by Scott Turow
“Now, Ms. Hartung, when you spoke to Anthony Neucriss, you understood his business to be as a plaintiff’s personal injury lawyer, did you not?”
“Yes.”
“And you understood, as you were writing your story, that the Neucrisses intended to file lawsuits against Pafko Therapeutics on behalf of each of these families, seeking in each case many, many millions of dollars in damages?”
Moses stands up, just as a placeholder, while Feld and he confer at the prosecution table. Moses then shakes his head at the judge and sits down.
Hartung says yes.
“So you were aware when you published your article that it would be detrimental to PT and Dr. Pafko?”
Bias is always relevant. Hartung understands that she has to wait for Moses, but he again declines to object.
“That wasn’t my intention, Mr. Stern, but yes, I understood that would happen.”
“Did you ask yourself, Ms. Hartung, why personal injury lawyers would want this information published before they filed suit?”
“I thought about that.”
“And what was your conclusion?”
“I knew nothing for sure.”
“Did it occur to you that if the information was published, that would appear to be the source of information for the lawsuits they filed?”
“Yes, that occurred to me.”
“Meaning, as a result, the Neucrisses could hide the fact that they were the actual source of your information?”
Moses, apparently feeling this has gone far enough, stands to object and Sonny shakes her gray curls severely.
“Veracity,” she says, meaning that Stern is entitled to test the truth of what Hartung has said on the stand or in her stories, by showing that she understood that there was a deceptive element.
“You could put it that way. I also thought, frankly, that because they would have the first lawsuits on file, several other families might contact the Neucrisses to be their lawyers, after my story was published.”
Stern nods approvingly. “Your story was part of their business development strategy?”
Moses has no interest in protecting the Neucrisses and remains seated when Gila Hartung again looks in that direction.
“You could say that.”
“And did the Neucrisses ever indicate to you how or from whom they received this information about the problems with g-Livia?”
Stern feels considerable anticipation. The next answer could tear the government’s case wide open. On the front pew, the male lawyer who came in with Sullivan, much shorter than the senior partner, stands. Sonny smacks the gavel even before he can speak.
“This is not a game of whack-a-mole. Sit down, sir. If I have to warn any of the three of you again, you will walk to the airport.” Knowing the habits of big firm lawyers, Stern takes it for granted there is a limo waiting downstairs, but Sonny has made her point. The judge asks the court reporter to read the question back, and Hartung shakes her head.
“They would not discuss that.”
Stern nods. He looks to Marta, unsure of whether he is done, and she motions him to the table. She has Hartung’s initial story in her hands and she’s marked a couple of lines in yellow. Stern stares at his daughter, awaiting the somewhat telepathic process that has always gone on between them in the courtroom. After another instant, he takes her point.
He faces Hartung. Perhaps there is something militant in his posture, because out of the corner of his eye, he can see several of the jurors straightening up.
“Now, even though the patients had made an unqualified waiver of their rights to confidentiality, you did not publish the names of the physicians or the patients?”
“I did not.”
“And your article says, ‘Names are being withheld to protect the privacy of the patients and their families.’”
“That’s what it says.”
“And had the families actually made that request?”
“I hadn’t received that request from the families.”
“You received that request to withhold the names from their personal injury lawyer, Mr. Neucriss?”
“Yes.”
“And was that request in fact made by Mr. Neucriss the first time you spoke to him?”
Hartung says yes.
“And he had contacted you, rather than you contacting him?”
“True.”
“And he said in substance, I have some interesting information for you, but you have to agree not to print my clients’ names.”
Stern is aware of another flurry of motion to his right from the three lawyers from New York. He actually turns to see if any one of them dares to stand up again. At the Journal, allowing source conversations to be heard in open court is probably a firing offense for the lawyer who lets that occur. Half crouched, Sullivan approaches Moses, who waves him away. For the prosecutors, the damage is already done by the waivers, and they won’t make it worse by trying to hide more from the jury.
“That is the substance.”
“And do you understand the business of being a plaintiff’s personal injury lawyer?”
“To some extent.”
“Do you understand that plaintiffs’ personal injury lawyers typically get paid on a contingency, a percentage of what the plaintiff ultimately receives, somewhere between a third and forty percent?”
“That’s my understanding.”
“Meaning that the Neucrisses had many millions of dollars at stake potentially.”
“Potentially.”
“And do you also understand that a plaintiff’s lawyer typically receives nothing if a new lawyer convinces the client to sign a representation agreement, especially before any suit is filed?”
“I would say I know that.”
“So by not publishing the patients’ names you were preventing other lawyers from contacting the families in hopes of representing them?”
“Mr. Neucriss never explained why he didn’t want the names published.”
“My question is this, Ms. Hartung. You’re an investigative reporter, with years of experience. Did it occur to you that Mr. Neucriss was protecting his business interests with that request?”
She takes a second for a deep breath.
“Yes, that occurred to me.”
“And yet you still said in your article that the names were being held to protect the patients’ privacy?”
Given the way journalists see their obligations, they, in Stern’s experience, are customarily resentful and defensive when they are caught fudging. But Gila Hartung has faced truths about herself far more difficult than this.
“I should not have said that in my article,” she answers.
“Thank you,” says Stern and goes back to his seat.
23. A Woman Unknown
Once the jury is gone, Marta gives her father a quick hug. “What a fucking triumph,” she whispers.
Kiril, as always, is gracious with his compliments, but he heads immediately for the little adjacent cloakroom where his coat hangs, moving off so quickly that Stern hurries after him and takes hold of Pafko’s sleeve to slow him down.
“A word, Kiril?”
Pafko immediately checks his watch. Stern assures him he needs just a moment across the corridor in the attorney-witness room, where he immediately steers his client. Kiril looks unusually good today. He has been worn down as the proceedings have gone on, but he appears to have had a good night’s sleep, relieved perhaps that the courtroom confrontation with his son is over. His mood seems brighter, judging from a new yellow pocket square he sports in his blazer.
“Is Donatella well?” Stern asks. She was not in court today. Nor did she return to court yesterday afternoon, following Lep’s testimony. These have been the first sessions she has missed since the trial began.
“Oh, yes,” says Kiril. “In the pink. Just busy with her things. You know Donatella.” Kiril offers the bland, humoring smile that so often helps him politely evade further questions.
�
�I hope she will be joining us tomorrow,” Stern says.
“I would imagine,” says Kiril.
Stern, in spite of himself, finds that he is shaking his head.
“Kiril, I am certain she has had to neglect many responsibilities to be here, but by now the jury is accustomed to her presence. I would not want them getting the wrong idea and thinking there was something in Lep’s testimony that made her support for you waver.”
“Yes, of course,” says Pafko. He nods, but shoots another furtive glance at his watch.
“Also, as long as I have you, Kiril, I wanted to remind you that we are quite likely to see Innis on the stand tomorrow.”
“Ah,” says Kiril, but no more. The back of his manicured hand drifts through space, signaling again that Innis is of little account to him these days.
Stern explains that he has sent Pinky back to PT for a few more documents regarding Innis’s severance package.
“Since the jury will be told that Innis left after a disagreement with you, it might do well to show that you treated Innis generously nonetheless, unless you are aware of some reason not to do that.”
“No, no,” Kiril says. But it is clear to Stern that he does not really have Pafko’s attention, and after another moment Stern lets his client go.
Despite Kiril’s nonchalance about seeing Innis across the courtroom, Stern takes an instant to assess his own mood. Over half a century, he’s cross-examined several persons who were friends, at least until he stood up in court, but given his brief time as a single man, he doubts that list includes a woman in whom he had even the faintest interest. Perhaps tomorrow there will be some little game of I-dare-you between Stern and Innis, as each tries to steer away from confrontation. In the quiet room, he finds himself smiling.
More and more often with Innis, he discovers himself in a response pattern familiar from much earlier in his life. Reason is compiling long lists about why Innis is not a good idea for him, but instinct seems to have a mind of its own. Whether he likes it or not, there is something about Innis he finds deeply compelling, a point demonstrated to him when he got to the courthouse this morning and realized he had left his cell phone on the table at the University Club after their breakfast. Pinky and Vondra made immediate calls to the dining room manager, and by now the phone is safely in hand at Lost and Found, where Stern asks Ardent to take him once he gets into the Cadillac outside the courthouse.
On its upper floors, the University Club operates a hotel, so the members’ out-of-town visitors can be accommodated. The rooms are simple but clean—chenille bedspreads, old TVs, and decades-old bathrooms, but perfect for those traveling on business who want to be economical. The Sterns often make arrangements here for lawyers coming to Kindle County to consult with them. Lost and Found is at the hotel reception desk off the lobby, and as Stern approaches, he is stunned to see Kiril in line in front of him. In his confusion, Stern’s first thought is that for unfathomable reasons, Kiril has come here to pick up Sandy’s phone, a notion he quickly lets go of as making no sense at all. Instead when Stern comes abreast of Kiril in line, he notices that Pafko is holding a key card.
“Why, Kiril,” says Stern. He pats his friend’s arm.
Pafko’s face jerks with a rictus of surprise, then relaxes into that well-practiced, uncommunicative smile.
“Sandy,” he says. Kiril stares another instant at his lawyer, then pats Stern’s arm in return and departs with nothing more said.
Stern steps to the counter and informs the young receptionist about his phone—then ceases midsentence. The interlude with Kiril was too strange. He reminds himself: The client has a right to his secrets. But that doesn’t quiet a nonspecific sense of alarm. He apologizes abruptly to the clerk and follows around the corner where Kiril disappeared.
Stern arrives just in time to see Kiril stride into the elevator, arm in arm with a woman in a stylish coat. Stern has a very senior moment. In his shock, it takes him a fragment of a second to place her, or, perhaps, to believe what he is seeing.
Olga. No question. It is Olga.
Court Wednesday morning sees a parade of recordkeepers trudge to the witness stand to introduce various documents essential to the government’s case: phone records from Kiril’s office, as well as trading records from Kiril’s broker. Ordinarily, the Sterns would have stipulated to all of these documents, that is to say, agreed that they could be received in evidence without the boring testimony the law requires about how each paper was created and kept. Yet because of the government’s tactical decisions, they need a live witness to testify about the trading records, and Feld also ultimately declined the stipulation about the phone records so he can use the live testimony to reemphasize certain calls from Kiril’s office extension. The first was to Wendy Hoh in Taiwan on the evening of September 15, 2016. The second set of calls occurred twenty-three months later, on August 7, 2018, when Kiril returned Gila Hartung’s call and then reached Innis instants later. Seconds after he was off the line with Innis, he called his young stockbroker, Anahit Turchynov.
As often happens, however, these things are more complicated to prove than Feld anticipated. Because the call to Wendy Hoh was international, two different witnesses are required to explain VoIP. This morning, Feld tried to reverse field and accept the Sterns’ stipulation, but Marta refused, knowing that the jury would blame Feld for the ensuing boredom.
After that, the government moves on to the records of the sales of Kiril’s grandchildren’s stock. The sponsoring witness is a functionary from Kiril’s brokerage house, Morris Dungee, a very thin man whose shirt collar over his tie gaps on him noticeably. He is fully bald and Stern wonders, with kindred feeling, if Dungee might have recently been through chemotherapy. Feld again examines Mr. Dungee, and does smoother work of it than he managed with the telephone records.
When Stern first heard about Ms. Turchynov, he suspected that she would prove to be another attractive young woman who’d flirted her way into Kiril’s life. Instead, it turned out that Anahit is the daughter of Donatella’s manicurist, a Ukrainian immigrant. Donatella urged Kiril to use the young woman as their personal broker to help Anahit get started. Generally speaking, vast experience is not required to preside over the tame mix of index funds and bonds in which most of the Pafkos’ assets are invested. By company edict, the brokerage arm of the investment bank that brought PT stock to market handles transactions in PT stock for all PT officers and employees, because they have a clearance arrangement with Mort Minsky and his firm. On his own, Pafko placed the accounts for the grandkids’ trusts with Ms. Turchynov, even though they held PT shares, because he knew he could not profit personally, and because no one entertained any thoughts of selling that stock for many years.
Feld has the brokerage house records up on the sixty-inch monitor that he’s pushed in front of the jury box while he questions Dungee.
“And there in the upper right,” Feld says, using a laser pointer, “do you see the notation ‘unsolicited order’? What does that mean, in the pattern or practice of your company?”
“It means that the broker didn’t solicit the order. The broker didn’t ask for the sale.”
“It was the client who initiated the sale?”
“Yes,” answers Dungee obediently. He would sit up and bark if that is what Feld wants.
Marta rises halfway, as if to object, and then plops down, passing a hand before her nose, as if the question is too ludicrous even to be worth the effort.
The jury almost certainly would prefer to hear about Kiril’s conversations with his stockbroker directly from her, but Turchynov presents a problem for the prosecutors. She had clearly taken Pafko’s call as a sign that PT’s shares were about to tank and used that knowledge as the occasion for insider trading of her own. After receiving Kiril’s order, Ms. Turchynov eventually sold not only the grandchildren’s shares, but also all the PT in her own account, as well as that of a few favored customers.
Moses has chosen not to force Ms. Turch
ynov onto the stand by granting her immunity, since juries in general do not like to see witnesses get away with the same crime for which they are being asked to convict the defendant. Moses tried to negotiate a plea deal with Turchynov and her lawyer, but facing the reality that a conviction will end her career in the financial industry, Turchynov decided to tough it out. Her young attorney seems to hope that once Moses convicts Kiril, Appleton will lose interest in Anahit. Yet after many encounters with the SEC’s Enforcement Division, Stern regards that as a bad bet, especially because Turchynov engaged in a practice called ‘front-running.’ Realizing that a $20 million sale was going to weaken the price of PT stock, Turchynov sent her own order to the trading floor a few minutes before Kiril’s, increasing her profit by at least $20,000.
The people who engage in insider trading almost always have the money to hire clever lawyers like the Sterns. Furthermore, these cases most often arise in New York City, where the financial industry is a major influence in the economy and where the judges of these cases are bound to know lots of people in the world of finance. All these factors have caused insider trading law to evolve with many arcane distinctions that serve as constant obstacles to the prosecution of these charges (in notable distinction to cases involving the theft of physical property, most often brought against the poor). Given all of that, Ms. Turchynov might have had a good chance of walking away, if she’d stuck to selling out her own positions, even those of a few customers. Yet by front-running Kiril’s sale, a more straightforward offense to prove, Anahit probably doomed herself to the penitentiary, especially by not making a deal when the government needed her testimony.
Ms. Turchynov’s fate, however, is of no consequence to Marta when she rises to cross-examine.