Silent Justice

by William Bernhardt

  “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.”

  Chapter 39

  CHRISTINA CONFRONTED JONES IN the hallway outside the office kitchenette.

  “Excuse me, Mr. Office Manager.”

  Jones whirled around. “Yes?”

  “I’ve just been to the refrigerator. There are no Cokes. None. Nada.”

  “I’m well aware of that. There are no Cokes and, for that matter, no exotic blended teas, no Chivas Regal, and no Bollinger 1953.”

  Christina’s right hand went to her hip, the sure sign that her Nordic temper was rising. “Jones, Ben has had a hard day. He needs a Coke.”

  “If you’ll recall, I was instructed to cancel or eliminate all unnecessary expenditures.”

  “Emphasis on unnecessary, Jones. Ben wants a Coke.”

  Jones made a sniffing noise. “He should learn to drink water. Soft drinks are bad for your health.”

  “Let’s cut him some slack, Mr. Jones. He doesn’t drink, he doesn’t smoke, he doesn’t do drugs. He doesn’t even eat powdered doughnuts, unlike a certain office manager I know.”

  “In case you’ve forgotten, Ms. McCall, this office is massively in debt. I have a fiscal responsibility—”

  Christina grabbed him by the collar and yanked him right under her nose. “This trial isn’t over yet, Jones. We don’t know what’s going to happen next. The only thing we know for sure is—we need Ben. So get him a Coke, understand?”

  Jones swallowed, then yanked a dollar bill out of his pants pocket. “There’s a soda machine on the second floor.”

  She pushed him away, her eyes still narrowed. “Go.”

  When Jones returned with the Coke, Ben was deep in a strategizing session with Christina and Professor Matthews.

  “Did you see the expression on juror number twelve’s face as she left the courtroom?” Ben asked as he took the Coke from Jones. He drank half the can in a single swallow. “I don’t think she liked me.”

  “Of course she liked you,” Christina reassured him. “She just had a lot on her mind. This is a very complex case. They all know that.”

  “Colby doesn’t,” Ben replied. “He thinks it’s all very simple. We represent quacks; he represents the forces of goodness and light.”

  “That guy makes me insane.” Jones inflated his chest and emulated Colby’s slightly swaybacked posture. “Please believe me when I say I have nothing but sympathy for the parents of those children,” Jones said, in a dead-on impersonation of Colby’s voice. “My heart weeps for them. See? It’s weeping now. Really. Boo-hoo. Boo-hoo-hoo.”

  Everyone in the room burst out laughing. It was a release they had long needed.

  “Colby called over here about an hour ago,” Ben informed them. “Made another settlement offer.”

  Jones’s eyes lit. “Generous?”

  Ben shook his head. “Barely more than last time. Not even enough to pay our clients" medical bills. He’s hoping to exploit the fact that the jury is still out.

  Jones raised an eyebrow. “So? …”

  “I told him to go to hell.” Ben’s eyes seemed almost hooded. “I haven’t come this far to sell our clients short now. I just hope …” His voice drifted off.

  “I think you should relax, Ben,” Matthews said, after a bit. “You put on the best case possible. We won the legal arguments—”

  “Thanks to you,” Ben interjected.

  “And you did great on the questions of fact,” he continued. “It was just a tough case, bottom line. And you can’t always win the tough cases. No matter what you do.”

  “We have to win this one,” Ben said. His eyes wandered over to the picture of Cecily’s little boy, Billy, which had been mounted over his desk since the first day Cecily walked into his office. “We have to.”

  “Ben,” Matthews said, “you need some major stress relief. I’ve got a little yacht down south, near Corpus Christi. When this is all over, I want you to come be my guest. That goes for you, too, Christina.”

  Ben looked up. “Now that’s a deal.”

  Loving stepped inside from the outer hallway. As always, his shoulders were so broad he barely fit through the doorframe. “Skipper? I got news.”

  “Good news, or bad?”

  “Some of both. I found Mrs. Marmelstein’s son.”

  Ben leapt out of his chair. “You did? Where is he? Here in Tulsa?”

  “Not by a long shot. He lives in Manhattan. Got a crummy little one-room apartment on the Lower East Side. I don’t know how people live like that. Do you realize those people don’t even have garbage disposals?”

  Ben wasn’t interested in a discussion of the relative merits of urban living. “Did you talk to him?”

  “Oh, yeah. And then some. That’s the problem.”

  “What? What’s the problem?”

  “Seems there’s a major-league dispute between the older generation and the younger. I can’t get all the details. I gather Paulie’s dad didn’t approve of Paulie’s choice of wife. Mrs. Marmelstein stood by her husband. There was a big row. Paulie got mad and split town—and never came back. The sad thing is—Paulie split with that wife more than twenty years ago. But he and his parents still never made it up.”

  “Did you tell him what’s happening?” Ben asked. “Did you tell him she’s asking for him?”

  “I did. And he refused to come see her. Absolutely refused. Said they told him he wasn’t welcome in their house, a million or so years ago, so he’s never coming back.”

  “But surely if you tell him his mother is dying—”

  “Believe me, I played every card in my deck. It made no diff to this schmuck. Talk about carrying a grudge.”

  Ben fell back into his chair. “I’m sure he’s hurt. Still angry about what happened in the past. But I stopped by the hospital this afternoon and—” He shook his head. “We don’t have much time left. If Paulie doesn’t come now—it’s going to be too late.”

  Loving frowned. As Ben well knew, he didn’t like to disappoint. “I’ll keep working on him, Skipper.”

  “Please do.” Ben glanced at his watch. “I’m going out to Blackwood and talk to Cecily and some of the other parents. I think they had some hope that the jury would be so outraged they would render a unanimous verdict for the plaintiffs on the first vote. They must be even more nervous now than we are.” He pushed himself to his feet. “Then I’m going to go over to the courthouse.”

  “Why?” C
hristina asked. “The judge’s clerk will call when the jury is ready.”

  “I want to be there,” Ben replied. “I can’t concentrate on anything else anyway. The jury is still working; I should be, too. I want them to see me. I want them to know I haven’t forgotten about them.”

  “But what will you do?”

  Ben grabbed his briefcase and jacket and headed for the door. “The only thing there is to do. Wait.”

  Carl Peabody, the farmer from Catoosa, sat at the head of the single long conference table in the jury deliberation room. His frustration was evident. He had been chosen to serve as the jury foreman, and was currently walking his charges through the jury instructions, not for the first time.

  “I just can’t make head nor tail outta some of these instructions,” Carl groaned. “I like to think of myself as a reasonably smart fella, but they’re just too complicated, with all their parts and subparts and ten-dollar words.”

  “I don’t know how that attorney could let this happen,” said Mrs. Cartwright, the housewife from Broken Arrow.

  “Which attorney?” asked Mary Ann Althorp, the TU college student. “The big fancy one?”

  “No,” Mrs. Cartwright answered. “He probably wanted the instructions to be confusing. I meant the other one. The little cute one. With the tiny bald spot on the back of his head.”

  “The plaintiffs" attorney,” Foreman Peabody clarified. “Kincaid.”

  “Right,” Mrs. Cartwright agreed. “He was always so good about explaining things during the trial. I don’t know why he allowed these awful instructions.”

  “Probably didn’t have any choice,” grumped Evan Marshall, the black self-employed body shop owner. “I got the distinct impression the judge was none too fond of Mr. Kincaid.”

  “You know, I thought that, too,” Mary Ann said. “Why do you think that is?”