by Adam Mitzner
Donnelly’s direct is straightforward. She establishes that hotel procedure is to copy identification for every guest checking in and then submits into evidence the hotel’s records indicating each and every time that Aaron was there.
“Ms. Luria, let me call your attention to the line that indicates the form of payment,” Donnelly says, a copy of the Ritz-Carlton bill for September 6—the day of the Vanderlyn dinner, the first day Aaron slept with Faith—shown on all six television monitors. “Please tell the jury the amount of the charge for the room on that night.”
“Six hundred and sixty-five dollars, which includes taxes.”
“And how did Mr. Littman make that payment?”
“In cash.”
One by one, Donnelly systematically goes through the rest of the Ritz-Carlton bills. As each invoice flashes on the monitors, the clerk takes a few moments to carefully study the paper copy in her hand—as if she hasn’t already reviewed it numerous times in preparation—and then announces the nightly charge and that Aaron paid in cash.
Donnelly walks back to counsel table and whispers something in the ear of her second chair, Stanton. A moment later, Faith’s picture comes on the computer screens, the same photo that the newspapers ran for her obituary.
Donnelly asks, “Did you ever see this woman at your hotel?”
“Yes. Many times.”
“Tell the jury about that.”
“She was something of a regular. Once a week or so, she would come in and head straight to the elevators. She never checked in, and I never saw her with any luggage. She just always went straight to the elevators.”
“Thank you, Ms. Luria. No further questions, Your Honor.”
Rosenthal’s cross is brief, but he drives home the only point there is to make.
“You must see thousands of people in your job?” he asks.
“Yes.”
“And you don’t recall ever seeing Mr. Littman, do you?”
The answer must be no. Otherwise, Donnelly surely would have had Luria make the identification during direct questioning.
“Not that I remember,” she says.
“And that must necessarily mean that even though you claim that you saw Judge Nichols at the hotel on various occasions, you have no reason to believe that Mr. Littman was meeting with her at any of those times. Is that correct?”
“I know that he checked into the hotel because of the records.”
“Ms. Luria, is that something that Ms. Donnelly told you to say?”
“Objection!” Donnelly calls out.
“Sustained.” Judge Siskind gives Rosenthal a sharp look. “Counselor, please. You know better than that.”
Indeed, Rosenthal does. Still, Aaron is thankful that the effort was made.
“Let me phrase it a different way,” Rosenthal says. “Ms. Luria, I grant you that you know from the hotel records that Mr. Littman was a guest at the Ritz-Carlton on certain dates. And your testimony is that you recall seeing Judge Nichols in the lobby from time to time. Is that correct?”
“Yes.”
“And so, all that I’m asking is if you can say, under oath, that you know, for a fact, that Mr. Littman and Judge Nichols were ever in the hotel on the same day.”
Luria hesitates, but again Rosenthal knows that if she could have put them together, Donnelly would have made this the center point of her direct examination.
“No,” Luria says softly.
“And isn’t it a bit odd, Ms. Luria, that you recall seeing Judge Nichols in your hotel—a woman who never actually checked in—but you don’t remember seeing Mr. Littman, who stood at the front desk for probably five minutes at a time, week after week, and handed over his driver’s license each time?”
Luria looks confused. “I’m not lying,” she says defensively. “I just don’t remember seeing him.”
“I don’t think you’re lying about that,” Rosenthal says. “Who could remember seeing someone months ago? It’s the part about you remembering that you saw Judge Nichols in your hotel that I’m suggesting is highly doubtful.”
“Objection!” Donnelly shouts.
“I agree,” Rosenthal says quickly, “it is highly objectionable, which is why I have no further questions for this witness.”
When Rosenthal sits down, Aaron whispers in his ear, “Nicely done, Sam.”
51
The last witness of this busy trial day is Sara Meyers. Upon hearing her name, Rosenthal leans over to Aaron and asks, “Who the hell is that?”
“One of Faith’s law clerks,” Aaron whispers back. “I never spoke to her.”
Aaron assumes Meyers will provide further evidence to support the affair. After all, no one knows more about the comings and goings of a judge than her law clerks. But when Donnelly asks if Sara was assigned the Garkov case, Aaron realizes that’s not the reason she’s testifying. She’s been called as a witness to provide evidence of motive.
“Ms. Meyers, what was your perception of Judge Nichols’s reaction to being assigned to the Garkov case?” Donnelly asks.
“I was super excited. It was a very high-profile case.”
“I understand that, Ms. Meyers. But my question was whether you noticed Judge Nichols’s reaction?”
“Oh, sorry. Yeah, I was kinda surprised because the judge didn’t seem happy about it at all.”
“Why did that surprise you?”
“Like I said before, it was a very high-profile case, with lots of interesting legal issues. As soon as we got it, I asked Judge Nichols to put me on it.”
“Did you do any legal research concerning Judge Nichols’s decision to revoke Mr. Garkov’s bail?”
“No. That’s why it was so surprising when she did it,” Sara says.
“Explain to the jury why you were so surprised.”
“Well, before Judge Nichols made a ruling, she’d always ask me to review the briefs and do extensive legal research. Then I’d present her with a bench memo, which had my findings, and a suggestion of how I thought she should rule. She almost always agreed with my analysis. Sometimes, she’d even have me write the decision. Then she’d edit it, but a lot of the time what I wrote stayed in.”
To hear Sara Meyers tell it, she was really the federal judge and Faith Nichols her assistant. Donnelly doesn’t seem to mind much, so long as she’s getting into evidence for what she needs to prove—that Faith’s conduct with regard to the Garkov case was aberrational.
“After Judge Nichols revoked Mr. Garkov’s bail,” Donnelly asks, “did the defense ask her to reconsider her bail decision?”
“Yes. The next day. An attorney from Cromwell Altman came to chambers. Not Mr. Littman, but his partner, Rachel London. I wasn’t with Judge Nichols when they met.”
“Was that unusual, Ms. Meyers? For Judge Nichols to meet with counsel without one of her clerks present?”
“Yes. Honestly, it had never happened before. The only way you really can learn is to be there. So, it’s important for the clerks to be in every argument or conference on one of the cases that you’re assigned. And since I was assigned the Garkov case, I was very surprised when Judge Nichols said she didn’t want me to sit in.”
“Why was Ms. London there?”
“She was making an order to show cause application.”
“Please explain to the jury what an order to show cause application is, Ms. Meyers.”
“It’s really just a request for a hearing date. In this case, the defense wanted Judge Nichols to schedule a hearing for the next day, at which time they were going to ask that she reverse her decision to revoke Mr. Garkov’s bail and reinstate his house arrest.”
“And what happened after Ms. London left Judge Nichols’s chambers?”
“I assumed that she’d granted the order, and so I asked her when the hearing was going to be and if she wanted me
to prepare a memo. You know, like I always did. But she told me that she’d already denied the motion. I was . . . honestly, shocked isn’t even the right word. I would say, flabbergasted. She’d never before denied an order to show cause. She might deny the underlying request, but not the request to just set up a hearing date. She always granted them.”
“What did Judge Nichols say to you after she told you she was refusing to even set up a date for the hearing?”
“She said she wasn’t feeling well and was going to go home.”
Donnelly’s face is screwed up tight, as if this is the oddest thing she’s ever heard in her whole life.
JUDGE SISKIND GIVES THE defense a ten-minute break after Donnelly finishes with Sara Meyers. During that time, Aaron and Rosenthal huddle about the cross-examination. The strategy they agree upon is to tread lightly, reasoning that Meyers can only hurt them.
And so when court resumes, Rosenthal focuses on Sara Meyers’s lack of experience. The goal is to convince the jury that even though Sara believes that Judge Nichols’s behavior in denying the order to show cause was odd, they shouldn’t.
“How long were you Judge Nichols’s law clerk, Ms. Meyers?”
“Six months.”
“And you never practiced law, did you?”
“No. I was a student before my clerkship.”
“I take it then that all you know about how often judges deny requests for orders to show cause is from that six months’ worth of experience.”
“Yes, but we had a lot of them.”
“Fair enough,” Rosenthal says with a smile. “Let me just get to the bottom of it, then. I’m assuming, Ms. Meyers, that if you believed that Judge Nichols was doing anything in her official capacity that was unethical, you would have been troubled by that. Am I correct in that assumption?”
“Um . . . if I thought so.”
“That’s my point exactly. You never thought that Judge Nichols was ever doing anything improper, did you?”
“No.”
“And I take it that means you didn’t think Judge Nichols had already made up her mind to convict Nicolai Garkov, did you? Because it would have been highly improper for her to have done that, correct?”
“I guess.”
“No, no, Ms. Meyers. This is very, very important. A man’s freedom is at stake. Please, just like this jury, you must be sure. You were with Judge Nichols every working day for six months, and I take it that, in that time, you knew her well. And my question is simple: did you think, even for a second, that Judge Nichols was acting unethically toward Nicolai Garkov? In other words, did you think she had already made up her mind to convict him even if the evidence at trial were to indicate that he was not guilty?”
Sara hesitates. Obviously, Victoria Donnelly has gone over the government’s theory of the case with her ad nauseam, and she doesn’t want to contradict it now.
Rosenthal decides to put his thumb more firmly on the scale. “Please, Ms. Meyers. Did you think that your mentor was engaging in the most horrific abdication of her judicial responsibilities imaginable and was really going to sentence a man to life in prison who didn’t deserve it?”
“No. I didn’t think she’d do that,” Meyer says. You can almost see in her eyes that she hopes Donnelly isn’t too upset with her.
It’s as good as they’re going to do with this witness. But Aaron knows it likely wasn’t enough. Even if Sara Meyers’s loyalty to her employer caused her not to be able to see it, the jury most likely has concluded that Judge Nichols’s bail revocation and then denial of the order to show cause—both coming without any consultation with her loyal law clerk—meant that she was going to convict Nicolai Garkov.
The only saving grace is that so far, at least, the prosecution hasn’t been able to prove that Aaron had anything to fear from such a result.
AARON RETURNS TO CROMWELL Altman after court to help Rosenthal prepare for the next day. It’s the first time he’s been back in his office since his arrest. He expects it to look different, but he’s the only thing that’s different.
“I expected that Pierce would have moved the furniture around by now,” Aaron says, only half joking.
“He couldn’t get the decorator in yet,” Rosenthal says back.
Rachel enters Aaron’s office a second after she knocks on the open door. “I asked Diane to call me when you got back,” she says by way of explaining her stalking them. “How’d it go today?”
“Just great,” Aaron says with obvious sarcasm. “They put on Faith’s husband, her law clerk, and a woman who worked at the hotel. The husband said he saw Faith and me at the hotel together. Then the hotel employee corroborated it, and Faith’s law clerk drove home that Faith had decided to convict Garkov even before the trial started.”
“It wasn’t that bad, Aaron,” Rosenthal says. “We kept out any evidence that she was up for the Supreme Court, and that teenager from the Ritz-Carlton couldn’t put you and Faith together.”
Rachel’s sad smile makes clear that she understands it was a better day for the prosecution than the defense. “I wish I could be there with you, Aaron,” she says. “I just feel so useless sitting at the firm. And I’m getting nowhere on the phone call to your office. I must have spoken to everyone at AT&T, and to a person they claim that the call happened. And our IT people say that there’s no record of any three-minute call on your voice mail that night.”
Aaron knows that this call will be his undoing, linking him and Faith right before Faith’s murder. The fact that they never spoke doesn’t matter. Truth and evidence are sometimes very distant cousins in a criminal trial.
“I know it’s frustrating to be away from the action,” Aaron says, “but you definitely are helping.”
Rosenthal seemingly doesn’t appreciate being a third wheel and says, “Rachel, can you give us time alone?”
“Of course,” Rachel says, trying to mask her embarrassment. “I’ll be in my office if you need me. Good luck tomorrow, Aaron.”
As soon as Rachel has made her exit, Aaron says, “Sam, you don’t have to be so hard on her. She just wants to help.”
“I’m sorry, Aaron, but I don’t trust her the way you do. Call it one of the benefits of being seventy-one. You become immune to beautiful women.”
Aaron shakes his head in disagreement, but there’s no reason to fight this particular battle now. “Do you think they’ll do the phone call tomorrow?” Aaron asks instead.
“I do.”
“And we’ve got nothing to rebut it.”
“I’m not going to let you go to jail, Aaron. I swear, that will never happen.”
Aaron says thank you, because there’s nothing else he can say to a promise that he knows Sam Rosenthal is powerless to keep.
52
Wednesday is composed of the scientific evidence. One by one, forensic experts take the stand to offer brief testimony describing the tasks they did and the conclusions they reached. It’s mind-numbingly boring, and the jury, at most, grasps only the headlines, which amount to: cause of death was blunt-force trauma to the head; time of death was between 9:00 p.m. and midnight; the murder weapon was some kind of stick, which may well have been a tree branch; and there was no physical evidence left at the scene by the attacker.
Rosenthal’s cross gets the defense’s main arguments into evidence. No, they did not find Mr. Littman’s DNA or fingerprints at the crime scene. No, there wasn’t any evidence directly linking Mr. Littman to the murder. That’s correct, they did not locate the murder weapon.
The expert parade concludes with the representative from AT&T, an Asian woman in her forties with a sharply angled haircut. She testifies that Judge Nichols received numerous calls from different prepaid phones in the months before her death, and at 9:48 p.m. on the night she was murdered, she called Aaron Littman’s office number, and that call lasted three minutes and three seconds.<
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Donnelly milks this piece of evidence for all it’s worth. She has the phone bill passed around the jurors, waiting patiently while each one sees what they’ve just heard Ms. AT&T say.
“Is there any way—any way at all,” Donnelly says when the last of the jurors has looked at that bill, “that this call did not happen?”
“None,” Ms. AT&T says. “The simple fact is that phone bills don’t lie.”
On cross Rosenthal gets the defense’s response to the phone call before the jury. Hearing it, Aaron thinks it doesn’t sound half-bad.
“You testified that this call definitely occurred, correct?” Rosenthal says.
“Like I said, phone bills don’t lie.”
“But you don’t know who actually dialed the phone, do you?”
“How could I know that?”
“That’s right, you couldn’t. In fact, no one could, simply from looking at the phone bill. And you’re not a medical coroner, are you?”
“No. I work for a phone company.”
“And so, it is possible, is it not, that after Judge Nichols’s murderer killed her, he took the phone out of her pocket and made that nine forty-eight call, and that is the person who stayed on the line for three minutes and three seconds, just so the police would later think that Judge Nichols called Mr. Littman?”
Ms. AT&T seems at sea. “I guess,” she says meekly. “I really have no idea who made the call. I just know that it was made.”
AARON DECIDES THAT THERE’S little point in going back to the office after court to do a postmortem. Even with Rosenthal’s sleight of hand regarding the 9:48 phone call, the trial is not going well, and he’d rather spend the evening at home because he knows that his days with his family might well be numbered.
LATER THAT EVENING, JUST before he and Cynthia turn off the lights for the night, Aaron says aloud what he hasn’t been able to fathom before.
“I think I’m going to be convicted.”