Steve Martini - Double Tap

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 point. 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.

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.