Once he was finally dressed and groomed properly, Ben scanned the courtroom gallery. It was jam-packed. Spectators were wedged together on the long-tiered pews like travelers on an overbooked bus. People stood at the back of the room and filtered along the walls. Ben suspected Judge Perry wouldn’t tolerate that for long; surely it violated the fire code.
All in all, he counted more than two hundred people crammed in the relatively tiny gallery. Members of the press and sketch artists occupied most of the first row. Members of the plaintiffs" families took the second, except for Cecily who, as the designated plaintiffs" representative, sat at the table up front with Ben. And directly behind the relatives sat a phalanx of gray-suited Blaylock executives and employees. Most of the people who had been deposed were present, including Turnbull—although Ben noticed that he sat a good distance away from everyone else in the Blaylock camp. Ben knew Turnbull hadn’t been fired, but he was probably receiving a chilly reception from his old pals, just the same.
And some of the people crammed into the courtroom were simply spectators, folks with no connection to the case at all. Some were VIPs or lucky ducks with well-placed friends who’d managed to get them in without waiting in line. It was supposed to be first come first served, but Ben knew that, as a practical matter, connections counted. He also knew Colby had sent in a squadron of young associates at the crack of dawn to hold seats until the Blaylockians arrived. He wanted as many friendly faces in the courtroom as possible.
The Brain was out there, too, the son of a bitch. Keeping an eye on his collateral, Ben supposed. He wondered if he’d driven to the courthouse in Ben’s van. Ben’s former van.
Ben marveled at the high-tech appearance of this far-from-new courtroom. Although federal courts still did not permit trials to be televised, monitors for internal use were everywhere. A huge television screen, six feet by six feet, faced the jury box. It was on wheels so it could be moved as necessary. In this way, exhibits could be shown to the jury as they were discussed. Two smaller television screens appeared at each end of the jury box. All of these monitors, of course, had wires and cables and feeder mechanisms cluttering the courtroom. There were also computer monitors at the judge’s bench, and it looked like Colby’s team had no fewer than three laptops.
Not exactly Clarence Darrow’s courtroom.
Ben stifled a yawn. He had not gotten much sleep last night and, despite the excitement swirling around the courtroom, it was beginning to catch up with him. Even after he left the office, he had a hard time sleeping. Sometime around four he finally drifted off. Good thing he hadn’t gone outside—he might’ve seen the repo man swiping his van.
The old-style steam radiators in the federal courtroom emitted a discernible hum; once you focused on it, it seemed deafening. The spectators had a hum of their own, an expectant buzz, an anticipatory excitement about what would soon begin. Why did people come to watch trials to which they had no connection? Ben wondered, for about the millionth time. Don’t they get enough of this on television? Don’t they have lives of their own? It never made sense to him. But after all the pretrial publicity this case had received, he supposed it was inevitable.
Around nine fifteen, Judge Perry returned to the courtroom. He appeared to have suppressed some of his anger, although Ben knew he had a long way to go before he’d be back in this man’s good graces.
“Good morning, ladies and gentlemen,” the judge said. “The court case set for trial is Elkins et al. versus H. P. Blaylock Industrial Machinery Corporation, case number JP00-065. This case is set as a jury trial. Counsel, is there any reason we should not proceed at this time with jury selection?”
Ben and Colby both rose to their feet, shaking their heads. Ready or not, the trial had begun.
Compared to most of the criminal cases Ben had handled, voir dire in federal civil court was a piece of cake. Voir dire in criminal cases could go on for days in some jurisdictions; voir dire in this case took less than an hour. In the Northern District of Oklahoma, the judges still handled all the questioning of prospective jurors. Lawyers could submit questions in advance, which the judge might or might not read. But at any rate, when the judge was in charge, there would be none of the mostly irrelevant questioning designed to help the lawyers “get to know” the jurors, and none of the questions designed to preview trial theories. If the question didn’t pertain to rooting out potential bias, the judge didn’t read it. As a result, federal voir dire was always more direct—and shorter. Even though it limited his ability to select a favorable jury, Ben had to admit that, objectively speaking, the federal court approach was a lot quicker and probably better.
Judge Perry methodically quizzed the twenty potential jurors he had called to the witness-box. Although he was probably less persistent than a private attorney might’ve been, he didn’t hesitate to follow up when a juror statement revealed any possible bias.
Probably the most interesting moment occurred when the judge asked if any of the jurors had any ties, past or present, with the defendant, H. P. Blaylock. A black woman in the back row, Etta Thompson, raised her hand.
Ben almost salivated. What would it be? he wondered. A disgruntled employee? An angry mother? Even if Colby removed her from the jury, all the others would get to hear her complaint.
“My husband Manfred worked at that company for twenty-four years. Till two years ago.”
“But he doesn’t work there now?” Judge Perry followed up.
“No, sir.”
“May I ask why not?”
Ben rubbed his hands together in anticipation. Fired. Laid off. Industrial accident.
“He’s dead, your honor.”
The judge was taken aback. “Oh—I’m sorry. I didn’t know—”
“Don’t worry, sir. We had twenty-six good years together.”
“Oh.” He paused a few respectful moments. “Well, was there anything about your husband’s work experience that might make it difficult for you to treat the Blaylock corporation just as you would any other defendant?”
“Yes, sir.”
Ben sat up.
“You think you might have some bias?”
“Yes, sir. I do.”
Now we’re back on track, Ben thought. Let "er rip, lady. Give us the dirt.
“Did the corporation treat your husband poorly, ma’am?”
“Oh, no, sir. Far from it. They were a godsend.”
Ben felt his heart thump down to the pit of his stomach.
“They’ve been so fine. So generous. They continued paying us six months after Manny’s heart attack. They paid out his pension immediately, in cash. They even paid all the medical expenses. And they’ve kept his health insurance coverage in place for my children.”
The judge seemed confused. “Well then … why … you said you were biased.”
“I am, sir. I’m biased in Blaylock’s favor. It think it must be the best little company that God ever put on this earth. I just …” She turned her head slightly toward plaintiffs" table. “I just can’t understand why anyone would ever want to hurt those good people.”
Ben felt a throbbing in his temples that didn’t desist. First his car was repo’d, then one of the jurors nominates the defendant for sainthood. This case was already off to a rotten start—and they hadn’t even had opening statements yet.
Judge Perry didn’t see fit to remove any of the jurors for cause—not even Mrs. Thompson, who ultimately swore she could treat all parties fairly despite her undying love for H. P. Blaylock. So Ben had to use his first preemptory to remove her. Colby removed a woman from the front who had a son with cerebral palsy; no doubt he thought she would be too sympathetic to the plaintiffs". Ben then removed a school janitor who had opined that jury awards were “getting out of hand”; Colby removed a woman who felt that “big corporations have too much power.”
Ben hated to remove the janitor; he had two boys of his own about the age of Cecily’s Billy. But he couldn’t afford to leave anyone who might, even if he
managed to win the suit, argue against awarding major damages. Ben didn’t have any illusions; this case wasn’t going to break the record set by Pennzoil v. Texaco, in which the jury awarded plaintiff Pennzoil eleven billion dollars in damages. But he had hoped to keep open the possibility of a significant damages award. He’d better—if he ever hoped to see his van again.
Ben wasn’t sure what to do with his last peremptory. Christina steered him toward a plumpish woman in the center row.
“Why her?” Ben whispered.
Christina shrugged. “I think she’s stingy. And we definitely don’t want stingy.”
“Stingy? How can you tell?”
“I just have a feeling. Look at the way she sits, all bottled up tight. Look at the way she clutches her purse in her lap; she hasn’t let go of it since she came into the courtroom. And look at that dress. Most people dress up for court. If that’s her idea of dressing up, it’s been a good long time since she went shopping.”
Ben wasn’t entirely convinced, but he didn’t have any better ideas. The woman was dismissed. Colby removed another mother, which left them with fourteen people—twelve jurors and two alternates. Ten women and four men, ages ranging from twenty-one to sixty-eight. Twelve white, one black, one Hispanic. One with a college degree, thirteen not. A secretary, a sales clerk, two fast-food restaurant employees, a bookkeeper, a retiree, a hospital nurse, a stay-home mom, a student, a man who owned a body shop, an architect, and two waitresses. A randomly chosen group of average citizens who would be charged with finding the facts in one of the most complex cases Ben had ever encountered, a case where millions of dollars were at stake, a case that would determine culpability for the deaths of eleven innocent children.
The preliminaries were over.
The trial had begun.
Chapter 29
“LADIES AND GENTLEMEN OF the jury,” Ben said. He addressed them squarely, standing directly behind the rail that separated the jurors from the rest of the courtroom. “There’s a little town not twenty miles away from Tulsa called Blackwood. It’s a nice place; I bet most of you have been there at one time or another, or at least have driven through. It has lovely green rolling hills, tall trees, abundant parks. The Arkansas River runs right through the center of town. Main Street is filled with what I’m told are some of the best antique stores in the area. It has homes, families, and schools—one of the best school systems in the state. But it also has something else. It has more than its share … of death.”
Ben spoke quietly, almost intimately, as if he were speaking to them one-on-one on a living room sofa rather than delivering a speech in a crowded courtroom. He didn’t use notes. He didn’t need them. “I represent eleven sets of parents, moms and dads, who live in the Blackwood area. These parents are different in many ways. They are teachers, physical therapists, ambulance drivers, accountants, office clerks, secretaries, post office employees. Some of them went to the same church; some of them had never met before. But they all share one element, one tragic common denominator. They all lost a child between the ages of eight and twelve.”
Ben proceeded to describe some of the leukemia cases, some of the heartaches his clients had endured. If anything, he soft-pedaled the drama; it was still early in the case and he didn’t want to seem as if he was trying to win a verdict on sympathy alone.
“Those of us who have not experienced it are simply incapable of understanding what these good people have been through. There can be nothing worse than losing your own child. Nothing in the world. But the aching is only intensified when it turns out the death was caused by factors that could’ve been prevented, factors that never should have arisen in the first place.”
Ben’s voice acquired a harder edge. He began describing the waste-disposal practices at H. P. Blaylock, how they used TCE and perc, both “identified by the EPA as dangerous carcinogens.” He was careful not to argue—this was opening statement, after all, not closing argument. The attorney was only supposed to preview the evidence that would follow, so he was careful to preface his points with the catchphrase: “The evidence will show …”
“The evidence will show that H. P. Blaylock engaged in practices that systematically contaminated the Blackwood water supply. They lied about it when initially asked, pretending they were having the waste carried off to a federally approved disposal site, but in fact much of the waste was buried underground, in permeable containers, making contamination of the groundwater inevitable. The groundwater seeped into a nearby ravine, which traveled directly to one of Blackwood’s water wells—Well B. The well that serviced the homes of every one of the children who died.”
Ben took a step closer, leaning against the dividing rail. “The defendant will undoubtedly deny all responsibility for their actions, just as they formerly denied they contaminated the water supply by burying waste underground. They will deny they did anything wrong, and furthermore will say that even if they did, it didn’t cause those poor children’s cancer. We will put on evidence demonstrating just the contrary—that a cancer cluster of this magnitude cannot be an accident, that contaminated water will in fact cause leukemia, particularly in vulnerable young growing bodies. But I will suggest, ladies and gentlemen, that this medical testimony will just be rubber stamping what each of you already knows. You don’t need medical evidence to tell you what happened here. Common sense tells you what happened here. Common sense tells you that when an entire neighborhood’s children start dying, the fact that the water supply is loaded with carcinogens is not simply a coincidence. It’s the cause.”
He paused, drawing himself up. He wanted to end on a calm, unemotional note. He knew Colby would accuse him of playing on the jurors" emotions. He didn’t want it to be any truer than necessary.
“You might be wondering, "Do I think the Blaylock company hurt those children on purpose?" No, of course not. They weren’t trying to hurt anyone. They did it because they didn’t care. They did it because it was cheaper than spending money to have the waste hauled away. It wasn’t malice that killed those boys. It was corporate indifference. Well-compensated executives putting profits above lives. That’s what killed my clients" children.”
Ben paused, carefully looking each juror in the eye. “This didn’t have to happen. They knew this was wrong. But they did it anyway.”
After Ben was finished, the gallery, packed as it was, remained silent for a very long time.
Judge Perry broke the silence by calling for a recess, to everyone’s relief. It was almost as if everyone in the gallery released their breath at once, a collective sigh. Gradually people found their way to their feet and shuffled out to the hallway.
Ben noticed the judge was frowning at him; he wondered if His Honor had frowned all the way through his opening. He probably hadn’t liked the part about “common sense.” Perry had already lectured Ben about the necessity of proving causation, and threatened him about the consequences if he didn’t. They both knew it was the weakest part of the plaintiffs" case—which was exactly why Ben had addressed the issue right off the bat.
When the recess ended, it was Colby’s turn to talk to the jury. Although he had the option of reserving his opening until it was time for him to put on the defense case, he of course chose to speak now. He’d have to be crazy to let Ben’s impassioned speech go unrebutted.
Colby didn’t mince words, didn’t beat around the bush. “Counsel for the plaintiff would have you believe that H. P. Blaylock is in the business of murdering children. Well, we’re not. We did not do this. This is not our fault. This is not simply the plea of a defendant being defensive; this is a fact. We did not do this. And more to the point—the plaintiffs are unable to prove that we did.”
Despite his strong words, Colby appeared to be playing it cool. Ben supposed he had been practicing long enough to know that an impassioned plea from an injured party simply has more rhetoric force than an impassioned denial from the accused. Natural sympathies would be with the parents who lost their kids, no matte
r what he did. So he took the Spock approach, played the cool, logical friend bringing reason to those who have been temporarily led astray.
He was also smart enough not to deny the undeniable. “A little bit of what counsel for the plaintiffs has told you is actually true. Blaylock employees—contrary to the procedures established by upper management—did in fact bury some waste underground, in a vacant lot behind the plant. That, however, does not prove that any of the waste spilled onto the ground. If in fact there ever was any spillage—which has yet to be proved—the amounts were so small they couldn’t have contaminated anything. Moreover, there is no proof that anything from the Blaylock lot ever made it to Well B—which is almost half a mile away.”
Colby had a strong, forthright voice, one that made it seem inconceivable that he could speak other than the truth. Ben knew it was that voice that had won Colby so many trials; when he was speaking, even Ben found it hard not to believe him.
“But that isn’t the biggest whopper in the plaintiffs" case. The largest hole in their scheme is where they suggest that these tiny chemicals caused those kids to develop leukemia. That statement is simply absurd. And unprovable. The fact is—no one knows what causes leukemia. Don’t take my word for it. Ask anyone. Every one of you could call up your family doctors tonight and ask them what causes cancer, and every one of them would say the same thing: "No one knows what causes leukemia." That’s the truth of the matter. Regardless of what Mr. Kincaid’s paid professional experts say.”
Colby paused, patting his vest pockets, then removing a pocket watch. He didn’t look at it, but simply fiddled with it, twisted the watch and chain in his hands. It may have seemed strange to the jurors, but Ben knew exactly what he was up to. He was making them wait—drawing out the suspense, making them hang on his every word. It was a great gimmick, although Ben had liked it better when he first saw Gregory Peck do it in To Kill a Mockingbird.
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