Silent Justice: A Ben Kincaid Novel of Suspense

Chapter 31

BEN WASN’t USED TO going first. In the criminal trials that had been his mainstay over the past several years, he was never first. The prosecutor always started. Which had its pluses and minuses. It meant the opposition got the initial opportunity to influence the jury. But it also meant Ben had time to think and plan, time to absorb what the prosecution was trying to accomplish and to figure out a way to circumvent it.

Today, he didn’t have the luxury of time. He had the burden of convincing the jury of the rightness of his cause, holding their attention, and persuading them—by a preponderance of the evidence. If he failed to do that, the defendants would never even have to stand up. The case would be dismissed before it got to them.

Ben had spent days agonizing over whom to call as his first witness. Conventional wisdom would say he should lead with his clients, so the jury can understand who and what this case is really about. The obvious sympathy factor involved in putting bereaved parents on the stand was also a consideration. Ben didn’t want to exploit their grief; at the same time, he’d been hired to win this lawsuit, not to show how sensitive he was. And if he led with some of the more technical experts, the jury’s mind might be permanently dulled before he got to the heart-gripping stuff.

He finally decided to start with two witnesses from the Blackwood hospital. From a legal standpoint, these witnesses would establish the fact of an injury—an essential component in any case for damages. As a practical matter, Ben hoped they would do much more.

The first witness was a man named Adam Nimsy. He worked as a photographer at the hospital, and at Dr. Freidrich’s request, had photographed most of the children at various stages of their leukemia.

Nimsy was a middle-aged man, heavyset, with a seemingly permanent tired expression on his face. Ben introduced him to the jury, then started on the real questioning.

“What’s your current position?”

“I’m a freelance photographer,” Nimsy answered. “But most of my work comes on assignment from the hospital.”

“And how long have you been doing this kind of work?”

“Interminably,” he said dryly.

“What exactly do you do?”

“Whatever the doctors tell me to do,” he explained. “If they say shoot, I shoot. If they say print, I print. If they say bark, I bark.”

Ben tried to ignore the alleged wit. This was not supposed to be a “funny” witness. “Why do the doctors have you take pictures?”

“For legal reasons, usually. If they’re getting ready to do something risky or controversial, they want an accurate record, either via photos or videotape. Sometimes they want pictures for comparative purposes, to analyze the progress of a disease—or a cure. Sometimes they want pics they can send to outside specialists for consultations.”

Ben turned slightly toward the section of the gallery where his clients sat. “Do you know the parents who are the plaintiffs in this lawsuit?”

“Some of them. And I knew most of their children. I photographed most of them.”

“How did that come about?”

“It was at Dr. Freidrich’s request. He didn’t ask me to photo the first two boys. But after that, I guess he started to suspect that something strange was going on. So many leukemia deaths of young children at the same time in the same neighborhood couldn’t possibly be—”

“Objection,” Colby said, rising to his feet. “Is this witness a medical expert? I don’t recall hearing his credentials.”

“The objection is sustained,” Judge Perry replied. “The witness will restrict his testimony to what he has seen and heard and not offer the jury opinions on matters outside his field.”

“Of course, your honor,” Ben said, not remotely repentant. “Mr. Nimsy, did you photograph the subsequent nine leukemia victims?”

“Yes. All of them.”

“How often?”

“Whenever the doctor asked. About every two months.”

“Do you have those photographs with you today?” Like any good trial attorney, Ben was only asking questions to which he already knew the answer.

“I do.” He looked up at the judge. “May I?”

With Judge Perry’s consent, Nimsy retrieved the photos from the gallery. They had been enlarged (at Ben’s expense) and mounted so that the jury could see them easily on their monitors—and take hard copies back to the deliberation room when the trial was over.

The photos told a story more eloquent, more gut-wrenching, more devastatingly sad than anything the finest poet could have conceived. Nimsy, of course, was not allowed to comment on what the photos contained—and there was no need for him to. All he did was authenticate the evidence—that is, talk about how and when and where the photos were taken. None of which anyone cared about. What was important remained unsaid. But the pictures spoke volumes.

Through these photos, the jurors were able to chart the course of the disease for each of the nine photographed children. Billy was up first. In his first shot, he still looked essentially normal. He had been diagnosed with leukemia, but the bruises didn’t show and he hadn’t started to lose weight yet. The next photo, taken two months later, revealed a startling change. He’d begun chemotherapy; his hair was gone. By the third photo, his face was drawn and his cheekbones protruded from a gaunt, emaciated face. By the fourth photo, he appeared discolored; bruises covered his body. Ben saw the jurors" shock as they viewed the hollow concavity surrounding his eyes, his gaping, seeping, open wounds. In the fifth photo, Billy seemed skeletal, weak, and brittle; his eyelids were barely open. And in the sixth …

Well, as Nimsy explained, there was no sixth. Ever.

Like a slide show from hell, the flurry of photographs showed nine youngsters progressing from healthy poster children to a tragic mutated travesty of humanity. The witness shed no tears and had no tremble in his voice—but the impact was profound, just the same.

Colby did not cross-examine, and Ben thought he knew why. What was there to be gained? There was no question about the authenticity of the photos, and Nimsy had not officially offered any opinion as to the cause of their illness. But as Ben peered into the jurors" collective eyes, he knew there would be no further discussion about whether an injury had occurred. Colby would have to win his case on other grounds.

After the break, Ben put on Dr. Freidrich, the Blackwood pediatrician who’d treated seven of the boys and girls. Words met pictures, as Freidrich systematically took the jurors through the stages of the disease. In a way, it was almost overkill; the pictures had already said it all. Still, Ben needed medical testimony on the record, so there could be no question but that he’d made a prima facie case as to injury.

It was hard on the parents—Cecily in particular. They had been through this nightmare once already; they didn’t need to relive it in the courtroom. Still, they managed to get through it without losing control or pretending as if it didn’t hurt. Only one of the mothers had to leave the room. Two cried, but under the circumstances, Ben didn’t think they could be accused of improperly trying to influence the jurors—two of whom were crying themselves.

As before, Colby did not cross-examine. He knew better than to dispute the fact of the tragedy. The fight for control of this case would be fought on another battleground.

In the afternoon, Ben started the technical testimony. This he knew would be less than heart-stopping, but it had to be done. He started with his geologist, Edward Drury. Drury essentially repeated what he had said at his deposition, updated with the information he had gathered since that time (at Ben’s expense). He described the extent of the contamination of the soil and groundwater behind the Blaylock plant and the adjoining ravine.

Colby did cross-examine, although it was brief:

“You say the ground behind the plant is contaminated with TCE?” That is correct.

“When did this contamination occur?”

“Well … I couldn’t say exactly when it happened. But it’s definitely there now.”

“Was it there six months ago?”

“It seems like—”

“Don’t guess, sir. Do your studies indicate whether the soil was contaminated six months ago?”

Drury frowned. “No, they do not.”

“For all you know, it could have happened last week.”

“I suppose technically that’s so. But as a practical matter—”

“In fact, the soil could have been recently contaminated, intentionally, by some unscrupulous person trying to assign blame to Blaylock—and your test results would be just the same, wouldn’t they?”

“I suppose. But—”

“And since you don’t know when the soil was tainted, you have no idea if it began before”—he paused meaningfully—”or after the tragic deaths of the plaintiffs" children.”

“Common sense tells me—”

“We don’t want to hear about common sense,” the judge said. Ben hoped that would be the sound bite for the evening news. “We want to know what your study shows.”

“My study didn’t address the question of when the contamination occurred. I don’t think any study could. But it can’t be a coincidence that the plaintiffs—”

“I admire your loyalty to the plaintiffs,” Colby said, cutting him off. “It’s touching. Now—remind me again—how much have the plaintiffs paid you to be a witness in this case?”

When he gave Colby the number, the jury gasped.

Next, Ben called his groundwater specialist to the stand—Harry Campbell. Campbell was even dryer and duller than Drury had been (and, as Colby. revealed on cross, more expensive). But he did manage to demonstrate how, at least theoretically, water could travel from the Blaylock plant into the ravine, percolate for a while in the aquifer, then get sucked into Well B. Colby did not cross; apparently he didn’t think it necessary. Proving the water could travel from the Blaylock plant to the well was one thing. Proving that the poison did in fact come from the Blaylock plant was something else altogether.

In the late afternoon, Ben called his EPA expert to the stand. Ben considered him a relatively safe witness. Although he wasn’t in Ben’s back pocket in the sense that he was being paid to cooperate or had a vested interest in the outcome, he was definitely on the side of the angels. He knew the EPA was as concerned about the Blackwood water as his clients were—and was equally anxious to do something about it.

Kenneth Thorndyke was as large as any man Ben had seen in his entire life, and yet he entirely defied the stereotype of overweight. According to him, at least, he was a man of action. He was the first to suspect that there was something wrong with the water in Blackwood, and he led the research team that went out to run tests.

“What caused you to suspect the water was tainted?” Ben asked.

“Actually, I didn’t,” Thorndyke replied. “I was just investigating a complaint. Common everyday procedure. Several Blackwood residents reported that they thought the water tasted funny, or smelled funny, or felt funny in the shower. Frankly, these complaints are not uncommon, and we can’t investigate them all. But when the number of them rises above a certain threshold, we try to check it out.”

Ben took the witness through a detailed chronology of just exactly what tests were performed and how and why. He wanted to make sure the EPA study couldn’t be attacked on scientific grounds.

“What did you learn from these tests?” Ben asked.

“We learned the water was poisoned. We—”

“Objection.” Colby was on his feet again. “Your honor, I object to the use of that inflammatory and misleading word.”

Ben assumed he wasn’t referring to the word “water.”

“Your honor, I’m not aware that counsel has the right to restrict my witnesses" vocabularies. Surely they are permitted to choose their own words.”

Judge Perry frowned. “Well, I don’t plan to stifle anyone’s testimony. But I would appreciate it, Mr. Thorndyke, if you kept your language factual and unemotional.”

“Very well, your honor,” Thorndyke said, nodding. Ben appreciated the fact that Thorndyke was being so compliant. He also appreciated that he hadn’t mentioned that Ben had asked him beforehand to use the word “poison” as many times as possible. “Anyway, we ran chemical analyses on the Blackwood water wells and found severe contamination in Well B.”

“What were the contaminants?”

“We found traces of TCE and perc, both industrial solvents.”

“Were you familiar with these substances?”

“Of course. They’re both on the EPA’s list of suspected carcinogens.”

“Which means what?”

“It means they give you—”

“Objection!” Thorndyke had tried gamely to get it in, but Colby was too quick for him. “Once again, counsel tries to slip in medical evidence from a nonmedical witness.”

“Sustained,” Judge Perry said wearily. “Mr. Kincaid, please keep your witness on the subject upon which he has actual knowledge.”

If I must. “Without getting into a discussion of the possible medical side effects, could you please explain why the discovery of these chemicals concerned you?”

Thorndyke twisted his immense girth around awkwardly. He could only barely move in the witness box. “People expect their water to be pure, but most times it isn’t. Some things that filter into water aren’t harmful—although people would be pretty grossed out if they knew what they were. Some pollutants, like fluoride or certain minerals, are actually helpful. But we try to single out the ones that, uh”—he glanced up at the judge—“that… are not helpful.”

“Such as TCE and perc?”

Thorndyke nodded. “Exactly.”

“Did your study attempt to determine the source of the pollution?”

“Objection,” Colby said, predictably enough. “Once again, Mr. Kincaid tries to lure his witness outside the proper scope of his testimony.”

“How does he know that?” Ben replied. As always, he addressed the judge, not the opposing attorney. “I just asked if the EPA study considered the source. Why don’t we hear the answer?”

Judge Perry nodded. “I suppose I’ll allow it. But I caution you, counsel—I don’t want any improper testimony.”

“Of course not, your honor.” Perish the thought. “Mr. Thorndyke, you may answer the question.”

“We did try to determine the source. We found trace elements of TCE in a ravine that feeds into the well. We followed the ravine less than half a mile to—”

“Again I must object,” Colby said. “This is not testimony relating to a scientific study. The mere fact that some TCE is found in a ravine does not prove—”

Judge Perry waved him down. “Quite right, counsel. I agree entirely. Mr. Kincaid, I want you to discontinue this line of questioning. And I instruct the jury to disregard what little has been said.”

Ben could live with that. He’d gotten further than he’d expected. And he felt certain even the densest juror realized what was half a mile up the ravine.

This time, Colby did not waive cross-examination. He strode to the podium, fidgeting with his pocket watch, peering at the witness through a squinted right eye.

“You’re not a medical doctor, are you, Mr. Thorndyke?”

“No.”

“And you’re not a scientist, are you?”

“No. Although I made a B in high school biology.”

Thorndyke grinned, but no one grinned back. Ben had warned him about the dangers of cracking jokes on the stand. Ben had been right.

Colby’s squint intensified. “And you don’t want people to be misled into thinking you are, do you?”

“No-oo …”

“You’re not qualified to say what is or is not a carcinogen, are you?”

“No. But I’m qualified enough to say I don’t want any in my drinking water. Or my son’s.”

Yes! Ben thought. He restrained himself from giving the witness a high five.

“Mr. Thorndyke,” Colby said, his voice dark as the grave, “this is a very serious matter, and I would appreciate it if you treated these jurors with the dignity they deserve.”

Ouch. Ben winced. Slung that one back in our faces, didn’t you?

Colby continued. “You are not the man who made the decision to put these chemicals on any list, are you?”

“Well … no.”

“And you do not know what tests—if any—were conducted to determine whether they should be placed on said list, do you?”

“I didn’t do it, but I know how it was done. Concentrated injections were given to laboratory rats—”

“Lab rats?” Colby allowed himself a small grin. “All this fuss is over lab rats?”

“The rats died.”

“I’m sure rats die all the time. This will probably sound like a crazy question, but—did any of these studies involve—say—human beings?”

“You can’t test poi—” He stopped himself. “—Suspected carcinogens on people!”

“People are probably a little hardier than lab rats, wouldn’t you imagine?”

“We’re all mammals. We’ve learned that lab rats can be good indicators—”

“Sir, you keep saying "we." But you are not a scientist and you were not involved in this testing in any way, were you?”

“No, but—”

“Excuse me,” Judge Perry said, interrupting. “Just answer the question posed to you.”

“Thank you, your honor,” Colby said, bowing his head slightly. If these two old pals became any more deferential to one another, Ben was going to barf. “Mr. Thorndyke, you said you found traces of TCE in the ravine. But you don’t know how it got there, do you?”

“It’s obvious to me that—”

Again, Judge Perry cut in, doing Colby’s work for him. “Sir, this court is not interested in your speculations. You are here to tell us what you know. If you don’t know, say so.”

Thorndyke drew in his breath. “I cannot say with utter certainty how the TCE got into the ravine.”

“Thank you.” The judge settled back in his chair. “This court appreciates honesty.” He cast a wayward glance toward Ben. “Even if you may have been encouraged to avoid it.”

“Exactly how much TCE did you find in the ravine?” Colby asked.

“How much?”

“Yes. What quantity?”

Thorndyke shrugged. “It would have been a tiny amount. Less than one part per thousand.”

Colby appeared stricken. “Less than one part per thousand? All this fuss is for less than one part? Barely a decimal?”

“In the ravine,” Thorndyke added. “In the well—”

“In the well,” Colby interrupted, “you also found what you yourself referred to as "trace amounts."”

“Yes, but it doesn’t take—”

“In fact, the quantities you found were less than one gram per gallon of water, correct?”

“That’s true. But you have to realize—”

“Those traces would be diluted by immersion in water, correct? If you know. I realize you’re not a scientist.”

Thorndyke did a slow burn. “They would be diluted. But they would still be TCE. And TCE would still be—”

“Just answer the question,” Judge Perry said, cutting him off. “I won’t warn you again.”

Colby proceeded apace. “And that water would be distributed throughout the hundreds of homes serviced by Well B, thus diluting it even further.”

“This stuff is deadly!” Thorndyke burst out. “You don’t have to have—”

Judge Perry leaned forward. “This is absolutely your last warning, mister. Another outburst like that and I’ll have you evicted from the courtroom and have your entire testimony stricken.”

“You will admit,” Colby said, “that the TCE is greatly diluted when it enters the well.”

“It doesn’t take much!”

“Really? And just how much does it take?”

Thorndyke twisted around in his seat. “Well … I couldn’t say exactly. No one knows—”

“Mr. Thorndyke, that’s the first thing you’ve said today that I agree with totally. No one knows. No one knows if TCE is harmful, especially in such tiny amounts. No one knows how it got into the well. And no one knows what causes leukemia. Including you.”