That morning, the government had filed a motion with the judge requesting permission to admit evidence of Martoma’s expulsion from Harvard Law School during the trial. Not just the expulsion itself, but the entire sordid tale of how Martoma doctored his transcripts, tried to cover it up, and then created a fake company to try to get himself readmitted. On the surface, the Harvard story had no connection to the question at the heart of the case—whether Martoma had paid a doctor to get nonpublic drug trial results and then traded stock on the basis of the information. There were some weaknesses in the prosecution’s case, though, that the Harvard story could potentially compensate for, a piece of ammunition they wanted to hold in reserve. The FBI still had not been able to recover the missing email with the PowerPoint presentation containing the drug trial results that Gilman said he had sent to Martoma. It was an important piece of evidence that would have proven that Martoma had received the bapi results a week before they were publicly released. Devlin-Brown believed that Martoma might have been able to make that email disappear. His attempted email-doctoring at Harvard proved he had the technical expertise and the temperament to pull something like that off—or at least to try.
As soon as Strassberg and Braceras learned that Devlin-Brown was seeking permission to introduce the Harvard backstory, they filed their own motion arguing against it. They also filed a separate motion asking to keep the whole debate under seal and out of the public court docket. They knew that the revelation of the Harvard story would be devastating to Martoma’s case. District Judge Paul Gardephe dealt Martoma a major setback when he ruled that the Harvard documents would be made public. Not only would Martoma be publicly humiliated, but it constrained his lawyers in their defense. Even Strassberg had to admit that pushing the Harvard evidence into the case was a brilliant tactical move on the part of the prosecutors. If he so much as suggested that Gilman was lying about sending the PowerPoint to Martoma, the jury would hear everything about Harvard. It was like having handcuffs on.
“Your Honor,” Braceras said, “as we anticipated, there were a number of stories both on television and in the newspaper….” He pointed to a pile of other papers on his desk, including the New York Post, which had its own sensational headline. Braceras wanted Gardephe to ask the jurors if any of them had read the Harvard coverage.
Braceras was a seasoned partner of Strassberg’s from Goodwin Procter’s Boston office. Fit and well-groomed, he had a self-deprecating style that was disarming. As he made his argument, Martoma’s wife and parents sat in the first two rows of the courtroom, their heads hanging. Their darkest family secret, and their greatest shame, was now on display. For Martoma, this was almost more painful than being charged with insider trading.
Gardephe expressed sympathy but ultimately refused to interrogate the jurors about whether they’d read the Harvard stories. They were already under orders not to look at any of the press about the case. He had told them at the outset to avoid the Internet. He had been a federal judge since 2008, and he believed that the jury system was based on trust.
—
The opening argument was one of Devlin-Brown’s favorite parts of a trial. In a case like this, it was sometimes all that mattered. The U.S. Attorney’s Office had a formula for it, a system that was passed down through generations of prosecutors. It started with what they called “the grab”—a quick, two-minute summary of the case, meant to capture the jury’s attention. The grab could begin in one of two ways. The first was with a big thematic idea, as in, “This is a case about greed.” Devlin-Brown preferred what he called the “It was a dark and stormy night” beginning, which dropped the jurors right into a dramatic scene. Just like in a movie.
On this day, his version began with, “It was July of 2008.” He spoke in a gentle, even voice. “Mathew Martoma, the defendant, was one of about a thousand people packed into a crowded Chicago convention hall waiting for an expert on Alzheimer’s disease to take the stage.” Sidney Gilman, he explained, was at an international Alzheimer’s conference to unveil the results of a hotly anticipated drug trial. The results of the trial could herald a major medical breakthrough, and a tremendous profit, for the drug companies involved. Everyone at the conference was anxiously waiting to hear from the doctor. Except for Martoma. “You see, Mathew Martoma, he already knew what Dr. Gilman was going to say,” Devlin-Brown said. “He had corrupted Dr. Gilman, through real money and phony friendship, and Dr. Gilman had already shared the presentation with him.” After Gilman finished presenting the results, shares of Elan dropped 40 percent. “A lot of people lost money. But not Mathew Martoma. The hedge fund where Mathew Martoma worked made a lot of money.”
Devlin-Brown was a natural performer, the son of a former Broadway actress. He went to Columbia University and, like many of his colleagues, Harvard Law School, where he took every opportunity to speak in front of others, from debate to moot court to singing in the law school’s a cappella group. The joke in Devlin-Brown’s family was that he ran away from home and became a lawyer instead of joining the circus.
“This case will contain some science, but it is not a science test,” he told the jury. “There is also a sophisticated hedge fund, but this case is not about finance. This case is about cheating.”
As he sketched out the government’s case, Rosemary leaned forward in her seat, sliding her glasses on and off her face, assessing the prosecutor as an adversary. Her husband sat stiffly in his chair at the defense table five feet away with a blank look on his face. It was as if the whole spectacle was so painful for him that his soul had departed his body, leaving behind an empty shell in a pressed suit.
By the time Strassberg rose for his opening, it was clear that it would be difficult for him to change the picture Devlin-Brown had painted. They faced a significant challenge with Gilman as the main witness. How could you discredit an eighty-one-year-old doctor, the former head of a university medical department, without something irrefutable? He had to be careful about how he presented Martoma’s side of the story.
“A little more than ten years ago, there was a big hit on Broadway—The Exonerated—about people who’d been convicted of horrible crimes,” Strassberg said, starting to pace. His hair was combed back with a glint of pomade, and he wore a tailored gray suit with a pink tie. His shoes were gleaming. “In each of those cases, the prosecutor was wrong,” he continued. “They had put innocent men and women on death row, until hard evidence exonerated them.” As he got warmed up he started to wave his hands in the air. “I stand before you, not in some play, but in real life. The prosecution has rushed to judgment and in that rush to judgment, they have charged an innocent man.”
Devlin-Brown listened to him with slight bemusement. Comparing Martoma to a wrongfully convicted death row inmate? It seemed a little over-the-top. But, given their resources, it was likely Martoma’s lawyers had tested the idea with a high-priced jury consultant and concluded it might work.
The jury would hear no wiretaps, only the deeply conflicted account of an aging doctor who was desperate to get immunity for himself, Strassberg continued. “Dr. Gilman felt pressure to tell a story the prosecutors wanted to hear,” he said.
Then he moved on to the unfairly maligned integrity of his own client. “In many ways, Mathew was the quintessential American success story,” Strassberg said. Born to Indian immigrants in Florida, he grew up in the shadow of the Kennedy Space Center, where he was part of a minority Christian community. He graduated from public high school and attended Duke University. “As he was getting his MBA he met Rose,” Strassberg said, gazing beatifically at Rosemary. She beamed at the jurors, right on cue. “They married in 2003 and in short order produced three kids, Joshua, Ava and David, all under age nine.
“The stakes here could not be higher,” he said, walking the length of the courtroom and sweeping his arms in the air. “The case will not add up! The pieces will not fit! What’s important is that you, the jury, don’t rush to judgment. You will find that Mathew did not
commit these charges. He has been falsely accused!”
Both openings were strong. But already, it seemed that Strassberg was overplaying his hand. He was in salesman mode, peddling a story to the jury that required assumptions that defied common sense. Defending Martoma was going to be the fight of Strassberg’s career.
—
Five days after opening arguments, the jurors had their first glimpse of Dr. Sidney Gilman. As he was led into the courtroom, around 11:45 A.M., a hush fell over the room. Martoma’s family had followed the conventional wisdom and attempted to recruit friends to attend the trial. Martoma’s parents, Rosemary’s parents, and a handful of cousins and aunts appeared, bundled in sweaters and looking like they might freeze. Rosemary appeared in court each day in a different eye-catching outfit. But the group of supporters was much sparser than what Steinberg had enjoyed. Where the Steinberg crowd had looked robust and well-off, Martoma’s tiny army seemed almost tragic.
Gilman’s eyes were dark and bright, with deep, pronounced bags under them, and his hair was snow-white, each strand visible where it sprouted from his head. Rosemary looked at him coldly as he shuffled by in a charcoal suit, looking so frail that he might shatter at the touch.
Gilman was far from the perfect witness. For one thing, his memory was wobbly. Devlin-Brown had heard that Martoma’s defense lawyers had thoroughly investigated Gilman in an attempt to find information they could use to discredit him. They’d even sent a private investigator to Ann Arbor to interview Gilman’s tailor—the tailor refused to talk to them, citing “tailor privilege.” Someone had also tracked down Gilman’s estranged son in Connecticut. Devlin-Brown’s hope was that by putting Gilman on the stand relatively late in the trial, the basic narrative of what happened would already be clear in the jurors’ minds. All Gilman would be doing was confirming what they already knew.
He wore hearing aids in both ears and his eyesight was faltering, which gave him an air of confusion. When Devlin-Brown asked him to identify Martoma in the courtroom, there was a long pause while Gilman fumbled to get his glasses on and peered out into the sea of attorneys.
“He’s wearing a dark suit and a grayish tie,” Gilman said, squinting in Martoma’s direction.
There was laughter in the room. The description could have referred to almost any man in the room.
But while Gilman looked fragile, and unsteady, his mind appeared sharp as a blade. He described his decision to “step down” from the University of Michigan in November 2012, right after Martoma was charged, rather than wait to be fired for betraying the ethical standards of his profession. “I had given a great deal to that university, and I am suddenly ending my career in disgrace,” he said. The university had scrubbed any mention of him from its website and buildings. Many of his former colleagues had renounced him. The only work he was doing now was seeing patients in a free medical clinic in Ann Arbor. He had been banned from the University of Michigan campus, his lifelong academic home. From his side of the room, Strassberg studied the doctor. This was going to be harder than he thought.
On January 21, 2014, New York City officials were in a state of alarm over an approaching winter storm. Seven to ten inches of snow was predicted, and the news prompted a kind of siege mentality, with schools and train service being closed early or canceled. Judge Gardephe announced that court would be closing early, at 2 P.M., so that people could get home safely. Devlin-Brown rushed to get through Martoma’s trip to Michigan to view the final drug trial results.
He projected a copy of one of Gilman’s Microsoft Outlook calendar entries onto the overhead. “Dr. Gilman, could you please read the entry at 12:30 to 1:30 on Saturday, July 19, 2008?” said Devlin-Brown.
Gilman read off of one of the sheets of paper in front of him. “ ‘Mat Martoma will visit me in my office,’ ” he said.
“How did the planned meeting with Mr. Martoma in your office come about?” Devlin-Brown asked.
Gilman said Martoma had told him he was going to visit some relatives near Ann Arbor and that his uncle had died a couple of months before. Could he drop by while he was in town? Devlin-Brown asked him to describe the meeting.
“I do not recall all the details,” Gilman said. But he remembered getting a phone call from Martoma on his way over from the airport. He also remembered opening the door for him when he arrived and offering him lunch. And he remembered showing Martoma the bapi PowerPoint slides on his computer.
“Did you have any understanding as to whether what you were doing was violating the law?” Devlin-Brown asked.
“My understanding was that I was disclosing inside information and that was against the law,” Gilman said. “I understood I was committing a crime.”
The question of why someone like Gilman, with so much to lose, would have entered into such an entanglement with Martoma was one of the major riddles of the case, and a challenge for the prosecution. They needed the jury to focus on Martoma’s behavior, not Gilman’s. Their strategy was to demonstrate that Gilman was himself a victim. As Devlin-Brown led the doctor through the deepening of his relationship with Martoma—the phone calls, the meetings, Martoma’s expressions of fascination and affection—a picture emerged of an intellectual seduction, in which a lonely older man fell under the sway of a charismatic young trader. Gilman was a workaholic who was estranged from his own son. He was lonely and isolated from the rest of the world. Martoma, then, became something of a surrogate child.
By the time they reached Gilman’s last day of testimony, Devlin-Brown was feeling confident that he had accomplished what he needed to. Gilman came off as a sympathetic character, someone who had lost everything he had and who didn’t have any reason to lie. The evidence the government had presented confirmed the outlines of the prosecutors’ story. It was devastating for Martoma.
During the doctor’s final minutes on the stand, Devlin-Brown asked, once again, why he had transgressed with Martoma as opposed to the many other investors he spoke with.
Gilman sighed. “He was personable,” he said. “And he, unfortunately, reminded me of my first son. In his inquisitiveness. His brightness. My first son was very bright also.” There was a long pause. “And he committed suicide.”
—
If Martoma’s lawyers came into the trial at a severe disadvantage, now they were doubly constrained. The prosecutors couldn’t have asked for things to go much better with their star witness. Gilman was a natural teacher, and he charmed an audience. Strassberg was in a hole that would be almost impossible to climb out of. Bullying a decorated, elderly physician who had lost a son to suicide during a cross-examination was not likely to endear him, or his client, to the jury.
Despite Gilman’s apparent frailty, he exuded a stubbornness that was evident in the unflinching way he stared back at Strassberg, as if daring him to take his best shot.
“Good afternoon, Dr. Gilman,” Strassberg said.
“Good afternoon, sir,” Gilman replied frostily.
“My name is Rich Strassberg, and I represent Mr. Martoma. We’ve never met before, is that right, Dr. Gilman?” There was a pause. Strassberg leaned forward a little. “Can you hear me?”
“It would help if you speak into the microphone so that I hear you better,” Gilman said loudly.
“Are you aware that we asked your lawyer to meet with you but we were refused? Are you aware of that?” Strassberg said.
“I couldn’t hear what your opening statement was to me, sir.”
Six seconds into his cross-examination, Strassberg was visibly exasperated. Gilman seemed unable to understand every other thing he was saying, interrupting the flow of his questions. Strassberg started again. He placed his mouth right up near the microphone, and his voice took on a high-pitched, condescending tone, as if he were speaking to a two-year-old. “Dr. Gilman, I’m going to be asking you some questions this afternoon, and I want you to let me know if there are any questions that you don’t understand,” he said, seething with irritation. “Okay?”
Strassberg’s plan was to show the jury that Gilman was an old, confused man who had been pressured into lying by the government. But he had underestimated the person he was dealing with. Gilman still had some fight in him. Far from being driven into submission by Strassberg’s tactics, he knocked the veteran trial lawyer off his balance. Every time Strassberg opened his mouth, Gilman bristled.
After Strassberg demanded for the umpteenth time to know whether Gilman had heard him, the doctor snapped, “You’re slurring your words.”
Strassberg tried to steady himself and stick to his theme: The doctor was old and forgetful. He ran through a list of a dozen chairmanships, consultations, calendar entries, email exchanges, asking Gilman along the way if he recalled this detail or that one, if he could remember what he said to whom at a particular time or what was discussed during a specific meeting, jumping back and forth in the timeline. Many of the things Strassberg flashed up onscreen Gilman claimed never to have seen before. “I do not recall, sir,” he said, over and over.
“Are you aware, Dr. Gilman, that you had over four hundred consultations with over three hundred clients, as reflected in this log?” Strassberg asked at one point.
“That is possible,” Gilman said.
Strassberg tried to suggest that Gilman had been driven purely by pecuniary interests—he made huge sums of money consulting for his Wall Street clients: $340,000 in 2006, $420,000 in 2007, and $425,000 in 2008, amounts that dwarfed his salary from the University of Michigan, as if Gilman were working more for Wall Street than for science. The defense lawyer charged that Gilman was lying about sharing information about bapi with Martoma. Through three straight days of questions from Strassberg, though, Gilman held firm on the major elements of his story.
Trial lawyers in the midst of a high-profile case must draw upon an almost inhuman reservoir of stamina. The fat black binders of exhibits and evidence piled in front of Strassberg seemed to be reproducing and spreading across the tables and onto the floor. Looking exhausted, Strassberg finally turned to the subject of B. J. Kang, the FBI agent who approached Gilman back in 2011 and tried to get him to flip. Strassberg asked Gilman about what he said when the FBI first approached him and whether he had told the truth.
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