“Exactly,” Koehler said emphatically.
“Did it require any manipulation at all, or did they fit perfectly?”
“They fit perfectly.”
He continued to describe how when laid down next to one another the boards were perfectly parallel, proving further that they had once been one piece of lumber. As the demonstration linking the two pieces of wood continued, Pope continued to object to the introduction of nearly every photograph, including one that showed the magnified ends of the piece ripped from the attic and Rail No. 16 on top of one another.
“Our objection,” he tried again, “is, and we distinguish, if your Honor please, between a photograph of a natural condition, which of course is always admissible evidence, if it is testified that it truly represents the condition as the witness found it or as it existed at the time. And a photograph of a maneuvered or a manipulated condition, which has been manufactured, so to speak by a witness for showing certain things which he wants to show. One is a natural photograph of a natural condition and one is a photograph of an unnatural condition.”
After hearing from Koehler that while he hadn’t taken the pictures himself, he had supervised it being taken, Trenchard allowed the photo.
Case strained to see the photograph. He was fascinated.
So too was Lindbergh. Ethelyn wrote that “he leaned forward so far in his chair, he nearly fell out. His mouth was open, eyes intense, hands on his knees or chin in his palms. Was he interested?”
“Will you explain to us further now as you see it there,” Wilentz asked, “why you have stated that the two upper boards representing S-226 to my left and the ladder rail referred to in there as rail 16, were at one time together in one board?”
“Well, I object to that,” Pope tried again, “because manifestly that is a matter of speculation and a pure guess on the part of the witness. It can’t be otherwise. I don’t know that his guess is any better than the guess of the jury.”
Trenchard asked for the court reporter to repeat the question before once again, rejecting Pope.
“He may answer the question,” the jurist said.
Koehler walked the jury through how he had found a saw cut at the end of the board in the attic and sawdust on the lath and plaster of the ceiling before he segued into the uniqueness of trees. He would show Pope that the equivalent of a tree’s fingerprints were scientific in nature.
“By matching up the grain in this board in the floor and this rail from the ladder, I find that the grain matches practically perfectly, considering the gap that is between the two,” he said.
“Unbelievable,” said the reporter sitting behind Ethelyn. “Never heard anything like that,” said another. Each time she heard a compliment, she wrote home to the kids that she “was so proud, I nearly bursted: I wanted to get up and shout, ‘He’s mine.’”
Wilentz introduced as evidence another photograph, showing the markings between the board and Rail 16. The picture also showed two other pieces of lumber unrelated to the ladder or the attic.
“Is it necessary to have these comparisons in order to intelligently explain the connection between the ladder rail and the board from the attic floor?” Wilentz asked.
“It is in my opinion,” Koehler responded.
As if on cue, Pope rose from the defense table.
“We have no objection to the General using any photograph which he says will help him show the identity of the grain in the end of the ladder rail and in the end of the board taken from the attic floor, but we do most strenuously object to his showing photographs of other pieces of lumber entirely unconnected with this case, which were not taken from this attic, which were not taken from the ladder and which had no connection whatever, either with the house or the ladder or the kidnapping or anything else, and introducing something entirely foreign to this case . . . because we submit that there can be no such thing as a comparison of a piece of lumber that was taken from that attic floor or from that ladder, with a piece of lumber that was found out in Michigan or some other place in the United States until it is identified as a part of the same board.”
Trenchard’s curiosity here was piqued. “What do you say about that?” he asked Wilentz.
“If your Honor please,” he started, “I think nearly every exhibit has some identity because of a comparison—a man is shorter than other man, or he is taller, or he is heavier or he is lighter; a shoe is larger or it is smaller, it is wider or otherwise; one piece of wood is darker or lighter—and everything, it seems to me is identified only because there may be a comparison. . . .
“It cannot at all prejudice the defendant or defense counsel,” the prosecutor continued. “As a matter of fact, it will help them. Now if your Honor should conclude that this is more helpful as we very respectfully submit to you, since it is explained, it has no other purpose except for comparison, so that this witness may be able to tell the real significance of the grains in the ladder rail and the attic floor, just as the handwriting expert can come down and say, ‘This is the ‘e’ on the note and this is a different ‘e’ for comparison—since it can only serve a helpful and useful purpose, if your Honor please, we submit it is admissible.”
Trenchard was unmoved, allowing only for the photo to be marked for identification at that particular time. So Wilentz relented and put up a different photo, this one featuring only the grain of the ladder and of the attic board in question.
“Tell us the relationship between the two,” he asked Koehler.
“That lower picture is a photograph of this end of the floor board and you can see this big streak that is on the board on the picture, and you can see, I think, that the grain curves with the convex side up. And we have the same thing there.”
To show how much of a mismatch in terms of wood knowledge was apparent, Pope asked “on the record exactly what that means, the convex referring to the bottom picture on the board.”
“All right,” Wilentz said. “Now, you started to tell us about the grain and the convex what?”
“The convex side of the annual rings is up here,” Koehler said.
“Proceed with your description.”
“In order to get a picture of the two adjoining ends it was necessary to tip the rail back and over.”
“Which rail?”
“Rail 16.”
“The ladder rail?”
“Yes.”
“Just refer to it as the ladder rail,” Wilentz suggested to his witness.
“The ladder rail, to turn it back over on top of the floor board so that they could take a picture of the two at the same time, and that accounts for the fact that the rings seem to curve in the other direction in this ladder rail, but that is just because it has been turned over on its back.”
“Yes, sir.”
“Now, I want to point out the similarity between those two photographs, that is the photograph of the ladder rail, the end of the ladder rail, and the end of the floor board. you will notice that in general, these curved lines here, those are the annual rings.”
“Annual, do you call them?”
School was in session now. Koehler, who often helped greet the public for tours of the Forest Products Laboratory, was in his element. Case leaned over to whisper something to juror 12, Howard V. Biggs, who sat next to him.
“Annual rings,” Koehler began to explain. “A tree each year produces a layer of wood under the bark and those are known as the annual rings, and it is by means of those rings that the rate of growth and the age of the tree can be determined, and that is, naturally they have to be curved because they go around the tree. There are the same number of annual rings in the floor board, counting it across in the most direct manner as there are in the rail.”
“That man is a genius,” said a reporter sitting behind Ethelyn.
“Does that indicate that the two boards are of the same age?”
asked Wilentz, who like most others in the room was learning as he went along.
“That indicates that it took the same number of years to produce that much growth. Furthermore than that,” Koehler continued, “the variation in the width of the rings is the same. You will notice that there are three narrow rings right from in here where I point with my pencil—I will mark them,” he said as he put small pencil marks on the picture, “and toward the lower side, the next two are heavier and on the upper side the next two are heavier. Now, in this other picture of the end of the rail, we also have three narrow annual rings following each other and the next two rings on the convex side in the bottom in this case, and is in the top on the floor board are wider. And the two rings on the other side or concave side of the narrow ones are wider again, just as we have in this floor board.
“There is one apparent inconsistency,” he noted. “In this portion of the floor board to the right, the rings are wider and distorted than they are in this piece, this end of the ladder rail, but that is due to a knot.”
“Just wait a minute,” Wilentz cautioned. He offered the next photo into evidence, showing a blown-up version of the knot in question.
“Proceed from there, please,” he said after it was accepted by the court.
“Knots distort the grain and the closer you get to the knot, the more the grain is distorted, hence the grain is greatly distorted in this corner of the floor board,” Koehler said. “You will notice however that the annual rings on this corresponding corner of the rail are also wider, showing that there was some factor influencing their growth right there. Now that in my opinion is the influence of this knot extended over into the end of the rail, but the grain is not distorted so much in the rail, because it was farther away from the knot there.
“I can make this a little clearer if you want me to,” he said as another photo was introduced into evidence of the grain in the two boards being compared.
“I want you to,” Wilentz said. “Please don’t let me hurry you. If I miss something I want you to tell me about it.”
“To bring out more clearly the similarity between the growth rings in the rail and in the floor board, I will take another photograph, which is a duplicate of that, made of the same negative to the same scale and show you that that can be matched up with this one perfectly.”
“Why do you need two?” asked Wilentz.
“I want to superimpose part of one over the other,” Koehler replied.
“You are not going to destroy the exhibit, are you, by cutting it?” Pope popped up, somewhat mystified by what was being proposed.
“I have to do that for this purpose,” Koehler said, preparing a pair of scissors for his courtroom experiment. “I want to cut off a piece of this picture and superimpose it on that.”
Pope remained standing but did not object, as he wasn’t sure what Koehler wanted to do.
“I will take this picture of the end of the rail and cut it through the middle,” Koehler said. “Now, I will take a portion of this picture and superimpose it upon the floor board.”
“Take your time,” said Wilentz as his witness looked around, apparently in need of something. “What do you want?”
“Thumbtacks,” he replied.
One of the court staff handed him some. He posted the pictures on the easel.
“Now by taking these three narrow rings on this picture of the rail and superimposing them over the three narrow rings of the picture of the floor board, you will see there is a practically perfect match.”
“Can your Honor see this?” Wilentz asked the judge.
“Yes, I see it,” Trenchard replied.
“Now that to my mind in itself proves conclusively that these two pieces of wood were at one time one piece on account of the practically perfect match you can get between the two,” Koehler said.
Wilentz asked him to use his pencil, to trace what he considered to be the perfect match of the grain.
“Here are the three narrow annual rings in the floor board that I referred to,” he said, pointing. “These are the corresponding annual rings that I have marked over here. Now you can see how not only the curvature but the width of the rings follow right through from one to the other. You can see how these two wider rings below these three narrow ones are also found in the ladder rail.”
“How do you explain the difference in color?” Wilentz asked about how the ladder rail was darker than the attic sample. “There seems to be a difference in color.”
“This ladder rail,” explained Koehler, “had been processed for finger prints and some of the liquid ran into the end grain of the wood.”
“Have you completed your comparison of the grain, the following of the grain of one into the other or do you want to proceed further?”
“I now will show you how that same grain connects up on the top surface of these two boards. As I said before, there was a piece missing between the two, about an inch and a quarter wide, but I can connect up the corresponding grain.”
Pope finally found a reason to have remained standing.
“I object to this unless the gentleman saw the missing piece that was about an inch and a quarter wide or can account for it,” he said. “I object to his testifying that there is any matching of the grain between these two boards. It seems quite obvious that you could take almost any piece of North Carolina pine showing that general grain and draw them far enough apart and together and manipulate them so you might get a comparative continuity of grain. It is that missing piece, sir, that we object to.”
“My suggestion is that the witness may be interrogated as to whether or not he knows that there was a missing link there originally,” Trenchard ruled after some back and forth between the rival lawyers.
“From your experience, from your investigation and examination of these pieces of lumber,” Wilentz asked, “what have you to say as to whether or not there isn’t a piece missing that originally connected the two pieces?”
“These three narrow annual rings in the two end views of these two boards . . . in my mind are a means of showing which rings were originally connected because there is a series of three narrow rings in both of them.”
“Yes.”
“Now, those rings do not run out to the surface. Therefore, I cannot connect them up on the surface. So I will count out from there to the fifth ring beyond. It is one, two, three, four, five,” he said, once again pointing at the exhibit on the easel. “That one runs out to the surface. And I will do the same on the other one; I will do that on this one. One, two, three, four, five. That is the one there.
“Now, I will mark those same rings on here. This ring right here is the fifth one out from this rail.”
“That is the fifth ring then on S-233 [a picture of the end grain of the attic board]?”
“That is the fifth one.”
“Yes sir,” Wilentz said.
“And on this board, this ring right here is the fifth one out from those three narrow ones,” Koehler said pointing to the ladder rail.
“All right.”
“I will connect those up,” he said. “Now they are the corresponding rings. Now that same ring goes around here on the other side, over here, and on the floor board, that fifth ring out is over there. I connect them up. Now I connect up the rest of the rings because they must follow. This ring makes no connection over here. It just makes a loop there. And the others have to follow in sequence.”
All eyes in the courtroom followed his pencil as he traced a connect-the-dots-like path between growth rings in the two samples. The link was clear.
“Now that in my opinion shows a perfectly logical connection, looks perfectly natural. There is nothing inconsistent about that between those two boards,” he concluded.
Sensing he was on a roll, Wilentz moved on to what would be Koehler’s next experiment in Trenchard’s courtroom.
“I notice that the ladder rail is not as wide as the attic boards. Will you explain that, if you can tell from an examination of the two?”
“In examining the ladder rail, I noticed that both edges were planed with a hand plane. The plane was not in very good condition and left little ridges, and also these ridges were wobbly over the end, showing that both edges were planed with a hand plane.”
“I want to show you an exhibit in this case. S-177,” Wilentz said, referring to the plane removed from Hauptmann’s garage. “Can you tell whether or not S-177 is the plane that was used in planing the ladder rail?”
“It was,” Koehler replied.
“Is there any question in your mind about it?”
“Not the least.”
“Now let me ask you this: why do you say it, will you explain it?”
“Because on the ladder rail there are a number of ridges of different size and when I plane a piece of wood with that plane it makes similar ridges of the same size and same spacing apart as is found on the ladder rail.”
“Would any other plane in your opinion make those ridges and marks?”
“No, that would be out of the question.”
“Why, will you take a piece of wood—have you got an extra piece of wood here not connected with this case at all?”
“Yes.”
“And take this plane, plane that piece of wood and show the jury the marks that it shows on that piece.”
“Yes.”
Before Koehler could put blade to wood, Pope was out of his seat again, objecting to the impending woodworking exhibition and stating that Koehler’s testimony should suffice. Justice Trenchard overruled that objection.
“I will take a piece of wood which has previously been planed by a machine planer and is practically smooth,” Koehler told the jury. “Now I will plane that with this hand plane and then make an impression of the marks made by that plane and also an impression of similar marks on the rail or some of the rungs of this ladder and show their similarity.”
The Sixteenth Rail Page 24