Rabbi Gabrielle's Defiance (24 page)

He turned fiercely on her. "Last time I
looked, you were not Rabbi Folkman's counsel, Shirley. If Mr.
Corcoran here doesn't take issue with the way I pose my questions,
why should you?" Immediately, he pivoted back in Asa's direction.
"Now please, Rabbi, answer the question."

Shirley nodded for Asa to provide his best
response. He began again, cautiously. "We all know that the sole
purpose of a match is to start fires, hopefully small controlled
fires. Cigarettes, for example. When they start damaging fires such
as forest fires most of us would acknowledge their danger."

"But you don't have a rule at Ohav Shalom
about who is too young to use matches. Is that true?"

"No written policy that I'm aware of."

"So, by encouraging Janean and Tybee
Morgenstern to light matches, you were not breaking any synagogue
rule. That is correct, isn't it?"

"Excuse me," Shirley Delinsky interrupted
before Asa could answer. "I'd like to confer with Mr. Corcoran
before our client answers that query."

The interference annoyed Sutterfeld. This
time he asked Horace Corcoran, "Is she managing the Dominion Mutual
case or are you, Mr. Corcoran? I asked a perfectly reasonable
question and I expect an answer."

"Congregation Ohav Shalom has a vested
interest, as well you know." Shirley Dubinsky intoned. "I don't
believe your client would approve of your disrespectful tone to a
member of the rabbinate."

"I don't believe you have the slightest idea
what my client wants or doesn't want," he responded, his voice
raised several decibels. "Now let me continue, if you please."

Both Shirley and Horace rolled their chairs
behind Asa to confer in a whisper. A few moments later, Corcoran
rotated back to his original position. "Mr. Sutterfeld, with all
deference which you obviously do not extend to us, we think your
inquiry about encouraging the use of matches begs the question.
Encouragement to practice Chanukah rituals is not the same as
encouragement to light forest fires. Please recast your
question."

The presence of two lawyers protecting Rabbi
Folkman irritated Sutterfeld. He knew the question led the rabbi
but had hoped it would slip by. Begrudgingly, he rephrased. "Rabbi,
by encouraging eight and ten year-old boys and girls to conduct
holiday rituals, were you breaking any synagogue rules?"

"No."

"And was your contact with the Morgenstern
girls confined to their respective classrooms?"

"No."

"Please tell us where else?"
"In my study
here at the synagogue."

Sutterfeld's eyebrows rose. This revelation
was not new to him but he possessed a flare for drama. "Do you
often see eight and ten year-old girls in your study?"

Corcoran whispered to Asa before answering.
Then Asa responded. "Would you please define the word
often
."

"More than once a week," Sutterfeld
responded. "Do you meet with your students in your study more than
once a week?"

"I'll have to look back over my schedule,"
Asa replied. "Let's put it this way: this is not a common
occurrence."

"And do you close your door?"

"Usually."

"And you're not extra cautious about
accusations of inappropriate behavior with young females behind
closed doors?"

This he hadn't expected. "Why should I?" he
fired back.

"A spiritual leader of this very congregation
has been the subject of a major sex scandal. Normally, one thinks
of the clergy as extremely cautious by nature. I'm told that these
days keeping one's door open is a common professional practice. Do
you do that at your firm, Mr. Sutterfeld?"

For a brief instant, Sutterfeld hesitated.
"That's irrelevant for this disposition. Just answer the question,
Rabbi."

Asa said. "We don't regard that as necessary.
The rabbis at Ohav Shalom are trusted. Not a single parent has
voiced any suspicions about our reliability."

A disingenuous smile enlarged Sutterfeld's
lips. "Of course. So, is it fair to say that you were alone with
Janean and Tybee in your study with the door closed?"

"Yes."

"And how did that occasion come about?"

"It was after religious school on a Sunday
morning. Probably just before Chanukah. I didn't record the date so
I'm not entirely certain which Sunday it was. The Morgenstern
sisters approached me in the hallway outside their classroom and
asked if I would listen to them recite the Chanukah blessings. They
said they wanted to surprise their parents by fulfilling the
rituals. I told them I had to see somebody first, but they could go
to my study and wait for five minutes and I would meet them there.
When I arrived, they were standing outside with a small pamphlet we
produce for the children to practice from."

"And how did they come to light the
candles?"

"We used a menorah I've possessed for years.
We placed it on my desk. Janean, I believe, recited the blessing.
Tybee practiced another blessing over bread, which we didn't have.
In Jewish practice that's not kosher, because you should never say
a blessing without first fulfilling a commandment, such as eating
bread immediately after reciting the
barachah
. But I felt that for instructional purposes
we could make an exception. I was impressed because they knew their
stuff cold. I hardly made any corrections."

"Did they light the candles in your
study?"

"Yes," Asa said, thinking that he was talking
more than necessary.

"Again, who lit the candles, Rabbi?"
Sutterfeld followed immediately.

"Janean. She was the oldest. It seemed
appropriate."

"Why do you say that?"

He had to pause before looking at Corcoran
for a signal to go on. A nod of his head was sufficient. Shirley
disagreed, trying to get him to change his mind. She had always
regarded insurance lawyers as slow witted. Corcoran was far too
passive for her tastes, but what could she do?

"Since Janean was the oldest."

"What has age got to do with it, Rabbi? Is it
written somewhere in Jewish laws that this is the prerogative of
older children?"

"No."

"Might it be because lighting matches is
intrinsically dangerous?"

"It might be, but that was immaterial at the
time. I was standing next to them. There wasn't any reason to
anticipate a fire."

"And did you warn them about the dangers of
lighting matches?"

He had been prepared to expect this question
because it was critical to the case of negligence against Ohav
Shalom. Sutterfeld wanted him to say exactly what he already knew.
There was no way of wiggling out without lying. "No." Asa said in a
low voice.

Sutterfeld hesitated in order to be certain
the stenographer had recorded the answer faithfully, then
continued, "Is it not standard procedure at this synagogue not to
warn children about the dangers of matches?"

Asa frowned, running the query through his
mind. "I'm afraid there are too many negatives in that question. I
don't understand."

"Is it synagogue practice to warn your
children about the dangers of using fire?" he rephrased
reluctantly, aware that the use of negatives to confuse Asa had
failed.

"No. I don't think the issue has come up. Nor
do we warn them about eating contaminated food or walking though
traffic."

"I didn't ask about food or walking, Rabbi
Folkman. I want you to confine your answers to my questions and
we're talking here about the use of fire. Do you mean that warning
the children is done by some teachers and not others?"

"I don't know what our teachers say in their
classrooms when teaching about the lighting of candles."

"I repeat, so there's absolutely no confusion
on this point, is it true that you don't have a synagogue policy
about this?"

"Not to my knowledge."

"Could there exist such a policy and you
might be ignorant of it?"

"There could. After the tragedy, we checked
our Manual of Policies approved the

Board of Directors and found nothing."

"But you do agree that matches can be
dangerous, don't you?"

"Objection, Marc." Shirley interjected. "This
hair-splitting is unnecessary. It doesn't establish any matter of
fact. Your question has been asked and answered."

Sutterfeld glared across the table at his
adversary with a predatory eye, forcing civility into his response.
"My follow-up question is perfectly acceptable in deposition. I'm
only trying to establish Ohav Shalom's practices with regard to
lighting matches. Do you have an answer for that, Rabbi?"

A nervous twitch on the corner of Asa's lip
emerged. Aware of navigating a carefully constructed minefield, he
remained intense. How would his answer play out later? How would
the prosecution twist his words to fit their intention? He
stammered, "We, we assume the proper place for educating children
about life's dangers is in the home. Parents usually instruct their
kids long before they come to our school. No doubt such things are
also taught in their primary schools."

"And on this specific occasion, sometime in
late November, you didn't warn Janean and Tybee Morgenstern about
lighting Chanukah candles, even though you had them do it in front
of you in your study?"

"I think that's right."

"Why didn't you?"

Asa's nervousness became apparent. His eyes
darted from Sutterfeld to the stenographer as he felt the trap
closing around him like the sharp daggers of an Iron Maiden during
the Inquisition. Why he should have to answer such questions in the
first place seemed manifestly unfair. "It didn't occur to me," he
blurted and could not stop himself from adding more. "The girls
never told me they would attempt to light candles in the absence of
their parents. In fact, they made it clear that they very much
wanted
them around. They
wanted
to show off their skill. I think they also
wanted
to surprise them with what they had
learned."

"It just didn't occur to you." Sutterfeld
paraphrased slowly, then growled his displeasure. "Isn't that a
rather serious oversight?"

"Stop!" Shirley Delinsky placed a hand on
Asa's forearm. "Just wait a minute." And to Sutterfeld she said,
"Marc, you know that's inappropriate. Your client is making a case
against the officers of Ohav Shalom on the basis of negligent
omission. In deposition you cannot ask a major party in this
lawsuit to admit that omission. "

Annoyed at being blocked, he snorted at Asa.
"Rabbi, in view of the tragedy that occurred, do you now regret
that you didn't warn the Morgenstern children?"

"Excuse me," Shirley interrupted again. "I'm
not going to let my client answer that as phrased. His state of
mind today is irrelevant to what occurred to the Morgenstern
children last November. We all feel terrible about what happened
and not one of us in this room doesn't feel regret at not
anticipating the tragedy and interceding to prevent it. But that
has absolutely nothing to do with any alleged negligence before the
accident occurred. Withdraw your question."

Sutterfeld looked to Horace Corcoran who
might have allowed the question to slip by. To Asa, he said in a
callous manner, "Your explanation for not warning the Morgenstern
girls was because it never occurred to you that they might be
endangered. Is that true?"

Asa remained silent.

"Well, is it or isn't it?"

"Yes."

"And you didn't think ahead to a scenario in
which they might be injured?"

"No."

"But you
did
know
they were planning to light Chanukah candles?"

"Yes. But not without the supervision of
their parents."

"And you didn't anticipate that having
learned the prayers and knowing how to use matches, they might
attempt to do this on their own without parental supervision?"

Asa paused, trying to discern the effect of
his answer. Hesitantly, he said, "Yes, that's right."

"Had you warned them about the dangers of
using matches, would it have made a difference?"

Asa looked to Corcoran then Delinsky. Neither
objected. "I don't know. That's pretty hypothetical, now isn't
it?"

"Remember, Rabbi. I'm asking the questions
here. But do you think it might have helped?"

"I'm… I'm just not sure even of that." He
stuttered, uncertain exactly where Sutterfeld was headed.

"So are you saying that the Morgenstern girls
would accept your counsel on how to say the blessings and conduct
the ceremonies, but they wouldn't obey you on the matter of
lighting matches?"

"I don't believe I'm saying that at all.
You're putting words into my mouth, Mr. Sutterfeld."

Sutterfeld's voice smarted with reprimand.
"Just answer the question. Do you convey authority on religious
rituals and not on matters of fire safety?"

"I'm a rabbi not a bloody fireman."

A ripple of chuckles spread around the
conference table. That was not the expected response.

"Would they have heeded your warning, if
given?"

"I don't know. Maybe yes and maybe no."

"If they were before you at this very
instant, would you attempt to warn them?"

"Knowing what happened, of course, I would.
Anybody who cares about children would. But I didn't know then the
accident would occur. And I didn't have any idea that David and
Laura Morgenstern would be having cocktails when these rituals were
performed."

The attorney persevered. "The Fire Marshal's
Report says that Chanukah candles were the probable source of the
fire. Why it is silent about any rituals before or after the
accident?"

"Perhaps Tybee Morgenstern can enlighten you,
Mr. Sutterfeld."

Marc Sutterfeld turned to regard the
stenographer, waiting until all the words were recorded and nodded
approval, as though he now had on the record exactly what he needed
to make his case. "Well then, I suggest we take a short break. I've
got to make an urgent telephone call and recommend we resume in,
say, fifteen minutes. Anybody have any problems with this?"