Losing Faith Part 24

Like a spectator at Wimbledon, Judge Siskind turns back to Rosenthal, as it's now his turn to volley. "What do you say to that, Mr. Rosenthal? Can't a husband testify to his wife's mental state?"

"Not if that conclusion is based solely on hearsay," Rosenthal replies. "Mr. Christensen is free to testify about what he observed, but a conclusion that is based on nothing more than a statement made by his wife is no different than testifying to the truth of the statement itself. Either way, it's hearsay."

When Donnelly tries to offer a reb.u.t.tal, Judge Siskind stops her in her tracks. "No, I think Mr. Rosenthal's got you on this one," she says. "The objection is sustained. Ms. Donnelly, move on to something else with this witness. If you want to get into evidence that Judge Nichols was being considered for the Supreme Court, I suggest you get the White House on the phone."

As they walk back to counsel table, Rosenthal whispers to Aaron, "That was huge for us."

NOW UNABLE TO ESTABLISH motive through Stuart Christensen, Donnelly decides to pull at the jury's collective heartstrings. Stuart recounts how much he misses his wife and how grief-stricken he was upon hearing the news of her murder. Aaron can only imagine that somewhere up there Faith is rolling her eyes.

When Judge Siskind says that Rosenthal may begin his cross-examination, he rises slowly and says, "No questions for this witness, Your Honor."

"In that case," Judge Siskind says, "the witness is excused, and we're adjourned for a twenty-minute recess."

Aaron holds his tongue until the last of the jurors leaves the courtroom, and then a few moments longer to allow Judge Siskind to depart the bench. The moment the coast is clear, however, he turns on Rosenthal.

"What the h.e.l.l, Sam?! Why didn't you question him?!"

Rosenthal looks away from the papers he's shuffling. "It was too risky," he says. "Did you look at the jury while he was testifying? They wanted to hug the little s.h.i.+t."

"But he's lying about seeing Faith and me together at the hotel! That wasn't true at all, and you didn't call him out on it."

Rosenthal grasps Aaron by the elbow and says, "I know the lawyer in you knows this, Aaron, but without proof, what's calling him a liar going to do for us? And it's not going to help us win any sympathy points with the jury, that's for d.a.m.n sure."

Aaron feels himself deflate. He knew the Ritz-Carlton records would establish he'd been at the hotel, but he had held out hope that the prosecution couldn't prove he'd been there with Faith. And now they have.

"Keep your eye on the ball, Aaron. Garkov's the real play here. If we can get his a.s.sertion of the Fifth before the jury, we're home free."

Aaron wants to ask, What if we can't? but he already knows the answer. Having pa.s.sed on the opportunity to go after Stuart Christensen, without Garkov the defense has nothing.

50.

Victoria Donnelly's next witness is a desk clerk at the Ritz-Carlton. Donnelly's strategy is now clear. She's going to go all-in on the one thing she can prove without any shadow of a doubt-the affair-in the hope that when she's done, the jury will be poisoned against Aaron to such an extent that they won't much care that the evidence that he committed murder is wholly circ.u.mstantial.

The clerk's name is Dana Luria. She's in her early twenties, at most, and has the attractive but unthreatening quality that a luxury hotel would look for in someone to meet their guests. She speaks so softly that Judge Siskind has to ask her more than once to speak up so the jury, which is sitting less than fifteen feet from her, can hear.

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 h.e.l.l is that?"

"One of Faith's law clerks," Aaron whispers back. "I never spoke to her."

Aaron a.s.sumes 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 a.s.signed 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 a.s.signed 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 a.n.a.lysis. 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 a.s.sistant. 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 a.s.signed. And since I was a.s.signed 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 a.s.sumed 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 clerks.h.i.+p."

"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 a.s.suming, 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 a.s.sumption?"

"Um . . . if I thought so."

"That's my point exactly. You never thought that Judge Nichols was ever doing anything improper, did you?"