Schlichtmann waited patiently by Knox’s pickup truck. Knox turned around every so often to look at Schlichtmann. An hour passed. Schlichtmann remained standing at the truck. At three-thirty, a whistle blew—it was quitting time—and Knox shut down the drilling rig. He came over to his truck, walking past Schlichtmann as if he were not there. “Larry,” began Schlichtmann.
“Get lost,” said Knox. “I already gave you a statement. I don’t want nothing to do with you.”
Crowley and the constable lurked in the background. Schlichtmann had asked the constable not to serve the subpoena unless Knox started to leave. “Wait until I give you the signal,” Schlichtmann had said.
Knox circled his pickup truck and climbed into the driver’s side. Schlichtmann followed him. “I’m warning you, goddamn it,” said Knox, holding up a fist. Schlichtmann took off his glasses but didn’t stop talking. He was willing to get hit if that was the price of getting Knox into Judge Skinner’s courtroom.
A hundred yards away, Crowley told the constable, “You better do it now, I think he’s leaving.” The constable lurched across the field. Schlichtmann saw him coming at a gallop and thought for a moment that he might even draw his gun. Schlichtmann tried to wave the constable off. The constable, breathless, flung the subpoena at Knox. It struck the well driller in the chest and fluttered to the ground. “There!” shouted the constable. “You have been served with a subpoena to appear in U.S. District Court.”
Schlichtmann bent down to pick up the subpoena. He brushed mud from the envelope and extended it in an apologetic manner to Knox. The driller took the envelope and shook it angrily at Schlichtmann. “All right, you asshole, now you’ve really done it.” Knox slammed the door of his truck, turned the ignition, and the truck careened over the soft earth, the big tires spitting mud at Schlichtmann.
Schlichtmann gestured angrily with his arms, a flailing movement, a man fighting demons. And then he stared dumbly at the ground. Crowley came up to him and said softly, “Let’s go, Jan.”
In the car, Schlichtmann sat mute, head tilted against the backrest, eyes vacant. Crowley drove out of the muddy field and onto the paved road. A quarter of a mile away Crowley saw several trucks by the side of the road. Knox was standing by the cab of his truck. Crowley pulled his car over, a hundred feet or more behind Knox. Schlichtmann got out and began walking toward Knox, who stared balefully at him for a moment and then climbed back into his truck. Schlichtmann thought to himself, Please God, don’t let him leave. He repeated this like a mantra.
When he reached Knox’s truck, he put his hands on the door. It was so important to him that he find the words to convince Knox, so important that he not utter the wrong words, the ones that would drive Knox away, that in the end he could find no words at all. Tears formed in his eyes.
Knox regarded him in amazement. “Jesus Christ, you are a persistent bastard,” said the well driller.
Schlichtmann nodded and tried to speak, but his words emerged as a croak.
“Stop that,” said Knox.
The tears flowed down Schlichtmann’s cheeks. He took off his glasses to wipe them away.
Knox sighed hugely and lit a cigarette. “Okay,” he said. “Just tell me where you want me to be.”
5
During the next two months, Judge Skinner heard the testimony of twenty-six witnesses and received into evidence 236 exhibits totaling almost three thousand pages. The misconduct hearings lasted longer than most major trials. True to his word, Larry Knox appeared at the appointed time, dressed in his Sunday best—his blue Elks jacket and a brilliant crimson Red Sox sweater. He acquitted himself well under Facher’s cross-examination. Whatever fears he had of past crimes or misdemeanors emerging in the courtroom proved unfounded. Facher simply had not had enough time to pry for skeletons in Knox’s past.
The driver of the tannery’s Michigan loader, a lanky blond man named William Sorenson, testified that he had spent only one day down on the fifteen acres and that he had removed nothing unusual, just scrap metal and old wood. He had dug a path through some underbrush to clear the way for a monitoring well. He said that he had removed mostly brush, a little bit of soil, no more than three cubic yards, and some trash. The soil had looked nothing like tannery waste, said Sorenson. After Sorenson, the engineer who had ordered the monitoring well installed testified that only miscellaneous trash, scrap iron, and “grub material” had been removed from the property.
Judge Skinner saw little value in any of this testimony, and he chastised Schlichtmann for wasting time. “You got what you were after, somebody removing something from the property,” the judge said. “Whether that was a legitimate activity or some dire conspiracy remains to be seen.”
Schlichtmann tried to call the EPA’s investigator, David Delaney, to the witness stand. Delaney would be able to tell the court that this activity had been suspicious and that the material removed bore a striking resemblance to Sample Z. But the EPA refused, as a matter of policy, to let its employees testify in private civil actions. Judge Skinner could have challenged EPA policy by compelling Delaney’s testimony, but he chose not to.
Schlichtmann entered Delaney’s field notes into evidence. Despite Delaney’s observations—“Both drivers seemed uncomfortable with me being there”—Judge Skinner saw nothing nefarious in any of this. Again he accused Schlichtmann of wasting time. “Delaney was standing right there,” the judge said angrily to Schlichtmann. “That’s a hell of a way to remove evidence, right in front of the policeman.”
During the second week of the hearing Schlichtmann got a call from the newest member of Facher’s team, a forty-three-year-old lawyer named James Quarles. Quarles had been one of “Jerry’s boys” when he first came to Hale and Dorr fifteen years ago, and now he’d been brought up from the Washington office to help Facher handle this case, although Facher still conducted most of the cross-examinations. Quarles was tall, with a large, drooping mustache and tortoiseshell glasses, and he had a pleasant, undemonstrative manner, the demeanor of a reasonable man. Schlichtmann rather liked him.
He and Quarles met at a restaurant, not far from the courthouse. Quarles wanted to talk about settling the case before it went any further. He told Schlichtmann that Facher was in tremendous pain because of this affair. But Facher, he said, wanted to see it through to the end, to vindicate himself. Facher thought that paying anything over fifty thousand dollars was an admission of guilt. Nonetheless, continued Quarles, he was offering to end everything now for a hundred thousand dollars per family, eight hundred thousand in all.
Schlichtmann said he didn’t even have to take that offer to the families. “I can reject it right now.”
“We didn’t do anything wrong,” said Quarles, getting up and putting on his coat. “It’s not our problem. Jack Riley and Mary Ryan may have screwed up, but the judge isn’t going to give you a new trial.”
Quarles dropped a twenty-dollar bill on the table. He’d heard about Schlichtmann’s debts. An IRS agent had come to Hale and Dorr and told Jacobs the government had a lien on any settlement with Schlichtmann.
Schlichtmann refused the money. “All you had was a Diet Coke.” He shoved the bill toward Quarles.
“I insist,” said Quarles, who turned and walked out.
Schlichtmann called Conway and Crowley from the restaurant and told them to come over. When they arrived, Schlichtmann told them what had happened. The twenty-dollar bill still lay on the table. Schlichtmann picked it up and slowly ripped it lengthwise. Then he ripped it again.
Conway’s mouth fell open. “Jesus, Jan, what are you doing?”
Schlichtmann tore the bill into small pieces, a small mound of green on the table before him. “I want nothing to do with his money.”
That evening, back at the office, Conway fixed a fresh pot of coffee and sat on a stool waiting for it to percolate. Peggy was with him, and she listened to his worried thoughts. “We’re going down a real dark road,” Conway told her. “No one is rational, not the
judge, not Facher, not Jan. Maybe I’m not rational. I have a tremendous headache. Witness after witness, and it doesn’t make any difference to Skinner. He says the notion of a conspiracy is absurd. Jan—all he wants to do is fight. This could go on for the rest of our lives. It’s Dante’s ninth circle. Win, lose, appeal, win, lose, appeal.”
Schlichtmann called James Granger, the former tannery maintenance engineer, to the witness stand in the second week of the hearings. Granger was a reluctant witness. He announced to the judge that he would not have come had he known that the subpoena served by Schlichtmann was invalid outside a hundred-mile limit. When Schlichtmann entered the courtroom on the day of Granger’s appearance, he saw Granger sitting beside Mary Ryan in the first row of the gallery. It looked as if she had Granger on a leash. As Schlichtmann walked past, he saw Granger stare malevolently at him. On the witness stand, Granger said that Riley had instructed him over a period of weeks to remove scrap metal and trash from the fifteen acres. During that time, he had uncovered a pile of discolored soil.
“What did the soil look like?” the judge asked Granger.
Granger seemed uncomfortable, but he answered that it looked like tannery sludge, with manure and hair, “like something that sometimes came out of the catch basin.”
Sample Z. Schlichtmann was astonished. Granger had not admitted that in his affidavit.
There wasn’t a lot of it, continued Granger, only enough to fill the bucket of the tannery’s Michigan loader, about three cubic yards. Riley had told him to remove it. Afterward, Granger went back to see if it was all gone. Some clumps remained. In one area, near the new monitoring well, Granger had spread leaves around. “So that it kind of looked like we didn’t dig up anything out of the ordinary.”
“Why were you doing that?” the judge asked.
“What we tried to do is leave the area looking as if it wasn’t really disturbed.”
“Who is ‘we’?”
“I believe,” said Granger, looking embarrassed, “I possibly did it on my own. The main reason, I remember when it was uncovered, Mr. Riley being upset about it. It was almost as if it was my fault we uncovered it.”
Schlichtmann rose for redirect examination. Granger admitted now that there had been more than one pile of the sludgelike material. Schlichtmann had Granger draw on the map of the fifteen acres the areas where he had removed the clumps of this material. Granger drew several large circles, one up in the middle of the fifteen acres where the heaviest contamination of TCE had been found, one down by Riley’s production well, and another by the gate leading on to the property.
Riley returned to the courtroom in early March, three years after first taking the witness stand during trial. Back then, he’d been aggressive and antagonistic, but now he looked sickly, moody, and listless. He paced in the corridor, eyes narrowed and suspicious, mouth tightly compressed. He was in his mid-sixties, suffering from episodes of depression. Schlichtmann called him to the stand and showed him the vial that contained Sample Z. Riley insisted that it was not tannery sludge. He said he did not recall ever telling Granger to remove material of any sort from the fifteen acres. “I don’t remember,” he said, shaking his ponderous head.
Schlichtmann pressed him. “It could have happened?” he asked the tanner.
Riley shrugged. “It could have. It could have not. I don’t remember.”
For an hour and a half that afternoon, Riley answered Schlichtmann’s questions by saying, “I don’t remember.”
When Schlichtmann asked him about the Yankee report, Riley said that he had taken a copy home with him. And then, to Schlichtmann’s astonishment, Riley admitted that he had kept other tannery records at home. “Personal studies I had done with the machines, and some of my own formula books.”
Formula books? Schlichtmann felt the sort of rising excitement he’d felt years ago when Al Love had called him. But he kept his voice steady and his manner deliberate. He asked Riley if the formulas involved chemicals that the tannery had used in making leather.
“Well, yes,” said Riley.
“Where are these formulas now?” asked Schlichtmann.
“Old formulas and everything? I still have some old formulas at home. I always kept the formulas at home. As far back as I can remember.”
“How far back do they go?”
“Oh, I can’t answer that question. Some would be recent, some would be old. Years, probably. They don’t mean anything, the formulas. They are like old recipes.”
Facher stood, distressed at the direction Schlichtmann was going. “I don’t know what the relevance is of ancient formulas,” he told the judge.
“I can see the relevance,” said Skinner.
Riley admitted that he’d given the lawyers his formula books at one time or another. He couldn’t remember when.
Schlichtmann prompted him. “At any time during this litigation?”
“Well, it must have been.”
And hadn’t Riley said at his deposition, and during trial, that all records concerning chemical use had been destroyed in 1979? That he possessed no records—no pieces of paper of any sort—indicating what chemicals the tannery had used in the 1960s and 1970s?
Schlichtmann turned to the judge. “I should have been given those chemical formulas during discovery. I’d like them now.”
Facher denied having them. Mary Ryan, sitting behind Facher in the gallery, stood and admitted that she had “tannery documents coming out of my ears.” She added, “I took the documents and put them in a warehouse. Some are in my office.” In her defense, she claimed that Schlichtmann had never asked for such things during discovery, that Schlichtmann had been “aware of numerous, numerous files that were not searched.”
Schlichtmann turned to the judge again. He asked for permission to search the warehouse.
The judge replied, “You are talking about a warehouse full of documents. You’re suggesting the kind of discovery that’s turning what is supposed to be a prompt hearing into a major trial. I’m calling an end to it.”
With this, Schlichtmann’s composure vanished. “For God’s sake,” he shouted at the judge. “We’re here because information was withheld. And we’ve just heard that more information was withheld. How can you say—”
Skinner interrupted him. “I’m not certain you asked for all that you now say you asked for. No litigant has an obligation to produce or volunteer anything that is not demanded.”
By the time Schlichtmann finished with Riley, he revealed that Riley had committed one “faulty recollection” after another: Riley had lied about never removing anything from the fifteen acres, about never seeing debris of any sort on the land, about destroying all tannery records before 1979, even about the machine that had used tetrachloroethylene. Finally the judge himself, questioning Riley about the machine, said, “That statement you made at trial was not a true statement?”
A hush descended on the courtroom as the judge asked this question. Until now, Riley had repeatedly claimed not to remember when Schlichtmann confronted him with the evidence of his misstatements. But now, Riley hung his massive head and answered the judge forthrightly. “No,” he said, “it was not a true statement.”
From the gallery, Donna Robbins watched Riley’s performance. One might have expected her to exult in Riley’s shame, but she murmured, “Oh, I feel sorry for Riley now.”
Facher knew that Riley had been exposed, but he did not think it a matter of deliberate perjury. “Questions pass Riley like ships in the night,” said Facher during a break in the hearing. Facher would have liked to bring out the fact of Riley’s depression in defense of the tanner’s mental confusion and failures of memory, but Riley had told him, “I don’t want to talk about that.”
When Schlichtmann finally excused Riley, the tanner left the courtroom without saying a word to his lawyers. Facher thought he’d seen a few tears on Riley’s sallow cheeks when Riley had been on the witness stand. Gaining the door of the courtroom, Riley wrapped himself in his
tan overcoat and walked slowly down the corridor to the elevator, a large, shambling man, his shoulders rounded. When the elevator door opened, he entered and sagged against the corner. One of the onlookers from the gallery joined him.
“This isn’t about truth,” Riley said bitterly. “This is about money.” Tears wet his cheeks. He wiped them away with a big fist. He looked at the gallery member. “When will this be over?” he asked.
“Probably another year.”
Riley groaned. “I’ll be dead by then,” he said.
Schlichtmann presented more witnesses—a truck driver from Woburn, and a seventeen-year-old boy who had ridden his motorbike on the fifteen acres—who testified that the tannery had dumped its waste on the land. He called to the witness stand a biochemist from MIT who examined Sample Z and found that it contained animal cells and animal fat and therefore had probably come from the fleshings of hides sent to the tannery. Facher countered with his own expert, the very same soil chemist who had propounded the “soil bug” theory during trial. This expert, Olin Braids, contended that Sample Z consisted of resins and a plasticizer. It was, said Braids, a polymer and therefore certainly not tannery waste.
After all the evidence had been presented, Facher and Jacobs each took the witness stand in his turn. Each swore that he had never possessed the Yankee report before or during the trial. Facher conducted the direct examination of Jacobs, who seemed at first nervous and then irritable at the strange circumstance in which he found himself. Jacobs claimed that he had never even seen the report until Schlichtmann filed the appeal. For his part, Facher appeared at ease when he took the stand. Under oath, he testified that he had lost cases before. “I’ve lost them the way I’ve won others—by the rules,” he said, looking up at the judge. “This case was a hard case, fairly fought, and it was won on the merits.”
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