A Patent Lie (26 page)

On the bench, Farnsworth appeared unconcerned about what had just happened and sorted through the stack of papers in front of her. “I'm hearing motions on my criminal docket this afternoon.” She set down the papers. “Counsel can make their closing arguments tomorrow morning and then I'll instruct our jury. You can obtain the jury instructions from my clerk. If you have changes to propose, I'll hear them first thing tomorrow morning.” She straightened the papers and started to rise. “Oh, yes. The clerk will tell you how much time you each have left.”

Seeley already knew. Palmieri, who had been busy at his laptop, searching for contradictions between Weed's testimony and his pretrial deposition, had also been counting time. He pushed a legal pad across the table to Seeley. At the top of the otherwise blank page he had written: “53 minutes.” Two years ago, drunk in a judge's chambers in New York City, Seeley had managed in less than a minute to come within a hair's breadth of being disbarred and destroying what was left of his career. Fifty-three minutes was more than enough time for him to finish hanging himself.

Seeley was in Pearsall's office working on the notes for his closing argument when the night operator buzzed that his brother was in the reception area. While he waited for Leonard, Seeley reflected on what had happened over the time that his brother had been gone. There was the confrontation with Renata after the football game. She had been flirting, yes, but only to see whether Seeley was the loyal, heroic brother that Leonard had endlessly praised to her. It seemed to Seeley that every other incident, from the discovery of his client's collusion to this morning's humiliation by Weed, also bore the imprint of Leonard's craven spirit. The thought for the first time occurred to him that, as consistently as he had been Leonard's protector, Leonard had all that time been his enemy.

Leonard wheeled his suitcase inside the office door. There were no arms poised for an embrace this time, but the salesman's smile was there.

“Great news, Mike. The FDA likes the data we're getting from the phase-three trials.”

“Congratulations. If the jury votes for your patent, you and St. Gall get to divide the world between you.”

The smile disappeared, but not because Leonard had been listening. He came closer to study Seeley's face as a physician would, taking hold of his shoulders and turning him into the light. “What happened to you?”

Seeley had forgotten about the bruises. “Why didn't you tell me you were colluding with St. Gall?”

Leonard stepped back. Behind him, the glass wall reflected the office and open doorway so that they appeared to hang outside in the night. Thirty-two years, Seeley thought, and how far have we come from two boys waiting in a shared room for their drunken father to crash through the door.

Seeley said, “You made a deal with St. Gall.”

“Of course we did. This goes back to before you got into the case. Joel worked it out with the Swiss. It was a business adjustment. I didn't have anything to do with it.”

“But you knew about it.”

“Look, we've sunk almost half a billion dollars into AV/AS. St. Gall had a problem with one of their researchers being caught in our labs, and we had a problem with Steinhardt's notebooks. So Joel made a deal.”

Seeley wondered if Leonard and the others at Vaxtek knew Lily's secret. Their most famous researcher hadn't just fabricated a few dates in his notebooks; he had stolen another scientist's discovery and claimed it as his own.

“And because you knew how the case would come out, you went into hock buying Vaxtek shares. You knew about the collusion when you came to see me in Buffalo. You dragged me into it.”

“The way I see it,” Leonard said, his voice becoming a whisper, “I dragged your ass out of the swamp you were sinking into.” This was an old trick of Leonard's when they argued, lowering his voice to taunt him, forcing him to draw closer. “Would you have taken the case if I told you it was a sure thing?”

“I was your insurance policy,” Seeley said. “You thought you could control me.”

“Me?” Leonard's face went slack-jawed, incredulous. “When did Leonard Seeley ever control his brother? Did I once tell you that if you lost this case it would break me?”

No, Seeley remembered, he hadn't. And if he hadn't asked, Renata would not have told him, either.

“Come on, Mike, whoever's name is on it, AV/AS is going to save lives.”

“But only at a price that the people who need it most won't be able to pay.”

“I already told you,” Leonard's voice had returned to normal, “we're only going to charge fifteen dollars a dose in Africa.”

“But Vaxtek isn't going to sell AV/AS in Africa. St. Gall is. And according to Chaikovsky's numbers, they won't sell it for less than forty-five dollars.”

Twelve-year-old Lenny peered out from the supplicating face in front of him, and a dam burst inside Seeley. One hand grabbed for Leonard's neck, flesh and collar slipping in his fingers, and the other slammed into his brother's chest, propelling him back against the window. There was a boom and the glass shuddered, flashing back reflected shards of desk, chairs, doorway, and, at the center, a face—his own—that Seeley didn't recognize.

Perspiration or tears streaked Leonard's cheeks. “What did I do wrong?”

Seeley's nerves, muscle, bone throbbed with rage.

“Who hired the Asian boys? Was that Vaxtek's idea or St. Gall's?”

“I've been away all week. If I'd known, it never would have happened.”

But he knew now, and that meant Warshaw or Barnum was behind the attack.

Seeley jammed Leonard's head sideways against the glass so that one fear-struck eye observed him while the other stared thirty-eight stories down to where pedestrians waited at a bus stop. The fury inside Seeley was like alcohol. It felt to him that he was devouring one drink after another.

“You weren't away when Pearsall died. Who arranged that?”

Leonard's body went slack. He said, “You're kidding me, right?”

Leonard knew something that he didn't, and Seeley expected that in a moment he was going to feel like a fool.

Seeley said, “Pearsall discovered the collusion, he confronted Warshaw about it, and that got him killed.”

Leonard said, “Who do you think set up the deal between us and St. Gall? Pearsall didn't discover a collusive lawsuit. He orchestrated it. He and Thorpe did.”

“Pearsall would never do that.” Even as he said it, Seeley asked himself what in fact he knew about Pearsall other than that he was a successful trial lawyer who took bird pictures, read philosophy, and played poker with Thorpe. Still inches from his brother's choked-up face, Seeley said, “You're lying.”

“Why would I lie, Mike?”

“Because that's what you do, Len, you lie. That's who you are.”

“This time I'm not.”

A halo of condensation formed on the glass around Leonard's head. Above it was the reflection of three or four figures standing at the office doorway, looking in. Seeley let go of Leonard and turned.

“There's nothing here,” he said, dismissing the onlookers. “We all have work to do. Let's get back to it.”

Leonard, breathing evenly again—was it part of his brother's insanity that he recovered so quickly?—said, “What are you working on?”

“Tomorrow's closing argument.”

“I'm glad I got back in time,” he said. “I wouldn't miss it for anything.”

TWENTY-TWO

The courtroom on Friday morning was bedlam. The bench, where Judge Farnsworth should have been disposing of motions, was empty. In the back row of the gallery, Phil Driscoll, the protester, was gesturing wildly at one of the investment bank lawyers; the lawyer, arms folded across his chest, nodded parentally. Seeley could just barely make out Gail Odum's slender figure inside the crowd of lawyers around her. Leonard, who said that he wouldn't miss Seeley's closing argument for anything, wasn't there.

She did it, Seeley thought, cheering silently. Lily did it. Hope leapt inside him.

Barnum wasn't at counsel's table, and if Seeley was right about what had happened, the general counsel would not be there for the remainder of the trial. Seeley looked across the well of the courtroom. Dusollier was missing, too. This evidently was not a day for clients to be out and about. Palmieri's arms rested expansively over the back of the chair on either side of him. His hair looked as if someone had ruffled it. His voice was excited. “Have you seen it?”

Seeley lifted the newspaper from the table. Odum's byline was on the front page, beneath the fold. The picture next to the article looked like it came from Lily's college yearbook—a serious girl in a buttoned-up blouse and an out-of-date hairdo with a bow-shaped barrette at each side of her forehead. She was unsmiling, except for a certain brightness in her eyes. Even without reading the article, Seeley's admiration for the smart, vulnerable-looking girl in the photograph made him gasp.

The first three paragraphs condensed what Lily had told Seeley: her work on AV/AS at St. Gall; her nighttime visit to Steinhardt's lab; Steinhardt's appropriation of her discovery as his own. In the remaining four paragraphs, Odum pieced together her own speculations about the odd progress of the trial proceedings and their connection to Lily's story. Vaxtek and St. Gall hadn't returned her phone calls, and she nowhere directly charged them with collusion. However, there was a quote from an anonymous lawyer that Thorpe's defense was the weakest he had ever seen in a major federal case, and readers could draw from that whatever inference they wished.

Seeley read the article a second time. When he looked up, he was aware that the courtroom had turned silent. From the bench, Judge Farnsworth was beckoning to him and Thorpe to come forward.

The judge's calm expression was impenetrable and her voice, when she asked the court reporter if she was ready, was contained. Studying Seeley and Thorpe over her half-frames, she said, “I am not going to ask if you or your clients were responsible in any way for the article in this morning's
Chronicle
. I'm told it was also on the television news. But I am going to ask the U. S. attorney to look into whether there is any connection between your clients and Dr. Warren's decision, on the eve of closing argument, to give her story to the press.”

Seeley glanced sideways at Thorpe who, for once, was not crowding him at sidebar. The old lawyer's face was clotted, a deep, unhealthy crimson. Whatever the outcome of this trial, Thorpe's career as one of the handful of lawyers of choice for large, difficult cases was over. St. Gall's public relations team could put whatever spin they wanted on Odum's musings, but no Fortune 500 corporation would ever retain a trial lawyer so tainted by the scent of corruption.

The judge's polished red nails tapped at the wood trim of the bench. “Unless either of you gentlemen has a well-grounded objection, I am going to interview the jurors in my chambers to determine whether any of them has been prejudiced by this morning's story.”

Seeley was already thinking about numbers. If three of the eight jurors saw or heard Odum's story, Farnsworth would lack the six she needed to complete the trial. “We have no objection, Judge.”

Thorpe said, “None, Your Honor.”

Farnsworth instructed her clerk—“Bring them in one at a time, starting with juror number one”—and the court reporter—“This will be on the record, so bring your machine.” To Seeley and Thorpe she said, “You gentlemen are welcome, but only you, none of your colleagues, and just to observe. I don't want anyone intimidating my jurors.”

The small parade followed Farnsworth down the narrow hallway and past the jury room, moving quickly at the judge's pace. The clerk waited for them to settle themselves in chambers before returning to the jury room to collect juror number one, the AT&T cable splicer from Napa.

“Please come in, Mr. Gutierrez.” The judge was all warm smiles. She patted the empty chair next to her. “No one here is going to bite you.” As she explained to him the importance to the fact-finding process of insulating the jury from information acquired outside the courtroom, Gutierrez neither spoke nor even nodded. But the acuteness in the way he listened, a slight sharpening of his features, left no doubt that he was taking it all in.

“Have you heard or seen anything about this lawsuit outside the courtroom?”

“No,Your Honor.” Seeley noticed that Gutierrez held his head up, jutting his chin a fraction of a degree, the way a career military man might or someone accustomed to wearing a construction hard hat.

“Do you read the newspaper in the morning, Mr. Gutierrez? Watch the television news?”

Gutierrez shook his head and, for the first time, his expression relaxed. “Your Honor, it takes me an hour-and-a-half to get here in the morning. I barely have time to brush my teeth.”

“Do you listen to the radio when you drive down here?”

“No, there's not much to listen to.”

“How do you keep yourself occupied, then?” If she wasn't genuinely interested in the answer, she was an accomplished actor.

“I listen to audiotapes.”

“What are you listening to these days?”

“The new biography of Albert Einstein. It's pretty good. It moves right along.”

“I'll have to buy the book.” She rose to take the cable splicer's hand. “I want you to know how much the court—how much
I
—appreciate the work you are doing on this jury, Mr. Gutierrez. I'm certain it can't be easy.”

When he went out the door, Farnsworth's glance raked the two lawyers, as if she needed to remind them that she preferred jurors to lawyers.

The second juror, one of the secretaries, came into the room, and before she could take the chair next to Farnsworth, blurted, “I know what you're going to ask me,” then broke into tears. Between sobs, she explained that her roommate had come into the kitchen and spilled the
Chronicle
story before she could gather her wits to stop her. “I told her when the trial started that we couldn't talk about the case.”

The woman's face was a blur of tears and dissolving makeup. She said, “Do you think the story in the paper was true?”

Farnsworth briefly tried to console her—the woman was bereft at the prospect of leaving the jury—but said, no, it would present too great a risk if an appeal were taken for her to remain on the jury. “I'm sorry, but I must dismiss you.” Farnsworth nodded to the clerk, who led the woman out.

Farnsworth's dwindling jury was, Seeley knew, all that stood between the truth of Odum's story and the lies that Vaxtek's and St. Gall's public relations firms would soon enough begin circulating. He said, “You know, Judge, by tomorrow this story's going to be all over the news. If this jury doesn't hold together, it won't be possible to retry the case.”

“I'm fully aware of that possibility, Counselor.” The words could have been splinters of ice.

With questions and persistent prodding from the judge, jurors three and four, the other secretary and the nurse, stuck to their stories that they didn't know a single fact that had not been presented in court. Juror five, the real estate broker who hadn't worn the same outfit twice over the course of the trial, started down the same path.

Farnsworth glanced at the yellow legal pad on her lap. “What about your husband, Mrs. Barton. Does he read the paper?”

“Only when I'm in the shower and he's making breakfast. He puts it away as soon as I come in.”

“And he didn't tell you anything about a story in the
Chronicle
?”

“No, of course not. I've told him not to.”

“Well, then, what did you and your husband talk about this morning?”

“Ah . . . well . . . the 49ers. We're great fans.”

“How are they doing this season?”

Mrs. Barton hesitated. “They're a fine team.”

“I'm sure they are, but I don't always get a chance to look at the sports pages. How did they do on Sunday?”

The polished woman sputtered but had no answer.

Farnsworth looked over at Thorpe whose expression signaled nothing and then at Seeley, who gave her no encouragement.

“I'm sorry, Mrs. Barton, but I'm going to have to dismiss you from future—”

“I only wanted to help!”

“I'm sure you did.” The judge was cooling quickly, and she signaled her clerk to bring in the next juror. “You have the appreciation of this court for staying with the trial so far.”

The kid, Gary Sansone, was the sixth juror. His hair was in a ponytail today, and he twisted it with his fingers after he took the chair next to the judge.

Farnsworth went through the preliminaries, then said, “Did you see this morning's
Chronicle
?”

“I don't read newspapers.”

“What about television? Radio?”

“Ditto. Old-line media's a waste of time.”

“Where do you get your news?”

“On the Web. CNET, Slate sometimes. I have a few favorite blogs.”

“Have any of them carried stories about our trial?”

“I wouldn't know, ma'am. I haven't looked at them since we started.”

How about e-mails, Seeley thought. Your buddies must know you're a juror in this trial. One of them must read the paper or watch the television news. You're the only juror who doesn't wear a wrist-watch. If you check your phone for the time, you must check text messages, too. Seeley imagined that the same thought had occurred to Judge Farnsworth.

Farnsworth said, “Then you have received no information about the parties or their dispute other than the evidence presented in court?”

“That's right, Judge.” He clapped his hands on his thighs and prepared to leave.

Farnsworth hesitated, as if she thought that the kid's lightheartedness was a front, masking a deeper knowledge of the case than he wanted to let on. Finally, she said, “Well that's good. I'm glad you can remain on our jury.”

She was even more cursory with the remaining two jurors—the retired schoolteacher and the accountant whose domestic partner had evidently been less talkative than the real estate broker's husband.

“Well, counselors,” she said, “it looks like our jury is intact. Somewhat smaller, but intact.” She rose. “Before you go, the marshals tell me there are TV cameras and who knows what else all over the plaza. After we finish in there,” she nodded toward the courtroom, “I want you to leave by the basement entrance in the back. Emil knows the way. There may be reporters there, too, but if either of you even nods to one of them, I'll have your license.”

The din in the courtroom quieted when Seeley and Thorpe came through the paneled back door but then immediately resumed. The six remaining jurors filed in, taking their previous seats, the two empty chairs a demonstration to the gallery of the narrow precipice on which the trial now perched.

Judge Farnsworth came in quickly and before she could touch her gavel, the noise abruptly abated. Her chair squeaked as she turned to the jury. “We have become better acquainted over the past hour or so,” she said, “and I am grateful for that. I am confident that you can perform your duties in this case free from external influence.” The jurors, all but the kid, looked at one another, congratulating themselves. They were survivors.

“I could order that you be sequestered in a downtown hotel to ensure the integrity of your deliberations, but with the weekend coming up, and my confidence in your probity, I have decided not to do so.” She paused. “I just wanted you to know the complete faith that I have in you.”

She swiveled back to the center. “Mr. Seeley, I believe you have a closing argument.”

When circumstances force a lawyer to argue against his client's ostensible best interest—Seeley that the AV/AS patent was invalid; Thorpe, that it was valid—the less said, the better, and the short time left for closing argument was a blessing to both lawyers. Following the notes that he had drafted from Palmieri's outline, Seeley evenly balanced his witnesses against Thorpe's, emphasizing only slightly the evidence on validity; the case for validity was stronger, he was saying, but only modestly so. If Barnum, who was still missing, read the transcript, Seeley would explain that he did not want to overstate their case to the jury. Of his theory of the case, the story that he had carefully wrought of the out-of-town bully who stole the local boy's lunch, Seeley said nothing. He finished with three minutes left in his allotted time.

Thorpe's closing statement vacillated, too, but, perhaps chastened by Odum's speculations in the
Chronicle
, the old lawyer didn't once suggest that a reasonable juror might consider the patent to be valid. Like Seeley, and as if circling a bomb that might explode, Thorpe made no reference to Steinhardt.

While Thorpe addressed the jury, Seeley observed Judge Farnsworth. She looked tired and, from the lines across her brow, worried. Once, when she looked away from the jurors to survey the courtroom, her eyes met Seeley's and, for the briefest moment, an uncomfortable intimacy passed between them. Farnsworth was a talented lawyer, and if she hadn't believed Seeley when he came to her chambers with his tale of collusion, or later when Thorpe put on his witnesses, she believed him now. Her eyes in that moment said, Forgive me, but this is my jury, what is left of it. I am going to get a verdict and there will not be a mistrial. Which is why her own closing comment to the jurors was no surprise.

“This has been a difficult trial,” the judge said. She rose and walked to the jury side of the bench. Resting her hands on the wooden molding, she leaned over the edge, as she had with the lawyers at sidebar. “But you have been admirable jurors, all of you—admirable in your steadfastness and in your continued attention. I think you all deserve the afternoon off. That will give you the weekend to catch your breath and return refreshed on Monday. You will remember what we discussed about news coverage in chambers and here in open court. I will instruct you on the applicable law at eight thirty Monday morning after which this case will become your complete responsibility.”