“This ‘victim’ testimony,” says Feld, employing the word he can’t say often enough, “is being offered only to show that g-Livia actually killed these persons, as the murder statute requires. Whether the drug worked for a period of time is irrelevant.” At the end of the day, this is the greatest single weakness of the murder case: g-Livia works. Yes, the murder statute reaches to a gangbanger who kills someone else when shooting at a rival in a drive-by, but could the gang member be convicted of murder if, in firing, he also magically made others invulnerable to bullets? The analogies are imperfect. But the questions are obvious.
Seemingly realizing that the positive effects of g-Livia might mitigate the crime, the government carefully chose the victims named in the indictment. All had stage 2 non–small-cell lung cancer, meaning the disease had progressed no further than the lymph nodes on the same side as the tumor. Thus, with the treatment regimens standard before g-Livia, these patients were all expected to survive longer than the thirteen to eighteen months each had gotten. Even so, the jury will inevitably hear something about g-Livia’s benefits, since that is part and parcel of the clinical trials that are central to the government’s case. What Feld is arguing now is a legal point, that the good g-Livia did some patients does not constitute a defense to murder.
Rather than raise the issue before trial, the prosecutors seem to have decided that they will fare better on the off chance that they catch the Sterns—and the judge—flat-footed. They have not, however. Marta is armed with several arguments and supporting cases, and it is her last line of attack that seems to gain the most traction with the judge.
“Your Honor,” Marta says, “the government needs to show in the words of the state murder statute a ‘strong probability’ that Dr. Pafko’s acts would lead to deaths and he knew that. There is no question, therefore, that the defendant is entitled to show the helpful effects of the medication, since, from his perspective, it affected the probabilities.”
“That’s a red herring, Your Honor,” Feld answers. “The strong probabilities—the overwhelming probability—remained that someone was going to die from this drug, even if it helped some people, even most people.”
“Judge,” says Marta. “Dr. Pafko’s assessment and the probable effects of g-Livia are issues for the jury to decide, not Mr. Feld. And to do that, the jurors must know the full gamut of the results, not just the bad examples the government wants to cherry-pick.”
The cases decided by the state courts throw little light on the question of what constitutes ‘a strong probability,’ mostly because the murder statute has never been applied in a circumstance like this. Sonny leaves the bench for ten minutes, to do her own quick study. Returning, she says simply, “The government’s objections are overruled. The defendant may show the positive results of treatment with g-Livia, certainly in the cases of the persons alleged to have been killed. We’ll have to hash out the finer questions of law at the end of the case when we get to jury instructions.”
This is the Sterns’ first concrete victory on Kiril’s behalf.
The testimony resumes with the son of a woman who died shortly after a year of receiving g-Livia. For the Sterns, the only strategy that makes sense is to get the so-called victim evidence over as quickly as possible. In the wake of Sonny’s ruling, Feld alters his examination of the son to include a question about whether g-Livia improved his mother’s condition for a while. Accordingly, when the man’s direct is over, Marta stands and says, “You have our deepest condolences. The defense has no questions.”
The next witness is Mr. Horace Pratt of Maine. Feld is clearly hamming up this part of the case, and Mr. Pratt gets on the stand looking like the farmer with the pitchfork from the painting American Gothic. He is dressed in khakis and a flannel shirt buttoned to his throat.
Before the jury was brought in this morning, Marta raised the issue that got her father in trouble with the judge. The estates of all seven victims named in the indictment filed civil complaints against PT for wrongful death. Despite the prosecutors’ objections, the judge ruled that in the five civil cases still pending, brief cross-examination was proper to establish that the relative stood to get some of the money that PT was being asked to pay. It is clearly relevant to a witness’s credibility if they might profit elsewhere from what they are saying. On the other hand, the judge barred any inquiry with the two families—including the son who just got off the stand—that have already reached multimillion-dollar settlements with PT, since those witnesses will not get any further financial benefit as a result of their testimony. Before trial, Sonny had said she wanted to make this kind of case-by-case appraisal with each witness, which was why she was so angry when Stern charged ahead without her permission, making matters worse by mentioning the settlements.
On this issue, too, Feld has, in the courtroom saying, chosen to ‘take out the sting’ by asking about the civil suits on his direct examination. Mrs. Colquitt had answered, ‘I don’t know so much about that cause my son’s been talkin to Lawyer Neucriss.’ Mr. Pratt answers similarly that the matter is in the hands of the lawyer for his wife’s estate.
“Now, Mr. Pratt,” Marta says, when it’s her turn, “you are the heir to your wife’s estate?”
“True,” says Pratt, spare with words.
“And you know, don’t you, that your wife’s estate has brought a wrongful death action against Pafko Therapeutics?”
Feld stands to object. “He said the estate’s lawyer is handling the matter.”
The judge squints toward Feld through one eye. Like the Sterns, she clearly suspects Feld of shaping the testimony in pretrial meetings, so the witnesses can sidestep the issue of what they might gain from being here.
“Ms. Stern was asking about what Mr. Pratt knows. Overruled.”
“Yep,” says Pratt. “Know that.”
“And you are being represented in this matter by the Neucriss Law Offices.”
“Anthony Neucriss. The son.”
“And do you know also that the Neucrisses have asked for damages from PT of $5 million?” The number produces a little ripple in the courtroom.
“I do.”
“And do you know also that the Neucriss firm has turned down on your behalf an offer from PT of $2 million.”
Feld objects indignantly. This question is on the borderline and Sonny hesitates. In the interval, Pratt answers.
“Not two million to me,” he says. “Neucriss gets forty percent, so for me it’s hardly over a million.”
Stern catches Mrs. Murtaugh, the elderly widow on the jury, allowing her mouth to sour. There is a different face now on Mr. Pratt’s grief.
Sonny says, “I’ll limit further cross to the ad damnum,” using a term the jury is not meant to understand. With the other victim witnesses, Marta can only ask about the amount of damages the families are seeking.
Even with that limitation, Marta is able to point out that three of the remaining five ‘victim’ witnesses stand to benefit from the pending litigation. Two of the families are also clients of the Neucriss office, whose first cases were filed less than forty-eight hours after the Wall Street Journal story appeared. How the Neucrisses managed to track down these patients and sign them up before other attorneys is a mystery that the Sterns and the large firms that represent PT in these civil cases have had no success in solving. But Pete, the father, now almost ninety, is still known among Kindle County lawyers as the Prince of Darkness, and has been finding underhanded ways to worm into juicy personal injury matters since the days of his first marriage, when his father-in-law, a lieutenant in the Traffic Division, instructed all the cops in his command to hand out Neucriss’s card at accident scenes. Indeed, Stern recalls the wire service photos of the elder Neucriss stalking through the streets of Bhopal, India, after the infamous chemical spill there, his briefcase stuffed with retainer agreements and an Army gas mask over his face.