Losing Faith

by Adam Mitzner

There’s a moment’s hesitation by Rosenthal, but he eventually does as directed. Rachel, once again, follows suit.

  When they’re both seated, Fitz says, “As you know, my office believes that every defendant has the right to counsel of his choosing . . . but not when it compromises the trial.”

  Fitz comes to a complete stop, daring Rosenthal to say something. Sam isn’t going to fall for that trick, however. He stares back, waiting for Fitz to finish.

  After a moment’s standoff, Fitz resumes. “As I’m sure you’ve read in the press, there is speculation that Judge Nichols was on the short list to take Justice Velasquez’s seat on the Supreme Court. At the time she was killed, very few people knew that. Hell, no one even knew Justice Velasquez was going to be stepping down. But you did, Sam. You knew that there was about to be a vacancy on the Supreme Court, and you knew that it was going to go to Faith Nichols, but only if she convicted Nicolai Garkov.”

  Out of his peripheral vision, Rosenthal can see a look of shock on Rachel’s face. Rosenthal isn’t surprised, however. He knew it was only a matter of time before Senator Kheel opened his big fucking mouth.

  “Fitz, is this your way of telling me that you arrested the wrong guy? Because it sounds to me like you just admitted in a room full of lawyers that Nicolai Garkov had a pretty strong motive not to have Judge Nichols decide his fate.”

  Rosenthal has said this with a smile, as if he doesn’t have a care in the world. That smile vanishes, however, when Fitz shoots back: “Sam, we’re going to call you as a witness at trial on this issue.”

  Fitz has him by the balls, no two ways about it. Under the rules of professional ethics, an attorney can’t simultaneously serve as trial counsel and appear as a witness in that trial. When it’s the prosecution that wants to call the lawyer at trial, the judge weighs the relative prejudice to each side . . . but if the testimony is indispensable, the defense lawyer is disqualified.

  “Fuck you, Fitz, and the horse you rode in on,” Rosenthal says, pure hatred in every syllable.

  Fitz’s response is a patronizing chuckle. “Sam, we’re just extending you a courtesy,” he says. “Tomorrow, bright and early, we’re going to ask Judge Siskind to disqualify you as Aaron’s counsel.”

  AN HOUR LATER, ROSENTHAL arrives at Aaron’s apartment.

  Aaron expected this visit, as they discussed a debriefing after the meet-and-confer. But to Aaron’s surprise, Rosenthal is alone.

  “Where’s Rachel?” Aaron asks when Rosenthal enters the apartment.

  “Good to see you, too,” Rosenthal responds. “She went back to the firm. I thought it made sense to talk . . . just the two of us.”

  Aaron leads Rosenthal to the living room, where they each take a seat in the leather club chairs. Rosenthal looks around, clearly wondering if anyone else is home.

  “It’s just us, Sam,” Aaron says.

  “Good. Well, the meet-and-confer went just like we thought,” Rosenthal says. “They told me to go and pound sand on the witness list and then offered a plea to murder two, sentencing recommendation of twenty.”

  Aaron smiles. “And medium security?”

  “Of course. Covello said that minimum might be doable.”

  “Well, they’re nothing if not predictable, at least.”

  Rosenthal sighs heavily, indicating a more serious matter is about to be raised. “They also know about my involvement in vetting Judge Nichols for the high court. Fitz said that tomorrow they’re going to move to disqualify me as counsel.”

  All of the blood drains from Aaron’s face. The prospect of losing Sam is unimaginable. In fact, one of the few reasons Aaron has maintained any hope is because he has Rosenthal in his corner.

  “Sam . . . I can’t do this without you.”

  “My theory is that they’re just trying to yank our chains a little bit. Which I’m going to make them regret. Believe me on that. So tomorrow, after they tell Judge Siskind they want me to testify that Judge Nichols was led to understand that her nomination to the Supreme Court only happened after Garkov got convicted, I’ll tell her that half a dozen people could testify to the same thing. And God willing, she’ll make Donnelly call one of them.”

  Aaron nods that he understands, but his expression must betray his concern because Rosenthal places his hand atop Aaron’s on the table. “Don’t worry, Aaron. I’m with you all the way. That, I promise.”

  46

  The last pretrial conference is a proverbial forever-hold-your-peace moment, constituting the last opportunity before trial for each side to raise any issues. Such motion practice normally doesn’t interest anyone but the litigants, but Aaron Littman’s case is far from usual.

  The gallery is standing room only, and the snippets Aaron’s overheard from the reporters sitting behind him indicate Fitz must have leaked that the main event today will be the prosecution’s motion to disqualify Sam Rosenthal.

  “Good morning,” Judge Siskind says brightly. “I take it that counsel followed my rules and met and conferred?”

  “Yes, Your Honor,” Donnelly and Rosenthal say in unison.

  “And are we still going to trial?”

  “Yes, Your Honor,” they say together again.

  “Okay, then. Are there any issues regarding discovery that either side would like to raise at this time?”

  Donnelly, as the prosecutor, goes first. “We’ve fully complied with our obligations to the defense,” she says.

  “Mr. Rosenthal, any complaints?”

  “We only received the government’s discovery yesterday, Your Honor, so we’re still reviewing it. This much we already know, however: they’ve refused to give us a witness list.”

  “Ms. Donnelly, may I ask why not?”

  “Your Honor, as Mr. Rosenthal well knows, we’re under no obligation to provide a witness list. In this case, we have serious concerns about witness intimidation.”

  This is the kind of thing you say to an inexperienced judge. Someone with a few years under her belt would know it’s a crock. Witness intimidation might be the battle cry in organized crime cases, but Aaron’s certainly not going to have anyone whacked. But there’s no percentage in it for Judge Siskind to risk having a witness killed during her first trial, and so she denies the request without a second thought.

  Rosenthal displays no emotion at the ruling, even though it’s a significant setback. Instead he says, “We also didn’t receive any grand jury testimony.”

  Donnelly is already speaking over him. “I explained to Mr. Rosenthal at the meet-and-confer that, to the extent that we call a witness at trial who previously testified in the grand jury, we will produce the transcript at the close of the prosecution’s direct examination. Although our office sometimes produces grand jury transcripts earlier, we are under no legal obligation to do so.”

  Judge Siskind shrugs. “That’s your prerogative, Ms. Donnelly. But if you’re going to be so literal about it, I’m going to give Mr. Rosenthal ample time between direct and cross to review. Now, is there anything else?”

  “Not from the defense, Your Honor,” Rosenthal says.

  “The government does have something of importance to raise,” Donnelly says. “Your Honor, as part of our case in chief, we will prove that Judge Nichols was being considered for the United States Supreme Court. Mr. Rosenthal was one of a handful of people who knew about this. The prosecution plans to call Mr. Rosenthal as a witness on this issue, and that necessitates his disqualification as ­defense counsel.”

  Judge Siskind looks hard in Donnelly’s direction. Judges, like every­one else, don’t appreciate having their world turned upside down without any notice.

  “Hold on there,” Judge Siskind says. “That’s not going to cut it, Ms. Donnelly, and you know it. Before I’m going to deny a defendant counsel of his choosing, I’m going to need a detailed proffer from you regarding the expected testimony th
at Mr. Rosenthal will provide, and a representation that the government cannot introduce that evidence through another witness. And, if you can do those things, then I will balance the government’s need for this testimony against Mr. Littman’s Sixth Amendment right to counsel of his choosing.”

  Donnelly does not seem fazed by Judge Siskind’s demand. “We will call Mr. Rosenthal to testify that Mr. Littman was well aware of Judge Nichols’s potential elevation to the Supreme Court,” Donnelly says. “And, to answer the court’s second point, while there may be other witnesses who can testify that Judge Nichols was being considered for the Supreme Court, we believe that Mr. Rosenthal is the only witness who can say that Mr. Littman was aware of that fact other than Mr. Littman himself, and he, of course, has the right not to testify. As for the government’s need for this testimony . . . it speaks to motive, proving that Mr. Littman knew Judge Nichols was not going to acquit Nicolai Garkov because her nomination was only going to happen if he was convicted.”

  Aaron didn’t anticipate that this would be their play—to argue that it was his knowledge of Faith’s possible Supreme Court nomination that is relevant, rather than the nomination itself. It’s a smart move. Donnelly’s right that only Rosenthal could testify about such communications, and therefore he becomes an indispensable ­witness.

  Aaron’s stomach tightens. Rosenthal is going to be disqualified.

  Judge Siskind looks to the defense table. “What about it, Mr. Rosenthal?”

  Rosenthal doesn’t answer at first, and Aaron assumes he’s running through different responses before committing to a position. Finally he says, “Your Honor . . . I never told Mr. Littman about Judge Nichols’s possible nomination to the Supreme Court, and I have no reason to believe that Mr. Littman knew about it until after it appeared in the press, which, of course, was after her death.”

  Needless to say, this isn’t true, but that hardly matters. Rosenthal’s testimony is only relevant if he told Aaron.

  If they weren’t in court, Donnelly might have shouted bullshit, but she says the legalese equivalent. “If Mr. Rosenthal is going to testify, he should be sworn and cross-examined on this point.”

  Judge Siskind considers the request for a few moments. “No. No, I’m not going there, Ms. Donnelly. Mr. Rosenthal is an officer of the court and therefore I’m going to accept his representation.”

  “Your Honor, we’re entitled to sworn testimony,” Donnelly says.

  Judge Siskind straightens up a bit. Even though she’s new to the bench, she knows enough to make it clear that she’s not going to be pushed around.

  “Ms. Donnelly, you’d be wise to watch your tone. If you have a problem with my ruling, the appellate court is in the next building. Until then, we’re adjourned.”

  Aaron savors the moment. The defense will certainly get its fair share of judicial contempt during the trial, but it’s always nice when the other side pisses off the judge. Better than that, he’ll have Sam Rosenthal at his side at trial, and not testifying against him.

  47

  Rosenthal wants to put on a reasonable-doubt defense, where they poke holes in the prosecution’s evidence and hope that gives rise to sufficient uncertainty about Aaron’s guilt to obtain an acquittal. It’s a tried-and-true strategy to be sure, and one that Aaron has used more often than not. And yet for his own defense, Aaron thinks it’s lacking. He’s convinced a jury will not let him go free without being firm in the belief that someone else must ultimately be punished for Faith’s murder. In his mind, that means the defense must present an alternative theory of the crime clearly identifying Faith’s murderer.

  There’s very good reason why Rosenthal disagrees. Without the vast resources of the prosecution—the ability to compel testimony, conduct forensic analysis, review computer databases for matches to DNA and fingerprints—the defense can easily get it wrong. They could end up pointing the finger at someone who turns out to have an airtight alibi.

  Still, Aaron has pressed for a defense that’s uncompromising in the claim that Nicolai Garkov murdered Faith. After all, it’s not every defendant in a murder trial who can point to a terrorist with equal motive. But, as Rosenthal has countered, putting their eggs in the Garkov basket is not without problems. Among other things, the defense has no evidence linking Garkov to the murder, not to mention that he was in jail at the time of the attack.

  Plan B is Stuart Christensen, Faith’s husband. Aaron knows from his pillow talk with Faith that Stuart became accustomed to a certain type of lifestyle, and that she completely financed it. More than once she told Aaron that her husband would be up shit creek without a paddle if they divorced. The apartment was in her name alone, purchased back when she was a partner at Windsor Taft, and she brought all of their net worth into the marriage, which meant that it wasn’t marital property, and she could take it with her when they split. Aaron also knew that big law firms offered their partners outsized life insurance policies, and so he suspects that Faith’s husband profited considerably from his wife’s death.

  Rosenthal is against this approach too, pointing out that going after Stuart has even greater risks than accusing Garkov. For one thing, he might have an airtight alibi too, and unlike Garkov, he wouldn’t know the kind of people who would commit murder for hire. For another, there is a great risk of jury backlash when you accuse a member of the victim’s family of murder.

  Mainly to placate Aaron, Rosenthal agrees to reach out to both men in the hope that they’ll say something that the defense could use. Everyone understands, however, that it’s a very long shot.

  Stuart Christensen meets Rosenthal’s expectation. His lawyer, Jennifer Bennett, is nice enough about it—high-priced white-collar practitioners never piss off potential business referrers—but the message is clear: her client will do everything he can to make sure Aaron is convicted.

  They expect Clint Broden to also decline, but to their very pleasant surprise, Broden says that Garkov will meet with them. Aaron knows not to get his hopes up, as Broden is way too smart a lawyer to allow his client to say anything that would incriminate him. But the fact that they’re granting the defense an audience means Garkov isn’t cooperating with the prosecution.

  And that’s grounds for cautious optimism.

  AFTER GOING THROUGH THE double set of security procedures, Sam Rosenthal and Rachel London are greeted in Garkov’s entry foyer by the tall Russian, decked out in a purple velvet bathrobe, as if he’s channeling Hugh Hefner. Clint Broden is more appropriately dressed, but at a foot shorter than his client, he looks something like a child playing dress-up.

  Aaron wanted to be present—to stare Garkov down if for no other reason, but home arrest prohibited that kind of showdown. The defense could have made a request to Judge Siskind for special dispensation, but that would have given the prosecution notice, which likely would have caused Broden to refuse to meet. So Rosenthal and Rachel are without their client.

  Ever the host, Garkov brings his guests into the living room, with its wall of windows overlooking Central Park. Sam and Rachel arrange themselves on one sofa, while Garkov and Broden take the sofa opposite them.

  “Quite the fireplace,” Rosenthal says, remarking on the open lion’s mouth.

  “Thank you,” Garkov says. “I saw it in a palazzo near Lake Como, and I just had to have it. Bought the entire goddamn palazzo, actually, just so I could bring the fireplace over here.”

  Rosenthal politely smiles, but he’s eager to get down to business. “I suppose the first and only thing on our agenda is to ask if you’ll be testifying for the prosecution.”

  Broden answers for his client. “No. Needless to say, they asked, they threatened, they offered inducement, but Nicolai is not going to help them.”

  “What about helping us?” Rachel says, her smile focused like a laser on Garkov.

  “No. I’m afraid not,” Broden says, grabbing Garkov’s arm to ensure that
he doesn’t speak out of turn simply because he’s being asked a question by a beautiful woman. “If either side calls Mr. Garkov to the stand, he will assert his Fifth Amendment privilege against self-incrimination.”

  That settles it then. Garkov is a dead end.

  “That seems like the kind of thing you might have told us over the phone and saved us the trip here,” Rosenthal says.

  Broden smiles. “There’s something else. Something that Nicolai wanted to tell you face-to-face.”

  All eyes turn to the Russian, who clearly has no qualms about being the center of attention. He holds everyone’s stare until the ­silence is palpable.

  “I was hoping you could convey a message to Aaron Littman for me,” Garkov finally says.

  Rosenthal says, “Okay. What is it?”

  “Thank you.”

  Rosenthal knows it’s a setup, but he’s got to play it through nonetheless. “And for what are you thanking him?”

  “For killing Judge Nichols, of course,” Garkov says with a full-on smile. “I know I didn’t do it, and so I can only assume that he did. So, please tell him: thank you.”

  IT’S LESS THAN A five-minute walk from Trump Tower to Cromwell Altman’s offices, but the silence makes it seem longer. It isn’t until they’re in the elevator that Rosenthal finally opens his mouth.

  “Don’t let what Garkov said upset you,” he quietly remarks. “All we care about is that he’s not going to help the prosecution. Without Garkov’s testimony, they can’t prove any kind of blackmail. And without that, there’s no motive.”

  Rachel is not assuaged. “I really thought it was him,” she says.

  “And it still might be him, Rachel. Garkov’s a sociopath and a murderer. What makes you think he’s telling us the truth?”

  “I don’t know. Maybe it’s because I don’t see any advantage he gains from lying to us.”

  “It doesn’t matter,” Rosenthal says in a stern voice. “Trials aren’t about the truth. They’re about winning. And if Garkov is sitting this one out, then our best shot is to put the blame directly on him, just like Aaron wanted. So that’s exactly what we’re going to do.”