Farnsworth told them that the list of excuses from jury service was short-“This is service to your country, and service requires sacrifice”-and only when she asked whether any of them had views on the patent system that might affect their ability to render a fair verdict, did a hand shoot up. In the second row, a pale middle-aged woman with flyaway gray hair rose from her chair. “The American patent system is a travesty! It's a criminal conspiracy by corporate America to raise prices and keep poor people from getting the drugs they need to stay alive.”
There was nervous laughter among her neighbors and a few murmurs from the gallery. Seeley flipped through the lined pad, but before he could find the page, Palmieri pointed at his computer screen. Faye Simberkoff was single, a graduate of the UC Berkeley information science school, and now worked at a public library in Oakland. When Seeley looked up, Farnsworth was waiting for him to challenge the prospective juror for bias.
Seeley knew that if he challenged Simberkoff, the judge would excuse her from the jury, but he didn't want to leave the thought hanging in the courtroom that patents are bad, nor did he want any juror to think that he had silenced the woman's views.
“It would help us decide whether to challenge for cause, Judge, if Ms. Simberkoff could expand a bit more on her thoughts about the American patent system.”
Farnsworth saw what he was doing, didn't approve, but asked the librarian to continue if she wished. Vigorously gesturing with a raised fist, the woman enlarged her indictment of the patent cabal to include Wells Fargo Bank, Aetna Insurance Company, and the Roman Catholic Church. This time when Farnsworth said, “Mr. Seeley?” he asked that she be removed for cause, and the judge excused her.
Barnum had positioned himself at the side of counsel's table, where he would, as Seeley anticipated, obscure the jury's view of Palmieri. As the questions continued, Barnum regularly leaned his heft across the table, blind to Palmieri, who was between them, to whisper that Seeley should challenge the prospective juror for cause. Seeley nodded, as if weighing the advice. He had already decided to use one of his peremptory challenges for a pediatrician whose background would give him more credibility with the other jurors than he deserved. Usually physicians try to get out of jury duty, and it bothered Seeley that this one did not; he pictured him in the jury room explaining to the others how Steinhardt's discovery was entirely obvious, and thus unpatentable.
Farnsworth excused two jurors on her own-a woman with a job that made a two-week absence from work difficult, and a man with nonrefundable air tickets to London-and a third, a research employee of the world's largest patent owner, IBM, on a challenge from Thorpe. As each excluded juror departed, the clerk called out another name from the gallery, keeping the fourteen seats filled, until one prospective juror remained whom the judge had not yet questioned, a young-looking software engineer from a small Silicon Valley company.
Palmieri pointed at the laptop screen-Gary Sansone-but Seeley had already started to think of him as the “kid.” With a blond ponytail and a jockey's wiry build, Sansone had an easy smile and the kind of natural authority that could move the others on the jury, even though all of them were older. At Thorpe's request, Farnsworth asked Sansone whether, as an employee at a start-up company, he might have a bias against a giant, multinational pharmaceutical company.
The kid grinned. “That would depend, Your Honor, on how evil and grasping a multinational it is.”
The jury box broke into laughter, and for a full second a smile lit Thorpe's face as he joined in. The jury expert, seated next to him, tugged hard at the hem of his jacket, but he brushed her hand away. With a chuckle in his voice, Thorpe said, “We have no problem with this juror, Your Honor.”
Thorpe had begun his own seduction of the jury. Farnsworth would use her solicitude to make the jurors feel that they were part of her team. Thorpe's tactic was more subtle. Having now seen the phantom of a smile from this austere, sorrowful man, the jurors would work to please him if that was the price to see him smile once more.
The jury liked Sansone, and they wanted Thorpe to like them, both of which meant that if Seeley tried to exclude the kid, he-and his client-would at once become the villains of the trial, even before opening statements. So far, he had measured each of the prospective jurors against a single question: How deeply would Steinhardt's arrogance offend this man or woman? Now, applying the same question to Sansone, he worried. According to the notes Seeley had jotted on the legal pad in front of him, the kid had taken premed classes, mostly in biochemistry, before switching to an electrical engineering major at Santa Clara University. His hobby was bicycle racing, and he read journals like Science and Cell. He might be sympathetic to Vaxtek as a small company but, like the pediatrician, he could also be the authoritative figure in the jury room who second-guessed Steinhardt and the science behind AV/AS. He could be the juror who kept Seeley from the unanimous verdict he needed.
Seeley decided not to fall into Thorpe's trap.
“We have no objection to this juror, Judge.”
“Then,” Farnsworth said, “if you each exercise your three peremptories, we'll have a jury.”
Seeley tore off from the legal pad the remaining fourteen pages on which he'd written the names and backgrounds of the prospective jurors, and spread them across the table. Barnum pointed at two of the pages, one of them Sansone's. “You can still kick him off,” he said.
Seeley looked past Barnum to the jury box, into the arresting, deep blue eyes of Sansone, then shook his head and picked instead the pediatrician and the two who said their hobby was foreign travel, guessing that, perhaps more cosmopolitan than the others, they would be less responsive to the patriotic bias he had built into his case-protecting American research ingenuity against a foreign poacher. When Palmieri agreed, he wrote the three names on a fresh sheet of paper.
Thorpe was already at sidebar, waiting to hand his three candidates up to the judge. Farnsworth took the two sheets, compared them and removed four of the Post-its she had placed on a chart that indicated the numbered seats in the jury box.
“You see this sometimes,” she said. “You both want to remove the same person.” The retired career counselor whose hobby was foreign travel. She returned their sheets to them. “Why don't you try again.”
Seeley considered what Thorpe's reasons might have been for excluding the career counselor, and again wrote in her name. He folded the sheet and handed it to the judge. Thorpe wrote on his piece of paper and handed it up. This time, after comparing the peremptories, Farnsworth smiled and removed two more Post-its from the chart, leaving eight.
“We have a jury,” Farnsworth said. She handed the chart down to the clerk, and nodded to her to swear in the jury. After that, the judge told them what their duties would be, the procedures they would need to follow in coming to court every day, and cautioned them not to read, watch, or listen to any press coverage of the trial.
Four white faces looked out of the jury box, one Asian, two His-panics, and one black. Five were women, three men. Their ages ranged from twenty-six to seventy-one. Among them were a retired school-teacher; a real estate broker whose avocation was collecting antique dolls; two secretaries, one with a graduate degree in education; a hospital nurse; an AT amp;T cable splicer from Napa; an accountant who said she lived with her “domestic partner”; and Sansone, the kid.
Rolling his chair back and forth at counsel's table, Barnum was a worrier. “The one with the ponytail,” he said. “You're sure he won't be a problem?”
“No,” Seeley said. “I'm not sure.”
“I'm not surprised,” Barnum said. “He reminds me of you.”
From inside the elevator, Thorpe looped his arm around the door, holding it open for Seeley and Barnum. Dusollier, already there, nodded at Seeley. Thorpe introduced the two strangers from the defense table, partners in a well-known Chicago intellectual property boutique. Seeley recognized the names-Witkin and Gallagher-from the depositions that he'd read while he was still in Buffa
lo. Under the fluorescent light, Thorpe's complexion was gray and mottled with age spots. High on each cheek was a scattering of hairs that the razor had missed, each as fine as an eyelash. Seeley studied the face for some evidence of what Thorpe might have been like as a younger man, something in the set of his jaw or a trace in his eyes that might betray a spark of wonder or curiosity, even will. But if a light ever burned in those dark, rimmed eyes, it had gone out long ago.
The elevator opened to the dimly lit lobby, and Thorpe waited for Seeley while the others walked to the double doors.
“Your reputation precedes you, Mr. Seeley-or may I call you Michael? I'm honored to be your adversary.” As in the courtroom the gravelly voice was reserved, even somber.
Seeley said, “I'm sure it will be an interesting trial.”
“It's a tragedy about Bob Pearsall.” Thorpe rested a hand on Seeley's arm. “Did you know him?”
Seeley turned to escape Thorpe's touch and said, “Did you?”
“How well do we know anyone?” When Seeley didn't respond, Thorpe said, “We had lunch from time to time. He was in a small poker group we have, some local trial lawyers. We get together once or twice a month.”
“What about his family?” Seeley was still unsure why Judy asked him, and not one of her husband's friends, to look into the police handling of his death.
“You mean the loving wife, the adoring daughter? Judy told me you've taken an interest in this.”
“Only because she asked.”
“Surely you've been practicing long enough to know how appearances can deceive. I've been married to the same woman for fifty-three years. My wife is my bridge partner, my life companion, and I devoutly believe that she has been faithful to me all this time. But do I really know that? Would I stake my life on it? Of course not.”
The privacy of the observation startled Seeley, but it was so offhand that he wondered if it was something Thorpe had said many times before, including to strangers.
At the security barrier, one of the guards greeted Thorpe by name, but he ignored it or didn't notice. Thorpe said, “So you don't think Bob threw himself in front of a train?”
“He took pictures of birds. He read philosophy.”
“Bob was a complicated man. He had his secrets.”
Seeley said, “But you're not going to share them.”
“If I did, they wouldn't be secrets.”
Seeley thought Thorpe would smile at his own remark, but he didn't. “What kind of poker player was he?”
“That's what I'm saying. You'd expect someone like Bob to be a methodical player, counting cards, figuring the probabilities, patient, like he was with those birds. But no, he was reckless. He'd bet every hand, so, even if you were holding pretty good cards, you wouldn't know whether to fold. Of course, he lost more than he won, but that never seemed to bother him.”
One the other side of the double doors, a chanting crowd with placards was gathered on the courthouse plaza. Television cameras moved around the protesters.
Seeley said, “What kind of poker player are you?”
Thorpe gave the question more thought than it needed. “Methodical. You could say I'm a methodical player.”
Thorpe had been playing poker with his peremptory challenge to the retired career counselor.
“And close to the chest?”
“Yes, that, too,”Thorpe said. “We should have lunch next week.”
Seeley said, “The week after would be better.”
“Of course, after you've put on your case. Our clients will want us to discuss settlement one last time.”
Thorpe went through the double doors-briskly, Seeley observed, shedding his courtroom torpor, making his way in the direction of the thirty or forty chanting protesters. One shook a placard at him, PILLS NOT PROFITS, but Thorpe moved past the crowd to where the news cameras and microphones were. Seeley knew that Thorpe wouldn't answer the reporters' questions so much as he would use the press to send Wall Street a message prepared by St. Gall's public relations and investor relations departments.
A slight-figured young woman in jeans, turtleneck, and down vest came up to Seeley, her hand outstretched.
“Michael Seeley? I'm Gail Odum from the Chronicle.”
The business reporter. For a disconnected moment, Seeley imagined that the stenographer's pad in her other hand was Pearsall's, and that she had found a notebook Seeley missed.
“What did Lily Warren tell you about your case?”
Seeley said, “You don't even know if I called her.”
“She told me you met, but she wouldn't tell me what you spoke about.”
Across the plaza, Thorpe was talking to a news crew, and several of the protesters had moved behind him to be on camera. Palmieri was a few feet away from the crowd, but Seeley couldn't see whether he was listening to Thorpe or talking to one of the protesters, a tall, rangy man with curly blond hair. When Seeley turned back to Odum, Barnum was coming toward him from the courthouse.
Seeley said to Odum, “Why would it matter to you, what we talked about?”
An automobile horn blared at the intersection, and Seeley didn't know if she heard him.
“I know that Lily and your inventor, Steinhardt, worked together at UC before they split up and went to work for competitors. Then your client sues St. Gall and she gets fired. It has to be connected to your case.”
The parties' stipulation on priority nowhere mentioned Lily's presence in Steinhardt's lab at Vaxtek, and Lily, desperate to keep her visa, would not have told Odum about the incident.
“Maybe it was a coincidence.” Seeley was aware of Barnum standing behind him, listening.
“Or,” Odum said, “maybe there's a romantic angle.” The reporter had a nice scent about her, nothing as intense as perfume-soap, maybe, or her shampoo.
Seeley said, “I'd think that would be for the gossip page, not the business section.”
Odum laughed. “At the Chronicle, the business section is the gossip page.”
She had a nice laugh, too, and Seeley guessed that she used it to pry out facts.
Trailed by a cameraman, the television newsman who had interviewed Thorpe was coming toward Seeley. Several yards behind, the tall curly-haired protester separated himself from the group and followed.
Seeley said to Odum, “If anything comes up that's newsworthy, and that I can give you, I will.”
Odum said, “On the phone, you promised that if I got Lily to call you, you'd give me an exclusive.” The smile looked genuine. “And let me decide whether it's newsworthy.”
As she went away, Barnum leaned into Seeley. “You didn't tell me you talked to the Chinese girl.” Seeley turned from the approaching television crew to keep the conversation private. Barnum said, “All you need to know is that St. Gall stipulated priority. You're running off in all directions. The Chinese girl. The police about Bob Pearsall. You've got a trial ready to start.”
“And, if Steinhardt is going to testify, I don't want any surprises.”
“What kind of surprises?”
“That's what I'm trying to find out.”
There was a clatter of equipment behind Seeley. “Jeff Fox, Counselor! KBAY television news!”
Seeley turned. The sprayed, blow-dried hair and unnaturally pink face gave the reporter the appearance of a heavily retouched photograph. Below the showy tie and jacket he had on worn jeans and scuffed running shoes, but the camera, just a few feet away, wouldn't catch them.
The reporter held the microphone an inch from Seeley's mouth. “Vaxtek is a tiny company in South San Francisco. Tell us what your client's chances are of winning this case against a multinational giant like St. Gall.”
“That's what the trial's for, isn't it?” Seeley watched bewilderment creep into the buffed and polished face. “So a jury can listen to the evidence and weigh the facts, and then decide who has the stronger claim.”
The car horn blared again. The reporter said, “But your opponent, Emil Thorpe, just expla
ined to our viewers why your client's case is so weak.”
Thorpe's remarks had doubtless brimmed with confidence that St. Gall could not possibly lose. And when, in two weeks his client did lose, the company's public relations staff would hand him a statement that explained why the loss was really a win.
Seeley put on his widest actor's smile and looked squarely into the camera. “I'm sure Mr. Thorpe has already more than fulfilled your viewers' need for entertainment this evening.” He turned away abruptly before the reporter could follow up, and found himself inches from the curly-haired activist.
In black jeans and a sleeveless sweater over what looked like a Hawaiian shirt, the man was younger and taller than he had appeared from a distance, and Seeley experienced the rare discomfort of having to look up to someone who wasn't a judge sitting on a bench.
“This trial is an outrage,” the man said, smiling directly at the news camera. Only the golden puff of a goatee spoiled his scrubbed all-American good looks. “How can this man defend a patent that will make it impossible for millions of people to get a lifesaving drug?”
Before Seeley could answer, the newsman signaled his cameraman to come in closer and Barnum shouldered his way to the camera. “We've spent half a billion dollars on AV/AS,” Barnum said. “That makes it our property.”
The protester said, “So you get rich while people die.”
“We have a responsibility to our shareholders.”
“So they get rich while people die.” The protester's smile turned into a mocking laugh.
Seeley didn't like trying a case in the media, but Barnum could say something truly damaging, and he worried that one or more jurors would forget Judge Farnsworth's closing request to stay away from the news.
Seeley edged in front of Barnum. “Unfortunately,” he said to the camera, “discoveries like AV/AS don't just happen. What Mr. Barnum is saying is that they consume money, lots of it.”
A Patent Lie Page 13