by Alan Hruska
The CEO’s office is an eight-window corner expanse surrounded by a honeycomb of rooms for dining and caucusing, and an outer chamber for Rush’s secretaries and staff. Bushido items line the spare, white walls. Samurai robes, samurai swords, and other Japanese artifacts are hung up like paintings.
As he and Templeton stand waiting, Alec brings back what he’s been told about Rush, mainly by Macalister. Once a reporter, Mac had mentioned, with an extraordinary brain for numbers, a mania for acquisition, and the sort of energy that engulfs people like a tornado. Starting on the staff of a small newspaper in New Zealand, Rush had somehow raised the capital to buy it. Then leveraged the paper into enough cash to buy a radio station. Then TV. Then many more of each all over the world. Within two decades, his brand of media had put its spin on the culture of four continents. Still, when Alec meets the man, and he rises up only to Alec’s chest, Rush needs to prove something physical with a handshake grip that crushes the ends of Alec’s fingers. “So you’re the young warrior whom Ben Braddock brags about.”
Two chairs have been cleared at the end of the table. Bill Templeton and Alec each take one, Templeton lighting up one of his unfiltered cigarettes. Rush himself continues to stand, balancing a sheathed samurai sword he had plucked off the wall. “I wanted Ben to do this case himself. You know what he told me? That you’d do it better. That you’re the smartest young lawyer in New York. And that he’d carry your bag. Is any of that true?”
“The bag part, probably.”
Jocko laughs. “Bill, I trust, has filled you in?”
“He has, yes,” says Alec.
“Piece of cake, right?”
Alec hesitates. “No, I wouldn’t say that.”
“What?” Rush utters with a show of surprise. “Franks is a swindler. A fucking con man. This is a news story. What about the First Amendment?”
“You can write what you want about Franks, but if you want to prove it with a side-by-side, there’s a competing policy,” Alec says. “Copyright.”
“Copyright?” storms Rush, slamming the sword to the table. “On a fraudulent manuscript? You can’t be serious!”
“The problem is timing,” Alec says. “The court hearing is scheduled for an emergency session tomorrow morning, Saturday. You go to press tomorrow night. The trial judge will probably rule against us. We need time to make an emergency appeal on a Saturday afternoon. Which cuts out the time for an evidentiary hearing—even assuming the trial judge would allow one. So we have to win immediately in the appellate division on the papers. And all we have is our paper allegation that the manuscript is a fraud. Without live witnesses—and without the time for these judges actually to read both manuscripts side-by-side, this is not a slam dunk.”
“How much of the thing do they have to read, for Christ’s sake? Look at four or five passages and you know that Franks is a plagiarist.”
“He’ll probably claim Tanaka plagiarized from him.”
“That’s absolute bullshit!”
“No doubt. But you can’t cross-examine an affidavit. And if there’s no evidentiary hearing, in effect, for the time being, it’s taken as true.”
“But you will win the case,” Rush asks.
“I’ll win what I think you need,” says Alec.
“Meaning?”
“How much of the Franks’ manuscript were you planning to print?”
Rush looks down the table at the magazine’s managing editor. “About a thousand words. That right, Miguel?”
Miguel Rivera, the editor, nods. Rush looks at Alec.
“Okay,” Alec says. “A thousand words. You got it.”
“What about the copyright problem?”
“Just went away. With the doctrine of fair use. Assuming we can find some appellate judge who understands it.”
“Why you so sure we’re losers in the lower court?”
“The judge,” says Alec. “I know him.”
FIFTY-FOUR
There’s been a development,” Braddock says as Alec walks into his office.
“Oh?”
“Actually, it happened late yesterday, but we didn’t get notice until today. Ikuda’s intervened. He also wants an injunction—both to stop the Franks’ book from being published and to stop our printing any part of it.”
“Who’s representing him?”
“Dave Lipschutz.”
“Bronx clubhouse,” Alec says. “That’s probably how the judge got appointed.”
“You know him, Lipschutz?”
“He was on the other side of something Mac did last year. What’re his grounds?”
“Libel,” Braddock says. “And exclusive right to his own bio.”
“Pretty baseless.”
“Not at the trial-court level.”
“No, they could argue anything there.”
“So, whatta you need?” Braddock asks, sitting back in his desk chair with a deliberate show of ease. “In an appellate judge?”
“We get to pick our own judge?” says Alec.
“This is the appellate division. Still in the dark ages. No emergency judge is designated. You got an emergency? Go find a judge yourself. On a Saturday.”
“A single judge can stay an injunction,” thinks Alec aloud. “Not reverse it, but stay it until the full court can review weeks later. Right?”
“Right.”
“And a stay on a Saturday afternoon is all we need to go to press Saturday night.”
“Now you’re getting on top of the problem. So what kind of judge do you need?”
“First of all, he can’t be a Democrat. Dave Lipschutz is totally plugged into Tammany Hall. Secondly, we need a smart judge. We’ve got the better case. Be nice if we had a judge who understood it.”
“You also want someone who knows something about copyrights.”
“Yeah, great,” says Alec. “In state court? A smart Republican scholar of a federal doctrine? You’re going to tell me there’s somebody up there who meets those criteria?”
“Of course. Teddy Krane. Big copyright expert before going on the bench. Won a huge case in that field. Landmark decision.”
“He’s ideal!”
“Yes, he is,” Braddock says.
“There’s a problem. I can see it in that look you’re giving me.”
Braddock laughs. “Yeah, there’s a problem. Case he won was against your client, Telemarch News. And he won it by defeating the very doctrine you’re planning to assert—the fair-use exception to a copyright.”
“The Zarenga film case,” Alec says. “The estate of the guy who had been filming a documentary about Trotsky at the time of the assassination. Telemarch wanted to publish two or three frames of the film, arguing it would be a fair use. The Supreme Court ruled otherwise.”
“That’s the one. You remember the facts, but not the lawyers.”
Alec says carefully, “You were on the other side?”
“Whatta you think?” Braddock says with a smile. “You win every case?”
“Our facts are a lot better than they were in Zarenga.”
“A bit. So are you going to call Mr. Justice Krane, or am I going to have to do that for you, too?”
The trick about not being nervous, Alec thinks, as he dials Justice Krane’s chambers, is not to think about all the things that should be making you nervous. It also helps that the thing you’re in charge of is the front page story of every newspaper in the world.
Alec tells the judge’s secretary why he’s calling, and the Hon. Theodore Krane immediately takes the call. Listening to a complicated situation netted out tersely causes the jurist briefly to pause.
“I’ll be at home tomorrow afternoon,” Krane says. “If your papers are in order—which includes proof of appropriate notice to your opponents—I’ll hear your application for a stay. In my living room. I’ll put my secretary back on to give you the telephone number and address.”
While Alec waits, he muses over an interesting fact. Not even Krane had any doubt but that an
injunction would be issued by the trial court judge, Robert Locklear, the judge in Alec’s first trial. Not the brightest star in a dim constellation, and Tammany to the core.
Alec, still at his desk and surrounded by case books, puts in a call to Harvey at home. “Sorry.”
“Why?” says Harvey.
“Calling you this late.”
“I’m watching the ballgame. It’s not as if I have a life outside the office.”
“Oh, Jesus,” Alec says, “I really am sorry.”
“Lighten up, kid. I’m just kidding.”
“Are you married? Christ. I should know that.”
“Not at the moment.”
“You’ve been married.”
Harvey lets escape a big dramatic sigh. “Oh, yes.”
“Has the sound of more than once.”
“This is why you called?” Harvey says. “To discuss my marital history? And where are you, anyway?”
“The office.”
“Right. As I expected. I thought Braddock was doing the papers for you.”
“He is. Has. They’re great.”
“So all you gotta do tomorrow is stand on your feet and talk, right?”
“Right.”
“So what the hell are you still doing in the office? You ought to be home, getting some sleep.”
“Why haven’t you called me about Carrie?”
“Because there’s nothing to tell you. There’s someone with her every day. But there’s nothing to report, because nothing’s changed. She looks okay. The kid’s okay. Mom and kid on the playground. Not exactly earth-shattering news.”
“Suppose I were to approach her?”
“Before your court appearance, or during it?”
“Not funny. Right after.”
“You gonna bring the TV cameras?”
“I hadn’t planned on it.”
“Well, the guy who watches her is not employed by me. Vito is his name. He works for Phil. I suspect he knows what you look like.”
“So what’s he gonna do? In the middle of the park?”
“To you? Then? Probably just shoo you off. Especially if you bring the cameras. What Phil might decide to do later? To you? To her? Couldn’t tell you for sure. But Phil Anwar is a notorious sadist. He’s got the muscle to get you on a table. He takes pleasure in inflicting pain, and he’s not overly fussy about killing people. So it’s not exactly high on the list of risks you ought to be thinking about taking.”
Sam, at home, listens to recordings from the tap on Phil Anwar’s phone. Some of the conversations are Vito’s, some involve other staff, some are Phil’s. None are illuminating.
With the tapes droning on, Sam watches a basketball game, audio off. It would seem Phil assumes his line is tapped. He makes veiled references to people, places, and things. At the end of the day, Sam has trouble listening to as much as a half hour without nodding off.
Since this is work he does only in his own apartment and now spends half his time at Abby’s house, Sam’s falling way behind, and it worries him. Not as much as moving in with her, however. That really scares him, although it’s not as if she’s asked him to do it. He’s guessing it probably scares her too.
He checks the clock. Nearly eleven. Another beer would put him to sleep for the rest of the night. He resists it and turns up the sound on the tapes.
Doorbell. It’s Abby. Cold as hell outside, and she’s coatless. Hair windblown. “Busy?” she says.
“Get in here, you’ll freeze!”
“I should have called.”
Inside, she gives a disparaging glance to Sam’s earphones and recorder. “If we’re not getting anything out of this, let’s stop it.”
“We are getting something,” he says.
“Oh?”
“Phil’s having a lot of trouble with his young wife.”
“Great,” she says sarcastically.
“Phil might say something. Vito might.”
“I’ll tell you what’s likely,” she says. “He’s seen you. He can easily find this place. Anyone checking on you, seeing this equipment—”
“I thought we might broaden the coverage. Tap Little John too.”
She does a double take. “Are you totally out of your mind?”
“Abby, for Christ’s sake. You just told me you’re worried Phil might send a man here. Just ’cause he once saw me in his home. You read that story in this morning’s News? Missing people connected to the mob, a bunch of them, including Aaron Weinfeld, right? How many people, other than you, know that Phil wanted Weinfeld’s phone tapped? That makes you valuable to Little John and dangerous as hell to Phil. You wanna go missing too? You’re now more vulnerable than Weinfeld was, and he’s probably at the bottom of the ocean.”
FIFTY-FIVE
It’s a cold March morning when Alec steps into a cab. Stoically, he rides it downtown, spies the commotion going on in front of the courthouse and gets out on the west end of Foley Square.
Crossing a small park of tall, spindly trees, he watches the press mob swarming over the courthouse steps, vans in front, camera equipment being assembled. He stops for a moment, takes a deep breath, and looks up. Black limbs pattern a pewter sky, like an abstract canvas. The sun is up there somewhere between the branches, behind the cloud covering. The crowd’s here for Ikuda, but in a couple of hours, they’ll be swarming the lawyers. He heads for the courthouse. The reporters let him pass with only mild curiosity. No one knows yet who he is, and he looks straight ahead. Wind swirls in the square like wet paint.
Lawyers are haranguing a bleary-eyed judge. He wants no reporters to witness this, so the argument is in chambers. Having not had the time to recover from his hangover, much less study the papers, he looks put upon and confused. And Justice Locklear’s appearance has not otherwise improved. He is still a round man in a bulging vest, who’s slouched in his chair and peers at you like a hound dog. For all the comprehension he reflects, the attorneys before him might be speaking in tongues.
Leland Franks has somehow conned Marty Levinson into representing him. Marty is a shaggy little man who has won more death-row cases than any other lawyer in history. And, predictably, he argues for the injunction on the ground that the planned World Week exposé of the Franks manuscript would infringe his client’s copyright on that work. The publishing company lawyer, Chisolm Knorr, wags his square jaw in harmony with Levinson’s point, adding that, without an evidentiary hearing, the court could not accept as true Telemarch’s allegation that the manuscript is a fraud, undeserving of copyright protection.
Locklear turns to Dave Lipschutz, the man probably responsible, through his Tammany connections, for having the judge assigned to the case. Lipschutz’s client, Ikuda, owns no copyright on Franks’ manuscript, which Ikuda has himself denounced as fraudulent, or on the work Franks plagiarized, which Ikuda claims is defamatory and an invasion of privacy. So Lipschutz argues that the prospective World Week article—though he’s never seen it—must be based on both manuscripts, is likely enjoinable on both grounds and should therefore be stopped by a temporary restraining order until the court has the opportunity to study it. Locklear glances at Alec, as if the jurist agrees.
“Can’t do it, your Honor.”
“Oh, really!” says the judge, stirring himself into an upright position. “Why is that, Mr. Bruno?”
“The doctrine prohibiting prior restraint. One of the oldest First Amendment principles—and the most clearly established.”
“I wanna stop this article, counsel—I just issue the order.”
“Which, Your Honor—and I say this with all due respect to the court—would be overturned by the appellate division in approximately twenty minutes, the time of a cab ride uptown.”
“You planning to take such a cab ride, Mr. Bruno?”
“At one o’clock, your Honor.”
Locklear looks at him cagily. “I may not rule by one o’clock.”
“Then that’s appealable.”
“My not ruling?
”
“Of course,” Alec says. “The World Week printing deadline is tonight. Which means everything has to be submitted this afternoon. Everyone knows that, especially the hundred or so press people waiting outside. Holding a prospective injunction over our heads all afternoon would itself impose a chilling effect. And when a trial court deliberately delays an injunction until the last minute before the enjoined act can be taken to prevent an appeal—that itself is an appealable event. At least by mandamus. Basic rules of appellate procedure.”
“It might be just a temporary restraint.”
“Makes no difference, your Honor. No prior restraint means no prior restraint without a clear and present danger to the nation. Even the threat and delay of such an order is appealable, as I just said.”
Locklear says warily to Lipschutz, “You know about such a rule?”
Lipschutz, shaking his head, looks uncertain.
“Would your Honor like authority on the point?” says Alec. “I take it that the appealability of a deliberate attempt by a trial judge to avoid an appeal is of interest to your Honor.”
“No, it isn’t!” Locklear snaps. “Why should it be? I’ll have my decision out well before one o’clock!”
FIFTY-SIX
Back in the office, waiting for Locklear’s decision, Ben Braddock says to Alec, “You actually have cases on the appealability of trial judges delaying rulings to avoid appeals?”
Alec shrugs. “No. Looked last night. Couldn’t find any.”
Braddock, smiling, says, “More balls than brains.”
“I dunno. If I couldn’t find any, Locklear’s not likely to.”
“Which means, for this bluff to work, he’s got to believe you’re smarter than he is—and not bluffing.”
“Right.”