Losing Faith Part 26

Sabato looks past Donnelly to Aaron. He gives the subtlest shake of his head, perhaps to suggest that he's not enjoying this.

"That's when I told Mr. Littman that Mr. Garkov had incriminating information about him that he would reveal to the public if Mr. Littman did not agree to meet with him."

"Did you tell Mr. Littman that Judge Nichols was now the judge presiding over Mr. Garkov's case?"

Sabato hesitates. Aaron knows the answer is yes, for he recalls clearly it was that disclosure that put the fear of G.o.d in him. Either because Roy Sabato truly does not recall, or because he's trying to curry some favor with Aaron, he says, "I just don't remember. I may have. I just can't be sure."

Donnelly's nostrils flare, a pretty good indication that Sabato was previously more definitive with her on this point. She can't turn on her own witness, however, and so Sabato's testimony will have to stand as the last word on the discussion.

"After you told Mr. Littman of Mr. Garkov's threat to reveal this incriminating information, did Mr. Littman change his mind and agree to meet with Mr. Garkov?"

"Yes."

"Your witness," Donnelly says, smiling at Rosenthal.

With Roy Sabato, Rosenthal finally has a compliant witness, but only so far. Sabato readily concedes that Garkov may have been lying about actually having incriminating evidence about Aaron, but he will not budge on his recollection that he was clear in relaying the message to Aaron, or Aaron's capitulation after the threat was made.

The prosecution has now established that Aaron was being blackmailed. In other words, they have proven motive.

53.

Roy Sabato is the last government witness. When he steps down, Donnelly announces in a triumphant voice that the government rests.

"Let's adjourn for the evening then," Judge Siskind says. "Tomorrow morning we'll deal with the defense's motions."

For Aaron, the trial now has the feel of halftime in a football game that's a blowout. There's still a lot of time left to mount a comeback, but it seems that all is already lost.

Aaron thinks back to Donnelly's opening: the promises she made to the jury, the ones that Rosenthal said she could not keep.

Proof of the affair. Check.

Proof of communications between him and Faith on the night of the murder. Check.

Proof of blackmail by Garkov. Check.

Prove that Faith was going to convict Garkov. Check.

Some points might be weaker than others, but in its totality, it's more than enough to convict. There's no escaping the fact that he's in serious trouble.

That is, unless Nicolai Garkov can save him.

Tomorrow will be the decisive moment of the trial. If Judge Siskind rules the defense can get Nicolai Garkov's a.s.sertion of the Fifth Amendment before the jury, Aaron's chances of acquittal become real.

But if she goes the other way, Aaron's equally certain that he's going to be convicted.

THE NEXT MORNING THE courtroom has an air of excitement. Word has leaked out that today's session will include an appearance by Nicolai Garkov, which has brought the press to a lather.

"On the record," Judge Siskind says, looking down at the court stenographer. "I have excused the jury for the day so that we may take up two items outside their presence. First, the defense has indicated it would like to make a motion for a directed verdict. After that, I will hear from the parties regarding Mr. Nicolai Garkov."

By her phrasing, unintentional or not, Judge Siskind has alerted both sides that the motion for the directed verdict-which, if granted, would end the case with an acquittal-has no chance of success.

Even though he now must realize this is a fool's errand, Rosenthal stands as if there's still hope.

"Your Honor," he says, "at this time, the defense requests that the court enter a judgment of not guilty. Even applying the very liberal standard of permitting the prosecution every reasonable inference, there is simply not enough evidence to support a guilty verdict, and therefore the case shouldn't go to the jury."

Judge Siskind puts up her hand, directing Rosenthal to stop. Aaron knows that Rosenthal has more to say. He was planning on going through a point-by-point reb.u.t.tal of every government witness and every doc.u.ment submitted into evidence.

"I'm not sure I need to spend any more time on this, Mr. Rosenthal. I've considered the evidence, and without prejudging the ultimate issue of guilt beyond a reasonable doubt, it's certainly within the jury's domain to conclude the government has met its burden of proof. The evidence presented supports that the defendant and the victim were intimate, and the 9:48 p.m. phone call placed by Judge Nichols to Mr. Littman's office permits the inference that the defendant saw Judge Nichols on the night she was murdered, within the time window that this crime was committed. Mr. Sabato's testimony certainly leaves room for the jury to draw the conclusion that Mr. Garkov knew of the affair and was threatening to make it public if he was convicted, and Mr. Kagan's testimony suggests the odds of that happening were extremely high. Put together, it adds up to motive, means, and opportunity sufficient for a jury to conclude beyond a reasonable doubt that Mr. Littman committed this crime."

"Your Honor-" Rosenthal manages to get out before he sees Judge Siskind's hand again.

"I know what you're going to say, Mr. Rosenthal, and I'd be the first to concede that it's also possible that the jury might reject what I just said. But my point is that a reasonable juror could reach a guilty verdict based on the evidence presented. And that's the legal standard. So, on that basis, I am denying the defense's motion for a directed verdict."

Rosenthal sits down. The case will not be dismissed.

Siskind's not finished, though. "I am intrigued, however, Mr. Rosenthal, about the defense's motion with regard to Mr. Garkov. If I understand your position, you would like to call Mr. Garkov to the stand even though he has already notified both you and the prosecution that he will invoke the Fifth Amendment. Do I have that right?"

Rosenthal stands to address the court. "That's correct, Your Honor. The defense believes that Mr. Garkov killed Judge Nichols. Therefore we seek to ask him one question, and one question only: did you murder Judge Nichols?"

"But he's not going to answer," Judge Siskind says. "Isn't that precisely why this should occur outside of the jury's presence?"

"Respectfully, no, Your Honor. Could there be more probative evidence of Mr. Littman's innocence than that Mr. Garkov believes that if he answers the question of whether he is guilty of this crime, his answer will incriminate him? It would be a gross miscarriage of justice if the jury decided Mr. Littman's innocence or guilt without knowing that Mr. Garkov virtually confessed to the crime."

Judge Siskind smiles, but it's a gesture that could just as easily suggest that she's enjoying the give-and-take and not that she's inclined to agree. "Well, Mr. Rosenthal . . . I suspect that Ms. Donnelly is going to tell me it will be a gross miscarriage of justice if I rule in your favor. Is that the government's position, Ms. Donnelly?"

"Yes. Yes, it most certainly is, Your Honor," Donnelly says, coming to her feet. "Contrary to Mr. Rosenthal's claim, a Fifth Amendment a.s.sertion is not a confession. All it means is that Mr. Garkov, perhaps mistakenly, believes that if he answers the question it might lead-might lead-to admissible evidence indicating that he is guilty of some crime. Not necessarily the crime at issue in this case-the murder of Judge Nichols-but it could well be some other crime for which he fears incriminating himself. In Mr. Garkov's case, it's not difficult to see why he would a.s.sert that privilege. He's currently under indictment for numerous felonies, and he's a suspect in other murders. On top of which, it is the government's theory in this case that he committed various acts of blackmail. It is far more likely that Mr. Garkov fears incriminating himself in the crimes he's actually committed, rather than the one crime for which someone else has been charged and now stands trial-namely the murder of Judge Nichols. The defense's motion is little more than a request for permission to confuse the jury on what Mr. Garkov's invocation of his Fifth Amendment rights actually means. The jury will equate it with a confession, but Mr. Garkov's a.s.sertion may well have nothing to do with this crime at all."

Judge Siskind stares at Donnelly for a beat, then turns on Rosenthal. "I have to say, she's right, Mr. Rosenthal."

Rosenthal appears unfazed by Judge Siskind's rejection of his argument. In a calm voice he says, "Your Honor, there's a very simple solution to this problem. The government should immunize Mr. Garkov on this one subject."

The suggestion causes Aaron to sit up straighter. Sam didn't mention making this proposal, and if he had, Aaron G.o.dd.a.m.ned well would have objected. The last thing the defense wants is for Garkov to testify truthfully. He'll admit to the blackmail and deny the murder.

Siskind, like most judges, jumps at the opportunity for a possible compromise. "Okay, then. Ms. Donnelly, what's the harm if you grant Mr. Garkov immunity with respect to the Nichols murder? Especially because the government believes that Mr. Littman committed the crime, and therefore Mr. Garkov will presumably deny guilt."

"The problem, Your Honor, is that once Mr. Garkov has immunity, he can say anything he wants without fear of prosecution. Obviously, Mr. Garkov is no fan of the United States government. He might admit to the crime just to allow Mr. Littman to go free. Or he might admit to other crimes and then argue that the immunity grant covered them. But it's a moot point. We're just not going to do it."

Some judges draw a line in the sand at being told by counsel that they can't do something and might come back with Maybe I can't make you immunize him, but I can allow him to take the Fifth in front of the jury. Your choice.

Aaron hopes with all his might that Siskind might be that kind of judge. But with a slight shrug, she indicates that she's not.

"Okay, I've heard enough," she says. "It is exclusively within the province of the executive branch to bestow immunity, and so my hands are tied, Mr. Rosenthal. I'm going to take the witness's invocation of the Fifth Amendment outside the presence of the jury."

Rosenthal is on his feet for one last try. "Your Honor, we respect the court's ruling but request that we be permitted to tell the jury that the reason Mr. Garkov was not called as a witness was because of his a.s.sertion of the Fifth. Otherwise, the defense is greatly prejudiced because the jury will not know that we wanted to call him as a witness."

"I'm going to deny that request as well, Mr. Rosenthal. Telling the jury Mr. Garkov took the Fifth is no different than letting him take the Fifth in their presence."

And there it is. Rosenthal's big gamble and Aaron's best shot at a defense goes up in smoke.

AFTER A SHORT RECESS, AND with the jury still out of the courtroom, Sam Rosenthal calls Nicolai Garkov to the stand. The gallery is standing room only for the occasion, and additional court security is conspicuously stationed at the doors.

The tall Russian walks in dressed to the nines in a silk suit, alligator shoes, and a watch sparkling with diamonds. When he pa.s.ses Aaron, the son of a b.i.t.c.h actually winks. Then he settles into the witness chair as if it were a throne. It might as well be.

Clint Broden is present in the courtroom, and Judge Siskind grants his request to stand next to his client. With Garkov seated and Broden standing, they're roughly the same height.

Judge Siskind nods, telling Rosenthal to proceed. He doesn't even rise, a pa.s.sive-aggressive show of his dissatisfaction with this turn of events.

"Mr. Garkov, was Faith Nichols murdered on your orders?" he asks.

Garkov shows no emotion at the accusation. Not even a flicker. Broden hands him a three-by-five index card, and Garkov begins to read.

"On the advice of counsel, I a.s.sert my rights under the Fifth Amendment of the United States Const.i.tution and all similarly applicable rights available to me by law."

54.

The weekend is a welcome respite. The trial is not going well, and Aaron's unsure what type of defense they can mount to change that.

He and Cynthia are still on their first cup of coffee Sat.u.r.day morning when she says, "I've been thinking of a defense strategy." She stops for dramatic effect and then says, "You lie."

There's silence for a few moments, until Aaron breaks it with a laugh. "Well, it is the oldest defense there is," he says.

Cynthia's expression leaves no doubt that she does not consider this to be a laughing matter. "I'm dead serious, Aaron. You should take the stand and deny everything. The affair. The Garkov blackmail. Seeing her that night. Everything."

Aaron looks at Cynthia with surprise. His wife has always been the moral compa.s.s in the household, and yet now she's thrown away any sense of playing by the rules.

"Cyn, it's not that I'm above it, believe me. I just don't see it working. Jails are full of people who took the stand and denied everything. Even a.s.suming that I'm a good enough liar to pull it off-which I'm far from certain about-there's proof of the affair and the jury won't disregard it based on my self-serving denials. I'll just end up burying myself."

"What if it won't be just your self-serving denials?" she says.

"What . . . oh wait, you mean you?"

Cynthia smiles and nods.

"But you can't alibi me. Too many people saw you in the hospital. And even if you could, your testimony is hardly worth more than mine. The jury will a.s.sume that you'd lie to save the father of your children from jail."

"That's where Rachel comes in."

IT'S A SHORT LIST of people for whom you'd do whatever it takes to protect them. For Aaron, that list includes Lindsay, Samantha, and Cynthia, perhaps Sam Rosenthal too.

He's now about to find out if Rachel is willing to make that kind of sacrifice for him. He'd be lying if he said he didn't know how Rachel felt about him, and certainly she made it crystal clear that night at the Pierre. Yet he also knows that he's making an unreasonable request-asking her to put everything she has at risk for him-and he's offering her nothing in return.

Rachel arrives at the Littman apartment less than an hour after Cynthia laid out her plan for a defense based on a conspiracy to commit perjury. Cynthia has gone out, reasoning that Aaron will have more success persuading Rachel if they're alone.

At first Rachel seems happy to once again be in Aaron's company. When Aaron lays out the reason for their meeting, however, she looks far less pleased.

"You want me to testify that we were together the night of the murder?" Rachel says.

"Yes, but only if it's possible you could do that without being contradicted. Can you?"

"I guess."

"No, you have to be sure."

"Well . . . that was the night after Judge Nichols denied the order to show cause, right? I was drafting our brief to the Second Circuit to appeal the ruling. I met with the a.s.sociates at six-ish, and then not again until about eleven. But I can't swear that one of them didn't stop by to ask a question or call me in the office." She pauses, as if warming to the idea of what she's about to commit to doing. "But even if one of them did pay me a visit, it wouldn't have been for more than a few minutes. I could always say that you went to the bathroom or the kitchen for more coffee or something. The firm's car records will show the exact time I left, but I think it was around midnight." Then with a full-on smile that suggests that Aaron's asked her to go steady and not to commit a crime that carries a five-year prison term per lie, she says, "Yeah. I could definitely say you left after me, which puts you at Cromwell Altman, not Central Park, when Judge Nichols was killed."

For a split second, Aaron considers telling her no, that it's just too much for him to ask. But instead he says, "Thank you. I . . . I really don't know what else I can say. But that hardly captures my grat.i.tude. You may truly be saving my life."

She looks at him with laserlike focus, as if she can hold him there just with the power of her gaze, and then says with deadly seriousness, "You should know by now, Aaron, that I'd do anything for you."

EVEN THOUGH HE IS not being asked to lie under oath, the criminal risk for Sam Rosenthal is every bit as great as it is for Rachel or Cynthia. As the lawyer procuring what he knows to be false testimony, he'll be guilty of suborning perjury. Were he to be convicted of that crime, Rosenthal could very well spend the rest of his life in prison.

Aaron is in Sam's office when he proposes the plan. Rosenthal's first reaction is to question its wisdom, not its ethical propriety.

"I'm not the biggest Victoria Donnelly fan out there," Rosenthal says, "but she's a d.a.m.n good lawyer. Do you really think that the three of you can hold up under sustained cross-examination?"

Aaron has been thinking of nothing else since Cynthia first raised the idea. Every witness thinks that he can outsmart the questioner, and it's a very rare individual who can. It takes a combination of high intelligence and complete conviction in what you're saying. It's almost like what they say about beating a polygraph-if you believe it's true, it's not a lie.

"I'm not sure," Aaron says. "But it's the best shot I have. More accurately, it's the only shot."

"I wish I could disagree with you," Rosenthal says, "because this is pretty much a Hail Mary pa.s.s. But after Siskind screwed us on Garkov, we're left with recalling Stuart Christensen, which I don't advocate, or a character-witness defense and a closing argument based on reasonable doubt, which I think we both agree is a losing proposition."

"Like I said, Sam, this is my only shot."

Rosenthal exhales deeply. "I guess that means we better get everyone down here so we can start to prepare."

THEY SPEND THE WEEKEND practicing their lies.

On Monday, the curtain goes up on the performance. Cynthia will go first, followed by Rachel, and then Aaron will bring it home.

Sunday night, after the girls have gone to sleep, and Aaron and Cynthia are in bed, Aaron says thank you. He doesn't link his grat.i.tude to the perjury his wife will commit on his behalf the following day, and so it takes on a much deeper significance. Thank you for staying with me, he's saying.

Cynthia acknowledges it with a kiss but not further discussion. After a few moments of silence she says, "I was thinking, you know the way I'm always getting those requests from the University of Virginia med school to come teach for a year or two? Maybe it's time I accepted. With the girls both going off to college, this would be a great time for a change. Charlottesville is really beautiful, and it's only two hours from DC, so it's not totally cut off from civilization."