QB VII (51 page)

SIT STILL!
Smiddy wrote back.

“What was your next contact with this situation, Mr. Tukla?”

“I was ordered to Barrack V the next morning and told to fill out death certificates for one of the men and one of the women. At first I put ‘shock’ for the reason of death for the man and ‘hemorrhage’ for the woman, but the Germans made me change the cause of death to ‘typhus.’ ”

“Now, Mr. Tukla, all of this has been preying on your mind for a long time.”

“I lived in fear of being named a war criminal.”

“Do you know what became of the six volumes of surgical records?”

“There was a great deal of confusion when the Russians liberated the camp. Many of us fled as soon as the SS retreated. I do not know what became of five of the volumes. I kept the sixth one.”

“Hidden all these years.”

“Yes.”

“Out of fear of your own involvement?”

“Yes.”

“What period of time does this volume cover?”

“The second half of 1943.”

“My Lord,” Bannister said, “I should like to offer in evidence at this time, the medical register of Jadwiga Concentration Camp.”

34

A
WAR OF WORDS UNLEASHED
. This was law that was!

“My Lord,” Sir Robert Highsmith said, “my learned friend has achieved a certain drama in a last minute attempt to present new evidence. I am going to object most arduously to its introduction as inadmissible.”

“On what grounds?” Mr. Justice Gilray asked.

“Well, in the first place I’ve never seen this document or had a chance to examine it.”

“My Lord,” Bannister said, “the register came into our hands at three o’clock this morning. During the night we gathered together a volunteer staff of forty people who have sifted through the pages to find relevant information. I have listed here on two pages of paper that information I feel essential. I will gladly supply this and photocopies of those pages of the register from which we will ask questions for my learned friend to study.”

“Then, you’re really asking to amend the Particulars in your claim of justification?” the judge asked.

“Exactly, my Lord.”

“And that’s what I object to,” Highsmith said.

Richard Smiddy slipped a note to his secretary to fetch Mr. Bullock, his managing clerk, and have him round up a staff of people in the event that Bannister prevailed. She darted from the court.

“It has been my experience,” Mr. Justice Gilray said, “that the defense can amend the Particulars during a trial if new evidence is brought forth.”

“I’ve seen no such application for an amendment,” Highsmith countered.

“I have one here, drawn up on a single page,” Bannister answered.

The usher handed copies to the judge and Chester Dicks and Richard Smiddy, who pored over it as Sir Robert continued the debate.

“Your Lordship and my learned friend will see that our application is on a single page and relates solely to the medical register,” Bannister said.

“Well, what do you say to that?” Gilray asked Highsmith.

“In my practice of law, which covers several decades, I have never seen or known of a case, particularly one which comes close to the length of this trial, where the court has ever allowed an amendment to a Particulars which would change the entire nature of the case.”

Chester Dicks was handing him down lawbooks and Richard Smiddy was handing them up. Highsmith read a half dozen precedents where such applications had been turned down.

“Would you advise the court on this, Mr. Bannister?” Gilray asked.

“I certainly don’t agree we are changing the nature of this case.”

“Certainly, we are,” Highsmith cracked back “Had this document been placed in evidence at the beginning of this trial, the plaintiff would have presented an entirely different kind of case. Here we are, over a month into the trial in its closing moments. Most of the defense witnesses have returned to Europe, Asia, and America. We have no chance to question them. Our chief witness after Dr. Kelno is locked away in Poland. We have inquired if Dr. Lotaki can be recalled, and he is not going to be given another visa. It is completely unfair to the plaintiff.”

“What about that, Mr. Bannister?” the judge asked.

“I intend to confine my questions solely to the register and none of the witnesses for the defense can shed any light so they wouldn’t be needed in any event. As for Dr. Lotaki, we would agree to pay for his passage to return to London but it is not our fault if his government will not let him come. Actually, if Sir Robert is going to allow Dr. Kelno to return to the stand I can cover what I want to know in an hour, and I will be glad to supply my learned friend in advance the gist of my questions to his client.”

Here was the soul of the barrister’s training. The extemporaneous and instantaneous ability to think and orate on one’s feet flanked with a catalogue-like memory and quick-working assistants.

“Sir Robert, in the event the medical register is admitted into evidence, are you going to allow Dr. Kelno to be questioned? “ asked Mr. Justice Gilray.

“I cannot reveal at this time what my tactic will be.”

“I see. Have you anything further to add, Mr. Bannister?”

“Yes, my Lord. I see nothing unusual or unique about the introduction of the medical register as evidence. It has been in this courtroom in spirit since the outset of this case. I suggest to his Lordship, that no single piece of evidence in all of English history has cried out more strongly to be heard. Here, after all, is the heart of the matter. Here are the answers we have searched for in every corner of the world and in this courtroom. Inadmissible, indeed! If we attempt to silence this medical register in a British courtroom it will cast a shadow over our very system of justice, for in any event, it will not be ultimately silenced. If we silence it here we are saying that we really don’t want to know what happened in Jadwiga or the Nazi era. It was all some people’s fantasy. And, are we not to consider the brave men and women who gave their lives to leave behind them such documents for the future to know what really happened?”

“In all fairness,” Highsmith interrupted, “my learned friend is making a closing speech to the jury. He’ll have time to do that later.”

“Yes, Mr. Bannister. What other grounds do you have to guide the court?”

“The strongest possible grounds. The testimony of the plaintiff, Dr. Adam Kelno, on direct examination by his own counsel. I quote to you. Sir Robert asked, ‘Were any records kept of your operations and treatments?’ To which Dr. Kelno answered, ‘I insisted on accurate records. I felt it important that there could never be doubts of my behavior later.’ A moment later, Dr. Kelno said from that witness box, ‘I wish to God we had the registers here now because it would prove my innocence.’ And again later an under direct examination he said: ‘In every single case I insisted the operation be entered into the surgical register.’ Your Lordship, nothing can be more clear than that. If Dr. Kelno made those statements in testimony are we not led to believe that if the register had been found by him that he would have entered it as a document?”

“What do you have to say to that, Sir Robert?” the judge asked.

“Dr. Kelno is, after all, a physician and not a lawyer. Not having seen or studied the document I would have done so and advised my client whether to offer it as evidence or not.”

“I suggest,” Bannister returned quickly, “that as long as it seemed that there were no chance at all the register could be produced, as long as he felt all these volumes were lost forever, Dr. Kelno could use it as implied evidence in his behalf. But alas, one of the missing volumes has survived and found its way into this court and now he is singing a different tune.”

“Thank you, gentlemen,” Gilray said.

He studied Bannister’s application. Legally the document seemed in good order, the kind an English judge could rule on in a moment.

Yet, for some reason, he continued to stare, his mind not really on it at all. The vast parade was suddenly passing before him.

During the trial, he was to be affected for the rest of his life. He had seen them ... human beings ... mutilated. It was not Kelno’s guilt or innocence that seemed the great question. It was what had happened at the hands of one’s fellow man. For an instant he was able to cross the line and understand this strange loyalty of Jew to Jew. Those Jews who lived free in England were only there due to some quirk of fate instead of Jadwiga and every Jew knew that genocide could have happened to his own family except for that quirk of fate. Gilray was strongly taken by those two handsome young people, Cady’s son and daughter. After all, they were half English.

Yet, as time stood suspended, Gilray was all gentiles who never quite understood Jews. He could befriend them, work with them, but never totally understand them. He was all white men who could never quite understand black men and all black men who could never quite understand whites. He was all normal men who could tolerate or even defend homosexuals ... but never fully understand them.

There is in us all that line that prevents us from fully understanding those who are different.

He looked up from the document into the eyes of the expectant courtroom.

“The application of the defense for an amended Particulars is approved. The medical register of Jadwiga Concentration Camp is hereby entered as evidence and will be marked as defendant’s exhibit W. In fairness to the plaintiff, I shall call a recess for two hours in order for them to study this document so they can prepare a proper defense.”

And with that, he left the courtroom.

The blow had fallen! Highsmith remained stunned. The judge had said,
TO PREPARE A PROPER “DEFENSE.”
Dr. Adam Kelno, the accuser, had become the accused, even in the mind of the court.

35

S
IR
A
DAM
K
ELNO WAS
ushered into the consultation room where Robert Highsmith and Chester Dicks and Richard Smiddy and a half dozen assistants pored over the photo copies of the register and copies of Bannister’s proposed questions. He was greeted coldly.

“It was a long time ago,” he whispered. “Something happened to my mind, there. For years afterwards I was in a state of semiamnesia. I have forgotten so many things. Sobotnik kept the register. He may have falsified entries against me. I did not always look what I was signing.”

“Sir Adam,” Highsmith said curtly. “You are going to have to take the stand.”

“I can’t.”

“You have to,” Highsmith answered tersely. “You have no choice.”

Adam Kelno was not fully able to disguise the sedation. He seemed departed as he sat in the witness box and Anthony Gilray advised him he was still under oath. Photocopies of certain selected pages were handed to him as well as to the judge and jury. Bannister asked the associate to hand the medical register to Adam Kelno. He stared at it, still in disbelief.

“Is the volume in evidence before you the medical register of Jadwiga Concentration Camp for the last five months of 1943?”

“I believe so.”

“You’ll have to speak up, Sir Adam,” the judge said.

“Yes ... yes ... it is.”

“Will my learned friend agree that photocopies in his possession and supplied to the court and jury are accurate reproductions of various pages of the register?”

“So agreed,” Highsmith said.

“In order to assist the jury, let us open informally to an ordinary sample page to establish the general format of the register. I ask you to open to a double page, fifty and fifty-one. Going from left to right we see eleven different columns. The first column merely lists the number of the operation and on this particular page we see that we are up to eighteen thousand odd cases of surgery. The second column tells the date. Now what is the third column?”

“It is the tattoo number of the patient.”

“Yes, and that is followed by the patient’s name, then a diagnosis of the illness. Is that all correct?”

“Yes.”

“We have now completed the first half of the double page and move on to page fifty-one. What is in the left hand column of that page?”

“A brief description of the operation.”

“And the next short column?”

He did not answer. Bannister repeated the question and received only an inaudible mumbling. “Isn’t that column the name of the surgeon and the next one the name of the assistant?”

“It is.”

“And the next column. Tell my Lord and the jury about that.”

“It’s ...”

“Well?”

“It’s the name of the anesthetist.”

“The anesthetist,” Bannister repeated in one of his rare raises of voice, “Would you glance briefly either through the photocopies, or the register itself, in reference to the column concerning the anesthetist.”

Sir Adam turned the pages numbly, then looked up watery-eyed.

“Wasn’t there always an anesthetist present? On all occasions?”

“Not fully trained in many cases.”

“But wasn’t it your testimony that in most cases you didn’t have an anesthetist and therefore you had to give it yourself and that was one of the reasons you chose spinal?”

“I did ... but.”

“Will you accept that the register bears out that in one hundred percent of the cases you either had a qualified doctor as your assistant or a doctor acting as the anesthetist?”

“It appears so.”

“So you were not telling the truth when you testified you did not have a qualified anesthetist present?”

“My memory may have failed me on that point.”

Oh God, Abe thought, I should not be feeling delight from all this. Thomas Bannister is now performing articulate legal surgery on him, and I should not feel any glory or vengeance.

“Let us move along to the next column. I see the word, ‘neurocrine.’ Would that describe the actual drug used in the spinal?”

“Yes.”

“And the final column is headed, ‘remarks.’ ”

“Yes.”

“Are pages fifty and fifty-one, including the column headings, in your handwriting, and your signature in the column marked ‘operator’?”

“They are.”

“Now studying the register again, do you see Dr. Tesslar listed anywhere as either the surgeon or the assistant?”