Balance of Power

by Richard North Patterson

  But the Senate could feel his presence, personified by Vice President Ellen Penn presiding, prepared to cast a tie-breaking vote should the Senate deadlock fifty–fifty. All one hundred senators were in attendance. Their demeanor, reinforced by the morning's headlines, was unusually grim. By the end of the day they would vote on gun immunity and then, with or without it, the Civil Justice Reform Act as a whole. Even had not the vote been so personal to Kilcannon—but more so because it was—each senator knew that this battle was a defining moment for this President and, by implication, for Frank Fasano's ambition to succeed him. At best, Kilcannon hoped to strip gun immunity from the bill. Failing that, he must garner the thirty-four votes against the final bill which—assuming they held—he would need to sustain his expected veto. As to both, Hampton felt far more uncertainty than he liked.

  And so, it appeared, did Fasano. Across the aisle, his expression— though opaque and self-contained—hinted at an intensity which excluded irony or humor. When, before commencing his speech, Hampton accorded the Majority Leader the briefest of nods, Fasano seemed to stare right through him.

  * * *

  "In the last few days," Hampton told his colleagues with a fleeting smile, "we've heard much about trial lawyers, and guns. As it happens, I used to be a trial lawyer, and I own twenty or so guns. Astonishing as it may seem, I happen to be proud of both.

  "Let's take the trial lawyer first. There's been much complaint from my Republican friends about lawyers who accept contingent fees or make 'excessive' requests for punitive damages. I know about these from personal experience, because my biggest case involved both.

  "It began with a couple who, until her death, had been the parents of a five-year-old girl—their only child. They had lost her in the most senseless, the most unanticipated, of ways: she had sat on the drain of a public wading pool, and had her intestines suctioned out."

  His colleagues, Hampton noted to his satisfaction, were hushed. "Her parents," he told them, "had no money. As much as anything, they came to me looking for an explanation for a tragedy which, to them, seemed inexplicable.

  "I conducted some discovery." Pausing, Hampton permitted himself to recall his anger. "The explanation turned out to be simple; the pool company had refused to spend money on a fifty-cent part which would have prevented this child's death. But perhaps the little girl was lucky. It turned out that another victim in another state—a six-year-old boy— would require tube feeding, twelve hours a day, for however long that he might live. All for the lack of a four-bit drain part.

  "When I told the parents about all this, they ordered me to turn down any settlement offer—even the last one, for five million dollars. Their charge to me was simple: expose this company, and make sure— very sure—that they never did this to another child.

  "They never did," Hampton added softly. "Because the jury awarded my clients twenty-five million in punitive damages.

  "My esteemed colleague, Senator Palmer, tells us that not all of life's misfortunes have a remedy. To this extent, I agree: my clients would have happily traded their newfound wealth for the child they adored, or even for the surcease of heartache. But they had the satisfaction of knowing that no one else would ever know that feeling."

  Pausing again, he sought out Palmer, who studied his desk with

  hooded eyes. "As for me," Hampton added in a throwaway tone, "I stand guilty of taking the case on a contingent fee. I profited from that. Perhaps that makes me less noble than the defense lawyers for the pool drain company and its insurer, who profited by the hour, no matter the outcome for their clients.

  "So let's turn to the matter of gun companies, whose lawyers must also surely be tribunes of virtue, and whom Senator Harshman has implored us to protect from predators like me."

  The sardonic comment, so personal in nature, so surprising from a senator whose previous image—at least until the Costello murders—had been one of lawyerly temperance, seemed to startle some of his colleagues. But Jack Slezak, Hampton noted, regarded him with an unimpressed half smile which tempered his own satisfaction.

  "And what," he continued, "is the nature of this protection? Not merely to limit punitive damages—which, I would note, chiefly benefit nonworking women and children who, because they can't project their future earnings, would otherwise get short shrift. Nor even to limit contingent fees, which serve to prevent plaintiffs of modest means from being reduced to penury by lawyers for the giant corporations who are paid by the proponents' chief patrons, hour by hour, to make suing their clients too expensive to bear. For gun companies, even this kind of legislative class warfare against the not-so-privileged is not protection enough. Because unique among all companies, they deserve nothing less than total immunity from suit."

  Hampton's voice filled with indignation. "The Eagle's Claw bullet, it seems, is more sacred than tires which blow up, gas tanks which explode, diet pills that kill—or a pool drain which sucks the life out of a five-yearold girl. Because like the Lexington P-2, it kills not by accident, but by design. No wonder the proponents' only hope is to ban all lawsuits.

  "So much remains for them to do. They've merely gutted the ATF. They've only exempted guns from the laws protecting consumers. They've simply opposed gun laws designed to make us safer." Hampton shook his head in wonder. "The Second Amendment, it seems, is truly a harsh mistress."

  * * *

  Watching C-SPAN, Kerry laughed softly. Lara took his hand.

  At least, Hampton went on, these labors have their compensations. Last year, the Sons of the Second Amendment were the second largest donor to the party of the majority—a fitting reward for such idealism. But merely a down payment, I am sure, on the money which would follow the success of their mission here today.

  "He's going for broke," Kerry murmured to his wife. "No one could ask for more."

  * * *

  Feeling the sting of Hampton's words, Fasano lost all hope that the bitterness of this debate, or the subject of his alliance with the SSA, could in any way be muted. Maintaining his air of calm, he added a note to the text of his response.

  Hampton continued, "It is we who let Lexington sell this gun—and those bullets—without a background check. That is our disgrace. Why add to it now?"

  * * *

  Pausing, Hampton glanced at Cassie Rollins, prim and composed at her desk near the back of the chamber, and then, closer, Vic Coletti. "And yet," Hampton told them, "the worst disgrace of all is near at hand. For this bill would not merely end all future suits, but wipe out all current ones, no matter how close to trial.

  "None of us here are innocents. We know precisely what—and whom—this very special interest provision is aimed at. And we can only marvel at the hypocrisy of its proponents."

  Cassie Rollins, Hampton saw, had fixed him with an unwavering, but unhappy, gaze. Perhaps he would not change her vote—or any vote. But he would know that he had done all he could. "More than unfair," Hampton continued, "it is unconstitutional. And worse."

  * * *

  Watching, Kerry was moved.

  On the screen, the senior senator from Vermont stood straighter, eyes sweeping his silent colleagues. Like millions of Americans, he told them, I value guns designed for sportsmanship, not slaughter. But America has become the world's shooting gallery. God help us if we pour gasoline on the fire of gun violence.

  This body is supposed to save lives. But in the area of guns, we have contributed our bit to the taking of lives. Pausing for a final time, Hampton finished quietly, Truly, there is blood on our hands. It is long past time that we begin to wipe it off.

  Lara felt a constriction in her throat. "It's probably just a phase," she managed to tell her husband. "But I think I'm in love with Chuck."

  "When I call him with our thanks," Kerry answered, "I'll mention that."

  * * *

  As Hampton sat, the gallery burst into applause. Grimly smiling, the Vice President took her time before gaveling it down, and then Frank Fasano rose to answer.<
br />
  "The Chair," Ellen Penn declared, "recognizes the senior senator from Pennsylvania."

  Though outwardly unfazed, Fasano paused to calm his nerves and collect his thoughts. His role in this drama was difficult: to tamp down the emotion aroused by the Minority Leader, and to provide his colleagues with a rationale—principled and reasoned—which would make them other than instruments of the SSA.

  After a brief obeisance to Vice President Penn, the usual flurry of courtesies, Fasano promptly set about his task. "My distinguished friend, the senior senator from Vermont, need not have told us that he once was a trial lawyer. For he has gifts which would stir a jury, and must surely impress us all. Including a rare ability to infuse his point of view with passion and conviction.

  "But it is, after all, only that—a point of view. There are others. So let us begin by rejecting the easy notion that one point of view is uniquely good, and that another is a matter of cynical self-interest. Because, in candor, it requires great courage for members of this body to oppose with simple reason the tsunami of emotion unleashed by my gifted colleague.

  "But we must."

  With this sudden, emphatic statement, Fasano saw, he had seized the close attention of his colleagues—most particularly Cassie Rollins. "We must," he repeated more quietly. "Because ensuring the quality of our justice system requires more from us than a blind deference to the passions of the moment—however heartfelt those passions may be."

  * * *

  Watching, Kerry tried to detach himself. "He's doing what he has to do," he observed to Lara. "He always does. What I've honestly never known is whether Fasano has a soul."

  "If he did," Lara remarked with quiet bitterness, "wouldn't you know by now?"

  * * *

  "We should first dispel," the Majority Leader continued, "any notion that circumscribing existing lawsuits is any way unusual—let alone unconstitutional."

  Fasano, Hampton thought, was like a watchmaker, meticulously constructing his argument piece by piece. And "circumscribe" was a particularly artful synonym for "erase."

  "Changes in the law," Fasano continued in this tutorial manner, "always affect existing rights. The courts acknowledge that. Thus when the state of Louisiana passed an immunity provision very similar to this, the United States Supreme Court declined to entertain a constitutional challenge.

  "If there is any 'retroactive' abuse of law, it is the effort to impose a hitherto nonexistent liability on the manufacturers of a legal product— guns—for their criminal misuse by unknown third parties whose actions they do not control." Fasano spread his hands. "Multiply that effort by fifty states, and what you have is chaos—a legal minefield where the question of liability is a crazy quilt of conflicting outcomes, the iron whims of a thousand courts. All of it the random result of whether a gun is fired in, say, Illinois as opposed to Indiana."

  Watching, Hampton acknowledged Fasano's talents, on this day employed more subtly than his own. Unable to divine the thoughts of Rollins, Coletti or Slezak, Hampton could only wonder whether anything said today—or some other, more hidden, influence—would cause one of them to tip the balance.

  Lara was finding it hard to watch. The purpose of the law, Fasano urged his colleagues, is not simply to decide each case as it comes, but to assure a uniformity—and predictability—of outcomes.

  "Nothing," Lara observed tartly, "could be more uniform—or more predictable—than locking the door of every courtroom in America." But, to her, it was far more visceral than that: she could never again see Senator Fasano without hating him.

  * * *

  Well satisfied with the beginning of his argument, Fasano cut to its core. "This," he said firmly, "is not about a faulty tire or an exploding gas tank. It involves a nondefective—and wholly lawful—product. And as terrible as were the murders ascribed to O. J. Simpson, no one thought to sue the maker of the knife."

  With this, Fasano set about walking the tightrope between a clinical dissection of the law and the tacit implication that Kerry Kilcannon, by distorting it, sought to enhance his own unwarranted power. Fasano trusted that this would serve to keep his votes in place and, perhaps, gain him just one more.

  TWENTY-SEVEN

  Sarah fervently wished that she could watch the Senate vote on gun immunity. But instead, she and Lenihan went before Gardner Bond to demand the right to interrogate George Callister.

  Sarah had hoped this hearing would be public, an opportunity to cite before the press from the depositions of Ben Gehringer, Mike Reiner, and Norman Conn—the better, even at this late hour, to influence the Senate's debate. But Nolan had argued that a public hearing would undermine the judge's order sealing all depositions. To the distress of Lenihan and Sarah, Bond had agreed. And so they gathered around a conference table in Bond's chambers—Bond, Nolan, Fancher, Lenihan, Sarah, and the court's stenographer—to resolve the matter of George Callister.

  As always, Bond was impeccably tailored—a handmade suit, gold cuff links, crisp white breast pocket handkerchief—precise, and imperious. At the moment he was also angry, though they had yet to discuss George Callister.

  "What," he inquired sternly of Nolan, "is the basis for your assertion that plaintiff's counsel are leaking information to the press?"

  "It's not merely an assertion." Nolan shot a look at Lenihan and Sarah. "Last night CNN called me at home. They had received documents from Lexington files produced by a hostile employee, Norman Conn. The documents purport—according to the very unstable Mr. Conn—to contain information damaging to Lexington. We believe they show nothing of the kind. But CNN intends to divulge them to the public, perhaps as early as today."

  Startled, Sarah glanced at Lenihan, whose expression did not change. "I can assure the Court," Nolan concluded with asperity, "that we did not provide them to the media. Nor did the SSA. That leaves Ms. Costello and her lawyers."

  Lenihan appeared unruffled. "I'll try not to take offense at counsel's accusation," he responded. "I'll simply note that it betrays a rather glaring failure of imagination.

  "Neither we nor Lexington control these documents." Briefly, Lenihan smiled. "Until Mr. Conn provided them, Lexington never owned up to their existence—whatever that suggests. As a result, these particular documents are not even subject to the Court's ban regarding those produced in response to a discovery demand. Anyone may have leaked them, and anyone can read them. Including CNN."

  Sarah's amazement became a flash of amusement, followed by several certainties which made her anxious: that Lenihan had leaked the documents; that he had hoped to influence the Senate debate and enhance the settlement value of Mary's case; that he had attempted to skirt Bond's order on the barest of technicalities; and that he would admit to none of this. She could only admire his nerve, even as she feared its consequences—to both of them, and to Mary.

  "Your Honor," Nolan said in a tone hard with indignation, "that statement lends new meaning to the phrase 'contempt of court.' The intent of this Court's order was very clear: to prevent the parties, through selective leaks, to try this case through the media. Yet this morning's New York Times reflects information from the deposition of a witness, Ben Gehringer. And now this."

  "This morning's New York Times," Lenihan snapped, "reflects the federal indictment of the white supremacist who now admits selling the murder weapon to John Bowden at the gun show which, in defiance of all logic, Mr. Nolan intimated that Bowden might not have attended. No doubt that's damaging—if not devastating—to Lexington's defense. It may even be unhelpful to Lexington's efforts to wring immunity out of the United States Senate. But it's beyond the pale to suggest that Ms. Dash or I is responsible for the actions of the U.S. Attorney for the District of Idaho, or that those actions are anything but praiseworthy."

  Disdainfully turning from Lenihan, Nolan fixed his gaze on Bond. "Your Honor," he said more quietly, "everyone knows the identity of the U.S. Attorney's ultimate superior—Ms. Costello's brother-in-law, the President of the United States. A m
an who, whatever his dignity of rank, is also a witness in this case, and subject to this Court's order.

  "What appears to be at work here is a conspiracy, involving plaintiff's counsel and the White House, to evade that order. The leaking of these documents to CNN serves that end. Palpably, they have nothing to do with the U.S. Attorney in Idaho, and everything to do with seizing legal and political advantage by any means at hand."