Silent Justice: A Ben Kincaid Novel of Suspense

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 came 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.”

Colby’s approach was, to say the least, very different from Ben’s. He took full advantage of the two hours Judge Perry had allocated for closing argument. He rehashed each and every witness who had taken the stand during the entire two-month ordeal. He spent extensive amounts of time detailing all the medical testimony, which he knew would be the crux of the jury’s deliberations. He reminded them of every medical witness Ben had called—and how he had destroyed and humiliated each of them on the witness stand. He also reminded them of the parade of medical experts he had called, with their distinguished and impressive litany of credentials and accomplishments. He cast subtlety to the wind as he reminded them that his experts were respected members of the “mainstream” medical community, while Ben’s experts were “on the fringe” at best—and paid quacks at worst.

Finally, when Colby had finished rehashing the case, he moved to the more rhetorical portion of his closing. He clasped his hands in front of him and gazed at the jury solemnly. “Please believe me when I say that I have nothing but sympathy for the parents of those children who died before their time. I mean that sincerely. My heart weeps for them. I’m sure you feel the same way.”

He took a step toward a rail. “But as a jury, you have a duty to perform, and that duty must be fulfilled strenuously. This is not a court of sympathy. It is a court of law. And therefore, in your deliberations, you must be guided, not by your heart, but by the law. According to the law, as set out in the jury instructions Judge Perry read to you, you can only render a verdict in favor of the plaintiffs if you find they have proven that their loss was caused by the defendant—by the defendant’s acts of reckless disregard. Has that been proven in this court, according to the standard set forth by the court? By any standard?”

He leaned against the rail that divided them, leaving the jury no space to escape his gaze. “Now, Mr. Kincaid would have you believe that the H. P. Blaylock corporation is evil. That we deliberately set out to harm those children. Well, let me tell you something. The H. P. Blaylock company is not evil. It was founded over eighty years ago, by a born-and-raised Oklahoman, the salt of the earth. It has been employing Oklahomans ever since. Over ten thousand Oklahomans have been employed by this company since its inception; over five thousand are currently employed. Millions of dollars have been pumped into the local economy, thanks to H. P. Blaylock. Blaylock virtually single-handedly supports the Blackwood school system. Blaylock products are used and respected—all across the globe. Is that evil? Is that the hallmark of a company that wants to hurt people?”

He paused, letting the questions roam about in the jurors" brains. “I don’t think so,” he said, finally. “And I don’t think you do, either. You’re smart people; you know better. We may have made some mistakes, but we never did anything that would hurt children. We never did. We never would. That’s not what the H. P. Blaylock company is all about.

“Mr. Kincaid talks a lot about common sense, which in his world, is just a code phrase meaning "ignore all the evidence." Well, I’ll give you some common sense. Do you think H. P. Blaylock would be as successful as it is today if it did the things the plaintiffs accuse it of doing? Do you think this company could get where it is if it allowed things like this to happen? Of course not. We didn’t get to the Fortune 500 by hurting people. You know better.”

He took a step back, reclasping his hands, almost in an attitude of prayer. “What these parents have been through is quite possibly the most traumatic loss anyone can suffer. It is only right that they should be searching for answers, only natural that they should be looking for someone to blame. It’s the natural protective instinct of a parent, and perhaps, in some cases, a way of dealing with guilt. But every tragedy does not have a simple solution. Every wrong is not someone’s fault. Sometimes, bad things just happen—even to good people. We don’t know why. The Good Lord sometimes moves in strange and inexplicable ways.”

His voice quieted. “That’s what we have here, ladies and gentlemen. An inexplicable tragedy. We don’t know why it happened, and just as every credible medical witness has told you, we don’t know what causes leukemia. It is a great cause for despair. It is an undeniable tragedy.” He paused, looking each juror in the eye. “But it is not H. P. Blaylock’s fault.”

BEN DIDN’t EVEN wait for the judge to invite him back to the front. He wanted to hit the jury fast, before they had a lot of time to dwell on what Colby had said.

“Let me clear up one matter right at the start. I don’t think the Blaylock corporation is evil. I don’t think they did this because they intentionally wanted to harm children. I think they just didn’t care. I think they acted carelessly, because they didn’t think it was important. Or perhaps more accurately, because they thought it was more important to save and make money than to protect the community. I think they acted out of carelessness—and greed.

“They could’ve prevented their waste, the TCE and perc, from entering the groundwater. Wouldn’t’ve even been that hard. But it was cheaper to dump it on the ground, or bury it in flimsy cardboard drums. So that’s what they did, at least some of the time. They decided to save money, rather than to save lives. So the poison entered the water, the children drank the water—and the children died.

“I’ve said just about everything I could possibly say about the medical testimony. Let me just add this: the only person you’ve heard from who has actually performed detailed studies regarding TCE-contaminated water and its effects on living creatures is Dr. Rimland. He has seen what TCE-tainted water does to lab rats. He has visited cancer-cluster communities. And he believes, to the bottom of his heart, that the contaminated water caused my clients" children to die. Who can possibly know more about it than him?”

Ben uncovered a chart he had prepared the night before. Talking about numbers always made him uncomfortable, but it had to be done, so he had prepared a spreadsheet to help the jury comprehend the injuries and damages suffered.

“We’ve talked about all the monetary losses my clients have incurred as a result of what Blaylock has done. Cumulatively, they’ve lost just over a million dollars, money lost to medical bills, lost work, and so forth. Of course, I hope you will compensate them for their loss. But there is another element of damages in a case like this: punitive damages. Damages awarded not to compensate the plaintiffs—but to punish the defendant.

“There’s been a lot of talk about punitive damages lately. Some people think they’re a good thing; some people don’t. You may dislike the whole idea of punitive damages. You may be thinking, "Well, sure, Blaylock shouldn’t have done that, but why should the plaintiffs get all that money? Maybe it should go to charity, some kind of cancer-treatment fund. And you know what? You may be right. But that isn’t the law right now. Maybe it will be someday, but at this time, the only provision the law makes for punishing bad actors is punitive damages. It’s this—or nothing.”

Ben checked the eyes of the jurors. So far, he didn’t seem to have lost anyone. But were they truly with him? Did they agree? There was no way of knowing.

“Should Blaylock be punished? Should they be fined? Let’s remember—the only reason they did this in the first place was to save money. They thought it would be cheaper to handle waste the wrong way than to spend money protecting the community. And you know what? They were right. It was cheaper—and still is. Even a verdict for full compensatory damages won’t change that. There is only one way you can prove that they were wrong. Only one way to insure that this kind of wrongful conduct will not be tolerated. By awarding punitive damages. To prove that committing wrongful acts is not profitable.

“How much should you award? That’s entirely up to you. There’s no minimum and no maximum. But let me tell you one thing. If the number isn’t big—it isn’t going to mean anything. They can shrug off sums that would support you and me for the rest of our lives.” He pointed to the figures on his chart. “This corporation makes half a billion dollars a year! That’s over a million dollars a day. So here’s my recommendation—fine them one week’s profit. Just one workweek. Five million dollars. It seems huge to us, but it’s not going to bankrupt them. But it is enough to make them take notice. It is enough to send this message: Next time you’re thinking about saving money by doing something that will endanger the community—don’t.

“When all is said and done, this case is very simple. It all comes down to something you probably learned back in kindergarten. When you make a mess—you’re supposed to clean it up. Well, Blaylock made a huge mess in Blackwood, but they won’t clean it up. They could’ve and they should’ve—but they won’t. So you make them clean it up. Please. Make them take responsibility for what they’ve done.”

Ben drew in a deep breath, then stepped away from the rail. “I’ve said everything I have to say. Maybe I’ve said too much. This case is so important, in so many ways …” He didn’t finish the sentence. “But now it’s in your hands. Please—I urge you—be bold. Don’t shy away from doing what you know is right. When you return from the deliberation room, send not one but two messages with your verdict. Tell the Blaylock Corporation that this kind of conduct is unacceptable. And tell my clients, tell the parents who lost their children, that their loss was not in vain.”

Ben allowed himself a small smile. “Thank you for your time. We’ll wait around till you get back.”