“The National Cancer Institute says that for all lung and bronchus cancers, forty-seven percent of patients live one year.”
“Fifty-three percent do not?”
“Yes, but survival rates are higher for non–small-cell than small-cell cancer. And eight of nine lung cancers are NSC. Then about thirty percent are diagnosed at stage two. Based on the available data, I’d say ballpark that fewer than thirty percent of stage two patients expire before fourteen months.”
“So going back to Mr. Colquitt, the gentleman from Mississippi, there’s a thirty percent chance that he wouldn’t have survived the fourteen months that he did on g-Livia. In that range?”
“In that range. But let’s be fair to everyone and say twenty-five to thirty percent.”
Kapech means to be evenhanded, but his willingness to bargain with the truth is one more thing that might inspire the jurors to doubt him.
Across the courtroom, Stern stops to scrutinize Kapech. He clearly enjoys being known as the great authority, but whatever his gripes with Kiril, Bruno certainly doesn’t appear to be slanting the data. Stern’s sense is that if he solicits opinions from Kapech, rather than challenging the ones he’s offered, Kapech will remain friendly. Lawyers are always taught not to ask a question on cross-examination to which they don’t know the answer, but Stern’s instinct is that there is an opportunity for the defense here.
“So you would say as an epidemiologist, Dr. Kapech, that there is a strong probability that Mr. Colquitt or anyone else diagnosed with stage two non–small-cell lung cancer would live longer than fourteen months?”
Kapech pulls a mouth. “I can’t say a ‘strong probability.’ A good chance, yes. A strong probability, no. It’s all semantics, of course, but to me a strong probability is closer to eighty-five to ninety percent.”
The jury doesn’t get it yet, because they have not been instructed on the law. Right now, this back and forth between Stern and Kapech probably sounds like nitpicking. But if there was not a strong probability that the victims named in the indictment would have lived longer than they did, Kiril could not have committed murder. You can’t kill a ghost. Bottom line, the government’s main epidemiological expert has just testified in effect that Kiril is not guilty. When Stern turns briefly, he sees that Marta has lifted a hand to her mouth to conceal a smile.
Having scored like this, Stern knows that he should sit down. But he has that feeling of momentum he has often experienced during a successful cross-examination.
“Now, to be clear, Dr. Kapech, patients diagnosed with stage two non–small-cell lung cancer have a very serious disease, which unfortunately is likely to end their lives eventually, no matter what the treatment.”
“I can’t disagree,” says Bruno Kapech.
“And in your testimony, you are simply contrasting what happened to these particular patients against what might have been predicted, had they followed treatments standard before g-Livia became available.”
“Correct.”
“But would you agree that the one-year survival rates on g-Livia show that it is a better choice for the first year, even given these isolated reactions?”
Feld objects on relevance, but Sonny overrules him. Her face has darkened as she looks at the prosecution table.
“Yes, Mr. Stern, the one-year data is far better. But as you know, we make these judgments based on five-year rates. Because g-Livia has been removed from the market, we don’t have any longer-range data, even anecdotal reports. So we don’t know how many patients would develop a fatal allergic response over the longer period.”
Stern stops. Something is wrong about what Kapech just said.
“By ‘anecdotal reports,’ you mean reports about what happened to particular patients, rather than a disciplined study?”
“Exactly.”
“But you are familiar with some anecdotal reports about extended use of g-Livia, are you not?”
“Not that I am aware of,” says Kapech.
Stern knows that isn’t true. Kapech and he have talked not only about Stern’s case but about six other patients who started getting g-Livia after him in late 2013 and early 2014. Stern included, five of them are still alive.
“Well, Doctor, you are quite familiar with at least one report, are you not, about non–small-cell patients who have survived on g-Livia longer than five years?”
“No.” Kapech shakes his head firmly.
“You are not familiar with my medical history, Dr. Kapech?”
Across the courtroom, Feld shrieks, “Objection!” and behind him Moses booms the word again, in the same tone of outrage he used when Stern mentioned the civil cases during opening.
Stern looks back. There is an iron rule against a lawyer becoming a witness before the jury. He takes the point and waves at Kapech.
“Withdrawn,” he says. “Nothing further.”
“Mr. Stern!” says Sonny. He sees only now when he looks up to the bench that he has badly misunderstood the gravity of the situation. The judge stares down darkly.
“Remove the jury,” she says with a gesture at Ginny Taylor, the deputy marshal in her blue uniform. The jurors are gone quickly. Stern realizes that he lost track of things. Because of his memories of the trauma of his diagnosis, and his acquaintance with Kapech outside the courtroom, he got entirely caught up in their byplay.
“I apologize, Your Honor.” He starts to explain but the judge is shaking her gray head quite deliberately.
“No, Mr. Stern. I have warned you already that I was not going to tolerate any more infractions. You know your medical condition has no place in this case. If you can’t follow the rules, I am telling you right now that I will order that Ms. Stern conduct the defense alone.”
It is part of the job for defense lawyers to quarrel with judges, but the sharpness of the rebuke, particularly coming from Sonny, whom he counts as a dear friend, makes Stern feel as if he has been run through by a lance. Losing Kiril’s case is an accepted risk. Being removed as out of control, however, is a humiliation that will follow him to the grave. He suddenly feels weak with confusion and grief and falls into a chair at the defense table, leaving it to Marta to approach the bench, while Feld and Moses follow. Feld speaks while the US Attorney, deeply aggravated, turns back to glower at Stern, who suddenly recognizes that he may have permanently damaged this relationship as well.
Although Marta counts Moses as a friend, Stern and Moses’s connection is principally professional. Yet there has always seemed to be deep respect on both sides. As prosecutors are inevitably, Moses is intensely judgmental, but he also strives to be fair and has always been willing to listen to Stern’s arguments in behalf of his clients. In press interviews, Stern sung Moses’s praises following his appointment as US Attorney two years ago, after nearly a decade as first assistant. Stern was one of the few in the legal community unsurprised that Moses has always been a registered Republican.
Moses grew up in the Grace Street projects, coming of age in sadly familiar circumstances, raised by his mother and grandmother while his father, whom Moses never really knew, was doing thirty years at Rudyard penitentiary. Among Moses’s more harrowing stories of his childhood is how his mother would occasionally lay his sister and him in the bathtub to protect them from gunfire in the hallway. Mrs. Appleton worked double shifts on an assembly line to pay for Catholic school for both her children, although their weekends were spent at her side at River of Zion. Moses was one of only twelve boys in his class to finish high school, following which he enlisted in the Marine Corps. Afterward, he went to college on the GI Bill, then enrolled in law school, which he attended at night while driving a UPS truck all day. Along the way, Moses developed fixed views about what is fairest for people like him who start with nothing: Stability. Rules followed by everyone. An evenhanded system of rewards. Notwithstanding the demands of being US Attorney, he still tutors once a week at St. Gregory’s, where he attended grade school.