"There simply wasn't much evidence," says Gerald Lenau who served as jury foreman in the landmark Rhode Island (RI) lead paint trial. "Why we decided that, yes, there was a public nuisance in RI and that three of the defendants had been a proximate cause of it was because of Judge Silverstein's instructions."
In a 45-minute interview this evening with Mr. Lenau, I learned how those six jurors came to the stunning verdict they delivered Wednesday, February 22nd, around noon in Court Room 11. That verdict convicted three of the defendants -- Sherwin-Williams, NL Industries, and Millennium Holdings -- of substantially contributing to a public nuisance in RI and called for abatement. Atlantic Richfield was acquitted.
Sixty-four years old, a resident of Providence, RI and an airport screener for US Homeland Security, Mr. Lenau said that after being deadlocked on the third day of deliberations, the group turned to the Judge's instructions. They stopped "putting our own interpretation on the law." They went through those instructions line by line. This is essentially what Riverside, RI juror Sheryl Costa had reported to PROVIDENCE JOURNAL writer Peter Lord, immediately after the verdict.
What the six jurors concluded was that, yes, there was the presence of a public nuisance. In court they had heard that about 30,000 children had been lead poisoned over a period of 10 years in just about every part of the state of RI. Since those children were poisoned in their own house where they should have been safe, yes, harm was being caused. Of course, he added, there are other toxic substances in the home but that didn't negate the real and possible harm caused by the lead paint.
What was also an influential factor was the vulnerability of the children: The victims were usually under the age of three, said Mr. Lenau. Another type of harm was the expense and liability that landlords had to shoulder because of the lead paint in their property.
This perception of lead paint as a harm in RI was built up mostly through the testimony of the medical experts, said Mr. Lenau. Unlike the two historians Professors Markowitz and Rosner who seemed to have a vendetta against the paint companies, the medical expert witnesses seemed to be concerned with the children's welfare. They also were talking from their hands-on experience with victims.
Moving on to Charge Number Two: Were any or all of the four defendants a proximate cause of the public nuisance? To address this second issue, Mr. Lenau again returned to the Judge's instructions. In those instructions, the Judge made it clear that there could be more than one proximate cause. He advised the jurors to "look at the whole picture."
Initially, said Mr. Lenau, he saw the cause as being lack of maintenance. Landlords hadn't taken care of their property. But when he and the other jurors took into account the Judge's instructions, then they agreed that one proximate cause was the paint itself.
Also, they took into consideration that the Judge said that negligence didn't have to be present and that the manufacture and sale of paint could have been legal at the time. A figure that stayed in their minds was that about 70 percent of the lead paint sold came from the defendants. The jurors also recalled that some of the defendants had owned lead mines.
It was the time frame which the jurors looked at when determining which of the defendants substantially contributed to the harm. They let Atlantic Richfield off the hook because its companies had only been involved with lead paint for about 10 years, from about 1936 through 1946. During those years sales of paint had declined significantly and much of that paint was used for the war effort.
Once the jurors decided yes on charges one and two, "it was easy" to decide that abatement was called for. The jurors, however, had no idea what the dollar figures involved could or would be. They were not allowed to follow the trial in the media so they had no notion if the number for abatement could be in the millions or billions of dollars.
To help guide them through all "the legalese," Mr. Lenau made charts. Those helped keep the jurors on track. Earlier in deliberations, reported Mr. Lenau, "people would bring their personal feelings in and not look enough at the evidence."
Would it have helped the defense if the four defendants had called witnesses? Not necessarily, said Mr. Lenau. Although some jurors were surprised when the defense rested without calling any witnesses, he wasn't. "There was so little evidence" presented by the state, he said, so he could understand that the defense didn't feel the need to refute it. However, what might have been persuasive, he added, would have been if the defense had called a few medical experts. The medical expertise presented during the trial was a big influence on the jury.
"Out-lawyered," is how Mr. Lenau describes the trial skills of the state versus the defense. "We were all impressed with the defense attorneys." It wasn't an issue that with the exception of John Tarantino, a local lawyer, that the defense was not RI-based. The state did make some points with the jurors through their passionate closing arguments. But, overall, the jurors did not give high marks to the state's legal skills. They found much of direct examination "redundant" and were bored. As for Fidelma Fitzpatrick's pregnancy, the two female jurors remarked on it but did not seem to be affected by it in their decision. In the post-verdict debriefings in the jury room by the lawyers, the jurors found out that the baby is due May 15th.
In that debriefing a defense lawyer asked Mr. Lenau would it have made any difference to him if he had known that a law firm had approached the RI attorney general about creating this case and being paid on contingency. And that there is a case in the RI Supreme Court with a lawsuit about that contingency agreement. Mr. Lenau stated that he still hasn't thought that one through yet. He would like to think that the motivation of the trial was to help the children. He plans to sort out this issue in his mind and learn more about it.
It's only now that Mr. Lenau realized that "there's nothing on the books" about public nuisance. The definition handed the jurors in court was "not in any statute." When the jury struggled with that definition and asked the court's help, the Judge refused further clarification. He instructed them to return to the definition he had already given them.
When I asked Mr. Lenau if this experience was a life-changing one, he said, not really. Yes, he took it very seriously and thought about it at night. But the trauma or intensity wasn't equal to other life-changing events such as the assassination of President John Kennedy. "That day, I went home, opened the door and my mother and sister were crying," recalled Mr. Lenau. And, no, he didn't feel as overwhelmed as I thought he appeared to be, especially the day the jury announced it was deadlocked.
He, his fellow jurors and some of the alternates are attending a clam bake this Saturday. He is going to ask his fellow jurors if they would agree to be interviewed by moi. Also, Judge Silverstein said he was going to take them out to dinner. All jurors were disappointed that they weren't able to keep their notebooks. Those notebooks were collected by the court. Neither were they permitted to hold onto the charts. The only memory they could take away was in the form of the jury instructions.
Mr. Lenau corrected my impression of him as a loner. He was frequently by himself during lunch hours and after court, he explained, because he did not want to open the door to any discussions of the trial. "I'm personable," he added. He came to carry his lunch from home in a plastic hot/cold plastic container because eating out got too expensive. And he hurried so fast on Main Street when court let out because his bus came at 4:35 PM. If he missed that one, he would have to wait another half hour.
Another impression proved wrong: Mr. Lenau was not shocked to have been selected foreman. On his jury form he had indicated years of supervisory experience. Also, he was older. He assumed that the role would go to him or the older middle-aged woman. In addition, he tended to pay attention to his appearance (sometimes he would wear a tie to court under a sweater) which he assumed made a positive impression on the judge.
Does he want to write a book on the RI lead paint trial, I asked him. He said he would have to think about it and discuss it with his wife Maggie. If he wants to put this experience on paper, I offered to hook him up with a publisher or agent. Modestly he said that he's a little taken aback by how many people are contacting him about the trial.
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