A Civil Action (69 page)

Schlichtmann read that on the morning of September 9, 1983, Delaney had seen a red truck carrying a load of “fill” leaving the fifteen acres. “Truck returned while I was talking with the loader operator less than 10 min. after its departure,” Delaney had written. “Loader operator indicated they would be picking up some misc. trash and leave Shortly.… Curious about need to pick up trash when it appears to have been scattered everywhere for such a long time.… Fill pile contained artificial materials scraped from nearby. This pile contained a brown material. This pile now gone—some residual brown material remains.”

“My God,” cried Schlichtmann. “Sample Z! Even the EPA saw Riley removing his shit from the fifteen acres!”

Delaney’s field notes concluded with an observation: “Subjective: Trash pickup seemed token. Both drivers seemed uncomfortable with me being there.”

Schlichtmann sent the affidavits and Delaney’s field notes to Judge Skinner, along with a motion to broaden the scope of the inquiry. He sent them
in camera
, for the judge’s eyes only. “Premature disclosure,” Schlichtmann wrote to the judge, “may impede further inquiry.” He feared, in other words, that Facher might get to Knox or Granger.

The judge rejected the motion that same day with an angry note, written in his own hand across the top of Schlichtmann’s motion: “Denied. I will not consider
in camera
affidavits. The affidavits and plaintiffs’ further submission regarding the scope of the inquiry are to be returned forthwith to plaintiffs’ counsel.”

Skinner hadn’t even looked at the material. Schlichtmann tried again the next morning, filing a Notice to the Court that he had obtained eyewitness testimony of misconduct and destruction of evidence. In light of the Court of Appeals’ order for an “aggressive” hearing, he felt compelled to present this testimony.

This time Judge Skinner’s reply was of a much different sort. The judge ordered full discovery, complete with depositions. He would hold hearings every Tuesday and Thursday afternoon for as long as necessary, even through next summer, to bring this matter to a close. He expected live witnesses and cross-examination. He would accept no affidavits.

Schlichtmann tried to reach Larry Knox, hoping to persuade the well driller to come to court. He called Knox five days in a row, six or seven times a day, leaving messages. Knox never returned a single call. On the Monday morning before the hearings were scheduled to begin, Schlichtmann awoke at six o’clock and, lying in bed, he called Knox in northern Massachusetts, near the New Hampshire border, where Knox was now working. On the third call, Knox finally came to the phone. Schlichtmann pleaded with the well driller. “Listen, Larry, this is so important. You’re the one person who can tell the truth, who can make the system work.… Why won’t you do this, Larry? Did someone from the other side get in touch with you …? No, no, that won’t happen.
It’s nothing about your past, it’s just limited to what you saw. It’ll be as painless and quick as I can make it.… Is there something else, Larry? Something you’re not telling me? Larry, please, please … Larry?”

Knox had hung up. Schlichtmann immediately called back. “Larry, please, I just want—Larry, don’t hang up—”

Schlichtmann got out of bed, screaming oaths.

In the office, he prepared a subpoena for Knox and called a constable to serve it. The constable came to the office wearing a tweed sports coat and carrying a large revolver on his hip. Schlichtmann was loath to subpoena Knox, but it seemed he had no alternative. He and Crowley drove up to the site where Knox was working, near the New Hampshire border, with the constable following behind. It was late in January but the day was unseasonably warm. They found Knox in a muddy field where a new interstate highway was being built. Schlichtmann walked across the field, mud caking around his two-hundred-dollar Bally shoes, spattering the trousers of his suit. He saw Knox, back turned to him, at work on a big drilling rig. Knox wore a torn flannel shirt and a pair of mud-splattered trousers supported so low around his midriff by a single suspender that the crack of his buttocks showed. The drilling rig made a terrific din, and Knox apparently had not heard Schlichtmann approach. Schlichtmann edged around until Knox saw him. He nodded deferentially and smiled at the well driller. He couldn’t hear what Knox said over the noise of the drilling rig, but he could see Knox’s lips form the words, “Oh shit.”

Schlichtmann waited patiently by Knox’s pickup truck. Knox turned around every so often to look at Schlichtmann. An hour passed. Schlichtmann remained standing at the truck. At three-thirty, a whistle blew—it was quitting time—and Knox shut down the drilling rig. He came over to his truck, walking past Schlichtmann as if he were not there. “Larry,” began Schlichtmann.

“Get lost,” said Knox. “I already gave you a statement. I don’t want nothing to do with you.”

Crowley and the constable lurked in the background. Schlichtmann had asked the constable not to serve the subpoena unless Knox started to leave. “Wait until I give you the signal,” Schlichtmann had said.

Knox circled his pickup truck and climbed into the driver’s side. Schlichtmann followed him. “I’m warning you, goddamn it,” said Knox, holding up a fist. Schlichtmann took off his glasses but didn’t
stop talking. He was willing to get hit if that was the price of getting Knox into Judge Skinner’s courtroom.

A hundred yards away, Crowley told the constable, “You better do it now, I think he’s leaving.” The constable lurched across the field. Schlichtmann saw him coming at a gallop and thought for a moment that he might even draw his gun. Schlichtmann tried to wave the constable off. The constable, breathless, flung the subpoena at Knox. It struck the well driller in the chest and fluttered to the ground. “There!” shouted the constable. “You have been served with a subpoena to appear in U.S. District Court.”

Schlichtmann bent down to pick up the subpoena. He brushed mud from the envelope and extended it in an apologetic manner to Knox. The driller took the envelope and shook it angrily at Schlichtmann. “All right, you asshole, now you’ve really done it.” Knox slammed the door of his truck, turned the ignition, and the truck careened over the soft earth, the big tires spitting mud at Schlichtmann.

Schlichtmann gestured angrily with his arms, a flailing movement, a man fighting demons. And then he stared dumbly at the ground. Crowley came up to him and said softly, “Let’s go, Jan.”

In the car, Schlichtmann sat mute, head tilted against the backrest, eyes vacant. Crowley drove out of the muddy field and onto the paved road. A quarter of a mile away Crowley saw several trucks by the side of the road. Knox was standing by the cab of his truck. Crowley pulled his car over, a hundred feet or more behind Knox. Schlichtmann got out and began walking toward Knox, who stared balefully at him for a moment and then climbed back into his truck. Schlichtmann thought to himself, Please God, don’t let him leave. He repeated this like a mantra.

When he reached Knox’s truck, he put his hands on the door. It was so important to him that he find the words to convince Knox, so important that he not utter the wrong words, the ones that would drive Knox away, that in the end he could find no words at all. Tears formed in his eyes.

Knox regarded him in amazement. “Jesus Christ, you are a persistent bastard,” said the well driller.

Schlichtmann nodded and tried to speak, but his words emerged as a croak.

“Stop that,” said Knox.

The tears flowed down Schlichtmann’s cheeks. He took off his glasses to wipe them away.

Knox sighed hugely and lit a cigarette. “Okay,” he said. “Just tell me where you want me to be.”

5

During the next two months, Judge Skinner heard the testimony of twenty-six witnesses and received into evidence 236 exhibits totaling almost three thousand pages. The misconduct hearings lasted longer than most major trials. True to his word, Larry Knox appeared at the appointed time, dressed in his Sunday best—his blue Elks jacket and a brilliant crimson Red Sox sweater. He acquitted himself well under Facher’s cross-examination. Whatever fears he had of past crimes or misdemeanors emerging in the courtroom proved unfounded. Facher simply had not had enough time to pry for skeletons in Knox’s past.

The driver of the tannery’s Michigan loader, a lanky blond man named William Sorenson, testified that he had spent only one day down on the fifteen acres and that he had removed nothing unusual, just scrap metal and old wood. He had dug a path through some underbrush to clear the way for a monitoring well. He said that he had removed mostly brush, a little bit of soil, no more than three cubic yards, and some trash. The soil had looked nothing like tannery waste, said Sorenson. After Sorenson, the engineer who had ordered the monitoring well installed testified that only miscellaneous trash, scrap iron, and “grub material” had been removed from the property.

Judge Skinner saw little value in any of this testimony, and he chastised Schlichtmann for wasting time. “You got what you were after, somebody removing something from the property,” the judge said. “Whether that was a legitimate activity or some dire conspiracy remains to be seen.”

Schlichtmann tried to call the EPA’s investigator, David Delaney, to the witness stand. Delaney would be able to tell the court that this activity had been suspicious and that the material removed bore a striking resemblance to Sample Z. But the EPA refused, as a matter of policy, to let its employees testify in private civil actions. Judge Skinner could have challenged EPA policy by compelling Delaney’s testimony, but he chose not to.

Schlichtmann entered Delaney’s field notes into evidence. Despite Delaney’s observations—“Both drivers seemed uncomfortable with me being there”—Judge Skinner saw nothing nefarious in any of this. Again he accused Schlichtmann of wasting time. “Delaney was standing right there,” the judge said angrily to Schlichtmann. “That’s a hell of a way to remove evidence, right in front of the policeman.”

During the second week of the hearing Schlichtmann got a call from the newest member of Facher’s team, a forty-three-year-old lawyer named James Quarles. Quarles had been one of “Jerry’s boys” when he first came to Hale and Dorr fifteen years ago, and now he’d been brought up from the Washington office to help Facher handle this case, although Facher still conducted most of the cross-examinations. Quarles was tall, with a large, drooping mustache and tortoiseshell glasses, and he had a pleasant, undemonstrative manner, the demeanor of a reasonable man. Schlichtmann rather liked him.

He and Quarles met at a restaurant, not far from the courthouse. Quarles wanted to talk about settling the case before it went any further. He told Schlichtmann that Facher was in tremendous pain because of this affair. But Facher, he said, wanted to see it through to the end, to vindicate himself. Facher thought that paying anything over fifty thousand dollars was an admission of guilt. Nonetheless, continued Quarles, he was offering to end everything now for a hundred thousand dollars per family, eight hundred thousand in all.

Schlichtmann said he didn’t even have to take that offer to the families. “I can reject it right now.”

“We didn’t do anything wrong,” said Quarles, getting up and putting on his coat. “It’s not our problem. Jack Riley and Mary Ryan may have screwed up, but the judge isn’t going to give you a new trial.”

Quarles dropped a twenty-dollar bill on the table. He’d heard about Schlichtmann’s debts. An IRS agent had come to Hale and Dorr and told Jacobs the government had a lien on any settlement with Schlichtmann.

Schlichtmann refused the money. “All you had was a Diet Coke.” He shoved the bill toward Quarles.

“I insist,” said Quarles, who turned and walked out.

Schlichtmann called Conway and Crowley from the restaurant and told them to come over. When they arrived, Schlichtmann told them what had happened. The twenty-dollar bill still lay on the table.
Schlichtmann picked it up and slowly ripped it lengthwise. Then he ripped it again.

Conway’s mouth fell open. “Jesus, Jan, what are you doing?”

Schlichtmann tore the bill into small pieces, a small mound of green on the table before him. “I want nothing to do with his money.”

That evening, back at the office, Conway fixed a fresh pot of coffee and sat on a stool waiting for it to percolate. Peggy was with him, and she listened to his worried thoughts. “We’re going down a real dark road,” Conway told her. “No one is rational, not the judge, not Facher, not Jan. Maybe I’m not rational. I have a tremendous headache. Witness after witness, and it doesn’t make any difference to Skinner. He says the notion of a conspiracy is absurd. Jan—all he wants to do is fight. This could go on for the rest of our lives. It’s Dante’s ninth circle. Win, lose, appeal, win, lose, appeal.”

Schlichtmann called James Granger, the former tannery maintenance engineer, to the witness stand in the second week of the hearings. Granger was a reluctant witness. He announced to the judge that he would not have come had he known that the subpoena served by Schlichtmann was invalid outside a hundred-mile limit. When Schlichtmann entered the courtroom on the day of Granger’s appearance, he saw Granger sitting beside Mary Ryan in the first row of the gallery. It looked as if she had Granger on a leash. As Schlichtmann walked past, he saw Granger stare malevolently at him. On the witness stand, Granger said that Riley had instructed him over a period of weeks to remove scrap metal and trash from the fifteen acres. During that time, he had uncovered a pile of discolored soil.

“What did the soil look like?” the judge asked Granger.

Granger seemed uncomfortable, but he answered that it looked like tannery sludge, with manure and hair, “like something that sometimes came out of the catch basin.”

Sample Z. Schlichtmann was astonished. Granger had not admitted that in his affidavit.

There wasn’t a lot of it, continued Granger, only enough to fill the bucket of the tannery’s Michigan loader, about three cubic yards. Riley had told him to remove it. Afterward, Granger went back to see if it was all gone. Some clumps remained. In one area, near the new monitoring
well, Granger had spread leaves around. “So that it kind of looked like we didn’t dig up anything out of the ordinary.”