Bearing Witness (23 page)

“That's great. Now tell me how you're feeling.”

“I'm getting there. I may go to the office for a couple of hours tomorrow. Good luck in court, Rachel.”

“Thanks. 'Bye.”

As I pulled into my driveway I slowed to wave at the two officers in the police car idling in front of my house. At Jonathan's insistence, the security detail had been expanded to include me, too. I was not merely another victim of the highway assault, he argued, but a potential witness as well, and someone sure seemed determined to eliminate potential witnesses to that incident. On the prior Saturday night a pair of southern Illinois fire departments had responded to the report of a fire behind an abandoned warehouse. They arrived to find the smoldering remains of a late-model pickup truck. Inside were the blackened corpses of two adult males, both burned beyond recognition. The truck had dents along the passenger-side panel consistent with those on Jonathan's car. The prospects of tracing the truck to its owner had been impeded by removal of the license plates and the VIN number. The prospects of identifying the victims through dental records or fingerprints had been impeded by removal of their heads and hands.

Although the security patrol should have been reassuring, it seemed to have the opposite effect on me. Every time I peered out my window and saw that police car parked under the streetlight, it triggered an image of those charred and headless corpses seated upright in that burnt-out truck.

Chapter Twenty-four

Ruth Alpert, God bless her, drove them absolutely crazy. Kimberly Howard strode into the courtroom that morning with a gleam in her eye and a fifteen-page cross-examination outline in her hand. She was, as they say, loaded for bear and ready to rumble. Problem was, she had the wrong scouting report. The only bear Ruth resembled was a Teddy, and she wouldn't have known a rumble from a rhumba. Even their outfits were a mismatch. Kimberly had dressed for the part of steely legal assassin. She wore a severe gray pinstripe suit hemmed short, starched white blouse, dark hose, and spiked heels. Ruth, who'd been a little chilly on the witness stand yesterday afternoon, had added a pink cardigan sweater to the latest in her series of frumpy, floral-print calf-length dresses. As for me, I'd aimed for somewhere in the middle today: a navy pinstripe shirtdress with cream collar and cuffs, hemmed above the knee but not as short as Kimberly's.

Kimberly spent an increasingly frustrating five hours—three before the lunch recess, two after—stalking Ruth from one testimonial forest to another without ever getting close enough for a kill shot. Even when she seemingly had Ruth trapped in a contradiction between her deposition testimony and her trial testimony—the ultimate cross-examiner's bull's-eye—Ruth glided away. Ordinarily, cross-examination through use of prior inconsistent testimony is a powerful, low-risk way to undermine a witness's credibility, and frankly, Kimberly was one of the best at the technique. In a hearing in another case, I'd watched her adroitly draw and quarter a witness using prior testimony like honed surgical knives. Although the inconsistencies between Ruth's deposition testimony and trial testimony were not glaring, there were plenty of minor ones in all those transcript pages. Kimberly's goal was to highlight enough so that the cumulative impact would destroy Ruth's credibility. It was a technique that would work with a typical witness.

But Ruth was no typical witness.

“I see,” Kimberly said, a pitiless smile forming at the corners of her mouth. “And when Ms. Gold asked you that yesterday afternoon, you said yes, correct?”

Ruth nodded courteously. “I certainly did.”

“I take it that your answer today is also yes, correct?”

Ruth gave Kimberly a puzzled look. “Why, of course, dear. It was yes before, it is yes today, and it will be yes tomorrow.”

“Why, of course,” Kimberly said, the sarcasm dripping from her voice. “It was yes before, it is yes today, and it will be yes tomorrow. However”—dramatic pause—“it certainly wasn't yes last December fifth, was it?”

Ruth looked confused. “I am afraid I am not following you, dear.”

Kimberly turned toward Laurence Browning, who smugly held out the transcript from that day of Ruth's deposition. There was a red tab attached to a page about two-thirds of the way toward the back. Kimberly flipped it open to that page as she approached the witness.

“Ms. Alpert, allow me to show you page 193 of the transcript of your deposition from last December fifth.” She placed it on the front ledge of the witness box and spun on her heel to face the defendant's table, where Browning was waiting with another copy of the transcript open to the same page. She moved toward Browning and took the copy. “Line fourteen, Ms. Alpert,” she announced, back to the witness. She turned to face Ruth. “You'll see that I asked you precisely the same question. Please, Ms. Alpert, be kind enough to read to this jury the answer that you gave back
then
.”

Ruth frowned at the page. “Oh, my goodness,” she said. She reached down and lifted up her large purse. She placed it on her lap and unsnapped it.

“Ms. Alpert?”

“I am terribly sorry,” Ruth mumbled. She was rummaging through her purse.

Kimberly turned toward the jurors. She crossed her arms beneath her breasts as she tapped her foot, the former beauty queen seizing center stage to heighten the drama.

“There,” Ruth said with an embarrassed smile as she held up her glasses case. “I am afraid that I am blind as a bat without these.” She put on her reading glasses and peered over them at Kimberly. “What line was that, dear?”

Perfect
, I said to myself.

Kimberly glared at her for a moment, the tension seeping out of the scene. “Fourteen,” she said through clenched teeth.

Ruth studied the page and looked up, puzzled. “Now I am a confused.”

Kimberly smiled. “I thought you might be, Ms. Alpert. Why don't you just read aloud what you said.”

Ruth looked down at the page and then up at Kimberly. She shook her head. “I didn't say anything at line fourteen. I believe that you are the one speaking there, my dear.”

Kimberly looked down at her copy with a frown and read it. “Uh, right. Line fourteen is my question. Read your answer.”

“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 pursed 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.”