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Authors: Gladly the Cross-Eyed Bear

Tags: #Hope; Matthew (Fictitious Character) - Fiction, #Detective and Mystery Stories, #Lawyers, #Mystery & Detective, #Hope; Matthew (Fictitious Character), #Lawyers - Florida - Fiction, #Florida, #Legal, #Fiction, #Legal Stories, #General, #Florida - Fiction

Ed McBain_Matthew Hope 12

BOOK: Ed McBain_Matthew Hope 12
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Copyright © 1996 by Hui Corporation

All rights reserved.

Warner Books, Inc.,

Hachette Book Group

237 Park Avenue, New York, NY 10017

Visit our website at
www.HachetteBookGroup.com
.

First eBook Edition: April 2009

ISBN: 978-0-446-56030-6

Contents

Copyright Page

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

ALSO BY ED McBAIN

The 87th Precinct Novels

Cop Hater

The Mugger

The Pusher
(1956)
The Con Man

Killer’s Choice
(1957)
Killer’s Payoff

Killer’s Wedge

Lady Killer
(1958)
‘Til Death

King’s Ransom
(1959)
Give the Boys a Great Big Hand

The Heckler

See Them Die
(1960)
Lady, Lady, I Did It!
(1961)
The Empty Hours

Like Love
(1962)
Ten Plus One
(1963)
Ax
(1964)
He Who Hesitates

Doll
(1965)
Eighty Million Eyes
(1966)
Fuzz
(1968)
Shotgun
(1969)
Jigsaw
(1970)
Hail, Hail, the Gang’s All Here
(1971)
Sadie When She Died

Let’s Hear It for the Deaf Man
(1972)
Hail to the Chief
(1973)
Bread
(1974)
Blood Relatives
(1975)
So Long as You Both Shall Live
(1976)
Long Time No See
(1977)
Calypso
(1979)
Ghosts
(1980)
Heat
(1981)
Ice
(1983)
Lightning
(1984)
Eight Black Horses
(1985)
Poison

Tricks
(1987)
Lullaby
(1989)
Vespers
(1990)
Windows
(1991)
Kiss
(1992)
Mischief
(1993)
And All Through the House
(1994)
Romance
(1995)

The Matthew Hope Novels

Goldilocks
(1978)
Rumpelstiltskin
(1981)
Beauty and the Beast
(1982)
Jack and the Beanstalk
(1984)
Snow White and Rose Red
(1985)
Cinderella
(1986)
Puss in Boots
(1987)
The House That Jack Built
(1988)
Three Blind Mice
(1990)
Mary, Mary
(1993)
There Was a Little Girl
(1994)

Other Novels

The Sentries
(1965)
Where There’s Smoke

Doors
(1975)
Guns
(1976)
Another Part of the City
(1986)
Downtown
(1991)

AND AS EVAN HUNTER

Novels

The Blackboard Jungle
(1954)
Second Ending
(1956)
Strangers When We Meet
(1958)
A Matter of Conviction
(1959)
Mothers and Daughters
(1961)
Buddwing
(1964)
The Paper Dragon
(1966)
A Horse’s Head
(1967)
Last Summer
(1968)
Sons
(1969)
Nobody Knew They Were There
(1971)
Every Little Crook and Nanny
(1972)
Come Winter
(1973)
Streets of Gold
(1974)
The Chisholms
(1976)
Love, Dad
(1981)
Far From the Sea
(1983)
Lizzie
(1984)
Criminal Conversation
(1994)
Privileged Conversation
(1996)

Short Story Collections

Happy New Year, Herbie
(1963)
The Easter Man
(1972)

Children’s Books

Find the Feathered Serpent
(1952)
The Remarkable Harry
(1959)
The Wonderful Button
(1961)
Me and Mr. Stenner
(1976)

Screenplays

Strangers When We Meet
(1959)
The Birds
(1962)
Fuzz
(1972)
Walk Proud
(1979)

Teleplays

The Chisholms
(1979)
The Legend of Walks Far Woman
(1980)
Dream West
(1986)

This is for
Richard Dannay

1

I
n the state of Florida, it doesn’t matter if it’s day or night as concerns the burglary statutes. You can go in at any hour,
it doesn’t affect the punishment. What matters is if you’re armed or if you assault someone, that’s Burglary One, and they
can put you away for as long as the rest of your natural life. If the structure you enter happens to be a dwelling or if somebody’s
on the premises when you go in, why that’s a Burg Two, and they can lock you up for fifteen years.

Warren was going in during the daytime—if she ever got the hell out of there—and he wasn’t armed, though he did own a license
to carry. The condo was a dwelling, so if he got caught in there he was looking at a max of fifteen because in the state of
Florida, if you stealthily entered any structure or conveyance without consent of the owner or occupant, that was considered
prima facie evidence of entering with intent to commit an offense.

But he had to get in there, anyway.

If only she would hurry up and go about her business.

He turned on the car radio.

I had filed my complaint in Calusa’s federal court for the Middle District of Florida, asking for an order to show cause.
Judge Anthony Santos had signed a temporary restraining order and had set a hearing for the twelfth day of September. A U.S.
marshal had then served papers on Brett and Etta Toland, the owners of Toyland, Toyland, ordering their appearance at the
hearing. It was now nine o’clock on the morning of the twelfth, a blistering hot Tuesday in Calusa, Florida.

The first thing Santos said to me was, “How are you feeling, Matthew?”

I wished people would stop asking me how I was feeling.

Or what it had felt like.

It had felt like all the lights suddenly coming on after a power failure. One moment there was utter darkness below, while
above a raging electrical storm flashed intermittent white tendrils of lightning and boomed ugly blue thunder. I was standing
in a deep black pit slowly filling with oily black water that rose inexorably to my waist, and then my chest, and then my
throat. I was chained to the walls of this fathomless black pit while above lightning crackled and thunder roared and the
fetid black water inched up toward my mouth and then my nostrils. And all at once there was a crashing bolt of lightning and
a shattering thunderclap so close they seemed to be inside the pit itself, shaking its wet stone walls, filling my eyes and
my head with bursting sound and blinding incandescence and…

With a mighty leap, I sprang out of the pit.

That’s what it had felt like for me.

Maybe if you came out of a coma five months ago, it was different for you.

“I’m fine, Your Honor,” I said.

“Are both sides ready?” Santos asked.

“Matthew Hope, representing the plaintiff, Elaine Commins.”

“Sidney Brackett, representing the defendant, Toyland, Toyland.”

Brackett was Calusa’s best man for legal matters pertaining to copyright or trademark, famous for having successfully defended
the landmark Opal Oranges infringement suit. I was Calusa’s best man for all seasons, famous for having got shot twice—once
in the shoulder and once in the chest—last April. I’m fine now. Really. I’m
fine,
goddamn it!

“I’ve reviewed the complaint, the affidavits, and the legal briefs from both sides,” Santos said, “so I think we can do without
any lengthy opening statements. I hope you’ve explained to your respective clients…”

“Yes, Your Honor…”

“Yes, Your…”

“…that the purpose of this hearing is to determine whether Toyland, Toyland—hereinafter referred to as Toyland—should be enjoined
on a preliminary basis from further production, distribution or sale of a teddy bear they call Gladys the Cross-Eyed Bear,
for which Ms. Commins is claiming copyright, trademark, and trade dress infringement. It is your burden, Ms. Commins, to prove
ownership of a valid copyright and trademark for the bear you call
Gladly,
and—as to Count I—to further prove unlawful copying of protected components. As for Counts II and III, it is your burden
to prove infringement of the trademark and trade dress. Does everyone understand this?”

“Yes, Your Honor, this was all explained to my client.”

“My clients as well, Your Honor.”

“As I’m sure counsel has further explained,” Santos said, “
ideas
cannot be copyrighted. Protection is afforded only to the
expression
of ideas. For example, it’s not enough to show that both plaintiff and defendant used the
idea
of a cross-eyed bear whose vision is corrected by eyeglasses. In order to prove copyright infringement, it must be shown
that the
expression
of this idea was copied. The essence of copyright infringement lies not in the defendant’s taking of the general idea or
theme of the plaintiff’s work, but in the taking of the particular
manner
in which the plaintiff has expressed those ideas in the copyrighted work.

“Similarly, in order to prove trademark and trade dress infringement, it must be shown that a similar use of names and design
features would be likely to cause confusion in the marketplace. The design features of a product may be given trade dress
protection, but only if they are inherently distinctive or have achieved secondary meaning in the marketplace. Is all of that
clearly understood?”

“Yes, Your Honor.”

“Yes, Your Honor.”

“Has it also been explained that a
permanent
injunction cannot be granted until after a trial on the merits?”

“Yes, Your Honor.”

“Yes, Your…”

“Before we proceed, then, I should mention that the Court fully recognizes the exigencies of the case, Christmas being right
around the corner, so to speak, in terms of getting one of these bears into the stores, whichever party may prevail. At the
same time, and exactly
because
of the very real and pressing commercial considerations for both sides, the Court does not intend to be rushed into any decision.”

On the other side of the courtroom, seated at the defense table with his clients, Sidney Brackett sat stone-faced. Or bored.
Or both. A squat chubby little man who bore an unfortunate resemblance to Newt Gingrich, he sat flanked by two of the more
attractive people on this planet, Mr. and Mrs. Brett Toland, accused teddy-bear thieves.

“I should also mention that the rules of procedure in a hearing are identical to those in a trial,” Santos said. “There is
no jury, but everything else is the same. The plaintiff presents
his
…”

I was thinking that everyone in the world already
knew
all this, at least insofar as it bore similarities to
criminal
law. Everyone in the world had watched the Simpson trial for the past twenty-two years, six months, three weeks and twelve
days and knew all this procedure stuff even better than I myself did. I was thinking it was too bad there wasn’t a jury here
because then ordinary citizens who weren’t lawyers could catch any mistakes I made, and maybe write to tell me all about what
a lousy lawyer I was, I just
loved
getting “Gotcha!” mail. When I woke up at Good Samaritan Hospital, in fact, I’d found a pile of letters from strangers who
felt I was somehow responsible for having got myself shot, and somehow derelict in not coming out of the coma soon enough
to suit them. Actually, I’d have enjoyed popping off that table in ten minutes flat, but medical problems prevented me from
doing so. Better yet, I would have preferred not having the medical problems to begin with. Even better, I would have preferred
not getting shot at all.
You
try getting shot sometime, and I’ll write
you
a letter when you refuse to come out of a goddamn coma.

Then again, people keep telling me I seem a bit crotchety since I woke up.

“…a
direct
examination of each witness,” Santos was saying, “followed by the defense’s
cross
-examination. The plaintiff is then allowed a
re
direct, and the defense a
re
-cross. After the plaintiff has rested its case, the defense then calls
its
witnesses, and the same rules of questioning and requestioning apply. If there are any questions from either of the contesting
parties, please let me hear them now. I want everyone to understand exactly what’s about to transpire.”

BOOK: Ed McBain_Matthew Hope 12
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