by Philip Meyer
Spence comments forcefully to the jurors in the first person, marking that this preliminary piece of his argument is near completion and that he will finally be moving on to the next stage in his story structure. He is now a moral commentator and guide for the jury upon what he has presented so far:
I couldn’t get over it—I couldn’t sleep—I couldn’t believe what I had heard. I don’t know how it affected you. Maybe you get so numb after a while—I guess people just stand and say, “exposure, exposure, exposure, exposure, exposure—cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer,” until you don’t hear it anymore. Maybe that is what happens to us. I tell you, if it is throbbing in your breast—if cancer is eating at your guts, or it’s eating at your lungs, or it’s gnawing away at your gonads, and you’re losing your life, and your manhood, and your womanhood, and your child, or your children, it then has meaning—they are not just words. You multiply it by hundreds of workers, and thousands of workers, that is why this case is the most important case, maybe, in the history of man. That is why I’m so glad you’re on this jury, and that we are a part of this thing together.44
G. The Arrival of the Prophet
Finally, the heroine Silkwood is cast back onstage. “How does this all tie in with Karen Silkwood?” Spence asks.45 After yet another digression, or zigzag, back to his legal theory of damages, “if the lion gets away, they have to pay,” Spence reintroduces the protagonist Karen Silkwood, characterized as a moral and religious person, a union organizer, deeply concerned about her fellow workers, who has been silenced and slandered by Kerr-McGee at trial. As with his initial setup, Spence is extremely patient and deliberate in developing Silkwood’s character as a heroic protagonist, in opposition to the image of Silkwood presented by defendant’s witnesses. Spence goes far back in time and begins his depiction of Silkwood as a child:
Who is Karen Silkwood? Who was she? Well, it’s a fear that sometimes the whole truth doesn’t get to you. What would have happened in your mind about Karen Silkwood if all you ever heard was [Kerr-McGee supervisor] Longaker, who was full of his own vindictiveness against her? You would have believed, by his statements: “Karen Silkwood was [an] uncouth, moody, unreliable, vindictive, sloppy woman, a miserable hate monger, and tried to get even with the company by intentionally contaminating herself—that is what she was, she was an unmitigated moody bitch,” to put it plainly. Is that who she really was? You know yourself, and you know your friends, and you know me by where we come from. She was a happy child, a good child, she was correctly reared by the church, and she had her life in the church, and she loved church, and she was a scholarship student, and she was a chemistry major. She was bright, she could understand. But, more than anything else, she cared. At that corporation plant there was somebody who cared, and it was Karen Silkwood. Somebody who cared a lot about others.46
Here, Spence resurrects Karen Silkwood and brings her actual voice into the courtroom—through edited audiotape segments—so that the jury can hear her and put an identity to answer the question of who she was (whose version of Silkwood is to be believed). These excerpts are parallel (almost identical) in length to the excerpts from the various witnesses’ testimony that Spence previously quoted to the jury. Each is a parallel yet elliptical piece of an organized ensemble or arrangement of voices of the community, with Silkwood now placed at the center. At the end of each edited taped excerpt, Spence repeats her final phrase in her own voice for emphasis, providing a final rhythmic “beat” before moving on. These pieces are carefully arranged, akin to a tightly ordered sequence of building-block scenes in the storyboard constructed for a movie.
[Spence] You know, I got this here so that you could hear her voice once more. This is the voice when she was talking to [union representative] Steve Wodka. She never knew it would be played in a courtroom with her bones rotting in the grave. But her voice is still quite alive. Now you judge for yourself who Karen was. [Reporter’s note: The following portion of a cassette, Plaintiff’s Exhibit 31, played in open court.]
Karen Silkwood [her voice]
And, I’ve got one here that we’re still passing all welds no matter what the pictures look like. We either grind down too far—and I’ve got a weld I would love for you to see just how far they ground it down till we lost the weld trying to get rid of the voids and inclusions and the cracks. And, I kept it.
[Spence repeats] “And I kept it.”47
Spence similarly frames other taped excerpts:
[Spence] And I had Wally get this other part so that you could hear it. [Reporter’s note: The following portion of a cassette, Plaintiff’s Exhibit 31, played in open court.]
Karen Silkwood [her voice]
Ah, in the laboratory we’ve got eighteen- and nineteen-year-old boys, you know, twenty and twenty-one, I mean, and they didn’t have the schooling so they don’t understand what radiation is. They don’t understand, Steve, they don’t understand.
[Spence repeats] They don’t understand, Steve, they don’t understand.48
And then, Spence answers his own rhetorical question as to who he thinks Silkwood is, identifying her as “a prophet”:
Who was she? I say she was a prophet, an ordinary woman who cared, and could understand, doesn’t have to be anything other than an ordinary woman who cared and understood in order to be a prophet. I don’t mean that she’s anything, you know, biblical—I mean, she was an ordinary person who cared, and she prophesied it this way: “If there is something going on”—this was an actual quote—“If there is something going on, we’re going to be susceptible to cancer, and we are not going to know about it for years.” She says this to you, ladies and gentlemen: “Something has to be done.”49
H. “The Confrontation”: The Conflict Intensifies
From this point, Spence develops the melodramatic conflict and confrontation between Silkwood and the forces of antagonism posed by Kerr-McGee. Spence contrasts the testimony of Kerr-McGee’s witnesses against Silkwood’s own voice. Spence begins to intimate what really happened to Silkwood to counter the defendant’s story (pointing the “long, white, bony finger” of blame)50 that Silkwood intentionally smuggled plutonium out of the plant, poisoning herself to take revenge on the company, effectively committing suicide (although there is scant evidence to back up this theory). Spence’s more likely counterstory implicates a dark conspiracy by Kerr-McGee to rid themselves of the union organizer, Silkwood, who has collected evidence of wrongdoing on the part of the corporation (including, perhaps, doctoring images of fuel rods shipped to a breeder reactor in Hanford, Washington).
Spence paints his villainous characters with vivid brushstrokes, usually recalling witnesses with a description of a single detail and then connecting this physicality to the next depiction of villainy. Here, in a sequence, Spence emphasizes how the defendant’s evil minions (including Morgan Moore, Silkwood’s supervisor at Kerr-McGee and Kerr-McGee’s attorney, Mr. Paul) point the “bony finger” of blame at Silkwood: “What did [Kerr-McGee supervisor] Morgan Moore do? How does he fit in the picture? He accused her from the beginning—pointed his finger, didn’t have any evidence then—and five years later in this courtroom was still willing to point his finger, his long, white, bony finger at her. It is easy to blame.”51 Spence then connects this to how Mr. Paul, defendant’s attorney, attempted to put his fingers in the pocket of his coat during his opening statement, intimating to the jury that Silkwood had secreted the plutonium into her pocket, smuggled the plutonium out of the Kerr-McGee plant, and spiked her own urine samples; her apparent motive was to take revenge on the corporation:
Mr. Paul, you remember him walking up to you in the opening statement and telling you how he blamed Karen Silkwood? He didn’t have any more evidence then than he has now. He said first access—first access—you remember he said about her “she had access to it, to her apartment.” “Who could get into her apartment?” “Well, she coul
d get into her apartment.” The next point is an important one—I’m sure no one of you has wondered about it—“the opportunity to remove small quantities of plutonium from the plant.” Then he did this business with his pocket, trying to get your mind ready to blame her and to join the “company line.” … [A]nd even you remember this business about how he really tried to explain to you that “she did it intentionally to herself.”52
And then it is back to Morgan Moore, and his “long, white, bony finger” of blame that points to the “only defense they have … the mud springs.”53
Morgan Moore says: “All I have is suspicions. I can’t prove a thing.” … Now, I think it is shameful to point the finger in accusation, and know, as Mr. McGee knew clear back in 1975: “It is not likely that the source of her contamination will ever be known.” He knew that. The AEC had come in and never came to any such conclusion. They investigated it. Morgan Moore said, “All there are are suspicions.”54
[I]t is the only defense they have, and they hope to drag you into the mud springs.55
While the defendant “make[s] reckless accusations and destroy[s] and desecrate[s] the good name of a decent, honorable, person,”56 these are not actions that fit the character of a heroic protagonist; her motivations were to protect the workers at the plant, not to poison herself and endanger others by smuggling plutonium out of the plant:
Her mother said she was crying—she was nervous, something was wrong—she knew something was wrong: “She wouldn’t tell me what was wrong. She was afraid of something at the plant. She was contaminated—she said she thought she was going to die. She wanted to come home. She wanted to get away from it, but there was something wrong.”57
Likewise, Silkwood’s sister recalls that not only is Silkwood profoundly upset about her contamination but that she has knowledge about wrongdoings at the plant and must be careful:
Her sister said: “There is something wrong. Karen wouldn’t tell me over the phone. She wanted me to come so I could talk to her. She was afraid to talk to me on the phone. There was something that she knew besides the fact that she was contaminated.”58
Well, the key question is: “Did she know too much?” “Who contaminated her?” “Did she know too much?” “How much did she know?” She knew enough to bring this whole mess to an end—the whole Kerr-McGee plant to an end.59
The transition to the final section of the argument is again marked by the use of rhetorical questions. The answers are all the same: “she knew enough to bring this whole mess to an end.” Spence does not provide the full answer here; he saves this for his rebuttal closing argument. At that time, his “conspiracy” theory is unmistakable, providing the countermotive for the villainous and evil Kerr-McGee, the devouring monster whose lust for profits cannot be sated, to finally rise up from beneath the mud springs, causing Silkwood’s death because she knew too much. Spence makes this argument by intimation, walking a careful tightrope of evidence, never explicitly accusing Kerr-McGee of authorizing, allowing, or encouraging Silkwood’s death; he leaves this for the jury to surmise in deliberations.
Although Spence doesn’t pull the pieces together, he leaves the jury to ponder the questions during the defendant’s closing argument. Perhaps he chooses this strategy to provide the big ending and dramatic closure to his portion of the tale later. Perhaps his strategy is not to fully play his narrative hand: the defendant will not have an opportunity to respond to Spence’s rebuttal argument and cannot then accuse Spence of doing precisely the same thing as Spence now accuses the defendant—that is, of Spence then placing the blame directly on Kerr-McGee with speculation and innuendo.
Nevertheless, Spence systematically identifies the evidence from which the jury might construct this counterstory: Silkwood’s reports of doctored defective fuel rods; Kerr-McGee’s desperation to obtain the reports that Silkwood planned to turn over to a reporter from The New York Times; the search for the never-found documents; forty pounds of plutonium missing from the plant and still unaccounted for; and Kerr-McGee’s taking everything in Silkwood’s residence “down to the Durkee’s dressing”60 and burying it. Spence does not connect the narrative dots.
Still, Spence can’t resist observing, “[t]he cause of [Silkwood’s] death isn’t an issue, but fifteen minutes after she left” a nighttime union meeting for a meeting with the investigative reporter from The New York Times, allegedly carrying evidence of Kerr-McGee’s nefarious practices, “she was dead.”61 Although the direct cause of Silkwood’s death in the car accident is not an issue in the trial, it is potentially important to the narrative logic of Spence’s counterstory. The narrative subtext is unmistakable: Kerr-McGee clearly had a motive to do whatever was necessary to stop Silkwood. This certainly provides a stronger and more satisfying story logic than Kerr-McGee’s defensive speculations that Silkwood poisoned herself to discredit Kerr-McGee. (“Did she know too much? … She knew enough to bring this whole mess to an end.”)62
I. Rebuttal Argument: The Final Confrontation
I, during the recess, wondered about whether there is enough in all of us to do what we have to do. I’m afraid—I’m afraid of two things: I’m afraid that you have been worn out, and that there may not be enough left in you to hear, even if you try, and I know you will try, but I know you are exhausted; and I’ve been afraid there isn’t enough left in me, that my mind isn’t clear and sharp now, and that I can’t say the things that I need to say, and yet it has to be done, and it has to be done well.… And it is the last time that anybody will speak for Karen Silkwood. And when your verdict comes out, it will be the last time that anybody will have the opportunity that you have, and so it is important that we have the strength and power to do what we need to do.63
Spence begins his rebuttal with a rhetorical framework identical to the initial argument. First, he reestablishes his dialogic relationship to the jury. Then he reaffirms the historical singularity of the Silkwood case: “You know, history has always at crucial times reached down into the masses and picked ordinary people and gave ordinary people extraordinary power.”64 There are retellings of the legal anecdotes (“the lion gets away”—plaintiff’s theory of strict liability—and “the mud springs”—defendant’s theory of obfuscation and slander). This time, Spence tactically adds an admonition: “I don’t want you jumping in mud springs.… [I]t is unnecessary for you to decide how plutonium escaped from the plant, how it entered her apartment, or how it caused her contamination, since it is a stipulated fact that the plutonium in Karen Silkwood’s apartment was from the defendant’s plant.”65 Although the defendant has the burden of proving how “the lion got away,” and it is unnecessary for the jury to decide how the plutonium escaped from the plant, Spence argues that he has a moral responsibility to respond to the attacks and speculations by the defendant’s attorney, unsupported by the evidence: “Mr. Paul … stood up here and pointed his finger toward Karen Silkwood Mr.… Paul doesn’t have the right to come into a court and say: ‘I think this happened.’ And: ‘I think that happened.’ … And to take a whole series of unrelated events and put them together … and to mislead you.”66 Spence is “angry about that,” that the corporation “shouldn’t hide behind little people.”67 But “[i]f we want to play guess-um—that is, point the finger … I’m willing to play that game. But, when I do it, I want you to know it isn’t right, because I can’t prove that any more than they can prove it.”68 Spence does not explain what “that” is; he leaves it to the imagination and speculation of the jury: “What was the motive for them to do that? ‘She was a troublemaker. She was doing union negotiations. She was on her way—she was gathering documents—every day in that union, everybody in that company, everybody in management knew that.’ Nobody would admit it, but they knew it.”69 Spence contrasts the motive for Silkwood contaminating herself suggested by the defendant (“[S]he was furious. We found out that she wasn’t furious.”)70 with the motive that Spence suggests for the evil Kerr-McGee: “Compare that motive with the motive
of people to stop her. ‘She knew too much.’”71 And then Spence develops his counterstory: who most likely contaminated Silkwood and why.
First, Spence develops Kerr-McGee’s motive to stop Silkwood (“What would she [Silkwood] do had she gotten to The New York Times?”).72 He then connects this with Silkwood’s discovery, and ability to prove, that Kerr-McGee was producing defective and dangerous fuel rods, and her documentation of “leaks,” “spills,” and “incidents.” Silkwood possessed proof that Kerr-McGee was doctoring the x-rays and shipping defective fuel rods. Silkwood was properly fearful for her life because of her knowledge. Spence’s intimation is clear: if the jury chooses to enter “the mud springs” of speculation and blame, it is far more plausible that Kerr-McGee caused Silkwood’s death to prevent her from revealing what she knew to The New York Times’ reporter and bringing this whole mess to an end.
Spence intrudes on the narrative, making his point explicit: “You tell me there isn’t a hide-up, a cover-up.”73 His comments are overcome by emotion, the force of his own words deeply affecting him emotionally, both as a speaker-narrator of the story and as a virtual member of the jury; he is an observer as well as a participant, and a guide for the jurors on the last leg of their own heroic journey, suggesting his answer to one of the three riddles: “I think she was a heroine. I think her name will be one of the names that go down in history, along with the great names of women heroines. I think she will be the woman who speaks through you, and may save this industry and this progress and may save, out of that industry, hundreds of thousands of lives.”74 Spence redelivers the call to the hero:
