The Appeal (39 page)

Ron and Doreen were eating pizza at the crowded campaign office in downtown Brookhaven. The Lincoln County votes were being tallied just down the street, and when the news came that his neighbors had turned out in big numbers and given him 75 percent of the vote, the party began. In Pike County, next door, Fisk received 64 percent.

When Sheila lost Hancock County on the Coast, her night was over, as was her career on the supreme court. In one ten-minute span, she then lost Forrest County (Hattiesburg), Jones County (Laurel), and Adams County (Natchez).

All precincts were in by 11:00 p.m. Ron Fisk won
easily with 53 percent of the vote. Sheila McCarthy received 44 percent, and Clete Coley retained enough admirers to give him the remaining 3 percent. It was a solid thrashing, with Fisk losing only Harrison and Stone counties.

He even beat McCarthy in Cancer County, though not in the four precincts within the city limits of Bowmore. In the rural areas, though, where the Brotherhood ministers toiled in the fields, Ron Fisk took almost 80 percent of the vote.

Mary Grace wept when she saw the final numbers from Cary County: Fisk, 2,238; McCarthy, 1,870; Coley, 55.

The only good news was that Judge Thomas Harrison had survived, but barely.

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T
he dust settled in the week that followed. In several interviews, Sheila McCarthy presented the face of a graceful loser. She did, however, say, “It will be interesting to see how much money Mr. Fisk raised and spent.”

Justice Jimmy McElwayne was less gracious. In several articles, he was quoted as saying, “I’m not too keen to serve with a man who paid three million for a seat on the court.”

When the reports were filed, though, three million looked rather cheap. The Fisk campaign reported total receipts of $4.1 million, with a staggering $2.9 million collected in the thirty-one days of October. Ninety-one percent of this money flooded in from out of state. The
report did not list any contributions from or expenses paid to such groups as Lawsuit Victims for Truth, Victims Rising, and GUN. Ron Fisk signed the report, as required by law, but had many questions about the financing. He pressed Tony for answers about his fund-raising methods, and when the answers were vague, they exchanged heated words. Fisk accused him of hiding money and of taking advantage of his inexperience. Tony responded hotly that Fisk had been promised unlimited funds, and it wasn’t fair to complain after the fact. “You should be thanking me, not bitching about the money,” he yelled during a long, contentious meeting.

Soon, though, they would be attacked by reporters and forced to present a united front.

The McCarthy campaign raised $1.9 million and spent every penny of it. The $500,000 note produced by Willy Benton and signed by twelve of the MTA directors would take years to satisfy.

Once the final numbers were available, a storm erupted in the media. A team of investigative journalists with the
Clarion-Ledger
went after Tony Zachary, Judicial Vision, Ron Fisk, and many of the out-of-state donors who’d sent $5,000 checks. The business groups and the trial lawyers exchanged heated words through the various newspaper stories. Editorials raged about the need for reform. The secretary of state pursued Lawsuit Victims for Truth, Victims Rising, and GUN for such details as the names of members and total amounts spent on advertising. But the inquiries were
met with stiff resistance by Washington lawyers with wide experience in election issues.

Barry Rinehart watched it from the safety of his splendid office in Boca Raton. Such postgame antics were the rule, not the exception. The losers always squawked about the lack of fairness. In a couple of months, Justice Fisk would be on the big bench and most folks would forget the campaign that put him there.

Barry was moving on, negotiating with other clients. An appellate judge in Illinois had been ruling against the insurance industry for many years, and it was time to take him out. But they were haggling over Barry’s fees, which had jumped dramatically after the Fisk victory.

Of the $8 million funneled through various routes by Carl Trudeau to Barry and his related “units,” almost $7 million was still intact, still hidden.

Thank God for democracy, Barry said to himself many times a day. “Let the people vote!”

R
on Fisk was sworn in as associate justice of the Supreme Court of Mississippi during the first week of January. It was a short, quiet ceremony attended by Doreen and the three children, a few friends from Brookhaven, Tony Zachary, and the other eight members of the court and some of the staff. The chief justice, the most senior member, gave a short welcoming speech, then everybody had punch and cookies. Justice Jimmy McElwayne skipped the refreshments and returned to his office. He had not expected to like Ron Fisk, and so far he had not been disappointed. Fisk stumbled badly when he summarily fired Sheila’s law clerks and secretary without the courtesy of first meeting them. He stumbled again when he showed up in early December and began pestering the chief justice to see the docket and have a look at some of the upcoming cases. At forty years of age, Fisk was by far the youngest
member of the court, and his eager-beaver enthusiasm had already rankled some of his brethren.

Once sworn in, Fisk had the right to participate in every case not yet decided, regardless of how long the matter had been before the court. He plunged into the work and was soon putting in long hours. Ten days after arriving, he voted with a seven-member majority (including McElwayne) to reverse a zoning case out of DeSoto County, and he dissented with three others in a wetlands dispute in Pearl River County. He just voted, without comment.

In each case, every judge can write his own opinion, either concurring with the majority or dissenting from it. Ron was itching to write something, but he wisely kept quiet. It was best not to rush things.

The people of Mississippi got their first glimpse of the new, post-McCarthy court in late January. The case involved an eighty-year-old woman with Alzheimer’s who was found under her nursing home bed, naked and filthy. She was found there by her son, who went ballistic and eventually sued the nursing home on her behalf. Though accounts varied and records were incomplete, testimony at trial proved that the woman had been completely neglected for at least six hours. She had not been fed for nine. The nursing home was a low-end facility, one of many owned by a company from Florida, and its history of safety and sanitation violations was long and pathetic. The jury, in the rural county of Covington, awarded actual damages of $250,000, though it was difficult to gauge the extent of the physical
injuries. There were bruises on her forehead, but the poor lady had lost her mind a decade earlier. The interesting part of the case was the punitive award of $2 million, a record for Covington County.

Justice Calligan had been assigned the case. He rounded up his other three votes and wrote an opinion that reversed the $250,000 and sent it back for another trial. More proof was needed on the issue of damages. As for the punitive award, it “shocked the conscience of the court” and was reversed and rendered—thrown out once and for all. Judge McElwayne wrote an opinion in which he upheld the entire verdict. He went to great lengths to spell out the wretched history of the nursing home—lack of staff, untrained staff, unsanitary rooms and bed linens and towels, poisonous food, inadequate air-conditioning, overcrowded rooms, and so on. His opinion was joined by three others, so the old court was equally divided. The new man would be the swing vote.

Justice Fisk did not hesitate. He, too, found the medical proof inadequate, and claimed to be shocked by the punitive award. As an insurance defense lawyer, he had spent fourteen years fighting off the wild claims of punitive damages so carelessly thrown about by the plaintiffs’ bar. At least half the lawsuits he defended had included a bogus plea for an exorbitant sum of money because of the defendant’s “outrageous and reckless conduct.”

By a vote of 5–4, the court announced its new course and sent the case back to Covington County in much worse shape than when it left.

The elderly victim’s son was a fifty-six-year-old cattle farmer. He was also a deacon in a country church a few miles outside the town of Mount Olive. He and his wife had been strong supporters of Ron Fisk because they viewed him as a godly man who shared their values and would protect their grandchildren.

Why would Mr. Fisk now rule in favor of some outlaw corporation from another state?

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E
ach case accepted for review by the supreme court is assigned by the clerk to one of the nine judges, who have no control over the process. Each one knows that every ninth case will land on his or her desk. They work on three-judge panels for six weeks, then the little teams are reshuffled.

In almost all cases before the supreme court, the lawyers request an oral argument, but these are rarely granted. The panels listen to the lawyers in less than 5 percent of the appeals.

Because of the size of the verdict, the case of
Jeannette Baker v. Krane Chemical Corporation
was deemed important enough to allow the attorneys an audience with its three-judge panel. On February 7, they gathered—Jared Kurtin and his mob, and the entire firm of Payton & Payton.

The case had been assigned to Justice Albritton months earlier. Ron Fisk had no business in the courtroom that day and was not there. Tony Zachary stopped by out of curiosity, but sat in the back row and
did not speak to anyone. He took notes and would call Barry Rinehart as soon as the hearing ended. A vice president for Krane also sat in the back row and took notes.

Each side was allowed twenty minutes, and a digital timer clicked off the seconds. Warnings were given by a clerk. Long-winded lawyers were not tolerated. Jared Kurtin went first and quickly cut to the heart of his client’s appeal. Krane had always argued that there was no credible, reasonable medical link between the BCL and cartolyx found on its property and the cancers that afflicted so many of Bowmore’s residents. Krane would never concede that illegal dumping had occurred, but, hypothetically speaking, even if you assumed toxic wastes were emitted into the soil and found their way into the water, there was “no medically causal connection” between the chemicals and the cancers. Oh, there was lots of speculation all right. Look at the rate of cancer in Bowmore. Look at the cancer clusters. But cancer rates vary widely from region to region. And, most important, there are thousands of carcinogens in the air, food, beverages, household products, the list goes on and on. Who can say that the cancer that killed little Chad Baker came from the water, and not the air? How do you rule out the carcinogens found in the highly processed foods Ms. Baker admitted they had eaten for years? It’s impossible.

Kurtin was on his game, and the three judges left him alone for ten minutes. Two were already with him. Justice Albritton was not, and he finally asked, “Mr.
Kurtin, excuse me, but were there any other factories or plants in this general area that manufactured pesticides or insecticides?”

“Not to my knowledge, Your Honor.”

“Does that mean something other than ‘No’?”

“The answer is no, Your Honor. There were no other manufacturers in Cary County.”

“Thank you. And with all of your experts did you find any other factory or plant where bichloronylene, cartolyx, or aklar was processed and/or disposed of?”

“No, Your Honor.”

“Thank you. And when you argue that other areas of the country have seen very high rates of cancer, you’re not suggesting that any of these other places are fifteen times above the national average, are you?”

“No, I’m not suggesting that, but we do dispute the ratio of fifteen.”

“Fine, then will you stipulate to a rate of cancer twelve times the national average?”

“I’m not sure—”

“That was what your expert said at trial, Mr. Kurtin. Bowmore’s rate is twelve times the national average.”

“Yes, I believe you are correct, Your Honor.”

“Thank you.”

There were no more interruptions, and Kurtin finished a few seconds after his buzzer.

Mary Grace looked spectacular. The boys might be limited by their black and navy suits, white shirts, dull ties, and black wing tips, the usual boring everyday getup, but the girls had no rules. Mary Grace wore a
bright dress that fell just above the knees and a matching jacket with sleeves that stopped at the elbows. Black stiletto heels. Plenty of leg, though none visible to the three justices once she assumed the podium.

Picking up where Justice Albritton left off, she launched into an attack on Krane’s defense. For at least twenty years the company had illegally dumped tons of class-1 carcinogens into the ground. As a direct cause of this dumping, Bowmore’s drinking water was polluted with these same carcinogens, none of which were produced or dumped or even found in significant quantities anywhere else in the county. The people of Bowmore drank the water, the same way that each member of the panel had drunk water that very morning. “You shaved, brushed your teeth, showered, used the city’s water in your coffee or tea. You drank it at home and you drank it here at work. Did you question the water? Where did it come from? Is it safe? Did you for one second this morning ask yourself if your water contained carcinogens? Probably not. The people of Bowmore were no different.”

As a direct result of drinking the water, the people got sick. The town was hit with a wave of cancer never before seen in this country.

And, as always, this fine, upstanding New York corporation—and here she turned and waved a hand at Jared Kurtin—denied everything. Denied the dumping, the cover-up, denied the lying, even denied its own denials. And, most important, denied any causation between its carcinogens and the cancer. Instead, as we’ve
heard here today, Krane Chemical blames it on the air, the sun, the environment, even the peanut butter and sliced turkey Jeannette Baker used to feed her family. “The jury really loved that part of the trial,” she said to a hushed crowd. “Krane dumped tons of toxic chemicals into our ground and our water, but, hey, let’s blame it on Jif peanut butter.”