by Scott Turow
“And did she ever bring a car back with serious damage?”
“Neh, neh. Couple scratches. Nothing major. Don’t get me wrong. Olga, she wasn’t the only one. The worst, for sure. But everybody who uses those cars regular holds on to them now and then. When Innis was here, she ran a tight ship. But once she was gone, a lot of people started in asking, What’s the point of having six cars sit here all weekend? Fair enough. But you know, instead of rotating or something, the top folks just grab them.”
“Kiril?”
“Whenever he had that car in the shop. Until they suspended him. Then the lawyers said no fringes for him.”
“So Kiril never took a car after he was indicted?”
“Never.”
“Who else were the big users?”
“Two groups, really. Mostly it was marketing people, the ones who work for Olga. Tammy Olivo and Bruce Wiskiewicz, who sell the Midwest. Each of them got a car a week at a time. I had a car reserved for Lep a lot, because half the time he works so late the train isn’t running. Tanakawa, the associate medical director, he ran into town for meetings at the U or Easton med school. There were a couple of others.”
“And all of those people held on to cars now and then?”
“Definitely. But in the last year and a half, since g-Livia is off the market, forty percent of the staff got RIF’d. I’m not gonna get worked up about this, because there hasn’t been five times someone called for a car and I didn’t have one.”
Stern places his hand on Oscar’s sleeve, so the man faces him.
“And Oscar, my friend,” says Stern, “truly you have no idea who removed those forms?”
“Hand to God,” answers Oscar, and lifts his arm.
In the car, heading back to Center City in the heavy morning traffic, Stern briefly takes his granddaughter’s hand.
“Credit where credit is due, Pinky,” he says. “Your instincts as an investigator are first-rate.”
She beams again. An entire family, he thinks, and not one of them ever figured out that the best way to deal with Pinky is to compliment her. Of course, she’s always done her best not to deserve it—the familiar perversity of humans.
“Should I call Detective Swanson?” she asks.
“Not until the trial is over. I do not want to trouble the waters further or ask Kiril to consent until then. But I expect the police will quickly reach a dead end. The sign-out records could have been destroyed by virtually anyone who works at PT.”
“What if the cops find the body shop where Olga took the car?”
“Anyone trying to conceal a crime would be clever enough to pay with cash, and probably to use an assumed name—and not to bring the Malibu to a body shop anywhere near where the collision occurred. If this was a front-page crime or I’d actually died, the police might subpoena local parts suppliers to see which of them sold the paint or a Malibu fender that week, but that is a huge undertaking for a county police force and one with a very uncertain return.”
“So Olga gets away with this?”
“I grant you, Pinky, that Olga deserves to be the prime suspect, but let’s continue to hold an open mind. The pieces still do not fit together completely. Yes, she might have mistaken my car for the Pafkos’ and tried to visit her rage on one of them.” Olga’s potential targets might even have included Kiril, with whom she remained deeply aggrieved over not leaving his wife. More likely, given that Kiril and she seem to have never really ended their relationship, Olga was after Donatella—even perhaps with Kiril’s consent. The last thought is the kind of damaging speculation about a client that Stern, even now, prefers to keep to himself.
“But why would Olga suddenly have been moved to act on March 24?” Stern asks his granddaughter. “As you have pointed out, the only new element was that I interviewed Olga that day. That would suggest I was the intended victim, but I find nothing in my interview notes that convinces me she would have been eager to get me out of the way.”
“You’re not telling me again that you think it was just a coincidence that a white Malibu ran you off the road, are you, Pops?”
“No, Pinky, I have moved to your side on this. Oscar, who knows best, seems convinced that the sign-out records were destroyed intentionally, and that clearly indicates a bad actor with something to hide. But even assuming I was not struck by accident, we have not convincingly identified the culprit. Kiril has become such a complete mystery to me,” Stern admits, relaxing his own rules, “that I still have moments when I have the reluctant thought he had a hand in this, although I can make absolutely no sense of that. And we cannot forget the possibility that the driver was someone else entirely whose motives we know nothing about as yet.”
“Like who?”
“That is the point. We do not know, dear Pinky, and probably never will.”
She sulks. The inability of humans to deal with ambiguity and uncertainty is always striking to Stern. We have an intuitive reluctance to accept the unknown. That is why there were sun worshippers and creation myths, to find some explanation for the otherwise inexplicable. But after another moment, these ruminations lead him suddenly to lift a hand in Pinky’s direction.
“Pinky, you have just given me a critical thought for my closing argument.” His closing is lurking in his mind right now at all moments. It has always been this way. As a trial nears its end, everything that happens in life is tested to see if it might add an element to his argument.
Pinky, for her part, is beaming again.
29. The Judge Rules
When Stern and Marta enter the chief judge’s double-size courtroom on Friday at noon, there is a lull. The morning session of Sonny’s Friday call is over, and most of the journalists who have covered the trial won’t bother attending a session when they know from experience that the outcome is preordained. To make time for her ruling, Sonny moved back a few matters, and two of the attorneys on a case, who did not get word about the delay, are haggling with the chief judge’s docket clerk, Luis, so they can come in another day, rather than wait.
Looking around the grand courtroom for one of his last times as a lawyer, Stern is struck to realize that he now considers the solemn federal courthouse his home as an attorney. Admittedly, it is a more ideal place to practice law than the state courts where Stern started out. The judges have more time to consider briefs and write rulings. Here, unlike the state courts fifty years ago, it has always been a rarity for lawyers to engage in fistfights in the halls. The clerks and marshals are genial and, in proud contradistinction to their colleagues in the county courthouse of old, incorruptible. But Stern has never completely left behind the feeling that he is an intruder. He won his place of prominence across town in the Kindle County Superior Court, watching his back, avoiding the questionable dealings in the corridors whenever possible, proving over time that skill and smarts could prevail, even in that brass-knuckles arena. That remains the site when he dreams of being in court.
As Sonny comes on the bench, something about her strikes Stern as different. For one thing, he realizes after a second that she had her hair cut last night; the gray curtain now stops above her shoulders. More to the point, she enters every day with a stack of papers, usually orders she has to review cursorily and sign as chief judge. But today she is carrying a single law book, something that, in the day of computer research, is almost as much of an anachronism as a crank telephone. Even in Stern’s office, the beautiful little law library where he drafted and redrafted hundreds of briefs over the decades is gone. The gold-spined volumes holding the reports of various decisions by courts around the country were all sold to an interior decorator, and the space was sublet to Gilbert Diaz, a former assistant US Attorney and a good young lawyer, who shunned the big law firms to open a shop of his own. The sight of the law book makes Stern feel like a guilty schoolboy, frightened with no real reason that Sonny, still affronted, will hold him in contempt for mentioning his own cancer to the jury.
Given her lengthy schedule of other matt
ers, Sonny wastes no time. She calls the Pafko case herself, causing Minnie, the court reporter, to scurry back to her steno machine and computer at the foot of the bench. The judge also greets by name each of the lawyers who have come forward to the podium, so they do not go through the standard formality of identifying themselves for the record. Sonny notes the presence of Kiril, seated in his blazer at the defense table. Pafko knows what to expect and his mood is somewhat glum, although that may be because Donatella, unexpectedly, has arrived separately. Again, she has placed herself on the prosecution’s side of the room. Stern is grateful that she has responded to his pleas, and he faults himself at once for not reminding her last night that the jury will not be present today.
“I want to turn to the motion to dismiss at the close of the government’s case which Ms. and Mr. Stern have brought,” Sonny says. As she starts to speak, she wears an air of grim resolve. The judge perfunctorily recites the lenient legal standard she is required to use at this stage of the proceedings to decide the adequacy of the government’s evidence.
“Applying that standard, I have had no difficulty concluding that all counts of the indictment may go to the jury for their decision.”
Stern feels his heart pinch, while Feld smiles and glances back to the agents and paralegals behind him at the prosecution table. Losing, even when you know it’s coming, is always painful. As Mel Tooley, a somewhat oily defense lawyer now in the waning days of his career, once said to Stern, ‘Let’s face it, Sandy. You’re never really ready to get kicked in the balls.’
Sonny works backward through the charges, starting with the insider trading and then the fraud counts, taking up murder last. She tosses aside the Sterns’ arguments as she goes with an alacrity Stern finds dismaying.
While she speaks, Sonny’s dark eyes are flicking up and down to papers on the bench that must have been folded in her law book. She has taken the trouble to write out her ruling and is reading it, which means she wants to be precise with her words, preparing for the matter to reach the Circuit Court of Appeals. Since the prosecution has no right to appeal after a jury has been seated, because of double jeopardy, that means the Sterns are going to lose on murder, too. That will be a real wrong, in Stern’s view, but as is sometimes said, perfect justice is delivered only at the gates of heaven. He hears himself sigh.
“As we all know, the murder statute states, in relevant part, ‘A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to the individual or another.’ I would note for the record that I began my career on the bench in the Kindle County Superior Court, where I presided over a number of murder trials, and I have found my familiarity with this statute helpful as I have considered the arguments of the parties.” This observation is really intended for the appellate court. She is reminding those judges that, unlike many on the federal bench—including most of the appeals judges—who are inexperienced with state criminal statutes, for Sonny Klonsky it is not opening night.
“We all also know that the prosecution of the CEO of a pharmaceutical manufacturer under this law is unprecedented, but that means nothing in itself. But because the facts are unique, prior decisions are not directly on point, as I shall explain in a moment. Nevertheless, there can be no quarreling with the plain fact that seven people named in the indictment took g-Livia and, viewing the evidence in the light most favorable to the government, died as a result. Those deaths are terrible and tragic, and there is no legal weight to be offered to the occasional suggestions in cross-examination that those persons had a grave illness which would have killed them eventually anyway.
“But were they murdered? The government sees this as a simple case. Kiril Pafko acted to make g-Livia available for public use. Those acts were without lawful justification, because, they maintain, the FDA marketing approval had been secured by fraud when Dr. Pafko concealed a dozen sudden deaths that had occurred during the clinical trial. Knowing of those deaths, Dr. Pafko recognized a strong probability that some fraction of those who received g-Livia would also die as a reaction to the medication.
“According to Dr. Pafko and his lawyers, the acts alleged do not amount to murder as a matter of law, for several reasons. The most significant argument to the Court is the defense claim that by the statutory definition, murder is a crime about intending to kill or harm ‘an individual.’” Her fingers draw the quotation marks in the air, as they have at other moments when she has used the precise words of the law. “Rather, the defense says that the evidence is unequivocal that Dr. Pafko never recognized a ‘strong probability’ that he would hurt any given person.
“While we could have done very well without the personal testimonial from Mr. Stern”—she smiles bitterly and raises her dark eyes to Stern to let him know he hasn’t been fully forgiven—“the overwhelming evidence—indeed the undisputed evidence—is that for most persons with stage two non–small-cell lung cancer, g-Livia is a superior medication. From Dr. Pafko’s perspective, therefore, according to the defense, the strong probability in any individual case was that g-Livia would aid that patient, not hurt them.
“The prosecution attempts to meet this by pointing out that the great bodily harm intended under the murder statute can focus on that individual ‘or another.’” Again she marks the air. “Dr. Pafko, they reason, knew that even if any particular patient was far more likely to be helped than harmed, over thousands of cases, he knew well that another patient would die.
“The government is correct that the state’s murder statute reaches to situations when another person is killed, rather than the intended victim. In State v. Castro and countless similar cases, a defendant was convicted of murder because he shot a gun at a rival gang member and instead killed a five-year-old girl in a passing vehicle. But Castro clearly intended to do great bodily harm to some person. Similarly, in State v. Grainger, the case the prosecution regards as controlling here, the defendant left a bowl of candy outside her house on Halloween, knowing that a few pieces had been laced with cyanide. Grainger did not know precisely who she would harm. But she knew there was a strong probability of great bodily harm to any child unlucky enough to get the poison.
“Accordingly, the government, under the words of the statute and the cases explaining it, can only prevail if they offered sufficient evidence that Dr. Pafko had a harmful intent regarding some individual. Dr. Pafko, if the government’s evidence were believed, as it must be at this stage, knew that he was subjecting some patients to a risk of a deadly response. But the ‘strong probabilities’”—again, she marks in the air—“in any individual case were that the patient was going to be better off with g-Livia than they would have been with any other available therapy. No rational juror could conclude that when he acted, he did so understanding and intending great bodily harm or death to any particular individual.”
Shielded by the podium, Stern, with his eye still on the judge, nudges his hand from his side to grab Marta’s fingers. It sounds like they have won. Yet caution tells him a ‘but’ must be coming, given the care Sonny has shown in explaining her ruling for the appellate court.
Then suddenly he understands. She is talking to the public, to the Wall Street Journal readers who have gotten daily summaries of this case, to the many laypeople out there who will feel that another rich guy has, literally, gotten away with murder. She has written her decision down, because she is going to publish this opinion, as judges should when they are dealing with an unprecedented case, for the benefit of lawyers and judges who must cope with comparable situations in future.
“So that will be the ruling of the court. Specifications 1 through 7 of the racketeering count, the murder charges, are hereby dismissed with prejudice from Count 1, which otherwise may stand. We must now turn our attention to what happens next.”
The courtroom is utterly still. Even the lawyers here on other matters reali
ze this is a moment of great consequence in an important case. Beside Stern, Moses and Feld are statue-still. They are not even bothering to confer. Across his shoulder Stern looks back to the prosecution table, where everyone is staring at the judge, as if they are awaiting another word that will erase what she has just said. Stern turns further and very quickly offers Kiril a wink.
Finally, Feld lifts a hand. “With great respect, Your Honor, isn’t the issue you just articulated—what Dr. Pafko intended in any individual case—isn’t that question for the jury, not the court, to decide?”
“Mr. Feld, I thought a good deal about that point. If there were any evidence that Dr. Pafko intended to hurt any one person who took g-Livia, I might agree. But there is none. I am not absolving Dr. Pafko. He sits here correctly charged with serious felonies that expose him to the risk of serious punishment. But on murder, there is a complete failure of proof.”
Feld tries other arguments. The defense should have brought this motion before trial, before the jury was seated, when the government still had a right of appeal, but Sonny tosses her head in disagreement even while he is speaking.
“The government, too, could have brought a motion in limine before trial, Mr. Feld. More important, neither your motion nor the defense’s would have been timely. This question could only be decided after hearing the evidence.”
Moses still has not moved, at least not that Stern has seen. The US Attorney’s recognition of the consequences must be slowly gathering. The next question is whether the prejudice to Kiril from the unwarranted murder charges is so great that the case cannot go on. That is where Sonny wants to direct the discussion now. She asks Marta and Stern if they have additional motions.