“And he pushed her when she threatened his job,”
said Branch. “Isn’t that the theory? Seems easy enough.”
“He says they talked,” said Southerlyn. “He says they kissed, but she was too pathetic, he says, and he didn’t feel like making love.”
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“He had a sudden attack of conscience, eh? Gave her all his commissions back?”
“Not hardly. He says she said that she just wanted to die, that everything had been taken away from her.”
Southerlyn picked up the transcript and flipped to a section she had paper-clipped.
Branch took the transcript and read out loud:
…SO I TOLD HER THAT SHE MUSTN’T GIVE UP, THAT HER TALENT WOULD WIN OUT SOMEDAY.
DET. GREEN: BUT YOU DIDN’T BELIEVE THAT?
ROSSERMAN: GOOD GOD NO. I WAS TRYING
TO MAKE HER FEEL BETTER. I JUST WANTED OUT
OF THERE. I FELT A LITTLE GUILTY.
“Just a ‘little guilty,’” said McCoy.
“Right now he’s still saying he left her alive at about six-fifteen,” said Southerlyn, “and didn’t return after McDonald visited her.”
“He went home?” asked Branch.
“He says he called Avery McDonald, then met him at Teddy’s Tumbler on Fifty-fourth. He said he asked if McDonald might give her a little of the money back.
McDonald told him the best way to handle it was just to cut her off, not return her calls, have nothing to do with her. He begged McDonald to talk to her for him, he says, but McDonald was adamant that he wouldn’t.”
“And Avery McDonald confirms this?” asked Branch.
“He now admits that he went up to the hotel room to calm her down and the conversation turned romantic.”
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“Oh dear,” said Branch. “I doubt Ralph Chesko wants that spread around. She sounds pretty desperate.”
McCoy leaned forward. “McDonald says Rosserman told him that Barbara was very upset. He demanded the McDonalds give him a larger percentage of the editing fees. Rosserman denies this.”
“So McDonald was the last one to see her alive?”
“That we think,” said Southerlyn. “Rosserman could have gone back after McDonald left.”
“Or a thief could have gotten in the room,” said McCoy.
Branch checked his watch. “So, cut to the chase.
Where do you see us going with this?”
“Most cases are circumstantial,” said McCoy. “But I doubt we’d get anywhere if we went for any kind of wrongful death.”
“Even if you had something,” said Branch, “I could see the stalker scenario. Extreme emotional distress is an affirmative defense. Any juror might be persuaded she had pushed him to the edge. It’s one of those Fatal Attraction things.”
Branch spread his hands on his blotter and thought.
“Ralph Chesko isn’t going to be very happy to hear that the case is ‘still under investigation.’ He’ll know that’s a euphemism. He doesn’t want to believe his wife might have been a suicide.”
“Ex-wife,” said McCoy. “We can’t even prove, beyond his own say-so, that Rosserman went up to the room. McDonald’s DNA proves he was there, but we can’t see what his motive would be. He was never before intimidated by the threat of being exposed.
And his wife and he have what they used to call an
‘open marriage.’”
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“I see,” said Branch.
“We even thought about manslaughter two, which includes causing or aiding a suicide,” shrugged McCoy. “But that’s D.O.A., as well. Rosserman absolutely insists he didn’t know Barbara Chesko was dead until he got an anonymous phone call the next Monday morning.”
“Is there any evidence for this phone call?” asked Branch. “LUDS?”
“The building has its own system. It’s cheaper that way if your company sets it up. You can tell who called in to the central unit, but you can’t tell who they called. We could have the detectives run it down call by call, but…”
“All I’m hearing is ‘bupkis,’” said Branch. “I think I’d better turn my attention to figuring out how to tell Ralph, and his friends in City Hall, that there’s no evidence of murder, or anything else. You know, I think it’s even harder for someone to have no answer at all than to have a bad one.”
“I’m inclined to agree,” said McCoy.
“I don’t think there will ever be enough evidence for a homicide charge on this, ever. But there is a crime here,” said Southerlyn. “The reason, direct or indirect, for her death. The McDonalds are predators.
What about a death caused in the commission of a felony?”
“Felony?” said Branch. “What felony? Fraud?
You’re not suggesting we charge the McDonalds with murder?”
“Just testing the water.” Southerlyn crossed her legs and raised her voice. “Morally they’re guilty of murder, I think, even if she killed herself. But legally, probably not. However, I am saying they engaged in a scheme constituting a systematic course of conduct with the intent to defraud ten or more persons. That makes Redux a scheme to defraud in the first degree.”
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“An E felony. That’s not good enough to charge murder in the commission of a felony,” said Branch.
“It’s not robbery because it wasn’t forcible. It might be grand larceny, but that’s still not one of the specified felonies. It doesn’t qualify.”
“On the other hand, grand larceny in the third degree is a D felony,” said McCoy. “The McDonalds got more than three thousand out of Mrs. Chesko three times. God knows what they’ve gotten out of others.
According to Detective Gross, they’ve pulled six figures a year on this scam. Rosserman knew what they were doing and he participated in it.”
“Don’t try to complicate this by turning it into a conspiracy case,” said Branch.
“Serena and I were discussing the possibility,” said McCoy. “If we throw fraud or larceny, and conspiracy, at them, maybe Rosserman will provide evidence against the McDonalds.”
“He’s just as responsible for her death, Jack,” said Southerlyn. “Maybe more so.”
“Breaking her heart isn’t illegal,” said Branch.
Southerlyn raised her pen and pointed at Branch.
“What about the possibility of arguing that they evinced a depraved indifference to human life because they knew that Barbara Chesko was not stable? They continued to exploit her and it resulted in her death.”
“They drove her to it?” said Branch. “I can see the parade of dueling psychologists now, and in the end, what are you left with? Rosserman and McDonald feel just awful that Barbara threw herself down the air shaft, but they’re not psychologists so they couldn’t have known, and so on. The judge will toss the case even before you could try to get a jury to buy it.”
“Under that theory, at least we would be able to hold the McDonalds responsible for her death,” said Southerlyn.
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“It’s too imaginative for me,” said McCoy. It wouldn’t fly.”
“No, you’re right,” said Southerlyn. “If we argue Mrs. Chesko killed herself, we’ll imply she wasn’t stable. At least that’s how the jury will see. It if we convince them she was unstable, we won’t get anyone convicted under a Gaslight theory.”
“Gaslight theory?” smiled McCoy. “I thought you were too young to know that one.”
“She is,” said Branch.
“The fraud or larceny charges will be difficult enough without trying some creative argument for homicide,” said McCoy. “If that looks like legal natter-ing, it will make the fraud case seem even weaker.”
“So get into case law and take them down on larceny,” said Branch. “Don’t go out on a limb, but with all their lying, you can rattle the saber of obstruction as well.”
>
“I just want them out of business,” said Southerlyn.
“Jail would do that,” said McCoy. “Even a short sentence.”
“Rah, rah,” said Branch, rubbing his eyes. “Go about your work while I call Ralph Chesko. That ought to cap off the week. You do realize today is Friday the thirteenth? I’m not a superstitious man, but it has been a bad day, all ‘round.”
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ARRAIGNMENT
PART 44
MONDAY, SEPTEMBER 16, 9:24 A.M.
“Mr. Wise,” said Judge Hernandez dryly. “And to what do we owe this pleasure?” He lifted the folder of charges.
“Your Honor,” Wise placed his hand on Robert Rosserman’s shoulder and smiled at Serena Southerlyn, “I am replacing the attorney of record. The baton has been passed from Mr. Ellis.”
“Baton, eh?” said Hernandez. “A big one: grand larceny in the third degree. Five counts. How do you plead, Mr. Rosserman?” Rosserman seemed disori-ented and was distracted by a half-dozen gangbangers being led in at the side door. “Mr. Rosserman?”
“My client pleads ‘Not Guilty,’ on all counts, Your Honor, and as soon as possible I will be filing to dismiss these absurd charges.”
“File away,” said Southerlyn.
“I didn’t steal anything, Your Honor,” said Rosserman weakly.
“Your Honor,” said Southerlyn, “the defendant by false pretense and by false promise engaged in a conspiracy to wrongfully take so-called editing fees from over two hundred victims. The take on this 190
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scheme, over the time the defendant was involved, exceeded eight hundred thousand dollars.”
“That’s pretty ‘grand,’” said Hernandez.
“Your Honor,” said Wise, “my client didn’t receive anything close to that amount and what he did receive were finder’s fees, not the proceeds from a larceny.
There was no larceny.”
Southerlyn jumped in. “Just because the driver for a holdup doesn’t get a full cut doesn’t mean—”
“Save it for the trial judge. Mr. Rosserman, you’re also charged with conspiracy in the fourth degree to commit the grand larceny. I assume if you say you’re not guilty to the larceny, you’re not guilty of conspir-ing to commit larceny.”
“Not guilty,” said Rosserman, forcing out the words.
“The district attorney’s office is looking into further charges as well, Your Honor,” said Southerlyn.
“Manslaughter. Possibly murder, and almost certainly obstruction.”
Hernandez looked surprised.
“This is just laundry-list prosecution,” said Wise,
“an attempt to make an innocent man swallow a plea.”
Hernandez wasn’t interested. “When the charges are made, then it becomes my business, not before.
A request for bail?”
“Because of the defendant’s illegal activities he lost his job and his income and has nothing to bind him to the community,” she said. “He was not born in New York and he is unmarried. We request one hundred thousand dollars.”
Wise shook his head, “My client has lived in Manhattan for twenty-seven years. He has no record and is not a wealthy man. He is a book editor with little or no opportunity to continue his profession. He is 191
LAW & ORDER
determined to reveal the absurdity of this prosecution and clear his name.”
Rosserman wobbled slightly, as if he might fall.
“As God is my witness,” he croaked, “I’ve never stolen anything.”
“God’d be a good witness,” said Hernandez, “but I’ve never seen Him testify. And Miss Southerlyn, we’re talking a D felony here, aren’t we? Let’s say five thousand, bail or bond. Next.” He handed the file to the clerk, who called out the names Monica McDonald and Avery McDonald. Avery McDonald had his chin up, thrusting his goatee defiantly out-ward. He reminded Southerlyn of a hammy actor she had seen playing Don Quixote in Man of La Mancha.
Beside him, Monica, a sheepish Sancho Panza, with her head down, her plump cheeks flushed.
“These are codefendants?” asked Hernandez.
A short, scrappy attorney in a fuzzy brown suit pushed between his clients and stuck up his hand as if were hailing a cab. “Leo Herlihy for the defense, Your Honor. Your Honor, I am going to ask for an immediate dismissal of the charges.”
“That seems to be a popular tune today,” said Hernandez.
“The defendants offered a service and they provided that service,” he held up a legal document, “to the letter of that contract.”
“The business was a deliberate fraud,” said Southerlyn.
“Every jot and tittle of the contract was adhered to!” said Avery McDonald.
“Be quiet, Mr. McDonald. Jots and tittles are findings of fact. If the state is correct, you made a lot of 192
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illegal money on jots and tittles. If not, you’ll be acquitted. It’s not my role to decide.”
“Tittles!” snorted one of the gangbangers behind them, light gleaming off two gold teeth.
“So how do you plead, Mr. McDonald?”
“Not guilty!” said McDonald tossing his head back.
“And you, Mrs. McDonald?”
“We did nothing wrong,” she said.
“Guilty or not guilty?” said Hernandez. “One or the other.”
“Not guilty on all counts,” said Herlihy. “And we ask that the McDonalds be released on their own recognizance.”
“Your Honor, they accumulated a lot of money in this enterprise,” said Southerlyn, “and have a home out of state.”
“The state has frozen their accounts!” said Herlihy.
“They have access to nothing. And they have work to attend to. They are looking forward to getting these charges out of the way so they can pursue a defamation and false arrest suit.”
Judge Hernandez raised his hands. “Sounds entertaining. I am entering the pleas and setting bail or bond at ten thousand dollars. Make sure you dot your jots. Next!”
193
JACK MCCOY’S OFFICE
ONE HOGAN PLACE
TUESDAY, SEPTEMBER 17, 2:37 P.M.
“Look, Jack,” said Joel Wise, “you know you’re not serious about these hints you’ll pursue homicide charges.”
“Who says?” said McCoy, looking around as if to see who said it.
“I didn’t kill her!” said Rosserman.
“Calm down, Bob,” said Wise. “If they were serious, they would have charged you.” He smirked at McCoy.
“Look, the only reason you brought it up was to scare my client. Hint that if he doesn’t fink out on the McDonalds, you concoct a murder charge.”
“Concoct?” said McCoy. “Your client concocted several tales to mislead the police. Maybe we won’t need to charge him with a homicide. Obstruction looks like a slam dunk.”
“I’ll repeat,” said Wise, “if you had anything that amounted to evidence, Bob would already be charged.
He’s not. What you’re really after is the McDonalds, am I right? I mean, you must be thinking the real cause of Barbara Chesko’s death is Redux.”
“Maybe the real cause is Mr. Rosserman pushing her.”
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“Jack,” said Wise, “you repeat that again and we’ll have a slander and defamation suit.”
“How many times do I have to say it?” said Rosserman. “She was alive when I left. I didn’t know until a woman called me on Monday. That’s all I know.”
“I’ve convicted people on less,” said McCoy.
“Maybe some crack-dealing loser with a metal stud in his tongue. When you weren’t up against me,” said Wise. “But, then, let’s not turn this into a pissing match. Mr. Rosserman can give you all the details about the Redux operation. You can bring them down, Jack. Isn’t that what you really want?”
“He was as guilty as the McDonalds on Redux,”
said Southerlyn. “Maybe worse. Withou
t him they wouldn’t have known Barbara Chesko or many of the other victims.”
“Oh, no,” said Wise, “you can’t even compare what Bob got out of it compared to them. He got a few hundred here and there. They got ten times that, a hundred times that.”
“I wasn’t the only editor doing this,” said Rosserman. “And there were phony publishers as well.”
“What do you mean?” said McCoy.
“Interested?” asked Wise. “Bob didn’t defraud anyone. He merely did referrals. He’s no more guilty than if he referred these people to an embezzling stockbroker.”
“He is if he knows the broker was an embezzler.
He is if he accepted commissions on the embezzlement.”
Wise shook his head. “You can argue anything you want, that doesn’t mean it makes any sense. He never intended any harm.”
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“Barbara Chesko’s death wasn’t harmful?”
“No!” said Rosserman, standing. “I don’t care what you’re trying to call it: murder, manslaughter. I didn’t kill her!”
Wise now put both hands on Rosserman, one on his shoulder and another on his forearm. “Calm down, Bob,” he said. “That’s not even on the table. Jack, if you try to lay that on Bob again, this discussion is over. The only subjects on the table are these ridiculous larceny and conspiracy charges.”
McCoy locked his gaze on Rosserman’s sweaty face. “I just want Mr. Rosserman to face up to his re-sponsibilities. Things have consequences.”
Rosserman seemed to deflate slightly. His eyes teared up and he shook his head. He covered his face with both hands and choked on a few words.
“What was that?” demanded McCoy.
“Bob…” said Wise.
“I didn’t do it,” said Rosserman through his hands.
“For God’s sake, there’s a suicide note! She did it.”
“Look, Mr. Rosserman,” said Southerlyn, “it isn’t only that it will go easier if you admit to your role in Redux’s scheme. You’ll also feel a lot better.”
“I’m not a criminal,” said Rosserman. “I won’t say that I am.” He pulled away from his attorney and left the room.
“Bob,” said Wise. “Bob!”
But Rosserman was already gone.
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