A Civil Action (70 page)

“Why were you doing that?” the judge asked.

“What we tried to do is leave the area looking as if it wasn’t really disturbed.”

“Who is ‘we’?”

“I believe,” said Granger, looking embarrassed, “I possibly did it on my own. The main reason, I remember when it was uncovered, Mr. Riley being upset about it. It was almost as if it was my fault we uncovered it.”

Schlichtmann rose for redirect examination. Granger admitted now that there had been more than one pile of the sludgelike material. Schlichtmann had Granger draw on the map of the fifteen acres the areas where he had removed the clumps of this material. Granger drew several large circles, one up in the middle of the fifteen acres where the heaviest contamination of TCE had been found, one down by Riley’s production well, and another by the gate leading on to the property.

Riley returned to the courtroom in early March, three years after first taking the witness stand during trial. Back then, he’d been aggressive and antagonistic, but now he looked sickly, moody, and listless. He paced in the corridor, eyes narrowed and suspicious, mouth tightly compressed. He was in his mid-sixties, suffering from episodes of depression. Schlichtmann called him to the stand and showed him the vial that contained Sample Z. Riley insisted that it was not tannery sludge. He said he did not recall ever telling Granger to remove material of any sort from the fifteen acres. “I don’t remember,” he said, shaking his ponderous head.

Schlichtmann pressed him. “It could have happened?” he asked the tanner.

Riley shrugged. “It could have. It could have not. I don’t remember.”

For an hour and a half that afternoon, Riley answered Schlichtmann’s questions by saying, “I don’t remember.”

When Schlichtmann asked him about the Yankee report, Riley said that he had taken a copy home with him. And then, to Schlichtmann’s astonishment, Riley admitted that he had kept other tannery records at home. “Personal studies I had done with the machines, and some of my own formula books.”

Formula books? Schlichtmann felt the sort of rising excitement he’d felt years ago when Al Love had called him. But he kept his voice steady and his manner deliberate. He asked Riley if the formulas involved chemicals that the tannery had used in making leather.

“Well, yes,” said Riley.

“Where are these formulas now?” asked Schlichtmann.

“Old formulas and everything? I still have some old formulas at home. I always kept the formulas at home. As far back as I can remember.”

“How far back do they go?”

“Oh, I can’t answer that question. Some would be recent, some would be old. Years, probably. They don’t mean anything, the formulas. They are like old recipes.”

Facher stood, distressed at the direction Schlichtmann was going. “I don’t know what the relevance is of ancient formulas,” he told the judge.

“I can see the relevance,” said Skinner.

Riley admitted that he’d given the lawyers his formula books at one time or another. He couldn’t remember when.

Schlichtmann prompted him. “At any time during this litigation?”

“Well, it must have been.”

And hadn’t Riley said at his deposition, and during trial, that all records concerning chemical use had been destroyed in 1979? That he possessed no records—no pieces of paper of any sort—indicating what chemicals the tannery had used in the 1960s and 1970s?

Schlichtmann turned to the judge. “I should have been given those chemical formulas during discovery. I’d like them now.”

Facher denied having them. Mary Ryan, sitting behind Facher in the gallery, stood and admitted that she had “tannery documents coming out of my ears.” She added, “I took the documents and put them in a warehouse. Some are in my office.” In her defense, she claimed that Schlichtmann had never asked for such things during discovery, that Schlichtmann had been “aware of numerous, numerous files that were not searched.”

Schlichtmann turned to the judge again. He asked for permission to search the warehouse.

The judge replied, “You are talking about a warehouse full of documents. You’re suggesting the kind of discovery that’s turning what is supposed to be a prompt hearing into a major trial. I’m calling an end to it.”

With this, Schlichtmann’s composure vanished. “For God’s sake,” he shouted at the judge. “We’re here because information was withheld. And we’ve just heard that more information was withheld. How can you say—”

Skinner interrupted him. “I’m not certain you asked for all that you now say you asked for. No litigant has an obligation to produce or volunteer anything that is not demanded.”

By the time Schlichtmann finished with Riley, he revealed that Riley had committed one “faulty recollection” after another: Riley had lied about never removing anything from the fifteen acres, about never seeing debris of any sort on the land, about destroying all tannery records before 1979, even about the machine that had used tetrachloroethylene. Finally the judge himself, questioning Riley about the machine, said, “That statement you made at trial was not a true statement?”

A hush descended on the courtroom as the judge asked this question. Until now, Riley had repeatedly claimed not to remember when Schlichtmann confronted him with the evidence of his misstatements. But now, Riley hung his massive head and answered the judge forthrightly. “No,” he said, “it was not a true statement.”

From the gallery, Donna Robbins watched Riley’s performance. One might have expected her to exult in Riley’s shame, but she murmured, “Oh, I feel sorry for Riley now.”

Facher knew that Riley had been exposed, but he did not think it a matter of deliberate perjury. “Questions pass Riley like ships in the night,” said Facher during a break in the hearing. Facher would have liked to bring out the fact of Riley’s depression in defense of the tanner’s mental confusion and failures of memory, but Riley had told him, “I don’t want to talk about that.”

When Schlichtmann finally excused Riley, the tanner left the courtroom without saying a word to his lawyers. Facher thought he’d seen a few tears on Riley’s sallow cheeks when Riley had been on the witness stand. Gaining the door of the courtroom, Riley wrapped himself in his tan overcoat and walked slowly down the corridor to the elevator, a large, shambling man, his shoulders rounded. When the elevator door opened, he entered and sagged against the corner. One of the onlookers from the gallery joined him.

“This isn’t about truth,” Riley said bitterly. “This is about money.” Tears wet his cheeks. He wiped them away with a big fist. He looked at the gallery member. “When will this be over?” he asked.

“Probably another year.”

Riley groaned. “I’ll be dead by then,” he said.

Schlichtmann presented more witnesses—a truck driver from Woburn, and a seventeen-year-old boy who had ridden his motorbike on the fifteen acres—who testified that the tannery had dumped its waste on the land. He called to the witness stand a biochemist from MIT who examined Sample Z and found that it contained animal cells and animal fat and therefore had probably come from the fleshings of hides sent to the tannery. Facher countered with his own expert, the very same soil chemist who had propounded the “soil bug” theory during trial. This expert, Olin Braids, contended that Sample Z consisted of resins and a plasticizer. It was, said Braids, a polymer and therefore certainly not tannery waste.

After all the evidence had been presented, Facher and Jacobs each took the witness stand in his turn. Each swore that he had never possessed the Yankee report before or during the trial. Facher conducted the direct examination of Jacobs, who seemed at first nervous and then irritable at the strange circumstance in which he found himself. Jacobs claimed that he had never even seen the report until Schlichtmann filed the appeal. For his part, Facher appeared at ease when he took the stand. Under oath, he testified that he had lost cases before. “I’ve lost them the way I’ve won others—by the rules,” he said, looking up at the judge. “This case was a hard case, fairly fought, and it was won on the merits.”

Afterward Conway couldn’t get over the experience of seeing the two lawyers call themselves to the witness stand. “I caught Neil’s eye and he winked at me,” Conway said in wonderment. “It was surreal.”

The hearings, which had begun in January, finally ended in March. Another four months passed—four agonizing months for Schlichtmann—before Judge Skinner handed down his ruling. The judge found that Riley had committed perjury and that Mary Ryan was guilty of “deliberate misconduct” in failing to give Schlichtmann the Yankee report. The judge completely exonerated Facher. “I have no reason to doubt his testimony,” he wrote. “Mr. Facher is a trial lawyer of national reputation whose work I have observed in this court on a
number of occasions. He has been well known locally for many years as a tough but meticulously ethical advocate.”

The judge also found that the “removal activity” on the fifteen acres “was legitimately connected to the drilling of test wells and other investigative procedures.” In spite of Granger’s testimony, the judge relied on his own comparison of tannery sludge to Sample Z, and “found them totally different in color, consistency, and odor.” On the basis of Facher’s expert in soil chemistry, the judge concluded that Sample Z “is in fact the residual by-product of the manufacture of polyvinyl chloride” and had “no connection whatsoever with the tanning of leather.”

Nonetheless, wrote Judge Skinner, since Mary Ryan’s legal fees had been paid by Beatrice, and since she and Facher had worked closely together, any misconduct by her was therefore attributable to Beatrice. There would have to be further hearings. In these, the burden would lie upon Facher to prove that the misconduct of Mary Ryan had not “materially impaired” Schlichtmann’s development of a case against the tannery itself.

Schlichtmann’s optimism was indomitable. He believed that Judge Skinner had finally changed. “I’ll get sanctions now, and a new trial,” he told Conway.

Conway thought differently. Hadn’t Skinner found against them in every instance but one? And in that one instance—misconduct in the failure to produce the Yankee report—wasn’t Skinner merely repeating what the appeals court had already said? No, insisted Conway, the judge hadn’t changed. “He’s done the absolute minimum he can do to save face.”

The last series of hearings began with Facher trying to call Schlichtmann to the witness stand. What better way, Facher argued, to prove that the “misconduct” had not prevented Schlichtmann from developing a tannery case than by cross-examining Schlichtmann himself?

Schlichtmann had a vivid memory of that day seven years ago, at the Rule 11 hearing, when Cheeseman had tried to call him to the witness stand. The case had gone on for so long now that it was beginning to repeat itself. Again Schlichtmann refused to take the stand. Judge Skinner strongly urged him to do so. After all, said the judge, Schlichtmann could no longer claim principle in the matter of lawyers taking the witness stand since he himself had called Facher and Jacobs to the stand.
No, Schlichtmann replied to the judge, he had not called them. They had called themselves, in their own defense. Judge Skinner shrugged and warned Schlichtmann that his refusal to take the stand might cost him a new trial, just as he had warned seven years ago that a refusal then might cost Schlichtmann his case.

So Facher went ahead without the one witness he most wanted to cross-examine, without, in fact, calling any witnesses. He relied solely upon the record, arguing that Schlichtmann had not been deprived of a tannery case because he had not been diligent enough to pursue one to begin with; he had focused all his attention on the fifteen acres. If Schlichtmann would only take the witness stand and allow himself to be questioned, then Facher could prove that to the judge.

Judge Skinner asked to see Schlichtmann’s investigative file on the tannery. Schlichtmann protested. What relevance could his investigative file have to these hearings? The judge explained that he only wanted to confirm that Schlichtmann really didn’t have any information comparable to the Yankee report. If, of course, it turned out that Schlichtmann did have comparable information, then he could not very well claim that failure to turn over the Yankee report had “substantially interfered” with his pursuit of a tannery case.

Again Schlichtmann protested. The issue was not what he had or didn’t have, but what had been withheld from him. Besides, his investigative file was classic attorney work product and therefore off-limits to the eyes of the opposing party. The judge told Schlichtmann not to worry about that. He alone would look at the file,
in camera
. He would not allow Facher to see it.

On this basis, Schlichtmann reluctantly agreed to turn over his file. He told himself he had nothing to fear. The judge would find that he had diligently pursued every lead, and that he’d never had the Yankee report or anything similar.

6

The hearings ended in late October, but not without a final surprising revelation. Mary Ryan, who by now had hired her own personal lawyer, asked Judge Skinner to reconsider his finding that she was guilty of “deliberate misconduct.” The judge refused. This prompted Mary Ryan
to submit an affidavit asserting that “counsel for the defendant were fully aware of the Yankee” report during discovery. Neil Jacobs, she said, had known of the report as early as November 1984, and had received a copy she’d sent to him by messenger two months before trial. Ryan asserted that she had forty-one documents—letters, memos, telephone logs, and receipts from messengers—attesting to the truth of her statement.

Reading Mary Ryan’s affidavit, Schlichtmann wondered for a moment if he was hallucinating. “Am I seeing this right?” he asked himself. Jacobs had testified under oath that he’d never laid eyes on the report until a year after the trial. Ryan’s affidavit, if true, provided clear evidence of a fraud upon the court. It should infuriate the judge. But by now Schlichtmann had given up hope of that happening. “The lies, one upon the other,” he said to Conway, “and that fucker the judge sits there and says, ‘You haven’t shocked me yet.’ ”