WHEN the evidence began, the case seemed simple enough. A distributor of fuel oil was suing for the price of the product which he claimed the defendant had purchased from him. But the putative buyer insisted that the transaction had not been a sale at all. Rather, he said, the distributor had retained him as a kind of broker; indeed, he had brought a counterclaim for unpaid commissions. In many respects - as often happens - the parties did not dispute much of the evidence. They agreed that although the plaintiff-distributor had sold fuel oil for many years, the defendant was a novice in the business. His normal line of work was sheet-metal installation.
The men had been friends, and the metal man suggested that he could find retailers to purchase the oil man's product. The latter agreed, and the other had managed to make contact with two prospects, one of them in a neighboring state.
According to the testimony, when either retailer wanted oil, he would call the metal man, who would call the distributor for instructions as to the place of pickup. After the retailer took delivery, the metal man would drive over and receive in a sealed envelope currency said to equal the amount of the purchase.
Then he would drive to the distributor's, hand the still-sealed envelope to the bookkeeper, and depart without having seen the money or even taken a receipt for the envelope or its contents.
At this point in the evidence, the judge began to wonder. When the in-state retailer declined to answer particularized questions on the ground of possible self-incrimination, the puzzlement hardened into suspicion.
Regardless of the merits, the judge realized, he was hearing testimony that suggested the need for further investigation. Perhaps everything was entirely innocent, a combination of four-star naivet'e and unfortunate appearance. Yet the implausibility of the transaction (reflected in the jury's subsequent verdict), coupled with the sealed packets of cash, the lack of accounting, and the Fifth Amendment invocation, bathed the whole affair in a sinister light.
The judge's problem was simple. Plainly, the possibility of hanky-panky bore no relation to the outcome of the trial. Yet now a judge was hearing, in open court, sworn testimony that raised serious questions. Common sense cried for further investigation. What, if anything, should the judge do?
Sometimes a judge has to confront what appears to be outright perjury. Most of the time, the attitude is surprisingly casual. As the Massachusetts Supreme Judicial Court long ago noted, a ``contention that the prevailing party knowingly gave or procured false testimony ... might be made and strongly supported in a great many cases.''
Some judges apply a rough rule, at least in criminal cases: Even if the perjury is patent, if the liar is the defendant or someone from the immediate family, the court lets it pass.
Wrestling with the oil-cash problem, the judge recalled a long-past murder prosecution when a witness unrelated to the defendant had lied in his behalf early, often, and obviously. Though the district attorney's office certainly observed the perjury, no indictment ever followed.
What then should a judge do who hears evidence which, if brought to the attention of a prudent law enforcement authority, would almost certainly stimulate further inquiry? An umpire who sees an emery board drop from the pitcher's pocket starts his own on-the-mound investigation; he does not await the batter's protest. Should not a judge show equal celerity?
The umpire's role, however, is different. The emery board affects the very game over which he presides. What the judge was considering bore no relation to the litigation before him.
Yet he certainly could not let it pass. When the trial ended, he decided, he would order a transcript of the testimony and send copies, with a neutral letter of transmittal, to the district attorneys in each county involved, the United States attorneys in both states, and to each state's attorney general.
He received no acknowledgment for almost a month. Then he got two replies: One of the district attorneys wrote that he would be communicating with other affected authorities; the local US attorney returned the transcript without even a cover letter.
Maybe, thought the judge, the law enforcement community was as uncertain of its course as he had been.
Hiller B. Zobel sits on the Massachusetts Superior Court.