Bearing Witness

by Michael A. Kahn

  “I hardly think so,” Kimberly said, turning to me with an glare. “Ask now or forever hold your peace.”

  I kept my eyes focused on the judge. “There’s no need for Your Honor to resolve that issue before it’s ripe.”

  Judge Wagner looked up from her papers and fixed me with a chilly stare. After a moment, she asked, “And after Mr. Beckman?”

  “I’ll be reading the deposition of Otto Koll.”

  “Alone?”

  “I’ll have an assistant in the witness box to read the part of Mr. Koll.”

  “Who?” she asked.

  “Professor Goldberg, Your Honor.”

  “Oh, come on,” Kimberly scoffed.

  Judge Wagner gave me a severe look. “I assume you will impress upon Professor Goldberg the fact that he will be appearing today in a United States District Court and not the Comedy Club.”

  “He understands that, Your Honor.”

  “And after the Koll deposition?”

  I went through the rest of my plans for the day: testimony from a Beckman Engineering employee in the government contracts division, presentation of a series of summary exhibits prepared from Beckman Engineering’s bid documents, and—if time permitted—the beginning of the testimony from one of my expert witnesses.

  “There’s one last item,” I said. I handed a copy of the habeas application to Kimberly and the original to the judge. “Plaintiff has learned of an important witness. As you see from the application, he’s an inmate at Potosi.”

  I waited until the judge finished reading the four-page application and my attached affidavit. When she looked up from the documents, I continued, “He has direct personal knowledge of the conspiracy, Your Honor. I’d like to put him on tomorrow morning. He is, however, quite ill. If he’s too sick to be transported to St. Louis, I ask for leave to do a videotape deposition one night this week.”

  Judge Wagner looked over at Kimberly. “Counsel?”

  I could tell from Kimberly’s expression that she hadn’t the foggiest idea who Herman Warnholtz was. It confirmed my hunch. I’d been purposefully vague in my habeas application and in what I said to Judge Wagner about the witness. That’s because I assumed that there was only one person connected with Beckman Engineering who would have any idea of the significance of Herman Warnholtz’s testimony, and that person was not in Judge Wagner’s chambers. I almost felt sorry for Kimberly.

  “Defendant objects,” she said, regaining her mettle. “This is trial by ambush. Miss Gold doesn’t have this man on her witness list. We have no idea who he is.”

  “Your Honor,” I said, “up until two nights ago I had no idea who this man was, either. Mr. Beckman, however, most assuredly knows exactly who he is. I drove down to Potosi after court yesterday to interview the witness and learned that he has direct personal knowledge of critical facts going to the heart of this case.” I took a deep breath and exhaled slowly. “I believe that Mr. Warnholtz’s testimony will destroy the defendant.”

  “Please, Counsel,” Judge Wagner said, “save the hyperbole for the jury.” She turned to Kimberly. “I’m inclined to grant this application in part.” She looked at me. “Given that Mr. Warnholtz is quite ill, I’m reluctant to order him brought to St. Louis. I’ll have my clerk check with the prison officials this morning to get a clearer sense of his medical condition. If he’s strong enough for a videotaped deposition, I’ll order one to take place in Potosi on Saturday. If the witness has any admissible testimony, we’ll play the videotape to the jury next week.”

  When we returned to the courtroom, I kept an eye on Kimberly. She gathered her troops into the corner to explain the Herman Warnholtz development. The huddle broke with one of the younger associates dashing out of the courtroom door, no doubt to return to Roth & Bowles to launch a frenzied search for information about Warnholtz.

  Kimberly signaled for Conrad Beckman, who had been sitting in the front row of the gallery with two of his assistants going over certain business matters. Beckman joined her in the corner. I watched them closely. He listened to her carefully, rubbing his chin as she talked, his face set in a contemplative expression. When she had finished, she nodded toward me. His eyes followed her gesture. Beckman and I stared at one another. I expected some reaction, perhaps a flicker of anxiety or a flash of anger, but his eyes were dead, his face a blank. I turned away, troubled.

  ***

  Conrad Beckman settled into the witness chair, a placid expression on his face.

  “You understand that you are still under oath?” I reminded him—and the jury.

  He nodded. “I do.”

  “Do you know a man named Herman Warnholtz?”

  Another nod, completely unruffled. “It’s been many years. We grew up in the same neighborhood.”

  “When was the last time you saw Mr. Warnholtz?”

  He seemed to think it over. “A long time ago,” he said, shaking his head. “Probably not since before World War II.”

  “Mr. Beckman, were you and Mr. Warnholtz ever anything more than childhood pals?”

  He gazed at me, his expression almost serene. “Not that I recall, Miss Gold.”

  “When you were both adults, Mr. Beckman, were you and Mr. Warnholtz ever members of any organizations together?”

  “Not that I recall, Miss Gold.”

  I walked over to the chart showing the other five companies and their founders. “When you were both adults, Mr. Beckman, were you and Mr. Warnholtz ever present at any meetings also attended by any of these men?”

  “Not that I recall, Miss Gold.”

  His composure was impressive, and unsettling. He knew what was coming, possibly as soon as tomorrow, more likely by videotape early next week. Could his strategy be to simply tough it out, to deny Warnholtz’s allegations, to characterize them as the ramblings of a bitter, dying killer? Or was he simply conceding what he knew he had to concede—that he grew up in the same neighborhood with Warnholtz—while refusing to budge on any important issue?

  No matter. I’d established all I needed to establish through Beckman. The rest would come from Warnholtz’s mouth.

  “Mr. Beckman, is there anything else of significance that you recall about your relationship with Herman Warnholtz?”

  Beckman leaned back in the witness chair and frowned in thought, or at least pretended to. After a long pause, he shook his head. “I don’t think so.”

  “Is there anything that you and Mr. Warnholtz did together that you feel like sharing with this jury?”

  “I don’t think so.”

  I paused. “Are you sure?”

  He observed me coolly. “Nothing comes to mind, Miss Gold.”

  I turned toward the judge. “No further questions.”

  ***

  Benny and I finished reading the deposition of Otto Koll to the jury shortly after noon. Judge Wagner announced that court would be in recess until two o’clock. After the jury filed out of the courtroom, I started gathering my papers.

  “Counsel,” Judge Wagner said, “please approach.”

  Kimberly and I stepped toward the podium. Judge Wagner was holding my writ application in her hand.

  “My clerk spoke with the warden down at Potosi.” She looked toward me with an expression that bordered on sympathy.

  I caught my breath. Something was very wrong.

  “There has been a change of circumstances down there,” she continued. “I’m afraid your application has been rendered moot, Ms. Gold.”

  I gripped the podium for balance. “Moot?”

  “The inmate passed away during the night.”

  “He’s dead?” I was numb. “How?”

  Judge Wagner shrugged. “Apparently in his sleep. His cancer was terminal.” She took out her pen and scrawled Denied, Moot across the first page of my writ application. She looked up and nodded firmly. �
�Ladies, I’ll see you back here at two.”

  Chapter Twenty-seven

  Herman Warnholtz was dead, but I had the tapes. Nearly two hours of my questions and his answers. Powerful answers. Astounding answers. Unfortunately, every answer carried the same warning label: inadmissible.

  I’d reached the evidentiary barricade known as the Hearsay Rule, and I needed to find the right key to unlock that gate. I had only ninety minutes to find it. But before heading upstairs to the law library to start my search, I sent Benny down three flights to the U.S. Attorney’s office with instructions to double-check on the security arrangements and make another copy of the audiotapes. The originals were stored in the evidence vault in the U.S. Attorney’s office, thanks to some assistance from Jonathan this morning. My paranoia level—already high when I called him for help at eight in the morning—had jumped even higher with the news of Warnholtz’s death. His disease may have been terminal, but I was certain that cancer was not the cause of death. That type of convenient coincidence only occurs in fiction.

  The Hearsay Rule.

  For fans of courtroom drama, no scene is more familiar than that of opposing counsel leaping to his feet to declare, “Objection! Hearsay.” But for the trial lawyer in a real courtroom, as opposed to the one up on the silver screen, no doctrine is more tangled and frustrating.

  ***

  The Hearsay Rule.

  In the usual hearsay situation, there are two witnesses: the one on the witness stand and another one outside the courtroom. The one on the witness stand is essentially the repeater: his role is to tell the jury what he heard the other one say. The repeater meets the basic requirements for admissible testimony: (1) he’s under oath, (2) he’s present in the courtroom so that the jury can eyeball him, and (3) he’s subject to cross-examination. But the real witness—the one whose statement is being repeated—isn’t under oath, isn’t in the courtroom, and can’t be cross-examined.

  “What did you hear him say?” Thus, hear-say.

  Objection, Your Honor.

  Sustained.

  Simple as that. But…it’s rarely that simple. Sometimes an important witness, someone who ought to be in the courtroom to testify, isn’t there. Maybe he’s out of town. Maybe he’s dead. Or maybe the key statement is a written one—perhaps in a letter or a police report or a hospital record. Each of those documents can contain highly relevant information for the trial, but each is a classic example of an out-of-court statement. How does one cross-examine, say, a purchase order?

  And thus the hearsay dilemma for the judge: the choice between evidence that is less than ideal and no evidence at all. In grappling with that dilemma, the courts have carved out dozens of specific exceptions, each for a situation where other factors supply the trustworthiness that the Hearsay Rule was designed to ensure. The challenge for the trial lawyer is to find the exception that opens the gate to the hearsay evidence he wants to present. That was certainly my challenge. The audiotapes were classic hearsay: (1) Warnholtz wasn’t under oath; (2) he wasn’t in front of the jury; and (3) he couldn’t be cross-examined, at least not in this lifetime.

  I rooted around in the evidentiary grab bag for ninety minutes and returned to the judge’s chambers with a few possible fits, including the Dying Declaration, the Co-conspirator Exception, and that battered skeleton key known as Rule 804, which will unlock the gate when no other key fits, but only if the court determines that “the interests of justice will best be served by admission of the statement into evidence.”

  “Audiotapes?” Kimberly said in outraged disbelief. “Your Honor, that is the rankest of hearsay. Moreover, it is thoroughly tainted by the surrounding circumstances. To begin with, Mr. Warnholtz was serving a life sentence for a crime so heinous that it undercuts any contention that he could be a credible witness. In addition, he was in the final stages of a terminal disease that in all likelihood had blurred the line between reality and illusion. The man could have been hallucinating for all we know.”

  “Judge,” I said, holding up an audiocassette, “this is an excerpt from the interview. All I ask is that the Court withhold its decision until listening to this, perhaps during our afternoon recess. I can assure you that Mr. Warnholtz was completely lucid throughout the interview. The testimony on this tape is more compelling than you can possibly imagine.”

  “Testimony?” Kimberly repeated disdainfully. “Don’t try to dress up that murderer’s blather with fancy names.”

  “Your Honor?” I said.

  Judge Wagner frowned, clearly troubled. “What?”

  I leaned across the desk and placed the audiocassette on her blotter. “Please listen to it, Judge. I realize this is an unusual request. I wouldn’t make it if I didn’t believe it was important.”

  Judge Wagner lifted the cassette and studied it carefully. “I’ll listen to it, Counselor,” she finally said, shifting her gaze to me, “but I wouldn’t get your hopes up.”

  I didn’t. But when we took our afternoon recess at 3:15 p.m., I prayed that she’d listen to at least some of it. The tape I’d given her lasted twenty minutes and included two excerpts—one having to do with the bid-rigging conspiracy and one that was far more chilling.

  The recess was supposed to last fifteen minutes. Judge Wagner didn’t return to the bench until three-fifty, and when she did, her demeanor had changed. Gone was the buoyant authority figure. She seemed pale, almost subdued. Before the jury filed in, she asked me when I could supply her with a full copy of the interview tape.

  “Right now, Your Honor.” I reached into my briefcase. “I have an extra copy with me.”

  “Leave it with my clerk.”

  Kimberly jumped to her feet. “Your Honor, I assume Ms. Gold has a copy for us as well.”

  Judge Wagner looked at her dully. “What?”

  “A copy of the interview tape, Your Honor. Defendant is entitled to review it as well.”

  Behind me, I could hear the buzz in the gallery. There were at least a dozen reporters back there. None of them had any idea what we were talking about, but all had now heard the word “tape” several times.

  I stood up. “With the Court’s permission, we’d prefer to wait until Your Honor has had an opportunity to listen to the entire tape before we start distributing copies.”

  “Miss Gold may prefer to keep us in the dark,” Kimberly said angrily, “but her preference is irrelevant here. Defendant insists upon a copy of the tape.”

  Judge Wagner shook her head. “I’ll review it tonight. We’ll decide tomorrow whether copies are appropriate.”

  ***

  The first call came at six-fifty that night. We were sitting around my conference-room table eating pizza at the time—Benny, Ruth, my mother, Jacki, the five law student volunteers, and me.

  “It’s for you,” Jacki said, handing me the phone.

  I took it reluctantly. Putting my hand over the receiver, I whispered to Jacki, “Who is it?”

  “Some woman.” Jacki shrugged. “Probably another reporter.”

  I sighed. “Hello?”

  “Rachel, this is Catherine Wagner.”

  It took a moment. “Oh, hello, Your Honor.”

  The others in the room immediately hushed.

  “I just finished listening to the tape.”

  “Oh.”

  I waited, tense. The others in the room were staring at me.

  “My God,” she finally said. “It’s, well, it’s overwhelming.”

  “I know.” My spirits jumped. I gave a halfway thumbs-up signal to the others in the room.

  “But Kimberly has a point,” she continued in a concerned voice. “What if the disease had affected his mind? Or even worse, what if it’s all a lie? What if he was consumed with jealousy over Conrad Beckman’s success and decided to try to ruin him? What if this is all just a revenge scheme?”

  “But why
wait all these years?” I said.

  “Perhaps, but that same question applies even if everything he said is true. Why wait all those years?”

  “Because no one asked.” I was growing concerned. I could sense I was losing her. “He explains on the tape, Your Honor. Lindhoff was the only one who ever tried to get information out of him. After Lindhoff died, no one bothered to ask him. And even if someone had, even after Beckman broke his promise, Warnholtz knew that he’d be a dead man if he talked. But that was no longer a factor at the end. Death wasn’t a threat. Whether he talked or not, he was still dying of cancer.”

  There was a long pause.

  “I’ll need corroboration,” she said.

  “Pardon?”

  “That tape is hearsay, Rachel, and the most dangerous type. Good God, the stuff on there is toxic. It’ll destroy Beckman’s reputation. He’ll never recover. I must have corroboration before I let anyone hear it. I need independent confirmation that what that man told you is true.”

  “What kind of corroboration?”

  “That’s your problem, Rachel. But without it, that tape isn’t coming into evidence.”

  The second call came ten minutes later while we were trying to decide whether the newspaper articles that Zack and Jake had been able to locate from the other five cities would be sufficient corroboration for the judge.

  “It’s Stanley Roth,” Jacki said, as she handed me the phone.

  “Rachel,” he said, “we need to talk.”

  I shook my head in exasperation. I didn’t have time for this. “Why, Stanley?”

  “We have a new settlement offer. I think you and your client will find it extraordinarily attractive.”

  I closed my eyes and exhaled slowly. “Just give me the dollar amount over the phone, Stanley.”

  “It’s a little more complicated than that. We need to talk in person, Rachel. I’m calling from a meeting at the Hyatt down at Union Station. It ought to be breaking up around ten. I’d be happy to drop by your office if you’re still there that late, or I can come by your house if your prefer. Which sounds better?”