Losing Faith

by Adam Mitzner

  Also befitting their lesser status, a magistrate judge’s courtroom is half the size of the palatial space where a district court judge presides. There are seats for twenty-five spectators, but twice that many cram the courtroom, many crowded together in the back or along the sides.

  There’s something of an assembly-line feel to the proceedings. The bailiff calls out a case name and number, and then the side door to the courtroom opens, so that the court guards can escort in a man, usually of color, who’s wearing an orange prison-issued jumpsuit and in some state of dishevelment, handcuffed behind the back and about the ankles.

  None of the prior cases are bail hearings. Two are pleas, and the other three are status conferences of one type or another.

  When the clerk calls out, “United States v. Aaron L. Littman, criminal case number eight five five seven two,” the previously established rhythm breaks. The guards still enter, with Aaron in their wake, but unlike the men who preceded him, Aaron looks positively regal, dressed in a tuxedo.

  THE FIRST FACES AARON sees are in the back. Cynthia, flanked on either side by Lindsay and Samantha. For a moment he feels comforted by their presence, but that emotion quickly gives way to shame.

  He always tells clients to wear to court what they’d wear to church, and apparently Cynthia has taken that advice literally because she’s wearing the navy blue suit she wore for the Jewish holidays earlier in the year. Lindsay is in a bright peach dress, and he appreciates the burst of color she brings to the room. Samantha, always the more serious of his daughters, is in all black, as if she’s in mourning.

  Rachel sits beside them and offers a pained smile when she catches Aaron’s eye. Aaron wonders why she’s not at counsel table, but this must have been Rosenthal’s decision, another indication that Rosenthal doesn’t trust her.

  When Aaron reaches counsel table, Rosenthal puts his hand on Aaron’s shoulder. Aaron appreciates the gesture for its reminder he’s not completely alone.

  “Appearances,” Judge Gruen calls out.

  Jonathan Gruen has been a U.S. magistrate since before Aaron passed the bar. In that time, he’s developed a reputation for inconsistency, which makes it difficult to handicap how he’ll rule on any given issue. Most lawyers believed that whether he’s for you or against you could ride on something as irrelevant as whether his sciatica was acting up.

  Victoria Donnelly stands and says, “Assistant United States Attorney Victoria Donnelly. Good morning, Your Honor.”

  “And good morning to you, Ms. Donnelly,” Judge Gruen says. “Been a long time since I’ve seen you in for an arraignment, but you’re always welcome in my court. And for the defense?”

  Rosenthal rises. “Samuel Rosenthal of the law firm Cromwell Altman Rosenthal and White. I represent my partner Aaron Littman.”

  “Welcome to you too, Mr. Rosenthal. Now, before we begin, a disclosure is required. Judge Nichols and I were colleagues. Of course, any magistrate in this courthouse would be in the same position, but, Mr. Rosenthal, if you see that as a basis for my stepping aside, please make that request on the record at this time.”

  “Your Honor,” Rosenthal says, “the defense seeks to have Mr. Littman arraigned as soon as possible, especially given the fact that the government sought to arrest him on a Saturday evening, which means he’s already been incarcerated for thirty-six hours.”

  Translated into non–lawyer speak, this means that the defense will not object to Judge Gruen’s presiding over the bail issue, despite his connection to Judge Nichols, but reserves the right to challenge a trial judge on the same grounds, if he or she isn’t to the defense’s liking.

  “Very well,” Judge Gruen says. “Waive reading of the indictment, Mr. Rosenthal?”

  Criminal defendants have the right to have the charges against them read aloud in open court. Exercising that right, however, is the fastest way to piss off a judge.

  “We waive reading, Your Honor, but would nevertheless like a copy of the indictment.”

  As Rosenthal is saying this, Donnelly’s second chair, Leonard Stanton, is already handing the indictment to him. Rosenthal immediately passes it to Aaron, who doesn’t even look at it before setting it down beside him.

  “That solves that problem,” Judge Gruen says. “Mr. Rosenthal, would you like a few moments to review the charges against your client and discuss them with him, or is the defense now ready to enter a plea?”

  It’s the usual practice at Cromwell Altman to have the lawyer enter the plea because clients can find any number of ways to screw up saying just two words. But with a nod, Rosenthal tells Aaron to do it. Even though there’s no camera in the courtroom, the press will still report that Aaron, and not his counsel, made the declaration.

  “Not guilty,” Aaron says in a strong, clear voice. For a moment he sounds like a lawyer again. After which he and Rosenthal return to their seats.

  “Very well,” Judge Gruen says. “Which leads us to the issue of bail. Mr. Rosenthal, would you like to be heard on that issue?”

  “Yes, thank you, Your Honor,” Rosenthal says, again coming to his feet. “As the court knows, Mr. Littman is a man who has devoted his life to a belief in the judicial system. There is nothing—nothing—that would keep him from appearing at trial because that is the only way he can ever be completely vindicated. In addition, Mr. Littman has extremely strong ties to the community, including a wife of twenty-four years, and his two teenage daughters attend school here. The ­Littman family is all present in the courtroom.”

  Rosenthal turns to the gallery and gestures that Cynthia and the twins should stand. They do as requested, and sit down almost immediately after coming to their feet.

  “Finally, Mr. Littman has the constitutional right to participate in his own defense,” Rosenthal continues, “and if he is incarcerated, that participation will be greatly restricted. For those reasons, Your Honor, we ask that the court release Mr. Littman on his own recognizance.”

  “Thank you, Mr. Rosenthal,” Judge Gruen says. “Any response by the government?”

  Donnelly now stands. She’s wearing what must be her best suit for her star turn, a serious black number with a cream-colored blouse poking through. Like Judge Gruen said, seasoned prosecutors normally don’t make bail arguments. Then again, bail arguments normally don’t warrant a courtroom packed with reporters, either.

  “Just as the prosecution does not dispute that Mr. Littman has been a lawyer in this city for many years,” Donnelly begins, “the defense cannot dispute that he is not in this courtroom today for that particular reason, but because he has been accused of brutally murdering a member of this court. The proof against him is overwhelming. In addition, the defendant is a man of considerable means, who can easily live out his life abroad and in luxury, and thereby escape being brought to justice for his crimes. As for the supposed family ties that Mr. Rosenthal mentioned, the evidence in this case will show that Mr. Littman was having an affair with Judge Nichols, and therefore there’s absolutely no reason to believe that his wife is sufficient reason for him to stay within the jurisdiction. And his children can just as easily visit him in Paraguay or Venezuela during school breaks as they could in prison. For these reasons, the government strongly urges this court to remand Mr. Littman to custody without bail, pending trial. He deserves no special treatment and should be treated like any other accused murderer.”

  “What a surprise,” Judge Gruen says. “The defense says that Mr. Littman wants nothing more than to have his day in court, and the prosecution says that the moment he walks out this door, he’s on the first flight to any country without an extradition treaty.” Gruen looks at Donnelly and asks, “Is this a capital case?”

  Aaron swallows hard. He hasn’t even considered that the prosecution might seek the death penalty.

  “We are still considering that issue,” Donnelly says as matter-of-factly as if the issue at hand were wha
t color to wear and not whether to seek to put a man to death.

  “Here’s what I’m going to do,” Gruen says. “I think that a cash bail, in any amount, frankly, is too lenient under these very unique circumstances. As the prosecution stated, this is a very serious crime, and therefore the impulse to flee is proportionately strong.”

  Aaron sucks the air around him hard. It sounds very much like Judge Gruen is about to deny him bail.

  “But I also think that the government is overreaching a bit,” he continues. “So, in my best impression of King Solomon, I’m going to issue a ruling that I’m quite sure will make neither side happy.” He smiles, although he must realize that it’s inappropriate to think anyone is amused, and then says, “It is the order of the court that Mr. ­Littman shall post ten million dollars’ bail, but thereafter he will be confined to his residence pending trial. During that time, he shall only be permitted to leave for a medical emergency. Visitors shall be restricted to immediate family members, medical personnel, and counsel who are on a preapproved list. When the trial begins, and subject to the trial judge’s rulings, the terms of the confinement shall be modified to include visits to the defendant’s counsel’s office.”

  The air comes back into Aaron’s lungs. He’s being allowed to go home.

  Aaron doesn’t care that he won’t be permitted to go anywhere else. There’s no other place he wants to be.

  PART THREE

  43

  Seventy days.

  That’s how much time stands between Aaron and the trial.

  Most federal criminal cases take a year, and sometimes longer, to get to trial. The defense is to blame more often than not for the delays, especially when the defendant is out on bail. It’s pretty straightforward logic: every day before trial is a day out of jail, and the passage of time can only help memories to fade or, if you’re lucky, witnesses to die.

  Rosenthal, however, decided to buck the conventional wisdom by invoking Aaron’s constitutional right to a speedy trial, which requires that it begin no later than seventy days after the indictment. Rosenthal was convinced that because the prosecution rushed to get an indictment, it wouldn’t have all its ducks in a row. It was more than a little bit of guts ball. The shortened time frame also means that the defense has to get ready in record time too, but as Rosenthal said when Aaron made this point, the defense doesn’t have to prove anything.

  The trial judge is the Honorable Jodi Siskind. At thirty-six, she is the youngest member of the bench in the Southern District of New York, and looks like a mom in a children’s aspirin commercial, with her short brown hair cut in a bob and excited-just-to-be-here expression. She’s only been on the bench for four months, and before that, she was a partner at Taylor Beckett, where she specialized in intellectual property matters. As a result, she has no criminal law experience and probably never tried a case in her life.

  With the Constitution telling her she had little choice, Judge Siskind set down the trial for June 4—seventy days after the indictment was filed.

  Seventy days.

  Not very much time in the big scheme of things, but when it’s all the time there is before you stand trial for murder, the entire concept of time takes on a very different significance.

  AS THEY WAIT FOR Aaron’s day of reckoning, the other Littmans try to hew to their normal routines. Cynthia sees her patients and makes her rounds, and the twins continue to go to school and out with their friends.

  But try as they might to feign normalcy, Aaron knows that a sea change has occurred in his family. The girls can barely make eye contact with him, and when they do, their disappointment in him is so glaring that it makes Aaron wish they hadn’t.

  The change in Cynthia runs in the opposite direction. She has seemingly decided that seventy days is too little time to spend even a moment of it angry, and so she has turned her emotions on a dime. Aaron has been permitted back into the bedroom, and there is barely mention of Faith Nichols at all—not an easy feat when the trial hangs over them like the sword of Damocles.

  While his wife and daughters have their daily grind to shroud their upheaval, Aaron’s day-to-day existence is completely foreign from the life he once led. He wakes up and has absolutely nothing to do. No client calls. No court deadlines. No firm administration matters. Nothing. He spends the day reading, watching old movies, and trying not to think too much about the future.

  Of course, time has not stood still. Eric Matthews has sought a new trial, citing Aaron’s misconduct, and filed a one-hundred-million-dollar malpractice suit against Cromwell Altman. Rosenthal told Aaron not to worry about it. With a shrug, he said, “Matthews will get convicted again when his lawyer isn’t sleeping with the judge, and so where’s the harm? Besides, this is why the firm carries a billion dollars in malpractice insurance. So we can all sleep easy when something like this comes along.”

  Aaron appreciates the words of comfort, but he cannot sleep easy. In fact, it’s worst of all at night. When the lights go out, Aaron’s mind reels with the horrors that await him in prison.

  Nearly all of Aaron’s clients who had the misfortune to become involuntary guests of the federal government were sent to minimum-security facilities. Even the few who weren’t so lucky served their time in medium-security.

  But that’s not where Aaron would do his life sentence. A judge killer spends the rest of his years in a place worse than hell.

  Which is why the impulse to run is so overwhelming.

  Everything Victoria Donnelly said during the bail hearing is true: Aaron Littman is a man of means, and so living his life abroad wouldn’t be too much of a hardship. Although Cynthia tells him at every opportunity that they’re in this together, Aaron can’t help but think she would be secretly relieved to be released from that obligation. And if by some stroke of the imagination Cynthia really wants only death to part them, she could always leave the country with him.

  Lindsay and Samantha are a far different matter, however. He can’t expect them to live their lives in hiding. And while visiting him as a fugitive might not make them criminals, he couldn’t guarantee that the prosecutors wouldn’t present them with the Hobson’s choice of giving up their father’s location or committing perjury. On the other hand, how often will he see them if he’s spending the rest of his life in maximum security in another part of the country?

  Even though the smart move is to flee, Aaron is determined to stand trial. It’s not because he believes he will be acquitted, however. Having spent most of his adult life navigating the criminal justice system, Aaron knows that beating the prosecution in a criminal trial is like winning in Vegas—possible, but not very likely. He’s going to place his fate in the hands of the jury for the least noble reason there is: he doubts he could get away with jumping bail. He doesn’t know the first thing about false identification, or accessing funds without leaving a trace, or blending into a country where he doesn’t speak the language, and he doesn’t know anyone he trusts enough to teach him. And when he thinks about it, life on the run, cut off from his family, is just a different kind of prison.

  At times, he likens his predicament to a cancer diagnosis. Thinking about percentages of survival, trying to enjoy the little time he has left.

  44

  Sam Rosenthal served a comprehensive discovery demand on the prosecution the day after Aaron’s arraignment. The request sought all documents, video footage, audiotapes, and electronic data in any way relevant to the murder of Faith Nichols, the investigation of the crime, and the evidence against Aaron Littman, as well as any exculpatory evidence.

  The prosecution has still not handed over a scrap of paper or a single e-mail, however. Weekly requests demanding compliance are met with the standard U.S. Attorney’s Office reply that the government understands its discovery obligations and will fully comply in a timely manner.

  When or how they will do that is always unstated, but Rosenthal ca
n read between the lines. Those sons of bitches would comply at the last possible moment, and the extent of that compliance would be the least amount they could get away with.

  The day before the last pretrial conference, which is a week before trial is scheduled to begin, Rosenthal’s executive assistant of more than forty years, a frail woman named Dotty—an unfortunate diminution of Dorothy because nowadays she does seem more than a little bit out of it at times—knocks on his door.

  “This just arrived for you, Mr. Rosenthal,” she says.

  Dotty hands Rosenthal a light gray, legal-sized envelope. The return address indicates it’s from the U.S. Attorney’s Office. The lack of heft confirms Rosenthal’s suspicion that the government’s discovery response would be paltry at best.

  After thanking Dotty and giving her time to leave and shut the door behind her, Rosenthal opens the envelope and removes its contents. The top two pages are Victoria Donnelly’s cover letter, in which she objects to the discovery request as overly broad, unduly burdensome, vague and ambiguous (as if they were two different things), and not reasonably calculated to lead to the discovery of admissible evidence. Then she reserves her rights with regard to admissibility, relevance, and privilege, and whatever other rights she possesses but hasn’t listed.

  Behind the letter are Faith Nichols’s cell phone bills. The first one contains the calls during August, a month before Aaron’s affair with Judge Nichols began, and they continue month after month until the day she died.

  Rosenthal skims the first few pages. A week into September, the calls began. Every day. From the same number. Usually at the same times, 8:15 p.m. and 7:45 a.m. Every so often, one number vanishes from the bill, replaced by another that makes and receives calls with equal frequency, at the same two times. That pattern continues the next four months, until the calls abruptly stop two days after Faith handed down the Eric Matthews sentence.