The Runaway Jury (16 page)

Harkin leaned forward again and squinted hard. “What do you mean?”

“He should never have been picked for jury service, in my opinion. I don’t know how he answered the written questions, but he didn’t tell the truth or else he wouldn’t be here. And I distinctly remember questions during voir dire that he should’ve responded to.”

“I’m listening.”

“Okay, Your Honor, but don’t get mad. I had a conversation with him early yesterday morning. We were the only ones in the jury room, and, I swear, we weren’t discussing this case in particular. But somehow we got around to cigarettes, and Frank quit smoking years ago and he has no sympathy for
anybody who can’t quit. He’s retired military, you know, rather stiff and hard about—”

“I’m an ex-Marine.”

“Sorry. Shall I shut up?”

“No. Keep going.”

“Okay, but I’m nervous about this and I’ll be happy to stop at any time.”

“I’ll tell you when to stop.”

“Sure, well anyway, Frank’s of the opinion that anyone who smokes three packs a day for almost thirty years deserves what he gets. No sympathy whatsoever. I argued with him a little, just for the sake of it, and he accused me of wanting to give the plaintiff a huge punitive award.”

His Honor took it hard, sinking in his chair a bit, closing then rubbing his eyes as his shoulders sagged. “This is just great,” he mumbled.

“Sorry, Judge.”

“No, no, I asked for it.” He sat straight again, made another adjustment to his hair with his fingers, forced a smile, said, “Look, Mr. Easter. I’m not asking you to become a snitch. But I’m concerned about this jury because of pressures from the outside. This type of litigation has a sordid history. If you see or hear anything even remotely related to unauthorized contact, please let me know. We’ll deal with it then.”

“Sure, Judge.”

THE STORY, on the front page of the
Journal
, had been written by Agner Layson, a senior reporter who’d sat through most of jury selection and all of the testimony. Layson had practiced law for ten years and had been in many courtrooms. His story, the first of a series, gave the basics of the issues and
the specifics on the players. There was no opinion of how the trial was progressing, no guess as to who was winning or losing, just a fair summary of the rather convincing medical proof offered so far by the plaintiff.

In response to the story, Pynex’s stock dipped a dollar at the opening bell, but by noon had found itself sufficiently corrected and adjusted and was deemed to be weathering the brief storm.

The story prompted a flood of phone calls from brokerage houses in New York to their analysts on the ground in Biloxi. Minutes of meaningless gossip accumulated into hours of hopeless speculation as the harried souls in New York quizzed and inquired and pondered about the only question that mattered: “What’s the jury gonna do?”

The young men and women assigned to monitor the trial and predict what the jury might do had no collective clue.

Eleven

T
he cross-examination of Bronsky ended late Thursday afternoon and Marlee struck with a fury Friday morning. Konrad took the first call at seven twenty-five, routed it quickly to Fitch, who was on the phone to Washington, then listened as it played on the speakerphone: “Good morning, Fitch,” she said sweetly.

“Good morning, Marlee,” Fitch answered with a happy voice, his best effort at pleasantness. “And how are you?”

“Fabulous. Number two, Easter, will wear a light blue denim shirt, faded jeans, white socks, old running shoes, Nikes, I think. And he’ll bring with him a copy of
Rolling Stone
, October issue, Meat Loaf on the cover. Got that?”

“Yes. When can we get together and talk?”

“When I get ready. Adios.” She hung up. The call was traced to the lobby of a motel in Hattiesburg, Mississippi, at least ninety minutes away by car.

Pang was sitting in a coffee shop three blocks
from Easter’s apartment, and within minutes he was loitering under a shade tree fifty yards from the ancient VW Beetle. On schedule, Easter exited through the front entranceway at seven forty-five, and began his customary twenty-minute walk to the courthouse. He stopped at the same corner grocery for the same newspapers and the same coffee.

Of course, he was wearing exactly what she’d promised.

Her second call also came from Hattiesburg, though from a different number. “Got a new wrinkle for you, Fitch. And you’re gonna love it.”

Fitch, barely breathing, said, “I’m listening.”

“When the jurors come out today, instead of sitting, guess what they’re gonna do?”

Fitch’s brain froze. He couldn’t move his lips. He knew he wasn’t expected to make an intelligent guess. “I give up,” he said.

“They’re gonna do the Pledge of Allegiance.”

Fitch shot Konrad a bewildered look.

“Got that, Fitch?” she asked, almost mocking.

“Yeah.”

Her line went dead.

HER THIRD CALL went to the law offices of Wendall Rohr, who, according to a secretary, was quite busy and unavailable. Marlee understood perfectly well, but explained that she had an important message for Mr. Rohr. The message would arrive in about five minutes on the fax machine, so would the secretary be so kind as to receive it and take it straight to Mr. Rohr before he left for court. The secretary reluctantly agreed, and five minutes later found a plain sheet of paper lying alone in the receiving tray of the fax. There was no transmitting
number, no indication of from where or from whom the fax came. In typed, single-spaced words in the center of the page, the message read:

WR: Juror number 2, Easter, will today wear a blue denim shirt, faded jeans, white sox, old Nikes. He likes
Rolling Stone
and he will prove to be quite patriotic.

MM

The secretary rushed it to Rohr’s office where he was packing a bulky briefcase for the day’s battle. Rohr read it, quizzed the secretary, then called in his co-counsel for an emergency session.

THE MOOD couldn’t quite be classified as festive, especially for twelve people being held against their will, but it was Friday and the chatter was noticeably lighter as they gathered and greeted one another. Nicholas held a seat at the table, near Herman Grimes and across from Frank Herrera, and he waited for what he thought to be a lull in the idle talk. He looked at Herman, who was hard at work with his laptop. He said, “Hey, Herman. I have an idea.”

By now Herman had the eleven voices committed to memory, and his wife had spent hours providing matching descriptions. He especially knew Easter’s tone.

“Yes, Nicholas.”

Nicholas raised his voice in an effort to catch everyone’s attention. “Well, when I was a kid, I went to a little private school, and we were trained to begin each day with the Pledge of Allegiance. Every time I see a flag early in the morning, I have this desire to give the pledge.” Most of the jurors were listening.
Poodle had gone out for a smoke. “And in the courtroom out there we have this beautiful flag standing behind the Judge, and all we do is sit and look at it.”

“I hadn’t noticed,” Herman said.

“You wanna do the Pledge of Allegiance, out there, in open court?” asked Herrera, Napoleon, the Retired Colonel.

“Yeah. Why not do it once a week?”

“Nothing wrong with that,” said Jerry Fernandez, who had secretly been recruited for the event.

“But what about the Judge?” asked Mrs. Gladys Card.

“Why should he care? In fact, why should anyone be bothered if we stand for a moment and honor our flag?”

“You’re not playing games, are you?” asked the Colonel.

Nicholas was suddenly wounded. He gazed across the table with aching eyes, and said, “My father was killed in Vietnam, okay. He was decorated. That flag means a lot to me.”

And with that, the deal was sealed.

Judge Harkin greeted them with a warm Friday smile as they came through the door one by one. He was prepared to zip through his standard routine about unauthorized contact, and get on with the testimony. It took a second to realize they were not sitting, as usual. They remained standing until all twelve were in place, then they looked at the wall to his left, behind the witness stand, and they covered their hearts with their hands. Easter opened his mouth first and led them in a vigorous recitation of the Pledge of Allegiance.

Harkin’s initial reaction was one of total disbelief; it was certainly a ceremony he’d never witnessed,
not in a courtroom, not by a group of jurors. Nor had he ever
heard
of such a thing, and by now he thought he’d heard or seen it all. It was not a part of the daily ritual, had not been approved by him, did not in fact appear in any manual or handbook. And so his first impulse, after the jolt, was to call them down, make ’em stop it; and they’d talk about it later. Then he instantly realized that it seemed horribly unpatriotic and maybe even downright sinful to interrupt a group of well-meaning citizens as they took a moment to honor their flag. He glanced at Rohr and Cable and saw nothing but open mouths and slack jaws.

So then he stood. About halfway through the pledge, he lurched forward and upward, his black robe floating around him, and turned to the wall, clutched his chest, and picked up the chant.

With the jury and the Judge honoring the Stars and Stripes, it suddenly seemed imperative for everyone else to do likewise, especially the lawyers, who couldn’t chance disfavor or show the slightest hint of disloyalty. They jumped to their feet, kicking over briefcases and knocking back chairs. Gloria Lane and her deputy clerks, and the court reporter, and Lou Dell, sitting out there on the first row, far side, likewise stood and turned and followed along. The fervor lost its momentum, though, somewhere beyond the third row of spectators, and Fitch was thus fortunately saved from having to stand like a Cub Scout and mumble words he barely remembered.

He was in the back row with José on one side and Holly, a comely young associate, on the other. Pang was out in the atrium. Doyle was back on his Dr Pepper crate on the first floor near the Coke machines,
dressed like a laborer, joking with the janitors and watching the front lobby.

Fitch watched and listened in utter amazement. The sight of a jury, on its own initiative and working as a group, assuming control of a courtroom in such a manner was simply hard to believe. The fact that Marlee knew it was coming was bewildering.

The fact that she was playing games with it was exhilarating.

At least Fitch, though, had some inkling of what was coming. Wendall Rohr felt thoroughly ambushed. He was so stunned by the sight of Easter dressed precisely as promised, and holding the exact magazine, which he placed under his chair, and then leading his fellow jurymen in the pledge, that he could only mouth the remaining words. And he did so without looking at the flag. He stared at the jury, especially at Easter, and he wondered what the hell was going on.

As the final phrase “… and justice for all” echoed up to the ceiling, the jurors settled into their seats and, as a group, looked quickly around the courtroom to assess the reactions. Judge Harkin adjusted his robe while shuffling some papers and seemed determined to act as if all juries were supposed to do the same thing. What could he say? It had taken thirty seconds.

Most of the lawyers were secretly embarrassed by the silly display of patriotism, but, Hey!, if the jurors were happy, then they were happy too. Only Wendall Rohr kept staring, seemingly speechless. An associate nudged him and they fell into a hushed conversation as His Honor raced through the standard comments and questions for the jury.

“I believe we’re ready for a new witness,” the Judge said, anxious to speed things along.

Rohr stood, still dazed, and said, “The plaintiff calls Dr. Hilo Kilvan.”

As the next expert was retrieved from a witness holding room in the back, Fitch quietly slipped out of the courtroom with José fast behind him. They walked down the street and into the old dime store.

The two jury wizards in the viewing room were silent. On the main screen, one was watching the initial questioning of Dr. Kilvan. On a smaller monitor, the other was watching a replay of the Pledge of Allegiance. Fitch hovered over the monitor, and asked, “When was the last time you saw that?”

“It’s Easter,” the nearest expert said. “He led them into it.”

“Of course it was Easter,” Fitch snapped. “I could see that from the back row of the courtroom.” Fitch, as usual, was not playing fair. Neither of these consultants knew of Marlee’s phone calls because Fitch had yet to share the information with anyone but his agents—Swanson, Doyle, Pang, Konrad, and Holly.

“So what does that do to your computer analysis?” Fitch asked with heavy sarcasm.

“Blows it to hell.”

“That’s what I figured. Keep watching.” He slammed the door and went to his office.

THE DIRECT EXAMINATION of Dr. Hilo Kilvan was handled by a new plaintiff’s lawyer, Scotty Mangrum from Dallas. Mangrum had made his fortune suing petrochemical companies for toxic torts, and now at the age of forty-two he was deeply concerned about consumer products that caused injuries
and death. After Rohr, he’d been the first lawyer to pony up his million bucks to finance the Wood case, and it had been decided that he would become fluent in statistical summaries of lung cancer. In the past four years, he’d spent countless hours reading every possible study and report on the subject, and he’d traveled extensively to meet with the experts. With great care and no regard for expense, he’d selected Dr. Kilvan as the man to visit Biloxi and share his knowledge with the jury.

Dr. Kilvan spoke perfect but deliberate English, with a touch of an accent that made an instant impression on the jury. Few things can be more persuasive in a courtroom than an expert who’s traveled a great distance to be there, and has an exotic name and accent to boot. Dr. Kilvan was from Montreal, where he’d lived the past forty years, and the fact that he was from another country only added to his credibility. The jury was on board long before he got around to his testimony. He and Mangrum tag-teamed through an intimidating résumé, with particular emphasis placed on the volume of books Dr. Kilvan had published on the statistical probabilities of lung cancer.