The government commences its case against Kiril Pafko on Wednesday morning with the testimony of Mrs. Aquina Colquitt of Greenville, Mississippi. Mrs. Colquitt, slow-speaking and unfalteringly polite, is everybody’s granny, just a little plump and gray, with large spots of rouge on her cheeks and a springy hairdo that suggests Mrs. Colquitt, even these days, sleeps in curlers. In grim detail, she describes the death of her husband, Herbert. Mr. Colquitt had begun treatment with g-Livia virtually the day the medicine shipped, since his oncologist regarded it as Herbert’s best hope. But one night, after fourteen months of twice-monthly injections, he became feverish with a rapid heartbeat and was admitted to the hospital. Mrs. Colquitt was with him the next morning for his violent death, as he suffered rigors, choking, and uncontrolled vomiting. Herbert took on a scarlet glow as he struggled for breath, while the code team failed with every lifesaving measure.
“It was like Satan hisself had a grip on Herb and was takin him down,” she says. Appealing as Mrs. Colquitt is, the prosecutors have an added reason to make her their first witness. Utterly mystified by Mr. Colquitt’s sudden symptoms, his doctors, after receiving the family’s permission, assigned a med student working with them to briefly video what was occurring. The clip is only about twenty seconds, but it is devastating.
AUSA Dan Feld, in his first speaking role before the jury, conducts the direct examination. As the monitor finally darkens, Feld gazes at Mrs. Colquitt with an agonized look and whispers “Thank you” before taking his seat. The courtroom remains in reverent silence as Marta approaches the podium.
She introduces herself to Mrs. Colquitt as one of Kiril’s lawyers, and then gestures to the defense table. “Mrs. Colquitt, we want to offer our deepest condolences.” The Sterns have agreed to play to type, concluding that the jurors are more likely to accept the required display of empathy from a woman.
“Thank you, ma’am,” Mrs. Colquitt answers.
“Now, Mrs. Colquitt, let me ask you about your husband’s treatment with g-Livia before these final events. Did it seem g-Livia was making him better?”
“Objection,” says Feld.
Sonny angles her face warily. “Grounds?”
“Whether g-Livia worked or didn’t work for a period of time is irrelevant. The question is solely whether it killed him.”
“Ms. Stern?” asks the judge.
“Among other things, Your Honor, the positive effects of g-Livia are relevant to the defendant’s intent, which the state must prove beyond a reasonable doubt.”
Sonny thinks about that. “Overruled.”
“Your Honor, may we be heard?” asks Feld.
“After the witness, Mr. Feld. Ms. Stern may proceed now.”
Marta has the court reporter read back the question to Mrs. Colquitt.
“The doctors and the nurses and them, they said he was better.”
“Did scans show that his tumors were decreasing in size.”
“Yes, ma’am. That’s the very thing they said.”
“And did he seem better to you?”
“For that first time, yes, ma’am. Much better. He was just sufferin so from the chemo and what all. He was a lot better.”
“As far as you were concerned, as his wife, Mrs. Colquitt, would you say that g-Livia had caused Herbert’s quality of life to improve?”
“Oh yes, ma’am,” she answers. “Until it kill’t him. To my mind, that’s not what I’d call improvement, you know.” There is isolated laughter in the courtroom and Mrs. Colquitt looks about somewhat abashed. “Not tryin to be smart or nothin. But Herbie, he was happier, I’ll say that. He had started in lookin at the brighter side, I’d say. Cause he wanted to live, you know.” She’s avoided tears until now. Equipped with an embroidered hanky wrapped over her hand, she now brings it to her eyes.
On redirect, Feld asks the right question, whether Mrs. Colquitt, having it to do over again, would want her husband treated with g-Livia.
“No, sir, not at all. He just didn’t get the time the doctors said they was expectin.”
With that, Mrs. Colquitt is excused. Stern notes that every one of the jurors turns to watch her leave the courtroom in the company of her son and daughter-in-law. As a result of their decision to include murder charges against Kiril, the prosecution has scored big to start.
It was Marta, who enjoys a less formal relationship with Moses than Stern, who brought back the astonishing news several months ago that the US Attorney was going to include murder charges against Kiril. It seemed a classic example of what is referred to as ‘overcharging’ a case, calling a bunion a tumor, with the resulting damage to a prosecutor’s credibility.
But as the Sterns continued to prepare Kiril and themselves for his indictment, they began to comprehend Moses’s logic. For one thing, the law is far more favorable to the government than Stern had anticipated, given the fact that it has never been applied in a similar context. First degree murder in this state means killing someone unlawfully and knowing, in the words of the statute, that “the acts which cause the death…create a strong probability of death or great bodily harm to the individual or another.” The prosecutors say that, in continuing to market g-Livia after finding out that the drug could engender a lethal reaction, Pafko knew there was a strong probability some patients would die.
In dealing with Moses, you can never leave aside the influence of his Old Testament morality. He thinks Kiril is a bad man who has done a bad thing, not only lying for profit, but also subjecting thousands of people to a danger that ended many lives. It’s simple justice, in Moses’s view, that Pafko stand trial for that.
Yet, as Marta and Stern war-gamed the moves and countermoves that would go on at trial, they recognized that Moses also gained important tactical advantages by alleging murder. A case limited to fraud and securities charges would be tedious, with a lot of bureaucratic testimony. Worse for the government, Kiril’s alleged fraud involved fooling the FDA into approving the medication by hiding circumstances—the alleged fatalities—that required further investigation. But in the narrow view of the law, whether anyone actually died because of g-Livia would be irrelevant, and the jury would be instructed not to speculate about that.
With murder charges, on the other hand, the government can prove the fatal effects of g-Livia on specific patients and commence its case with the dramatic testimony of the family members who watched their loved ones perish. The treating physicians will testify next that they could not save their patients, because they were not warned that a severe allergic reaction—which is now the consensus view about what was going wrong—was possible. In the duel of courtroom impressions that is every trial, Kiril must endure a merciless beating at the start.
Yet the murder charges also have enhanced Stern’s modest hopes for an acquittal. To the jury, those allegations, not fraud, will become the heart of the prosecution, and there are many obstacles, legal and factual, to proving murder beyond a reasonable doubt. If the Sterns debunk murder, there is a chance the jury will turn its back on Moses’s entire case.
Once Mrs. Colquitt is gone, Sonny calls a recess to allow argument on Feld’s objection that the defense should be barred from asking the so-called victims whether g-Livia in fact had helped the patients before they died.