The Appeal

The Appeal Page 18

Clete Coley's colorful launch landed with perfect timing. There was not another interesting story throughout the entire state. The press seized Coley's announcement and beat it like a drum. And who could blame them? How often does the public get to see vivid footage of a lawyer getting handcuffed and dragged away while yelling about those "liberal bastards." And such a loud, large lawyer at that? His haunting display of dead faces was irresistible. His volunteers, especially the relatives of the victims, were more than happy to chat with the reporters and tell their stories. His gall in holding the rally directly under the noses of the supreme court was humorous, even admirable.

He was rushed downtown to central headquarters, and there he was booked, fingerprinted, and photographed. He assumed, correctly, that his mug shot would find its way to the press in short order, and so he had a few moments to think about its message.

An angry scowl might confirm the suspicion that this guy was a bit off his rocker.

A goofy smile might lead to questions about his sincerity-who smiles when he's just arrived at the jail? He settled on a simple blank face, with just a trace of a curious glare, as if to say, "Why are they picking on me?"

Procedures called for every inmate to strip, shower, and change into an orange jumpsuit, and this usually happened before the mug shot. But Clete would have none of it. The charge was simple trespass, with a maximum fine of $250. Bail was twice that, and Clete, his pockets bulging with $ 100 bills, flashed enough money around to let the authorities know he was on his way out of jail, not the other way around. So they skipped the shower and the jumpsuit, and Clete was photographed in his nicest brown suit, starched white shirt, paisley silk tie in a perfect knot. His long, graying hair was in place.

The process took less than an hour, and when he emerged a free man, he was thrilledto see that most of the reporters had followed him. On a city sidewalk, he answeredtheir questions until they finally grew weary.

On the evening news, he was the lead story, with all the drama of the day. On the late night news, he was back. He watched it all on a wide-screen TV in a bikers' bar in south Jackson, where he was holed up for the night, buying drinks for everyone who could get in the door. His tab was over $1,400. A campaign expense.

The bikers loved him and promised to turn out in droves to get him elected. Of course, not a single one was a registered voter. When the bar closed, Clete was driven away in a bright red Cadillac Escalade, just leased by the campaign at a thousand dollars a month. Behind the wheel was one of his new bodyguards, the white one, a young man only slightly more sober than his boss. They made it to the motel without further arrest.

At the offices of the Mississippi Trial Advocates on State Street, Barbara Mellinger, executive director and chief lobbyist, met for an early round of coffee with her assistant, Skip Sanchez. For the first cup, they mulled over the morning newspapers.

They had copies of four of the dailies from the southern district-Biloxi, Hattiesburg, Laurel, and Natchez- and Mr. Coley's face was on the front page of all four. The Jackson paper reported little else. The Times-Picayune out of New Orleans had a readership along the Coast, and it ran an AP story, with photo (hand cuffs) on page 4.

"Perhaps we should advise all our candidates to get themselves arrested when they do their announcements," Barbara said drily and with no attempt at humor. She hadn't smiled in twenty-four hours. She drained her first cup and went for more.

"Who the hell is Clete Coley?" Sanchez asked, staring at the various photos of the man. Jackson and Biloxi had the mug shot-the look of a man who would throw a punch and ask questions after it landed.

"I called Walter last night, down in Natchez," she was saying. "He says Coley has been around for years, always on the edge of something shady but smart enough not to get caught. He thinks that at one time he did oil and gas work. There was a bad deal with some small business loans. Now he fancies himself a gambler. Never been seen within six blocks of the courthouse. He's unknown."

"Not anymore."

Barbara got up and moved slowly around the office. She refilled the cups, then sat down and resumed her study of the newspapers.

"He's not a tort reformer," Skip said, though not without some doubt. "He doesn't fit their mold. He's got too much baggage for a hard campaign. There's at least one DUI, at least two divorces."

"I think I agree, but if he's never been involved before, then why is he suddenly screaming about the death penalty? Where does this conviction come from? This passion?

Plus, his show yesterday was well organized. He's got people. Where do they come from?"

"Do we really care? Sheila McCarthy beats him two to one. We should be thrilled he is what he is-a buffoon who, we think, is not being financed by the Commerce Council and all the corporate boys. Why aren't we happy?"

"Because we're trial lawyers."

Skip turned gloomy again.

"Should we arrange a meeting with Judge McCarthy?" Barbara asked after a long, heavy pause.

"In a couple of days. Let the dust settle."

Judge McCarthy was up early, and why not? She certainly couldn't sleep. At 7:30 she was seen leaving her condo. She was trailed to the Belhaven section of Jackson, an older neighborhood. She parked in the driveway of the Honorable Justice James Henry McElwayne.

Tony was hardly surprised by this little get-together.

Mrs. McElwayne greeted her warmly and invited her inside, through the den and kitchen and all the way back to his study. Jimmy, as he was known to his friends, was just finishing the morning papers.

McElwayne and McCarthy. Big Mac and Little Mac, as they were sometimes referred to. They spent a few minutes chatting about Mr. Coley and his astounding press coverage, then got down to business.

"Last night, I went through my campaign files," McElwayne said as he handed over a folder an inch thick. "The first section is a list of contributors, beginning with the heavy hitters and going south. All the big checks were written by trial lawyers."

The next section summarized his campaign's expenses, numbers that Sheila found hardto believe. After that there were reports from consultants, sample ads, poll results, a dozen other campaign-related reports.

"This brings back bad memories," he said.

"Sorry. This is not what I wanted, believe me."

"You have my sympathy."

"Who's behind this guy?"

"I thought about it all night. He could be a decoy. He's definitely a nut. Whatever he is, you can't take him lightly. If he's your only opponent, sooner or later the bad guys will find their way into his camp. They'll bring their money. And this guy with a fat checkbook could really be frightening."

McElwayne had once been a state senator, then an elected chancery court judge. He'd fought the political wars. Two years earlier, Sheila watched helplessly as he was savaged and abused in a bitter campaign. At its lowest point, when his opponent's television ads (later known to be financed by the American Rifle Association) accused him of being in favor of gun control (there is no greater sin in Mississippi), she had told herself that she would never, under any circumstances, allow herself to be so degraded. It wasn't worth it. She would scamper back to Biloxi, open a little boutique firm, and see her grandchildren every other day Someone else could have the job.

Now she wasn't so sure. She was angered by Coley's attacks. Her blood was not yet boiling, but it wouldn't take much more. At fifty-one, she was too young to quit and too old to start over.

They talked politics for over an hour. McElwayne spun yarns of old elections and colorful politicians, and Sheila gently nudged him back to the battles she now faced.

His campaign had been expertly run by a young lawyer who took a leave of absence from a large Jackson firm. McElwayne promised to call him later in the day and check his pulse. He promised to call the big donors and the local operatives. He knew the editors of the newspapers. He would do whatever he could to protect her seat on the bench.

Sheila left at 9:14, drove nonstop to the Gartin building, and parked.

The Coley announcement was noted at Payton amp; Payton, but little was said. On April 18, the day after, three important events occurred, and the firm had no interest in other news. The first event was well received. The others were not.

The good news was that a young lawyer from the tiny town of Bogue Chitto stopped by and cut a deal with Wes. The lawyer, an office practitioner with no personal injury experience, had somehow managed to become the attorney for the survivors of a pulpwood cutter who'd been killed in a horrible accident on Interstate 55 near the Louisiana line. According to the highway patrol, the accident had been caused by the recklessness of the driver of an eighteen-wheeler owned by a large company. An eyewitness was already on record stating that the truck passed her in a wild rush, and she was doing "around" seventy miles per hour. The lawyer had a contingency agreement that would give him 30 percent of any recovery. He and Wes agreed to equally split it. The pulpwood cutter was thirty-six years old and earned about $40,000 a year. The math was easy. A million-dollar settlement was quite possible. Wes drew up a lawsuit in less than an hour and was ready to file.

The case was especially gratifying because the young lawyer chose the Payton firm on account of its recent reputation. The Baker verdict had finally attracted a worthwhile client.

The depressing news was the arrival of Krane's appellant brief. It was 102 pages long-twice the limit-and gave every impression of being beautifully researched and written by an entire team of very bright lawyers. It was too long and two months late, but the concessions had been granted by the court. Jared Kurtin and his men had been very persuasive in their arguments for more time and more pages. It was, obviously, not a routine case.

Mary Grace would have sixty days to respond. After the brief was gawked at by the rest of the firm, she hauled it to her desk for the first reading. Krane was claiming a grand total of twenty-four errors at trial, each worthy of correction on appeal.

It began pleasantly enough with an exhaustive review of all the comments and rulings by Judge Harrison that allegedly revealed his intense bias against the defendant.

Then it challenged the selection of the jury. It attacked the experts called on behalf of Jeannette Baker: the toxicologist who testified as to the near-record levels of BCL and cartolyx and aklar in Bowmore's drinking water; the pathologist who described the highly carcinogenic nature of these chemicals; the medical researcher who described the record rate of cancer in and around Bowmore; the geologist who tracked the toxic wastes through the ground and into the aquifer under the town's well; the driller who drilled the test holes; the doctors who performed the autopsies on both Chad and Pete Baker; the scientist who studied pesticides and said ghastly things about pillamar 5; and the most crucial expert, the medical researcher who linked BCL and cartolyx to the cancerous cells found in the bodies. The Paytons had used fourteen expert witnesses, and each was criticized at length and declared unqualified. Three were described as charlatans. Judge Harrison was wrong time and again for allowing them to testify. Their reports, entered into evidence after lengthy fights, were picked apart, condemned in scholarly language, and labeled as "junk science." The verdict itself was against the overwhelming weight of the evidence and a clear indication of undue sympathy on the part of the jury. Harsh but skillful words were used to attack the punitive element. The plaintiff fell far short in her efforts to prove that Krane had contaminated the drinking water either by gross negligence or by outright intent. Finally, the brief ended with a strident plea for a reversal and new trial, or, better yet, an outright dismissal by the supreme court. "This outrageous and unjustified verdict should be reversed and rendered," it read in closing. In other words, throw it out forever.

The brief was well written, well reasoned, and persuasive, and after two hours of nonstop reading Mary Grace finished it with a splitting headache. She took three Advil, then gave it to Sherman, who eyed it with all the caution he would have given a rattlesnake.

The third event, and the most alarming news, came in a phone call from Pastor Denny Ott. Wes took it after dark, then walked to his wife's office and closed the door.

"That was Denny," he said.

As Mary Grace looked at her husband's face, her first thought was that another client had passed away. There had been so many sad phone calls from Bowmore that she could almost anticipate one. "What is it?"

"He talked to the sheriff. Mr. Leon Gatewood is missing."

Though they had no affection whatsoever for the man, the news was still troubling.

Gatewood was an industrial engineer who had worked at the Krane plant in Bowmore for thirty-four years. A company man to the core, he had retired when Krane fled to Mexico, and had admitted, in deposition and on cross-examination at trial, that the company had given him a termination package worth three years' salary, or about $190,000. Krane was not known for such generosity. The Paytons had found no otheremployee with such a sweet deal.

Gatewood had retired to a little sheep farm in the southwest corner of Cary County, about as far from Bowmore and its water as one could possibly get and still reside in the county. During his three-day deposition, he steadfastly denied any dumping at the plant. At trial, with a stack of documents, Wes had grilled him without mercy.

Gatewood called the other Krane employees liars. He refused to believe records that showed tons of toxic by-products had, in fact, not been hauled away from the plant, but had simply gone missing. He laughed at incriminating photographs of some of the six hundred decomposed BCL drums dug up from the ravine behind the plant. "You doctored those," he shot back at Wes. His testimony was so blatantly fabricated that Judge Harrison talked openly, in chambers, of perjury charges. Gatewood was arrogant, belligerent, and short-tempered and made the jury despise Krane Chemical. He was a powerful witness for the plaintiff, though he testified only after being dragged to court by a subpoena.

Jared Kurtin could have choked him.

"When did this happen?" she asked.

"He went fishing alone two days ago. His wife is still waiting."

The disappearance of Earl Crouch in Texas two years earlier was still an unsolved mystery. Crouch had been Gatewood's boss. Both had vehemently defended Krane and denied what had become obvious. Both had complained of harassment, even death threats.

And they weren't alone. Many of the people who worked there, who made the pesticides and dumped the poisons, had been threatened. Most had drifted away from Bowmore, to escape the drinking water, to look for other jobs, and to avoid getting sucked into the coming storm of litigation. At least four had died of cancer.

Others had testified and told the truth. Others, including Crouch, Gatewood, and Buck Burleson, had testified and lied. Each group hated the other, and collectively they were hated by the remainder of Cary County.

"I guess the Stones are at it again," Wes said.

"You don't know that."

"No one will ever know. I'm just happy they're our clients."

"Our clients are restless down there," she said. "It's time for a meeting."

"It's time for dinner. Who's cooking?"

"Ramona."

"Tortillas or enchiladas?"

"Spaghetti."

"Let's go find a bar and have a drink, just the two of us. We need to celebrate, dear. This little case from Bogue Chitto might just be a quick million-dollar settlement."

"I'll drink to that."