Losing Faith Part 23

Aaron savors the moment. The defense will certainly get its fair share of judicial contempt during the trial, but it's always nice when the other side p.i.s.ses off the judge. Better than that, he'll have Sam Rosenthal at his side at trial, and not testifying against him.

47.

Rosenthal wants to put on a reasonable-doubt defense, where they poke holes in the prosecution's evidence and hope that gives rise to sufficient uncertainty about Aaron's guilt to obtain an acquittal. It's a tried-and-true strategy to be sure, and one that Aaron has used more often than not. And yet for his own defense, Aaron thinks it's lacking. He's convinced a jury will not let him go free without being firm in the belief that someone else must ultimately be punished for Faith's murder. In his mind, that means the defense must present an alternative theory of the crime clearly identifying Faith's murderer.

There's very good reason why Rosenthal disagrees. Without the vast resources of the prosecution-the ability to compel testimony, conduct forensic a.n.a.lysis, review computer databases for matches to DNA and fingerprints-the defense can easily get it wrong. They could end up pointing the finger at someone who turns out to have an airtight alibi.

Still, Aaron has pressed for a defense that's uncompromising in the claim that Nicolai Garkov murdered Faith. After all, it's not every defendant in a murder trial who can point to a terrorist with equal motive. But, as Rosenthal has countered, putting their eggs in the Garkov basket is not without problems. Among other things, the defense has no evidence linking Garkov to the murder, not to mention that he was in jail at the time of the attack.

Plan B is Stuart Christensen, Faith's husband. Aaron knows from his pillow talk with Faith that Stuart became accustomed to a certain type of lifestyle, and that she completely financed it. More than once she told Aaron that her husband would be up s.h.i.+t creek without a paddle if they divorced. The apartment was in her name alone, purchased back when she was a partner at Windsor Taft, and she brought all of their net worth into the marriage, which meant that it wasn't marital property, and she could take it with her when they split. Aaron also knew that big law firms offered their partners outsized life insurance policies, and so he suspects that Faith's husband profited considerably from his wife's death.

Rosenthal is against this approach too, pointing out that going after Stuart has even greater risks than accusing Garkov. For one thing, he might have an airtight alibi too, and unlike Garkov, he wouldn't know the kind of people who would commit murder for hire. For another, there is a great risk of jury backlash when you accuse a member of the victim's family of murder.

Mainly to placate Aaron, Rosenthal agrees to reach out to both men in the hope that they'll say something that the defense could use. Everyone understands, however, that it's a very long shot.

Stuart Christensen meets Rosenthal's expectation. His lawyer, Jennifer Bennett, is nice enough about it-high-priced white-collar pract.i.tioners never p.i.s.s off potential business referrers-but the message is clear: her client will do everything he can to make sure Aaron is convicted.

They expect Clint Broden to also decline, but to their very pleasant surprise, Broden says that Garkov will meet with them. Aaron knows not to get his hopes up, as Broden is way too smart a lawyer to allow his client to say anything that would incriminate him. But the fact that they're granting the defense an audience means Garkov isn't cooperating with the prosecution.

And that's grounds for cautious optimism.

AFTER GOING THROUGH THE double set of security procedures, Sam Rosenthal and Rachel London are greeted in Garkov's entry foyer by the tall Russian, decked out in a purple velvet bathrobe, as if he's channeling Hugh Hefner. Clint Broden is more appropriately dressed, but at a foot shorter than his client, he looks something like a child playing dress-up.

Aaron wanted to be present-to stare Garkov down if for no other reason, but home arrest prohibited that kind of showdown. The defense could have made a request to Judge Siskind for special dispensation, but that would have given the prosecution notice, which likely would have caused Broden to refuse to meet. So Rosenthal and Rachel are without their client.

Ever the host, Garkov brings his guests into the living room, with its wall of windows overlooking Central Park. Sam and Rachel arrange themselves on one sofa, while Garkov and Broden take the sofa opposite them.

"Quite the fireplace," Rosenthal says, remarking on the open lion's mouth.

"Thank you," Garkov says. "I saw it in a palazzo near Lake Como, and I just had to have it. Bought the entire G.o.dd.a.m.n palazzo, actually, just so I could bring the fireplace over here."

Rosenthal politely smiles, but he's eager to get down to business. "I suppose the first and only thing on our agenda is to ask if you'll be testifying for the prosecution."

Broden answers for his client. "No. Needless to say, they asked, they threatened, they offered inducement, but Nicolai is not going to help them."

"What about helping us?" Rachel says, her smile focused like a laser on Garkov.

"No. I'm afraid not," Broden says, grabbing Garkov's arm to ensure that he doesn't speak out of turn simply because he's being asked a question by a beautiful woman. "If either side calls Mr. Garkov to the stand, he will a.s.sert his Fifth Amendment privilege against self-incrimination."

That settles it then. Garkov is a dead end.

"That seems like the kind of thing you might have told us over the phone and saved us the trip here," Rosenthal says.

Broden smiles. "There's something else. Something that Nicolai wanted to tell you face-to-face."

All eyes turn to the Russian, who clearly has no qualms about being the center of attention. He holds everyone's stare until the silence is palpable.

"I was hoping you could convey a message to Aaron Littman for me," Garkov finally says.

Rosenthal says, "Okay. What is it?"

"Thank you."

Rosenthal knows it's a setup, but he's got to play it through nonetheless. "And for what are you thanking him?"

"For killing Judge Nichols, of course," Garkov says with a full-on smile. "I know I didn't do it, and so I can only a.s.sume that he did. So, please tell him: thank you."

IT'S LESS THAN A five-minute walk from Trump Tower to Cromwell Altman's offices, but the silence makes it seem longer. It isn't until they're in the elevator that Rosenthal finally opens his mouth.

"Don't let what Garkov said upset you," he quietly remarks. "All we care about is that he's not going to help the prosecution. Without Garkov's testimony, they can't prove any kind of blackmail. And without that, there's no motive."

Rachel is not a.s.suaged. "I really thought it was him," she says.

"And it still might be him, Rachel. Garkov's a sociopath and a murderer. What makes you think he's telling us the truth?"

"I don't know. Maybe it's because I don't see any advantage he gains from lying to us."

"It doesn't matter," Rosenthal says in a stern voice. "Trials aren't about the truth. They're about winning. And if Garkov is sitting this one out, then our best shot is to put the blame directly on him, just like Aaron wanted. So that's exactly what we're going to do."

48.

On Sunday evening, the night before the trial is scheduled to begin, Aaron feels the full weight of what is about to unfold. He has done yeoman's work to keep it all together in the days since his indictment, but this night, lying in bed beside his wife, all that emotion is ready to burst free.

Aaron's not so naive as to think that the last two months, in which nothing has been normal, are a good indicator of future happiness, but he's also not so far gone that he doesn't recognize the possibility that he's being given the rarest of all gifts: a second chance.

"I love you so very much, Cynthia," he says, choking on the words.

Cynthia looks at him and is also near tears as she kisses him on the lips very softly. "I love you too," she says. "And we're going to get through this. Together."

The irony is powerful enough to bring a broad smile to his face. For the first time in . . . he doesn't know how long, Aaron is optimistic about the future.

Even as tomorrow, the trial of his life begins.

A LINCOLN TOWN CAR picks Aaron up in front of his home to take him to court. As he gets in the backseat amid the popping flashes, Aaron suspects the spectacle in front of the courthouse will be twice as bad.

And holy G.o.d, it is.

There are actually two federal court buildings in lower Manhattan. The original structure was built in the 1930s and has the majestic columns denoting a courthouse of that era. The newer building was erected twenty years ago and is positioned diagonally behind its predecessor. It has two entrances that are open to the public, which means that at least the press factor is cut in half at each one.

Aaron opts for the back entrance, which is still blocked by at least a hundred reporters. He smiles for the cameras and then quickly ducks inside. Cynthia will come separately, the thought being that if she doesn't arrive with Aaron, she might not attract the attention of the paparazzi. Aaron knows now, however, that is very unlikely.

Inside the courtroom, the gallery is at capacity. Even so, when Cynthia finally arrives, she's allowed to sit in the front row behind the defense table. All have agreed it's best if the girls are not present for any of the trial, the thinking being that if the jury believes Aaron is subjecting his children to the prurient details of his life, they'll be more likely to be angry with him than feel sympathy for his daughters.

Faith's husband, Stuart, sits on the opposite side from Cynthia, directly behind the prosecution team. He will almost certainly be a witness against Aaron but is permitted to watch jury selection-or voir dire, as Judge Siskind prefers to use the French term-and opening statements, after which the judge has ordered that all potential witnesses will be barred from the courtroom, so as not to taint their testimony. Erring on the side of caution, Cynthia will also be absent during the testimony, just in case she's needed as a character witness. It is for that reason, too, that Rachel is back at the firm and not here.

Jury selection goes quickly. Most federal judges don't stand for the weeks of vetting that can occur in the state courts. The questions designed to ferret out bias are submitted by the lawyers, and then Judge Siskind asks the prospective jurors only the ones she deems relevant. Proceeding in that fas.h.i.+on results in all twelve being seated in less than a day.

Although some lawyers swear that picking a jury is the most important part of any trial, Aaron likens it more to the scoring system of Olympic judges-you throw out the high and the low, and the rest are going to be fine. The low-those predisposed to convict-means anyone with a background in, or penchant for, law enforcement. The only juror who fits that bill is a retired air force colonel who now teaches sociology at John Jay College. Had he been in the first chair, Aaron might have struck him, but Rosenthal waved off Aaron's concern, reasoning that the professor is an academic more than a military man, and that makes him more inclined to acquit on grounds of reasonable doubt.

In the end, the jury's composed of six men and six women. Five of them appear to be minorities. They range in age from twenty-two to seventy-two.

Aaron considers it a fair enough jury, at least insofar as he can make any a.s.sessment based on physical appearance and the answers to rudimentary questions intended to root out only the most severe prejudices. If he's ultimately convicted, he won't blame it on the jury composition, which honestly is all you can ask out of voir dire.

THE NEXT DAY, JUNE 5, begins with opening statements. Victoria Donnelly is no more pleasant in front of a jury than she is in real life. She still carries herself with that particularly noxious combination of superiority and contempt for others. Perhaps the jury will find her to be a no-nonsense prosecutor, but Aaron can't help but think that it's good for him that Donnelly has taken the lead and not Covello or, as he once threatened to do, Fitz himself.

It's immediately apparent that Rosenthal's decision to rush to trial hasn't impacted Donnelly's preparation. She speaks without notes, and the exhibits she plans to introduce appear on cue on the forty-eight-inch television screens on either end of the jury box.

"Think of my opening statement like the printout you get from Google Maps," Donnelly tells the jury, a rare instance when she smiles.

It was once part of the U.S. Attorney's Office's standard opening-statement monologue to tell the jury that they were presenting a road map. Apparently, this is their effort to get with the times.

Aaron's given instruction to enough clients to know not to react to anything Donnelly says. Nevertheless, when Donnelly tells the jury about his affair with Judge Nichols, it takes all of his willpower not to turn to the gallery to ascertain Cynthia's reaction.

"Ladies and gentlemen," Donnelly says, "the defendant was in love with Faith Nichols. They had a torrid affair during which nothing else mattered to him. Not his wife of more than twenty years, not his children, not even his professional standing. You will hear evidence that, subsumed by this obsessive love, Mr. Littman did something unthinkable for a defense lawyer. He appeared as counsel for a client named Eric Matthews in a case in which Judge Nichols-his lover at the time-was the judge. This type of conflict of interest could, and indeed should, result in a lawyer never practicing law again."

Donnelly pauses and shakes her head in disgust. Aaron notices that some of the jurors seem to squirm in their seats.

"If that was the only infraction Mr. Littman committed," Donnelly continues, "it would be a matter for the disciplinary committee that governs attorney conduct, and not you, ladies and gentlemen. But after Eric Matthews, the defendant represented Nicolai Garkov. Mr. Garkov was on trial for very serious crimes. So serious, in fact, that he likely would have received life in prison if convicted. And so when Faith Nichols became his judge, Mr. Garkov immediately hired Aaron Littman, even though he already had a very competent trial attorney representing him. Why did Mr. Garkov do this? For one simple reason: he knew about the defendant's affair with Judge Nichols, and he was blackmailing Mr. Littman to blackmail her. You see, ladies and gentlemen, unlike this trial, where you, the jury, will ultimately decide guilt or innocence, Mr. Garkov waived his right to a jury, which meant that Judge Nichols, and she alone, would render the verdict. It was a very simple plan. Mr. Garkov told his new lawyer, Aaron Littman, that he was to convince his lover, Judge Nichols, to find him not guilty, or else he'd go public about their affair, which would end both of their careers.

"And that's precisely what Mr. Littman set out to do. The evidence will show that the defendant met with Judge Nichols right before she was murdered," Donnelly says, without explaining what that evidence would be. "They met in Central Park at night, a place where no one would see them. And when they did, the defendant told Judge Nichols about Mr. Garkov's threats."

Aaron scribbles on the legal pad in front of him, OBJECT! but Rosenthal dismisses it with a shake of the head. Jurors often view objecting during an opening statement as discourteous, and truth be told, Aaron can't recall ever having done it himself. That being said, Donnelly has gone far beyond what is permissible under the rules, making arguments based on inferences rather than merely recounting what the evidence will be.

"But Judge Nichols told the defendant that she would not compromise her office," Donnelly continues, as if there is no doubt that this is what occurred, even though there is no possible way she could know what Judge Nichols said. "And that meant that Mr. Littman would be disbarred for sure, not to mention that his wife might divorce him when news of his extramarital affair became public. And so in the heat of the moment, Aaron Littman beat Judge Nichols to death."

It's a truism of criminal practice that only two people know what actually happened-the victim and the perpetrator. In a murder case, that means no one who knows the truth is going to reveal it. And yet Donnelly has gotten a lot of it right.

SAM ROSENTHAL COULD EASILY make it to the podium without his cane. Yet he leans on it heavily to make the five-foot trek, an unspoken communication with the jury that he is a man who has known struggle.

"Ladies and gentlemen of the jury . . . I disagree with much of what Ms. Donnelly told you," Rosenthal says in a slow voice, almost like he's sharing a sad story. "About the evidence indicating Mr. Littman's guilt, of course. But about so much more, as well. Even about the purpose of our opening statements. Ms. Donnelly told you that her opening statement was a map. I don't see it that way at all. I believe that what Ms. Donnelly and I tell you to begin this case is a promise. No, it's even more than that. It's a sacred vow about what each side will demonstrate during this trial. And like all vows, be wary of those who make them cavalierly and then do not follow through."

Aaron wishes Rosenthal chose a different phrase. Having never been married, Rosenthal might not have made the connection to Aaron's own broken marriage vows.

"Ms. Donnelly promised you a great many things in her opening statement," Rosenthal continues, his voice growing stronger. "She promised you proof of an affair between Mr. Littman and Judge Nichols. She promised you a motive: blackmail. She promised you that at the end of this case, you would not have a single reasonable doubt that Aaron Littman committed this brutal murder."

Rosenthal stops and tries to make eye contact with each of the twelve in the jury box. It appears to Aaron that most of them have accepted his lawyer's gaze.

"I make you one promise, and one promise only," Rosenthal says with a closing crescendo. "And that is this: Ms. Donnelly will break her promises. The government, with all its vast powers and resources at hand, will not prove Mr. Littman's guilt beyond a reasonable doubt. Of that you can be certain."

With that, Rosenthal limps back to counsel table and sits down. Aaron had wanted Rosenthal's opening to go on longer, hitting back at the evidence and setting up Garkov, but Rosenthal overruled him.

Aaron is questioning Rosenthal's judgment right up until the moment he spies Donnelly's scowl. It is the surest measure of the effectiveness of Rosenthal's presentation. Perhaps the old man was right to quit when he did.

49.

The afternoon begins with Victoria Donnelly calling her first witness to the stand. Stuart Christensen is wearing a black suit, undoubtedly to remind the jury that he's still in mourning.

In something of a monotone, Stuart answers Donnelly's open-ended questions to explain that he suspected his wife was having an affair, and one night he followed her to the Ritz-Carlton, and then waited three hours for her to leave.

"Did you see who she was meeting?" Donnelly asks.

"Yes. She came out of the hotel holding Aaron Littman's hand." Even without Donnelly's prompting, Stuart knows to make the in-court identification. "The man I saw with my wife is that man, there," Stuart says, pointing at Aaron.

As revenge fantasies go, this must rank pretty close to the top. You may have f.u.c.ked my wife, but now I'm going to send your sorry a.s.s to jail for the rest of your life.

"Let the record reflect," Donnelly says quickly, "that the witness has identified the defendant, Aaron Littman."

Aaron wants to scream Liar! Instead, he leans over and whispers to Rosenthal: "He never saw us. Faith and I never left together."

Victoria Donnelly has already asked her next question, and rather than answer Aaron, Rosenthal instead gets to his feet and shouts, "Objection! Hearsay."

Judge Siskind seems surprised, as it's the first time Rosenthal's objected. "Counsel, please approach," she says.

Although Aaron is technically not included in the request that counsel approach, he joins Rosenthal at the bench anyway. When everyone is a.s.sembled, Judge Siskind places her hand over the microphone in front of her and leans forward to address the lawyers below her.

"It's your objection, Mr. Rosenthal, so it's your turn."

"Your Honor, Ms. Donnelly's question suggests that she's trying to elicit from this witness the testimony about Judge Nichols's consideration for a nomination to the Supreme Court," Rosenthal says. "My objection is that such testimony should be precluded on hearsay grounds because Judge Nichols was his sole source for that information. As a result, he's really just testifying to what she told him, and that's cla.s.sic hearsay."

Thank G.o.d Rosenthal was listening to Donnelly and not his complaint that Stuart Christensen was lying, Aaron thinks. This is a critical issue for the defense. If Donnelly can get into evidence that Faith knew her Supreme Court nomination was linked to Garkov's conviction, the prosecution has gone a long way to show motive.

Judge Siskind's eyebrows rise, suggesting she thinks Rosenthal's made a good point. She turns to Donnelly. "Any reb.u.t.tal, Counselor?"

"This witness will establish Judge Nichols's mental state," Donnelly counters. "Therefore his testimony meets an exception to the hearsay rule. As the victim's husband, he was well aware that Judge Nichols believed she was under consideration for the Supreme Court. That belief caused Judge Nichols to reject the defendant's attempt at blackmail, and that's what we're putting before the jury."