“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 t
he 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?”
“Concentrating,” said Schlichtmann.
2
Jean Coulsey couldn’t avoid seeing Schlichtmann standing at the end of the dark corridor every morning when she stepped off the elevator. “It was pathetic, seeing him there,” Coulsey said some months after the trial. “I found it very difficult not to talk to him.” But she knew how improper any exchange would be, so she focused her eyes on the floor and set her mouth in grim restraint.
During the months of trial she and the other jurors had talked among themselves about the lawyers’ mannerisms and eccentricities, about the judge, the witnesses, even the few spectators who appeared in the gallery day after day. The jurors, of course, hadn’t been able to hear what the lawyers were saying at the bench conferences with Judge Skinner, but they’d always known when Schlichtmann had gotten reprimanded. “He’d get crimson,” remembered Coulsey. They were sometimes baffled by the judge’s manner with Schlichtmann. They all liked the judge and felt he was fair and impartial, but they could see that Schlichtmann nettled him for reasons they didn’t comprehend. “The judge seemed awfully picky with Mr. Schlichtmann,” recalled Coulsey. As for Facher, she did not particularly care for him. Her closest friend on the jury, an alternate named Henry Jason, a retired police officer, had once said in annoyance, “Facher’s like a spring with his objections, jumping up all the time,” and Coulsey had concurred.
The jurors had made such observations casually, passing the time in conversation when the trial had halted for those interminable bench conferences. To Coulsey, John J. Riley had come across “like a creep.” She thought her fellow jurors agreed with her. After Riley’s second day on the witness stand, Henry Jason had whispered loud enough for the others to hear, “Who’s he trying to snow?” Everyone had laughed. “The thing that kills me,” Coulsey later remarked, “was Riley saying he’s turned the fifteen acres into a conservation area.” She thought Drobinski had been an excellent witness, forthright and credible. Facher’s manner toward Drobinski had irritated her. “How can Mr. Facher belittle people like that?” she had wondered. “He’s very sarcastic, but he can pick up on something that isn’t right just like that. God help you if you make a mistake with Mr. Facher.”
Because they had shared these observations, and they had seemed generally to agree with one another, Coulsey had assumed that the other jurors viewed the case in the same light as she did.
The day they began their formal deliberations, the clerk brought all the evidence up to the jury room—it took him several trips—and the list of questions that had been devised for them to answer. Jean Coulsey studied the questions in astonishment. And she wasn’t the only one surprised by them. The others looked confused and perplexed, too.
William Vogel remembered saying, “I thought we were just supposed to find them guilty or innocent.”
“Something must be wrong,” said Coulsey. “I can’t understand how Mr. Schlichtmann could let this happen.”
The jurors read the questions several times, trying to parse the compound sentences. How could they possibly determine the month and year that the chemicals had arrived at the wells? Pinder and Guswa had offered opinions and had spoken about the “travel times” of the chemicals, but that testimony had been confusing at best. And what did the judge mean by “substantial” contribution? What exactly was a “preponderance of the evidence?”
“Now what are we going to do?” asked Coulsey.
Vogel suggested they begin by taking a vote to see where everyone stood. For his part, he believed that both companies were, as he put it, “guilty” of contaminating the wells, but he didn’t reveal this opinion to his fellow jurors right away. As foreman, he thought he should wait until the others made their opinion known. If they all agreed, they could then proceed to the far more difficult task of determining exactly when the chemicals had reached the wells.
As Vogel understood it, the first question asked whether the chemicals from Beatrice had gotten to the wells before May 22, 1979, the date the wells had closed. To him, that was essentially the “guilty” or “not guilty” question. He read that first question aloud to the other jurors and asked for a show of hands from those who believed Beatrice was liable. Jean Coulsey and Linda Kaplan promptly raised their hands. When no one else raised a hand, Vogel raised his. Finally Vincent O’Rourke, the postal employee, a very shy and retiring man, slowly raised his hand.
Then Vogel said: “Not guilty?”
Harriet Clarke held up her hand. Robert Fox, the only juror who had not yet voted, said he was undecided and would abstain for the moment.
Vogel posed the same question for Grace. The results were only slightly different. This time Robert Fox joined Harriet Clarke in finding Grace not liable.
Jean Coulsey was amazed. The judge had told the jurors that their verdict had to be unanimous. Coulsey had thought it would take only a short while to find both Grace and Beatrice liable. Nothing, she believed, could be clearer than the “guilt” of the two corporations.
The jurors set to work that afternoon. They began with Beatrice, arranging all the evidence before them on top of the large wooden table. They asked the judge’s clerk for a magnifying glass so they could study the aerial photographs that Schlichtmann had introduced as evidence. It quickly became apparent that although Robert Fox had abstained on the initial vote, he felt Beatrice should not be held liable. By the afternoon of the second day, the discussion between Fox and Coulsey began to grow heated. The judge had allowed the jurors to take notes during the trial, and Fox had filled the pages of four notebooks. He would read to the other jurors items from his notes that supported his point of view.
Coulsey had taken almost no notes. She felt intuitively that the companies were responsible, but she had difficulty articulating her thoughts and could not readily summon facts the way Fox could. She kept wishing that the alternate jurors, especially Henry Jason, were deliberating with them.
For his part, Fox grew increasingly frustrated in his efforts to engage Coulsey in rational debate about the facts. He paced around the table, demanding that Coulsey explain, tha
t she give her reasons, that she point to the evidence. “There simply isn’t enough proof,” Fox told her. “You need a preponderance of the evidence. Show me a preponderance of the evidence.” At times he raised his voice, and by the end of the week, he had gotten so agitated that he slammed his fist on the table, making a resounding noise. At those moments, even his ally, Harriet Clarke, would tell him to calm down.
Jean Coulsey never gave in to tears in the jury room, although she felt close to it more than once. “I can’t get my words out right,” she told her husband one evening. She felt as if she was coming apart emotionally under the strain. One morning, speaking with the maintenance man at the elderly housing complex where she lived, she burst into tears for no apparent reason. She went to see her doctor, who told her that she was suffering from stress and prescribed some tranquilizers.
As fragile as Coulsey felt, she was nonetheless stubborn in the jury room. She announced one morning that she intended to go through the evidence piece by piece until she found proof of dumping on Beatrice’s land between 1968 and 1979. She sat before several large stacks of documents and began examining each page methodically. Fox stared at her for a moment and then broke out in derisive laughter. He left the jury room and went out to the mezzanine, where the lavatories were located.
Linda Kaplan, Jean Coulsey’s strongest ally, watched Fox leave. “He thinks he’s a lawyer,” she said in disgust.
On Friday morning, July 17, the end of the first week of their deliberations, Vogel said it was apparent they were getting nowhere on Beatrice. Coulsey’s search turned up two pieces of evidence showing that chemicals had been dumped on the fifteen acres between 1968 and 1979, but Fox insisted that this did not constitute a “preponderance of the evidence.” Vogel suggested they turn their attention to Grace.
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