by David Ellis
Divalpro’s patent is about to expire. Which means problems for Flanagan-Maxx. It means copycats. Worst of all, it means generic substitutes, drugs with the same active ingredient as Divalpro but cheaper, much cheaper, and therefore more attractive to the state Medicaid system than the expensive name-brand drug.
“Explain, if you would, Mr. Benjamin, the prior-approval list.”
This, of course, was the main problem here. The state’s department of public aid, always looking to cut costs, installs an immediate preference for cheaper generic alternatives by implementing a “prior approval” system. All generic alternatives receive prior approval from the state Medicaid system, so a doctor can prescribe them by signing a piece of paper. If the doctor wants to prescribe the more expensive, name-brand drug like Divalpro, he or she is required to go through considerable paperwork for approval. Which one is the doctor going to choose? The patients will ask for Divalpro, given its past monopoly and a considerable advertising campaign through direct mail and television, but the doctor will assure them that the generic alternative is essentially the identical drug. Flanagan-Maxx’s profits on this drug will take a nosedive.
This was where Walter Benjamin, director of governmental affairs, came in. It was time to hit up the legislatures in the seven states he covers, including this one, for legislation to get Divalpro placed on the prior-approval list of medications. If Flanagan-Maxx could pull that off, it would be on the same footing as the generics and would maintain a considerable portion of its client base.
“We weren’t asking for preference,” Benjamin emphasizes, ever the company man. “We just wanted to be on the same footing as the generics. We just wanted a level playing field.”
Sure, and never mind that the state will be spending millions on a drug that could be spent elsewhere in the Medicaid program, when the generic alternative is every bit as effective.
“And Mr. Benjamin, in your capacity as director of governmental affairs, did you personally, sir, go to our state capital and plead your case?”
“No.”
“Who did?”
“We retained the services of Dillon and Becker.”
“And who at that firm in particular?”
“Sam Dillon.”
“Sam Dillon? The deceased in this case?”
“Yes.”
“Why Sam Dillon?”
McCoy studies the witness’s face. Walter Benjamin has probably asked himself that very question countless times since February. Why Sam Dillon? Why did I have to choose Sam?
“We hired Sam because he knew his way around the capital, so to speak. He was a former state senator. He was a Republican. He was very good.”
“And why a Republican?”
“The state House is Republican. By a slim majority, but a majority nonetheless. And the governor is, too.”
McGaffrey pauses. McCoy holds her breath.
There is no mention of the state Senate.
McCoy smiles.
“Would it be fair to say that Sam Dillon was one of the most influential lobbyists in the game?”
The prosecutor, Roger Ogren, squirms in his seat.
“Absolutely,” Benjamin says.
“Did Sam Dillon lobby on behalf of Flanagan-Maxx in last year’s legislative session?”
“Yes. Last year’s veto session.”
“Can you explain that to the Court?”
The witness looks at the judge. “For two weeks in November, the legislature reconvenes to consider legislation that was vetoed by the governor. They decide whether to override the veto. But technically, they can consider other legislation as well. We had introduced a bill in the House during the regular legislative session last year, but it was carried over to the veto session. It was during veto session that they voted on it.”
“Are you familiar with House Bill 1551?”
“I am.”
“What is House Bill 1551?”
Anyone with a pulse in this town knows about House Bill 1551, if not by number. Anyone who has read the accounts since the grand jury was convened in February knows the dirty details, which Walter Benjamin will now reluctantly impart. House Bill 1551 was the bill in the state’s House of Representatives that put Divalpro on the prior-approval list. Sam Dillon, for all of his considerable talents as a lobbyist, couldn’t get the bill passed during the regular legislative session. By all accounts, he had the House and Governor Trotter but was short in the Senate, by three votes to be exact. The problem was Flanagan-Maxx itself, a large drug company that did not have many friends in the legislature, particularly not in the Democratic-controlled Senate. The lobbies for the elderly and the poor, having fought for years for more dollars for the Medicaid program, argued fiercely against a bill that would prevent the savings of millions once the generics came aboard.
Dillon couldn’t get it out of the Senate, long and short, and the Speaker of the House wasn’t going to call it for a vote, and have his members take the heat, just to see it die in the Senate. So Sam Dillon asked the Speaker of the House to hold the bill over until veto session, hoping that the summer recess might change some minds.
Miracle of miracles, it did. Three senators switched their votes, and in the space of twenty-four hours, both the House and Senate passed House Bill 1551 and sent it to the governor. Why, precisely, these three senators changed their votes over summer recess is the focus of the federal grand jury investigation.
“So it’s law right now,” McGaffrey concludes. “State law recognizes Divalpro as being on the prior-approval list, once its patent expires this summer.”
“Correct.” For having accomplished such a feat, Walter Benjamin looks remarkably unhappy about it.
And the judge is about to hear why.
Ron McGaffrey clears his throat, strangles the lectern on each side. “Now, Mr. Benjamin, in the course of your duties as director of intergovernmental affairs, has it come to your attention that Sam Dillon may have used illicit means to gain the support of certain members of the state legislature?”
Roger Ogren stands as the witness begins his answer.
“I am not aware that—”
“Object to the form—”
“—there has been any proof—”
“—of the question, Your Honor. Object to form.”
“Enough.” Judge Wallace Wilderburth holds out his hand. He is heavyset, a sour-faced judge with small eyes, a thick flat nose, and prominent jowls. McCoy can’t resist the comparison to a bulldog.
“Rephrase, Counsel,” the judge instructs.
“All right.” McGaffrey pauses. “Mr. Benjamin, were you subpoenaed before a grand jury in this state?”
“Yes, I was.”
“By the United States attorney’s office?”
“Yes.”
“And you were also questioned by the FBI?”
“I was.”
McCoy is on alert now. “Take five,” she mumbles.
“Is this an investigation called Operation Public Trust?”
“Yes.”
“And as far as you understand it, the federal government is looking into whether lawmakers were bribed to get the Divalpro prior-approval legislation passed in this state.”
“Take five,” McCoy mumbles again through her teeth.
“That is my understanding,” says Benjamin.
“You testified before the grand jury.”
“Yes, I did. And I have been advised by my counsel not to answer any questions in relation to that testimony.”
“Oh.” McGaffrey looks at the judge. “You’re invoking the Fifth Amendment.”
“I am.”
The judge reacts to that. So do the reporters in the audience, scribbling notes furiously and whispering to one another, probably trying to confirm the precise questions Benjamin is refusing to answer. There will be a trial transcript at the day’s end, but in today’s news-right-now setting, they want to go with this stuff this afternoon. This is the first public discussion of the scandal, and a top
executive for Flanagan-Maxx is asserting the Fifth Amendment.
“Well,” says McGaffrey, “I wouldn’t want you to incriminate yourself.”
“Objection.”
“Sustained.”
“You paid a hundred thousand dollars to Sam Dillon, sir?”
“Yes.”
“Do you know how that money was used?”
“I refuse to answer.”
“Do you know whether any of that money was used to bribe lawmakers to vote for House Bill 1551?”
“I invoke my rights under the Fifth Amendment.”
“Did you talk to Sam Dillon about that? Did you ask him if he ever bribed lawmakers?”
“I won’t answer that, sir.”
“Did Sam Dillon tell you he bribed lawmakers?”
“Objection,” says Roger Ogren. “Calls for hearsay.”
“Sustained.”
“Did Sam Dillon talk to you in any way, shape, or form about the topic of bribing state officials to get House Bill 1551 passed?”
“I won’t answer that.”
“Counsel.” The judge stares over his reading glasses, frowning at McGaffrey. “He’s asserted his rights with regard to this line of questioning. Move on.”
McCoy releases her breath. Good.
“Thank you, Your Honor.”
McCoy chuckles. She has seen lawyers do this before, when she’s testified at a trial or suppression hearing—thank the judge after being admonished, as if to pretend that they had scored something. Counsel, you’re out of order, that question is entirely inappropriate. Thank you, Judge! What, the jurors are a bunch of idiots? And here, where there’s no jury, only a judge as the finder of fact, it’s even more moronic.
Ron McGaffrey leafs through his notepad, brings a fist to his mouth and clears his throat, before continuing.
“Did you call Sam Dillon on Tuesday, February third, Mr. Benjamin?”
“I refuse to answer.”
“Did he call you, on that day?”
“I refuse to answer.”
“Did that conversation concern the fact that three state senators were bribed to pass the Divalpro legislation?”
“Objection,” says Roger Ogren, just as Walter Benjamin repeats his line: “I refuse to answer.”
“The objection is sustained,” says the judge. “Are we almost done here, Counsel?”
McGaffrey takes a moment, presumably to review his notes, but he undoubtedly wants these final questions to resonate with the court.
“That’s all I have, Your Honor.”
“No questions,” says Roger Ogren.
“We’ll recess for lunch,” the judge says. “I have some motions at one. Let’s reconvene at two. Two o’clock.”
“All rise.”
McCoy breathes out, stretches her arms. Walter Benjamin’s testimony was fine, almost comical, really, especially the discussion of the steps that led to the passage of the Divalpro legislation. Dancing around the Senate like it hardly existed, mentioning the single most important fact—the sudden switch of three votes in the Senate—only as an afterthought. Nary a mention of the fact that Mateo Pagone was the one lobbying the Senate on the bill, the one who spent time with each of the three senators over the summer recess during which they discovered their changes of heart and switched their votes to aye.
She wonders how Ronald McGaffrey must feel about all of this, what steps Allison had to take to keep him reined in, how in the hell Allison Pagone managed to prevent her lawyer from even mentioning the name of the person with the single greatest incentive to make sure Sam Dillon never testified before that federal grand jury probing bribery in the state legislature.
She sees Allison now, touching her lawyer’s arm, probably complimenting him. McGaffrey seems resistant to the gesture, which confirms for McCoy the tension that must exist between the two.
She allows herself a brief smile, hoping the physical effort will unwind the anxiety percolating in her stomach. Today went as expected, Benjamin’s testimony, but things are far from over. She hasn’t decided if she likes Allison, but she knows one thing.
She needs Allison Pagone alive.
That was good,” Allison says, under her breath, to Ron McGaffrey when they return from lunch.
“As good as it could be.” McGaffrey pops a lemon drop into his mouth.
As good as you would let it be, he means. He has felt hog-tied by Allison, she knows, since the day she hired him six weeks ago. Constrained by the lack of time to prepare. Constrained by what he perceived as Allison’s unwillingness to fully assist in the defense, if not her outright lies to him. She would feel sorry for him, under other circumstances, but Ronald McGaffrey has a hundred-thousand-dollar retainer resting in his law firm’s client fund, and he’s first-chairing one of the biggest criminal trials to come along in years. The old saying is, they don’t remember whether you won, they just remember you were the lawyer, and McGaffrey’s representation of Allison has elevated him a notch in the legal community.
Not that he would ever admit that. He must have felt unbelievably stroked when she dumped her old lawyer, Paul Riley, and came to him. Paul Riley, by all accounts, was the go-to guy these days, at least in the opinions of those who didn’t have a personal stake in such things. Yes, Paul was a former prosecutor, and some said that former prosecutors are too chummy with their old colleagues, fall in love with the plea bargain, but Paul showed no aversion to a fight. No, the truth that nobody knows is that Paul dumped Allison, not the other way around. He refused to participate in her defense, said that he couldn’t be a part of—what had he called it?
A fraud on the court.
The judge reenters the courtroom and everyone rises. Ron McGaffrey calls his next witness. “Call Richard Cook.”
Richard Cook—Richie, apparently, everyone calls him—is a junior at Mansbury College in town here, who worked as an intern at Sam’s lobbying firm, Dillon & Becker. He’s twenty, supposedly, but he looks younger, tight skin, flyaway hair, long sideburns, and skinny neck. He doesn’t seem nervous. This is probably exciting for him.
“I ran errands for Mr. Dillon and Mr. Becker. Delivered things. I helped them out with computers, too, when they needed something quick.”
“How long did you work there?”
“I worked there about a year. Pretty much three days a week, afternoons.”
“You knew Sam Dillon?”
“Yeah. Definitely.”
“Let me—let me take you to February third of this year. Do you recall that date?”
This is the same date that McGaffrey raised with the last witness, Walter Benjamin. Benjamin looked like he was going to vomit at the time, as he refused to answer whether he and Sam had had a phone conversation about the bribery of three state senators. Allison wonders how that conversation went. She wonders how much Walter Benjamin knows. She wonders if he blames himself for ever hiring Sam, who was an old friend of his.
“Yeah.” The young man nods compliantly. “I remember that date.”
He remembers that date because he was working at Sam’s office that afternoon, organizing files in drawers right outside Sam’s office. Allison knows this because, after Sam’s murder, this kid and his father went to the police and reported the very thing about which Richie Cook will now testify, and the prosecutor, Roger Ogren, was duty-bound to disclose this information to the defense.
“All right, son,” McGaffrey says, standing at the lectern. “While you were organizing these files, where was Mr. Dillon?”
“In his office. Real close by me. On the phone.”
“Do you happen to know who he was talking to?”
Richard Cook shakes his head.
“You have to answer out loud, son.”
“No, I didn’t know. I was just—I wasn’t meaning to listen in or anything. But I heard him. I heard him talking.”
“What did you hear him say, son? What did Mr. Dillon say?”
“He says, well—he, like”—the young man works his hands�
��“he started kind of shouting, like he was reacting to someone. He was like, ‘No! Listen! Don’t—’ Then he got quiet all of a sudden, then he was talking quieter. Like he knew he was shouting and he wanted to be quieter.”
“Sure. And Richard, what did Mr. Dillon then say? When he quieted down?”
“He was all, like—he said, ‘No one can tie this to Flanagan-Maxx. No one could prove that. Just take the Fifth, if you’re so worried.’ That was pretty much it.”
McGaffrey nods and looks at the judge. His Honor is taking notes here, and McGaffrey doesn’t want to get ahead of him.
“Now, Richard,” he says, “when Sam Dillon said, ‘No one can tie this to Flanagan-Maxx,’ did he explain what he was talking about?”
An old lawyer’s tactic, repeat helpful testimony in the question.
“No. He didn’t.”
“When he said, ‘No one could prove that,’ did he explain that?”
“No.”
“When he said, ‘Just take the Fifth,’ did he explain that?”
“Nope. I told you all I heard.”
“But you heard him say ‘Flanagan-Maxx,’ Richard?”
“Yeah.”
“All right. So what happened next?”
“Well, he—I think he got paranoid or something that someone was listening—”
“Objection.” Roger Ogren is on his feet. “Foundation. Move to strike.”
The judge turns to Richard Cook. “Young man, you’ll need to limit what you tell us to what you heard or what you observed. Okay?”
“Okay.” The witness shrinks a bit on the stand.
“The answer will be stricken. Mr. McGaffrey?”
“Richard,” says McGaffrey, “tell us what you observed, or heard, after you heard Sam Dillon finish by saying, ‘Just take the Fifth, if you’re so worried.’ ”
“Well, it was like all quiet for a minute. Then Mr. Dillon came out his door.”
“What did he do?”
“He stared at me for a minute. Then he asked me what I was doing.”
“What did you say?”
“I said I was filing.”
“And then?”
“Then he closed his door pretty hard. He seemed mad that I was out there.”
“And what did you do, after hearing all this, Richard? Did you talk to anyone?”
