by Adam Mitzner
The last calls were all incoming, and each a minute in duration. After the sentence, Aaron was undoubtedly trying to reach her and she was ignoring his calls. The final page of the phone records contains the two calls Aaron told him about on the day Faith died: a one-minute call at 8:03 p.m., and after that, the return call from Judge Nichols, which was made at 8:36 p.m. There’s also a call at 8:04 p.m. from Aaron to Judge Nichols’s phone, again one minute in duration. Aaron didn’t mention this one, but Rosenthal assumes it was an oversight; the 8:03 call must have been dropped and so Aaron simply tried again. Easy enough to have forgotten.
The phone bill shows one more call on that last day. The last call to or from Faith Nichols. Three minutes and three seconds in duration, to Aaron’s office number. It was placed at 9:48 p.m.
Damn.
The prosecution might not be able to link the burner calls to Aaron, but the final entry is indisputable evidence of contact between Judge Nichols and Aaron, smack in the middle of the window in which she was murdered.
Rosenthal stares at the page the way you might focus your attention on a child who’s disappointed you. And like that child, the page offers nothing back.
The next document is a text message that Aaron sent Judge Nichols at 8:05: Faith, please call me at this number as soon as you can. Very important.
Alone on the white page, the text looks more threatening than it likely did on Judge Nichols’s phone screen. Still, like the calls from the burner phone, it’s far from a smoking gun. It could have been sent by anyone and could be referencing anything.
Behind the text message are multiple copies of Aaron’s driver’s license on Ritz-Carlton letterhead, each bearing a different date. They follow roughly the same pattern as the phone calls—beginning on September 6 and ending January 12. Behind the driver’s license papers are the invoices for the room, indicating that Aaron always paid in cash.
This will be more than enough to prove the affair. Aaron Littman, a married man, checking into a hotel once a week that is less than a mile from his home, and paying cash so there’s no record of the event. There’s no other explanation to sell to the jury.
The one glimmer of hope is that the prosecution’s discovery doesn’t include any direct proof linking Faith to these visits. That means the Ritz-Carlton must not have surveillance cameras in their common areas. But Rosenthal assumes that the prosecution can plug that hole. A witness will appear who saw them kissing in the lobby, or a desk clerk will testify that Judge Nichols asked what room Mr. Littman was in.
The bulk of the production is composed of various forensic reports. The cause of death is blunt-force trauma, and diagrams indicate that Judge Nichols suffered wounds to the back of the head. The prosecution can be expected to play this to mean that she was attacked from behind, likely taken by surprise, perhaps trying to flee from a raging Aaron Littman.
There are six crime-scene photos. In them, Judge Nichols lies on her side, her eyes closed, with her head resting on her arm. The blood is visible but not readily apparent, blending in with the leaves and dirt around her, muting the brutality of the scene.
The defense’s experts would have to translate the medical jargon, but Rosenthal has seen enough of these types of documents to be able to separate the wheat from the chaff. Very good news here: nothing appears to place Aaron in Central Park with Judge Nichols.
As he places the pages back in the envelope, Rosenthal thinks again about that last phone call—the one from Judge Nichols’s cell phone to Aaron’s office. If it weren’t for that one call, he’d really be celebrating.
THE LITTMAN DINING ROOM table seats twelve, but two hours after he received the prosecution’s discovery, Sam Rosenthal, Rachel London, and Aaron are huddled on one end, with Rosenthal sitting at the head. The lawyers fit the part—Rosenthal in his standard three-piece suit and Rachel wearing a black pantsuit and jacket—but the client is in jeans and unshaven.
Rosenthal warned Aaron that Rachel might still end up being a witness, which meant that she shouldn’t be privy to defense strategy. The prosecution might call her to testify about her nasty interactions with Judge Nichols during the failed request for the order to show cause on Garkov’s bail revocation. And if called by them, Rosenthal wanted to leave open the possibility of using Rachel as a character witness.
Rachel’s involvement was one of the few points about the defense on which Aaron would not acquiesce to Rosenthal’s judgment, however. He made it crystal clear that he only wanted people he trusted implicitly handling the case, and that meant it could only be Sam and Rachel.
A compromise was reached. Rachel would second-seat for the pretrial work, which included reviewing the discovery, participating in witness interviews, and crafting an overall defense strategy, but she wouldn’t be present at counsel table when the trial began.
“We finally got some discovery,” Rosenthal says, and then nods to Rachel. She reaches into her briefcase and pulls out the gray envelope.
“This is it?” Aaron asks, taking the packet from Rachel.
“Donnelly claims that what you have in your hand is the full extent of the government’s discovery obligations,” Rosenthal confirms. “And you know the only reason she produced it now is so that Judge Siskind doesn’t take her head off at the pretrial tomorrow.”
Aaron takes the pages out and turns his attention immediately to the phone bills. He flips the pages until he comes to the end, and there he lingers.
The 8:03 entry gives rise to the despair he felt when he got Faith’s voice mail, as if it’s happening all over again. A second call at 8:04. Aaron forgot that he called her twice, hanging up both times in frustration before sending the text.
He next focuses on the 8:36 call from Faith’s cell to the burner phone. That he remembers all too well. The coolness of her voice, clearly not pleased to be hearing from him.
But the last entry is a complete bombshell. A call from Faith’s cell to his office number at 9:48. For three minutes and three seconds.
Aaron repeats the timeline in his head, as if maybe he doesn’t remember parts of the night that are inextricably etched into his brain. He called Faith, got her voice mail, and hung up. Twice, apparently. Then he sent the text a minute later. She called him back—the 8:36 call—and that’s when they agreed to meet at the Alice in Wonderland statue. She showed up around 9:30. They talked for five or so minutes, and then she left. That was at 9:40, maybe 9:45, but no later than that.
He didn’t speak to her from the office at 9:48. He was still in Central Park when the call came in.
“The receptionist on fifty-seven can testify that I wasn’t in the office that night,” Aaron says hopefully. “Or maybe the building’s security guard.”
“Yeah, we should definitely consider that,” Rosenthal says, which to Aaron’s ear sounds a lot like the opposite.
He quickly realizes what Rosenthal has already grasped. There’s no way that the firm’s receptionist or the security guards in the lobby will remember what time Aaron left the building two months ago. Usually a car voucher would indicate his departure time, but he knows he walked home that evening, and so there is no such record.
“I left that day around seven,” Aaron says. “Maybe it’ll show up on the building’s security cameras.”
“Even before we got the discovery we checked that out,” Rachel says. “It’s tough to make anyone out definitively. There’s just too much traffic in the lobby at that time. We can point to a figure and claim it’s you, but . . . to be honest, I really can’t be sure that it is you.”
“And even if it is,” Rosenthal adds, “all it proves is that you left the building at that time. The prosecution can easily argue that you returned, careful to avoid the security cameras. Or they’ll point to some shadowy figure about your size coming back into the building and claim it’s you.”
Aaron continues to stare at the phone records. �
�How is this possible? I didn’t get a call from her,” he says. “I wasn’t even in the fucking office!”
Aaron’s declaration is met with silence. Worse still, Rosenthal and Rachel both look away. They might have just as well said that they’ve heard such denials before from guilty clients.
I didn’t do it. You have to believe me.
“Um . . . I’ll check the firm’s hard drive for voice mail,” Rachel finally says. “Best case, there will be three minutes of static on your voice mail that you might have deleted without giving it a second thought. I get those sometimes . . . you know, butt dials.”
“We can deal with the call,” Rosenthal says. “Garkov knew you were having an affair with her, and I suspect that her husband might have too. Either one of them could have dialed your number after they killed her, as a way of pointing the police in your direction. And no time-of-death analysis is that precise. There’s no way anyone knows if the call was made before or after she died.”
Aaron doesn’t see it that way. A phone call to him coming around the time of death may not be a smoking gun, but it sure as hell doesn’t look good, either.
45
Among Judge Siskind’s standing rules is that before the last pretrial conference, the parties have to meet in person and confer about the possibility of a plea. It is one of the many things judges do that sound good in practice but in reality are a complete waste of time.
Rachel and Rosenthal arrive at the U.S. Attorney’s Office right on time for their 2:00 p.m. meeting, only to have the guard in the building’s lobby tell them to wait. They sit in uncomfortable metal chairs aside a mural of children of various nationalities—someone’s idea of a political statement, no doubt. The nicer part of the lobby is where press conferences are held. For the press, the chairs are covered in fabric.
“Petty power-play shit,” Rosenthal says, ostensibly to Rachel, but as much to himself. “Meeting with an AUSA is like going to the doctor,” he continues to mutter. “Show up on time, then wait out here. Fifteen minutes after the scheduled time, they finally call your name, but then you wait in a conference room upstairs for another ten minutes.”
That’s exactly what happens. Fifteen minutes after they’ve arrived, a heavyset African-American woman enters the lobby and calls out: “Sam Rosenthal. Rachel London.” She introduces herself as Victoria Donnelly’s assistant, but doesn’t provide her own name, and then asks Rachel and Rosenthal to follow her to the seventh floor.
Once there, the anonymous assistant directs them to the same small, windowless room with the badly nicked wooden table that Rachel recalls from her interview.
“You’re on that end,” she says, pointing to the side with two chairs. On the other side are six seats.
They aren’t offered coffee or water. The U.S. Attorney’s Office doesn’t provide such niceties. Instead, their guide says, “Ms. Donnelly and others will be here shortly,” and then she shuts the door behind her.
“Six people for a meet-and-confer,” Rosenthal says when they’re alone. “Imagine if we tried that with a client. The bill would be ten grand.”
Rachel smiles. “No, it’s more like we have two people attend the meeting, and then twenty read the memo about that meeting. Probably comes out to more our way.”
Rosenthal likes Rachel, but that doesn’t mean he trusts her. He knows part of his bias is unfair, but he’s had more than his share of encounters with beautiful women, and not one of them ever caused him to reconsider his prejudice against them.
FIFTEEN MINUTES LATER, VICTORIA Donnelly strolls into the room with the usual pack behind her: Assistant United States Attorney Leonard Stanton, FBI special agents Kevin Lacey and Tim Walker, and Christopher Covello, the head of the Criminal Division.
Donnelly doesn’t take a seat, but instead makes her way to the corner of the room and reaches for the phone. “We’re all here,” she says. “Conference room two. On seven.”
After she hangs up, she turns to Rosenthal and says, “The U.S. attorney will be here in a minute. I trust that you received the discovery we sent over this morning?”
“Yeah, thanks. You decided not to put anyone in the grand jury?”
Rosenthal knows that there has to be at least one witness in the grand jury, or else they couldn’t have gotten the indictment. If he had to guess, he’d point to one of the FBI agents, most likely Lacey, who seems to be the guy in charge. It’s common for the prosecution to put their case in through their investigator.
Under the Jencks Act, the transcript of a witness’s grand jury testimony must be produced to the other side before that person is called as a witness at trial. Even more important, the prosecution is also required to turn over whatever documents were relied upon by that witness. That means that if Special Agent Lacey did testify before the grand jury, the defense would get not only the transcript of his testimony but also his notes, which would include the witness interviews he conducted. That’s exactly what Rosenthal wants, and the sooner, the better.
The rub, however, is that Jencks requires the prosecution to provide such materials only if Lacey testifies at trial. That might be reason enough for Donnelly to make her case without calling him to stand.
Donnelly smiles. “We understand our obligations. If we call a witness at trial who gave grand jury testimony, we’ll provide the transcript at that time, just like the rules require.”
Rosenthal looks past Donnelly to Covello. “Chris, help me out here,” Rosenthal says, “because this is utter bullshit. I’ve never had a case where you didn’t provide Jencks materials with the other discovery. Bad enough that you withheld it until now, but we’re flying blind here.”
“Sorry. Rules are rules, Sam,” Covello answers.
Covello is a large man, probably more than two hundred and fifty pounds. Unlike Fitz, who sees the U.S. Attorney’s Office as a springboard to elective office, when Covello ends his stint as head of the Criminal Division, he’ll go back to earning two million dollars a year to represent the same types of people he’s prosecuting now.
Rosenthal makes a mental note to add Covello to his ever-growing enemies list. When Covello’s back in private practice, Rosenthal will thoroughly enjoy making Covello pay dearly for being such a hard-ass today. Count on it.
“While we’re waiting for Fitz,” Donnelly says, “I can also tell you that it’s a no on the witness list.”
The prosecution’s witness list is something of a Holy Grail for the defense. It not only limits the universe of people the defense has to prepare to cross-examine, but it gives insight into the prosecution’s trial strategy. Rosenthal can’t say he’s surprised he’s getting stiff-armed on that, however. It’s pretty clear that the prosecution is pulling out all the stops.
Rosenthal offers a sad laugh. “Okay, have it your way. It’s just going to make it that much sweeter when Aaron walks on this.”
Before Donnelly can respond, Fitz enters the room. He’s decked out in a politician’s navy-blue suit, white shirt, red tie, and American-flag pin on his lapel. His side of the table stands, as if royalty has entered.
“Sorry I’m late,” Fitz says with a smile. “Did I miss anything?”
Rosenthal feels nothing but contempt at the sight of the U.S. attorney. Whatever camaraderie they once shared is now a thing of the past. Sam Rosenthal now truly and unequivocally despises this man.
“I was just about to make the plea offer, but I was waiting for you,” Donnelly says.
“I’m here now,” Fitz says.
This is Donnelly’s cue. “In light of the fact that we suspect this was a crime of passion,” she says as if reading from a prepared text, “we have authority from the attorney general to offer a plea to murder in the second, with a sentencing recommendation of twenty.”
That is exactly what Rosenthal predicted. It isn’t a terrible offer, given that the prosecution hasn’t formally taken the deat
h penalty off the table. But Rosenthal and Aaron both know the Department of Justice guidelines don’t permit seeking a lethal injection in cases of a single murder—even that of a federal judge—and so the maximum sentence Aaron could face is life without the possibility of parole. If the actuarial tables are correct, Aaron only has another 27.6 years to live, which means that the prosecution’s offer isn’t much of a bargain.
“Thanks, but no thanks,” Rosenthal says.
“We’ll also support your application that Aaron serve in a medium-, maybe even a minimum-, security facility,” Covello adds. “Nobody on our side of the table wants to see Aaron in supermax with those animals. You may not think that’s a big concession on our part, but I tell you, for an inmate . . . well, it makes all the difference in the world. Believe me.”
For a split second, Rosenthal thinks about negotiating. He could ask for manslaughter or confirm that minimum security is truly on the table. But no deal would be acceptable, and so there’s no point in discussing it further.
“Okay. Sounds like we’re done here?” Rosenthal says, and rises to show that he means it. Rachel does likewise. The other side of the table stays put, however.
“Sam . . . look, could you please sit down?” Fitz says. “I really wish you’d consider this offer. We had to go to the mat with the attorney general to make it.”
Rosenthal waits until enough time has passed that Fitz probably thinks he’s actually reconsidering his prior rejection. Then he says: “What part of go to hell do you not understand, Fitz?”
Fitz shows no reaction, as if Rosenthal’s venom has no impact on him. “All right, we’ll let the jury decide. But I’m still asking you to please sit down. We have something else to discuss with you. Something important.”