Double Tap

CHAPTER THIRTY-THREE

Templeton is talking with both hands, eyes like saucers, a broad smile on his face, his most sincere expressions of assurance. He now turns the other way so I can no longer see his lips moving. But I can read his mind. He is trying to convince the three government lawyers that Harry and I have a briefcase full of nothing but air.

“Mr. Madriani, you want to call your first witness?” says Gilcrest.

If Templeton’s guests don’t do something soon, the judge is going to force me to open it. And then everybody in the courtroom will know that not only is the briefcase empty, but Harry, Emiliano, and I are all sitting here at the table naked.

“Your Honor, the defense calls Karen Rogan.”

“Karen Rogan.” I hear the name repeated by one of the bailiffs out in the hallway.

Templeton manages to get the three lawyers to sit down again, but the older one is shaking his head. He seems no longer to be asking Templeton: he is telling him. It may only be wishful thinking, but my sense is that the prosecution is now on a short tether.

Rogan enters the courtroom through the main doors in the back. As she walks up the aisle toward the bench and the witness chair, every head in the audience turns. The three government lawyers take a bead on her. Then they confer. Puzzled expressions, and then one of the younger ones gets up and heads for the door.

The judge doesn’t stop him: the privileges of sitting inside the bar’s railing.

Rogan steps up to the platform. The judge reminds her that she’s already sworn in. She takes the seat and repeats her name for the record, then spells it.

“Good morning.”

She nods at me and smiles politely.

“Ms. Rogan, as I recall from your earlier testimony, you are employed at Isotenics, Incorporated.”

“That’s right.”

“And that prior to her death you worked as executive assistant to Madelyn Chapman, is that correct?”

“Yes.”

“Can you tell the jury where your office is located at Isotenics?”

“I work on the second level of the headquarters building on campus, the executive level, in an open area.”

I pick through the pile of papers on the lectern in front of me and pull out a schematic of the Isotenics headquarters, the wedding cake with a dome out in the hills above La Jolla. The bailiff delivers a copy to the witness and the judge, and one is dropped on Templeton’s table.

The witness identifies the location, marked with an X on the drawing where her desk is located on the second floor. The floor plan is printed to scale.

I have the drawing marked defense exhibit next in order and moved into evidence. There is no objection from Templeton, and a second later the drawing appears up on the visualizer. Now the jury and the two government lawyers who are still sitting there can play along.

“And the two double doors directly across from where your desk appears in the drawing”-I hit the desk and then the doors on the screen with a laser pointer in my hand-“where do those doors lead?”

“That’s the CEO’s office.”

“By CEO, do you mean the chief executive officer of Isotenics, the head of the company?”

“That’s right.”

“And during her time, before she was killed, did Madelyn Chapman occupy that office?”

“She did.”

“How far would you say it is from your desk to those doors?”

“I don’t know. Maybe ten feet.”

“If I told you that, according to the scale on this floor plan, which was obtained with documents that we received from Isotenics, the distance is almost exactly eight feet, would you question that?”

“No. That’s probably right.”

“And inside the CEO’s office, do you see another area with a small rectangle, marked with an X?”

“Yes.”

“Can you tell the jury what that represents?”

“I suspect it’s the location of the desk. Ms. Chapman’s desk.”

“Does it look as if it’s in the right place in the drawing? Is that about where Ms. Chapman’s desk was located?”

We play a little tongue tag and she finally agrees that the desk was no more than ten feet inside the double doors. While Chapman’s office was immense, one of the interior walls was lined with shelves containing art glass and other collectibles. She had her desk turned toward the two walls of windows that looked out toward the Pacific so that when she sat behind it, her back was to the double doors.

“I know it’s a strange arrangement,” says Rogan, “but it’s what she liked. She wanted the view. She loved looking at the ocean.”

“So while her desk was, say, ten feet away from the doors to her office, by the time she sat in her chair, she was probably less than eight feet from those doors, is that right?”

The witness is nodding. “Yes, I said that’s about right.”

“And if she pushed back from the desk, perhaps leaned back in her chair-say, to talk on the phone-she might be only seven or eight feet away from the door to her office.”

Rogan nods.

“You have to speak up for the reporter.”

“Yes. That’s right.”

“So the total distance from your desk to where Madelyn Chapman sat at her desk was no more than sixteen to eighteen feet.”

“Yes.”

“Do you know what the doors to Ms. Chapman’s office were made of?”

“They were wood panel. I think they were probably pine. They were a little different than the other office doors on that level: Colonial. They had been put in by a decorator hired by Ms. Chapman.”

“What were the acoustics like?” I zero in: “Was it possible to hear what was being said inside Ms. Chapman’s office if the doors were closed? From your desk, I mean.”

“The walls were thin,” she says. “The building was designed to look old, but it wasn’t. I told her once that her office needed some soundproofing.”

“You told Madelyn Chapman?”

“Yes.”

“And did she have that done?”

“No.”

Until this moment I couldn’t be sure. Now I am. Karen Rogan is signaling me to pop the question. I stop nibbling and put my fork in the enchilada.

“In your capacity as executive assistant to Ms. Chapman, did you place and receive phone calls on her behalf at Isotenics?”

“Yes.”

“Did you ever either place or receive a phone call to or from General Gerald Satz at the Pentagon in Washington, D.C.?”

With the mention of the name, there is a little buzz in the courtroom. The judge looks but lets it die down.

“Yes, many times.”

“Do you recall a telephone conversation between Ms. Chapman and General Satz in which Ms. Chapman’s voice was raised in apparent anger?”

“Objection,” says Templeton. “Vague as to the time period.”

“Sustained.”

“Within the last, say, three months before her death, do you recall a telephone conversation between Madelyn Chapman and General Satz in which the tone and level of Ms. Chapman’s voice became elevated in apparent anger?”

“Yes.”

“Objection,” says Templeton. “How can the witness possibly know who the victim was talking to unless she was listening on the other line?”

“Why don’t we ask her, Your Honor?”

“Do it,” says the judge.

“During the time that you heard this conversation, were you listening on the other line?”

“No.”

“Then how did you know that Madelyn Chapman was talking to General Satz?”

“Because Ms. Chapman had asked me to place the phone call and I transferred the general to her line.”

I turn to look at Templeton’s table just as one of the doors at the rear of the courtroom opens. It’s the government lawyer who left, coming back. He hustles up the aisle. This time he is carrying some papers in his hand. He moves quietly through the gate in the railing, hands the papers to the older lawyer, and takes his seat again.

“And after you transferred the call to Ms. Chapman, you hung up after that?”

“Yes.”

“But you say you still heard part of the conversation?”

“I heard Ms. Chapman’s voice.”

“And what was she saying?”

“She was angry. She was shouting.”

“Was there anyone else in the office with her at the time?”

“No.”

“Do you ever remember her shouting like that before?”

“She could get angry, lose her temper. But I’d never heard her like that before.”

“What did she say? Do you remember the words?”

“She said something to the effect that ‘You lied to me. You set me up. You’re using spyware and you didn’t tell me.”’

There’s the stir of voices out in the audience.

“You’re certain about that? That those are the words she used?”

“Yes.” She nods. There is no hesitation.

I turn to look at Templeton’s table. The three lawyers are huddled. Templeton turns to try to head off another revolt.

“Ms. Rogan, do you know what the term spyware means?”

“Objection.” Templeton spins around on his box, trying to put out fires on both fronts now. “The witness is not a software expert.”

“Your Honor, I’m not asking for an expert opinion. I’m asking the witness what her understanding of the term was at the time she overheard this conversation-that is, if she had any understanding.”

“I’ll allow it for that purpose,” says Gilcrest.

The older lawyer with the gray hair is on his feet now, standing near his chair and looking but saying nothing. Boring holes into the witness.

“At the time you overheard the conversation, what was your understanding of the term spyware?”

“As I understand it, it is special software designed to attach to people’s computers in order to mine data, collect information from their hard drives.”

“So you had heard the term before?”

“Yes.”

“From who?”

“Engineers. Software-design engineers at Isotenics.”

“And, to your knowledge, did Isotenics make spyware?”

“No, not that I’m aware of.”

I reach into the pile of papers in front of me on the rostrum. Moment of truth. I slip out the copy of the telephone message from the box of documents collected from Madelyn Chapman’s desk the day she died. The bailiff delivers a copy of this to the witness and the judge. Harry drops one on the table in front of Templeton.

The government lawyer leans over his shoulder. When he sees the words looking glass penned in an elegant hand in the middle of the slip, he puts a hand on Templeton’s shoulder, and for a moment it looks as if he’s going to strangle him from behind. He has his face down at Templeton’s ear. Templeton is shaking his head. He doesn’t want to hear it.

“Ms. Rogan, is that your handwriting on the form that is copied on that sheet of paper?”

“Yes.”

“Did you write that note?”

“Yes, I did.”

“Can you tell the court what it is?”

“It’s a telephone message slip, taken by me and directed to Ms. Chapman.”

“And what’s the date on that slip?”

“September thirtieth.”

“This last year?”

“Yes.”

“Three days before Madelyn Chapman was murdered?”

“Yes.”

“And who was this phone call from?”

“General Satz.”

“Did you take the call personally on behalf of Ms. Chapman?”

“I did.”

“So you talked to the general on the phone?”

“Yes.”

“And can you tell the jury what he wanted?”

“Your Honor.” I hear the voice from Templeton’s table, but it’s not Templeton. “Excuse me, Your Honor. My name is Edmund Yost.”

Gilcrest looks confused, not sure that he is actually hearing some stranger interrupting proceedings in his courtroom. “I am senior counsel at the Department of Justice, representing the Department of Defense, Office of Intelligence.” He reaches behind him without even looking.

One of the other lawyers hands him a stapled sheaf of papers.

“I have an order in my hand issued earlier this morning staying these proceedings indefinitely, signed by the senior judge of the Foreign Intelligence Surveillance Court of Review in Washington, D.C.”

“Let me see that.” Gilcrest holds out his hand.

The lawyer hands the papers to the bailiff, who takes them to the judge. Gilcrest looks at them, flips a page, and reads. The document appears to be only a few pages long.

“Mr. Templeton, did you know about this?”

“Your Honor, I just found out,” he says. “I haven’t seen that document. In answer to your question, no. I didn’t know. Not until just now.”

“It appears to be in order,” says Gilcrest. “I don’t see any date for the lifting of the stay.”

“There is none, Your Honor.” This from the gray-headed counsel from D.C.

“This court has no authority to supersede a federal court order. By the same terms, the defendant is entitled to his day in court. I cannot hold the jury indefinitely. What do you propose I do?” Gilcrest puts this to the government lawyer.

“I’m sorry, Your Honor. The United States government takes no position regarding the outcome of this trial.”

“Other than to stay the proceedings of it indefinitely,” says the judge.

“Your Honor, perhaps a brief continuance until we can sort this out,” says. Templeton.

“No,” says Gilcrest. “I may have no authority to override a federal court order, but I surely have authority to control the proceedings in this court. Based on this order, which will become part of the record, this trial is now over. I’m declaring a mistrial. The jury is released. The defendant Emiliano Ruiz is discharged. This court is adjourned.”

There’s an uproar in the courtroom.

I look over at Larry Templeton. It is the first time I have ever seen him at a loss for words.

Harry is sitting there looking at me, dumbfounded.

“You son of a bitch.” He is laughing, smiling at me. It has finally dawned on him exactly what I meant that day in our office when I told him that if we were lucky we might not have to deal with Templeton at all-or, for that matter, the jury.

The judge is off the bench.

“You, of all people, shouldn’t be surprised,” I tell him. “You are the one who’s been telling me all these years that I can always count on the federal government to screw things up.” Harry is up grabbing me by the shoulders, giving me a hug.

“What else could I do?” I’m saying in Harry’s ear. “Instinct told us he didn’t do it. This was the only sure way out.”

“I don’t believe it. Sonofabitch.” This time it comes out as one word. Harry can’t contain himself, slapping me on the back. He turns, pulls Ruiz up from his chair, and lays a hug on him.

Emiliano seems dazed, stunned by the speed of what has just happened. “I’m free.” I can read his lips, but I can’t hear the words over the mayhem in the courtroom. Reporters are leaning over the railing as the guards hold them back.

While the uninitiated might censure me for failing to establish Emiliano’s innocence, to clear his good name, under the circumstances this would have been a fool’s errand. Unfortunately the criminal law was never equipped to prove innocence. It was crafted to establish one thing only: guilt. In the eyes of the public, which holds the collateral to all of our reputations, the absence of guilt is seldom seen as the equivalent of innocence. In Emiliano’s case, even a jury verdict of acquittal would leave half the world wondering if Ruiz didn’t in fact murder Madelyn Chapman. Weighed against the possibility of a death sentence, only the feebleminded would have elected to go to a verdict as opposed to the certain result of a mistrial. But one thing is certain. The state will never try him again. They would face the same impediment: a federal government intent on protecting the mysteries of state under the rubric of national security.

In the confusion of the courtroom, I fail to notice that Rogan is leaving until I see her in the center aisle, merging with the audience heading for the doors.

I go after her before she can disappear into the mob outside. Out in the hallway it’s a madhouse, reporters with notebooks pushing and shoving. Within minutes they open the doors and allow them to clear their cameras through the security line downstairs. Crews are staking out space, setting up lights to get the doors leading to the courtroom with the department number on the wall next to them as good background shots.

I see Nathan holding forth with some of the reporters. The fledgling congressman from another city whose office in Washington, when it is finally assigned a week from now, is likely to be a coat closet a mile from the Capitol, is establishing his credentials as the resident political expert on IFS and what Congress will do now.

Several of the reporters are hanging on me, asking questions about IFS, what information we have. The flashes from cameras and the heat of the lights of the Minicams make me put my hand up in front of my eyes.

Templeton comes out of the door behind me, heading as fast as he can in the other direction. They chase him and Templeton starts running.

I finally catch up to Karen in the crowd, take her by the arm. When she turns she seems surprised. “I wanted to thank you. I couldn’t earlier. The judge’s gag order.”

“No need to thank me,” she says. “I did what I was supposed to. Can they rearrest him?” she asks. She’s talking about Emiliano.

“They could, but it won’t do them any good. They’d run into the same wall that just fell on them. National security trumps all,” I say.

“If I ever get in trouble, I want you for a lawyer,” she says. “What do you think he’ll do now? Mr. Ruiz, I mean.”

“Why don’t you ask him?”

“You think he’d talk to me?”

“I’m sure he would.”

Suddenly she smiles. I have suspected for a while that Karen’s testimony on the videotape may have been motivated by something more than her simple wish to maintain Chapman’s name unsullied.

Nathan is finished with the press for the moment. He comes up and plants himself near us, listening as I talk to Karen. The way he is eyeing the pretty redhead, I can tell that Nathan is looking for an introduction.

The press follows him and suddenly it’s a crowd. One of them tries to ask me a question.

“I have nothing to say.” I have told Tim Saentz, the AP reporter, that as soon as the trial is over, he has the exclusive on anything I can talk about.

The three government lawyers come out of the courtroom. The press abandons us and mobs them, leaving Karen and me to talk, Nathan hanging on the periphery.

Kwan suffers from the political equivalent of seasonal affective disorder. He would die if he could not bask in the reflected glory of the latest topical event.

“One last question, then I have to run. How’s Mr. Klepp doing?” I ask her.

“Harold?” She looks at me. “You haven’t heard?”

I shake my head.

“Harold was put on administrative leave, escorted off the Isotenics campus the day after you talked to him at the bar. He hasn’t been back since. The only reason they didn’t fire him was to keep him quiet. It seems I wasn’t the only one at the bar that night.”

What she means is that someone else saw us and told Victor Havlitz.

Nathan spies the network logo on one of the cameras. “Be back in a minute,” he says. He sidles over toward the reporter with the microphone standing there, getting ready to do his lead-in for a spot on the nightly news. Kwan hands his newly minted congressional card to the cameraman. The guy is busy making adjustments to his tripod and lights. A second later the three of them, Nathan, the reporter, and the cameraman, are negotiating the news value of a little face time for the freshman congressman.

“I’m sorry to hear it. About Klepp, I mean.” My mind is wandering. Staying up three nights in a row going through boxes and prepping for trial has me exhausted.

“It’s fine,” she says. “Harold already has another job.”

My eyes are on Nathan in front of the camera as she talks. He is a perfect politician: glib, superficial, manipulative. He has a grand sense of self and a natural talent for a profession for which lying is usually listed at the top of the job description; in short, the clinical definition of your average sociopath.

I hear the words Department of Defense and my hobbled attention is drawn back to Karen. “They offered him a job auditing software quality control for the Department of Defense, Office of Procurement.” She’s talking about Klepp’s new job. “Can you believe it? I don’t think Victor knows yet.” She smiles and winks. “I’d like to be a fly on the wall when they tell him.”

Somehow I suspect that her ear may be connected to Victor’s outer door when this happens. Karen Rogan, the keeper of company secrets. I will never know exactly how much she really knew about IFS and Satz, the information they were mining. But my guess is that I barely scratched the surface.

Harry comes out of the courtroom behind me, trailing some print reporters like flies. “Ruiz wants to talk to you,” he says.

One of the reporters turns on me. “Mr. Madriani, what does this mean for IFS?”

“In a minute,” I tell him.

“See you later. I’m gonna call your office. I want his number.” Karen is talking about Ruiz. She turns and wanders off down the hall.

“They won’t release him from the jail until one of us gets the judge to sign the discharge order,” says Harry.

“Why don’t you take care of it.”

“He’d like to thank you,” says Harry.

“Right now I have something I have to do. Tell him I’ll catch up with him in just a few minutes. Ask him if he can stick around.”

I turn to head down the hall

“Where are you going?” says Harry.

“County law library,” I tell him.

“The library?” Harry looks baffled. He throws his hands in the air. “Whatever.”