It asked questions like, Do you now smoke cigarettes? And if so, how many packs a day? And if so, how long have you smoked? And if so, do you want to stop? Have you ever smoked cigarettes as a habit? Has any member of your family, or someone you know well, suffered any disease or illness directly associated with smoking cigarettes? If so, who? (Space provided below. Please give person's name, nature of disease or illness, and state whether or not the person was successfully treated.) Do you believe smoking causes (a) lung cancer; (b) heart disease; (c) high blood pressure; (d) none of the above; (e) all of the above?
Page three held the weightier matters: State your opinion on the issue of tax dollars being used to fund medical care for smoking-related health problems. State your opinion on the issue of tax dollars being used to subsidize tobacco farmers. State your opinion on the issue of banning smoking in all public buildings. What rights do you think smokers should have? Large empty spaces were available for these answers.
Page four listed the names of the seventeen lawyers who were officially attorneys of record, then it listed the names of eighty more who happened to be in some related practice with the first seventeen. Do you personally know any of these lawyers? Have you ever been represented by any of these lawyers? Have you ever been involved in any legal matter with any of these lawyers?
No. No. No. Nicholas made quick check marks.
Page five listed the names of potential witnesses, sixty-two people including Celeste Wood, the widow and plaintiff. Do you know any of these people? No.
He mixed another cup of instant coffee and added two packs of sugar. He'd spent an hour with these questions last night, and another hour had already passed this morning. The sun was barely up. Breakfast had been a banana and a stale bagel. He ate a small bite of the bagel, thought about the last question, then answered it with a pencil in a neat, almost tedious hand-all caps printed, because his cursive was ragged and barely legible. And he knew that before dark today an entire committee of handwriting experts on both sides would be poring over his words, not caring so much about what he said but more about how he formed his letters. He wanted to appear neat and thoughtful, intelligent and open-minded, capable of hearing with both ears and deciding matters fairly, an arbitrator they would clamor for.
He'd read three books on the ins and outs of handwriting analysis.
He flipped back to the tobacco subsidy question because it was a tough one. He had an answer read because he'd given much thought to the issue, and he wanted to write it clearly. Or maybe vaguely. Maybe in such a way that he wouldn't betray his feelings, yet wouldn't scare either side.
Many of these same questions had been used in the Cimmino case last year in Allentown, Pennsylvania. Nicholas had been David then, David Lancaster, a part-time film student with a genuine dark beard and fake horn-rimmed glasses who worked in a video store. He'd copied the questionnaire before turning it in on the second day of jury selection. It was a similar case, but with a different widow and a different tobacco company, and though there'd been a hundred lawyers involved, they were all different from this bunch. Only Fitch remained the same.
Nicholas/David had made the first two cuts then, but was four rows away when the panel was seated. He shaved his beard, ditched the pharmacy eyeglasses, and left town a month later.
The folding card table vibrated slightly as he wrote. This was his dinette-the table and three mismatched chairs. The tiny den to his right was furnished with a flimsy rocker, a TV mounted on a wooden crate, and a dusty sofa he'd purchased at a flea market for fifteen dollars. He probably could have afforded to rent some nicer pieces, but renting required forms and left a trail. There were people out there practically digging through his garbage to find out who he was.
He thought of the blonde and wondered where she might turn up today, no doubt with a cigarette close at hand and an eagerness to draw him into another banal chat about smoking. The idea of calling her hadn't crossed his mind, but the question of which side she worked for was quite intriguing. Probably the tobacco companies, because she was exactly the type of agent Fitch liked to use.
Nicholas knew from his studies of the law that it was highly unethical for the blonde, or any other hireling for that matter, to directly approach a potential juror. He also knew that Fitch had enough money to make the blonde disappear from here, without a trace, only to surface at the next trial as a redhead with a different brand and an interest in horticulture. Some things were impossible to uncover.
The one bedroom was consumed almost entirely with a king-size mattress, lying directly on the floor with nothing under it, another purchase from the flea market. A series of cardboard boxes served as the chest of drawers. Clothing littered the floor. It was a temporary home, with the look of a place one might use for a month or two before leaving town in the middle of the night; which was exactly what he had in mind. He'd lived there for six months already, and the apartment number was his official address, at least the one used when he registered to vote and obtained his Mississippi driver's license. He had nicer quarters four miles away, but couldn't run the risk of being seen there.
So he lived happily in poverty, just another broke student with no assets and few responsibilities. He was almost certain Fitch's snoops had not entered his apartment, but he took no chances. The place was cheap, but carefully arranged. Nothing revealing could be found.
At eight, he finished the questionnaire and proofed it one last time. The one in the Cimmino case had been written in longhand, in a different style altogether. After months of practicing his printing he was certain he would not be detected. There had been three hundred potential jurors then, and almost two hundred now, and why would anyone suspect that he would be in both pools?
From behind a pillowcase stretched over the kitchen window, he quickly checked the parking lot below for photographers or other intruders. He'd seen one three weeks ago sitting low behind the wheel of a pickup.
No snoops today. He locked his apartment door and left on foot.
GLORIA LANE was much more efficient with her herding on the second day. The remaining 148 prospective jurors were seated on the right side, packed tightly twelve to a row, twelve deep with four in the aisle. They were easier to handle when seated on one side of the courtroom. The questionnaires were gathered as they entered, then quickly copied and given to each side. By ten, the answers were being analyzed by jury consultants locked away in windowless rooms.
Across the aisle, a well-mannered throng of financial boys, reporters, the curious, and other miscellaneous spectators sat and stared at the crowds of lawyers, who sat and studied the faces of the jurors. Fitch had quietly moved to the front row, nearer to his defense team, with a nicely dressed flunkie on each side just waiting for his latest command.
Judge Harkin was a man on a mission on Tuesday, and took less than an hour to complete the nonmedical hardships. Six more were excused, leaving 142 on the panel.
Finally, it was showtime. Wendall Rohr, wearing apparently the same gray checkered sports coat, white vest, and red-and-yellow bow tie, stood and walked to the railing to address his audience. He cracked his knuckles loudly, opened his hands, and displayed a dark, broad grin. "Welcome," he said dramatically, as if what was about to follow was an event the memory of which they would cherish forever. He introduced himself, the members of his team who would be participating in the trial, and then he asked the plaintiff, Celeste Wood, to stand. He managed to use the word "widow" twice as he displayed her to the prospects. A petite woman of fifty-five, she wore a plain black dress, dark hose, dark shoes that could not be seen below the railing, and she offered a painfully proper little smile as if she had yet to exit the mourning stage, though her husband had been dead for four years. In fact, she'd almost remarried, an event Wendall got canceled at the last moment, as soon as he learned of it. It's okay to love the guy, he had explained to her, but do so - quietly and you can't marry him until after the trial. The sympathy factor. You're supposed to be suffering, he had explained.
Fitch knew about the aborted nuptials, and he also knew there was little chance of getting the matter before the jury.
With everyone on his side of the courtroom officially introduced, Rohr gave his brief summary of the case, a recitation that attracted immense interest from the defense lawyers and the Judge. They seemed ready to pounce if Rohr stepped over the invisible barrier between fact and argument. He didn't, but he enjoyed tormenting them.
Then a lengthy plea for the potential jurors to be honest, and open, and unafraid to raise their timid little hands if something bothered them in the least. How else can they, the lawyers, explore thoughts and feelings unless they, the would-be jurors, speak up? "We certainly can't do it simply by looking at you," he said with another flash of teeth. At the moment, there were no less than eight people in the courtroom trying desperately to read every lifted eyebrow and curled lip.
To get things rolling, Rohr picked up a legal pad, glanced at it, then said, "Now, we have a number of people who've served on civil juries before. Please raise your hands." A dozen hands rose obediently. Rohr scanned his audience and settled on the nearest one, a lady on the front row. "Mrs. Millwood, is it?" Her cheeks reddened as she nodded. Every person in the courtroom was either staring at or straining to see Mrs. Millwood.
"You were on a civil jury a few years back, I believe," Rohr said warmly.
"Yes," she said, clearing her throat and trying to be loud.
"What kind of case was it?" he asked, though he knew virtually every detail-seven years ago, this very courtroom, different judge, zero for the plaintiff. The file had been copied weeks ago. Rohr had even talked to the plaintiff's lawyer, a friend of his. He started with this question and this juror because it was an easy warm-up, a soft pitch to show the others how painless it was to raise one's hand and discuss matters.
"A car wreck case," she said.
"Where was the trial?" he asked sincerely.
"Right here."
"Oh, in this courtroom." He sounded quite surprised, but the defense lawyers knew he was faking.
"Did the jury reach a verdict in that case?"
"Yes."
"And what was that verdict?"
"We didn't give him anything."
"Him being the plaintiff?"
"Yes. We didn't think he was really hurt."
"I see. Was this jury service a pleasant experience for you?"
She thought a moment, then, "It was okay. Lot of wasted time, though, you know, when the lawyers were wrangling about this or that."
A big smile. "Yes, we tend to do that. Nothing about that case would influence your ability to hear this one?" "No, don't think so."
"Thank you, Mrs. Millwood." Her husband was once an accountant for a small county hospital that was forced to close after being nailed in a medical malpractice case. Large verdicts were something she secretly loathed, and for good reason. Jonathan Kotlack, the plaintiff's lawyer in charge of final jury selection, had long since removed her name from consideration.
However, around the table not ten feet from Kotlack, the defense lawyers regarded her highly. Joann Millwood would be a prize catch.
Rohr asked the same questions of the other veterans of jury service, and things quickly became monotonous. He then tackled the thorny issue of tort reform, and asked a string of rambling questions about the rights of victims, and frivolous lawsuits, and the price of insurance. A few of his questions were wrapped around mini-arguments, but he stayed out of trouble. It was almost lunchtime, and the panel had lost interest for a while. Judge Harkin recessed for an hour, and the deputies cleared the courtroom.
The lawyers remained though. Box lunches containing soggy little sandwiches and red apples were passed out by Gloria Lane and her staff. This was to be a working lunch. Pending motions of a dozen varieties needed resolution, and His Honor was ready for argument. Coffee and iced tea were poured.
THE USE of questionnaires greatly facilitated the selection of the jury. While Rohr asked questions inside the courtroom, dozens of people elsewhere examined the written answers and marked names off their lists. One man's sister had died of lung cancer. Seven others had close friends or family members with serious health problems, all of which they attributed to smoking. At least half the panel either smoked now or had been regular smokers in the past. Most of those smoking admitted their desire to quit.
The data were analyzed, then put in computers, and by mid-afternoon of the second day the printouts were being passed around and edited. After Judge Harkin recessed at four-thirty on Tuesday, he again cleared the courtroom and conducted proceedings on the record. For almost three hours, the written answers were discussed and debated, and in the end thirty-one additional names were removed from consideration. Gloria Lane was instructed to immediately phone these newest deletions and tell them the good news.
Harkin was determined to complete jury selection on Wednesday. Opening statements were scheduled for Thursday morning. He had even hinted at some Saturday work.
At eight o'clock Tuesday night he heard one last motion, a quickie, and sent the lawyers home. The lawyers for Pynex met Fitch at the offices of Whitney & Cable & White, where another delicious feast of cold sandwiches and greasy chips awaited them. Fitch wanted to work, and while the weary lawyers slowly filled their paper plates, two paralegals distributed copies of the latest handwriting analyses. Eat quickly, Fitch demanded, as if the food could be savored. The panel was down to 111, and the picking would start tomorrow.
THE MORNING belonged to Durwood Cable, or Durr as he was known up and down the Coast, a place he'd never really left in his sixty-one years. As the senior partner for Whitney & Cable & White, Sir Durr had been carefully selected by Fitch to handle the bulk of the courtroom work for Pynex. As a lawyer, then a judge, and now a lawyer again, Durr had spent most of the past thirty years looking at and speaking to juries. He found courtrooms to be relaxing places because they were stages-no phones, no foot traffic no secretaries scurrying about-everyone with a role, everyone following a script with the lawyers as the stars. He moved and talked with great deliberation, but between steps and sentences his gray eyes missed nothing. Where his adversary, Wendall Rohr, was loud and gregarious and gaudy, Durr was buttoned up and quite starched. The obligatory dark suit, a rather bold gold tie, the standard issue white shirt, which contrasted nicely with his deeply tanned face. Durr had a passion for saltwater fishing, and spent many hours on his boat, in the sun. The top of his head was bald, and very bronzed.
He once went six years without losing a case, then Rohr, his foe and sometime friend, popped him for two million in a three-wheeler case.
He stepped to the railing and looked seriously into the faces of 111 people. He knew where each lived and the number of children and grandchildren, if any. He crossed his arms, pinched his chin like a pensive professor, and said in a pleasantly rich voice, "My name is Durwood Cable, and I represent Pynex, an old company that's been making cigarettes for ninety years." There, he was not ashamed of it! He talked about Pynex for ten minutes, and did a masterful job of softening up the company, of making his client warm and fuzzy, almost likable.
Finished with that, he plunged fearlessly into the issue of choice. Whereas Rohr had dwelt on addiction, Cable spent his time on the freedom to choose. "Can we all agree that cigarettes are potentially dangerous if abused?" he asked, then watched most of the heads shake in agreement. Who could argue with this? "There, fine. Now since this is common knowledge, can we all agree that a person who smokes should know the dangers?" More nodding, no hands, yet. He studied the faces, especially the blank one belonging to Nicholas Easter, now seated on row three, eighth from the aisle. Because of the dismissals, Easter was no longer juror number fifty-six. He was now number thirty-two, and advancing with each session. His face revealed nothing but rapt attention.
"This is a very important question," Cable said slowly, his words echoing in the stillness. With a pointed finger, he delicately jabbed at them and said, "Is there a single person on this panel who doesn't believe that a person who chooses to smoke should know the dangers?"
He waited, watching and tugging at the line a bit, and finally caught one. A hand was slowly raised from the fourth row. Cable smiled, took a step closer, said, "Yes, I believe you're Mrs. Tutwiler. Please stand." If he was truly eager to have a volunteer, his joy was short-lived. Mrs. Tutwiler was a fragile little lady of sixty, with an angry face. She stood straight, lifted her chin, and said, "I got a question for you, Mr. Cable."
"Certainly."
"If everybody knows cigarettes are dangerous, then why does your client keep making them?"
There were a few grins from her colleagues in the pool. All eyes were on Durwood Cable as he kept smiling, never flinching in the least. "Excellent question," he said loudly. He was not about to answer it. "Do you think the making of all cigarettes should be banned, Mrs. Tutwiler?"
"I do."
"Even if people want to exercise their right to choose to smoke?"
"Cigarettes are addictive, Mr. Cable, you know that." "Thank you, Mrs. Tutwiler."
"The manufacturers load up the nicotine, get folks hooked, then advertise like crazy to keep selling." "Thank you, Mrs. Tutwiler."
"I'm not finished," she said loudly, clutching the pew in front of her and standing ever taller. "The manufacturers have always denied that smoking is addictive. That's a lie, and you know it. Why don't they say so on their labels?"
Burr's face never changed expression. He waited patiently, then asked quite warmly, "Are you finished, Mrs. Tutwiler?" There were other things she wanted to say, but it dawned on her that perhaps this was not the place. "Yes," she said, almost in a whisper.
"Thank you. Responses such as yours are vital to the jury selection process. Thank you very much. You may now sit down."
She glanced around as if some of the others should stand and fight with her, but left alone, she dropped to her seat. She might as well have left the courtroom.
Cable quickly pursued less sensitive matters. He asked a lot of questions, provoked a few responses, and gave his body language experts much to chew on. He finished at noon, just in time for a quick lunch. Harkin asked the panel to return at three, but told the lawyers to eat fast and return in forty-five minutes.
At one o'clock, with the courtroom empty and locked and the lawyers crowded tightly in bunches around their tables, Jonathan Kotlack stood and informed the court that "The plaintiff will accept juror number one." No one seemed surprised. Everyone wrote something on a printout, including His Honor, who, after a slight pause, asked, "The defense?"
"The defense will accept number one." Not much of a surprise. Number one was Rikki Coleman, a young wife and mother of two who'd never smoked and worked as a records administrator in a hospital. Kotlack and crew rated her as a 7 out of 10 based on her written answers, her background in health care, her college degree, and her keen interest in everything that had been said so far. The defense rated her as a 6, and would've passed on her but for a string of serious undesirables forthcoming further down row one.
"That was easy," Harkin mumbled under his breath. "Moving right along. Juror number two, Raymond C. LaMonette." Mr. LaMonette was the first strategical skirmish of jury selection. Neither side wanted him-both rated him 4.5. He smoked heavily but was desperate to quit. His written answers were thoroughly indecipherable and utterly useless. The body linguists on both sides reported that Mr. LaMonette hated all lawyers and all things related to them. He'd nearly been killed years earlier by a drunk driver. His lawsuit netted him nothing.
Under the rules of jury selection, each side was granted a number of peremptory challenges, or strikes as they were called, which could be used to ax potential jurors for no reason whatsoever. Because of the importance of this case, Judge Harkin had granted each side ten strikes, up from the customary four. Both wanted to cut LaMonette, but both needed to save their strikes for more objectionable faces.
The plaintiff was required to go first, and after a brief delay, Kotlack said, "The plaintiff will strike number two."
"That's peremptory challenge number one for the plaintiff," Harkin said, making a note. A small victory for the defense. Based on a last-second decision, Durr Cable had been prepared to strike him as well.
The plaintiff used a strike on number three, the wife of a corporate executive, and also on number four. The strategic strikes continued, and practically decimated row one. Only two jurors survived. The carnage lessened with row two, with five of the twelve surviving various challenges, two by the court itself. Seven jurors had been chosen when the selection moved to row three. Eight spots down sat the great unknown, Nicholas Easter, juror number thirty-two, who'd so far paid good attention and seemed to be somewhat palatable, though he gave both sides the jitters.
Wendall Rohr, now speaking for the plaintiff because Kotlack was deep in a hushed conference with an expert about two of the faces on row four, used a peremptory strike on number twenty-five. It was the plaintiff's ninth strike. The last one was reserved for a much-feared and notorious Republican on the fourth row, if they got that far. The defense struck number twenty-six, burning its eighth peremptory. Jurors number twenty-seven, twenty-eight, and twenty-nine were accepted. Juror number thirty was challenged by the defense for cause, a plea for the court to excuse the juror for mutual reasons without requiring either side to exhaust a strike. Durr Cable asked the court to go off the record because he had something he wished to discuss in private. Rohr was a bit perplexed, but did not object. The court reporter stopped recording. Cable handed a thin brief to Rohr and the same to His Honor. He lowered his voice, and said, "Your Honor, we have learned, through certain sources, that juror number thirty, Bonnie Tyus, is addicted to the prescription drug Ativan, She has never been treated, never been arrested, never admitted her problem. She certainly didn't disclose it on the questionnaires or during our little Q and A. She manages to live quietly, keep a job and a husband, though he's her third."
"How'd you learn this?" Harkin asked.
"Through our rather extensive investigation of all potential jurors. I assure you, Your Honor, that there has been no unauthorized contact with Mrs. Tyus."
Fitch had found it. Her second husband had been located in Nashville, where he washed tractor-trailer rigs at an all-night truck stop. For one hundred dollars cash, he'd happily told all he could remember about his ex.
"What about it, Mr. Rohr?" asked His Honor.
Without a second's hesitation, Rohr said, lying, "We have the same information, Your Honor." He cast a pleasant glance at Jonathan Kotlack, who in turn glared at another lawyer who'd been in charge of the group which included Bonnie Tyus. They'd spent over a million bucks so far on jury selection, and they'd missed this crucial fact!
"Fine. Juror number thirty is excused for cause. Back on the record. Juror number thirty-one?"
"Could we have a few minutes, Your Honor?" Rohr asked.
"Yes. But be brief."
After thirty names, ten had been selected; nine had been struck by the plaintiff, eight by the defense, and three had been excused by the court. It was unlikely the selection would reach the fourth row, so Rohr, with one strike remaining, looked at jurors thirty-one through thirty-six, and whispered to his huddled group, "Which one stinks the most?" The fingers pointed unanimously to number thirty-four, a large, mean white woman who had scared them from day one. Wilda Haney was her name, and for a month now they had all vowed to avoid Wide Wilda. They studied their master sheet a few minutes longer, and agreed to take numbers thirty-one, thirty-two, thirty-three, and thirty-five, not all of whom were terribly attractive, but far more so than Wide Wilda.
In a denser huddle just a few feet away, Cable and his troops agreed to strike thirty-one, take thirty-two, challenge thirty-three because thirty-three was Mr. Herman Grimes, the blind man, then take thirty-four, Wilda Haney, and strike, if necessary, number thirty-five.
NICHOLAS EASTER thus became the eleventh juror selected to hear Wood v. Pynex. When the courtroom was opened at three and the panel was seated, Judge Harkin began calling out the names of the chosen twelve. They walked through the gate in the railing and took their assigned seats in the jury box. Nicholas had chair number two on the front row. At twenty-seven, he was the second youngest juror. There were nine whites, three blacks, seven women, five men, one blind. Three alternates were seated in padded folding chairs wedged tightly together in one corner of the jury box. At four-thirty, the fifteen stood and repeated their oaths as jurors. They then listened for half an hour as Judge Harkin issued a series of stern warnings to them, and to the lawyers and parties involved. Contact with the jurors of any type or manner would result in stiff sanctions, monetary penalties, maybe a mistrial, perhaps disbarment and death.
He forbade the jurors from discussing the case with anyone, even their spouses and mates, and with a cheery smile bid them farewell, a pleasant night, see you at nine sharp tomorrow morning.
The lawyers watched and wished they could leave too. But there was work to do. When the courtroom was cleared of everyone but lawyers and clerics, His Honor said, "Gentlemen, you filed these motions. Now we must argue them."
