inclinations and his prior associations…And then suddenly, with this thought halfway through the cortex of my brain, I realize where Tuchio is going.
“Would you tell the jury what that opinion is based on? Your considerable opinion of Mr. Arnsberg?”
“Your Honor, I’m going to object. This exceeds the scope of direct. The witness is not here as a character witness. He’s here solely for the purpose of refuting the false implication raised by Mr. Tuchio that the witness refused or declined to testify because he was supposed to have some secret knowledge about that envelope, which he does not.”
“Nah, nah, nah. Bring it up here,” says Quinn.
We end up at the side of the bench.
“Your Honor, this witness was brought in here for a very narrow purpose, and Mr. Tuchio knows it. If he wants to cross-examine the witness as to what he saw in the office that day, the day the envelope was opened, fine, but getting into the defendant’s character is way off base.”
“The witness is on the stand,” says Tuchio. “He’s testified as to what he says he saw when the envelope was opened. He claims he never saw any of it before. Now he says he doesn’t believe that Mr. Arnsberg would have anything to do with slipping it under the door or having friends do it. That’s all fair game,” he says. “And I have the right to test the witness’s credibility, Your Honor.”
“Objection overruled,” says Quinn.
Just like that, we’re back out. Tuchio is one of the craftiest lawyers I’ve ever met. We didn’t deliver the right witness to him this morning, so he baited us, laid inferences that we were compelled to refute so that he could get Herman in here on the stand. I know where he’s going, and there’s nothing I can do about it.
“Where was I? Oh, yes. You stated that you don’t believe that Mr. Arnsberg would have anything to do with putting that envelope under your office door. Is that correct?”
“That’s right.”
“What is that opinion based on? Your considerable opinion of Mr. Arnsberg?”
“You get to know someone. You talk to them. You generally get a feel for them.”
“Intuition?” says Tuchio.
“If you want to call it that.”
“Let me ask you, how well do you know Carl Arnsberg?”
“I don’t know. I’ve known him for some months now.”
“Have you ever gone to his house for dinner?”
Herman looks at him and smiles. “He’s been in jail since I met him. You know that.”
“Of course. Have you ever been to his parents’ house for dinner?”
Tuchio plays the racial divide.
“Can’t say as I have.”
“Have you met his parents?”
“I’ve talked to Carl’s father. I don’t think I’ve ever met his mother.”
“Have you ever met any of Carl’s friends, his associates?” Tuchio smiles as he says this.
You can see where he is taking it, and there are a dozen intersecting avenues once he gets there. Set Herman up and ask him about the Posse, Carl’s buddies. Oh, and by the way, what do you think they might do to you if they got you out on the reserve alone? If that doesn’t get the witness’s juices flowing, Tuchio will trout out the “traitor to your race” theme.
“I don’t think I ever met any of his friends,” says Herman.
“So, during the course of your investigation, your work on this case-You have done work on this case?”
“Some,” says Herman.
“During the course of that work, you never had occasion to interview any of the friends or associates of the defendant?”
By now Herman has seen it and scoped out the terrain.
“You’re talking about the Aryan Posse?” He deals with it in the way Herman deals with everything, directly. “And you want to know why the firm didn’t send an African American investigator out to interview the members of the organization?”
“It was on my mind,” says Tuchio. But this is not exactly the way he would have approached it.
“Well, first off, your question assumes that these are Carl’s friends, and to be honest, I don’t know that.”
“We’ll get to that later,” says Tuchio. “For the moment let’s just stick to the question of why your firm didn’t send you out to the reserve, to interview members of the Aryan Posse? If they weren’t his friends, they certainly knew your client.”
This is what Tuchio has wanted to get at all day.
“Well, it ain’t rocket science,” says Herman. “Some people might think that if I went out there, I might not come back.”
Full-out laughter from the jury box. Belly laughs from two of the bailiffs.
“So the thought was that if you went out there, harm might come to you.”
“No, you got it wrong,” says Herman. “Harm never comes to you unless you go looking for it.”
This of course is the answer to the prosecutor’s question, but Tuchio doesn’t like it.
“Still, you just said that if you went out there, there was a chance you might not come back?”
“There’s always the chance, but there’s one thing you can be sure of.”
“What’s that?” says Tuchio.
“If I didn’t come back, it wasn’t ’cuz I joined up,” says Herman.
More laughter from the box. Some of the deputies are turning toward the walls they’re laughing so hard.
Tuchio is getting tired of Herman’s one-liners.
So he tries to go frontal with him.
“Let’s cut to the chase. Let’s make it clear for the jury,” he says. “The reason your firm didn’t want to send you, an African American, out to the reserve to talk with the Aryan Posse was that they knew it wasn’t safe. Isn’t that a fact?”
“I thought that’s what I just said.”
“So those are dangerous people as far as you’re concerned? The Aryan Posse?”
“Let me put it this way-”
“No. No. Just answer the question. Yes or no,” says Tuchio.
“That kind of rigid attitude will give you ulcers,” says Herman.
“Don’t worry about my ulcers, just answer the question,” says Tuchio.
“But I do worry,” says Herman. “People like you get ulcers and screw up, and then people like me get sent out to the Aryan reserve undercover.”
More laughter. Two of the deputies out in the audience, faces red as beets, are laughing their way toward a coronary.
“That doesn’t answer my question,” says Tuchio.
No, but the jurors are rolling around like bowling balls in the box. There’s nothing that can kill a serious prosecution faster than laughter. Herman is loose on the stand, and Tuchio is starting to feel like he’s center stage at Comedy Club Central.
“The Aryan Posse, are they dangerous people? Yes or no?”
“I can’t answer that question.”
“Yes or no?” says Tuchio.
“I’m not gonna answer the question yes or no.” Herman sits in the chair, dwarfing it, his arms folded, and his lips clenched like those of a third-grader refusing to eat his carrots, all 285 pounds of him.
“Answer the question,” says Tuchio.
“You want an answer, I’ll give you an answer. I just can’t answer it yes or no. You don’t want an answer, I’ll go home. Either way is fine by me,” says Herman.
“Your Honor, I’d ask that the court direct the witness to answer the question,” says Tuchio.
“He’s offering to answer the question, Your Honor. Counsel won’t let him,” I say.
“Let the witness answer the question,” says Quinn.
“Answer it!” says Tuchio.
“I don’t know whether the Aryan Posse is dangerous or not. How can I say that everybody, just because they
