Bearing Witness

by Michael A. Kahn

  ***

  But you don’t agree?” I asked.

  We were on the drive back to St. Louis.

  Jonathan scratched his beard pensively. “I’ll concede that there’s logic to their assumption. Skinheads hate blacks, blacks hate skinheads. Two skinheads get killed, round up the leaders of the black prison gangs.”

  “But?”

  “If they’d been arrested for murdering someone black, then maybe. But this?” He glanced at me “Where’s the motive?”

  “They’re still skinheads.”

  He shook his head. “Not enough. Blacks and skinheads co-exist in prison. They have elaborate social codes, and the gangs have enforcers to keep their members in line.”

  “Even the skinheads?” I asked.

  “Oh, definitely. There’s a loose affiliation of skinhead prison gangs around the country known as the Aryan Brotherhood. In fact, prison outreach has become an important part of the neo-Nazi movement.”

  “What do you mean?”

  “Take Spider, for example. It has outreach programs in several states. They correspond with gang members, send them a prison-oriented newsletter called The White Path, and make prison visits.” Jonathan paused: “So the mere fact that these two guys were skinheads doesn’t mean that a black man killed them.”

  “Then who?”

  He looked over at me and shook his head. “Unfortunately, it’s not that hard to get yourself killed in prison.”

  Chapter Seven

  Benny leaned back in his chair with a satisfied smile and patted his belly with contentment. “Sarah,” he said to my mother, “you deserve a special place of honor in my Hall of Fame.”

  My mother was beaming.

  He turned to me. “Am I right?”

  “It was delicious, Mom,” I told her, “but as your attorney I have to advise you to be careful about allowing your name in the Benny Goldberg Hall of Fame.”

  “Now, Rachel,” Benny said, placing his hand over his heart and feigning offense.

  I winked at him. “Let’s just say you have some peculiar items in there.”

  “Such as what?” my mother asked.

  I shook my head. “Such as you don’t want to know, Mom.”

  Benny uttered a long, lugubrious sigh. “Oh, to be forced to endure such calumny.”

  I had to smile. It felt wonderful to smile. To smile and to eat my mother’s wonderful cooking. A dinner in the warm cocoon of my mother’s house was just the antidote for this miserable Sunday.

  Ruth Alpert came out from the kitchen carrying a fresh pot of coffee. The doorbell rang as she started pouring refills.

  “I’ll get it,” I said, checking my watch as I stood up. “It’s probably Jonathan.”

  It was. He looked handsome in his navy pullover sweater, red turtleneck, and tan wide-wale corduroys.

  “Hi,” I said, giving him a quick kiss on the lips. He had that clean, musky scent that I loved. “Mmmm, you smell good enough to eat.”

  He chuckled. “You look lovely, Rachel.”

  “Well, thanks.” I did a playful curtsy. I was wearing a black cotton turtleneck, a denim mini-skirt, black tights, thick white socks, and black Doc Martens. It was one of my favorite cold-weather ensembles: fun and comfortable. “Did the girls have fun?”

  “They loved it.”

  My mother had invited Jonathan and his daughters to come for the dinner, but he was already planning to take them to a Sunday father-daughter dinner event at the JCCA. Nevertheless, he told my mother he’d drop by after he put the girls to bed. He was curious to hear the results of the Internet search.

  My mother called from the dining room, “Is that Jonathan?”

  “Hello, Sarah,” he said as we rounded the corner. All eyes were on the two of us.

  “You know Benny,” I said to Jonathan.

  “Sure. How are you, Benny?”

  “Hangin in there, Wolf Man.”

  “This is Ruth Alpert,” I said. “Ruth, this is Jonathan Wolf.”

  “Hello, Ruth,” he said, warmly shaking her hand.

  “It’s a pleasure,” she answered, captivated. “I’ve heard so many splendid things about you from Rachel and her mother.”

  “And these are my heroes,” I said, turning toward the five law students, who were all seated along the far side of the dining-room table. “This is Hanna, Zack, Josh, Kayla, and this is Jake. Guys, this is Jonathan Wolf.”

  From the awed expressions of Josh and Kayla, it was clear that they recognized the name. Both were interested in criminal law. To be interested in criminal law in St. Louis and to meet Jonathan Wolf was the equivalent of being interested in baseball in St. Louis and meeting Ozzie Smith. And like Ozzie Smith, Jonathan’s reputation reached beyond the city. He’d made two appearances on Ted Koppel’s Nightline during the second O.J. Simpson trial. More recently, his defense of Oklahoma lieutenant governor Billy Rimmel in the Indian casino vote fraud prosecution had generated coverage in newspapers around the country.

  After politely declining a slice of cherry pie and accepting a cup of coffee, he turned to the students. “Rachel told me you were able to match the bids to the contract award announcements.”

  They nodded.

  “Let’s hear what you found,” I said.

  Josh stood up. “I’ll get the charts.” He came back from the living room with a sheaf of documents. “We made several copies,” he said as he passed them out.

  The chart was nineteen pages long, and each page contained summary information on eight or nine contract awards. I paged slowly through the document, studying the entries. By the time I reached page five, the pattern had emerged. Page five was typical:

  I skimmed the remaining pages to confirm it. The pattern held. The entire universe of winners of the one hundred fortyeight bids over the last ten years was limited to six companies, including Beckman Engineering. I recognized two other names: Muller was presumably Muller Construction of Springfield, Illinois, and Koll had to be Koll Ltd. of Chicago. Owned by Otto Koll, as I recalled from Gloria Muller’s comments. Her words still echoed in my memory: Oh, yes, she had said with a chuckle, Otto was one of them. I flipped back through several pages of the chart. Koll’s name appeared at least once on every page. Oh, yes, Gloria, I thought, Otto definitely was one of them.

  I leafed slowly through the document. Each of the six companies had won roughly the same number of contracts over the ten-year period. Most striking, though, were the winning bids: all were crowded up near the high end of the estimated cost range. No matter how wide the spread between the lower and upper end of the government’s estimated cost range—$10 to $14 million, say, or $5 to $10 million—the winning bid was always within a few hundred thousand dollars of the high end.

  I could feel my optimism grow as I skimmed down each new page. When I finished, I looked around the table. My five volunteers were beaming at me. Benny was studying his copy and nodding his head thoughtfully. My mother and Ruth were sharing one set and staring at it with equally mystified expressions.

  I looked over at Jonathan. He’d put the chart down and was sipping his coffee. He winked and said, “You’re in business.”

  “What do you mean?” Ruth asked.

  I turned toward her. “These charts back up the rumors you heard. Now we need to get out and dig for the evidence.”

  “But where?” she asked.

  “Right here,” I said, pointing at the nineteen-page list of winning bids. “These other five companies.” I turned to the students with a sheepish look. “One more favor, guys? Does anyone have time to run these companies through the computer? We need to find who owns them, who runs them, that sort of thing.”

  “Sure,” Kayla said. “I used to do that all the time at Price Waterhouse. It won’t take me long. I have two free hours tomorrow morning.” She turned to Benny. “I could drop o
ff the results at your office before noon, Professor.”

  It still cracked me up to hear them call him Professor.

  “That’d be super,” I told Kayla.

  I did a quick mental review of my schedule for tomorrow: a discovery motion in the city circuit court in the morning, a meeting at a client’s office at two in the afternoon, my self-defense class after that, and then dinner at my sister’s house. I glanced over at Benny. “You eating lunch tomorrow, Professor?”

  “Am I eating lunch tomorrow?” He held his palms up, as if I’d just posed the most moronic question of the year. “Does the wild pope shit in the woods?”

  “I’m buying,” I told him.

  “And I’m eating.”

  ***

  Nu?” Benny said, chewing on his sandwich as he studied one of the printouts that Kayla and Jake had dropped off at his office that morning.

  We were having a light lunch at Stacks cafe in The Library Ltd. bookstore. Or rather, I was having a light lunch—a bowl of mushroom barley soup, a banana muffin, and a cup of coffee. Benny was devouring what charitably could be called a heavy lunch, and more accurately a pair of heavy lunches.

  He stuffed the rest of his second sandwich in his mouth, swallowed it nearly whole, and gestured toward the printouts that were spread between us on the table as he reached for his bottle of Pete’s Wicked Ale. “What’s your reaction?”

  “Surprise,” I said, pausing to take a sip of coffee, “and hope.”

  The most surprising find of the day was contained on several pages of new materials gleaned from the Commerce Business Daily data bank. Last night at my mother’s house, Jake had shown us another chart he’d put together: a random review of construction contracts in an unrelated field, which demonstrated that winning bids in an untainted market tended to be evenly distributed throughout the government’s estimated cost range. This morning, acting on a hunch, Jake had sampled contract awards from earlier decades in the same field of water-control projects at issue in our lawsuit. I had alleged a ten-year bid-rigging conspiracy in the Midwest. Jake was curious to see how that market functioned before then. It was another way to test my antitrust hypothesis.

  The Commerce Business Daily data bank went back to 1956, so he picked four years at random—1957, 1964, 1975, and 1982. The results were completely unexpected. Regardless of the year, the winning bidder was always one of the alleged co-conspirators in our case: Beckman, Beek, Eagle, Eicken, Muller, or Koll. Moreover, the winning bid was always at the high end of the estimated cost range. The implication was plain.

  “I thought ten years was pushing it,” I said, shaking my head in wonder, “but this is incredible. A forty-year conspiracy?”

  Bid-rigging schemes tend to be unruly and inherently unstable beasts that rarely survive their first year. The greed that brings the confederates together is the same force that drives them apart. But here, according to the data, we had a conspiracy that had thrived not merely for years but for decades. It was, quite simply, extraordinary. Moreover, it raised a fascinating question. What was it about these companies that had enabled them to maintain that level of group discipline over so many years?

  “Where’s that summary page on the six companies?” I asked Benny.

  He shuffled through the papers and found it. As Kayla promised, she’d spent the morning searching through various business and commercial data banks for information on the six companies. She’d taken the hodgepodge of information and summarized the basic facts on the one-page chart that Benny and I were studying.

  Several points stood out. All six companies were based in the Midwest in a relatively small geographic area: one in eastern Missouri (Beckman Engineering); two in Indiana (Beek Contracting Co. in Gary, and Eicken Industrial in Indianapolis); two in Illinois (Koll Ltd. in Chicago, and Muller Construction in Springfield); and one in western Tennessee (Eagle Engineering in Memphis). All were middle-aged companies, that is, somewhere between forty-five and sixty-five years old—the oldest formed in 1934, the youngest in 1953. Although three of the original founders were still nominally at the helm of their companies, only one—Conrad Beckman—was still in charge. The day-to-day management of the other five had passed to the next generation. Beckman Engineering appeared to be the largest of the six, at least in terms of revenues, but all were significant commercial operations.

  “What are you thinking?” Benny asked.

  I took a sip of tea as I stared at the one-page summary. “I’m thinking Eagle.”

  “Huh?”

  “These guys.” I pointed at the summary information on Eagle Engineering in Memphis. “They’re my best bet.”

  “Why?”

  “Look what happened to them in 1994.”

  Benny leaned forward and studied the entry. “New owners,” he said, a little tentatively. “You’re thinking maybe they’ll be easier to deal with than the old-boy network.”

  “Benny,” I said impatiently, “they’re not simply new owners. Look how they did it.”

  Benny squinted at the entry. “Ah,” he said, leaning back with a smile. “An asset-purchase deal.”

  I nodded. “Exactly.”

  There are several ways for one corporation to acquire another. It can merge with it, purchase all of its stock, or buy all of its assets (but not the stock). The latter transaction is known as an asset-purchase deal, and one of its most attractive features is that the purchaser buys the assets, but not the liabilities, of the seller. A simple example of such a deal is buying a used car: the buyer acquires the asset (the car itself) but not any of the seller’s liabilities for, say, a prior speeding ticket or an overdue insurance bill.

  If our bid-rigging allegations were correct, Beckman Engineering and its co-conspirators had a staggering joint liability under the Federal False Claims Act. That meant that each of the other companies had good reason to fear my lawsuit, and thus good reason to vigorously resist my efforts to obtain any information from them.

  Except for Eagle Engineering.

  The new owners of Eagle Engineering had no liability for the prior owner’s misconduct. That meant that the new owners had little to fear from my lawsuit, and thus little to fear from a subpoena for all relevant documents generated during the period before they purchased the assets of Eagle Engineering.

  “Oh, woman,” Benny said, giving me the thumbs-up. “You’re a goddamn genius.”

  I mulled it over. “Timing is key. I’ve got to get that subpoena out no later than tomorrow afternoon.” I sat back with a frown. “This is going to take some finesse.” Then I remembered. “Oh, rats.”

  “Now what?”

  I shook my head in frustration. “I can’t do it tomorrow.”

  “Why not?”

  “I have to defend Ruth’s deposition.”

  “Allow me,” Benny said with a grin. “I don’t have a class until five-thirty. It would be my pleasure.”

  “Really?”

  “Sure.”

  “Great. I can go over what you need to put in the subpoena and then—”

  “Not the subpoena, for chrissake,” Benny said with a dismissive wave. “I’m not messing with that technical crap. I’m talking about Ruth’s deposition. Who’s taking it? The lovely Kimberly Howard?”

  I rolled my eyes. “Who else?”

  “Excellent.” He rubbed his hands together with delight. “I would be pleased to provide your client with vigorous representation.”

  I gave him a dubious look. “No funny business.”

  “Funny business?” He pressed his hand against his chest and pouted innocently. “Moi?”

  Among Benny’s many deposition misadventures during our Chicago years at Abbott & Windsor had been the Reynolds deposition in the Allied Chemical case, which terminated abruptly on page 127 of the transcript—a page that was eventually reprinted verbatim in a Chicago Bar Journal article on
the decline of professional courtesy. The infamous exchange occurred after Benny’s adversary had made his fifty-third objection of the day:

  MR. KLEMPER: That’s too bad, Mr. Goldberg. As you know, I have a perfect right under the Federal Rules of—

  MR. GOLDBERG: Forget the Federal Rules, Norman. From here on out we’re following the Goldberg Rules, and here’s Rule Number One. You open that little trap of yours one more time and I’m going to rip off your head and shit down your lungs. You read me?

  MR. KLEMPER: I—you—I cannot believe—do you—this deposition is over.

  MR. GOLDBERG: Excellent. Get out of my office before I throw your sorry ass through that window.

  I sighed and shook my head. “I must be crazy.”

  He was grinning. “Hey, I’ll take care of your client. You just worry about getting that subpoena served, ’cause I’m going down there, too.”

  “You are?”

  “Memphis? You better believe it, woman. We’re going to look at some documents and feast on some barbecue and then”—he paused and solemnly placed his hand over his heart—“we’re going to go pay our respects.”

  “What are you talking about?”

  Benny gave me a wink and started humming the Paul Simon song, “Graceland.” “We’re going to Graceland.…”

  Chapter Eight

  I am not a Harvard booster. I never learned the fight song, don’t wear crimson, and couldn’t tell you who won the Harvard-Yale game this year, or any year. Nevertheless, I’ll admit that spending three years at Harvard Law School has its advantages, the chief one being my alumni directory. My classmates are scattered throughout the country, and a remarkable number occupy important positions within their legal communities. As a result, my alumni directory was a definite advantage on this Tuesday morning, since my Eagle Engineering strategy required contacts with lawyers in influential positions. Thank you, John Harvard.