by Adam Mitzner
From the moment Faith saw Sara’s face this morning, she’s known that her nomination to the Supreme Court is going to rise and fall on the Garkov verdict. Nevertheless, now that it’s actually been confirmed, she feels thrown.
“So the whole innocent-until-proven-guilty thing is . . . what? A technicality?”
Kagan’s look hardens. He obviously didn’t expect this reaction. Truth be told, Faith didn’t anticipate it, either.
“Your Honor . . . I don’t mean to suggest in any way how you should carry out your judicial responsibilities,” he says with a deliberate tone, as if he suspects the conversation might be being recorded. “I’m here solely to apprise you that if Nicolai Garkov is convicted before July fifteenth, you’re going to be nominated to the Supreme Court of the United States. Any other result, and you’re not. And that’s that.”
“Jeremy, I’m relatively sure that Garkov is going to withdraw his request for a bench trial now that I’m the judge,” Faith says. “That’ll take it out of my hands and a jury will make the decision.”
Kagan is shaking his head. “I don’t know about the law, Your Honor. I’m just telling you the political reality here. It doesn’t matter who renders the verdict—you now own the Garkov result. If he’s convicted, you’re America’s judicial warrior against terrorism. But if he’s acquitted . . . well, you become the judge who let a terrorist go free.”
Faith knows that Kagan’s right, but that doesn’t make it any easier to digest. “And July is the drop-dead date?”
“Yeah. It wouldn’t hurt if it was over a little earlier, just to give us some breathing room. The working assumption is that so long as the April fourteenth trial date holds, there should be more than enough time.”
Faith has been thinking about a way out all afternoon. Kagan has shot down the jury option, but she has one other escape plan.
“What if I recuse myself? Let another judge own the Garkov case?”
Kagan seems confused. “Why would you do that?”
Of course that would be a politician’s reaction, Faith says to herself. All you need to do to get on the Supreme Court is make sure a terrorist gets the max, and you’re thinking of stepping aside?
“I’m just worried that the timetable won’t work out,” Faith lies. “You told me things were looking good before I got Garkov. If I recuse myself, there’s no risk that the case drags on past July and the timing does me in. I can pass it off to another judge and it’ll be just like I didn’t get it in the first place. I don’t have to give a reason for stepping aside. In fact, it’s customary not to disclose why.”
Kagan is shaking his head again, now even more vigorously. “I must not be making myself clear, Your Honor. This process is highly political. You don’t get to keep things to yourself. Everything you do—everything you have ever done—is going to be scrutinized by the press the moment the president nominates you. Hell, you remember that guy who got bounced because he smoked a joint? Now, I know times have changed since President I Didn’t Inhale, but my point is that the American people want nothing more than to see Garkov sentenced to death, and that’s precisely what the president demands if you want him to nominate you to the Supreme Court.”
“It’s not a death-penalty case, Jeremy. The government never brought a murder charge.”
Kagan waves off the mistake as if it’s nothing. “Whatever the maximum penalty, Your Honor, Garkov’s got to get that. Any other outcome and the president will pick someone else.”
“THE FLOWERS ARE LOVELY,” Cynthia says when she arrives home about an hour after Aaron. “Although I’m not sure what’s a bigger surprise: the flowers or that you’re actually home before me.”
Cynthia smiles, and Aaron is struck by how infrequently he’s seen that expression from her of late. And what a pity that is, because Cynthia’s smile can light up much more than a room, a stadium at the very least, and her emerald eyes positively shine when she’s happy.
“I was running away from the office,” Aaron says. “Donald Pierce, to be specific.”
Cynthia’s expression drops slightly. “I’d prefer you think of it as running to us, rather than away from work . . . but I guess I’ll take what I can get.”
Aaron accepts the rebuke. “Will the girls be joining us for dinner?”
“No. Lindsay is at rehearsal and Sam is working on some project with Olivia.”
“In that case, why don’t we go out for dinner? Caffe Grazie?”
“Wow. I don’t know what I did to deserve such attention from you—flowers and my favorite restaurant.”
What she did, Aaron thinks, is not give up on him when he lost his mind and betrayed her. It hardly matters that she didn’t know she was doing it; he still has a lot of making up to do.
At dinner, Cynthia appears to be in very good spirits. The two glasses of wine probably don’t hurt her mood any, but Aaron can sense that she’s missed him of late. She chats about her patients, the other doctors, general workplace gossip. Aaron’s thankful that she’s taken the lead, for the news at his office is not something he wishes to share, at least not tonight, when Cynthia is in such a good mood.
It’s lightly flurrying when they leave the restaurant, and Cynthia leans up against Aaron, holding his hand as they make their way down Madison. The girls are both home when Aaron and Cynthia return. Lindsay tells them that rehearsal was boring and Samantha complains that she and her partner can’t get their science project to turn out right.
At a little before ten, Aaron and Cynthia get into bed. Aaron puts the television on, but Cynthia suggests they do something else first, and slides down the sheets.
As he feels his wife’s hot mouth around him, his body releases to the sensation of pleasure. But not completely. He knows how undeserving he is of her affection.
WHEN FAITH AND STUART get into bed, Stuart signals that he wants to have sex. She’s glad it doesn’t take long. Small favors, she thinks to herself.
He falls asleep immediately after, and she knows that’s not going to happen on her end for several hours still. It’s during this time, with her husband asleep beside her, that she feels most alone.
One thing that Faith learned early on as a lawyer was that there is no such thing as good and bad people. There are just people, who sometimes do good things and other times do bad things, and the idea that the guilty are punished is just something that people say; it isn’t even remotely true.
In fact, quite the opposite. People doing bad things are sometimes even rewarded for their misdeeds.
She likes to think of herself as a person who mainly does good things . . . but for the past six months, no fly on the wall of her life would have described her that way. First there was the affair with Aaron, and although there are countless ways she could try to justify it—Stuart’s own likely infidelity, his thoughtlessness toward her, his . . . general Stuartness—she knows that she was responsible for her own actions. And then there was the entire Eric Matthews debacle. Faith believed to her very core that every ruling she made in the case was right on the merits, but she also knew that her assessment was impossible to verify. No matter how you cut it, presiding over the case put her on the wrong side of the ethical divide.
In a just world, her conduct would have at least led to a divorce filing, if not impeachment proceedings. But Stuart didn’t leave her (or even know about the affair with Aaron, as far as she knows), and she wasn’t run off the bench in scandal.
Instead, Faith was rewarded, now on the verge of being nominated to the highest court in the land.
All she has to do to get there is engage in further misconduct: convict Nicolai Garkov and then sentence him to the max, regardless of the evidence.
She feels the pang of conscience, the angel on her shoulder telling her that even Nicolai Garkov is entitled to judgment by someone free from bias. And then she thinks about Roy Sabato telling his client about
the pros and cons of Faith’s assignment to the case, without the slightest notion that it was already over for Garkov the moment her name rolled out of the wheel.
10
Aaron can’t recall ever being so nervous before a court appearance.
He’s about to blindside Faith. She’s expecting Roy Sabato, and instead she’s going to be confronted by the one lawyer she doesn’t want to have sitting at counsel table. But what choice does he have? Calling to give Faith a heads-up wasn’t an option. For all he knew, she might have used such contact without the prosecution present—a big no-no called ex parte in legal jargon—as a reason to disqualify him, which would almost certainly have caused Garkov to go public about the affair.
The gallery is full of members of the press, the lucky ones who were granted access to report on the proceedings firsthand. A hundred or so of their colleagues have been shut out of the main event, relegated to shouting questions on the courthouse steps after the hearing.
From Aaron’s presence at counsel table, the members of the media in the courtroom now know of the change in counsel. Faith won’t become so aware, however, until she takes the bench and sees Nicolai Garkov sandwiched between Aaron and Rachel London.
Three hard knocks on the doorpost connecting the judge’s chambers and the courtroom announce that the judge is about to enter. “All rise!” the court officer bellows. The massive wooden door leading to the judge’s chambers swings open and all eyes turn toward the Honorable Faith Nichols.
Even cloaked in her loose-fitting black robe, Faith looks more like a 1940s Hollywood star than a United States district court judge. Her dark hair is down and loose, and she flashes a glimpse of her calf when she walks.
Aaron feels almost light-headed. Focus, he tells himself.
“Please be seated,” Faith says without looking up. Then her eyes meet Aaron’s, and she swallows hard. After a momentary pause, she says, “Uh, counsel, please state your appearances for the record.”
Aaron can only imagine that Faith is seething inside. He wishes he could convey somehow that this isn’t his fault, convinced that she’d understand if she knew all that he did.
The prosecutor stands first. “Good morning, Your Honor. David Sanyour, assistant United States attorney, representing the United States of America. I am joined this morning by Assistant United States Attorney Michael Herrera.”
Aaron knows Sanyour from past battles and respects him as an adversary. The person David Sanyour reminds Aaron of most is not a person at all, but Buzz Lightyear from the Toy Story movies. Erect, solid, sternly chipper, he looks the way you might imagine lawyers appeared in the 1950s, with short-cropped hair and black-plastic–framed glasses. There’s something absurdly robotic about him, made all the more comical by the seriousness with which he believes in his own moral superiority.
“Good morning, Mr. Sanyour. And you, too, Mr. Herrera,” Faith says. Then she turns and stares hard at Aaron. “And it appears we have two new lawyers present for the defense.”
Aaron rises to address Faith. “Good morning, Judge Nichols. Aaron Littman of the law firm Cromwell Altman Rosenthal and White. With me is my partner Rachel London. If it pleases the court, we move to be substituted as counsel of record for Nicolai Garkov.”
Aaron says this with a friendly smile, but Faith doesn’t return the gesture. Her face is locked in a grimace, as if she’s just swallowed something particularly foul tasting.
“This certainly does not please the court, Mr. Littman. Not even a little bit. In fact, I find it the height of arrogance for you to come to this proceeding and take your place next to Mr. Garkov as if my granting your application is a mere formality.”
“My apologies, Your Honor. I didn’t think—”
“I couldn’t agree more, Mr. Littman. You clearly did not think. So now I’m thinking for you. I assume you’re aware that my predecessor, Judge Mendelsohn, put this matter down for trial on April fourteenth?”
“I am, Your Honor. But given that the court and defense counsel both have to play a little catch-up, we were hoping for a short adjournment of that date.”
“Well, you can keep hoping, Mr. Littman, because that’s not going to happen. As far as I’m concerned, the fourteenth is etched in stone. I’m well aware of the game of musical lawyers that defendants with means attempt to play as a way of pushing out the trial date. But not in my court, I can assure you. So, Mr. Garkov, if that’s why you hired Mr. Littman, then I’m afraid you’re not getting your money’s worth.”
Aaron already knew it was a distinct possibility that Faith wouldn’t postpone the trial. But it’s Faith’s phrasing that’s the true concern. If Garkov didn’t think he was getting his money’s worth, what would he do to ensure a more adequate return on his investment?
“We’ll be ready for trial on the fourteenth,” Aaron says. “Will Your Honor please accept our substitution?”
“Hand it up,” Faith says, followed by a sigh that reeks with displeasure.
Aaron passes the piece of paper to the court officer, who walks the document over to Faith. In her three years on the federal bench, Faith’s seen hundreds of substitution forms, and all this one contains is a single sentence, stating that Nicolai Garkov consents to the substitution of Aaron Littman for Roy Sabato as counsel of record, followed by signatures from Aaron, Sabato, and Garkov. Nothing else. Nevertheless, Faith studies the single page intently. When she’s finished, she lifts her head and addresses Sanyour.
“Does the government have any objection?”
Sanyour stands and buttons his suit jacket. “Your Honor, so long as there is no prejudice to the government by a delay of justice, we have no objection to Mr. Littman becoming counsel of record for the defendant.” Then he unbuttons his suit jacket and sits down.
Aaron can almost see the wheels turning in Faith’s head. With the prosecutor’s consent, she’s out of options for denying the change of counsel.
“Mr. Garkov,” she says in a stern voice, “although you are entitled to counsel of your choosing, it is my responsibility to ensure that such counsel can be effective in his or her representation of you. I have severe misgivings in this case about allowing a substitution at this late date. As I just indicated, I’m unwilling to delay the trial, and you were previously represented by very capable counsel in Mr. Sabato.”
Aaron touches Garkov’s arm, the coaching signal that he’s not to speak. Aaron too remains silent, as Faith has not posed a question so much as expressed displeasure at what’s unfolding before her.
As if she realizes that the floor remains hers, Faith continues. “I can tell you firsthand, Mr. Garkov, having stood before the bench myself for quite a number of years, that litigation and wars are often won or lost in the preparation. For that reason, you have to be absolutely certain that your interests are better served by Mr. Littman trying this case with very little time to prepare than if Mr. Sabato remained as your lawyer.” She looks firmly at Garkov. “So that there is no going back on this decision, Mr. Garkov, I need you to state in open court that you are aware of the time constraints that Mr. Littman would face if he were to become your counsel, and you nevertheless wish to proceed with him.”
Aaron rises and pulls Garkov to his feet by yanking him at the elbow. When they’re both upright, Aaron looks up at his client towering above him. He offers a subtle nod, telling Garkov to provide the confirmation Judge Nichols seeks.
“Yes,” Garkov says.
Faith scans the courtroom, as if trying to come up with another way out. But if the prosecution and Garkov aren’t going to give it to her, she has no choice but to sign the order.
“Given that Mr. Garkov is willing to proceed on the same schedule as previously established,” she says, “and noting the prosecution’s acquiescence, as well as Mr. Garkov’s constitutional right to proceed with counsel of his choosing, with the reservations I’ve already stated on the record,
I’m going to permit the substitution.”
“Thank you, Your Honor,” Aaron says, but his groveling doesn’t seem to register with Faith in the least. She doesn’t even make eye contact as she signs the document officially making him counsel of record.
When Faith does look up again, it’s in the direction of the prosecution table.
“Mr. Sanyour,” she says, “are there any matters that you would like to raise with the court at this time?”
Sanyour stands again and again buttons his jacket. “No, Your Honor,” is all he says, and then he sits down.
Faith next turns her attention to Aaron. “Mr. Littman, I’m assuming that you are still too new to have an opinion about anything in this matter. But I’m going to raise an issue of my own. Although Judge Mendelsohn saw fit to permit Mr. Garkov to be in home confinement pending trial, it is my order that Mr. Garkov be held without bail, pending trial. Effective immediately.”
There’s a loud rumble in the gallery, reflecting the utter shock at Faith’s ruling. Garkov has been out on bail for months, and there hasn’t been any change in circumstances to justify incarcerating him now.
“Your Honor,” Aaron says, quickly coming to his feet, “given that this is a departure from Judge Mendelsohn’s ruling, and because the court has ruled without notice or the benefit of briefing, the defense requests that you hold your decision in abeyance until we can be heard on the matter.”
“You can be heard now, Mr. Littman. In fact, I’m all ears. Please explain to me why your client should continue to be able to live in the lap of luxury. This is a man who has been indicted for crimes that, if he were to be convicted, would likely result in life imprisonment. He is probably one of the most egregious flight risks imaginable, given the seriousness of the crimes for which he stands accused, coupled with the fact that he is a man of considerable means who is not a citizen of this country.”