A Civil Action

by Jonathan Harr

  Schlichtmann shook his head.

  “You won’t win,” said Jacobs. “And even if you do, you won’t see a judge for three years.”

  “Well, I’m a glutton for punishment,” Schlichtmann said.

  Facher returned to Boston in midsummer. He and Jacobs filed Beatrice’s opposition brief in September. It, too, was a very good brief. After reading it, Nesson smiled wanly and said to Schlichtmann, “Maybe you should make the oral argument.”

  If only, continued Nesson, they’d found some hard evidence linking Riley and the tannery to the TCE on the fifteen acres. “That would have turned the entire case around,” Nesson said. Riley had steadfastly maintained that the tannery had never used TCE and that all the tannery’s records of chemical use had been destroyed years before the lawsuit. Schlichtmann had never believed this, but all his efforts in discovery had yielded nothing to contradict Riley.

  On a Sunday evening at the end of September, a year after the Grace settlement, Schlichtmann left his apartment and went down to the pay phone on Charles Street to call Gordon. Nesson’s comment had gotten him thinking. He asked Gordon to go over to the EPA regional office the next morning and check the files on Beatrice. The EPA had continued to collect information on Beatrice for its own purposes, and perhaps Gordon would turn up something new and interesting. The odds, Schlichtmann knew, were against it, but it still seemed worth a few hours of effort.

  At the EPA regional office the next day, Gordon went through files he’d gone through many times before. He knew them so well that all he had to do was look at them and judge their size and heft to tell if they contained anything new. They were voluminous, and it took Gordon most of the morning to work his way through them. In the end, he found nothing new.

  On his way out, he stopped for a moment at the office of the project director of the east Woburn cleanup. He thanked her for her help, and then he noticed on the shelf behind her a document, perhaps half an inch thick, with a light blue cover, a document he had not seen before.

  • • •

  Schlichtmann was at his desk when Gordon came in and dropped the document in front of him. “Shouldn’t we have gotten this during discovery?” Gordon asked.

  It was a report, sixty pages in length, by a firm named Yankee Environmental Engineering. The first page bore the title “Hydrogeologic Investigation of the John J. Riley Tanning Company.” The study, which Riley himself had commissioned, had been completed in 1983, three years before the start of trial.

  Schlichtmann was astounded. He had never seen this report before, and yet he had asked repeatedly, in interrogatories, in depositions, and by subpoena—on eleven separate occasions, he counted—for all such documents.

  Reading the report with rising excitement, Schlichtmann discovered that the Yankee engineers had drilled six monitoring wells on the tannery property, wells that had remained secret throughout the entire EPA pump test and the trial. The report stated that groundwater from under the tannery flowed to the east, toward the city wells, through very porous soil, exactly as Schlichtmann’s expert, Pinder, had predicted. Tannery waste, described in the report as “a black sludge resembling peat,” had been dumped down the hillside leading to the fifteen acres. To Schlichtmann, this sounded a lot like Sample Z, the contaminated material that Drobinski had found on the fifteen acres. Schlichtmann had claimed at trial that this material was tannery waste. But the judge had not believed it and had told the jury they could not consider it as evidence.

  If he’d had this report, thought Schlichtmann, the trial would have been a different event altogether. The report bolstered the testimony of all his own experts. And who knows what other discoveries the report might have led him to? Certainly Facher must have known about this report. Why had Facher hidden it? And what else had he hidden? Was it possible that there was more?

  Schlichtmann experienced both elation and anger that day. In the legal profession, destroying or suppressing evidence ranks just below stealing money from a client. The very purpose of discovery, wrote Justice William O. Douglas in 1958, “is to make trial less a game of blindman’s buff and more a fair contest, with the basic issues and facts disclosed to the fullest practicable extent.” The Rules of Civil Procedure spelled out the remedy for misconduct of this sort. When wrongful suppression of evidence has prevented a full and fair trial, the rules grant the victimized party a new trial.

  3

  It was as if Schlichtmann had been offered the chance to rewrite the past, to erase the greatest failure of his life and to create in its place a great victory. It was for this reason that Woburn once again would occupy him to the exclusion of all else.

  Schlichtmann would have preferred to take this matter directly to the Court of Appeals, but procedure required that he go back to the trial judge first. So Schlichtmann found himself yet again in Judge Skinner’s courtroom. The judge did not appear pleased to see either the Woburn case or Schlichtmann. Nor did Facher, who glared at Schlichtmann and Nesson as they walked in.

  Despite his bad humor, Facher looked spry. He’d made a lot of money for his law firm on the Woburn case. A year before, just after the verdict, the firm’s accountant had even toasted Schlichtmann at a big victory party at the Ritz-Carlton. Since then, Facher had tried two other cases, one in New Orleans, another in Maine, and won them both. Among the Boston bar, his reputation had never been more lustrous. But now Schlichtmann was besmirching him with accusations of fraud and misconduct that were being reported in Lawyer’s Weekly.

  Standing before the judge, Schlichtmann went through the Yankee report in detail, trying to show why it would have made a difference in the outcome of the trial. He had hoped that the judge would be outraged by its suppression, but he soon realized that he was hoping for too much. Skinner listened patiently, asking questions now and then. Schlichtmann finished by saying, “Certainly Your Honor concedes that the information would have been extremely helpful to our claims.”

  “I think you’re wrong about that,” replied the judge. “At this point, I’m not conceding anything to anybody. Protocol requires that I hear both sides.”

  It was Facher’s turn. Schlichtmann’s presentation was almost too much for the old lawyer to bear. “I’ve been around a few times,” Facher told the judge, “and I’ve never heard anything like the display I’ve heard today for irresponsible and baseless accusations. This is scurrilous.” Facher, quivering with rage and indignation, stood directly behind Schlichtmann. He lifted his hand as if he were about to strike Schlichtmann on the head.

  From the corner of his eye, Nesson saw this movement and leaped up to confront Facher. Judge Skinner jumped up, too, and then so did Schlichtmann. “I will meet him in the hall if he wants to,” sputtered Facher, looking up at Schlichtmann, who towered over him. “Or Charlie, too.”

  “Everybody sit down!” roared the judge. “I’m not going to have this bickering between counsel!”

  The judge asked Facher if he’d known about the Yankee report before trial. Yes, replied Facher, he’d seen the report, but only briefly, for about two minutes just before a deposition. He’d never had actual possession of it. Riley’s personal lawyer, a woman named Mary Ryan, who was here in court that day, had shown it to him. He had thought then that the report was insignificant, and he thought so now—“One piece of inconsequential material among hundreds, maybe thousands, I’m not sure.” As for Schlichtmann’s requests for this report, they had been improperly made. He had lacked the “diligence” and “interest” to go after this document and it was, therefore, his own fault that he had not gotten it.

  Judge Skinner was about to end the proceeding when Nesson stood and reminded him of their request that he ask Facher and Mary Ryan if they knew of any other documents relevant to the lawsuit that they had failed to produce.

  “Thank you very much,” the judge said curtly to Nesson, “but I don’t want to be told how to proceed.”

  “Your Honor,” said Nesson, “you have before you a motion that deals wit
h the integrity of this Court and the discovery process. You have been very quick to get angry with Mr. Schlichtmann and me.”

  “No, I get angry with everybody,” said the judge.

  “No,” replied Nesson, “you have not gotten angry with Mr. Facher. I’m waiting to see if there’s some real concern about the integrity of this process that comes out in your responses to Mr. Facher.”

  This rebuke infuriated the judge. “You have imposed on me consistently. You have been doing it since day one.”

  Again Nesson asked the judge to make the inquiry he had requested.

  “I’m not doing that.”

  “Then before this hearing closes, we ask to call Mary Ryan to the witness stand,” said Nesson.

  “No!”

  “You have not made the inquiry we asked for,” continued Nesson, “and at this point we now ask to call Mary Ryan to the witness stand—”

  “I’m not doing anything more on this hearing!” shouted Skinner, stumbling over his words in his fury. “I’m now calling a criminal case, the name of which escapes me.”

  Schlichtmann rose. “Your Honor—”

  “I’m not listening to you! I’ve heard all from you that I’m going to hear. United States versus whatever-the-name is.”

  Schlichtmann waited anxiously for the judge’s ruling, although the outcome seemed foregone to almost everyone who’d witnessed Judge Skinner’s demeanor during the hearing. Christmas came and went. Schlichtmann lost his condominium on New Year’s Day. The next morning, a bitterly cold day in January, with the snow mounded in great heaps on the Boston sidewalks, Schlichtmann moved into the office. Although not without shelter, he had finally become homeless. He put his Dmitri suits in the reception-room closet, his silk ties and Bally shoes in the closet by the bathroom. He slept on a foldout couch in Crowley’s office. He made herbal tea every night in the kitchen and watched television in the conference room. “It doesn’t bother me living here,” he said. “I’m a man of extremes. It’s the middle ground I can’t stand.”

  Every morning that January, he called Judge Skinner’s clerk to find out if the judge had ruled. He refused to give up hope for a new trial. The facts were too overwhelming, too damning, he kept telling himself. “I think Skinner’s stuck, he doesn’t have any choice in the matter,” Schlichtmann would say. But then he’d check himself with pessimism. “No, it can’t be so. Skinner’ll find a way to fuck me.” He took hope from vaporous rumor. From Kathy Boyer, who was dating a lawyer who played squash with Michael Keating, he heard that Keating believed the judge had no alternative but to grant a new trial. This was triple hearsay based upon uninformed speculation, but it buoyed Schlichtmann. He told everyone he encountered about it. “Isn’t that something? Keating wouldn’t say that offhand. He must have a sense of which way the wind blows.”

  Meanwhile, Schlichtmann did little work on other cases, despite Conway’s pleas. The firm borrowed more money from Uncle Pete. An IRS agent named Welch called Schlichtmann at least once a week. With interest and penalties, his tax debt was growing by 25 percent each year. It was now about half a million dollars.

  Judge Skinner finally issued his ruling on January 22, 1988, nine weeks after the hearing. He found that the Yankee report was, on balance, “more favorable” to Beatrice than not, “or at the most of neutral value.” Its presence in the case would not, therefore, have materially affected the outcome of the trial.

  The judge did agree, however, that Schlichtmann had properly asked for the report. Facher and Mary Ryan should have given it to him. But their “default” (as the judge called it) was merely a “lapse of judgment” and not part of any “deliberate conspiracy,” as Schlichtmann had repeatedly charged. In fact, concluded the judge, Schlichtmann himself deserved part of the blame for not getting the report, for insisting on “rushing” headlong to trial, despite Facher’s pleas for more time. And in the last-minute “discovery frenzy” created by Schlichtmann, it was understandable, said the judge, that “this report may have seemed minor” to Facher.

  At night, lying on the foldout couch in the office, Schlichtmann had terrible fantasies. He was consumed with hatred for Judge Skinner. “I have thoughts of hurting him on a personal level,” he said. He could imagine himself reaching up to the bench where the judge sat in his black robes and grabbing him by the throat, by the wattle of sagging flesh. He imagined the stunned look of surprise in Skinner’s eyes as he throttled him. He didn’t hate Facher. He hated what Facher had done, but he understood why he’d done it. No, it was the judge, presiding over a U.S. District Court, the false and corrupt pretense of justice, that drove Schlichtmann mad with fury. The more he thought about it, the more he suspected that Facher must have some sort of hold over the judge.

  “I’m beginning to think the fix is in,” he told Conway one morning.

  Conway shook his head. He didn’t believe it. He wished Schlichtmann would simply forget about Woburn and get on with some new cases.

  For Schlichtmann, everything now depended on the Court of Appeals. Oral argument was scheduled for July, six months away. He occupied his time by writing a new brief that incorporated the suppression of the Yankee report with the original appeal. He spent several days in the gallery of the Court of Appeals listening in on oral arguments. He went through every opinion the court had issued in the last year. One in particular excited him. “We remind counsel that we do not view favorably any attempt to play fast and loose with our judicial system,” wrote Judge Juan Torruella of the Court of Appeals. “Deceptions, misrepresentations and falsities will not be tolerated.…”

  A panel of three appellate judges, selected by lottery, hears each case. Schlichtmann prayed that Torruella would be on the bench the day the Woburn appeal was heard.

  As July neared, Schlichtmann and Nesson spent hours together plotting strategy at Nesson’s house in Cambridge, sitting outside under the tall trees by the swimming pool. Nesson wanted to make the oral argument to the court and Schlichtmann agreed, figuring that Nesson’s Harvard credentials would give their cause added weight. The prospect excited Nesson. This appeal, he believed, went to the very heart of the judicial system. “I can’t see how they can write an opinion against us,” he told Schlichtmann.

  “Do they have integrity?” asked Schlichtmann.

  “Absolutely,” said Nesson. Then he added, with less certainty, “I think so.”

  4

  Nesson argued before the three judges of the United States Court of Appeals (one of whom was indeed Juan Torruella) on July 28, 1988, two years to the day after the Woburn verdict.

  Waiting for the court’s ruling, Schlichtmann finally began working on other cases. He had no choice. On his desk was a pile of bills, liens, and judgments, a motion to show cause in small claims court, a capias for his arrest in the matter of an overdue bill from Neiman Marcus. Time passed with agonizing slowness for him. The trees on the Boston Common turned brilliant autumn hues and then lost their leaves. The foreshortened, gray days of approaching winter depressed him. Every time he left the office, even momentarily, he would ask on his return, “Any word?” He thought Nesson’s argument in the Court of Appeals had gone wonderfully well and that Facher had done poorly. But the longer it took the court to rule, the more worried he became.

  “It’s like a gun to my head,” he told Kiley one evening at dinner. “I wish they would just pull the trigger, one way or the other.”

  The Court of Appeals issued its decision on December 7. As it happened, Schlichtmann was two thousand miles away on that day, consulting with a Denver lawyer who sought his advice on a toxic-waste case. Conway faxed him a copy of the court’s ruling. It was fifty-four pages long. It first addressed the initial appeal. Judge Skinner’s post-trial finding that groundwater from the fifteen acres had never reached the city wells was, wrote the court, “both plausible and adequately rooted in the record.” Appeal denied.

  As for the second appeal, on the issue of misconduct, “the record contains clear and convincin
g evidence, overwhelming evidence,” stated the court, that counsel for Beatrice had engaged in misconduct. But misconduct came in many guises. Had it been accidental, a mere oversight? Or deliberate and intentional, a matter of outright fraud? Perhaps the Yankee report would not have affected the outcome of the trial, as Judge Skinner asserted, but “an able litigator builds on the information available from time to time, changing directions as new leads emerge and old ones wither.”

  If, continued the appeals court, Beatrice’s failure to produce the report had been knowing and purposeful, then one had to presume it had been suppressed for good reason, that it might have led Schlichtmann to fruitful discoveries on the tannery property. Judge Skinner had failed to determine the extent of the misconduct, even though Nesson and Schlichtmann had repeatedly asked him to inquire of both Facher and Mary Ryan about other material that might have been withheld. Judge Skinner, the court found, had abused his discretion in this instance, “an error that was compounded when he proceeded to make findings of fact on the very matters which inquiry could reasonably have been expected to illuminate.”

  The Court of Appeals had issued a stern rebuke to Judge Skinner. To remedy the error, the court took the unusual step of sending the case back to Skinner for further “aggressive” inquiry. Once completed, Skinner should report back to the court, which would retain jurisdiction in the matter.

  In his hotel room in Denver, Schlichtmann pounded the wall in fury. He felt trapped. Once again, he was going back into Judge Skinner’s courtroom. The appeals court had given him the very narrowest of openings. They held before him the prospect of winning a new trial on the question of whether the tannery property alone had contaminated the city wells. But at the same time they had affirmed Skinner’s ruling that groundwater from the fifteen acres had not reached the wells, notwithstanding the findings of the EPA. Since the fifteen acres lay between the tannery and the wells, a trial involving only the tannery would be just a charade, a hopeless exercise. Facher would simply file for summary judgment based on the judge’s findings and the jury’s verdict, and he’d almost certainly win.