“In your expert opinion, in the manuscripts from Redux, does the editing look like house editing?”
“No. It’s not house editing. It’s freelance editing.
Either way, it’s all nonsense. It’s certainly not the kind of editing a real publisher would tolerate. It’s not editing at all.”
“You have no reason to believe that Bob Rosserman, an editor with Kirstner and Strawn for seventeen years, who has edited over two hundred published books in that time period, had anything to do with the editing of these manuscripts?”
“I doubt he’d have a job if this was what he normally did.”
“Thank you, Mr. Post. It’s an honor to meet you.”
“Thank you.”
The judge recessed until two o’clock. After lunch, McCoy intended to question their second expert, Charlotte Hill, an editor at Fleet Publishing. Like Post, she would testify that what she saw on the manuscripts did not constitute editing. Assuming Herlihy didn’t find a way to drag that out all afternoon with passages from the Great Books, he planned to turn the questioning of Deena Dunkel, a former employee of Redux, over to Southerlyn, as well as the questioning of two clients of the McDonalds who had also been taken.
As they ate in an unseasonably warm sun on a bench by a falafel cart, both McCoy and Southerlyn thought Herlihy would again try to muddle the issue of what constituted editing. “Pushing that it’s all a matter of taste!” she said.
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“Then,” said McCoy, “the case seems to be about customers who can’t face up to their lack of talent, rather than fraud.”
“We’ll cut Herlihy off as much as possible,” she said.
“Right,” said McCoy, “but I don’t think Samuels is going to let him do too much of that anyway. She’ll let him make his point, but not to any length. How do you read the jury?” He took a bite of his sandwich, then looked at it as if there was something odd in the falafel.
“The woman on the end looked like she was going to leap out of the seat and ask Post for an autograph.”
“Good, maybe we bought her. She’ll have a story to dine out on when the trial’s over.”
“A couple of the men were counting cracks in the ceiling, though.”
“That doesn’t mean they’re against us.”
“Did you recognize Ralph Chesko? He was in the third row from the back.”
“Barbara Chesko’s ex-husband?”
“Yes,” said Southerlyn. “I recognized him from the news stories about his growth fund.”
“I guess he wants to see if he needs to hassle City Hall again.”
“He looked very sad,” said Southerlyn. “He left sometime during the testimony.”
The wind whipped up a bit, reminding her it was November.
“Wise isn’t putting up much of a fight,” said Southerlyn.
“I’m disappointed. When he wants to, he’s one of the best.”
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“If Herlihy can get the McDonalds off, Rosserman will walk.”
“And if we get the McDonalds,” said McCoy, “he’ll claim Rosserman didn’t know what they were up to.
He’s lying so low, you hardly know he’s a defendant.”
McCoy gave up on his sandwich.
“McDonald looks at my legs. He wants me to see him doing it. It makes me feel like I have lice.”
“Maybe the jury will see it. We haven’t lost yet,”
said McCoy. He watched a bicycle messenger weave through traffic, then turned back to study Southerlyn, who was running the tip of her pinky across her upper lip. “This case gets to you, doesn’t it?”
“They all get to me,” she said.
“What’s the expression? ‘Ice blonde’? You’re usually the Grace Kelly of A.D.A.s.” She faced him, but didn’t say anything. “It’s a compliment, Serena,” said McCoy. “Don’t let the job get to you. The guilty party walks away a lot.”
“If we come to accept it, we might as well quit.”
“Who said anything about accepting it?” said McCoy.
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SUPREME COURT
TRIAL PART 45
TUESDAY, NOVEMBER 19, 2:17 P.M.
“Miss Dunkle,” Southerlyn asked the emaciated witness, “are you familiar with Redux, the book editing company headed by Avery and Monica McDonald?”
“Yes,” she said, using her thumb to shove her thick glasses up her nose.
“How are you familiar with them?”
“For about six months last year, I worked for them.”
“And of what did your duties consist?”
“I was an editor. I answered the advertisement for freelance book editors. It was in the Columbia University student paper.”
“You’re a student there, I take it?”
“A grad student in the School of Arts writing program.”
“So you are studying to be an editor?”
“Not really. I’m a poet mostly. I’m writing an avant-garde verse drama about Carmen Miranda. But I needed money and I thought if I got the right kind of books, I could do the job.”
“And what happened when you answered the ad?”
“Well, it said to call. I thought I might need to send in a résumé or take an editing test.”
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“Have you had to take editing tests before?”
“Yes, you know, like you’ve got fifteen minutes to do corrections on something. I did it at a couple of newspapers and at two magazines.” She shoved her glasses back up her nose.
“And you didn’t get those jobs?”
“No, they took somebody else each time. It wasn’t because I did badly, though. I took the test for the Handy Shopper. It’s like an advertising supplement.
I worked there for three months.”
“I see. So you saw the advertisement for freelance book editors and telephoned the number in the ad?”
“I talked to Avery, Mr. McDonald. He asked a couple of questions, then said that was good enough for him. He said I didn’t need to take a test. He wanted me to start right away.”
“Without references?”
“He said he had the feeling he could trust a Columbia student to do a good job, and, frankly, he said, they were too pressed to waste any more time in getting editors on board.”
“So you might have been anyone. You might not have been qualified to edit at all.”
“Objection,” said Herlihy.
“Withdrawn,” said Southerlyn. “So what happened next?”
“I met Mr. McDonald outside the public library. It was a nice day so we sat on the steps outside. He was carrying a big, blue Adidas gym bag. He asked me to tell him more about me. I explained I was a graduate student. He asked me if I’d ever published and I explained I was a poet and was working on verse drama.
I began to explain what it was about, but he said he 225
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was in a bit of a hurry, so he said, ‘Let’s cut to the chase, darling.’ He asked me how many I wanted.”
“How many what?”
“That’s what I asked him. He said manuscripts.
He’d give me the whole bag if I wanted. He said his rate was a dollar a page. It was up to me how much money I made. I asked him what I was supposed to do with them, and he said ‘Edit them!’ I asked if I could see a sample of what I was supposed to do. He said I was to edit them any way I liked, as long as the writer felt like there were a lot of suggestions for improvement. I then said it would take a lot of time. He said not if I got in the rhythm of it. I could be making fifty dollars an hour.”
“That would require your editing fifty pages in an hour?” said Southerlyn.
“Yes. About a minute a page. He said I was to edit them, not rewrite them. To make lots of marks, the customer expected that but not to rewrite it. This just irritated the customers, he said. He also said most of the books were not salvageable.”
Southerlyn int
errupted. “Not salvageable?”
“Yes. He said I should give them lots of advice, and to always remain positive, even if the books were horrible. I asked why we would edit books that ought to be rewritten and he just said we didn’t want to crush their hopes. It was charity.”
“Charity. And did you discover how much this charity cost?”
Dunkle shoved her glasses back up her nose. “I later was told that it ran about ten dollars a page.”
“And who told you this?”
“Avery, Mr. McDonald. About three months later.
It was when I asked him about my income taxes. He 226
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told me he wasn’t reporting my income, so I didn’t have to worry. He mentioned that he was getting about ten dollars a page and most of it went to expenses, but he was willing to give me a raise to a dollar and a quarter.”
“So he told you he collected about ten dollars a page. And about how long were the manuscripts?”
“Anywhere between one hundred pages and a thousand. Mostly around three hundred.”
“So if he received three thousand dollars, you received about three hundred, and you did the editing?”
“Speculation, Your Honor!” said Herlihy.
“Sustained,” said the judge. “Don’t generalize about the figures, Ms. Southerlyn. Introduce them if you have them.”
“We will, Your Honor.”
Southerlyn paused to recapture her train of thought.
“After your initial meeting, how many manuscripts did you take home?”
“The whole gym bag. I could hardly schlepp it. I didn’t want to take them all. I wanted to try out a couple to see if I’d be good at this. But Mr. McDonald insisted.”
“Insisted?”
“He put his hand on my thigh and said he was sure we’d work well together. He said if I didn’t want to do them all, he’d pick them up eventually.”
“What were his exact words?”
“Something like, ‘I’m confident we’ll work very well together, darling. If you don’t like the work, I’ll just pick up the things eventually.’“
“‘The things’?”
“Yes, ‘the things.’“
“‘Eventually?’“
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“Yes.”
“And you edited the manuscripts?”
“I did my best. I didn’t really know what to say on most of them. I called Avery to ask what to do. He wanted me to meet him for lunch in midtown, but I told him I just wanted some questions answered. He got irritated when I asked, and said I should do whatever I thought needed doing, just do it fast. He said it wasn’t brain surgery and it didn’t much matter.
He said that the thing to do was to get them done.
So I took his advice and did it fast. If I didn’t understand it, I’d just write, ‘Make this clearer,’ ‘Strengthen this chapter,’ something like that. I thought he’d fire me, but he didn’t. He asked me where my apartment was so that he could pick up the manuscripts, but I met him in the coffee shop at the Mayflower.”
“You didn’t feel comfortable about meeting him at your apartment?”
“Objection,” said Herlihy. “It’s not relevant how the witness personally felt about Mr. McDonald.”
“Withdrawn,” said Southerlyn. “How long did you work for the McDonalds?”
“About a year.”
“And about how many manuscripts did you do for them?”
“At least two a week, sometimes four. I was getting at least four hundred dollars a week, sometimes up to seven hundred.”
“So that was at least a book a week?”
“Two, usually three. When I found out about the ten dollars a page they were charging, I worked out that they were bringing in about ten thousand a week.”
Judge Samuels looked at Herlihy for an objection.
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“The 1040s submitted into evidence yesterday show an income averaging $11,372.88 a week for the year in question,” said Southerlyn.
The judge nodded.
“And then you had a falling-out with the McDonalds?”
“Yes,” said Dunkle. “I stumbled in Central Park near the zoo and broke my wrist. I couldn’t write, so I thought I ought to get unemployment. Mr. McDonald was very curt and said I was a freelancer, which meant I got nothing. Mrs. McDonald yelled at me when I called a day later. She said I should stay away from Mr. McDonald or I’d regret it. I hadn’t paid any tax on my income and she’d sic the state and the feds on me.”
“So what did you do?”
“I talked to a law student I know, Jerry Stern, who told me I couldn’t get workman’s comp and then he told me that because I was classified as a contract employee, essentially I was self-employed, and no unemployment insurance had been paid. Besides, the McDonalds could claim I had been fired for miscon-duct and I’d get nothing. I didn’t have the money to fight, so I gave up.”
“Did you do anything else?”
“The more I thought about it, the madder I got. It wasn’t my fault I broke my wrist. I stopped by the police fraud department, and they took my report and said they’d look into it.”
“Why did you report it to the Special Frauds Squad?”
“Well, I thought the whole thing was crooked.”
“Objection,” said Herlihy.
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“Is Mr. Herlihy objecting to the question?” asked Southerlyn.
“The witness is not here to tell us whether a crime has been committed,” said Herlihy. “That’s up to the jury.”
“Ms. Dunkle is explaining the motivation for her actions. She is testifying to her state of mind, not giving a legal opinion.”
Judge Samuels looked at the jury. “Ms. Dunkle’s opinions about whether the defendants committed fraud is only her opinion. The findings of fact whether or not the defendants committed a crime is strictly in your hands.”
“No more questions,” said Southerlyn.
Herlihy jabbed the air in Deena Dunkle’s direction with a pen. “Since you raised the question about your state of mind, did you consider the fact that if you thought the McDonalds were committing a crime, that you also would be committing a crime?”
Dunkle moved her head from side to side, confused.
She looked to the prosecution table and to McCoy for an answer. “I gave the people as much help as I could,” she finally said. “I didn’t know it was crooked.”
“It took you six months to decide Redux was engaged in an illegal activity?”
“I don’t know when I thought so.”
“And you didn’t report it as long as you were paid?”
“Not until later.”
“After you broke your wrist?”
“Yes.”
“Before that you were content to ride the gravy train, weren’t you?”
“The witness is not on trial,” said Southerlyn.
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“Would you have reported Redux to the Special Frauds unit if you hadn’t been incapacitated?”
“I was thinking about quitting. Like I said, I tried to help the people as best I could.”
“Well,” said Herlihy, “if you helped them, then you could hardly call this a fraud, could you?”
“What do you mean?”
“I mean,” said Herlihy, “that if people were paying for help on their manuscripts and you provided that help, then this could hardly be considered a fraud, now could it?”
“It wasn’t what I did. They didn’t care what I did.
They didn’t care about helping. They were stealing people’s money.”
“People paid Redux for a service. And you were hired to perform that service. Is that stealing? Either you were an accomplice or there was no crime, was there?”
“What they did was wrong,” said Dunkle.
“And what about you?”
“Argumentative,” objected
Southerlyn.
“No more questions,” said Herlihy.
“Mr. Wise?” asked the judge.
Wise didn’t bother to stand. “Ms. Dunkle, in your time working for Redux, did you ever meet Mr.
Rosserman?”
“No. I usually didn’t have much contact with anyone other than Mr. McDonald.”
“Did you ever hear of Mr. Rosserman while you were working for Redux?”
“I saw his name on a couple of letters in the manuscripts.”
“And those were letters from Mr. Rosserman?”
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“No, they were from Monica McDonald. They mentioned Mr. Rosserman.”
“But otherwise you never understood that he had any working relationship with Redux?”
“No. Not directly.”
“No further questions.”
Southerlyn stood. “Redirect.” The judge nodded.
“Ms. Dunkle, do you remember the nature of these letters?”
“Yes. I noticed them because they were all the same.
I saw about six of them over a couple of months. They all said that Bob Rosserman of Kirstner and Strawn had said something nice about the manuscript to the McDonalds.”
Southerlyn raised exhibits 14, 15, and 16: letters in clear plastic holders. “These state exhibits, would you read them carefully?”
“Out loud?”
“That isn’t necessary,” said Southerlyn. “I just want to know if they are the same.”
Dunkle lowered her head and squinted at them, nearly losing her glasses off the tip of her nose.
“They’re all the same.”
“There are fifteen examples with the same body text entered in evidence,” said Southerlyn. “But are these the same as the letters you saw?”
“Oh, yes,” she said.
“No more questions,” said Southerlyn.
“The state rests,” said McCoy.
Samuels faced Herlihy. “Call your first witness,” she said.
“Your Honor,” interrupted Wise.
“Yes?”
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“At this time I feel obligated to move that the court immediately dismiss all charges against my client.”
“On what grounds?” snapped McCoy, shooting to his feet.
“I believe we’ll hear this out of the presence of the jury,” said Judge Samuels. “Ladies and gentlemen, we’re going to adjourn for the day and reconvene in the morning. Have a good evening and relax with your families. I remind you not to discuss the case among yourselves, or with anyone else.”
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