by Adam Mitzner
Simple as that.
It’s the reason so few defendants take the stand in their own defense. Only the most gifted liars can pull it off.
Now it’s time for Aaron to see if he falls into this dubious category.
The strategy is for Sam Rosenthal to address the most damaging evidence first. This will allow the questioning to end on a high note.
And so, after establishing Aaron’s background, Rosenthal gets right to the stuff that matters. “Did you engage in a sexual relationship with Judge Faith Nichols?”
“Absolutely not. Outside of a few times we talked at business functions, I never spoke to her except in court.”
“Yesterday your wife testified that you and she met at the Ritz-Carlton hotel. Do you recall that testimony?”
“Yes. Quite honestly, it’s something we never dreamed we’d have to share with the entire world, no less our teenage daughters. She saw it on an episode of Modern Family. The characters pretend to be other people and meet at a hotel bar. She wanted to try that and then it became part of a ‘date night’ routine for us.”
“Did there come a time when this date-night ritual stopped?”
“Yes. For one reason or another, our schedules didn’t sync for a few weeks, and then . . . well, I was charged with this crime and that pretty much meant the end of date night for me.”
There are some chuckles in the gallery. A moment of levity that hopefully humanizes Aaron in the jury’s eyes.
“Did you ever see Judge Nichols at the hotel?”
“No, never . . . I’m sorry, I take that back. I recall talking to her briefly at a dinner to honor George Vanderlyn, who was her former boss and also someone I know professionally. She was seated at the table with my law firm, an assignment made at random by the organizers of the dinner. I excused myself that evening at maybe nine o’clock, because it was the first of those special date nights with my wife. We decided it would be fun because I was already at the hotel for the business dinner and so it fueled the fantasy a little.”
Rosenthal pauses. So far, so good.
“Mr. Littman, I’m going to direct my questioning to something else now. Roy Sabato testified that he told you Nicolai Garkov had damaging information about you. Do you recall that?”
“I recall him testifying to that, yes.”
“Is your recollection of that meeting consistent with Mr. Sabato’s testimony?”
“The way I remember it, he asked me to take on the matter, and I initially told him that I was very busy. Then Roy offered me the hundred thousand dollars for the initial meeting, and told me that he was concerned that if I didn’t agree to it, Mr. Garkov would reveal something about me. I didn’t take the threat seriously, of course. Desperate defendants have been known to say whatever it takes. But the practice of law is a business, and I did take the offer of one hundred thousand dollars seriously. So I ultimately agreed to meet with Mr. Garkov.”
Admitting that Sabato relayed Garkov’s threat was risky, but in the end, it was the only play. For Aaron to deny it made little sense. What possible reason would there be for Sabato to lie about that?
Rosenthal asks, “At that time, did you even know that Faith Nichols had been assigned as the judge on the Garkov case?”
“No. The judicial assignment occurred very late at night the day before, and only people who were involved in the case got official notice, which, of course, didn’t include me. When Mr. Sabato asked me to meet with Mr. Garkov, I believed Judge Mendelsohn was still presiding over the case.”
This, too, wasn’t true, of course. But Sabato testified he couldn’t remember mentioning that Faith had been assigned to the case, and that opened the door for Aaron to lie without fear of contradiction.
“Did you meet with Mr. Garkov after you met with Mr. Sabato?”
“Yes, I did.”
“And what did you two discuss?”
Aaron turns away from Rosenthal so he’s looking at the jury. “I need to be careful here because my discussions with Mr. Garkov are protected by the attorney-client privilege, and I have been told by Mr. Garkov’s current counsel that he does not waive that privilege. As a result, I can’t legally reveal what he said to me or what I said to him. But I can testify about what Mr. Garkov did not say, and he most definitely did not threaten me, nor did he ask me to blackmail Judge Nichols in any way, shape, or form.”
Rosenthal walks back to the counsel table, leaning heavily on his cane as he does. Once there, he picks up the stack of phone records.
“Did you ever speak to Judge Nichols by phone?”
“We had frequent telephonic conferences during the Eric Matthews case. But whenever that occurred, all counsel were on the phone. So, if your question is whether I ever spoke to Judge Nichols one-on-one, the answer is no. I would never do that because it’s improper to have ex parte contact with any judge that you’re appearing before.”
“Please explain to the jury what ex parte means.”
“I don’t know the literal translation from Latin, but in practice it means that whenever a lawyer speaks to a judge, the lawyer for the other side must also be present. That’s true for phone calls and in court appearances. It’s even the case when we send letters. The other side gets a copy. That’s just standard operating procedure.”
Rosenthal asks for permission to approach the witness, and after Judge Siskind grants the request, Rosenthal again uses his cane, clanking it against the floor with each step, as he makes the fifteen-foot trip from the lectern to the witness box. Once there, he hands Aaron the stack of phone bills and then takes even longer to make it back to the podium to resume his examination.
“Mr. Littman, I’ve handed you the evidence previously submitted by the prosecution,” Rosenthal says, “that lists all of the phone calls to and from Judge Nichols’s cell phone. Let me ask you point-blank. Did you make or receive any of those calls?”
“No, I did not.”
“Have you ever purchased a prepaid phone?”
“No,” Aaron says with a head-shake. “I use the cell phone that my law firm provides me.”
It’s time for Rosenthal to head for home. The night of the murder.
“Mr. Littman . . . did you see Judge Nichols on the night she was murdered?”
“No.”
“Where were you that evening?”
“I was at the office all night. Other than a few minutes here and there, I was in a conference room with Rachel London. She called it the war room.”
“Ms. London testified that she left before you that night, though. Is that true?”
“That is my recollection, although I did leave shortly thereafter.”
There’s one problem with this story. There is no evidence of how Aaron got home that night.
His usual practice, like all the Cromwell Altman partners, was to use the firm car service and charge a client for the ride. But that created a paper trail, like the voucher Rachel relied upon to show she had been in the office until a little after midnight. On a few occasions, Aaron walked home, so at least it was not the case that every night was accounted for with a voucher, but he could not plausibly claim that he walked home on a cold evening after midnight.
Rosenthal decided that it was better to bring the point out on direct than to leave Aaron floundering to explain during Donnelly’s cross-examination. That way, when she did go after him about it, it would seem like old news. At least that was the hope.
“Mr. Littman, how did you get home that evening?”
“Frankly, at first I didn’t remember. It was just another late night at the office, and that’s pretty much my regular practice. Even when I heard the next day that Judge Nichols had been killed, I didn’t think I’d have to account for my whereabouts. Of course, when the charges were filed, we went back to the vouchers but didn’t see one for that night. That could mean the voucher was lo
st, or that I grabbed a taxi that night.”
“Why would you take a taxi rather than the firm’s car service?”
“Any number of reasons. There might not have been a car available and a taxi pulled right up. The yellow cabs hover around the area all the time, trying to steal business from the car service. It’s also possible I needed to get something from the Duane Reade, which is a block or two from the office, and it’s open twenty-four hours. Sometimes after leaving the office, I’ll walk a few blocks just to unwind a bit and then hail a cab. Honestly, I just don’t remember what I did on that particular night. I wish I did, but I don’t.”
It’s the best he can do with what they have. Rosenthal looked into creating a false voucher, but the risks outweighed the benefits. The car service would likely have complied, given that Cromwell Altman is their biggest client. And a driver might have been paid off too, swearing that he took Aaron from work that night. But it was Aaron who ultimately thought they were going too far out on a limb for a minor point. Putting his trust in Cynthia or Rachel was one thing, but putting it in a limo driver was quite another. Plus those yellow cabs really were like sharks anyway, which made plausible each of the scenarios he had laid out.
And so, after establishing Aaron’s alibi as best as lying can do, Rosenthal ends the examination with a closing flurry.
“Mr. Littman, did you kill Judge Nichols?”
“No.”
“Just no?”
“What else can I say beyond no?”
I didn’t do it. You have to believe me.
59
Federal prosecutors don’t cross-examine many witnesses. Partly this is because trials in federal court are rare as a general matter, with well over 90 percent of defendants pleading out. And, at least in New York City, the defendants who do go to trial are usually drug dealers and organized-crime figures, and they don’t call many witnesses on their own behalf because their associates tend to be criminals as well.
As she prepares to ask her first question, however, Victoria Donnelly doesn’t seem the least bit apprehensive. On the contrary, she looks like a predator eyeing prey.
“Mr. Littman,” she says as if his name is an epithet, “let me get straight here what you’re asking this jury to believe. First, you claim that you never had an affair with Judge Nichols, even though her husband provided sworn testimony that he saw the two of you holding hands as you left the Ritz-Carlton hotel. Do I have that right?”
“I never had an affair with Judge Nichols and I was never with her at the Ritz-Carlton—other than the one time I spoke about, during a banquet that was attended by hundreds of others. Needless to say, that also means that I never held hands with her at any time.”
“So, Mr. Christensen, Judge Nichols’s widower . . . he’s a liar. That’s your testimony?”
Aaron knows this is the most precarious part: to maintain his innocence and yet not appear as someone asking the jury to disbelieve everyone but him.
“I don’t know why Mr. Christensen testified as he did. Perhaps he’s mistaken. Perhaps he lied to you so that he wouldn’t be considered a suspect. I don’t know. What I do know is that I did not have an affair with Judge Nichols.”
I didn’t do it. You have to believe me.
“But you did frequent the hotel, didn’t you? You’re not claiming that the Ritz-Carlton’s records are also lying, are you?”
Donnelly’s clearly trying to get a rise out of Aaron, to show the jury that he’s a man prone to outbursts. His job, therefore, is to remain cool, no matter what she hurls at him.
“As my wife and I both previously testified, we went to the hotel about once a week. It was part of our date nights.”
“So just a coincidence, is that your testimony? A clerk at the Ritz-Carlton says that Judge Nichols was often there. Her widower says he saw you hand in hand with his wife at the hotel, and you admit that you were there but claim that you were there with your wife. Do I have all of that right? It’s all just one big coincidence?”
“My experience in criminal practice is that the prosecution often takes a fact—for example, my presence at the Ritz-Carlton from time to time—and pressures witnesses to conform their recollection to such facts. So, a clerk at the Ritz-Carlton might be pressured to say that she remembered Faith being there on multiple occasions when the truth could be that she saw her once for a business meeting . . . and like I said, Judge Nichols was at the hotel for the George Vanderlyn banquet. As for Mr. Christensen, all I can say is that a spouse is often a suspect when the wife is murdered, and therefore he might say just about anything to save his own skin.”
“Well, finally, something we can agree on, Mr. Littman,” Donnelly says. “Some people would say anything to save their own skin. Is Roy Sabato also lying to save his own skin when he says that he told you that Nicolai Garkov would make public some very incriminating information about you if you did not agree to meet with him?”
Aaron’s already conceded this, so he’s got no choice but to take it on the chin.
“Yes, that is what Roy said.”
“And the information he was talking about—the information he claimed Mr. Garkov would make public if you didn’t meet with him—that was your affair with Judge Nichols, wasn’t it?”
“No. That’s not the case. As I testified, I did not have an affair with Judge Nichols.”
“But you admit that Mr. Sabato said that Mr. Garkov had information that would be extremely damaging to you?”
“As I’ve said repeatedly now, Mr. Garkov didn’t have any information. He was bluffing when he told Mr. Sabato to say that.”
“Yes, yes. That’s your story and you’re sticking to it.”
Aaron doesn’t answer, and Donnelly appears content to have the silence permeate the courtroom. When she’s played out the theatrics to their fullest extent, she fires off another question.
“Mr. Littman, on the night Judge Nichols was killed, she received two phone calls from the same phone number, and she made a phone call to that number. Is it your testimony that you didn’t make those calls or receive a call from her?”
“Yes, it is.”
Donnelly pulls a piece of paper from the pile of exhibits that have already been introduced. Then she reads: “Faith, please call me at this number as soon as you can. Very important. Are you also telling this jury that you did not send that message?”
“That is correct. I did not send that message.”
“If Mr. Garkov was blackmailing you by, let’s just say . . . by threatening to reveal your affair with Judge Nichols unless Judge Nichols helped him in his case, that is the kind of text you would have sent, correct?”
Aaron looks across the courtroom at Rosenthal. The question is way out of bounds, but Rosenthal doesn’t object. Instead he offers Aaron a slow nod, his way of conveying that Aaron’s got to sink or swim on his own, lest the jury believe Rosenthal is trying to obstruct them from hearing the truth.
“The question is based on a false premise,” Aaron says calmly. “I can’t answer it because I wasn’t having an affair with Judge Nichols, and Mr. Garkov was not blackmailing me, and because I didn’t send that text.”
“And according to you, Mr. Littman, you were in the office the night of the murder with Rachel London?”
“I was in the Garkov war room with Ms. London, yes.”
“You and Ms. London are very close, aren’t you, Mr. Littman?”
“I’m close to a great many of my partners at Cromwell Altman. I don’t know what you mean by very close, though.”
He knows as soon as he’s said it that he should have let Donnelly have that one. But cross-examination is a bit like drowning in that way—when you start to go under, none of your senses work and your actions are often counterproductive.
“Yes, Mr. Littman, I should have known that you love all two hundred of your partners equally and co
mpletely,” Donnelly says. “C’mon, let’s be honest with the jury, shall we? There’s only one partner that you asked to assist you on the Eric Matthews case. Who was that?”
“Rachel London.”
“And there was only one that you asked to assist you on the Garkov case. Who was that?”
“Again, Ms. London.”
“Right. And, in fact, Ms. London owes her partnership to you, doesn’t she?”
Aaron pauses, contemplating whether he can credibly push back on the assertion. Donnelly takes advantage of the silence to deny him that path.
“Mr. Littman, if I called to the stand any number of your partners, wouldn’t they tell me that your blessing alone is enough to elevate an associate to that brass ring, and the millions of dollars in compensation that come with it?”
Aaron feels like he can no longer struggle against the current. “As the chairman of the firm . . . my vote has considerable weight, yes.”
“Thank you, Mr. Littman. It wasn’t so hard to tell the truth, now, was it?”
Judge Siskind looks over to defense counsel table, apparently expecting Rosenthal to object. But when he says nothing, she takes it upon herself.
“Dial it down a notch, Ms. Donnelly,” she says.
Donnelly, however, continues the onslaught. “And you claim that you just don’t remember how you got home the night Judge Nichols was murdered. Is that your story?”
“It’s not a story, Ms. Donnelly. That’s my sworn testimony.”
Donnelly smiles at him with contempt. “And it’s also your sworn testimony that you might have—after midnight on a cold winter night—decided to take a little stroll in midtown Manhattan and then look for a cab, rather than just get inside one of the limousines your law firm has parked right in front of its building to shuttle the partners to and from work. Do I have that part of your sworn testimony right?”
“As I testified before, I sometimes do walk for a block or two. Just to clear my head. It’s quite easy to find a taxi in midtown Manhattan at that time of night.”
“But you didn’t submit for the expense, did you, Mr. Littman? So, you have a free ride with the car service, but you’re claiming that you decided to pay for the ride yourself.”