by Scott Turow
“And you had thousands of conversations over the years?”
“As I said.”
“And yet you still recall this conversation clearly?”
“If we’re talking about ‘I did some things to solve the problem,’ yes.”
“And in general, Dr. McVie, does your recollection of events get better as time passes or worse?”
“My memory is probably like everyone else’s. I usually remember more clearly closer to the time something happened.”
“In fact, when you asked Kiril Pafko about the problem with the dataset, he told you merely that the problem was solved, did he not?”
“Yes, he said ‘I did some things to solve the problem.’”
“You testified before the grand jury on December 5, 2018?”
“I did.”
“You raised your right hand and took an oath to tell the truth, just as you have now?”
“Of course.”
“And you did not tell the grand jurors that Kiril said ‘I did some things to solve the problem,’ did you? You testified instead that Kiril said merely ‘the problem was solved.’”
She shrugs. “I was reporting the effect of what he said, that the problem was solved. But if you want his exact words, they were, ‘I did some things to solve the problem.’”
“Well, here is the grand jury transcript, Dr. McVie.” He marks the page as an exhibit and asks the judge for permission to approach the witness. “Do you see that ‘the problem was solved’ appears in quotation marks?”
“I do. But I never said ‘quote unquote’ or anything like that. Whoever wrote this down, the stenographer, that was his mistake.”
“When was the first time, Dr. McVie, that you told the prosecutors that Dr. Pafko said ‘I did some things to solve the problem’?” This, too, is a secure avenue for attack, because Moses is too upright to let her lie without correcting her, whatever other prosecutors might do.
“I don’t know.” She looks over to Moses, who is studiously writing notes. “I don’t know if I ever did. Does it make a big difference?” Innis is acting as if Stern is being a petty stickler, and she may actually be winning the point with the jury. Certainly, he knows that by re-emphasizing her version of Kiril’s statement, he is making the same mistake Dan Feld has at moments and simply deepening the damage. He, too, might as well be holding up a sign that says, THIS REALLY HURTS THE DEFENSE, but he is too far down the road, and too confused at heart by Innis, to do anything but follow through. He reviews with her the three times she met with the criminal investigators and the fact that their memoranda show that on each occasion she said ‘the problem was solved.’ Innis continues to act as if she can’t tell the difference between the statements. As a liar, she reminds Stern of some police officers who appear so matter-of-fact in uttering untruths that no person who believes anything about body language could ever doubt them.
Furthermore, he is beginning to realize how cleverly Innis has outflanked him. It was she who was getting critical information in their meetings, not the other way around. She knows she can alter what she previously said to make it more incriminating, because Sandy has told her that the Sterns are committed to a strategy of concealing her long-term affair with Kiril. Without being able to paint Innis as the woman scorned, they have little concrete way to explain why she would suddenly make things up to injure Kiril.
As with almost anything else that happens during a trial, Stern has been here before, taken by surprise by a witness. But the personal element here feels unique. Overall, just as happened after his blurtings early in the case, he feels truly old, unable to make sense of things. He has been standing for several seconds at the defense table, with his back to the witness, as he looks over the notes for his cross sketched out on his yellow pad. The next bullet point calls for Stern to get Innis to agree that Kiril sounded surprised by what Hartung had told him on the phone. But he can think clearly enough to know that she will say that was not how he sounded at all. Overall, Stern is starting to think he should just take his drubbing and sit down, rather than make things worse with something he hasn’t thought through.
Seeing that her father is at sea, Marta pushes a note toward him: ‘Kiril’s statements about not selling stock.’
Stern nods.
“Now, you say you spoke to Dr. Pafko about his intentions not to sell any of his own stock in the company?”
“Right.”
“And would you agree that this statement, too, is one that you never mentioned in your three different FBI interviews, or in your grand jury testimony?”
“I never even thought about it,” she says, “until you mentioned the subject a few weeks ago.”
Stern stops. She might as well have slapped him. Their meetings are supposed to be off the record. He gets it, though. With Innis, there are not going to be any rules besides damaging Kiril as much as possible, at least without hurting herself.
“Now, you had this conversation about Dr. Pafko not selling his own stock in late 2016, as g-Livia was about to go on the market?”
“Correct.”
“In the kitchen, you said? With other people around who were working late?”
“I don’t think other people were there. They’d eaten and gone. We were alone for a second.”
“And you had decided to leave the company by then, in light of the disagreements between Dr. Pafko and yourself?”
“I had.”
“And unlike the other officers, under the last 10b5-1 plan, you were going to sell all your own stock as soon as you could after the FDA approval?”
“Yes. That was definitely my intention. I wanted to be completely done with PT.”
“How much did you make, by the way?”
“Objection,” says Moses.
“Sustained.”
“As you talked to Dr. Pafko about his intentions not to sell stock, how much money did you think you would be making by selling yours?”
“Same objection,” Appleton says, but this time Sonny shakes her head.
“Overruled. That goes to her recollection of the conversation.”
“No one knew what the stock price was going to be when g-Livia went on the market. But it had shot way up already, because the FDA advisory panel had recommended approval of g-Livia, and the press was already speculating about a buyout by a bigger company. I knew I was going to make many millions, Mr. Stern.”
“Now going back to this ‘I took care of it’ statement, you told us that you didn’t ask for details because you and Dr. Pafko were speaking very little.”
“That’s correct.”
“Fair to say in that time period you spoke to Dr. Pafko only when you had to?”
“True.”
“And yet you claim that during that same period when you and Dr. Pafko were speaking rarely, that he nevertheless took you into his confidence and explained his strategy to remain CEO of the company by not selling any of his personal stock?”
Innis has just been aced. It’s the first time Stern has scored at all, and she sits back just a little in the witness box. She smiles a bit.
“Everyone knew that,” she says. “It wasn’t a confidence.”
“Really? Did he speak of his plans not to sell any stock in the presence of anyone else you recall?” Innis knows the Sterns would be able to bring that other person to the stand, where they would likely deny hearing Kiril say anything of the sort. That would be risky for Innis. Violating your oath to God is near the top of Moses’s list of sins, even if the false swearing is helpful to the government. Therefore, a provable lie might jeopardize Innis’s nonprosecution agreement, even conceivably lead to her being indicted for perjury. But Innis clearly senses that she’s at the edge of the cliff and steps back.
“Not that I can recall specifically.”
“Even though you recall your conversation with Dr. Pafko specifically?”
“Yes. That’s what I remember. In fact,” she says. “In fact, you’re right.”
“
I am?” Stern says and feels stupid as soon as the words escape him.
“I remember that’s why I talked to Kiril about this. I wanted to be sure there wouldn’t be any new restrictions on selling all my stock in the event of a tender offer. I asked him as CEO, since he would know, and he said, ‘I won’t sell any of my stock until I have an employment agreement in place to remain CEO. I need—’”
Innis, who seems to be enjoying making it up as she goes, stops midsentence and stares behind Stern. He turns to follow her eyes and sees at once what’s disturbed her. Olga Fernandez, clacking along in her heels, is about halfway down the aisle between the spectators’ benches.
25. Brilliant Pinky
Olga has clearly spent a minute primping before arriving in the courtroom. She is wearing the same belted trench coat Stern saw her in yesterday evening, the lapels turned back to reveal the plaid lining, with a matching silk scarf flowing symmetrically around her throat. Her big blond do has also been carefully arranged as she strides forward. At her side, she holds a small briefcase of glossy red leather that matches her shoes. Overall, she is moving with an air of tremendous importance, which seizes the attention of the entire courtroom.
She pushes through the swinging gate in the turned walnut rail dividing the gallery from the well of the court and heads straight for the defense table. Instinctively, Stern wants to call out to stop her. She is going to embrace Kiril, he fears, right in front of the jury. But he is wrong. Instead she reaches Pinky, opens her briefcase, and hands his granddaughter a file.
Moses is on his feet at the prosecution table. “Your Honor, this is Ms. Fernandez, who is on both sides’ witness lists.” Anticipated witnesses, except for the FBI agents and the defendant, are barred from hearing other testimony. Moses is also savvy enough to realize that Olga’s presence will unsettle Innis, who up until this instant has looked as cool as a gangster machine-gunning enemies. Olga, in the meantime, looks up at the mention of her name.
“May we take a very quick recess to deal with this?” Moses asks.
“All right,” Sonny says. “Let’s take a little break. Mr. Stern, you’ll explain to Ms. Fernandez?”
“Just so, Your Honor.”
Kiril, Stern, Marta, and Pinky cross the corridor and direct Olga to the attorney-witness room. Stern keeps his eye on his client, who nods to Olga circumspectly, just as Marta is shutting the door.
“Pinky asked for these records,” says Olga. “I knew Innis was testifying, so when I saw them, I thought, ‘Chica, you better get downtown.’ I texted them, too, but I didn’t think any of you guys would look at your phones during court.” It has required several trips to her aunt’s pillory to get Pinky to understand her device must stay in her purse while court is in session.
Again Stern feels very old and confused. “Pinky asked?”
“You wanted everything related to Innis’s severance,” Pinky says. “So I asked for the detail. I thought, What the hell. Could be something.”
It is more than something. There are several pages there, printouts, and Olga lays a bright red nail on one line.
“I did a reverse directory.”
Stern’s pulse is quick; he might even be having another instant of tachycardia. From some crag in his memory, he identifies the number. There were periods in the past when he called for one reason or another.
To regain control, he does what experience has taught him. He lifts his hands and tells everyone to stop. He needs to get things in order. He asks both Olga and Kiril for some background about the documents, then thanks Olga profusely but tells her she must go now. She departs agreeably, and after asking if he’s needed, Kiril follows quickly. With Marta beside him, Stern looks through the records, until he is sure they have seen everything of consequence, then he sends Pinky back to the courtroom to make copies on the small portable printer they have with them as part of their trial gear. Before Pinky departs, Marta stands up to hug her niece.
“This was brilliant,” Marta is telling her. “Really brilliant. Right, Dad?”
“Inspired,” says Stern.
Beaming exuberantly, an apple-cheeked smile he virtually never sees, his granddaughter looks like she may actually topple from pride.
Once the door closes, however, Marta’s expression subsides to pique as she looks at her father.
“Honest to God, Dad. Men are idiots. I could see the minute that woman walked into the courtroom that she was going to fuck Kiril over any way she could.”
Even now, Marta loves the moments when she is playing ahead of her father. He considers whether this remark is a comment on his perspicacity or his vulnerability. Probably both. He is also waylaid just a second with the thought that if he made a similar remark about women, his own daughter might threaten him with a lawsuit. On the other hand, as the law teaches in defamation cases, truth is an absolute defense. He finally nods.
“Well perhaps, then,” he says, preparing to use a word that seldom crosses his lips, “we can now fuck her over in return.”
“Now, Dr. McVie,” says Stern, even before the courtroom is fully settled after the break. It has been years since he has felt this kind of eagerness about a cross. Whatever the irony, Innis has indeed made him feel young again. “This call between Dr. Pafko and you on August 7, 2018, which you recorded. The number Dr. Pafko called”—Stern recites it—“was that a company cell phone?”
“No, that was my personal cell phone.”
“Did PT have business cell phones?”
“When?”
“When you left the company?”
“Yes.”
“Did every employee have a company cell phone?”
“Every ‘key’ employee who had a reason to make outside business calls had a company cell phone.”
“And were the cell phones part of your responsibility as COO?”
“Yes.” She actually laughs. “I thought I had more important things to do, but I ended up spending a lot of time on cell phone policy.”
“Feel free to explain, if you don’t mind.”
Innis is suddenly lighthearted. Watching her, Stern recognizes a sad truth: Innis loved every minute at PT, every tiny involvement.
“We went through several plans,” she says. “At one point, we just reimbursed each employee for their cell phone use. But the IRS came in and told us we had to add the personal portion of each phone to the employee’s W-2. So then I had eighty employees using work time to go through their phone bills line by line, and two people in accounting adding it all up and submitting it to the CPAs. After a year of that, I realized we’d save a lot of money if I just gave everybody their own business cell phone and told them in writing only to use it for business purposes. To satisfy the IRS, we made everybody list their personal cell phone number and carrier. Even paying for eighty phones, we had a huge cost savings.”
“Did you get billing detail for each company cell phone?”
“No. It wasn’t like your personal cell phone. In order to save money, we only got a bulk bill each month. If we wanted to know about individual phones, we could go online and look at the statement for the period.”
“And did anyone at PT look at that online statement?”
“As I said, the point was to reduce accounting costs. When the main bill came in, somebody down in accounting was supposed to look at the detail online, just to be sure no one was calling a BFF in Zanzibar four times a week, but I know I said that if the bean counters spent more than half an hour on this, I would kill them. I was sick of wasting money and time on cell phone accounting.”
“And how long does the provider keep that detail for each individual phone, the backup for the bulk bill for the company cell phones?”
“I have no idea. As I said, in accounting they barely looked at the current month. I’m pretty sure the provider doesn’t keep that material online very long.”
Moses stands. “Your Honor, I understand why Mr. Stern wants to distract us from the central points in Dr. McVie’s testimony, bu
t may I ask if there is any other reason for this line of cross-examination?”
“Mr. Stern?” the judge asks.
“If the court will indulge me for a few more minutes? I promise it will be clear.”
He tries, as best he can, to look like his old self as he appeals to Sonny. Since no one, including the judge, can understand the point of his questions, he is afraid she will suspect him of engaging in more addled behavior. If she forces him to explain, it is likely to ruin what he has in store. The judge makes a face but says, “A few more questions.”
To be safe, he moves on to a subject with clear relevance.
“Now, this nonprosecution agreement you reached with the government included a provision that you would provide the government with personal data. You would turn over your computer, your tablet, your phone, your bills, correct?”
“And I did that,” says Innis.
“And before that, you had entered a severance agreement with PT when you left the company in January of 2017, did you not?”
“I did.”
“And one of the benefits was that you were allowed to keep your company cell phone for two years, and PT paid for it?”
“Right. But as I’ve explained, that’s for company business. Which I stopped doing.”
“But my point is that you did not provide the government with the records from that cell phone.”
“I couldn’t. The company has access to the billing, not me.” She offers a tight, arrogant smile. Stern can see that Innis has been playing things ahead, trying to understand this line of questioning. She is sure that this is going to be Stern’s point and that she’s beaten him again. “And as we’ve discussed, I’m sure the bills aren’t online anymore. And the other thing, to be honest, is I don’t even know where that phone is.”
“Did you destroy it?” asks Stern.
Innis takes a second.
“Why would I destroy it?”
Stern stares her down.
“Would it surprise you, Dr. McVie, to learn that because of the IRS regulations you mentioned, despite the bulk billing, the cell provider maintains the online billing detail for each individual business cell phone for four years?”
