The Runaway Jury
Chapter Twenty-Four
The numbers returned with a vengeance Monday afternoon. The messenger was an economist, a man trained to look at the life of Jacob Wood and put a concise dollar figure on it. His name was Dr. Art Kallison, a retired professor from a private school in Oregon no one had heard of. The math was not complicated, and Dr. Kallison had obviously seen a courtroom before. He knew how to testify, how to keep the figures simple. He placed them on a chalkboard with a neat hand.
When he died at fifty-one, Jacob Wood's base salary was $40,000 a year, plus a retirement plan funded by his employer, plus other benefits. Assuming he would live and work until the age of sixty-five, Kallison placed his lost future earnings at $720,000. The law also allowed the factoring of inflation into this projection, and this upped the total to $1,180,000. Then the law required that this total be reduced to its present value, a concept that muddied the water a bit. Here, Kallison delivered a quick,friendly lecture to the jury on present value. The money might be worth $1,180,000 if paid out over fifteen years, but for purposes of the lawsuit he had to determine what it was worth at the moment. Thus, it had to be discounted. His new figure was $835,000.
He did a superb job of assuring the jury that this figure dealt only with lost salary. He was an economist, quite untrained to place a value on the noneconomic value of one's life. His job had nothing to do with the pain and suffering Mr. Wood endured as he died; had nothing to do with the loss his family had endured.
A young defense lawyer named Felix Mason uttered his first word of the trial. He was one of Cable's partners, a specialist in economic forecasts, and, unfortunately for him, his only appearance would be brief. He began his cross-examination of Dr. Kallison by asking him how many times a year he testified. "That's all I do these days. I've retired from teaching," Kallison answered. He took the question in every trial.
"Are you being paid to testify?" Mason asked. The question was as tired as the answer. "Yes. I'm paid to be here. Same as you."
"How much?"
"Five thousand dollars for consultation and testimony." No doubt among the lawyers that Kallison was by far the cheapest expert of the trial.
Mason had a problem with the rate of inflation Kallison used in his calculations, and they haggled over the historical rise of the consumer price index for thirty minutes. If Mason scored a point, no one noticed. He wanted Kallison to agree that a more reasonable figure for Mr. Wood's lost wages would be $680,000.
It really didn't matter. Rohr and his blue-ribbon pack of trial lawyers would take either number. Lost wages were merely the starting point. Rohr would add to it pain and suffering, loss of enjoyment of life, loss of companionship, and a few incidentals such as the cost of Mr. Wood's medical care and the price of his funeral. Then Rohr would go for the gold. He would show the jury how much cash Pynex owned and would ask them for a large chunk of it as punitive damages.
With an hour to go, Rohr proudly announced to the court that "The plaintiff will call its last witness. Mrs. Celeste Wood."
The jury had been given no warning that the plaintiff was almost finished. A burden was suddenly lifted. The sluggish air of the late afternoon was immediately lighter. Several jurors couldn't conceal smiles. Several more lost their frowns. Their chairs rocked as they came to life.
Tonight would be their seventh in sequestration. According to Nicholas' latest theory, the defense would take no more than three days. They did the math. They could be home by the weekend!
In the three weeks she'd been sitting silently at the table, with hordes of lawyers around her. Celeste Wood had barely uttered a whisper. She'd shown an amazing ability to ignore the lawyers, ignore the faces of the jurors, and stare straight ahead with a blank face at the witnesses. She'd worn every shade of black and gray dress, always with black hose and black shoes.
Jerry had dubbed her Widow Wood during the first week.
She was now fifty-five, the same age her husband would have been but for the lung cancer. She was very thin, diminutive, with short gray hair. She worked for a regional library and had raised three children. Family portraits were passed to the jury.
Celeste had given her deposition a year earlier, and she had been rehearsed by the professional handlers Rohr had brought in. She was under control, nervous but not fidgety, and determined to show no emotion. After all, her husband had been dead for four years.
She and Rohr walked through their script without a flaw. She talked of her life with Jacob, how happy they'd been, the early years, the kids, then the grandchildren, their dreams of retirement. A few bumps in the road but nothing serious, nothing until he got sick. He had wanted to quit smoking so badly, had tried many times with little success. The addiction was just too powerful.
Celeste was sympathetic without working too hard for it. Her voice never wavered. Rohr had guessed, correctly, that false tears might not be well received by the jury. She didn't cry easily anyway.
Cable passed on any cross-examination. What could he ask her? He rose and with a sad countenance and humble air, said simply, "Your Honor, we have no questions for this witness."
Fitch had a bunch of questions for the witness, but he couldn't get them asked in open court. After a proper grieving period, in fact it was over a year after the funeral, Celeste had started seeing a divorced man who was seven years younger. According to good sources, they were planning a quiet wedding as soon as the trial was over. Fitch knew that Rohr himself had ordered her not to get married until after the trial.
The jury wouldn't hear this in the courtroom, but Fitch was working on a plan to sneak it through the back door.
"The plaintiff rests," Rohr announced after he'd seated Celeste at the table. The lawyers on both sides clutched one another and huddled into small groups of serious whispering.
Judge Harkin studied some of the clutter on his bench, then he looked at his weary jury. "Ladies and gentlemen, I have good news and bad. The good news is obvious. The plaintiff has rested, and we're more than halfway finished. The defense is expected to call fewer witnesses than the plaintiff. The bad news is that we're required at this point in the trial to argue a bunch of motions. We'll do that tomorrow, probably all day. I'm sorry, but we have no choice."
Nicholas raised his hand. Harkin looked at him for a few seconds, then managed to say, "Yes, Mr. Easter?"
"You mean we have to sit around the motel all day tomorrow?"
"I'm afraid so."
"I don't understand why."
The lawyers unclutched and stopped their tiny conferences and gawked at Easter. It was rare for a juror to speak in open court.
"Because we have a list of things to do outside the presence of the jury."
"Oh, I understand that. But why do we have to sit around?"
"What do you want to do?"
"I can think of a lot of things. We could charter a big boat, go for a ride in the Gulf, fish if we want to." "I can't ask the taxpayers of this county to pay for that, Mr. Easter."
"I thought we were taxpayers."
"The answer is no. I'm sorry."
"Forget the taxpayers. I'm sure these lawyers here wouldn't mind passing the plate. Look, ask each side to put up a thousand dollars. We can charter a huge boat and have a wonderful time."
Though Cable and Rohr both reacted at the same instant, Rohr managed to speak first as he jumped to his feet. "We'd be more than happy to pay half, Your Honor."
"It's a great idea, Judge!" Cable added quickly, and loudly.
Harkin raised both hands, palms out. "Hold it," he said. Then he rubbed his temples and searched his brain for a precedent. Of course there was none. No rule or law prohibiting it. No conflicts of interest.
Loreen Duke tapped Nicholas on the arm and whispered something in his ear.
His Honor said, "Well, I've certainly never heard of this. It seems to fall into the discretionary category. Mr. Rohr?"
"It's harmless, Your Honor. Each side pays half. No problem."
"Mr. Cable?"
"I can think of no statute or rule of procedure which would prevent it. I agree with Mr. Rohr. If both sides split the cost, what's the harm?"
Nicholas raised his hand again. "Excuse me, Your Honor. It's come to my attention that perhaps some of the jurors would rather shop in New Orleans than take a boat ride in the Gulf."
Again, Rohr was a beat quicker. "We'll be happy to split the cost of a bus, Your Honor. And lunch."
"Same here," Cable said. "Dinner too."
Gloria Lane hustled to the jury box with a clipboard. Nicholas, Jerry Fernandez, Lonnie Shaver, Rikki Coleman, Angel Weese, and Colonel Herrera opted for the boat. The rest chose the French Quarter.
INCLUDING THE VIDEO of Jacob Wood, Rohr and company presented ten witnesses to the jury and took thirteen days to do it. A solid case was built; now it was up to the jury to determine not if cigarettes were dangerous but if it was time to punish their makers.
Had the jury not been sequestered, Rohr would have called at least three more experts: one to discuss the psychology of advertising; one an expert on addiction; one ready to describe in detail the application of insecticides and pesticides to tobacco leaves.
But the jury was very sequestered, and Rohr knew it was time to stop. It was obvious this was no ordinary jury. A blind man. A misfit who did yoga at lunch. At least two strikes so far. Lists of demands at every turn. China and silver for lunch. Beer after work, paid for by the taxpayers. Communal interludes and personal visits. Judge Harkin was finding sleep difficult.
It was certainly not ordinary for Fitch, a man who'd sabotaged more juries than any person in the history of American jurisprudence. He'd laid the usual traps and gathered the usual dirt. His scams were proceeding flawlessly. Only one fire, so far. No broken bones. But the girl Marlee had changed everything. Through her he'd be able to purchase a verdict, a slam-dunk defense judgment that would humiliate Rohr and frighten away the legion of hungry trial lawyers circling like vultures, waiting for the carcass.
In this, the biggest tobacco trial yet, with the biggest plaintiff's lawyers lined up with millions, his beloved little Marlee would hand him a verdict. Fitch believed this, and it consumed him. He thought of her every minute and he saw her in his dreams.
If not for Marlee, Fitch wouldn't be sleeping at all. The time was right for a plaintiff's verdict; right courtroom, right judge, right mood. The experts were by far the best Fitch had encountered in his nine years of directing the defense. Nine years, eight trials, eight defense verdicts. As much as he hated Rohr, he could admit, only to himself, that he was the right lawyer to nail the industry.
A victory over Rohr in Biloxi would be a huge barricade to future tobacco litigation. It might very well save the industry.
When Fitch tallied the jury's vote, he always started with Rikki Coleman, because of the abortion. He had her vote in his pocket, she just didn't know it yet. Then he added Lonnie Shaver. Then Colonel Herrera. Millie Dupree would be easy. His jury people were convinced that Sylvia Taylor-Tatum was virtually incapable of sympathy, and besides she smoked. But his jury people didn't know she was sleeping with Jerry Fernandez. Jerry and Easter were buddies. Fitch was predicting the three of them-Sylvia, Jerry, and Nicholas-would vote the same. Loreen Duke sat next to Nicholas, and the two were often seen whispering during the trial. Fitch thought she would follow Easter. And if Loreen did, then so would Angel Weese, the only other black female. Weese was impossible to read.
No one doubted that Easter would dominate the deliberations. Now that Fitch knew Easter had two years of law school, he was willing to bet that this information had been shared with the entire jury.
It was impossible to predict how Herman Grimes might vote. But Fitch wasn't counting on him. Likewise with Phillip Savelle. Fitch felt good about Mrs. Gladys Card. She was old and conservative and likely to be turned off when Rohr asked them for twenty million or so.
So Fitch had four in the bag, with Mrs. Gladys Card being a possible fifth. Flip a coin on Herman Grimes. Concede Savelle on the grounds that anyone so in tune with nature had to dislike tobacco companies. That left Easter and his gang of five. Nine votes were needed by either side for a verdict. Anything less would hang the jury and force Harkin to declare a mistrial. Mistrials become retrials, something Fitch did not want in this case.
The horde of legal analysts and scholars closely watching the trial agreed on little, but they were unified in their prediction that a unanimous, twelve-vote verdict in favor of Pynex would chill, if not completely freeze, tobacco litigation for a decade.
Fitch was determined to deliver one, whatever the cost.
THE MOOD in Rohr's office was much lighter Monday night. With no more witnesses to call, the pressure was momentarily off. Some fine scotch was poured in the conference room. Rohr sipped his mineral water and nibbled on cheese and crackers.
The ball was now in Cable's court. Let him and his crew spend a few days prepping witnesses and labeling documents. Rohr had only to react, to cross-examine, and he had watched every videotaped deposition of every defense witness a dozen times.
Jonathan Kotlack, the lawyer in charge of jury research, likewise drank only water and speculated with Rohr about Herman Grimes. Both felt they had him. And they felt good about Millie Dupree and Savelle, the strange one. Herrera worried them. All three of the blacks-Lonnie, Angel, and Loreen - were solidly on board. It was, after all, a case of a little person against a large powerful corporation. Surely the blacks would come through. They always did.
Easter was the key because he was the leader, everybody knew that. Rikki would follow him. Jerry was his pal. Sylvia Taylor-Tatum was passive and she'd follow the crowd. As would Mrs. Gladys Card.
They only needed nine, and Rohr was convinced he had them.
When he died at fifty-one, Jacob Wood's base salary was $40,000 a year, plus a retirement plan funded by his employer, plus other benefits. Assuming he would live and work until the age of sixty-five, Kallison placed his lost future earnings at $720,000. The law also allowed the factoring of inflation into this projection, and this upped the total to $1,180,000. Then the law required that this total be reduced to its present value, a concept that muddied the water a bit. Here, Kallison delivered a quick,friendly lecture to the jury on present value. The money might be worth $1,180,000 if paid out over fifteen years, but for purposes of the lawsuit he had to determine what it was worth at the moment. Thus, it had to be discounted. His new figure was $835,000.
He did a superb job of assuring the jury that this figure dealt only with lost salary. He was an economist, quite untrained to place a value on the noneconomic value of one's life. His job had nothing to do with the pain and suffering Mr. Wood endured as he died; had nothing to do with the loss his family had endured.
A young defense lawyer named Felix Mason uttered his first word of the trial. He was one of Cable's partners, a specialist in economic forecasts, and, unfortunately for him, his only appearance would be brief. He began his cross-examination of Dr. Kallison by asking him how many times a year he testified. "That's all I do these days. I've retired from teaching," Kallison answered. He took the question in every trial.
"Are you being paid to testify?" Mason asked. The question was as tired as the answer. "Yes. I'm paid to be here. Same as you."
"How much?"
"Five thousand dollars for consultation and testimony." No doubt among the lawyers that Kallison was by far the cheapest expert of the trial.
Mason had a problem with the rate of inflation Kallison used in his calculations, and they haggled over the historical rise of the consumer price index for thirty minutes. If Mason scored a point, no one noticed. He wanted Kallison to agree that a more reasonable figure for Mr. Wood's lost wages would be $680,000.
It really didn't matter. Rohr and his blue-ribbon pack of trial lawyers would take either number. Lost wages were merely the starting point. Rohr would add to it pain and suffering, loss of enjoyment of life, loss of companionship, and a few incidentals such as the cost of Mr. Wood's medical care and the price of his funeral. Then Rohr would go for the gold. He would show the jury how much cash Pynex owned and would ask them for a large chunk of it as punitive damages.
With an hour to go, Rohr proudly announced to the court that "The plaintiff will call its last witness. Mrs. Celeste Wood."
The jury had been given no warning that the plaintiff was almost finished. A burden was suddenly lifted. The sluggish air of the late afternoon was immediately lighter. Several jurors couldn't conceal smiles. Several more lost their frowns. Their chairs rocked as they came to life.
Tonight would be their seventh in sequestration. According to Nicholas' latest theory, the defense would take no more than three days. They did the math. They could be home by the weekend!
In the three weeks she'd been sitting silently at the table, with hordes of lawyers around her. Celeste Wood had barely uttered a whisper. She'd shown an amazing ability to ignore the lawyers, ignore the faces of the jurors, and stare straight ahead with a blank face at the witnesses. She'd worn every shade of black and gray dress, always with black hose and black shoes.
Jerry had dubbed her Widow Wood during the first week.
She was now fifty-five, the same age her husband would have been but for the lung cancer. She was very thin, diminutive, with short gray hair. She worked for a regional library and had raised three children. Family portraits were passed to the jury.
Celeste had given her deposition a year earlier, and she had been rehearsed by the professional handlers Rohr had brought in. She was under control, nervous but not fidgety, and determined to show no emotion. After all, her husband had been dead for four years.
She and Rohr walked through their script without a flaw. She talked of her life with Jacob, how happy they'd been, the early years, the kids, then the grandchildren, their dreams of retirement. A few bumps in the road but nothing serious, nothing until he got sick. He had wanted to quit smoking so badly, had tried many times with little success. The addiction was just too powerful.
Celeste was sympathetic without working too hard for it. Her voice never wavered. Rohr had guessed, correctly, that false tears might not be well received by the jury. She didn't cry easily anyway.
Cable passed on any cross-examination. What could he ask her? He rose and with a sad countenance and humble air, said simply, "Your Honor, we have no questions for this witness."
Fitch had a bunch of questions for the witness, but he couldn't get them asked in open court. After a proper grieving period, in fact it was over a year after the funeral, Celeste had started seeing a divorced man who was seven years younger. According to good sources, they were planning a quiet wedding as soon as the trial was over. Fitch knew that Rohr himself had ordered her not to get married until after the trial.
The jury wouldn't hear this in the courtroom, but Fitch was working on a plan to sneak it through the back door.
"The plaintiff rests," Rohr announced after he'd seated Celeste at the table. The lawyers on both sides clutched one another and huddled into small groups of serious whispering.
Judge Harkin studied some of the clutter on his bench, then he looked at his weary jury. "Ladies and gentlemen, I have good news and bad. The good news is obvious. The plaintiff has rested, and we're more than halfway finished. The defense is expected to call fewer witnesses than the plaintiff. The bad news is that we're required at this point in the trial to argue a bunch of motions. We'll do that tomorrow, probably all day. I'm sorry, but we have no choice."
Nicholas raised his hand. Harkin looked at him for a few seconds, then managed to say, "Yes, Mr. Easter?"
"You mean we have to sit around the motel all day tomorrow?"
"I'm afraid so."
"I don't understand why."
The lawyers unclutched and stopped their tiny conferences and gawked at Easter. It was rare for a juror to speak in open court.
"Because we have a list of things to do outside the presence of the jury."
"Oh, I understand that. But why do we have to sit around?"
"What do you want to do?"
"I can think of a lot of things. We could charter a big boat, go for a ride in the Gulf, fish if we want to." "I can't ask the taxpayers of this county to pay for that, Mr. Easter."
"I thought we were taxpayers."
"The answer is no. I'm sorry."
"Forget the taxpayers. I'm sure these lawyers here wouldn't mind passing the plate. Look, ask each side to put up a thousand dollars. We can charter a huge boat and have a wonderful time."
Though Cable and Rohr both reacted at the same instant, Rohr managed to speak first as he jumped to his feet. "We'd be more than happy to pay half, Your Honor."
"It's a great idea, Judge!" Cable added quickly, and loudly.
Harkin raised both hands, palms out. "Hold it," he said. Then he rubbed his temples and searched his brain for a precedent. Of course there was none. No rule or law prohibiting it. No conflicts of interest.
Loreen Duke tapped Nicholas on the arm and whispered something in his ear.
His Honor said, "Well, I've certainly never heard of this. It seems to fall into the discretionary category. Mr. Rohr?"
"It's harmless, Your Honor. Each side pays half. No problem."
"Mr. Cable?"
"I can think of no statute or rule of procedure which would prevent it. I agree with Mr. Rohr. If both sides split the cost, what's the harm?"
Nicholas raised his hand again. "Excuse me, Your Honor. It's come to my attention that perhaps some of the jurors would rather shop in New Orleans than take a boat ride in the Gulf."
Again, Rohr was a beat quicker. "We'll be happy to split the cost of a bus, Your Honor. And lunch."
"Same here," Cable said. "Dinner too."
Gloria Lane hustled to the jury box with a clipboard. Nicholas, Jerry Fernandez, Lonnie Shaver, Rikki Coleman, Angel Weese, and Colonel Herrera opted for the boat. The rest chose the French Quarter.
INCLUDING THE VIDEO of Jacob Wood, Rohr and company presented ten witnesses to the jury and took thirteen days to do it. A solid case was built; now it was up to the jury to determine not if cigarettes were dangerous but if it was time to punish their makers.
Had the jury not been sequestered, Rohr would have called at least three more experts: one to discuss the psychology of advertising; one an expert on addiction; one ready to describe in detail the application of insecticides and pesticides to tobacco leaves.
But the jury was very sequestered, and Rohr knew it was time to stop. It was obvious this was no ordinary jury. A blind man. A misfit who did yoga at lunch. At least two strikes so far. Lists of demands at every turn. China and silver for lunch. Beer after work, paid for by the taxpayers. Communal interludes and personal visits. Judge Harkin was finding sleep difficult.
It was certainly not ordinary for Fitch, a man who'd sabotaged more juries than any person in the history of American jurisprudence. He'd laid the usual traps and gathered the usual dirt. His scams were proceeding flawlessly. Only one fire, so far. No broken bones. But the girl Marlee had changed everything. Through her he'd be able to purchase a verdict, a slam-dunk defense judgment that would humiliate Rohr and frighten away the legion of hungry trial lawyers circling like vultures, waiting for the carcass.
In this, the biggest tobacco trial yet, with the biggest plaintiff's lawyers lined up with millions, his beloved little Marlee would hand him a verdict. Fitch believed this, and it consumed him. He thought of her every minute and he saw her in his dreams.
If not for Marlee, Fitch wouldn't be sleeping at all. The time was right for a plaintiff's verdict; right courtroom, right judge, right mood. The experts were by far the best Fitch had encountered in his nine years of directing the defense. Nine years, eight trials, eight defense verdicts. As much as he hated Rohr, he could admit, only to himself, that he was the right lawyer to nail the industry.
A victory over Rohr in Biloxi would be a huge barricade to future tobacco litigation. It might very well save the industry.
When Fitch tallied the jury's vote, he always started with Rikki Coleman, because of the abortion. He had her vote in his pocket, she just didn't know it yet. Then he added Lonnie Shaver. Then Colonel Herrera. Millie Dupree would be easy. His jury people were convinced that Sylvia Taylor-Tatum was virtually incapable of sympathy, and besides she smoked. But his jury people didn't know she was sleeping with Jerry Fernandez. Jerry and Easter were buddies. Fitch was predicting the three of them-Sylvia, Jerry, and Nicholas-would vote the same. Loreen Duke sat next to Nicholas, and the two were often seen whispering during the trial. Fitch thought she would follow Easter. And if Loreen did, then so would Angel Weese, the only other black female. Weese was impossible to read.
No one doubted that Easter would dominate the deliberations. Now that Fitch knew Easter had two years of law school, he was willing to bet that this information had been shared with the entire jury.
It was impossible to predict how Herman Grimes might vote. But Fitch wasn't counting on him. Likewise with Phillip Savelle. Fitch felt good about Mrs. Gladys Card. She was old and conservative and likely to be turned off when Rohr asked them for twenty million or so.
So Fitch had four in the bag, with Mrs. Gladys Card being a possible fifth. Flip a coin on Herman Grimes. Concede Savelle on the grounds that anyone so in tune with nature had to dislike tobacco companies. That left Easter and his gang of five. Nine votes were needed by either side for a verdict. Anything less would hang the jury and force Harkin to declare a mistrial. Mistrials become retrials, something Fitch did not want in this case.
The horde of legal analysts and scholars closely watching the trial agreed on little, but they were unified in their prediction that a unanimous, twelve-vote verdict in favor of Pynex would chill, if not completely freeze, tobacco litigation for a decade.
Fitch was determined to deliver one, whatever the cost.
THE MOOD in Rohr's office was much lighter Monday night. With no more witnesses to call, the pressure was momentarily off. Some fine scotch was poured in the conference room. Rohr sipped his mineral water and nibbled on cheese and crackers.
The ball was now in Cable's court. Let him and his crew spend a few days prepping witnesses and labeling documents. Rohr had only to react, to cross-examine, and he had watched every videotaped deposition of every defense witness a dozen times.
Jonathan Kotlack, the lawyer in charge of jury research, likewise drank only water and speculated with Rohr about Herman Grimes. Both felt they had him. And they felt good about Millie Dupree and Savelle, the strange one. Herrera worried them. All three of the blacks-Lonnie, Angel, and Loreen - were solidly on board. It was, after all, a case of a little person against a large powerful corporation. Surely the blacks would come through. They always did.
Easter was the key because he was the leader, everybody knew that. Rikki would follow him. Jerry was his pal. Sylvia Taylor-Tatum was passive and she'd follow the crowd. As would Mrs. Gladys Card.
They only needed nine, and Rohr was convinced he had them.
