The Last Trial Page 22

“I would expect.”

  “And where are those notes?”

  “I believe the lawyers have them.”

  The problem is that once Ms. Hartung reviews the notes, Stern—and Moses—will have the right to see them, too, since a lawyer is entitled to review any materials a witness uses to prepare for testimony, in order to determine if the notes, rather than the witness’s memory, influenced what the witness is saying. The idea of the lawyers for either side scouring a reporter’s notebooks for helpful information is a nightmare for journalists, who depend on the confidentiality of their sources.

  Miller Sullivan—lean, tall, and bald—steps forward and says, “Your Honor, may I be heard?”

  Sonny grimaces and sighs but finally orders the jury excused.

  “Mr. Sullivan,” she says, as soon as the jurors are out of the courtroom, “I am going to let you be heard once. So you better say whatever you think I need to know right now.”

  What is an advantage for Sullivan—Sonny’s sympathy for journalists—is also a detriment, since she has a personal interest in the law in this area, meaning Sullivan can’t get away with any exaggerations about what the courts have said. Given that, Sullivan, like most litigators, takes more time than he should. He waxes on nobly about the First Amendment, but Sonny knows that the Supreme Court has tended to look at this issue in a narrow way. Producing a reporter’s notes does not prevent the reporter or the newspaper that employs her from publishing her stories, meaning producing the notes does not violate the First Amendment. As far as Stern—and Marta—are concerned personally, this thinking is asinine—if one reporter is forced to produce her notes, the next reporter will be more wary about what they print, which is just the kind of restriction on publication that the First Amendment was seemingly designed to prevent. But it’s the law and good for their client. Because Marta has handled the motions leading up to this point, Sonny allows her to argue, and Marta prevails. Sullivan’s efforts to keep Ms. Hartung from reviewing her notes is overruled by the judge.

  “Mr. Stern’s question is clearly within the scope of the direct,” Sonny says. “Ms. Hartung says she spoke to several doctors. Mr. Stern is entitled to test the accuracy of her recollection and whether she told Dr. Pafko the truth.”

  Once the jury is back in the box, Sullivan produces two spiral stenographer’s notebooks from his briefcase. With Sonny’s permission, he stands beside Ms. Hartung, and Stern and Moses are allowed to look over Sullivan’s shoulder. He uses his hands to shield everything on the four pages he shows Ms. Hartung, except the doctors’ names. She reads them off one by one, five in total.

  With that done, Sullivan resumes his seat in the first row. He is barely down when Stern asks, “And tell us, please, what motivated you to call these doctors? Had someone told you they were likely to have information that would interest you?”

  Sullivan jumps up again and says, “Your Honor.”

  Moses is up, too, and says, “This is irrelevant.”

  Stern answers, “This is highly relevant, and we would urge the court to allow us to explain why.”

  In exasperation, Sonny squeezes her eyes shut, sighs audibly, and again orders the jury excused. When they’re gone again, Sonny lights into Sullivan first.

  “Mr. Sullivan, I’ve allowed you to interrupt this trial to assert the important interests you represent. I understand your point of view. I will assume that you object to any inquiry by Mr. Stern that goes beyond the four corners of the article your client published. But the question Mr. Stern just asked states the obvious. We all know that Ms. Hartung did not contact those doctors because she has telepathy.”

  “But Your Honor,” says Sullivan, “that invites the next question, which is who Ms. Hartung spoke to.”

  Understanding where Sonny’s sympathies will lie, Marta races in to explain the relevance of the identity of the persons who first pointed Hartung at the doctors. Over the next few minutes, she lays out three arguments. First, whoever gave Ms. Hartung this information was not someone sympathetic to PT or Kiril Pafko. That bias is relevant, if the source is someone who has or will testify for the government. Second, if the information came out of any of the government agencies involved in the case, that would break various rules of confidentiality and might even bring into question the entire legal basis for the prosecution. The Sterns, and the teams of civil lawyers working on the cases against PT, have long suspected a leak from the FDA, where someone noticed the response pattern with g-Livia and felt a newspaper report would be more effective in getting g-Livia off the market than going through an internal process in the agency that PT would fight every step of the way.

  Sonny does not appear completely sold by either point, but Marta saves for last her most telling argument.

  “And finally, Your Honor, in order to be guilty of these insider trading charges, Dr. Pafko must have traded on the basis of material, nonpublic information. If Ms. Hartung’s story was based on publicly available information, her phone call to Dr. Pafko cannot support the indictment.”

  Feld addresses the last point, saying that ‘nonpublic’ under the securities laws means the information wasn’t available to persons buying or selling stock. Sullivan wants to add something, but Sonny is losing patience with the whole discussion, probably because her heart and her head are taking her in different directions. She points at the New York lawyer and says, “Mr. Sullivan, sit down please. You are a stranger to these proceedings and will not be heard further.

  “Anything else, Ms. Stern?”

  Sandy steps back in.

  “Your Honor knows that one question on cross-examination often begets another. The defense has its arms tied behind its back because of the failure of Ms. Hartung and her lawyers to comply with our subpoenas.”

  “Duly noted, Mr. Stern. You will be allowed to question Ms. Hartung, but only within the bounds you yourself have noted with your various theories of relevance: bias of witnesses, breach of governmental rules of confidentiality, and whether Ms. Hartung’s story sprung from public information. Bring in the jury.”

  Stern watches the fourteen return. By now, they have assigned themselves seats in the jury box and file in in that order. Establishing these customs on their own, with no instruction from the judge, generally indicates a group that will deliberate cooperatively and reach a verdict, notwithstanding their differences of opinion. At the moment, none of them appears lighthearted. Extended discussions outside the jury’s presence, especially when they are excluded question after question, predictably irritate them—if they’re supposed to decide a human being’s fate, why can’t they know everything?

  Pinky has located a copy of the witness list the government produced in the week before trial. In order to mask their actual intentions, as well as to avoid defense claims of surprise, these lists are always wildly overinclusive. Feld had written down 125 names. Stern shows the three pages to Hartung.

  “Now, prior to either of the two articles you published about Dr. Pafko or g-Livia, did you have any communication with any of those persons?”

  Hartung takes her time. After studying the list, she sets it down, and says, “No.”

  Stern is not surprised but still feels somewhat deflated.

  “And in connection with preparation of the article you published on August 8, 2018, did you communicate with anyone at the Food and Drug Administration?”

  “Yes,” answers Hartung. Her face is blank, but Stern’s heart skips. Goal!

  “Was your communication oral or in writing?”

  “Both.”

  “And with whom did you communicate?”

  “I phoned and e-mailed the office of the commissioner—”

  “The head?”

  “Yes. I was seeking comment before I ran my story. A public affairs officer, whose name I don’t recall, wrote me back saying the FDA had no comment. My requests for an interview were refused.”

  Hartung’s mouth moves sideways, suppressing a smile. She knows she beat Stern on this one.


  “No other communication with FDA officials?”

  “No.”

  “Securities Exchange Commission. SEC?”

  “Exactly the same. No comment.”

  “Federal Bureau of Investigation.”

  “Spoke to no one there.”

  Marta hands her father a note. He does not understand why Marta wants him to ask the question, but he trusts her, of course.

  “Did you have any communication with someone not on the government witness list named Anahit Turchynov?” Turchynov was Kiril’s young stockbroker, who is not going to testify in this case, because, as the jury is likely to learn in the next day or two, she is at serious risk of being prosecuted herself.

  Moses objects.

  Sonny asks, “Have I seen that name in some defense motions?” The Sterns filed a motion demanding that the government give Ms. Turchynov immunity, claiming that her testimony is essential to defense of the insider trading counts. If Ms. Turchynov actually gets on the stand, it is liable to be a catastrophe for Kiril, but the motion was a guaranteed loser. The power to grant a witness immunity is solely the prosecutor’s, not the judge’s, and Moses has no interest in giving Ms. Turchynov a pass.

  After Stern says yes, Sonny requires Hartung to answer.

  From the stand, Ms. Hartung’s gray eyes seek out her lawyers, and Stern quickly moves into her line of sight.

  “Ms. Hartung, are you looking at your attorneys?”

  Rebuked, she pulls herself erect, while Stern admonishes her.

  “I am going to ask the judge to instruct you not to attempt to communicate with your lawyers in any way while you are testifying. The jury needs your testimony. Not theirs.”

  Sonny does as Stern requests and Gila Hartung answers, “I’m very sorry, Judge.”

  Stern presses ahead, asking again if she spoke to Anahit Turchynov.

  “It’s an unusual name. I would think I would recall it, but no, I am not certain.”

  “Thank you,” says Stern. He looks back to Marta, who actually winks. “Since you have told us that you received no information from anyone on the government witness list or from any government agency, may I ask if you recall as you sit here where you received the information that led you to call these doctors?”

  Moses is up quickly, and Marta’s pen hits the floor. The judge stares down darkly at Stern. She has turned quite peevish.

  “Mr. Stern,” Sonny says coldly, “please be very mindful of my ruling.”

  “I surely am, Your Honor,” says Stern. “I am simply trying to confirm that Ms. Hartung’s denials are based on a present memory, and not because she does not recall her source.”

  He is correct in his logic, as far as he is concerned, but Sonny’s baleful look does not change.

  “Move on, Mr. Stern.”

  “Just so,” he answers. He turns back to the witness and, settling himself with a familiar gesture, touches the center button of his suit coat.

  “Ms. Hartung, you have testified that you spoke to the personal physicians for five patients who were being treated with g-Livia and who passed away from a sudden death syndrome, traceable, perhaps, to an allergic reaction to the medication. Are you aware that federal law prohibits disclosure of patient information to someone like a reporter?”

  “Yes.”

  “Does the Wall Street Journal, as a matter of practice, publish that kind of confidential information without the patient’s consent?”

  “In general, our policy is not to publish confidential medical information, unless our editors conclude there is a paramount public interest in doing that.”

  “Did those physicians have the consent of their patients to speak to you?”

  Moses objects, saying, “Hearsay.” Sonny sustains.

  “Did you speak to any of the family members of the five patients?”

  “No.”

  Stern stands still, calculating. “Did you believe these patients’ rights of confidentiality had been waived when you spoke to those doctors?”

  Moses objects again. But this time Sonny overrules him.

  “Yes,” says Hartung.

  Stern looks back to Marta. She understands that her father is about to break that iron rule about never asking a question to which you don’t know the answer, but she shrugs: nothing to lose.

  “And what was the basis of that belief?”

  Sullivan and his colleagues stir on the front bench and in response perhaps, Moses tries a half-hearted objection that Sonny promptly overrules. If confidentiality had been waived, the patient information became public, which might be critical under the insider-trading laws.

  “I had signed waivers,” Hartung answers.

  Surprise, like some measurable voltage, passes through the courtroom. Stern can see Moses staring at Hartung. Obviously, he had no idea about this.

  “Do you have those waivers with you?”

  Sullivan rises again and says, “Your Honor, may we be heard?”

  Sonny wheels toward Sullivan and actually bangs her gavel on the wooden block on the bench.

  “Mr. Sullivan, you are in contempt. I said before that you are a stranger to these proceedings, and I have told you not to interrupt. Furthermore, Mr. Stern and Ms. Stern have articulated a clear theory of relevance, which I have allowed. How much money, sir, do you have in your pocket?”

  No one moves for a second.

  “Your Honor—”

  “How much?”

  Sullivan reaches into the pocket of his woolen suit, a subtle plaid, and pulls out a pile of bills neatly folded into a gold money clip.

  “Four hundred sixty dollars,” he answers.

  “You can keep thirty for a cab to the airport and a hot dog when you get there. Give the rest to the clerk.”

  Luis, the clerk, stands and extends his hand. Sullivan looks forlornly toward the judge, then steps forward to surrender his money.

  “Now, Mr. Sullivan, if any further matter arises where I think it would inform the court to hear from Ms. Hartung’s representatives, I will call on you. Otherwise, refrain from interrupting again in any way. Ms. Hartung, the question was whether you have the written waivers you testified about with you. Do I take it that they are in Mr. Sullivan’s possession?”

  “Yes.”

  “Mr. Sullivan, please come up here to the sidebar and show the waivers to Mr. Stern, Mr. Appleton, and me.”

  Miller Sullivan, who has the look of a gong that has been struck, has not moved since he sat down again. Summary contempt, which is what Sonny just convicted him of, is a crime, and bar disciplinary proceedings will follow automatically. He now directs a whispered comment to the young lawyer beside him on the front pew, and she sorts through her briefcase before handing a manila file folder to Sullivan. He brings it to the sidebar, and all the lawyers follow him. He gives the folder to the judge, who pages through it briefly. Quick as a lizard, a tiny smile passes over her lips and disappears, then she hands the folder to Stern. Marta is over his left shoulder and Moses and Feld are on his right as he opens it. Marta actually reaches up to give her father’s arm a quick squeeze. This is gold. The five waivers are all written on the stationery of the Neucrisses’ law firm. The wording is identical, except for the signature and the name written below it of the family member who is identified as the executor of the estate of the patient who died.

  “May I inquire about these?” Stern asks the judge.

  “Yes, of course, Mr. Stern, but give Mr. Appleton time to make objections to any question.”

  The lawyers prepare to depart from the sidebar.

  “Your Honor,” says Miller Sullivan.

  “No!” Sonny responds, loud enough for the jury to hear, as she points at him. New York lawyers travel elsewhere accompanied by various presumptions, that they are pompous and overaggressive, and those preconceptions have undoubtedly worked to Miller Sullivan’s disadvantage. Sonny is angrier at Sullivan than she was at Stern earlier in the case.

  Sullivan, met by his colleagues wh
o have remained several feet behind, trudges back to his seat, while Moses and Feld whisper together before getting back to the prosecution table. For a prosecutor, nothing is worse than the unexpected.

  Facing Hartung again, Stern has her acknowledge that the documents he is showing her are the waivers she received from the Neucrisses’ office.

  “Before receiving those waivers, did you have conversations with one of the Neucrisses?”

  Stern actually holds up a hand to give Moses time to object, and he shakes his head no. He is done trying to protect the Wall Street Journal.

  “Anthony Neucriss.”

  That’s one of the sons. No mystery anymore who Hartung’s source was for these stories. That leaves the eternal question of what underhanded deal the Neucrisses made to get the information in the first place, but Stern knows there will be no answers here. That is like asking where a dog got its bark. The best guess may still be the FDA, although the Neucrisses also might well have paid someone there for the information. The civil lawyers will get to fight that out with the Neucrisses through several layers of appeals over the next few years.

  “Now these waivers, as you understood them, Ms. Hartung, are unqualified—are they not?”

  “Yes.”

  “Meaning the patients’ legal representatives had given up any right to keep the medical information related to these deaths confidential.”

  “That was how I understood it.”

  “So, if someone happened to have heard about these deaths and chose to sell stock in Pafko Therapeutics, they would not have been doing it on the basis of confidential information?”

  Moses objects this time. “Calls for a legal conclusion from a nonlawyer. Speculative.”

  “I’ll sustain the objection to the question as argumentative,” says Sonny.

  “But when you published the information about these deaths, you did not believe it was confidential.”

  “It wasn’t,” says Ms. Hartung. This is an unexpectedly good moment for the defense. Feld has already signaled how the government will respond: The information remained confidential in Kiril’s hands, because he had a duty to act in his shareholders’ best interests and not to unload his stock before they had an equal opportunity to do so. But that is a complicated legal question that Sonny will have to decide before turning some part of the issue over to the jury at the end of the case. At least, finally, the Sterns will have something significant to say in reply to the insider trading charges. The rest of what Stern and Marta have planned by way of defense is, at best, smoke and mirrors.