On Thursday, December 22, 1977, the huge Continental grain elevator in the port of Westwego, Louisiana, exploded, killing 36 people. The explosion traveled up the 25-story concrete tower, which came crashing down on the administration building, where workers were celebrating the holidays. There were, literally, not enough workers left alive to confirm the exact cause and the responsibility for this tragedy. It’s hard to build an investigation without witnesses.
Five days later, the Farmers Export grain elevator in the Port of Galveston blew up. The explosion began in the rail dump, traveled 250 feet along an underground conveyor belt, and blew the roof off the 20-story reinforced concrete tower. Eighteen workers were killed—all from exploding grain dust. This time, there were some survivors, and other sources to aid an investigation.
Grain dust is a funny thing. What could be more innocent than grain? No one worries about a loaf of bread falling on them or exploding in the bread aisle of the supermarket. Grain dust is a natural by-product of moving grain. Sure enough, in a pile on the ground, you can put a blow torch to it and not much will happen. But stir up that pile so it is suspended in the air, like a cloud, and an amazing thing happens: it transforms into something that is highly explosive. Indeed, grain dust suspended in the air can be four times more explosive than coal dust. So the obvious answer is to keep it on the ground, and to keep the ground clean. Seems pretty simple. It’s not.
Across the Midwest and other farm country, the big mechanized combines work day and night to harvest the grain. One acre can yield over 46 bushels of wheat, weighing about 60 pounds per bushel. The farm trucks bring it to a local grain elevator, to hold until the next train comes in. In that train, each railcar can carry almost 200,000 pounds of grain, representing the product of almost 70 acres of farmland. As a train gathers railcars from different local grain elevators, it often stretches to over 100 cars, heading to the southern ports. When they reach one of the huge export grain elevators, each railcar is unloaded at the rail dump. The grain then usually travels by conveyer belt through an underground tunnel, to the base of the elevator, then is carried up into the elevator, to hold until the next cargo ship comes in, to be loaded with grain for export around the world.
At each step along the way, from harvest to export, as the grain kernels rub together, they produce grain dust. The further along the way, the more grain, the more dust. When a railcar is opened and quickly dumps its 200,000 pounds, it can produce a small cloud of grain dust in the rail dump. By the time all 100 railcars in that long train are dumped, that’s a lot of clouds.
So you have to be careful to avoid sparks, of course. But you also have to keep the grain elevator clean. Constantly. Meticulously. Because if, perish the thought, a spark ignites the cloud of grain dust from dumping a single railcar, it can cause an explosion, but hopefully a minor one that goes nowhere. But if the elevator is dirty, with piles of grain dust everywhere, that initial explosion can stir up and ignite the next pile, and the next pile, and begin a chain reaction explosion that can continue for as long as there are more piles of grain dust to feed it.
Grain elevators today use various mechanical and technological devices to help keep things clean. But not so long ago, they relied in large part on crews of workers with brooms. That meant managers had to take laborers away from the all-important task of dumping more railcars to meet their company quotas. It didn’t always work.
The Law as a Force for Change
White-collar crime is of relatively recent vintage. Until fairly recently, the common view was that “criminals” were ruffians, not businesspeople in suits and ties, and nonviolent or victimless (in the direct sense) actions were hard for many to accept as crimes. Health and safety was one of the slowest areas to change. Traditionally, if a health and safety case made it to court at all, it was as a civil lawsuit, either by the government or injured victims, and brought against the corporate entity responsible—which, in most instances, really meant the entity’s insurance company. After all, it was just about money.
One result was that the managers on the ground—the people who were most likely to have seen, or even directed, the problem, and who were most likely to be able to keep it from happening again—were several layers away from any litigation. In the months or years it takes a case to wind through the system, the managers on the ground had been back hard at work, and the incident or issue was a distant memory. As a force for change, it often was too remote.
In 1970, there was a major shift. Congress created the Occupational Safety and Health Administration (OSHA), and that law included criminal penalties against individuals for serious violations that caused death. That meant jail, not a distant insurer. But there were few cases brought, and most federal prosecutors didn’t even know the law existed. It was too new, too different.
Ten years later, the Department of Justice (DOJ) decided that the law was on the books for a reason, and it should be used in appropriate serious cases. But how to convince busy prosecutors around the country to add this new law and concept to their burdens? The DOJ’s Criminal Division decided to create a unit of attorneys specializing in health and safety cases based in Washington, D.C., but traveling everywhere to offer support and encouragement to local prosecutors to bring criminal health and safety cases. One year out of law school, I became a part of that unit.
Almost every case we brought was a shock to the defendants, and people in similar positions elsewhere. That’s not the way it had worked. Criminal? Okay, maybe someone screwed up. Maybe they could have been more careful. And it was a shame that someone died as a result. But no one intended to kill them—is that really criminal? The DOJ wanted to get people’s attention. In many cases, it worked.
So when 54 people died within five days in the two grain dust explosions, OSHA came to the DOJ and said, “We have a problem in the grain elevator business, and whatever we’re doing isn’t enough.” The DOJ and the U.S. Attorney’s Office in Houston agreed to open a grand jury investigation, with our little unit providing support. Dick Tallman, a fellow member of the unit, started the ball rolling, then passed it to me when he left and later became a distinguished federal judge. The investigation itself was a shock to the industry: grain elevator employees and managers, company executives, and government regulators, being summoned to testify before a federal grand jury, and questioned by DOJ attorneys. But the real shock came when the two top managers of the Farmers Export grain elevators were indicted—individually—for criminal violations of the OSHA Act, with potential penalties including fines and jail on each count. The world had changed. It was time—long past time for the 54 dead—to look at health and safety in the grain industry in a whole new light.
Ready for Trial?
As one of the first high-profile criminal OSHA prosecutions, the Farmers Export case drew a great deal of attention in the media, the industry, and the legal community. Both defendants retained experienced trial counsel, former U.S. attorneys. Both had second-chair lawyers assisting them who were older and more experienced than me. I was excited to be part of the case, carrying the bags and doing the research for the lead counsel. I could learn a lot by watching such experienced trial lawyers.
The case was brought in Galveston, where there was a small federal courthouse—basically one judge, one of everything. Judge Hugh Gibson was a very experienced and very strict judge. At the time, there was no U.S. Attorney’s Office in Galveston; prosecutors would have to drive the 50 miles from Houston or stay in a hotel in Galveston. The Chief of the Criminal Division in the Houston U.S. Attorney’s Office was going to try the case for the government. He was a very experienced trial lawyer, which was necessary for such a complex and challenging case. We began to prepare for trial.
Every case has surprises and unexpected hurdles. Our first one came just a couple weeks before the trial date. The Chief of the Criminal Division had a conflict and couldn’t try the case on the scheduled date. No problem, I said, we’ll get a continuance. Oh no, I was told, that’s not how things work in Galveston. Judge Gibson runs his calendar very strictly, and doesn’t care much about individual government attorneys’ schedules, when presumably there are always more who can step in. He doesn’t give continuances, and when he says, “Ready for trial?” it’s not really a question—it’s an order. The case is going to trial as scheduled.
I reminded the Chief how important this case was to the DOJ, to OSHA, and to the families of the deceased, and how embarrassing it would be to not have lead counsel. All this, said with just a bit of panic. All was well, he assured me. One of the most experienced and talented trial lawyers in his office happened to be down in Galveston trying a case, and George Jacobs had agreed to step in for the Chief. Reassured, I headed down to Galveston, checked into the government rate hotel, and went to the courthouse to meet George.
The Chief’s description was accurate: George was a great guy and a great lawyer. But when I finally met with him after his long trial day, something had got lost in the communications. What the Chief did not tell me—or didn’t understand—was that George was in the middle of trying—solo—a complex multiple-defendant drug case. What’s more, the case was taking longer than expected—much to Judge Gibson’s dismay—so the judge was holding them to long trial days, and had announced that he would start the Farmers Export trial as soon as the jury went out to deliberate in the drug trial.
“Dan, this sounds like an interesting case,” George said, “and I look forward to working with you! Once I’m up to speed, I’ll be happy to try to help you any way you tell me!” Help me? Help me? The ripples of panic I had felt talking with the Chief became a tidal wave. George, I said, I’m just here to help you. I’m two years out of law school, I’ve never tried a major case before, I have no idea what I’m doing. Both defense counsel have second chairs with more experience than me! This is crazy.
George was surprised, but far too seasoned a trial lawyer to let surprises worry him: “You’re a bright guy, you’ll do fine. I’ll help you when I can. Besides, we don’t have any choice, Judge Gibson doesn’t give continuances. We’re going to trial, do your best.” I called my bosses in Washington, still in a state of panic. But when I described the situation, they agreed with George: “We’re going to trial, do your best.” So I went to the little office in the Galveston courthouse reserved for prosecutors and started getting ready for trial. A couple days later, Judge Gibson interrupted the drug trial just long enough to hold a final pretrial conference in our case. When he looked at me and said, “Ready for trial?” I understood that there was only one response: “Your Honor, the government will be ready.” Just have to step up, and do our best.
Forms of Expression
Everything we do in a courtroom should mean something: how you speak, how you act, how you move, how you ask questions. None of this should be random; it should all have purpose and meaning. Giving an opening statement in the Farmers Export trial where 18 people were dead, questioning workers who were themselves questioning why so many friends died and they did not, questioning the coroner on how the manner of deaths showed the direction and force of the explosion, how do you hold yourself, express yourself, in these types of situations? It was a real challenge.
Layer on top of that one of the basic conflicts of a trial. The lawyer is trying the case and wants to be in control of the courtroom. But ultimately, the judge controls the courtroom, to whatever extent they see fit. Of course, judges vary widely. Some will largely sit back and let the lawyers try their case. Some exercise tight control, at every step. Some are in the middle. So a trial lawyer has to know their judge, and understand and adapt to different courtroom environments. I learned this lesson on the second day of trial.
I was questioning a witness on direct examination from the podium, and realized that I needed a document from my table. So I walked the couple steps to the table, picked up the document, and continued questioning the witness, with the document in one hand, and the other hand resting on the table. I had a nice rhythm going. Perhaps I could learn this trial thing after all, despite my panic?
“Bam!” Judge Gibson pounded his gavel so loudly it shocked everyone. “Sidebar!” he said angrily. And I knew it was over: my first big trial, and I had already screwed it up, somehow. I didn’t know how, but clearly the case I cared about was lost. I would be fired from the job I loved. Perhaps I could go back to bartending. All that and more went through my head, as I slowly walked up to the sidebar.
“Mr. Small,” Judge Gibson said sternly at sidebar, “I know you haven’t tried many cases in this district.” (Actually, I hadn’t tried many cases in any district.) “But you don’t lean in my courtroom! You will stand up straight, behind the podium!” “Yes, Your Honor,” I mumbled, and stood there frozen at sidebar. What happens next? Handcuffs? Directed verdict? Contempt citation? As I didn’t say or do anything else, we stood there awkwardly for a bit. Judge Gibson finally gave me an odd look and said, “That is all.” That is all? Really? No three words have ever given me greater joy. The case was not lost. I had survived the pounding of the gavel, lived to fight another day. I needed to learn from this traumatic experience.
And so I adapted. I learned to blend expression with control. At first, I kept both hands tightly gripping the podium, and mumbled my questions robotically. But then just one hand. Then no hands, moving for emphasis, just keeping behind the podium. And I realized that the podium still allowed for endless forms of expression: in tone, in volume, in pace, the works. Indeed, it added one more prop to the show. There were plenty more loud gavels during the month-long trial, but none related to the podium. Judge Gibson and I had reached common ground: I would respect his rule about staying behind the podium, and he would let me try my case.
Trials are a constant search for common ground: with the judge, the jury, the witness, even opposing counsel. Our job is to find the right balance. Two days into my first big trial, wise old Judge Gibson taught me that lesson, and I will be forever grateful.
Four Times More Explosive Than Coal Dust
My favorite quote about expert witnesses comes from the Kerstetter case, over 60 years ago: “Expert opinion . . . is only an ordinary guess in evening clothes.”1 If that’s true, we lawyers have to fit the clothes just right. We have to determine what our core themes are, and how our experts can help convey them. When it comes to experts, the lawyer remains the captain of the ship. This is not always easy: they are, after all, experts, and a good expert can do a lot to help to guide the ship. But we are the trial lawyer. It’s our case: we know what we want, what we need, and what’s going to happen. And we’re responsible if we don’t exercise that control.
Experts were a key part of the Farmers Export trial. But at the time, the science of grain dust was still evolving, and there weren’t that many real experts. To begin, I tried to read everything I could find on the subject. I wanted to be as expert as the experts, and I needed to understand how to present this to a jury.
I spent a good deal of time preparing my expert witness on the second point: presenting to a jury. I’m a big believer that one of the most important tools for preparing your case—any case—is to tell the story to nonlawyers: family, friends, strangers at a bar. And listen to their reactions and questions. That’s your jury—not fellow lawyers. Listen to them!
When I did this, one of the things I kept hearing was: “Grain dust? Huh? Explosive?” Our expert could say that grain dust was four times more explosive than coal dust, but the jury needed more. They needed to see and feel this strange transformation. It needed to be part of their basic understanding of the world, not just fancy words from some paid expert.
So I told my expert that before we got into all the science and details, we needed a basic demonstration. Even back then, pre-9/11, we couldn’t blow anything up in the courtroom, so we did it in the parking lot behind the courthouse, and videotaped it. My expert took one pile of grain dust and split it into two piles. He lit a blowtorch and put it on the first pile: not much happened, just a sizzle. Then he put the second pile into a clear plexiglass box he had built, with two additions: a foot pump to send a burst of air into the box, to stir up the pile, and a spark igniter. So he stepped on the pump, the grain dust was suspended in the air, he lit the spark, and POW! Loud dramatic explosion from a small pile of grain dust! We were all shocked. Now he could take the stand and explain how and why it was explosive, but the jury already understood and accepted the basic truth.
With almost any expert, think about what your core theme is (“four times more explosive than coal dust”), and be creative about simple demonstrations or other things you can do to help the jury truly accept and believe that core theme. Let them carry that with them throughout the trial. I’m confident that every juror had the surprise of that explosion front and center in their minds, throughout the trial.
Expert Witnesses: Know Your Case
The captain of the ship also has to prepare for stormy weather. But if you haven’t become as expert as your expert, how can you understand what’s coming, or prepare them for it? The defense also found a grain industry/grain dust expert—not as qualified as our expert, but very smooth. On direct examination, he gave defense counsel a surprisingly brief, but very smooth, presentation. But a little voice in the back of my head kept saying “too brief” and “too smooth.” What to do?
The late great Irving Younger’s “Ten Commandments of Cross Examination” are filled with warnings against “winging it” on cross: Don’t ask a question you don’t know the answer to. Don’t ask open questions. Don’t let the witness explain. Don’t ask the one question too many. I had heard his wonderful lecture.2 I knew the horror stories of lawyers far more experienced than me, who had violated the commandments. But there was that insistent voice in my head: “too smooth.”
Trials often come down to a tough call between following the rules and following your instincts. Most of the time, following the rules is the safer course. Maybe I was just too naive to follow the rules. Maybe I was just lucky. It certainly wasn’t experience or wisdom. So using the knowledge I had accumulated in my studies, I started lobbing questions at their expert: open questions, leading questions, all kinds of questions testing his knowledge.
The first couple questions were disastrous, and a wiser man would have stopped there: they just gave him the opportunity to repeat parts of his nice presentation from direct, which he did, almost word-for-word. But surprisingly, the little voice in my head didn’t say, “Sorry, I blew it. Sit down before this gets worse!” Instead, it said, “Listen! Use your ears! Just like I told you: too smooth!” So I threw out another question, and got another rewind of the direct exam presentation. And then it hit me: That’s all there was! This witness’s expertise was only an inch deep, and he had to put everything he knew into his smooth direct presentation. There was nothing behind it. No one who knew the subject matter on the other side had prepared him or questioned him, to see how he would do on cross-examination.
I went on for another hour or two, peppering him with questions: demanding details, support, explanations, backup, things a good expert would have killed me on. I had never cross-examined an expert witness before. What the heck did I know? But it seemed to be the right thing to do, and with this witness, it worked. Slowly but surely, everyone in the courtroom realized that they’d been conned: the smooth presentation was just a front, there was nothing behind the curtain. Through no particular skill of mine, the witness was pretty much destroyed. He left the stand and his name was never spoken again, even in the defense closing. And all because of that little voice. Listen, listen, listen: to your instincts, to the testimony, to what the jury is really hearing. Then follow the rules. Well, most of the time. You are a trial lawyer. Know your case. And if you know your case, believe in yourself.
Commit, Credit, Confront!
There are many ways to attack a witness’s credibility. Opportunity to observe: Was it too far or too dark for the witness to see? Bias: Does the witness have a prior history—good or bad—with one of the parties? Self-interest: Does the witness have an interest in the outcome of the case? Character: Has the witness been convicted of crimes, etc.? Contradictory evidence: Are there documents or other evidence that contradict the witness’s story? And lots more.
One of the classic challenges to a witness’s credibility is the prior inconsistent statement. Somewhere along the way, the witness has said something—in a statement, deposition, tape, wherever—that contradicts their testimony. One of the keys to successful witness preparation is making sure you have found any prior statements, and preparing the witness to deal with any inconsistencies. One of the keys to successful cross-examination is knowing how to effectively use the prior inconsistent statement. For that purpose, we look to the “three Cs.”
The three Cs for prior inconsistent statements are: Commit, Credit, Confront.
- Commit the witness to the current statement (“On direct exam, your story was that . . .”).
- Credit the prior statement (“You had time to prepare for deposition with your lawyer; you took an oath, just like you did here; you knew how important it was to tell the truth; you had a chance to review your testimony and submit any changes; etc.”).
- Confront with the contradiction (“So, in your story today, you said the light was green, but in your sworn deposition you said it was red!”).
In the Farmers Export grain elevator explosion trial, the defense started off claiming they had done nothing wrong. But as witness after witness talked about how dirty the elevator was, with piles of grain dust everywhere, and how management was pushing so hard to dump railcars faster that sparks were flying, they fell back to two other lines of defense: First, “Okay, but they’re not criminals—they didn’t intend to hurt anyone.” Second, “This is really just a dispute between labor and management.”
And to some extent, that’s how it appeared. The laborer witnesses talked about how bad things were, and how little management cared about safety. The management witnesses talked about how clean it was, and how safety was their highest priority. So, imagine defense counsel’s delight when they found a witness who bridged that gap. Billy, we’ll call him, had been a laborer at the time of the explosion, but had since been promoted to management, and supported management’s story all the way.
I don’t have the transcript or exhibits (the case was never appealed), so all this is from rough memory, but basically, Billy testified on direct that:
- Management was very conscientious.
- Cleaning crews were sweeping the elevator regularly.
- The elevator was so clean, you could eat off the floors.
- Safety was the highest priority.
- They were very careful in the rail dump.
He knew most of the 18 dead, and was sorry for their loss, but it was an accident.
On the night of the explosion, OSHA investigator Don Donnelly happened to be driving in Galveston and heard about the blast on his police scanner radio. He raced to the chaotic scene with the first responders, and immediately started interviewing witnesses. Don was a great investigator and a great guy. I think of him fondly, in the style of the old TV detective Columbo, played so well by Peter Falk: disheveled, rumpled, unassuming, but smart and effective. The kind of person that people opened up to easily, talked to openly, and then forgot.
That night, Don had in his car a pad of simple one-page interview forms. At the top, after the witness’s name, it said something like, “I voluntarily and willingly make this true statement.” The middle had space for Don to write up a brief statement. Then at the bottom, above the witness’s signature, it said: “I have carefully reviewed the above statement and it is true and accurate. Signed under pains and penalties of perjury.” Short and sweet.
So, you know where this is going, right? On that chaotic night of the explosion, Don had interviewed Billy, and had him sign a statement. And Billy had long since forgotten. I had actually considered calling Billy as a government witness (which would have required me to disclose his statement), but I was told that he had gone over to the Dark Side, so I didn’t call him. When I then saw his name on the defense witness list, I searched my soul, and more than a few law books, about whether I had to turn over his statement. But in a criminal case, if someone is a defense witness, the government is generally not obligated to turn over that witness’s statement, unless it is exculpatory—which this certainly was not.
So I didn’t turn it over. I had Don sit in the middle of the crowded courtroom before Billy appeared, so he wouldn’t stick out too much, kept the statement buried in my file, and waited for the cross-examination. Nervous? No, I was scared to death. Lawyers can go through a whole career without being handed a setup like this—handed through no work of my own. Here I was, two years out of law school, and scared that I didn’t know what I was doing, and would blow this opportunity, and with it, my case. All I could think of as I sat there waiting were those three words: Commit, Credit, Confront!
Again, no transcript or exhibits exist, but here’s my memory, in much condensed form:
A. Testified for company
i. Now part of management
ii. Met with company counsel before
B. Story today
i. Management was conscientious
ii. Safety was highest priority
iii. Cleaning crews swept grain elevator regularly
iv. Grain elevator was clean—you could eat off the floor
A. Remember night of explosion
i. Rescue workers, firefighters, investigators
B. Key part of investigation
i. Interviewing witnesses
ii. Important for witnesses to tell truth
C. Did you lie to investigator that night?
D. Would you lie to investigator that night?
E. OSHA investigator
i. Interviewed witnesses
ii. Asked witnesses to sign statement
iii. Have record of the truth
F. Recognize S.A. Donnelly? NO?
i. Spoke night of explosion
ii. Wrote down what you said
iii. Asked you to read it carefully
G. Exhibit 35—Recognize your signature? YES?
i. Oath like here
ii. Knew how important it was to tell the truth
A. Story for company vs. statement that night!
i. Management was conscientious vs. “All management cared about was making their quotas”
ii. Cleaning crews swept the elevator regularly vs. “Crews taken off cleaning to dump more railcars”
iii. Elevator was clean; you could eat off the floor vs. “Piles of grain dust everywhere”
iv. Safety was highest priority vs. “Competition between shifts to dump most railcars” and “Sparks flying as cars banged together”
It was an amazing experience. Billy was totally caught off guard, and totally flummoxed. By the end, if I had said, “And isn’t it true that the moon is made of green cheese?” he probably would have said, “Yes, Mr. Small, if that’s in my statement.” Defense counsel tried a couple random objections but could do nothing to stop the train wreck that their much-heralded bridge witness had turned into. And all of it not from any particular skill of mine, but from lessons learned: Commit, Credit, Confront.
The Value of Feedback
Trials are such great live drama, it amazes me that so often they go forward without an audience. Oh, sure, some celebrity trials are on TV, but those are often poor examples, and watching bits and pieces on TV is no match for watching the real thing live. I wish more people understood what they’re missing. And what a wasted opportunity for trial lawyers: to not receive feedback from the audience. What better way to learn?
When I moved back from Washington to Boston to join the U.S. Attorney’s Office Public Corruption Unit, there was a great group of about a dozen retired gentlemen who had discovered the federal courthouse as a source of endless fascination. They would gather early every morning in the courthouse cafeteria for breakfast (remember when cafeteria breakfasts were delicious and cheap?). There, they would review the court’s published daily docket for all the judges, see what looked interesting, split up among the different courtrooms, and go watch. At the lunch break, they would reconvene in the cafeteria (delicious and cheap lunch!) and compare notes on what they had seen in the different trials. Over time, they had become expert observers and critiquers of trial practice. I befriended them, and they became an enjoyable and invaluable resource. They would tell me stories about what was going right and wrong in other trials. But it was when I was in trial that they were most valuable. “How did I do?” I would ask. Nothing escaped them:
- “Mr. Small, Juror #6 doesn’t believe this witness; hit him hard.”
- “Mr. Small, maybe you should focus more on X than Y?”
- “Mr. Small, you need to do more to explain how this worked.”
- “Mr. Small, in your closing argument, be sure to focus on . . .”
There is no way to put a value on what I learned from these fine gentlemen, both for individual trials and generally as a developing trial lawyer.
But I already knew the value of feedback from experienced observers. I learned it in the Farmers Export trial. Think about a small courthouse: one judge, one clerk, one court reporter. When they get together, as they did regularly, for lunch or drinks or just during the many lulls in the normal day, what do they talk about? Okay, maybe sports, politics, fishing, whatever. But eventually, they talk about what they’ve been watching all day: trials. And so, over time, the three of them became a committee of expert trial critiquers, but often with no one else to provide the critique to! What a waste!
After a month of trial, no one expected the Farmers Export jury to come back with a verdict quickly. Yet there was nothing to do, nowhere to go. They could come back with a question or something at any moment. Nervous and bored, I wandered the halls of the small courthouse. At one point, I walked past the door to the small, one-room library and, much to my surprise, heard voices inside. In all my time in that courthouse, I had never seen or heard anyone else in the library. Curious, I opened the door.
Two years out of law school, certain basic principles were fresh in my brain. A big one was ex parte: a party should not have contact with the court without the other party present. So when I opened the door to the library, I was horrified to find the judge, clerk, and court reporter gathering around the old library table with a deck of cards and a bottle of amber liquid, passing the time. My law school instincts said “Run!” so I started to close the door. But as I did, Judge Gibson called out, “Mr. Small, come on in, pull up a chair!” Law school had also taught me that when a federal judge issues an order, you have to comply! So now, two basic law school teachings were in direct conflict. What to do? Which principle prevailed? Nothing in law school had prepared me for this. With great trepidation, I opened the door the rest of the way, went inside, and pulled up a chair.
What followed was nothing short of incredible. For the next four hours, this panel of expert trial-watchers walked through the entire month-long trial, step by step, and gave me feedback on virtually everything I had done. This was before we had ready access online to everyone’s background, so I’m not sure they fully appreciated how totally inexperienced I was, but they suspected: “We were worried about you at first, but you came on strong as the trial went on!”
Everything I had done came under scrutiny, with constructive ideas about how to do it better. The things I had done well (the defense expert, the cross of Billy) came in for praise, but they were unsparing in critiquing things I could improve (“let’s talk about your opening”). I had worked multiple jobs and gone into debt to go to law school, but the truth is, I learned more about trials in those four hours than I did in three years of law school. And those three gentlemen didn’t charge me a dime: I drank their amber liquid, and broke even at cards. And I will never forget those four hours around an old library table. What we do as trial lawyers is important, and challenging. We need to seek out—and value—feedback wherever it comes from. I owe debts of gratitude that I can never repay, whether to those 12 retired gentlemen in the Boston cafeteria, or to the library table committee in Galveston.
All I can do is try to pay it forward, as they did, as we all should, to other fledging trial lawyers, and hope that my advice helps.
How Do You Define Success?
We try cases to win. That’s clear. We are competitive by nature, and would have it no other way. But every case is different, and sometimes it’s hard not to wonder what it is we have really accomplished by winning. How do we define success? Did I really change anything today, or make a difference? Tough questions.
OSHA asked the DOJ to prosecute the Farmers Export case because they saw a problem they had been unable to fix, and hoped that we could make a difference. Fifty-four people had died in two explosions in five days. Something needed to change. Minds needed to change. Something dramatic had to get the grain industry’s attention. Maybe prosecuting these two individual managers criminally would help. I was sent down from Washington, D.C., to assist, and show the flag. Everyone understood that this was not an ordinary or routine case. There was more at stake.
At the beginning, the defense took the high road: It’s important to everyone that grain move from the farms to hungry people overseas, quickly and efficiently. It’s a challenging job, but these men did it well. Safety was a high priority, and no one ever thought something like this would happen. But much of the evidence painted a different picture: The grain elevator was a mess, piles of grain dust everywhere. They had taken the crews off sweeping and moved them to the rail dump, to help meet their corporate quotas for dumping railcars. To encourage this, management had set up a competition between the shifts, to see who could dump the most railcars, promising a pizza party for the winning shift. The crews were banging railcars together to move them faster, sparks were flying. There was no pizza offered for safety. It was a disaster waiting to happen, our expert said.
So the lawyers retreated to another line of defense: Okay, maybe they screwed up, maybe they should have done more. But they were not criminals, not muggers or rapists. They didn’t intend to kill anyone. Clearly, the law did not require us to prove that they intended to kill anyone—that would have been murder, a different issue. But views on white-collar crime had not developed as far then as they have in the years since. Today, most jurors would say, “So what?” and follow the law. Back then, the idea of businesspeople in suits and ties being criminals was still fairly unusual, and so “they’re not criminals” struck a chord with some jurors.
Throughout a month-long trial, the jury was generally very attentive, clearly upset about the deaths, but tough to read on the bigger issue. Some of the evidence was hard to hear: workers in tears about the deaths of their friends and coworkers, and angry that management hadn’t done more to prevent it; the coroner using the manner of deaths to show the force and direction of the explosion; investigators describing the chaos and devastation. And every night, I’d go back to my government rate hotel room, and wonder what the jury was thinking.
After the close of the evidence, closing arguments, and legal instructions from the judge, the jury went out to deliberate. It felt like forever—then, and now in my memory—but I think it was four days. Finally, it became clear that they could not reach a unanimous verdict. What we heard was that they were unanimous in agreeing that the two managers had done wrong. But three of the 11 could not make the next step, to call these nice respectable men “criminals.” So the jury was deadlocked, 8–3 for conviction. Judge Gibson had to call a mistrial.
So there it was: all that hard work, a difficult month of trial, and all we got was a hung jury. Winning is the goal of every trial, and by that measure, we had failed. Dejected, I wandered around the courthouse, spent some time in a local bar I had come to like, packed up my stuff, and reluctantly headed back to my office in Washington, D.C. Not an easy time.
But then a remarkable thing started to happen. When a jury is deadlocked, and the judge declares a mistrial because, without a unanimous verdict, the trial essentially cannot conclude, the government then generally has the option to retry the case. To start over and do it again. To make that tough decision, the two main questions are usually:
- What could we do differently, or better, in a second trial, that might lead to a different result?
- What would be the purpose of a retrial—what would we accomplish?
Sometimes, the answers are very clear, for example:
- Witness X screwed up badly. If we retry the case without him, using other witnesses instead, it would be much better.
- This is a serious violent criminal. We cannot let him get away with this. We have no choice.
The answers in the Farmers Export case were different. On the first question, the consensus was that, despite my inexperience, the evidence had largely come in as we wanted it, there were no glaring errors, and no major strategy changes that might lead to a different result. In short, no reason to believe that a retrial would go better, and it might even be tougher, since the defense now knew our whole case. All this was nice to hear, but it was on the second question that things turned in an extraordinary way.
From all kinds of sources—our investigator Don Donnelly, other OSHA investigators and administrators, people in the grain industry and elsewhere—we were told: hung jury or not, our message had been heard. No one saw a month-long criminal trial and an 8–3 vote for conviction as vindication for the two executives, or the rest of the industry. They saw it as a clear shot across the bow to the industry: Clean up your act. While I was bemoaning my “loss” (or at least failure to win), others were seeing it very differently. It took a while to understand.
So the DOJ, with OSHA’s agreement, decided not to retry the case. There was no reason to believe that a second trial would go significantly better, and more important, to the extent that part of our purpose was to send a message, to be a force for change, in that sense, we had “won.” And it worked. OSHA told us that grain elevators around the country started to change their practices, change their attitudes, and be a whole lot more responsive when OSHA walked in the door. And I don’t keep the statistics, so don’t sue me if there’s an outlier somewhere, but I was told that after 54 workers died in the two explosions in five days that terrible December, there was not another multiple-death explosion in a grain elevator for at least 10 years. Ten years!
Win or lose, succeed or fail. In every case, we need to think about what these words mean to us. What are we looking to accomplish? Sometimes, the definitions are easy, but don’t be too fast to judge. All I know is that the Farmers Export trial, one of my biggest “failures,” in the sense of not winning, will always be one of my proudest victories. Lessons learned.
1. Earl M. Kerstetter, Inc. v. Commonwealth, 171 A.2d 163, 173 (Pa. 1961).