Bearing Witness

by Michael A. Kahn

  The only important people missing from the courtroom were my best witnesses: Gloria Muller, Harold Roth, and Herman Warnholtz—all dead. And Kurt Robb, of course. He was in lockup in the city jail on a variety of misdemeanor charges (trespass, assault) that would keep him on ice for another twenty-four hours. That ought to be enough time.

  I glanced over at Benny. He looked wired this morning, and with good reason. Neither of us had slept a wink last night. I hadn’t pulled an all-nighter since law school, but I was hanging in there so far. We’d left the police station at close to three in the morning. One of the cops drove us back to Union Station to retrieve our car. Sleep had been out of the question. There’d been just too much to do. Jacki, God bless her, had been a real trooper, as had my volunteers: they all came in at four-thirty in the morning to help assemble the exhibits, make the transparencies, and take care of the dozens of little tasks that needed to be ready before the trial resumed at ten o’clock this morning.

  My first courthouse appearance this morning had actually occurred much earlier. I knew that Judge Wagner usually got to court by seven-thirty. Accordingly, I was waiting at the entrance to the judges’ parking area when she pulled up at 7:25 a.m. I handed her copies of the financial records we’d taken from the clocktower, along with copies of the newspaper articles from the other five cities. I explained what they were, and then I drove back to my office praying that she’d concur. At ten to nine, her clerk called to inform me that Her Honor would allow the audiotapes into evidence with a cautionary instruction to the jury. I traded high-fives with my trial team and went back to gathering the materials for court.

  At ten-fifteen, the courtroom buzzer sounded. We stood as the side door opened and Judge Catherine Wagner swept into the room, her blond hair flowing behind her. She took her seat in the high-back leather chair behind the bench and turned toward the jury.

  “Ladies and gentlemen,” she began, “in a few minutes plaintiff’s counsel is going to play an audiotape for you. It’s an interview she conducted two nights ago with a man named Herman Warnholtz. At the time of the interview, Mr. Warnholtz was serving a life sentence for a vicious murder back in 1942. Mr. Warnholtz had terminal cancer at the time of the interview.” She paused. “He died several hours after the interview.”

  I could hear a rush of whispers behind me. Her opening comments had ratcheted the courtroom tension several notches higher. I eyed the jurors. A few glanced at one another, but for the most part they sat with their arms crossed staring at the judge, their faces solemn.

  “As a result,” Judge Wagner continued, “all we have are Mr. Warnholtz’s unsworn statements. Even worse, Ms. Howard never had an opportunity to ask Mr. Warnholtz any questions.” She paused to smile. “We all know that Ms. Howard would have had some tough questions for him.”

  A few of the jurors smiled and nodded. The others just sat there, their faces grim.

  Judge Wagner frowned and shook her head. “But sometimes we have to try to deal with evidence that’s less than ideal.” She gazed at the jurors. “What you’re about to hear, ladies and gentlemen, is hearsay. You’re going to hear a tape recording of a series of unsworn statements by a convicted murderer. I caution you to listen to this tape with a skeptical ear.” She studied the jurors for a moment and then gave them a reassuring smile. “I am confident that you will do that.” She turned to me. “Counsel?”

  I stood. “Your Honor, we have a few exhibits that we’d like the jury to be able to see while they listen to the tape.”

  Judge Wagner nodded and turned to the jury. “In the audiotape, you will hear Mr. Warnholtz explain that at the time of his arrest in 1955, he asked his brother to hide certain documents in the clocktower at Union Station.” She turned back to me. “Let’s do that part now, Counsel.”

  I glanced over at Benny. “Plaintiff calls Benjamin Goldberg to the stand.”

  Benny stood and walked over to the witness box. As the clerk swore him in, I noted with relief that the shower, shave, and navy blue suit had him looking downright trustworthy.

  I took him through the preliminaries—name, residence, occupation, etc.—and then had him describe our journey up and over the Grand Hall and into the clocktower. Benny was the perfect witness for this: he was, after all, an extremely articulate man with superb storytelling skills. The jury listened to him intently. Two jurors were actually leaning forward in their seats, enthralled by the tale.

  “The safe was exactly where he said it would be,” Benny explained to the jury. “Five limestone blocks in from the left, three blocks up from the floor.”

  “Tell the jury what happened next.”

  “Well, he said on the tape that the combination to the safe was Hitler’s birthday, which happens to be April 20, 1898. So we gave it a try.” He motioned with his hand, as if turning the combination knob. “Four…twenty…eighteen…ninety-eight.” He nodded. “Sure enough, it popped right open.”

  I paused. The jurors were hanging on Benny’s every word. There wasn’t a sound in the courtroom.

  “What was inside?” I asked.

  “A large envelope.”

  “Did you bring it with you today?”

  Benny nodded. “Right over there,” he said, pointing at the package in front of Ruth Alpert.

  As I moved toward the table to retrieve the envelope, I glanced toward the gallery. The spectators were spellbound. Stanley Roth looked ashen. I carried the envelope over to Benny and handed it to him. “Take a moment to examine the contents, Professor.”

  He did.

  “Can you identify them?”

  He looked up with a confident nod. “These are the documents we found inside the safe.”

  I turned to the judge. “Your Honor, we offer this envelope and its contents as Plaintiff’s Group Exhibit Forty-eight.” I turned toward Kimberly. “I have an extra set here for defendant’s counsel.” I walked over and handed them to Kimberly, who looked too dazed to say a thing.

  “Any objection?” Judge Wagner asked her.

  From the expression on Kimberly’s face, I could tell she was trying to get her brain to shift out of neutral into first. It took a moment for the gears to mesh. “Yes,” she said uncertainly. “Hearsay. Lack of foundation.”

  “Overruled.”

  I looked at Benny and then the judge. “No further questions.”

  “Any cross-examination?” Judge Wagner asked.

  As Kimberly rose and moved toward the podium, I saw Conrad Beckman grab the set of documents and pull them in front of him. He slowly leafed through them. For the first time in the trial, there was a look of concern on his face.

  “Professor Goldberg,” Kimberly said, having regained some of her spunk, “let’s get this straight. You are a professor of law, correct?”

  “Yes, ma’am.” He was the essence of polite humility.

  “And as a professor of law you study the law, correct?”

  “Yes, ma’am.”

  “And you write about law, correct?”

  “Yes, ma’am.”

  “And you instruct law students in the law, correct?”

  “Yes, ma’am.”

  “Then perhaps you can instruct us, Professor. Last night, when you and Miss Gold were gallivanting around the clock tower, were the two of you—one a professor of law, the other a lawyer—were the two of you violating any laws?”

  Benny gave her a sheepish grin. “Probably.”

  “Probably? Come now, Professor. Remember back to first-year property. I believe what you and Miss Gold committed last night is called ‘trespass,’ isn’t it?”

  Benny raised his eyebrows and nodded. “I believe you are correct.”

  “And while you and your cohort were in there trespassing, I believe you testified that you started chopping away at the mortar and tearing out bricks and otherwise destroying private property, Professor. That violate
d another law, correct?”

  Benny nodded. “You’re probably correct, Ms. Howard.”

  “As a matter of fact, indeed”—and here she paused to smirk—“as a matter of law, the only proper thing to have done if you really thought there might be something up there in that clock tower was to go to the police, correct? Go to the police, file a report, and ask them to search the clock tower. Correct?”

  Benny shook his head. “Nope.”

  “No?”

  He nodded. “Too risky.”

  I caught my breath.

  Kimberly gave him an exaggerated look of puzzlement. “Too risky?”

  I crossed my fingers. I knew exactly what Benny was doing: dangling the bait. Kimberly had been trained, as I’d been trained, to ignore that bait, to change the line of questioning, to move on, to never ask that next logical question, to never utter that most dangerous word in all of cross-examination. But even the most rigorous training can’t overcome instinct, as I’d discovered on more than one unhappy occasion.

  Kimberly stared at Benny as she moved back to the end of the jury box. Her position would force Benny to look at the jurors when he answered her next question.

  “Too risky to go the police?” she repeated, her tone heavy with sarcasm.

  “Yes, ma’am.”

  Here we go. Come on, Kimberly.

  “Why?” she asked.

  Yes!

  Benny shrugged. “Because every time Rachel found a witness with incriminating evidence against your client, that witness died. Gloria Muller knew bad things about your client, and someone killed Gloria Muller with a shotgun. Harold Roth knew bad things about your client, and someone shot Harold Roth between the eyes. And Herman Warnholtz certainly knew bad things about your client, and now Herman Warnholtz is dead.” He nodded his head thoughtfully, doing his Jimmy Stewart number. “You’re right about that police report, Ms. Howard. We could have made one, but that wouldn’t guarantee a search warrant, and even if the cops decided to get one, it might take a couple of days and the word might leak out before then. Frankly, Miss Howard, I was worried that anyone who was willing to kill people to keep out evidence against Mr. Beckman wouldn’t hesitate to destroy these records”—he lifted up the manila envelope—“if we gave them half a chance. As a matter of fact, it turned out that we were being followed inside Union Station that night. When Rachel came down out of the clocktower—”

  “Stop!” Conrad Beckman roared.

  The courtroom was silent. Beckman was standing at counsel’s table, one handing grasping the sheaf of financial records from the safe, his face scarlet, his eyes burning with rage.

  “Counsel,” he snapped at Kimberly.

  She hurried over to the table. He grabbed her by the shoulder and started whispering to her furiously.

  After a moment, Judge Wagner said, “Ms. Howard?”

  Kimberly looked over apologetically. “Just a moment, Your Honor.” She turned back to Beckman, who immediately started in again.

  “Ms. Howard,” Judge Wagner repeated, this time more forcefully. “Now.”

  Kimberly nodded at Beckman and turned to the judge. “Your Honor, may we approach?”

  Judge Wagner gave her a stern look. “Quickly.”

  I followed Kimberly up to the bench. The judge stared at her with displeasure as we waited for the court reporter to join us with her shorthand machine.

  When the court reporter had her machine set up, the judge shook her head at Kimberly and said, “Put a muzzle on your client, Ms. Howard, or I’ll hold him in contempt.”

  “I apologize, Your Honor. Mr. Beckman is somewhat upset.”

  Judge Wagner gave her a withering look. “So am I.”

  “Judge,” Kimberly said, “we’d like to settle the case right now. We’re prepared to make a substantial offer.”

  Judge Wagner looked at me. I shrugged. “Your Honor, they made a substantial offer last night. My client turned it down.”

  “We’re prepared to increase that offer significantly,” Kimberly said quickly, keeping her voice low. “Assuming liability here—an assumption we would never make but for settlement—our damages expert has calculated the maximum exposure at forty million dollars.” Kimberly paused. “We are prepared to offer that amount in settlement.”

  Judge Wagner was taken aback. “You’re offering forty million dollars?”

  “Right now, Your Honor. On the condition that this trial terminate immediately, and that all evidence, including the audiotape and the documents from the safe, be turned over to us for disposal in our sole discretion.”

  Judge Wagner turned to me uncertainly. “Counsel?”

  Forty million dollars? Ruth’s share would be twelve million dollars.

  “I’ll need to confer with my client.”

  She studied me for a moment, her lips pursed in thought. “Very well. Step back.”

  We returned to our seats.

  Judge Wagner looked over at the jury. “Ladies and gentlemen, the court will be in recess for ten minutes.”

  She waited until the last of the jurors had filed out of the courtroom and then turned to all of us. “I’ll expect to see counsel in my chambers in exactly five minutes.”

  “Your Honor,” Kimberly said, “the defendant requests that the representative of the United States government be present in your chambers as well.” She turned and gestured toward Philip Balding, who was seated in the third row. Balding was the skinny weasel from the Department of Justice who’d been assigned to monitor the case on behalf of the government—the same weasel who’d declined to take over the case last fall. I could still remember the gray November morning when Balding’s letter had arrived.

  Judge Wagner nodded. “That’s fine with me. Okay, Mr. Balding?”

  He stood up, anxiously buttoning the jacket of his wrinkled brown suit. He was wearing wire-rim glasses and a crooked gray bow tie. “Certainly, Your Honor,” he announced in a nasal voice.

  ***

  The jury was in the jury room, the defense team (numbering more than a dozen now) had staked out the conference room across the hall from Judge Wagner’s chambers, the spectators and a gaggle of Beckman Engineering officials were milling in the aisles, and journalists were trolling the hallway outside the courtroom armed with notepads and tape recorders, ready to pounce on any warm body remotely connected to the trial who was foolish enough to venture out for the water fountain or the restroom. The only place with any semblance of privacy was the empty jury box, and that’s where we huddled—Ruth, my mother, Benny, and I.

  “But if I take the money, they won’t play the tape,” Ruth said to me.

  I nodded. “That’s the trade-off. Say yes to the money and the trial ends now. Turn it down, and we’ll bring back the jury, play the tape, and get on with the trial. In two or three weeks, we’ll hear the verdict. You could end up with more than their offer, and you could end up with nothing.”

  Ruth was struggling. “I just don’t think I should settle. I don’t think I should.” She looked at Benny and my mother.

  Benny shook his head in wonder. “You sure, Ruthie? We’re talking megabucks here.”

  “But I want them to know, Benny. It’s for him, not for me.” She turned to my mother. “Am I crazy, Sarah?”

  My mother shrugged. “I’m not going to kid you, Ruth. You’re acting a little meshuggah.” She smiled and patted her hand. “But that’s okay. In this life there are some things more important than money. And let’s face it: you weren’t rich before, so you’re not giving away anything you already have.”

  I squeezed Ruth’s hand. “Remember,” I said gently, “this is your lawsuit, not ours. You had the courage to take it this far. Whatever you decide now is the right decision.”

  She looked at me, her eyes moist but fervent. “I want them to hear it, Rachel. For Harry’s sake. I want them to
know.”

  I put my arm around her shoulder and kissed her on the cheek. “Then they will.”

  Benny shook his head in wonder. “They’ll know one thing for damn sure: don’t mess with Ruth.”

  I smiled. Benny was right. Ruth and I had been battling this well-funded army of lawyers and paralegals and investigators and experts for months. We’d been dodging mortar shells and cannonfire for weeks on end, and we were still standing. Bloody but unbowed. I was enough of a realist to know that this war of attrition could still end in a smashing rout. Nevertheless, here we were, about to thumb our noses at a forty-million-dollar offer from one of the most powerful corporations in St. Louis. There was a certain demented glory to that. I was proud of her.

  I gave her wink. “Let’s do it.”

  I turned to the first row on our side of the gallery, where Jacki and my five volunteers were anxiously watching. I winked and gave them the thumbs-up. They answered with big grins. Zack pumped his fist in the air and hollered, “Yes!”

  ***

  No?” Kimberly was practically shouting in outrage.

  I shrugged. “She wants the tape played.” There were five of us in chambers: Judge Wagner, seated behind the desk; Kimberly Howard and Stanley Roth for the defendant; Philip Balding for the government; and me.

  Stanley put up his hand to quiet Kimberly and turned to the judge. “Your Honor, I’m afraid Miss Gold and her client have lost sight of the fact that this is a qui tam case. The real party in interest is the United States government. I’ve had an opportunity to talk to Mr. Balding earlier this morning and again during this recess. He’s delighted with our offer and is prepared to recommend it to his superiors.” He turned to Balding. “Tell them, Philip.”

  “Yes, indeed.” Balding pulled at the loose skin over his Adam’s apple as he nodded rapidly. “I am prepared to recommend the settlement.”

  “Forget it!” I turned on him, outraged. “You have no standing here, buster. None whatsoever.” I stood over him, my face flushed with emotion, all the months of frustration suddenly bubbling over. “When we presented this case to you last year, when we asked our government to take it over and relieve us of the enormous burden of preparing the case for trial, you said no. You turned us down.” I paused, catching my breath. “Well, guess what? We’re turning you down.” I jabbed my finger at him for emphasis. “My client is still the relator here, and that means she’s still in charge.”