The Last Trial, Page 2

  And yet this is the life he has been reluctant to forsake. It is not ego or money, the tabloid version of his motives, that have kept him working. The reasons are more personal and complex, for whatever the frequent frustrations of practicing law, the plain truth is that Mr. Alejandro Stern has adored it: The rushing about, the telephone calls, the small breaks of light in the tangle of egos and rules. His clients, his clients! For him, no siren song could be more enticing than an anguished call from someone in dire straits—in his early years, a hooligan in the precinct lockup, or as happens more typically these days, a businessperson with a federal agent at the door. He has always answered with the majestic calm of a superhero: ‘Speak to no one. I shall be there momentarily.’ What was it? What was this mad devotion to people who were often scoundrels, hoping to avoid a punishment that even Stern knew they deserved, who balked at paying fees, who lied to him routinely, and who scorned him the moment a case was lost? They needed him. Needed him! These weak, injured, even buffoonish characters required the assistance of Mr. Alejandro Stern to make their way. Their lives teetered on the cliff edge of destruction. They wept in his office and swore to murder their turncoat comrades. When sanity returned, they dried their eyes and waited, pathetically, for Stern to tell them what to do. ‘Now,’ he would say quietly. The work of six decades reduced to a few words.

  If some of the central figures in his life—his first wife, Clara, the mother of his children, who died a suicide in 1989; or Peter, his eldest child; or, in rare moods, Helen, who left Stern a widower again two years ago—if they were present to hear Stern sing lyrics about his clients, his family would ask pointedly, ‘And what about us?’ To their implicit accusation, Stern, ironically, has no defense. The brute fact is that his energies and attention have often been entirely consumed by the courtroom, leaving less than he would have liked for the people he claims to love. All he can offer in response is candor: This is the life I needed to live. At eighty-five, he is certain that without it, he never would have known himself.

  2. The Witnesses

  Timeline of Critical Events

  12/9/14

  FDA designates g-Livia as Breakthrough Therapy

  4/1/15

  Eighteen-month clinical trial of g-Livia begins

  9/15/16

  Kiril Pafko learns of sudden deaths of clinical trial patients on g-Livia; trial database altered to omit deaths

  10/27/16

  PT submits altered database to FDA for g-Livia approval

  1/16/17

  g-Livia approved for sale by FDA

  8/7/18

  K. Pafko tells reporter he’s never heard of sudden deaths of g-Livia patients; sells $20 million worth of PT stock

  12/12/18

  Kiril Pafko indicted

  In his opening, Moses was himself, methodical but brief. His great gift with juries is sticking to essentials, and he did a good job explaining a somewhat complicated case, illuminating his ‘Timeline’ on a sixty-inch monitor wheeled in front of the witness stand. Moses’s account started in 2014, when Pafko Therapeutics presented the FDA with early test results for g-Livia. Patients with non–small-cell lung cancer who’d received the medication even for a few months showed dramatic improvements compared to those on the current standard therapies. The disease spread more slowly, and in many cases tumors had actually receded.

  The FDA granted g-Livia Breakthrough Therapy designation, which could speed the testing and approval process. In consultation with agency experts, PT planned an eighteen-month clinical trial of g-Livia. Assuming the product again showed the same clear benefits and extended lives, the medication would proceed to final FDA approval and become available for prescription years earlier than normal.

  Days away from the completion of that trial in September 2016, troubling reports reached Kiril, through his son, Lep, PT’s medical director. Starting in the thirteenth month of the test, roughly a dozen patients at clinical sites around the world had died suddenly for unaccountable reasons that seemed to have no connection to their cancer. Instead of leaving the matter to a panel of outside experts who, by protocol, were supposed to investigate such reports, Kiril looked into the issue on his own. According to Lep, Kiril told him he had consulted the company in Taiwan administering the trial, which quickly recognized that there had been no sudden deaths. A simple coding error had mislabeled patients who had withdrawn from the study—as patients always do—as fatalities.

  The database was changed—corrected, Kiril might say—and soon after submitted to the FDA. In January 2017, the FDA approved g-Livia for sale to the public. PT’s share price skyrocketed, especially after a bidding war erupted between two large pharma companies to buy the concern. But in August 2018, before the acquisition by Tolliver, the winner, was completed, a reporter from the Wall Street Journal phoned Kiril, seeking comment on a pending story. The Journal was about to publish an investigative piece stating that after more than a year on g-Livia, isolated cancer patients were dying suddenly of a suspected allergic reaction. Kiril told the reporter he knew nothing about any sudden deaths, but moments after he put down the phone, he secretly ordered the sale of roughly $20 million worth of PT stock. Once the Journal story appeared, the value of Pafko Therapeutics shares plummeted, crashing almost completely several weeks later, when the FDA publicly questioned the clinical trial data for g-Livia. Kiril Pafko’s indictment by a federal grand jury in Kindle County followed soon after.

  In presenting this summary, Moses has used only forty of the fifty minutes Judge Klonsky has allotted to each side for opening statements. His brevity is meant to signal to the jurors that despite the foreign world of drug testing, the crime is clear. But the US Attorney’s simplifications create some opportunities for the defense. Stern asks Moses to bring the Timeline back up on the monitor, a request the prosecutor may not refuse but which causes obvious consternation at the prosecution table, where nine investigators and lawyers are seated. Aside from Moses, the only other person there who will address the jury is a lean young assistant US Attorney with a glossy mop of black hair named Daniel Feld, presently typing on his laptop with the passion of a concert pianist.

  “As always,” Stern says now to the jury, after elaborating on Kiril’s presumption of innocence and the government’s heavy burden of proof, “there are two sides to the story and some vital facts Mr. Appleton chose not to mention to you. At the very heart of the charges that the government must prove beyond a reasonable doubt”—Stern, as ever, speaks the last four words with slow weight—“is their claim that Kiril Pafko is responsible for altering the results for the clinical trial of g-Livia in September 2016, erasing evidence of a dozen sudden, baffling deaths. Despite all the fanfare—testimony from Dr. Pafko’s colleagues, forensic analysis of Kiril’s office computer, records of his phone calls—after all of that, you will learn that”—Stern pauses before again laying emphasis on the next words—“Dr. Kiril Pafko altered nothing. Not in September 2016 or any other time. Nothing.”

  With that, Stern nods to Pinky, who is triggering her laptop to display slides on the giant monitor, emphasizing Stern’s principal points. The Timeline fades out and the phrase “Kiril altered nothing” appears on-screen. Pinky, who is also at times her grandfather’s roommate, is a frequently infuriating employee. Marta would have fired her sister’s daughter long ago, but Stern continues to hold out hope. Still, he could not contain a swell of relief that Pinky actually showed up at work this morning, or again now when it appears she’s kept the slides in the correct order.

  “But didn’t Mr. Appleton say the results were altered? Yes. But not by Kiril. The changes were made in Taiwan, by Dr. Wendy Hoh, who works for the company that was conducting these trials for PT. You will see Dr. Hoh as a witness, and you will have an opportunity to listen to her. The evidence will show you that her reasons for altering this database were not as the government describes.

  “In point of fact, you will see that the motives the government imagines are often just that
—imaginary. For example, Mr. Appleton suggested that Dr. Pafko committed this fraud in order to become a megamillionaire. Yes, the value of PT’s stock rose steeply once g-Livia was approved by the FDA. g-Livia is a remarkable medication, and it was no surprise that big pharma companies immediately wanted to buy PT. But since g-Livia was first given Breakthrough Therapy designation, from that day until today, Kiril Pafko has not grown a penny richer personally by selling PT stock. Mr. Appleton did not think it was important to tell you that.”

  Pinky reveals a note on the screen reiterating that Kiril made no money, while Stern, accompanied by the solid thump of his cane, again moves toward the jurors, pleased that he seems to have their attention. They are the face of America, all colors, half from the suburbs, seven from Kindle County, their ages ranging from lively-looking Mrs. Murtaugh, a widow of eighty-two, to Don Something, a hip young guy with a ponytail who wants to teach high school. He is already keeping a close eye on Pinky, whom people her age seem to regard as attractive, despite what her grandfather sees as bizarre affectations like the Day-Glo tattoos frescoed on her arms or the nail through her nose.

  “But didn’t Mr. Appleton say that Dr. Pafko was charged with securities fraud for insider trading, that he sold PT stock right after he received the first call from that Wall Street Journal reporter? Yes. But I am not sure you would understand from Mr. Appleton’s summary that the stock that was sold was in trust for Dr. Pafko’s grandchildren.” Stern utters that word triumphantly, even though he is well aware that under the insider trading laws, the fact that Kiril’s grandchildren profited, rather than Kiril himself, is inconsequential. The jurors will not learn that for weeks, until Judge Klonsky gives them instructions on the law, and at the moment, Marta and Stern are unsure what else they can offer in defense of these charges.

  “Now the point I have just illustrated—that the evidence will show another side to things—is something you must bear in mind throughout. While the government is trying to prove its case, it will decide on the witnesses and ask those persons questions first. Then Marta and I get to ask questions, a process referred to as ‘cross-examination.’ Please, in all instances, be sure to await our inquiries before attempting to form impressions. It will often turn out that some, even much, of the testimony of a witness called by the government actually favors the defense.

  “Second, in every case, just as if these witnesses were salespeople who knocked on your door at home, you must ask yourself if this person has something to gain by what they are saying. For instance, at least two of them, both former colleagues of Dr. Pafko’s at PT, have been promised by the government that they will not be prosecuted for their role in the events they are testifying about. You will learn that it is the government, and the government alone—not the judge, not you, not me—that has the power to decide whether a person is charged with a crime. Thus, the proof will show quite plainly that these former colleagues of Dr. Pafko’s understand their testimony must satisfy the prosecutors.

  “Oddly, even though these two executives from PT refused to testify without the government promising not to charge them, both will tell you that so far as they are concerned, they did nothing wrong. Kiril, of course, agrees. He, too, believes that no crime was committed in this case, no intentional fraud, not by him or anyone else, particularly because, as you will see, one of these two nonprosecution witnesses is Kiril’s and Donatella’s older child, their son, Lep.

  “Lep is an MD and PhD like his father, as well as the medical director at PT. Now, it is a very strange, very difficult situation when a son testifies against his father. The evidence will show you, however, that Lep loves his father and his father loves Lep. Both understand that this is a circumstance the government has forced upon them.”

  “Objection,” says Moses for the first time from his seat.

  Sonny reflects a second, then shakes her head. “Overruled.” Stern takes a second to offer the jury a smile of calm vindication.

  “Now, aside from Lep, the second of these nonprosecution witnesses is another very accomplished person with an MD and PhD, Dr. Innis McVie. Dr. McVie is the former executive vice president and chief operating officer at PT who, along with Lep and Kiril, helped found Pafko Therapeutics. She worked beside Dr. Pafko for thirty-two years, first as a researcher in his lab at Easton, and later as second-in-charge at the company. Once g-Livia was approved for sale in January 2017, she left PT. As happens after decades side by side, disagreements had developed between Dr. Pafko and her, although the details need not concern us.” Stern offers a little wave at the superfluous. What the jury will not hear, as a result of a defense motion Judge Klonsky ruled on in private in her chambers before the trial started, is that for most of Innis’s thirty-two years with Kiril, she was his lover, his ‘wife at work,’ as some called her, a fact Stern himself learned only after trial preparations were under way. Innis apparently spent her last twenty months at PT in a state of fury after Pafko began carrying on with a far younger officer, the marketing director, Olga Fernandez.

  “At any rate, Drs. McVie and Pafko were no longer on good terms, which will be quite apparent to you, because in August 2018, after Dr. Pafko received this call from the Wall Street Journal reporter, Kiril phoned Dr. McVie for advice, and—strangely—she decided to record their conversation. Mr. Appleton has said you will hear that recording. If Mr. Appleton changes his mind, have no fear, the defense will play it for you. One thing you will learn is that it was Dr. McVie, not Dr. Pafko, who first suggested that he sell PT stock. And yet the government decided not to prosecute her.” Stern wrinkles his mouth and narrows his eyes to suggest the government’s decision is imponderable, disturbing.

  “So you understand my point. As you hear the witnesses, ask yourself, please, what stake this person may have in saying what they do. Another example: You will be hearing from agents and officials of the FDA and FBI. Remember they are quite literally testifying for their boss, the government of the United States, which is also prosecuting Kiril. Each, I suspect, would say they want to keep their jobs.

  “Some testimony, like that from investment bankers and stockbrokers, will come from people who might have a financial interest in what they are saying. You also will learn that a number of civil lawsuits have been filed seeking money damages from Kiril and PT for the same events addressed in the indictment. It will turn out that some witnesses, here to testify about the heartbreaking deaths of their loved ones, are seeking, and sometimes have been paid, millions and millions of dollars by PT in these civil cases.”

  “Objection!” Across the courtroom, Moses has rocketed to his feet, thundering the word. A second of stillness follows, since it is evident in Moses’s bearing that he is a man seldom provoked to fury. “Your Honor,” he says, “we have discussed this subject, and the court’s ruling was crystal clear.”

  Staring down grimly at Stern, Judge Klonsky answers. “Indeed, it was. The objection is sustained. The jury will disregard Mr. Stern’s last statement.”

  For another second, the show of anger from the US Attorney and the judge continues to trouble the atmosphere of the huge courtroom, where every seat is filled.

  “In fact,” Judge Klonsky says, “remembering the outline of your remarks, Mr. Stern, I think it’s a good time for a break. Let’s take ten minutes.” Sonny then tells the jury that until the end of the case, they should not talk among themselves about what they have heard in the courtroom. With that, she motions to the deputy marshal to escort them through a back door to the jury room, where they will gather every day and eventually deliberate. As the jurors exit, the lawyers come to their feet, while the judge, still clearly vexed, orders the attorneys to meet with her in chambers.

  In the meantime, as Marta stands at Stern’s shoulder, his daughter whispers, “What the hell was that?”

  3. Friends

  A judge’s chambers are her private offices. Sonny’s, the impressive space afforded the chief judge of the United States District Court, consist of several rooms
that occupy nearly a quarter of the top floor of the grand old federal courthouse. Beside the reception area, three small offices house the law clerks, who help the judge write her opinions, and the docket clerk, Luis, who manages the 450 or so civil and criminal cases over which the judge presides. The remaining area is reserved for the chief judge herself. A huge old Federalist desk is by the windows. Shelves of law books with golden bindings, little more than decorations in the computer era, ring the perimeter, and there is a long dark conference table surrounded by leather executive chairs where the judge holds her meetings. Prominent on the walls are family photos of Sonny’s grandchildren and a few courtroom sketches from her earlier career, including one in which Sonny, then an assistant United States Attorney, is portrayed before the jury box, a finger poised. In the background of the watercolor is her trial partner in that case, Moses Appleton, recognizable, like the judge, in leaner, younger days.

  Meetings in chambers can be conducted outside the presence of the jury—and the press. Nonetheless, Minnie Aleio, Sonny’s court reporter, has taken a place in the corner with her steno machine that transforms shorthand into a transcript. As Moses edges past Stern to find a place on the other side of the conference table, the United States Attorney, still provoked by what has just gone on in court, whispers, “Man, I didn’t think we were gonna try this case that way.” Moses has always treated the Sterns as a cut above, a better class of defense counsel who, unlike many, eschew underhandedness as a defendant’s right, and Stern registers Moses’s rebuke as troubling.