A Time for Mercy

by John Grisham

  “That’s not good enough, Judge. I want a promise from you that I’ll get paid a lot more than a thousand bucks.”

  “I promise I’ll do everything within my power to see that you get paid for a proper defense.”

  Jake took a deep breath and told himself that it was time to accept the fact that the Gamble case belonged to him. Noose fiddled with another pipe and stuffed its bowl full of dark tobacco. He grinned at Jake with his brown teeth and said, “I’ll sweeten the pot.”

  “Smallwood?”

  “Smallwood. I’ll set a trial date a week from next Monday, April twenty-third. I won’t put up with Sean Gilder’s nonsense and will insist that we’re picking a jury bright and early that morning. I’ll call Gilder and Walter Sullivan within the hour. How’s that?”

  “Thank you.”

  “Are you ready for trial, Jake?”

  “I’ve been ready.”

  “Any chance of a settlement?”

  “Right now that appears unlikely.”

  “I want you to win this case, Jake. Don’t get me wrong. I will remain an unbiased referee whose job is to guarantee a fair trial. But I’d love to see you pop Gilder and Sullivan and that railroad for a big verdict.”

  “So would I, Judge. I need it.”

  Noose puffed and chewed on the stem. He said, “You and I are not very popular right now, Jake, judging by this stack of letters I’ve received from Ford County, and from phone calls, some anonymous, some not. They think we’ve already found the boy insane and let him off. Are you worried about this during jury selection?”

  “Well, yes, Harry Rex and I have discussed it. He’s more worried than I am because I still believe we can find twelve jurors with open minds.”

  “So do I. We’ll take our time and screen them carefully. Let’s bring the boy back from Whitfield so the hotheads will know he’s back in jail, awaiting trial and not getting released on some technicality. I think that’ll appease some folks. You agree?”

  Jake said, “Yes,” but wasn’t sure he meant it. Noose had a point. If Drew was back in Ozzie’s jail and awaiting trial, the locals might settle down.

  Noose said, “I’ll call the clerk and get the jury list released tomorrow. I think a hundred names should suffice, don’t you?”

  “Yes sir.” One hundred was about average for a civil trial.

  Noose took his time cleaning another pipe. He carefully added more tobacco, lit the pipe, savored the smoke, then stood, unfolding his lanky frame out of the chair with some effort. He walked to a window and gazed out as if taking in a beautiful landscape. Without turning around, he said, over his shoulder, “Something else, Jake, something off the record. Okay?” He seemed burdened with an unpleasant thought.

  “Sure, Judge.”

  “I once made a living as a politician and was quite good at it. Then the voters called me home and I had to go clean and make an honest living. I’ve worked hard as a judge and I’d like to think I’ve grown into this job. Been here for eighteen years, never had a serious opponent. My reputation is pretty solid, right, Jake?” He turned around and looked down his long nose.

  “I’d say it’s very solid, Judge.”

  Noose sucked on his pipe and watched the smoke swirl near the ceiling. “I have come to despise judicial elections. Politics should be kept out of the judiciary at all levels. I know that’s easy for me to say because I’ve been on the bench for a long time. Incumbency has its advantages. But it’s sort of unseemly for judges to be forced to shake hands and kiss babies and hustle for votes, don’t you agree, Jake?”

  “Yes sir. It’s a bad system.” As bad as it seemed, the truth was that judges were rarely challenged and almost never defeated. Most ambitious lawyers considered it financial suicide to run against a sitting judge, and lose. Jake suspected Rufus Buckley was very much on Noose’s mind.

  He said, “It appears as though I’ll have an opponent next year.”

  “I’ve heard the rumors.”

  “Your old pal Buckley.”

  “I still despise him, Judge. I guess I always will.”

  “He blamed me for the Hailey acquittal. Blamed you. Blamed everyone but himself. He’s been stewing for five years, plotting revenge. When he lost the D.A.’s race three years ago he became so depressed he had to seek help, at least according to my sources in Smithfield. Now he’s back and he’s running his mouth. Thinks the public needs him sitting on the bench in my chair. Last Friday at the Rotary Club he babbled on about the Kofer case, said you had hoodwinked the court again and convinced me to release the boy.”

  “I’m not worried about the Rotary Club gossip in Smithfield, Judge.”

  “Of course not, but your name won’t be on the ballot there, now will it?”

  “Judge, look, the last time Buckley ran he lost four out of five counties, and Lowell Dyer was an unknown.”

  “I know, I know. It wasn’t close.”

  Jake was surprised that the conversation had shifted so quickly from business to politics. Noose had never let his guard down and become so personal. He was obviously worried about a campaign that was months away and might never happen.

  Jake said, “Ford County has more voters than the other four, and your reputation there is stellar. The bar is solidly behind you for all the right reasons, and the bar utterly loathes Rufus Buckley. You’ll be in good shape, Judge.”

  Noose returned to his desk and added the pipe to the collection in the pasta bowl. He did not sit down but rubbed his hands together as if to say, “Done.”

  “Thanks, Jake. Let’s keep an eye on Buckley.”

  Jake stood and said, “Will do. I’ll see you early in the morning a week from Monday.”

  They shook hands and Jake left in a hurry. In his car, he called Harry Rex, bluffed his way past two rude secretaries, and finally delivered the wonderful news that a trial date was set and they would know the names of the potential jurors within twenty-four hours.

  Harry Rex bellowed loud enough for his entire office to hear, then cackled into the phone, “I’ve already got the list.”

  20

  A sizable chunk of the funds from the litigation loan at Stan’s bank had been used to pay the fee of a fancy jury consultant named Murray Silerberg. He owned a firm based in Atlanta and boasted of securing huge verdicts for the past twenty years. Jake had heard him speak at a convention of trial lawyers and was mightily impressed. Harry Rex didn’t want to spend the money, and claimed he could pick a jury better than anyone else in the state. Jake had to remind his friend that he had not picked a jury in ten years because he realized back then that jurors didn’t like him. They had spent a day driving to Atlanta to meet Murray Silerberg, after which Harry Rex reluctantly got on board. The fee was a flat $20,000, plus travel expenses.

  Jake made the call to Stan and said hit the credit line. Stan once again told him he was crazy, to which Jake replied, in true trial lawyer fashion, “Gotta spend money to make money.” It was true—litigation loans were becoming popular across the country, and trial lawyers, ever eager to brag about their verdicts, had begun bragging about how much they borrowed and spent convincing juries.

  Silerberg’s firm studied every civil verdict in the country, with a special interest in the Deep South and Florida. Most of their clients, and verdicts, were close to home. A partner followed verdicts in urban areas, while Silerberg was fascinated with small towns and counties where the juries were much more conservative.

  When he got the green light from Jake, he immediately began polling rural voters in north Mississippi to gauge their attitudes about courts, lawyers, and lawsuits. The polling was extensive and included hypothetical cases involving parents and children killed in auto accidents.

  At the same time, an investigative team working for Silerberg began digging through the backgrounds of the names on the golden list. The Smallwood suite had b
een a large, empty storage space for years, but when Jake filed suit thirteen months earlier it was converted to a war room. The investigators took it over and were soon thumbtacking sheets of paper and enlarged photos on all four walls. Photos of the homes, trailers, apartments, cars, trucks, and places of employment of the prospective jurors. They dug through land records, court filings and dockets, anything that was in the public domain. They were careful and tried not to be seen, but several prospective jurors complained later that they saw strangers with cameras in their neighborhoods.

  Of the ninety-seven names, eight were soon confirmed to be dead. Jake knew only seven of those still living, and as he studied the list he once again marveled at how few names he recognized. He had lived his entire life in Ford County, population 32,000, and thought he had a lot of friends. Harry Rex claimed to know something about twenty of the potential jurors.

  The early polling was less than encouraging. Not surprisingly, Murray Silerberg knew that juries in the rural South are suspicious of big verdicts and tight with money, even when it belonged to large corporations. It was extremely difficult to convince hardworking people to hand over a million dollars when they were living from paycheck to paycheck. Jake was well aware of this. He had never asked a jury for seven figures, but even so he had been burned. A year earlier, he got a bit carried away and demanded $100,000 from a jury in a case that was worth less than half of that. A split jury gave him only $26,000 and the case was on appeal. Harry Rex watched the closing arguments and thought Jake alienated some of the jurors by asking for too much.

  The lawyers and their high-priced consultant knew the dangers of appearing greedy.

  Privately, though, Jake and Harry Rex were delighted with the list. There were more prospects under the age of fifty than over it, and that should translate into younger parents with more sympathy. Old white jurors were the most conservative. The county was 26 percent black, and so was the list, a high number. In most white counties, blacks registered to vote in lower numbers. They were also known to be more sympathetic for the little guy battling the corporation. And Harry Rex claimed to know two “ringers,” men who could be persuaded to see things the plaintiffs’ way.

  The mood around Jake’s office changed dramatically. Gone were the worries about defending Drew Gamble and dealing with that tragedy. They were quickly replaced with the excitement of a major trial and the endless preparations for it.

  * * *

  —

  BUT THE GAMBLE case was not going away. For reasons having more to do with overcrowding than proper care, Drew needed to leave Whitfield. After eighteen days, his doctor, Sadie Weaver, was ordered to ship him back to Clanton because his bed was needed by another juvenile. She telephoned Judge Noose, Jake, and Sheriff Walls. Ozzie was delighted to get the kid back in his jail, and tipped off Dumas Lee at The Ford County Times. When the defendant arrived in the backseat of a patrol car driven by the sheriff himself, Dumas was waiting and clicked away. The following day, a large photo appeared on the front page under the bold headline: “KOFER SUSPECT BACK IN CLANTON JAIL.”

  Dumas reported that, according to Lowell Dyer, the district attorney, the defendant had been served with his indictment and they were awaiting a first appearance in court. No trial date had been set. Jake was quoted as offering a “No comment.” Same for Judge Noose. An unnamed source (Jake) told Dumas that it was not at all unusual in serious cases to have the defendant examined at Whitfield. Another anonymous voice predicted a trial by midsummer.

  * * *

  —

  AT 8:00 A.M. on Saturday, Jake met a group of people at the rear door of the courthouse, which was closed for business. Using a borrowed key, he unlocked it and herded them up a service stairway to the main courtroom where the lights were on and his team was waiting. He seated them, thirteen in all, in the jury box, and then introduced Harry Rex, Lucien Wilbanks, Portia Lang, and Murray Silerberg and one of his assistants. The courtroom was locked and, of course, there were no spectators.

  He called thirteen names, thanked them for their time, and passed out thirteen checks of $300 each (another $3,900 from their litigation loan). He explained that mock juries were often used in big civil cases and he hoped the experience would be pleasant. The mock trial would consume most of the day and there would be a nice lunch in just a few hours.

  Of the thirteen, seven were women, four were black, and five were under the age of fifty. They were friends and former clients of Jake’s and Harry Rex’s. One of the black ladies was Portia’s aunt.

  Lucien assumed his place up on the bench, and for a moment seemed to enjoy being a judge. Harry Rex moved to the defense table. Jake began the trial with a scaled-down version of his opening statement. Everything would be scaled down for the sake of time. They had one day to complete the mock trial. The real one was expected to last for at least three.

  On a large screen he showed color photos of Taylor and Sarah Smallwood and their three children, and talked about how close the family was. He showed photos of the crash scene, the demolished car, and the train. A state trooper had returned to the site the following day and taken a series of photos of the warning lights. Jake showed them to the jurors, and several shook their heads in disbelief at the badly maintained system.

  Wrapping it up, Jake planted the seed for a big verdict by discussing money. He explained that, unfortunately, in death cases the only measure of damages was money. In other cases, the defendants could be forced to take remedial action. But not here. There was no other way to compensate the Smallwood heirs than with a money verdict.

  Harry Rex, for the first and last time in his career in the role of an insurance defense lawyer, went next with his opening statement, and began dramatically with a large color photo of the fourteenth boxcar, the one struck by the Smallwoods. It was fifteen feet high and forty feet long, and it was equipped, like all railroad cars, with a set of reflective strips that when hit with headlights emitted a bright yellow glow that could be seen for three hundred yards. No one would ever know what Taylor Smallwood saw or didn’t see in that final crucial second, but what he should have seen was quite obvious.

  As a defense lawyer, Harry Rex was good, sufficiently dubious of the plaintiff’s case, and most of the jurors followed him closely.

  The first witness was Hank Grayson, played by Murray Silerberg’s assistant, Nate Feathers. Eight months earlier, Mr. Grayson had been deposed in Jake’s office, and he swore, under oath, that he was about a hundred yards behind the Smallwoods when the crash occurred. For a split second he wasn’t sure what happened and by the time he hit his brakes he almost hit their car, which had gone airborne and spun 180 degrees. The train was still moving by. Most important, the red warning lights were not flashing.

  Jake had always worried about Grayson. He believed the man was telling the truth—he had nothing to gain by lying—but he was timid, could not maintain eye contact, and had a squeaky voice. In other words, he did not project veracity. Plus, on the night in question he had been drinking.

  Harry Rex pounced on this during cross-examination. Grayson stuck to his story of having only three beers at a joint down the road. He was far from drunk, knew exactly what he had seen, and spoke with several policemen in the aftermath. Not a single officer asked him if he had been drinking.

  In the mock trial, Nate Feathers, the jury consultant, was a far better witness than the real Grayson would ever be.

  The next witness was a railroad-crossing expert, played by Silerberg, who was holding a copy of their expert’s deposition and knew his testimony well. Using the enlarged photos, Jake proved in abundant detail that Central & Southern had done a lousy job maintaining the crossing. The lenses over the red flashing lights were choked with dirt, some were broken. One pole was leaning. Paint was peeling from around the lights. On cross, Harry Rex argued a few points but didn’t score.

  So far, Lucien had said little and appeare
d to be napping, just like a real judge.

  The next witness was another railroad safety expert, played by Portia Lang. She explained to the jury the various warning systems now used by railroads at their crossings. The one used by Central & Southern was at least forty years old and badly outdated. She described its shortcomings in abundant detail.

  At ten o’clock, Judge Lucien woke up long enough to call for a recess. Coffee and doughnuts were passed to the jurors as everyone took a break. After the recess, Lucien told Jake to proceed. He called to the stand Dr. Robert Samson, professor of economics at Ole Miss, played by none other than Stan Atcavage, who would rather have been on the golf course, but Jake would not take no for an answer. As Jake had explained, if Stan were really worried about the litigation loan, he should do anything to help the cause. Stan was definitely worried about the loan. The real Dr. Samson was charging $15,000 for his testimony at the real trial.

  The testimony was dull and filled with too many numbers. The expert’s bottom line was that Taylor and Sarah Smallwood would have earned $2.2 million if they had worked for another thirty years. Harry Rex scored a few points on cross by pointing out that Sarah had always been a part-timer and that Taylor changed jobs frequently.

  The next witness was Nate Feathers again, this time in the role of the state trooper who investigated the accident. After him, Portia was back as the doctor who pronounced the family dead.

  Jake decided to rest the plaintiff’s case at that point. At trial, he planned to call two close relatives to the stand to personalize the family and hopefully rouse up some sympathy, but that would be difficult with a mock jury.

  Lucien, who by noon was thoroughly bored with life on the bench, said he was hungry and Jake broke for lunch. He led the entire group out of the courthouse and across the street to the Coffee Shop where Dell had a long table waiting with ice tea and sandwiches. Jake had asked the jurors not to discuss the case until their deliberations, but he and Harry Rex and Silerberg couldn’t help themselves. They sat at one end of the table and replayed the testimony and the reactions from the jurors. Silerberg was delighted with Jake’s opening statement. He had carefully watched each juror and thought all were on board. However, he was worried about the simplicity of the defense: How does an alert driver not see a moving train covered with reflective lights? Back and forth they went at their end of the table, while the mock jurors chatted among themselves over a free lunch.