“Yes, Your Honor,” said McCoy. He glanced down at Southerlyn’s elegant handwriting. It said, “Do good.”
Without expression, he shoved it back to her and rounded the table.
“Ladies and gentlemen of the jury, you have spent many hours listening to the evidence, so much evidence in fact that the essential facts of the case might easily become obscured. You have heard testimony regarding the role of editors and so-called ‘book doctors’ in the publishing trade. In many ways, New York City is the publishing capital of the world and freelance editing is an important element of that industry. There are many, many honest freelance editors and ‘book doctors.’ Many.
“The defense, however, would have you confuse the work of those freelance editors with the fraud perpetrated by the McDonalds and supported by their accomplice, Mr. Rosserman. What the McDonalds do is not about improving manuscripts. It is about 258
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money. When Mr. Rosserman passes along his list of potential victims, he is not intending to help beginning authors, he is intending to fatten the McDonalds’
banking account and his own.
“They don’t care about their victims’ feelings. They don’t care about their victims’ dreams of literary success. They hint around, using Mr. Rosserman’s name and phony small presses, that all anyone needs is their professional touch. If they edit your manuscript, you can be a bestseller.
“The defense tells you that they didn’t promise anything. Do you really believe that? Do you think they could have drawn in over two million dollars in seven years by saying, ‘You pay us a minimum of three thousand or up to ten thousand dollars and we’ll edit your book and then you can take your chances’? Who would go for that? Would a reasonable person do that? The New York Lottery offers the chance to win millions of dollars, but a ticket in that only costs a buck. How many people would buy those tickets if they were three to ten thousand dollars apiece. You might find a few. But two million dollars’
worth? At three thousand a pop, that’s well over a hundred manuscripts a year. Well over.
“One book edited every three or four days. I don’t know about you, but I’d have trouble just reading a different book every three days.”
He smiled and strolled along the front of the jury box. “The defense would have you believe that the meaningless scrawls on the manuscripts were valuable editorial comments. Most of the victims who received them do not. The world-renowned author Martin Post doesn’t think so. You heard even a former employee of the McDonalds admit that she was encouraged to 259
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work at such a rate that she knew that what she had written on the manuscripts was meaningless. Are there any published books that have come out of the Redux editing process? Self-published books. The authors of those books not only paid the McDonalds, they then paid a printer. Self-publishing companies are in the business of printing anything that you’re willing to pay for. It’s sad.”
McCoy pointed at Rosserman. “Has Mr. Rosserman, when he held his position at Kirstner and Strawn, ever published a single work he recommended to the McDonalds? Has he ever used the McDonalds as freelance editors? Don’t you think that would be the first defense he would offer? But, if you listen, what do you hear? Question after question by his attorney pushes the view that Mr. Rosserman hardly knew them. He didn’t know what they were doing.
“Yet, Mr. Rosserman lost his job at Kirstner and Strawn exactly because he was involved with the McDonalds. He kept it a secret around the office that he was making referrals to Redux. Does this sound like he didn’t know what he was involved in? Do you think it is possible that none of the victims he referred to the McDonalds informed him about being deceived by them?”
Wise and Herlihy became as alert as cats. Every time there was the possibility of an explicit reference to Barbara Chesko’s death, they braced to leap on it as grounds for a mistrial. But the only time her name had appeared in the trial was on a long list of client victims and their payments.
“This case isn’t about dissatisfied customers. It isn’t about a matter of taste. It’s not about a retired person who isn’t happy with what happened to his memoirs.
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It’s about a deliberate scheme. It’s an elaborate pattern of misleading statements and implied promises which have only one purpose—to separate people from their money. Avery McDonald knew what he was doing. Monica McDonald knew what she was doing. And Robert Rosserman knew what he was doing. If you look at the whole picture, you’ll see larceny and in amounts well beyond the minimums for grand larceny. They conspired together, then robbed people as surely as if they had used guns and masks. There is no reasonable doubt. Tell them they can’t get away with it. Given all the evidence, you must find these defendants guilty.”
McCoy let his words sink in, then returned to the prosecution table.
“Mr. Herlihy?” said Judge Samuels.
“Thank you, Your Honor.” Herlihy strolled up to the jury box, spread his hands, and smiled. He stood like that for several seconds until his silence had drawn every juror’s attention.
“Why are we here?” he said. “Where’s the crime?
Somewhere in this city people have committed grand larceny. Maybe even at this very moment someone is robbing a bank, or stealing electronics off the back of a truck. Sticking a gun in an innocent woman’s face and saying, ‘Empty the cash register.’
“My clients, Avery and Monica McDonald, perform a service. People turn over to them their unpolished, and often quite crude, manuscripts and ask them to make them sophisticated. The McDonalds do as all good editors do. They read the manuscript, make an assessment of what the author is trying to do and make suggestions. They don’t rewrite the manuscript.
Creativity is an individual thing. It is precious. It is 261
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unique in every person. In this way, the McDonalds are akin to spiritual advisors. They are trying to help a writer find his, or her, own truth.
“You have heard several witnesses attest to the fact that the McDonalds did very good work as far as they are concerned. We could have produced many more such witnesses. The state gave us a number of witnesses who, on the other hand, were not satisfied with the McDonalds’ work. Isn’t this to be expected in something as individual and creative as the art of writing? We can only speculate on the reasons why a client of the McDonalds might have been unhappy, but surely if they had followed the McDonalds’
guidance and their books had been published as a result, would they be complaining about the editing they received?
“Avery and Monica McDonald would like every manuscript they consult on to become a book. They are professionals. They do everything they can to make it possible for this to happen. But the competition is tough. Not every book can be published. You can certainly imagine how disappointing this might be, but that’s not the point. The point is simple: How is this their fault?
“Yes, the McDonalds are paid for their work. Aren’t professionals usually paid for their work? Does the state imagine that this exacting and difficult work should be done for free? No reasonable person would think so. And I’m certain you don’t think so, ladies and gentlemen.
“Now, the state took great pains to introduce tax records of the proceeds of Redux Incorporated. And, yes, Avery and Monica made a lot of money doing this. As Mr. McCoy pointed out, Redux has had gross 262
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receipts in excess of two million dollars over a seven-year period. They have averaged about three hundred thousand a year. Yes, it sounds like a lot. But compared to what other professionals make, it isn’t all that much. They have very special skills. They heal sick books. They don’t get nearly as much as the average surgeon. They can’t touch what many stockbrokers make, even though they work just as hard.
Harder!”
Herlihy turned toward McCoy and Southerlyn. “But when did it suddenly become a crime to earn a living doin
g what you do best? If we don’t like the route a cabdriver takes, do we charge him with larceny? If we decide the pair of shoes we bought doesn’t match our clothes, can we charge Florsheim with larceny?
“Earlier in this trial, I read to you the standard contract which Avery and Monica McDonald require each of their clients to sign. This is not one of those contracts with fine print, written in obscure legalese.
My clients insisted that the contract be written in plain, easy-to-understand English.”
Herlihy slipped on a narrow lensed pair of reading glasses. “This is what it says, you’ll remember: THE FACT THAT WE HAVE ACCEPTED YOUR
MANUSCRIPT FOR EDITORIAL REVISION IN NO WAY
IMPLIES THAT WE OR ANY EMPLOYEE OF REDUX
INCORPORATED IS GUARANTEEING SUBSEQUENT
PUBLICATION OR REPRESENTATION BY ANY LITERARY AGENCY. THIS IS STRICTLY A CONTRACT FOR
EDITING SERVICES WITH NO OTHER WARRANTIES
EXPRESSED OR IMPLIED.
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“Let’s take another simple example and compare it. Suppose you had a French poodle. Let’s say a pedigreed poodle. It’s a happy dog and you’ve enjoyed having it around, but you think maybe you’d like to enter it in a dog show. Well, maybe it needs a little training in how to walk and to hold its head and its tail up. Maybe it needs its coat trimmed and to have its nails clipped. Wouldn’t it be better to hire professionals to do this for you?”
The McDonalds looked at each other and nodded almost simultaneously. Maybe they’d high-five each other at the end of Herlihy’s remarks, thought McCoy.
“And those professionals could do a great job. They could do the best job possible. The dog could learn to do everything right. It could look truly beautiful.
But neither the trainer nor the groomer could guarantee that your dog would win a kennel show. They couldn’t guarantee that the kennel club wouldn’t, for some reason, decide they no longer wanted poodles in their competition, thus making your dog ineligible to compete.
“After all that time and effort, you’d be angry.
You’d be stuck. But could you then turn around and have the trainer and the groomer arrested for stealing your money? Of course not. They did exactly what you contracted them to do. They did it well, and they fulfilled their end of the deal. They cannot promise what they have no control over. Avery and Monica McDonald cannot control what publishers do. Mr.
Rosserman has been an editor at an important publisher for many years. But not even he can guarantee that the books he wants published can be published.
He has to go through his editorial board and the marketing department and so on. If Mr. Rosserman, 264
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as a respected employee of Kirstner and Strawn, cannot promise publication…”
McCoy shot to his feet. “Mr. Rosserman is not a respected employee of Kirstner and Strawn!”
“Mr. McCoy!” The judge reached for her gavel.
“No,” said Herlihy, “I’m sorry. I apologize to the jury. Mr. Rosserman is indeed no longer an employee of Kirstner and Strawn. These absurd charges caused his immediate termination after many years of loyal service. I appreciate Mr. McCoy’s correcting my slip of the tongue.”
McCoy sat. Southerlyn crossed her arms and narrowed her eyes, as if she thought they might have been suckered.
“When,” Herlihy continued, “when Mr. Rosserman was a senior editor, he could not absolutely promise publication. How can we expect the McDonalds to do so? And that is exactly what is written in the Redux contract. Nothing is misrepresented.
“Ladies and gentlemen, I am astonished the district attorney’s office let this case go forward. Grand larceny! It’s absurd, and I know you’ll do the right thing and vote not guilty on the charges. Thank you for your attention and your patience.”
Herlihy gave the rail of the jury box a tiny tap with the tips of his fingers as he smiled and turned away.
An Irish charmer, thought Southerlyn, while McCoy was the Irish firebrand.
“Mr. Wise?” said the judge.
“I’ll be brief, Your Honor,” Wise said, rising and buttoning his suit coat. He patted his worried client on the shoulder and pinched his upper lip as he approached the jury box.
“Good day, ladies and gentlemen of the jury. Like 265
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Mr. Herlihy, I am even more astonished that charges have been proffered against my client. What has Mr.
Rosserman done? Did he promise anyone that he would publish them?” Wise moved along the front of the jury box.
“No. And did he do any editing whatsoever on the manuscripts in question?” He turned back toward the jurors. “No.
“All Mr. Rosserman did was to provide the McDonalds with the names of people who might, and I emphasize might, want to use the services of Redux. If this is a crime then we might begin arresting all of those folks who mail you catalogs. If the McDonalds were doing anything illegal, and I think you’ll agree that Mr. Herlihy has vigorously argued that they did not, then Mr. Rosserman was certainly not party to it. You look like good people. You’ll do the right thing. Mr. Rosserman is innocent.”
Southerlyn whispered in McCoy’s ear. “That was brief.”
“The cat who ate the canary,” said McCoy.
Judge Samuels adjourned for lunch after the closing statements, reconvened at one-thirty, then began the formal, but legally essential charge to the jury. She read from her notes, sipping water as her mouth dried.
The attorneys listened carefully for any slips. This was going to be a particularly long set of instructions and might be the basis for an appeal if anything was stated wrong. There wasn’t much chance, since the state of New York standardized its jury instructions, but occa-sionally a judge left out a crucial word or phrase.
“Under our law,” she explained, “a person is guilty of grand larceny in the third degree when such person 266
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steals property valued in excess of three thousand dollars. The term ‘steals property’ used in this definition has its own special meaning in our law. I will now give you the meaning of that term.
“A person (or persons, in this case) ‘steals property’
when, with the intent to deprive another of property or to appropriate the property to himself or herself, such person wrongfully takes property from the owner of the property.
“Some of the terms used in this definition have their own special meaning.”
She cleared her throat.
“‘Intent’ means a conscious objective or purpose.
Thus, a person acts with intent to deprive another of property or to appropriate property to himself or herself when such person’s conscious objective or purpose is to withhold the property or cause it to be withheld permanently, or to dispose of the property either for the benefit of himself or herself or a third person.
“A person ‘wrongfully takes property’ from an owner when that person takes property without an owner’s consent, and exercises dominion and control over that property for a period of time, however temporary. The term ‘wrongfully take’ encompasses as well larceny by trick, by false premise, or by false promise.”
Judge Samuels then took a deep breath and explained for each of the five counts that in order to find each defendant guilty, the jury needed to determine beyond a reasonable doubt that on the date of the transaction between the victim and the defendants, in the county of New York, that each defendant wrongfully took money from its owner, and that each 267
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defendant did so with the intent to appropriate it to himself or herself.
She then went on to explain the charge of conspiracy in the fifth degree, defining conspiracy in legal terms and the fact that the defendants had to have conspired to do a D level felony, such as grand larceny in the third degree.
All the i’s had been dotted and the t’s had been crossed, thought McCoy, as the jury stood to file out.
&
nbsp; There was nothing she had missed that he had heard, but who knew? Defense attorneys like Joel Wise were masters of creativity in composing appeals.
Judge Samuels left the court and Southerlyn and McCoy gathered in their papers. “Well, it’s in their hands now,” he said to her.
“How do you think they looked?” Southerlyn asked.
“Like all juries,” said McCoy. “Astonished at the te-dium of the legal system. Bored out of their skulls.”
268
SUPREME COURT
100 CENTRE STREET
WEDNESDAY, NOVEMBER 27
Four days had passed, and McCoy was worried.
When Branch called to ask about the deliberations, or when Serena Southerlyn dropped in, he put on a brave face, but when the jury adjourned for the weekend with no decision, then reconvened for three more twelve-hour days into the next week, the D.A.s began to wonder what was going on in there. There was, it was true, a lot on the jury’s platter: five counts of grand larceny in the third degree, as well as the conspiracy charges. They would have to decide if Avery McDonald was guilty on each of these, then Monica McDonald, then Rosserman. That was eighteen decisions. Sometimes a jury would just take it as a package and vote everyone guilty or not guilty on everything. Sometimes they’d work it like a swap meet. “I’ll give you guilty on this one, if you’ll give me not guilty on that one.”
Finally, all parties to the case reassembled in the courtroom. Judge Samuels looked like she had a headache somewhere off the Richter scale. She sighed and looked back at the jury foreman, an elderly man with a barrel chest and glasses that made him look like he had whale eyes. “So, you’re convinced there 269
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will be no meeting of the minds on these last counts?
You could continue to meet after Thanksgiving.”
“No, ma’am,” he said. “There’s a couple of stubborn ones. Won’t listen to reason.”
She raised her hands. “I don’t need to know details.
They’re entitled to their assessment. It’s sufficient to say you are deadlocked on these ten items.” She held up several sheets of paper.
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