Bearing Witness (26 page)

Chapter Twenty-seven

Herman Warnholtz was dead, but I had the tapes. Nearly two hours of my questions and his answers. Powerful answers. Astounding answers. Unfortunately, every answer carried the same warning label: inadmissible.

I'd reached the evidentiary barricade known as the Hearsay Rule, and I needed to find the right key to unlock that gate. I had only ninety minutes to find it. But before heading upstairs to the law library to start my search, I sent Benny down three flights to the U.S. Attorney's office with instructions to double-check on the security arrangements and make another copy of the audiotapes. The originals were stored in the evidence vault in the U.S. Attorney's office, thanks to some assistance from Jonathan this morning. My paranoia level—already high when I called him for help at eight in the morning—had jumped even higher with the news of Warnholtz's death. His disease may have been terminal, but I was certain that cancer was not the cause of death. That type of convenient coincidence only occurs in fiction.

The Hearsay Rule.

For fans of courtroom drama, no scene is more familiar than that of opposing counsel leaping to his feet to declare, “Objection! Hearsay.” But for the trial lawyer in a real courtroom, as opposed to the one up on the silver screen, no doctrine is more tangled and frustrating.

***

The Hearsay Rule.

In the usual hearsay situation, there are two witnesses: the one on the witness stand and another one outside the courtroom. The one on the witness stand is essentially the repeater: his role is to tell the jury what he heard the other one say. The repeater meets the basic requirements for admissible testimony: (1) he's under oath, (2) he's present in the courtroom so that the jury can eyeball him, and (3) he's subject to cross-examination. But the
real
witness—the one whose statement is being repeated—isn't under oath, isn't in the courtroom, and can't be cross-examined.

“What did you
hear
him
say
?” Thus, hear-say.

Objection, Your Honor
.

Sustained
.

Simple as that. But…it's rarely that simple. Sometimes an important witness, someone who ought to be in the courtroom to testify, isn't there. Maybe he's out of town. Maybe he's dead. Or maybe the key statement is a written one—perhaps in a letter or a police report or a hospital record. Each of those documents can contain highly relevant information for the trial, but each is a classic example of an out-of-court statement. How does one cross-examine, say, a purchase order?

And thus the hearsay dilemma for the judge: the choice between evidence that is less than ideal and no evidence at all. In grappling with that dilemma, the courts have carved out dozens of specific exceptions, each for a situation where other factors supply the trustworthiness that the Hearsay Rule was designed to ensure. The challenge for the trial lawyer is to find the exception that opens the gate to the hearsay evidence he wants to present. That was certainly my challenge. The audiotapes were classic hearsay: (1) Warnholtz wasn't under oath; (2) he wasn't in front of the jury; and (3) he couldn't be cross-examined, at least not in this lifetime.

I rooted around in the evidentiary grab bag for ninety minutes and returned to the judge's chambers with a few possible fits, including the Dying Declaration, the Co-conspirator Exception, and that battered skeleton key known as Rule 804, which will unlock the gate when no other key fits, but only if the court determines that “the interests of justice will best be served by admission of the statement into evidence.”

“Audiotapes?” Kimberly said in outraged disbelief. “Your Honor, that is the rankest of hearsay. Moreover, it is thoroughly tainted by the surrounding circumstances. To begin with, Mr. Warnholtz was serving a life sentence for a crime so heinous that it undercuts any contention that he could be a credible witness. In addition, he was in the final stages of a terminal disease that in all likelihood had blurred the line between reality and illusion. The man could have been hallucinating for all we know.”

“Judge,” I said, holding up an audiocassette, “this is an excerpt from the interview. All I ask is that the Court withhold its decision until listening to this, perhaps during our afternoon recess. I can assure you that Mr. Warnholtz was completely lucid throughout the interview. The testimony on this tape is more compelling than you can possibly imagine.”

“Testimony?” Kimberly repeated disdainfully. “Don't try to dress up that murderer's blather with fancy names.”

“Your Honor?” I said.

Judge Wagner frowned, clearly troubled. “What?”

I leaned across the desk and placed the audiocassette on her blotter. “Please listen to it, Judge. I realize this is an unusual request. I wouldn't make it if I didn't believe it was important.”

Judge Wagner lifted the cassette and studied it carefully. “I'll listen to it, Counselor,” she finally said, shifting her gaze to me, “but I wouldn't get your hopes up.”

I didn't. But when we took our afternoon recess at 3:15 p.m., I prayed that she'd listen to at least some of it. The tape I'd given her lasted twenty minutes and included two excerpts—one having to do with the bid-rigging conspiracy and one that was far more chilling.

The recess was supposed to last fifteen minutes. Judge Wagner didn't return to the bench until three-fifty, and when she did, her demeanor had changed. Gone was the buoyant authority figure. She seemed pale, almost subdued. Before the jury filed in, she asked me when I could supply her with a full copy of the interview tape.

“Right now, Your Honor.” I reached into my briefcase. “I have an extra copy with me.”

“Leave it with my clerk.”

Kimberly jumped to her feet. “Your Honor, I assume Ms. Gold has a copy for us as well.”

Judge Wagner looked at her dully. “What?”

“A copy of the interview tape, Your Honor. Defendant is entitled to review it as well.”

Behind me, I could hear the buzz in the gallery. There were at least a dozen reporters back there. None of them had any idea what we were talking about, but all had now heard the word “tape” several times.

I stood up. “With the Court's permission, we'd prefer to wait until Your Honor has had an opportunity to listen to the entire tape before we start distributing copies.”

“Miss Gold may
prefer
to keep us in the dark,” Kimberly said angrily, “but her preference is irrelevant here. Defendant insists upon a copy of the tape.”

Judge Wagner shook her head. “I'll review it tonight. We'll decide tomorrow whether copies are appropriate.”

***

The first call came at six-fifty that night. We were sitting around my conference-room table eating pizza at the time—Benny, Ruth, my mother, Jacki, the five law student volunteers, and me.

“It's for you,” Jacki said, handing me the phone.

I took it reluctantly. Putting my hand over the receiver, I whispered to Jacki, “Who is it?”

“Some woman.” Jacki shrugged. “Probably another reporter.”

I sighed. “Hello?”

“Rachel, this is Catherine Wagner.”

It took a moment. “Oh, hello, Your Honor.”

The others in the room immediately hushed.

“I just finished listening to the tape.”

“Oh.”

I waited, tense. The others in the room were staring at me.

“My God,” she finally said. “It's, well, it's overwhelming.”

“I know.” My spirits jumped. I gave a halfway thumbs-up signal to the others in the room.

“But Kimberly has a point,” she continued in a concerned voice. “What if the disease had affected his mind? Or even worse, what if it's all a lie? What if he was consumed with jealousy over Conrad Beckman's success and decided to try to ruin him? What if this is all just a revenge scheme?”

“But why wait all these years?” I said.

“Perhaps, but that same question applies even if everything he said is true. Why wait all those years?”

“Because no one asked.” I was growing concerned. I could sense I was losing her. “He explains on the tape, Your Honor. Lindhoff was the only one who ever tried to get information out of him. After Lindhoff died, no one bothered to ask him. And even if someone had, even after Beckman broke his promise, Warnholtz knew that he'd be a dead man if he talked. But that was no longer a factor at the end. Death wasn't a threat. Whether he talked or not, he was still dying of cancer.”

There was a long pause.

“I'll need corroboration,” she said.

“Pardon?”

“That tape is hearsay, Rachel, and the most dangerous type. Good God, the stuff on there is toxic. It'll destroy Beckman's reputation. He'll never recover. I must have corroboration before I let anyone hear it. I need independent confirmation that what that man told you is true.”

“What kind of corroboration?”

“That's your problem, Rachel. But without it, that tape isn't coming into evidence.”

The second call came ten minutes later while we were trying to decide whether the newspaper articles that Zack and Jake had been able to locate from the other five cities would be sufficient corroboration for the judge.

“It's Stanley Roth,” Jacki said, as she handed me the phone.

“Rachel,” he said, “we need to talk.”

I shook my head in exasperation. I didn't have time for this. “Why, Stanley?”

“We have a new settlement offer. I think you and your client will find it extraordinarily attractive.”

I closed my eyes and exhaled slowly. “Just give me the dollar amount over the phone, Stanley.”

“It's a little more complicated than that. We need to talk in person, Rachel. I'm calling from a meeting at the Hyatt down at Union Station. It ought to be breaking up around ten. I'd be happy to drop by your office if you're still there that late, or I can come by your house if your prefer. Which sounds better?”

That's when it clicked.

I opened my eyes.

The Hyatt.

Union Station.

I was dumbstruck.

“Rachel?” he said. “Are you still there?”

“Uh, fine, Stanley. I'll meet you there.”

“You mean at the Hyatt?”

“Right.”

“I'm more than happy to come to you.”

“No. The Hyatt.”

“Well,” he said with a chuckle, “if you insist. Let's meet in the Grand Hall. I'll buy you a drink.”

“I'll see you at ten.”

“Excellent. You won't regret it, Rachel.”

I hung up and stared across the table at Benny. It was as if we were the only two in the room.

“
Nu
?” he finally said.

“Union Station.”

He frowned. “So?”

“Judge Wagner wants corroboration.”

It took him a moment. “Ah,” he said with a smile. But the smiled faded. “You think it's still there?”

I shrugged. “Why not?”

“Why not?” He shook his head. “Because they renovated the whole damn building.”

“Not that part.”

Benny leaned back with a frown and crossed his arms over his chest. “After all those years?”

I smiled wearily. “You have any better suggestions, Professor?”

The others were watching us closely.

Benny studied me as he pondered the question. Finally, he gave me a wink and grinned. “What the hell, eh?”

I nodded. “My point exactly.”

Chapter Twenty-eight

The Grand Hall at Union Station is surely the most dazzling room in St. Louis. Carefully restored to its 1890s splendor, it now serves as the lobby and lounge of the Hyatt Hotel. There are sweeping Romanesque arches and a glorious barrel-vaulted ceiling six stories overhead. The walls and ceiling are decorated with gold leafing, bas-relief, Numidian marble from Africa, Vert Campagne green marble from France. Above the main entryway is a stained-glass mural depicting three seated women as symbols of the three great U.S. train terminals of the 1890s—New York, St. Louis, and San Francisco. Framing the stained-glass mural is the Arch of Whispers, so named because a soft whisper at one end of the huge marble archway can be heard at the far end.

On other nights, normal nights, pleasant nights, I've sat in one of the easy chairs sipping a glass of wine, usually with a friend or a date, and imagined the wonder on the faces of railroad passengers of the 1920s as they stepped into the Grand Hall for the first time. But not tonight. Tonight, the Grand Hall could have been an abandoned airplane hangar, a rusted Quonset hut, a vacant warehouse. I had other things on my mind.

It was ten o'clock. Benny and I sat facing each other across a low cocktail table in the middle of the huge room. There was a lounge pianist playing old show tunes off to one side. Standing alongside the piano was a jowly businessman in his sixties all gussied up in a blue blazer, gray slacks, and fresh tan. He kept the beat with a lit cigarette as he beamed down at the blonde at his side. She was young enough to be his daughter and seemed to be having trouble working up much enthusiasm for Mr. Wonderful or for the
Oklahoma!
medley on the piano. Scattered on couches and love seats throughout the room were small groupings—business travelers, conventioneers, sleek young professionals on dates. Benny and I looked out of place in our jeans and sweatshirts. I had on hiking boots, Benny his green Converse high-tops. We'd dressed for the task facing us after the meeting with Stanley Roth. Instead of a briefcase, I'd brought a backpack weighted with equipment.

***

The waitress arrived with my cranberry juice and Benny's Anchor Steam.

“Does Ruth have a settlement number?” Benny asked.

I shook my head. “Not after the tapes.”

“What if she could clear a million?”

“That's exactly what I asked her. She said no.”

Benny took a sip of his beer. “No to a million bucks? Does she realize that if Catherine excludes those tapes, the settlement value is going to plummet big time?”

“I explained it all to her. She understands.”

Benny glanced over and said, “Ah, here comes the bagman.”

Stanley Roth was approaching from the lobby area of the hotel, moving with grim determination in his dark business suit and Burberry overcoat.

“Hello, Rachel,” he said in his smooth, confident voice.

I nodded. “Stanley.”

Turning to Benny, Roth said, “And you must be Benjamin Goldberg.” He reached down to shake Benny's hand. “I've heard fine things about you at the law school.”

The strained chitchat ended when the cocktail waitress arrived to take Roth's drink order, a sparkling water with a twist of lime. After she left, he turned to me and leaned forward, focusing those blue eyes like lasers.

“I'll get to the point, Rachel. Beckman Engineering has determined to put this case behind it and move forward. Rather than haggle and play games, I'll give you my settlement authority. Under the
qui tam
claim, your client is entitled to as much as thirty percent of any recovery. My client is willing to stipulate to that percent.” He paused. “Beckman Engineering is prepared to pay three and a half million dollars to settle the case. Your client's thirty percent share is one million fifty thousand dollars. In exchange, your client would sign a confidentiality agreement and turn over all documents and tape recordings. That way we'll achieve genuine closure. Both sides will be able to walk away from this lawsuit and move forward without any baggage.” Another pause, this one underscored with a firm smile. “Well, Counselor? Do we have a deal?”

I shook my head. “No.”

“No?” He tried to remain affable. It was an effort. “Isn't that a decision for your client to make?”

“It is, and she has. We spoke earlier tonight.”

He studied me, his eyes narrowing. “Are you saying that Ruth Alpert is prepared to walk away from a million dollars?”

I nodded.

After a moment, he leaned back in his chair with an annoyed frown. “Okay, let's hear the counteroffer.”

“Don't have one.”

His face reddened. “That's—that's absurd. How can you reject a million dollars without a counter?”

“Because we know your client won't agree to one of our terms.”

His eyes narrowed. “Which is?”

I gazed at him calmly. “A signed confession.”

He snorted. “For God's sake, Rachel, are we back to my crazy uncle's paranoia?”

“You mean your
murdered
uncle?”

He shook his head in irritation. “I am surprised at you—and disappointed. You're trying to turn this into a crusade—some lofty battle between good and evil. Well, that's not what it is. It's just a lawsuit, young lady—an ordinary commercial lawsuit, and one of dubious merits at that. I suggest you get down off your white charger and start considering your client's best interests.” He leaned forward, his eyes flashing. “We are offering a million dollars. A million dollars! My God, how can you possibly—how can you
responsibly
advise her not to accept it?”

“I didn't. She made the decision on her own. Ruth Alpert has a lot more guts than you and your client ever imagined.”

“Guts?” he said caustically. “More like greed. Foolish greed.”

I shook my head. “You still don't understand, do you, Stanley?”

He stood up and glared down at me. “I understand plenty,” he snapped. “I understand that your client is going to be bitterly disappointed. I understand that even if you somehow pull off a sleazy emotional victory before the jury, your client will never see a penny of it. Beckman Engineering will fight you at every level of the judicial system, and they'll fight that war with resources you couldn't even begin to imagine. We will grind her into the ground.”

“You know what, Stanley? They had a name for the Jews who helped the Nazis run Auschwitz. They called them
capos
.” I stood up and moved in close, dropping my voice. “You're nothing but a
capo
in a three-piece suit.”

He stared at me, the vein in his temple throbbing. “I feel sorry for your client, but not for you. Never.” He turned and strode off.

A moment later the waitress arrived with his sparkling water.

***

“You really think so?” Benny asked.

We were standing in the darkness behind the fountain sculptures across the street from Union Station. The frolicking mermaids and spraying river gods were frozen beneath a dusting of snow. We were facing the front of Union Station, known as the Headhouse. It covered two city blocks.

The Headhouse was modeled after the walled medieval city of Carcassonne in southern France. There were massive turrets and a heavy limestone facade and Romanesque arches and a maroon Spanish tile roof. No less an authority than Frank Lloyd Wright had described it as “a noble structure—full of vitality and dignity.”

At the eastern end of the Headhouse a clock tower soared 230 feet into the night sky. The illuminated clock facing us showed the time as 11:05. Rising just above the slanted roof of the clock tower was a slender, peaked turret—a minaret that seemed to sprout out of the northwest corner of the tower.

As we stared up at the clock tower and the little minaret, Herman Warnholtz's words echoed in my head.
I told him if anything bad ever happens to me, I got a man with orders to turn 'em over to the cops. Those records were my life insurance policy, you see? Except I don't need no life insurance anymore
.

“But why there?” Benny asked.

“Because that's where his brother worked. He was a janitor at Union Station. You heard what he said. He said his brother knew all the nooks and crannies, the best places to hide things.”

We studied the structure in silence.

“It's been, what,” Benny said, “forty years? What are the chances?”

“Only one way to find out.”

“Jesus, Rachel, how the hell are we supposed to get up there? It's like a goddamn fortress.”

He was right. From where we stood, Union Station looked more like a medieval castle in France than a train station in Missouri. But if it looked like a castle, perhaps it was built like one, too, with lots of corridors and passageways and cubbies. I surveyed the upper levels of the Headhouse as I tried to picture the inside of the structure. It had originally contained—in addition to the Grand Hall, the hotel, and the restaurant—dozens and dozens of specialty rooms: ticket offices, waiting rooms, telegraph and telephone centers, offices for various railroad companies. I could see lots of darkened windows, which probably meant lots of rooms and corridors beyond the public areas.

A pair of massive turrets flanked the main section of the Headhouse. They stood nearly as tall as the steeply slanted roof. Set in the curved outer walls of each turret was an ascending spiral of tall, narrow windows, which presumably tracked a spiral staircase inside. I thought of the barrel-vaulted ceiling of the Grand Hall. With any luck, the spiral stairs reached that high. I'd read somewhere that the ceiling of the Grand Hall, so solid and substantial in appearance from below, was actually a separate structure suspended from the roof. If so, that meant that there had to be access to the crawl space above the ceiling for maintenance of the suspension cables and stained-glass skylights.

The clock tower was at the far left end of the main structure. Although there was no public access to it,
someone
had to have access to it, if for no other reason than to perform routine maintenance on the clocks. If we could find our way into the passageways above the public areas we might be able to find an entrance to the clock tower.

Earlier tonight, after the call from Stanley Roth, I'd toyed with the idea of contacting Jonathan to have him try to get a search warrant, but I decided not to. I didn't know whether a tape recording of a dead convict constituted probable cause for a warrant; nor did I know whether Jonathan would be tainted if I sought his advice on the subject. If there was something important concealed in that clock tower, I didn't want to give any criminal defense attorney a basis to exclude it on a technicality. If it was really up there, Benny and I could bring it to the law enforcement officials in our capacity as private citizens.

I turned to Benny. “Let's check it out.”

***

The best place to check it out was from the arcade, which was an arched passageway that overlooked the Grand Hall one floor above the main level. Although the time was nearly midnight, we weren't as conspicuous as I'd feared. The promise of dramatic views of the Grand Hall had lured others up to the arcade. There was a trio of businessmen ahead of us, an older couple in tourist attire across the way, and an elderly man with a cane behind us. We tried to blend into the sparse night-owl crowd, although a close observer would have noted that we were concentrating on scenery far different from the other strollers. Specifically, we were searching for doorways and passageways.

Eventually, we peeled off from the others to head west down one of the corridors above the hotel registration area. There were doors along the way. Many were marked NO ADMITTANCE, all were locked. I wasn't discouraged. This was a big structure, and the folks who'd normally be moving around the back corridors were maintenance workers and members of the building trades, not security specialists and Secret Service agents. We saw painting equipment—tarps, two stepladders, paint cans—along one hallway. Another had a large floor polisher leaning against the wall. I knew that it was just a matter of time before we found an open door.

I was right. As we moved along a dimly lit corridor at the western edge of the Headhouse, we found a stairwell door propped open. Benny took one of the flashlights out of my backpack and handed it to me. I led the way. The top of the stairs opened onto a narrow hallway with several doors. The first door on our left was unlocked. Inside was a tiny room filled with cleaning supplies and mops. The second door on our right was also unlocked. Inside were wall lockers and a deep sink. We took another flight of stairs up—this one much steeper—and opened the door at the top.

There was a noticeable drop in temperature as we stepped into what at first appeared to be an enormous, unfinished attic. The air was chilly and musty. I paused to get my bearings. A wooden walkway ran the entire length of the room along the wall to our left. To our right was an immense object that seemed to swell up out of the floor in the middle of the room like the sloped, ridged backside of a huge sea serpent—so massive that it blocked our view of the other side of the room. The nautical image was reinforced by the twenty or so steel cables tethered to it like hawser lines, and by the series of narrow catwalks, one every twenty feet or so, that ran up the side of the thing from the wooden walkway. I pointed the flashlight overhead and moved the beam along the steepled underside of the roof. There were cables anchored up there as well, which confirmed what I had assumed. We were standing above the Grand Hall, and the massive thing suspended to our right was the top side of the barrel-vaulted ceiling.

We moved down the walkway along the entire length of the ceiling, pausing to note that the stained-glass “skylights” had powerful fluorescent bulbs suspended above them that mimicked sunlight for those in the Grand Hall below. At the far end of the room we passed through a doorway, down a long flight of stairs, along another corridor, down another flight of stairs, and into what appeared to be the dilapidated remains of a old ballroom. The floorboards were dusty and warped, the walls were exposed brick, and there were rusted support beams standing at odd intervals throughout the area. I swept the flashlight beam around the room slowly, trying to get my bearings. We had started west of the Grand Hall, moved east over it, and were now even farther east. We had to be getting warm.