Arbortext Royalty Fraud #18: The Fat Finger Fizzles

Chapter Eighteen

The Fat Finger Fizzles

 

Kevin Dwan had been a busy boy. Manufacturing false evidence to make it look like he was part of Blueberry’s programming team. I didn’t see how this had anything to do with who owned the copyrights, but my attorney Bill Hansen was worried about it.

“We have to address it,” he said.

“The whole damn thing?” I asked.

It was a list of all of our source code files. Pages and pages worth. Next to each file on this list, Dwan had assigned the name of the programmer responsible for writing the code in that particular file.

If we hadn’t been in court, I would have had to grab a seat and laugh myself to death. Dwan didn’t know which file went with which program and didn’t have one clue at all who had written any of them. Him putting together this list was akin to a blind man watching television with the sound off.

There were two things about the list that were noteworthy. One was how few times my name was assigned as the author. The other was not only how many times Dwan’s name was assigned, but that it was assigned at all. In addition to giving himself credit for other people’s work, which was merely reprehensible, he had inserted into the list a bunch of DOS batch file scripts which were in no way any part of our source code. That he would proudly take credit for creating a BAT file, something any routinely competent secretary could accomplish in the old DOS, pre-Windows era, was either an indication of his ignorance or of his desperation.

When Hansen brought this list up in court and asked me about its accuracy, I said, in so many words, it was total horseshit. The judge encouraged me to expand on this horseshitness by going through the list and correcting it. The whole thing? The whole thing.

And so I did. File by file, while around the world six wars ended and twelve more began. In the end, Dwan’s strategy probably backfired because it was clear that I knew unhesitatingly who had written each and every file on the list. This is not to toot my own horn. Anybody who had created a program would know all its parts and who was involved. Not rocket science. And Dwan’s name was not one of the assignees of even one source code file. Ergo, he was a liar and a thief. Can we go home now, Judge? No.

Mary was called to the witness stand after me and it became clear on cross-examination that Bernheim had decided she was the one he could rattle into some sort of mistake or other. Not a good choice, Bernie. You should have asked me first. I would have strongly advised against it.

Bernheim’s chief weapon of intimidation was a very fat index finger. A little sweaty looking, too, it seemed to me. Waved in extremely close proximity to the witness, where it could be buttressed additionally by halitosis. When he attempted this maneuver with Mary, she leaned back away from him  and said, in her diplomatic way, “Will you please get your finger out of my face? And back off a bit. You’re too close.”

Bernheim stumbled back, a bit nonplused, and apologized, as though he hadn’t noticed his more than ample body wedged up against the witness rail, squoozing some of his ampleness above and below said restraining fixture. He then tried to hammer at her as to whether she was concerned about my behavior toward Arbortext, such as my infamous brain-dead email to Jim Sterken (which Bernheim brought up with Mary and not with me), and that it might jeopardize our contractual relationship with them. Apparently, he expected her to admit that her husband was indeed a maniac and she had failed to curtail me.

“Not particularly,” she said instead. “Why should I? It wasn’t my job. There were three lawyers worrying about it already. One of which was you.”

Eventually, Bernheim broke off his interrogation and quit. I would say slunk off in mid-sentence, but this might convey the impression that I was coloring the hue of the facts. His failed cross-examination was a classic reminder of why lawyers depose people before they actually testify. He had chosen not to depose Mary, assuming she would be a pushover, and had walked into a hornet’s nest and been stung.

Next up was my brother Jim, who had flown all the way from Ohio to give testimony on who was who and what was what regarding the Blueberry source code. Jim and I are quite dissimilar. He’s relentlessly rational and I tend toward mildly constrained insanity. I also was not a gifted programmer, while Jim was Blueberry’s bona fide, whiz-bang, mathematical brainiac. My code writing was sufficient. His was a work of art. I used Math 101. He used Calculus. Also, he was a pleasant, respectful, kind and decent human being. Like I said, we were quite dissimilar.

Needless to say, Jim’s testimony went pretty much unchallenged by Bernheim. When asked to describe my role at Blueberry, Jim resorted to this kind and decent streak by pointing out that Blueberry was not big on Titles. But if it were a REAL company, my title would probably be Vice President or Director of Engineering. Not being familiar with entitlement, I was unsure whether Jim was slipping in a funny or simply telling the truth.

And that was it for the Good and Noble Side. Next up, the Bad and Despicable Side. Starting off with good old Kevin Dwan. An appropriate place to start, in my view.

As I mentioned earlier, Dwan  was renowned for his extensive vocabulary and ability to pontificate learnedly on virtually any subject in the known universe. I forgot to mention that sports was excluded from his knowledge system. He was a lifelong dork. He couldn’t tell a catcher’s mitt from a soccer ball. Dork deluxe, is what I’m saying. When the subject of sports came up, he would masterfully change the topic to psychology. The type of guy you’d definitely want on your debating team. I had once seen him talk an ant into an afternoon nap. On a hammock! I kid you not. Very scary.

But here in D. Lowell’s joint, that fellow was only half there. When questioned by his own attorney, Dwan was his usual effusive, assured self. But when questioned by my attorney, he repeated almost exactly the catatonic show he had put on during his deposition.

He parked himself rigidly on the witness chair and locked his head downward and to the right into the bottom corner of the witness booth, never looking up and at my attorney. When asked a question, of any kind, he would mutely chew on one end of his wispy mustache and stare silently into this corner, his jaws muscles visibly flexing with tension and anxiety. For ungodly long moments. Dead quiet in the courtroom moments, court steno with her hands poised forever over her key pad, a cough sounding like a clap of thunder in the stillness. Eventually, my attorney would ask politely if there was anyone home in Dwanville. At which point, Dwan would snap out of his trance and stutter out that he didn’t understand the question or ask that it be repeated.

At one point, Dwan said he didn’t know how to reply and my attorney, in a throe of frustration, blurted out, “You could try just telling the truth.”

Whoops. Sternly remanded by the Judge. Sorry, your Honor.

I don’t know what the Judge was thinking about Dwan’s performance, since he rarely lifted his head to make eye contact with anyone in the courtroom. I will not suggest that perhaps he was nodding off here and there, but it certainly would have been possible and no one would have been the wiser. It seemed to me that Dwan’s catatonic fear of testifying about anything at all could not have made it clearer that he felt guilty, was guilty, and should just admit it and be sent to San Quentin for the rest of his life. Fair is fair.

As for the next Bad People witness, that would be Dwan’s wife Rebecca.

We have not mentioned her yet. The Star Witness. The Case Breaker. The Rose Mary Woods of Beigel vs. Dwan. The tape machine strikes again.

 

To be continued . . .