The Last Trial Read online

  ‘Dad, you need to know something. Solomon and I have reached a decision. We’re going to retire. I want to start winding up by the end of the year.’

  In the moment, it felt as if she was telling him she was going to die. He was too flabbergasted to answer. Marta leaned toward him, her hands joined pleadingly.

  ‘I’ve loved working with you, Dad. I’m one of the most blessed people I know. But Sol and I have a lot of life left and we want to do other things.’

  ‘What have I been working for?’ he finally stammered. It has been his fixed assumption that Marta would be the beneficiary of the years of intense labor, the lost nights and weekends that always have felt to Stern as if they are somehow reflected in the rich glow in his office’s dark paneling. But he knew his words were a mistake as soon as he heard himself.

  ‘Jesus, Dad,’ Marta said indignantly. ‘Talk about manipulative.’

  He lifted his hands, he now the one imploring.

  ‘Marta, I apologize. That is not what I should have said. Nor even what I meant. This news requires some adjustment.’

  ‘Half the defense lawyers in this city would be happy to come into this practice. We both know that. My stepping aside is probably going to be a bonanza for you.’ She was referring to the price another lawyer would pay to be known as Sandy Stern’s law partner and to inherit the flow of calls that will still come here for years.

  ‘This is not about money, Marta,’ he answered. It was something of a touché in their conversation and made up a bit for his gaffe of a moment before. Nonetheless, in the ensuing silence, he could do little more than shake his head. ‘I had no inkling,’ he said.

  ‘Neither did we,’ his daughter said, but their logic, as she explained, made sense. Money had long since stopped being an issue for Solomon and her. Their youngest child, Hernando—called Henry for Marta’s grandfather—was about to graduate college. There was now an interval when they could travel freely before Clara, their daughter, would presumably begin a family, which would keep them here more. Marta’s small eyes were intent as she detailed their thinking.

  ‘It’s not as if I’m rejecting you,’ she added.

  But she was. Not in a way that was inappropriate. Yet she was rejecting what was most important to him, what defined him. She was an outstanding lawyer, but she was admitting that she did not share her father’s consuming faith in the law that for him rivaled what many feel for religion.

  That night, he slept little, trying to put together the pieces. He went to her the next morning as soon as he arrived at Morgan Towers. Marta’s office is of the same large dimensions as Stern’s, something he insisted upon. Nevertheless, her space is far less formal than her father’s, which she routinely compares to an upscale steak house, with its low light, pleated crimson leather seating, and stained-glass lamps. Marta’s office is never neat. There are stacks of papers and boxes all over the room, and the walls are crowded with family pictures and abstract art. The furnishings, mid-century modern, teak-armed pieces, always look to Stern like they have been rescued from Goodwill.

  ‘Marta, sharing my profession with my child, working with you side by side—this has given me a pleasure as deep and fundamental as breath. But we both know that my energy for this is waning. I am grateful you have stayed here as long as you have. When you retire, so will I.’

  She was still for a second.

  ‘You can’t blackmail me into staying,’ she said coldly.

  ‘“Blackmail”?’ He had spent most of the night composing these words. Disbelieving and stunned, he sunk into the chair in front of her desk.

  Between them, for years, it sometimes seems that there has been a contest to decide which of them is more awkward, more obtuse, the bigger clod. After a second, Marta appeared to recognize that she was today’s winner. She swept around her desk and folded her father in her arms. Always quick to cry, she removed her reading glasses to dab at her tears.

  ‘Dad, I would hate to think I was forcing you to shutter the office.’

  ‘You certainly are not. As you pointed out, I could easily combine with a younger partner. This is my choice, Marta.’

  ‘Dad, what will you do, if you aren’t practicing? I never even considered that you’d quit.’

  ‘What do other people do? I shall read. Travel if my health holds out. Perhaps I can mediate or consult. I can go down to the Central Branch Courthouse and step up on cases for free.’ He’d had that vision for years: nudging aside an overburdened public defender and standing beside some woebegone boy in handcuffs and an orange jumpsuit. In Stern’s fantasy, the shock in the courtroom would be as palpable as if Superman had appeared in his cape, announcing he was here to stand up for Truth, Justice, and the American Way. Of course, the reality these days was that if anyone even recognized Stern’s name, it would probably be only the judge or the more elderly court personnel, and certainly not his would-be client.

  So together Marta and her father made their announcement. Marta agreed to put off retirement until the conclusion of the Pafko trial. After that, Stern & Stern would close its doors. From his colleagues, Stern encountered considerable skepticism. Wasn’t he the one who’d always asked why a healthy person would quit doing the one thing in life at which he’d always most desired to succeed? In the worst moments of chemo a decade ago, when he often felt too weak and sick to get out of his chair, he was in the office nonetheless.

  After Helen passed, everyone told him that in the first year or two, the survivor of a happy marriage either dies or resolves to go on. But going on doesn’t have to mean going on the same way, does it? A period of redefinition could be invigorating. He makes similar statements frequently. But at night, he often feels like he is leaping into a void as terrifying as death. Still, he has not wavered publicly. For Marta and him, US v. Pafko will be the end. Which has raised the stakes in many ways.

  “Dad, you need to be careful,” Marta tells him now. “If I had to read Sonny’s mind, she’s probably more inclined to think you’re playing her by claiming to be old and confused. She knows you well enough to understand how much you’d love your last verdict to be a not guilty, especially in a case no one thinks you can win.” Inclined to protest, Stern mutes himself. Winning is like sex—the spirit inevitably craves the next occasion. “But you don’t want her thinking you’d step over the line to get that result. You’ll end up damaging a relationship that means a lot to both of us. And it will be bad for Kiril if Sonny stops treating you with mega-respect.”

  He can only nod. He has practiced for sixty years believing that his duty to the law is even greater than his duty to individual clients. It would be catastrophic to his judgment of himself if his last acts in the profession took him beyond the boundaries he has always faithfully observed.

  II. MURDER

  7. Day Two: The Victims

  The government commences its case against Kiril Pafko on Wednesday morning with the testimony of Mrs. Aquina Colquitt of Greenville, Mississippi. Mrs. Colquitt, slow-speaking and unfalteringly polite, is everybody’s granny, just a little plump and gray, with large spots of rouge on her cheeks and a springy hairdo that suggests Mrs. Colquitt, even these days, sleeps in curlers. In grim detail, she describes the death of her husband, Herbert. Mr. Colquitt had begun treatment with g-Livia virtually the day the medicine shipped, since his oncologist regarded it as Herbert’s best hope. But one night, after fourteen months of twice-monthly injections, he became feverish with a rapid heartbeat and was admitted to the hospital. Mrs. Colquitt was with him the next morning for his violent death, as he suffered rigors, choking, and uncontrolled vomiting. Herbert took on a scarlet glow as he struggled for breath, while the code team failed with every lifesaving measure.

  “It was like Satan hisself had a grip on Herb and was takin him down,” she says. Appealing as Mrs. Colquitt is, the prosecutors have an added reason to make her their first witness. Utterly mystified by Mr. Colquitt’s sudden symptoms, his doctors, after receiving the family’s permission,
assigned a med student working with them to briefly video what was occurring. The clip is only about twenty seconds, but it is devastating.

  AUSA Dan Feld, in his first speaking role before the jury, conducts the direct examination. As the monitor finally darkens, Feld gazes at Mrs. Colquitt with an agonized look and whispers “Thank you” before taking his seat. The courtroom remains in reverent silence as Marta approaches the podium.

  She introduces herself to Mrs. Colquitt as one of Kiril’s lawyers, and then gestures to the defense table. “Mrs. Colquitt, we want to offer our deepest condolences.” The Sterns have agreed to play to type, concluding that the jurors are more likely to accept the required display of empathy from a woman.

  “Thank you, ma’am,” Mrs. Colquitt answers.

  “Now, Mrs. Colquitt, let me ask you about your husband’s treatment with g-Livia before these final events. Did it seem g-Livia was making him better?”

  “Objection,” says Feld.

  Sonny angles her face warily. “Grounds?”

  “Whether g-Livia worked or didn’t work for a period of time is irrelevant. The question is solely whether it killed him.”

  “Ms. Stern?” asks the judge.

  “Among other things, Your Honor, the positive effects of g-Livia are relevant to the defendant’s intent, which the state must prove beyond a reasonable doubt.”

  Sonny thinks about that. “Overruled.”

  “Your Honor, may we be heard?” asks Feld.

  “After the witness, Mr. Feld. Ms. Stern may proceed now.”

  Marta has the court reporter read back the question to Mrs. Colquitt.

  “The doctors and the nurses and them, they said he was better.”

  “Did scans show that his tumors were decreasing in size.”

  “Yes, ma’am. That’s the very thing they said.”

  “And did he seem better to you?”

  “For that first time, yes, ma’am. Much better. He was just sufferin so from the chemo and what all. He was a lot better.”

  “As far as you were concerned, as his wife, Mrs. Colquitt, would you say that g-Livia had caused Herbert’s quality of life to improve?”

  “Oh yes, ma’am,” she answers. “Until it kill’t him. To my mind, that’s not what I’d call improvement, you know.” There is isolated laughter in the courtroom and Mrs. Colquitt looks about somewhat abashed. “Not tryin to be smart or nothin. But Herbie, he was happier, I’ll say that. He had started in lookin at the brighter side, I’d say. Cause he wanted to live, you know.” She’s avoided tears until now. Equipped with an embroidered hanky wrapped over her hand, she now brings it to her eyes.

  On redirect, Feld asks the right question, whether Mrs. Colquitt, having it to do over again, would want her husband treated with g-Livia.

  “No, sir, not at all. He just didn’t get the time the doctors said they was expectin.”

  With that, Mrs. Colquitt is excused. Stern notes that every one of the jurors turns to watch her leave the courtroom in the company of her son and daughter-in-law. As a result of their decision to include murder charges against Kiril, the prosecution has scored big to start.

  It was Marta, who enjoys a less formal relationship with Moses than Stern, who brought back the astonishing news several months ago that the US Attorney was going to include murder charges against Kiril. It seemed a classic example of what is referred to as ‘overcharging’ a case, calling a bunion a tumor, with the resulting damage to a prosecutor’s credibility.

  But as the Sterns continued to prepare Kiril and themselves for his indictment, they began to comprehend Moses’s logic. For one thing, the law is far more favorable to the government than Stern had anticipated, given the fact that it has never been applied in a similar context. First degree murder in this state means killing someone unlawfully and knowing, in the words of the statute, that “the acts which cause the death…create a strong probability of death or great bodily harm to the individual or another.” The prosecutors say that, in continuing to market g-Livia after finding out that the drug could engender a lethal reaction, Pafko knew there was a strong probability some patients would die.

  In dealing with Moses, you can never leave aside the influence of his Old Testament morality. He thinks Kiril is a bad man who has done a bad thing, not only lying for profit, but also subjecting thousands of people to a danger that ended many lives. It’s simple justice, in Moses’s view, that Pafko stand trial for that.

  Yet, as Marta and Stern war-gamed the moves and countermoves that would go on at trial, they recognized that Moses also gained important tactical advantages by alleging murder. A case limited to fraud and securities charges would be tedious, with a lot of bureaucratic testimony. Worse for the government, Kiril’s alleged fraud involved fooling the FDA into approving the medication by hiding circumstances—the alleged fatalities—that required further investigation. But in the narrow view of the law, whether anyone actually died because of g-Livia would be irrelevant, and the jury would be instructed not to speculate about that.

  With murder charges, on the other hand, the government can prove the fatal effects of g-Livia on specific patients and commence its case with the dramatic testimony of the family members who watched their loved ones perish. The treating physicians will testify next that they could not save their patients, because they were not warned that a severe allergic reaction—which is now the consensus view about what was going wrong—was possible. In the duel of courtroom impressions that is every trial, Kiril must endure a merciless beating at the start.

  Yet the murder charges also have enhanced Stern’s modest hopes for an acquittal. To the jury, those allegations, not fraud, will become the heart of the prosecution, and there are many obstacles, legal and factual, to proving murder beyond a reasonable doubt. If the Sterns debunk murder, there is a chance the jury will turn its back on Moses’s entire case.

  Once Mrs. Colquitt is gone, Sonny calls a recess to allow argument on Feld’s objection that the defense should be barred from asking the so-called victims whether g-Livia in fact had helped the patients before they died.

  “This ‘victim’ testimony,” says Feld, employing the word he can’t say often enough, “is being offered only to show that g-Livia actually killed these persons, as the murder statute requires. Whether the drug worked for a period of time is irrelevant.” At the end of the day, this is the greatest single weakness of the murder case: g-Livia works. Yes, the murder statute reaches to a gangbanger who kills someone else when shooting at a rival in a drive-by, but could the gang member be convicted of murder if, in firing, he also magically made others invulnerable to bullets? The analogies are imperfect. But the questions are obvious.

  Seemingly realizing that the positive effects of g-Livia might mitigate the crime, the government carefully chose the victims named in the indictment. All had stage 2 non–small-cell lung cancer, meaning the disease had progressed no further than the lymph nodes on the same side as the tumor. Thus, with the treatment regimens standard before g-Livia, these patients were all expected to survive longer than the thirteen to eighteen months each had gotten. Even so, the jury will inevitably hear something about g-Livia’s benefits, since that is part and parcel of the clinical trials that are central to the government’s case. What Feld is arguing now is a legal point, that the good g-Livia did some patients does not constitute a defense to murder.

  Rather than raise the issue before trial, the prosecutors seem to have decided that they will fare better on the off chance that they catch the Sterns—and the judge—flat-footed. They have not, however. Marta is armed with several arguments and supporting cases, and it is her last line of attack that seems to gain the most traction with the judge.

  “Your Honor,” Marta says, “the government needs to show in the words of the state murder statute a ‘strong probability’ that Dr. Pafko’s acts would lead to deaths and he knew that. There is no question, therefore, that the defendant is entitled to show the helpful effects of the medication,
since, from his perspective, it affected the probabilities.”

  “That’s a red herring, Your Honor,” Feld answers. “The strong probabilities—the overwhelming probability—remained that someone was going to die from this drug, even if it helped some people, even most people.”

  “Judge,” says Marta. “Dr. Pafko’s assessment and the probable effects of g-Livia are issues for the jury to decide, not Mr. Feld. And to do that, the jurors must know the full gamut of the results, not just the bad examples the government wants to cherry-pick.”

  The cases decided by the state courts throw little light on the question of what constitutes ‘a strong probability,’ mostly because the murder statute has never been applied in a circumstance like this. Sonny leaves the bench for ten minutes, to do her own quick study. Returning, she says simply, “The government’s objections are overruled. The defendant may show the positive results of treatment with g-Livia, certainly in the cases of the persons alleged to have been killed. We’ll have to hash out the finer questions of law at the end of the case when we get to jury instructions.”

  This is the Sterns’ first concrete victory on Kiril’s behalf.

  The testimony resumes with the son of a woman who died shortly after a year of receiving g-Livia. For the Sterns, the only strategy that makes sense is to get the so-called victim evidence over as quickly as possible. In the wake of Sonny’s ruling, Feld alters his examination of the son to include a question about whether g-Livia improved his mother’s condition for a while. Accordingly, when the man’s direct is over, Marta stands and says, “You have our deepest condolences. The defense has no questions.”

  The next witness is Mr. Horace Pratt of Maine. Feld is clearly hamming up this part of the case, and Mr. Pratt gets on the stand looking like the farmer with the pitchfork from the painting American Gothic. He is dressed in khakis and a flannel shirt buttoned to his throat.