Losing Faith Part 25

"No."

"And I take it that means you didn't think Judge Nichols had already made up her mind to convict Nicolai Garkov, did you? Because it would have been highly improper for her to have done that, correct?"

"I guess."

"No, no, Ms. Meyers. This is very, very important. A man's freedom is at stake. Please, just like this jury, you must be sure. You were with Judge Nichols every working day for six months, and I take it that, in that time, you knew her well. And my question is simple: did you think, even for a second, that Judge Nichols was acting unethically toward Nicolai Garkov? In other words, did you think she had already made up her mind to convict him even if the evidence at trial were to indicate that he was not guilty?"

Sara hesitates. Obviously, Victoria Donnelly has gone over the government's theory of the case with her ad nauseam, and she doesn't want to contradict it now.

Rosenthal decides to put his thumb more firmly on the scale. "Please, Ms. Meyers. Did you think that your mentor was engaging in the most horrific abdication of her judicial responsibilities imaginable and was really going to sentence a man to life in prison who didn't deserve it?"

"No. I didn't think she'd do that," Meyer says. You can almost see in her eyes that she hopes Donnelly isn't too upset with her.

It's as good as they're going to do with this witness. But Aaron knows it likely wasn't enough. Even if Sara Meyers's loyalty to her employer caused her not to be able to see it, the jury most likely has concluded that Judge Nichols's bail revocation and then denial of the order to show cause-both coming without any consultation with her loyal law clerk-meant that she was going to convict Nicolai Garkov.

The only saving grace is that so far, at least, the prosecution hasn't been able to prove that Aaron had anything to fear from such a result.

AARON RETURNS TO CROMWELL Altman after court to help Rosenthal prepare for the next day. It's the first time he's been back in his office since his arrest. He expects it to look different, but he's the only thing that's different.

"I expected that Pierce would have moved the furniture around by now," Aaron says, only half joking.

"He couldn't get the decorator in yet," Rosenthal says back.

Rachel enters Aaron's office a second after she knocks on the open door. "I asked Diane to call me when you got back," she says by way of explaining her stalking them. "How'd it go today?"

"Just great," Aaron says with obvious sarcasm. "They put on Faith's husband, her law clerk, and a woman who worked at the hotel. The husband said he saw Faith and me at the hotel together. Then the hotel employee corroborated it, and Faith's law clerk drove home that Faith had decided to convict Garkov even before the trial started."

"It wasn't that bad, Aaron," Rosenthal says. "We kept out any evidence that she was up for the Supreme Court, and that teenager from the Ritz-Carlton couldn't put you and Faith together."

Rachel's sad smile makes clear that she understands it was a better day for the prosecution than the defense. "I wish I could be there with you, Aaron," she says. "I just feel so useless sitting at the firm. And I'm getting nowhere on the phone call to your office. I must have spoken to everyone at AT&T, and to a person they claim that the call happened. And our IT people say that there's no record of any three-minute call on your voice mail that night."

Aaron knows that this call will be his undoing, linking him and Faith right before Faith's murder. The fact that they never spoke doesn't matter. Truth and evidence are sometimes very distant cousins in a criminal trial.

"I know it's frustrating to be away from the action," Aaron says, "but you definitely are helping."

Rosenthal seemingly doesn't appreciate being a third wheel and says, "Rachel, can you give us time alone?"

"Of course," Rachel says, trying to mask her embarra.s.sment. "I'll be in my office if you need me. Good luck tomorrow, Aaron."

As soon as Rachel has made her exit, Aaron says, "Sam, you don't have to be so hard on her. She just wants to help."

"I'm sorry, Aaron, but I don't trust her the way you do. Call it one of the benefits of being seventy-one. You become immune to beautiful women."

Aaron shakes his head in disagreement, but there's no reason to fight this particular battle now. "Do you think they'll do the phone call tomorrow?" Aaron asks instead.

"I do."

"And we've got nothing to rebut it."

"I'm not going to let you go to jail, Aaron. I swear, that will never happen."

Aaron says thank you, because there's nothing else he can say to a promise that he knows Sam Rosenthal is powerless to keep.

52.

Wednesday is composed of the scientific evidence. One by one, forensic experts take the stand to offer brief testimony describing the tasks they did and the conclusions they reached. It's mind-numbingly boring, and the jury, at most, grasps only the headlines, which amount to: cause of death was blunt-force trauma to the head; time of death was between 9:00 p.m. and midnight; the murder weapon was some kind of stick, which may well have been a tree branch; and there was no physical evidence left at the scene by the attacker.

Rosenthal's cross gets the defense's main arguments into evidence. No, they did not find Mr. Littman's DNA or fingerprints at the crime scene. No, there wasn't any evidence directly linking Mr. Littman to the murder. That's correct, they did not locate the murder weapon.

The expert parade concludes with the representative from AT&T, an Asian woman in her forties with a sharply angled haircut. She testifies that Judge Nichols received numerous calls from different prepaid phones in the months before her death, and at 9:48 p.m. on the night she was murdered, she called Aaron Littman's office number, and that call lasted three minutes and three seconds.

Donnelly milks this piece of evidence for all it's worth. She has the phone bill pa.s.sed around the jurors, waiting patiently while each one sees what they've just heard Ms. AT&T say.

"Is there any way-any way at all," Donnelly says when the last of the jurors has looked at that bill, "that this call did not happen?"

"None," Ms. AT&T says. "The simple fact is that phone bills don't lie."

On cross Rosenthal gets the defense's response to the phone call before the jury. Hearing it, Aaron thinks it doesn't sound half-bad.

"You testified that this call definitely occurred, correct?" Rosenthal says.

"Like I said, phone bills don't lie."

"But you don't know who actually dialed the phone, do you?"

"How could I know that?"

"That's right, you couldn't. In fact, no one could, simply from looking at the phone bill. And you're not a medical coroner, are you?"

"No. I work for a phone company."

"And so, it is possible, is it not, that after Judge Nichols's murderer killed her, he took the phone out of her pocket and made that nine forty-eight call, and that is the person who stayed on the line for three minutes and three seconds, just so the police would later think that Judge Nichols called Mr. Littman?"

Ms. AT&T seems at sea. "I guess," she says meekly. "I really have no idea who made the call. I just know that it was made."

AARON DECIDES THAT THERE'S little point in going back to the office after court to do a postmortem. Even with Rosenthal's sleight of hand regarding the 9:48 phone call, the trial is not going well, and he'd rather spend the evening at home because he knows that his days with his family might well be numbered.

LATER THAT EVENING, JUST before he and Cynthia turn off the lights for the night, Aaron says aloud what he hasn't been able to fathom before.

"I think I'm going to be convicted."

Having not been privy to the actual testimony, Cynthia's only frame of reference is what Aaron's told her each night, and from what she's heard, it doesn't sound good. Still, she views it as part of her job to keep Aaron's spirits up, and so she replies, "Even if some of the testimony has been less than great, you said that they still don't have motive yet. Right?"

"They don't need motive to convict," Aaron says. "Sometimes they can never prove why. And even if they can't prove the blackmail, they'll just say it was jealousy or something else."

"I've heard you say it a million times, though. Trials are like roller coasters. There are always low points."

Aaron has said that before, and there's some truth to it. But for his own trial, it seems much less of a roller-coaster ride than a full-on free fall.

THE NEXT MORNING, WHEN Victoria Donnelly announces her first witness, it's a name that means absolutely nothing to Aaron. The man who answers the call is young, under thirty, and dressed in a preppy suit, right down to the b.u.t.ton-down collar and school rep tie. Aaron a.s.sumes that he must be another law clerk.

He states his name for the record as Jeremy Kagan and answers Donnelly's question regarding his current employer: "I work in the office of Senator Edward Kheel."

Rosenthal leans over to whisper in Aaron's ear. "G.o.dd.a.m.n Kheel. He'll never see another penny from me."

Aaron appreciates the sentiment, but it only reinforces what he's already surmised: Kagan's testimony will prove that Faith Nichols knew the Supreme Court was hers if Garkov was convicted.

In a way, Aaron's got to hand it to Donnelly. She wasn't going to get anyone with real clout to testify about the quid pro quo offered to Judge Nichols-a Supreme Court seat in exchange for Garkov's conviction-and Kagan must have been offered up as a sacrificial lamb. For Donnelly's purposes, the man who speaks for Kheel is just as good as if she'd called the senator or even the president himself to the stand, because Kagan can testify to what Stuart Christensen could not: that Judge Nichols believed she needed to find Garkov guilty in order to get the nomination. Kheel and the White House could then take refuge behind the oldest Was.h.i.+ngton defense-the overly enthusiastic staffer.

Donnelly says, "Mr. Kagan, did you ever have a discussion with Judge Faith Nichols about the fact that she was being considered for nomination to the Supreme Court?"

"Yes," Kagan answers.

"Did any of those occur after she had been selected to preside over the trial of Nicolai Garkov?"

"Yes. One time."

"Please tell us about that one time, Mr. Kagan."

"When Judge Nichols was a.s.signed to the Garkov case, Senator Kheel asked me to brief her on what it meant for her potential nomination. I met with the judge at her home. At that time, I told her that the White House was viewing her a.s.signment to the Garkov case as a positive development."

"Did you say anything more specific?"

"Like what?"

It's the first sign that Kagan is there reluctantly. It's one thing for Senator Kheel to serve up his aide, but that doesn't mean Kagan has to go along with it without a struggle.

Donnelly's in no-man's-land for a direct examination. Because Kagan is a prosecution witness, she's limited to open-ended questions and cannot, as they say, lead the witness. But a noncompliant witness on direct is like a dog off a leash, and there's often no way to get them to go where you need them to be.

"What I'm asking, Mr. Kagan, is did you ever discuss with Judge Nichols whether she would be considered for the Supreme Court if Mr. Garkov was acquitted?"

Kagan hesitates, as if he's trying to find a loophole in the question. He must not see one, however, because after a sigh he says, "Yes."

"What did you say to her and what did she say back to you on that point?"

"I don't recall exactly, but I said to her that if Mr. Garkov was convicted, the White House would likely consider her nomination more favorably, and if he were acquitted, there might be opposition to her nomination."

Even though it's far from unequivocal, it's enough. There is now evidence before the jury that if she hadn't been murdered, Faith Nichols was going to convict Nicolai Garkov.

Aaron slumps slightly, but Rosenthal tugs at his elbow, like a father telling his son to sit up straight at the dinner table. It's another important trial rule-never give the impression that things aren't going exactly as planned.

"In other words, you conveyed the idea that she gets the nomination if he's convicted, but not if he's acquitted," Donnelly says. "Isn't that correct?"

Rosenthal is on his feet. "Objection! Your Honor, the witness just testified to what he told Judge Nichols. There's no reason for Ms. Donnelly to ask him if her paraphrasing is correct when the firsthand statement has already been sworn to."

"I'll withdraw that question, Your Honor. I think Mr. Rosenthal is right. We all know what Mr. Kagan said and what he actually meant. I have no more questions."

Rosenthal's cross lasts all of five minutes.

"Mr. Kagan," he says, "you just testified that you made it clear to Judge Nichols that if Mr. Garkov were convicted, the White House would view her potential nomination to the Supreme Court more favorably. Did I hear that correctly?"

"I told her something along those lines, yes."

"I see," Rosenthal says with a nod. "Mr. Kagan, I'm a.s.suming that you know that if you were interfering with a criminal prosecution . . . for example, offering an inducement to a federal judge, such as a nomination to the United States Supreme Court . . . in exchange for her ruling in a certain way . . . for example, convicting Nicolai Garkov . . . well, you would be committing a very serious crime, called obstruction of justice. And so, can I a.s.sume that you are confident that you did not make such an inducement to Judge Nichols?"

Even without the benefit of being able to meet with Kagan beforehand, Rosenthal knows Kagan will recognize a softball when it's served up to him. Sure enough, Kagan smiles and then proceeds to hit it out of the park.

"That's right. I did not offer Judge Nichols any quid pro quo, nor did I imply any."

"And is it the case that after your meeting with Judge Nichols, you had no earthly idea how she was ultimately going to rule with regard to the Garkov case?"

"I can only a.s.sume that even she did not know," Kagan says with some confidence. "After all, the trial had not even begun yet and it would have been unethical for her to have conducted herself in any other fas.h.i.+on."

"Of course," Rosenthal says. "No further questions, Your Honor."

LIKE THEY SAY ABOUT doctors making the worst patients, lawyers are, more often than not, terrible witnesses. A witness's job is to recount the facts, without a.n.a.lysis or context. Lawyers never do that.

Which makes it all the more surprising when Garkov's original trial counsel, Roy Sabato, proves to be a pretty good witness. His answers are short, usually limited only to what he saw and said, and not what he was thinking.

When Donnelly asks, "Please tell us, Mr. Sabato, what you said to Mr. Littman and what he said to you when you discussed the representation of Nicolai Garkov," Sabato's testimony comes out exactly the way Aaron remembers it. Sabato's telling Aaron that Garkov wanted to retain him as counsel, Aaron's initial declination, Sabato's offer of the one-hundred-thousand-dollar fee for a first meeting, and when that didn't do the trick, his claim that Garkov had incriminating evidence he'd make public if Aaron didn't meet with Garkov immediately, which resulted in Aaron's capitulation.

Even though Roy Sabato has told the entire story in his narrative, Donnelly goes back over it, breaking each fact down, one question at a time.

"When you first asked Mr. Littman to meet with Mr. Garkov, what did he say?"

"He said no."

"Did he give a reason?"

"He said that it would cost his law firm more than Mr. Garkov would pay him."

"Is that when you offered him one hundred thousand dollars if he met with Mr. Garkov?"

"I did make that offer on behalf of Mr. Garkov, yes."

"And what did Mr. Littman say to that?"

"He said he was still not interested."

"And then what did you do?"