The Last Trial Page 15

  15. His Mother’s Son

  By now, with many fewer photographers assigned to cover the daily trial sessions, Kiril has started driving himself and Donatella to court, parking at the Hotel Gresham a couple of blocks away. As Stern and the Pafkos are moving slowly down the courthouse’s central staircase, beside the alabaster panels, Kiril phones the valet there. The young man has the Pafkos’ car at the curb when the three elderly people arrive. It is not Kiril’s Maserati, but his old Cadillac. Over the years, Pafko bought several cars from the same dealer as Stern, a former client to whom Sandy referred Kiril. The gray CTS is Donatella’s now.

  “Where is the Italian masterpiece?” Stern asks about the Maserati, and Donatella responds.

  “Kiril now has two cars,” she says. “His is in the shop so often that he takes mine three days a week.” This is a relatively lighthearted jab. At her age, Donatella probably doesn’t drive much more often than Stern these days, and Kiril concedes that the Maserati is gorgeous but so delicate, it sometimes feels the car is allergic to pavement.

  They are at the University Club in minutes. The look inside is medieval, furnishings fit for King Arthur, ponderous pieces of carved oak and red leather that complement the oak wainscoting. The gothic dining room towers nearly three stories above, with flying buttresses and stained-glass panels between them.

  Once they are seated, Donatella chats amiably, describing a cello recital Kiril and she attended last night starring fourteen-year-old Steffi, Lep’s oldest child. Greta, Lep’s wife, is a German chemist whom he met when they were in grad school, but she is also an accomplished musician. As Donatella speaks, Stern is struck again by her impressive combination of will and grace. She is always dressed magnificently, today in a soft skirt with the rough texture and color of lamb’s wool and a black embroidered jacket, and her self-confidence is radiant. Her diamonds are large and worn unapologetically, like merit badges. In the meetings with Stern she has attended now and then, Donatella has customarily been silent, but today when the subject turns to the trial, motive grips her like a fever.

  “Sandy, this business about Lep must stop at once,” she says. “Kiril will not save his neck by putting his son’s in the noose.”

  Pafko says nothing but nods emphatically. His old-fashioned gallantry in his wife’s company has always made Kiril acquiescent to her, at least in the presence of others. Stern has long accepted that no relationship is more complex than marriage, nor more unknowable to outsiders. And where children stand in those intricate arrangements is often nuanced and unique. This is another of Nature’s great tricks. Two people develop such intense passion for one another that they create other individuals to get between them. But Lep’s place in his mother’s emotional hierarchy is obvious.

  “Donatella, my dear,” says Stern, “a criminal case is won by raising doubts—reasonable doubts. I can assure you that neither Marta nor I have any intention of arguing at the end of this case that Lep is guilty of these crimes. That notion, candidly, does not stand up to extended analysis. But any reason the jurors might find on their own to allow Kiril to go free is acceptable, is it not? I know Lep is deeply concerned about his father. Very often, we plant a thought and let it go. And that is surely our intention here. Let me remind you, Donatella, that Lep has immunity. There is no harm in nodding in another direction, is there?”

  Donatella does not seem to accept the explanation. She shakes her head, the flesh of her face moving in a loose way that suddenly makes her look truly old.

  “But Lep still has decades left in his career,” she says. “If that is in tatters after this trial, that is no victory for any of us.”

  She looks across the table to her husband, who again nods obediently.

  Lep, come what may, is going to be left with at least $100 million. And he will control the company soon enough anyway, whether Kiril goes to the penitentiary or retires. More to the point, suspicions will rub off on Lep if the jury finds he spent years working at the elbow of a crook.

  Stern has already scheduled a meeting at the office with Kiril alone after court today. They are to begin deciding what to present by way of defense, and Stern makes a mental note to add Donatella’s admonition to the agenda. Kiril has told Stern more than once that he knows nothing to implicate Lep, although he has never been as absolute as what Stern has just heard from Donatella.

  “I will certainly abide by your wishes,” Stern says. “In truth, I doubt we have much more to say in court on this subject.”

  The end of Marta’s cross-examination is probably the only part Stern might have recast. She had told him last night that she was going to ‘ring the Lep bell,’ but subtlety has never been Marta’s strength.

  Lunch is soon over. Donatella and Kiril need to make a quick stop at a shop nearby to select a birthday gift for one of their grandsons, and Stern taxis back to the courthouse by himself, still processing their conversation.

  ‘Lep did it!’ has long been the most tempting defense in this case. It was Lep, for instance, who as medical director held the codes to unblind the database, in the event they were ever needed, and Lep who handled most of the communications with the FDA. Lep also could have identified himself as ‘Dr. Pafko’ on the phone with Wendy Hoh. Whenever Stern indulges his sentimental hopes about Kiril’s innocence, his mind drifts in this direction.

  The problem is that when Marta and he have considered blaming Lep, they collide head-on with the facts. Lep never would have attempted something so ham-handed as trying to flim-flam Wendy Hoh. Experts agree that a man with a doctorate in computer science could have come up with far more elegant—and surreptitious—means of altering the database and the underlying information. More to the point, Lep also has a locked alibi. Kiril was still on his computer, e-mailing the image of the unaltered database to Olga, when airline records show unequivocally that Lep had already boarded his plane to Seattle, and obviously was headed there from home while the call records from Kiril’s office show he was on the phone with Wendy Hoh.

  On the other hand, the fact that Lep is not the principal culprit does not mean he was as clueless as he will piously maintain on the witness stand. Marta, in particular, has long insisted—with no convincing counterargument from Stern—that if they suddenly came into possession of a time machine, they would find Kiril deciding to call Wendy Hoh out of panic, then telling Lep all about his success with her upon his son’s return. That had been the order of the two men’s lives for decades, with Kiril inalterably in charge and Lep unfalteringly obedient, having lived for close to fifty years with nothing more essential to him than his father’s approval. As Marta has pointed out tartly, a man like Kiril, who has paraded his infidelities in front of his son for decades, is not likely to suddenly develop a sense of shame or discretion about other misbehavior.

  Lep is represented by lawyers from Chicago, who bargained hard for the immunity he ultimately received. Stern was not allowed to speak with Lep until he had completed his testimony before the grand jury. Once Lep had done so, the attorneys had agreed to two interviews, perhaps at Lep’s insistence. But they were tense meetings in which Lep related the tale of his father’s culpability that he had already told the prosecutors, a story in which Lep’s own responsibility was entirely minimized.

  As a disincentive to the Sterns, the lawyers had insisted that they—and Lep—come to their offices in a Chicago skyscraper with commanding views of the lake. Seated across from Lep, along with Marta, in a grand conference room that was all windows, Stern found it difficult to establish much rapport, although he has known Lep since he was a boy. Even as a youngster Lep had fine manners, as you would expect of Donatella’s child. He always greeted Mr. Stern by name, shook hands as he looked Sandy in the eye, and responded to questions politely, if briefly. Stern can remember Lep at the end of the country club dinner table one night, occupying himself, even in the summer, with a math workbook. He must have been about nine, and when Stern looked over at what the boy was doing, he remarked aloud, so
mething like ‘Good grief!’ because he could not comprehend a single line of the calculations on the page. In response, Lep offered a sealed smile worthy of Mona Lisa. It was not really childish pride he was exhibiting. He was instead seemingly acknowledging that Stern had discovered his secret, that the complexity of the mathematics allowed him to move through a world of largely impenetrable privacy. It was as if he was keeping a diary that he knew his parents would never be able to read.

  Roughly forty years later, in his lawyers’ conference room, Lep remained a person rigorously self-contained. Although he shows flashes of wry humor, for the most part Lep is as taciturn as Kiril is garrulous. Except for his commitment to his father’s profession, Lep is unlike Kiril in almost every way. He dresses in scuffed corduroy and denim, while his father is one of the few men Stern has ever known who actually looks comfortable in an ascot. Lep takes his height from Donatella’s family and is close to six foot five, with dirty blond hair beginning to gray and scalloped on each side by male pattern baldness. He has an elegant sharp-featured Slavic handsomeness, but his quick, uncertain eyes lend his looks a somewhat fragile undercurrent, like some agonized poet. Kiril has frequently related, a bit enviously, that Lep has never seemed to notice the women who threw themselves at him, particularly when he was younger.

  No one Stern has spoken to about Lep is anything other than deeply impressed by him as a scientist, especially by his capacities in the burgeoning field of computer-aided medical research, in which digital models of disease are constructed and then cured. Unfathomably to Stern, Lep had conceived of the g-Livia compound by programming supercomputers at Easton to behave like the new quantum computers that don’t even exist yet.

  For all the wonder Lep’s colleagues express about what he accomplished, the man himself is self-effacing.

  ‘I didn’t do anything except pour the information into a bigger mechanical brain,’ Lep said during his first interview with the Sterns. ‘It was my father who recognized that the problems in RAS signaling were related to the positioning of the molecule.’ A couple of the scientists at PT have quietly insisted that it was actually Lep who first theorized about how a mAb would have the potential to turn RAS around, but by habit Lep seems unwilling to diminish his father’s contributions.

  Lep’s testimony in this case, by contrast, is less original: Blame Kiril for everything whenever possible. Lep is going to testify to conversations with his father that Kiril swears never occurred.

  ‘Is Lep lying?’ Stern asked Kiril when he met with Pafko the week after interviewing Lep in Chicago.

  ‘I would never say that about Lep,’ Kiril answered mildly. ‘For some reason, it’s what he remembers.’

  ‘Kiril,’ Stern said. ‘If he is not lying, I do not understand how we can explain this.’

  ‘Nor I, Sandy. It’s why I am in this predicament.’

  Stern and Marta have taken it for granted that Kiril will say nothing to implicate Lep. That is understandable, both as a father and because Kiril knows where the principal blame lies anyway. What Stern did not recognize before lunch was what had stiffened Kiril’s resolve to take the fall alone. But the inspiration is clear now.

  Donatella.

  16. Olga

  Back in court, Moses’s redirect has largely been foretold by his objections. Robb agrees that the confirmatory study done after g-Livia was approved has not been statistically verified, and she explains the importance of that at some length. She also says that the success of a Risk Evaluation and Mitigation Strategy for g-Livia remains unproven. Nevertheless, because Moses was prohibited from talking to her outside court until her testimony is complete, he does not take the chance of asking her again whether she continues to believe today that g-Livia has not yet been proven safe and effective. That’s probably better strategy for the prosecution anyway. Their case is about what happened in 2016. In line with that, the US Attorney’s last question on redirect is whether anything Marta asked Dr. Robb or showed her changed her opinion that she would not have recommended approval of g-Livia had she seen the correct data at that time.

  “Absolutely not,” Robb answers.

  The next witness, Mal Jenkins, is an FBI forensic computer examiner from DC. He explains that Kiril’s office computer was seized pursuant to a search warrant in the fall of 2018 and taken to the FBI computer lab. After detailing the process of how an expert examines a hard drive, Jenkins gets to the core of the matter: the screenshot Robb testified about, the unblinded summary table, revealing the twelve sudden deaths of g-Livia patients for reasons coded as ‘unexplained,’ meaning no apparent relationship to cancer. The screenshot, Government Exhibit Pafko Computer-A, was found on the drive of the computer in Kiril’s office at PT, Jenkins says, created at about eight p.m. on September 15, 2016. This is the single most damning piece of documentary evidence in the cases against Kiril, since it confirms that he knew all about the twelve deaths.

  Stern cross-examines.

  “Now, Special Agent Jenkins, I am certain that in your experience, you have dealt with efforts to remove incriminating evidence from computers.”

  “Definitely.”

  “And is it fair to say there are innumerable means of attempting to do that?”

  “Countless,” says Jenkins.

  “You can simply delete the data, right?”

  “Not effective, but yes, you can do that.”

  “There is a process called wiping to remove data, is there not?”

  “There is.”

  “You can restore your computer to the factory defaults, can you not, essentially removing all work done on the computer?”

  “You could try that.”

  “There are even programs one can purchase for the sole purpose of removing data and leaving no trace of it?”

  “They work better than anything else you’ve mentioned, but they’re not faultless.”

  “And with regard to this screenshot, Pafko Computer-A, did you find any evidence of an effort to delete it, remove it, conceal it in any way in 2016?”

  “No.”

  “But certainly, after this article appeared in the Wall Street Journal in August of 2018, suggesting problems with g-Livia, certainly after that, there was some sign that Dr. Pafko tried to hide this evidence, was there not?”

  “No.”

  “No deletion, no wiping, no cleaning program?”

  “No, sir.”

  “And what about after the FDA announced in the fall of 2018 that it had identified problems in the database for the g-Livia clinical trial? Surely there was some evidence of an effort to delete this image then?”

  “If there was, I found no sign of it.”

  “So this screenshot, Pafko Computer-A, was sitting there for close to three years, as it were, waiting for you to find it?”

  Feld objects that the question is argumentative, as it is, and Stern withdraws it before Sonny can rule.

  “Now, Special Agent Jenkins, aside from the evidence that this screenshot was created on September 15, 2016, was there any other use of that image?”

  “It was also e-mailed once.”

  “When?”

  “That night. September 15, 2016. A little after eight p.m.”

  “And who did that e-mail go to?”

  “A Ms. Fernandez.”

  “That would be Ms. Olga Fernandez, the director of marketing and public communications at Pafko Therapeutics?”

  “Yes, sir.”

  “And were you present two years later, in the fall of 2018, when Ms. Fernandez was interviewed about this e-mail by investigators from the FBI?”

  “Yes, sir. I was one of the two agents who visited with her.”

  “What did she tell you?”

  “Objection. Hearsay,” says Feld.

  Stern has been careful to ask this question while he is facing the jury and does his best to look shocked. He then executes a slow stage turn to peer over his shoulder at Feld. In the meantime, Marta’s pen has hit the floor, the warning that he has wan
dered onto dangerous ground. When Stern glances to the bench, Sonny is glaring at him, which Stern instantly regards as entirely unfair. There is nothing unethical in asking a question that invites hearsay. It’s competent evidence, unless it’s excluded after objection. Dr. Robb’s testimony was a virtual fountain of hearsay, with all her accounts of what Lep and others had said at the FDA, far from this courtroom and outside Kiril’s presence. But Stern knows he is on Old Lawyer Probation and apparently must live by different rules. He shrugs, as much for Sonny’s and Marta’s sakes as the jury’s, and returns to his seat, doing his best not to look perturbed.

  To Jenkins—and Stern, who has interviewed Olga—she said the same thing basically, that she noticed the e-mail with the screenshot of the unaltered dataset attached in her inbox the next morning, September 16. She happened to see Kiril a few minutes later.

  ‘I asked him what it was he’d sent me?’ Olga told Stern. ‘He had no clue what I was talking about. Nada. I asked him three times. He said he didn’t remember sending me any e-mail with attachments. So I just deleted it.’

  This piece of testimony is so favorable to Kiril that a wise defense lawyer would treat it with great caution. The FBI, in fact, seems to have heard it with complete disbelief. At Jenkins’s request, Olga surrendered her office computer to him. Jenkins took it back to DC, where he concluded that what she had said was absolutely true. The e-mail from Kiril was received but never opened, and promptly deleted early on September 16, 2016.

  Even with the forensic corroboration, however, there is, as Marta would say, the strong smell of bullshit in the air. Marta finds it incredible that Olga hesitated to open an e-mail from the CEO, not to mention a man she was sleeping with. ‘Dad, you know damn well what happened. Olga was already fooling around with Kiril, so she knew the clinical trial was messed up. And when she saw that e-mail, she went running to Kiril and said, “Why are you involving me in this crap? I just work here.”’