The Last Trial Read online

  More so than any other witness thus far, Dr. Hoh is visibly and shriekingly tense. She grips the wooden rail of the witness stand with both hands, almost as if she fears getting thrown overboard by rough seas. She also struggles with spoken English, or perhaps American accents. She wears large round glasses and tips her head to the same side each time a question is put to her. As soon as she thinks she understands, she jumps in with a response. Her examination by Feld sounds a little like a quiz show, as if Dr. Hoh were pounding her buzzer and shouting out her guesses about what Feld wants to know. He treats her patiently, however, and eventually convinces her to listen to the entire question.

  Although Stern generally avoids confessing the fact, he has long accepted privately that in many ways he has enjoyed spending his adult life among criminals. He has developed an aesthete’s appreciation for the knavishness, the guile, the selfish cleverness of so many of his clients, appreciating human misbehavior for its miserable creativity. In almost every criminal case, there is a moment that combines inspired imagination with sheer audacity in a way that leaves Stern gasping, and full of perverse admiration for conduct he knows he would never have the courage to attempt. Kiril’s phone call with Wendy Hoh is that instant in US v. Pafko.

  As Dr. Hoh tells the story, part of her job was to audit the g-Livia clinical database from time to time to make sure results appeared to be recorded correctly. Performing that check in the summer of 2016, she had noticed that there had been a spike in sudden fatalities in recent months. Because the trial was double blind, Dr. Hoh did not know if the deaths were occurring among patients receiving g-Livia or the comparison drug, but she eventually decided she was required to alert her contact at PT, Dr. Tanakawa, Lep’s number two. She called him more than three years ago on September 14, 2016. Later that week, at a little after 9:30 a.m. on September 16 in Taiwan—7:30 p.m. the night before in Kindle County—she was in her office when her inside line rang. The caller identified himself as Dr. Kiril Pafko. He told her that PT’s safety monitors had responded to her call to Dr. Tanakawa by unblinding the data and site codes for the incidents that concerned her, and had quickly determined that what had been recorded as sudden deaths were in fact a programming error. After speaking to the investigators, Pafko said, it was clear that the patients listed as having passed away had merely withdrawn from the study at earlier dates. As a number of witnesses have conceded, patient withdrawals from clinical studies are commonplace. Some subjects can’t tolerate the medication because of side effects like nausea. Others are ‘non-compliant,’ which means they don’t show up for appointments or respond to follow-up calls from the site staff.

  “And what did Dr. Pafko ask you to do?” Feld asks.

  “Change data,” says Dr. Hoh.

  “And did you?”

  “Why not?” answers Dr. Hoh. “He say they investigate. Must be so. Dr. Pafko, he win Nobel Prize.”

  As Stern jots notes on his yellow legal pad, he smiles with bitter chagrin. After objecting initially, Moses and Feld have had a good time hanging the Nobel Prize around Kiril’s neck. Dr. Robb had implied on Tuesday that the FDA was far more willing to believe PT for the same reason.

  Unmentioned by Dr. Hoh is the fact that major clinical trials are a huge revenue item for Global International. Therefore keeping the customer—that is, the pharmaceutical manufacturer—happy is important. Whatever the reason, Wendy Hoh altered the dataset while she and Kiril were on the phone, following up with a memo to her quality control team about the computer glitch. As Dr. Hoh explains, a programming error made much more sense to her as a statistician than thinking that 6 percent of the patients taking g-Livia had suddenly dropped dead over a few months after generally prospering on the medication for a year.

  There is no question that Wendy Hoh’s testimony is the worst evidence against Kiril in the case, and the hardest for Stern to square with Pafko’s proclamations of innocence. Here again, Marta has been persuasive in her reconstruction of what probably occurred: Kiril made this phone call as a hasty last-ditch effort to see if he could prevent going back to square one with g-Livia testing. Once he succeeded, no matter how unlikely the gambit had seemed when he’d tried it, his goose was cooked.

  Stern begins his cross-examination from his seat, hoping to seem less confrontational to Dr. Hoh.

  “Now, Dr. Hoh, you say you spoke to Dr. Pafko?”

  “Yes, we speak.”

  “And how many times before had you spoken to Dr. Kiril Pafko?”

  “Oh, never. Never never. Very excited. Dr. Pafko a big name.”

  “So you were not able to recognize his voice based on prior experience?”

  “Oh, no. But very exciting. Nobel Prize winner calling.”

  “And to the best of your recollection, Dr. Hoh, what did he say when he called?”

  “Say, ‘This Dr. Pafko. Hello, need to talk.’ You know.”

  “And your principal contact at PT usually is Dr. Tanakawa?”

  “Yes, yes.”

  “Have you talked to other people at PT?”

  “Most time is e-mail. Call is upside down. Three p.m. Taiwan, one a.m. PT. Not call much at all. Also better for me. Write English much better than speak.”

  Dr. Hoh’s answer about what was said to start the call would provide some support to suggest it was Lep on the phone. But there are two problems. For one, Stern is mindful of Donatella and Kiril’s admonitions. More pertinent, he knows that the next piece of evidence the government is going to introduce is the phone records from Kiril’s office extension, showing a twenty-minute call to Taiwan.

  “But you have no way to know, Dr. Hoh, do you, whether the person you spoke to was telling you what he honestly believed? Namely, that the deaths were recorded as a programming error.”

  “Objection.”

  Sonny shakes her head and overrules. Hoh, who, as she has acknowledged, is not good with the nuances of spoken English, keeps answering that she believed what she was being told until, after Stern’s third effort at the question, she finally comprehends and sits back.

  “How I know that?” she asks, a bit astonished.

  Dr. Hoh’s nervousness requires no explanation. She had messed up by so eagerly taking the correction over the phone without investigating further. Her alacrity in pleasing the customer, no matter how widely encouraged in practice by the sales team, is something the company must now scowl at.

  “Dr. Hoh, when was the first time you discussed this phone call you say you had with someone who called himself Dr. Pafko—when did you first discuss that conversation, after it had taken place?”

  She shakes her head.

  “You do not recall?”

  “No, no.”

  “Did anyone at your company ever talk to you about an article in the Wall Street Journal concerning g-Livia?”

  “Oh.” She smiles and nods with the exaggerated vigor of a puppet. “Yeah yeah yeah. Talk FDA investigator.”

  “That was Mr. Khan, who is sitting over here at the prosecution table?”

  She nods and smiles at Khan, an immaculately kept man with a strikingly wide part in his glistening black hair.

  “And do you remember learning some time later that the FDA was questioning some of the data in the trial of g-Livia? Were you aware of those news stories?”

  She nods again, six or seven times in rapid succession, and Sonny tells Dr. Hoh she must respond out loud, so it can be recorded by Minnie, the court reporter sitting below the witness stand. Dr. Hoh listens to the judge, then nods the same way. Sonny smiles and says that the record will reflect the witness indicated yes.

  “Dr. Hoh, I see a note in the memo Agent Khan made about your meeting that you ‘now recall’ speaking with a Dr. Pafko. Did you say that to Agent Khan, that you now recalled speaking to this Dr. Pafko?”

  “Yeah, I say that.”

  “So that leads me to ask this: When the news was published, suggesting that data might have been altered, did anyone at Global International ask you whether
you knew anything about the dataset being changed?”

  “Oh oh oh,” says Wendy Hoh, to indicate she now understands where Stern’s questioning is going.

  “Does that mean that you were asked by someone at Global?”

  Wendy Hoh looks straight down at her lap. Stern has got her.

  “Maybe not.”

  “Maybe you did speak to people at Global or maybe you did not?”

  “Say I maybe no remember. No idea how data change.”

  “But that was untrue?”

  On the stand, Dr. Hoh has slumped and appears on the verge of tears. She was undone, Stern suspected, by the memo she had sent to Quality Control, which her superiors found after she first claimed not to remember anything about how the data was altered.

  “Very scare,” says Wendy Hoh. “Very important, Dr. Pafko, do what he say and now in Wall Street.”

  It is always helpful to the defense when a principal government witness admits that she’s lied. But there is only so far Stern can go in this instance. Marta and he had no idea what to expect from Dr. Hoh, who would not agree to speak to them before trial. It was Pinky who focused on the phrase, ‘now recalls,’ and with that, they had hopes of painting Hoh as a wanton liar. In the moment, however, it’s clear that the jury is not likely to regard her as a schemer. She appears to be a numbers nerd with limited social skills, and fairly straightforward, given how scared she clearly is. The jury is not likely to take well to any effort to humiliate or punish her.

  The other issue Stern must steer around during his cross is the memo to Quality Control that Dr. Hoh wrote in September 2016 right after talking to Kiril. Before trial, the Sterns had a significant victory when the judge granted their motion to exclude the memo from evidence as hearsay. It’s not a business record because it’s not a regular practice at Global to alter data. But if Stern now implies that Wendy Hoh is making up her testimony to save her job, the memo will be received in evidence under a different hearsay exception to show she’s saying the same thing today she said before being accused of lying.

  Instead, in another of those sudden intuitions Marta would tell him he is too old to trust, he abruptly decides to move in another direction.

  “You were very excited, you say, to talk to a Nobel Prize winner?”

  “So exciting!” she says.

  “And was it exciting to be involved in the test of a drug as potentially important as g-Livia?”

  “Big drug,” she says. “Very ’portant.”

  Finally, he asks her about the substantial prospective earnings for Global if the trial continued. She nods with enthusiasm with each answer, clearly eager to please now, as if that will make up for the clumsy lie she told at work.

  “But you were aware when you spoke to this person who said he was Dr. Pafko that several million dollars were at stake for your company in further trials?”

  “Sure sure,” says Wendy Hoh. “Big business, Livia. Big.”

  On redirect, Feld seems to think that Stern was suggesting Global decided to alter the results on its own to make money. Dr. Hoh is bewildered by the questions Feld is asking to refute this notion, but she ultimately denies that her bosses gave her instructions to change the dataset.

  Instead of recrossing, Stern stands, smiles warmly, and says merely, “Thank you, Dr. Hoh, for coming so far.”

  When her father sits, Marta is clearly perturbed.

  “I don’t know what you think you’re doing,” she murmurs with her teeth clenched.

  “Just a dotty old man,” he whispers.

  19. Taking the Prize

  Stern and Marta both regard the idea of Kiril testifying in his own defense as a prelude to disaster. Kiril’s denials will sound idiotic. He does not, for example, want to offer a subtly different version of the conversation with Wendy Hoh. Instead, notwithstanding the call records from his office phone, Kiril claims he never spoke to the woman at all.

  Yet it is a criminal defendant’s absolute right to testify. In fact, the federal practice is that if Kiril decides not to ‘get up,’ as they say, he needs to tell the judge on the record that he is voluntarily waiving the opportunity the constitution gives him to tell the jury his story. In his current state of mind, he will never get through the required discussion with Sonny without saying his lawyers twisted his arm.

  Thus, Stern and Marta have agreed that the best way to keep Kiril off the stand is to appeal to his ego. In a fraud case, a defendant always may offer evidence to show he has a sterling reputation for honesty and integrity. If several eminent scientists come to court and say essentially that the Kiril Pafko they know would never do anything like what’s alleged in the indictment, it might be easier to persuade Kiril that his own denials are superfluous.

  For these purposes, no witnesses are likely to be more impressive to the jury than the two medical researchers who shared the Nobel with Kiril almost thirty years ago. They were colleagues and competitors, researchers of enormous stature who are independent authorities, unlike the people who have worked in Kiril’s lab and might be seen as indebted to him. It turns out that one of Kiril’s fellow Nobelists, Elena Marchetti, passed away a decade ago. But Basem Kateb has recently returned to Harvard as an emeritus professor, after serving for a decade as chancellor of the Rockefeller University, a preeminent research institution in New York. Stern wrote to Kateb, then logged several calls to his office before the doctor’s assistant said Kateb had allocated twenty minutes to Stern late on Friday afternoon, the day after Wendy Hoh’s testimony, when Sonny, as usual, will not hold court.

  Stern takes a morning flight and reaches Boston in time for his appointment at the main campus of Dana-Farber Cancer Institute on Brookline Avenue, situated amid Harvard’s vast med school and hospital complex in Kenmore, not that far from Fenway Park. Stern read about Kateb on the plane. He is Algerian, from an upper-class Muslim family who fled to France at the height of the Algerian War. Although Kateb’s first languages were Arabic and French, he found his place in the universe of medical research, a land whose denizens conversed in the idiom of science worldwide.

  Stern presumes that, as with his own relationship with Kiril, Kateb had found common ground with Pafko in their émigré experiences. They had been rough contemporaries at Harvard, and Kiril had brightly asked Stern to give ‘Bah’ his best. They were friendly, Kiril said, never close, but peers who’d shared their field’s highest honor.

  The office Stern is escorted into is a way station for Kateb near his lab, and probably a fraction of the size of his faculty office at the medical school. This room, no more than eight by ten, reflects a very busy mind. Kateb has been back at Harvard only a few months, after returning to the Boston area where his kids and grandchildren live. A pillar of Bankers boxes, taller than Stern, rises in one corner. Two huge computer monitors occupy the doctor’s desk, and the bookshelves reaching to the high ceiling show the uneven projecting edges of ramparts of papers.

  In his long white lab coat, Kateb sweeps in a minute after Stern has been seated in a stiff office chair of molded plastic and stainless steel. He shakes Stern’s hand perfunctorily and immediately slides behind his desk to stare at the computer screen. It becomes clear soon enough that he is trying to recall who he’s meeting.

  “Stern or Stein?”

  “Stern.”

  “Someone said ‘Stein’ at one point. And this is about Pafko, is it?”

  Kateb, only a few years younger than Stern, remains wiry and energetic. He wears heavy black glasses, above which his gray-shot eyebrows are almost as bushy as a squirrel’s tail. He is dark complected, his nose prominent. The light of intelligence in his black eyes is intense.

  Stern explains why he is here. He leaves the hard part, getting Dr. Kateb to come to Kindle County to testify, for later in the conversation.

  “So, you’re the defense lawyer?” Kateb asks.

  “Just so,” says Stern.

  “My assistant told me you were the prosecutor.”

  “I am sorry
. I hope I said nothing to mislead her.”

  “No matter,” he says. “You’re here. I’d have spoken to you, too, if I had the time. And what is it you want to know, Stern?”

  Stern’s initial impression is that Kateb is a person he would like, and who might enjoy Stern as well, if they had the time for a real acquaintance. That is one of the tragedies of aging, appreciating how many good and interesting people have passed by unknown. Busy as he is, Kateb impresses Stern by the speed with which comprehension passes into his face. He listens very well. Stern explains how Kiril’s reputation for integrity is impugned by the charges.

  “Well.” Kateb stops and screws up his mouth for one second, as if trying out the taste of his words. “Stein?”

  “Stern.”

  “Stern, yes. Forgive me. Well, Stern, I don’t think I have anything for you.”

  “I see. I was hoping, given how long you have been in the same field, how much your careers have been linked, that you might be able to say something in Kiril’s behalf. He is in a difficult spot. He seems to think you are fond of him.”

  “Fond? I’ve always enjoyed him. Complete rogue. Very funny. He and I once had a horrible delay at O’Hare. Nine hours. We were on our way to Delhi. He bought an entire bottle of Johnnie Walker Blue from one of the bars and he kept me laughing. Wonderful raconteur. Or I was drunk enough to think so. So yes, I enjoy his company. Always have. He’s just a shit scientist.”

  Stern, never prone to verbal eruptions, cannot contain himself now.

  “With a Nobel Prize?”

  “Even a Nobel. There are always undeserving winners in this life, Mr. Stern, in every arena. Right? He’s not the only one. How many successful attorneys do you know who are, on the whole, idiots?”

  “You regard Kiril’s Nobel as undeserving?”

  “Very much so. At least if you ask me.”

  Stern finds himself somewhat indignant but tries not to show it and put Kateb off.