“You’ve got more drums in your testimony than you know what to do with,” replied the judge, who went on to exclude Schlichtmann’s “killer document”—the 1956 report by state agent A. C. Bolde, who had ordered Riley to remove five hundred feet of tannery sludge deposited along the edge of the marsh. The report, said the judge, was “remote in time and subject matter.”
Schlichtmann felt a rising sense of panic. That evidence, he argued, went to the heart of Riley’s state of knowledge and his awareness of the risks of pollution near the Aberjona River. But the judge was unmoved. And when Nesson tried once again to point out to the judge his error of law, he succeeded only in angering him. “One of the ways you prompt me to think about correcting this is by directing a verdict for Beatrice,” the judge told Nesson.
“You really know how to hurt a guy,” said Nesson.
“I’m serious about this,” replied the judge. “The best case against Beatrice is a mighty thin case. It was really a very close call on the motion for a directed verdict.”
The discussion moved on to the questions the jury would have to answer in reaching its verdict. Juries are usually asked simply whether they find for the plaintiff or for the defendant. But Judge Skinner pointed out that the date TCE and the other solvents arrived at the wells would be critically important in the second phase, the medical phase, of trial, presuming the case got that far. “Simply to say that the chemicals got there sometime before May 1979 is not going to do the trick,” the judge told the lawyers.
He asked the lawyers to prepare a draft of the questions they thought the jury should answer. Schlichtmann would have liked one simple question for each defendant—Were Beatrice and Grace responsible for contaminating the wells before May 1979?—but nothing in this case had been that simple. Both Facher and Keating submitted long lists of complicated questions, all of which the jurors would have to answer in the affirmative to proceed to the next phase.
The lawyers and the judge argued for two days about the questions, endless arguments about phrases, words, prepositions, and commas, like rabbinical scholars arguing fine points of the Talmud. Schlichtmann kept trying to simplify, Facher and Keating kept trying to put elements back in. The judge seemed to recognize the need for simplicity. “My God,” he said at one point. “To ask them a question like that! You’re talking to plain folks, you know. You’ve got to cast these in some form of language that is not hedged around with reservations and clauses and subclauses and commas and all that.”
“That’s right!” agreed Schlichtmann. “It’s the most ridiculous thing in the world.”
In the end, however, the questions were the work of a committee whose members had already demonstrated their inability to agree on just about anything. The judge finally decided on four questions for each defendant, all of which contained plenty of clauses, subclauses, and commas. First: Had the plaintiffs established by a preponderance of the evidence that any of the following chemicals—TCE, perc, and 1,2 transdichloroethylene—were disposed on the Beatrice land after August 27, 1968 (in the case of W. R. Grace, after October 1, 1964, the date Well G had opened), and had these chemicals substantially contributed to the contamination of the wells before May 22, 1979? If the answer should be yes for one or more of the chemicals, then the second question: What, according to a preponderance of the evidence, was the earliest date—both the month and year—at which each of these chemicals had substantially contributed to the contamination of the wells? And then: Had this happened because of the defendants’ failure to fulfill any duty of care due to the plaintiffs?
Finally, if the jurors answered yes to that question, then this puzzler: What, according to a preponderance of the evidence, was the earliest time (again, both the month and year) at which the substantial contribution referred to in question 3 was caused by the negligent conduct of this defendant.…?
All in all, the questions had the quality of a text that had been translated from English into Japanese and back again. The judge himself seemed to realize this. “I’m sure it can be improved upon,” he muttered at the end of his labors. “But with the shortness of life, it requires us to bring this to an end.”
In truth, these questions were all but impossible to understand. An expert in semantics would have had a hard time finding his way through the thicket of words. But even worse, they asked for answers that were essentially unknowable. Science could not determine the moment when those chemicals had arrived at the wells with the sort of precision Judge Skinner was demanding of the jurors. The judge was, in effect, asking the jurors to create a fiction that would in the end stand for the truth. Or, if they found themselves unable to do that, to end the case by saying they couldn’t answer the questions based on the evidence. If these questions really were necessary to a just resolution of this case, then perhaps the case was one that the judicial system was not equipped to handle. Perhaps it should never have been brought to trial in the first place.
Like everyone else in the courtroom, Nesson knew the jurors faced a very difficult task. But he emphatically did not believe the fault lay with the judicial system, or even with the judge’s questions, for that matter. The real problem, thought Nesson, had begun five months ago when the judge had divided the trial into separate parts. What if Schlichtmann had been allowed to present the case in its entirety? The jurors would have heard evidence about when the Woburn families first began to experience the symptoms of solvent poisoning—the chronic rashes among the children, the gastrointestinal problems, the burning eyes, the cardiac arrhythmias, and, of course, the leukemias. These symptoms all bore the fingerprint, so to speak, of the contamination in the wells. The jurors could have used this evidence to assist them in determining when the solvents first got to the wells. But the judge, in fragmenting the case, had deprived the jurors of this information.
At this stage of the trial, there was little anyone could do to remedy that. But Nesson hoped he might do something about the questions, so he rose to address the judge. It was, he said, highly prejudicial to the plaintiffs’ case to ask the jurors for a specific date when they had not yet heard all the evidence.
The judge listened intently as Nesson explained his rationale. “What you say is very interesting,” mused the judge. “It’s also very disturbing. On the one hand, you say that TCE is the cause of all these people’s symptoms because TCE is in the water. Then, in the next breath, you turn around and say that because all these people got these symptoms, we therefore conclude that TCE was in the water. This suggests to me that you’re bootstrapping. If that’s true, I’m wondering whether there’s any point in proceeding. You might as well call this case to a halt right now because you can’t possibly win it.”
Schlichtmann, sitting at the counsel table, tugged on Nesson’s coat. “Don’t let him bully you, Charlie,” he whispered. But Nesson was ready to sit down. “I’m not the best person to speak to the medical part of the case,” he said to the judge. “Mr. Schlichtmann is. With your permission, I’ll recede.”
Schlichtmann assured the judge that he would not rely on the medical evidence to prove that TCE had been in the well water. Mr. Nesson had meant only that there was additional information the jurors might take into account, “perhaps only five, or two, percent of the equation.” Even so, the jury had plenty of evidence right now to reach a verdict on when the wells became contaminated. “Frankly,” Schlichtmann told the judge, “no matter how difficult you make the questions, I think the jury is going to evaluate the testimony correctly and do the right thing.”
Afterward, walking down Milk Street on the way to the office, Schlichtmann stopped suddenly and turned his back to Nesson. “Am I bleeding?” he asked Nesson over his shoulder.
“What?” said Nesson, looking confused.
“Am I bleeding there, where you stabbed me in the back?”
Then Schlichtmann laughed. It was Friday afternoon. On Monday he’d give his final argument. He’d get to talk directly to the jurors again for the first time in five m
onths, without Facher or the judge interrupting. “Seventy-six days of trial,” he said ruefully. “How long should it have been? Thirty days?”
Conway grimaced. “It was Facher. He made us pay the price for taking it to trial.”
12
It was Monday morning, July 14, and the plump, good-natured woman at the dry cleaner’s on Charles Street wouldn’t let Schlichtmann have his charcoal-gray suit, his lucky suit. She produced an overdue bill of $294 and shook her head sadly. Gordon, it seemed, had finally given up. He’d let Schlichtmann down. He had stopped paying the dry-cleaning bill.
Schlichtmann explained to the woman that this was the most important day of his life. He had to have this particular suit. It had magical qualities. The woman knew Schlichtmann from previous encounters. His stories made her laugh. If it was up to her, she told him, she’d let him have the suit, but the manager wouldn’t permit it. Schlichtmann pleaded his case. He’d surely lose without this suit, he said, and then he’d never be able to pay his bill. The woman let Schlichtmann charm her. She cast a quick eye over her shoulder for the manager and then gave Schlichtmann his suit.
A good omen, thought Schlichtmann as he hastened in the morning sun to the office. He had succeeded in his first attempt at persuasion that day.
He yearned to speak to the jurors. At times during the trial this yearning had almost overwhelmed him. When Riley had sat on the witness stand, he’d wanted to turn to the jurors and say, “See? This man is lying now.” And Pinder. Schlichtmann would have told them that yes, Pinder had made some mistakes, but he really was telling the truth. Schlichtmann had wanted to explain what Facher was really up to with all his objections, and that just because the judge didn’t believe in the Beatrice case, that didn’t mean they shouldn’t.
Schlichtmann wanted the jurors to understand the case as he did. The story of Woburn had been broken into fragments, first by the judge when he split the trial into phases, then by Facher and his relentless objections, and now finally by the questions. Schlichtmann would have to reassemble the pieces so the jurors could understand. He knew they wouldn’t be able to figure out how to answer the questions. He’d have to tell them what answers to write down, the only answers that would keep the case alive.
Over the weekend, Nesson had urged Schlichtmann to tell the story from his heart and his head, not to memorize it. But the story Schlichtmann needed to tell was long and complicated, so he wrote it all out. And then, because he didn’t want to omit anything in the telling, he disregarded Nesson’s advice and committed his speech to memory.
As usual, he hadn’t slept last night. He preferred not to, especially before an important day. He didn’t want to feel rested and calm. He wanted to feel on edge, feel the rush of adrenaline pulsing through his body. Teresa had spent the night with him, and once again she’d awakened in the gray light of dawn to the sound of his low voice rehearsing.
Outside the courthouse the television vans with their satellite dishes were once again parked around Post Office Square. Upstairs, on the fifteenth floor, the crowd had returned after its long absence, squeezing shoulder to shoulder onto the gallery’s wooden pews. Teresa sat with Schlichtmann’s mother and the secretaries from the office; Uncle Pete brought a young assistant from the Bank of Boston; Facher escorted his daughters; and Keating arrived with a group of executives from W. R. Grace.
By long-standing tradition, the order of presentation in closing arguments is the reverse of the openings. This time, Facher would speak first, followed by Keating, and then Schlichtmann would get the last word.
Apart from rhetorical flourishes, summations are generally predictable, and Facher’s held no surprises for those familiar with the testimony. Schlichtmann sat at the counsel table with his partners, his back to Facher. Afterward, he would say that he had no memory of hearing Facher’s closing argument. He knew Facher would tell the jury that Drobinski’s opinion had been nothing more than guesswork and that Pinder, the celebrated expert, had failed to do his homework and had simply fabricated an explanation for the missing river water. Schlichtmann knew that Keating would also attack Pinder and claim that the wells had been contaminated by industries to the north, and later he’d have no memory of hearing Keating, either.
The July sun rose high in the sky and flooded in through the opened windows behind the jury box. The judge declared an hour recess for lunch. Schlichtmann couldn’t eat. He walked down the marble-tiled corridor to the men’s room to splash water on his face. He returned and stood near the courtroom door with Conway and Kathy Boyer. Conway spoke softly to him, asking how he felt, but Schlichtmann just nodded and rubbed his hands together. He looked as if he were in a trance, his eyes focused inward, his face pale. Conway had never seen him quite so nervous, not even before the Rule 11 hearing. But Conway could understand why. Everything depended on this closing argument, Conway thought—all the years of work, the huge debt, their careers and families, Conway’s house. He’ll be fine once he starts speaking, Conway told himself.
The crowd filed back into the courtroom. The lawyers gathered at the judge’s bench for a conference. Schlichtmann had gotten his courtroom graphics man, Andy Lord, to make up poster-sized enlargements of the questions the jury would have to answer. He showed the posters to the judge. Facher and Keating both objected. Facher told the judge it was “inappropriate” to give the questions to the jury ahead of time.
“I offered everyone the chance to do that,” the judge said to Facher. “You declined it. It’s Mr. Schlichtmann’s choice.”
Jacobs studied the posters. “Question three is not typed correctly,” he told the judge. “We added ‘prior to May 22, 1979,’ to the question, and that’s not in Mr. Schlichtmann’s version.”
“Yes,” said the judge, “it is incorrect.”
“Can we write it in?” asked Schlichtmann.
“Write it in good and big,” said the judge.
“Put it in very clearly, really neatly, and waste your time reading the questions,” said Facher. “It’s all right with me.”
Schlichtmann didn’t trust himself to write legibly. He feared his hand would shake. “Here, Mr. Nesson, you write it,” he said.
The lawyers returned to their seats and the judge called the court to order. Schlichtmann rose from the counsel table and turned to face the jurors. He paused for a moment, just as he had during his opening statement, his head bent down, the fingers of his left hand to his chin. Finally he drew an audible breath, looked up at the jurors, and began speaking.
At the counsel table, Nesson turned in his chair so he could watch Schlichtmann, who stood to his left and behind him. But after a few minutes, Nesson turned away. He picked up his pen and began writing quickly in his trial notebook. Jan is a bit shaky. Trying to remember. Pauses that are not for effect but rather to remember what to say next. A memorized speech.… Why can’t I look at him? Why does his argument embarrass me instead of engage me?
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 Hon
or,” 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.”
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