Stefan Golab had his last breakfast–a glass of warm boiled milk–in the darkness before dawn, Thursday, February 10, 1983. Then he rode to work with his friend Roman Gusowski, from Wicker Park, out to a factory in Elk Grove Village. Golab had been working there since just after Christmas, reclaiming silver from used photographic film at Film Recovery Systems.
He was 59, and he had been a steel construction worker back in Poland (where his wife and son remained), so hard work was nothing new. Something bout this plant, though, was giving him headaches and making him throw up. Now he hoped the milk would help settle his stomach. Six days before, he had brought a translator to help hi ask Boss Charlie for a transfer to a different job, buts far nothing had come of it.
Golab had probably seen the skull and cross bones on the barrels of cyanide used in the factory, as well as the signs on the wall–“Poison/Veneno.” but even if he had been able to read English or Spanish, the signs wouldn’t have told him much. and in Poland the skull and cross bones stand for “high voltage.”
Two and a half hours into their shift, Golab and Gusowski were working over a 1,000-gallon tank filled with water, sodium cyanide, and ground-up film. As Golab was beginning to disconnect a pump, he turned pale and began feeling faint. He leaned against a post. Gusowski shouted to Golab to go outside–that was what all the workers did when the yellowish haze indoors got to be too much for them.
Instead, Golab stumbled into the lunchroom and collapsed on a chair. Soon he began to tremble and foam at the mouth, and by the time other workers had carried him out to the parking lot and paramedics had arrived, his pulse was gone for good. Those on the scene guessed he’d had a heart attack. But the Cook County medical examiner soon discovered that his blood contained a lethal concentration of cyanide.
That same day, Steven O’Neil, president of Film Recovery Systems and the man in charge at the plant, was at New York’s LaGuardia Airport arranging a deal to buy more used film for silver processing. He didn’t know it yet, but a chain of events had begun that would lead to his being tried for the murder of Stefan Golab.
The first trial of corporate executives for workplace murder in U.S. history was held in circuit court judge Ronald J.P. Banks’s Maywood courtroom during April, May, and June of 1985. The defense insisted that Golab had died of a heart attack, that the company had ample safety equipment on hand, that it had never been cited for any Occupational Safety and Health Administration violations until after Golab’s death (true), and that the defendant executives spent so much time in the plant that if they were indeed murderers they must also have been trying to commit suicide.
But after eight weeks and 61 witnesses, an angry and appalled Judge Banks found that the top bosses of Film Recovery Systems and its parent corporation, Metallic Marketing Systems, had indeed exposed Golab and other workers to “totally unsafe” working conditions without fair warning, training, or safeguards. Banks found O’Neil, plant manager Charles “Boss Charlie” Kirschbaum, and foreman Daniel Rodriguez guilty of murder and reckless conduct and the corporations guilty of reckless conduct. FRS vice president Gerald Pett was acquitted. (FRS vice president Michael Mackay, a prominent Mormon businessman in Salt Lake City who partly owned both corporations, was sheltered from trial by the governor of Utah, who three times denied Illinois governor James Thompson’s request that he be extradited.)
“This is not the case of someone taking a gun and placing it to the head of a victim and shooting him,” the judge explained at sentencing, July 1, 1985. “What we have here is the kind of case where you take a bomb and you put it in an airplane, and you turn around and runaway somewhere, and a time bomb is ticking off and ticking off, and . . . all of a sudden, on February 10, 1983,the time bomb went off, and Stefan Golab is dead.” He sentenced each of the live defendants to serve 25 years in prison and pay $10,095 in fines.
Now it looks like they will have to be tried all over again. This January the Illinois First District appellate court reversed Judge Banks–on the grounds that O’Neil and company could not have been both intentionally murderous and reckless–and sent the case back to the circuit court. when the Illinois supreme court declined to hear the prosecution’s appeal, State’s Attorney Cecil Partee pledged to see the case retried.
The retrial (probably late this summer or fall) could be quite a scrap. (since federal extradition law has changed, Mackay may join the defendants this time.) From day one, when Richard M. Daley, state’s attorney at the time, announced the indictments and called FRS “a huge gas chamber,” the defendants have stoutly maintained that no crime was even committed. Feelings ran so high that defense attorney Elliot M. Samuels leveled an unusually bitter attack on Judge Banks in court before sentencing, describing Banks’s decision to his face as a “miscarriage of justice” contrary to both the law and the facts, like the Salem witch trials. “I cannot stoop to dignify these proceeding by recommending to your honor what I believe an appropriate sentence would be.”
Those who back the prosecution, on the other hand, see the case as more like an emancipation proclamation–one that had to be issued by a local prosecutor and judge because the federal government was in the middle of an eight-year Reaganite nap. They acknowledge that few such cases will ever be brought (if only because state’s attorneys already have plenty to do and not enough to do it with). But they argue that it will take only a few cases to proclaim the end of what some sardonically refer to as the ’employers’ discount rule,” whereby you’re more severely punished for killing a stranger than killing your own employee.
In some ways Film Recovery Systems is not the best starting point for those anxious to legally domesticate the rogue elephant, the corporation. FRS and the parent MMS–both now defunct–were relatively small (no more than 80 workers in two adjacent buildings on Greenleaf.) Their environmental record was astonishingly bad even for the 1980s. State taxpayers have had to fork over $4 million to collect and detoxify some 15 million pounds of spent film chips the companies left in trailers around Cook County and in a Lee county warehouse. The chips still languish, awaiting reprocessing, in down state Canton. and the firms’ operations did not always have, shall we way, the flavor of permanence. Shortly after Golab’s death, a company bookkeeper returned from vacation to find that many records had been abruptly shipped to Florida. And on October 15, 1983, cook county circuit court judge Albert Green held FRS and MMS in contempt for failing to produce financial records. Corporate attorney Thomas Royce told the Tribune’s Ray Gibson at the time that officials couldn’t find some records and didn’t want to turn over others; he would not tell Gibson where either the records or the officials were.
These peculiarities may lessen the case’s value as a precedent, even assuming that the second trial reaches the same result as the first. But the immense publicity the case garnered, including air time on 60 Minutes, has forced business, government, and a surprising–if still small–number of local prosecutors to take job safety more seriously than before.
Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce, doubts that the case has made much difference in the workaday world. “Most companies are complying with OSHA, and they were before. A few bad actors are still out there, but they may not have even heard of Film Recovery.”
But there is evidence that plenty of in-between companies are hedging their bets in favor of safety. Crain’s Chicago Business in 1986 quoted the chairman of the Chemical Industries Council of Illinois: “If we see something that needs to be corrected, it’s a whole lot easier now to get capital funds.”
Jospeh Kinney, executive director of the National Safe Workplace Institute on South Michigan, agrees. “Sure, it’s easier to get improvements now,” he says, “because the bosses are scared. I tell the plant managers and safety directors, ‘Be goddamn sure you’re documenting everything, so we’ll put the right guys in jail.’ They’re writing a lot of fucking memos. Some are even calling me for advice on how to write them.”
Photographic film is essentially a sandwich of plastic, animal fat, and silver. Metallic Marketing Systems and Film Recovery Systems were in the recycling business, taking the sandwich apart in order to “mine” the precious metal inside. In the factory, workers would chop the film into small chips and bathe these in a sodium cyanide solution. The silver would leave the film and combine with cyanide, from which it could be separated electrically and retrieved. For every hundred pounds of X-ray film, said O’Neil at his trial, they could recover a pound and a half of silver. The usual deal was that whoever sold them the film got back 18 ounces of silver per 100 pounds sold, and the reprocessor got to keep six ounces. Such an operation could break even as long as silver sold for at least $8 an ounce.
Cyanide, the chemical middleman in the process, is a dangerous poison. Eaten, inhaled, or touched, it displays a wonderful affinity for making your cells unable to take up oxygen.
Steven O’Neil left college in 1974 to work in the silver-reclamation business. He first came to Chicago for a time in 1977 to buy and sell film for reprocessing. The company he worked for, Metallic Marketing systems, had an office on the far northwest side at Touhy and Harlem. O’Neil moved to Phoenix, but late in 1978, when Metallic Marketing obtained some reclamation equipment and cash in a court settlement, he returned to the area and set up the company’s first factory in Wheeling.
He was going through a divorce then, and his possessions consisted of a car, the clothes on a rack over its backseat, and $2,000 cash. For four months he slept in the office, used his car as a closet, and worked all hours getting the three or four tanks in the plant started. A young man on the way up, he took a 10 percent share of the fledgling company in lieu of salary.
In the stagflationary late 70s, O’Neil’s gamble looked good. Silver–quoted at a little over $5 an ounce in the spring of 1990–was by late 1979 rocketing speculatively up toward $50 an ounce. This was a windfall for some, a valuable hedge against inflation for others. “Actual lines were forming outside the facility,” recalled O’Neil at his trial. “People were attempting to liquidate silver items that they held for years . . . from little old ladies with heirlooms to large producers of X-ray film” (At some point Cook County Hospital got into line; in 1982 the county made about $90,000 selling its used X-ray film to MMS.)
Even though Metallic Marketing mushroomed in size to 32 tanks, the silver boom presented it with a nearly insurmountable opportunity. The metal was now so valuable that the company couldn’t raise enough cash to buy the film it needed to reprocess! One solution was to simply reprocess film “on a tolling basis”–returning all the silver to the customer for a set fee per pound.
This tactic led to something better. One of O’Neil’s new customers, Alvin Tolin, introduced him to Michael MacKay at the November 1979 Chicago meeting of the Radiological Society of North America. MacKay’s firm, the family-owned silver refiners B.R. MacKay and Sons, had the cash O’Neil needed. Tolin and MacKay bought Metallic Marketing Systems for $275,000 plus half of a new corporation to be started by O’Neil and a partner–Film Recovery Systems. To house this expanded enterprise, FRS rented a nondescript brick warehouse at 1855 Greenleaf in Elk Grove Village, a little over a mile west of O’Hare Field. As the 1980s dawned, O’Neil was moving from the office couch into the fast lane. The 25-year-old entrepreneur was president of both firms and his combined salary would soon reach $120,000 a year.
Film Recovery’s use of cyanide was no secret from the authorities; the new firm had to pass fire and police and Metropolitan Sanitary District and insurance inspections. (The Cook County Department of Environmental control never inspected its film processing, apparently because the company did not register properly with the department; and no one from OSHA ever set foot inside the plant until after Golab’s death.) But even some of the firm’s passing grades had serious qualifications attached. In mid-1981, when there were 60 cyanide tanks and an equal number of plating tanks at 1855 Greenleaf, an inspector for Home Insurance found the odor in the building overwhelming, the ventilation poor, the air testing equipment inaccurate, and the employee face masks not a type approved by the National Institute of Occupational Safety and Health (NIOSH). “It is my personal opinion,” the inspector wrote, “that due to the expansion of their operations they have outgrown this present facility, which has resulted in this increase of contaminants within the air.”
The following year, O’Neil added ten more tanks and rented the building next door–for offices and storage. The white-collar people moved out; the tanks stayed put, all 70 of them.
As did the men (no women) who worked over them. In the earliest days, O’Neil had done every job in the plant; but as the business grew, he hired other people chip the film, fill and empty the tanks, move the spent film chips, and scrape silver off the terminal plates. He traveled overseas to Germany, Switzerland, England, France) as well as around the U.S., and was often gone three weeks out of four.
The men who worked in the heart of the plant were international travelers too, but of a different sort: most were illegal Mexican immigrants, along with a few Polish workers. Few in either group knew much English; in fact, the 1985 trial was much delayed by the need for translation. They earned $3.50 to $4.50 an hour, and many of them reacted to the air as the insurance inspector had. But they had no office to go back to.
What was it like to work at Film Recovery? Under oath at the trial, the Polish and Mexican men who spent their time among the cyanide vats told a very different tale than did the managers and the Anglo males who worked primarily in chipping, maintenance, receiving, or sales.
The air in the plant was bad, said the workers (although it was not always clear whether they had in mind the smell of animal fat, of ammonia, hydrogen cyanide, or some combination thereof). They had dizzy spells and headaches ever day, and often had to go outside to get fresh air and–every two or three days–to vomit. Juan Fuentes said he usually didn’t bother to eat lunch because his food tasted like the air smelled: “It wouldn’t do any good, because you would immediately throw it up.”
None of them knew that the “white powder” they were working with was cyanide or that it could be released into the air as hydrogen cyanide. Most thought the sign “poison” meant that they shouldn’t eat or drink the powder. Their protective equipment was limited. Antonio Roman testified that there were no goggles, and not enough rubber gloves to go around. When he asked for boots–the cyanide solution often boiled over and left puddles on the floor–he was told the company didn’t have his size. When workers complained, Rodriguez or Kirschbaum told them to go outdoors for a few minutes. Roman would sometimes rest in Kirschbaum’s air-conditioned, glass-enclosed upstairs office.
The workers had no safety training–more like the opposite: both Antonio Roman and Lorenzo Manzano said that one day Rodriguez game them plastic masks with filters, covering the whole face (unlike the small paper dust masks the workers usually had), because inspectors were coming. The improved masks vanished as soon as the inspectors did.
On the other hand, the plant was not so infernal that it kept these men from continuing to work there or from referring their friends and relatives. The company reportedly never had to advertise for help. (Of course, jobs of any kind for illegal aliens aren’t that plentiful.) And it must be observed that once O’Neil and company were indicted, the Mexicans’ status as witnesses in a murder case enabled them to stay in this country, and might arguably have made them more than usually anxious to please the prosecutors. Furthermore, by trial time more than two dozen workers had filed personal-injury suits against the business, and thus it was in their own interests to make conditions sound as bad as possible. (There were two suits filed by groups of workers, both recently settled out of court. All the workers got something, and by far the largest sum, $337,500, went to Golab’s family in Poland.)
From the managers came a rather different view. They said they heard few complaints and rarely saw anyone get sick or throw up. The only reason maintenance an Gary Gwynn knew of for workers to go outside was to go to the bathroom. Management tested the air for cyanide and the tanks for pH, to make sure it remained high enough to prevent the discharge of hydrogen cyanide. The plant had plenty of gloves, boot, hard hats, aprons, eye wash stations, and other safety devices (nothing for gas because Kirschbaum claimed he didn’t know there could be any). The real problem was getting the employees to use the safety items.
“They wore them when you told them to wear them,” griped Kirschbaum on the witness stand. “It was an ongoing problem. When I would walk around to the various stations, some people would have them on, and some wouldn’t. I’d tell them to get it and put it on. If I went somewhere else, it would be taken off. If was a serious problem. We just kept pushing and pushing. They didn’t like the gloves. We fought with them on the gloves. We fought with them on the hard hats. It was very hard. I fired people because they wouldn’t wear the stuff.”
But this recollection didn’t hang very well with Kirschbaum’s claim that he had spent lots of time in the plant, doing “every job these guys ever did,” with no ill effects. Prosecutor Thomas Tucker: “You testified on direct examination that you went into that plant on a regular basis, you spent four to six hours a day in that plant, and that at other times, eight to twelve hours a day in that plant, and you never wore any equipment at all.
“What kind of an example were you, sir?”
Kirschbaum: “I was not doing the jobs they were doing.”
The two sides might disagree because they had differing sensitivities to cyanide in the air or water, or because their memories had become vague. Fortunately the court also had the testimony outsiders–and what they saw was decisively similar to what the workers saw.
On two days in 1982, first-aid salesperson Kathy Annoreno found an overpowering smell (she had to leave after ten minutes), a dirty and nearly empty first-aid cabinet, and workers wearing T-shirts and no masks. Her colleague Mary Delores Bondmass, on two visits early in 1983, found the plant’s atmosphere was dark and hazy and had “a very strong ammonia-type smell as if you smelled your household cleaner directly out of the bottle.” she saw one person wearing a mask and no one wearing gloves, and, like Annoreno before her, found no executive interested in CPR classes or first-aid training. The company didn’t even have emergency phone numbers of basic medical information on file for its employees–until bookkeeper Debra Sadzeck took the initiative to gather it after Golab’s death.
On February 10, Elk Grove Village police officer Kenneth Kvidera, called to 1855 Greenleaf because of Golab’s death, saw a yellowish orange haze inside and gagged on a strong, foul odor. His colleague Kenneth Krzywicki had to leave because his eyes were tearing and his throat burning and he couldn’t breathe. After a rest, he went inside again for a minute, long enough to see two or three workers near the vats wearing short-sleeved shirts, paper masks, and no other safety equipment–then he couldn’t breathe again and left.
Most importantly, when OSHA inspector Michael Selway visited the plant 12 days after Golab’s death, he found smoky air that tested at 15 parts per million hydrogen cyanide (50 percent above the OSHA standard); cloth gloves, no rubber ones; no protective eye gear or emergency eyewash stations or deluge showers; no respirators; no training; no amyl nitrite antidote for cyanide poisoning–he’d issue a total 17 citations altogether. They were upheld in a later administrative hearing, but OSHA reduced the company’s total fine from $4,855 to $2,425.
If the workers’ account of plant conditions is the more credible, then so are their reports of several incidents that bolster the state’s charges. Both FRS accountant Kathy Erpito and truck driver Allen Drewes reported that Kirschbaum told them to use the word “chemical” and not “cyanide.” O’Neil told Michael Selway that he, O’Neil, did not want to overemphasize the “chemical’s” hazards because that might scare away employees. (O’Neil’s version of this conversation is that they were talking about silver, and that he’d said he didn’t want the workers to know what it was for fear they might steal some.) Antonio Roman said the Rodriguez and Kirschbaum even told him that Golab had not died, but was recovering in the hospital. Epiphranio Bahenia testified that after Golab’s death, Rodriguez advised him to tell inspectors that his headaches were very mild and that he had used a rubber-and-glass face mask–in fact he had never even seen one before. and once the cyanide connection and Golab’s death became general knowledge, truck driver Drewes testified that Kirschbaum exclaimed to him that he “knew sooner or later something would happen and this is probably the end of it.”
These stories fail to confirm the defense’s portrayal of Rodriguez as just another worker who happened to know English and who merely relayed Kirschbaum’s orders. Nor do they confirm the defense’s picture of Kirschbaum as someone who did not know he was exposing the employees to danger and who worked alongside them, exposing himself to the same hazards. (Roman Gusowski testified that Kirschbaum “would pass through the hall and at the end of the working day he would collect the film” and that he never worked around the tanks.) O’Neil, on the other hand, acknowledged that he was “aware of all of the hazardous natures cyanide.” His last-ditch defense was that he had divested Film Recovery Systems of all its assets (namely the factory at 1855 Greenleaf) on December 22, 1982, shortly before Golab was hired, in a complicated tax dodge the MacKays needed to offset the declining price of silver. Thus, he contended, Golab never worked for him. Unfortunately for O’Neil, bookkeeper Debra Sadzeck testified that he was still giving orders about the business well into 1983. And on February 22, 1983, when OSHA’s Michael Selway appeared in the front office and asked to see “the highest operating official,” he was ushered in to see Steven O’Neil.
“I’m confident that through the appellate process the errors of this court will be corrected,” defense attorney Elliot Samuels told Judge Banks as the judge prepared to dole out 25-year sentences. “And so, therefore, I view what is going to happen in this courtroom today as merely a fleeting and temporary situation that will be corrected in the near future.”
That correction was neither so near nor so definite as Samuels might have wished. The appeal was first argued before three judges of the Illinois first district appellate court in the spring of 1987. There is remained until February 1989, when the state supreme court ruled that the federal occupational safety act did not preempt local prosecutions. Then the judges ordered a second round of arguments, and did not render a decision until January 19, 1990.
According to Samuels, the state’s attorney hadn’t even proved that there was any crime committed at Film Recovery, let alone that his client (Kirschbaum) had committed it: “I believe that the decision of your honor in this case is without foundation in either fact or law . . . . the evidence, I believe, clearly and irrefutably demonstrates that he’s totally innocent.”
But the appellate judges–having hung back for almost three years–did not reach this question. They did hint at a disagreement with Samuels, though, when they enumerated evidence and said that it was not so insufficient that it would be unfair to retry the defendants. Instead,the court reversed Judge Banks on the narrowest possible legal ground–that in finding O’Neil, Kirschbaum, and Rodriguez guilty of both murder and reckless conduct,he had in effect convicted them of having two incompatible states of mind. If they had intended to kill somebody, then they could hardly be guilty of reckless conduct, which is a disregard for the results of one’s actions.
But the grand jury never charged anyone with intent to kill Golab. The murder statute in Illinois, which dates back to 1961 and has much older antecedents in the law, provides that you commit murder when you do something knowing that it “create[s] a strong probability of death or great bodily harm.” this is why it’s murder to fire into a crowd; the fact that you didn’t intend to kill the particular person who died is no defense. Most perplexing, the state’s Third District appellate court ruled in 1985 that this kind of murder is legally consistent with a reckless state of mind.
For this and for other more technical legal reasons, you might think this would be a “must-hear” case for the state supreme court. You would think wrong. Illinois’ court of last resort ducked the case, declining to hear the state’s attorney’s appeal without explanation–and without explaining to lower courts, prosecutors, and the general public exactly what the law is here.
But perhaps it’s time to take off the legal blinders. The legal system is inevitably part of the social system,and most Americans are distinctly uncomfortable with the idea of putting energetic executive types in jail for what they did–or didn’t do–at work. Nor for nothing did defense attorney Thomas Royce argue on behalf of O’Neil by describing him as an embodiment of the American dream. Trouble is, the American dream has killed a good many unlucky people over the years–and few of us, judges or not, thank the people who tell us just how it happened.
Legally speaking, Film Recovery is nothing new. “We were just applying the old, basic law in a different area,” Assistant State’s Attorney Jay Magnuson told Los Angeles Times writer Barry Siegel.
Factually speaking, Film Recovery is so extreme one doubts it will soon, or often, be duplicated. (When Dr. Paul Blanc and colleagues at Cook County Hospital and the UIC School of Public Health studied the cyanide exposure of 36 FRS workers, they wrote in the Journal of the American Medical Association, “There have been relatively few cohort studies of workers occupationally exposed to long-term, high levels of cyanide. This is because, fortunately, few such cohorts are available.”) As one corporate attorney told Occupational Safety and Health magazine after the verdict, “Most companies know it’s not good business to kill their employees.”
But politically speaking–in the broadest sense–Film Recovery was a shot heard ’round the world. On a gut level, as Magnuson put it in his closing argument to Judge Banks, Film Recovery was “an old story. The story of the uneducated versus the educated. It is the story of the privileged versus the underprivileged. It is a story of the 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 saw it Magnuson’s way, and his decision implied more than that some middle class go-getters might serve time. It also meant that the regulatory vacuum left by the Reagan administration would not go unfilled; that if workers could get no sympathetic hearing in Washington, they might elsewhere; that any businesses thinking about cutting corners had better look out for the local law.
One street criminal may not know or care whether another mugger gets life in Stateville. But as Western Illinois University professors William J. Maakestad and Charles Helm wrote last year in the Northern Kentucky Law Review: “Criminal sanctions can play an important and effective role in deterring irresponsible business decisions, especially since managers may be among the most deterrable individuals in society.”
Maakestad, and expert in corporate criminal liability who was involved in the Pinto gas-tank case and who consulted with the prosecution of Film Recovery in 1985, observes that sometimes there are good practical reasons for bringing criminal charges against business–“in order to counteract a basic law of organizational physics: that bad news does not travel upward, at least not easily.” The mere fact that criminal indictments are brought, and convictions sometimes returned, is enough to make everyone take notice and either cleanup their act or make sure the right people get blamed.
Still, in most cases, cleaning up the workplace with criminal law is like swatting mosquitoes with a hammer. Maakestad has surveyed local prosecutors, and found that while well over 80 percent believe they have the power to bring cases like Film Recovery, a very few have actually done so. Most businesses would prefer a constant and predictable national system of regulation; most DAs have only limited resources to deter crime in the suites. OSHA regulations backed by tougher criminal sanctions than a mere six months might entice federal prosecutors to pay more attention to this area.
Bad news doesn’t travel well within the legal system, either. To date no appellate or supreme court has issued anything like a ringing endorsement of corporate criminal prosecutions. “The courts have stuck very very close to the technical legal issues and have had little to say about policy,” notes Maakestad. Certainly in Illinois, the higher courts did not slap down Judge Banks as the defense might have wished–but with delay, hesitation, and even silence, they have given him and the prosecutors little encouragement. The Film Recovery battle isn’t over, and the workplace war, it would seem, is just beginning.
Art accompanying story in printed newspaper (not available in this archive): illustration/Will Northerner.