A Civil Action (56 page)

“Concentrating,” said Schlichtmann.

2

Jean Coulsey couldn’t avoid seeing Schlichtmann standing at the end of the dark corridor every morning when she stepped off the elevator. “It was pathetic, seeing him there,” Coulsey said some months after the trial. “I found it very difficult not to talk to him.” But she knew how improper any exchange would be, so she focused her eyes on the floor and set her mouth in grim restraint.

During the months of trial she and the other jurors had talked among themselves about the lawyers’ mannerisms and eccentricities, about the judge, the witnesses, even the few spectators who appeared in the gallery day after day. The jurors, of course, hadn’t been able to hear what the lawyers were saying at the bench conferences with Judge Skinner, but they’d always known when Schlichtmann had gotten reprimanded. “He’d get crimson,” remembered Coulsey. They were sometimes baffled by the judge’s manner with Schlichtmann. They all liked the judge and felt he was fair and impartial, but they could see that Schlichtmann nettled him for reasons they didn’t comprehend. “The judge seemed awfully picky with Mr. Schlichtmann,” recalled Coulsey. As for Facher, she did not particularly care for him. Her closest friend on the jury, an alternate named Henry Jason, a retired police officer, had once said in annoyance, “Facher’s like a spring with his objections, jumping up all the time,” and Coulsey had concurred.

The jurors had made such observations casually, passing the time in conversation when the trial had halted for those interminable bench conferences. To Coulsey, John J. Riley had come across “like a creep.” She thought her fellow jurors agreed with her. After Riley’s second day on the witness stand, Henry Jason had whispered loud enough for the others to hear, “Who’s he trying to snow?” Everyone had laughed. “The thing that kills me,” Coulsey later remarked, “was Riley saying he’s turned the fifteen acres into a conservation area.” She thought Drobinski had been an excellent witness, forthright and credible. Facher’s manner toward Drobinski had irritated her. “How can Mr. Facher
belittle people like that?” she had wondered. “He’s very sarcastic, but he can pick up on something that isn’t right just like that. God help you if you make a mistake with Mr. Facher.”

Because they had shared these observations, and they had seemed generally to agree with one another, Coulsey had assumed that the other jurors viewed the case in the same light as she did.

The day they began their formal deliberations, the clerk brought all the evidence up to the jury room—it took him several trips—and the list of questions that had been devised for them to answer. Jean Coulsey studied the questions in astonishment. And she wasn’t the only one surprised by them. The others looked confused and perplexed, too.

William Vogel remembered saying, “I thought we were just supposed to find them guilty or innocent.”

“Something must be wrong,” said Coulsey. “I can’t understand how Mr. Schlichtmann could let this happen.”

The jurors read the questions several times, trying to parse the compound sentences. How could they possibly determine the month and year that the chemicals had arrived at the wells? Pinder and Guswa had offered opinions and had spoken about the “travel times” of the chemicals, but that testimony had been confusing at best. And what did the judge mean by “substantial” contribution? What exactly was a “preponderance of the evidence?”

“Now what are we going to do?” asked Coulsey.

Vogel suggested they begin by taking a vote to see where everyone stood. For his part, he believed that both companies were, as he put it, “guilty” of contaminating the wells, but he didn’t reveal this opinion to his fellow jurors right away. As foreman, he thought he should wait until the others made their opinion known. If they all agreed, they could then proceed to the far more difficult task of determining exactly when the chemicals had reached the wells.

As Vogel understood it, the first question asked whether the chemicals from Beatrice had gotten to the wells before May 22, 1979, the date the wells had closed. To him, that was essentially the “guilty” or “not guilty” question. He read that first question aloud to the other jurors and asked for a show of hands from those who believed Beatrice was liable. Jean Coulsey and Linda Kaplan promptly raised their hands. When no one else raised a hand, Vogel raised his. Finally Vincent
O’Rourke, the postal employee, a very shy and retiring man, slowly raised his hand.

Then Vogel said: “Not guilty?”

Harriet Clarke held up her hand. Robert Fox, the only juror who had not yet voted, said he was undecided and would abstain for the moment.

Vogel posed the same question for Grace. The results were only slightly different. This time Robert Fox joined Harriet Clarke in finding Grace not liable.

Jean Coulsey was amazed. The judge had told the jurors that their verdict had to be unanimous. Coulsey had thought it would take only a short while to find both Grace and Beatrice liable. Nothing, she believed, could be clearer than the “guilt” of the two corporations.

The jurors set to work that afternoon. They began with Beatrice, arranging all the evidence before them on top of the large wooden table. They asked the judge’s clerk for a magnifying glass so they could study the aerial photographs that Schlichtmann had introduced as evidence. It quickly became apparent that although Robert Fox had abstained on the initial vote, he felt Beatrice should not be held liable. By the afternoon of the second day, the discussion between Fox and Coulsey began to grow heated. The judge had allowed the jurors to take notes during the trial, and Fox had filled the pages of four notebooks. He would read to the other jurors items from his notes that supported his point of view.

Coulsey had taken almost no notes. She felt intuitively that the companies were responsible, but she had difficulty articulating her thoughts and could not readily summon facts the way Fox could. She kept wishing that the alternate jurors, especially Henry Jason, were deliberating with them.

For his part, Fox grew increasingly frustrated in his efforts to engage Coulsey in rational debate about the facts. He paced around the table, demanding that Coulsey explain, that she give her reasons, that she point to the evidence. “There simply isn’t enough proof,” Fox told her. “You need a preponderance of the evidence. Show me a preponderance of the evidence.” At times he raised his voice, and by the end of the week, he had gotten so agitated that he slammed his fist on the table, making a resounding noise. At those moments, even his ally, Harriet Clarke, would tell him to calm down.

Jean Coulsey never gave in to tears in the jury room, although she felt close to it more than once. “I can’t get my words out right,” she told her husband one evening. She felt as if she was coming apart emotionally under the strain. One morning, speaking with the maintenance man at the elderly housing complex where she lived, she burst into tears for no apparent reason. She went to see her doctor, who told her that she was suffering from stress and prescribed some tranquilizers.

As fragile as Coulsey felt, she was nonetheless stubborn in the jury room. She announced one morning that she intended to go through the evidence piece by piece until she found proof of dumping on Beatrice’s land between 1968 and 1979. She sat before several large stacks of documents and began examining each page methodically. Fox stared at her for a moment and then broke out in derisive laughter. He left the jury room and went out to the mezzanine, where the lavatories were located.

Linda Kaplan, Jean Coulsey’s strongest ally, watched Fox leave. “He thinks he’s a lawyer,” she said in disgust.

On Friday morning, July 17, the end of the first week of their deliberations, Vogel said it was apparent they were getting nowhere on Beatrice. Coulsey’s search turned up two pieces of evidence showing that chemicals had been dumped on the fifteen acres between 1968 and 1979, but Fox insisted that this did not constitute a “preponderance of the evidence.” Vogel suggested they turn their attention to Grace.

By then, however, the lines had been drawn. They deliberated on Monday and Tuesday with little progress. Vogel sometimes made concessions to Fox and Clarke, and Vincent O’Rourke occasionally seemed swayed by Fox’s arguments. On some votes, O’Rourke sided with Fox and Harriet Clarke. But Coulsey and Kaplan were adamant in their positions. On Tuesday afternoon, Fox suggested they declare a deadlock and report to the judge that they could not arrive at a unanimous decision. Coulsey and Kaplan vehemently opposed this. “I don’t care how long we have to go,” Coulsey said. “I don’t care if it takes us all summer.” And none of the others, not even Harriet Clarke, liked the idea of giving up with the job unfinished.

That afternoon, following the discussion of a deadlock, William Vogel told the others some sobering news. If they could not reach a verdict soon, he would have to leave the jury. He was scheduled to enter the hospital on August 3, less than two weeks away, for heart bypass surgery. He himself had just gotten the news from his doctor last week.

The other jurors looked stunned. They offered Vogel their sympathy, and then they talked about what this development might cause the judge to do. Vogel said he suspected the judge would appoint one of the alternates to take his place. But everyone agreed that a new juror, no matter what that juror’s view of the case, would not solve the problem of the deadlock.

Perhaps out of consideration for Vogel, the jurors began Wednesday morning on a more subdued note. But as the hours passed the rancor once again increased. Fox began pacing and talking. Coulsey sat apart from the others and grimly continued her search through the boxes of evidence.

Linda Kaplan suspected that Fox had been taking his notes home with him and discussing the case with someone else. The judge had told them they should not remove any material from the jury room, and that the marshal would lock up their notes at the end of each day. Kaplan said nothing about her suspicions for several days. Then, on Wednesday afternoon, after a particularly vehement argument with Fox, she abruptly rose from her chair, left the jury room, and asked the marshal to summon Judge Skinner’s clerk. Her face was flushed and she was breathing hard with anger. She informed the clerk that one of the jurors was taking work home in violation of the judge’s order. The clerk promised he would report her allegation to the judge.

By then Vogel had to admit to himself that they were hopelessly deadlocked. “We’re not getting anywhere,” he said to the others. He looked at Jean Coulsey and said, “Do you want to let both companies off?”

Coulsey adamantly shook her head no.

“Then we have to tell the judge the situation,” said Vogel.

On a piece of notepaper, Vogel wrote: “After six and a half days of deliberation and examination of the evidence made available to the jury, we cannot reach a unanimous decision on Question 1 for either Grace or Beatrice.”

Vogel wrote the note with great reluctance. A deadlock, he knew, meant that the lawyers would have to try the case again. The time, the effort, and the money spent in the last five months would all have been wasted. As the jury foreman, Vogel felt partly responsible. He folded the note and decided he would wait until the end of the next day, Thursday, before delivering it to the judge. That would give them one more day to see if they could reach a decision.

3

Judge Skinner received William Vogel’s message on Thursday afternoon at two o’clock. The judge donned his black robe and called the lawyers into the courtroom, where he read the message aloud. “They are at square one,” the judge said.

Schlichtmann, standing next to the judge’s bench, sagged against the marble column, his shoulders slumped, his face ashen.

The judge studied the message closely. “The wording is a little odd. ‘We cannot reach a unanimous decision on Question 1.’ That leads me to speculate it may be a five-to-one decision one way or the other.” He paused for a moment and then added, “I should also convey to you that the number two juror was distressed that perhaps one member of the jury was taking the work home and discussing it with people outside. I have no way to verify that except to inquire. I think this lady came downstairs at the tail end of a rather heated argument. She may just be blowing off steam, but I can’t ignore it.”

The judge said he would have the jury brought down for further instructions. Facher and Keating raised objections to any strongly worded charge that might force the jurors to come to a verdict over their better judgment. Schlichtmann, still slumped against the column, said nothing throughout the debate.

“It doesn’t surprise me they are in this posture,” said Keating, who was anxious to keep matters exactly as they stood. “I would be very much opposed to trying to force them into some kind of agreement on a thing which reasonable people may disagree on.”

This clearly annoyed the judge. “You can say that about every case. Indeed, it is the reason why there’s a trial.”

“They obviously want a response,” Schlichtmann murmured at last.

“They want to be told they can go home, I imagine,” said the judge. “I’m not going to do that. I am not letting them go this easy, I will tell you.”

The lawyers took their seats at the counsel tables. The clerk escorted the jurors, who looked sad and weary, into the courtroom. The judge told them he had received their message, and then he delivered a standard speech he’d given before to deadlocked juries. “I’m not going to declare a mistrial at this point,” the judge said, “because if I do, another jury will have to hear the same evidence again. And there’s no reason to
suppose that some other jury will be in the position to do any better than you’ve done. It’s your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Do not hesitate to reexamine your own views or change your opinion. The jury room is no place for pride of opinion.”

Then the judge inquired, in circumspect fashion, about the allegation Linda Kaplan had made. He did not mention any names. “I take it you have not talked to anyone and no one has talked to you,” said the judge, looking closely at the jury. “If that has occurred, you have an obligation to advise me about it.” He paused, awaiting a response.