Tuesday, March 17, 2015, 1845 Ocean Place, Pacific Beach
Kathryn opened her red front door, framed by the white roses, at seven the next morning. She had slept soundly in Paul’s guest room, and she’d decided to forgive him for everything. It took her all of ten seconds to realize her house had been turned upside down. In terror, she ran to the guest room where she found the box of Shannon’s letters was missing.
CHAPTER THIRTY-SIX
Tuesday, March 17, 2015, 1845 Ocean Place, Pacific Beach
She had to be calm, she told herself as she stared at the empty drawer in Tom’s desk. She had to be at court in two hours. She couldn’t let anyone see she was rattled.
She fished her cell phone out of her purse and called Paul.
“Hey, Kath. What’s up?”
“Someone broke into the house last night.” Despite her best efforts, her voice quivered.
“Are you okay? Are you sure there’s not someone still inside?”
The thought hadn’t occurred to her. She’d been completely focused on the loss of Shannon’s letters. “I’m shaken up. But I’m okay. I don’t see any sign that anyone is still here.”
“You should call the police.”
“No!”
“Kath, this is serious. You should make a police report.”
“No! I’d have to tell them what is missing.”
“Don’t be silly. The police have no idea the importance or unimportance of those letters. You just say some of your husband’s personal mementoes were taken.”
“But the really valuable things, the medals and trophies, weren’t touched. Whoever this was knew about Shannon and her letters. I don’t want anyone to know I’m upset by it.”
Paul sighed. “Okay, have it your way. So I take it you aren’t going to tell Mark and Hugh?”
“Of course not. You were the one who said I could say under oath my marriage was fine.”
“And you can. Those letters were just Shannon in desperate mode. Tom wasn’t going to leave you. But you have to realize that someone now has them who is not on your side, and they don’t look good.”
“But, as you said to me a long time ago, Wycliffe has no way of knowing who Shannon is. You refused to connect her to Steve yesterday.”
“True. But since someone came for her letters, I wouldn’t be surprised if they had figured out the connection.”
“But how?”
“How doesn’t matter at this point. What matters is that you’re safe. You’ve got to let Mark and Hugh know about this, so they can be prepared if something unexpected happens.”
“No! I can’t talk about Shannon to them.”
“Do you want me to tell them?”
“No!” I just want to pretend there never was a Shannon. If I don’t talk about her, she can’t exist.
“Should I come over?”
“No. I have to take a shower and get dressed for court.”
“You shouldn’t stay there tonight. You aren’t safe alone.”
“I’ll be fine.
* * *
Tuesday, March 17, 2015, Edward J. Schwartz Federal Courthouse, U.S. District Court, Southern District of California, San Diego, 9:00 a.m.
Kathryn struggled to focus on Bruce Myers’ testimony. He was a handsome, middle-aged man with thick, dark hair, kind brown eyes, and a gentle smile. His tweed jacket made him look friendly and approachable and like the healer he was. He spoke softly, but without hesitation, into the microphone as he explained Tom’s medical history. It was a story she’d heard far too often. It was a story she still vainly hoped against hope would have a different ending.
Mark spent most of the morning presenting Dr. Myers and his opinion that Myrabin had caused Tom’s death. Just before lunch, Bob McLaren began badgering him about his conclusions, but Bruce held firm.
After they returned from lunch, McLaren took up the cudgels again, but Bruce Myers once more refused to depart from his opinion about the role of Myrabin in Tom Andrews’ death. All afternoon, as McLaren attacked Bruce repeatedly and as Mark quietly rehabilitated his opinion over and over on re-direct examination, Kathryn kept seeing the empty drawer in Tom’s desk and inwardly shivered at the thought of who might have Shannon’s letters.
At four thirty, when the day’s session ended, she walked back to the Emerald Shapery Center with Hugh and Mark, thinking about Paul’s warning that she should tell them about the missing letters. But she couldn’t. She just couldn’t face having to say out loud that the love of her life had been involved with Shannon Freeman.
“You look tired,” Hugh said as they settled around the table in the big conference room to talk over the day’s testimony. Were his eyes a shade too concerned, she wondered. Was his tone more personal than professional? Surely not.
Kathryn smiled as she poured water from the carafe in the center of the table into a glass. “I am. I didn’t sleep well last night. Bruce did an outstanding job for us today.”
Mark nodded. “Bruce stuck to his guns on Myrabin as the cause of your husband’s death.”
“I think McLaren hurt himself by going after him too aggressively on cross-examination,” Hugh said. “I could tell from their faces many of the jurors didn’t like the way he kept attacking him. I think Wycliffe lost some points with them today.”
Kathryn looked down at her phone and saw a message from Joe Sanders. “At your office. Need to talk ASAP.” She stood up. “I’ve got to go to my office. Joe Sanders is waiting with some information on Tyrone’s case.”
“How is that going?” Hugh asked.
“Joe’s been a great help. Goldstein, Miller’s offer to pay his fees has allowed me to get information I would not otherwise have had. But so far, I haven’t found what I need to prove Tyrone’s alibi. Maybe this will be it.”
“Let’s hope so,” Mark smiled.
“I’ll walk you to the elevator,” Hugh said as he fingered the little blue box in his pocket.
* * *
Tuesday, March 17, 2015, Office of the Public Defender, 450 B Street, San Diego
Joe was waiting for her in their bare-bones reception area when she arrived. He was wearing a light tan suit that was a radical departure from his regulation brown, but it was just as rumpled as his usual business attire. As Kathryn punched in the security code to the private area of the office and motioned for Joe to follow her, she wondered if he owned any coat hangers.
Kathryn sat down behind her desk and motioned for the investigator to take the chair opposite. She resolved to ignore the mail piled in front of her. Millie had arranged for other attorneys to cover her cases while she was in trial on Tom’s case, but the mail clamored for her attention nonetheless.
“I’m hoping this is good news for Tyrone,” she said.
“Mixed.”
“Okay. Let’s have it then.”
“I’ve discovered the police, indeed, have the tapes from the Rendevous on the night of the shooting.”
“And do they support Tyrone’s alibi?”
“Yes. He’s clearly visible throughout the night with Tamara.”
Kathryn’s heart leapt with joy. “Joe, that’s not mixed news! That’s the cavalry to the rescue. We can get Tyrone off with that!”
“Except we don’t have it.”
“What? How do you know what’s on the tapes if you don’t have them?”
“Because I have a confidential source in the San Diego Police Department who told me the cops are sitting on those tapes in order to get Tyrone convicted. He’s a Crip, and they think that justifies a wrongful conviction to get him off the streets.”
“So a clear violation of their duty to turn over any evidence which shows the defendant is not guilty under Brady v. Maryland?”
“Yep. They’ve made themselves a huge Brady problem.”
“Then I’ll call Sam McIntyre and confront him!”
“That won’t get you anywhere. Sam doesn’t know the cops are sitting on Brady evidence.”
“But when I tell
him–”
“They’ll destroy the tapes. The only reason the cops haven’t destroyed them yet is because they’re afraid Ray-Ray has copies. If it comes out there are copies, they want to be able to produce the ones they took and say, “Oops, sorry. We forgot. Good faith mistake.”
“What bullshit!”
“I couldn’t agree more. But a court will buy their excuse and refuse to sanction them.”
“So we still have to get Ray-Ray’s copies. If he still has them.”
“I’m going to talk to him tomorrow and level with him. If he has the tapes and if he turns them over, he can save Tyrone. Everyone likes Tyrone. He’s a Crip, but a harmless one. Besides the Crips were the only family he ever had, and he sold those drugs so he could eat. That busboy gig at Applebee’s didn’t pay him shit. Hey, I didn’t get to ask, how are things going with Tom’s case?”
“So far so good. It’s just the beginning.”
“I hope you don’t mind that I wanted to meet in person. Since the cops are involved, I don’t trust the security of my phone or yours.”
“No, of course. This was best. We’ll meet again when you’ve talked to Ray-Ray.” She thought of the empty drawer in Tom’s desk and the footsteps always behind her. Joe was right to be concerned about security.
“I’m thinking of going out to the club tonight. If he’s had enough to drink and business is good, he’ll be feeling mellow and will be more likely to cooperate.”
Kathryn walked Joe back to the lobby and told him goodbye Then she went back to her desk and found a text from Paul. “Don’t stay at your house alone tonight. Come sleep in the guestroom.”
But she wanted to go home where she could see Tom’s medals and feel Tom’s presence. She unlocked the bottom drawer of her desk and took out her Glock .9 millimeter. Learning to use a handgun had been Tom’s idea. They’d both taken lessons and become expert shots, although her scores were always higher than his, and he liked to tease her about it. She clicked the magazine firmly into place, put the gun in her purse, and went home.
CHAPTER THIRTY-SEVEN
Wednesday, March 18, 2015, Edward J. Schwartz Federal Courthouse, U.S. District Court, Southern District of California, San Diego, 9:00 a.m.
Karl Martin, the head of the Scripps transplant team, took the stand first thing that morning. He was tall and thin and slightly balding. His wire-rimmed glasses made him look like the medical expert that he, indeed, was. He was wearing a tweed sports coat, too, and Kathryn wondered if he and Bruce had planned to mirror each other.
She listened as, step by step, Mark led Dr. Martin through the details of death by liver failure. He described Tom’s bloated belly; his swollen, useless legs; the nausea; the vomiting; his dementia; and, at last, the mercy of falling into a coma. He explained why Tom was too weak for a transplant when he was admitted to the hospital and why he never regained enough strength for the operation.
Kathryn found it nearly unbearable to listen to. Mark was focusing his questions on the details of Tom’s agony to persuade the jury to bring back a multi-million dollar damage award to punish Wycliffe. A thousand times that morning, Kathryn wanted to get up and run screaming from the courtroom as she heard Dr. Martin explain how, day by day, hour by hour, and minute by minute, Tom had drifted toward death. The ordeal put her in such pain that she forgot about Shannon’s missing letters for a while.
After lunch, Bob McLaren lit into Dr. Martin’s conclusion that Tom had never recovered enough strength for the transplant. Kathryn knew Wycliffe intended to present their own medical expert who would testify that Tom died because Dr. Martin had been too conservative in his judgment about Tom’s ability to endure the surgery. McLaren was paving the way for his hired hack by beating down Dr. Martin.
But, like Bruce Myers, Karl Martin refused to be intimidated by McLaren’s bullying. He listened politely to each question and gave a calm, measured response that told the jury just how sure he was that he was right: Tom would never have survived transplant surgery.
After Dr. Martin was finally excused at two o’clock, Mark called Rick to the stand. At first his testimony about how Myrabin proceeded through the FDA approval process was a welcome relief from the pain and suffering medical testimony. But as they were nearing four o’clock and adjournment for the day, Mark began to question Rick about a theory he had developed after he and Stewart had examined the Wycliffe documents.
“Now, Dr. Peyton, who conducted the studies of Myrabin during the FDA clinical trials?”
“Wycliffe.”
“So no independent researchers conducted studies for the FDA?”
“No, they were all done by Wycliffe.”
“Were independent studies of the drug ever done?”
“Yes, after FDA approval.”
“And how do you know these post-approval studies were conducted?”
“Because I found references to them in Wycliffe’s documents.”
“What kind of references?”
“Objection!” McLaren boomed.
“And what’s the basis for your objection?” Judge Weiner asked.
McLaren looked flustered. “Hearsay, Your Honor.”
“They aren’t hearsay if they are in Wycliffe’s own documents,” the judge said. They are declarations against interest. You may proceed with direct examination, Mr. Kelly.”
“Thank you, Your Honor. Now, Dr. Peyton, what did these references that you found say?”
“They were internal Wycliffe memoranda summarizing post-approval studies that independent researchers were doing on the safety of the drug.”
“And what were the results of these studies?”
“They found deaths associated with Myrabin.”
“And how many deaths?”
“It’s hard to say exactly how many. The summaries said ‘significant numbers of adverse effects including deaths.’”
“But you are certain these research studies reported deaths associated with taking the drug?”
“Very certain.”
“And what was the cause of those deaths?”
“Liver failure.”
“And that was the cause of Tom Andrews’ death?”
“Objection!” McLaren was on his feet.
Judge Weiner looked at him expectantly for the basis of his objection.
“Dr. Peyton never examined Tom Andrews. He cannot say what caused his death.”
“I believe he testified that he examined the autopsy reports, Mr. McLaren. Based on those, he can give his expert opinion. Next question.”
“Dr. Peyton, were you able to ascertain Wycliffe’s attitude toward the independent researchers who found adverse effects from Myrabin?”
“Yes.”
“Could you explain that to the jury?”
“Wycliffe’s internal memoranda documented payouts to them. In return for the money, they halted their studies and did not publish the results.”
“Would it be fair to say Wycliffe was buying off its critics?”
“Very fair.”
“Objection!” McLaren thundered.
“Overruled.” Judge Weiner barely batted an eyelash.
“I have no further questions, You Honor,” Mark said and returned to his seat next to Kathryn at the plaintiff’s table.
Judge Weiner turned to Bob McLaren. “You may cross-examine Dr. Peyton.”
“Thank you, Your Honor.”
Kathryn watched McLaren settle himself at the podium.
“Now, Dr. Peyton, have you not testified that Wycliffe suppressed research studies that attributed deaths to Myrabin?”
“Yes.”
“How many studies were suppressed?”
“I don’t have the report in front of me. A fair number.”
“More than two?”
“Definitely.”
“More than ten?”
“I’m not sure.”
“So between two and ten?”
“I don’t have the exact number.”
“And how
many deaths were reported in these studies?”
“Again, I’m not sure.”
“A hundred?”
“Probably not that many.”
“Fifty?”
“Again, I’m not sure.”
Kathryn felt her stomach tighten. Rick was not coming across well. The jurors looked skeptical and hostile.
“Now you’ve given an opinion that Myrabin caused Tom Andrews’ death, is that correct?”
“Yes.”
“And you are a medical doctor, are you not?”
“I am.”
“Can a medical doctor determine the cause of death of a person whom he never examined?”
“Well, I–”
“You never examined Tom Andrews, did you?”
“No, but–”
“Just answer the question,” Judge Weiner cautioned.
“So you really have no idea what caused Tom Andrews’ death?”
“It is my opinion that Myrabin destroyed his liver.”
“Tell me, Dr. Peyton, does the FDA agree with that conclusion?”
“The FDA has never given an opinion on the cause of Tom Andrews’ death.”
“But the FDA has data, does it not, on the deaths from Myrabin?”
“Yes.” Kathryn could see Rick nearly choke on that answer. The jurors’ faces said they saw it, too.
“And how many deaths have there been, according to the FDA, since Myrabin was approved?”
“None.”
“I’m sorry, I didn’t quite understand your answer. How many post-approval deaths has the FDA documented, Dr. Peyton?”
“None.”
“Thank you. No further questions.”
“Any redirect, Mr. Kelly?”
“No, Your Honor.”
“Then you may step down, Dr. Peyton.”
* * *
Wednesday, March 18, 2015, Offices of Goldstein, Miller, Emerald Shapery Center, 5 p.m.
Hugh was the first to bring up the problem when they settled around the Goldstein, Miller conference table that night. He was going heavy on the scotch; and even Mark, who never drank at their post-mortem meetings because he always had to go home and prepare for the next day of trial, accepted a red wine from Patty, who hadn’t heard Rick’s testimony.
The Death of Distant Stars, A Legal Thriller Page 24
