“Mr. Wise?” said Judge Samuels.
“Yes, Your Honor,” said Wise. “Mr. Arseneaux, do you know the defendant, Mr. Robert Rosserman?”
“No, I do not.”
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“Have you ever heard him mentioned by either Avery or Monica McDonald?”
“No.”
“Thank you, Mr. Arseneaux,” said Wise. “And, oh, congratulations on your book.”
“Thank you,” said Arseneaux.
“Mr. McCoy?” asked Judge Samuels.
McCoy stood, riffed through Arseneaux’s book, then tossed it on the table. “Perhaps you could clarify for me, Mr. Arseneaux, what you are saying. That is, some of the remarks you made. You’re saying that Redux puts difficult and confusing marks all over your manuscript and that forces you to rewrite it properly?”
“No. I am saying that the full power of their editorial marks does not come through until the writer confronts them.”
“And you couldn’t do this without hiring the McDonalds?”
“They are the experts. They are guides who can point one in the proper direction. They cannot make the journey for you.”
“I see,” said McCoy. “And how much did their guidance cost?”
“It was worth every penny.”
“How many pennies, Mr. Arseneaux?”
“Five thousand dollars.”
“That much? How long is your book, Mr. Arseneaux? Three hundred pages?”
“Not quite.”
McCoy picked up the book and looked at the last page. “Two fifty-two. That’s almost twenty dollars a page!”
“It was worth every penny.”
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“Do you know whether Avery or Monica McDonald edited the manuscript for you, or someone else?”
“Both of them were involved. Monica told me she was very touched by it.”
“So you don’t know if, perhaps, a student looking for extra money might have knocked off the book in a couple of hours?”
“Objection,” said Herlihy.
“So you don’t really know who went through the physical process of editing it?” said McCoy.
“Well, it wasn’t knocked off in a couple of hours, whoever did it. And in any case it was Redux I contracted. How they go about it is of no concern, as long as they do a good job.”
“So you believe they did a good job by you?”
“I have just said so.”
McCoy returned to the prosecutor’s table and picked up Arseneaux’s book. As he walked toward the witness, he flipped the pages. “So, then, after you had your book edited by Redux, you resubmitted it to Marie Du Tour at Conshochoken Press?”
“Yes.”
“And they published it?”
“No.”
“Why not?”
“It seems they had gone out of business. There was no listing for them, and the mail was returned. Small presses have a difficult time these days against the giant conglomerates.”
McCoy turned his back to the witness and faced the jury, pacing casually. “Would it surprise you to know, Mr. Arseneaux, that the telephone company has told us that Conshochoken Press never had a listing in Concord, New Hampshire?”
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“Well, they were certainly there. She wrote to me.”
“Did you ever go there, personally?”
“Of course not. But the editor wrote to me.”
“Marie Du Tour?”
“Yes.”
“Would it surprise you to learn that the telephone company in Concord has never had a listing for a Marie Du Tour?”
Arseneaux shrugged. “What of it?”
“Would it surprise you to know that neither the Concord city directory, nor the municipal tax authority, nor the property tax records has ever listed a Marie Du Tour?”
Arseneaux blinked, then smiled. “Pseudonyms are hardly unusual in publishing, Mr. McCoy, and I’m sure you are aware that women are often listed under their husband’s names.”
Avery McDonald nodded, pleased by Arseneaux’s response.
“Would it surprise you to know that the New Hampshire Department of Revenue Administration has no record of a Conshochoken Press ever paying business taxes in the state?”
“Perhaps they had yet to make a profit.”
“Did it ever occur to you that the address to which you were writing was a mail drop? Mail was received and held for pickup?”
“That’s hardly unusual. Many businesses do that.”
“In fact, Redux does that, doesn’t it? They use a Princeton, New Jersey, mailing address when the McDonalds actually work out of their home in Peekskill.”
“Yes, they do that. I don’t see why not.”
“But the Concord Chamber of Commerce, the 248
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Concord Better Business Bureau, the tax office—no one seems to have heard of Conshochoken Press, nor its editor Marie Du Tour. How do you explain that?”
“I have no knowledge of that.”
“Would it surprise you, Mr. Arseneaux, to learn that none of the booksellers, not Amazon.com nor Borders nor Barnes and Noble nor Ingram, the book wholesaler, can offer you a single book published by any company called the Conshochoken Press?”
“Well, the big publishers sometimes squeeze out small presses. I only know she was very encouraging.”
“Oh, yes, very encouraging,” said McCoy. “This imaginary person encouraged you to seek editing by Redux, didn’t she?”
“Objection,” said Herlihy. “‘Imaginary’ person?”
“Well, where is she then?” asked McCoy.
“Simply because she can’t be located doesn’t mean she’s imaginary,” said Herlihy.
“Are you prepared to bring in a witness to verify the existence of Marie Du Tour?” McCoy asked Herlihy.
“She wrote to me,” interrupted Arseneaux.
“Only speak when you’re asked a question,” said Judge Samuels. “The jury should disregard ‘imaginary.’”
“Can I say ‘fictional’ person? ‘Alleged’ person?”
said McCoy. “Marie Du Tour is no more real than Aunt Jemima.”
“You haven’t proven that,” said Herlihy.
“Produce her!” said McCoy.
“Let’s move on,” said Samuels.
McCoy hoped his point had registered with the jury. McCoy read from a copy. “‘In case you are un-certain what professional editors might be reliable, I 249
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might mention my good friends Avery and Monica McDonald at Redux Incorporated.’ Is that what the letter signed ‘Marie Du Tour’ said?”
“It didn’t say I had to use them. It was just a suggestion.”
“Did it ever occur to you that Conshochoken Press might be a front?”
Arseneaux didn’t answer.
“No? Didn’t it occur to you that maybe it was something created to draw in clients for Redux?”
“No. But what if it was?” said Arseneaux. “Marie Du Tour never promised to publish my book. And in any case, everything worked out perfectly. My book is published, isn’t it? I owe that all to Avery and Monica.”
McCoy looked down at the book. “Mr. Arseneaux, what does the term ‘print on demand’ mean?”
“It’s the latest thing,” said Arseneaux. “With the new computer technology it is possible to print only the number of books which are ordered. Books don’t have to be warehoused. There is only a setup cost, not the full expense of a print run.”
“And then, when people want copies, they’re run off like so many Xeroxes?”
“They’re not photocopies. You can see that from my book.”
“And this publisher, Book Meisters, who accepted your book, the book edited by the McDonalds, how much did you pay them?”
“For the setup fee? Two hundred dollars.”
“Anything more?”
“A three hundred and twenty dollar cover design fee, and then the
re were some minor charges for getting an ISBN number and registering the copyright 250
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and like that. All together I paid Book Meisters under one thousand dollars.”
“In other words, you paid Book Meisters to publish you?”
“You’re trying to make it sound like vanity publishing. It’s not like that. I’m investing in my own book.”
“They didn’t pay you?”
“Why should I let some monster conglomerate skim off all the proceeds? I receive eighty percent royalties.
No one gives you royalties like that. Those big companies are a monopoly, stuck on an outdated business model.”
“Is your book available in bookstores, Mr. Arseneaux?”
“It’s available on the Internet.”
“So I can’t walk into, say, Barnes and Noble and get one off the shelf?”
“The big companies keep the little ones out. The Internet is the future. Bookstores are the old way.”
“So, if someone knows about your book, and if they know where to look on the Internet, they can buy it?”
“Asked and answered,” said Herlihy.
“Withdrawn.” McCoy tossed the book on the prosecution table. “I’m very glad,” he said, “that the McDonalds did well by you.”
Herlihy produced two more satisfied clients, one Andy Marszak and one Astara Kundoo. Marszak had written a novel, Night Fare, about cabdrivers. He said he was very happy with the work the McDonalds had done and was looking forward to the book’s being published. He had no publisher yet, but he emphasized 251
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with great optimism some publishers had shown interest.
Southerlyn took over for the questioning of Astara Kundoo, a slender Nigerian woman who had written a book based on African home remedies. It told how, in her words, “to grow herbs to make the potions that would cure the cold, break the fevers, put the romance back in the marriage where romance has gone, and to enlarge mightily the virility of the middle-aged man.” These were all remedies she had learned from granmama, she said, and they worked better than “the pills.”
She had paid the McDonalds some $7,000, but this included a layout for self-publishing. Afterward she had gone to what Southerlyn pointed out was a
“vanity publisher” who would publish whatever the customers were willing to pay for. Miss Kundoo countered that several vanity press books had been picked up by the larger presses to become best-sellers, like The Bridges of Madison County and The Celestine Prophecy.
Southerlyn asked her where she had heard about that and she said from Monica McDonald. Miss Kundoo then claimed to have sold nearly two thousand copies by mail and was hoping Rodale or one of the other health presses would pick up her book.
She was also writing a follow-up book of African recipes, which she intended to have the McDonalds edit and lay out for her again. They would get $10,000
this time, and an endorsement on the book jacket.
After each of these witnesses, Joel Wise would ask if they knew Robert Rosserman. Rosserman had rejected Marszak’s book and, yes, he had gotten a letter from Redux shortly after. Astara Kundoo had submit-252
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ted her book to so many places, she didn’t remember whether she had sent it to Kirstner and Strawn, and she always threw away rejection letters to “get the negativity behind, you know.” In any case, she had contacted Redux because of a classified ad in the back of one of the writers’ magazines.
After Judge Samuels dismissed Miss Kundoo, Herlihy stood with a loose-leaf notebook. “Your Honor, to save the court’s time,” he said, “I would like to introduce into evidence a collection of letters by satisfied customers of Avery and Monica McDonald. There are twenty-three.”
“Objection,” said McCoy. “The court has no way to verify these letters, and they amount to presenting twenty-three witnesses which the state has no ability to cross-examine. They could be as imaginary as Marie Du Tour.”
“If Mr. McCoy will stipulate to the contents of these letters, it won’t be necessary to question each of the writers.”
“That’s the defense’s choice. The people have no way of knowing whether these people are legitimate or not without cross-examination.”
“Sidebar,” snapped the judge. Herlihy brought the notebook with him. Wise moved up behind McCoy and placed his hands on McCoy’s and Herlihy’s shoulders. Judge Samuels hunched down.
“What is this, Mr. Herlihy? Blackmail?” she said.
“It’s important for the jury to know that there are many people who have been happy with the work Redux has done.”
“Your Honor,” said McCoy, “given the McDonalds’
penchant for fabricating editors who write letters for 253
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phantom publishers, might we not assume they would fabricate happy customers?”
“Can you verify the identity of the writers of these letters?” asked Samuels.
“My clients assure me that all of them are willing and ready to testify here in court.”
“I’m calling this bluff,” said McCoy. “For every so-called ‘satisfied’ customer who is delighted to have been cheated, I can produce two who aren’t happy at all.”
“Look,” said Samuels, “you’re not dealing with Judge Ito here. I’m not about to drag this trial out for either of you. Or Mr. Wise, either.”
“You’ll get no argument from me,” said Wise.
“If I can’t cross-examine these letter writers,” said McCoy, “it’s clearly not best evidence.”
“What are we going to do here, people?” said the judge.
“I would be satisfied,” said Herlihy, “if the state would be willing to stipulate that Redux has many satisfied customers.”
“I won’t stipulate to that!” said McCoy. “It’s misleading. The only customers who could be happy about getting robbed are delusional. How can we know these letters are for real? Are the McDonalds going to take the oath and swear that they are real?”
“It’s up to the defendant to decide whether to testify, Your Honor. Mr. McCoy can’t coerce Avery and Monica to testify if they don’t want to.”
“I know the Constitution, Mr. Herlihy,” said Samuels sourly, “but Mr. McCoy has a point. I’m not entirely convinced your clients wouldn’t concoct these letters.”
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“Well, then I have no choice but to call the witnesses,” said Herlihy.
“Your Honor,” begged McCoy. “It isn’t necessary to make the same point over and over again. We say they did a lousy job; they say they didn’t. Hasn’t there been enough evidence in this respect to let the jury decide?”
The judge thought.
“How about this?” said McCoy, “I am willing to stipulate that the McDonalds are capable of producing many letters which allege that they did a good job. I am not willing, however, to stipulate that the writers of those letters are genuine without a complete investigation.”
“That’s good enough,” said Samuels. “Step back.”
“But the point is their genuineness,” said Herlihy.
“Yes, but he doesn’t have to agree with you. Since their provenance has not been established, I can’t admit them at all.”
“Then I must establish their provenance.”
“It isn’t necessary to produce the writers of the letters to do that,” said the judge, “since the contents, we can assume, say about the same thing.”
“You are coercing my clients to appear on the stand.”
“Well, if you want the letters…Now step back.”
“Might I have a recess to discuss this with my clients?”
The judge looked at her watch. “It’s three. I’m for calling it a day.”
“You’ll get no objection on that from me,” said McCoy.
Late that afternoon, Herlihy’s office notified the court and the D.A.’s office that they had removed one 255
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The witness was named Marlon Friendly. He posed as a literary agent, and sometime in the past had managed to sell some writers’ books to publishers for the usual fifteen percent. But since the early 1990s, he made most of his money charging “reading fees”
to aspiring authors. He advertised in the back of most writer’s magazines, pointing out of the ad like Uncle Sam on the old recruitment poster. “DO YOU HAVE
WHAT IT TAKES TO MAKE BOTH OF US RICH?” his ad trumpeted. In small print it explained his fee schedule: $500 to read and comment on a novel, $200 for a short story or children’s book, and so on, all refund-able if he decided to represent the work to a publisher.
Since 1999, not only had he been getting a fee for reading manuscripts, he was also referring these would-be writers to Redux. He might have been getting richer, but his victims certainly weren’t.
He had moved the Friendly Agency to Tyler, Texas, from New York City, and was afterward sued by a couple of writers for absconding with their royalties.
After a long court proceeding, which he was about to lose, he relocated to New Orleans, Louisiana, and though the judgment against him was still in place and unpaid he seemed to be operating in New Orleans 256
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much as he had elsewhere. He would have been a fine witness to testify to Redux’s honesty, but he had disappeared, leaving a forwarding address in Belize.
Herlihy’s office further notified the court that the defense would rest without calling Avery or Monica McDonald. Joel Wise had listed only Bob Rosserman as a witness, but told Southerlyn after court adjourned that he would not be calling him.
Southerlyn and McCoy discussed the closing statement until about 6:00 P.M., early for a change, then left feeling the odd discomfort of a free night.
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SUPREME COURT
100 CENTRE STREET
FRIDAY, NOVEMBER 22, 9:10 A.M.
The judge nodded in McCoy’s direction. “Ready, Mr. McCoy?” Southerlyn had written a note and shoved it toward him.
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