A Patent Lie (22 page)

EIGHTEEN

On Monday, Judge Farnsworth proceeded through her 7:30 a.m. motion calendar, giving none of the lawyers waiting inside the gallery rail more than two minutes to argue their positions, and taking no more than a minute to give them her decision before dismissing them and moving on to the next pair of adversaries. The double doors opened and Thorpe came in, trailed by Fischler. The courtroom was darker than usual, and when Seeley looked up one of the lights in the coffered ceiling was out. For a moment, his eyes met the judge's. Even Farnsworth would be unable to dispose of his motion with her hangman's speed.

Farnsworth handed down the last pile of motion papers to the carrot-haired court reporter and was gathering her calendar to return to chambers when Seeley came through the gate. “In the
Vaxtek
case, Judge, we have a motion to file.”

Farnsworth remained standing. “You're not on the calendar, Mr. Seeley. Do we have papers from you?” She looked over Seeley's shoulder to where Thorpe was approaching. “Mr. Thorpe?”

“This is a surprise to me, too,Your Honor.” He stepped in close to Seeley so that their arms touched.

“It is a matter of some urgency,” Seeley said. “We didn't become aware of it until over the weekend.”

“Have you communicated with Mr. Thorpe?”

“We ask to speak with you ex parte.” In an ongoing lawsuit, a judge will meet with a lawyer outside the presence of his opponent only in the most extreme circumstances. “The motion involves a serious question of professional ethics.”

“That's an unusual request, Counselor. Mr. Thorpe, like you, is an officer of the court—and, I would add, a respected member of this bar.”

Seeley heard the reprimand—she had not forgotten that he was from out of state—but he ignored it. Thorpe drew closer to his side, crowding him.

Seeley said, “This is about more than two parties, Judge. It implicates the integrity of this court.” He glanced sideways at Thorpe. His adversary's body was tensed, but the dark pouchy eyes gave away no secrets.

“Mr. Thorpe, you've been uncharacteristically silent. Will your client consent to my meeting ex parte with Mr. Seeley?” She leaned over the bench. “Just so you know, I'm not putting any pressure on you or your client to do so.”

“I can't say whether my client objects or not,Your Honor, without knowing what's on counsel's mind.”

Seeley would have said the same. He turned to see whether Barnum had arrived, and made a quick decision, regretting the implicit deception in what he was about to say. “There is a question about the veracity of testimony that was given last week. I'm sure Mr. Thorpe will understand our disinclination to explain this with our adversary present.” Steinhardt's brush with perjury last week could get Seeley into Farnsworth's chambers. It could also deflect any suspicion Thorpe might have that Seeley had discovered the collusion.

“Mr. Thorpe?”

“My client has no objection to an ex parte conference on this issue.”

Of course Thorpe had no objection. He already knew about Steinhardt's fraud and, as part of the parties' collusion, had carefully skirted it in his cross-examination.

The court reporter, who was taking down the exchange, looked up to the bench. Farnsworth said, “My meeting with Mr. Seeley will be on the record—”

“That's fine,” Seeley said, “but we request that it be sealed.” Not to seal the record would defeat the purpose of the meeting; anyone could see the transcript.

“Sealed is no problem,” Thorpe said.

“The meeting will be on the record and sealed.” Farnsworth nodded at the reporter to join her in chambers. “It will also be brief. I want both sides ready to proceed with trial in fifteen minutes.”

Seeley waited for the judge to descend the few steps from the bench, then followed her and the court reporter through the paneled door, down the narrow corridor to chambers. He passed the fluorescent-lit jury room where some of the jurors were already gathered, their takeout coffee cups and breakfast pastries on the conference table.

Inside chambers, Farnsworth's arms folded across her chest signaled impatience, but Seeley had already revealed too much to get this far, and she wasn't going to dismiss him easily. He moved in so that, tall as she was, the judge had to look up at him. The reporter set the steno machine on the coffee table and, perching herself on the edge of the couch, waited for one of them to speak.

“Emil Thorpe was generous to you out there,” Farnsworth said. “He could have embarrassed you in front of the press. Instead, you're going to get a private lecture from me.”

She moved back a step. “The rules here are the same as in New York. If you think a witness perjured himself, you talk to your client about it, not the judge.”

“Vaxtek's general counsel doesn't think there's a problem.”

“But you do.” She arched an eyebrow. “Have you talked to your client's CEO? To its board of directors?”

Sure, Seeley thought. That was how Pearsall got himself killed. “I'm certain they would only rubber-stamp their general counsel.”

Over the judge's shoulder, at the edge of the bay, a pair of towering construction cranes moved jerkily toward each other, then backed away, two stick insects mating.

“Which witness are we talking about?”

In the courtroom, with the court reporter taking down every word, Seeley had been careful not to use the word “perjury,” and he would not do so now. But whether the question was about perjury or just the witness's veracity was a lawyer's distinction at best.

“I believe that Alan Steinhardt kept two sets of lab notebooks, and that the fake set was introduced as an exhibit.”

“What proof do you have?”

“There's a conflict between the dates in one of the notebooks and Steinhardt's travel schedule. The notebook puts him in Vaxtek's lab in South San Francisco discovering AV/AS on days that he was out of the country.”

“And you don't think the defense would have caught this during discovery?”

This was the tenuous bridge that Seeley hoped would carry him from the pretext of perjury to the fact of the parties' collusion, but Farnsworth could crush it in an instant.

He said, “St. Gall could have discovered it. They probably did discover it. But they would not be inclined to raise the point at trial.”

Farnsworth walked to a chair by the long window and gestured for Seeley to take the one across from it. She sat and crossed her legs. “What do you mean, St. Gall wouldn't raise it at trial?”

Judge Farnsworth knew what he meant. The court reporter's fingers waited, half an inch above the keyboard.

The words caught on Seeley's tongue, then freed themselves. “I believe this is a collusive lawsuit, Judge. I believe that Vaxtek and St. Gall have staged this case to get a ruling that the patent is valid.”

Farnsworth colored deeply, and Seeley saw at once that he had miscalculated.

“This is way out of bounds, Counselor. Do you want the reporter to read back the representation you made in the courtroom that this meeting was going to be about perjury?”

Seeley didn't know what the anger was about—his misrepresentation in court or the charge of collusion now—and he struggled to respond.

Farnsworth said, “Emil Thorpe needs to be here.”

The naïveté behind the statement stunned him. It was as if he had done no more than point out a small infraction of courtroom etiquette, a matter for the lawyers to adjust discreetly between themselves. Then Seeley realized that Farnsworth had no reason to make the connection that he had drawn at once: Pearsall was dead because he had discovered the collusion and confronted the parties on it. These are not only people who collude; these are people who kill.

“My courtroom, as you may have discovered, is not a comfortable place for lawyers who think the rules weren't made for them.”

“I'm talking about a fraud on your court.”

Farnsworth's eyes grew careful, and for the first time it appeared that she understood the magnitude of his charge. “Are you telling me that you want to withdraw as counsel?”

Seeley shook his head. That was probably what Pearsall had tried to do.

“For the record,” Farnsworth said to the reporter, “counsel shook his head no.” She turned back to him. “What would you have me do?”

“Declare a mistrial.”

“That's out of the question. What evidence do you have that the lawsuit is collusive?”

A sleepless night piecing together the puzzle and an hour cross-examining Palmieri over his part in it was all that Seeley had. The judge was right, and the red-and-tan law reports that filled her wall mocked him. We have cases, facts, and law, the volumes said. What do you have? How many times had Seeley ventured out like this, without a shred of evidence to support him, with nothing but the certainty that he was right and that he could impose that conviction on anyone he needed to.

He said, “If the parties aren't colluding, why didn't Thorpe ask Steinhardt about the discrepancy in his dates?”

“There could be any number of reasons. Maybe he doesn't know about the discrepancy, or maybe he does, but he has some other strategy. I am sure that if he were here, he would tell us.”

Again, Seeley ignored the reprimand. “There's a difference between knowing something and being able to prove it according to the rules of evidence.”

“I'm not asking for evidence,” Farnsworth said. “I just want you to give me a single fact that backs up your claim.”

“AIDS victims are going to die because two drug companies colluded to get a worthless patent declared valid.”

“Did you do anything to find out about this before you took the case?” She was on her feet. “I'm not going to declare a mistrial just because a lawyer conveniently had an attack of conscience.”

When Seeley rose to face her, the judge rested a hand on the court reporter's shoulder to signal her to stop.

“You know, Mr. Seeley, you're a real piece of work. You come into my chambers and demand—not request,
demand
—that I declare a mistrial for no better reason than you suspect that there's collusion here.”

“I can assure you—”

“No. Our meeting is over.”

Seeley had a desperate thought, dismissed it, and then the words came out anyway. “You'll have to declare a mistrial if in closing argument I tell the jury that the lawsuit is collusive.”

Farnsworth's face was suddenly inches from his. “If you mention one word of this to my jury, I will revoke your admission to my court and hold you in contempt before you can finish your first sentence.” To the court reporter, she said, “Back on the record. You can note that the ex parte meeting ended at”—she glanced at her watch—“eight fifty-seven a.m.”

Farnsworth started toward the door, but then stopped. “I don't want you talking to the jury through the media, either. When we get into court, I'm going to issue a gag order barring the parties and their lawyers from talking to the press. The order will bind both sides. But,” with her eyes she signaled the court reporter to go off the record, “you will understand that the order is aimed directly at you. If I see a word of this in the papers or on the news, I'll know whose name to put on the contempt citation.”

Seeley said, “I'm sure there won't be any need for that.”

“You know, Counselor, if your suspicions are anywhere close to the truth—and I'm not saying that I think they are—you're going to be walking a tightrope out there.”

One, she could have added, without a net.

Farnsworth glanced at her watch. “We've already kept the jury waiting half an hour. That comes off your time.”

Click, click, click.

NINETEEN

Palmieri and Barnum were waiting when Seeley returned to the courtroom. At the defense table, Thorpe broke off talking to Fischler and watched Seeley walk to counsel's table. Dusollier was busy riffling through a folder jammed with papers. The two patent lawyers from Chicago were gone; they had been ornamentation, Seeley decided, window-dressing for a high-powered defense that St. Gall never had any intention to launch.

Barnum's features were thick with worry. He nodded toward the paneled door from which Seeley had come. “What was that about? You and the judge in there alone?”

“Let's try to concentrate on the witnesses, Ed.” If Barnum knew that it was impossible for Vaxtek to lose the case, why was he so anxious over Seeley's every move? “We have four more trial days.”

“What did you talk to her about?”

Where was the judge? Seeley thought that she and the court reporter had been behind him when he left chambers.

“We talked about Steinhardt's notebooks.” It wasn't entirely a lie.

“Judges don't meet ex parte in the middle of a trial.”

Seeley started to answer but Palmieri interrupted, the first time Seeley saw him address Barnum directly. “Do you want the press and the stock analysts back there to know that your company's star scientist kept two sets of books? Do you want your adversary to know? Taking it to chambers was the smartest thing your lawyer could do for you.”

The crease at the corners of Barnum's mouth deepened. The case was escaping his grasp. “What did she say about the notebooks?”

“If I were you,” Seeley said just for malice, “I'd keep my bar card handy in case the ethics committee calls.”

The paneled door opened and the bailiff called for everyone to rise. Farnsworth climbed swiftly to the bench. She gazed out at the gallery, her brow furrowed as if she were looking for someone.

“I am addressing this to the members of the press who are with us here,” she said. “I am aware of your interest in this case, and I believe that it is a good thing. Intellectual property is becoming as important in our lives as taxes and crime, and the public should learn as much about these cases as about criminal cases. You are an important channel for doing that. However, going forward, you will have to do this without communications from the parties or their lawyers.”

There was a murmur from the press corner of the gallery.

The judge lowered her gaze to the well of the courtroom. “Unless counsel can give me a good reason not to, I am hereby entering an order barring the parties from having any contact with the media about this case.”

Barnum drew so close that Seeley could smell the breakfast bacon on his breath. “What the hell did you say to her in there?”

Seeley shook his head as if to dismiss a buzzing fly.

“Mr. Seeley? Mr. Thorpe?” Seeley rose. He wondered whether Thorpe had guessed the true reason for his ex parte visit. “No objection, Judge.”

Thorpe rose. “None, Your Honor.”

“This order binds not only counsel, but the parties.” She consulted a pad. “Mr. Barnum, Mr. Dusollier, this means you put a muzzle on your public relations people. Do you understand that?”

Seeley touched Barnum's elbow for him to rise. “Yes, Your Honor.” Dusollier, too, agreed, but Seeley heard more than the usual dose of condescension in his voice.

“And, so that there is no question about the reach of this order”—here the judge looked directly at Seeley—“the order encompasses not only direct communications to the press by counsel or the parties, but through friends, associates, or any other third parties.” She turned to the bailiff. “Let's not keep our jury waiting any longer.”

The kid, Gary Sansone, was the second through the door. He had untied his ponytail and the blond hair hung almost to his shoulders. The wondering look he shot at Seeley left no doubt that he had seen Seeley in the corridor on his way to chambers. An important turn had occurred in the trial, but he didn't know what it was. Seeley hoped that, in leaving the kid on the jury, he had done the right thing, even if for the wrong reason.

Farnsworth moved to the jury side of the bench and leaned over the rail, her custom when talking to the jurors. After apologizing for the delay, she said, “You will remember, when you were first impaneled, that I asked you not to read any newspaper articles, or to watch or listen to television or radio coverage of the trial.” She paused to let them nod. “I just want to remind you of that precaution now. It is crucial that you decide this case strictly on what you hear in this courtroom. Were you to do otherwise—were you to act, even in part, on something you saw on the TV news, for example—it would be necessary for me to declare a mistrial. I could sequester you, have you put up in a hotel away from your loved ones, but I'd rather not do that. Do you all understand what I am asking of you?”

This time the nods of assent were more vigorous, but Farnsworth hesitated, doubtful. Then she gave them a friendly smile and swiveled back to the center of the bench. “Counsel will remember from our final pretrial meeting that the judges of the district have their monthly conference today, so we will continue until one thirty and then break for the day. Let's get under way. Mr. Thorpe?”

Thorpe's order of proof was the mirror image of Seeley's. Thomas Koosmann, the Washington University, epidemiologist, was first. His role was to rebut Cordier's testimony about the long-felt need for an AIDS vaccine. Behind aviator-style glasses, Koosmann looked younger to Seeley than the fifty-two years indicated in his résumé, or perhaps it was the boyish way that he blinked before answering a question. That, and a thin, pointed face made him appear slightly furtive, even vulpine, as Thorpe took him first through his résumé and then into his testimony. Where Cordier described the desperate situation in sub-Saharan Africa to illustrate the demand for an AIDS vaccine, Koosmann focused on the United States and Western Europe, testifying that widespread access to effective therapies and the slowing number of deaths had alleviated any pressure there to develop a vaccine.

“So,” Thorpe said at the end of Koosmann's direct testimony, “would it be fair to conclude from your testimony that in the very markets where drug companies make the most profits—the United States and Europe—there is the least demand for a vaccine, and that the demand for a vaccine is the greatest in those regions, primarily Africa, where there is virtually no opportunity for these companies to profit at all?”

“Yes, that is correct.”

“So it is no surprise that the most aggressive research by for-profit companies is being directed to objects other than vaccines?”

“That is correct.”

“No more questions, Your Honor.” Thorpe shuffled away from the lectern, each step a sigh.

Watching the performance, Seeley saw how cleverly Thorpe had arranged his maze of smoke and mirrors. When it came time for the jurors to weigh the evidence, it was not what Koosmann said on the stand, but his coy hesitations and weaselly demeanor that they would compare to the heroic Cordier's forthright manner. Koosmann's effective dismissal of African AIDS victims would repel them. But if Thorpe were ever charged with collusion, no member of an ethics committee reviewing the transcript of Koosmann's testimony would think that Thorpe had done anything less than St. Gall's counsel should have done in refuting Cordier's testimony.

Thorpe's examination of Koosmann had purposely left open several holes through which Seeley could have skewered the witness, and Seeley's reflex as a trial lawyer was to do so. Instead, he took no more than a short jab at Koosmann here and there, and otherwise let his testimony stand. If Thorpe wanted the AV/AS patent upheld, Seeley now wanted it struck down. You are me, Emil, and I am you.

When Seeley returned to counsel's table, and the judge ordered a break, Barnum said, “Is there something wrong with you? That was no cross.”

Heads turned at the defense table. “Let's just take it one step at a time, Ed.” Seeley put a hand over Barnum's. “I need to talk to Chris.”

Palmieri followed Seeley out of the courtroom to the picture-lined alcove at the end of the corridor. Five days ago, Seeley stood here grasping an imaginary baseball bat, fighting the impulse to slam his brother from behind.

Seeley said, “I've decided to do Gupta's cross myself.”

“But we agreed that I—”

“I know we did, Chris, but I need to do Gupta.”

Palmieri backed away, averting his eyes. “You're going to dance around him, the way you did with Koosmann. You're not going to touch him.”

“I'll do whatever I think is right.”

“You don't even know for a fact that the parties are colluding.”

He started away and Seeley grabbed him by the wrist. “There are only a few things I'm certain of, Chris, but this is one of them.” Palmieri shook himself loose and Seeley followed him back to the courtroom.

Dr. Manesh Gupta, chairman of the Immunology Department at Duke University's School of Medicine, was a pouter pigeon. Short, plump, chest puffed out in a dark three-piece suit, his arrogance approached Steinhardt's. Like Koosmann, his testimony would look good on paper, but his attitude would destroy him with the jury.

“Yes,” Gupta said for the third time when Fischler asked whether, in light of the research done by others, the discovery of AV/AS was obvious. This time he added, “Any competent first-year graduate student could have done this work.”

When Fischler finished, Seeley took the notebook Palmieri handed him and brought it to the witness stand. “Dr. Gupta,” he said, handing him the notebook, “I'd like you to look at the expert declaration you provided in this case, which has been marked as defendant's exhibit E. Is this your declaration, Doctor?”

The immunologist answered that it was.

“Looking at page nine, Dr. Gupta, do you see references to three publications from scientific journals?”

“Yes. There are two by Reeves, Kumar, and Constantine, and one by Goldblum et al.”

“Did you rely on these references in concluding that AV/AS was an obvious discovery?”

“Yes, I did.”

“Were these articles difficult to find, Doctor?”

“No, not for any moderately competent researcher. Someone seriously working in the field wouldn't have to look for them at all. He would have a subscription to the journals.”

“And is it your opinion that any ordinarily skilled researcher who read these three articles would find it obvious to make AV/AS?”

The dark head bobbed. “That is correct.”

This was the moment for Seeley to drive home the dagger's blade, as patent litigators have done since experts first began to testify: If, speaking as an expert, this discovery was so obvious to you, why didn't you make it yourself? Instead, Seeley said, “In your opinion, Dr. Gupta, does Dr. Alan Steinhardt possess at least the knowledge and experience of a moderately competent researcher?”

Savagery sparkled in the witness's eyes. “Yes, at least.” The patronizing tone left no question about Gupta's estimate of the gap between Steinhardt's talents and his own.

“In terms of reputation, where would you place Dr. Steinhardt among the ranks of immunologists like yourself?”

“I'd say that he's generally reputed to be among the top twenty researchers.”

“How about the top ten?”

Gupta paused, as if to think. “Yes, perhaps the top ten.”

“Thank you, Dr. Gupta.”

“Redirect, Ms. Fischler?”

There was a hurried conference at the defense table before Fischler said, “No,Your Honor.”

“Then we will recess for the day.” To the jury, the judge said, “I look forward to seeing you bright and early tomorrow morning.”

Barnum's fists were on the tabletop, plump knuckles white. “Why didn't you ask him, if AV/AS was so obvious, why he didn't invent it himself?”

“It's a cheap trick—”

“And it works—”

“Read Gupta's deposition. Fischler already prepared him on it. He would have testified that the government grants that fund his lab don't support the kind of work Steinhardt was doing. He was pursuing a completely different line of research.”

Barnum started to answer, but Seeley was already rising. “Thorpe's waiting for me.” It seemed like months since he agreed to the lunch meeting with his adversary. “I'll see you tomorrow morning.”

Through his cross-examination of Koosmann and Gupta, Seeley had been aware of the judge watching him. Once, when he slipped over an obvious point of attack on Koosmann's testimony, she shook her head unhappily, as she might at a rookie. She understood what he was doing but, short of granting the mistrial Seeley had asked for, there was nothing she could do.

Gail Odum was at the gallery rail by the gate, and she managed a fleeting smile when Seeley walked by. She had witnessed his colloquy with the judge earlier and it took no great journalistic insight to connect his visit to Farnsworth's chambers to the judge's order barring contact with the press. Odum knew that there was a story here, and Seeley wondered whose ache was deeper: hers to hear the story or his to tell it.

“Do you know Schroeder's? A wonderful old place.” As usual, Thorpe's shuffle disappeared as soon as he was out of sight of the jury, and he had no trouble keeping up with Seeley. Market Street where it crossed McAllister churned with life. Young men in wheelchairs zipped across the broad sidewalk, practicing wheelies. Others in elegant exercise outfits and just-out-of-the-box running shoes talked and smoked in clusters at corners and in the doorways of shuttered storefronts.

“It's an old-style German place,” Thorpe said. “A bit of a tourist trap, but if the Koenigsberger Klopse is a special, be sure to order it.”

So reticent in the courtroom, Thorpe now couldn't stop talking. “San Francisco used to be a real trial lawyer's town. There weren't more than ten of us who had a real trial practice back in the fifties. Jake Ehrlich, Mel Belli. Of course, I was just a kid coming up. Federal or state court, civil or criminal, it didn't matter. What mattered was the art of trial practice. Today, anyone with a law degree thinks he's a trial lawyer. There's a lot the old-timers could teach them.”

As they approached the financial district, steel-and-glass office towers crowded the bantam office buildings of another age, and Thorpe, still spilling with stories, pointed out the Monadnock Building where his small firm had its offices. The Art Deco façade shimmered like a mirage in the mirrored sheathing of the office tower opposite it.