by Scott Turow
Innis says nothing. You can see the weight of what he has just said accumulating on her. She thought she was several strides ahead of him, as she has been throughout, and she suddenly knows she miscalculated. She is probably terrified, but her face is stone. The score has changed suddenly. Her opponent, who was prostrate on the court, has gotten to his feet and is now serving at 200 miles per hour. Match point is coming. But she has years of training and won’t even blink.
“May the record reflect, Your Honor,” says Stern, “that Dr. McVie appears surprised.”
Sonny smiles tartly at Stern’s showmanship and says, “Can you answer, Dr. McVie?”
“Yes, I’m surprised.”
Keeping his eye on Innis, Stern extends his hand to Pinky, who gives him the file Olga brought.
“Now, I believe you said a second ago that you never used that cell phone after you left the company?”
Innis lifts her hands, showing the pink on her nails.
“That’s what I remember.”
“Well, do you remember, Dr. McVie, that you used your company cell phone on August 7, 2018, the day you spoke to Dr. Pafko about his call from Gila Hartung?”
“Did I?”
Moses tries to save her.
“Your Honor, does Mr. Stern have documents in his hand that the government has not seen?”
Stern limps over to the prosecution table and places a copy of the phone detail in Moses’s hands.
“We just received these, Your Honor, from Ms. Fernandez when she came into the courtroom.”
Moses and Feld flip through the pages. Innis looks over to them for some useful sign, but the prosecutors don’t understand yet. In the meantime, Stern marks another copy as an exhibit and hands it to Innis.
“Now, calling your attention to August 7, 2018, on this bill that you knew no one looked at. What is 322-446-8080?”
“I don’t recall.”
“In fact, if you page through Defense Exhibit McVie Telephone-1, PT’s cell phone billing details that you knew no one would look at, you will see, Dr. McVie, that you called that number sixteen times between April and August of 2018. Do you see that?”
“I don’t know.”
“Are you denying, Dr. McVie, that that’s what is shown on the document?”
Innis looks down at the paper and quietly says no.
“Do you know lawyers named Pete and Anthony and Christopher Neucriss?”
Innis now straightens again. Unbowed, one might say.
“I know them.”
“Are you aware, Dr. McVie, that shortly after Gila Hartung’s article appeared in the Wall Street Journal, the Neucriss law firm filed wrongful death lawsuits on behalf of the estates of five patients who’d been on g-Livia and whose physicians spoke to Ms. Hartung? Do you know that?”
“I know that now.”
“You knew they were going to do that on August 7, 2018, did you not?”
Stern regards Innis harshly. Wrath is an emotion that eighty-five years have taught him to take little pleasure in, one that is downright dangerous in the courtroom, where reason must prevail. But he is enjoying the moment richly, in spite of himself. It has all fallen in place now. The identity of the lawyer from Kindle County who asked Innis to marry him more than a quarter of a century ago, the man Stern might even know, is now obvious.
“Am I correct in thinking that you have known Pete Neucriss well for many years?”
There is a laser shot of anger in Innis’s look. It’s unfair, she is thinking—that part of their conversation was private. But it is far too dangerous for her to deny it.
“That’s correct.”
“And the sons who practice law with him, Anthony and Christopher, you’ve known both since they were little boys?”
“Yes.”
“And when you spoke to the Neucrisses on the morning of August 7, 2018—which one was it?”
“I’m not sure.”
“Pete, was it?”
“It might have been.”
“Whichever Neucriss, did he tell you that Gila Hartung was about to call Kiril Pafko?”
She wiggles her head a little bit while she calculates. If Innis knows anything about Pete Neucriss—and she knows quite a lot—she will realize that he will not die on anyone’s cross but his own. In the face of the phone records, Pete will not lie to save Innis. Among other things, Shyla, the third Mrs. Neucriss, who came on the scene after Innis turned Pete down, will probably have a fit when she finds out that her husband was having regular conversations with Innis, who has been treated far more gently by the hand of time than Shyla.
“I don’t remember.”
“And by the way. This recording you made of Dr. Pafko after calling the Neucriss firm. How many times had you recorded Dr. Pafko before that day?”
“Never.”
“But you had the software on your phone and at the ready?”
“I explained. I’d warned Kiril that if he called again, I’d do that.”
“Even in your version, Dr. McVie, that warning to Dr. Pafko had come many months before, correct?”
“Objection to ‘your version,’” says Moses.
“Sustained. Rephrase, Mr. Stern.”
He eliminates ‘your version’ from the question and Innis says yes.
“But the recording software was cued up and at the ready, was it not, when Dr. Pafko called?”
“I don’t remember if it was cued up. I just opened the app when I saw Kiril’s number.”
“Allow me to ask again in the hope that your recollection is a little sharper. Did Pete or Anthony Neucriss tell you that Gila Hartung was likely to call Kiril Pafko that day?”
Moses objects that the question has already been answered, but Sonny overrules him, since Stern is also asking if her memory is now clearer.
“It’s possible, that’s all I can say.”
“And knowing that, did you realize that Kiril Pafko might well call you next?”
“Objection to ‘knowing that,’” says Moses.
“That much is stricken,” says Sonny. She looks down at Innis. “Did you know Dr. Pafko might call you, Dr. McVie?”
With the question coming from the judge, toward whom Innis has turned, she betrays less of the iron confidence she’s tried to exhibit with Stern.
“I don’t remember exactly. I might have thought that.”
“And the fourteen other phone calls to the Neucrisses, Dr. McVie, are you going to tell us that between April and August 7, 2018, you did not advise the Neucrisses about potential problems with g-Livia that would lend themselves to personal injury lawsuits?”
“I’m not sure. I don’t remember.”
Stern again peers at Innis across the courtroom until she finally weakens and looks away. He ponders a second, then goes to Pinky, to whom he whispers.
“Give me the file, dear Pinky, under your elbow.”
She looks up at her grandfather with her dark-ringed eyes.
“That’s mine, Pops,” she answers under her breath.
“I promise to give it back, Pinky. Look at it first, then hand it to me.”
Pinky gets it quickly and is perfect in her moment at center stage. She even sports a tiny, confident smile as she hands over the file.
“Now, Dr. McVie, looking at these bills, in addition to the phone calls, I see billing five times from April to July of 2018 for text messages. Do you see that?”
“Yes.”
“And all to the same number?”
Slowly, she agrees. In front of the jury, Stern actually pulls out his phone from the vest pocket in his suitcoat and thumbs through it carefully, until he has opened his contacts.
“322-204-8080. Is that Pete Neucriss’s cell phone?”
“I think so.”
“Asking again, in the hope your recollection is refreshed, did you advise Mr. Neucriss of the possibility that in the second year of use, g-Livia could cause fatal allergic shocks or some other sudden death syndrome?”
“Did I?”
she asks Stern, afraid he can answer the question with what’s in the file in his hands. Thus prompted, Stern opens the folder and looks down at the document, which is a flyer for a rock concert next month by a group apparently known as Fire-Breathing Cattle.
Moses stands. “May we see the document Mr. Stern is holding?”
Stern nods. “Before I display the document to Dr. McVie, Your Honor, I will certainly show it to Mr. Appleton. But first, I would like a clear declaration for the record. Do you deny, Dr. McVie, that in April and May of 2018, you advised Peter Neucriss that g-Livia had a history of causing sudden deaths?”
“In April?”
“Yes or no, Dr. McVie. Do you deny that in the spring of 2018, you discussed with the Neucrisses that g-Livia could cause sudden fatalities to patients?”
Innis casts a look at the prosecutors, then at her lap, and says, “No, I don’t deny that.”
With that, Stern glances furtively at the jury box. Gray-haired Mrs. Murtaugh is nodding knowingly, and Ponytail Guy is looking over his shoulder at his pal and smiling. The reporters are shifting around and Stern hears one of them rushing to the door. Without looking back, he guesses it is Carla Mora, from the Kindle County Law Bulletin, who has gotten good copy out of the Neucrisses for decades.
“Now, calling your attention, Dr. McVie, to December 5, 2018, when you testified before the grand jury here in Kindle County, do you recall telling those grand jurors, ‘I knew nothing about g-Livia causing sudden deaths until after I spoke to Dr. Pafko on August 7, 2018.’ Did you say that?”
Innis has finally wilted. Her eyes are skittery and her mouth is moving like a landed fish’s, desperate for breath. Her bright eyes again drop to her lap, and then Innis revolves abruptly toward Sonny.
“Do I have to answer any more questions?” she asks.
Sonny flinches, plainly caught off guard. She stares at Innis for a second and then turns away, threshing the fingers of one hand through her thick hair. The gesture is striking because Stern has seen Sonny do this a hundred times in private, but not once on the bench. After a second, the judge gestures to Moses.
“Mr. Appleton, may I ask: Is Dr. McVie here under subpoena?”
He stands. “Yes, Judge.”
“All right,” says Sonny. “I’m going to excuse the jury for a second.”
While the jury is filing out, Marta arrives at her father’s shoulder and quietly takes the file and opens it. “Cute,” she murmurs with a still face.
As soon as the jury room door has closed, Sonny addresses Innis. She has sat on the stand, with a vacant look and what she would probably regard as poor posture She is thinking, Stern hopes, using the word of the hour, ‘I am fucked.’
“Do you have counsel, Dr. McVie?” the judge asks. “A lawyer to advise you about your testimony?”
“Not at the moment,” says Innis.
The judge asks Moses to see Innis’s letter agreement with the government. Although the courtroom remains packed, it is silent enough to hear Moses’s shoes scuffing on the floor as he approaches the bench. Sonny studies the letter for a moment, then addresses Innis. Thinking back to Sonny’s prior question, Stern understands what’s on her mind. Because Innis is under subpoena, she is being compelled to answer questions.
“Dr. McVie—without deciding that it’s actually possible but assuming it is—are you asking me if you can invoke your Fifth Amendment privilege against being compelled to be a witness against yourself in order to avoid answering further questions?”
Innis looks up at the judge for a moment.
“I guess,” she says. Then she nods with her entire upper body. “Yes.”
“All right,” says Sonny. “All right. I’m going to discuss this with the lawyers back in my chambers. If you would, Dr. McVie, go across the corridor to the attorney-witness room. The deputy marshal will show you where it is. But please do not talk to anyone about your testimony. Do you understand?”
As a group, they sweep into Sonny’s chambers. Her clerk helps the judge remove her robe and she motions the lawyers to the chairs around her conference table.
“Well, you live long enough,” she says. “Let’s just talk this through a little. No one is committing to anything. I just want to take your temperatures. Moses, am I correct, that Dr. McVie has never had a court-ordered grant of immunity?”
“Yes, Your Honor.” Under the law, while the US Attorney’s promises can protect witnesses from prosecution, only a formal statutory grant of use immunity is sufficient to overcome an invocation of the Fifth Amendment and force a witness to testify.
“And do you want to give her a grant now in order to complete her testimony?”
Moses’s face is still as he deliberates.
“Well, first I’d like to see those text messages Sandy has.”
Understanding his position with the judge, Stern says immediately, “I have no text messages. Nor did I ever state that was the case.”
A sound of exasperation blows through Moses’s lips. Sonny studies Stern, probably replaying in her mind the sequence of events in the courtroom.
“Head fake?” she asks.
Stern nods.
“Good for you,” she says. “Well, Moses, I guess you’ll need a subpoena to get the body of those texts.”
“If the company still has those records,” says Feld, who is indignant.
Sonny shrugs. “But either way, are you going to grant Dr. McVie formal immunity?”
Moses slowly shakes his head. “I doubt it.” Granting Innis immunity now would greatly complicate a prospective prosecution against her for perjury and make it next to impossible to bring charges for any other offenses she might have committed along the way. No prosecutor would be eager to do that for a witness who broke her deal to tell the truth.
Feld detains them for a few minutes with a suggestion that the testimony Innis has given thus far waives her right to invoke the Fifth Amendment. Minnie, the court reporter, comes in and reads aloud portions of what Innis said on the stand, and Elijah, one of Sonny’s clerks, brings in several cases. Neither side disagrees when Sonny concludes that Innis maintains the right to assert the Fifth Amendment in this proceeding, at least with regard to questions about what she knew concerning fatal reactions to g-Livia.
“Okay,” the judge says after the legal discussion is concluded. “Then what do we do?”
“I think her testimony should be stricken completely,” Stern says.
“No!” Marta has raised both hands. She whispers to her father. Marta has already thought this through far more completely than Stern has. The recording Innis made of Kiril will come into evidence anyway. The forensic guys have already verified its date and time, and someone else—Lep, for instance—can identify the voices. And if Innis’s testimony is stricken, the defense will be prohibited from making any reference to her lies in closing argument. On the other hand, if what Innis has said on the stand remains of record, Moses, being his upright self, will never endorse her truthfulness, while the Sterns will be free to ridicule her.
“I withdraw my suggestion,” Stern says.
“So you’d stand pat?” Sonny asks.
“We want her to invoke in front of the jury,” Marta says. She means assert the Fifth Amendment before the jurors.
Feld opposes that. The jury will take a meaning from that, he argues, that the law doesn’t support. While the Supreme Court has said repeatedly that the Fifth Amendment may be properly utilized by anyone who reasonably fears prosecution, whether they are in fact innocent or guilty, jurors are likely to ascribe only one meaning to it if Innis pleads the Fifth before them: She broke the law. Marta argues that the judge can correct that inference with instructions and that Kiril’s right to confront the witnesses against him means the jury must see Innis’s testimony to the end, however it concludes. Like many of the legal disputes between the prosecution and defense, the issue is quite complicated and Sonny actually dispatches both her clerks to do computer research. After almost an hour has
passed, the judge returns to the bench. Innis is summoned to the courtroom and stands in the well of the court, immediately below the judge.
“Dr. McVie, is it still your desire to assert the Fifth Amendment in response to further questions?”
Innis says she’d like to talk to a lawyer, but Sonny refuses to delay the trial for that.
“I’m sorry, Dr. McVie, but you had plenty of time to seek counsel before today.”
Innis says, “I’ll plead the Fifth then.” She’s regained her composure and looks stalwart as she answers.
“All right, you will be excused as a witness.”
When the jury returns, Sonny says, “Dr. McVie has decided to assert her constitutional right not to answer further questions from either side. So her testimony is concluded and we are done for the day.”
In addressing the jurors, Sonny has made it sound as if this happens all the time, but when the fourteen have exited once more, she looks at the lawyers and says again, “Live long enough and you’ll see everything.”
26. Stern’s Notes
Kiril is in a rage when court ends.
“I cannot believe it,” he repeats. “I cannot believe it.” Everything that has befallen him in the last fifteen months traces back to Innis and her tip to the Neucrisses: the Journal, the lawsuits, the FDA voiding its approval of g-Livia, and worst of all, Kiril’s prosecution. As Stern was frog-marching Innis through the phone bills, he was thinking only a question or two ahead and did not fully tease out the implications Kiril has recognized. The question, which Stern must ponder when he has more time, is whether Innis intended all that or if she found the damage cascading after her spiteful decision to leak the information about the problems with g-Livia to her old friend Pete.
Stern tells Kiril they can talk all this over back at the office, but Kiril doesn’t want to return. Stern immediately understands: After having traveled down to the Center City with the phone records, Olga is now warming a bed at the University Club.
“I am sorry, Kiril,” Stern says, “but I must see you at the office. You and I have an important discussion to take up in private.”