by Adam Mitzner
I can’t reach Ohlig on his cell, which might be because he’s still in the courthouse, having opted to have lunch with Pamela in the cafeteria, another sign he’d rather spend as little time as possible in my company. With no other choice, Abby and I head back to court, disk in hand.
Sure enough, we find him in the cafeteria. “I’m sorry, Pamela,” I say when we approach, “but I’m going to need Michael for a moment.”
It’s no surprise that Ohlig doesn’t ask what’s so important. Of course, he wouldn’t ask under any circumstances, but like Abby had already surmised, in this case he almost surely knows why I’ve sought him out.
We go upstairs to the witness room adjoining Judge Sullivan’s courtroom. It’s the only place in the courthouse where we can be assured of privacy. As soon as Abby closes the door, I get down to business.
“A disk was left on my chair when I got back from court today. We don’t know who sent it. It’s audio only. The whole conversation—at least the part that’s on the disk—is less than two minutes.”
Ohlig starts to say something, but I put up my hand like a traffic cop, directing him to stop. “Let’s hear it first, Michael, and then we can discuss it.” Without waiting for a response, I motion to Abby to play the recording.
We all listen. And I’ll be damned if Ohlig isn’t wearing his Cheshire cat grin even before it gets to the good part.
“This is good for us, right?” Ohlig asks when the recording is finished.
“Could be good, could be bad,” I begin to explain. “Let’s say it’s not Fieldston on the tape. Then it looks like we’re manufacturing evidence. Not the best foot to put forward in a trial that so far isn’t exactly going our way, don’t you think?”
“I’m willing to take that chance,” Ohlig says matter of factly enough that I no longer have any doubt about the disk’s origin, not that I had much before. God only knows how many times Ohlig has sent beautiful women wearing wires to make small talk with Fieldston in the hope that he’d spill something.
“Michael, I want to stress that this could easily go very poorly for us. For starters, if Fieldston denies that it’s him, Judge Sullivan won’t give us an inch to prove otherwise, especially after your brilliant bribery attempt. But even in the best case scenario, Fieldston is just going to say it’s out of context and a lot of the discussion was edited out. We’ll then be at his mercy, and at that point he’ll be out for blood.”
“Let him say whatever he wants. After the tape is played, no one is going to believe a word out of his mouth.”
“Michael, the jury is going to assume you set him up.”
Ohlig’s face tightens, a look that reminds me of a clenched fist. “I can’t believe that you’re seriously thinking about not using this,” he says.
“I hear what you’re saying, but—”
“No. Don’t give me the ‘I hear what you’re saying’ bullshit. Say it straight out. You blame me for your mother’s death, and now you’re trying to even the score.”
“That’s not true,” I say, almost too reflexively, like when a boxer tells the referee that he wants to continue without regard to the beating he’s just received.
“Then tell me what it is, Alex, because when someone drops a bombshell in our lap like this, it just doesn’t make any sense to ignore it.”
“I’m just trying to lay out the negatives for you,” I say. “I know you don’t like to hear negatives, but it’s part of my job to see the risks as well as the rewards.”
“Okay,” he says, this time more calmly. “Now it’s my turn to say it—I hear you, Alex. I understand the risks. I still want to go forward with using the tape. Agreed?”
“You’re the client,” I say, fully knowing it isn’t a direct response.
“Good,” he says. “Sometimes you act like that’s not the case.”
39
Eric Fieldston approaches the witness stand without looking in our direction. Once in the witness box, he seems to be making a conscious effort to focus only on Pavin, as if to block Ohlig completely from his line of sight.
Fieldston has taken on the Ohlig persona, the way some people end up looking like their pets over time. Like Ohlig, Fieldston’s hair is a little long, but well styled, and he’s dressed impeccably, but without flash, as if he went to the Armani showroom this morning and bought whatever the mannequin was wearing.
From the beginning of his direct it’s obvious that Fieldston has been very well prepared. His answers are all short and directly responsive to Pavin’s questions. Answer the question asked, and only that question is rule number two of witness prep, right after tell the truth. I once had a witness who took the instruction so literally that when asked if he could state his name, he said only yes.
Pavin gets the entire immunity issue out of the way early, making it clear that Fieldston goes straight to prison if he lies on the stand. Of course, Pavin omits that he will be the one who makes the determination as to whether Fieldston’s lying.
When the preliminaries are over, Pavin goes right in for the kill.
“Mr. Fieldston, who directed that the stock called Salminol be sold by OPM?”
“That would be Mr. Ohlig.”
“Was Mr. Ohlig aware that Salminol actually had no value at the same time OPM was selling it?”
“He was.”
“Do you know why Mr. Ohlig directed this worthless stock be sold to the public?”
“Yes.”
“Please explain to the jury why Mr. Ohlig made that decision.”
“OPM acquired a huge block of Salminol stock. I think we paid around twenty cents, on average, so the total position was something like thirty-five million. I don’t know precisely what happened to alert Mr. Ohlig to the fact that Salminol was going to crash, but I recall very clearly that he came into my office on March 23. It was first thing in the morning, before the markets opened, and he said there was bad news on Salminol, and we had to unload all of it, immediately.”
“Do you recall what the price of the stock was at that time?”
“I do. The first thing I did after Mr. Ohlig said this was to check the quote. I did it while he was still standing there, in fact.”
“At what price was Salminol trading?”
“Less than a dime and trending down.”
“Then what happened in your discussion with Mr. Ohlig?”
“I said to him, if we dump it all now, we’re going to push the price down. I told him that we bought it at about twenty, so we could end up losing as much as three-fourths of our investment, which could have been more than twenty-five million.”
“And what did Mr. Ohlig say in response?”
“He said, ‘I don’t want to take any loss on it. Pump it up and then dump it.’”
“Were those his exact words—‘Pump it up and then dump it’?”
“Yes.”
“And did you understand what he meant by that?”
“I did. He meant he wanted us to inflate the price by selling it to people who wouldn’t know better and would pay more for it, and then once we had pumped up the price, to dump all of our shares.”
“Is that what you did?”
“Yes.”
“How much profit did OPM make on Salminol?”
“A hundred and sixty million, give or take.”
“And what happened to the investors? The people to whom OPM sold Salminol?”
“They lost everything.”
“Explain to the jury why that was the case.”
“Because of the way we were pricing it, the investors were buying at more than a dollar, sometimes at a lot more, when Salminol was, in actuality, a worthless stock. As soon as we didn’t have any more to sell, we stopped beating the bushes for buyers, and the stock went to zero. Simple supply and demand. There was never any real demand for Salminol because anyone who knew the truth knew it was worthless.”
“Thank you, Mr. Fieldston,” Pavin says, barely hiding a smirk.
On cross, I begin by
going through Fieldston’s history of friendship with Ohlig, highlighting all the help that Ohlig had given to Fieldston and his family through the years. Fieldston is more than happy to confirm Ohlig’s generosity, full knowing that each time he acknowledges Ohlig’s kindness, he buttresses his own credibility. By the time I’ve finished with this part of the cross, every juror must be wondering how Fieldston could possibly give such damaging testimony against a man who was like a father to him unless it were true.
I look up to Judge Sullivan. “Your Honor, may I have a moment to consult with my client?”
“You may have just a moment,” she tells me.
All it takes to answer the question in my mind is one look back at the counsel table. Ohlig’s expression leaves no room for doubt. If I don’t use the recording, Ohlig will go to Judge Sullivan and maybe to the committee on professional responsibility too for that matter.
I turn back to the witness. “Mr. Fieldston, in exchange for the federal government giving you immunity, you were prepared to tell this jury whatever the government wanted you to, without regard for whether it was true or not. Isn’t that right?”
“No, that’s not right, Mr. Miller.” Fieldston sounds as calm as he would if he were telling me the time. I always explain to witnesses, the hotter the questions get, the cooler your responses should be. Eric Fieldston is Mr. Freeze. “My testimony today is under oath, and it is completely truthful.”
“Mr. Fieldston, haven’t you previously admitted that you were going to lie under oath in order to protect yourself?”
He laughs dismissively. “No. I never said such a thing.”
I turn around to Abby. Her laptop is already hooked into the speakers in the courtroom. She double-clicks.
“Yeah, the feds really have me by the balls,” the voice coming through the speaker says. “They don’t care about the truth. As long as I help them get the conviction, I get a free ride. You know, I don’t care about the lying, I mean, who hasn’t lied when they had to? But my boss, he just doesn’t deserve it. He’s always been good to me. I just don’t have any real choice. It’s him or me.”
Pavin is shouting objection before the recording is even finished.
“Chambers, both of you,” Judge Sullivan says sharply.
We all walk back into a small room directly behind the bench. It’s not actually Judge Sullivan’s chambers, but a sitting room of sorts. “Why don’t you set up here,” she says to the court reporter. “I want to do this quickly.”
The court reporter lengthens the legs on her machine and pulls up one of the chairs. She’s ready in less than thirty seconds.
“Well,” Judge Sullivan says with a disarming smile, “we were having such a nice friendly trial. Mr. Pavin, it’s your objection, so please state it for the record.”
Pavin looks like steam is about to come out of his ears. “Your Honor, we had absolutely no notice of this stunt. Mr. Miller never provided us with a copy of the recording during discovery, as he was obligated to do. On top of which there is absolutely no authentication of that recording. We don’t even know whose voice that is.” He pauses and takes a deep breath, as if he’s trying to regain some of his composure. “For all these reasons, your Honor, we request that the court strike the recording in its entirety, and instruct the jury that it must be completely disregarded.”
“Mr. Miller, any response?”
“This is impeachment material, Judge. We have no obligation to turn it over beforehand. In fact, if Mr. Fieldston had admitted that the conversation occurred, rather than lied about it under oath, we wouldn’t even have used the recording. If it’s not him, let him swear to that.”
Judge Sullivan looks at Pavin and shrugs. “Your witness opened the door, Mr. Pavin. It seems to me that asking whether a witness is telling the truth or is just saying what it takes to save his own skin is pretty relevant stuff. If it’s not Mr. Fieldston on the recording, I’m sure you’ll be able to put that information before the jury on re-direct.”
Pavin’s shoulders slump. “Your Honor,” he says, “I feel compelled to state for the record that neither I nor anyone from my office knew that Mr. Fieldston was giving potentially perjured testimony. We will investigate this matter fully and if it turns out Mr. Fieldston lied to us, we will prosecute him.”
“Sometimes it’s hard to tell the good guys from the bad guys, Mr. Pavin,” Judge Sullivan says, and then, just to make it clear something like this would never have happened when she was a prosecutor, she adds, “Of course, sometimes it’s the government who turns the good guys into the bad guys.”
When we return to the courtroom, Fieldston is huddled with his attorney, George Eastman. That can only mean one thing—this is going to get even better for Ohlig.
When everyone’s back in their place—Fieldston on the stand and me behind the podium—I continue the cross. “Mr. Fieldston, isn’t it true you lied under oath in your direct examination when you testified you believed that Mr. Ohlig knew Salminol was a worthless stock?”
Fieldston looks over at Eastman, who is sitting behind me to my right, in the gallery’s first row. “On the advice of my counsel,” Fieldston begins with a heavy voice, “I respectfully refuse to answer that question and assert my rights under the Fifth Amendment.”
A soft roar rises from the gallery. Even the uninformed know this is a major development. Eric Fieldston is essentially admitting his prior testimony was untrue. Like the old saying goes, the first thing you do when you’ve dug yourself into a hole is to stop digging. If Fieldston lies more, he makes it worse, but if he admits the previous lie, he’s confessed to the crime of perjury. The only way for Fieldston to stop digging is for him to invoke his constitutional right against self-incrimination, thereby limiting the testimony that could later be used against him.
Judge Sullivan gavels twice and asks for quiet. “Do you have anything further, Mr. Miller?”
“No, your Honor. Just the standard instruction, please.”
She looks toward the government’s table. “Mr. Pavin?”
Pavin’s between a rock and a hard place, and he looks as if he’s about to be squished. He stands and, as always, buttons his suit jacket. “No objection, your Honor,” he says with a sigh.
“Very well then,” Judge Sullivan says, and spins her chair so she’s now facing the jury. “Ladies and gentlemen of the jury, as you have just seen, Mr. Fieldston has asserted his constitutional right under the Fifth Amendment not to say anything that will incriminate him in the future. Although that is his constitutional right, you may infer that his assertion of this right means his testimony would, in fact, incriminate him. Some of you may think that’s unfair, but it is the law, and it is your obligation to follow the law. If Mr. Fieldston were on trial, his assertion of his Fifth Amendment right could not be used against him. But it is Mr. Ohlig who is on trial here, and Mr. Fieldston’s assertion of his right against self-incrimination can be used as evidence to help Mr. Ohlig.”
She turns away from the jurors and, looking at me, says, “Anything else that needs to be accomplished with this witness?”
“No,” I tell her.
“Mr. Pavin?”
“No, your Honor.”
“Very well. Let’s recess for the day. Ladies and gentlemen of the jury, you know the drill. Today was an exciting day, but please do not talk to each other about the case. No television, no newspapers, no internet. See you all tomorrow.”
The moment the last juror leaves the courtroom, the judge makes her own exit. She hasn’t been out of the room for more than ten seconds before Pavin is standing in front of our table.
“I need a word,” he says. It doesn’t sound like a request.
Given how poorly today’s gone for him, I see no reason to rub it in any further. “Sure.”
I follow him into the empty jury holding room. Pavin shuts the door behind us and looks me up and down with an expression that can best be described as one of disgust. “Oh, Mr. Miller, you’re going to be so sorry yo
u pulled this one.”
“I don’t know what that means, Christopher, but it seems like school-yard threats are at least two notches below what I consider to be your dignity level.”
“If you knew what I knew, you’d understand all too well,” he says, and then leaves me in the room alone with that thought now hanging over my head.
40
No. No. No.”
We’re back in the war room, Ohlig, Abby, and me. Ohlig is reacting to my telling him that, in my professional opinion, after the government rests its case tomorrow, we should put on Sansotta, our expert, and then rest ourselves, without Ohlig taking the stand.
“We did very well today,” I say, “but—”
“Before you bring in your doom and gloom,” Ohlig interrupts, “let me just point out that you argued not to use the stuff that resulted in our doing so well today. Now you’re telling me not to testify. Why shouldn’t I just assume that you’re wrong about that too?”
“Michael, I’ll be the first to admit it, you were right about the tape and I was wrong. But that doesn’t mean that I’m not right about this. I mean, what did you tell clients after you recommended a stock that went down when you had a second recommendation? There are thousands of decisions that go into a criminal trial. I never said I’d be right about every one. But you’re paying me to be right enough of the time that you don’t end up going to jail. So listen to me now.”
He laughs, which is not at all the appropriate response. “Just so you know, I never recommended a stock that went down.”
I decide to ignore the quip, mainly because if I were to respond it would be to suggest that it’s easy to pick winners when you’re manipulating the stocks at issue. Instead, I smile, and continue on with my argument against his taking the stand.
“Michael, if you take the stand, Pavin’s going to hammer you. He’ll tell the jury that you hid one witness, attempted to bribe another, and hired a prostitute to record Fieldston. When you add it all up, the jury is going to conclude that this is not the conduct of an innocent man.”