Authors: William Bernhardt
On Friday morning, Colby called a man named Alan Witherspoon to the witness box. Ben was so deeply mired in Colby’s medical witnesses he couldn’t even remember who the man was, until Christina slid the file to him. Witherspoon was a hydrologist, a field researcher and a professor at Yale. He had spent more than fifteen years investigating claims of chemically tainted water and its possible connection to disease.
After sharing his credentials with the jury, which took over half an hour, Colby started him in on Rimland.
“You’re familiar with the present case, aren’t you, Professor?”
“Yes. I’ve had a chance to review all the data, the reports and analyses.”
“Is the Blackwood case similar to anything you’ve done in the past?”
“Oh, yes. This is directly within my area of expertise. I’ve been handling these kinds of cases for more than a decade now.”
“And you had a chance to listen to the testimony of Dr. Rimland, did you not?”
“I did.” Although the rule of sequestration allowed Ben to keep fact witnesses out of the courtroom during the testimony of others, expert witnesses could not be excluded.
“Were you persuaded by Dr. Rimland’s conclusions?”
Witherspoon smiled. “Of course not.” Of course not? Ben wondered. Had it come to that? His ace witness had passed from being challenged to being humored. “I think he’s been misled, from premise to conclusion.”
“How so?”
“The first problem is, he proceeded from data collected by the EPA. That always leads to skewed conclusions.” He glanced at the jury. “I worked for the EPA for six years. Believe me, I know what I’m talking about.” His smile was gentle, not presupposing. He seemed a likeable, casual, but very knowledgeable man. He had even managed to survive that endless litany of his accomplishments without seeming egotistical—no small feat, as Ben well knew.
“The problem with the EPA is, they go in assuming there’s a problem. They don’t go in at all unless they get a complaint; from that time forward, they’re looking for a solution to the complaint.”
Colby played the disinterested questioner. “Does that affect their results?”
“Sure. If you’re looking for a problem, you’re going to find one—even if it doesn’t really exist. Especially if your job security depends on results. Say someone tells the researcher the water in their town smells funny. So he goes out and learns that the water has one one-millionth part per hundred more TCE than the water in surrounding wells. You wouldn’t think that was a big deal. But if that’s the only difference he discovers, sure as the world he’ll write a report that says the contamination in the water is due to TCE.”
“But that doesn’t necessarily mean it’s true?”
“Of course not.” Witherspoon spread wide his hands, speaking in a calm, relaxed manner. “It could’ve been any one of a hundred things. Who knows? Maybe the complainant’s pipes are tainting the water. Maybe the complainant is smelling her own perfume. The fact that TCE is in the water doesn’t mean it caused every effect detected. It doesn’t mean it caused anything.”
“Have you ever known EPA data to lead to flawed conclusions?”
“Oh, sure.” It was almost like he wasn’t testifying; more like they were all sitting around at a party, shooting the breeze. “Please realize—the EPA is by definition a reactionary organization. They do not take a balanced perspective. To be fair, that’s not their job. But because they operate with a single-minded perspective, their data often leads to errors. They perpetuate a logical fallacy.”
“Could you explain what you mean?”
“Certainly. In the present case, we have two abnormalities—slightly higher levels of certain chemicals in the water, and elevated incidences of childhood leukemia. It’s not surprising that people would try to link the two together; indeed, as the plaintiffs" lawyer has said repeatedly, common sense suggests that the two are connected. But of course, if common sense ruled, then the earth would be flat, heavy objects would fall faster than lighter ones, and I would make a lot more money than I do.”
The jury laughed. They seemed be enjoying Witherspoon’s lighter tone, by contrast to the last sixty or so witnesses. Damn all, Ben thought to himself. The last thing he needed now was a defense expert with charisma.
“As a previous witness established,” Witherspoon continued, “outbreak clumps of diseases—even rare diseases—will occur. They aren’t too coincidental to be random—to the contrary, they are mathematically to be expected. Similarly, I don’t think it’s all that unusual that trace elements of certain chemicals sometimes trickle into the water supply. But does that mean that the two naturally occurring events are linked? That one caused the other? No. The connection simply isn’t there.”
“And when you say the connection isn’t there …”
“I’m saying, based on my extensive experience in this field, that there’s no proof that increased levels of TCE or perc lead to leukemia outbreaks. Not in this case, or any other.”
“Thank you, Professor Witherspoon,” Colby said with a slight bow. “Your witness, Mr. Kincaid.” That hurt, to put it bluntly. Sure, Colby’s medical witnesses hadn’t exactly been good for the plaintiffs" case. But Ben had expected that, and to some extent, so did the jury. Medical testimony sometimes conflicted; everyone was used to that. But to have the top dude from Yale, a man who’d been working with tainted water wells for fifteen years, shoot holes in their case so effectively—that was both unexpected and devastating.
Ben understood now why Colby had saved this man for last. He said what Colby wanted said and did it in a way that had jury appeal. Assuming Judge Perry didn’t allow Ben any rebuttal witnesses, which seemed likely, Witherspoon would be the last witness heard before the jury retired. He would leave all the doubters wondering if he wasn’t right—and provide ample fuel for those who were already convinced.
Ben had to knock some holes in him on cross. The problem was—he was well-spoken and smart. He wouldn’t sit around limply while Ben turned him into a slice of Swiss cheese. He would fight Ben all the way. And Ben had to be careful about what he said to the man. After all, the jury liked him.
After Ben established that Witherspoon, like all the other experts, was being paid generously by the Blaylock corporation for his “cooperation,” he launched into Witherspoon’s analysis of the Blackwood water problem. “You say you’re familiar with Dr. Rimland’s work?”
“I am indeed.”
“But you overlooked a great deal of what he did.”
Witherspoon blinked. “I don’t know what you mean,” he said disingenuously, and in that second, Ben realized this distinguished Yale fellow was simply in it for the money. For all his vaunted degrees and credentials, he was saying what he got paid to say, using facts that helped and ignoring those that didn’t.
All of a sudden, Ben didn’t care whether the jury liked the man or not. He was going to tear him apart.
“Don’t play coy, Professor. You dismissed Rimland’s work without even mentioning his most important experiments.”
“I saw no reason to bore the jury with unconvincing details.”
“What about the extensive tests Dr. Rimland has performed with lab rats?”
Witherspoon waved his hands in the air. “Lab rats are not people.”
“I think we’re all clear on that point already, Professor. But if something kills rats, we could reasonably conclude that it might also kill humans, couldn’t we?”
Witherspoon would not give Ben what he wanted. “The two are entirely different species.”
“Then experiments with lab rats can’t be used to predict results with humans?”
“Not reliably, no.”
Ben smiled. “Then why do you use them, Professor?”
He looked up abruptly. “Excuse me?”
Ben patted the report in his file. God bless Christina. She always came up with the gold. “Two years ago, you were hired to test a new antiperspirant by a large corporation in Maine. In order to determine whether there might be any harmful side effects, you performed tests on lab rats. Didn’t you?”
“Well …”
“Didn’t you? I have a copy of your final report right here, if you’re having trouble remembering what you did.”
“All right, counsel, call off the dogs. I did use lab rats. But that was an entirely different situation.”
“I don’t see any difference.”
“In that instance, I used rats in a preliminary test to screen out possible side effects, not to establish a link between cause and effect.”
“Nonetheless, you used rats to determine the safety of the product. You wouldn’t have done that unless you thought the effects on rats would bear some similarity to the effects on humans. It would be pointless.”
“As I said, the tests with the rats were just preliminary. I later performed tests on human subjects.”
“But only because the tests with rats had proved negative.”
“Well, that’s not exactly—”
“Professor. Are you telling this jury you would’ve gone ahead with the tests on humans if the tests with the lab rats had produced negative results?”
“Well … no.”
“Then by the same token, I submit that since TCE and perc produced negative results on lab rats, they should not be tested on humans. And because they were, and children died—of the same disease that killed the rats—the parties that caused the deaths should be held responsible!”
“Your honor,” Colby said, rising, “he’s making speeches again.”
“You’re up there to ask questions, Mr. Kincaid,” Judge Perry remonstrated. “Either ask them, or sit down.”
“Yes, your honor.” Ben returned to counsel table and retrieved a tall glass of water. “Do you know what this is, Professor?”
Witherspoon arched an eyebrow suspiciously. “A glass of water?”
“Correct. But a very special glass of water. I’ve tainted this water with trace portions of TCE and perc.”
Witherspoon frowned. “Why on earth would you do that?”
“Why not? After all, it’s harmless, right?” He approached the witness stand. “Here, have a big swallow.”
Colby rose again. “Your honor …”
Ben cut him off. “Professor Witherspoon has asserted that water contaminated with TCE and perc is harmless. So now I’m giving him a chance to prove to the jury that he really believes that.” He held out the glass. “Here, Professor. Drink up.”
Witherspoon sat up straight. “This is ridiculous.”
“It is not. It’s a simple test. Put your mouth where your money is, so to speak.” Once again, Ben pushed the glass forward. “Drink up, Professor. Drink big.”
“I will not have any part of this,” Witherspoon said indignantly. “This is absurd.”
Ben smiled. “You’re afraid of this water.”
“I am not afraid of it!” He began to perspire. “I just think this is a demeaning waste of time.”
Colby tried again to intervene. “Your honor—”
Ben ignored him. “Professor, either this water is harmless, and you’ll happily drink the whole thing down, or it isn’t, and you’ve just told the jury a pack of lies. Which is it?”
Witherspoon was finding it harder to sit still. He was kneading his hands, squirming in his seat. “I am not scared of your water! I just won’t participate in a—a farce!”
Judge Perry leaned forward. “Mr. Kincaid—”
Before the judge had a chance to say another word, Ben lurched forward—with the glass. His arm holding the glass jutted straight toward Witherspoon’s face—
But did not spill out. Because, as Ben then demonstrated to the jury, he had covered the glass with a near-invisible layer of transparent Saran Wrap. But that wasn’t what was important.
What was important was—when he thought the water would come flying at him—Witherspoon ducked. He crouched down, covering his face with his hands.
It was more than just not wanting to get wet. He was afraid.
Colby ran up to the bench. “Your honor, I must protest. This is courtroom chicanery at its worst. I want this entire outrageous demonstration stricken from the record.”
“It doesn’t matter,” Ben said quietly, looking directly at the jury. “They saw. They know. Don’t you?”
“Your honor!” Colby continued. “This violates all conventions of courtroom decorum! This is a shabby attempt to persuade the jury with trickery rather than evidence.”
“I agree,” Judge Perry said. “The whole business will be stricken from the record. I instruct the jury to disregard it and to give it no weight during their deliberations.”
“It doesn’t matter,” Ben said, even more quietly than before. “They saw. They know. Don’t you?”
Amid the clamor and argument, Ben retook his seat at counsel table. None of the jurors had responded when he spoke to them—not even a nod of the head. But surely they got it—didn’t they? Surely they understood.
He would never know, not till the jury returned with a completed verdict form in their hands.
Mike spotted Tomlinson in the distance as he pushed his way through the brush and densely packed trees. Tomlinson was waving his arms in the air, frantically trying to flag him down. As if Mike could possibly miss ten crime technicians, swirling red lights, and an ocean of yellow tape.
“Did you enjoy your hike?” Tomlinson asked, trying to be amiable.
“No,” Mike said. He was feeling grumpy and he saw no reason to hide the fact. “I hate hiking.”
“I thought you’d appreciate the chance to get out of the office and get some fresh air.”
“I’d rather be at home reading Dickens.” Mike glanced across the restrictive tape to the tall pile of red dirt that seemed to be the center of the crime scene. “So what’ve we got?”
Tomlinson led his boss back to the heart of the action. They were in a thick, undeveloped section of Tulsa just north of Seventy-first, between Harvard and Yale. Although in the heart of the most rapidly growing section of the city, several acres were still undeveloped. All around, all Mike could see was forest and thicket.
The crime scene technicians buzzed around like bumblebees going about their appointed specialized tasks. How many times had he been to a scene like this? Too damn many.
“How on earth did you ever find a body out here?” Mike asked.
“Well, I’d like to take credit for finding it, preferably at the conclusion of an ingenious series of deductions, but the truth is—we didn’t find it at all. Some kids did.”