The Sixteenth Rail

by Adam Schrager

  “I am.”

  “Now, in that connection, for how many years have you done this work?”

  “21 years.”

  “How many pieces of wood do you examine a year for the Government?”

  “Each year there are submitted from 2,000 to 3,000 samples of wood for identification which I handle.”

  Despite all of his preparation leading up to this point, Koehler was surprised that Wilentz was examining him. He had been prepped all along by Wilentz’s assistant, Robert Peacock, and had assumed he’d be the one asking questions. But the attorney general was not about to delegate his star witness.

  Koehler proceeded to explain the cases he had testified in before, including the Magnuson murder trial, giving details regarding the bomb he had helped trace by the wood in its casing.

  “In addition to your experience in the manner you have just indicated,” Wilentz continued, “have you had experience as a carpenter?”

  “Why, I have worked on a number of carpenter jobs. My father was a carpenter by trade, had a large assortment of tools, and I have worked on the construction and repair of buildings and on cabinet work.”

  From there, Wilentz steered him toward Rail 16.

  “Did you take off this rail 16, a part of Exhibit S-211, for the purpose of investigation in the attic of the Hauptmann home?

  “I did.”

  “When did you do that?”

  “I made that investigation on October 9, 1934, the first time.”

  “Having taken off this section rail 16, what did you find?”

  “I found that the nail holes in it corresponded exactly with four nail holes in the joists in that attic and the grain of the wood in that rail corresponded exactly with the grain of wood of the board next to it.”

  Wilentz was ready for the big question, the one that would, as he had promised, “wrap the kidnap ladder” around the neck of Bruno Richard Hauptmann.

  Wilentz began, “Tell me whether or not there is any relationship, in your opinion, between rail 16 and exhibit S—what is the number?”

  “I object to the question,” Pope said before the conversation went any further. “I object to the expression ‘in your opinion’ by the witness.”

  Trenchard asked Koehler not to answer until the judge had heard Pope’s full objection. The defense lawyer, who like several others involved with this case loved woodworking, had been selected to tangle with the evidence surrounding the ladder and the witness set to deliver it.

  “The witness cannot say whether there is any relationship except by expressing his opinion, and we say that this witness is not qualified to express an opinion regarding wood,” Pope declared.

  Trenchard looked surprised and said, “Do you say that he is not qualified as an expert on wood?”

  “We say that there is no such animal known among men as an expert on wood,” Pope responded. “That it is not a science that has been recognized by the courts; that it is not in a class with handwriting experts, with fingerprint experts or with ballistic experts. That has been reduced to a science and is known and recognized by the courts.

  “The witness probably may testify as an experienced carpenter or something like that,” Pope continued, “but when he attempts to qualify and express opinions as a wood expert, that is quite different.”

  “Well, of course, the term ‘wood expert’ is a broad term,” Trenchard responded. “It might very well be limited so far as this case is concerned. What I am trying to find out is the basis of your objection. Do you object to his qualifying as an examiner of wood and to finding out the history of that wood? Do you object to that?”

  “Yes, certainly we do, and that he is not qualified to express an opinion,” Pope replied. He continued,

  For instance a physician examines a patient and he finds certain symptoms, he expresses an opinion. He is qualified because he represents a science. A fingerprint expert examines finger prints, he makes measurements and comparisons. He expresses an opinion because that has been reduced to a science and has been recognized by the courts, but this is no science. This is just merely a man who has had a lot of experience in examining trees, who knows the barks on trees and a few things like that.

  He may come into court and he may tell what he did and what he saw, but when it comes to expressing an opinion as an expert or as a scientist, why that is quite different indeed. We say that the opinion of the jurors is just as good as his opinion, that they are just as qualified to judge whether there is any relationship between those two pieces of board as this man of experience as he terms himself.

  In response, Justice Trenchard said that he was inclined to view Koehler as an expert but would give Pope time to cross-examine him to determine the extent of his credentials.

  Wilentz chose that moment to weigh in.

  “If your Honor please, may I suggest now, of course I have no objection to cross examination as to qualifications at this time.”

  Before Pope could begin his questioning, Trenchard adjourned the court for lunch at 12:27, to reconvene at 1:45 p.m. At that point the scientist who rarely expressed a temper likely uttered a few “Ding bust its,” the closest he would come to profanity. He smiled a quick smile at Ethelyn before leaving the courtroom with the prosecutors to discuss their next strategy.

  “He and Wilentz conferred on how they could put the defense down the hardest,” Ethelyn would write home.

  For once, Case couldn’t wait to take those 160 steps. He didn’t hold the group up this time on the walk back to the courthouse from lunch. His enthusiasm for the afternoon session was palpable.

  When court reconvened, the strategy Wilentz, Koehler, and the others on the prosecution team had devised over the lunch hour was fully on display. Its brilliance lay in its simplicity.

  “Mr. Pope, I will make an effort to qualify Mr. Koehler, if there is any question about it,” Wilentz began. “Mr. Koehler, are you a graduate of any university?”

  “Yes.”

  “Will you tell us what university, when you graduated, and the course you pursued there?”

  “I graduated from the University of Michigan in 1911 where I pursued the course in forestry,” Koehler calmly replied. “Later on I took some post-graduate work at the University of Wisconsin in forest products and received the degree of Master of Science at the University of Wisconsin in 1928.”

  “Have you devoted your entire adult life to this work?”

  “I have.”

  “Are you the author of any papers on the subject and books?”

  “Yes, I have written a number of government bulletins and a book.”

  “Have you some of these bulletins and books here?”

  “I have.”

  “Will you please get them for us?”

  “Yes. I have here a number of bulletins, reprints, a book and a list of publications other than these.”

  “You are giving to me then a book published by the McGraw, Hill Book Company entitled, ‘The Properties and Uses of Wood’ and this Koehler referred to here is yourself, is that so?”

  “Yes.”

  Case and the jury were fascinated. The defense table was beginning to see the path this would take, yet Pope had inadvertently laid its foundation. After Wilentz offered the book into evidence, the rest of their plan played out.

  “Can you read for us the list of publications of which you are the author so as to avoid the necessity of presenting all the papers for the defense?” Wilentz said without the hint of a smile.

  “There are a large number here, 52 altogether,” said Koehler simply.

  “All right,” Wilentz could barely contain himself now, knowing he was about to score a major victory. “Tell us all of them.”

  “‘An Improved Method of Infiltrating Wood with Celloidin,’ ‘Our National Forests,’ ‘How Taste of Wood Affects its Use,’ ‘How th
e Odor of Wood Affects its Use,’ ‘What Makes Wood Float,’ ‘The Burning of Wood,’ ‘How a Tree Grows,’ ‘Forest Trees as Sources of Food,’ ‘What Wood is Made of.’”

  Mouths were starting to open. Reporters noted that Case “perked his ears.” Pope could do nothing.

  “‘A Visual Method of Distinguishing Long Leaf Pine,’ ‘Identification of Oak Woods,’ ‘Woods Older than the Hills,’ ‘Native Woods as a Passable Substitute for Boxwood,’ ‘Guide Book for the Identification of Woods used for Ties and Timbers,’ ‘A Plea for a Closer Discrimination in the use of the words Grain and Texture with Respect to Wood,’ ‘How to Distinguish Douglas Fir from Sitka Spruce.’”

  Koehler would serve as the final prosecution witness in what H. L. Mencken called “the greatest story since the Resurrection.” His testimony would earn him comparisons to Sherlock Holmes. He was so convincing, Hauptmann’s lead lawyer said, “I have never heard more damaging testimony or seen a more enthralling demonstration than that presented in the courtroom today by Arthur Koehler.” (Courtesy: Dr. Regis Miller/Forest Products Laboratory)

  Koehler’s voice continued consistently, matter-of-factly.

  “‘Information for Inspectors of Air Plane Wood,’ ‘The Grain of Wood, With Special Reference to Direction of its Fibres,’ Also part of the ‘Inspection Manual of Aircraft Production,’ ‘American Substitutes for Boxwood,’ ‘Relation of Moisture Content and Drying Rate of Wood to the Humidity of the Atmosphere,’ ‘Factors Affecting the Strength of Wood Members,’ ‘Selecting Wood for Airplanes.’”

  In the front row, Damon Runyon couldn’t keep up with his pen and legal pad. The reporter who loved finding the extraordinary in his stories would write a column for certain about this “bald-headed, mild looking middle-aged man from the woods of Wisconsin.”

  “‘How to Tell Birch, Beech and Maple Apart,’ ‘Shrinking and Swelling of Wood,’ ‘Identification of Mahogany,’ ‘Defects Found in Lumber,’ ‘Handbook of Box and Crate Construction,’ of which I wrote the part on Identification. ‘Lumber used in Motor Vehicle Manufacture,’ ‘Distinguishing Characteristics of Mahogany,’ ‘The Identification of Tree Mahogany and Certain So-Called Mahoganies,’ ‘Identification of Pulp Woods,’ ‘Identification of Douglas Fir Wood,’ ‘What Makes Lumber Sell.’”

  “Let me interrupt for a moment,” Justice Trenchard interjected after Koehler had read thirty-four of the fifty-two titles. “Mr. Pope, do you still want to question this witness as to his expert qualities?”

  Koehler could not have planned it any better.

  But Pope, Reilly, and Fisher had not expected this. “Just a second, sir,” Pope said. “Will you allow us to confer?”

  “May we preserve our rights to this extent,” Reilly said, “and have the Court pass upon the witness’s qualifications, as to whether the Court thinks he is qualified or not.”

  “Yes,” Trenchard said. “I would say to counsel now that I deem this witness to be qualified as an expert.”

  Reilly asked for an exception, to preserve the legal point for a possible appeal, and Trenchard granted it.

  Wilentz continued on, cementing Koehler’s reputation by allowing him to describe his duties at the Forest Products Lab.

  “Am I to understand then that if there is some dispute with reference to wood that is sent to the United States Government, whether it is sent to Washington or some other point, it comes to you for disposition?”

  “Yes.”

  “All right, sir, is that the situation with reference to 2,000 or 3,000 samples you testified to this morning?”

  “Yes.”

  “What ordinarily causes the submission to you of these pieces of wood?”

  “Why, we receive samples from the public for a great variety of reasons. There may be a dispute between buyer and seller as to the identity of a car load of lumber.”

  “When you say ‘the identity’ I take it you mean whether or not it is one type of wood or another?”

  “Yes.”

  “Or one quality of wood or another?”

  “Yes.”

  “What else?” queried Wilentz, who had been equally in the dark about this science and this laboratory until Colonel Schwarzkopf clued him in when Hauptmann was arrested.

  “A manufacturer gets hold of a piece of wood which he likes particularly, but he doesn’t know what kind it is, and he sends it in to the laboratory at Madison to have it identified,” Koehler explained. “Once in a while a piece of wood goes wrong in services, gives trouble, and they want to know what kind of wood it is. That is one of the first requirements. In the case of old surveys it has been customary to mark witness trees and those witness trees have died and even decayed partly, but maybe part of the stump or root is left and they want to know whether that is the same tree as was originally marked as a witness tree.”

  They talked about identifying stumps and testifying in lawsuits for the purposes of identifying wood or passing judgment as to its quality before Wilentz came back to what had caused Pope’s embarrassing objection earlier.

  “All right, sir. Now, let me ask you again sir. I show you State’s Exhibit S-226 and I show you rail 16 of State’s Exhibit S-211, and I ask you what, if any, is the relationship between that rail and the exhibit just referred to?”

  “As a result of a careful study of the two,” Koehler said, “I have come to the conclusion that those two pieces at one time were one piece. They have been cut in two.”

  To hammer home the point, Wilentz and Koehler believed a demonstration in front of the jury would be effective.

  “Now, will you please come down here and show the jury just about where it is your opinion they were cut. Take all the time you want to, Mr. Koehler, that is necessary.”

  Koehler asked Wilentz to hold a part of the board for him.

  “Is this the right end?” Wilentz asked.

  “Yes. These two pieces of wood at one time were one piece. A little gap has been cut out. That was about their relative position in the original piece,” he said as he gestured with a pointer to the boards.

  “Why do you say that they are the same piece, they were originally the same piece, and have been separated?”

  “Well there are a number of points of similarity between the two that make me believe that they were one, were one piece.” Koehler resumed his seat in the witness chair.

  “Can you better show them with some photographs taken by yourself?” Wilentz asked.

  Koehler produced the easel he and Davis had brought from Madison and one of the enlarged photographs he had overseen. The first image showed the nail holes in Rail 16. It was a blown-up image of the same rail that Koehler now held in his hand.

  He described how he had taken the nails from the board Bornmann ripped out of the attic and placed them into the holes in Rail 16.

  “Those nails fit perfectly,” he said.

  “Let me understand. You mean you took nails out of a part of the floor?”

  “Yes.”

  “Which is here in evidence, S-226?”

  “Yes.”

  “Those very nails?”

  “Yes.”

  “And you put them into those holes in this rail here, known as 16?”

  “Yes.”

  “Tell us about that then.”

  “Well, they fit in there perfectly. Then with those nails in those holes and projecting from the lower side, I took that rail and laid it over the joists in this portion of the picture shown in this Exhibit S-215 [a photograph of the attic].”

  “When you say laid them on the joists, you mean just as they were there as a part of the floor?”

  “Yes.”

  “Go ahead.”

  “There were nail holes in these joists along the south side of the floor and the west half of the floor and I found that these protruding nails stuck into this rail fit exactly
in the four nail holes which were in those joists. Now that indicated to me without any doubt—”

  Pope interrupted futilely.

  “I object to what is indicated to the gentleman. He may testify as to what he found, what he saw, and the jury will determine what it indicated.”

  “He may testify as to his opinion,” Trenchard said. “He may be asked as to his opinion.”

  “All right,” Wilentz chimed in, taking his cue. “Tell us what your opinion is?

  “In my opinion,” Koehler offered, after the defense was granted another exception, “that rail had at one time been nailed down there on those joists because it would be inconceivable to think—”

  Pope tried again.

  “That is argumentative,” he pleaded. “We object to it.”

  “Well, what is your reason for the opinion?” Wilentz interjected. “Give us your reason for the opinion?”

  “He has a right to,” Trenchard ruled definitively. Pope sat down again.

  “All right, let’s have it,” Wilentz encouraged.

  “There are four nail holes a certain distance apart and a certain direction from each other and in my opinion, it wouldn’t be possible that there would have been another board somewhere with cut nail holes in them, spaced exactly like these nail holes are in the joists, the same distance apart, the same direction from each other,” Koehler said.

  As if the point weren’t made, Wilentz pressed on, asking for more detail. Koehler was happy to oblige.

  “Now, let me ask you, Mr. Koehler, the distance between the nail holes on rail 16, between hole No. 1, as you have indicated it, and hole No. 2, is it the same distance between 1 and 2, and 2 and 3, and 3 and 4, or are they different distances?”

  “They are different.”

  “Are they in different directions?”

  “Yes.”

  “That is, as my finger goes from No. 1 to 2, across there?” Wilentz gestured to the board in Koehler’s hand.

  “Yes.”

  “And then down here to No. 3, and across to No. 4, as you call it?”

  “Yes.”

  “And is that the same way that the holes were in the joist that you have talked about?”