“He's lost it,” Barnum said, his breath damp against Seeley's ear. “How can he expect a jury to believe in his case if he doesn't believe in it himself?”
“Puzzling,” was all that Palmieri said, snapping his laptop shut.
But Seeley knew that Thorpe's fecklessness was a ruse. This was the same man who last week dashed across the courthouse plaza to proclaim to the television cameras the certainty of his client's victory. But, if he was acting, what was the point? Was the purpose of the charade to get a jury that would not sympathize with a multinational drug company to identify with him instead? Pity me; pity my client. Had Thorpe, with decades of practice in San Francisco, misjudged the jury, or had Seeley?
TWELVE
On the witness stand, Dr. Nicolas Cordier was a portrait of rectitude: thin, almost cadaverous, he sat erect against the back of the leather chair, one long leg crossed elegantly over the other, hands loosely clasped on a knee. He could have been waiting for his introduction as the keynote speaker at a medical society meeting and not for his first appearance as an expert witness in a patent infringement trial. The plain navy suit, white button-down shirt, and old-fashioned plaid tie went with the gray hair cut short at the sides, longer on top. As Seeley walked to the lectern to begin his direct examination, Cordier brushed a recalcitrant lock back from his forehead.
Sunday's preparation had been trying. “What do you want me to say?” Cordier asked as Seeley put practice questions to him. “The truth.” Seeley had seen this before. A witness, rigorously honest in all aspects of his life, is suddenly daunted by the novel prospect of testifying in court. The physician shrugged. “Of course, the truth, but how do you wish me to”-he grappled for the word-“phrase this truth?” Seeley asked whether he had told the truth in his deposition. “Yes, of course.” Seeley had pushed the black binder containing Cordier's deposition across the table. “Then review this and make sure you stick to what you said.”
Now, at the courtroom lectern, taking Cordier through his qualifications as an expert witness-medical training in Toulouse, a pediatrics residency in Algiers, research at the Institut Pasteur in Paris, and seven years working in Africa for the United Nations AIDS agency-Seeley again worried about how the physician would tell the story of AIDS in Africa. Slow down, he wanted to say, think about your answers, or Thorpe will crush you.
At the edge of Seeley's vision, Fischler was conferring with Thorpe. Fischler rose. “May I approach sidebar, Your Honor?”
This was unexpected. Ordinarily Thorpe, as first chair, would be responsible for the leadoff witness. Thorpe remained at counsel's table, as gray and motionless as a gargoyle staring out at the proceedings.
The judge rolled her chair to the corner of the bench away from the jury. “So soon, Ms. Fischler?” There was amusement in her voice. “We haven't even heard a word of testimony.”
“Defendant is prepared to stipulate to Dr. Cordier's expertise in pediatric AIDS, Your Honor, but not in the demographics of AIDS. We're concerned that's where Mr. Seeley is going to take him.”
Farnsworth turned to Seeley.
“Defendant has Dr. Cordier's report and they've deposed him at length,” Seeley said. “They knew months ago what his testimony would be.”
“Until this morning,” Fischler said, “we didn't know he was going to be their lead witness.” She had wrestled her hair into a prim schoolteacher's bun for the trial, but still seemed discomposed. “This changes everything. His testimony's going to have a greater impact.”
That was why Fischler was in charge of Cordier. It was she who had deposed the physician. She had prepared herself for him, just as Thorpe had prepared for Steinhardt. Seeley was pleased at the unexpected windfall of his decision to put Cordier on first.
Judge Farnsworth said, “Mr. Seeley is right. You should have raised this before opening statements this morning. Now you're wasting the jury's time.” Any humor was gone from her voice. The judge was also telling the two lawyers that she didn't like being away from her jury for sidebar conferences. “On the other hand, Mr. Seeley, Ms. Fischler is entitled to know what you're trying to prove with Dr. Cordier's testimony.”
“Dr. Cordier's testimony will bear directly on the novelty of AV/AS.”
Farnsworth studied him for a moment. “I'm not sure I know how you plan to do that, but I'm confident Ms. Fischler will have an objection at the appropriate time if it turns out to be a problem.” She nodded for him to continue.
Seeley returned to the lectern and a quick back-and-forth with the witness established that Cordier practiced pediatrics at a clinic in Maseru, the capital of Lesotho, and that his practice consisted exclusively of treating HIV-positive children.
“And do these children respond well to treatment?”
“If we are able to get them antiretroviral therapy-yes, then their chances of survival are excellent.”
“And if you are not able to get them this therapy?”
“They will die of AIDS.”
“How many will die, say in Lesotho?”
“Today in Lesotho, we estimate that there are 22,000 children-infants, teenagers-who are HIV positive. Less than one in twenty of them will receive treatment.”
Seeley glanced over at the jury box. No one seemed to be having difficulty following Cordier's accented English.
“So you're saying, of these 22,000 children, roughly 21,000 will die?”
“That is correct.”
All of this was hearsay, and ungrounded in the witness's expertise, but Seeley was confident that Thorpe, with countless jury trials behind him, would not let Fischler object and risk the jury's ill will. “And, in your experience, are these numbers unique to Lesotho?” Fischler started to rise, but Thorpe's hand moved over hers.
“Unique? Yes, but only in how small the numbers are. There are approximately 230,000 HIV-positive children in South Africa, about 300,000 in Nigeria. In all of Africa, we estimate close to three million children are HIV positive.”
“And the survival rate without treatment is the same?”
“If we can treat them, perhaps 150,000 can be saved. But this is such a small number, no? The others, almost all of the three million, will die.”
Fischler was on her feet. “Objection, Your Honor. Relevance.”
Instinct told Seeley that he was at the edge of the judge's patience. “I can assure the court that Dr. Cordier's testimony will connect up.”
Farnsworth motioned the two lawyers to sidebar. “I still don't see how this relates to the novelty of AV/AS, Mr. Seeley.”
“Long-felt need, Judge.”
When a pressing problem, particularly of public health, has persisted for years, and finally one company comes up with a solution, that fact counts as evidence that the solution wasn't particularly obvious.
Fischler said, “I don't see how talking about numbers of victims makes that point.”
“I'm sure,” Judge Farnsworth said, watching Seeley over her half-frames, “that if Mr. Seeley doesn't very quickly connect up Dr. Cordier's testimony to his theory, you will renew your objection.”
When Seeley returned to him, Cordier seemed confused by the conversation between the judge and lawyers outside his hearing and the jury's. Television in Maseru, if the physician had the time to watch, probably had few courtroom dramas.
“In your clinic in Maseru, Dr. Cordier, why are you only able to get treatment to less than one in twenty of the children who need it?”
“There are three reasons-”
Anticipating that this was going to sound rehearsed to the jury, Seeley broke in. “Let's take them one at a time.”
“Expense, of course. We have succeeded in getting the price for antiretroviral treatments down to two hundred dollars a year, but many patients develop a resistance to these first-line cocktails, and we need second-line treatments like Atanazavir that can cost three to six thousand dollars a year. Remember, these are people who may earn less than a dollar a day. Foundations like the Gates Foundation help out. Also, many drug companies are lowering their prices, or licensing generics free-”