233
JUDGE SAMUELS’ CHAMBERS
100 CENTRE STREET
TUESDAY, NOVEMBER 19, 4:05 P.M.
The judge sat back in her leather chair and sucked greedily on a can of Coca-Cola, one she obviously had in mind when adjourning the jury. Southerlyn, McCoy, Wise, and Herlihy all filed in.
“What’s this?” said McCoy to Wise. McCoy was grinning, as if Wise’s motion were simply another patented Joel Wise maneuver.
“You haven’t got a case,” he said.
“Not against my people, either,” said Herlihy.
“Are you guys on a Twinkie overdose?” said Southerlyn.
“No,” said McCoy, “the McDonalds were editing on Twinkies.”
“That would be a defense,” said Wise, “but my client doesn’t need one because you haven’t proven your case against him.”
Judge Samuels suppressed a burp from drinking too quickly. “Let’s hear it,” she said.
“It’s as simple as People versus Foster,” said Wise.
“Mr. Rosserman is charged with grand larceny in the second degree. You’re guilty of larceny when you steal property.”
“Bingo,” said McCoy. “‘Stealing property’ is defined 234
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as wrongfully taking property from the owner. All three of the defendants wrongfully obtained money from the victims through false pretense and false promise.”
“What pretense?” said Herlihy. “They promised to edit their clients’ manuscripts and that’s what they did.”
“Doodling on a person’s book,” said Southerlyn,
“isn’t editing.”
“We’ve presented plenty of evidence to that effect,”
said McCoy.
“May I speak?” said Wise. “Even if that is true, which I’ll leave for you and Mr. Herlihy to hash out, how does that apply to Mr. Rosserman? He had nothing to do with the editing.”
“He snagged the victims!” said McCoy.
“He referred people. He did not require them to go there.”
“He gave Redux the gold seal of approval,” said Southerlyn.
“But he gave no assurance on the quality of the work. He promised these people nothing.”
“Let’s not forget he was well rewarded for that!”
said McCoy. “He knew what the McDonalds were doing and he knew that the money he was receiving was ill-gotten gains.”
“You haven’t proven that Bob Rosserman knew.”
“Oh, come on!” said Southerlyn.
“Calm down,” said the judge.
“If he didn’t know,” said Wise, “he doesn’t have intent.”
“I can’t believe this,” said McCoy. “He knew exactly what he was doing.”
“Whether he knew or not is irrelevant if you haven’t 235
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proved intent,” said Wise. “That’s the state’s burden, eh?”
“He wrote the letters, Joel,” McCoy said. “He knew he got paid even when the manuscript was hopeless.
He intended to get paid, or why would he have written the letters?”
“But you haven’t established that Bob had anything other than an honorable intention when referring writers to Redux. Getting paid isn’t proof of intent.”
“Your Honor,” said Herlihy, “that’s true of my clients as well. The state hasn’t proved the intent to steal. My clients delivered exactly what they promised no more, it’s true. But certainly no less.”
“One defendant at a time,” said Samuels. She crushed the cola can in her grip like a trucker in a highway bar, then dropped it in her wastebasket. Wise caught Southerlyn’s eye and smiled slightly, a kind of “how ‘bout that!” look.
“My God!” said McCoy. “How many referrals did Rosserman make? I suppose he thought all of these people had potentially publishable books?”
“If they were edited properly, why not?” said Wise.
“He had no real way of knowing what the McDonalds were doing.”
“He saw the results,” said Southerlyn. “He saw Barbara Chesko’s novel three times!”
“And he cashed the check three times,” said McCoy.
“Twenty-seven hundred dollars’ worth and some change.”
“Of course he cashed his checks,” said Wise, but it wasn’t illegal to do that, and that’s why, Your Honor, I’m moving for a dismissal.”
“Wait a second,” said Judge Samuels, “who is Bar-236
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bara Chesko? Has she been mentioned at all in this trial?”
“Mr. Rosserman referred her to the McDonalds.
They took money from her three times while he was having an affair with her. She killed herself over all this,” said McCoy.
“None of that’s in evidence, and you did rest, didn’t you?”
“We felt there was sufficient evidence from living witnesses.”
“Be that as it may,” said Wise, “not a bit of the evidence proves that my client knew the details of what the McDonalds were doing,” said Wise. “As far as he knew he was only receiving finder’s fees.”
“The point is,” said McCoy, “that the defendant embarked on a course of action in which it is logical to assume he was aware of the deception. If you regularly drive people in ski masks to convenience stores, you can’t claim you don’t know what your colleagues are doing. He made a considerable effort to refer clients to the McDonalds. He can’t plead ignorance to that.”
Samuels smacked her sternum with her fist, still bothered by the carbonation. “Mr. Wise, I didn’t give you your pretrial motion for a summary judgment to dismiss, and I’m not going to do it now. I’m going to make you put on your defense.”
Wise tilted his head to the side with a wry smile.
It had been worth a try.
“I’m not sure whether the state has fully demonstrated Mr. Rosserman’s guilty knowledge, but that’s a question of fact I’ll let the jury decide. It seems to me that he had more than a toe in the water, but if you want to defend him on that basis, go ahead with 237
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it. Or any other defense you can muster, including Twinkies, but I’m not going to close the case for you.
Not yet.”
“Thank you, Your Honor,” said McCoy.
“And that’s a ditto for your argument, Mr. Herlihy.
Mr. Wise may have had some grounds, but the McDonalds?” She twisted her mouth.
“They did exactly what they promised,” said Herlihy.
“That’s a fact for the jury,” said the judge. “Now let’s get out of here and reconvene in the morning.”
They all thanked her on leaving, but in the outer office Wise pulled McCoy aside. “Can I speak to you for a moment?” Herlihy paused in front of them, squinting with suspicion.
“Nothing personal,” said Wise to Herlihy. “Doing the best for my client.”
Herlihy said nothing, but plainly wasn’t happy. He spun and went out through the outer doors.
Wise leaned toward the judge’s administrative assistant, who was getting ready to leave. “Might we use that conference room there for a moment?”
Wise closed the door behind them. “Jack,” he said,
“Serena, I’m going to make it easy. What would it take to get you to drop these silly charges and let Bob get on with his shattered life?”
“He could admit he pushed Barbara Chesko out of the window,” said Southerlyn.
“That would be jumping from a very cold frying pan into a very hot fire,” laughed Wise. “He didn’t do that and you know it. I’m not offering a plea bargain.”
“Then what are we in here for?” asked McCoy.
“Mr. Rosserman was part of the inner circle, eh?
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You could use his testimony against the McDonalds.
Let’s suppose he could tell you all of their dirty secrets.”
“A coconspirator?” said Southerlyn. “You just told th
e judge he knew nothing.”
“I just told the judge that you haven’t proven your case. That’s different.”
“As an accomplice, Rosserman’s testimony is no good without corroboration.”
“I’m sure most of what he has told me can be corroborated in various ways, except for maybe the things Mr. McDonald said.”
“What did McDonald say?”
“Maybe he made a few remarks about his clients.
Bob’s not a bad guy. He was just trying to enhance his very small salary. You’re treating him like a crack dealer, for pity’s sake.”
“Without him, the McDonalds wouldn’t have had any fish to fry,” said Southerlyn.
McCoy shook his head. “You’re talking about a guy we suspect was instrumental in a woman’s suicide—and you want us to give him a complete pass.”
“Aw, come on, Jack, he wouldn’t intentionally hurt a flea. He’s wetting himself that he’ll never get to be an editor again. He’s just a schmuck who sold a few names. He’s no worse than most credit card companies.”
“That’s a pretty bad comparison,” said McCoy.
“Maybe so,” said Wise, “but you get my point. How about it? Drop everything: larceny, obstruction, any screwy stuff on Mrs. Chesko. You’re not going to convict him anyhow. This way you can get more on the McDonalds.”
“And they’ll just get on the stand and blame him 239
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for the false promises,” said Southerlyn. “We can’t take this deal. It’s indecent.”
“Okay, okay,” said Wise. “How about a petit larceny plea? That’s pretty generous on my part.”
“A misdemeanor?”
“He’s going to walk out of here,” said Wise. “You’ll get something if he testifies against the McDonalds.”
“Not enough,” said McCoy. “We’ve got to get back to court, Joel.”
Wise spread his hands. “If you change your mind…”
McCoy grabbed Southerlyn’s arm as she turned to leave. He waited until he was sure Wise was out of hearing. “What’s gotten into you? If I’m in the room, you don’t turn down or accept any offers, whether you think they’re indecent or not.”
“Even if he didn’t push her, he used her.”
“Using is the national pastime,” said McCoy.
“You’d let him take a walk?”
“No,” said McCoy, releasing his grip. “What do you think I’m doing here? But this case is hanging by a thread. Rosserman’s testimony might have tipped the scales our way.”
“I’m sorry,” said Southerlyn grimly.
McCoy took a deep breath. “No, I’m sorry. When Wise smirks, it gets to me. He looks like a cat and I feel like a canary. I think the judge almost granted his motion.”
240
SUPREME COURT
100 CENTRE STREET
WEDNESDAY, NOVEMBER 20, 9:32 A.M.
Herlihy’s first witness, Gregory Arseneaux, was an elderly man, with shock-white hair, a cultivated tan, and a hawk nose as narrow as a Bronze Age cutting tool. His jacket was green velvet and his red silk ascot was secured by a jade stickpin.
Southerlyn leaned to whisper in McCoy’s ear.
“Frank Lloyd Wright meets Quentin Crisp.”
“The ultimate artiste,” McCoy whispered. When the man took the oath, his voice had the gravel you usually associate with television gangsters.
“Mr. Arseneaux, you are a resident of Sag Harbor on Long Island?” asked Herlihy.
“Yes, sir. Fifty years, in fact.”
“And how did you come to be acquainted with Avery and Monica McDonald?”
“Certainly. When I retired in 1990, I determined to live out my dream of writing. I had been in various commercial enterprises since graduating from Cornell.
I have traded in wine, electronics, and pheromone-based colognes from Scandinavia.”
“So you were, loosely, in import/export?”
“Often. I made most of a very hefty income on African art.”
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“You seem to have been a versatile businessman.”
“Quick as a cat,” he said. “Otherwise, you’re the mouse.”
Herlihy glanced at the judge, sensing she might be losing patience. “And so, you intended to live out your dream of writing?”
“Yes.” Arseneaux raised his chin as if to show off his profile. “I had many extraordinary events in my life and I wished to record them before moving on to the next incarnation.”
“And you began to write?”
“Yes, but my wife shortly thereafter developed a debilitating disease and required a great amount of time. We had been married in 1980, third for me, second for her, and I was devoted to her. It was crushing to suffer through her illness. She accepted her fate much better than I, which was, perhaps, selfish, but I could not help myself.”
“With all due respect, Your Honor,” said McCoy,
“what is the question?”
“Get to the point,” said Judge Samuels.
“Yes, Your Honor,” said Herlihy. “So, Mr. Arseneaux, you came to know the McDonalds after your wife died?”
“Virtually her dying words were that I should write and let no obstacle…” Arseneaux choked up.
“Do you need to compose yourself?” asked the judge.
“I’ll soldier on,” said Arseneaux.
Southerlyn shoved a note to McCoy. “Oh brother,”
it said.
“I decided, as an homage to Rosalie, that I would write about her final days, about the wisdom that grew in her as she drifted inexorably toward death.
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It was a labor of love and yet, it was to be a monu-ment to her as well.”
“And the McDonalds?” Herlihy encouraged.
“I completed a first draft in late 1997. I had no idea how to get a book published, so I went to the Long Island Community College and talked with an instruct-or there. He was barely polite, but he referred me to several books about how to submit a manuscript to a literary agent or to a publisher.”
“And one of them referred you to Redux?”
“No, I was getting quite discouraged, but one of the books said one needed dogged determination, so I continued the quest. In the end I had made about forty attempts. It was then I saw an advertisement for the Conshochoken Press in the back of The Compleat Writer, a magazine I subscribe to.”
“And you sent your manuscript?”
“Yes. The advertisement said that Conshochoken was a small press that intended to expand and was looking for new authors. But when my manuscript arrived, the editor, Marie Du Tour, suggested the editing services of Redux. A week later, the McDonalds wrote to me themselves, and I called them.”
“And what was the result of that telephone call?”
Arseneaux raised his chin again. “I was extremely encouraged. Mrs. McDonald seemed to read my mind.
I believe she actually wept when we discussed Rosalie.”
Monica smiled at Arseneaux and gave a slight nod.
“And you contracted Redux to edit your manuscript?” continued Herlihy.
“Yes,” said Arseneaux. “I felt they were good people.”
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“And when Redux had completed work on your manuscript you were satisfied with the results?”
“Ultimately, I was extremely satisfied, but not at first.”
“And why was that?”
“My manuscript was terrible! I could barely read what I had written because of the going over it received.”
“It received a thorough going over?”
“Very. Every page was filled with extensive comments.”
“And they were helpful comments?”
“In the end, yes.”
“Why do you say, ‘in the end’?”
“Initially, I was very confused. I have no real experience with editing. I couldn’t understand what was being said to me.�
�
“So how, then, did it become helpful?”
“Well, I called Avery and he refused to coddle me.
He said I should go back through and read the comments carefully and think about them. Only then, he said, would I really grasp it. Then he hung up. The conversation was shorter than ten minutes.”
Herlihy strolled by the jury box. “This was helpful?”
Arseneaux stretched his long fingers over his chest.
“A book comes from in here. You have to find the truth within.”
“Could you explain that, Mr. Arseneaux?”
“It forced me to look at my manuscript with new eyes, to really face the challenges of my material. I began to see what they were getting at. It took me another two years to complete my revision. It was the hardest work I’ve ever done, but the result is this.”
Arseneaux pulled a paperback out of his pocket.
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Herlihy held it up for Judge Samuels, carried it past the jury, and then dropped it on the desk between McCoy and Southerlyn. It was an oversized trade paperback, about six by nine. The cover was a color snapshot of an older woman bent over, snipping chrysanthemums for a bouquet. White script letters arched over her. “Rosalie’s Sweet Sorrow” they said.
“Mr. Arseneaux,” said Herlihy, “to what extent is this publication the result of your contact with Redux Incorporated?”
“It is entirely the result. I owe them everything.”
“And by that you mean that their editing services made this book, your dream, come true?”
“Entirely.”
“Would you consult them in the future?”
“Of course.”
“Would you recommend their services to other writers?”
“Absolutely,” said Arseneaux, “but with a strong proviso.”
“And that would be?”
“That one has to be willing to respond to the challenge. If one is not willing to exert the effort to fully digest what is offered, one cannot expect good results.
Their job is not to write the book, it is to force one to become an author. If one is not willing to make that effort, one shouldn’t write at all.”
“Thank you, Mr. Arseneaux,” said Herlihy. “No further questions.”
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