by Ben Bova
“Dr. Marshak!” Graves broke in. “You are supposed to be cross-examining the witness, not making your final summation.”
Arthur felt startled. Then almost sheepish. He forced himself to smile at the chief judge and made a little bow. Then he turned back to Jesse.
And saw his brother. The little boy playing stickball in the schoolyard. The bewildered child terrified by the sudden loss of his father and the crippling of his mother. The handsome young man smiling his way through college and medical school. And now this intense, frightened, hurting brother who faced a lifetime of pain and sorrow.
With a shake of his head Arthur muttered, “I have no further questions for this witness.” He went to his bench and sat down.
The hearing chamber was absolutely silent.
Jesse felt stunned. And relieved. It’s over. He’s not going to rake me over the coals, after all. Maybe he’s afraid of bad-mouthing his own brother in front of the jury. Or maybe . . . He stared at Arthur. His brother’s face was as blank as a marble statue.
Jesse started to get up from the witness chair. But Rosen rose to his feet.
“I have one more question for Dr. Jesse Marshak.”
Arthur’s brows knitted into a frown as he sat down. What the hell does Rosen want? He had his chance with Jesse three days ago. Jesse’s his witness, after all.
Jesse sat back down, thinking, Won’t it ever end? When can I get out of this and go back home to Julia?
Rosen did not move from his place at the judges’ desks. He glanced over at Senator Kindelberger, then turned his attention to Jesse.
“Dr. Marshak, your objections to human trials for the regeneration work go beyond the technical details, do they not?”
“Yes, they do,” said Jesse.
Arthur fumed. Technical details. He’s trying to reduce the most significant scientific work in the past half century to “technical details.”
“Can you tell the court what your other objections are?”
Jesse cleared his throat as he glanced back at Arthur. Christ, Arby let me off the hook but Rosen’s putting me back on it again.
“Dr. Marshak?” Rosen prompted.
“Well,” Jesse said slowly, “they’re financial, chiefly. And moral. I guess, of the two, the moral reasons are most important.”
Arthur shouted, “Objection! Those are not matters for this court to consider. They’re not scientific issues.”
Graves sighed wearily. “We have been over this territory earlier,” he said.
Rosen said, “As the court ruled on the first day of this hearing, it is impossible to consider the scientific issues by themselves. Science does not happen in a vacuum. Financial and moral and many other factors influence the scientific issue.”
“They don’t change the scientific facts,” Arthur snapped, his temper rising again. Why is Graves doing this to me? he wondered. This science court was his idea in the first place, and now he’s wimping out on it. He’s betrayed me. He’s betrayed himself. He’s just not strong enough to stick to his guns.
“I’ve already ruled on this issue,” Graves said testily, peering over his bifocals at Arthur. “Your objection is overruled.” Then he turned to Rosen. “Proceed.”
Rosen asked Jesse, “Could you explain what you mean by financial and moral factors?”
I shouldn’t do this to Arthur, Jesse thought. He keeps trying to isolate the science so he can ignore everything else. Like this is some kind of laboratory experiment where he can control the conditions. But what else can I do?
“Dr. Marshak?”
Jesse took a breath. “Even if the regeneration treatment can be made to work, even if it can someday regrow organs or limbs for human patients without causing cancer, the cost of the treatment is going to be enormous: I’d say on the order of a million dollars.”
“A million dollars per treatment?”
“Yes,” said Jesse.
Arthur sat in his place, seething. This kind of crap doesn’t belong in this trial. Nobody’s even started a cost analysis; Jesse’s pulling numbers out of the air. And we shouldn’t be talking about economics here in the first place!
Across the room, the reporters were devouring Jesse’s testimony with glittering eyes.
“At a million dollars per treatment,” Rosen was saying solemnly, “only the very rich could afford regeneration.”
“Right,” said Jesse. “But it’s the very poor who’d need it most. Wealthy people are already healthier than the poor. They live longer; they have better nutrition and better health care. They can afford it. The poor can’t.”
“But couldn’t the lower income groups apply to Medicaid or other government programs to pay for the regeneration treatments they need?”
Jesse shook his head. “At a million bucks a pop, the whole federal treasury would go bankrupt within a few years. It’d cost billions per month. Trillions!”
“Which means that the government could not afford to help the poor,” said Rosen.
“Which brings up the moral issue,” Jesse said. “Is it right for this treatment to be available only to the rich? That’s what I object to most of all. There are hundreds of millions of poor, starving people all across the world—millions in the United States alone—and we’re going to spend a ton of money to produce a treatment that’ll allow the rich to live longer, a treatment that the poor can’t afford.”
Arthur saw that all the TV cameras were focused squarely on Jesse. He looked handsome and terribly, terribly righteous.
“Thank you, Dr. Marshak,” said Rosen.
The examiner started back to his chair. Jesse got to his feet. Arthur struggled inwardly to keep himself from roaring with justifiable rage.
It’s not Jesse’s fault, Arthur tried to convince himself. He was willing to leave when I stopped questioning him. Rosen’s done this. It’s Rosen’s fault, not Jesse’s.
But Arthur knew that Jesse had agreed to testify at this trial specifically to bring out his objections. Financial and moral. I tried to make it easy for him and he throws that crap in my face.
Exerting every iota of self-control he possessed to keep his voice level, Arthur called out, “Just a minute. I have another question or two for this witness.”
Jesse looked startled, almost afraid. He turned to Graves, who said softly, “Please be seated, Dr. Marshak.”
“Which one?” Jesse asked.
“You, sir,” said Graves. “Your brother has the right to cross-examine you further.”
Jesse could feel his pulse thumping as he sat down in the witness chair again. Arthur looked grim, angry.
He asked, “Where were you born?”
Jesse gripped the arms of his chair, as if to hold himself steady.
“Where were you born?” Arthur repeated gently.
“Brooklyn.”
A titter of laughter rippled through the audience. Why do they always laugh at the mention of Brooklyn? Arthur wondered.
“Did you grow up in Brooklyn?” he asked Jesse.
“Yes.” Sullenly.
“Did you go to school in Brooklyn?”
“Public school. Then I went to Columbia and med school.” Before Arthur could ask another question, Jesse added, “That’s in Manhattan.”
More laughter. Graves looked annoyed. Arthur scanned the jurors, then turned toward the head table. Kindelberger was smiling. Of course, Arthur thought, he’s probably a lawyer; he can see where I’m heading.
“What did your parents do for a living?”
Jesse answered warily, “My father was a tailor. My mother helped him in his shop.”
“Where they wealthy?”
“No.”
“Middle class?”
“Lower middle class, I guess.”
Turning to face Jesse squarely, Arthur asked, “If you or someone in your family needed a million-dollar medical procedure, could you afford it?”
Jesse’s face went red. “Now, wait, that’s an unfair question.”
“Could you
afford it?” Arthur thundered.
“That’s not fair!”
“Then I’ll answer the question for you,” Arthur said, before Graves or Rosen or anyone could intervene. “Yes, you could. You have insurance and stock holdings and income from patents that we share. Don’t you?”
“What’s that got to do with anything?” Jesse snapped.
“You weren’t born rich, but you could afford the most expensive medical treatment in the world if you or someone in your family needed it. Is that true or not?”
Seething, Jesse answered, “It’s true. It’s also irrelevant.”
“Is it?” Arthur took a few steps away from the witness table, then asked, “When penicillin was first introduced to medical practice, it cost thousands of dollars per unit, didn’t it?”
“Only until the pharmaceutical companies started to mass-produce it. Then the price dropped steeply.”
“And now just about anyone can afford penicillin, can’t they?”
“Yes, but—”
“When broad-spectrum antibiotics first were developed, their costs were so high that the federal government investigated the pharmaceutical industry, isn’t that true?”
“The major companies were price-fixing,” Jesse said.
“And now everyone can afford broad-spectrum antibiotics, right?”
Jesse did not bother to reply.
“Could it be,” Arthur asked, “that a new procedure that costs a million dollars today will cost less in the future?”
“Regeneration doesn’t involve just a new drug,” Jesse replied. “It’s going to require major hospital time and a long period of follow-up.”
“Like a heart transplant?”
“Yes, very much like a heart transplant.”
“Can poor people afford heart transplants?” Arthur asked.
“No, they can’t.”
“Poor people don’t get heart transplants? Liver transplants? Kidney transplants?”
“Not all of those that need them.”
“Ah!” Arthur almost pounced on his brother. “Then—morally—we ought to stop all the transplants. If they’re too expensive for everyone, we shouldn’t allow anyone to have them. Is that your moral position?”
“You’re twisting my words,” Jesse said.
“The hell I am! That’s exactly your position, and it’s morally wrong!”
The hearing chamber was so quiet Arthur’s voice seemed to ring in the air, reverberate from the walls. Even the reporters were still, staring at the two brothers.
“If we have the ability to save a life—even if it’s just one life—and we refuse to save it, that is as wrong morally as murder.”
“You kill unborn babies!” yelled a woman in the audience.
Graves banged his gavel. But Arthur smiled at the woman. “We don’t use fetal tissue. We don’t need to.”
The woman glared at Arthur, but said nothing more.
Arthur turned to the judges. “No further questions.”
Jesse slumped back in his chair. Rosen stared at him for a moment, then looked away.
“You’re excused,” said Graves.
Gratefully, Jesse got up from the witness chair and hurried down the aisle toward the double doors to the corridor. They think I’m running away from Arthur, he told himself. But I’m not. I’m running back to Julia. Then his heart constricted. Julia. And the baby.
Graves squinted at his wristwatch. “Dr. Rosen, Dr. Marshak, do you think you can give your final summations this afternoon? I wouldn’t like to continue this hearing into next week, if we can avoid it.”
Rosen said solemnly, “I’ll need about half an hour.”
Arthur said, “No more than fifteen or twenty minutes, I should think.”
“Then we could be finished by roughly five o’clock,” said Graves. “Very well. We’ll take a half-hour recess and come back for the summations.”
PATRICIA HAYWARD
There was something strange about Arthur’s cross-examination of his brother. I mean, it was terrific, really. I thought Arthur dissected Jesse’s objections like a surgeon. But it seemed to me that he was maybe too logical, too coldly analytical. Oh, there was passion there, anybody could see that. But Arthur kept it under control, you could see that, also. He reminded me of a hunting dog that’s being kept on a leash, quivering to be turned loose and go chasing down its quarry. But the only leash on Arthur that afternoon was his own self-control. He could have demolished Jesse if he’d wanted to. Only he didn’t want to.
The reporters sitting around me were kind of disappointed.
“I thought he was going to go for the jugular,” one of them said to the reporter sitting next to him.
“Hey,” she answered, “they’re scientists, not lawyers. Be happy you got as much fireworks as you did.”
“Not much.” He got up and joined the crowd filing out into the corridor.
Assholes, I thought. Here Arthur took apart any and every objection against moving ahead with the regeneration program and they’re grumbling because he didn’t stage the last act of Il Trovatore.
I had planned to sit where I was, at the reporters’ table, and not fight the crowd out in the corridor. I didn’t have any deadline to meet, no story to file.
I looked over at Arthur. He was just standing there, in the front of the room, a kind of sad, dejected look on his face. I got up and went to him.
“I’ve lost him, Pat,” Arthur said to me. “He’ll never talk to me again after what I did to him this afternoon.”
I had never seen Arthur show pain before.
“I thought you went easy on him,” I said, trying to sound cheerful. “You could have sliced him up and served him as hors d’oeuvres.”
He just sort of hung his head. “You don’t know the half of it.”
“The reporters thought you could have slaughtered him,” I blathered on.
He turned and gave me the saddest look I had ever seen on his face. “He’s my brother, Pat. I should never have allowed it to go this far.”
“It’s not your fault.” I didn’t even know what it really was.
“Yes, it is. All of it is my fault, just about. I’ve driven my brother away from me.
THE TRIAL:
DAY FIVE, AFTERNOON
One of the conditions that Arthur had insisted on, when he and Graves first started to put together the details of the trial, was that Arthur would give his final summation as the very last statement the jury would hear. Which meant that Rosen, the supposedly impartial examiner, gave his summation first.
He stood tall and grave before the jury in his usual dark blue suit and red tie. He looked utterly humorless, totally dedicated to getting his points across to the jurors.
“We have heard a week’s worth of testimony,” he began, “about a truly amazing breakthrough in the field of biomedicine. It is easy to become accustomed to new successes; what was miraculous yesterday becomes commonplace tomorrow.”
Turning to look at Arthur, in the front row, Rosen went on, “But I believe that we should all keep foremost in our minds that what we are dealing with here is a breakthrough in biomedicine that has incredible implications for the future. For your future, ladies and gentlemen of the jury. For my future. For the future of each and every person on the face of this planet.”
He hesitated, head drooping slightly. The chamber was completely still. The TV cameras were tightly focused on him.
“This is a court of science,” Rosen resumed. “You have been asked to judge the scientific validity of the work done so far on tissue regeneration. You have been asked to make a recommendation about proceeding to human trials for this work.”
Again he stopped, chin sinking almost to his chest, hands clasped almost prayerfully.
“You have heard me make the point that science cannot be judged in a vacuum. That other issues—social, economic, ethical—must be considered side by side with the scientific facts. I realize that this is a bending of the basic ground rules for thi
s hearing. But there is a reason for my insisting on broadening the scope of your deliberations.”
Rosen seemed to stand taller, as if he had just come though some inner struggle and irrevocably made up his mind.
“Whatever you decide will have the most profound effects on the entire balance of scientific research in this country, perhaps worldwide. If you decide that this regeneration work should proceed to human trials immediately, it will cause tremendous pressures to be put on government funding agencies.”
Arthur wanted to object, despite the agreement that the summations would be uninterrupted.
“Yes, I know,” said Rosen, glancing in Arthur’s direction, “that this work has been done exclusively on private funding. That point was established in the first day’s testimony.” He stepped closer to the jurors. “But consider this: your approval of this work will mean that the federal government will be pressured to open its treasury to fund such research. No member of Congress could possibly refuse a constituent who demands that the government speed up research in organ regeneration—not once this work is ‘officially’ sanctioned by the science court. The pressures would be irresistible.
“Therefore,” he went on, “you must decide whether or not this work is ready for a massive infusion of federal funding, and all the controls and regulations that inevitably come with federal funding. Are we ready for another version of the war against cancer? Or the biomedical equivalent of the war against poverty? Tens and hundreds of billions of dollars spent, to little avail. Thousands of careers interrupted or warped out of shape because funding for other research was usurped for the massive wars that Washington proclaimed. Is that what we want here?”
Arthur could see that he was scoring points. The jurors, all researchers themselves, had been scarred in the past by the twists and turns of federal funding priorities.
“And then consider the scientific evidence,” Rosen said, changing gears once he saw that his point had been made.
“The researchers at Grenford Laboratory have made remarkable progress in little more than two years. But are they ready for human tests? Their one experiment on a primate resulted in the ape’s death. Even their experiments on monkeys and rats have been plagued by tumor growth that’s been controlled only by applications of an enzyme treatment that has not yet received FDA approval.”
