by Adam Mitzner
Donnelly rises. “Your Honor, it’s not my place to invoke the marital privilege, if both Mr. Littman and his wife intend to waive it. But I will object later and ask that this testimony be stricken if the Littmans attempt to use the privilege as both a sword and a shield, testifying to the marital communications between them that they want the jury to hear, and then invoking the privilege to block other communications.”
“The defense has nothing to hide,” Rosenthal says, looking at the jury. “We will not be invoking marital privilege.”
Judge Siskind’s expression subtly betrays surprise at the tactic, but it’s not her place to say so. “Then continue on, Mr. Rosenthal.”
Rosenthal repeats his question and Cynthia emphatically declares her husband has never been unfaithful. Rosenthal walks back to counsel table and Aaron hands him the Ritz-Carlton documents that prove otherwise.
After obtaining the court’s permission, Rosenthal approaches the witness stand. He hands the Ritz-Carlton bills to Cynthia.
“Mrs. Littman, before you is an exhibit previously introduced by the prosecution. As you can see, it’s a series of photocopies of your husband’s driver’s license on the letterhead of the Ritz-Carlton hotel, each bearing a date. Also among the documents I handed to you are various Ritz-Carlton invoices indicating that your husband paid for these hotel rooms in cash. My question to you is simple: did you know that your husband was at the hotel on those dates?”
“I did,” Cynthia says confidently.
“And why was your husband there?”
“To see me.” There’s nervous laughter in the gallery. “This is embarrassing . . . but, Aaron and I have been married awhile and, well . . . to put some spark back in our marriage, we would meet at the Ritz once a week or so.”
The defense knew that the moment Cynthia laid out this story, the prosecution would scour the hospital charts to see if there was any date that she could not have possibly been at the Ritz-Carlton. But Cynthia said that there was nothing to worry about. She could have arrived at the hotel at any time, and given that the desk clerk couldn’t recall Aaron’s presence, that also necessarily meant that she couldn’t convincingly say her failure to remember Cynthia was proof that she wasn’t there.
There’s one more thing Rosenthal needs Cynthia to explain away. He asks, “Mrs. Littman, if this was part of a fantasy—as you claim—why did your husband pay in cash? It required him to go to the ATM, when he could have easily paid the room charge with a credit card.”
Cynthia looks surprised and says, “I honestly didn’t know he paid in cash until it became an issue in this case. I was never with him when he checked in, which was also part of the role-play. But that’s the thing about Aaron. He’s like a Method actor in that way. The part he was playing was to be secretly meeting a woman at a hotel, and so he stayed in character all the way, which included paying in cash.”
Out of his peripheral vision, Aaron sees Donnelly’s incredulity. But when Aaron turns to the jury, they look far less skeptical.
IT’S A TESTAMENT TO how well Cynthia’s done that when it’s Donnelly’s turn, she has the look of a boxer storming out for the fifteenth round in need of a knockout.
“You would agree with me, would you not, Mrs. Littman, that the whole point of an extramarital affair is to keep it secret from your spouse?”
“I wouldn’t know the whole point of it, Ms. Donnelly. I’ve never had an affair.”
It’s a warning shot by Cynthia, telling Donnelly she shouldn’t take her on. Donnelly pauses, as if she’s rethinking some of the questions she decided to ask.
She must conclude that Cynthia poses more risk than reward, because she then retreats, falling back to the hackneyed questions prosecutors always ask of a testifying spouse. It’s smart tactics. Donnelly’s not going to get Cynthia to contradict herself and she can better make her points through her cross-examination of Aaron, who will have much less built-in goodwill with the jury.
As a result, the next half hour is composed of the types of questions to which the answers are preordained. You love your husband, don’t you? You’d worry about your children if their father went to jail? You’d do anything to help him?
For her last question Donnelly asks, “You’d even lie for your husband under oath, wouldn’t you, Mrs. Littman?”
“Yes,” Cynthia says without hesitation. After a slight pause, she adds, “I’m thankful I don’t have to.”
The first part of the answer was just about the only truthful testimony Cynthia provided.
56
As soon as Sam Rosenthal says Rachel London’s name, Donnelly shouts out her objection and asks to be heard in chambers.
A few minutes later, everyone is reassembled in the judge’s office. The judge sits behind her desk with the lawyers standing in a semicircle in front of her.
“What’s the story on this witness?” Judge Siskind asks.
Donnelly says, “On Saturday, we received notice of the defense’s intent to call Ms. London as an alibi witness. Obviously, Rule Twelve notice should have been made weeks ago.”
The defense knew this would be a problem. If they had an alibi witness, the rules of criminal procedure required that they provide notice to the prosecution within fourteen days of its request—one the government made more than a month ago. Rosenthal came up with the only solution that could possibly work, and now it’s time to see if Judge Siskind will go for it.
“Your Honor, the failure to file the Rule Twelve notice was entirely mine, and I apologize profusely to the court and to the prosecution. I thought I made the disclosure two weeks ago, shortly after I received the government’s discovery, which Your Honor might recall was provided to the defense only the day before the last pretrial conference. Just this past weekend, as I was preparing our defense, I realized the Rule Twelve notice had never gone out, and so I immediately sent it. Certainly, in a case where the stakes are this great, Mr. Littman should not be denied an alibi witness because of a mistake made by his counsel. Just as important, there is no harm done by the late disclosure because, as Ms. Donnelly said, the government has already interviewed Ms. London. On top of which, as the court knows, the defense was denied a witness list in this case, and so the government can hardly complain about prejudice because they only had a few days’ notice about this witness when the defense in turn had absolutely no notice of any prosecution witness.”
“Your Honor, this is an eleventh-hour desperation move,” Donnelly says, sounding a bit desperate herself. “The hard truth is that we believe Ms. London is going to perjure herself to help Mr. Littman. We interviewed Ms. London during our investigation and she never suggested that she could alibi Mr. Littman. It doesn’t take a genius to figure out that the defense sees the trial going badly, and so they either lean on a junior partner to commit perjury, or maybe they’re bribing her to do so with the promise of, say, a bigger bonus next year, or she’s doing it on her own volition out of some misguided sense of loyalty. Whatever her motive, this court cannot let perjured testimony come into evidence.”
Judge Siskind furrows her brow. Based solely on her body language—arms crossed, eyes narrowed—Aaron has a moment of panic that Judge Siskind might actually preclude Rachel’s testimony.
“Whether or not this witness is telling the truth is an issue for the jury,” she finally says.
Donnelly looks apoplectic. “Your Honor—”
“I’ve ruled, Ms. Donnelly. If you think that Ms. London is committing perjury, you can file criminal charges. Now let’s go hear what she has to say.”
RACHEL IS THE ANTI-CYNTHIA on the witness stand. She’s done everything she can to tone down her looks. Her hair is pulled back into a single ponytail, she wears little makeup, and her suit is the most masculine in her closet—she hasn’t worn it in years for just that reason. Even so, she looks like the supposedly ugly girl in one of those teen comedies, where the audience knows that on
ce she removes her glasses, she’ll be a knockout.
Rachel tells the jury that she is a partner at Cromwell Altman and has known Aaron for more than a decade. She describes her relationship with him as “like a mentor and a mentee.”
Rosenthal doesn’t ask if she and Aaron are lovers. Better for Donnelly to cross that line and then have Rachel become outraged by the suggestion.
“Were you working with Mr. Littman on the Garkov case?” Rosenthal asks.
“I was.”
Rosenthal clears his throat and then limps over to counsel table and pours himself a glass of water. It’s an old lawyer trick. He wants to make sure that the jurors are listening for this part.
After he resumes his position behind the podium, Rosenthal says, “Ms. London, I only have a few more questions, but they’re very important. First, please tell the jury where you were on the evening that Faith Nichols was murdered.”
“I was in the Garkov war room. That’s the conference room near my office where we kept most of the Garkov files.”
“Are you sure about that?”
“Absolutely positive. After Judge Nichols denied our request that she reconsider Garkov’s bail revocation, we had a lot of work to do regarding a possible appeal. So, there’s no other place I’d be.”
Rosenthal hands Rachel the car voucher she used that evening. It corroborates that she left Cromwell Altman at 12:08 a.m. Ready to gild this particular lily, he then passes it around the jurors, waiting for each one to review it before getting to what he hopes will be the knockout blow.
“Did you see Aaron Littman at the firm that evening?”
“I couldn’t help but see him. He was sitting right next to me the whole night.”
“Was there a time when Mr. Littman was out of your sight between . . . let’s say 9:00 p.m. and midnight that evening, such that he could have gone to Central Park and committed this murder?”
“No,” she says emphatically. “That’s not possible. Aside from one of us going to the bathroom, or maybe going to get a soda from the kitchen, we were together the entire evening. In fact, he was still in the office when I left.”
Rachel has done as well as Aaron could have imagined on direct questioning. But, of course, cross-examination still awaits her.
VICTORIA DONNELLY SURELY KNOWS that her sole objective in cross-examination is to convince the jury that Rachel London is a flat-out liar. She wastes no time, immediately zeroing in on Rachel’s claim that Aaron was with her at the time of the murder.
“Ms. London, you testified that on the evening that Judge Nichols was murdered, Mr. Littman was with you from about nine o’clock until about midnight. But when you met with me before Mr. Littman was arrested, you didn’t tell us that, now, did you?”
“I don’t recall everything I said during the interview, but I do know that I told you the truth.”
Donnelly stares hard at Rachel. Sizing her up, undoubtedly wondering if she’s capable of breaking her.
“Perhaps this will refresh your recollection, Ms. London.” Donnelly opens a black loose-leaf binder, which Rachel assumes contains the notes one of the FBI agents took during her interview. With her head in the notebook, Donnelly says, “During that interview, I asked if you had any reason to think that Mr. Littman did not kill Judge Nichols. Do you remember me asking that question?”
“I do.”
“But in response, you didn’t say that you were with Mr. Littman at the time of the murder, now, did you—yes or no?”
Rachel smiles. The Answer me, yes or no! tactic might be a staple on TV dramas, but it never works in real life.
“I recall that I answered that there were a million reasons why Mr. Littman didn’t kill her. Included among those million reasons was the fact that he was with me at the time of the murder.”
“But you never said that, did you?”
“You didn’t ask me what the reasons were.”
Rosenthal shouts, “Objection!” but Donnelly is yelling over him: “In fact, I did, and you refused to answer!”
“Objection!” Rosenthal shouts again.
“Counsel!” Judge Siskind exclaims over both of them. “Approach right now!”
At the bench, Rosenthal hisses, “Your Honor, I am appalled. As Ms. Donnelly well knows, Ms. London did not answer the question on the advice of her lawyer during a voluntary interview. Ms. London had the absolute right not to answer. Given that the prosecution previously urged the court to rule that Mr. Garkov’s invocation of the Fifth Amendment was too prejudicial for the jury to hear, it’s unconscionable for them to suggest to the jury now that there was anything incriminating about Ms. London not answering a question.”
“Ms. Donnelly, is this true?” Judge Siskind asks. “Because if it is, I am very unhappy. At least the defense raised the issue of Mr. Garkov’s taking the Fifth before just throwing it out there in front of the jury.”
Donnelly must know that she’s on the wrong end of this one, but she doesn’t shame easily. “Your Honor, there is no doubt in my mind that this witness is lying to protect Mr. Littman. Why else wouldn’t she tell us during her interview that she could alibi him?”
“Not interested in your mind, Ms. Donnelly. I only care about the evidence you’re submitting to the jury, and that’s not going to include innuendo or half-truths. Now, here’s what I’m going to do. I’m going to instruct the jury that the last few questions and answers should not be considered by them in their deliberations because Ms. London’s prior interview by the government is of no importance here. All that matters is her testimony today.”
“Your Honor,” Donnelly says in a pleading voice, “we have the right to impeach her testimony with prior inconsistent statements.”
“That you do, Ms. Donnelly, if you had any prior inconsistent statements. Tell me one and I’ll consider allowing you to use it. But her refusal to answer a question is not a prior inconsistent statement.”
Donnelly returns to the podium to resume her cross-examination. The smart move is for her to regroup and carefully dissect Rachel’s testimony. But her expression makes clear that she’s not going to pursue a surgical attack. She’s out for blood.
“Ms. London . . . on direct questioning, you said that your relationship with Mr. Littman was professional. Mentor-slash-mentee is the phrasing I believe you used. But the truth is that you’re in love with him, aren’t you?”
Rachel flashes on all of her lying clients over the years. She’s already lied about Aaron’s presence with her in the war room, but somehow disavowing her love seems harder to do. It takes her only a moment—a pregnant pause, at best—but it’s there.
She then says, “Aaron Littman and I work together. Nothing more. What you’re implying is an insult to every woman in the workplace, Ms. Donnelly. How would you feel if someone said that you only got to prosecute this case because you were in love with the U.S. attorney?”
Bull’s-eye. Donnelly asks a few more questions, largely so she can end on something other than Rachel’s rebuke, but when Rachel’s testimony ends, that’s likely all the jurors will remember.
That, and the fact that she said Aaron couldn’t have killed Faith Nichols because he was beside Rachel London at the time of the murder.
57
Aaron spends that evening in a Cromwell Altman conference room, essentially running lines. “A murder trial is no time for improv,” Rosenthal says when Aaron deviates from the script.
Only cross-examination will be unrehearsed, and even that has been practiced at length. Rachel has been tasked with playing Donnelly’s part, sneer and all. If anything, Aaron’s even better at deflecting Rachel’s accusations than he was at providing the self-serving responses Rosenthal’s questions elicited.
At ten o’clock, Rosenthal announces, “If it all comes in that well tomorrow, I think we’ll be way ahead of the game. Go home and get some sleep, Aar
on.”
Rachel shares the elevator with Aaron.
“You were great today,” Aaron says.
“Thanks. But tomorrow’s what really counts. No pressure, though.”
A sad smile comes to her lips. It’s Rachel’s way of saying that Aaron’s not out of the woods yet.
CYNTHIA IS SITTING UP in bed reading when Aaron enters the bedroom. She looks sincerely happy that he’s finally home, and Aaron lets the feeling of being welcome wash over him.
“So, are you ready?” Cynthia asks.
“We’ll know tomorrow, I guess. But if it doesn’t go well, it’s not going to be for lack of preparation.”
“It’s not that hard,” Cynthia says. Then, with a sly smile, she adds, “It’s kind of ironic, don’t you think? Now I’ve testified, and I’ve even been cross-examined by Victoria Donnelly, but this is new to you. It’s a first. I’m giving you legal advice.”
“So . . . what’s your advice?”
“Be yourself. The jury will like you.”
“I doubt that. The thing about criminal trials is that the jury wants to convict. That’s the only happy ending. If they acquit, it just means that no one pays for the crime.”
“That’s why we’re giving them a different happy ending to want. We’re giving them a love story. They’ll see that if you’re acquitted, we can be together.”
If only what she said were true, he thinks. Unfortunately, he knows otherwise.
The jury will not be so interested in Aaron’s having a happy ending. They’re only going to care about justice for Faith Nichols.
58
It is nearly gospel among defense attorneys that when you put your client on the stand, nothing else matters. The forensic evidence, the other witnesses, expert testimony, all of it goes away. If the jury believes they’re listening to a truth-teller, they acquit. If they think the defendant is trying to pull something over on them—and it doesn’t even matter about what—they convict.