Double Tap

by Steve Martini

  “But for the most part the information would have come through you, isn’t that correct?”

  “Probably. Yes.”

  Karen Rogan, the woman who saw Ruiz and Chapman on the office couch doing heavy crunches—the redhead who became Harold Klepp’s guardian angel—is, as I suspected, keeper of the company secrets.

  “Now let me ask you”—Sims turns a little sideways at the podium so that suddenly there is a clear line of sight between the witness and where I am sitting—“can you see the gentlemen sitting at the defense table behind me, just to the right of Mr. Ruiz?”

  She nods.

  “You’ll have to respond audibly so that the court reporter can hear you.”

  “Yes.”

  “Do you know that man?”

  She clears her throat. “Mr. Madriani, I believe.”

  “That’s correct.”

  “And have you met Mr. Madriani previously?”

  She nods.

  “Speak up.”

  “Yes.”

  “How many times have you met him?”

  “Twice.”

  “Can you tell the court when and where you met him?”

  “The first time was several months ago, at the office at Isotenics, in the conference room. You remember? You were present,” she says.

  “And the second time? Where was that?”

  “At a bar. A club about a mile from the office. A place called Crash’N Burn.”

  “What were you doing there?”

  “I’d gone to meet some friends to have a drink after work.”

  “Did you know that Mr. Madriani was going to be there at this club?”

  “No.”

  “But you saw him there.”

  “Yes.”

  “Was he with anyone?”

  For the first time Karen Rogan looks at me and doesn’t look away, a pained expression. “Yes.”

  “Who?”

  “A gentleman I didn’t know. I’ve never seen him before.”

  “And who else?”

  A long sigh and a lot of angst as she looks around for something to say other than the truth. “Harold Klepp.”

  “And who is Harold Klepp?”

  “He’s the director of research and development for Isotenics.”

  “An executive with the company, is that correct?”

  “Yes.”

  “Someone who, like you, is privy to a great many pieces of information regarding confidential business matters—information that no doubt includes sensitive trade secrets belonging to your employer?”

  “I don’t think he was engaged in corporate espionage, if that’s what you mean,” says Rogan.

  Sims ignores her and pushes on. “In fact, isn’t it true that Mr. Klepp, being the head of research and development, would have access to information concerning the very core of the business of Isotenics: the design and programming of computer software?”

  “I suppose.” She would like to tell the court that Klepp was on the ropes, outside the loop of knowledge and about to be fired—not that Sims doesn’t already know this—but it wouldn’t do any good and she knows it. My guess is that the only reason Havlitz hasn’t canned Klepp already is the fear that once he lets him go, the R & D man might feel free to talk. From what I am seeing, Rogan may now have her own head on the block.

  How they found out about my meeting in the bar that night is anybody’s guess. Given that Sims has had to drag it out of her on the stand, it is clear that Rogan was not the source.

  “So, from what you saw, Mr. Madriani may have already been at work trying to uncover confidential information regarding the company?”

  “I told you before that I have no idea what they were talking about. I couldn’t hear them.”

  “So, for all you know, proprietary information may have already changed hands.”

  “I don’t know.”

  “But you did talk to Mr. Klepp afterward.”

  “I did.”

  “And did he tell you what they talked about?”

  “Objection: hearsay.”

  “Sustained.”

  “Did Mr. Klepp tell you that he had planned to meet with Mr. Madriani at the bar that evening?”

  “No.”

  “According to what Mr. Klepp told you, did he know that Mr. Madriani was going to be at the bar that night?”

  “He said he didn’t have any idea that Mr. Madriani was going to be there.”

  “So for all intents and purposes Mr. Klepp was ambushed by Mr. Madriani while relaxing and having a drink after work. Is that your understanding?”

  She nods almost sheepishly, the bobbed red hair dangling across her face, covering one eye. “I suppose.”

  “Your witness,” says Sims.

  “I have no questions, Your Honor.”

  “I can understand why,” says Sims. “The defense has been caught red-handed delving into areas that they know are protected by commercial law.”

  “Your Honor, we were investigating the case on behalf of our client. We not only have a right to do so, but a legal obligation. It’s that Mr. Sims wants to assert commercial interests in an effort to prevent the defendant from obtaining a fair trial. I doubt that I have to shine much light on the subject for the court to make out the shadowed hand of the DA’s office behind all of this.”

  “I object, Your Honor.” Templeton is sitting in his chair with his hand raised like a second-grader. “We are not a party to this motion, Your Honor, and I resent any inference by Mr. Madriani to the contrary.”

  “You may not be a party, but you’re driving the train,” I tell him.

  “Enough,” says Gilcrest.

  “Your Honor, we would demand a restraining order against Mr. Madriani, his associates and agents, so that this kind of thing does not happen again.” Sims is back at it. “At least not without notice and court supervision,” he says.

  “Fine, we’ll give notice so that we can depose critical witnesses here in court, Your Honor.”

  “We would object to that, Your Honor.” Templeton, in one swift movement, is now standing on the seat of the chair so that the judge can see him better. “There is no procedure in the law for that kind of a process, especially this late in the game. We’re on the eve of trial,” he says.

  “And who was it who sandbagged us with a last-minute motion to quash?” I ask.

  “Not me,” says Templeton.

  “I’ve heard enough.” Gilcrest slaps his hand on the bench. “I’m taking the matter under submission. If Mr. Madriani wants to offer written points and authorities in opposition to the motion, he will have until five o’clock this evening to file them. This being Friday, I’ll make my decision Monday morning. Now, that’s it. We’re adjourned.”

  Before another word can be said, Gilcrest grabs the papers in front of him, sweeps off the bench, and disappears down the corridor into chambers.

  One of the guards already has his hand on Emiliano’s shoulder. “Let’s go.”

  As Karen Rogan comes down off the witness stand, she finds herself trapped inside the railing by the exiting lawyers, Sims and his cohorts. Standing there, she glances down at Ruiz. In that instant, with the guard’s hand on Emiliano’s shoulder, their eyes seem to meet. She shakes her head. And then, in a voice that is nearly inaudible, she mouths the words “I’m sorry. Are you okay?”

  He nods.

  “Take care of yourself.” She bites her lower lip as she says it.

  Emiliano smiles at her.

  Then Rogan slips through the gate behind the lawyers, down the aisle, and out of the courtroom.

  “Looks like you have at least one supporter out at Isotenics,” I whisper to Ruiz as I load papers into my briefcase.

  He ignores the remark. “So what happens now?” he asks. For the first time there is concern written in Ruiz’s eyes, disquiet in the tone of his voice.

  “It’ll be okay,” I tell him. “Harry and I’ll go to work on it the minute we get back to the office. Find some cases in po
int. The state can’t just stash the evidence in a safe, turn the key, and lock us out,” I tell him. “And they can’t use Isotenics to do it for them.”

  “But you forget,” he says.

  “Forget what?”

  “You’re not dealing with the state or Isotenics,” he says. “You’re dealing with the federal government. They can do whatever they want.”

  I shake my head. “No, Emiliano. They can’t.”

  I told him once before that unless we can come up with the evidence, going to trial against the prosecution’s case could end up being a game played only by fools or those who are desperate. As they chain Emiliano up to lead him away, I can tell by the expression on his face that he is beginning to wonder into which one of these two camps he has fallen.

  CHAPTER EIGHTEEN

  Like so many disputes in the law, the cases on trade secrets all seem to fall between the cracks. There are boatloads of appellate opinions dealing with civil lawsuits and even a few in which the theft of such secrets has been the subject of hefty criminal prosecutions, but nothing that seems to help our cause.

  Harry and I scoured the casebooks until just before five, when a courier delivered what little we could find to Judge Gilcrest’s courtroom. We have been unable to locate a single decision addressing the question whether, in a murder case, trade secrets belonging to a third party are available as evidence. We are now dabbling in the dark, our defense teetering on an issue of first impression for which the court has no guidance.

  Left to his own devices, Gilcrest has had to play Solomon, giving a little bit to both sides. The result is that Harry and I, as well as any agents in our employ, including Herman, are now under a temporary restraining order, at least until the court can sort it all out. We are barred from talking to anyone at Isotenics without first obtaining court approval by giving notice, thereby giving Isotenics the opportunity to block our investigation in court.

  For our part. Gilcrest ordered Sims and the company to turn over all of the subpoenaed documents to the court for review. Not that the judge has staff sufficient to examine these—or that it even matters, since Sims has filed an appeal to the district court. Until this is resolved, nothing will be delivered. An eleventh-hour motion by Harry for a continuance to delay the start of trial has been denied. In short, all of this has the makings of an early disaster.

  The court may be leaning over backward to accommodate Isotenics and their claim of trade secrets, but Gilcrest is a fox with a lot of hunts behind him. I sense that he knows that Templeton is behind this.

  As if we need more bad news, our attempts to subpoena General Satz have failed one more time. When the process servers couldn’t find him, Harry directed a letter to the legal office at the Pentagon in an effort to have them accept it on behalf of the general. This morning we received their written reply notifying us that, since the general is retired from the military and is a civilian appointee of the Department of Defense, his attendance at trial is a personal matter not involving the Pentagon or Satz’s official position. Therefore they have refused to accept the subpoena and have returned it to us in the envelope.

  “If we can’t get Satz, we don’t have squat,” says Harry.

  “Maybe even if we do get him, we don’t have squat,” I tell him. “From what I’ve read, he’s not likely to lie down and roll over—not if his performance in front of Congress ten years ago is any measure.”

  “I remember.”

  I have put Satz on our witness list, but without solid documentary or other evidence to nail his feet to the floor, I would be a fool to put him on the stand. Given his tenacity in front of a panel of crusty politicians who didn’t even have to contend with the rules of evidence, Satz is likely to do a tap dance on us.

  We are now deep into jury selection, eight days in court huddled at the table with our jury consultant, trying to mind-meld with strangers whose names have been churned out from computerized voter lists and driver’s license records at DMV.

  In view of the fact that Templeton has never lost a death case in eighteen outings, a jury consultant with a track record on him does not exist. In two other cases that Templeton has tried, defense lawyers brought in one of the crackerjacks in the field, a psychologist from Berkeley with a résumé to shame the gods. Both times Templeton dealt them black queens by way of a verdict, and the death penalty to go along with it.

  “What we need is a giant flyswatter so we can grind the little fucker into the carpet the next time he moves,” says Harry.

  “You find one, I’ll give it to the judge,” I tell him. “At this point I think Gilcrest might use it. It was the last thing he needed. This is probably Gilcrest’s final big case before retirement. And I doubt that he was hoping for a hundred-page treatise and a seminar on business law and the fine points on the exacting science of trade secrets.”

  “Then why didn’t he just tube Sims? Deny his motion to quash?” says Harry.

  “Because if he was wrong, the downside was too steep. Don’t forget, we asked for a pile of technical data in our last request.”

  A second set of subpoenas sent out after my meeting with Havlitz at Isotenics demanded information on the IFS software. Jim Kaprosky helped us draft it. After listening to his history and researching his background, I am convinced there is no one in the world more qualified. After slamming his head against a wall for twelve years with the government over the issue, if anyone would know how to press this particular balloon without popping it, it is Kaprosky.

  Harry chews on this for a moment.

  “Besides,” I tell him, “we can criticize Templeton but we can’t stop him from talking to the jury, and we can’t object because he’s managed to turn physical disability into an advantage. He bonds with juries like he was welded to them. I’m afraid we’re going to have to live with him.”

  The problem with Templeton is compounded by the fact that he seems to have a rare gift for reading crowd dynamics, as if he can anticipate juror response before they do. This is no shell game. I’m convinced that the man has a sixth sense.

  “And he has one big advantage over vaudeville.”

  “What’s that?” asks Harry.

  “Most comedians can’t evict members of the audience with a peremptory challenge.”

  “True, but he’s already burned more than half of his peremptories. Pretty soon he’s going to be shooting blanks,” says Harry.

  “Yes, but he’s also softened his tune to harmonize with the audience he already has. The man’s adaptable. He knows where he is, never loses his place. He knows exactly how many challenges he has left and what he has to do when he starts running dry. Unless I miss my bet, by the time he’s finished, our jury’s going to be in his pocket.”

  “Well, I’m glad to see we’re on top of things. So how do you propose to deal with him?”

  I see Janice, my secretary, coming this way through the half-open blinds at the window nearest the door. She wouldn’t bother us unless it was something important.

  “If we’re lucky, maybe we won’t have to.”

  “What are you talking about?”

  I get up out of the chair and head toward the door.

  “If you have a plan to push Templeton out of the case, I’d like to know what it is,” says Harry.

  “Not exactly. Bear with me.” I give him a wink, then open the door before Janice can knock.

  “There’s somebody here to see you,” she says. “I wouldn’t have bothered you, but I didn’t know if you’d want to see him. Says he’s an old friend.” She hands me a business card.

  I rub my thumb over the embossed gold seal to see if it is still hot from the press. Representative, 42nd Congressional District. Leave it to Nathan Kwan to have his congressional cards printed before the election results have hit the wire services in the southern part of the state.

  As I enter the office half a beat behind my secretary, Nathan is sitting on the couch. He greets me with a big smile as I come through the door.

 
“Hey, buddy. Hope I didn’t catch you at a bad time.” He’s up off the couch, leaving the newspaper he was reading behind him on one of the sofa cushions.

  “No, no. There’s never a bad time to see an old friend. Especially an important one.”

  “What can I say? Cream always rises to the top.” We both laugh. “Along with bullshit.” We shake hands. It was a saying we had when Nathan and I shared space in the Capital County DA’s Office more than twenty years ago now, a way of laughing at the overlords who shuttled us around, giving us case assignments and bragging about their brilliance in court when they used to try cases.

  “I know you’re up to your ass in the trial of the century. I was just reading about it in the newspaper,” he says. “So I’ll make the visit short. I guess we’re both famous. Or should I say infamous.”

  “More like it,” I tell him.

  Nathan always has a warm smile, one of his best features, and a good sense of humor. His quest for power has never left him without a laugh and healthy appreciation for self-deprecation.

  “I guess congratulations are in order!” I’m holding up his business card, reading it. “Impressive.”

  “Yep, gold seal and all,” he says. “Pretty soon I’ll have congressional cuff links. I’m told that if I can survive one term and get reelected, they’ll give me the decoder ring.”

  Nathan has won the special election for the open seat in Congress created by the death of the incumbent. The last time I saw him he was nibbling at the edges. Two weeks later he jumped into the campaign with both feet. According to tidbits in the papers, he had been leaning toward the race quietly for some time, apparently sizing up the man’s office in D.C. with a measuring tape right after he died.

  “It was an opportunity, so I seized it.” He pauses a second. “Okay, don’t tell anybody, but I carpetbagged.” Nathan’s comic timing has always been pretty good. This has been all over the news up in Capital City for months. I’ve seen his opponent’s charges in the headlines on the Internet. Nathan moved his residence into the district, large portions of which seemed to neatly coincide with his old Senate seat in the legislature.

  “I’d like to say I planned it. The fact is, it was a godsend. I think I told you the last time we met I was about to tap out in the Senate. Term limits.”