Trials are theater, a fact that Seeley considered once again, while waiting for Judge Farnsworth to make her entrance. Palmieri was busy at his laptop and Barnum faced the empty jury box, his back to counsel's table. In the bright tiled washroom, Steinhardt preened before the mirror for a full five minutes, patting his already slicked-back hair, running a small ivory comb through the neatly trimmed beard, adjusting and readjusting his tie before finally unknotting and retying it. Coming into the courtroom, he wanted to know where the press was. Was there someone from The New York Times?
“They're in the row on your left,” Seeley said, “but, when you get on the stand, don't look at them. Look only at the jury or at me.”
Leonard was two rows back, gesturing that he needed to talk to Seeley. Seeley saw the jury filing in through the back door, and shook his head, no.
The clerk cried for all to rise, and from the same door as the jury, Judge Farnsworth swiftly ascended the bench. Even before she settled into her high-backed chair, she signaled Seeley to put on his witness.
Seeley's original plan was for Steinhardt to describe how AV/AS overcame the four hurdles that Kaplan described yesterday, having him on and off the stand in no more than half an hour. The longer his testimony went, the greater was the risk that he would antagonize the jury; and the wider it went, the greater was the risk that he would say things that Thorpe could use to destroy him on cross-examination. But Steinhardt insisted that he be able to tell the whole story, beginning with his early work at UCSF, and in a conference call Barnum ordered Seeley to go along.
Now, observing Steinhardt on the witness stand, shoulders back, gaze fixed on the row of journalists in the gallery as he answered Seeley's questions, Seeley regretted giving in to Barnum. He took Steinhardt briskly through his years at UCSF, introducing into evidence the lab notebooks that he'd kept there, directing the scientist to specific entries to quicken the pace and to give Thorpe little elbow room on cross. When Seeley introduced into evidence the two leather-bound notebooks from Steinhardt's work at Vaxtek, he slowed the pace only when the witness approached the completion of his experiments.
“And the entry in your laboratory notebook dated September twelfth, 1997, was that also made under your direct supervision?”
An eyebrow arched, Steinhardt's sign of displeasure. “I made the entry myself. You can see from the handwriting.”
“And the signature below yours, of a Daniel Turnley. Who is that?”
“One of the scientists who works for me. As at UCSF-as at any creditable research laboratory-all notebook entries must be witnessed.”
“And, through October third of 1997, when the experiments were completed, there is at least one entry for each day. Is it usual for you to work like that, to be in the lab every day, without a break?”
“When a scientist is on the brink of discovering a new vaccine, he doesn't take the weekend off for golf.”
That got an appreciative murmur from the jury box, and it occurred to Seeley that he may have worried too much about the impact of Steinhardt's self-importance.
“But there are three different witness signatures over this period, September twelfth through October third. Why is that?”
“My staff have families.” Steinhardt cocked his head in a gesture intended to mimic sympathy, but that to Seeley only looked disingenuous. “I don't require them to put in the hours that I do.”
Seeley glanced at the jury and felt a spasm of resentment. Against expectations, Steinhardt was going over well. Only the kid and the juror next to him, the AT amp;T cable splicer, were impassive. The jurors' acceptance of Steinhardt was good for Vaxtek's case, but the thought that they were being taken in by this pious charlatan angered Seeley.
“And did an event of significance occur in your laboratory on October third?”
Steinhardt ran a manicured finger over the notebook page as if he was reviewing it.
There was a cough from plaintiff counsel's table.
“An event of overwhelming significance.” Steinhardt nodded gravely. “Yes.”
There was a second cough, more insistent, and when Seeley turned, Palmieri was frantically signaling with his eyes for him to stop.
“Please review that entry again,” Seeley said, stalling. He went back to counsel's table.
Line after line filled Palmieri's computer screen, and Seeley immediately recognized Steinhardt's resume.
“Mr. Seeley.” It was Judge Farnsworth. “Are you finished with your witness?”
On the screen was the section of Steinhardt's resume that listed his presentations to scientific groups. “No, Judge. I'm just checking a fact.” Seeley would have to keep Steinhardt occupied with harmless questions until Palmieri explained what was on his mind.
“Returning for a moment to your work at the University of California, Dr. Steinhardt, could you tell the court about your work practices there? The size of your team?”
Steinhardt, puzzled, launched into a description of what he called not his team but his staff at UCSF.
Barnum grabbed Seeley's arm. His whisper was harsh as gravel. “What the hell are you doing?” Seeley shrugged him away, not taking his eyes from Palmieri's computer screen.
Palmieri pointed to a line in the resume. On September 17, 1997, Steinhardt presented a paper in Berlin. He pointed to the next line. On the twenty-fifth, he delivered a paper in Geneva. And on October 3, 1997, the very day that in his laboratory in South San Francisco, California, Alan Steinhardt stood on the brink of discovering AV/AS, he was delivering the keynote address at a conference on immunology to the faculty of medicine of the University of Bologna.
Seeley's clients lied to him all the time. Witnesses lied, too. But, so far as Seeley knew, he had always caught the lie in time and refused to let the witness testify. A lawyer could argue that Steinhardt had not yet lied on the stand. Seeley hadn't asked whether he'd in fact made the entries on the dates indicated, only whether they were made under his supervision. Seeley glanced over to where his brother was sitting in the gallery. Leonard knew that something was wrong. When Seeley looked at Palmieri, he was surprised to see something like triumph playing in the young partner's expression.
A beautiful woman reveals, then instantly conceals, a long white leg. Steinhardt knots his necktie to perfection, but keeps two sets of books. In one set, Steinhardt recorded his experiments as he made them. The other set meticulously copied these entries but gave them earlier dates, well ahead of St. Gall's experiments, to establish Steinhardt as the first inventor of AV/AS. This was Lily's secret, and it was still intact as she slept and Seeley drove back to San Francisco in the five a.m. fog. She had given Steinhardt St. Gall's dates of invention. That was why she was in Steinhardt's lab that night.
Steinhardt had completed his answer to Seeley's last question and the courtroom was silent. Seeley needed time. Ethical obligations required him to tell his client-Barnum-why he had to take Steinhardt off the stand.
“Mr. Seeley?”
“May we request a fifteen-minute recess, Judge?”
“Your witness has been on for less than half an hour.”
“There's some urgency, Judge-”
“You can have your recess when you are finished with your witness. If you're finished now, you can have your recess now. Otherwise, you will please continue.”
Across the courtroom, Fischler was talking intently to Thorpe. If, during the months of pretrial discovery, the St. Gall team had caught the discrepancy between Steinhardt's notebook and his travel dates-how could they miss it? — Thorpe would destroy Steinhardt on cross-examination.
Seeley calculated. He had two witnesses who were going to testify that St. Gall infringed the AV/AS patent and, with some intensive preparation, he could have them describe how AV/AS worked. But he remembered his promise to the jury that Steinhardt would explain the invention; this was why the scientist was on the stand. Leaving the black leather notebook on the table, Seeley returned to the lectern.
“Dr. Steinhardt, are you familiar with the expert's report that Dr. Lionel Kaplan prepared for this lawsuit?” Seeley worked to keep the anger out of his voice.
“I read it. Yes.”
“And do you remember that the report describes four obstacles to the development of an AIDS vaccine?”
“Of course I do. Everyone-”
“Do you agree with Dr. Kaplan's assessment of these obstacles in his report?”
The scientist's narrow face darkened. He didn't like being cut off. “Yes,” he said. “I do.”
“Could you remind the jury of these obstacles?”
Steinhardt fumed as he described the obstacles in clipped sentences. That was fine with Seeley if it kept his answers short.
“Could you describe how AV/AS overcomes these obstacles?”
Steinhardt straightened in the chair and the small chest expanded. This was, finally, his moment. He crossed a leg. “I would be glad to. The idea for taking this approach occurred to me-”
“Please confine yourself to the specific question, Doctor. Just tell the jury how AV/AS overcomes the obstacles that Dr. Kaplan describes in his report.”
Judge Farnsworth leaned forward on the bench, her eyes moving between lawyer and witness. She knew that Seeley was scrambling, that something had gone wrong with his case. Two or three jurors picked up on the judge's interest. But Seeley was not going to let Steinhardt implicate him in perjury by taking credit for being the first to discover AV/AS.
Steinhardt adjusted his tie and looked over to the reporters' section of the gallery, his eyes revealing the profound confusion of a man who was not often confused. He didn't know why Seeley's questions had taken this turn, and this meant that Seeley would need to direct each of his answers.
“How does AV/AS resolve the problem that HIV mutates so rapidly?”
“There is no perfect solution, but I concluded-”
“Not what you concluded, Doctor, just how the vaccine works.”
“The vaccine employs a second-best solution.” Steinhardt's tone was injured, petulant. “Since it is impossible to neutralize the virus completely, the vaccine works instead to contain it.”
“How does that solve the mutation problem?”
“There is in all forms of HIV a genetically conserved region, a portion of the virion-the virus particle-that does not mutate.”
Seeley felt as if he was binding the witness with rope. “If the conserved region of the virion can be neutralized, is that the same as if the entire virion has been neutralized?”
“Effectively, yes. If we can get”-Steinhardt saw Seeley's warning look, and gave the first sign that he understood what Seeley was doing-“if it is possible to get an antibody to bind to just one isolate-one part of the conserved region-that can be enough to block the virus's ability to infect a cell.”
“But there is an obstacle here, too?”
“The forest of mushrooms. With the mushrooms flopping around, and the envelope surrounding the core of the virion constantly slipping and sliding, the conserved region is the hardest part to reach. It doesn't mutate, but what good can you do if you can't reach it?”
“And how does AV/AS reach the conserved region?” Here was the elegant arc of the invention, and for a brief moment Seeley regretted depriving this miscreant, this would-be perjurer, of his shower of glory.
“To reach the conserved region,” Steinhardt again drew himself up in the witness chair, “AV/AS employs a human antibody, specifically a monoclonal antibody, that does not exist in nature but has been synthesized in the laboratory expressly for this purpose. This antibody can specifically target a receptor in the conserved region of the virus envelope, bind to it, neutralize it, and prevent it from infecting cells.”
“Would you say that AV/AS works like an arrow, piercing through this mushroom forest until it reaches its target?”
“Yes, Mr. Seeley”-the familiar arrogance replaced the confusion in his voice-“it works like an arrow, and when it reaches the targeted part of the virus it disables it.”
Seeley imagined the picture in Steinhardt's mind of that arrow piercing his lawyer's heart.
“Thank you, Dr. Steinhardt.” The rhythm of the questions had so far subdued Seeley's rage, but now it rose like a gorge in his throat, making it difficult to speak. “We have no more questions, Judge.” He didn't trust his voice. “May we have a recess?”
Pushing through the courtroom's double doors, Seeley evaded Barnum's reach and, grabbing the man's elbow instead, steered the general counsel to the alcove at the end of the long corridor. Leonard trailed, trading looks with Barnum. Leonard had lied when he told Seeley there was only one set of lab notebooks. Seeley dropped Barnum's arm. “Where's Steinhardt?”
Leonard said, “I've got a plane to catch, Mike. I have to be in Washington tonight.” He looked back down the corridor. “He went to the men's room.”
“You can wait until I finish with your general counsel.” To Barnum, Seeley said, “Your scientist wasn't in his lab when his notebooks say he was, and Thorpe knows that. He's going to chew him up on cross.”
“Maybe Alan got some of his dates mixed up. Thorpe's not going to call him on it.”
Leonard, his back to them, was studying the black-and-white photographs of old-time San Francisco that hung on the alcove wall. The styled, too-blond hair was like a taunt to Seeley, the sum of his brother's contrived innocence. Golden boy.
“The only way the dates got mixed up is if there were two sets of books. Steinhardt wasn't the first inventor.”
“You're forgetting that St. Gall already stipulated priority. Thorpe won't be able-”
Behind them, the double doors of a courtroom opened and the broad black face of a bailiff emerged. The man smiled at them gently and placed a finger to his lips before disappearing behind the doors.
“Bob Pearsall knew about the second set of books, didn't he?” Steinhardt arrived at Barnum's side. “What are you talking about?”
“Your resume puts you in Berlin, Geneva, and Bologna on the dates your notebooks have you in your laboratory.”
Steinhardt drew his lips into a grim line and dropped his head. On the stand, he must have suspected Seeley's discovery of the amateurish deceit. “You have to understand-”
Seeley said, “I don't want to hear anything from you. The less you say from now on, the less harm you're going to do to your employer's case. Right now, I don't give the case much of a chance.”
Leonard wandered down the corridor, still looking at photographs. How deep is his shame, Seeley wondered. If he knew his brother, Steinhardt's lies had barely made a dent.
Steinhardt glanced at Barnum, but got no response, then turned to Seeley. “What should I say if Thorpe asks me about the notebooks? The dates?”
“First,” Seeley said, “make sure you understand his question. If you don't understand it, ask him to repeat it.”
“And, then?”
“Tell him the truth.”
An unhealthy reek came off the scientist; his breath had turned rank.
“Look at this as your Miranda warning, doctor. People go to jail for perjury.” Seeley gestured at Barnum to take Steinhardt back to the courtroom. “I'll catch up with you in a minute. Remember what I told you. Pause before you answer, no matter how innocent the question sounds. Give me the chance to object if I need to.”
Leonard was back in the alcove, examining a San Francisco harbor scene as intently as if he might find the words there that could win over his brother. Seeley spoke to Leonard's back. Neither wanted to see the other's face. “You knew about the second set of notebooks when you came to see me in Buffalo.”
“Would you have taken the case if I'd told you?”
“That's why you needed me. Pearsall found out about the notebooks, and wouldn't go along. You figured that even if I discovered Steinhardt's fraud, I'd stick with the case out of loyalty to you.”
“Pearsall didn't know. If he knew, Barnum would've told me.” Leonard turned to face him. “You've got to give us cover on this, Mike.”
“If this comes out in Thorpe's cross-examination, there's nothing I can do.”
“It won't come out.”
His brother was deceiving himself. “You should be proud of yourself, Len. All these years, and you haven't changed at all.”
Leonard immediately understood what his brother meant. The events of thirty-two years ago remained fresh for him, too.
“You're forgetting,” Leonard said, “I was the one who stole the gun from his dresser. I was going to throw it in the sewer.”
“And when you lost your nerve, you got me to cover for you.”
“You haven't changed, either.” Leonard's smile was tentative, his eyes worried. “You'll find a way to fix it.”
The leather-clad doors of the neighboring courtroom burst open in a din of voices and a crush of people swept by. Seeley recognized a Silicon Valley CEO whose picture was in that morning's Chronicle over an article about a stock option scandal. The crowd disappeared and the corridor returned to silence.
It was more than fifteen minutes since Farnsworth called the recess, and Seeley knew she would continue the trial without him. It didn't matter. Palmieri could take over and Seeley could walk away from the trial right now. Wasn't this why he had gone into solo practice-to take the cases he wanted, and leave the ones he didn't? Even remembering why he took the case-David against Goliath-failed to move him.
Leonard said, “What happened wasn't my fault.” He had turned back to the pictures on the wall.
“Of course it was. You screwed up and you were weak, so I took the blame for you.”
Leonard continued speaking to the wall. “He was a bastard, but you didn't have to knock him down. Hold his own gun on him.”
What so infuriated Seeley was that Leonard had no idea what a pitiful coward he was. He knew what had happened while he hid in the bedroom only because their mother had told him. But the possibility that he was complicit never occurred to him.
“Go catch your plane.”
Leonard didn't move. Seeley studied the back of his brother's plump neck, and for an instant had the sensation of the damage he could do with a baseball bat.
Leonard turned, his features as contorted by pain as if Seeley had in fact struck him.
Seeley stuffed down his fury. “You had something to tell me. Before, in the courtroom.”
Sensing forgiveness, Leonard brightened, quickly recovering, the way he did as a boy. “Renata arranged a field pass for you. You can pick it up at the will-call gate.”
The Stanford football game. My brother creates misery and this is what he thinks about.
“You won't tell her, Mike? The problem with Steinhardt?”
Seeley said nothing, but walked back to the courtroom. He was grateful to Palmieri for heading off Steinhardt's perjury. But the timing disturbed him. Palmieri had reviewed Steinhardt's notebook entries a week ago, and had seen the scientist's resume long before that. Why had he remained silent about the conflict in dates until Seeley was in the middle of his direct examination, when the disruption would do the most harm? Or was Seeley just passing the blame for not catching the discrepancy himself?
Thorpe's cross-examination of Steinhardt was already under way when Seeley came in. The courtroom felt like a crime scene. Palmieri slid a legal pad across the table. On it was a hastily scribbled outline of Thorpe's questions and Steinhardt's answers so far. Thorpe had for some reason started with Steinhardt's work in his UC lab. But, even if the scientist kept two sets of notebooks there, too, they had no bearing on the discovery of AV/AS, which came much later. Unless Thorpe's plan was to show that duplicity was Steinhardt's standard practice.
Steinhardt's easy condescension of an hour ago was gone. Although he followed Seeley's instructions to pause after each question, to give Seeley time to object, and to face the jury when he answered, the answers faltered. The rigid set of his narrow shoulders was a poor imitation of the earlier self-assured bearing. This was, Steinhardt had to know, just a warm-up. Thorpe could at any moment turn to the discrepancy between the scientist's travel schedule and his notebook.
As he followed Thorpe's questions, Seeley outlined on a legal pad a strategy that, on redirect, might at once deflect Thorpe's exposure of the second set of notebooks and yet keep Steinhardt clear of perjury. Leonard's pleas echoed in his thoughts: Fix this up, Mike. Don't tell Renata. This was as close as he and his brother got to fellowship.
Thorpe shuffled from the lectern to the defense table and whispered something to Dusollier. The Swiss lawyer nodded and lifted a folder from a pile on the table. Thorpe opened the folder, studying the contents at arm's length, as if there was something there that he found offensive.
“Earlier in your testimony, Dr. Steinhardt”-Thorpe spoke from the table and Steinhardt leaned forward to hear-“you referred to AV/AS as a vaccine. Is that correct?”
The court reporter asked Thorpe to repeat the question, and this time Steinhardt answered at once. “Yes, that's correct.”
Barnum leaned across the table and wrote at the bottom of the legal pad: “Where's this going?”
Seeley knew where Thorpe was headed, but didn't understand why.
Steinhardt looked at Seeley again, and this time Seeley nodded. AV/AS was not a true vaccine, but Steinhardt's concession on the point would not help Thorpe's case. He could argue that it weakened Vaxtek's claim of long-felt need for the therapy, but that would make no difference to the jury.
“Does AV/AS in fact work that way, as a vaccine, like the polio vaccine or measles vaccine? Does it use the body's immune system to neutralize a virus?”
Then Seeley saw Thorpe's strategy: he was trying to goad Steinhardt into overstating the scope of his discovery, to put on display for the jury the same arrogant scientist that Seeley was trying to hide. But Thorpe had miscalculated. Steinhardt had already been humiliated once today, by his own lawyer, and he was not going to let St. Gall's lawyer do the same. When he looked at Seeley for guidance, Seeley discreetly shook his head.
“No, it does not,” Steinhardt said. “As effective as AV/AS is in neutralizing infection, it is not a true vaccine, like the polio vaccine, that inoculates against it.”
“So, then, this vaccine ”-Thorpe was waving the folder now-“AV/ AS is not the Holy Grail that everyone's been looking for?”
Steinhardt didn't wait this time, but answered at once. “I'm not a theologian, sir.” The attempt at humor wrenched Steinhardt's face; humor and its expressions were unfamiliar to him and Seeley felt a moment's sadness for the scientist.
Thorpe sighed and leaned back on the table. “I was using the term colloquially, Doctor. Let me rephrase the question. Is AV/AS the AIDS vaccine that has been the object of scientific research since 1984?” If he couldn't portray Steinhardt as arrogant, Thorpe was going to show him as evasive. But why was he pressing so hard?
Steinhardt said, “Science doesn't work that way. With a disease as deadly as AIDS, there is a multiplicity of research goals. AV/AS achieved one of them.”
“But AV/AS does not trigger human immunity to the disease.”
Seeley was on his feet. “Asked and answered.”
Farnsworth looked from Seeley to Thorpe. The questioning puzzled her, too. “The witness may answer.”
“No,” Steinhardt said. “Sadly, it does not.”
Thorpe turned to the jury. “I have no more questions of the witness.”
Seeley caught his breath. Thorpe was not going to ask Steinhardt about the inconsistency between his travel dates and the dated entries in his lab notebook. It was inconceivable to him that Thorpe and his team of lawyers had failed to ask the question that any competent solo practitioner would have asked: Was the inventor in his lab at the time he said he made his discovery? And then Seeley reminded himself that until this morning he, too, had failed to compare Steinhardt's lab dates with his travel schedule.
“Redirect, Mr. Seeley?”
Seeley reckoned quickly. Two or three questions could repair the small damage from Thorpe's questions about the efficacy of AV/AS as a vaccine. But they might also open the door for more questions from Thorpe and-Seeley believed his witness still had it in him-perjury by Steinhardt. However, Steinhardt's new humility reduced the risk of arrogance or perjury from another question.
“Just one question, Judge. Dr. Steinhardt, we have in the course of this trial been referring to AV/AS. Could you tell the jury what those letters stand for?”
“AV, of course refers to AIDS vaccine. That's standard reference.”
“And AS?”
Steinhardt actually managed a shrug, and looked down as he spoke. “Alan Steinhardt.”
The approving nods in the jury box confirmed that Seeley had been right to ask the question.
When Thorpe declined to question further, Farnsworth said, “Then we'll take our lunch recess now.” She looked at the clock high up on the wall on the defense side of the courtroom. “We'll resume at one p. m. sharp.”
Pounding on Seeley's back, Barnum leaned into his ear. “I knew Thorpe wouldn't catch the problem with the dates.”
Seeley looked at him hard. “This is no time to celebrate.”
Barnum smirked as if to say, the two of you are suckers. Thorpe and you.
What Seeley was thinking was that the line in Pearsall's sketchbook hadn't asked what Steinhardt was hiding, but what else he was hiding.