1933 trial: Judge describes trial as 'spinning out of control'

Warns attorneys for both sides about line of questioning
Published : 07/14/11
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Barry Berke, attorney for the Langbord family, continued his cross examination of the government’s numismatic witness David Enders Tripp on July 13, until Judge Legrome D. Davis ended the day early, reminding both sides to stay focused in a trial that he described as spinning increasingly “out of control.”
Five visiting Ukrainian judges, various baseball references and the abrupt end made the fifth day of the trial involving the 10 1933 Saint-Gaudens gold $20 double eagles claimed by both by Langbord family and the government one that teetered a fine line between interesting and excruciating. 
Joan Langbord was not in court as she was on July 12, but her sons, Roy and David, were there, watching as Berke batted the government to regain possession of 10 1933 double eagles that were allegedly found in a family safe deposit box in 2003. 
The jurors were called into the courtroom at 9:30 a.m., a delayed start caused by a juror’s late train. Judge Davis announced that five visiting judges from the Ukraine would be attending the trial to observe, as they had read coverage of the trial in the media, and as Judge Davis said, “Wild horses couldn’t keep them away.” 
Is this case about eggs?
At times even Judge Davis — who perhaps knows the documents better than anyone — couldn’t follow Berke’s logic flow in his cross examination of Tripp. Davis suggested that if it takes Berke 10 minutes to explain the connection to the trial judge, such complexities would likely be lost on the jury. 
For example, Berke questioned Tripp about a statement in the 2002 catalog he helped prepare for the sale of the alleged Farouk 1933 double eagle at Sotheby’s. The entry stated that a dozen eggs in 1933 cost 25 cents. At  one point, Tripp had said that one could use a 100:1 ratio to determine purchasing value of $20 double eagles in 1933, or that a gold $20 coin in 1933 would be worth $2,000 today. Berke reasoned that this would make the relative value of eggs $25 in 1933, to which Judge Davis interjected “is this case about eggs?” 
At the end of the early day, Judge Davis said that while he didn’t doubt Berke’s ability to “keep us here for a few more years,” he said that Berke needed to “narrow the strike zone” to keep the case from “spinning out of control.” 
Revisiting topics
Berke began his second day of cross examination by revisiting Tuesday’s topics, specifically the Mint’s cashier’s records and the lack of an explicit requirement that would require the cashier to keep track of coin dates, referencing Tripp’s Oct. 8, 2008, deposition to find perceived inconsistencies. Berke asked Tripp if it was his professional assumption, and Tripp stated that it was his professional opinion, continuing the language nuances that characterized Tuesday’s dialogue. 
Much of the questioning that followed was aimed at showing the Mint’s sloppy record keeping around 1933. A look at the Secret Service investigations of 1937 that found inconsistencies with cashier reports and daily gold records followed. 
Tripp noted that the Secret Service report looked at transactions in the year 1928, which was an unusually busy year, so busy that the single output of double eagles in one day was equal to the entire production of 1933 double eagles. Tripp added that it is simpler to make errors when one is overworked, utilizing common sense that at times seemed missing from the Wednesday’s questions and answers. 
The 1937 report called the Mint’s recordkeeping of the period “careless and slip shot” and added that the Mint seemed to have no systematic accounting system. The report added that the “unsatisfactory” method of keeping Mint and vault records was “a serious handicap” to the investigation, and that it may be expected that future evaluations of Philadelphia Mint records of the period would suffer because of the poor records.
Tripp’s book, Illegal Tender, was next introduced as defense exhibit 300, with Berke telling Tripp, “You’ll be happy to know we had to buy a number of copies of this book for our case.” Judge Davis added that the book now belongs to the people of the United States, as it had been marked into evidence. At one point Berke had a convenient Freudian slip, calling the book narrative fiction, which Tripp corrected as narrative nonfiction, in that he weaved the events into a story in Illegal Tender to make it understandable. 
Question by question, answer by answer
The next line of questions was based on Tripp’s assumption that Mint employees followed all procedures at the time. One of these procedures — a certificate of correctness — may have been either a separate form or a signature on an existing form. When Berke mentioned possible inconsistencies in Tripp’s testimony and the Oct. 8, 2008, deposition, the jury was reminded that the deposition was 533 pages long. 
At a break, Judge Davis attempted to direct Berke’s questioning, telling the attorneys while the jury was out, that if the attorneys attempt to tell a jury millions of things, “they might remember two,” before adding, “as important as it is to you, its meaning could get lost if it’s in too many facts.” Judge Davis reminded the attorneys about the mass of evidence, and that the “high volume of materials” demands an approach “question by question, answer by answer.” He said that while he does not usually impose time limits, he was rethinking the policy in the current trial. 
Upon the jury’s return to the courtroom, Tripp spoke of the intimidating nature of the deposition, clarifying his thoughts on the “certificate of correctness” issue, while Berke continued questioning about policies that may or may not have been followed at the Mint in and around 1933. 
An Aug. 3, 2009, Coin World article by Roger W. Burdette — the numismatic expert for the Langbord family — was referenced to show that contemporary records could be wrong and that the Mint’s cashier did not always follow the stated procedures. Judge Davis said that this would be addressed when Burdette testifies for the Langbords.
Comparison to 1933 $10 eagles
Berke questioned Tripp about the relationship of 1933 double eagles to 1933 Indian Head gold $10 eagles, to which the government objected, as the coins are not the subject of this litigation. Despite Mint records showing that only four 1933 Indian Head gold $10 eagles left the Mint legally, there are estimates that as many as 35 are available today.  Yet the the $10 eagles are not the subject to confiscation, unlike the 1933 double eagles. 
Tripp countered that the 1933 $10 eagles differ from the 1933 $20 double eagles in that no 1933 double eagles left the Mint through legitimate means, while “once the barn door is open” through legal distribution of 1933 $10 eagles, it became impossible to differentiate legitimate versus illegitimate coins. Berke used this example as further proof that the Mint records of 1933 didn’t accurately show what was happening at the time. 
The questioning after the lunch break was much more fragmented. Topics covered included denied requests by organizations to obtain 1933 double eagles, the Farouk export permit, other members of the Switt family who may have had gold connections with the Philadelphia Mint and the 1944 Secret Service investigation. 
An early end
By 2:30 p.m., after one particularly obscure line of questioning involving a collection of coins in 1936 that tested the boundaries of relevance, Judge Davis called a break and told Berke that even he did not follow the logic; “if you lost me, you’ve lost the jury.” Judge Davis reminded the attorneys that their job is not to have the jury reinvestigate the Secret Service investigations, and warned Berke that he is giving more opportunities for the government to bring up unfavorable things on the redirect of Tripp. 
Judge Davis closed by reminding the attorneys to present a clean story, saying that no investigation proceeds A to B to C to D, allowing wide latitude, but warning that the scope needs to be narrowed, “otherwise we’ll be here when the Yankees win the World Series.” 
As Wednesday’s session ended, Berke had not finished his cross examination of Tripp. It is expected to continue today, to be followed by the government’s redirect examination of Tripp. ■
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