The Runaway Jury (25 page)

John Riley Milton paused for a bit, then said, “Now, let’s keep this straight. The memo was prepared by someone at another company, and sent to the president of that company, right?”

“That’s correct.”

“A company that was then and is now a competitor of Pynex?”

“That’s correct.”

“How did the memo find its way to Pynex in 1973?”

“I never found out. But Pynex certainly knew about the study. In fact, the entire tobacco industry knew about the study by the early 1970s, if not sooner.”

“How do you know this?”

“I worked in the industry for thirty years, remember. And I spent my career in production. I talked to a lot of people, especially my counterparts at other companies. Let’s just say that the tobacco companies at times can stick together.”

“Did you ever attempt to obtain another copy of the memo from your friend?”

“I tried. It didn’t work. Let’s leave it at that.”

EXCEPT for the usual fifteen-minute coffee break at ten-thirty, Krigler testified nonstop for the three-hour morning session. His testimony passed by as if it were only a matter of minutes, and was a crucial
moment in the trial. The drama of an ex-employee spilling dirty secrets was played to perfection. The jurors even ignored their customary longings for lunch. The lawyers watched the jurors more closely than ever, and the Judge seemed to write down every word the witness said.

The reporters were unusually reverent; the jury consultants unusually attentive. The watchdogs from Wall Street counted the minutes until they could bolt from the room and make breathless phone calls to New York. The bored local lawyers hanging around the courtroom would talk about the testimony for years. Even Lou Dell stopped her knitting on the front row.

Fitch watched and listened from the viewing room next to his office. Krigler had been scheduled to testify early next week, and then there’d been the chance that he wouldn’t testify at all. Fitch was one of the few people still alive who’d actually seen the memo, and Krigler had described it with amazing recollection. It was clear to everyone, even Fitch, that the witness was telling the truth.

One of Fitch’s first assignments nine years ago when he’d first been hired by the Big Four was to track down
every
copy of the memo, and destroy each one. He was still working on it.

Neither Cable nor any defense lawyer retained by Fitch so far had seen the memo.

The admissibility of its existence in court had caused a small war. The rules of evidence normally prevent such verbal descriptions of lost documents, for obvious reasons. The best evidence is the document itself. But, as with every area of the law, there are exceptions and exceptions to the exceptions, and Rohr et al. had done a masterful job of convincing
Judge Harkin that the jury should hear Krigler’s description of what was, in effect, a lost document.

Cable’s cross-examination that afternoon would be brutal, but the damage was done. Fitch skipped lunch and locked himself in his office.

IN THE JURY ROOM, the atmosphere over lunch was remarkably different. The ordinary drivel about football and recipes was replaced by a virtual silence. As a deliberative body, the jury had been lulled into stupor with two weeks of tedious scientific testimony from experts who were being paid large sums of money to travel to Biloxi and lecture. Now the jury had been shaken back to life with Krigler’s sensational inside dirt.

They ate less and stared more. Most wanted to ease into another room with their favorite friend and replay what they’d just heard. Did they hear it right? Did everyone understand what the man just said? They intentionally kept nicotine high so people got hooked!

They managed to do just that. The smokers, only three now since Stella had departed, though Easter was a semi-smoker because he preferred to spend time with Jerry and Poodle and Angel Weese, ate quickly then excused themselves. They all sat on folding chairs, staring and puffing at the open window. With the weighted nicotine, the cigarettes felt a bit heavier. But when Nicholas said so, no one laughed.

Mrs. Gladys Card and Millie Dupree managed to leave for the rest room at the same moment. They took a long pee then spent fifteen minutes washing their hands and speaking to each other in front of the mirror. They were joined in mid-conversation by
Loreen Duke, who leaned by the towel dispenser and quickly threw in her amazement and disgust with tobacco companies.

After the table was cleared, Lonnie Shaver opened his laptop two chairs down from Herman, who had his braille machine plugged in and was typing away. The Colonel said to Herman, “Don’t guess you need a translator for that testimony, do you?” To which Herman replied with a grunt and said, “Pretty amazing, I’d say.” That was the nearest Herman Grimes came to discussing any aspect of the case.

Lonnie Shaver was not amazed or impressed by anything.

Phillip Savelle had politely asked for and received permission from Judge Harkin to spend part of his lunch break doing yoga under a large oak tree behind the courthouse. He was escorted by a deputy to the oak tree, where he removed his shirt, socks, and shoes, then sat on the soft grass and creased himself into a pretzel. When he began chanting, the deputy slid away to a nearby concrete bench and lowered his face so no one would recognize him.

CABLE SAID HELLO to Krigler as if the two were old friends. Krigler smiled and said “Good afternoon, Mr. Cable,” with an abundance of confidence. Seven months earlier, in Rohr’s office, Cable and company had spent three days taking a video deposition of Krigler. The video had been watched and studied by no fewer than two dozen lawyers and several jury experts and even two psychiatrists. Krigler was telling the truth, but the truth needed to be blurred at this point. This was a cross-examination, a crucial one, so to hell with the truth. The witness had to be discredited!

After hundreds of hours of plotting, a strategy had been developed. Cable began by asking Krigler if he was angry with his former employer.

“Yes,” he answered.

“Do you hate the company?”

“The company is an entity. How do you hate a thing?”

“Do you hate war?”

“Never been.”

“Do you hate child abuse?”

“I’m sure it’s sickening, but luckily I’ve never had any connection with it.”

“Do you hate violence?”

“I’m sure it’s awful, but, again, I’ve been lucky.”

“So you don’t hate anything?”

“Broccoli.”

A gentle laugh came from all quarters of the courtroom, and Cable knew he had his hands full.

“You don’t hate Pynex?”

“No.”

“Do you hate anyone who works there?”

“No. I dislike some of them.”

“Did you hate anyone who worked there when you worked there?”

“No. I had some enemies, but I don’t remember hating anyone.”

“What about the people against whom you directed your lawsuit?”

“No. Again, they were enemies, but they were just doing their jobs.”

“So you love your enemies?”

“Not really. I know I’m supposed to try, but it sure is difficult. I don’t recall saying I loved them.”

Cable had hoped to score a minor point by injecting the possibility of retribution or revenge on the
part of Krigler. Maybe if he used the word “hate” enough, it might stick with some of the jurors.

“What is your motive for testifying here?”

“That’s a complicated question.”

“Is it money?”

“No.”

“Are you being paid by Mr. Rohr or anyone working for the plaintiff to come and testify?”

“No. They’ve agreed to reimburse me for my travel expenses, but that’s all.”

The last thing Cable wanted was an open door for Krigler to expound upon his reasons for testifying. He had touched on them briefly during Milton’s direct examination, and he’d spent five hours detailing them during the video deposition. It was crucial to keep him occupied with other matters.

“Have you ever smoked cigarettes, Mr. Krigler?”

“Yes. Unfortunately I smoked for twenty years.”

“So you wished you’d never smoked?”

“Of course.”

“When did you start?”

“When I went to work for the company, 1952. Back then they encouraged all their employees to smoke cigarettes. They still do.”

“Do you believe you damaged your health by smoking for twenty years?”

“Of course. I feel lucky I’m not dead, like Mr. Wood.”

“When did you quit?”

“In 1973. After I learned the truth about nicotine.”

“Do you feel your present health has been diminished in some way because you smoked for twenty years?

Or course.

“In your opinion, was the company responsible in any way for your decision to smoke cigarettes?”

“Yes. As I said, it was encouraged. Everybody else smoked. We could purchase cigarettes at half price in the company store. Every meeting began with a bowl of cigarettes passed around. It was very much a part of the culture.”

“Were your offices ventilated?”

“No.”

“How bad was the secondhand smoke?”

“Very bad. There was always a blue fog hanging not far over your head.”

“So you blame the company today because you’re not as healthy as you think you should be?”

“The company had a lot to do with it. Fortunately, I was able to kick the habit. It wasn’t easy.”

“And you hold a grudge against the company for this?”

“Let’s just say I wish I’d gone to work in another industry when I finished college.”

“Industry? Do you carry a grudge against the entire industry?”

“I’m not a fan of the tobacco industry.”

“Is that why you’re here?”

“No.”

Cable flipped his notes and quickly changed direction. “Now, you had a sister at one time, didn’t you, Mr. Krigler?”

“I did.”

“What happened to her?”

“She died in 1970.”

“How’d she die?”

“Lung cancer. She smoked two packs a day for about twenty-three years. Smoking killed her, Mr. Cable, if that’s what you want.”

“Were you close to her?” Cable asked with enough compassion to deflect some of the ill will for bringing up the tragedy in the first place.

“We were very close. She was my only sibling.”

“And you took her death very hard?”

“I did. She was a very special person, and I still miss her.”

“I’m sorry to bring this up, Mr. Krigler, but it is relevant.”

“Your compassion is overwhelming, Mr. Cable, but there’s nothing relevant about it.”

“How did she feel about your smoking?”

“She didn’t like it. As she was dying she begged me to stop. Is that what you want to hear, Mr. Cable?”

“Only if it’s the truth.”

“Oh it’s true, Mr. Cable. The day before she died I promised I would quit smoking. And I did, though it took me three long years to do it. I was hooked, you see, Mr. Cable, as was my sister, because the company that manufactured the cigarettes that killed her, and could’ve killed me, intentionally kept the nicotine at a high level.”

“Now—”

“Don’t interrupt me, Mr. Cable. Nicotine in itself is not a carcinogen, you know that, it’s just a poison, a poison that gets you addicted so the carcinogens can one day take care of you. That’s why cigarettes are inherently dangerous.”

Cable watched him with complete composure. “Are you finished?”

“I’m ready for the next question. But don’t interrupt me again.”

“Certainly, and I apologize. Now, when did you first become convinced that cigarettes were inherently dangerous?”

“I don’t know exactly. It’s been known for some time, you know. It did not then and does not now take a genius to figure it out. But I’d say at some point in the early seventies, after I finished my study, after my sister had died, and shortly before I saw the infamous memo.”

“In 1973?”

“Somewhere in there.”

“When did your employment with Pynex cease? What year?”

“In 1982.”

“So you continued working for a company which made products you considered to be inherently dangerous?”

“I did.”

“What was your salary in 1982?”

“Ninety thousand dollars a year.”

Cable paused and walked to his table where he was handed yet another yellow legal pad which he studied for a second as he bit a stem of his reading glasses, then he returned to the lectern and asked Krigler why he’d sued the company in 1982. Krigler didn’t appreciate the question, and looked at Rohr and Milton for help. Cable pursued details of the events leading up to the litigation, hopelessly complicated and personal litigation, and the testimony slowed to a virtual halt. Rohr objected and Milton objected, and Cable acted as if he couldn’t understand why in the world they’d object. The lawyers met at the sidebar to haggle in private in front of Judge Harkin, and Krigler grew weary of the witness stand.

Cable hammered away at Krigler’s performance record during his last ten years with Pynex, and
hinted strongly that other witnesses might be called to contradict him.

The ploy almost worked. Unable to shake the damaging aspects of Krigler’s testimony, the defense chose instead to blow smoke at the jury. If a witness is unshakable, then beat him up with insignificant details.

The ploy was explained to the jury, however, by young Nicholas Easter, who’d had two years of law school and chose to remind his colleagues of his experiences during a late afternoon coffee break. Over Herman’s objections, Nicholas voiced his resentment at Cable for throwing mud and trying to confuse the jury. “He thinks we’re stupid,” he said bitterly.

Seventeen

I
n response to frantic calls from Biloxi, the price of Pynex shares dipped as low as seventy-five and a half by closing Thursday, down almost four points in heavy trading attributed to the dramatic events in the courtroom.

In other tobacco trials, former employees had testified about pesticides and insecticides sprayed on the crops, and experts had linked the chemicals to cancer. The juries had not been impressed. In one trial, a former employee had spilled the news that his former employer had targeted young teenagers with ads showing thin and glamorous idiots with perfect chins and perfect teeth having all manner of fun with tobacco. The same employer had targeted older teenaged males with ads depicting cowboys and stock car drivers seriously pursuing life with cigarettes stuck between their lips.