Tomlinson stuttered, just as Mike reached for the drape. “Oh—you think—oh no—”
Mike whipped his head around. “What? What is it?”
“I think you misunderstand.” He slapped himself on the forehead. “I guess I didn’t make it clear on the phone.”
“You said you found another one of the killer’s victims.”
“True. But it isn’t George Philby.”
Mike’s eyes bugged. “It isn’t?”
“No. The body’s in bad shape—but I’m sure of that. It isn’t him.”
“You mean the killer’s gotten someone else since then?”
“Actually—I think this corpse may predate all of the others.”
Mike had had enough. He pulled back the sheet covering the corpse.
The face was familiar, what was left of it. He’d definitely seen it before. But he couldn’t place it.
“All right, Tomlinson. I admit it. I’m stumped. Who is this poor chump?”
“The distinguished and honorable professor Joseph Canino, civil procedure expert at the TU College of Law.”
Mike’s lips parted. “Of course. The Tiger.”
“The one and the same. Although at the moment, his growl isn’t what it used to be.”
Mike ignored his second’s poor humor. “This is the guy Ben substituted for the day James Fenton showed up with a sawed-off shotgun and took the whole class hostage. We speculated at the time that he might have been looking for Canino. But we never found him.”
“And with good reason. He was pushing up dirt on the other side of town.”
“You think he’s been dead that long?” The gears were whirring inside Mike’s head. “Since the hostage incident?”
“I do. I don’t have anything official from the coroners yet … but look at the signs of decomposition, all over the body. Look at the color of the skin, the protruding skull. Look how the worms and other insects have burrowed into the body.” Mike looked, although he didn’t enjoy it. “He could’ve been here for six months. Or more.”
“James Fenton knew at least one of the killer’s other victims. And now it seems Canino was a member of their little club, too. Whatever the hell it was. The Fishermen of Evil.”
Tomlinson did a doubletake. “What?”
“Never mind. I’m just babbling.” Mike pushed himself to his feet. “I guess I’ll go talk to those two kids. Have their parents been notified?”
“Moms are standing guard nearby. They’re not too happy about this, either.”
“I can imagine. Probably pissed that their kids were out here in the first place. What if they’d gotten lost?”
“They were following a trail,” Tomlinson said. “That’s what they say, anyway. Tracking the dangerous pirates. Following spoor, broken branches, trampled leaves. That sort of thing.”
“They were following a trail—today?”
“So they say.”
“A recent trail?”
Tomlinson’s brows knitted. “I guess.” He pointed. “See for yourself. But …”
Mike walked several paces down the trail. It wasn’t long before he found another place where the soil had been turned—not recently, but turned, just the same. “Did anyone dig in here?”
Tomlinson shrugged. “Well … no. We didn’t have any reason.…”
Mike grabbed a nearby shovel and started digging. Some of the other men at the crime scene gave him a strange look, but no one interfered.
Less than five minutes later, Mike felt the blade of his shovel lock into something soft but unyielding. Something that wasn’t dirt.
After strapping on his plastic gloves, Tomlinson bent over and started pushing away dirt from the surface. Soon the general outlines of a body began to appear.
“The face,” Mike said, staring intently. “Uncover the face.”
With the stain of red dirt, the translucent skin, the pockmarks eaten away by small insects, the face was much changed. But it didn’t matter. Mike had no trouble identifying it.
It was George Philby, the killer’s fifth victim—or sixth, if you counted Professor Canino. The one I could’ve saved, Mike thought silently. But didn’t.
Chapter 38
AFTER TWO MONTHS OF trial, Ben was no longer able to distinguish one day from another. They all seemed to blur together, like a hazy montage from a dull and much-too-long movie. He had grown used to the fuzzy fluorescent lighting that made everyone in the courtroom appear a sickly dull gray color. He was accustomed to seeing mounds of paper piled up on his table, day after day, so high that he couldn’t tell what was what without consulting Christina. He was used to the tacky bankers boxes they used to transport exhibits, the tan London Fog—type overcoats every lawyer seemed to wear. He had stopped noticing the doleful horn of the train passing the courthouse every morning at nine ten. He was no longer aware of sirens speeding by, sonic booms overhead. All were reminders that there was a world outside the courtroom, but that world seemed distant, muted, far far away.
Some of the days had been packed with suspense and excitement, marked by a pain in Ben’s gut or a fear in his spine that kept him functioning with adrenaline-based enthusiasm. But as in any lengthy trial, most days were ordinary, perhaps even dull, riddled with interruptions and procedures and exhibits and all the rigamarole that so infused the modern trial as to insure that it never became too interesting. One day, Ben had noticed one of Colby’s many assistants dozing at counsel table. And he hadn’t been appalled. He had been jealous.
At the conclusion of the evidence, as expected, Colby made yet another Motion for Directed Verdict. Ben didn’t even attempt to reply; he was much too exhausted to speak intelligently about complex legal issues. This was what he’d hired Matthews for; let the man go earn his salary.
Colby and Matthews went back and forth for more than an hour, out of the presence of the jury. Once again, Judge Perry announced that he was troubled by the “extraordinary causation problems” in the plaintiffs" case. Matthews tried to address each concern point by point, citing reams of relevant authority, spewing out case names at the speed of light. Ben only followed half of it, but he was clear on one point—hiring Matthews was the brightest move he’d made this whole trial. The man was seriously smart; he knew what he was talking about. He had an answer for every rabbit Colby pulled out of his hat.
“I am appalled by what has taken place in this courtroom,” Colby said, turning his moral outrage up full throttle. “My client has been subjected to reams of bad publicity, has been accused in open court of the most monstrous crimes, and there is still not a shred of reliable evidence to prove that Blaylock’s actions caused those kids" leukemia!”
“All very dramatic,” Matthews replied calmly. “But it does not in any way get him around the lenient standard for the admission of developing or experimental scientific evidence established by the Supreme Court in the Daubert case.…”
When all was said and done, Judge Perry was unwilling to rule that the plaintiff had presented insufficient evidence to submit the case to the jury. “Although many aspects of this case still trouble me,” he said, “it still goes against the grain to take the case away from the jury. I’m going to deny your motion, Mr. Colby. Let’s get to work on jury instructions.”
Ben didn’t know whether to be relieved or disappointed. Well, he was relieved, of course—but this meant the case would proceed. The ordeal would continue.
The only remaining legal matter before closings was the finalization of the jury instructions. Preparing jury instructions for this case had been particularly arduous. Ostensibly, the purpose of jury instructions was to advise jurors on legal issues so that they could reach a verdict. As a practical matter, it was one last opportunity for each attorney to try to push the jury in their direction. As Ben had learned, a good jury instruction could win a case—particularly when the issues were as complex as they were here.
Christina had been working on the jury instructions for weeks, aided by Professor Matthews�
�s research; Ben pitched in whenever he had time, which hadn’t been often. All of them did their best to slant the law in the plaintiffs" favor, but for the most part—it wasn’t. The burden of proof was always on them, the odds were always against them, and it was difficult to craft instructions that didn’t make that painfully obvious.
The other problem was dealing with the vast complexity of the issues raised. On the whole, Ben thought juries deserved more credit than they got. In his experience, most jurors worked hard and tried to do the right thing. But you couldn’t expect them all to be experts in hematology or cancer epidemiology. Colby, of course, had tried to exploit this to the max. The jury instructions he had submitted were so dense and complicated a Ph.D. in semantics couldn’t have deciphered them. Ben and Christina had spent hours reworking the instructions, trying to boil them down and make them comprehensible, without rendering them so simple that they misrepresented the often subtle nuances of the law.
And they had failed. It was shamefully clear to Ben, as he listened to Judge Perry reading the final draft instructions aloud to the jury. They had failed. The instructions were still too complex—and they still favored the defendant. In the extreme.
“The fact that you may have determined that the defendant acted negligently or with careless disregard does not necessarily prove that its actions caused harm to the plaintiffs. In order to find in favor of the plaintiffs, you must find that it has been proven by a preponderance of the evidence that the defendant’s wrongful actions did in fact cause the injuries to the plaintiffs.…”
Ben listened silently as the judge laid it all out, plank by plank. He was making a valid legal point, of course. Causation cannot be assumed; it must be proven. But to Ben, and to any juror, it just sounded like a lot of hoops that had to be jumped through before they could find in favor of the plaintiffs—a litany of reasons to vote for the defendant.
“Even if you find that the defendant did act recklessly, and that its actions caused harm to the plaintiffs, it does not mean that you have to make an award of actual damages or punitive damages to the plaintiffs. Punitive damages should be awarded only in the most extreme circumstances, where a party’s actions have shown wanton or willful disregard for another party’s rights. If you find that an award of punitive damages is appropriate, the amount awarded cannot be arbitrary. The punitive damages award must bear some rational relationship to the evidence presented in the case.…”
Now this was a matter of critical importance to the plaintiffs. Punitive damages. What every defendant feared most. Ben could only assume a big portion of both sides" closing arguments would be devoted to this subject. But now the judge was getting his two cents in, outlining in detail how difficult and complex it could be to make such an award to the plaintiffs, an award that was absolutely critical to compensating the plaintiffs—not to mention keeping Ben out of bankruptcy court.
“If you find that the corporate decision makers did not authorize or approve the wrongful conduct, you may consider this factor in mitigation of any award you might otherwise make. Other mitigating factors that may be considered include …”
Ben’s eyes began to roll up into his head. He couldn’t follow it anymore; trying just made his head throb. To their credit, he noticed the jurors were not falling asleep. On the contrary, they were listening closely, attentively. Perhaps for the first time ever, they were realizing how difficult the task set before them really was.
Well, it didn’t matter. There was nothing he could do about it now. He had one last chance, he told himself as he approached the jury to deliver his closing. One last chance to make a difference for his clients.
After that, it would all be over.
”It is George Philby,” Mike said as he compared the fingerprint on his record chart to the ones just taken from the corpse he had unearthed. “No question about it.”
Bob Barkley, the medical examiner, forced a bristly smile. “Wonderful. May I please take possession of the body now?”
“Sure,” Mike said, but he didn’t move away. “Care to give me a hint on the cause of death?”
Barkley tried to push past him. “You’ll see the report.”
“No doubt. But every moment I wait is a moment the killer can go on killing.”
“Give me a break, Mike. You know I’ll get crucified if I give you any half-baked preliminary conclusions.”
“Off the record, then.” Mike pointed to the black patches all over the naked body. “He was electrocuted, right?”
Barkley glanced over his shoulder both ways, as if someone might be eavesdropping here in an undeveloped lot a hundred feet from the nearest road. “Just between you and me?”
“Right, right.”
“He got some juice, sure. Probably from that gruesome setup you discovered at his house.”
“That’s what I—”
“But he wasn’t electrocuted. I mean, that didn’t kill him.”
“It didn’t?”
“Nah. I’m pretty sure. See the color of the skin?” He pointed a few places Mike really didn’t care to look. “You wouldn’t see that if he’d been fried. The burning would be far more extensive. Smell would be different, too.”
Mike was amazed, in a repulsive sort of way. To him, the body’s smell was just something he tried to block out of his mind. To Barkley, it was a clue. “Then what did kill him?”
“Now this really is pure speculation, but …” Barkley twisted the corpse’s, head around and pointed again. Mike detected a small red puncture mark at the base of his neck.
“What the hell caused that?”
“I could only speculate. Ice pick, maybe. I can’t guarantee that’s what killed him. But it corresponds better to the available visual evidence. I think it’s likely.”
Mike thought for a long moment. “Why would the killer start out electrocuting him—then veer off into a sudden execution-style murder?”
“Maybe he already learned what he wanted to know. Maybe he got in a hurry.”
Mike shook his head. “Maybe he got careless.” His hands balled up. “Same reason he let me live. He thinks he’s invincible. He thinks he can’t be caught.”
“I guess he’s done pretty well so far.”
“That’s going to change. He doesn’t know it yet, but I’m onto him. I’ve figured out the connection. And maybe, just maybe, I can follow that trail backward to the killer himself. And then I’ll be all over his ass like ants on an apple.”
As attorney for the plaintiffs, Ben would get to speak not only first but last, in rebuttal to whatever Colby had to say. Since he knew he would be back, he tried to keep his first appearance relatively short and to the point.
Ben stood squarely in front of the jury, trying to exude a confidence he did not feel.
“People have the craziest expectations of what’s going to happen during closing argument. I don’t know where they get them all. Perry Mason, I guess.”
Ben smiled slightly, and to his great relief, some of the jurors smiled back at him. It seemed they weren’t too tired to appreciate a little humor.
“I’m not going to do any of that melodramatic stuff you may be expecting. I’m not going to shout at you like a Baptist preacher. I’m not going to rant and rave. I’m not going to rehash all the evidence. You’ve already heard it—probably heard more of it than you wanted. All I’m going to do is point out the things that I think are most important. Then I’m going to tell you what I think you should do, what I hope you’ll do. Then I’m going to sit down. And it will be in your hands.”
Ben crossed over to the north end of the jury box, keeping his eyes locked on the jurors at all times. “Can there be any doubt that Blaylock polluted the Blackwood water supply? I don’t think so. Hard as they tried to suppress the truth—it still emerged. Their own employees have admitted that waste was dumped on the ground, buried in the ground. Trace elements, chemicals, things that could have come from nowhere else, were found in the aquifer and Well B. We know where they ca
me from.” Ben turned to face them directly. “You know where it came from.
“The unresolved question is whether that pollution caused the deaths of my clients" children. We know that the leukemia rate in Blackwood spiked well above the national average—at about the same time that the pollution began seeping into the water well. We know the plaintiffs" children used the water, drank it, bathed in it. And we know the EPA has said the water is harmful—because those chemicals can cause cancer.”
Ben glanced up at the judge. “I know you all listened attentively when Judge Perry read the jury instructions, so you undoubtedly heard the one that established the burden of proof. The burden of proof is on us, the plaintiffs. We admit that. But what is that burden? Some of you—the ones who watch Perry Mason a lot—probably remember him saying that guilt had to be proved "beyond a reasonable doubt." Well—that isn’t the standard in this case—thank goodness.”
Again, a few of the jurors chuckled. What did it mean? Were they with him?
“Here, as the judge instructed you, liability must be proved "by a preponderance of the evidence." In other words, we must prove that it is more likely than not that Blaylock is responsible for the plaintiffs" injuries. So I ask you, ladies and gentlemen of the jury—which is most likely? You can forget the evidence, forget the testimony”—an easy thing for Ben to say, since his medical testimony had come off so badly—“forget it all. Just close your eyes and look inside your heart.”
To Ben’s surprise, many of the jurors did in fact shut their eyes. “Close your eyes and answer this simple question. Which is more likely? That those children died because of the carcinogenic contaminants released into their water supply by the defendant? Or that this is all just an unfortunate coincidence? Which is more likely?
“Now open your eyes.” They complied, and Ben felt the heat of twenty-eight eyes bearing down on him. “Which is more likely? I think you know the answer. I know you do. So please, please—listen to that voice in your heart. And do the right thing. That’s all I ask.”
Silent Justice: A Ben Kincaid Novel of Suspense bk-9 Page 39
