It had been two twisting, draining years since Cook County prosecutor Jay Magnuson first heard about an employee’s death at a firm called Film Recovery Systems Inc.
Magnuson knew the company had recovered silver at its plant near here by dipping used photographic film into huge vats filled with a cyanide solution that produces, as a byproduct, potentially fatal hydrogen cyanide gas. He knew that Stefan Golab, 59, had died of cyanide inhalation. He knew the company had not provided effective protective gear or equipment against cyanide fumes.
Early in the investigation, after discarding the idea that the death was an industrial accident, Magnuson thought he might charge Film Recovery President Steven J. O’Neil, Vice President Gerald Pett, plant manager Charles Kirschbaum and plant foreman Daniel Rodriguez with involuntary manslaughter. As the evidence emerged, Magnuson changed his mind: He decided the men had committed murder.
No corporate officers had ever been charged with such a crime, but the Illinois criminal code plainly said a person commits murder if he performs acts that he knows create a strong probability of death or great bodily harm. The warning labels put on the cyanide by its maker, E. I. du Pont de Nemours & Co., provided the knowledge, the prosecutor reasoned. The regular complaints from sick, vomiting workers provided the warning.
The trial began last April 15.
One by one, the prosecution brought to the witness stand paramedics and policemen, Golab’s sister-in-law and his friend, Roman Guzowski, plant laborers and secretaries, OSHA and county environmental officers, the coroner and the toxicologist.
In the early going, the defendants and their attorneys, headed by veteran defense lawyer Thomas Royce, appeared relatively unconcerned. They were convinced the charges had no basis in law. Photos of O’Neil and Kirschbaum entering the courthouse regularly showed the two beefy, mustachioed men smiling.
Like the prosecutor, Royce at first had looked at the case as an industrial accident. When the legal matters did get more troublesome, the problem had not been Golab’s death, but a lawsuit over 17 million pounds of contaminated film chips the company had stored at nine sites throughout the county.
Royce in those first months thought he would be dealing with environmental and OSHA violations. At worst, there would be a reckless conduct charge. Whatever came down, he had assumed, would be against the corporation, not individuals.
“We’ve defended 300 murders,” he said recently. “This certainly was not like any of the others. In all candor, this looked like an unsupported charge, unsupportable under traditional notions of criminal law. For murder, you must prove intent.”
Royce represented O’Neil, Rodriguez and the corporations; Elliott Samuels represented Kirschbaum, and Ronald D. Menaker represented Pett. Throughout the course of the trial, the defense team never accepted the basic concept of the charges. It was for this reason they had chosen to avoid the emotional vagaries of a jury in favor of arguing law before a judge.
When the prosecution rested its case on May 14, midway through the trial, the defense lawyers promptly filed a motion for a directed finding of not guilty. They took dead aim at the legal foundation of the prosecution’s case.
As expected, Menaker raised and recited the details of the Warner-Lambert case. In that case, a New York prosecutor won indictments against the Warner-Lambert Co. and four executives for criminally negligent homicide after six workers died in a 1976 explosion at a Long Island chewing gum factory. However, the state high court, the Court of Appeals, dismissed the indictment in 1981, ruling that no one could have foreseen the explosion.
‘The concept that I call corporate responsibility is applicable only to the civil courts . . . " Menaker said. “The reason this case is unique is because the very acts the prosecution is alleging are not affirmative acts. They are not alleging (Pett) did something like shoot a gun or throw a rock or swing a bat . . . When does a person’s failure to act subject him to potential criminal responsibility?”
Royce flatly argued that “there is no notion in Illinois of corporate responsibility. Corporate responsibility was the creature, I think, of either Nightline or 60 Minutes or the Chicago Tribune or Chicago Sun-Times. But corporate responsibility is not an established legal principle in the state of Illinois.”
Judge Ronald J. P. Banks required only 10 minutes of contemplation in his chambers before responding. He dismissed all charges against Pett, ruling that the prosecution had not made its case against him. He denied the motion for a directed finding against all the others. The trial would continue.
As the defense lawyers presented their case, several key arguments emerged as the backbone of their position.
The defendants spent much time around the vats, doing the same work and being exposed to the same dangers as Golab and the other workers, it was argued and testified to over and over. “If my client knows there is a lethal gas in the air that can kill him, do you think he would be there? Most reasonable men don’t try to hurt themselves,” Samuels said at one point.
The credibility of former workers’ testimony was attacked. Defense lawyers stressed that many Mexicans hid their illegal status and used phony Social Security cards. They also emphasized that many former workers are suing Film Recovery for damages in separate civil proceedings and so clearly would benefit from the defendants’ criminal convictions.
The defense brought out contradictions in testimony about working conditions. Where many workers said they had no safety gear except for dust masks and cloth gloves, the defense produced others who said they had rubber gloves, boots and aprons.
The defense argued that workers not only never quit because of plant conditions, but, in fact, regularly referred relatives for jobs.
The defense argued that the procedures followed at Film Recovery were similar to those at dozens of other silver recovery plants and that no workers before Golab had ever suffered serious injury. The company regularly tested the air for cyanide content and the vat solution for pH level, which indicates the scale of acids and alkalies. No government agency had ever put the company’s officials on notice that they were violating any law.
Experts for Defense
The defense presented its own medical and toxicological experts, who suggested Golab had died of a heart attack rather than cyanide poisoning.
The defendants flatly denied that they knew hydrogen cyanide permeated the plant’s air or that fumes from the vats were dangerous. O’Neil insisted he never knew of anyone getting sick at the plant; Kirschbaum said he saw workers vomit only four or five times; Rodriguez said he saw workers vomit five to ten times.
Finally, all three also said they were simply employees taking orders from other people on the day that Golab died.
“I didn’t know what cyanide was,” said Rodriguez. “All I understood was poison . . . Not to drink because it can kill.” He said he did not know it was dangerous to breathe the gas, but he acknowledged reading the Du Pont warning label many times. He also said he never was a foreman, only a worker. He issued orders many times “but because Charles told me to tell them.”
Kirschbaum said that when he went to work at Film Recovery in 1981, “I never changed any process. I never changed anything in that plant from what was done before I started there.”
No Special Equipment
Workers were never given equipment to shield them from inhaling fumes, he said, “because there was no gas in the plant, as far as I knew, as far as I believed . . . What I learned is to get a hydrogen cyanide gas, you have to mix it with acid . . . All we used was water.”
He acknowledged reading the warning label that indicates a weak alkali liberates poisonous gas but said he was not aware that water is a weak alkali.
“Then why in the world did you take the trouble to test the tanks for the pH each and every week?,” wondered prosecutor Thomas Tucker, Magnuson’s associate. “Because I was under the assumption that was what was needed for the process of the tanks . . .” Kirschbaum said. “I was just doing my job. I was doing what I was told to do.”
O’Neil, on the other hand, testified he was indeed aware that potentially fatal hydrogen cyanide gas would be released if the pH level in the tank fell below a certain level. That was why the pH level was checked each week. He never thought the air was dangerous. He considered installing hooded vents over the vats but chose not to do so.
O’Neil denied that he was in charge when Golab died. He testified that two months before, in December, 1982, BR MacKay & Sons had taken over all rights and assets of the plant as payment of the $800,000 debt owed the silver refining firm by Metallic Marketing.
In February, 1983, O’Neil said, he was simply an employee of BR MacKay, taking orders. “It was not my company at that time,” he said.
This particular defense position aroused a special vigor among the prosecutors, for they knew fixing individual accountability had always been one of the chief obstacles in going after corporate crime. “These are the captains of society, the best and brightest, and it’s always the same reaction--I didn’t know. It wasn’t me,” fumed Magnuson one afternoon in his office.
So the prosecutors elicited testimony from a secretary and bookkeeper that indicated they and everyone else still took orders from O’Neil when he was at the plant in 1983 and that O’Neil still drew payroll checks from Metallic Marketing.
Despite this helpful testimony, individual accountability still remained a murky issue during the questioning.
“Was anyone running the company on Feb. 10, 1983?” an exasperated Magnuson finally asked bookkeeper Debra Sadzeck.
“I don’t know who was actually running the company, no,” she answered.
“The company was just running itself?” Magnuson asked.
“Yes,” Sadzeck answered.
The defense, as is customary in courtrooms, had sought to cast doubts on the charges by introducing contradictions and alternative interpretations. The prosecutors had chosen not to respond to each parry, confident in the cumulative weight of their evidence.
On Monday, June 10, both sides delivered their closing arguments.
Royce chose to spend much of his time citing case after case in American judicial history in which criminal prosecutions against corporations and their officers had failed. He dwelt at length on Warner-Lambert.
Magnuson selected a different approach when it came time for the prosecution to speak.
He declined to cite any case law or precedents of any sort, still relying solely on the sections of Illinois’ criminal statutes that had formed the basis of the indictments.
“Your Honor, what you have heard for eight weeks may be a novel legal case, but it is an old story,” Magnuson said. “It is the story of the uneducated versus the educated. It is the story of the privileged versus the underprivileged. It is a story of rich versus poor. It is a story of those who want something out of life versus those who want everything out of life at any cost.”
Judge Banks, a former Cook County prosecutor, took four days to consider the eight-week-long trial. On Friday, June 14, he announced his decision.
Golab’s death was not accidental, but was, in fact, murder, he found, because conditions in the plant were “totally unsafe,” and the workers were not told of the dangers, although the defendants were aware of them. The corporations and individuals on trial, he ruled, were guilty on all charges.
The judge went out of his way to touch on the broader issues raised by the case.
“I also find that to state that a corporation cannot be convicted of a crime because it has no mind, and it cannot therefore have a mental state . . . is totally erroneous. It is my belief that the mind and mental state of a corporation is the mind and mental state of the directors, officers and high managerial personnel, because they act on behalf of the corporation, for both the benefit of the corporation and for themselves.”
The convicted men and their attorneys appeared stunned by the judge’s ruling. Family members in the courtroom broke into sobs. Kirschbaum pounded his forehead with his hand.
The prosecutors quickly ran out a back door. En route to their office, they called their superiors on the car phone to report the news and make plans to set up a press conference. Then they rode in silence for several minutes. My God, Magnuson thought to himself. The court just found those guys guilty of murder. They are being led away to jail.
At the sentencing hearing July 1, defense attorney Samuels could not restrain his bitterness. His comments, uncommonly frank and hostile for a lawyer addressing a judge in court, reflected the tensions this prosecution had evoked.
“The man who is standing before you about to be sentenced is a classic example of middle class America,” he told the judge, referring to Kirschbaum. “The story of his background is probably similar to the story of millions of other men and women in this country . . . who have attempted through their labors to provide their families with a decent home and a decent situation for them to grow up in this country.”
Samuels continued. He felt a “grave injustice” had occurred in the courtroom, and he was confident that “the errors of this court will be corrected” on the appellate level. He told the judge his decision was without foundation in fact or law and said a sentence of any length would be a deprivation of liberty without due process. He compared the proceedings to the Salem witch hunt trials.
“I cannot stoop to dignify these proceedings by recommending to your Honor what I believe an appropriate sentence would be,” he concluded. “It’s true, I suppose, that there are some narrow-minded, egotistical, publicity-seeking politicians who will rejoice in today’s events. But for me, your Honor, this is a very sad day in the history of American justice.”
Then it was Judge Banks’ turn. What he said provided strong affirmation of the reasoning that Magnuson employed in drawing up the indictment.
‘It’s Old Law’
“What I take into effect is the law as the law is written in this state,” the judge said. “If you’d all read the law . . . the section of the criminal code that this case is based on. It’s based on a section code where knowledge alone is sufficient to convict. It’s not new law. It’s old law. The mere fact that it’s now being brought in a case like this, maybe it should have been done a long time ago.”
The outcome of the Film Recovery case has triggered much speculation and disagreement among legal experts regarding the breadth of its implications.
Some said the case would sensitize and encourage more prosecutors to press criminal charges against corporate officers. But not everyone thought this was a good idea.
Defense attorney Royce called the ruling “extremely dangerous. If it stands, nobody is safe. It destroys the principles we live by. It could have a chilling effect.”
Norval Morris, criminal law professor at the University of Chicago, noted the rarity of the verdict and questioned whether it would be upheld by the appellate courts. He also suggested that a manslaughter conviction might have had a greater impact, since other corporations are more likely to identify with the possibility of facing that charge.
Alan Dershowitz, criminal law specialist at Harvard University, worried that the verdict might dilute the impact of the conventional murder charge. He told a reporter that the Film Recovery case “shows a need for a new category of crime. We should have one that specifically reflects our condemnation of this sort of behavior without necessarily assimilating it into the most heinous forms of murder.”
Magnuson himself is of several minds.
He is not sure whether appellate courts will agree that the state criminal code sections he relied on cover Film Recovery and related cases. At the same time, he talks of applying criminal prosecutions to other corporate matters usually handled in the civil arena, including product liability. If officers make a conscious decision to market a flawed product because of cost considerations, he said, that “gets pretty close to criminality.”
Harbors No Doubts
He harbors none of the doubts others express about calling Golab’s death a murder. But he suggests the debate may be pointless, for he does not expect a flood of similar verdicts.
He points out that the same obstacles that have always impeded such prosecutions still remained: proving individual culpability of corporate officials and summoning the manpower and money sufficient to combat a well-financed defense.
More than two years after he first heard the words Film Recovery mentioned in his office, Magnuson harbors no illusions that his courtroom victory will halt corporate wrongdoing.
“We would certainly apply this to other cases, but, practically, it’s much harder when you have a big corporation that hides documents during discovery and obscures who has real responsibility,” he said one day recently. “The longer the chain of command, the less likelihood that you are going to be able to successfully prosecute.”