The Runaway Jury

The Colonel's routine never varied. Like a good soldier, he rose at precisely five-thirty every morning for fifty pushups and situps before a quick, cold shower. At six, he went to the dining room, where there'd damned well better be some fresh coffee and plenty of newspapers. He ate toast with jam and no butter, and greeted each of his colleagues with a hale and hearty good morning as they drifted in and out. They were sleepy-eyed and anxious to return to their rooms where they could sip coffee and watch the news in private. It was a helluva way to start the day, being forced to greet the Colonel and return his verbal barrage. The longer they were sequestered, the more hyper he became before sunrise. Several of the jurors waited until eight, when he was known to promptly leave and return to his room.

At six-fifteen Thursday morning, Nicholas said hello to the Colonel as he poured a cup of coffee, then endured a brief discussion about the weather. He left the makeshift dining room and eased quietly down the empty, darkened hall. Several TV's could already be heard. Someone was talking on the phone. He unlocked his door and quickly set the coffee on the dresser, removed a stack of newspapers from a drawer, then left the room.

Using a key he'd stolen from the rack under the front desk, Nicholas entered Room 50, the Colonel's. The smell of cheap aftershave lingered heavily. Shoes were assembled in a perfect row against one wall. The clothes in the closet were neatly hung and precisely starched. Nicholas fell to his knees, lifted the edge of the bedspread, and deposited the newspapers and magazines under the bed. One was a copy of yesterday's Mogul.

He silently left the room and returned to his. An hour later he called Marlee. Assuming Fitch was listening to all of her calls, he simply said, "Darlene, please." To which she said, "Wrong number." Both hung up. He waited five minutes and dialed the number to a cellphone Marlee kept hidden in a closet. They expected Fitch to tap her phones and wire her apartment.

"Delivery's complete," he said.

Thirty minutes later Marlee left her apartment and found a pay phone at a biscuit drive-through. She called Fitch, and waited for her call to be routed.

"Good morning, Marlee," he said.

"Hey, Fitch. Look, I'd love to talk on the phone, but I know all this is getting recorded."

"No it's not. I swear."

"Right. There's a Kroger at the corner of Fourteenth and Beach Boulevard, five minutes from your office. There are three pay phones near the front entrance, right side. Go to the one in the middle. I'll call in seven minutes. Hurry, Fitch." She hung up.

"Sonofabitch!" Fitch screamed as he threw down the receiver and bolted for the door. He yelled at Jose and together they raced out the back door and jumped into the Suburban.

As expected, the pay phone was ringing when Fitch got there.

"Hey, Fitch. Look, Herrera, number seven, is really getting on Nick's nerves. I think we'll lose him today."

"What!"

"You heard me."

"Don't do it, Marlee!"

"Guy's a real pain. Everybody's sick of him."

"But he's on our side!"

"Oh, Fitch. They'll all be on our side when it's over. Anyway, be there at nine for the suspense."

"No, listen, Herrera is vital to-" Fitch got himself cut off in mid-sentence when he heard the click on her end. Then the line was dead. He gripped the receiver and began pulling on it, as if he'd slowly rip it from the phone and hurl it across the parking lot. Then he released it, and without cursing or yelling he calmly walked back to the Suburban and told Jose to go to the office.

Whatever she wanted. It didn't matter.

JUDGE HARKIN lived in Gulfport, fifteen minutes from the courthouse. For obvious reasons, his phone number was not listed in the local directory. Who needed convicts from the jail calling at all hours of the night?

As he was in the process of kissing his wife and gathering his cup of coffee for the road, the phone in the kitchen rang and Mrs. Harkin took it. "It's for you, dear," she said, handing it to His Honor, who set down his coffee and briefcase and glanced at his watch.

"Hello," he said.

"Judge, I'm sorry to bother you at home like this," said a nervous voice, one almost in a whisper. "This is Nicholas Easter, and if you want me to hang up right now, I'll do it."

"Not yet. What's the matter?"

"We're still at the motel, getting ready to leave, and, well, I think I need to talk to you first thing this morning."

"What is it, Nicholas?"

"I hate to call you, but I'm afraid some of the other jurors might be getting suspicious of our notes and chats in chambers."

"Maybe you're right."

"So I thought I'd call you. This way they'll never know we've talked."

"Let's try it. If I think we should stop the conversation, then I'll do so." Harkin wanted to ask how a sequestered juror obtained his phone number, but decided to wait.

"It's about Herrera. I think maybe he's reading some stuff that isn't on the approved list."

"Like what?"

"Like Mogul I walked into the dining room early this morning. He was there all alone, and he tried to hide a copy of Mogul from me. Isn't that some kind of business magazine?"

"Yes, it is." Harkin had read yesterday's column by Barker. If Easter was telling the truth, and why should he doubt him, then Herrera would be sent home immediately. The reading of any unauthorized material was grounds for dismissal, maybe even contempt. The reading of yesterday's Mogul by any juror bordered on grounds for a mistrial. "Do you think he's discussed it with anyone else?"

"I doubt it. Like I said, he was trying to hide it from me. That's why I got suspicious. I don't think he'd discuss it with anyone. But I'll listen carefully."

"You do that. I'll call Mr. Herrera in first thing this morning and interrogate him. We'll probably search his room."

"Please don't tell him I'm the snitch. I feel rotten doing this."

"It's okay."

"If the other jurors get word we're talking, then my credibility is gone."

"Don't worry."

"I'm just nervous, Judge. We're all tired and ready to go home."

"It's almost over, Nicholas. I'm pushing the lawyers as hard as I can."

"I know. Sorry, Judge. Just make sure no one knows I'm playing the mole here. I can't believe I'm doing this."

"You're doing the right thing, Nicholas. And I thank you for it. I'll see you in a few minutes."

Harkin kissed his wife much quicker the second time, and left the house. By car phone, he called the Sheriff and asked him to go to the motel and wait. He called Lou Dell, something he did most mornings while driving to court, and asked her if Mogul was sold at the motel. No, it wasn't. He called his law clerk and asked her to locate both Rohr and Cable and have them waiting in chambers when he arrived. He listened to a country station and wondered how in the world a sequestered juror got a copy of a business magazine not readily available on the streets of Biloxi.

Cable and Rohr were waiting with the law clerk when Judge Harkin entered his chambers and closed his door. He removed his jacket, took his seat, and summarized the allegations against Herrera without divulging his source. Cable was annoyed because Herrera was deemed by all to be a solid defense juror. Rohr was irritated because they were losing another juror and a mistrial couldn't be far away.

With both lawyers unhappy, Judge Harkin felt much better. He sent his law clerk to the jury room to fetch Mr. Herrera, who was sipping his umpteenth cup of decaf and chatting with Herman over his braille computer. Frank glanced around quizzically after Lou Dell called his name, and left the room. He followed Willis the deputy through the back corridors behind the courtroom. They stopped at a side door, where Willis knocked politely before entering.

The Colonel was greeted warmly by the Judge and the lawyers, and he was shown a chair in the cramped room, a chair sitting snugly next to one occupied by the court reporter, who sat ready with her stenographic machine.

Judge Harkin explained that he had a few questions which would require responses under oath, and the lawyers suddenly produced yellow legal pads and started their scribbling. Herrera immediately felt like a criminal.

"Have you been reading any materials not expressly authorized by me?" Judge Harkin asked.

A pause as the lawyers looked at him. The law clerk and the court reporter and the Judge himself were poised to pounce on his response. Even Willis by the door was awake and paying remarkable attention.

"No. Not to my knowledge," the Colonel said, truthfully.

"Specifically, have you been reading a business weekly called Mogul?"

"Not since I've been sequestered."

"Do you normally read Mogul?"

"Once, maybe twice a month."

"In your room at the motel, do you possess any reading materials not authorized by me?"

"Not to my knowledge."

"Will you consent to a search of your room?"

Frank's cheeks went red and his shoulders jerked. "What're you talking about?" he demanded.

"I have reason to believe you've been reading unauthorized materials, and that this has occurred at the motel. I think a quick search of your room might settle the matter."

"You're questioning my integrity," Herrera said, wounded and angry. His integrity was vital to him. A glance at the other faces revealed that they all thought he was guilty of some heinous transgression.

"No, Mr. Herrera. I simply believe a search will allow us to proceed with this trial."

It was just a motel room, not like a home where all sorts of private things are hidden. And, besides, Frank knew damned well there was nothing in his room that could incriminate him. "Then search it," he said with clenched teeth.

"Thank you."

Willis led Frank into the hallway outside chambers, and Judge Harkin called the Sheriff at the motel. The manager opened the door to Room 50. The Sheriff and two deputies conducted a delicate search of the closet and drawers and bathroom. Under the bed, they found a stack of Wall Street Journals and Forbes magazines, and also a copy of yesterday's Mogul. The Sheriff called Judge Harkin, relayed what they'd found, and was instructed to bring the unauthorized items to chambers at once.

Nine-fifteen, no jury. Fitch sat rigid on a back pew, eyes peering just barely over the top of a newspaper and staring hard at the door near the jury box, knowing full and damned well that when they finally emerged, juror number seven would not be Herrera but rather Henry Vu. Vu was mildly tolerable from a defense view because he was Asian, and Asians typically weren't the big spenders of other people's moneys in tort cases. But Vu was no Herrera, and Fitch's jury people had been telling him for weeks now that the Colonel was with them and would be a force during deliberations.

If Marlee and Nicholas could bounce Herrera on a whim, who might be next? If they were doing this solely to get Fitch's attention, then they were surely successful.

THE JUDGE and the lawyers stared in disbelief at the newspapers and magazines now lined neatly across Harkin's desk. The Sheriff dictated into the record a brief narrative of how and where the items were found, then left.

"Gentlemen, I have no choice but to excuse Mr. Herrera," His Honor said, and the lawyers said nothing. Herrera was brought back into the room and directed to the same chair.

"On the record," Judge Harkin said to the court reporter. "Mr. Herrera, what is your room number at the Siesta Inn?"

"50."

"These items were found under the bed in Room 50 just minutes ago." Harkin waved at the periodicals. "All are recent, most are dated after the date of sequestration."

Herrera was dumbfounded.

"All, of course, are unauthorized, some are highly prejudicial."

"They're not mine," Herrera said slowly, his anger building.

"I see."

"Somebody put them there."

"Who might have done this?"

"I don't know. Maybe the same person who gave you the tip."

A very good point, thought Harkin, but not one to be pursued right now. Both Cable and Rohr looked at the Judge as if to ask, Okay, who gave you the tip?

"We can't escape the fact that these were found in your room, Mr. Herrera. For this reason, I have no choice but to excuse you from further jury service."

Frank's mind was focusing now, and there were many questions he wanted to ask. He wanted to raise his voice and get in Harkin's face when he suddenly realized he was about to be set free. After four weeks of trial and nine nights at the Siesta Inn, he was about to walk out of this courthouse and go home. He'd be on the golf course by lunchtime.

"I don't think this is right," he said halfheartedly, trying not to push too hard.

"I'm very sorry. I'll deal with the contempt of court issue at a later date. As for now, we need to get on with the trial."

"Whatever you say, Judge," Frank said. Dinner tonight at Vrazel's, fresh seafood and a wine list. He could see his grandson tomorrow.

"I'll have a deputy take you back to the motel so you can pack. I am instructing you not to repeat any of this to anyone, especially members of the press. You are under a gag order until further notice. Do you understand this?"

"Yes sir."

The Colonel was escorted down the rear stairway and out the back door of the courthouse, where the Sheriff was waiting for Herrera's quick and final trip to the Siesta Inn.

"I hereby move for a mistrial," Cable said, in the direction of the court reporter. "On the grounds that this jury may have been improperly influenced by the story appearing in Mogul yesterday."

"Motion denied," Judge Harkin said. "Anything else?"

The lawyers shook their heads and stood.

THE ELEVEN JURORS and two alternates took their seats at a few minutes after ten, as the courtroom watched silently. Frank's seat on the second row, far left, was empty, and this was immediately noticed by everyone. Judge Harkin greeted them with a solemn face and got quickly to the point. He held a copy of yesterday's Mogul and asked if anyone had seen or read it, or if anyone had heard anything about what was in it. No volunteers.

He then said, "For reasons that have been made clear in chambers, and placed in the record, juror number seven, Frank Herrera, has been dismissed and will now be replaced by the next alternate, Mr. Henry Vu." At this point, Willis said something to Henry, who left his padded folding chair and took four steps to seat number seven, where he became an official member of the panel and left Shine Royce as the sole remaining alternate.

Desperate to move things along and divert attention away from his jury, Judge Harkin said, "Mr. Cable, call your next witness."

Fitch's newspaper dropped six inches, down to his chest, and his mouth dropped too as he stared at the new composition with bewilderment. He was scared because Herrera was gone, and he was thrilled because his girl Marlee had waved her wand and delivered exactly what she'd promised. Fitch couldn't help but look at Easter, who must have felt it because he turned slightly and caught Fitch's eyes with his own. For five or six seconds, an eternity for Fitch, they stared at each other from ninety feet. Easter's face was smirking and proud, as if to say, "Look what I can do. Are you impressed?" Fitch's face said, "Yes. Now, what do you want?"

In the pretrial order, Cable had listed twenty-two possible witnesses, virtually all with the word Doctor somewhere in their names, and all with solid credentials. His stable included battle-tested veterans of other cigarette trials, and prickly researchers funded by Big Tobacco, and myriad other mouthpieces assembled to counterattack what the jury had already heard.

During the past two years, all twenty-two had been deposed by Rohr and his gang. There would be no surprises.

The consensus was that the plaintiff's heaviest blows had been landed by Leon Robilio and his claims that kids were targeted by the industry. Cable thought it best to attack there first. "The defense calls Dr. Denise McQuade," he announced.

She presented herself through a side door, and the courtroom, heavily dominated by middle-aged men, seemed to stiffen a bit as she strolled in front of the bench, smiled up at His Honor, who was most definitely smiling down, and took her seat in the witness chair. Dr. McQuade was a beautiful woman, tall and thin with a short red dress just inches above her knees, and blond hair pulled severely back and tucked away behind her head. She took her oath with a comely smile, and when she crossed her legs she had an audience. She seemed much too young and much too pretty to be involved in a nasty brawl like this.

The six men on the jury, especially Jerry Fernandez, along with Shine Royce, the alternate, paid very close attention as she gently pulled the microphone close to her mouth. Red lipstick. Long red fingernails.

If they were expecting a bimbo they were quickly disappointed. Her husky voice detailed her education, background, training, field of expertise. She was a behavioral psychologist with her own firm in Tacoma. She'd written four books, published over three dozen articles, and Wendall Rohr had no objection when Cable moved to have Dr. McQuade declared as an expert.

She got right to the point. Advertising permeates our culture. Ads directed at one age group or one class of people quite naturally are heard and seen by those not in the target group. This cannot be prevented. Kids see tobacco ads because kids see newspapers and magazines and billboards and flashing neon lights in convenience store windows, but this doesn't mean the kids are targeted. Kids also see beer commercials on TV, commercials often made by their favorite sports heroes. Does this mean beer companies are subliminally trying to hook the next generation? Of course not. They're simply trying to sell more beer to their market. The kids just get in the way, but there's nothing that can be done about it short of banning all advertising for all offensive products. Cigarettes, beer, wine, liquor, what about coffee and tea and condoms, and butter? Do ads by credit card companies encourage people to spend more and save less? Dr. McQuade made the point repeatedly that in a society where free speech is a valued right, restrictions on advertising are carefully scrutinized.

Cigarette ads are no different from others. Their purpose is to reinforce a person's desire to buy and use the product. Good ads stimulate the natural response to rush out and purchase what's being advertised. Ineffective ads do not, and normally are quickly pulled. She used the example of McDonald's, a company she had studied, and she just happened to have a report handy in the event the jury wanted to peruse it. By the time a child is three, the child can hum, whistle, or sing whatever the current McDonald's jingle happens to be. The child's first trip to McDonald's is a momentous occasion. This is no accident. The corporation spends billions to hook children before its competitors do. American children consume more fat and cholesterol than the last generation. They eat more cheeseburgers, fries, and pizza, and drink more sodas and sugared fruit drinks. Do we charge McDonald's and Pizza Hut with devious advertising practices for targeting the young? Do we sue them because our kids are fatter?

No. We as consumers make informed choices about the foods we feed our children. No one can argue that we make the best choices.

And we as consumers make informed choices about smoking. We are bombarded with ads for thousands of products, and we respond to those ads which reinforce our needs and desires.

She crossed and recrossed her legs every twenty minutes or so, and each crossing was duly noted by the packs of lawyers around both tables and by the six male jurors and most of the females as well.

Dr. McQuade was pleasant to look at and easy to believe. Her testimony made perfect sense, and she connected with most of the jurors.

Rohr sparred with her politely for an hour on cross but didn't land a serious punch.