Bearing Witness

by Michael A. Kahn

  “You mean the one at line sixteen?”

  Kimberly gave her an irritated stare. “Yes,” she hissed. “Read it.”

  Ruth looked down at the page again. “It says here, ‘Probably not.’”

  Kimberly nodded triumphantly. “Exactly. Today your answer is yes. But on December fifth it wasn’t yes, was it? It was ‘Probably not.’ Correct?”

  I had been watching the jury throughout. If I had to guess from their expressions, the impact of this so-called contradiction was far from what Kimberly had hoped.

  “December fifth,” Ruth mused.

  “Excuse me?” Kimberly said, much louder than necessary.

  Ruth frowned at her uncertainly. “December fifth?”

  “Yes, Ms. Alpert. December fifth.” There was an accusatory edge to her voice. “Remember that testimony?”

  Ruth pressed her finger against her cheek in thought. “Miss Howard, was that the eleventh day of my deposition or the twelfth?”

  I fought back a smile as I saw one of the jurors, Mr. Fernandez, turn to his neighbor in surprise. He raised his eyebrows in astonishment at the realization that Kimberly had subjected Ruth to twelve days of deposition.

  “The eleventh, I believe.” Kimberly acted nonchalant.

  Ruth flipped back through the deposition. “That was such a long day,” she said. “Do you remember the weather that day, Miss Howard?”

  Kimberly was trapped. She had to answer. “Not particularly.”

  “Oh, my heavens, it started snowing at noon. Remember?”

  “No.” Kimberly’s frustration was apparent as she realized that somehow she had lost control of this witness.

  “I remember that day,” Ruth continued. “It—”

  “Please, Ms. Alpert, can we—”

  “Objection, Your Honor,” I said, standing up. “Can the witness be allowed to finish her answer?”

  Judge Wagner looked from me to Kimberly and back to me. Expressionless, she said, “Sustained.” She turned to Ruth. “You may continue.”

  Ruth smiled at the judge. “Why, thank you, Your Honor.” She turned to Kimberly. “I remember that day so clearly, Miss Howard.” She paused, her brow wrinkling in distress at the memory. “It started snowing at noon. The snow kept getting worse, and you had so many questions for me. So many. I remember it was dark by the time you asked me this one.” She held up the deposition transcript. “You see, it’s on page 193, and the whole thing is 226 pages. I remember I was so worried about driving home from downtown in all that snow.” She shook her head. “I am terribly sorry, Miss Howard. I must have been confused when I gave you that answer. But I am not confused today.” She paused to smile at the jury. “I promise.” She turned back to Kimberly. “And that answer is most definitely yes. Yesterday, today, and tomorrow.”

  She closed the deposition transcript and gave Kimberly Howard a smile warm enough to melt butter. All six jurors and the alternate were beaming.

  “There,” Ruth said with a satisfied nod. “I hope that clears things up for you, dear.”

  And so it went. Kimberly scored a few points with Ruth’s inconsistent answers, and she certainly was able to underscore what we had readily conceded at the outset, that Ruth lacked direct knowledge on several important factual issues in the case, but those were superficial wounds. By the time Kimberly Howard finally turned away from the witness and announced to the judge, with barely concealed exasperation, that she had no further questions, I was feeling good enough to charge the witness box like the triumphant catcher rushing the mound at the end of the World Series and lift my client in the air with a big hug.

  But this was a courtroom, and this particular game of hardball was far from over. I stood up, nodded at my client, and turned toward Judge Wagner. “I have no further questions, either, Your Honor.”

  ***

  We took a fifteen-minute recess.

  I spent the first five minutes assuring Ruth that she’d done just fine. I spent the rest of the time debating with myself over my next witness. The safe choice was Otto Koll. Indeed, his testimony was literally a no-brainer. He wasn’t in court and he wasn’t within the subpoena power of the court, which meant I would have to read his deposition to the jury. That was something I could almost do in my sleep. And that was the problem, of course. It was nearly four o’clock, and my fear was that reading a deposition transcript at this late hour would put the jury to sleep. That was the worst possible use of Otto Koll’s deposition. I wanted those jurors fresh and alert when they heard Otto Koll answer, “I don’t recall,” to dozens and dozens of questions that could be answered truthfully that way only by someone in an advanced stage of Alzheimer’s disease. Koll’s testimony was strikingly implausible, and I didn’t want to dilute any of that implausibility by reading it to a fatigued audience. Moreover, if I waited until tomorrow, I could put Benny in the witness box and have him recite Otto Koll’s answers while I read the questions. That would make the deposition reading a far more interesting event for the jury, and hopefully give all those “I don’t recalls” an even greater impact.

  No, what I needed now was a way to perk up the jurors and underscore the contrast between my client and Beckman Engineering Company. The choice was obvious, although hardly enticing.

  When the jurors had reassembled in the jury box and the court personnel were back in their places, Judge Wagner looked down at me from the bench and said, “Call your next witness, Counsel.”

  I stood and turned toward the defendant’s table. “Plaintiff calls Conrad Beckman.”

  Beckman glanced inquisitively at Kimberly, who tried to keep a poker face.

  Excellent, I said to myself.

  He rose and moved toward the witness box with stately dignity, looking every inch the chairman and founding father of Beckman Engineering Company. Although the jury had missed it, the brief silent exchange between Beckman and his counsel confirmed what I’d suspected: they hadn’t anticipated that I’d call him as a witness in my case. That meant they hadn’t yet prepared him for his testimony, having assumed that they would have plenty of time to do so before he took the stand in their side of the case.

  Nevertheless, an unrehearsed Conrad Beckman was still a dangerous witness, and putting him on the stand in the middle of my case was a risk akin to poking a stick at a rattlesnake. My goal was to give him a few careful jabs—just enough to make him rattle and show his fangs—and then back off before he struck.

  Beckman raised his right hand and allowed the clerk to swear him in. He took a seat in the witness box and gazed at me as if he were here for nothing more demanding than an eye exam. I placed a blowup chart of the six companies on the easel, positioning it so that he and the jury could see it:

  “Sir,” I said, pointing toward the chart, “you are familiar with the companies on Plaintiff’s Exhibit seven, correct?”

  He gazed at the chart for a moment and nodded. “I am.”

  “Over the years you’ve attended meetings with the founders of each of these companies, correct?”

  “I have.”

  “Would it be fair to say that your relationship with the founders goes way back, in some cases even to a time before they founded their companies?”

  Kimberly was on her feet. “Objection, Your Honor. Irrelevant.”

  Judge Wagner looked at me. “Counsel?”

  “It’s directly relevant, Judge,” I said. “Plaintiff contends that Beckman Engineering has participated in an illegal conspiracy with these five companies. A conspiracy requires a special relationship among the co-conspirators.” I paused to point toward the chart. “These are private companies, each run for decades by its founder. The nature and length of Mr. Beckman’s relationship with these other gentlemen is thus critical.”

  “Overruled,” the judge announced, turning to Beckman. “You may answer the question.”

  Beckman purs
ed his lips as he considered his answer. “I have known these gentlemen for many years,” he said calmly, “along with the principals of dozens of firms. Ours is a small industry, Miss Gold. Just as you may know dozens and dozens of your fellow attorneys, many of whom are your competitors, I know many of my company’s fellow contractors.”

  My question had been capable of a yes or no answer. Thus, everything he said after the first eight words was technically nonresponsive. I could have moved the court to strike it from the record, but that would merely emphasize it for the jury. Moreover, Judge Wagner was not about to let me put Conrad Beckman on a short leash. Given that fact, my best strategy was to ignore his speeches and keep nudging him in the direction I wanted him to go.

  “But let’s focus on these five companies, sir,” I said in a pleasant voice as I pointed again toward the chart. “Your relationship with each of these founders dates back before World War II?”

  “Objection, Your Honor. Irrelevant.”

  “Overruled.”

  Beckman studied the chart. “Miss Gold, three of the five companies did not even exist before World War II.”

  “I realize that, sir. My question had to do with the founders of the companies. You had a relationship with each of those men that predated World War II, correct?”

  “A relationship?” Beckman asked rhetorically. “Perhaps I knew them. I don’t know whether I would call that a relationship.”

  “Fair enough,” I said with an amiable smile. I moved over toward the jury box. “Let’s try to figure out what to call it, Mr. Beckman.” I stared at the chart and pointed toward the entry for Eagle Engineering. Might as well hear his rationalization early on. “Why don’t we start with Max Kruppa. Tell us about the origins of your relationship with him.”

  Beckman crossed his arms over his chest and wrinkled his brow, as if trying to remember. “I can’t recall where or when I met Mr. Kruppa, Miss Gold. Max was a German immigrant. During the years before World War II he still had strong feelings about the old country. He knew that my parents came from Germany. For some reason, he thought that made a special bond between us. I recall that he tried to interest me in certain German-American organizations.”

  “Which German-American organization, sir?”

  Beckman rubbed his chin. “This was many years ago. I believe it was originally known as the Friends of the New Germany.”

  “The Friends of the New Germany changed its name, didn’t it, Mr. Beckman? It became the German-American Bund, correct?”

  He fixed me with dead eyes. “You may be right, Miss Gold.” He paused and shrugged. “As I said, that was many years ago.”

  “So you and Mr. Kruppa were both members of the German-American Bund?”

  He shook his head. “I don’t know about Mr. Kruppa’s affiliations. I certainly was not a member. I will concede that I attended one or two of their meetings, although curiosity was the primary motivation. They held their meetings in the neighborhood where I grew up.” He paused. “I am not proud of that, Miss Gold. I was a teenager, and I did some stupid things back then.” He turned to the jury and shook his head with chagrin. “Frankly, I regret it.”

  It was a masterful parry. His answer contained just enough truth and exactly the right tone of contrition to make any effort at follow-up too dangerous. I’d poked the stick, and the diamondback had made sure I heard his rattle. Although I could use the English translation of Kruppa’s letter to argue to the jury that Kruppa must have been writing to someone with far more than a mere “curiosity” in the American Nazi movement, it wasn’t a clear shot, and I’d risk antagonizing the jury in the process.

  Beckman had already conceded the key point—namely, that he had attended at least two Bund meetings. He dismissed his actions as the foolishness of youth, and the more I harped on it, the more I risked giving Kimberly an opening to rebut it with character evidence. Judge Wagner wouldn’t need much of an excuse to let Kimberly put on a conga line of testimonials from the heads of all the charitable organizations that had given him awards over the years. By the time they were done, he’d be St. Conrad.

  So I moved on.

  He conceded, in an almost offhand way, that he had known each of the founders of the other four companies for several decades.

  I didn’t come right out and ask whether his company had been a co-conspirator in the bid-rigging conspiracy. No sense lobbing that fat pitch over the plate. He’d get plenty of batting practice when it was Kimberly’s turn. Instead, I tried to keep my pitches around the edges of the plate. It wasn’t easy. I showed him a blowup poster of Max Kruppa’s seemingly incriminating American Express receipt. Beckman readily—indeed, almost casually—conceded that he’d attended meetings over the years with different industry representatives. Then he turned toward the jury to assure them that his company had never participated in any discussion of bids or pricing at those meetings.

  As for the words that Max had scribbled on the back of the receipt in the box entitled “business purpose”—“Meet w/ Koll, Muller, Beckman, Beek & Eicken to divide up pending federal IFBs”—he shrugged them off. “I was not at that meeting, Miss Gold, and I certainly would not want to speculate as to what Max meant by those words.” He shook his head sadly. “It’s a shame he isn’t here to tell us himself.”

  I poked the stick a few more times before Judge Wagner announced that court would be in recess until nine-thirty the following morning. When the last of the jurors had filed out of the courtroom and the door had swung closed behind them, Kimberly jumped to her feet.

  “Your Honor,” she said, her face twisted in anger, “Miss Gold is using this lawsuit as a vehicle for running a smear campaign against one of the most respected and revered citizens of St. Louis.” She gestured toward the gallery. “She’s playing to the press out there while she shamelessly attempts to prejudice this jury with totally irrelevant gossip that is more than half a century out of date.” She flung her arm toward me. “In the name of fairness and decency, defendant implores the Court to enter sanctions against this woman.”

  Judge Wagner turned a stern face toward me. “Well?”

  And once again we rehashed the same evidentiary issue we’d argued several times before, and once again Judge Wagner cut it off with a stern warning.

  “You are on very, very shaky ground, Ms. Gold.” She spoke slowly and clearly, presumably to make sure that every member of the press heard her words. “It was your decision to open this can of worms. I’m warning you right now that you had better be able to reach in there and pull out a big fat night crawler before this trial is over or I’m going to give this jury a special instruction on attorney misconduct that’ll make your curly hair stand on end.” She stood up and turned to leave the bench. “That’s all for today.”

  Chapter Twenty-five

  The phone rang at quarter after six that night. I was slumped on the couch in the corner of my office with my shoes off, my feet up, and a half-empty bottle of Samuel Adams Boston Lager resting on my lap. Exhausted, I turned toward the phone and tried to will myself up.

  “I’ll get it.” Benny walked over to the credenza and lifted the receiver. In a ridiculous Japanese accent, he announced, “Dese are Raw Office of Honorable Rachel Gold.”

  He listened a moment and grinned. “Hey, dude. Yeah, rough day in court, but she’s holding up.” He looked over at me and winked. “Jonathan, you wanna join us for a traditional Jewish meal? No, man, I’m talking about the food of our people: Chinese takeout.”

  He listened a moment and then laughed. “Come on, dude, remember that passage in the Haggadah? Let’s see, how’s it go? ‘Rabbi Elazar, the son of Azariah, having come to Bene-Berak on the night of Passover, said, Verily, I am like a man of seventy years of age, yet I have never found a matzoh-meal version of potstickers that doesn’t taste like fried ca-ca.’ You sure? Hey, I understand. Yeah, she’s right here.”

  He brought
the phone over to me. “It’s Mr. Wonderful. Listen, I’m going out to the car for a moment. I think I left the rest of the brewskis out there.”

  I took the receiver. “Hi,” I said in a listless voice.

  ***

  I had a road map of Missouri open on my desk when Benny came back with three more bottles of Samuel Adams.

  “They were hiding under the dry cleaning,” he said. “What are you looking for?”

  “Potosi,” I said.

  “Potosi?” Benny said, as he set the bottles on the desk. “There’s nothing down there but the prison.”

  “Exactly.” I tilted the takeout container of Hunan chicken and used the chopsticks to scoop out the last of it. Chewing slowly, I studied the map.

  The Potosi Correctional Center occupies the slot within the Missouri penal system that Marian does within the federal system. It houses the eight hundred or so inmates classified “maximum custody” or “risk to the public,” all of whom are serving at least twenty-year sentences. It also houses Missouri’s death row inmates, whose final seconds are spent strapped to a gurney in a special room in the prison infirmary known among the inmates as “the cage.” The condemned man gets to watch as the white-coated attendant meticulously swabs his arm with rubbing alcohol to protect him from, heaven forbid, contracting an infection from a contaminated needle used for the lethal injection.

  Benny had a baffled expression. “Who the hell is in Potosi?”

  I looked up at him. “Herman Warnholtz.”

  Benny’s eyes widened. “He’s still alive?”

  “Barely,” I said. “He’s in his eighties and has terminal cancer.”

  “How did Jonathan locate him?”

  “Easier than you’d think. One phone call to someone in the corrections division. They ran the name through the computer and pulled it right up. Jonathan had someone in the A.G.’s office call down to Potosi to tell them that I needed to talk to Warnholtz as soon as possible. He told them it had to be at night because I was in trial all day.” I checked my watch. “I have an appointment in two hours if I want it. All I need to do is call down there to confirm it.”