A Time for Mercy

21

The collision of a small car weighing three thousand pounds with the wheel unit of a loaded boxcar weighing seventy-five tons created a nasty accident scene. Once it was determined by the first responders that all four occupants were dead, some of the urgency subsided as the crews went about the grim task of prying and cutting out the bodies. Over two dozen officers and rescue personnel were at the site, along with other travelers who happened upon the scene and couldn’t pass around it. A state trooper took a series of still shots, and a volunteer from a local fire brigade filled four rolls of film with the recovery and cleanup.

Early in discovery, Jake obtained sets of all the photos and had them enlarged. Over a three-month period, he meticulously collected the names of the responders and the strangers who watched them work. Identifying the firemen, police, and medics was easy. He spent time in three volunteer firehouses out in the county, as well as two from the town of Clanton. Everyone, it seemed, answered the call.

Putting names with the faces of the strangers was a far greater challenge. He was looking for witnesses, anyone who might have seen anything. Hank Grayson, the only known eyewitness, said in his deposition that he thought there was a car behind him, though he made it clear he wasn’t certain. Jake went through every photograph and slowly collected the names of the people at the site. Most were from Ford County, and some admitted they showed up when they heard the chatter on their police scanners. At least a dozen were late-night travelers who got stuck on the road during the three hours it took to remove the bodies and clear the scene. Jake tracked down each one of these. Not a one had witnessed the accident; indeed, most arrived long after it happened.

But in six of the photos, there was a white man with a bald head who looked out of place. He was about fifty, wore a dark suit, white shirt, dark tie, much too nicely dressed for rural Ford County on a Friday night. He stood with other spectators and watched as the firemen cut and sawed to remove the four bodies. No one seemed to know him. Jake asked the first responders about the man, but no one had ever seen him. In Jake’s world, he became the mysterious stranger, the man in the dark suit.

Melvin Cochran lived a quarter of a mile from the crossing and was awakened that night by sirens. He got dressed, went outside, saw the carnival-like scene down the hill, and grabbed his video camera. As he walked to the scene, with the switch on, he began to pass cars parked on the shoulder, all headed east. Once at the scene, he filmed for almost an hour before the battery ran low. Jake got a copy of the video and had watched it, frame by frame, for hours. The man in the dark suit was in several scenes, observing the tragedy, at times seemingly bored and wanting to move on.

As Melvin approached the site, he passed a total of eleven parked vehicles. Jake was able to identify the license plates on seven of them. The others were obscured. Five of the seven were from Ford County, one was from Tyler County, and one was from Tennessee. He doggedly tracked down each one and eventually matched the vehicles with the names and faces of their owners in the crowd.

On a wall in a workroom, Jake cut and pasted and pieced together a large composite of the scene with small nameplates for twenty-six rescue personnel and thirty-two spectators. Everyone was identified, except the man in the dark suit.

The vehicle with Tennessee plates was registered to a food brokerage firm in Nashville; thus, no individual name was available. For a month Jake considered this to be a dead end, which didn’t bother him. He figured that if the mysterious man had seen anything relevant he would have spoken to an officer on the scene. But it nagged him. The man had an odd look about him, and Jake was chasing every detail. The case could be the biggest one of his career and he was determined to know everything about it.

He would later curse his curiosity.

He finally paid $250 to a private investigator in Nashville and sent him a photo of the mystery man. Two days later, the investigator faxed Jake a report, one that he at first wanted to destroy. It read:

When he was sure he wasn’t going to vomit, Jake managed to walk gingerly to the sofa and lie down. He pinched his nose and closed his eyes and saw his fortune fly away.

Not only was Nickel a far more credible witness, he could confirm that Hank Grayson, their star, was drinking that night.

When he could finally move, Jake folded the report into an unmarked envelope, resisted the temptation to burn it, and hid it in a thick lawbook where maybe it would vanish, or maybe he would just simply forget about it.

If Nickel wanted to avoid the trial, that was fine with Jake. They would keep the same secret.

The fear, though, was the defense. Seven months into the lawsuit, Sean Gilder had shown little interest in the case and had only gone through the motions of discovery. He had filed one set of standard interrogatories and requested the basic documents. They had agreed to depose a few of the key witnesses. Jake estimated that he had put in three times the hours as the defense lawyers who actually got paid by the hour.

If Neal Nickel insisted on lying low, there was a good chance he would not be discovered by anybody working on behalf of the railroad or its insurance company. And barring a sudden change of conscience, he would get his wish of staying out of any lawsuit.

So why did Jake spend the next three days with a knot in his stomach? The big question was Harry Rex. Should he show him the report and watch him freak out? Or should Jake simply bury it, along with any knowledge of the mysterious eyewitness? The quandary roiled Jake’s world for days, but with time he managed to shove it into another compartment and concentrate on the rest of the case.

Two months later, on January 9, 1990, to be exact, the issue returned with a vengeance. Sean Gilder filed a second set of interrogatories that sought answers he already had, for the most part. Again, he appeared listless and totally unimaginative. Jake and Harry Rex had become convinced that Gilder was not sandbagging, a common defense tactic. Rather, it appeared as if Gilder was overconfident because of the fact that Taylor Smallwood drove into a moving train. End of case.

But the last interrogatory, number thirty in a package of thirty, was lethal. It was one that was commonly used, especially by lazy or busy lawyers. It read: “List the full name, complete address, and phone number of any and all persons with knowledge of the alleged facts of this case.”

Also known as “the Round-Up,” it was a much debated, and hated, tactic that punished lawyers who worked overtime and dug for the facts. Under the rules of discovery, trials were supposed to be free of ambushes. Each side swapped all information and it was laid in a transparent fashion before the jury. That was the theory, anyway, the goal. But the new rules created unfair practices, and the Round-Up was widely despised. It said, in other words: “Work diligently to learn all the facts, then hand them to the other side on a platter.”

Two days after receiving the second set of interrogatories, Jake finally placed the investigator’s report on the large, messy desk in front of Harry Rex. He picked it up, read it, dropped it, and without hesitation said, “There goes the lawsuit. There goes the case. Why did you find this clown?”

“I was simply doing my job.” As Jake told the story of finding Nickel, Harry Rex kicked back in his chair and stared at the ceiling. “Devastating,” he mumbled more than once.

When Jake finished, he mentioned the last set of interrogatories. Without a thought, Harry Rex said, “We are not going to mention this guy. Ever. Okay?”

“Fine with me. As long as we understand the risks.”

Three months later, the man in the dark suit was back.

As the clerk assembled and organized the crowd of prospective jurors, and as the lawyers in their courtroom suits situated themselves around their tables and dug in for battle, and as the courthouse regulars found their places in the pews and chatted excitedly about the big trial, Sean Gilder stepped over to Jake and whispered, “We need to see the judge. It’s important.”

Jake was half expecting the usual last-minute maneuvering and was not alarmed. “What is it?”

“I’ll explain back there.”

Jake motioned for Mr. Pete, the ancient courtroom deputy, and said they needed to see Noose, who was still in chambers. Seven lawyers followed Mr. Pete out of the courtroom. They gathered before Judge Noose, who was putting on his black robe and seemed eager to start a big trial. He looked at the grim faces of Sean Gilder, Walter Sullivan, and the other lawyers, and said, “Morning, gentlemen. What’s the issue?”

Gilder was holding some papers, and he sort of waved them at His Honor. “Judge, this is a motion for a continuance that we are filing right now and asking the court to grant.”

“Grounds?”

“This may take a few moments, Judge. Perhaps we should sit down.”

Noose gestured awkwardly at the chairs around his conference table and everybody found one.

“Proceed.”

“Judge, last Friday my co-counsel, Mr. Walter Sullivan, was approached by a man who claimed to be an important witness to this accident. His name is Neal Nickel and he lives near Nashville. Mr. Sullivan?”

Walter eagerly jumped in. “Judge, the guy walked into my office and said he really needed to talk to me about the case. We had coffee and he described how he saw the Smallwood car hit the train on that terrible night. He saw it all, the perfect eyewitness.”

Jake’s heart and lungs were frozen and he felt ill. Harry Rex glared at Sullivan and wished he had a gun.

“A crucial issue here is whether or not the warning lights were working properly. The two railroad employees on the train swear they were flashing. One witness says they were not. Mr. Nickel is certain that they were working. However, for reasons he can explain, he did not approach an officer that night and, until now, has told no one about the incident. Obviously, he is an important witness, one that we should have the right to depose.”

Noose said bluntly, “Discovery is over. The deadline was months ago. Looks like you should’ve found this witness before now.”

Gilder took over. “True, Your Honor, but there is another problem. Back during discovery we filed, on time, some interrogatories, and one requested the names of all witnesses. When Mr. Brigance filed his responses, he did not mention Neal Nickel. Not a word. However, Mr. Nickel will tell you that he was approached last November by a private investigator working for a lawyer in Clanton, Mississippi. Didn’t have his name but it was most certainly not Walter Sullivan. We quickly found the investigator and he confirmed that he was hired and paid by Jake Brigance. He submitted a two-page report summarizing what Mr. Nickel had told him.”

Gilder paused, rather smugly, and looked at Jake, who was trying mightily to conjure up a believable lie that would extricate him from this catastrophe. But his brain was frozen and all efforts at creativity failed him miserably.

Gilder went on, sinking the knife deeper. “And so it’s obvious, Your Honor, that Mr. Brigance found the eyewitness, Mr. Neal Nickel, and once he realized that the witness was in no way favorable, but actually quite adverse to his cause, he conveniently tried to forget about him. He violated our rules of discovery by trying to hide a crucial witness.”

Harry Rex was far more crooked and devious than Jake, and turned to him and said, “I thought you supplemented those responses.” It was the perfect, and perhaps only, statement to interject. Answers to interrogatories were routinely amended and supplemented as more information became available.

But Harry Rex was a divorce lawyer and thus accustomed to bluffing around judges. Jake, though, was an amateur. He managed to mumble, “I thought so too.” But it was a pathetic effort and not at all believable.

Sean Gilder and Walter Sullivan both laughed, and the other three dark suits on their side of the table joined in the awful humor. Judge Noose held the motion and looked at Jake in disbelief.

Sean Gilder said, “Oh, right! I’m sure you wanted to supplement and hand us Neal Nickel, but you forgot, and you’ve been forgetting for five months now. Nice try, gentlemen. Judge, we have the right to depose this man.”

Judge Noose raised a hand and demanded silence. For a long moment, maybe two or three, or it could have been an hour as far as Jake was concerned, he read the motion for a continuance and began to slowly shake his head. Finally, he looked at Jake and said, “This appears to be a rather obvious effort on the part of the plaintiff to hide a witness. Jake?”

Jake almost said something like “Not at all, Your Honor,” but he held his tongue. If the investigator was sleazy enough to reveal the name of the lawyer who hired him, then he probably sent Sean Gilder a copy of his report. When Gilder produced it, the ax would fall. Again.

Jake shrugged and said, “Don’t know, Judge. I thought we supplemented. Must’ve been an oversight.”

Noose frowned and fired back. “That’s hard to believe, Jake. An oversight for a witness this important? Don’t feed me a line, Jake. You found a witness that you wished you hadn’t found. Then you violated a rule of discovery. I’m appalled by this.”

Not even Harry Rex could rescue him with a snappy retort. All five defense lawyers were grinning like idiots as Jake slid lower into his chair.

Noose tossed the motion onto the table and said, “Certainly, you have the right to depose this witness. Any idea where he might be?”

Quickly, Walter Sullivan said, “He left for Mexico on Saturday. For two weeks.”

Harry Rex blurted, “Courtesy of Central & Southern Railroad?”

“Hell no. It’s his vacation. And he said he’s not giving depositions down there.”

Noose waved a hand. “Enough. This complicates matters, gentlemen. I’m going to allow this witness to be deposed at a time that’s convenient for everyone, so I’ll grant the motion for a continuance.”

Gilder pounced with “Judge, I’ve also prepared a motion for sanctions. This is an egregious breach of ethics on the part of the plaintiffs’ lawyers, and it will cost money to reconvene somewhere to have a chat with Mr. Nickel. They should be required to pay for it and cover the expenses.”

Noose shrugged and said, “But you’re getting paid anyway.”

“Just double-bill them,” Harry Rex said. “Same as always.”

Jake lost his cool and said, “Why should we be required to hand over information that you couldn’t find if you’d hired the FBI? You guys sat on your asses for the first seven months and did nothing. Now you want us to feed you our work product?”

“So you admit you concealed the witness?” Gilder asked.

“No. The witness was there, at the scene and at home in Nashville. You just couldn’t find him.”

“And you violated the discovery rule?”

“It’s a bad rule and you know it. We learned that in law school. It protects lazy lawyers.”

“I resent that, Jake.”

Noose raised both hands and settled things down. He rubbed his jaw and after some serious thinking said, “Well, obviously, we cannot proceed today, not with such an important witness out of the country. I’ll postpone the trial and allow you gentlemen time to finish discovery. You’re dismissed.”

Jake said, “But, Judge, we should at—”

Noose cut him off with “No, Jake, nothing further. I’ve heard enough. Please, you’re all dismissed.”

The lawyers stood, some quicker than others, and filed out of chambers. At the door, Walter Sullivan said to Harry Rex, “What’re your plans with that two-million-dollar verdict?” Sean Gilder laughed.

Jake managed to step between the two before Harry Rex could throw a punch.