Four and a half years of effort had come down to one day, Monday, May 14th — down to the closing argument of Karen Silkwood trial counsel Gerry Spence. When he finished, the $11.5 million lawsuit against the country's largest uranium producer would be turned over to the six-person federal jury in Oklahoma City.
Scores of volunteers had contributed to the Quixotic campaign to vindicate the late Karen Silkwood, a former lab technician at Kerr-McGee's local plutonium plant who was killed in a November 1974 car crash while on her way to deliver alleged evidence of safety violations to a union investigator. There were two young women (Sara Nelson and Kitty Tucker) who persuaded Congress to intervene in the case, three idealistic lawyers (Danny Sheehan, Arthur Angel and Jim Ikard) who took on a lawsuit without a fee and against the advice of friends, and two Catholic priests who tracked down witnesses in a dozen states. Several former nuclear workers testified in court despite skepticism from their neighbors. And anonymous others donated ten-dollar checks or spent an afternoon at a Xerox machine.
On Monday morning, federal marshals had to stand guard against an overflow crowd at the courthouse. The first opportunity to address the jury went to Spence, the Silkwood side's "hired gun" from Wyoming. Next came two attorneys for the Kerr-McGee Corporation with their rejoinder. Then it was Spence's turn again.
Spence, a big, earthy westerner with two decades of experience as a criminal prosecutor and personal-injury lawyer, had been initially reluctant to join what seemed "like a high-risk loser."
Now, he stepped to the jury box, his voice shrouded in emotion. "Throughout history there have been certain times when ordinary people have been given extraordinary power," he declared, leaning forward until his eyes locked with those of the nearest juror. "This could be one of those times. There may never be another trial like this. There may never be another judge who will allow it. There may never be a jury with this chance...."
The jurors stared back without expression. Spence rumbled on, then paused and looked up at the silver hands of a clock set into the tall walnut walls. It was now just past seven o'clock in the evening. There had been ten weeks of testimony, the longest civil trial in Oklahoman history, and eight hours of closing arguments.
After a short recess, Spence stood and spoke quietly to the jury. "I want to tell you a story," he said.
"There once was a smart-alecky boy who tried to trick a wise old man. He caught a tiny bird in his hands and brought it to the man. 'What do I have in my hands?' the boy asked innocently, letting the bird's face peek out.
"It's a bird, my son,' the old man replied.
"Tell me, old man, is it dead or alive?' If the man guessed 'dead,' the boy thought, he would let the bird fly free. If the man guessed 'alive,' the boy would crush it with his fingers.
"The old man smiled. 'My son, it's in your hands.'"
Spence sat down and the jurors filed out.
The six Oklahoman jurors were the first private citizens to sit in judgment of the nuclear-power industry since the "Atoms for Peace" program began twenty-five years ago. The list of decisions they faced was awesome. Do government radiation standards really protect workers and the public or are they, as the Silkwood side charged, a "meaningless numbers game"? Did Kerr-McGee operate a safe nuclear factory or was it "grossly and wantonly negligent"? Had Kerr-McGee defrauded the government by producing defective fuel rods? Was its security system so inadequate that forty pounds of plutonium, enough for four bombs, had been lost or stolen?
The implications for the nuclear industry were considerable. The accidental release of radiation from Pennsylvania's Three Mile Island reactor in late March (which triggered a motion by Kerr-McGee for a mistrial) had appalled the nation. Many neighbors of Three Mile Island were waiting for the verdict. If the jury decided against Kerr-McGee, some Pennsylvanians planned to use the Silkwood testimony in their own lawsuits.
People exposed to radiation in a half-dozen other states were also anticipating the trial's outcome. The possibility of a legal chain reaction clearly worried the nuclear industry. Representatives of the Atomic Industrial Forum, the industry's political arm, kept a courtroom vigil, and one of its high-priced legal trouble-shooters was used to shore up Kerr-McGee's defense.
The first effects of the decision would probably be felt in Denver, which was dusted with plutonium when fires broke out in 1957 and 1969 at the nearby Rocky Flats weapons factory. Hundreds of cancer deaths may have been related to the airborne contamination. Both fires had been routine police-blotter news. But Denver's residents were now showing signs of belated anger. On April 28th, nearly 15,000 protesters caravaned to a pasture near the factory to demand that it be closed. In Washington a week later, a crowd of 100,000 took the protest to the steps of Capitol Hill. Other rallies were being prepared for the summer. This week, however, the attention of the antinuclear movement was focused on Oklahoma City.
U.S. District Judge Frank G. Theis, who presided over the case, placed it in this context: "It's not really fair to say the nuclear industry is on trial here, but I think the jury can send the industry a message."
For the family of Karen Silkwood, however, something far more basic hung on the jury's deliberations. Since Silkwood's death, her credibility had been a matter of high-profile controversy. Kerr-McGee officials had variously described her as a union zealot, a kook, a patron of liberal parties, a dope smoker and a nymphomaniac.
Like the six jurors, Karen Silkwood had come from ordinary stock and had no credentials as a crusader. Her father was a house painter, her mother a bank teller; she was a twenty-eight-year-old divorced mother of three with an average-paying job. But an intense posthumous struggle sprang up around her because she was the first American to die while trying to raise an alarm about the dangers of nuclear power.
In late September of 1974, Silkwood agreed to become a spy for her union, the Oil, Chemical and Atomic Workers International (OCAW), attempting to collect evidence of unsafe and illegal practices at the plant. After a month, she told the OCAW she had a manila folder of documents, and arrangements were made to deliver it to a union official and a reporter from the New York Times. A week before the scheduled rendezvous, however, Silkwood and her apartment were mysteriously contaminated with a microscopic amount of plutonium, probably the most toxic substance known. She was briefly hospitalized. On the day after her release, Silkwood's car skidded off the road and smashed into a culvert wing wall; the manila folder she had been carrying with her was never found.
The FBI, the Nuclear Regulatory Commission and Congress investigated, but Silkwood's contamination and the car crash remained unresolved. Left with no other recourse, Silkwood's family filed suit in November 1976, the day before the statute of limitations expired. Judge Theis subsequently dismissed the part of the suit that involved alleged violations of Silkwood's civil rights, including her right to freely travel on a highway. (The ruling is currently being appealed.) But over Kerr-McGee protests, Theis did order a trial to determine responsibility for her contamination.
At first, Kerr-McGee disclaimed any connection to the plutonium, but an isotopic analysis, which matches up neutrons and electrons like ridges in fingerprints, traced the material to Lot 29 in the company's inventory. Kerr-McGee subsequently began promoting a complicated theory that blamed Silkwood for her own contamination.
The plutonium was discovered in her suburban Oklahoma City apartment on November 7th, after she reported for work with unexplained radioactivity on her hands and face. Radiation inspectors, dressed in protective "moon suits," surveyed her home and found most of the contamination in the bathroom, bedroom and on a package of bologna in the refrigerator.
Kerr-McGee tried to popularize a scenario in which Silkwood smuggled the plutonium out of the plant inside her vagina. FBI agent Larry Olson added his own invention: that the bologna had been contaminated because Silkwood used it as a dildo. Olson had to abandon that notion when he learned the bologna involved was in slices. Even so, the self-contamination theory gained wide acceptance.
Bill Paul, Kerr-McGee's gray-suited, puritanical chief counsel, claimed Silkwood stole the nuclear material to "spike" her urine kits and embarrass her employer. (Workers were regularly asked to submit urine and feces samples in plastic containers so the company could monitor their health and detect any accidental exposure to plutonium.)
According to Paul, Silkwood had set the bologna package on the back of her commode while handling one of the plastic urine bottles on the morning of November 7th. Some must have spilled on her hands, he said, and the radioactivity was transferred to the bologna when she returned it to the refrigerator.
"Bill Paul sounds like he knows what he's talking about," said Silkwood lawyer Danny Sheehan, "until you take a closer look at the evidence." Sheehan's examination disclosed that the bologna package was covered with many times more contamination than the outside of the urine kit or any other spot in the apartment, suggesting the original source was the bologna, not the kit. Unhappily for Kerr-McGee, its own witnesses had to concede the point.
The other major flaw in Paul's argument was the uncontested fact that Silkwood's hands, nose and insides had also been contaminated on November 5th and 6th, prior to the urine spill. The Silkwood side produced testimony that she had eaten a bologna sandwich on November 5th and used the refrigerator again the next day. "From the available evidence it would appear that one of Kerr-McGee's dirty tricksters got into her apartment and put the plutonium on her bologna," said Sheehan. "That's what makes the most sense from looking at all the facts."
Because this evidence was entirely circumstantial, however, most of the testimony focused on motive. Which side had the most to gain from the incident?
In Kerr-McGee's view, Silkwood never had a manila folder of documents because there was no wrongdoing at the plant to document. "She was flunking out in her mission," Paul shouted during his closing argument. "The New York Times reporter was coming and she had nothing to give him, nothing to support a front-page story." As a result, he contended, Silkwood panicked and began infecting her urine kits.
The crux of the case against Kerr-McGee was two weeks of testimony demonstrating that the company had serious cause to fear Silkwood's sleuthing. Dr. Karl Morgan, recognized as the father of health physics for his role in establishing that profession as well as the nuclear safety code, gave the plant an F rating. Even a Kerr-McGee witness, James Keppler, the Nuclear Regulatory Commission's regional director, could only award a C.
"I guess that averages out to a D," Spence quipped solemnly in his final argument. "It wasn't Karen Silkwood who was flunking; it was Kerr-McGee."
At 10:30 Friday morning, May 18th, the fourth day of deliberations, the jurors returned to the green leather chairs they had occupied for ten weeks. About 200 spectators were jammed in the hushed room; on the right side sat Kerr-McGee's smartly dressed partisans, on the left the eclectic Silkwood supporters.
A bailiff took a sealed envelope from the jury foreman and handed it to Judge Theis. He leafed through the three-page verdict form, reading it to himself. The only noise came from a spring thunderstorm, which shook the limestone building with an eerie suddenness. "It feels like Judgment Day," a reporter wrote in her notebook.
Finally, the court clerk accepted the verdict and, following tradition, broke the silence by announcing the jury's decision to award $500,000 for Silkwood's injuries and $10 million in punitive damages for the way Kerr-McGee ran its plant. The jury had rejected Kerr-McGee's arguments on every major issue — the government standards, the company's safety and security systems, Silkwood's motives. The $10 million was the stiffest penalty a trial court had ever assessed a U.S. corporation.
When the clerk was finished, an incredulous Bill Paul leaped up and demanded that each juror be individually polled. The courtroom gaze shifted back to the jury's three men and three women — a retired grade-school teacher, a housewife, a structural engineer, a phone-company supervisor, a police-department secretary and a public-utility foreman.
Each looked at the judge and, in strong, ringing tones, reaffirmed the landmark decision. Then, as the jurors filed out for the last time, the left side of the room erupted into applause and cheers.
Minutes later, out on the rain-slicked sidewalk, television cameras and microphones surrounded the Silkwood team. Someone pushed Merle Silkwood, Karen's shy, reticent mother, into the center of attention. She was trembling, and tears flooded her eyes. "I hope that this finally clears Karen's name," she said softly. "Karen was a good girl, she was just trying to help those people at the plant."
For most members of the Silkwood team, the campaign is not over. They still expect to answer the case's most haunting mystery: was Karen Silkwood murdered, and if so, by whom?
A high-ranking Justice Department official, who reviewed the evidence, has said privately, "I don't think her death was an accident"; a lobbying effort began in June to have a special federal prosecutor reopen the case. But the Silkwood family, after suffering through the disappointment of previous official investigations, remains convinced the best hope lies in a second civil trial.
The family's lawyers are currently appealing Judge Theis' decision to sever the civil-rights issues from the recent litigation in Oklahoma City — issues that would explore possible liability for her death. At dispute is whether the civil-rights act of 1871 protects union members like Silkwood from nongovernmental conspiracies. That decision is now up to the United States Court of Appeals for the Tenth Circuit in Denver, which will reconvene in September, and the case may ultimately go to the U.S. Supreme Court.
During the recent trial, the Silkwood lawyers had hoped to disclose what happened to Silkwood's missing documents. They wanted to call a local policeman who, they said, saw the papers scattered in the mud at the accident scene, then they planned to put Kerr-McGee official Roy King under oath. In an earlier deposition, Sheehan had intimidated King into a startling confession. A few hours after the accident, King admitted, a highway patrolman had phoned and told him, "There's a lot of things in her car that have Kerr-McGee's identification insignia on them. I would like for you to join with me tomorrow and we will go down [to the garage] and get those."
The next morning, according to King's deposition, the patrolman informed him, "Somebody has got those [papers], so there's no need in us going down there to pick them up." According to the owner of the garage where Silkwood's car had been towed, the only people to visit the wreck the night of the accident were from the police, the government and Kerr-McGee.
"I understand what you're trying to do," the judge told the Silkwood team during a private session in chambers. "And I don't like it." Such testimony was highly inflammatory, he said; it came too close to implicating Kerr-McGee in Silkwood's death — and he had already severed that from the lawsuit. Theis ruled the Silkwood side's proposed denouement inadmissible.
Testimony in the trial revealed that company officials knew about Silkwood's special union assignment prior to her death, even though it was supposed to be a secret. "I think we already have enough evidence to show that the reason the secret got out was because someone was spying on her," said Danny Sheehan, who, along with private detective Bill Taylor, has been in charge of the family investigation.
Before Judge Theis' ruling cut off that investigation last fall, Sheehan and Taylor turned up a circumstantial pattern indicating Silkwood may have been under surveillance. Steve Campbell, an Oklahoma City photographer, said in a deposition that he befriended Silkwood and her boyfriend Drew Stephens shortly before her death. He admitted he took pictures of notebooks and other personal items at Stephens' house and then surreptitiously sold the film to Kerr-McGee's security chief, James Reading. Robert Byler, a part-time Oklahoma City police photographer who visited the house with Campbell, also said he notified his superiors that he'd seen marijuana paraphernalia there.
According to Sheehan and Taylor, the police intelligence squad subsequently placed a tap on Stephens' phone, either as a result of Byler's report or at the request of Reading, who headed the squad before he joined Kerr-McGee. Sheehan and Taylor have established that the Oklahoma City police routinely engaged in wiretapping without a court order, and they have obtained an affidavit from a congressional investigator, who says an FBI operative told him she saw transcripts of Silkwood's phone conversations.
The final step, if possible, would be to link the alleged surveillance plot to Silkwood's death. Sheehan, however, has come to suspect that evidence may go well beyond that. "The Silkwood case may be only the tip of a huge network that's been set up to stop nuclear dissidents around the country," said Sheehan. "That's where I think this case will lead us."
If it does, Bill Silkwood said he wouldn't be surprised. "Nothing surprises me anymore," Karen's father explained. "But the thing that's still the most important to me and to Karen's mother is that we find out who killed our daughter."