Accordingly, when the case was randomly assigned to Judge Klonsky, she sent a joint e-mail to Moses and Stern and Marta. ‘Talk among yourselves and in your offices. If you think, on balance, you want a different judge, just e-mail Luis,’ her docket clerk, ‘and tell him to put it back on the wheel. No hard feelings, I promise.’ Moses was the first to hit Reply All and say, ‘No objections here.’ Marta was less inclined to agree, but Stern pointed out that Kiril’s interests favored staying put. Sonny is an excellent trial judge who is fairer to the defense than many of the former prosecutors on the bench, and she is also a lighter touch at sentencing.
Now they are at the first crossroads. Facing Sonny’s baleful look, Stern can only speak the truth.
“Your Honor, I was confused,” he says. The words are sincere, but the explanation settles in the room like a bad odor. It is a second before Stern recognizes that what he said might be taken as a reference to his age. The judge jolts slightly, while Stern continues to fumble. “I thought that because Your Honor had ruled in response to our objection, we could proceed otherwise.” This explanation does not really make sense even to him, and in the end he can offer only abject apologies and a promise that there will be no reoccurrence.
The deeply humane look, which has always been essential to the Sonya Klonsky Stern knows, wars in her face with deeper doubts, but she decides to say no more. She tells the lawyers she will see them in five minutes in the courtroom.
4. g-Livia
Across the corridor outside the courtroom doors, in the small Attorney & Witness Room, Stern briefs Kiril and Donatella with studied nonchalance about what transpired in chambers. Then he returns to the defense table, where he finds himself momentarily alone, trying to calm himself by taking in the majesty of the chief judge’s courtroom.
First erected in the early 1900s in beaux arts style, the courthouse was undergoing expansion when the market crashed in 1929. The building’s intricate architectural detail, finished during the Depression by craftsmen employed by the WPA, required substantial upkeep, and thus the courthouse was briefly abandoned about forty years ago in favor of a glass-and-steel tower built across Federal Square. But the mechanical systems there were a disaster. Stern still recalls a winter day when you could see your breath inside, and old Judge Carrier took the bench in a topcoat and mittens.
The judges returned here. These days the Old Courthouse is a cherished landmark, often portrayed on postcards showing glamour shots of the central staircase of wrought iron and translucent alabaster panels winding beneath the glass-domed roof. Within Sonny’s two-story courtroom, slanting walnut pilasters frame the wide arched windows and naturalistic murals depicting legendary scenes of justice. Overhead, the ceiling coffers are etched in gold, with bizarrely beautiful chandeliers set on the corners, inverted obelisks of greenish copper. For a second, Stern marvels about Beauty, supposedly eternal but often judged so differently across the generations.
Abruptly, the judge returns, and the onlookers and lawyers scurry to their seats. Once the jurors are again in the box, Sonny turns to address them.
“Ladies and Gentlemen, from time to time as the trial proceeds you will hear the lawyers make objections. It may sound like they are being technical, or even trying to hide things from you, but they are doing their job to ensure that this case is decided according to rules for conducting a fair trial. Those rules have been followed for centuries, with good results, and it is my job to decide whether the objections are correct. When, as just happened with Mr. Stern right before our little break, I sustain an objection, then you must do your level best to put what he said out of your minds. It is something I’ve decided doesn’t fit within those time-honored rules.”
At the mention of his name, Marta gives her father a solid kick in the ankle under the table. He is actually pleased that she has recovered her sense of humor, since Marta’s expression while they were in chambers was stark and alarmed. And he accepts the admonition delivered at the point of her shoe: It is imperative for any trial lawyer to stay on a judge’s good side, at least in the presence of the jury. Jurors always love judges, whom they take as their only reliable guide through the strange land of the law.
“Mr. Stern,” the judge says, “please proceed. I believe you are going to speak about twenty minutes more.”
He responds with an obedient nod and struggles to his feet.
“Ladies and Gentlemen,” he says, “in the remainder of my opening remarks, I want to address Mr. Appleton’s most dramatic charge, that Kiril Pafko, MD and PhD, for his own profit, supposedly put a medication on the market with the intention that some patients would needlessly die. The evidence will show that, were it not so grave, this accusation would be laughable.”
With his cane, Stern again limps to a place a few feet in front of the jury rail.
“Now let us concede the obvious. It is true, sadly, that patients who were taking g-Livia died, and that those deaths were often a great blow to their loved ones. We all sympathize with their grief. But you do not take g-Livia like an aspirin. You take g-Livia because you are very sick, because you have serious progressive cancer, and because you know that without it, the odds are you will die relatively soon. Yet the prosecution will not and cannot prove, let alone beyond a reasonable doubt, how long any one of the persons named in the indictment would have survived, if they were not taking g-Livia.”
“Objection,” says Moses. Stern’s neck is far too arthritic to allow him to look back without moving his entire body, but he revolves smoothly to face Moses. This, too, is something he will miss. Age has made him slow and even clumsier. One knee is irreparably diseased, while arthritic pain radiates along the length of his spine. His balance is perilous. Yet by whatever magic, in the courtroom he has always moved with grace.
“That is not what the government is obliged to show,” the US Attorney says. From Moses’s settled tone, Stern is certain that this is an objection Moses is making for tactical reasons. But on the bench, Sonny is shaking her head.
“I heard him describing the evidence, Mr. Appleton. Overruled.”
“Thank you, Judge Klonsky,” says Stern, nodding politely, hoping the jurors conclude that the judge and he are again on good terms. “Yet the most obvious answer to the murder charges is Kiril Pafko’s life. For fifty years he has made immense contributions to curing cancer, perhaps greater contributions than any other human being alive.
“To understand, you must learn just a little bit about Kiril’s research, which is remarkably complex. But feel no fear, please: I do not really understand what Kiril does, so from me you will hear no long confusing lectures.”
In the jury box, they all smile. Stern feels he is already over the first hurdle. Instinctively, juries often dislike the person who speaks for someone accused of a serious crime.
“Cancer, as you know, occurs when cells in an area of our body stop going through the normal cycle of first growing, then eventually dying and being replaced by younger cells. Instead, cancer cells grow uncontrollably. Most often, they form huge masses in our bodies, called tumors.” Stern again touches his chest, over his own lungs, which were afflicted. He is far from the only cancer survivor in the room. One of the jurors, a heavy, dour CPA, revealed during voir dire that she has had two bouts of bladder cancer, and Sonny, as a young woman, lost a breast. Her gratitude for the decades of good health she’s enjoyed since is one more reason Stern regarded her as a particularly lucky draw for Kiril.