by Scott Turow
“Now, Mr. Dungee, you’ve given Mr. Feld several answers about the usual practice in your business.”
“Yes.”
“But you, Mr. Dungee, have no idea what was said on these phone calls between Ms. Turchynov and Dr. Pafko, do you?”
“Just what the records say.”
“But you weren’t on the line?”
“No, no, miss. I wouldn’t do that.”
“In fact, you can’t even say for certain it was Dr. Pafko, rather than his assistant, who called Ms. Turchynov, right?”
“I don’t think she could take an order from his girl,” says Mr. Dungee, meaning no offense with his choice of words. “But no, I don’t know for sure who was on the line.”
“But we do know from the other records that Mr. Feld offered in evidence that there was an exchange of phone calls between Ms. Turchynov and Dr. Pafko first thing in the morning on August 7, 2018. And that was followed by a sale of an Asian index fund in Dr. Pafko’s personal account, right?”
This is a coincidence that has nothing to do with the case, which does not mean that the Sterns won’t take advantage of it.
“And as to the calls that took place later between Dr. Pafko’s office and Ms. Turchynov’s, you don’t know for sure if they were discussing that index fund sale or PT, do you?”
“Right. Er, no. It’s just how the records lay out.”
“And you haven’t asked Ms. Turchynov about any of these conversations?”
“No, no.”
“By the way,” says Marta, “was Ms. Turchynov at work when you came over here this morning to testify?”
Feld pops up with a furious objection. The government’s decisions about who to call as witnesses, just like their decisions about who to prosecute and immunize, are completely at their discretion and not for the jury to evaluate. Sonny sustains the objection. Nevertheless, she can’t conceal a smile at the art of Marta’s question. For his own sake, Stern notes how much more leeway Marta gets, as opposed to her senile father.
Undeterred, Marta strides back to the monitor where Feld displayed the brokerage house records, asking for it to be illuminated again. She is moving with confidence. Over the weekend, Marta had her hair cut. His daughter is a little like the younger Hillary Clinton, with her revolving hairdos. Marta has never found a style to stick with—or a color either, for that matter. As she has grayed, Marta has asserted the primeval right of women of a certain age to dye. For the last decade, her hair has always been some shade of red, everything from strawberry blond to magenta, a color range Stern assumes she has chosen, consciously or not, as an homage to her redheaded mother.
“Mr. Feld called to your attention this box that says ‘unsolicited order.’”
“Yes.”
“And you told us that meant that the broker didn’t originate the sale.”
“Yes, ma’am.”
“Doesn’t an unsolicited order carry a lower commission? A broker charges less, because the client isn’t getting the benefit of the broker’s advice?”
“Yes.”
“So don’t brokers often mark orders as unsolicited so their clients get a better price from the brokerage house?”
“I believe that happens.”
“Well, let’s look at some other orders. In fact, you and the brokerage house have handed over the records of several other trades in PT that Ms. Turchynov placed the same day, did you not?”
Feld objects that these transactions are irrelevant, but since all are marked as ‘unsolicited orders,’ Sonny overrules him, and Marta has soon introduced the records of all the other PT trades Turchynov made that morning. Stern and she have agreed that she will do this without fanfare, leaving it to Stern in his closing argument to make what he can of these transactions to boost Kiril’s defense. He has something in mind he would prefer not to tip to the prosecutors now.
Innis will testify after lunch. Stern confines himself to the attorney-witness room, where he is nibbling at a sandwich and studying his notes when Pinky knocks.
“Can I get a minute, Pops?” He is wary of the look on his granddaughter’s face, but reluctantly beckons her in. “So I, like, asked Vondra to look at your calendar for March 24 this year.”
“March 24?”
“Shit, Pops. The day you got nailed on the highway.”
This is how Pinky has gotten herself into trouble all her life, by refusing to take instructions. Or at least trying to avoid them. He reminds her that he has explained at least twice why further questions about the white Malibu are off-limits.
“Okay, but I can’t look at, like, your records? Not from PT. Just yours?”
“The answer clearly is no,” he answers. They stare at one another. “All right, tell me quickly what it is you found.”
“So you met with Olga Fernandez on March 24. She’s the little hottie who was bumping Kiril, right?”
“Good grief, Pinky. How would you even know something like that?” That’s the kind of damaging information about a client both Marta and he are always at pains to keep cabined.
“Jesus Christ, Pops,” she answers, “you made me sit through two seasons of Downton Abbey with you.” That is hardly the way Stern remembers it; he has little to no idea how to retrieve recent episodes of a TV show. Apparently, it offends Pinky’s self-image to think she was enthusiastic about a British costume drama.
“What, dear Pinky, does Downton Abbey have to do with Olga Fernandez?”
“Christ, Pops, weren’t you watching? The servants always know who’s messing with who.”
“Are you saying that the employees at PT have been gossiping with you about Kiril’s personal life?”
“Like duh,” she answers. “Super duh.”
“‘Super duh,’” he repeats. “At any rate, Pinky, you think Olga had some hand in running me off the road?”
“When Oscar—the parking lot dude?—when he was telling me last week how the fleet works, he said Olga took the Malibus way more than anyone else. Apparently, she, like, never brought them back. So maybe that day you were asking her questions she was desperate not to answer.”
Stern decides he will explain the Investigative Fallacy to Pinky later, which is what happens frequently with the police: They develop a theory about a crime and then jackhammer the evidence until a couple of pieces fit. There is no earthly reason he knows of that Olga Fernandez would want to harm him. On the other hand, there is no question Olga has been evasive whenever Stern has spoken to her. She would not even acknowledge her relationship with Kiril. ‘Ask him,’ she told Stern once. Whatever else, Pinky’s mention of Olga is far more provocative after the unwelcome sight of her with Kiril yesterday at the University Club. Given Pinky’s frequent mistakes, some of which verge on catastrophic, it is natural to dismiss her wilder speculations, but it is clear to Stern today that there is much about Olga he doesn’t know.
He tells Pinky to ask Vondra to find his notes of his conversation with Olga. He will look at them when he returns to the office.
“And no more on this subject without my specific approval,” he says. “Do you understand?”
“Great,” she answers, clearly a nonresponse, as she closes the door.
24. Dr. McVie Takes the Stand
Dr. Innis McVie,” Moses announces to start the afternoon session on Wednesday. One of the FBI agents rushes to the swinging doors at the rear of the courtroom, which have button-stitch padding that always gives Stern fleeting thoughts of a torture chamber, and Innis strides in with her head high and her eyes forward. Before taking the witness stand, she stops and faces the bench and, at the judge’s instruction, raises her right palm in the air. Sonny also takes to her feet, her own right hand lifted.
In Stern’s early years in practice, when he was seldom in the federal courthouse, he once came here to observe the obscenity trial of a famous comedian. In the same pose as Innis strikes now, with an open hand aloft, and before the judge had a chance to utter a word, the comic said, “How,” imitating the b
lank tone of Tonto, the Lone Ranger’s sidekick. In the days before identity politics, the joke was merely impertinent, rather than racist, not that that would have mattered to the comedian who had become famous by violating all borders. The judge, predictably, was not amused, but the defendant’s timing was perfect. Hilarity rolled like a tsunami through the courtroom, including the jury box. Acquittal became preordained. Laughter, it turns out, is the soul of liberty.
With Sonny and Innis, the ritual goes typically. “Do you swear or affirm that you will tell the truth and nothing but the truth?”
“I do.” Innis is in a black suit with a pleated skirt, discreet makeup, hair styled. She straightens her skirt before sitting down, and at that point glances briefly at the defense table, issuing a taut smile of acknowledgment to Stern and to Kiril. It is exactly as Stern sensed yesterday. Innis has spent her whole life in the competitive spotlight. The courtroom holds no fear.
From Marta, Stern hears a faint groan, and a second later she slides Stern a note. “Your girlfriend is about to stick it to Kiril.”
Everything about this comment is alarming. His first impulse is to defend himself in response to ‘girlfriend,’ but then the larger import of Marta’s prediction settles. He shakes his head once to disagree, faintly amused that even in his advanced age, Marta remains a bit possessive.
Innis’s direct starts as Stern would expect. Moses goes through the letter agreement she reached with the US Attorney’s Office, which promises she won’t be prosecuted if she is fully truthful in her testimony and in all her conversations with the government. Then he elicits details of her impressive educational background, eventually arriving at her professional relationship with Kiril for more than thirty years.
“And did you become friends as well?” Moses asks.
“We did.”
“How close?”
“Very close,” she says casually, as if there was nothing more to it.
Moses always prepares his witnesses, so his direct is almost staccato. Question. Answer. Nothing longer than one line on either side, if the witness cooperates. In that rhythm, Innis explains her duties as chief operating officer at PT. Finally, with the preliminaries out of the way, the United States Attorney gets down to the bad part for Kiril.
“And calling your attention to September 2016, did you have a conversation about the clinical trial of g-Livia with Dr. Pafko?”
“A brief one.”
“When?”
“It was a week or two after Labor Day. We all knew the trial was going to be completed soon.”
“Where were you, and if you recall, who was present?”
“I was alone with him in his office for a second.”
“And what did he say and what did you say?”
“He looked troubled and I asked what was wrong. He said, ‘There’s a problem with the dataset.’”
“Did you ask what the problem was?”
“I don’t think so. It was a very quick comment.”
“And did you ever talk about the trial again?”
“We had another quick conversation about it a few days later.”
“Where were you?”
“Not positive. His office, I believe.”
“Who was present?”
“Just the two of us.”
“And what did the two of you say?”
“I just asked him, more or less to be polite, how the problem with the dataset had turned out, and he said, ‘Fine. I did some things to take care of it.’”
Stern realizes he has unconsciously gripped his chair arm. ‘I did some things to take care of it’ is far more incriminating than the version Innis repeated to Stern—and the FBI for that matter. On those occasions, she related that Kiril had said ‘the problem was solved,’ words that could be dismissed as reflecting Wendy Hoh’s reassurance that the reported fatalities were a mere coding error. Even Moses appears to miss a beat following Innis’s answer. In his unhappiness, it takes Stern a second to register that his daughter has planted an elbow in his ribs.
“Did you ask Dr. Pafko what he meant by that remark?”
“No. We weren’t speaking much by then.”
That answer becomes the prelude to Innis’s account of her retirement from the company, as soon as g-Livia came to market in January 2017. Then Moses turns to the phone call on August 7, 2018, the centerpiece of her testimony. The government has provided every juror with a set of noise-canceling headphones, so the sound is sharp. The recording is played in its entirety, then Moses re-cues certain snippets to ask about Innis’s end of the conversation, starting with her comment that she had asked Pafko to stop calling.
“Yes. He’d gotten obnoxious about asking me to come back to the company. The calls came late at night and it seemed to me that he’d had something to drink. I told him this was turning into harassment, that my lawyer had told me to record the calls so we could get a protective order.”
“Not true,” Pafko writes on the yellow pad between Stern and him. Kiril’s version is that he called Innis infrequently with business questions, for answers only she would know, and that once or twice he diverted to the personal. But she never said anything about a protective order or a lawyer or recording him, until the phone call he made after he heard from Hartung.
“And can you explain what you meant when you said, ‘Sell your stock’?”
Stern objects from his seat. “The recording speaks for itself.”
Before Sonny can rule, Moses rephrases: “Immediately after saying ‘Sell your stock,’ what is the sound on the recording?”
“I am laughing.”
“Why did you laugh?”
“I was speaking in jest. Both Kiril and I knew that was the last thing he could do.”
“Objection to what Kiril knew.”
“Sustained.”
“Can you explain the compliance training you received from the lawyers for PT?” Innis lays it on thick, the many sessions the jury has already heard about from Mort Minsky, where all officers were warned against selling shares of Pafko Therapeutics without the prior approval of the outside lawyers, except for the 10b5-1 plan.
“By the way, we’ve heard several times that Dr. Pafko didn’t sell any of the shares held in his own name. Did you ever talk to Dr. Pafko about why he wasn’t going to sell any of his stock after the approval of g-Livia?”
“Not after. I’d left the company then.”
“I’m sorry. Before that, did you have a conversation about his plans concerning selling his own stock?”
“It was a few weeks before g-Livia was approved. Sometime in December 2016.”
“Tell us where please, and who was present for the conversation?”
“We were working nonstop to get ready for the roll-out of g-Livia, and sometimes everyone would have Chinese for dinner in the kitchen. There were already articles speculating that Tolliver and another big pharma concern were going to get into a bidding war for PT, and the stock was soaring. A tender offer would terminate the 10b5-1 plan and the restrictions on our options, and most of us couldn’t wait to sell while the market was going nuts. It would be a huge windfall for each of us, but after one of those conversations, Kiril looked at me and said, ‘I won’t sell my stock then.’”
“Did he say anything to explain that remark?”
“He wanted to remain the controlling shareholder of PT, so that even after a tender offer, he was in a position to negotiate an employment agreement for himself with the acquiring company. He wanted to have leverage so he could continue to be CEO of PT.”
In Stern’s chest, it feels almost as if his heart has jammed in surprise. In Florida, he told Innis that Kiril was indifferent to selling his stock or cashing in on a buyout offer and she never responded with anything resembling what she has just said. She has laid waste to a central plank of the defense, and worse, suggested that in the conversation with Yan Weill, the investment banker—the one that culminated in Kiril’s remark about marrying rich—Pafko was actually jus
t playing dumb.
Kiril leans over to Stern and whispers, “She is lying about everything.”
On Stern’s other side, Marta is giving him a look that is easy to read: I told you so.
“Your witness,” says Moses.
Stern comes to his feet slowly. He is so surprised that he is literally somewhat off-balance. He looks down at his notes, hoping to reassemble himself.
“Now, you told us that you and Dr. Pafko were close friends for decades.”
“Yes.”
“In fact, for much of that time, there was no one in the company he was closer to, except perhaps Lep. Would you agree with that?”
“Not in the fall of 2016,” she answers with a cold look. A splinter of fear lodges in his heart, as he recognizes that he has given her an opportunity to mention Olga, but her own pride holds Innis back. She adds, “Before then, I’d say that was correct.”
“Yet Dr. Pafko never told you that he did anything to falsify the trial dataset, did he?” This is a safe question, because Innis has told the government repeatedly that she never heard anything about sudden deaths or altering data. There is no evidence to suggest otherwise, but it remains notable that Innis’s claims of ignorance, just like Lep’s, have protected her from being sued in any of the civil cases.
“No. But as I was just saying, we weren’t speaking all that much at that time. I wouldn’t expect him to.”
“And this second conversation about the trial—”
“Where he said, ‘I did some things to solve the problem’?” Some little wrinkle of triumph passes through Innis’s lips as she says the words again.
“You said it occurred in Dr. Pafko’s office?”
“That’s my best memory.”
“Were you often in his office?”
“Not so much in that period, but generally many, many times, thousands of times over the years. He had the biggest office. You know how corporate hierarchies go. I came to him. We all did.”
“Your office was beside his, was it not?”
“Exactly. Lep on one side, me on the other.”