about “forceps” instead of “large tweezers.”
Best of all, Herman does not try to fill in what he doesn’t know: how it came to pass that I saw the letter inside the envelope and therefore avoided touching it with my hand. When I ask him this, he says he doesn’t remember.
But he does remember seeing the look on my face. “At that moment,” says Herman, “I thought there might be something dangerous in the envelope, because of the way you looked at it and the way you moved.”
“So what were you thinking at that moment?”
“If you wanna know the truth, I was thinking it might be a letter bomb,” says Herman. “It does happen. Happened to a lawyer in Atlanta last year,” he tells the jury.
If we had warned Herman about Tuchio’s pitch to the jury, that I avoided touching the letter because I already knew it was there, you get into problems. You could end up inspiring a witness to “remember” trivial details of things that never happened. Some people just want to help. But when it comes to details and the magnetic ability of the human mind to remember, there are limits to what a jury will believe. Anxiety over a possible bomb in a letter is not a problem.
Then I take him to the point, the reason he’s here. “Before this morning did I or Mr. Hinds or anyone else in our office ever ask you to testify in these regards?”
“No. Not until Mr. Hinds contacted me this morning.”
“Is there any reason why you might not want to testify regarding the manila envelope and the contents and how it was opened in my office?”
“No.”
“So if someone were to tell the jury that you had been asked previously by Mr. Hinds or myself to testify in these regards, and they told the jury that you declined to do so, for some secret or unstated reason or for any reason, what would you say to that?”
“I would say they either didn’t know what they were talking about or they were lying,” says Herman. He looks at the jury. “It’s not true.”
Then I nail the lid on this coffin, asking Herman if he has any information or knowledge as to who might have slipped the evidence, the manila envelope, under our office door.
He shakes his head. “Not a clue,” he says.
“Do you have any knowledge as to why they might have done it?”
“No.”
I move to the evidence cart and lift the plastic sealed envelope, the folded letter, and the small bag so that Herman and the jury can see them. Quinn has them identified for the record.
“And to make clear to the jury, have you ever seen any of these items, or any of the evidence contained in them, before last Monday morning when I opened the contents of this envelope on the desk in my office?”
“No, sir. First time I saw any of that was after you opened that envelope.”
“Your witness.”
Tuchio tries to take Herman for the ride he took with Jennifer earlier in the day, over the same falls. That Herman knows only what he has seen and heard from Harry and me, and then the question: How can he be sure that he is not being badly used here in court today?
Herman looks the prosecutor in the eye. “I don’t understand the question,” says Herman. “So why don’t you just say what you mean? Get it on the table,” says Herman.
“Fine,” says Tuchio. “How do you know that the evidence in that envelope wasn’t put there by one of the lawyers in your own office, or by someone associated with or related to the defendant, Mr. Arnsberg?”
“Because I have known Mr. Madriani and Mr. Hinds for years, and I know that neither of them would ever do such a thing, that’s how I know.”
“But what you’re saying is based on faith,” says Tuchio, “not fact. You believe they wouldn’t do it, but you don’t know that?”
“Are you asking me?”
“Yes.”
“I know it. Maybe you don’t,” says Herman.
The jury laughs.
“I’ll have to ask you to forgive my natural cynicism,” says Tuchio. “It comes from years of prosecuting cases.”
“That’s all right, I forgive you,” says Herman.
A little laughter from the audience and more from the jury box.
Tuchio steps away from the witness. He ponders for a moment, and when he stops, he ends up at the evidence cart. He returns to the witness. He is now holding the clear plastic bag containing the Jefferson Letter. He holds it up, and he asks Herman, “Do you know what this is?”
Herman nods. “Yeah. It’s the pages that Mr. Madriani took out of that envelope on Monday morning.”
“That’s not my question. My question is, do you know what the document is?”
“I know what it’s called,” says Herman.
“Objection, Your Honor.”
“I haven’t asked a question yet,” says Tuchio.
“Ask your question,” says the judge.
“If you know, can you please tell the jury what this document is called?”
“Objection. Exceeds the scope of direct, Your Honor.”
“Sustained,” says Quinn.
One of the rules of the road on cross-examination, a lawyer cannot ask questions that go beyond the bounds of the subject matter raised by his opponent during direct examination of the witness. Since I have not asked Herman or any other witness to tell the jury what the letter is called or to disclose any of its contents, Tuchio cannot simply pull this question out of his hand and play it like a trump card on cross.
He puts the bag with the letter down on a table near the witness. Herman glances at it, the item for which we have laid a quest for months, and Herman still doesn’t know what it says. He has hinted a few times that his curiosity is burning. But Herman says he understands. He is confident there must be good reasons Harry and I are keeping the contents of the letter to ourselves. Still, it would take the spirit of a saint not to feel like the odd man out after all we’ve been through.
Then Tuchio edges into whether Herman feels awkward testifying on behalf of a defendant, a client with the kinds of associations of Carl Arnsberg, “the Aryan Posse,” he says.
“I do my job,” says Herman. “That’s what it means to be professional.”
“But it doesn’t bother you? You never think about that.”
“No.”
This doesn’t work, so Tuchio goes back to basics.
“You say Mr. Madriani and Mr. Hinds wouldn’t be responsible for putting that envelope under the door, but what about Mr. Arnsberg? What about the defendant?”
Herman looks at Carl. “You’re asking me my opinion?”
“Sure.”
“I don’t think he would do it either.”
What else can Herman say?
“To save his life, you don’t think Mr. Arnsberg would have a friend or a relative-let’s leave Mr. Madriani and Mr. Hinds out of it-”
“Thanks for the courtesy,” says Harry.
The jury laughs.
“Not at all,” says Tuchio.
He turns back to the witness. “You don’t think that to save his own life, Mr. Arnsberg would have a friend, someone he knows, slide that envelope and the contents under his lawyers’ door? Is that what you’re telling this jury?”
“If you’re asking me my opinion, my answer is no, I don’t.”
Whether the jury will believe this, who knows? But the fact that Herman would say it, knowing Carl’s native
