy-one!-motions to exclude evidence, they've filed exactly eighteen motions for continuances. "

  "I'm very much aware of this, Mr. Rohr. Please move along. "

  Rohr walked to his cluttered table and was handed a thick brief by an associate. "And, of course, each defense filing is accompanied by one of these damned things," he said loudly as he dropped the brief onto the table. "We don't have time to read these, as you know, because we're too busy preparing for trial. They, on the other hand, have a thousand lawyers billing by the hour and working even as we speak on another harebrained motion, which will, no doubt, weigh six pounds and doubtless take up more of our time. "

  "Can we get to the merits, Mr. Rohr?"

  Rohr didn't hear him. "Since we don't have time to read these, Your Honor, we simply weigh them, and so our rather brief answer goes something like this: 'Please allow this letter memorandum to serve as our response to the defendant's four-and-a-half-pound, typically overdone brief in support of its latest frivolous motion. '"

  With the jury out of the courtroom, smiles and manners and pleasant behavior were forgotten by everyone. The strain was evident on the faces of all the players. Even the clerks and the court reporter looked edgy.

  Rohr's legendary temper was boiling, but he had long since learned to use it to his advantage. His occasional friend Cable kept his distance without holding his tongue. The spectators were treated to a loosely controlled brawl.

  At nine-thirty, His Honor sent word to Lou Dell to inform the jurors that he was finishing up a motion, and the trial would start in a few moments, hopefully by ten. Since this was the first delay in which the jurors were told to wait after being set to go, they took it well. The little groups reconvened themselves, and the idle chitchat of folks waiting against their wishes continued. The divisions were along the lines of sex, not race. The men tended to group together at one end of the room, the women at the other. The smokers came and went. Only Herman Grimes kept the same position, at the head of the table, where he played hunt-and-peck with a laptop braille computer. He had let it be known that he was up until all hours of the morning plowing through the narrative descriptions of Bronsky's diagrams.

  The other laptop was plugged into a socket in a corner where Lonnie Shaver had established a makeshift office with three folding chairs. He analyzed printouts of grocery stock, studied inventories, checked a hundred other details, and was generally content to be ignored. He was not unfriendly, just preoccupied.

  Frank Herrera sat near the braille computer, poring over the closing quotations in The Wall Street Journal, and occasionally chatting with Jerry Fernandez, who sat across the table grappling with the latest Vegas line on Saturday's college games. The only male who enjoyed talking to the women was Nicholas Easter, and on this day he was quietly discussing the case with Loreen Duke, a large jovial black lady who worked as a secretary at Keesler Air Force Base. As juror number one, she sat next to Nicholas, and the two had developed a habit of whispering during the trial, at the expense of almost everybody. Loreen was thirty-five with no husband and two kids, and a nice federal job which she missed not in the least. She had confessed to Nicholas that she could be absent from the office for a year and no one would care. He told her wild stories of bad deeds by the tobacco companies in trials past, and he "confessed to her that he had studied tobacco litigation at great length during his two years of law school. Said he dropped out due to financial reasons. Their low voices were carefully gauged to land just outside the ear-range of Herman Grimes, who at the moment was slapping his laptop.

  Time passed and at ten Nicholas went to the door and jolted Lou Dell from her paperback. She had no idea when the Judge might send for them, and there was simply nothing she could do.

  Nicholas took a seat at the table and began discussing strategy with Herman. It was not fair to keep them locked up during delays such as this, and Nicholas was of the opinion that they should be allowed to leave the building, with escorts, and engage in morning walks, as opposed to those of the noontime variety. It was agreed that Nicholas should put this request in writing, as usual, and present it to Judge Harkin during the noon recess.

  AT TEN-THIRTY, they finally walked into the courtroom, the air still heavy with the heat of battle, and the first person Nicholas saw was the man who'd broken into his apartment. He was out there on the third row, plaintiff's side, in a shirt and tie with a newspaper spread before him and resting on the back of the pew in front. He was alone, and he barely looked at the jurors as they took their seats. Nicholas didn't stare; two long glances and the identification was complete.

  For all of his guile and cunning, Fitch could do some stupid things. And sending this goon into the courtroom was a risky move with little potential benefit. What was he supposed to see or hear that would not be seen or heard by one of the dozen lawyers, or half-dozen jury consultants, or handful of other flunkies Fitch kept in the courtroom? Though he was surprised to see the man, Nicholas had already thought about what to do. He had several plans, depending upon where the man surfaced. The courtroom was a surprise, but it took only a minute to sort through things. It was imperative for Judge Harkin to know that one of the thugs he'd been so overly concerned about was now sitting in the courtroom pretending to be just another casual observer. Harkin needed to see the face, because later he would see it on video.

  The first witness was Dr. Bronsky, now in his third day but his first on cross-examination by the defense. Sir Durr started slowly, politely, as if in awe of this great expert, and asked a few questions that most of the jurors could have answered. Things changed rapidly. Whereas Cable had been deferential to Dr. Milton Fricke, he was ready to battle Bronsky.

  He started with the over four thousand compounds identified in tobacco smoke, picked one seemingly at random, and asked what effect benzol(a)pyrene would have on the lungs. Bronsky said he didn't know, and tried to explain that the damage inflicted by a single compound was impossible to measure. What about the bronchial tubes and the membranes and the cilia? What did benzol(a)pyrene do to them? Bronsky again tried to explain that research could not determine the effect of a single compound
in tobacco smoke.

  Cable hammered away. He picked another compound and forced Bronsky to admit that he couldn't tell the jury what it would do to lungs or bronchial tubes or membranes. Not specifically, anyway.

  Rohr objected, but His Honor overruled on the grounds that it was a cross-examination. Virtually anything relevant or even semirelevant could be thrown at the witness.

  Doyle stayed in place, out there on the third row, looking bored and waiting for a chance to leave. His assigned duty was to look for the girl, something he'd been doing for four days now. He'd loitered in the hallway below for hours. He'd spent one full afternoon sitting on a Dr Pepper crate near the vending machines, chatting with a janitor while watching the front door. He'd consumed gallons of coffee in the small cafes and delis nearby. He and Pang and two others had been hard at work, wasting their time but satisfying their boss.

  After four days of sitting in one place for six hours a day, Nicholas had a sense of Fitch's routine. His people, whether the jury consultants or run-of-the-mill operatives, moved around. They used the entire courtroom. They sat in groups and they sat alone. They came and went silently when there were short breaks in the action. They rarely spoke to one another. They would pay strict attention to the witnesses and the jurors, and the next minute they would work crosswords and stare at the windows.

  He knew the man would be gone before long.

  He scribbled a note, folded it, and convinced Loreen Duke to hold it without reading it. He then convinced her to lean forward, during a pause in the cross-examination when Cable was consulting his notes, and hand it to Willis the deputy, who was standing against the wall guarding the flag. Willis, suddenly awakened, paused a second to collect himself, then realized he was supposed to hand the note to the Judge.

  Doyle saw Loreen hand the note over, but he didn't see it originate from Nicholas.

  Judge Harkin gathered the note while barely acknowledging it, and slid it across the bench close to his robe as Cable fired another question. Harkin slowly unfolded it. It was from Nicholas Easter, number two, and it said:

  Judge:

  That man out there, left side, third row from front, on the aisle, white shirt, blue and green tie, was following me yesterday. It was the second time I've seen him. Can we find out who he is?

  Nicholas Easter

  His Honor looked at Durr Cable before he looked at the spectators. The man was sitting alone, staring back at the bench as if he knew someone was watching.

  This was a new challenge for Frederick Harkin. In fact, at the moment he couldn't recall an incident even remotely similar. His options were limited, and the more he pondered the situation the fewer choices he had. He, too, knew both sides had plenty of consultants and associates and operatives lurking either in the courtroom or very nearby. He watched his courtroom closely, and he noticed a lot of quiet movement by people who had experience in such trials and didn't want to be noticed. He knew the man was likely to disappear in an instant.

  If Harkin suddenly called a short recess, the man would probably vanish.

  This was a terribly exciting moment for the Judge. After all the tales and rumors and lore from other trials, and after all the seemingly empty admonitions to the jury, there in the courtroom at this very moment was one of the mystery agents, a sleuth hired by one side or the other to monitor his jurors.

  Courtroom deputies, as a general rule, are uniformed and armed and normally quite harmless. The younger men are kept on the streets to battle the elements, and trial duty tends to attract the seniors bearing down hard on retirement. Judge Harkin glanced about and his options shrank again.

  There was Willis, leaning against the wall near the flag, and it appeared he had already lapsed into his usual state of semi-slumber with his mouth open partially at the right corner and saliva dripping. Down the aisle, directly in front of Harkin but at least a hundred feet away, Jip and Rasco guarded the main door. Jip, at the moment, was sitting on the back bench, near the door, with his reading glasses perched on the end of his beefy nose, scanning the local paper. He'd had hip surgery two months earlier, found it difficult to stand for long periods, and had received permission to sit during the proceedings. Rasco was in his late fifties, the youngest of the crew, and was not known for his quick movements. A younger deputy was usually assigned to the main door, but at the moment he was on the atrium side manning the metal detector.

  During voir dire, Harkin had requested uniforms everywhere, but after a week of testimony the initial excitement had disappeared. It was now just another tedious civil trial, though one with enormous stakes.

  Harkin took the measure of the available troops, and decided against approaching the target. He quickly scribbled a note, held it for a moment while ignoring the man, then slid it to Gloria Lane, the Circuit Clerk, who was at her small desk below the bench, opposite the witness stand. The note indicated the man, instructed Gloria to get a good look at him without being obvious, then to ease away through a side door and go fetch the Sheriff. There were other instructions to the Sheriff, but, unfortunately, they were never needed.

  After more than an hour of watching the merciless cross-examination of Dr. Bronsky, Doyle was ready to move. The girl was nowhere in sight; not that he'd expected to find her. He was just following orders. Plus, he didn't like the note-passing around the bench. He quietly gathered his newspaper, and slipped unchallenged from the courtroom. Harkin watched in disbelief. He even grabbed his mounted microphone with his right hand as if he might yell at the man to stop, sit down, and answer some questions. But he kept his cool. Chances were the man would return.

  Nicholas looked at His Honor and both men were frustrated. Cable paused between questions, and the Judge suddenly rapped his gavel. "Ten-minute recess. I think the jurors need a short break. "

  WILLIS RELAYED THE MESSAGE to Lou Dell, who stuck her head through a crack in the door and said, "Mr. Easter, could I see you for a minute?"

  Nicholas followed Willis through a maze of narrow hallways until they came to the side door of Harkin's chambers. The Judge was alone, robe off, coffee in hand. He excused Willis and locked the door. "Please sit down, Mr. Easter," he said, waving at a chair across from his cluttered desk. The room was not his permanent office, in fact he shared it with two other judges who used the courtroom. "Coffee?"

  "No thanks. "

  Harkin dropped into his chair and leaned forward on his elbows. "Now, tell me, where did you see this man?"

  Nicholas would save the video for a more crucial moment. He'd already carefully planned the next tale. "Yesterday, after we adjourned, I was walking back to my apartment when I stopped to get an ice cream at Mike's, around the corner. I walked in the place, then looked out, back on to the sidewalk, and I saw this guy peeking in. He didn't see me, but I realized I'd seen him somewhere before. I got the ice cream, and began walking home. I thought the guy was following me, so I doubled back and took odd turns, and sure enough, I caught him tracking me. "

  "And you've seen him before?"

  "Yes sir. I work at a computer store in the mall, and one night this guy, same guy I'm sure, kept walking by the door and looking in. Later, I took a break and he showed up at the other end of the mall where I was drinking a Coke. "

  The Judge relaxed a bit and adjusted his hair. "Be honest with me, Mr. Easter, have any of your colleagues mentioned anything like this?"

  "No sir. "

  "Will you tell me if they do?"

  "Certainly. "

  "There's nothing wrong with this little chat we're having, and if something happens in there, I need to know it. "

  "How do I contact you?"

  "Just send a note through Lou Dell. Just say we need to talk without giving specifics because God knows she'll read it. "

  "Okay. "

  "Is it a deal?"

  "Sure. "

  Harkin took a deep breath and began fishing through an open briefcase. He found a newspaper and sli
d it across the desk. "Have you seen this? It's today's Wall Street Journal. "

  "No. I don't read it. "

  "Good. There's a big story about this trial and the potential impact a plaintiff's verdict might have on the tobacco industry. "

  Nicholas couldn't allow the opportunity to pass. "There's only one person who reads the Journal. "

  "Who's that?"

  "Frank Herrera. He reads it every morning, cover to cover. "

  "This morning?"

  "Yes. While we were waiting, he read every word twice. "

  "Did he comment on anything?"

  "Not to my knowledge. "

  "Damn. "

  "Doesn't matter, though," Nicholas said, looking at a wall.

  "Why not?"

  "His mind's made up. "

  Harkin leaned forward again and squinted hard. "What do you mean?"

  "He should never have been picked for jury service, in my opinion. I don't know how he answered the written questions, but he didn't tell the truth or else he wouldn't be here. And I distinctly remember questions during voir dire that he should've responded to. "

  "I'm listening. "

  "Okay, Your Honor, but don't get mad. I had a conversation with him early yesterday morning. We were the only ones in the jury room, and, I swear, we weren't discussing this case in particular. But somehow we got around to cigarettes, and Frank quit smoking years ago and he has no sympathy for anybody who can't quit. He's retired military, you know, rather stiff and hard about-"

  "I'm an ex-Marine. "

  "Sorry. Shall I shut up?"

  "No. Keep going. "

  "Okay, but I'm nervous about this and I'll be happy to stop at any time. "

  "I'll tell you when to stop. "

  "Sure, well anyway, Frank's of the opinion that anyone who smokes three packs a day for almost thirty years deserves what he gets. No sympathy whatsoever. I argued with him a little, just for the sake of it, and he accused me of wanting to give the plaintiff a huge punitive award. "

  His Honor took it hard, sinking in his chair a bit, closing then rubbing his eyes as his shoulders sagged. "This is just great," he mumbled.

  "Sorry, Judge. "

  "No, no, I asked for it. " He sat straight again, made another adjustment to his hair with his fingers, forced a smile, said, "Look, Mr. Easter. I'm not asking you to become a snitch. But I'm concerned about this jury because of pressures from the outside. This type of litigation has a sordid history. If you see or hear anything even remotely related to unauthorized contact, please let me know. We'll deal with it then. "

  "Sure, Judge. "

  THE STORY, on the front page of the Journal, had been written by Agner Layson, a senior reporter who'd sat through most of jury selection and all of the testimony. Layson had practiced law for ten years and had been in many courtrooms. His story, the first of a series, gave the basics of the issues and the specifics on the players. There was no opinion of how the trial was progressing, no guess as to who was winning or losing, just a fair summary of the rather convincing medical proof offered so far by the plaintiff.

  In response to the story, Pynex's stock dipped a dollar at the opening bell, but by noon had found itself sufficiently corrected and adjusted and was deemed to be weathering the brief storm.

  The story prompted a flood of phone calls from brokerage houses in New York to their analysts on the ground in Biloxi. Minutes of meaningless gossip accumulated into hours of hopeless speculation as the harried souls in New York quizzed and inquired and pondered about the only question that mattered: "What's the jury gonna do?"

  The young men and women assigned to monitor the trial and predict what the jury might do had no collective clue.