A Civil Action

by Jonathan Harr

  But Drobinski’s time on the witness stand was not over. In fact, his true ordeal was just beginning. On Friday afternoon, at the end of the second week of trial, Facher began a cross-examination that would last the entire third week. He sought to portray Drobinski as a biased and untruthful witness, handsomely paid for his testimony, who had looked only for information harmful to Beatrice. Wasn’t it true, Facher demanded, that most of the fifteen acres was “pristine,” full of “pretty little blue wildflowers”? Wasn’t it true that only six of Drobinski’s nineteen auger samples had contained TCE? Why hadn’t Drobinski told the jury that fact? Wasn’t it true the highest levels of TCE occurred at the surface of the soil? And that the levels declined the deeper Drobinski dug? This meant the contamination had to be recent, not twenty years old, didn’t it? Wasn’t that plainly obvious to anyone?

  “People are greedy,” Facher once told his Harvard class. “The biggest problem with witnesses is that most of them exaggerate.” In Drobinski’s deposition testimony, Facher had found an exaggeration, and now he drew it forth for the jury to see. Drobinski had claimed he’d gotten his master’s degree in geology in 1976, but Facher, taking nothing for granted, had learned that the degree had actually been awarded in 1979. “Didn’t you tell me under oath, at your deposition, that you had a degree in 1976?” Facher asked.

  “Sir,” replied Drobinski, “I was told by my thesis committee and the geology department that I did have my degree.”

  “You were told? You’re saying you had a verbal degree in 1976?” Facher’s voice was full of incredulity. “Is that what you want the jury to believe? Do you know of any university in the world that grants oral degrees?”

  Then Facher showed Drobinski a copy of his application to the state of Oregon, also made under oath, for certification as a geologist. “Did you swear under penalties of perjury that you had a degree in 1976?”

  Drobinski studied the application. “Yes, sir, that’s what it says.”

  “You were trying to get your license in the state of Oregon by filing a paper that contained false information, isn’t that right?”

  “I would not characterize it that way,” said Drobinski.

  “It was under oath, wasn’t it?”

  “Yes, sir.”

  “It says ‘1976’ opposite ‘master’s degree,’ doesn’t it?”

  “Yes, sir.”

  “You were trying to tell the state of Oregon you already had your master’s degree when you didn’t, isn’t that right?”

  And so it went for a long while that day, Facher brandishing this small, but perhaps telling, inconsistency in an effort to cast doubt on the veracity of everything Drobinski had said.

  Schlichtmann sat quietly at the counsel table. He looked completely calm, his features bland and inscrutable, but he was seething inwardly. If this were a deposition, he would have interrupted a dozen times and fought bitterly with Facher. But now, in the courtroom, he rarely objected to any of Facher’s questions, even when he had legitimate cause. He disliked objecting in front of jurors. He didn’t want any juror to get the idea that he was trying to conceal something under the cloak of a legal technicality.

  Schlichtmann had his head turned slightly to his right so that he could see, out of the corner of his eye, Drobinski on the witness stand. The geologist was lean and wiry, with a broad forehead and a thick mustache. He sat forward on the edge of his chair, just as Schlichtmann had instructed, his hands clasped lightly together on the small wooden desk in front of him. Schlichtmann thought Drobinski was holding up well, all things considered. Drobinski answered Facher politely, always calling Facher “sir,” and never once raising his voice or betraying any irritation. Schlichtmann could also see Facher standing splayfooted before the geologist, his arms crossed over his chest, his shoulders hunched, a gray wisp of a man with heavy-lidded eyes and thick glasses. His lips were pursed in a manner suggesting profound skepticism.

  After a while, Schlichtmann noticed something curious. When Facher turned away from Drobinski to pace in the well of the courtroom, Schlichtmann saw the geologist glance down at his cupped hands. Drobinski quickly looked up when Facher turned back to face him. And then, when Facher asked Drobinski to approach the jury box to explain an exhibit, Schlichtmann saw the geologist slip something from his hand into his coat pocket.

  It seemed peculiar to Schlichtmann. After court that day, on the walk back to the office, Schlichtmann asked Drobinski about it. Drobinski took from his coat pocket a snapshot of his family—his wife, his young son, and his daughter. The snapshot was creased and dog-eared and stained with sweat from the palm of Drobinski’s hand.

  Schlichtmann smiled and shook his head sadly.

  Drobinski put the photo back into his pocket and apologized for the problem his degree had caused.

  “Don’t worry about it,” said Schlichtmann. “The jury won’t care about that.”

  Schlichtmann believed this. After all, Drobinski did have the degrees he claimed to have earned. Schlichtmann thought that Facher’s personal attack might even have won Drobinski some sympathy. He found himself more worried about the effect of Facher’s interminable objections. Facher had managed to prevent Drobinski from giving a clear, crisp presentation. But had he succeeded in fragmenting the testimony to the point where a jury of twelve average citizens couldn’t reassemble the pieces? Schlichtmann had no way of knowing what the jury thought, but he could not afford to fall prey to doubts now. He told himself that the jurors had understood Drobinski.

  3

  Schlichtmann dreamed that his firm—he, Conway, and Crowley—had purchased a sailboat. The sailboat was frozen in a sea of ice, which became, in the peculiar way of dreams, a vast glacier. In his dream, Schlichtmann fell from the deck of the boat and careened down the glacier’s icy surface. He could see looming before him a dark crevasse in the blue ice. An instant before he tumbled down into the crevasse, he awoke, the bedsheets knotted and wet with perspiration.

  The dream was so vivid and unsettling that he felt compelled to tell everyone at work about it the next morning, as if by doing so he could exorcise its apparent prophecy. His dreams were not always so richly metaphorical. To his dismay, he usually dreamed about the trial—the courtroom, the judge, the witnesses—in painfully realistic detail, awakening at the first light of dawn and feeling as if he’d worked throughout the night.

  The trial was moving more quickly now. Schlichtmann was still presenting evidence against Beatrice, leaving Keating and Cheeseman little to do for the time being. He called to the witness stand several Woburn residents who told of seeing piles of debris and dozens of barrels strewn across the Beatrice land from the late 1950s to the 1970s. One witness, now in his mid-thirties, described how he and others had played on the land as children, fashioning rafts by lashing barrels together. This witness recalled seeing “a constant spray of whitish, grayish stuff being blown out the back door” of the tannery, and men dumping “wheelbarrow loads of some sort of sludge” down the side of the hill. “All us kids, we called that area Death Valley because there were dead trees covered with a whitish powder.” Another witness told of seeing flatbed trucks laden with barrels drive onto the land. “They didn’t want me to be around there,” said this witness. “They would throw things at me, scare me, chase me out of there. Afterwards, it would be wet and it would smell, too, like rotten eggs. I know it was some kind of chemicals, it had to have been.”

  For the past several days, during breaks in the testimony, Schlichtmann had seen John J. Riley waiting in the corridor outside the courtroom doors. The old tanner had tried to take a seat in the near-empty gallery, but the judge had ordered all witnesses sequestered, and Riley had been banished to the corridor. Riley sat alone on the bench near the stenographer’s office, the fabric of his expensive dark blue suit stretched tightly over his massive shoulders and meaty thighs. During the morning recesses, when Schlichtmann gathered with Conway, Nesson, and Kiley in the corridor, Riley would rise from his bench and st
are balefully at Schlichtmann from afar, his thin lips compressed and turned down in a look of bilious hatred.

  Schlichtmann never met Riley’s stare. He acted as if the old tanner wasn’t there. But he felt the heat of Riley’s anger, and to Schlichtmann it was like a sunny warmth. He wanted Riley angry. He wanted to stoke Riley into a rage on the witness stand. He had anticipated this moment for months, ever since Riley’s deposition, when the tanner had contemptuously emptied a glass of water on the bird’s-eye-maple conference table. “If I choreograph it right,” he told Conway, “Riley will crack. He’ll demonstrate to the jury that he’s an utter and complete liar.”

  The old tanner ascended to the witness stand and swore to tell the truth on the afternoon of April 19, at the end of the fourth week of trial. As Schlichtmann questioned him, it became apparent that he had been well prepared by Facher and Jacobs. In a benign, almost courteous manner, he steadfastly denied ever dumping tannery waste or barrels on the fifteen acres. “We had our well on that land,” said Riley, referring to the tannery’s production well. “It was our livelihood, our lifeblood. We’re not going to run a dump where our well was.” In thirty years, from the early 1950s up to 1980, he himself had never seen any barrels or industrial waste on the property. “Maybe a tire or two,” he said with a shrug. “Some old timbers from a shack that was there.”

  These denials didn’t surprise Schlichtmann. He had, in fact, counted on eliciting them to set up his confrontation with Riley. He produced what he liked to call his “killer document”—the 1956 report by state health agent A. C. Bolde, in which Bolde had ordered Riley to remove six hundred feet of tannery sludge from the edge of the Aberjona marsh. That report told, in black and white, how Riley had refused, claiming that he owned the land and could do what he wanted on it. Now, as Schlichtmann placed this document in front of Riley, he had high hopes. He didn’t really expect Riley to confess, but he did expect the tanner to falter, and even better, to lose his temper.

  But Riley did neither. He denied ever meeting Bolde, and he did so with majestic serenity. “No, sir,” he said, shaking his massive head, “I’ve never been on the fifteen acres with anybody from any body of public health.”

  Schlichtmann pressed Riley. “Didn’t you go down the access road with an investigator from the state Department of Public Health?”

  “No, sir, I did not,” replied Riley calmly.

  Direct examination of a hostile witness is the most difficult of all the trial lawyer’s skills. Schlichtmann’s examination proceeded fitfully, interrupted by Facher’s objections and the inevitable bench conferences. When Schlichtmann tried repeatedly to press Riley, the judge grew annoyed. “You’ve asked that question twice, and he’s answered it,” the judge told Schlichtmann in front of the jury. “Let’s move on.”

  At times that day, Schlichtmann seemed to lose the mechanics of his craft. He phrased questions in ways that violated the Rules of Evidence and standard courtroom procedure. Time and again, Facher rose to object, and when the judge sustained these objections, a small smile crept over Riley’s face. At one point the judge said, “This is an awkward way to do this, Mr. Schlichtmann.”

  Nesson tried to rescue Schlichtmann. “If I could be heard on this point—”

  But the judge curtly silenced Nesson. “You’re not entitled to be heard on every nit-picking point. Let’s get on with it.”

  Schlichtmann stood facing Riley, but he was staring down at his notes, trying to figure out how to phrase a question in a way that would overcome Facher’s certain objection. The courtroom was silent, and the silence grew longer and longer, broken only by the distant wail of an ambulance from the streets below.

  At the far end of the plaintiffs’ counsel table, seated next to Conway in the shadow of the judge’s bench, Tom Kiley grimly watched this scene. He longed to jump up and question Riley himself. Six months ago in Patten’s bar, when he had offered to help Schlichtmann with the case, Kiley had imagined that he and Schlichtmann would sit side by side, sharing the duties of direct and cross-examination. But now it was Nesson who sat by Schlichtmann’s side. “I keep thinking to myself, ‘I can’t fucking believe I’m just sitting here,” Kiley would say later. In the first weeks of the trial, he had written out questions for Schlichtmann, lines of examination he thought might prove fruitful. But Schlichtmann had his own way of doing things. Kiley found himself watching his friend and thinking, I’d do that differently. Sometimes Kiley thought, I could do that better. He’d steal glances at the big gold Rolex on his wrist and try to stifle yawns. For a time, he had considered no longer coming to the trial. He had a big case of his own, an accidental electrocution, to work on, and he was losing money sitting here. But he had offered to help, and even though the situation hadn’t turned out the way he’d expected, he felt obliged to stand by his offer. Besides, if something were to happen to Schlichtmann, he’d have to take over. Nesson and Conway weren’t trial lawyers, and Crowley lacked the experience for a case of this complexity. Kiley had decided he would stay, but he wouldn’t try to compete with Nesson for Schlichtmann’s attention. There’s enough going on without my ego getting in the way, Kiley thought. If Jan wants my advice, he can ask.

  Schlichtmann looked up from his notes and began questioning Riley again, trying to insinuate that the tanner knew full well others had used the fifteen acres as an industrial waste dump. Riley smiled tolerantly, as if Schlichtmann were a schoolboy who had to be set straight, and shook his massive head. “If I had been aware of that, I would have stopped it immediately.”

  “Why?” asked Schlichtmann.

  Kiley winced at this question. Every trial lawyer learns early in his career that he should never ask a hostile witness “Why?” and thereby invite the witness to make a self-serving speech.

  Riley readily accepted the invitation. “Because it was our land,” the tanner explained. “No one has the right to dispose of anything on our land.”

  Schlichtmann sat in the conference room that evening, his head cradled in his hands. “God, that was exhausting,” he said to Conway. “I looked at the clock and it said noon but it felt like it was five o’clock.”

  Nesson sat across the table from Schlichtmann. “I think the problem is you’re giving Riley too much leeway. It makes the examination seem meandering.”

  “The judge was being petulant,” muttered Schlichtmann. “He wanted to hurt us today.”

  Gordon came into the conference room and settled into a chair. He’d spent most of the day in the courtroom gallery and he hadn’t liked what he’d seen. The one good thing, he told Schlichtmann, was that Uncle Pete hadn’t come to court today. “You’ve got to get some direction,” Gordon said. “It wasn’t as crisp as you usually are.”

  Schlichtmann sighed and rubbed his eyes. “Was the jury against me?”

  Gordon shrugged. “Vogel’s attention was wandering,” he said, referring to the jury foreman.

  “I shouldn’t worry about the jury,” Schlichtmann murmured softly. “I should just do my job and not think about them.”

  The tall, willowy figure of Patti D’Addieco appeared at the door, behind Schlichtmann’s shoulder. She leaned against the doorframe and listened to the conversation. Schlichtmann, sensing her presence, looked over his shoulder. “Well,” he said to her, “what did you think?”

  “Can I be completely honest?” she asked.

  Schlichtmann gave her an exasperated look.

  “Riley didn’t come off as slimy as I thought he would.” She smiled sadly. “Sorry, Jan.”

  Nesson looked at Schlichtmann for a moment—a sober, appraising gaze. “I’m worried about you. You’re tired, and I am, too. Somehow, between now and tomorrow, we’ve got to get the energy level up. This is the case against Beatrice.”

  The lights along Milk Street came on, casting their glow into the conference room. Crowley turned on the TV to catch the evening news. A reporter from a local station had spent the day in the gallery listening to Riley’s testimony. Nesson lef
t for Harvard, promising to return later that night. Schlichtmann, Conway, and Crowley were sitting around the table, debating how to get a certain document into evidence over Facher’s objection, when Kiley arrived. “The question is relevance,” Schlichtmann was saying. “How can I set it up so the judge doesn’t have a problem with relevance?”

  Kiley sat down at the conference table and listened. He offered no advice. He stared at the television.

  “Why aren’t you guys helping me, goddamn it?” said Schlichtmann.

  Conway shook his head wearily. “I don’t know what to say.”

  “I don’t think you need it,” Kiley said at last, referring to the document with the relevance problem. “You want to dot all the i’s and cross the t’s, but that stuff doesn’t matter to the jury.”

  “I spent all weekend getting this stuff together!” cried Schlichtmann, lifting the stack of paper and letting it drop with a thud onto the table. “If Riley’s going to lie, I want to have a document that proves he’s lying.”

  “Let me put it this way,” said Kiley. “Anything you can put in smoothly, quickly and efficiently, you should use. Anything else is going to be a debacle. The jury just won’t understand what you’re trying to do.”

  From the television across the room, the anchorman announced, “Big day in the Woburn toxic waste trial.”

  Crowley rose and turned up the volume. An artist’s rendering of Schlichtmann appeared on the screen, his arm raised, his mouth open, standing beside Riley on the witness stand. In the background the judge frowned. The reporter’s voice said, “The families’ lawyer, Jan Schlichtmann, asked Riley, ‘Did you ever see any drums or barrels on your property?’ Riley said, ‘I don’t recall seeing any drums.’ The jury has already seen aerial photographs showing the property littered with what seemed to be drums and barrels.”