The Runaway Jury Part 31

Dr. Sprawling-Goode had never heard of Rankin Fitch. She had received an eight-hundred-thousand-dollar grant from the Consumer Product Inst.i.tute, an obscure and previously unheard of think tank in Ottawa which existed, it claimed, to study the marketing trends of thousands of consumer products. She knew little about the Consumer Product Inst.i.tute. Neither did Rohr. He and his investigators had been digging for two years. It was very private, protected to some degree by Canadian law, and apparently funded by large consumer product companies, none of which appeared to be cigarette manufacturers.

Her findings were contained in a handsome, bound, two-inch-thick report, which Cable got admitted into evidence. It joined a stack of other exhibits as an official piece of the record. Exhibit number eighty-four, to be exact, adding to the twenty thousand or so pages already in evidence and expected to be reviewed by the jury during deliberations.

After the thorough and efficient setup, her findings were succinct and unsurprising. With certain clearly defined and obvious exceptions, all advertising for consumer products is aimed at young adults. Cars, toothpaste, soap, cereal, beer, soft drinks, apparel, cologne-all of the most heavily advertised products have young adults as their target audience. The same is true for cigarettes. Sure, they are portrayed as the products of choice of the thin and beautiful, the active and carefree, the rich and glamorous. But so are countless other products.

She then ticked off a list of specifics, starting with automobiles. When was the last time you saw a TV ad for a sports car with a fat fifty-year-old man behind the wheel? Or a mini-van driven by an obese housewife with six kids and a dirty dog hanging out the windows? Never happens. Beer? You got ten guys sitting in a den watching the Super Bowl. Most have hair, strong chins, perfect jeans, and flat stomachs. This is not reality, but it's successful advertising.

Her testimony became quite humorous as she went through her list. Toothpaste? Ever see an ugly person with ugly teeth grinning at you through the TV? Of course not. They all have perfect teeth. Even in the acne commercials the troubled teens have only a pimple or two.

She smiled easily and even giggled at times at her own comments. The jury smiled along with her. Her point found its mark repeatedly. If successful advertising depends on targeting young adults, why shouldn't tobacco companies be allowed to do it?

She stopped smiling when Cable moved her to the issue of targeting kids. She and her research team had found no evidence of this, and they had studied thousands of tobacco ads over the past forty years. They had watched, studied, and cataloged every cigarette ad used during the TV days. And she noted, almost in an aside, that smoking had increased since such ads were banned from TV. She had spent almost two years searching for evidence that tobacco companies target teens, because she had started the project with this unfounded bias. But it simply wasn't true.

In her opinion, the only way to prevent kids from being influenced by cigarette ads was to ban all of them-billboards, buses, newspapers, magazines, coupons. And, in her opinion, this would do nothing to slow tobacco sales. It would have no impact whatsoever on underage smoking.

Cable thanked her as if she were a volunteer. She'd already been paid sixty thousand dollars to testify, and would send a bill for another fifteen. Rohr, who was anything but a gentleman, knew the pitfalls of attacking such a pretty lady in the Deep South. He delicately probed instead. He had lots of questions about the Consumer Product Inst.i.tute, and the eight hundred thousand dollars it had paid for this study. She told him everything she knew. It was an academic body established to study trends and formulate policy. It was funded by private industry.

"Any tobacco companies?"

"Not that I'm aware of."

"Any subsidiaries of tobacco companies?"

"I'm not sure."

He asked her about companies related to tobacco companies, parent companies, sister companies, and divisions and conglomerates, and she knew nothing.

She knew nothing because that was the way Fitch had planned it.

CLAIRE'S TRAIL took an unexpected turn Thursday morning. The ex-boyfriend of a friend of Claire's took a thousand dollars in cash and said his ex-girlfriend was now in Greenwich Village working as a waitress while aspiring to do serious work in soap operas. His ex-girlfriend and Claire had worked together at Mulligan's and allegedly had been close friends. Swanson flew to New York, arrived late Thursday afternoon, and took a cab to a small hotel in SoHo where he paid cash for one night and started making calls. He found Beverly at work in a pizzeria. She answered the phone in a hurry.

"Is this Beverly Monk?" Swanson asked, in his best imitation of Nicholas Easter. He'd listened to his recorded voice many times.

"It is. Who is this?"

"The Beverly Monk who once worked at Mulligan's in Lawrence?"

A pause, then, "Yes. Who is this?"

"This is Jeff Kerr, Beverly. It's been a long time." Swanson and Fitch were gambling that after Claire and Jeff left Lawrence they had not kept in touch with Beverly.

"Who?" she asked, and Swanson was relieved.

"Jeff Kerr. You know, I went with Claire. I was a law student."

"Oh yeah," she said as if maybe she remembered him and maybe she didn't.

"Look, I'm in the city, and I was wondering if you've heard from Claire recently."

"I don't understand," she said slowly, obviously trying to place the name with the face and figure out who was who and why was he here.

"Yeah, it's a long story, but Claire and I split six months ago. I'm sorta looking for her."

"I haven't talked to Claire in four years."

"Oh, I see."

"Look, I'm real busy. Maybe some other time."

"Sure." Swanson hung up and called Fitch. They decided it was worth the risk to approach Beverly Monk, with cash, and ask about Claire. If she hadn't talked to her in four years, it would be impossible for her to quickly find Marlee and report the contact. Swanson would follow her, and wait until tomorrow.

EACH JURY CONSULTANT was required by Fitch to prepare a one-page report at the close of trial each day. One page, double-s.p.a.ced, straightforward, with no words beyond four syllables and setting forth in clear language that expert's impressions of the day's witnesses and how their testimony was received by the jury. Fitch demanded honest opinions, and had berated his experts before when the language was too sugary. He insisted on pessimism. The reports were due on his desk precisely one hour after Judge Harkin recessed for the day.

Wednesday's reports on Jankle were mixed to bad, but Thursday's summaries of Dr. Denise McQuade and Dr. Myra Sprawling-Goode were nothing short of magnificent. Aside from brightening up a drab courtroom packed with boring men in dull suits, both women had performed well on the stand. The jurors paid attention, and seemed to believe what they heard. Especially the men.

Still, Fitch was not consoled. He had never felt worse at this point in a trial. The defense had lost one of its most sympathetic jurors with the exit of Herrera. The New York financial press had suddenly declared the defense to be on the ropes and was openly concerned about a plaintiff's verdict. Barker's column in Mogul Mogul was the week's hottest topic. Jankle had been a disaster. Luther Vandemeer of Trellco, the smartest and most influential of the Big Four CEO's, had called with harsh words during lunch. The jury was sequestered, and the longer the trial dragged on, the more blame the jurors would heap upon the party now calling the witnesses. was the week's hottest topic. Jankle had been a disaster. Luther Vandemeer of Trellco, the smartest and most influential of the Big Four CEO's, had called with harsh words during lunch. The jury was sequestered, and the longer the trial dragged on, the more blame the jurors would heap upon the party now calling the witnesses.

THE TENTH NIGHT of sequestration pa.s.sed without incident. No wayward lovers. No unauthorized trips to casinos. No spontaneous yoga at full volume. Herrera was missed by no one. He had packed in minutes and left, telling the Sheriff repeatedly he was being framed and vowing to get to the bottom of it.

An impromptu checkers tournament began in the dining room after dinner. Herman had a braille board with numbered s.p.a.ces, and the night before, he'd whipped Jerry eleven straight games. Challenges were issued, and Herman's wife brought his board to the room and a crowd gathered. In less than an hour, he took three straight from Nicholas, three more from Jerry, three from Henry Vu, who'd never played the game, three straight from Willis, and was about to play Jerry again, this time for a small wager, when Loreen Duke entered the room in search of another dessert. She'd played the game as a child with her father. When she beat Herman in the first game, there was not the slightest trace of sympathy for the blind man. They played until curfew.

Phillip Savelle stayed in his room, as usual. He spoke occasionally during meals at the motel and during coffee breaks in the jury room, but he was perfectly content to keep his nose in a book and ignore everyone.

Nicholas had tried twice to reach him, to no avail. He would not suffer small talk, and wanted no one to know anything about him.

Thirty-one.

After almost twenty years of shrimping, Henry Vu seldom slept past four-thirty. He got his hot tea early on Friday, and with the Colonel gone he sat alone at the table and scanned a newspaper. Nicholas soon joined him. As he often did, Nicholas hurried through the pleasantries and asked about Vu's daughter at Harvard. She was the source of immense pride, and Henry's eyes danced when he told of her last letter.

Others came and went. The conversation turned to Vietnam and the war. Nicholas confided in Henry for the first time that his father had been killed there in 1972. It wasn't true, but Henry was deeply touched by the story. Then, when they were alone, Nicholas asked, "So what do you think about this trial?"

Henry took a long drink of heavily creamed tea, and licked his lips. "Is it okay to talk about it?"

"Sure. It's just me and you. Everybody's talking, Henry. That's the nature of a jury. Everybody but Herman."

"What does everybody else think?"

"I think most of us have an open mind. The most important thing is that we stick together. It's crucial that this jury reach a verdict, preferably unanimous, but at least a vote of nine to three one way or the other. A hung jury would be disastrous."

Henry took another drink and pondered this. He understood English perfectly, could speak it well though with an accent, but like most laymen, natives and immigrants alike, had little grasp of the law. "Why?" he asked. He trusted Nicholas, as did virtually all the jurors, because Nicholas had studied the law and seemed incredibly adept at comprehending facts and issues the rest of them missed.

"Very simple. This is the mother of all tobacco trials-Gettysburg, Iwo Jima, Armageddon. This is where the two sides have met to unload their heaviest ammo. There's gotta be a winner, and there's gotta be a loser. Clear and decisive. The issue of whether tobacco companies are to be held liable for cigarettes has to be settled right here. By us. We've been chosen, and it's up to us to reach a verdict."

"I see," Henry said, nodding, still confused.

"The worst thing we can do is hang ourselves, split down the middle and have a mistrial declared."

"Why would that be so bad?"

"Because it's a cop-out. We'd simply be pa.s.sing the buck to the next jury. If we get hung up and go home, it'll cost each side millions of dollars because they'll have to come back in two years and replay the whole thing. Same judge, same lawyers, same witnesses, everything will be the same but the jury. We will, in effect, be saying that we didn't have enough sense to reach a decision, but the next jury from Harrison County will be smarter."

Henry leaned to his right a bit, in the direction of Nicholas. "What're you gonna do?" he asked, just as Millie Dupree and Mrs. Gladys Card entered giggling and went for the coffee. They chatted with the guys for a moment, then left to watch Katie on the "Today Show." They just loved Katie.

"What're you gonna do?" Henry whispered again, eyes on the door.

"I don't know right now, and it's not important. The important thing is for us to stick together. All of us.

"You're right," Henry said.

DURING THE COURSE of the trial, Fitch had developed the habit of keeping himself busy at his desk during the hours before court while staring at the phone. His eyes seldom left it. He knew she would call Friday morning, though he had no idea what scheme or ploy or heart-stopping prank she'd be up to.

At eight sharp, Konrad interrupted on the intercom with the simple words "It's her."

Fitch lunged for the phone. "h.e.l.lo," he said pleasantly.

"Hey, Fitch. Look, guess who's bothering Nicholas now?"

He stifled a groan and closed his eyes hard. "I don't know," he said.

"I mean, this guy is really giving Nicholas a hard time. We might have to b.u.mp him."

"Who?" Fitch pleaded.

"Lonnie Shaver."

"Oh! d.a.m.n! No! You can't do that!"

"Gee, Fitch."

"Don't do it, Marlee! Dammit!"

She paused to let him despair for a second. "You must be fond of Lonnie."

"You gotta stop this, Marlee, okay? This is getting us nowhere." Fitch was very aware of how desperate he sounded, but he was no longer in control.

"Nicholas has to have harmony on his jury. That's all. Lonnie has become a thorn."

"Don't do it, please. Let's talk about this."

"We're talking, Fitch, but not for long."

Fitch took a deep breath, then another. "The game is almost over, Marlee. You've had your fun, now what do you want?"

"Got a pen?"

"Sure."

"There's a building on Fulton Street, Number 120. White brick, two stories, an old building chopped into tiny offices. Upstairs, Number 16, belongs to me, for at least another month. It's not pretty, but that's where we'll meet."

"When?"

"In an hour. Just the two of us. I'll watch you come and go, and if I see any of your goons then I'll never speak to you again."

"Sure. Whatever."

"And I'll check you for bugs and mikes."

"There won't be any."

EVERY LAWYER on Cable's defense team held the opinion that Rohr had spent too much time with his scientists; nine full days in all. But with the first seven, the jury had at least been free to go home at night. The mood was vastly different now. The decision was made to pick their two best researchers, get them on the stand, and get them off as quickly as possible.

They had also made the decision to ignore the issue of nicotine addiction, a radical departure from the normal defense in cigarette cases. Cable and his crew had studied each of the sixteen previous trials. They had talked to many of the jurors who had decided those cases, and they were repeatedly told that the weakest part of the defense came when the experts put forth all sorts of fancy theories to prove that nicotine was in fact not addictive. Everyone knew the opposite to be true. It was that simple.

Don't try to convince jurors otherwise.

The decision required Fitch's approval, which he grudgingly gave.

The first witness Friday morning was a s.h.a.ggy-headed nerd with a thin red beard and heavy bifocals. The beauty show was apparently over. His name was Dr. Gunther, and it was his opinion that cigarette smoking really didn't cause cancer after all. Only ten percent of smokers get cancer, so what about the other ninety percent? Not surprisingly, Gunther had a stack of relevant studies and reports, and couldn't wait to stand before the jury with a tripod and a pointer and explain in breathless detail his latest findings.

Gunther was not there to prove anything. His job was to contradict Dr. Hilo Kilvan and Dr. Robert Bronsky, experts for the plaintiff, and to muddy the waters so there would be considerable doubt in the minds of the jurors about just how deadly smoking really was. He couldn't prove smoking didn't cause lung cancer, and he argued that no amount of research had proved that smoking absolutely does cause it. "More research is needed," he said every ten minutes.

ON THE CHANCE that she might be watching, Fitch walked the last block to 120 Fulton Street, a pleasant stroll along the shaded sidewalk with leaves dropping gently from above. The building was in the old part of town, four blocks from the Gulf, in a neat line of carefully painted two-stories, most of which seemed to be offices. Jose was told to wait three streets over.

No chance of a body mike or a wire. She'd broken him of that habit at their last meeting, on the pier. Fitch was alone, wireless, mikeless, bugless, without a camera or an agent nearby. He felt liberated. He would have to survive by brains and wit, and he welcomed the challenge.

He climbed the sagging wooden stairs, stood before her unmarked office door, took notice of the other unmarked doors in the cramped hallway, and gently knocked. "Who is it?" came her voice.

"Rankin Fitch," he answered just loud enough to be heard.

A dead bolt rattled from the inside, then Marlee appeared in a gray sweatshirt and blue jeans, no smile at all, no greeting of any sort. She closed the door behind Fitch, locked it, and walked to one side of a rented folding table. Fitch took the measure of the room, a cubbyhole with no window, one door, peeling paint, three chairs, and a table. "Nice place," he said, looking at the brown water spots on the ceiling.

"It's clean, Fitch. No phones for you to tap, no vents for cameras, no wires in the walls. I'll check it every morning, and if I find your trail, then I'll simply walk out the door and never come back."

"You have a low impression of me."

"It's one you deserve."

Fitch looked again at the ceiling, then the floor. "I like the place."

"It'll serve its purpose."