"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?