Chapter 19


"Good. Then I think we can wrap this case up in the next two hours."
Alan pulled into the parking lot and parked the car. They all got out.
"All right," Fernandez said. "Let's see where we are with her significant others. Alan. We've still got her previous employer-"
"Conrad Computer. Right. We're on it.
"And also the one before that."
"Yes. And we have her husband-"
"I've got a call into CoStar for him."
"And the Internet business? `Afriend'?"
"Working on it."
"And we have her B-school, and Vassar."
"Recent history is the most important. Focus on Conrad and the husband."
"Okay," Alan said. "Conrad's a problem, because they supply systems to the government and the CIA. They gave me some song and dance about neutral reference policy and nondisclosure of prior employees."
"Then get Harry to call them. He's good on negligent referral. He can shake them up if they continue to stonewall."
"Okay. He may have to."
Alan got back in the car. Fernandez and Sanders started walking up to the mediation center. Sanders said, "You're checking her past companies?"
"Yes. Other companies don't like to give damaging information on prior employees. For years, they would never give anything at all except the dates of employment. But now there's something called compelled self-publication, and something called negligent referral. A company can be liable now for failing to reveal a problem with a past employee. So we can try to scare them. But in the end, they may not give us the damaging information we want."
"How do you know they have damaging information to give?"
Fernandez smiled. "Because Johnson is a harasser. And with harassers, there's always a pattern. It's never the first time."
"You think she's done this before?"
"Don't sound so disappointed," Fernandez said. "What did you think? That she did all this because she thought you were so cute? I guarantee you she has done it before." They walked past the fountains in the courtyard toward the door to the center building. "And now," Fernandez said, "let's go cut Ms. Johnson to shreds."
Precisely at one-thirty, judge Murphy entered the mediation room. She looked at the seven silent people sitting around the table and frowned. "Has opposing counsel met?"
"We have," Heller said.
"With what result?" Murphy said.
"We have failed to reach a settlement," Heller said.
"Very well. Let's resume." She sat down and opened her notepad. "Is there further discussion relating to the morning session?"
"Yes, Your Honor," Fernandez said. "I have some additional questions for Ms. Johnson."
"Very well. Ms. Johnson?"
Meredith Johnson put on her glasses. "Actually, Your Honor, I would like to make a statement first."
"All right."
"I've been thinking about the morning session," Johnson said, speaking slowly and deliberately, "and Mr. Sanders's account of the events of Monday night. And I've begun to feel that there may be a genuine misunderstanding here."
"I see." Judge Murphy spoke absolutely without inflection. She stared at Meredith. "All right."
"When Tom first suggested a meeting at the end of the day, and when he suggested that we have some wine, and talk over old times, I'm afraid I may have unconsciously responded to him in a way that he might not have intended."
Judge Murphy didn't move. Nobody was moving. The room was completely still.
"I believe it is correct to say that I took him at his word, and began to imagine a, uh, romantic interlude. And to be frank, I was not opposed to that possibility. Mr. Sanders and I had a very special relationship some years ago, and I remembered it as a very exciting relationship. So I believe it is fair to say that I was looking forward to our meeting, and that perhaps I presumed that it would lead to an encounter. Which I was, unconsciously, quite willing to have occur."
Alongside Meredith, Heller and Blackburn sat completely stonefaced, showing no reaction at all. The two female attorneys showed no reaction. This had all been worked out in advance, Sanders realized. What was going on? Why was she changing her story?
Johnson cleared her throat, then continued in the same deliberate way. "I believe it is correct to say that I was a willing participant in all the events of the evening. And it may be that I was too forward, at one point, for Mr. Sanders's taste. In the heat of the moment, I may have overstepped the bounds of propriety and my position in the company. I think that's possible. After serious reflection, I find myself concluding that my own recollection of events and Mr. Sanders's recollection of events are in much closer agreement than I had earlier recognized."
There was a long silence. Judge Murphy said nothing. Meredith Johnson shifted in her chair, took her glasses off, then put them back on again.
"Ms. Johnson," Murphy said finally, "do I understand you to say that you are now agreeing to Mr. Sanders's version of the events on Monday night?"
"In many respects, yes. Perhaps in most respects."
Sanders suddenly realized what had happened: they knew about the tape.
But how could they know? Sanders himself had learned of it only two hours ago. And Levin had been out of his office, having lunch with them. So Levin couldn't have told them. How could they know?
"And, Ms. Johnson," Murphy said, "are you also agreeing to the charge of harassment by Mr. Sanders?"
"Not at all, Your Honor. No."
"Then I'm not sure I understand. You've changed your story. You say you now agree that Mr. Sanders's version of the events is correct in most respects. But you do not agree that he has a claim against you?"
"No, Your Honor. As I said, I think it was all a misunderstanding."
"A misunderstanding," Murphy repeated, with an incredulous look on her face.
"Yes, Your Honor. And one in which Mr. Sanders played a very active role."
"Ms, . Johnson. According to Mr. Sanders, you initiated kissing over his protests; you pushed him down on the couch over his protests; you unzipped his trousers and removed his penis over his protests; and you removed your own clothing over his protests. Since Mr. Sanders is your employee, and dependent on you for employment, it is difficult for me to comprehend why this is not a clear-cut and indisputable case of sexual harassment on your part."
"I understand, Your Honor," Meredith Johnson said calmly. "And I realize I have changed my story. But the reason I say it is a misunderstanding is that from the beginning, I genuinely believed that Mr. Sanders was seeking a sexual encounter with me, and that belief guided my actions."
"You do not agree that you harassed him."
"No, Your Honor. Because I thought I had clear physical indications that Mr. Sanders was a willing participant. At times he certainly took the lead. So now, I have to ask myself why he would take the lead-and then so suddenly withdraw. I don't know why he did that. But I believe he shares responsibility for what happened. That is why I feel that, at the very least, we had a genuine misunderstanding. And I want to say that I am sorry truly, deeply sorry-for my part in this misunderstanding."
"You're sorry." Murphy looked around the room in exasperation. "Can anyone explain to me what is going on? Mr. Heller?"
Heller spread his hands. "Your Honor, my client told me what she intended to do here. I consider it a very brave act. She is a true seeker after truth."
"Oh, spare me," Fernandez said.
Judge Murphy said, "Ms. Fernandez, considering this radically different statement from Ms. Johnson, would you like a recess before you proceed with your questions?"
"No, Your Honor. I am prepared to go forward now," Fernandez said.
"I see," Murphy said, puzzled. "All right. Fine." Judge Murphy clearly felt that there was something everyone else in the room knew that she didn't.
Sanders was still wondering how Meredith knew about the tape. He looked over at Phil Blackburn, who sat at one end of the table, his cellular phone before him. He was rubbing the phone nervously.
Phone records, Sanders thought. That must be it.
DigiCom would have had somebody-most probably Gary Bosak-going through all of Sanders's records, looking for things to use against him. Bosak would have checked all the calls made on Sanders's cellular phone. When he did that, he would have discovered a call that lasted forty-five minutes on Monday night. It would stand out: a whopping big duration and charge. And Bosak must have looked at the time of the call and figured out what had happened. He'd realize that Sanders hadn't been talking on the phone during that particular forty-five minutes on Monday night. Therefore, there could only be one explanation. The call was running to an answering machine, which meant there was a tape. And Johnson knew it, and had adjusted her story accordingly. That was what had made her change.
"Ms. Johnson," Fernandez said. "Let's clear up a few factual points first. Are you now saying that you did send your assistant to buy wine and condoms, that you did tell her to lock the door, and that you did cancel your seven o'clock appointment in anticipation of a sexual encounter with Mr. Sanders?"
"Yes, I did."
"In other words, you lied earlier."
"I presented my point of view."
"But we are not talking about a point of view. We are talking about facts. And given this set of facts, I'm curious to know why you feel that Mr. Sanders shares responsibility for what happened in that room Monday night."
"Because I felt . . . I felt that Mr. Sanders had come to my office with the clear intention of having sex with me, and he later denied any such intention. I felt he had set me up. He led me on, and then accused me, when I had done nothing more than simply respond to him."
"You feel he set you up?"
"And that's why you feel he shares responsibility?"
"In what way did he set you up?"
"Well, I think it's obvious. Things had gone very far along, when he suddenly got off the couch and said he was not going to proceed. I'd say that was a setup."
"Because you can't go so far and then just stop. That's obviously ahostile act, intended to embarrass and humiliate me. I mean . . . anyone can see that."
"All right. Let's review that particular moment in detail," Fernandez said. "As I understand it, we're talking about the time when you were on the couch with Mr. Sanders, with both of you in a state of partial undress. Mr. Sanders was crouched on his knees on the couch, his penis was exposed, and you were lying on your back with your panties removed and your legs spread, is that correct?"
"Basically. Yes." She shook her head. "You make it sound so . . . crude."
"But that was the situation at that moment, was it not?"
"Yes. It was."
"Now, at that moment, did you say, `No, no, please,' and did Mr. Sanders reply, `You're right, we shouldn't be doing this,' and then get off the couch?"
"Yes," she said. "That's what he said."
"Then what was the misunderstanding?"
"When I said, `No, no,' I meant, `No, don't wait.' Because he was waiting, sort of teasing me, and I wanted him to go ahead. Instead, he got off the couch, which made me very angry."
"Because I wanted him to do it."
"But Ms. Johnson, you said, `No, no.'"
"I know what I said," she replied irritably, "but in that situation, it's perfectly clear what I was really saying to him."
"Is it?"
"Of course. He knew exactly what I was saying to him, but he chose to ignore it."
"Ms. Johnson, have you ever heard the phrase, `No means no'?"
"Of course, but in this situation-"
"I'm sorry, Ms. Johnson. Does no mean no, or not?"
"Not in this case. Because at that time, lying on that couch, it was absolutely clear what I was really saying to him."
"You mean it was clear to you."
Johnson became openly angry. "It was clear to him, too," she snapped.
"Ms. Johnson. When men are told that `no means no,' what does that mean?"
"I don't know." She threw up her hands in irritation. "I don't know what you're trying to say."
"I'm trying to say that men are being told that they must take women at their literal word. That no means no. That men cannot assume that no means maybe or yes."
"But in this particular situation, with all our clothes off, when things had gone so far-"
"What does that have to do with it?" Fernandez said.
"Oh, come off it,"Johnson said. "When people are getting together, they begin with little touches, then little kisses, then a little petting, then some more petting. Then the clothes come off, and you're touching various private parts, and so on. And pretty soon you have an expectation about what's going to happen. And you don't turn back. To turn back is a hostile act. That's what he did. He set me up."
"Ms. Johnson. Isn't it true that women claim the right to turn back at any point, up to the moment of actual penetration? Don't women claim the unequivocal right to change their minds?"
"Yes, but in this instance"
"Ms. Johnson. If women have the right to change their minds, don't men as well? Can't Mr. Sanders change his mind?"
"It was a hostile act." Her face had a fixed, stubborn look. "He set me up."
"I'm asking whether Mr, Sanders has the same rights as a woman in this situation. Whether he has the right to withdraw, even at the last moment."
"Because men are different."
"How are they different?"
"Oh, for Christ's sake," Johnson said angrily. "What are we talking about here? This is Alice in Wonderland. Men and women are different. Everybody knows that. Men can't control their impulses."
"Apparently Mr. Sanders could."
"Yes. As a hostile act. Out of his desire to humiliate me."
"But what Mr. Sanders actually said at the time was, `I don't feel good about this.' Isn't that true?"
"I don't remember his exact words. But his behavior was very hostile and degrading toward me as a woman."
"Let's consider," Fernandez said, "who was hostile and degrading toward whom. Didn't Mr. Sanders protest the way things were going earlier in the evening?"
"Not really. No."
"I thought he had." Fernandez looked at her notes. "Early on, did you say to Mr. Sanders, `You look good' and `You always had a nice hard tush'?"
"I don't know. I might have. I don't remember."
"And what did he reply?"
"I don't remember."
Fernandez said, "Now, when Mr. Sanders was talking on the phone, did you come up, push it out of his hand, and say, `Forget that phone'?"
"I might have. I don't really remember."
"And did you initiate kissing at that point?"
"I'm not really sure. I don't think so."
"Well, let's see. How else could it have occurred? Mr. Sanders was talking on his cellular phone, over by the window. You were on another phone at your desk. Did he interrupt his call, set down his phone, come over, and start kissing you?"
She paused for a moment. "No."
"Then who initiated the kissing?"
"I guess I did."
"And when he protested and said, `Meredith,' did you ignore him, press on, and say, `God, I've wanted you all day. I'm so hot, I haven't had a decent fuck'?" Fernandez repeated these statements in a flat uninflected monotone, as if reading from a transcript.
"I may have . . . I think that might be accurate. Yes."
Fernandez looked again at her notes. "And then, when he said, `Meredith, wait,' again clearly speaking in a tone of protest, did you say, `Oh, don't talk, no, no, oh Jesus'?"
"I think . . . possibly I did."
"On reflection, would you say these comments by Mr. Sanders were protests that you ignored?"
"If they were, they were not very clear protests. No."
"Ms. Johnson. Would you characterize Mr. Sanders as fully enthusiastic throughout the encounter?"
Johnson hesitated a moment. Sanders could almost see her thinking, trying to decide how much the tape would reveal. Finally she said, "He was enthusiastic sometimes, not so much at other times. That's my point."
"Would you say he was ambivalent?"
"Possibly. Somewhat."
"Is that a yes or a no, Ms. Johnson?" Yes.
"All right. So Mr. Sanders was ambivalent throughout the session. He's told us why: because he was being asked to embark on an office affair with an old girlfriend who was now his boss. And because he was now married. Would you consider those valid reasons for ambivalence?"
"I suppose so."
"And in this state of ambivalence, Mr. Sanders was overwhelmed at the last moment with the feeling that he didn't want to go forward. And he told you how he felt, simply and directly. So, why would you characterize that as a `setup'? I think we have ample evidence that it is just the opposite an uncalculated, rather desperate human response to a situation which you entirely controlled. This was not a reunion of old lovers, Ms. Johnson, though you prefer to think it was. This was not a meeting of equals at all. The fact is, you are his superior and you controlled every aspect of the meeting. You arranged the time, bought the wine, bought the condoms, locked the door-and then you blamed your employee when he failed to please you. That is how you continue to behave now."
"And you're trying to put his behavior in a good light,"  Johnson said. "But what I'm saying is that as a practical matter, waiting to the last minute to stop makes people very angry."
"Yes," Fernandez said. "That's how many men feel, when women withdraw at the last minute. But women say a man has no right to be angry, because a woman can withdraw at any time. Isn't that true?"
Johnson rapped her fingers on the table irritably. "Look," she said. "You're trying to make some kind of federal case here, by trying to obscure basic facts. What did I do that was so wrong? I made him an offer, that's all. If Mr. Sanders wasn't interested, all he had to do was say, `No.' But he never said that. Not once. Because he intended to set me up. He's angry he didn't get the job and he's retaliating the only way he can-by smearing me. This is nothing but guerrilla warfare and character assassination. I'm a successful woman in business, and he resents my success and he's out to get me. You're saying all kinds of things to avoid that central and unavoidable fact."
"Ms. Johnson. The central and unavoidable fact is that you're Mr. Sanders's superior. And your behavior toward him was illegal. And it is in fact a federal case."
There was a short silence.
Blackburn's assistant came into the room and handed him a note. Blackburn read the note and passed it to Heller.
Murphy said, "Ms. Fernandez? Are you ready to explain what's going on to me now?"
"Yes, Your Honor. It turns out there is an audio tape of the meeting."
"Really? Have you heard it?"
"I have, Your Honor. It confirms Mr. Sanders's story."
"Are you aware of this tape, Ms. Johnson?"
"No, I am not."
"Perhaps Ms. Johnson and her attorney would like to hear it, too. Perhaps we should all hear it," Murphy said, looking directly at Blackburn.
Heller put the note in his pocket and said, "Your Honor, I'd like to request a ten-minute recess."
"Very well, Mr. Heller. I'd say this development warrants it."
Outside in the courtyard, black clouds hung low. It was threatening to rain again. Over by the fountains, Johnson huddled with Heller and Blackburn. Fernandez watched them. "I just don't understand this," she said. "There they all are, talking again. What is there to talk about? Their client lied, and then changed her story. There's no question that Johnson's guilty of sexual harassment. We have it recorded on tape. So what are they talking about?"
Fernandez stared for a moment, frowning. "You know, I have to admit it. Johnson's a hell of a smart woman," she said.
"Yes," Sanders said.
"She's quick and she's cool."
"Moved up the corporate ladder fast."
"So . . . how'd she let herself get into this situation?"
"What do you mean?" Sanders said.
"I mean, what's she doing coming on to you the very first day at work? And coming on so strongly? Leaving herself open to all these problems? She's too smart for that."
Sanders shrugged.
"You think it's just because you're irresistible?" Fernandez said. "With all due respect, I doubt it."
He found himself thinking of the time he first knew Meredith, when she was doing demos, and the way she used to cross her legs whenever she was asked a question she couldn't answer. "She could always use sex to distract people. She's good at that."
"I believe it," Fernandez said. "So what is she distracting us from now?"
Sanders had no answer. But his instinct was that something else was going on. "Who knows how people really are in private?" he said. "I once knew this woman, she looked like an angel, but she liked bikers to beat her up."
"Uh-huh," Fernandez said. "That's fine. I'm not buying it for Johnson. Because Johnson strikes me as very controlled, and her behavior with you was not controlled."
"You said it yourself, there's a pattern."
"Yeah. Maybe. But why the first day? Why right away? I think she had another reason."
Sanders said, "And what about me? Do you think I had another reason?"
"I assume you did," she said, looking at him seriously. "But we'll talk about that later."
Alan came up from the parking lot, shaking his head.
"What've you got?" Fernandez said.
"Nothing good. We're striking out everywhere," he said. He flipped open his notepad. "Okay. Now, we've checked out that Internet address. The message originated in the `U District.' And `Afriend' turns out to be Dr. Arthur A. Friend. He's a professor of inorganic chemistry at the University of Washington. That name mean anything to you?"
"No," Sanders said.
"I'm not surprised. At the moment, Professor Friend is in northern Nepal on a consulting job for the Nepalese government. He's been there for three weeks. He's not expected back until late July. So it probably isn't him sending the messages anyway."
"Somebody's using his Internet address?"
"His assistant says that's impossible. His office is locked while he's away, and nobody goes in there except her. So nobody has access to his computer terminal. The assistant says she goes in once a day and answers Dr. Friend's e-mail, but otherwise the computer is off. And nobody knows the password but her. So I don't know."
"It's a message coming out of a locked office?" Sanders said, frowning.
"I don't know. We're still working on it. But for the moment, it's a mystery."
"All right, fine," Fernandez said. "What about Conrad Computer?"
"Conrad has taken a very hard position. They will only release information to the hiring company, meaning DigiCom. Nothing to us. And they say that the hiring company has not requested it. When we pushed, Conrad called DigiCom themselves, and DigiCom told them they weren't interested in any information Conrad might have."
"Next, the husband," Alan said. "I talked to someone who worked in his company, CoStar. Says the husband hates her, has lots of bad things to say about her. But he's in Mexico on vacation with his new girlfriend until next week."
"Too bad."
"Novell," Alan said. "They keep only the last five years current. Prior to that, records are in cold storage at headquarters in Utah. They have no idea what they'll show, but they're willing to get them out if we'll pay for it. It'll take two weeks."
Fernandez shook her head. "Not good."
"I have a strong feeling that Conrad Computer is sitting on something," Fernandez said.
"Maybe, but we'll have to sue to get it. And there's no time." Alan looked across the courtyard at the others. "What's happening now?"
"Nothing. They're hanging tough."