MY STOMACH WAS TOO NERVOUS TO EAT ANYTHING, even a sandwich. Moorman was true to his word. He denied every motion Jordyn or I made. He knew a jury’s verdict was hard to overturn on appeal, while granting motions was a sure way for a judge to get reversed. I had a few minutes to myself after chambers, and I spent every one of them second-guessing my own decisions, primarily not calling David to the stand and not asking Rita to authenticate the scorecard.
The only bit of humor during the break came when Duke suggested he and Jordyn go out for drinks after the verdict. He told her she was “one fine looking filly,” to which Jordyn turned crimson and told Duke where he could go. I thought he was lucky to get off so lightly. Duke didn’t bat an eye.
Jordyn was obnoxious and as cold as ice most of the time, but she was masterful in front of the jury. She pointed out that Dr. Thomas had said the two softwares were identical and that David alone could not have created such software. It was too complex for one person to design, and I had failed to call an expert on my own to rebut his testimony. She said that my baseball scorecard could just as easily been created after the fact, and no one had established its authenticity.
She carefully avoided referencing David’s failure to testify, but she used his criminal indictment to label him a criminal and liar for filing for intellectual protection claiming the software was his idea. Finally, she tried to turn the software’s failure to work against David. Its failure to work proved that it could only have been developed by a team of software engineers.
“Ladies and gentlemen of the jury, the judge has instructed you not to set aside your common sense and beliefs in rendering your verdict. I ask the same. Ms. Duarte would have you believe that my client, acting alone, was able to hack into the research being done on a collaborative basis by twenty of the largest computer companies in this country, without their knowledge, and that they only discovered the hacking and theft when Mr. Ruple filed for intellectual property protection. Do you believe that?
“She doesn’t deny that the handwriting on the baseball scorecard and my client’s application for a patent are the same, but she would have you believe he created the scorecard after the fact. Do you really believe those mustard and ketchup stains weren’t acquired at a ballpark? Do you believe that my client saved that scorecard, stains and all, way back in October to create a duplicate of a software that Ms. Duarte claims didn’t even exist until the following May?
“She would have you believe that the U.S. government and the Department of Justice didn’t do their homework before they indicted my client. She wants you to believe that the Department of Justice and her very own co-counsel are completely wrong in believing my client designed the software in question. David sits in jail without a computer or access to his lawyer because our government believes he is a national security risk—not the clients she would have you believe invented the software.
“Let me ask you this. If her clients designed the software in question, why doesn’t it work? Software engineers for twenty-some companies are working night and day trying to come up with “what is missing”—the specific words used by their expert. If they designed it, shouldn’t they know what’s missing? Do you really believe that the twenty largest computer companies in the United States, who compete daily, all got together to design a software that would put them out of business? Such a scenario is surely ludicrous.
“These companies are at each other’s throats every single day, but Ms. Duarte would have you believe that these companies joined hands around the campfire to create the one invention which would shut them all down. If that’s the case, where is the document that memorializes this ‘collaboration?’ Again, that’s not my word, but that of their expert. The lack of documentary proof that this collaboration exists speaks loudly don’t you think?
“Let me ask you one final question. If the software doesn’t work, what are we talking about? Why have the plaintiffs wasted both your and the court’s time. My client’s doodles on a scorecard are nothing more than an idea, apparently. One of you may think of a way to cure cancer, or harness artificial intelligence, or a way to create energy out of sand, but those are only ideas unless and until they work. Until they are designed, built, tested, and work they are only ideas, possibilities—not intellectual property.
“This case is not about who designed what. I believe we have pretty much established that both the original idea and design of this software are my client’s and his alone. This case is about an idea that would force the plaintiffs to do business in an entirely different manner. An idea that is more than just frightening to them. It is unacceptable to them because they could no longer share your personal information among each other. If you want to buy a pair of shoes on the internet, that fact would remain between you and the shoe company. If David’s software were to work and become available, you would have a means of protecting your privacy to whatever extent you think is best. That outcome won’t happen if the plaintiffs get their way today.
“Ms. Duarte asks you to let her clients continue to prey on your privacy. Her clients want you to give them my client’s idea, an idea unique to David which only he can bring to completion, which they will quietly lock away, along with David, unknown to almost anyone and never to see the light of day. Ask yourself which makes more sense—her twenty clients conspired among themselves to design a product that puts them out of business. Or did my client have a brilliant idea that could protect your privacy?
“Her clients will stop at nothing to keep David’s idea from becoming known to the public at large. ‘Stopping at nothing’ includes claiming they designed the software and conspiring with the Justice Department to have my client locked away in the name of national security. Ask yourself this: if her clients designed the software, why hasn’t Ms. Duarte called even one of the many engineers working ‘night and day’ to fix its missing code to testify in this trial. Surely, she should be able to produce at least one of them who could show you his notes, his scribbles, samples of his programming efforts, or a draft of the software. You’ve seen my client’s mustard-stained scorecard, his hand-written notes, and his handwritten filing with the patent office. Where is a single scribble from the engineers who work for those companies?
“The judge has instructed you that it is not my client’s obligation to prove that he designed the software. It is rather the plaintiffs’ burden, by a preponderance of the evidence to prove that they did. But not one of the plaintiffs has given any corroborating evidence; they’ve only given their word and asked you to believe them. Ask yourself—what sort of software is so complicated that Dr. Thomas refers to it as brilliant, that exists without one single note or draft? Ms. Duarte has made a big deal about authenticating the scorecard. But the question you should ask is ‘where is your proof, Ms. Duarte? Where is your scorecard?’
“If her clients own the software, why haven’t they produced the team or even a single person who can say ‘Look what we did! This was my idea!’ If you had been that person or part of that team, wouldn’t you have wanted some credit? Maybe even a raise? Where is the person who says these are my notes? Where is the person who says she knows what’s missing?”
Judge Moorman spoke up, “Your time is about up, Mr. Patterson.”
“Thank you, Your Honor. Ladies and gentlemen, it would be easy to say this case is only about who designed a piece of software. But to use Mr. Madigan’s comparison, it’s really a David and Goliath story. It’s about corporate America trying to stifle the idea of a single person. My client’s idea upsets their apple cart. It’s not good for their business. Its success would require them to change, to think differently about how their business model affects individual citizens, how it affects you.
“Progress begins with an idea. Don’t let the plaintiffs halt progress.”