FILM RECOVERY SYSTEMS, INC.

1. FILM RECOVERY SYSTEMS, INC. by Denis Collins

2. Feb. 10, 1983, Stefan Golab, an employee of Film Recovery Systems, Inc. (FRS), lost consciousness after inhaling poisonous fumes while working near a vat containing boiling cyanide. He was brought to a nearby hospital and was pronounced dead on arrival The Cook County medical examiner determined the cause of Golab's death as "acute cyanide toxicity."

3. The Company: FRS • Established in 1976 – during a run-up in silver prices - as a subsidiary of B.R. MacKay & Sons, a Salt Lake City, Utah, firm that refined silver. • Utah millionaire Michael T. MacKay, president of B.R. MacKay & Sons, expanded his company's operations to include silver recovery. • FRS extracted silver from old x-rays and photographic films and sent the silver to B.R. MacKay & Sons, where it was refined and sold. • Half the stock of FRS was owned by Metallic Marketing Systems, another firm operated by B.R. MacKay & Sons. • FRS achieved gross revenues of $13 million in 1981.

4. FRS operated out of a 30,000 square foot converted warehouse in Elk Grove Village, IL, a suburb of Chicago. • Workers cut strips of film into chips and then placed them in one of the 70 six-foot-wide, 1,500-gallon vats containing boiling water and powdered sodium cyanide. • This solution was pumped into a second vat where the silver was extracted through electrolysis. • The silver was then scraped off the electrode paddles with hand tools.

5. Two by-products of this process were cyanide gas that escaped from the vats and cyanide sludge, a poisonous waste. • The plant used ten thousand pounds of sodium cyanide each month.

6. The Victim • Stefan Golab, a non-English speaking Polish immigrant who arrived in the U.S. in November, 1981 and illegally stayed in the country after his visa had expired, obtained employment at FRS the day after Christmas, 1982. • His job was to clean the vats that had contained the boiling cyanide. • After a month and a half, and just six days prior to his death, Golab and another worker requested, without success, a better job assignment.

7. Then, on February 10, 1983, Golab became faint near one of the vats and began to foam at the mouth. Several employees led Golab to the lunchroom where he lost consciousness. Golab was DOA at a local hospital.

8. Indictments • A seven-month investigation by the state attorney general's office led to the first murder indictments ever against corporate executives for a work-related death. • A Cook County grand jury indicted five executives for murder and three companies for involuntary manslaughter. • Indicted for murder were Michael MacKay, 43, vice president of FRS and president of B.R. MacKay & Sons; Steven O'Neil, 29, president of FRS; Charles Kirschbaum, 35, FRS plant manager; Gerald Pett, 37, FRS vice president and manager; and Daniel Rodriguez, 26, assistant plant manager and foreman at FRS.

9. Indicted for involuntary manslaughter were Film Recovery Systems, B.R. MacKay & Sons, and Metallic Marketing Systems. • In addition, the defendants were indicted on 21 counts of reckless conduct. • MacKay surrendered to police in Utah, O'Neil was arrested by police in Montana, Kirschbaum and Pett surrendered to officials in Illinois, and Rodriguez was arrested in Indiana.

10. Extradition • O'Neil and MacKay decided to fight extradition on the grounds that they were not in Illinois when Golab died. • A Montana judge ordered O'Neil to stand trial, and O'Neil surrendered to police in Illinois in February, 1984.7 • In Utah, however, Governor Scott Matheson refused to extradite MacKay on the grounds that McKay, a Mormon church official and local philanthropist, was a model citizen.

11. Governor Matheson noted that MacKay was an "innocent investor" who would not receive a fair trial in Illinois. • MacKay also maintained that he had resigned as vice president of FRS in December, 1982, prior to Golab's death, though Illinois authorities argued that he had remained in charge of the company's daily activities.

12. For the Defense • Lawyers representing the defendants argued that there was no legal precedent for charging corporate executives with murder for a work-related death. • When the trial began on April 15, 1985, eighteen months after the murder indictments, the defense lawyers maintained that Golab's death had been a tragic industrial accident, and also suggested that he had a heart attack or may have committed suicide by purposely ingesting cyanide. • They argued that there was no willful intent by the corporate executives to kill Golab, nor did the executives knowingly create a workplace environment that would inevitably result in a death.

13. Kirschbaum often worked near the vats of cyanide and Pett had obtained work for several relatives, including his wife and child, at the company. • Further, all management personnel had worked in the plant for several years, until their offices were moved to a separate building in 1982. • Finally, defense attorneys noted that several months prior to Golab's death, FRS was inspected by an Occupational Safety and Health Administration (OSHA) official, and no warnings or notices had been issued.

14. Two key factors encouraged Jay Magnuson, Chief of the Cook County State Attorney's Criminal Division, to treat Golab's death as a murder instead of an industrial accident: (1) the coronor's ruling that Golab's death was a homicide, and (2) the degree of known or foreseeable reckless endangerment that existed at the FRS plant.

15. Prosecution: Coronor’s Ruling Dr. Robert Stein, Cook County medical examiner, recommended that a criminal investigation be pursued following Golab's autopsy. Stein found that the level of cyanide in Golab's blood was twice the lethal dosage, and concluded that his death was the direct result of inhaling the cyanide fumes which were present whenever Golab performed his daily job responsibilities.

16. Prosecution: Reckless Endangerment • Company executives ignored worker illnesses and kept the workers uninformed about the chemicals they worked with. • Company executives had to know there was a great probability of bodily risk to the workers and failed to warn them. • Witnesses claimed that management had ordered two workers to scrape the skull-and-crossbones off the drums of cyanide. • Workers were provided with paper masks and cloth gloves for their protection, with special safety masks distributed when a safety inspection was scheduled. • Employees could not wash their hands before eating lunch. • One worker claimed to have lost 80 percent of his vision when cyanide solution splashed into his eyes.

17. Expert witnesses testified that more than two-thirds of the 36 plant workers exhibited symptoms of cyanide poisoning. • The OSHA inspector who visited in 1982--a key point in the defense case--was following Reagan administration guidelines on regulatory reform and was there only to inspect the company's records, not the factory itself. • An Eastman-Kodak representative testified that FRS's silver recovery process was atypical, and the Cook County Environmental Control Department shut down the plant after learning that it did not have the required operating permit.

18. Murder or Manslaughter? • Prosecuting attorneys could have charged the defendants with involuntary manslaughter instead of murder. • Manslaughter charges arise from the death of a person due to reckless conduct. • In pursuing the more severe murder charge, the prosecutors were arguing that the defendants knowingly "created a strong probability of death or great physical harm.“ • In Illinois, an involuntary manslaughter charge can be raised to a murder charge if it can be proven that a death was caused by "conduct imminently dangerous to another and evincing a depraved mind, regardless of human life."

19. Verdicts • After the prosecuting attorneys rested their case in this nonjury trial, Cook County Circuit Judge Ronald J.P. Banks dismissed the charges against Pett but refused to dismiss the charges against the other defendants standing trial. • Little evidence was presented to prove that Pett, who primarily served as the national sales coordinator for FRS, had known about the health hazards. • Judge Banks ruled that the murder charges against the other defendants should not be dismissed since the prosecutors had presented evidence that O'Neil, Kirschbaum, and Rodriguez had been aware of unsafe working conditions and purposely refused to inform the workers of the dangers.

20. On June 14, 1985, in a precedent-setting judicial decision, Judge Banks ruled that the three company officials were guilty of murder and FRS (which had filed for bankruptcy in mid-1983) and Metallic Marketing Systems were guilty of involuntary manslaughter. • The judge also found the defendants guilty on 14 counts of reckless conduct. • He argued that the company executives were well aware of the dangers of cyanide and that they were also aware that the workers were vomiting as a result of their daily working conditions.

21. Judge Banks stated that Golab's death "was no accident, but murder," and compared the work situation to leaving a time bomb to explode in a public place. • He revoked bond and O'Neil, Kirschbaum, and Rodriguez were incarcerated in Cook County Jail. • Following the verdict, Illinois Governor James Thompson once again requested that MacKay be extradited from Utah to stand trial for murder, a request that was turned down by the new governor of Utah, Norman Bangerter.

22. Sentencing • Defense motions for a new trial were denied. • On July 1, 1985, Judge Banks sentenced the corporate executives to prison for the murder of an employee in a work-related death, setting another legal precedent. • O'Neil, Kirschbaum, and Rodriguez were sentenced to serve 25 years for murder and 364 days for each of the 14 counts of reckless conduct, the latter sentence to be served concurrently with the former. In addition, each defendant was fined $10,000. • FRS and Metallic Marketing Systems were fined $10,000 for involuntary manslaughter and $1,000 for each of the 14 reckless conduct counts.

23. Appeal • Lawyers for the company officials appealed the murder verdict to the Illinois Court of Appeals. • Each of the defendants was released from prison after posting $2,500 bond.

24. The appeal focused on three issues: • (1) the prosecutors never proved that the defendants intended to kill Golab, • (2) the case should fall under the jurisdiction of OSHA, not local or state laws, and • (3) there still remains reasonable doubt as to whether Kirschbaum or Rodriguez foresaw the great probability of risk, since they often worked in the plant.

25. Early in 1990, the three-judge Illinois Court of Appeals finally ruled on the appeal. • All the convictions were overturned. • The court ruled that it is logically impossible and legally inconsistent to be convicted of both murder (intent & planning) and reckless conduct (haphazard and dangerous behavior). • The prosecutors had erred, according to the court, in bringing contradictory charges against the defendants.

26. The court also ruled, however, that there was enough evidence to justify a new trial in Cook County Curcuit Court, on proper charges. • As of early 1993, a new trial had not begun. • And the murder charge against MacKay, who remains unextradited, and the involuntary manslaughter charge against B.R. MacKay & Sons, remain pending.

27. For discussion: 1. Why would Gov Matheson call Michael MacKay an "innocent investor"? Do you think he was right to do so, and to refuse to extradite MacKay? 2. Is Golab's death different from that of a construction worker who dies from a fall? 3. Do you think this case should have fallen under OSHA jurisdiction, as the defense attorneys argued? Or should it perhaps have been a case for the U.S. Immigration Service? 4. What do you think of the testimony that executives and their families also worked in the plant?

28. 5. Given what you know from this case, would you have judged Golab's death to be an industrial accident, reckless conduct, or murder? 6. Film Recovery Systems was never charged with any crime other than Golab's death. Yet, is there evidence that it was a company "on the edge" as far as legality goes? If so, what position might other firms in the silver processing industry be expected to take with respect to FRS? 7. What ethical principles are involved in this case? How do you know they are present?