A Civil Action (55 page)

A few moments into his speech, Schlichtmann heard a small commotion at the Beatrice counsel table. Out of the corner of his eye, he saw Jacobs lean over and whisper urgently to Facher. Schlichtmann was telling the jurors that the “corporate community” could take pride in its achievements, but it “cannot be proud of W. R. Grace and Beatrice Foods, of their failure to admit to government agencies, to the families, and to you, the true role they played in the pollution of Wells G and H.”

As Schlichtmann spoke these words, Facher stood and interrupted him in midsentence. “I object, Your Honor. I don’t think that is part of this case.”

Schlichtmann wheeled around and looked in amazement at Facher, who stared balefully back. Objections during opening and closing statements are not prohibited, but they are rare, largely for reasons of common courtesy.

Judge Skinner looked a little unsettled by Facher’s objection, but he sustained it anyway. To Schlichtmann the judge said, “I think you really are required to relate your argument to the allegations in evidence.”

“Yes, Your Honor,” said Schlichtmann. “But I believe there is evidence on that.”

The judge nodded.

Schlichtmann began again. “The corporate community cannot be proud of Beatrice Foods’ failure—”

“Objection!” said Facher rising to his feet again.

“Overruled,” said the judge quickly.

But Facher was not to be deterred. He waited only a few moments before objecting again, this time when Schlichtmann used the word “poisons” to describe the contamination on the Beatrice land.

“Overruled,” said the judge. “As a characterization by an advocate, it is not improper. I will let it stand.”

Facher’s objections had thrown Schlichtmann further off-stride. He was having trouble remembering his speech. It was long and detailed, and for a moment he had the terrible, nauseating fear that he had lost the jury’s attention. He tried to shut that thought out of his mind and concentrate on what he wanted to say next. He felt an overwhelming fatigue. He paused for a long moment to gather himself, to order his thoughts, and all the many things he wanted to say came to him in a jumbled, disorderly rush.

He began speaking about Grace, and Keating’s allegation that the wells had been contaminated by industries in north Woburn. After a few moments, he felt on firmer ground and no longer quite so tired. He was coming to a phrase that he had looked forward to delivering, about how Grace and Beatrice were quick to blame other companies but unwilling to take responsibility for their own acts. “W. R. Grace and Beatrice Foods do not have the right to point outside this courtroom,” he said with fervor, his own finger jabbing the air, “not until they point across these two tables at each other.”

Facher jumped to his feet. “I object! That is not proper argument,” he said angrily.

The judge said to Facher, in obvious disapproval, “I see no grounds for objecting at the present time. It is argument.”

Schlichtmann went on. To his left, at the Beatrice counsel table, he could hear Facher and Jacobs whispering. He could hear Jacobs, despite the judge’s warning, urging Facher to object. And when Facher did so, Schlichtmann quickly turned on him in fury. “I object!” he shouted back at Facher, although he was speaking to the judge. “He’s interfering with my argument.”

“Go ahead, Mr. Schlichtmann,” said the judge calmly.

Nesson sat with his head bowed, writing quickly in his notebook.
Jan keeps using the word “must.” When he gets to the blowups of the questions, he tells them how to find but does not give them detailed arguments in support
.

Standing in the well of the courtroom before the jurors, Schlichtmann could hear himself talking, but he felt dislocated, as if he were a spectator watching someone else perform. He saw himself standing beside an easel that held the large poster with the questions for Beatrice. He was writing in the dates, based on Pinder’s calculations, that he wanted the jurors to give for Beatrice.

The judge gently interrupted him. “I think you may be reading the Grace figures, Mr. Schlichtmann.”

Schlichtmann looked up, confused. He glanced down at the papers in his hand, and then at the large posterboard. He seemed stricken by a moment of panic. “I’m sorry, excuse me. See how difficult it is?” he said to the jurors with a desperate laugh. And then, speaking to himself, he said in a low voice, “All right now, I can’t make a mistake.” But the stenographer heard him and duly recorded his statement, and so had the jurors and everyone in the gallery.

He was nearing the end of his oration. He had spoken for more than an hour and a half. “The evidence is complicated,” he told the jury. “It is difficult and there is a lot of it, and maybe it would be easy to get distracted and go down the wrong path, to take a wrong turn.” He paused and looked for a long moment at the jurors. “Please don’t,” he said in a voice that sounded like a plea.

Please don’t. Is this weakness?

“Ladies and gentlemen, you must have courage and strength. You must have it for the families.…”

Must, must, must. Telling them what they must do. Jan doesn’t trust them? Nobody wants to be told they must
.

Schlichtmann looked spent by the time he finished. His eyes were hollow and his face flushed. He sat wearily at the counsel table next to Nesson. “How was it, Charlie?” he whispered. “Did I lose them?”

Nesson said, “Ask Kevin.”

The Vigil

1

On Tuesday morning, the day after the final arguments, Judge Skinner instructed the jurors on the rules of law that would govern their efforts to reach a verdict. It was a long, complicated legal benediction, and it took up most of the morning. Then he excused the alternate jurors for the time being, reminding them that they were still jurors in the case and should not discuss their views of it, and he sent the six regular jurors off to begin their deliberations.

Once again a large crowd of spectators had attended court. Many of them lingered in the corridor for a while, but soon they began drifting away. Almost no one expected the jury to render a quick verdict in a trial of this length and complexity. By three o’clock the corridor was nearly vacant. One lone figure stood in front of the courtroom doors like a sentinel. It was Schlichtmann, dressed impeccably in a dark suit and one of his lucky ties.

Just off the main corridor, a few paces away from Schlichtmann, a federal marshal sat at a table reading a newspaper and guarding the entry to a narrow flight of metal stairs that led up to a mezzanine and
the closed door of the jury room. Schlichtmann and the marshal exchanged no words. Schlichtmann was busy with his own thoughts. He’d kept courthouse vigils of this sort in every case he’d taken to trial, and he was not about to change his ritual now. He intended to wait in the corridor for as long as it took the jury to return its verdict.

The court stenographer emerged from a doorway down the corridor and walked toward Schlichtmann, her heels clicking on the terrazzo floor. She expressed surprise at seeing him. “You’re waiting
here
for the jury?” she asked.

“It’s the best place to agonize,” replied Schlichtmann, smiling. “I’m trying to give them positive energy.”

The stenographer shook her head and smiled back. “I don’t think they’ll be back until Friday.”

She opened a door in the corridor and went in, and Schlichtmann went back to waiting.

Schlichtmann remained faithfully at his post throughout that first week. He arrived in the corridor every morning shortly before eight o’clock, when the jurors came into work, and departed only after they left, at around four o’clock each afternoon. In the morning, Conway or Kathy Boyer would bring him breakfast and stay with him for a few hours, like friends visiting a hospital patient. Later, Gordon or Phillips, or Tom Kiley or Patti D’Addieco would come by to take their place. Nesson was Schlichtmann’s most constant companion in the corridor. Nesson was keeping his own kind of vigil. He’d begun fasting after the final arguments, and he didn’t intend to eat until the jury returned its verdict. By the third day of his fast, Nesson was experiencing an occasional transcendental moment. “It’s an amazing system, isn’t it?” he said to Schlichtmann after sitting quietly for a while. “These six jurors hold the fate of two of the biggest corporations in America in their hands. Six ordinary people! There’s nowhere else in the world it could happen but here. Law is the religion of America.”

The lawyers for Beatrice and Grace soon noticed that Schlichtmann never left the corridor. They decided that they, too, ought to hang around. They did so in shifts, posting guards on Schlichtmann, as it were. “It’s like nuclear deterrence,” explained Neil Jacobs, peering down the corridor at Schlichtmann. “You’ve got to keep an eye on the
other side.” Facher dropped by from time to time, but he rarely stayed long. Guard duty was a job more suited to young associates. All the Grace lawyers, however, senior partners as well as associates, dutifully took their turns. Usually they bided their time in the courtroom gallery, at a far remove from Schlichtmann. But sometimes, feeling bored, Cheeseman would venture out to chat.

“Any word?” he asked Schlichtmann late one morning.

“Not a peep,” replied Schlichtmann. “They’re as silent as the flow of chemicals from Grace.”

Cheeseman’s face grew flushed, but he laughed. “And just as slow,” he said.

As the first week drew to a close without any sign of a verdict, the patient in the corridor took a turn for the worse. He revived on Friday morning when he saw William Vogel, the jury foreman, a man in his early sixties, come to work for the first time that week wearing a coat and tie. “He’s got a new shirt and a nice gray tie,” Schlichtmann informed Conway after Vogel had ascended the stairs. “That tells me it’s going to be a big day. He’s not going to be up in that stuffy room all day.”

But the jurors didn’t come back with a verdict that Friday, and by then Schlichtmann felt certain there was trouble among them. He left the courthouse with Conway after the jurors had gone home for the weekend. The late afternoon sun slanted between the tall buildings on Milk Street. The sidewalks were crowded with people in summer apparel, office workers who had shed their jackets, women in light colorful dresses, tourists with cameras slung around their necks. Schlichtmann, in his dark suit, walked with his hands in his pockets, his eyes on the pavement. The crowds parted and gave him a wide berth. “I keep thinking of all the things I didn’t say,” he told Conway. “I wonder what I didn’t explain carefully enough.”

On Monday, Schlichtmann no longer had the spirit or the strength to stand up all day. He sat on the bench for long periods, although he always made sure to rise around the times the jurors customarily came and went.

During those moments he studied them closely but guardedly, with his eyes partially averted, trying to divine their thoughts and figure out
who was for him and who was against. Vogel, a telephone company supervisor in his other life, always led the group when they went down to the cafeteria for lunch. Schlichtmann had believed for months that Vogel supported him, and he couldn’t bring himself to think otherwise now. He felt just as certain about the second juror, Linda Kaplan, a young unmarried woman who worked as a clerk for a big insurance company. She often smiled at Schlichtmann as she passed by him. Then came Robert Fox, a trim, good-looking man of about thirty who had taken copious notes throughout the trial. Schlichtmann had felt dubious about Fox until the last weeks of trial, and then he’d persuaded himself that Fox was on his side. But he was no longer sure of that now. After Fox came Vincent O’Rourke, an ailing postal worker in his late fifties who had difficulty walking. At his
voir dire
, O’Rourke had responded slowly and very deliberately to the judge’s questions. He did not seem to Schlichtmann like the sort of man who would go against the majority and make trouble in the jury room.

The trouble, Schlichtmann believed, was coming either from Harriet Clarke, the church organist, a thin, rather severe-looking woman in her late forties, or from Jean Coulsey, the stout, white-haired, ruddy-cheeked grandmother who drove a forklift part-time at a department store warehouse. Coulsey was the one who’d said at her
voir dire
that she thought the lawsuit might be the product of “some lady maybe looking for a little extra money.” Despite that, Schlichtmann had instinctively liked Coulsey. He’d felt confident, certain even, of her allegiance throughout the trial. But now, watching her in the corridor, he wondered if he hadn’t made a terrible mistake. She always looked grim as she approached him, her mouth set and lips narrowed, her head tucked down and turned away. Everything in her demeanor told him that she wished she could avoid him.

As the second week wore on, Schlichtmann’s mother and Teresa came to sit with him. They and others from the office would gather around and talk among themselves, but Schlichtmann remained silent for long periods, staring off into space. Sometimes he would pace, studying the floor and walking in slow, small steps, the gait of an old man who no longer trusted his balance. Conway watched him once as he did this, walking thirty feet or so in one direction, and then thirty feet back. He would place each foot carefully within a square of the terrazzo floor, and when he made a mistake, when he overstepped a
square, he would stop, take a step backward, and repace. After a while, Conway said, “What are you doing, Jan?”