Ed McBain_Matthew Hope 12 (6 page)

What it all got down to in the closing arguments was a simple case of She Said/He Said.

On Lainie’s behalf, I argued that Gladly the Cross-Eyed Bear was her wholly original work, that she had designed the stuffed
animal early in April, had consulted an optometrist shortly thereafter, and had copyrighted bear and accessories in May, at
which time she had also trademarked the name of the bear. I argued that the crossed eyes and the correcting eyeglasses were
part and parcel of the bear’s distinctive trade dress. I further argued that the notion for the bear had come to her through
memories of her own affliction—and here I asked her to look directly into Judge Santos’s face so that he could see for himself
the similarity of the bear’s eyes to hers—and a hymn she had learned when she was a little girl in Winfield, Alabama.

Brackett argued that Brett Toland—himself originally a Southerner from Tennessee—had been inspired by the same hymn and had
suggested the idea for a cross-eyed bear to Lainie while she was still working for Toyland under an employment agreement that
specified any fruits of her labor would become the sole and exclusive property of the company. Brackett contended that it
was Toland himself who’d requested Lainie to sketch a cross-eyed bear for him, and she had delivered those sketches in September
of last year, three months before she’d given the company notice. The bear he planned to test-market this Christmas was called
Gladys
the Cross-Eyed Bear because he hoped to capture a market not exclusively limited to Christians familiar with the hymn. The
glasses on
his
bear made use of neither corrective lenses nor mirrors but were instead clear plastic lenses behind which uncrossed eyes
had been painted. It was Brackett’s argument that Lainie had also designed these glasses for Toland, and that the more sophisticated
design she’d later purchased from Nettleton was merely an improvement on Toland’s original idea.

He Stole It.

She Stole It.

That’s what it got down to.

Warren knew the names of most people in Newtown she would have to contact, but he didn’t see any of them in her address book.
Maybe she was going someplace other than Newtown, maybe she figured she’d be too conspicuous down there, pretty white blond
woman in the black section of Calusa. Maybe she knew someplace else to go for what she needed, if she needed it, but maybe
he was wrong. He kept leafing through the book leisurely, didn’t want to miss any familiar name, but there was nobody there
he could identify, so far she looked clean as a newborn babe. He closed the book. Looked around the room again.

She wasn’t expecting anybody to come in here and toss the place, so she’d have had no need to go stashing anything in ridiculous
places like the inside of a lampshade or the underside of a toilet tank lid. Just her and her secret, if there was a secret,
maybe he was wrong, maybe there was nothing here at all. He’d be the first to admit it, run out and buy them both a big dinner
at the best restaurant in town. But he knew the signs.

Only place he hadn’t yet checked was the bathroom.

Santos was telling us that it was not the Court’s obligation to determine whether Dr. Nettleton had stolen his eyeglass design
from the
Optics and Lenses
article. Which, by the way, he didn’t think had happened.

“In fact, I find that argument entirely specious,” he said, “and I’m rejecting it summarily. Rather, the duty of this Court
is to determine whether the bear Toyland calls ‘Gladys’ is a copy of the bear Commins calls ‘Gladly’ and therefore an infringement
of copyright. The Court must further determine whether the similar though not identical names of the two bears might cause
confusion in the marketplace and therefore be an infringement of trademark. And last, as to the third count, the Court must
consider whether the design features of the Commins bear are inherently distinctive or at least have secondary meaning among
purchasers, in which case the bear may be granted trade dress protection. This is not a simple case,” he said, and sighed
heavily. “I know, I know. This is already the middle of September, and Christmas is right around the corner. Ms. Commins has
had feelers from two major toy companies, and Mr. and Mrs. Toland are eager to put
their
bear into production at once.

“But…”

And here he sighed again, and clasped his hands together as if building with his fingers a Here’s-the-Church-and-Here’s-the-Steeple
edifice, resting his chin on the entrance door formed by his thumbs, peering out over them.

“I must give this serious thought,” he said. “Before I enjoin Mr. and Mrs. Toland from producing and selling their bear, I
need to be certain in my own mind that what Ms. Commins charges in her complaint is absolutely unassailable. I ask you all
to be patient. I’ll try to give you my decision by the end of next week. That would be…” He looked down at his open calendar.
“The twenty-second. Failing that, and in accordance with federal law, I could extend another ten days. I can certainly promise
a decision before then. In fact, let’s say no later than the twenty-ninth. Until then, the TRO will remain in effect. Are
there any questions? Then let’s adjourn.”

Had to be a bathroom behind that closed door across the room. Warren left her address book open to the page it had been turned
to, got up, pushed the chair back under the table again, and went to the closed door.

No surprises, no dead body in the bathtub or hanging from the shower head or sitting on the toilet bowl with a knife in his
heart. Nothing like that. Thong panties drying over the shower rod, two of them white, the third one yellow, now he knew what
she wore under her skirt. No bras in evidence. Twisted tube of toothpaste on the sink, at least she was still brushing her
teeth and rinsing out her smalls. Force of habit, he took the box of Kleenex off the toilet tank lid, placed it on the sink
to his right, lifted the lid, peeked into the tank, turned the lid over to see if anything was taped to it, put it back in
place again, and put the box of Kleenex back onto it.

He opened the medicine cabinet.

Usual array of headache remedies ranging from aspirin to Advil to Tylenol to Bufferin. Bottles and tubes of sunscreen and
lotion. Some prescription drugs in little brown plastic bottles with white lids. Several packages of tampons and maxi-pads.
A few boxes of cold tablets and allergy tablets. A toothbrush in an unopened cardboard and cellophane container. A bottle
of Pepto-Bismol. An empty Dial•Pak dispenser. A toenail clipper. An open packet of dental floss. Several jars of moisturizers
and mud. Nothing he was looking for. He closed the mirrored door. Opened the wooden door on the cabinet under the sink. Toilet-bowl
brush. Wrapped bars of Palmolive soap; he visualized her showering. Wrapped rolls of toilet paper. An unopened box of Kleenex.
A can of Lysol. He closed the door.

Pale blue shag rug in front of the toilet bowl. Matching blue plastic trash basket wedged into the narrow space between the
sink cabinet and the bowl. He looked into the basket. Crumpled, lipstick-stained wads of Kleenex. Cellophane wrapper from
a tampon. Wrapper from a stick of Wrigley spearmint chewing gum. Several soggy Q-Tips. He picked up the basket, rested it
on the sink. Dug under the debris.

Bingo.

“He’s going to decide in their favor, I
know
it,” Lainie said.

We were eating a late lunch in a delicatessen near the courthouse. The place called itself the New Yorker, though the knishes
and the hot dogs tasted as if they’d been made in Korea. Even the mustard was all wrong, a bright yellow stuff that lacked
the bite of the grainy brownish blend my partner Frank insisted was essential to a true kosher frank. And besides, you had
to pay an additional fifty cents for sauerkraut, which Frank said was outrageous. I wished Frank were here with us right this
minute. Frank had a way of explaining law that made him sound like a justice of the Supreme Court. Frank was a comfort to
distraught clients. On the other hand…

“I just think he needs more time,” I said.

“Why?”

“Because this isn’t a decision he can make lightly. He gave us fair warning right up front. Remember what he said?”

“What did he say?”

“He said, ‘The Court does not intend to be rushed into any decision.’ Those were his exact words. He’s aware of how much is
hanging in the balance. For
both
sides.”

“Nothing’s hanging in the balance for Toyland,” Lainie said. “This is just another
product
for them. They’ll put it out in time for Christmas, if it catches on, great, if it doesn’t there’ll be
another
toy next Christmas and
another
one after that. But this is my
future
we’re talking about here. If Gladly makes it…”

“I understand, Lainie. But there’s no reason to…”

“No, I don’t think you…”

“…believe Santos will decide for the Tolands. Really. His caution isn’t unusual. There are factors he still has to consider,
you know…”

“What factors?”

“Well, aside from deciding whether there
was
copying…”

“He doesn’t think there was. He said…”

“I know what he said.”

“He said he had to be certain in his own mind that Gladly really
was
copied.”

“Yes, but I think he knows…”

“How can you know what he…?”

“He dismissed that nonsense about Nettleton copying the eyeglasses, didn’t he?”

“That doesn’t mean he thinks their fucking
bear
was copied from mine.”

“Well, maybe not yet.”

“Maybe not ever.”

“The point is, Lainie, there’s more to this than whether or not there was just copying.”

“Yeah.”

Picking at her fries disconsolately. As far as she was concerned, Santos had already decided, and the case was lost. One eye
on me, the other wandering elsewhere. Dipping a fry in the ketchup on her plate. Fine sheen of perspiration on her tanned
face, the New Yorker’s air-conditioning unit had probably come from Pyongyang, too. Lifting the fry to her lips.

“What he’ll be considering in the next week or so…”

“He said the end of the month.”

“Well, he’s shooting for the twenty-ninth at the very latest. What he’ll be considering is whether we’d be likely to prevail
on the merits should this thing ever come to trial.”

“Is that a possibility?”

“Oh, sure. He may, in fact,
order
a trial.”

“There goes Christmas,” Lainie said.

“No, no. If he goes that route, he’d probably ask for an immediate trial. He knows the importance of Christmas, he’s stated
that several…”

“
How
immediate?
Any
delay would put me out of the running for Christmas. Matthew, you don’t understand how
important
this is to me.”

“I do.”

“No, you
don’t,
” she insisted, and put down her fork, and looked across the table, her right eye focusing for a moment before it wandered
away again. I imagined her as a four-year-old girl enduring her first strabotomy. And then another one a year after that.
The failure of both operations. At their first meeting, she’d told me she had cried night after night after night, wanting
to be like all the other little girls, and knowing she never would. She seemed ready to begin crying again now. “I
know
Gladly is a winner,” she said. “And I know her time is
now.
” Talking about the bear as if it were a real person. “Not next year or the year after that, but
now.
Why do you think Mattell and Ideal are so interested? Because of my good looks?” She was, in fact, quite beautiful. “They
know
Gladly’ll sell in the millions. That bear is my future, Matthew. That bear is my
life.
”

And did begin crying.

I told her that I wasn’t at all convinced Santos had already made his decision. Told her the judge would be considering other
things besides the copying. For example, as I’d started to tell her a moment ago, Santos would be considering whether we were
likely to succeed on the merits should the case eventually go to trial. Considering, too, whether deciding for the Tolands
would cause irreparable harm to Lainie…

“It would only ruin my entire life,” she said, sobbing.

“…or whether money alone could repair your injuries.”

“I wouldn’t take a million dollars…”

“Good, because if you were willing to accept a cash settlement…”

“For Gladly? Never.”

“…there’d be no grounds for enjoining them.”

“I told you
no.
She’s mine.”

Again sounding as if she were talking about a living human being and not a stuffed animal.

“Good,” I said.

“Yeah, good. What’s so good about it?”

She dried her eyes with a paper napkin. She looked across the table at me. Green eyes shining. Trying to focus. Losing the
battle. Right eye wandering. Oddly, I felt like taking her in my arms, comforting her as I would a child.

“Everything’ll be fine,” I said. “Don’t worry. Please.”

She nodded.

On Wednesday morning, the first thing I heard on Channel 8, the local television station, was that Brett Toland had been shot
to death aboard his yacht late last night, and that a former employee named Elaine Commins had been charged with his murder
and taken into custody early this morning.

I
hate the sight of women in jailhouse threads.

Even more so than with men, the clothes seem to rob them of all humanity. Lainie Commins was wearing on this Wednesday morning
a shapeless blue smock with the words
calusa county jail
stenciled over the breast pocket. White gym socks. Laceless black shoes. No lipstick, no eye shadow. They had confiscated
the heart-shaped Victorian ring for safekeeping. Only the eyeglasses were her own. Everything else she had on, right down
to her underwear, belonged to the county. Even her tan seemed to have been confiscated by the authorities; under the harsh,
overhead fluorescent lights, she looked pale and somehow faded. She hadn’t sent for me, but I was here, and she seemed glad
to see me.