Von Gienanth’s declaration, if accepted by the court, would change the entire complexion of the case. Marina Schweitzer’s petition to the court had been based on there being no blood relatives, no heirs, and no executors. Clearly, if he were validated as executor, von Gienanth’s status would supersede Schweitzer’s and, therewith, any role whatsoever for the intervenors, the Russian Nobility Association and Anastasia Kailing-Romanov. Nevertheless, Richard Schweitzer saw a legal opening and determined to exploit it. Learning that von Gienanth wished to proceed with parallel testing of the tissue by Dr. Gill and Dr. King, Schweitzer petitioned the court to name the baron as the claimant’s personal representative in Virginia. Schweitzer knew that if the court agreed, his own nonadversarial suit against the hospital would be dismissed. But, along with this, the participation of Andrews & Kurth and Anastasia Kailing-Romanov would be terminated. Trying to prevent this, Andrews & Kurth filed a motion to block von Gienanth’s declaration from being presented to the court.
At this point, Schweitzer’s opponents either misunderstood his objective or underestimated his legal acumen. On February 22, Schweitzer, Matthew Murray, Lindsey Crawford, and Page Williams appeared before Judge Swett ostensibly so that the judge could set a date for a hearing on the unresolved issues raised in his December 7 letter: how the two sides were going to agree on which laboratories would test the tissue and how they should deal with the publicity attending the results. The judge looked down and said, “Have you all agreed on an order?” Schweitzer said simply, “No.” The judge stared at the lawyers in front of him. Then Murray said, “Your Honor, we really think that the first hearing ought to be over evidence we have received that there is someone [von Gienanth] who meets the requirements of the statute. If this other hearing can be held, anything else would be moot. I’d like to show you this request we have received from the man who purports to be the executor.”
“Has that man filed any pleadings in this case?” the judge asked.
“No,” said Murray.
“Is he a party in this case?”
“No,” said Murray. “But if he is who he claims to be, then the hospital is entitled to have this case dismissed so we can deal directly with this man.”
“Well, Mr. Murray,” said the judge, “what the hospital should do is file a motion to dismiss and attach these new documents as evidence in support. This court can’t rule because we don’t have any motion to dismiss.”
Here, Schweitzer spoke up. “Your Honor, there is a prayer to dismiss. I filed it in response to the last pleading of the Russian Nobility Association.”
The judge looked surprised. “Do you understand that if I dismiss the hospital, you’re in effect dismissing [the legal term is nonsuiting] your own case?” he asked. “Are you aware that you would be pleading a nonsuit?”
“Yes,” said Schweitzer.
“Are you willing to take a nonsuit?”
“Yes,” said Schweitzer.
“Counselor, do you plead nonsuit before this court?”
“Yes.”
“This case is dismissed,” said Judge Swett.
The other side was stunned. “Your Honor, we object to the entry of a dismissal because we are the intervenors,” protested Lindsey Crawford. “We have an interest and a claim on this tissue.”
“Well, if you have a claim or interest in the tissue, you can bring your own lawsuit”—Judge Swett paused—“if you have standing.” When he heard this, Richard Schweitzer, who for months had been arguing the Russian Nobility Association’s lack of standing, wanted to cheer.
As a result of this hearing and the entry of Judge Swett’s dismissal order on March 1, Baron von Gienanth, temporarily at least, was in control of the tissue. He immediately wrote to Martha Jefferson Hospital, asking that it make the tissue available to Dr. Gill so that he could carry out the Schweitzers’ commission. Von Gienanth also wrote to Lindsey Crawford urging an agreement that would make the same tissue available to Dr. King. Given this fact, the subsequent behavior of Andrews & Kurth was strange. Even as the baron was offering to do exactly what Lindsey Crawford had proposed in her draft consent order, she was vigorously attempting to undermine his credentials.
Andrews & Kurth retained counsel in Germany and learned that Anna Anderson’s will had never been probated there because, at the time of her death, she did not live or own property in that country. Further, the will authorized “any two of my executors” to act, and—Crawford subsequently told Page Williams—since only one was still alive, the will “has not and cannot be probated under German law … [and] probably cannot be probated in Virginia.” This led Williams to inform Matthew Murray that, in order for Baron von Gienanth to be appointed, he would “have to appear in person … in order to probate the will and be qualified as executor.” In fact, von Gienanth, elderly and deaf, was unwilling to fly.
In the meantime, attempting to deal with its sudden elimination as intervenors by Richard Schweitzer’s withdrawal of his wife’s case, Andrews & Kurth asked Judge Swett to review, clarify, and modify his nonsuit order; it was at a March 4 hearing on this motion that Mary Claire-King’s affidavit, written on December 7, ultimately was filed. The judge rejected Andrews & Kurth’s request; in effect, he told the firm, this is a nonsuit, you’re out, there’s no cross-claim, counterclaim, or third-party claim; that’s it, this lawsuit is over. If Marina Schweitzer wants to terminate this case and cut you out, she has a right to do so.
To Lindsey Crawford and her clients, this raised the possibility that Martha Jefferson Hospital might now feel free to turn the tissue samples over to Baron von Gienanth, who then would turn them over to Dr. Gill. “Your Honor,” asked Crawford, “can we have an injunction or a restraining order against the hospital pending our filing another action against the hospital?”
“If you want an injunction,” said the judge, “file for an injunction.”
At this stage, the Russian Nobility Association’s lawyers, determined to prevent any release of the tissue and frustrated by the sudden ending of the Schweitzer lawsuit, began showering letters on Matthew Murray, telling him what Martha Jefferson Hospital should and should not do. On March 18, nearly three weeks after termination of the Schweitzers’ nonadversarial suit against the hospital, the association filed its own adversarial suit, seeking an injunction against release of the Anastasia Manahan tissue before the court could rule on its challenge to von Gienanth’s credentials. The petition repeated that “it is essential that the tests be of the highest scientific integrity,” with the important modification that the association now sought “parallel testing of the tissue samples at two qualified laboratories” (only one, Dr. King’s laboratory in California, was named). Release of the tissue samples or any part of them at this stage, it said, would cause the association “great and irreparable harm” because “any chance at ensuring the maximum degree of scientific integrity in the mtDNA testing may be lost forever … [and] posterity may never know the true identity of Anna Manahan.”
Unfortunately for the Russian Nobility Association, this document, signed by Lindsey Crawford, contained a grievous error of fact, which ultimately was fatal to her case: “Upon information and belief,” Crawford had written, “there is no qualified personal representative of the estate of Anna Manahan.”
Once again, Richard Schweitzer was ahead of his adversaries. Around March 8, he uncovered an obscure Virginia law dealing with abandoned property. “It related mostly to farmland,” Schweitzer said. “If a farmer died or disappeared and left his farm abandoned, his cattle unfed, and so forth, anybody—it didn’t have to be someone with family connections—who knew about it could go into court and ask that the sheriff be appointed to take charge of the property until whoever was supposed to come and be responsible would do it. Then they changed the law—and this is the part I hadn’t previously realized—because sheriffs were being overwhelmed by managing property, paying insurance, and all that, which they had to do out of the sheriff’s budget. The new law says that anybody can petitio
n the court to appoint not just sheriffs but anybody else resident of the county or town as administrator of an abandoned estate.
“So I talked to my cocounsel and 1953 University of Virginia Law School classmate Ed Deets. Ed agreed to be named, and I told him, ‘I will act as your lawyer so you won’t have any legal expense, and I will put up the bond,’ which was about seventy-five dollars since there was no physical estate. So on March 16, with Judge Swett’s approval, my former cocounsel, Ed Deets, was sworn in as personal representative and administrator of Anastasia Manahan’s estate in Virginia.
“Matt Murray was aware of what I was doing. He was sick of the case, which was costing the hospital all that money, and he said, ‘Hell yes! Go ahead and file it!’ Baron von Gienanth was aware of it, and, as his credentials were going to be challenged, he also approved. Under the law, the administrator is entitled to medical records, including specimens and tissue. Ed promptly submitted a request for the tissue to be sent to Dr. Gill.”
Ed Deets’s appointment provided Matthew Murray with ammunition for a powerful attack on Lindsey Crawford’s request for an injunction. Filing two court documents on March 24, Murray struck hard at the absence of court standing of the Russian Nobility Association, which, he pointed out, had never filed certified copies of its articles of incorporation or a certificate of good standing. He described the New York association as “obviously … a mere genealogical society” which had no connection with “the person of Anna Manahan. Further,” said Murray, the association failed to present any facts or grounds to support its claim that it “would suffer any injury, much less irreparable injury, were any transfer of tissue samples to take place.” Finally, Murray delivered the coup de grâce: On March 16, two days before the filing of the nobility association’s request for an injunction, Ed Deets had been appointed as administrator of Anastasia Manahan’s estate. This made him, not the hospital, responsible for the disposal of the tissue. If you want an injunction, Murray said, sue Ed Deets.
Murray was hopeful that the matter was almost over. “If the judge rules favorably on this, then we’ll never get to the issue of the injunction,” he said about this time. “Before long, the Russian Nobility Association is out the window. Soon Ed Deets will file a document, as I have, saying in effect, ‘Judge, these people have no standing and you have no jurisdiction.’ Then the judge is going to be forced to rule on it. They [the Russian Nobility Association] could appeal, but I doubt they will. If they do, they have to post a bond to prevent us in the meantime giving up the tissue. They’d have to go to the Supreme Court of Virginia and to get the Supreme Court to issue an injunction has a snowball’s chance in hell. The real question now is who they are and what they are doing in Virginia.”
On the afternoon of March 30, 1994, a group of people gathered again in Judge Swett’s courtroom in the colonial red brick Circuit Courthouse in Charlottesville. The attorneys, Matthew Murray for the hospital and Lindsey Crawford and Page Williams for the Russian Nobility Association, sat in front at opposite tables. Alexis Scherbatow of the Russian Nobility Association sat beside his two lawyers. In back, on benches on one side of the room, were Marina and Richard Schweitzer, Ed Deets, Penny Jenkins, the English documentary filmmaker Julian Nott, a local newspaper reporter, Ron Hansen, and me. On the other side sat Dr. Willi Korte and an editor of the scientific journal Nature Genetics, Dr. Adrian Ivinson.
The subject of the hearing was to be the nobility association’s request for an injunction, but Murray immediately asked the judge to rule on his challenge to the association’s standing. Judge Swett decided, however, that Ed Deets’s new role and the fact that Deets had not yet asserted his wishes or filed any papers justified postponing the issue of standing. On that day, said the judge, he would listen only to arguments for and against a temporary injunction.
The significant event of the afternoon was the public display of Andrews & Kurth’s reversal of its position on Peter Gill and parallel testing. The Washington lawyers had no choice. Mary-Claire King’s affidavit, withheld at the time she wrote it but now a part of the court record, had made clear the fallacies in William Maples’ attack on Gill. Now, with Deets in command of the disposition of the tissue, Andrews & Kurth had to face the fact that, in the near future, Peter Gill probably was going to receive and begin to test a piece of Anastasia Manahan. The best Crawford now could hope for was that the tissue not be sent to Gill until, at the same time, it went to King. Therefore, she who had opposed parallel testing became its advocate.
The instrument of this reversed advocacy was Adrian Ivinson, a young Englishman with a doctorate in clinical and molecular human genetics. He appeared as an expert witness on behalf of the Russian Nobility Association. Taking the witness stand, Dr. Ivinson declared that consigning the tissue to parallel testing at two laboratories would be scientifically more significant than testing in only one laboratory.
Judge Swett wanted Ivinson’s opinion of two famous DNA scientists. “I take it you hold Dr. King in the highest esteem as an international scientist,” he said.
“Yes,” said Ivinson.
Then Judge Swett asked whether Ivinson would put Dr. Peter Gill and the Forensic Science Service laboratory on the same level as Dr. King’s laboratory.
“Yes,” said Ivinson.*
At the end of that day, Judge Swett did not grant the temporary injunction the Russian Nobility Association had requested because, during the hearing, Matthew Murray promised voluntarily to have the hospital hold on to the tissue a little longer—for “the next several days or weeks”—until conclusion of the litigation. In the meantime, the judge instructed the association to deal with Ed Deets, the new administrator of Anastasia Manahan’s estate.
Deets immediately focused on the nobility association’s relationship with Mary-Claire King. He asked Page Williams whether the association had a written agreement with King and, if so, what it was. He also asked for a copy of King’s report on the work she had done on the Ekaterinburg remains. Williams wrote back that the Russian Nobility Association had no written agreement with King. Deets tried telephoning Dr. King. At first, his calls went unanswered. Eventually, when they spoke, neither was impressed by the other. Deets said that if she was going to test the tissues, he thought there ought to be a definite time schedule. King, apparently offended by this suggestion, hung up.
The final court hearing on Anastasia Manahan’s tissue took place on May 11, 1994. By then, both Martha Jefferson Hospital (Matthew Murray) and the administrator of Anastasia Manahan’s estate (Ed Deets) had filed papers demanding that the lawsuit of the Russian Nobility Association be dismissed because the court lacked jurisdiction and the association lacked standing. In reply, Lindsey Crawford of Andrews & Kurth argued one last time that the association’s interest in noble lineage and “protecting the history of Imperial Russia” automatically gave it standing.* Despite Crawford’s plea, Judge Swett accepted the arguments of the hospital and Deets and dismissed the case. His court order was entered on May 19, 1994, and gave the Russian Nobility Association and Andrews & Kurth thirty days to file an appeal. If no appeal was filed, the case was over.
Richard Schweitzer waited until the exact day that time ran out on the Russian Nobility Association’s power to appeal Judge Swett’s decision. Then, on June 19, Peter Gill arrived in Charlottesville to collect a sample of Anastasia Manahan’s tissue. He came in secrecy; Schweitzer still feared that Willi Korte or Andrews & Kurth might attempt to intercept Gill or interfere with his access to the tissue. “Gill might be served with a process to prevent his acting,” Schweitzer wrote to Matt Murray, objecting to the hospital’s plan to publicize the visit. “Attempts may be made under obtuse regulations to prevent him taking these [human] materials out of the U.S. He or his specimens may be subjected to physical interference, although I have arranged for an escort to accompany him.”
Gill had lunch that day with the Schweitzers and then went to the hospital to collect the tissue. He was greeted there by Ed Deets, Matt
hew Murray, Penny Jenkins, and Dr. Hunt Macmillan, director of the hospital pathology laboratory. While the lawyers and nonscientists watched from the back of the room and a documentary film crew recorded everything that happened, the process got under way. Macmillan, Gill, and Betty Eppard, a registered histology technician who actually cut the tissue, appeared wearing sterile masks, gowns, and gloves. The five blocks of paraffin containing the embedded tissue of Anastasia Manahan were produced, and the same procedure was repeated five times: Macmillan handed Gill a tissue block and identified it. Gill sterilized it and handed it to Eppard. Eppard mounted it on a microtome, a machine resembling a bacon slicer, and deftly sliced three to six dark brown pieces, each equal in thickness to two hairs. Gill, using tweezers, gently lifted the sliced tissue and placed it in sterilized vials. Macmillan placed the sterilized vials in tamper-proof, transparent plastic bags and sealed and labeled each bag. After each block, the microtome was wiped with absolute ethanol and its cutting blade was changed. Afterward, at a hastily summoned press conference, Gill warned that “I can’t be sure at the moment how likely it is we’ll get DNA from the samples.” He had no idea, he said, what effect the age of the tissue or the use of the chemical preservative formalin would have had on the DNA. If the DNA extraction process went well, he hoped to have a comparison between Anastasia Manahan’s DNA and the DNA profiles of the Imperial family taken from the Ekaterinburg bones within three to six months.
On June 29, ten days after Peter Gill collected the tissue in Charlottesville, Maurice Remy wrote Richard Schweitzer a remarkable confessional letter. In the letter, in a subsequent press release, and in a mass of other documents which he forwarded to Schweitzer, Remy revealed everything that had happened in his camp before and during the long court battle. His enterprise began, he said, when he met Geli Ryabov in Moscow in 1987 and decided to produce a documentary on the murder of the tsar and his family. In July 1992, he was present at the Ekaterinburg conference on the remains of the Imperial family. There he met Dr. Maples and his team, who told him that the skeletons of Alexis and Anastasia were missing. At that moment, Remy said, he decided to concentrate his efforts on the missing grand duchess and to expand his research to include a DNA test on Anastasia Manahan.