Critical Reaction (32 page)

Emily surveyed the elderly lawyer. Pauline had to know more than that.

Reading her thoughts, Pauline leaned into the desk toward Emily. “I’m telling you the truth, Emily: I don’t know how those two connected up. Maybe I should’ve asked, but I didn’t—because I respected Ted. I also believed in Kieran, and wanted to help. But if Ted had an interest in Kieran bringing his lawsuit, I’d guess that there’s something about the LB5 explosion that has significance to the Yakama people, too.”

CHAPTER 35

Dr. Trân appeared relaxed and confident seated in the witness box. Emily wished she felt the same at the podium.

For the first five minutes of eliciting testimony, Emily was sure she could feel the eight pairs of jurors’ eyes riddling her with holes. Three more sets were hitting her back, from the hostile group at defense counsel’s table. That didn’t include the judge or her staff. Then there were Kieran and her dad.

Kieran. She hadn’t even tried to reach him again last night or this morning, not until she’d thought through the conversation with Strand. Nor did she want to jeopardize her dad’s recent commitment to the case by raising it with him.

She had to focus. Standing alone here, Emily couldn’t help worrying about their joint decision to have her first witness in the case be Dr. Trân. This was such new territory for her: a key scientific witness. And her nerves weren’t helped by her father’s uncharacteristic comment to the judge, before the jury was called in, that this was Emily’s first expert witness in a civil trial.

Emily worked through Dr. Trân’s qualifications for the judge and jury. It seemed to go smoothly; his background on chemistry related to nuclear technologies was very strong. There was no way that King could challenge his basis to express an expert opinion today.

“Based on your education and experience,” Emily finally said as she concluded eliciting his credentials, “do you have an opinion as to the cause of the explosions in LB5?”

Dr. Trân nodded. “I do.”

“What is your opinion?”

“It is my opinion that pressure or heat from the reacting chemicals in Vat 17 detonated explosive substances in the lower levels of LB5. Those substances, in turn, hastened and combined with detonation of the contents of Vat 17 and other vats in room 365—resulted in three explosions in all. I believe that Covington was negligent for the presence of the reactive chemicals in Vat 17 and for the other substances in the lower levels of LB5. And finally, I believe that the three explosions that evening exposed Mr. Mullaney to radiation.”

“Objection,” King called as Trân wrapped up his summary. “Lack of foundation. Request to
voir dire
the witness.”

Startled, Emily looked around at her father, who gazed placidly back.

Voir dire
, challenging an expert’s credentials to express an opinion, was permitted by the court rules, but the tactic was rare enough that Emily had never experienced it in her short trial career. So how did King think he could succeed here with somebody as credentialed as Dr. Trân?

“You may question the witness, Mr. King,” the judge instantly replied.

Emily stepped uncertainly away from the podium as King came forward, a tight-lipped smile on his face.

“Dr. Trân,” he said, establishing himself at the podium, “your opinion is that there were other substances in LB5 capable of detonating—substances outside of room 365?”

“Of course.”

“And those substances were detonated as a result of Vat 17’s explosion.”

“Not precisely. Those substances detonated from heat and
pressure in Vat 17, transferred through a tube to the lower levels of LB5.”

“Fine. And exactly what evidence do you have for these explosive materials in the lower levels of LB5?”

“The strength of the explosions—which was sufficient to breach the blast doors to room 365. That fact, combined with the absence of such materials in room 365, of course,” Dr. Trân said with a smile.

“Well, let’s take that first point. What is your evidence regarding the ‘strength of the three explosions’?”

Dr. Trân explained about the seismographic data.

“Mm-hmm. So you have no
direct evidence
of the existence or strength of other explosive substances in LB5 the night of the explosion.”

“No. Because I have not had the opportunity to inspect LB5.”

“I see. And upon what do you base your conclusion that there were no other chemicals in room 365 capable of causing the second and third explosions?”

“I have reviewed the sampling data in room 365 going back two decades. That data is on a sheet provided to me by Mr. Mullaney’s attorneys, and is attached to my report. None of the vats held chemicals in sufficient volume to fuel such powerful explosions.”

“We’ll discuss that ‘data sheet’ at a later time. But even considering that data sheet, Dr. Trân, you would agree that sampling data is a poor way to predict an explosion, wouldn’t you?”

“I don’t understand.”

“Well, years of sampling didn’t lead anyone to predict that Vat 17 would be heading toward its own explosion that night, did they.”

For the first time Dr. Trân hesitated. “Well, that’s true, but—”

“So isn’t it plausible that historic sampling on other vats in room 365 failed to give a true picture of the explosive potential in those other vats as well?”

Dr. Trân’s smile faltered. “I disagree. Vat 17’s potential to explode is now discernible from the data. It’s just that no one had analyzed that data properly.”

“But Dr. Trân,” King said with a grin, shaking his head, “isn’t my suggestion—that the explosive potential for the other vat contents in room 365 was underestimated—more plausible than phantom explosive substances outside of room 365, for which you have not a scintilla of real proof?”

“Well,” Dr. Trân said, “it’s true that my argument is circumstantial because I have had no—”

“And there is one unassailable fact we all agree upon: that Kieran Mullaney’s turning of the valve on Vat 17 that evening was an essential piece to triggering an explosion.”

“Well, stated that way, yes, but—”

“Isn’t it also true that you’ve never worked for or on behalf of the Department of Energy, Mr. Trân?”

“No, I haven’t.”

“Nor have you ever worked for any university.”

“Only as a consultant.”

“But you’ve never joined a faculty.”

“Correct.”

“Yet you’ve testified in—” King pulled a document from the bottom of the pile of papers he’d brought to the podium—“in twelve other cases, all against companies like Covington Nuclear in the nuclear industry. Isn’t that correct?”

Dr. Trân’s hesitation was longer this time. “Yes.”

“Not once
in favor
of
the nuclear industry.”

“I’ve never been asked.”

“Is that a
yes
, Dr. Trân?”

“Yes.”

King turned to the judge. “Your Honor, this witness lacks critical evidentiary support for his opinions about the cause of the LB5 explosions. His opinion rests on rank speculation. Even this ‘material data’ sheet for the vats in room 365 has not yet
been introduced into evidence. I move that his prior testimony be stricken, and that he be prohibited from offering an opinion.”

Emily looked toward counsel table. Kieran appeared to be in shock. She looked to her father over the alarm thundering in her chest. This was all on her. They were about to lose this witness—and with it the case. And it was her fault.

Did he realize that? Because her father was looking away—at neither her, the judge, nor the jury. Off toward a suddenly interesting corner of the room. Calm as he’d been when she’d started with Dr. Trân.

She looked to the bench and Judge Johnston and saw that she was . . . hesitating. In fact, her gaze had moved from King and was focused on Emily. The instant ruling Emily had half expected had not arrived. And was that sympathy in her eyes?

“Ms. Hart,” Judge Johnston asked gently, “do you have anything to say?”

Emily fought to rise above the panic clouding her mind. The argument King was making was flawed. She knew it, but her mind was a blur. King had deliberately muddied the proceedings. The questions about who the scientist had testified for were irrelevant to his qualifications to testify today, just intended to pump up the judge against Dr. Trân. The data sheet from Taylor Christensen wasn’t yet in evidence, but the expert could still rely upon it until it was introduced. And King’s arguments in support of kicking Dr. Trân out of the trial were fundamentally flawed because . . .

“Judge,” she blurted out, “everything Mr. King has said is nothing more than
cross-examination
.”

Emily took a breath and slowed her cadence. “The points Mr. King has raised may impact the weight the jury gives the evidence, but it can’t prevent Dr. Trân from expressing his opinions to the jury. As for the data sheets, Dr. Trân can rely upon them—and if they’re not introduced later, Mr. King can point to their absence in closing arguments or move that his testimony
be stricken at that time. But Dr. Trân is a highly qualified expert and whatever Covington’s attorney
thinks
of his opinions, the doctor is qualified to express them.”

The judge was listening.

“Also, Your Honor,” Emily continued with more confidence, “we are operating with the disadvantage of not having been in the lower levels of LB5, based upon Judge Renway’s earlier ruling.”

Judge Johnston nodded, then looked to the opposing attorney.

“Mr. King,” Judge Johnston began slowly, “I am inclined to permit Ms. Hart to continue her examination of this witness.” The judge turned to the jury. “Ladies and gentlemen, I am going to permit this evidence at this time. It is possible that I will rule some or all of this evidence inadmissible at a future point in the trial—and if so, I will instruct you to disregard it. But for now, you are to treat this evidence as you would any other.”

The judge looked back and nodded to Emily with a slight smile. “Counsel, you may continue.”

Through a haze, Emily did.

Standing in the empty hall with her dad, Emily was just beginning to relax from the day’s ordeal. Dr. Trân had already left to make a “business call.” Kieran had also dashed. The jury and judge were gone.

Emily’s legs twitched with exhaustion.

“You did great,” Ryan said, smiling. “You got in everything Trân had to offer, from the cause of the explosion to the blood evidence.”

“I don’t know, Dad,” she said. “That was too close. I didn’t see that coming.”

“Um-hmm. Well, you handled it like a pro.”

Emily looked at her father’s face, expecting him to agree that King’s objection had been a surprise. “Dad, you didn’t know that was going to happen, did you?”

Her father didn’t respond.

“Dad, if you thought this might happen, why didn’t you tell me?”

His eyes softened. “I wasn’t certain. But if King did object, I knew you’d handle it just fine.”

Emily was too exhausted to express the anger she was feeling. “No, Dad, I didn’t. I was scared out of my mind. I’ve only used expert evidence a few times at the PD’s office—and nothing like this. You were the one who first suggested I take Trân.”

“Until a week ago, you had every witness in this case,” Ryan said softly. “I just suggested you
keep
Dr. Trân.”

She wasn’t listening as she recalled her father’s comments to the judge before the day’s evidence.

“And you told the judge that it was my first expert witness. You did that on purpose, didn’t you. To make the judge sympathetic.”

Ryan’s face grew serious. “Listen, Ems, we’ve got to face up to something here. As much as I hate this smug lawyer we’re facing, King’s right—Trân’s theory of substances outside of room 365 is logical, but the evidence for it is nonexistent. Without proof, maybe from an inspection of LB5, King’s going to take another run at having Dr. Trân’s testimony stricken. And he may succeed next time. And then we lose.”

His voice grew more gentle. “But it occurred to me that when it came to letting in the evidence in the first place, Judge Johnston might give you more leeway than me. Because every trial lawyer remembers their first expert witness.”

“Oh, Dad,” Emily said, closing her eyes. “How could you do that to me. Let me go up to that podium unprepared.”

She felt his hands on her shoulders and opened her eyes again. The smile on his face lacked even a trace of an apology.

“You weren’t unprepared. You’ve been preparing for a week. And if you’d had a stock answer to King’s objection all set, Judge Johnston would’ve seen through that in a heartbeat. She needed to see King attacking the underdog, a lawyer fighting to defend
her first expert. She needed the urge to reward your passion. Besides, you want to be a trial lawyer, remember? Thinking on your feet:
that
is being a trial lawyer.”

He shouldn’t have left her naked like that. Emily was too exhausted to argue it any further, but she knew he was wrong to do it. She wasn’t a beginner; he didn’t have to manipulate her to win the fight. She’d never put another lawyer through something like this, regardless of the strategic advantage.