by Scott Turow
Stern, who has been clutching the podium for support, eases forward.
“Your Honor knows that we have maintained from the start that the prosecution has dramatically overcharged this case. The jury has been told that Kiril Pafko is a murderer, and we know now there was no evidentiary basis to do so. My impression, at first blush, is not only that a mistrial is warranted, but that the indictment in a circumstance like this, where the prosecution has unlawfully injected such enormous prejudice into the proceedings, my belief is that the entire indictment must be dismissed. But in candor, Your Honor, before proceeding with that motion, I would like to have cases to present to the court.”
“I would love to see those cases, Mr. Stern. So why don’t you send me a brief written motion, describing any decisions you think I should consider, by the end of the day on Saturday. The prosecutors can answer by six p.m. on Sunday—nine p.m. on Sunday.” Sonny corrects herself, clearly remembering that Moses will spend most of the day in church. “And we can all gather Monday morning to discuss where we will go next. I will have the marshal tell the jurors that they need not be here Monday morning. The case will stand adjourned.”
The Sterns return to Kiril at the prosecution table, whose face swims with uncertainty. Pafko asks, “I am not a murderer?”
“Not now. Not ever,” Stern says. He is reaching up to grab Kiril’s shoulder in triumph and reassurance, but somehow, as Stern speaks, his mind turns to all that remains unknown about the car that struck him on the highway, and his hand stops midair.
30. Mistrial
A victory of such consequence in a largely empty courtroom feels incongruous to Stern. The few reporters who were here have shot to the door to tweet the news. Stern tells Kiril—and Donatella, who has approached them—that they must meet immediately in the office to determine their next moves.
As soon as Marta and Stern are together in the back seat of the Cadillac, she turns a puckish grin on her father.
“I can’t wait to read all those cases you’re going to cite where indictments have been dismissed in situations just like this.”
She is making fun of her father’s hyperbole with the judge. Cases have been dismissed, but only when there is outright misbehavior by prosecutors. Moses and Feld may have been too aggressive, but Stern has never seen Moses act in bad faith and can’t say he did so toward Kiril.
“But we do get a mistrial, right?” says Marta. “Sonny was basically saying that.”
Stern read the judge’s signals the same way. Moses made murder the centerpiece of his case and now has lost his bet. It’s hard to imagine how this jury can arrive at a fair decision, after hearing Kiril called a murderer and seeing all those weeping loved ones on the stand. Sonny will grant a mistrial, which means this trial will be scrubbed. A new trial will start from scratch at some point in the future.
This is what the Sterns explain to Kiril and Donatella as they sit together at the end of the table in Stern & Stern’s conference room. The associates who have treated this space as their office are back at their firm today, drafting proposed jury instructions. Vondra brings in lunch—salads and sandwiches—as Marta and Stern detail the law and the strategic considerations.
“This case ends without a verdict,” Stern says about the prospective mistrial. “The jurors will be dismissed. And the prosecutors must then decide whether they will try you again.”
“They will,” says Kiril. He has always understood how Moses feels about him. And Stern agrees, as does Marta.
“So, what is the advantage?” Kiril asks. A white glob of mayonnaise hangs at the corner of his mouth. Donatella, with an audible sigh, signals to him with her napkin.
“Well, to start,” Stern answers, “no one will be suggesting you are a murderer. In fact, I expect the judge will preclude any evidence that patients actually died as a result of g-Livia. Understand: The prosecutors likely may show there were such reports from Global and in the newspapers. But in the next trial, the government probably will not be allowed to go beyond that. And in the end the judge will tell the jurors not to consider whether it is true or not that there were patient fatalities.” This was the original dilemma that impelled Moses to bring the murder charges.
“Besides that,” Stern says, “we will gain several practical advantages. We will have a transcript of each witness’s prior testimony. They will change their answers now and then, because frankly, Kiril, that is what human beings do. They rarely remember events exactly the same way. But some will end up sounding like liars as a result. For the government it will be a weaker case, for that reason and because the charges do not hold the same emotional impact. Now it will be about failing to heed the rules of government bureaucrats, not primitive evil. And the jury will know there was a prior trial, at which you were not convicted for some reason.
“Finally, there is also a psychological burden to the US Attorney in again trying a case he did not win. Trial lawyers are a little like racehorses who never run as fast once they aren’t first across the finish line.”
Marta adds, “We’ll lose some things. Without the murder charges, we won’t get as much latitude in proving how effective g-Livia is. But Sandy is right, I think. It will be a weaker case for the prosecutors. Much as it will give Moses angina, he’ll probably opt to grant Anahit immunity to lock down the proof of the stock sale, but that means the jury will know she got away with the same crime he wants them to punish you for. And, of course”—Marta smiles a trifle—“we won’t see Innis. She’ll probably be negotiating a plea agreement of her own.”
“She will go to prison?” Dontalla clearly has heard about what she missed and undoubtedly rues that, given the way her eyes dance at the thought of Innis behind bars.
“Possibly,” Marta says.
“While we are on the subject,” says Stern, “I suspect, Kiril, that we could negotiate a very favorable plea agreement for you.”
“How favorable? No prison?”
“Very little. Perhaps only home confinement. Certainly no more than six months in the federal jail down the block. Probably less.”
Stern looks to Marta for confirmation. She nods.
“No,” says Kiril. “I did nothing for which I should plead guilty.”
The Sterns and Donatella are struck silent in the face of a statement that the weeks of trial have proved to be so dubious. Kiril adds, “Pleading guilty is even worse than being convicted by a jury. That I can call unwarranted.”
Pride. Honor. Appearances. Stern has heard it before. But it never makes sense.
“And may I also ask, Sandy,” says Donatella, “this new trial, when does it take place?”
“Six months? Inside a year.”
With the answer, her eyes spark again, almost in the same way as when she thought of Innis imprisoned.
“And will Marta and you be beside me?” asks Kiril.
Stern was waiting for Kiril to get to that. He takes a breath before answering.
“No, Kiril. If I am honest with myself, I know this case has been far beyond my physical resources. I am like an old mule that just wants to make it back to the barn. I have promised Marta and myself that this will be my last trial. And so it shall be. I have been enormously honored to represent you, but there are wonderful lawyers here and around the country. We will make certain you have outstanding counsel. The change, by the way, may well delay the retrial even longer, if that is what you prefer.”
Although Stern has not thought of it until this moment, ending his career by beating the murder charges and wrestling the government to a draw on the rest—that is a decent achievement on which to conclude. Any time a defense lawyer keeps their client out of prison, they have every right to take a victory lap.
Kiril is watching and thinking. He is more focused than he has been in weeks.
“Sandy, my dear friend, it is not at all clear to me that we will be better off next time. If we go on with this case, how does the judge explain the sudden disappearance of the murder charges?”
“She will say those charges no longer should concern the jury, and that they may not consider any evidence offered to support them. But who, Kiril, could banish from their minds all those weeping relatives?”
“So she will be telling them in effect that the prosecutors are liars?”
“One never knows for certain what a jury makes of this kind of situation. Most likely, they will assume something went wrong for the government.”
“Isn’t it better then to have this case decided by a jury that knows the prosecutors failed in all their pious denunciations of me as a killer?”
In the end this is a question of art. Some defense lawyers, who have a strong gut sense of the calculations within the jury box, might conclude that Kiril will never be dealt a better hand, that this jury will be more favorable than the next one. But Stern’s abiding view is that criminal defense is practiced with short time horizons. What can I do today to keep my client free? No one has a crystal ball. A year from now, Kiril may not even be here.
“As we see it, Kiril, that is too much of a risk. It might work out as you hope. Or they may regard the fact that the other charges remain as the judge essentially recommending conviction on those counts. You can never predict how a group of laypeople will think about these things.”
Kiril nods, thinks again, then says, “I think it is better to go on.”
Donatella cannot contain her exasperation.
“Oh, Kiril!” she cries, and turns to the Sterns. “For nearly forty years he has acted as if the Nobel Prize citation said, ‘From now on, you may believe whatever suits you.’” She makes a little exasperated click and closes her eyes. Her husband clearly has heard this observation before.
“Do you have a point?” he asks.
“Very much so. You are actually going to choose your view over that of your lawyers?”
“Why not? I am the client. That is my right.” He turns for support to Marta and Stern, but Donatella will not be silenced.
“Your right? Sandy, is there not a saying about someone who tries to be his own lawyer?”
Stern chooses not to answer.
“I am a fool?” Kiril asks her. They are clearly touching the nerve of the persistent pain within their marriage. This is not the first time Donatella has insulted her husband nor that he has reacted with indignation.
Donatella, predictably, answers with considerable spite.
“Yes, you are a fool. And of a unique kind. Because at any moment, Kiril, you can convince yourself that you are living in the world you want, a place that is more convenient for you, or more fun.” Innis, too, spoke of Kiril’s tendency to dwell within his fantasies. Here, then, is the answer to how a man proudly accepts the Nobel Prize for research he stole, or sends a drug to market without admonishing its users of potentially deadly side effects. “You sold the nietos’ stock because in that moment you were stupidly convinced that it was not a crime, if the sale did not benefit you personally. Even though you had been told a hundred times not to sell any shares without speaking to the lawyers. That is how much you know about the law.”
“I was acting in haste. I had very little time,” he tells his wife.
In Kiril’s consultations with Stern, he has repeatedly told Stern that he does not remember calling the broker. It is never shocking when it turns out that a client has lied. It is a way of life. But as this little piece of the truth leaks into the room, Stern assays the consequences. This now is the ten thousandth reason that Kiril should not testify.
Stern says, “If you are really determined to proceed, Kiril, then we must decide what kind of case we will offer. Marta can correct me, but I suspect she will agree that we should simply rest.”
“Rest?”
“Offer no evidence. Tell the jury that the prosecutors have not proved their case. Period. If you really want to take advantage of the court’s ruling, this gives you the best chance. We cannot refer directly to the dismissed charges, but we can ask the jury if the government fulfilled the promises they made in their opening statement and imply they are not to be taken at their word.”
“But I want to testify, Sandy. I want to tell my side. I did not do what the government charges. I had nothing to do with altering the dataset.”
“Kiril, you do not have anything to offer the jury to explain all the evidence they have heard. Wendy Hoh said she spoke to a man. Shall we say it was Lep?”
“Not Lep,” says Donatella.
Stern raises a cautioning finger.
“I am merely making a point. As I have explained before, blaming Lep is ludicrous. Starting with the fact that he was on a plane.”
“Yes, of course that makes no sense.” Kiril shoots a sideward glance at Donatella, then sits studying the table, as his frustration rises. “But Sandy, am I obliged to account for how something happened I know nothing about?”
“Kiril, if you know nothing about the crime, then you have nothing to tell the jury. If you are on the stand, they will expect you to explain.”
Kiril sits, his face dark as he steeps in doubt and disappointment. Stern continues.
“And frankly, my friend, we have had very little to say all along in response to the insider trading charges. But there is less today after listening to Donatella and you. Shall we tell the jury you misunderstood the law, when it had been explained to you in detail a dozen times? And you a Nobel Prize winner to boot? How do you think it will sound to this jury of ordinary people when you tell them you believed it was honest and moral to put your grandchildren’s millions ahead of the fortunes of your other shareholders, some of whom had trusted you with their retirement savings or college funds? You have a scant chance on these counts as it is, Kiril. Testify to that and your prospects sink to absolute zero.”
Kiril appears for a second to literally chew on the bitter taste of everything Stern is saying. He slaps the table in frustration, looking near to tears.
“I want to proceed. I cannot live with this hanging over me any longer. I cannot.”
“I understand, Kiril, that you are in purgatory. I know from a lifetime of this work how horrible it is when a person who has led a good life finds himself accused of a crime. But allow us to tell you: Anxiety or ostracism, whatever you are suffering now, is not worse than sitting in a prison cell for years.”
Even while he offers this assessment, Stern wonders how much Olga is contributing to Kiril’s urgency about getting the trial behind him. The state of war between the Pafkos, even though it may be long-standing, is now in the open, and Kiril’s evenings at the University Club are almost certainly the reason. Even assuming that Kiril never really gave up Olga, he had decided to say so, perhaps to have some peace at home while dealing with the investigation and trial. Yet for whatever reason, he has now thrown caution aside. Perhaps Olga is pressuring him again to leave Donatella?
Marta takes a turn. “Accept the mistrial, Kiril. Leave the courtroom in victory, even if it is only temporary.”
Pafko shakes his head no but does not speak. Instead, Stern tells him to take twenty-four hours to think it over, since they do not owe the judge an answer until tomorrow night. Perhaps someone—Donatella, or even Olga—will talk sense to him in the interval.
“I do not expect to change my mind, Sandy.” Kiril stands and, still struggling to maintain his composure, leaves the conference room. “I am going,” he says with no further parting word to his wife, who remains at the table with both Sterns. In his wake, they are all silent, sharing an instant of mutual bemusement with Kiril.
Marta, who needs to call the associates to get them started on the legal research about their potential motions, kisses Donatella and leaves.
“I was pleased to see you in court this morning, Donatella,” Stern says to her, “although I am sorry I did not warn you it was not a day for the jury. But as it turned out, you chose a propitious time. I hope Kiril reconsiders your advice.”
“No chance of that,” she answers, her eyes downcast. “And I was not in court pr
incipally for Kiril’s sake. I wanted to speak to you.”
“Speak to me?”
Donatella wears a heavy necklace of obsidian today, and it frames her face much like the white collars of the guild members Rembrandt painted. Stern can see that the trial has cast a weight of weariness on Donatella as well. Despite her thick makeup, what he formerly saw as wrinkles are now more like deep grooves in each cheek.
“You asked a question yesterday about March 24.”
“Of course.” In the drama of today’s events, all of that had slipped his mind.
“May I know the reason?” asks Donatella. That is why she wanted to see him in person, to put him on the spot. Since Stern’s question concerns her directly, she is understandably wary.
“We are tying up loose ends, Donatella, just trying to rule out the very fanciful possibility that the wreck I had on the highway might have had some connection to this case.”
“And how could that be?” For a person as smart as Donatella, failing to understand is a rare event. “If Kiril’s car were in the shop, what is the implication?”
It would be ridiculous to share his suspicions about Olga, not only defamatory in legal terms but also unfair in human ones when Stern himself has no better than a hunch that she mistook Donatella’s car for his. Under the circumstances, with Kiril cavorting with the young woman, Donatella would be likely to run straight to the police.
“I am sorry to be mysterious, Donatella, but I should say no more.”
“Well.” She opens her purse and withdraws a leather-bound book. Stern realizes it is her calendar. “Neither Kiril nor I were anywhere near PT that day—or that week, for that matter. That was school vacation. Usually, we fly somewhere with all the grandchildren. Disney World when they were younger. These days, to the islands. But, of course, Kiril was on bail, so we could not leave the state. We had a vacation in-town, all of us. We took several rooms at a hotel and did something different with them every day and each evening. Cirque du Soleil. Museums. We had just come out of a matinee at the symphony when Kiril got a message that you were in intensive care. We were both devastated. I mean it.”