Losing Faith Part 28

"Perhaps this will refresh your recollection, Ms. London." Donnelly opens a black loose-leaf binder, which Rachel a.s.sumes contains the notes one of the FBI agents took during her interview. With her head in the notebook, Donnelly says, "During that interview, I asked if you had any reason to think that Mr. Littman did not kill Judge Nichols. Do you remember me asking that question?"

"I do."

"But in response, you didn't say that you were with Mr. Littman at the time of the murder, now, did you-yes or no?"

Rachel smiles. The Answer me, yes or no! tactic might be a staple on TV dramas, but it never works in real life.

"I recall that I answered that there were a million reasons why Mr. Littman didn't kill her. Included among those million reasons was the fact that he was with me at the time of the murder."

"But you never said that, did you?"

"You didn't ask me what the reasons were."

Rosenthal shouts, "Objection!" but Donnelly is yelling over him: "In fact, I did, and you refused to answer!"

"Objection!" Rosenthal shouts again.

"Counsel!" Judge Siskind exclaims over both of them. "Approach right now!"

At the bench, Rosenthal hisses, "Your Honor, I am appalled. As Ms. Donnelly well knows, Ms. London did not answer the question on the advice of her lawyer during a voluntary interview. Ms. London had the absolute right not to answer. Given that the prosecution previously urged the court to rule that Mr. Garkov's invocation of the Fifth Amendment was too prejudicial for the jury to hear, it's unconscionable for them to suggest to the jury now that there was anything incriminating about Ms. London not answering a question."

"Ms. Donnelly, is this true?" Judge Siskind asks. "Because if it is, I am very unhappy. At least the defense raised the issue of Mr. Garkov's taking the Fifth before just throwing it out there in front of the jury."

Donnelly must know that she's on the wrong end of this one, but she doesn't shame easily. "Your Honor, there is no doubt in my mind that this witness is lying to protect Mr. Littman. Why else wouldn't she tell us during her interview that she could alibi him?"

"Not interested in your mind, Ms. Donnelly. I only care about the evidence you're submitting to the jury, and that's not going to include innuendo or half-truths. Now, here's what I'm going to do. I'm going to instruct the jury that the last few questions and answers should not be considered by them in their deliberations because Ms. London's prior interview by the government is of no importance here. All that matters is her testimony today."

"Your Honor," Donnelly says in a pleading voice, "we have the right to impeach her testimony with prior inconsistent statements."

"That you do, Ms. Donnelly, if you had any prior inconsistent statements. Tell me one and I'll consider allowing you to use it. But her refusal to answer a question is not a prior inconsistent statement."

Donnelly returns to the podium to resume her cross-examination. The smart move is for her to regroup and carefully dissect Rachel's testimony. But her expression makes clear that she's not going to pursue a surgical attack. She's out for blood.

"Ms. London . . . on direct questioning, you said that your relations.h.i.+p with Mr. Littman was professional. Mentor-slash-mentee is the phrasing I believe you used. But the truth is that you're in love with him, aren't you?"

Rachel flashes on all of her lying clients over the years. She's already lied about Aaron's presence with her in the war room, but somehow disavowing her love seems harder to do. It takes her only a moment-a pregnant pause, at best-but it's there.

She then says, "Aaron Littman and I work together. Nothing more. What you're implying is an insult to every woman in the workplace, Ms. Donnelly. How would you feel if someone said that you only got to prosecute this case because you were in love with the U.S. attorney?"

Bull's-eye. Donnelly asks a few more questions, largely so she can end on something other than Rachel's rebuke, but when Rachel's testimony ends, that's likely all the jurors will remember.

That, and the fact that she said Aaron couldn't have killed Faith Nichols because he was beside Rachel London at the time of the murder.

57.

Aaron spends that evening in a Cromwell Altman conference room, essentially running lines. "A murder trial is no time for improv," Rosenthal says when Aaron deviates from the script.

Only cross-examination will be unrehea.r.s.ed, and even that has been practiced at length. Rachel has been tasked with playing Donnelly's part, sneer and all. If anything, Aaron's even better at deflecting Rachel's accusations than he was at providing the self-serving responses Rosenthal's questions elicited.

At ten o'clock, Rosenthal announces, "If it all comes in that well tomorrow, I think we'll be way ahead of the game. Go home and get some sleep, Aaron."

Rachel shares the elevator with Aaron.

"You were great today," Aaron says.

"Thanks. But tomorrow's what really counts. No pressure, though."

A sad smile comes to her lips. It's Rachel's way of saying that Aaron's not out of the woods yet.

CYNTHIA IS SITTING UP in bed reading when Aaron enters the bedroom. She looks sincerely happy that he's finally home, and Aaron lets the feeling of being welcome wash over him.

"So, are you ready?" Cynthia asks.

"We'll know tomorrow, I guess. But if it doesn't go well, it's not going to be for lack of preparation."

"It's not that hard," Cynthia says. Then, with a sly smile, she adds, "It's kind of ironic, don't you think? Now I've testified, and I've even been cross-examined by Victoria Donnelly, but this is new to you. It's a first. I'm giving you legal advice."

"So . . . what's your advice?"

"Be yourself. The jury will like you."

"I doubt that. The thing about criminal trials is that the jury wants to convict. That's the only happy ending. If they acquit, it just means that no one pays for the crime."

"That's why we're giving them a different happy ending to want. We're giving them a love story. They'll see that if you're acquitted, we can be together."

If only what she said were true, he thinks. Unfortunately, he knows otherwise.

The jury will not be so interested in Aaron's having a happy ending. They're only going to care about justice for Faith Nichols.

58.

It is nearly gospel among defense attorneys that when you put your client on the stand, nothing else matters. The forensic evidence, the other witnesses, expert testimony, all of it goes away. If the jury believes they're listening to a truth-teller, they acquit. If they think the defendant is trying to pull something over on them-and it doesn't even matter about what-they convict.

Simple as that.

It's the reason so few defendants take the stand in their own defense. Only the most gifted liars can pull it off.

Now it's time for Aaron to see if he falls into this dubious category.

The strategy is for Sam Rosenthal to address the most damaging evidence first. This will allow the questioning to end on a high note.

And so, after establis.h.i.+ng Aaron's background, Rosenthal gets right to the stuff that matters. "Did you engage in a s.e.xual relations.h.i.+p with Judge Faith Nichols?"

"Absolutely not. Outside of a few times we talked at business functions, I never spoke to her except in court."

"Yesterday your wife testified that you and she met at the Ritz-Carlton hotel. Do you recall that testimony?"

"Yes. Quite honestly, it's something we never dreamed we'd have to share with the entire world, no less our teenage daughters. She saw it on an episode of Modern Family. The characters pretend to be other people and meet at a hotel bar. She wanted to try that and then it became part of a 'date night' routine for us."

"Did there come a time when this date-night ritual stopped?"

"Yes. For one reason or another, our schedules didn't sync for a few weeks, and then . . . well, I was charged with this crime and that pretty much meant the end of date night for me."

There are some chuckles in the gallery. A moment of levity that hopefully humanizes Aaron in the jury's eyes.

"Did you ever see Judge Nichols at the hotel?"

"No, never . . . I'm sorry, I take that back. I recall talking to her briefly at a dinner to honor George Vanderlyn, who was her former boss and also someone I know professionally. She was seated at the table with my law firm, an a.s.signment made at random by the organizers of the dinner. I excused myself that evening at maybe nine o'clock, because it was the first of those special date nights with my wife. We decided it would be fun because I was already at the hotel for the business dinner and so it fueled the fantasy a little."

Rosenthal pauses. So far, so good.

"Mr. Littman, I'm going to direct my questioning to something else now. Roy Sabato testified that he told you Nicolai Garkov had damaging information about you. Do you recall that?"

"I recall him testifying to that, yes."

"Is your recollection of that meeting consistent with Mr. Sabato's testimony?"

"The way I remember it, he asked me to take on the matter, and I initially told him that I was very busy. Then Roy offered me the hundred thousand dollars for the initial meeting, and told me that he was concerned that if I didn't agree to it, Mr. Garkov would reveal something about me. I didn't take the threat seriously, of course. Desperate defendants have been known to say whatever it takes. But the practice of law is a business, and I did take the offer of one hundred thousand dollars seriously. So I ultimately agreed to meet with Mr. Garkov."

Admitting that Sabato relayed Garkov's threat was risky, but in the end, it was the only play. For Aaron to deny it made little sense. What possible reason would there be for Sabato to lie about that?

Rosenthal asks, "At that time, did you even know that Faith Nichols had been a.s.signed as the judge on the Garkov case?"

"No. The judicial a.s.signment occurred very late at night the day before, and only people who were involved in the case got official notice, which, of course, didn't include me. When Mr. Sabato asked me to meet with Mr. Garkov, I believed Judge Mendelsohn was still presiding over the case."

This, too, wasn't true, of course. But Sabato testified he couldn't remember mentioning that Faith had been a.s.signed to the case, and that opened the door for Aaron to lie without fear of contradiction.

"Did you meet with Mr. Garkov after you met with Mr. Sabato?"

"Yes, I did."

"And what did you two discuss?"

Aaron turns away from Rosenthal so he's looking at the jury. "I need to be careful here because my discussions with Mr. Garkov are protected by the attorney-client privilege, and I have been told by Mr. Garkov's current counsel that he does not waive that privilege. As a result, I can't legally reveal what he said to me or what I said to him. But I can testify about what Mr. Garkov did not say, and he most definitely did not threaten me, nor did he ask me to blackmail Judge Nichols in any way, shape, or form."

Rosenthal walks back to the counsel table, leaning heavily on his cane as he does. Once there, he picks up the stack of phone records.

"Did you ever speak to Judge Nichols by phone?"

"We had frequent telephonic conferences during the Eric Matthews case. But whenever that occurred, all counsel were on the phone. So, if your question is whether I ever spoke to Judge Nichols one-on-one, the answer is no. I would never do that because it's improper to have ex parte contact with any judge that you're appearing before."

"Please explain to the jury what ex parte means."

"I don't know the literal translation from Latin, but in practice it means that whenever a lawyer speaks to a judge, the lawyer for the other side must also be present. That's true for phone calls and in court appearances. It's even the case when we send letters. The other side gets a copy. That's just standard operating procedure."

Rosenthal asks for permission to approach the witness, and after Judge Siskind grants the request, Rosenthal again uses his cane, clanking it against the floor with each step, as he makes the fifteen-foot trip from the lectern to the witness box. Once there, he hands Aaron the stack of phone bills and then takes even longer to make it back to the podium to resume his examination.

"Mr. Littman, I've handed you the evidence previously submitted by the prosecution," Rosenthal says, "that lists all of the phone calls to and from Judge Nichols's cell phone. Let me ask you point-blank. Did you make or receive any of those calls?"

"No, I did not."

"Have you ever purchased a prepaid phone?"

"No," Aaron says with a head-shake. "I use the cell phone that my law firm provides me."

It's time for Rosenthal to head for home. The night of the murder.

"Mr. Littman . . . did you see Judge Nichols on the night she was murdered?"

"No."

"Where were you that evening?"

"I was at the office all night. Other than a few minutes here and there, I was in a conference room with Rachel London. She called it the war room."

"Ms. London testified that she left before you that night, though. Is that true?"

"That is my recollection, although I did leave shortly thereafter."

There's one problem with this story. There is no evidence of how Aaron got home that night.

His usual practice, like all the Cromwell Altman partners, was to use the firm car service and charge a client for the ride. But that created a paper trail, like the voucher Rachel relied upon to show she had been in the office until a little after midnight. On a few occasions, Aaron walked home, so at least it was not the case that every night was accounted for with a voucher, but he could not plausibly claim that he walked home on a cold evening after midnight.

Rosenthal decided that it was better to bring the point out on direct than to leave Aaron floundering to explain during Donnelly's cross-examination. That way, when she did go after him about it, it would seem like old news. At least that was the hope.

"Mr. Littman, how did you get home that evening?"

"Frankly, at first I didn't remember. It was just another late night at the office, and that's pretty much my regular practice. Even when I heard the next day that Judge Nichols had been killed, I didn't think I'd have to account for my whereabouts. Of course, when the charges were filed, we went back to the vouchers but didn't see one for that night. That could mean the voucher was lost, or that I grabbed a taxi that night."

"Why would you take a taxi rather than the firm's car service?"

"Any number of reasons. There might not have been a car available and a taxi pulled right up. The yellow cabs hover around the area all the time, trying to steal business from the car service. It's also possible I needed to get something from the Duane Reade, which is a block or two from the office, and it's open twenty-four hours. Sometimes after leaving the office, I'll walk a few blocks just to unwind a bit and then hail a cab. Honestly, I just don't remember what I did on that particular night. I wish I did, but I don't."