The Runaway Jury 19 страница

Cleve also delivered papers for Rohr, served summonses, checked on witnesses and potential jurors, and spied on other lawyers, the usual functions of a runner when he wasn't running. He received a salary for his investigating, and Rohr paid him cash bonuses when he landed a particularly good case.

Over a beer in a tavern, he talked with Derrick and realized quickly the guy had financial problems. He then steered the conversation toward Angel, and asked if anyone had beaten him to the punch. No, said Derrick, no one had come around asking about the trial. But then, Derrick had been living with a brother, sort of laying low and trying to avoid his wife's greedy lawyer.

Good, said Cleve, because he'd been hired as a consultant by some of the lawyers, and, well, the trial was awfully important. Cleve ordered a second round and talked awhile about just how damned important the trial was.

Derrick was bright, had a year of junior college and a desire to make a buck, and he picked it up quickly. “Why don't you get to the point? ” he asked.

Cleve was ready to do just that. “My client is willing to purchase influence. For cash. No trail whatsoever. ”

“Influence, ” Derrick repeated, then took a long sip. The smile on his face encouraged Cleve to press the deal.

“Five thousand cash, ” Cleve said, glancing around. “Half now, half when the trial is over. ”

The smile widened with another sip. “And I do what? ”

“You talk with Angel when you see her during the personal visits, and make sure she understands how important this case is to the plaintiff. Just don't tell her about the money, or about me or any of this. Not now. Maybe later. ”

“Why not? ”

“Because this is illegal as hell, okay? If the Judge somehow found out that I was talking to you, offering you money to talk to Angel, then both of us would go to jail. Understand? ”

“Yeah. ”

“It's important for you to realize that this is dangerous. If you don't wanna pursue it, then say so now. ”

“Ten thousand. ”

“What? ”

“Ten. Five now, five when the trial is over. ”

Cleve grunted as if slightly disgusted. If only Derrick knew the stakes. “Okay. Ten. ”

“When can I get it? ”

“Tomorrow. ” They ordered sandwiches and talked for another hour about the trial, and the verdict, and how best to persuade Angel.

THE CHORE of keeping D. Martin Jankle away from his cherished vodka fell to Durwood Cable. Fitch and Jankle had fought bitterly over the question of whether or not Jankle could drink Tuesday night, the night before he testified. Fitch, the former drunk, accused Jankle of having a problem. Jankle cursed Fitch viciously for trying to tell him, the CEO of Pynex, a Fortune 500 company, if and when and how much he could drink.

Cable was dragged into the brawl by Fitch. Cable insisted that Jankle hang around his office throughout the night to prepare for his testimony. A mock direct exam was followed by a lengthy cross, and Jankle performed adequately. Nothing spectacular. Cable made him watch the video of it with a panel of jury experts.

When he was finally taken to his hotel room after ten, he found that Fitch had removed all liquor from the mini-bar and replaced it with soft drinks and fruit juices.

Jankle cursed and went to his overnight bag, where he kept a flask hidden in a leather pouch. But there was no flask. Fitch had removed it too.

AT 1 A. M., Nicholas silently opened his door and looked up and down the hall. The guard was gone, no doubt asleep in his room.

Marlee was waiting in a room on the second floor.

They embraced and kissed but never got around to anything else. She had hinted on the phone that there was trouble, and she hurriedly spilled the story, beginning with her early morning chat with Rebecca in Lawrence. Nicholas took it well.

Other than the natural passion of two young lovers, their relationship rarely saw emotion. And when it surfaced, it was almost always from Nicholas, who had a slight temper, which, regardless of how slight, was certainly more than she possessed. He might raise his voice when angry, but that almost never occurred. Marlee wasn't cold, just calculating. He'd never seen her cry, the one exception being at the end of a movie he'd hated. They had never been through a difficult fight, and the usual squabbles were snuffed out quickly because Marlee had taught him to bite his tongue. She didn't tolerate wasted sentiment, didn't pout or carry petty grudges, and didn't put up with him when he tried to.

She replayed her conversation with Rebecca, and she tried to recall every word from her meeting with Fitch.

The realization that they'd been partially discovered hit hard. They were sure it was Fitch, and they wondered how much he knew. They were convinced, and always had been, that Jeff Kerr would have to be discovered in order to find Claire Clement. Jeff's background was harmless. Claire's had to be protected or they might as well flee now.

There was little to do but wait.

DERRICK ENTERED Angel's room by wedging himself through the fold-out window. He hadn't seen her since Sunday, a gap of almost forty-eight hours, and he simply couldn't wait until tomorrow night because he loved her madly and missed her and had to hold her. She immediately noticed he had been drinking. They fell into bed, where they quietly consummated an unauthorized personal visit.

Derrick rolled over and fell fast asleep.

They awoke at dawn, and Angel panicked because she had a man in her room and this was, of course, against the Judge's orders. Derrick was unconcerned. He said he'd simply wait until they left for court, then sneak out of the room. This did little to calm her nerves. Angel took a long shower.

Derrick had taken Cleve's plan and improved on it immensely. After leaving the tavern, he bought a six-pack and drove along the Gulf for hours. Slowly, up and down Highway 90, past the hotels and casinos and boat docks, from Pass Christian to Pascagoula he had driven, sipping beer and expanding the scheme. Cleve, after a few drinks, had let it slip that the lawyers for the plaintiff were seeking millions. It took only nine of the twelve for a verdict, so Derrick figured Angel's vote was worth a helluva lot more than ten thousand dollars.

Ten thousand sounded great at the tavern, but if they would pay that much, and agree to do it so quickly, then they would pay more with pressure. The more he drove, the more her vote was worth. It was now at fifty, and rising almost by the hour.

Derrick was intrigued by the notion of percentages. What if the verdict was ten million, for example? One percent, one lousy little percent, would be a hundred thousand dollars. A twenty-million-dollar verdict? Two hundred thousand dollars. What if Derrick proposed to Cleve a deal whereby they paid JOHNGRISHAM him cash up front and a percentage of the verdict? That would motivate Derrick, and of course his girlfriend, to press hard during deliberations for a large verdict. They'd become players. It was a chance they'd never see again. Angel returned in her bathrobe and lit a cigarette.

Twenty-seven

Pynex's defense of its good corporate name got off to a miserable start Wednesday morning, through no fault of its own. An analyst named Walter Barker, writing in Mogul, a popular weekly financial, laid two-to-one odds that the jury down in Biloxi would find against Pynex, and return a large verdict. Barker was no lightweight. Trained as a lawyer, he had developed a formidable reputation on Wall Street as the man to watch when litigation affected commerce. His specialty was monitoring trials and appeals and settlements, and predicting their outcomes before they were final. He was usually right, and had made a fortune with his research. He was widely read, and the fact that he was. betting against Pynex shocked Wall Street. The stock opened at seventy-six, dropped to seventy-three, and by mid-morning was at seventy-one and a half.

The courtroom crowd was larger Wednesday. The Wall Street boys were back in force, each reading a copy of Mogul and all suddenly agreeing with Barker, though over breakfast an hour earlier the consensus had been that Pynex had weathered the plaintiff's witnesses and should close strongly. Now they read with worried faces and revised their reports to their offices. Barker had actually been in the courtroom last week. He'd sat alone on the back row. What had he seen that they'd missed?

The jurors filed in promptly at nine, with Lou Dell proudly holding the door as if she'd collected her brood after they'd scattered yesterday and was now delivering them back to where they belonged. Har-kin welcomed them as if they'd been gone for a month, made some flat crack about fishing, then raced through his standard “Have you been molested? ” questions. He promised the jurors a speedy end to the trial.

Jankle was called as a witness, and the defense began. Free of the effects of alcohol, Jankle was primed and sharp. He smiled easily and seemed to welcome the chance to defend his tobacco company. Cable waltzed him through the preliminaries without a hitch.

Seated on the second row was D. Y. Taunton, the black lawyer from the Wall Street firm who'd met with Lonnie in Charlotte. He listened to Jankle while cutting his eyes at Lonnie, and it didn't take long to connect. Lonnie glanced once, couldn't help it as he glanced again, and on the third look managed to nod and smile because it seemed like the proper thing to do. The message was clear-Taunton was an important person who'd traveled all the way down to Biloxi because this was an important day. The defense was now speaking, and it was critical for Lonnie to understand that he should listen and believe every word now being said from the witness stand. No problem with Lonnie.

Jankle's first defensive thrust was on the issue of choice. He conceded that a lot of people think cigarettes are addictive, but only because he and Cable realized he would sound foolish otherwise. But, then, maybe they're not addictive. No one really knows, and the folks in research are just as confused as anyone. One study leans this way, the next one leans another, but he'd never seen positive proof that smoking was addictive. Personally, he just did not believe it. Jankle had smoked for twenty years, but only because he enjoyed it. He smoked twenty cigarettes a day, by choice, and he'd chosen a lower-tar brand. No, he most certainly was not addicted. He could quit whenever he wanted. He smoked because he liked to. He played tennis four times a week and his annual physical revealed nothing to worry about.

Seated one row behind Taunton was Derrick Maples, making his first appearance at the trial. He'd left the motel just minutes after the bus, and had planned to spend the day looking for work. Now, he was dreaming of an easy payday. Angel saw him, but kept her eyes on Jankle. Derrick's sudden interest in the trial was baffling. He'd done nothing but complain since they'd been sequestered.

Jankle described the various brands his company made. He stepped down and stood before a colorful chart with each of the eight brands, each with its tar and nicotine levels labeled beside it. He explained why some cigarettes have filters, some don't, some have more tar and nicotine than others. It all boiled down to choice. He was proud of his product line.

A crucial point was made here, and Jankle conveyed it well. By offering such a wide selection of brands, Pynex allowed each consumer to decide how much tar and nicotine he or she wanted. Choice. Choice. Choice. Choose the level of tar and nicotine. Choose the number of cigarettes you smoke each day. Choose whether or not to inhale. Make the intelligent choice of what you do to your body with cigarettes.

Jankle pointed to a bright drawing of a red pack of Bristols, the brand with the second-highest level of tar and nicotine. He conceded that if Bristols were “abused” then the results could be damaging.

Cigarettes were responsible products, if used with restraint. Like many other products-alcohol, butter, sugar, and handguns, just to name a few-they could become dangerous if abused.

Seated across the aisle from Derrick was Hoppy, who had stopped by for a quick update on what was happening. Plus he wanted to see and smile at Millie, who was delighted to see him but also curious about his sudden obsession with the trial. Tonight the jurors were allowed personal visits, and Hoppy couldn't wait to spend three hours in Millie's room with sex the last thing on his mind.

When Judge Harkin stopped for lunch, Jankle was completing his thoughts about advertising. Sure his company spent tons of money, but not as much as beer companies or car companies or Coca-Cola. Advertising was crucial to survival in a fiercely competitive world, regardless of the product. Of course children saw his company's ads. How do you design a billboard ad so that it won't be seen by children? How do you keep kids from looking at the magazines their parents subscribe to? Impossible. Jankle readily admitted he'd seen the statistics showing eighty-five percent of the kids who smoke buy the three most heavily advertised brands. But so do adults! Again, you can't design an ad campaign that targets adults without affecting kids.

FITCH WATCHED ALL of Jankle's testimony from a seat near the back. To his right was Luther Vandemeer, CEO of Trellco, the largest tobacco company in the world. Vandemeer was the unofficial head of the Big Four, and the only one Fitch could tolerate. He, in return, had the perplexing gift of being able to tolerate Fitch.

They ate lunch at Mary Mahoney's, alone at a table in a corner. They were relieved by Jankle's success so far, but knew the worst was yet to come. Barker's column in Mogul had ruined their appetites.

“How much influence do you have with the jury? ” Vandemeer asked, picking at his food.

Fitch wasn't about to answer truthfully. He wasn't expected to. His dirty deeds were kept from everyone except his own agents.

“The usual, ” Fitch said.

“Maybe the usual is not enough. ”

“What are you suggesting? ”

Vandemeer didn't answer, but instead studied the legs of a young waitress taking an order at the next table.

“We're doing everything possible, ” Fitch said, with uncharacteristic warmth. But Vandemeer was scared, and rightly so. Fitch knew the pressure was enormous. A large plaintiff's verdict wouldn't bankrupt Pynex or Trellco, but the results would be messy and far-reaching. An in-house study predicted an immediate twenty percent loss in shareholder value for all four companies, and that was just for starters. In the same study, a worst-case scenario predicted one million lung cancer lawsuits filed during the five years after such a verdict, with the average lawsuit costing a million dollars in legal fees alone. The study didn't dare predict the cost of a million verdicts. The doomsday scenario called for the certification of a class-action suit, the class being any person who had ever smoked and felt injured because of it. Bankruptcy would be a possibility at that point. And it would be probable that serious efforts would be made in Congress to outlaw the production of cigarettes.

“Do you have enough money? ” Vandemeer asked.

“I think so, ” Fitch said, asking himself for the hundredth time just how much his dear Marlee might have in mind.

“The Fund should be in good shape. ”

“It is. ”

Vandemeer chewed on a tiny piece of grilled chicken. “Why don't you just pick out nine jurors and give them a million bucks apiece? ” he said, with a quiet laugh as if he were only joking.

“Believe me, I've thought about it. It's just too risky. People would go to jail. ”

“Just kidding. ”

“We have ways. ” ' Vandemeer stopped smiling. “We have to win, Rankin, you understand? We have to win. Spend whatever it takes. ”

A WEEK EARLIER, Judge Harkin, pursuant to another written request from Nicholas Easter, had changed the lunch routine a bit and declared that the two alternate jurors could eat with the twelve.

Nicholas had argued that since all fourteen now lived together, watched movies together, ate breakfast and dinner together, then it was almost ludicrous to separate them at lunch. The two alternates were both men, Henry Vu and Shine Royce.

Henry Vu had been a South Vietnamese fighter pilot who ditched his plane in the China Sea the day after Saigon fell. He was picked up by an American rescue vessel and treated at a hospital in San Francisco. It took a year to smuggle his wife and kids through Laos and Cambodia and into Thailand, and finally to San Francisco, where the family lived for two years. They settled in Biloxi in 1978. Vu bought a shrimp boat and joined a growing number of Vietnamese fishermen who were squeezing out the natives. Last year his youngest daughter was the valedictorian of her senior class. She accepted a full scholarship to Harvard. Henry bought his fourth shrimp boat.

He made no effort to avoid jury service. He was as patriotic as anyone, even the Colonel.

Nicholas, of course, had befriended him immediately. He was determined that^Henry Vu would sit with the chosen twelve, and be present when the deliberations began.

WITH A JURY blindsided by sequestration, the last thing Durwood Cable wanted was to prolong the case. He had pared his list of witnesses to five, and he had planned for their testimony to run no more than four days.

It was the worst time of the day for a direct examination-the first hour after lunch-when Jankle took his seat on the witness stand and resumed his testimony.

“What is your company doing to combat underage smoking? ” Cable asked him, and Jankle rambled for an hour. A million here for this do-gooder cause, and a million there for that ad campaign. Eleven million last year alone.

At times, Jankle sounded as if he almost despised tobacco.

After a very long coffee break at three, Wendall Rohr was given his first crack at Jankle. He started with a vicious question, and matters went from bad to worse.

“Isn't it true, Mr. Jankle, that your company spends hundreds of millions trying to convince people to smoke, yet when they get sick from your cigarettes your company won't pay a dime to help them? ”

“Is that a question? ”

“Of course it is. Now answer it! ”

“No. That's not true. ”

“Good. When was the last time Pynex paid a penny of one of your smoker's medical bills? ”

Jankle shrugged and mumbled something.

“I'm sorry, Mr. Jankle. I didn't catch that. The question is, when was the last time—”

“I heard the question. ”

“Then answer it. Just give us one example where Pynex offered to help with the medical bills of someone who smoked your products. ”

“I can't recall one. ”

“So your company refuses to stand behind its products? ”

“We certainly do not. ”

“Good. Give the jury just one example of Pynex standing behind its cigarettes. ”

“Our products are not defective. ”

“They don't cause sickness and death? ” Rohr asked incredulously, arms flopping wildly at the air.

“No. They don't. ”

“Now lemme get this straight. You're telling this jury that your cigarettes do not cause sickness and death? ”

“Only if they are abused. ”

Rohr laughed as he spat out the word “abused” in thorough disgust. “Are your cigarettes supposed to be lit with some type of lighter? ”

“Of course. ”

“And is the smoke produced by the tobacco and the paper supposed to be sucked through the end opposite the end that is lit? ”

“Yes. ”

“And is this smoke supposed to enter the mouth? ”

“Yes. ”

“And is it supposed to be inhaled into the respiratory tract? ”

“Depends on the choice of the smoker. ”

“Do you inhale, Mr. Jankle? ”

“Yes. ”

“Are you familiar with studies showing ninety-eight percent of all cigarette smokers inhale? ”

“Yes. ”

“So it's accurate to say that you know the smoke from your cigarettes will be inhaled? ”

“I suppose so. ”

“Is it your opinion that people who inhale the smoke are actually abusing the product? ”

“No. ”

“So tell us, please, Mr. Jankle, how does one abuse a cigarette? ”

“By smoking too much. ”

“And how much is too much? ”

“I guess it depends on each individual. ”

“I'm not talking to each individual smoker, Mr. Jankle. I'm talking to you, the CEO of Pynex, one of the largest cigarette producers in the world. And I'm asking you, in your opinion, how much is too much? ”

“I'd say more than two packs a day. ”

“More than forty cigarettes a day? ”

“Yes. ”

“I see. And what study do you base this on? ”

“None. It's just my opinion. ”

“Below forty, and smoking is not unhealthy. Above forty, and the product is being abused. Is this your testimony? ”

“It's my opinion. ” Jankle was starting to squirm and cast his eyes at Cable, who was angry and looking away. The abuse theory was a new one, a creation of Jankle's. He insisted on using it.

Rohr lowered his voice and studied his notes. He took his time for the setup because he didn't want to spoil the kill. “Would you describe for the jury the steps you've taken as CEO to warn the public that smoking more than forty cigarettes a day is dangerous? ”

Jankle had a quick retort, but he thought the better of it. His mouth opened, then he hung in mid-thought for a long, painful pause. After the damage was done, he gathered himself and said, “I think you misunderstand me. ”

Rohr wasn't about to let him explain. “I'm sure I do. I don't believe I've ever seen a warning on any of your products to the effect that more than two packs a day is abusive and dangerous. Why not? ”

“We're not required to. ”

“Required by whom? ”

“The government. ”

“So if the government doesn't make you warn folks that your products can be abused, then you're certainly not going to do it voluntarily, are you? ”

“We follow the law. ”

[(Did the law require Pynex to spend four hundred million dollars last year in advertising? ”

“No. ”

“But you did, didn't you? ”

“Something like that. ”

“And if you wanted to warn smokers of potential dangers you could certainly do it, couldn't you? ”

“I suppose. ”

Rohr switched quickly to butter and sugar, two products Jankle had mentioned as being potentially dangerous. Rohr took great delight in pointing out the differences between them and cigarettes”, and made Jankle look silly.

He saved the best for last. During a short recess, the video monitors were once again rolled into place. When the jury returned, the lights were dimmed and there was Jankle on-screen, right hand raised while being asked to tell the truth and nothing but the truth. The occasion was a hearing before a congressional subcommittee. Standing next to Jankle were Vandemeer and the other two CEO's of the Big Four, all summoned against their will to give testimony to a bunch of politicians. They looked like four Mafia dons about to tell Congress there was no such thing as organized crime. The questioning was brutal.

The tape was heavily edited. One by one, they were asked point-blank if nicotine was addictive, and each emphatically said no. Jankle went last, and by the time he made his angry denial, the jury, just like the subcommittee, knew he was lying.

Twenty-eight

During a tense forty-minute meeting with Cable in his office, Fitch unloaded most of what had been bothering him about the way the case was being defended. He started with Jankle and his brilliant new tobacco defense, the abused-cigarette strategy, a harebrained approach that just might doom them. Cable, in no mood to be scolded, especially by a nonlawyer he loathed anyway, repeatedly explained that they had begged Jankle not to raise the issue of abuse. But Jankle had been a lawyer in another life and fancied himself as an original thinker who'd been given the golden chance to save Big Tobacco. Jankle was now on a Pynex jet en route to New York.

And Fitch thought the jury might be tired of Cable. Rohr had spread the courtroom work among his gang of thieves. Why couldn't Cable allow another defense lawyer besides Felix Mason to handle a few witnesses? God knew there were enough of them. Was it ego? They yelled at each other from across the desk.

The article in Mogul had unraveled nerves and added another, much heavier layer of pressure.

Cable reminded Fitch that he was the lawyer, and he had thirty rather outstanding years in the courtroom. He could better read the mood and texture of the trial.

And Fitch reminded Cable that this was the ninth tobacco trial he'd directed, not to mention the two mistrials he'd engineered, and he'd certainly seen more effective courtroom advocacy than what was being offered by Cable.

When the yelling and cursing died down, and after both men made efforts to pull themselves together, they did agree that the defense should be brief. Cable projected three more days, and that included whatever cross-examination Rohr would offer. Three days and no more, Fitch said.

He slammed the door as he left the office, and gathered Jose in the hallway. Together they stormed through the offices, offices still very much alive with lawyers in shirtsleeves and paralegals eating pizza and harried secretaries darting about trying to finish and get home to the kids. The mere sight of Fitch swaggering at full speed and the beefy Jose stomping after him made grown men cower and duck into doorways.

In the Suburban, Jose handed Fitch a stack of faxes, which he scanned as they sped away to headquarters. The first was a list of Marlee's movements since the meeting on the pier yesterday. Nothing unusual.

Next was the recap of what was happening in Kansas. A Claire Clement had been found in Topeka, but she was a resident of a nursing home. The one in Des Moines actually answered the phone at her husband's used-car lot. Swanson said they were pursuing many leads, but the report was rather scant on details. One of Kerr's law school chums had been found in Kansas City, and they were trying to arrange a meeting.

They drove past a convenience store, and in the front window a neon beer sign caught Fitch's attention. The smell and taste of a cold beer filled his senses, and Fitch ached for a drink. Just one. Just a sweet, frosty beer in a tall mug. How long had it been?

The urge to stop hit hard. Fitch closed his eyes and tried to think of something else. He could send Jose in to buy just one, one cold bottle and that would be it. Wouldn't it? Surely, after nine years of sobriety he could handle a single drink. Why couldn't he have just one?

Because he'd had a million. And if Jose stopped here then he'd stop again two blocks away. And by the time they eventually reached the office the Suburban would be filled with empty bottles and Fitch would be throwing them at passing cars. He was not a pretty drunk.

But just one to settle his nerves, to help forget this miserable day.

“You okay, boss? ” Jose asked.

Fitch grunted something, and stopped thinking about beer. Where was Marlee, and why hadn't she called today? The trial was winding down. A deal would take time to negotiate and execute.

He thought of the column in Mogul, and he longed for Marlee. He heard Jankle's idiotic voice expounding a brand-new defense theory, and he longed for Marlee. He closed his eyes and saw the faces of the jurors, and he longed for Marlee.

SINCE DERRICK now considered himself to be a major player, he chose a new meeting place for Wednesday night. It was a rough bar in the black section of Biloxi, a place Cleve had actually been before. Derrick figured he'd have the upper hand if the rendezvous occurred on his turf. Cleve insisted they meet in the parking lot first.

The lot was almost filled. Cleve was late. Derrick spotted him when he parked, and walked to the driver's side.

“I don't think this is a good idea, ” Cleve said, peeking through the crack in his window and looking at the dark, cinder-block building with steel rods across the windows.

“It's okay, ” said Derrick, himself a bit worried but unwilling to show it. “It's safe. ”

“Safe? They've had three stabbings here in the last month. I've got the only white face here, and you expect me to walk in there with five thousand bucks in cash and hand it over to you. Reckon who'd get cut first? Me or you? ”

Derrick saw his point, but was unwilling to concede so quickly. He leaned closer to the window, glanced around the parking lot, suddenly more fearful.

“I say we go in, ” he said, in his best tough-guy routine.

“Forget it, ” Cleve said. “If you want the money, meet me at the Waffle House on 90. ” Cleve started his engine and raised the window. Derrick watched him drive away, with the five thousand dollars in cash somewhere within his reach, then ran to his car.

THEY ATE PANCAKES and drank coffee at the counter. Conversation was low because the cook was flipping eggs and sausage on a grill less than ten feet away and seemed to be straining to hear every word.

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