The Runaway Jury

The first order of business Monday morning was a private meeting between Judge Harkin and Nicholas, the topic being the fire and his well-being. They met alone in chambers. Nicholas assured him he was fine and had enough clothing at the motel to wash and rewash. He was just a student with little to lose, with the exception of a fine computer and some expensive surveillance equipment, all of which was, of course, uninsured along with everything else.

The fire was dispensed with quickly, and since they were alone Harkin asked, "So how are the rest of our friends doing?" Chatting off the record like this with a juror was not improper, but was certainly in the gray area of trial procedure. The better practice was to have the lawyers present and to record every word with a court reporter. But Harkin wanted just a few minutes of gossip. He could trust this kid.

"Everything's fine," Nicholas said.

"Nothing unusual?"

"Not that I can think of."

"Is the case being discussed?"

"No. In fact, when we're together, we try to avoid it."

"Good. Any spats or squabbles?"

"Not yet."

"Food's okay?"

"Food's fine."

"Enough personal visits?"

"I think so. I haven't heard any complaints."

Harkin would have loved to know if there was any hanky-panky among the jurors, not that it would carry any legal significance. He just had a dirty mind. "Good. Let me know if there's a problem. And let's keep this quiet."

"Sure," Nicholas said. They shook hands and he left.

Harkin greeted the jurors warmly and welcomed them back for another week. They seemed eager to get to work and finish this ordeal.

Rohr rose and called Leon Robilio as the next witness, and the players settled down to business. Leon was led from a side door into the courtroom. He shuffled gingerly in front of the bench to the witness stand, where the deputy assisted him in having a seat. He was old and pale, dressed in a dark suit, white shirt, no tie. He had a hole in his throat, an opening covered by a thin white dressing and camouflaged with a white linen neckerchief. When he swore to tell the truth, he did so by holding a pencil-like mike to his neck. The words were the flat, pitchless monotone of a throat cancer victim without a larynx.

But the words were audible and understandable. Mr. Robilio held the microphone close to his throat and his voice rattled around the courtroom. This was how he talked, dammit, and he did so every day of his life. He meant to be understood.

Rohr got quickly to the point. Mr. Robilio was sixty-four years old, a cancer survivor who'd lost his voice box eight years earlier and had learned to talk through his esophagus. He had smoked heavily for nearly forty years, and his habits had almost killed him. Now, in addition to the aftereffects of the cancer, he suffered from heart disease and emphysema. All because of the cigarettes.

His listeners quickly adjusted to his amplified, robotlike voice. He grabbed their attention for good when he told them he'd made his living for two decades as a lobbyist for the tobacco industry. He quit the job when he got cancer and realized that even with the disease he couldn't stop smoking. He was addicted, physically and psychologically addicted to the nicotine in cigarettes. For two years after his larynx was removed and the chemotherapy ravaged his body, he continued to smoke. He finally quit after a near-fatal heart attack.

Though obviously in bad health, he still worked full-time in Washington, but now he was on the other side of the fence. He had the reputation of a fiercely committed antismoking activist. A guerrilla, some called him.

In a prior life, he had been employed at the Tobacco Focus Council. "Which was nothing more than a slick lobbying outfit funded entirely by the industry," he said with disdain. "Our mission was to advise the tobacco companies on current legislation and attempts to regulate them. We had a fat budget with unlimited resources to wine and dine influential politicians. We played hardball, and we taught other tobacco apologists the ins and outs of political fistfighting."

At the Council, Robilio had access to countless studies of cigarettes and the tobacco industry. In fact, part of the mission of the Council was the meticulous assimilation of all known studies, projects, experiments. Yes, Robilio had seen the infamous nicotine memo Krigler had described. He'd seen it many times, though he did not keep a copy. It was well known at the Council that all tobacco companies kept nicotine at high levels to ensure addiction.

Addiction was a word Robilio used over and over. He'd seen studies paid for by the companies in which all sorts of animals had been quickly addicted to cigarettes through nicotine. He'd seen and helped hide studies proving beyond any doubt that once young teenagers were hooked on cigarettes the rates of kicking the habit were much lower. They became customers for life.

Rohr produced a box of thick reports for Robilio to identify. The studies were admitted into evidence, as if the jurors would find the time to plow through ten thousand pages of documents before making their decision.

Robilio regretted many things he'd done as a lobbyist, but his greatest sin, one he struggled with daily, had been the artfully worded denials he'd issued claiming the industry did not target teenagers through advertising. "Nicotine is addictive. Addiction means profits. The survival of tobacco depends upon each new generation picking up the habit. Kids receive mixed messages through advertising. The industry spends billions portraying cigarettes as cool and glamorous, even harmless. Kids get hooked easier, and stay hooked longer. So it's imperative to seduce the young." Robilio managed to convey bitterness through his man-made voice box. And he managed to sneer at the defense table while looking warmly at the jurors.

"We spent millions studying kids. We knew that they could name the three most heavily advertised brands of cigarettes. We knew that almost ninety percent of the kids under eighteen who smoked preferred the top three advertised brands. So what did the companies do? They increased the advertising."

"Did you know how much money the tobacco companies were making off cigarette sales to children?" Rohr asked, certain of the answer.

"About two hundred million a year. And that's in sales to kids eighteen or under. Of course we knew. We studied it annually, kept our computers filled with the data. We knew everything." He paused and waved his right hand at the defense table, sneering as if it were surrounded by lepers. "They still know. They know that three thousand kids start smoking every day, and they can give you an accurate breakdown of the brands they're buying. They know that virtually all adult smokers began as teenagers. Again, they have to hook the next generation. They know that one third of the three thousand kids who start smoking today will eventually die from their addiction."

The jury was captivated with Robilio. Rohr flipped pages for a second so the drama wouldn't be rushed. He took a few steps back and forth behind the lectern as if his legs needed limbering. He scratched his chin, looked at the ceiling, then asked, "When you were with the Tobacco Focus Council, how did you counter the arguments that nicotine is addictive?"

"The tobacco companies have a party line; I helped formulate it. It goes something like this: Smokers choose the habit. So it's a matter of choice. Cigarettes are not addictive, but, hey, even if they are, no one forces anybody to smoke. It's all a matter of choice."

"I could make this sound real good, back in those days. And they make it sound good today. Trouble is, it's not true."

"Why isn't it true?"

"Because the issue is addiction, and the addict cannot make choices. And kids become addicted much quicker than adults."

Rohr for once avoided the natural lawyerly compulsion of overkill. Robilio was efficient with words, and the strain of being clear and being heard tired him after an hour and a half. Rohr tendered him to Cable for cross-examination, and Judge Harkin, who needed coffee, called a recess.

Hoppy Dupree made his first visit to the trial Monday morning, slipping into the courtroom midway through Robilio's testimony. Millie caught his eye during a lull, and was thrilled he would stop by. His sudden interest in the trial was odd, though. He'd talked of nothing else for four hours last night.

After a twenty-minute coffee break, Cable stepped to the lectern and tore into Robilio. His tone was strident, almost mean, as if he viewed the witness as a traitor to the cause, a turncoat. Cable scored immediately with the revelation that Robilio was being paid to testify, and that he had sought out the plaintiff's lawyers. He was also on retainer in two other tobacco cases.

"Yes, I'm being paid to be here, Mr. Cable, same as you," Robilio said, delivering the typical expert's response. But the stain of money slightly tainted his character.

Cable got him to confess that he started smoking when he was almost twenty-five, married, with two children, hardly a teenager who could've been seduced by slick work from Madison Avenue. Robilio had a temper, a fact proven to all the lawyers during a two-day marathon deposition five months earlier, and Cable was determined to exploit it. His questions were sharp, rapid, and designed to provoke.

"How many children do you have?" Cable asked.

"Three."

"Did any of them ever smoke cigarettes regularly?"

"Yes."

"How many?"

"Three."

"How old were they when they started?"

"It varies."

"On the average?"

"Late teens."

"Which ads do you blame for getting them hooked on cigarettes?"

"I don't recall exactly."

"You can't tell the jury which ads were responsible for getting your own kids hooked on cigarettes?"

"There were so many ads. Still are. It would be impossible to pinpoint one or two or five that worked."

"So it was the ads?"

"I'm sure the ads were effective. Still are."

"So it was somebody else's fault?"

"I didn't encourage their smoking."

"Are you sure? You're telling this jury that your own children, the children of a man whose job for twenty years was to encourage the world to smoke, began smoking because of slick advertising?"

"I'm sure the ads helped. They were designed to."

"Did you smoke in the home, in front of your children?"

"Yes."

"Did your wife?"

"Yes."

"Did you ever tell a guest he couldn't smoke in your home?"

"No. Not then."

"Safe to say, then, that the environment of your home was smoker friendly?"

"Yes. Then."

"But your children started smoking because of devious advertising? Is that what you're telling this jury?"

Robilio took a deep breath, counted slowly to five, then said, "I wish I'd done a lot of things differently, Mr. Cable. I wish I'd never picked up the first cigarette."

"Did your children stop smoking?"

"Two of them did. With great difficulty. The third has been trying to quit for ten years now."

Cable had asked the last question on an impulse, and wished for a second he hadn't. Time to move on. He shifted gears. "Mr. Robilio, are you aware of efforts by the tobacco industry to curb teenage smoking?"

Robilio chuckled, which sounded like a gargle when amplified through his little mike. "No serious efforts," he said.

"Forty million dollars last year to Smoke Free Kids?"

"Sounds like something they'd do. Makes 'em seem warm and fuzzy, doesn't it?"

"Are you aware that the industry is on record supporting legislation to restrict vending machines in areas where kids congregate?"

"I think I've heard of that. Sounds lovely, doesn't it?"

"Are you aware that the industry last year gave ten million dollars to California for a statewide kindergarten program designed to warn youngsters about underage smoking?"

"No. What about overage smoking? Did they tell the little fellas that it was okay to smoke after their eighteenth birthdays? Probably did."

Cable had a checklist, and seemed content to fire off the questions while ignoring the answers.

"Are you aware that the industry supports a bill in Texas to ban smoking in all fast-food establishments, places frequented by teenagers?"

"Yeah, and do you know why they do things like that? I'll tell you why. So they can hire people like you to tell jurors like these about it. That's the only reason-it sounds good in court."

"Are you aware that the industry is on record supporting legislation which imposes criminal penalties against convenience stores which sell tobacco products to minors?"

"Yeah, I think I heard that one too. It's window dressing. They'll drop a few bucks here and there to preen and posture and buy respectability. They'll do this because they know the truth, and the truth is that two billion dollars a year in advertising will guarantee addiction by the next generation. And you're a fool if you don't believe this."

Judge Harkin leaned forward. "Mr. Robilio, that is uncalled for. Don't do it again. I want it stricken from the record."

"Sorry, Your Honor. And sorry to you, Mr. Cable. You're just doing your job. It's your client I can't stand."

Cable was thrown off track. He offered up a lame "Why?" and wished immediately he'd kept his mouth shut.

"Because they're so devious. These tobacco people are bright, intelligent, educated, ruthless, and they'll look you in the face and tell you with all sincerity that cigarettes are not addictive. And they know it's a lie."

"No further questions," Cable said, halfway to his table.

GARDNER WAS A TOWN of eighteen thousand an hour from Lubbock. Pamela Blanchard lived in the old section of town, two blocks off Main Street in a house built at the turn of the century and nicely renovated. Brilliant red and gold maple trees covered the front lawn. Children roamed the street on bikes and skateboards.

By ten Monday, Fitch knew the following: She was married to the president of a local bank, a man who'd been married once before and whose wife had died ten years ago. He was not the father of Nicholas Easter or Jeff or whoever the hell he was. The bank had almost collapsed during the oil bust of the early eighties, and many locals were still afraid to use it. Pamela's husband was a native of the town. She was not. She may have come from Lubbock, or maybe it was Amarillo. They got married in Mexico eight years ago, and the local weekly barely recorded it. No wedding picture. Just an announcement next to the obituaries that N. Forrest Blanchard, Jr., had married Pamela Kerr. After a brief honeymoon in Cozumel, they would reside in Gardner.

The best source in town was a private investigator named Rafe who'd been a cop for twenty years and claimed to know everyone. Rafe, after being paid a sizable retainer in cash, worked without sleep Sunday night. No sleep, but plenty of bourbon, and by dawn he reeked of sour mash. Dante and Joe Boy worked beside him, in his grungy office on Main, and repeatedly declined the whiskey.

Rafe talked to every cop in Gardner, and finally found one who could talk to a lady who lived across the street from the Blanchards. Bingo. Pamela had two sons by a previous marriage; it ended in divorce. She didn't talk much about them, but one was in Alaska and one was a lawyer, or was studying to be a lawyer. Something like that.

Since neither son grew up in Gardner, the trail soon ran cold. No one knew them. In fact, Rafe couldn't find anyone who'd ever seen Pamela's sons. Then Rafe called his lawyer, a sleazy divorce specialist who routinely used Rafe's primitive surveillance services, and the lawyer knew a secretary at Mr. Blanchard's bank. The secretary talked to Mr. Blanchard's personal secretary, and it was discovered that Pamela was from neither Lubbock nor Amarillo, but Austin. She'd worked there for a bankers' association, and that's how she'd met Mr. Blanchard. The secretary knew of the prior marriage, and was of the opinion that it had ended many years ago. No, she had never seen Pamela's sons. Mr. Blanchard never discussed them. The couple lived quietly and almost never entertained.

Fitch received reports every hour from Dante and Joe Boy. Late Monday morning, he called an acquaintance in Austin, a man he'd worked with six years earlier in a tobacco trial in Marshall, Texas. It was an emergency, Fitch explained. Within minutes, a dozen investigators were scouring phone books and making calls. It wasn't long before the bloodhounds picked up the trail.

Pamela Kerr had been an executive secretary for the Texas Bankers Association, in Austin. One phone call led to another, and a former co-worker was located working as a private school guidance counselor. Using the ruse that Pamela was a prospective juror in a capital murder case in Lubbock, the investigator described himself as an assistant district attorney who was trying to gather legitimate information about the jurors. The co-worker felt obligated to answer a few questions, though she hadn't seen or talked to Pamela in years.

Pamela had two sons, Jeff and Alex. Alex was two years older than Jeff, and had graduated from high school in Austin, then drifted to Oregon. Jeff had also finished high school in Austin, with honors, then gone to college at Rice. The boys' father had abandoned the family when they were toddlers, and Pamela had done an outstanding job as a single mother.

Dante, fresh off the private jet, accompanied an investigator to the high school, where they were allowed to rummage through old yearbooks in the library. Jeff Kerr's 1985 senior picture was in color-a blue tux, large blue bow tie, short hair, earnest face looking directly at the camera, the same face Dante had studied for hours in Biloxi. Without hesitation he said, "This is our man," then quietly ripped the page from the yearbook. He immediately called Fitch on a cellphone from between the stacked tiers of books.

Three phone calls to Rice revealed that Jeff Kerr graduated there in 1989 with a degree in psychology. Posing as a representative from a prospective employer, the caller found a Rice professor of political science who'd taught and who remembered Kerr. He said the young man went to law school at Kansas.

With the guarantee of serious cash, Fitch found by phone a security firm willing to drop everything and began scouring Lawrence, Kansas, for any trace of Jeff Kerr.

FOR ONE normally so chipper, Nicholas was quite reserved during lunch. He didn't say a word as he ate a heavily stuffed baked potato from O'Reilly's. He avoided glances and looked downright sad.

The mood was shared. Leon Robilio's voice stayed with them, a robotic voice substituted for a real one lost to the ravages of tobacco, a robotic voice which delivered the sickening dirt he once helped hide. It still rang in their ears. Three thousand kids a day, one third of whom die from their addiction. Gotta hook the next generation!

Loreen Duke tired of picking at her chicken salad. She looked across the table at Jerry Fernandez, and said, "Can I ask you something?" Her voice broke a weary silence.

"Sure," he said.

"How old were you when you started smoking?"

"Fourteen."

"Why did you start?"

"The Marlboro Man. Every kid I hung around with smoked Marlboros. We were country kids, liked horses and rodeos. The Marlboro Man was too cool to resist."

At that moment, every juror could see the billboards-the rugged face, the chin, the hat, the horse, the worn leather, maybe the mountains and some snow, the independence of lighting up a Marlboro while the world left him alone. Why wouldn't a young boy of fourteen want to be the Marlboro Man?

"Are you addicted?" asked Rikki Coleman, playing with her usual fat-free plate of lettuce and boiled turkey. The "addicted" rolled off her tongue as if they were discussing heroin.

Jerry thought for a moment and realized his friends were listening. They wanted to know what powerful urges kept a person hooked.

"I don't know," he said. "I guess I could quit. I've tried a few times. Sure would be nice to stop. Such a nasty habit."

"You don't enjoy it?" Rikki asked.

"Oh, there are times when a cigarette hits the spot, but I'm doing two packs a day now and that's too much."

"What about you, Angel?" Loreen asked Angel Weese, who sat next to her and generally said as little as possible. "How old were you when you started?"

"Thirteen," Angel said, ashamed.

"I was sixteen," Sylvia Taylor-Tatum admitted before anyone could ask.

"I started when I was fourteen," Herman offered from the end in an effort at conversation. "Quit when I was forty."

"Anybody else?" Rikki asked, finishing the confessional.

"I started at seventeen," the Colonel said. "When I joined the Army. But I kicked the habit thirty years ago." As usual, he was proud of his self-discipline.

"Anybody else?" Rikki asked again, after a long, silent pause.

"Me. I started when I was seventeen and quit two years later," Nicholas said, though it was not true.

"Did anybody here start smoking after the age of eighteen?" Loreen asked.

Not a word.

NITCHMAN, in plain clothes, met Hoppy for a quick sandwich. Hoppy was nervous about being seen in public with an FBI agent, and was quite relieved when Nitchman appeared in jeans and a plaid shirt. Wasn't like Hoppy's pals and acquaintances around town could instantly spot the local feds, but he was still nervous nevertheless. Besides, Nitchman and Napier were from a special unit in Atlanta, they'd told Hoppy.

He replayed what he'd heard in court that morning, said the voiceless Robilio made quite an impression and seemed to have the jury in his pocket. Nitchman, not for the first time, professed little interest in the trial and explained again he was just doing what his bosses in Washington told him to do. He handed Hoppy a folded sheet of paper, plain white with tiny numbers and words scattered on the top and bottom, and said this had just come from Cristano at Justice. They wanted Hoppy to see it.

It was really a creation of Fitch's document people, two retired CIA boys who puttered around B.C. enjoying the mischief.

It was a faxed copy of a sinister-looking report on Leon Robilio. No source, no date, just four paragraphs under the ominous headline of CONFIDENTIAL MEMO. Hoppy read it quickly while chomping on french fries. Robilio was being paid half a million dollars to testify. Robilio had been fired from the Tobacco Focus Council for embezzling funds; had even been indicted, though charges were later dropped. Robilio had a history of psychiatric problems. Robilio had sexually harassed two secretaries at the Council. Robilio's throat cancer had probably been caused by his alcoholism, and not by tobacco. Robilio was a notorious liar who hated the Council and was on a crusade of revenge.

"Wow," Hoppy said, showing a mouthful of potatoes.

"Mr. Cristano thought you should sneak this to your wife," Nitchman said. "She should show it only to those she can trust on the jury."

"Right about that," Hoppy said, quickly folding and stuffing it into a pocket. He looked around the crowded dining room as if he was completely guilty of something.

WORKING from law school yearbooks and the limited records the registrar would release, it was learned that Jeff Kerr enrolled as a first-year law student at Kansas in the fall of 1989. His unsmiling face appeared with the second-year class in 1991, but there was no trace of him after that. He did not receive a law degree.

He played rugby for the law school team his second year. A team photo showed him arm in arm with two pals-Michael Dale and Tom Ratliff-both of whom had finished law school the following year. Dale was working for Legal Services in Des Moines. Ratliff was an associate for a firm in Wichita. Investigators were sent to both places.

Dante arrived in Lawrence and was taken to the law school, where he confirmed the identity of Kerr in the yearbooks. He spent an hour looking at faces from 1985 through 1994, and saw no female resembling the girl known as Marlee. It was a shot in the dark. Many law students skipped the picture taking. Yearbooks were sophomoric. These were serious young adults. Dante's work was nothing but a series of shots in the dark.

Late Monday, the investigator named Small found Tom Ratliff hard at work in his tiny window-less office at Wise & Watkins, a large firm in downtown Wichita. They agreed to meet in a bar in an hour.

Small talked to Fitch and gathered as much background as he could, or as much as Fitch would give him. Small was an ex-cop with two ex-wives. His title was security specialist, which in Lawrence meant he did everything from motel watching to polygraph exams. He was not bright, and Fitch realized this immediately.

Ratliff arrived late and they ordered drinks. Small did his best to bluff and act knowledgeable. Ratliff was suspicious. He said little at first, which was what could be expected from a person unexpectedly asked by a stranger to talk about an old acquaintance.

"I haven't seen him in four years," Ratliff said.

"Have you talked to him?"

"No. Not a word. He dropped out of school after our second year."

"Were you close to him?"

"I knew him well our first year, but we were not the best of friends. He withdrew after that. Is he in trouble?"

"No. Not at all."

"Perhaps you should tell me why you're so interested."

Small recited in general terms what Fitch had told him to say, got most of it right and it was close to the truth. Jeff Kerr was a prospective juror in a large trial somewhere, and he, Small, had been hired by one of the parties to dig through his background. "Where's the trial?" Ratliff asked.

"I can't say. But I assure you, none of this is illegal. You're a lawyer. You understand."

Indeed he did. Ratliff had spent most of his brief career slaving under a litigation partner. Jury research was a chore he'd already learned to hate. "How can I verify this?" he asked, like a real lawyer.

"I don't have the authority to divulge specifics about the trial. Let's do it like this. If I ask something which you think might be harmful to Kerr, then don't answer. Fair enough?"

"We'll give it a shot, okay? But if I get nervous, then I'm outta here."

"Fair enough. Why did he quit law school?"

Ratliff took a sip of his beer and tried to remember. "He was a good student, very bright. But after the first year, he suddenly hated the idea of being a lawyer. He clerked in a firm that summer, a big firm in Kansas City, and it soured him. Plus, he fell in love."

Fitch desperately wanted to know if there was a girl. "Who was the woman?" Small asked.

"Claire."

"Claire who?"

Another sip. "I can't remember right now."

"You knew her?"

"I knew who she was. Claire worked at a bar in downtown Lawrence, a college hangout favored by law students. I think that's where she met Jeff."

"Could you describe her?"

"Why? I thought this was about Jeff."

"I was asked to get a description of his girlfriend in law school. That's all I know." Small shrugged as if he couldn't help it.

They studied each other for a bit. What the hell, thought Ratliff. He'd never see these people again. Jeff and Claire were distant memories anyway.

"Average height, about five six. Slender. Dark hair, brown eyes, pretty girl, all the bells and whistles."

"Was she a student?"

"I'm not sure. I think maybe she had been. Maybe a grad student."

"At KU?"

"I don't know."

"What was the name of the hangout?"

"Mulligan's, downtown."

Small knew it well. At times he went there himself to drown his worries and admire the college girls. "I've knocked back a few at Mulligan's," he said.

"Yeah. I miss it," Ratliff said wistfully.

"What did he do after he dropped out?"

"I'm not sure. I heard that he and Claire left town, but I never heard from him again."

Small thanked him and asked if he could call him at the office if he had more questions. Ratliff said he was awfully busy, but give it a try.

Small's boss in Lawrence had a friend who knew the guy who'd owned Mulligan's for fifteen years. The advantages of a small town. Employment records weren't exactly confidential, especially for the owner of a bar who reported fewer than half of his cash sales. Her name was Claire Clement.

FITCH RUBBED his stubby hands together with glee as he took the news. He loved the chase. Marlee was now Claire, a woman with a past who'd worked hard to cover it up. "Know thine enemy," he said aloud to his walls. The first rule of warfare.