Losing Faith Part 22

Among Judge Siskind's standing rules is that before the last pretrial conference, the parties have to meet in person and confer about the possibility of a plea. It is one of the many things judges do that sound good in practice but in reality are a complete waste of time.

Rachel and Rosenthal arrive at the U.S. Attorney's Office right on time for their 2:00 p.m. meeting, only to have the guard in the building's lobby tell them to wait. They sit in uncomfortable metal chairs aside a mural of children of various nationalities-someone's idea of a political statement, no doubt. The nicer part of the lobby is where press conferences are held. For the press, the chairs are covered in fabric.

"Petty power-play s.h.i.+t," Rosenthal says, ostensibly to Rachel, but as much to himself. "Meeting with an AUSA is like going to the doctor," he continues to mutter. "Show up on time, then wait out here. Fifteen minutes after the scheduled time, they finally call your name, but then you wait in a conference room upstairs for another ten minutes."

That's exactly what happens. Fifteen minutes after they've arrived, a heavyset African-American woman enters the lobby and calls out: "Sam Rosenthal. Rachel London." She introduces herself as Victoria Donnelly's a.s.sistant, but doesn't provide her own name, and then asks Rachel and Rosenthal to follow her to the seventh floor.

Once there, the anonymous a.s.sistant directs them to the same small, windowless room with the badly nicked wooden table that Rachel recalls from her interview.

"You're on that end," she says, pointing to the side with two chairs. On the other side are six seats.

They aren't offered coffee or water. The U.S. Attorney's Office doesn't provide such niceties. Instead, their guide says, "Ms. Donnelly and others will be here shortly," and then she shuts the door behind her.

"Six people for a meet-and-confer," Rosenthal says when they're alone. "Imagine if we tried that with a client. The bill would be ten grand."

Rachel smiles. "No, it's more like we have two people attend the meeting, and then twenty read the memo about that meeting. Probably comes out to more our way."

Rosenthal likes Rachel, but that doesn't mean he trusts her. He knows part of his bias is unfair, but he's had more than his share of encounters with beautiful women, and not one of them ever caused him to reconsider his prejudice against them.

FIFTEEN MINUTES LATER, VICTORIA Donnelly strolls into the room with the usual pack behind her: a.s.sistant United States Attorney Leonard Stanton, FBI special agents Kevin Lacey and Tim Walker, and Christopher Covello, the head of the Criminal Division.

Donnelly doesn't take a seat, but instead makes her way to the corner of the room and reaches for the phone. "We're all here," she says. "Conference room two. On seven."

After she hangs up, she turns to Rosenthal and says, "The U.S. attorney will be here in a minute. I trust that you received the discovery we sent over this morning?"

"Yeah, thanks. You decided not to put anyone in the grand jury?"

Rosenthal knows that there has to be at least one witness in the grand jury, or else they couldn't have gotten the indictment. If he had to guess, he'd point to one of the FBI agents, most likely Lacey, who seems to be the guy in charge. It's common for the prosecution to put their case in through their investigator.

Under the Jencks Act, the transcript of a witness's grand jury testimony must be produced to the other side before that person is called as a witness at trial. Even more important, the prosecution is also required to turn over whatever doc.u.ments were relied upon by that witness. That means that if Special Agent Lacey did testify before the grand jury, the defense would get not only the transcript of his testimony but also his notes, which would include the witness interviews he conducted. That's exactly what Rosenthal wants, and the sooner, the better.

The rub, however, is that Jencks requires the prosecution to provide such materials only if Lacey testifies at trial. That might be reason enough for Donnelly to make her case without calling him to stand.

Donnelly smiles. "We understand our obligations. If we call a witness at trial who gave grand jury testimony, we'll provide the transcript at that time, just like the rules require."

Rosenthal looks past Donnelly to Covello. "Chris, help me out here," Rosenthal says, "because this is utter bulls.h.i.+t. I've never had a case where you didn't provide Jencks materials with the other discovery. Bad enough that you withheld it until now, but we're flying blind here."

"Sorry. Rules are rules, Sam," Covello answers.

Covello is a large man, probably more than two hundred and fifty pounds. Unlike Fitz, who sees the U.S. Attorney's Office as a springboard to elective office, when Covello ends his stint as head of the Criminal Division, he'll go back to earning two million dollars a year to represent the same types of people he's prosecuting now.

Rosenthal makes a mental note to add Covello to his ever-growing enemies list. When Covello's back in private practice, Rosenthal will thoroughly enjoy making Covello pay dearly for being such a hard-a.s.s today. Count on it.

"While we're waiting for Fitz," Donnelly says, "I can also tell you that it's a no on the witness list."

The prosecution's witness list is something of a Holy Grail for the defense. It not only limits the universe of people the defense has to prepare to cross-examine, but it gives insight into the prosecution's trial strategy. Rosenthal can't say he's surprised he's getting stiff-armed on that, however. It's pretty clear that the prosecution is pulling out all the stops.

Rosenthal offers a sad laugh. "Okay, have it your way. It's just going to make it that much sweeter when Aaron walks on this."

Before Donnelly can respond, Fitz enters the room. He's decked out in a politician's navy-blue suit, white s.h.i.+rt, red tie, and American-flag pin on his lapel. His side of the table stands, as if royalty has entered.

"Sorry I'm late," Fitz says with a smile. "Did I miss anything?"

Rosenthal feels nothing but contempt at the sight of the U.S. attorney. Whatever camaraderie they once shared is now a thing of the past. Sam Rosenthal now truly and unequivocally despises this man.

"I was just about to make the plea offer, but I was waiting for you," Donnelly says.

"I'm here now," Fitz says.

This is Donnelly's cue. "In light of the fact that we suspect this was a crime of pa.s.sion," she says as if reading from a prepared text, "we have authority from the attorney general to offer a plea to murder in the second, with a sentencing recommendation of twenty."

That is exactly what Rosenthal predicted. It isn't a terrible offer, given that the prosecution hasn't formally taken the death penalty off the table. But Rosenthal and Aaron both know the Department of Justice guidelines don't permit seeking a lethal injection in cases of a single murder-even that of a federal judge-and so the maximum sentence Aaron could face is life without the possibility of parole. If the actuarial tables are correct, Aaron only has another 27.6 years to live, which means that the prosecution's offer isn't much of a bargain.

"Thanks, but no thanks," Rosenthal says.

"We'll also support your application that Aaron serve in a medium-, maybe even a minimum-, security facility," Covello adds. "n.o.body on our side of the table wants to see Aaron in supermax with those animals. You may not think that's a big concession on our part, but I tell you, for an inmate . . . well, it makes all the difference in the world. Believe me."

For a split second, Rosenthal thinks about negotiating. He could ask for manslaughter or confirm that minimum security is truly on the table. But no deal would be acceptable, and so there's no point in discussing it further.

"Okay. Sounds like we're done here?" Rosenthal says, and rises to show that he means it. Rachel does likewise. The other side of the table stays put, however.

"Sam . . . look, could you please sit down?" Fitz says. "I really wish you'd consider this offer. We had to go to the mat with the attorney general to make it."

Rosenthal waits until enough time has pa.s.sed that Fitz probably thinks he's actually reconsidering his prior rejection. Then he says: "What part of go to h.e.l.l do you not understand, Fitz?"

Fitz shows no reaction, as if Rosenthal's venom has no impact on him. "All right, we'll let the jury decide. But I'm still asking you to please sit down. We have something else to discuss with you. Something important."

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. h.e.l.l, 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 f.u.c.king 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 b.a.l.l.s, 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.

"f.u.c.k 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 G.o.d 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, const.i.tuting 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 that 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 antic.i.p.ate 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 a.s.sumes 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 bulls.h.i.+t, 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 ent.i.tled 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."