A Civil Action

by Jonathan Harr

  Schlichtmann blinked as if coming awake. “That was a good report,” he said.

  “Better than I remember it,” said Conway.

  Schlichtmann clapped his hands together and said, “Okay, everybody, let’s go to work.”

  At that moment, Conway’s friend Tom Neville appeared at the door of the conference room. Neville made his living as a defense attorney for insurance companies, but he came by the office most evenings to play the devil’s advocate for Schlichtmann. In his line of lawyering, Neville took few personal risks. He enjoyed watching the way Schlichtmann walked on the edge, and he didn’t mind taking Schlichtmann out after an evening of work and buying him dinner at an expensive restaurant.

  Schlichtmann glanced up at Neville but offered no greeting.

  “Well?” said Neville in a hearty, good-humored voice.

  “The judge is pissed off,” said Kiley.

  “What’s he pissed off about?”

  “Jan’s trying to get all this shit in,” Kiley lifted his chin to the pile in front of Schlichtmann, “and Skinner’s jumping all over him on relevance.”

  “Did you use that 1956 report about the tannery waste?” Neville asked.

  “I did,” said Schlichtmann.

  “And that didn’t crack Riley?”

  “He just denied it.”

  “The jury wants you to kick the shit out of this guy,” said Neville.

  Schlichtmann looked around the room. “Where’s Charlie? We need him now, damn it.”

  This was too much for Kiley to endure in silence. He stood and planted his hands on the table, the thick muscles of his shoulders and arms bunching under his white shirt. He thrust his face toward Schlichtmann, who drew back in his chair. “You take Riley through a logical sequence,” Kiley said with exaggerated patience. “You state the facts in simple declarative sentences. You get him up in front of the photographs and you say, ‘Mr. Riley, you saw all those barrels on your land. Isn’t it true that there was a pile here, and one here, and here? That pile was there in 1964, wasn’t it, Mr. Riley? You never once threw any of your barrels on that land? Never once?’ ” By now, Kiley was shouting. “You get him to say no, no, no! And then if he says yes just once, he’ll crack!”

  Neville jumped up, too, and hovered over Schlichtmann from the other side. “You got to manhandle him!” said Neville.

  “Yeah, great,” said Schlichtmann, his head bowed, his voice soft. “That’s good showmanship, but I’ve got to get evidence in.”

  “My God, this is the guy who killed your kids!” yelled Neville. “You should be attacking him with a fucking baseball bat! You shouldn’t be asking him”—Neville adopted a mincing tone—“And then what did you do next, Mr. Riley?”

  Schlichtmann slouched deeper in his chair, until he was almost supine. He stared vacantly past Kiley and Neville to the television, which still droned on.

  Kiley grabbed one of the documents and brandished it in front of Schlichtmann’s face. “Did you ever receive a letter in 1980 from the city about barrels all over your property, Mr. Riley? He says no and you drop this in front of him”—Kiley flung the letter down in front of Schlichtmann—“and you say, What’s this, Mr. Riley?”

  “Yeah! You’re better off making your point and not getting the document in,” said Neville.

  “What’s he going to say?” repeated Kiley, his lips curled in a sneer. “It doesn’t matter what he says! He’s fucked!”

  Then Kiley took a deep breath and sat down. He gave Schlichtmann a puzzled look. “In my eleven years of trial experience, you’ve got more shit to use on this guy than I’ve ever seen before. You can fucking destroy him. What does it take to get you mad?”

  Schlichtmann and Conway were the last to leave the office that evening. It was near midnight. “What do you think, Kevin?” Schlichtmann asked as they walked out the door together. “Should I have been more haranguing?”

  Conway looked thoughtful but he didn’t answer directly. “Riley surprised me today,” he said. “He came off looking better than he should have. He was so arrogant and combative in his deposition.”

  “He’s a liar but he’s not stupid,” said Schlichtmann.

  Conway nodded as he put on his coat. “I think you’ve got to get angry, Jan.”

  Schlichtmann got angry the next day. Some thought it went better than the day before. Schlichtmann himself announced after court that he felt pleased, and when he asked Kathy Boyer her opinion, she said, “I thought it was stronger today.”

  But Tom Kiley had seen no great improvement. If anything, thought Kiley, the old tanner had looked even more at ease on the witness stand. When Schlichtmann, trying to “manhandle” the witness, had interrupted Riley with a brusque “Is that correct, sir? Yes or no,” the judge had intervened. “Wait a minute, let him answer.” Riley had smiled confidently and embarked on a long monologue, telling the jury again that the tannery had never used TCE and had never dumped its waste on the fifteen acres. When Schlichtmann stood Riley up in front of the jury and took him on a tour of the fifteen acres, showing him a map of the land and the photographs taken in 1985 of old, rusted barrels, Riley said time and again, in a placid and serene manner, “No, it did not look that way to my eyes in 1980.… No, I don’t remember any debris pile there.… That, to me, doesn’t look like the site.…”

  And Facher had repeatedly objected to Schlichtmann’s questions as repetitious and argumentative. The judge had agreed. “Yes, you’re simply arguing with the witness,” the judge had told Schlichtmann in front of the jury.

  These rebukes were just the sort Facher liked to hear the judge utter, especially in front of the jury. At the morning break, downstairs on the third floor in the federal cafeteria, Facher was in high spirits. “A case depends on momentum and Schlichtmann doesn’t have any,” Facher told the young associates who gathered around him, coffee cups in hand. “He doesn’t know how to ask a proper question. Just from a craftsman’s point of view, I feel bad for him.” Facher’s young associates all smiled.

  Facher had worried about Riley. He knew the tanner to be a temperamental man, the sort of witness who was dangerous to himself. But Facher thought Riley had acquitted himself well, and that the danger had passed.

  Facher was wrong. The next morning, the first small crack in Riley’s composure appeared. It happened, oddly, when Facher began what was supposed to be a friendly cross-examination. Facher asked the tanner if there had ever been, to his knowledge, sludge of any kind dumped on the fifteen acres.

  Riley seemed resentful at being asked this question again. He seemed even to forget that Facher was his lawyer. “I have told you,” Riley replied sullenly.

  “Just tell us again,” Facher gently prompted.

  “No!” said Riley, his jowls flushing. “Never. Never in my knowledge. Absolutely never.”

  “Even assuming that sludge was deposited at any time on the fifteen acres, would that sludge contain any of the chemicals in this case?”

  “No!” said Riley, his voice growing louder. “Absolutely not! Without question! And I will go to my grave with that story!”

  The vehemence in the tanner’s voice startled Facher. His sleepy eyes came fully open and he looked at Riley curiously for a second. Then he laughed a soft, deprecating laugh. “I don’t want you to do that, sir,” he said. “I want you to stay well and happy.”

  At the Grace counsel table, Keating had not uttered a word in the courtroom for many days. But he had the right to cross-examine all witnesses, even if they were testifying only about Beatrice. He chose to exercise that right with Riley, embarking on a little friendly cross-examination of his own. “Isn’t it true,” Keating said to Riley, “that the tannery has been a good citizen of Woburn, a supporter of civic activities, supporter of a local baseball team and the like?”

  The question appeared to have a soothing effect on Riley. “We took a lot of pride in Woburn,” said the old tanner. “We loved Woburn, and still do.”

  “You were born and bro
ught up in Woburn, and your children were born and raised there?”

  “Yes,” said Riley.

  “You consider Woburn your home, don’t you?”

  “Yes, I do.”

  And then Keating asked Riley about the fifteen acres. “That land is now owned by a nonprofit corporation called the Wildwood Conservation Corporation, of which you are the sole trustee?”

  “Yes,” said Riley.

  “And that corporation has dedicated the fifteen acres for conservation purposes, for the use and enjoyment of the citizens of Woburn?”

  There was no barb in Keating’s voice. A look of mild suspicion came over Riley, but he replied in a neutral tone. “It is a conservation commission for the preservation of wetlands, yes.”

  “No further questions, Your Honor,” said Keating.

  Schlichtmann looked at the jurors. He wondered if they saw the hypocrisy in Riley’s dedication of some of the most grotesquely polluted land in New England for the “use and enjoyment” of Woburn’s citizens. But the jurors’ faces remained a collective mask.

  It was Schlichtmann’s turn to question Riley on redirect examination. He considered exploring the subject of Riley’s “conservation commission” at greater length, but he decided that the jurors could not have failed to miss the irony. There was only half an hour left in the day, Riley’s last day on the stand, and Schlichtmann wanted to use the time differently. He knew exactly how he wanted the day to end, but he had to occupy some time first. He began by questioning Riley once again about his dealings with the public health authorities and the barrels on the fifteen acres. Riley answered brusquely. Facher objected and accused Schlichtmann of simply “running out the clock.”

  A few minutes before adjournment, Schlichtmann returned to the subject of the tannery’s records. “Mr. Riley,” said Schlichtmann, “you do not have any records from the 1960s and 1970s indicating what chemicals the tannery used, do you?”

  “No,” said Riley. “Only my memory.”

  “Those records have been destroyed, is that right?”

  Riley’s reply was curt. “Yes.”

  “Your records go only to 1979, the year the Wells G and H were closed?”

  “Yes.”

  “Mr. Riley, when did you destroy those records?”

  The tanner was instantly enraged. This question worked just as Schlichtmann had hoped. In a loud, angry voice, Riley said, “I don’t know when those records were destroyed, but I will repeat to you, sir, again and again, we never used trichloroethylene—”

  “No, no, no,” interrupted the judge. “You’re not being asked that. You’re being asked when the records were destroyed. You say you don’t know. Next question, Mr. Schlichtmann.”

  “That’s all,” said Schlichtmann, smiling.

  Walking down Milk Street with Nesson and Conway, Schlichtmann laughed out loud. “It was great, wasn’t it, Charlie! Why would Riley immediately make the connection between TCE and destroying records? Because he was covering up! The jury understood that, didn’t they? Did you see Facher? How totally crumpled he was? He was walking out and Frederico said something to buck him up, and Facher said, ‘I don’t want to feel better.’ God, it was just great! It felt so good!”

  The point, once elucidated, seemed cogent. Why had Riley made that connection all on his own? But to Nesson, it seemed as if Schlichtmann had not hammered home this point for the jury. Perhaps, thought Nesson, Schlichtmann understood the case too well. He expected everyone to be a master of its subtleties.

  But Nesson was glad to see Schlichtmann in high spirits again. And maybe Schlichtmann was right in thinking that he’d exposed Riley as a liar in the eyes of the jurors. In the enclosed, ritualistic world of the courtroom, where judges wore black robes, witnesses were sworn to tell the truth, and panels of silent strangers held one’s fate in their hands, reality was often a mere shadowland.

  4

  Every morning Kathy Boyer sent eight copies of the previous day’s trial transcript out to Woburn by courier. The courier would drop off the transcripts at Donna Robbins’s small apartment on North Main Street, and someone from each of the families would come by in the late afternoon or early evening to pick up their copy. Usually they would linger for a while to chat and hear Donna’s account of her daily telephone briefing with Schlichtmann, coming away from their evening ritual with a sense of solidarity and purpose.

  In the beginning, all of the Woburn adults tried to keep abreast of the growing pile of transcripts. But they found the reading laborious and full of confounding legal arguments. Most tended to rely instead on the reports in the Woburn Daily Times, which were more easily digested than the raw transcript testimony.

  Richard Toomey was one of the few who continued to read the transcripts faithfully every evening. After dinner and a long day at the metal shop, he’d sit in the recliner in his living room, a transcript in his lap. He’d found the reading difficult at first, but he’d persisted. Now he found himself looking forward to the next day’s episode. He felt drawn to the transcripts, he said, in the way he imagined some people got addicted to soap operas. The bench conferences, where the lawyers argued among themselves and with the judge, particularly engrossed him. He had despised Facher initially, but in time that had turned to a grudging respect. “His attack on John Drobinski was a terrible thing,” Richard said one evening at home, surrounded by transcripts. “The judge let it go on day after day. Facher dominates everybody, including Jan and the judge. It’s almost like Facher’s giving lessons to the judge.”

  One of the eight families, the Gamaches, paid almost no attention at all to the details of the trial. Six months earlier, Roland Gamache had entered the fulminant end-stage of leukemia, what his doctors called a “lymphoid blast crisis.” He was treated with an aggressive round of chemotherapy, but that failed to induce a remission. His only hope for survival lay in a bone marrow transplant from a compatible donor. None of his immediate family, however, proved compatible. On the advice of his doctors, Roland elected to have a transplant from a non-related donor. He and his wife, Kathryn, flew to Iowa City for the operation. There Roland suffered multiple complications from the bone marrow transplant and his hospitalization was, according to the records, “stormy.” He died on April 17, in the sixth week of trial. His body was flown home for burial. A gathering of mourners that included several of the families attended a private service at St. Joseph’s Church in Woburn.

  All the families had felt a flurry of excitement and high expectations at the start of trial. But now, as the weeks dragged on and the daily transcripts mounted into a towering pile, their lives settled back into the normal daily routine of work and school. The trial—their trial—became a distant echo.

  In the courtroom, Schlichtmann had begun his case against W. R. Grace. Nesson couldn’t understand why he had bothered to call a former Grace worker named Frank McCann to the witness stand. McCann admitted using TCE to clean fingerprints and grease off conveyor belts, but he insisted that he’d never dumped any waste solvent behind the plant, nor had he ever seen anyone else doing so. Nesson shook his head in consternation over McCann. “I thought he was a net loss. I don’t understand why you called him.”

  “Charlie, Charlie!” exclaimed Schlichtmann, his eyes wide in astonishment. “Don’t you see what I did? This guy said he used a half-gallon of TCE a day. Half a gallon! He said the conveyor belt bubbled if he left it on too long. If the jury hears that often enough, they’ll damn well remember it.”

  Nesson had to agree this was true, but if he had missed that point, he wondered how Schlichtmann could expect the jury to get it. Nonetheless, the case against W. R. Grace was moving swiftly, and despite some misgivings Nesson told Schlichtmann one afternoon, “I think it’s going fabulously well against Grace.”

  Schlichtmann managed to get six witnesses, all former Grace employees, on and off the stand in one day, a record for this trial. In large part this happened because Facher was, for the time being, just a spectator. Schl
ichtmann’s examination of Tom Barbas took a day and a half, but it went smoothly. At first Barbas sat erect in the witness stand, in a blue blazer and red tie, but as the hours passed his shoulders sagged and the judge had to urge him repeatedly to keep his voice up. “Shout as if you are outdoors, Mr. Barbas,” urged the judge.

  Schlichtmann asked Barbas to describe what he did at the end of work each day with the tray of paint sludge and waste solvent, and Barbas said, “I would take the tray out to the rear of the plant and place it on the ground.”

  “You dumped it on the ground, didn’t you, Mr. Barbas?” said Schlichtmann.

  “I don’t think I said ‘dumped,’ ” replied Barbas cautiously. “I said I used to place the material on the ground and let it dry.”

  Barbas, of course, had spent hours with the Grace lawyers preparing for every nuance of his testimony. This answer sounded like one the lawyers had drummed into him. But Barbas found himself trapped time and again by his deposition testimony. When Schlichtmann asked Barbas how often he’d seen Joe Meola, the maintenance man, dump pails of solvent on the ground, Barbas said, “I believe I only saw him a few times.”

  “Didn’t it happen at least once a week?” Schlichtmann asked.

  “I don’t know if I saw him doing it once a week.”

  Schlichtmann picked up Barbas’s deposition and flipped it open. “At your deposition, didn’t I ask you how frequently Mr. Meola poured waste liquid into the trench? And didn’t you answer, ‘At least once a week’?”

  “Yes,” said Barbas.

  “And isn’t that the case?”

  “I believe it to be, yes,” conceded Barbas.

  After a while, when Barbas balked, Schlichtmann would simply pick up the deposition and start toward the witness stand, and Barbas, seeing this, would turn docile and give the answer Schlichtmann sought.

  During the morning recess, Tom Kiley lingered in the corridor outside the courtroom, watching from afar as two Grace lawyers escorted Barbas into a small alcove. He saw Barbas standing mute, looking sadly at his shoes, while the lawyers pressed close and whispered to him. Kiley smiled. “There’s a pool of blood on the floor,” he told Schlichtmann afterward.