A Civil Action

by Jonathan Harr

  To Schlichtmann, it was apparent that the appeals court wanted to clean up the allegations of malfeasance without in any way disturbing the verdict. The long-standing principle of res judicata—that a matter once decided in a court of law remains decided—held sway, even if that decision flew in the face of reality. First the EPA, and now, this very month, the United States Geological Survey, had issued reports saying the fifteen acres had contaminated the well field. But that would make no difference in the eyes of the law.

  Schlichtmann didn’t sleep that night. The next morning at the Denver airport, he went into a bar and ordered a double whisky. He felt so tired and depressed that he lay his head on the bar. The bartender, seeing this, came back and took the drink away before Schlichtmann even took a sip. “I think you’ve had enough,” the bartender said. “I’m cutting you off.”

  Judge Skinner summoned the lawyers to his chambers for a scheduling conference one week after the appeals court ruling. The judge announced that he would deal with this issue summarily, just as he had done seven years ago with the very first proceeding in this case, the Rule 11 hearing against Schlichtmann. He would make the inquiry of Facher and Ryan that the Court of Appeals had instructed him to make, nothing more. It should take less than a day.

  Schlichtmann protested. He wanted a more detailed hearing, with sworn witnesses. Was there just the Yankee report? Or was there more? If there was more, then the Court of Appeals might conclude that the entire trial had been infected with misconduct. The court, after all, had sent the matter back for an “aggressive” inquiry.

  “You can be as aggressive as you want,” the judge told Schlichtmann. “But I’m not going to turn this into another trial. I will exercise quite stringent control over the shape of the hearing.”

  Back at the office, Schlichtmann called Nesson, who was in Florida for a conference and had not been able to attend the meeting.

  “He’s going to fuck me,” Schlichtmann told Nesson. “Facher talked and the judge finished his sentences for him. He said, ‘That’s right,’ every time Facher opened his mouth. I was respectful, I was polite, I was calm, I was firm. He’s going to fuck me no matter what I do. He’s evil.”

  “You’re being juvenile,” said Nesson.

  “Maybe so, but I can see what’s happening in front of me.”

  Schlichtmann hung up the phone. Gordon, Phillips, and Conway were in his office. Schlichtmann looked at them. “Skinner’s part of it,” he said.

  “Part of what?” asked Phillips.

  “The conspiracy.”

  There was plenty to suggest that the judge had lost patience with Schlichtmann, but no evidence at all of a conspiracy. Phillips looked curiously at Schlichtmann, the sort of look a doctor might give a patient who had suddenly turned delusional. “Why do you look at this as a conspiracy?” he asked.

  “This is very serious,” said Schlichtmann. “We’re in a lot of trouble. You don’t understand what’s going on here. This is a struggle to the death. I won’t give up and they won’t do the right thing.”

  Conway sat on the couch, bent over, his tie undone, his socks fallen around his ankles. He picked up a rubber band and studied it intently. He recalled the day seven years ago when he’d begged Schlichtmann not to take the Woburn case. It was a black hole, he’d told Schlichtmann then. It’ll never end. Conway looked as if he was about to cry. “What are we going to do?” he asked aloud.

  Schlichtmann looked at him and shook his head sadly. “I’m sorry, Kevin. I keep dragging you down into this, but I can’t help it.”

  Schlichtmann paced around the office for half an hour. He was in turmoil, but he hadn’t entirely lost his powers of rational thought. He could let Judge Skinner conduct the hearing in the way the judge wanted and simply suffer through it, and then Woburn would finally come to an end. Or he could try to change the course of the hearing. But how? He stopped in front of Peggy’s desk and slammed his fist down. “Fuck it,” he said. “I’ll do it myself. I’ll go into the field and find out what they’re hiding.”

  “Into the field?” said Gordon. “You don’t even have a car.”

  So it was Conway who went with him into the field, acting as Schlichtmann’s chauffeur. In the drilling logs of the Yankee report, Schlichtmann had found the name of the well driller, one Lawrence Knox. By Saturday evening he had traced Knox to the home of his ex-wife in Saugus, a grimy industrial town north of Boston. While Conway waited in the car, the ex-wife stood in the doorway of her house and told Schlichtmann that Knox had gone to the Elks Club Christmas party. They drove to the Elks Club, where Schlichtmann wandered through a throng of drunken, dancing revelers. Children played among the feet of the reeling adults. A dozen or more Santa Clauses, all drunk, cavorted among the dancers. It seemed to Schlichtmann as if he had entered a Fellini movie. He had no idea what Knox looked like, so he stopped everyone he encountered and ask for Knox. Yes, Butch Knox is around, people told him. They’d just seen him. Schlichtmann left his card. “A lawyer? Is Butch in trouble?” people would say. “No, no, I need his help,” explained Schlichtmann.

  He finally found Knox standing at the bar downstairs. Knox had a face that was ruddy and scarred, a sharp beak of a nose, narrow flinty eyes, thin lips. He wore a pair of baggy brown slacks and a blue rayon Elks jacket as big as a tent. He was a man of average height but monumental girth. He regarded Schlichtmann with instant distrust. “Everybody thinks the sheriff is after me because of you,” Knox said. “You’re embarrassing me among my friends.”

  Schlichtmann noticed that Knox was missing a front tooth, a dangerous sign perhaps. He tried to explain that he wanted to know about a job Knox had some years ago.

  “A lawsuit? I don’t get involved in these things,” said Knox, turning to walk away.

  “Please,” said Schlichtmann. “I just want to talk to you. Just hear me out for a few minutes.”

  Knox paused. He listened to Schlichtmann. After a while, he finally relented. He agreed to talk to Schlichtmann tomorrow afternoon, here at the Elks Club bar.

  The next day Knox—“Butch,” his friends called him—told Schlichtmann that Yankee Engineering had indeed hired him to drill wells on the tannery property. He’d been drilling wells for twenty-five years, at the FBI building in Washington, D.C., at Lake Placid for the Olympics. “I’ve done just about the entire East Coast.” At the tannery job, he’d just finished drilling one of the wells and was killing time, having a smoke, standing at the edge of the tannery property and looking across the Aberjona marsh, when his attention had been drawn by the sound of machinery operating down there. Looking down the slope to the fifteen acres, Knox had seen a backhoe moving earth, placing soil and debris into a one-ton dump truck. Over the next several days, maybe as long as a week, this operation had continued. Knox had recognized the workers as men from the tannery, but he knew none of their names. When the truck was filled, the workers had covered it with a canvas top and driven off the fifteen acres. Where they’d gone, Knox didn’t know.

  Schlichtmann asked Knox what the soil had looked like. Was it normal topsoil?

  No, said Knox. He knew soil. It was part of his job to classify the soil characteristics of every well he dug. This had been dark, black, loose material, sort of like peat. “It was the same stuff I was hitting up on the tannery.”

  My God, thought Schlichtmann. It sounded exactly like Sample Z, Drobinski’s contaminated tannery waste. Would Knox write an affidavit attesting to this? Schlichtmann asked.

  Knox was reluctant. He didn’t want any trouble coming out of this. He didn’t like lawyers or courtrooms. He stayed as far from them as he could.

  Schlichtmann assured him that all he needed was the affidavit. It would go no further than that. Knox reluctantly agreed.

  Back in the car, Schlichtmann told Conway, “We’ve opened the box and the worms are starting to crawl out. This isn’t just hiding evidence, this is destroying evidence.”

  • • •

  Schlichtmann began tryin
g to find former tannery workers in Woburn who might know about the cleanup operation. He looked especially for those who had worked in the maintenance department. His experience with Grace told him that it was the maintenance workers who usually knew about cleaning up contamination. He called the home of a former tannery maintenance employee named William Marcus. A woman answered the phone. Schlichtmann introduced himself and began explaining who he was. The woman interrupted him. “I know who you are,” she said. “Come over and speak to my husband.”

  William Marcus had been let go by the tannery after thirty-eight years of work, with no pension. He also happened to be dying from a rare form of lymphoma. His wife had pinned several newspaper articles, one with a picture of Schlichtmann, on the refrigerator door. Marcus knew about the Yankee project, he told Schlichtmann, but he didn’t remember anybody removing soil or tannery waste from the fifteen acres. Schlichtmann should speak to James Granger, the former plant engineer in charge of maintenance at the tannery. Granger had moved up to Vermont a couple of years back and bought a farm.

  Schlichtmann traced Granger in Middletown Springs, Vermont, population 605. He phoned Granger, who seemed hesitant to speak, although Granger did admit that he recalled clearly the time in 1983 when Yankee Engineering came to the tannery and drilled several test wells. Jack Riley had introduced him to the young woman—she had striking red hair—who was head of the project and had told Granger to help her out if she needed anything.

  Did Granger know anything about removing soil and debris from the fifteen acres? asked Schlichtmann.

  There was a long pause. Finally Granger said, “Yeah, I know about it.”

  The next morning, December 29, Schlichtmann flew up to Rutland, Vermont, with Crowley. Crowley rented a car and they drove out to Middletown Springs, stopping in town to pick up a notary public. Granger opened his front door, but he wouldn’t let Schlichtmann in. A large dog snarled at the crack of the door. “Lawyers!” said Granger. “You’ll twist my words.”

  “I’m begging you,” said Schlichtmann. “Two minutes of your time. Just two minutes.”

  “Let me talk to my wife,” said Granger, shutting the door. Schlichtmann could hear a woman’s angry voice. Granger opened the door again. “I don’t have to talk to you, do I?”

  “No,” admitted Schlichtmann, “you don’t have to.”

  “I could tell you to get off my property, right?”

  “Yes.”

  Granger nodded, as if this answer confirmed his own beliefs. Then he opened the door and let Schlichtmann and the notary public in.

  Two hours later, Schlichtmann left with Granger’s affidavit, which read in part:

  In the Fall of 1983, I was told by Mr. J. J. Riley to remove material from the property then known as the Wildwood land. Prior to the removal activity taking place, Mr. J. J. Riley walked with me on the property and pointed out various materials that were to be removed. I would then arrange for their removal and Mr. Riley would inspect and order me to remove additional material. This activity may have lasted a week or more. During this removal activity, we made use of the tannery’s Michigan loader. Mr. Riley made it clear to me that this activity was to be done secretly before the EPA came onto the property for the pump test. We did remove material from the property as directed by Mr. Riley and it was done, to my knowledge, without the EPA knowing about it. I remember during this period the discovery of some material making Mr. Riley very upset. I do not know where this material came from.

  Had it been Sample Z? wondered Schlichtmann. If so, why hadn’t Granger recognized it as tannery waste? After all, Granger had worked at the tannery for almost twenty years. But it had to have been Sample Z material. What else but tannery waste would have upset Riley so much?

  Schlichtmann and Crowley spent the night at a hotel in Rutland, waiting for the morning plane to Boston. Schlichtmann would not let the affidavit out of his hands. Like a boy with a birthday present, he took the affidavit to bed with him, placing it near his pillow, turning on the light every so often to read it again.

  At the office the next day, Schlichtmann went over the transcripts of Riley’s testimony during trial. He knew the testimony almost verbatim, but he wanted to see it in black and white, on the printed page. He found what he was looking for on the twenty-second day of trial:

  FACHER: Now, to your knowledge, was there any sludge of any kind ever deposited on the fifteen acres?

  RILEY: I’ve told you.

  Q: Just tell us again.

  A: No. Never. Never in my knowledge. Absolutely never.

  Q: You didn’t remove anything from that property?

  A: No.

  Q: Why was that, sir?

  A: Our lawyers advised us to leave it alone, that it was under investigation.

  Schlichtmann laughed in delight. “There’s no room to wriggle out of that,” he told Conway. “Jesus, these guys are bad to the core. I can’t believe they’re this bad. I think Riley will go to jail for perjury.”

  Schlichtmann believed that he had finally managed to pry open, in one week, a case that had stayed shut to him in spite of years of work and millions of dollars. If he’d had this information at trial, he declared, he would have won. Conway agreed, and Phillips acknowledged that Schlichtmann’s claims of conspiracy no longer looked like mad ravings.

  Gordon called the EPA and explained to the project manager of the Woburn site what Schlichtmann had discovered. The project manager, whose name was David Delaney, wasn’t surprised. He told Gordon he’d seen the removal operation himself one morning in the fall of 1983. He had taken notes, which he offered to show Gordon.

  Gordon departed immediately for Delaney’s office. He returned twenty minutes later with a photocopy of Delaney’s field notes.

  Schlichtmann read that on the morning of September 9, 1983, Delaney had seen a red truck carrying a load of “fill” leaving the fifteen acres. “Truck returned while I was talking with the loader operator less than 10 min. after its departure,” Delaney had written. “Loader operator indicated they would be picking up some misc. trash and leave Shortly.… Curious about need to pick up trash when it appears to have been scattered everywhere for such a long time.… Fill pile contained artificial materials scraped from nearby. This pile contained a brown material. This pile now gone—some residual brown material remains.”

  “My God,” cried Schlichtmann. “Sample Z! Even the EPA saw Riley removing his shit from the fifteen acres!”

  Delaney’s field notes concluded with an observation: “Subjective: Trash pickup seemed token. Both drivers seemed uncomfortable with me being there.”

  Schlichtmann sent the affidavits and Delaney’s field notes to Judge Skinner, along with a motion to broaden the scope of the inquiry. He sent them in camera, for the judge’s eyes only. “Premature disclosure,” Schlichtmann wrote to the judge, “may impede further inquiry.” He feared, in other words, that Facher might get to Knox or Granger.

  The judge rejected the motion that same day with an angry note, written in his own hand across the top of Schlichtmann’s motion: “Denied. I will not consider in camera affidavits. The affidavits and plaintiffs’ further submission regarding the scope of the inquiry are to be returned forthwith to plaintiffs’ counsel.”

  Skinner hadn’t even looked at the material. Schlichtmann tried again the next morning, filing a Notice to the Court that he had obtained eyewitness testimony of misconduct and destruction of evidence. In light of the Court of Appeals’ order for an “aggressive” hearing, he felt compelled to present this testimony.

  This time Judge Skinner’s reply was of a much different sort. The judge ordered full discovery, complete with depositions. He would hold hearings every Tuesday and Thursday afternoon for as long as necessary, even through next summer, to bring this matter to a close. He expected live witnesses and cross-examination. He would accept no affidavits.

  Schlichtmann tried to reach Larry Knox, hoping to persuade the well driller to come to court. He called Knox
five days in a row, six or seven times a day, leaving messages. Knox never returned a single call. On the Monday morning before the hearings were scheduled to begin, Schlichtmann awoke at six o’clock and, lying in bed, he called Knox in northern Massachusetts, near the New Hampshire border, where Knox was now working. On the third call, Knox finally came to the phone. Schlichtmann pleaded with the well driller. “Listen, Larry, this is so important. You’re the one person who can tell the truth, who can make the system work.… Why won’t you do this, Larry? Did someone from the other side get in touch with you …? No, no, that won’t happen. It’s nothing about your past, it’s just limited to what you saw. It’ll be as painless and quick as I can make it.… Is there something else, Larry? Something you’re not telling me? Larry, please, please … Larry?”

  Knox had hung up. Schlichtmann immediately called back. “Larry, please, I just want—Larry, don’t hang up—”

  Schlichtmann got out of bed, screaming oaths.

  In the office, he prepared a subpoena for Knox and called a constable to serve it. The constable came to the office wearing a tweed sports coat and carrying a large revolver on his hip. Schlichtmann was loath to subpoena Knox, but it seemed he had no alternative. He and Crowley drove up to the site where Knox was working, near the New Hampshire border, with the constable following behind. It was late in January but the day was unseasonably warm. They found Knox in a muddy field where a new interstate highway was being built. Schlichtmann walked across the field, mud caking around his two-hundred-dollar Bally shoes, spattering the trousers of his suit. He saw Knox, back turned to him, at work on a big drilling rig. Knox wore a torn flannel shirt and a pair of mud-splattered trousers supported so low around his midriff by a single suspender that the crack of his buttocks showed. The drilling rig made a terrific din, and Knox apparently had not heard Schlichtmann approach. Schlichtmann edged around until Knox saw him. He nodded deferentially and smiled at the well driller. He couldn’t hear what Knox said over the noise of the drilling rig, but he could see Knox’s lips form the words, “Oh shit.”