Losing Faith (2 page)

And then that deity had the last laugh. A week ago, in the middle of reading an opinion from the bench, Mendelsohn began speaking in Yiddish, and went on like that for more than two minutes before one of his clerks stopped him. Alzheimer’s, which Mendelsohn had apparently believed he could hide for another year or so.

The Garkov case went back into the wheel for reassignment. The odds were forty-one-to-one that Faith’s name wouldn’t roll out.

That’s why I never gamble
, Faith tells herself.

“And it’s a bench trial,” Sara says, her excitement rising once more.

Garkov waived his right to trial by a jury of his peers, in favor of Judge Mendelsohn’s rendering the verdict. It’s a strategic decision that few defendants make, given that the likelihood of getting one out of twelve people to believe you is usually far better than convincing a judge of your innocence. Practically the only time that calculus shifted was when that judge was the Honorable Brian Mendelsohn. Going from Mendelsohn to Faith was the bait-and-switch of all time, however.

“Who’s counsel of record?” Faith asks.

Sara looks down at the manila file folder in her hand. “Roy Sabato Jr.”

Faith rolls her eyes, making her low regard for Garkov’s counsel painfully obvious. “God knows that Roy Sabato certainly isn’t the leading light of the criminal bar, but even he’s smart enough to know that he should withdraw the jury waiver now that I’m presiding,” Faith says.

“I’ve already done some quick research on that,” Sara says brightly. “Garkov doesn’t have an absolute right to a jury once he’s waived it. It depends on how much going back to a jury trial would prejudice the prosecution.”

That seems wrong to Faith. Simply as a matter of fairness, a defendant who waives a jury in favor of one judge should be allowed to withdraw that waiver when a different judge is appointed. But Faith learned long ago that the law is not always fair.

“Okay. So when’s the trial scheduled to begin?” Faith asks.

“April fourteen.”

That’s less than a month away. Faith can already hear the prosecution screaming bloody murder if Garkov tries to withdraw the jury waiver. Whether true or not, they’ll claim they’ve been preparing for
a bench trial and don’t have sufficient time to refocus their case so it’s presentable to a jury.

“Also, there’s a pretrial on for tomorrow,” Sara says.

Of course there is
, Faith thinks.

Everything could well come to a head then. It would have been nice if Faith had some time to think before being thrown into the lion’s den. But, like the law, life isn’t always fair, either.

“Is that the bench memo?” Faith asks, pointing at the manila folder.

Sara hesitates, as if she’s reluctant to part with her prize for fear she’ll never get it back. But when Faith opens her hand, palm up, Sara has little choice but to give up the folder.

For a moment, it looks as if Sara is going to ask for the case again, but she’s smart enough to know that groveling will only hurt her cause. Nevertheless, as she leaves, Sara looks back at Faith with hopeful eyes.

“The case is yours, Sara,” Faith says. “I appreciate the initiative. Please tell Kenny, and if you need to push a case or two on him to free up some of your time, that’s fine. Just don’t give him your worst ones, okay?”

“Thanks so much, Judge,” Sara says through a beaming smile as she closes the door behind her.

Alone, Faith opens the folder. Inside is a one-page bench memo. The law clerks for all the judges rotate through the bench-memo assignment, and there’s a special format that they follow: name of the case; the attorneys for the defendant; the bail disposition. Below that is a one-line description of the charges in the indictment, which liberally uses a preapproved set of abbreviations. For Garkov it reads: “Sec. Fr., ML, Obstr. Coll. SEC. SI possible.”

Faith does the translation in her head.
The indictment charges counts of securities fraud, money laundering, and obstruction of justice. There is a collateral proceeding being brought by the Securities and Exchange Commission.
And the prosecutor must have mentioned something to
Judge Mendelsohn about a superseding indictment coming down, which means that additional criminal charges may be forthcoming.

The case-management synopsis is a bit like describing
Moby-Dick
as a book about a whale, however. Nicolai Garkov is the most reviled figure in America at the moment. The story everyone knows is that Garkov’s hedge fund was laundering money for the Russian Mafia. As if that wasn’t bad enough, the same hedge fund money had been traced to the accounts of the terrorists who claimed responsibility for the Red Square bombing that killed twenty-six people last New Year’s Eve, including three American students.

Faith’s been in the criminal justice arena for long enough to know how to read between the lines. The fact that Garkov hasn’t been charged with anything having to do with the bombing means that there’s likely no evidence of his involvement in that crime, and the threat of a superseding indictment for murder suggests that the prosecution’s case on the charges they did file is shaky. In other words, the government is bluffing—trying to leverage Garkov into pleading guilty to the filed charges with the promise of giving him a pass on the Red Square murders, even though they seemingly don’t have enough evidence to convict him of anything.

The fact that the trial is less than a month away tells her something else: Garkov’s not falling for it. He’s going to put the squeeze on the government to prove his guilt beyond a reasonable doubt.

Faith closes the folder and places it back on her desk. She can’t help but smile at the irony. Perhaps this, too, is God having the last laugh.

Presiding over the Garkov trial is the kind of thing that can make a career. A year ago—hell, three weeks ago—Faith would have been no less excited than Sara to get it.

But now? It’s the very last thing in the world she wants.

3

T
he Colburn Group is a multibillion-dollar conglomerate that pays Cromwell Altman upwards of one hundred million dollars annually. It operates in a dozen different industries, with a hand in everything from military defense to petrochemical manufacturing to operating fast-food restaurants.

And for the last ten minutes, Aaron has been getting an earful from Colburn’s general counsel—a stern-looking man named Douglas Harrold—about how if Cromwell Altman wants to keep that plum business, it’s going to have to offer a 20 percent discount.

“Aaron, it’s not personal,” Harrold says. “Your work on the tanker case was . . . what can I say, we reserved for a two-billion-dollar loss, and we thought that was too optimistic, and then you got us a resolution at less than half of that. But our board has given us a mandate to cut company-wide, and that’s got to include outside legal, too.”

Aaron’s used to playing chicken over fees, but Colburn is Cromwell Altman’s third-largest client, and their matters keep at least fifty lawyers fully subscribed. Losing that much business in one fell swoop would necessitate a round of layoffs, and profits per partner, the yardstick by which the firm’s success is measured, would definitely take a hit.

Still, Cromwell Altman isn’t JC Penney, and Aaron prides himself on never putting his services on sale. More to the point, he’s not going to forgo $20 million in fees without a fight.

“Doug, belt tightening around legal fees is the very last thing Colburn should be doing,” Aaron says. “The regulatory inquiry on the tanker ended well, but there’s still the class action to worry about,
and those plaintiffs’ lawyers smell blood in the water. Besides, it’s also a matter of principle for me. I don’t reduce my rates for
any
client. That way, every client is assured that they’re getting the rock-bottom best deal.”

“Rock-bottom?” Harrold laughs. “C’mon, Aaron, you guys charge us a fortune.”

“We charge you what the market will bear. Every one of our clients pays exactly the same rate that you do.”

Harrold now looks like a man who’s grown tired of this little dance. “All right. I don’t want to play hardball here, but I guess I’m going to have to in order to make my point. You should know that I’ve already spoken to Steve Weitzen over at Martin Quinn. He’s willing to offer us a twenty percent discount, and their rates are already lower than yours. So net-net, by switching our work to them, we’ll save at least thirty million a year. That’s real money.”

“No, Doug, you have it wrong. We saved you a billion on the tanker case. Now
that
, my friend, is real money.”

Harrold shakes his head. “Aaron, I’m sorry, but you gotta give me something here. Otherwise, I’m going to have to make the move.”

Aaron looks squarely at Harrold. As the top legal officer of a Fortune 100 company, Doug Harrold normally gets his way, and he certainly gives every outward manifestation that he means what he just said.

“I hope you don’t mind,” Aaron says, “but while I’m still your lawyer, allow me to give you some advice. And because you’re on an austerity program, I’m not even going to charge you for it.” Aaron smiles but then quickly resumes a more serious demeanor. “I think you’re looking at the relationship with Cromwell Altman in the wrong way. We’re not just lawyers for your company. We’re a personal insurance policy for you. Now, I know you’ll take some heat from your board if you stay with us at our rates, rather than bargain-hunt with Martin Quinn, but you and I both know that you’re not going to get fired over it. On the other hand, there’s no way you’re going to keep your
job if the class action ends with a multi-billion-dollar verdict and you’re left explaining to the board of directors that it was your call to switch lawyers.”

The knock on the conference room door punctuates Aaron’s point. It’s Diane Pimentel, one of Aaron’s two assistants. Aaron’s other assistant serves as his legal secretary, but Diane is the gatekeeper. She controls his schedule and handles the emergencies that demand his time on an almost hourly basis.

“I’m so sorry to bother you, Mr. Littman,” Diane says, “but Ms. London just called. She and Mr. Hahn are with a client and she asked that you come by as soon as possible.”

“I have to deal with this other matter,” Aaron says to Harrold as he comes to his feet. “So if your position is still the last word on this, I’ll have your files sent over to Martin Quinn by the end of the week.”

There’s a momentary standoff. Having represented Doug Harrold for years now, Aaron knows he’s the kind of man who’s unwilling to go all-in when there’s any chance of losing. Aaron’s just waiting for Harrold to reach that conclusion, too.

Aaron extends his hand. “No hard feelings, Doug, and I wish you the best of luck with Weitzen.”

That’s enough to do the trick. Harrold takes Aaron’s hand and Aaron can feel the yielding in Harrold’s grip.

“You win, Aaron,” Harrold says as they shake hands. “Let me talk to my board. I’ll tell them that . . . I don’t know what the hell I’m going to tell them, to be honest with you, but I guess I’ll have to think of something. We really do need you on the class action . . . and whatever comes down the pike after that.”

“Thanks, Doug,” Aaron says. “You’re making the right call. For you and the company both.”

RACHEL LONDON HATES IT
when supposedly grown men act like little boys, but that’s exactly what Peter Hahn and Joe Malone are doing at the moment. She’s voiced her disagreement with them, and
in response they’ve actually retreated into opposite corners of the room. Malone has turned his back on her, while Hahn stands with his arms crossed.

She catches Hahn’s glare, which is somewhere between icy and contemptuous. Hahn’s the kind of senior partner who expects blind obedience from his subordinates, even if they’re partners too, like Rachel.

Rachel was only recently assigned to the Malone matter. It was one of those unlucky convergences that define the big law firm life: on the day after Rachel’s major trial concluded, Hahn demanded a junior partner to handle some of the witnesses for his own messed-up case.

Although she’s not yet fully up to speed on the facts of Joe Malone’s case, Rachel understands enough to know that, despite Malone’s protestations of innocence, the odds of his conviction are, in her humble opinion, more than 70 percent. Conviction at trial means a long prison term, so the smart play would be to try to cut a favorable plea deal. But every time she’s dared broach the subject of Malone pleading guilty in exchange for a shorter sentence, Hahn and Malone have shut her down.

Her latest effort is similarly falling on deaf ears.

“In any plea deal, the government is going to demand that Joe admit, under oath, that he stole those paintings,” Hahn says, as if Rachel doesn’t know this. “And Joe can’t truthfully say that because he’s
not
guilty. That pretty much rules out a plea, no matter what the government ends up offering us.”

Rachel can’t really believe that this is Hahn’s actual basis for refusing a plea deal. There isn’t a client who walks through Cromwell Altman’s doors that doesn’t profess their innocence, sometimes in the most extreme ways—on their children’s souls, offering to take lie detector tests, you name it.
I didn’t do it. You have to believe me
might just be the most commonly uttered phrase by Cromwell Altman clients
.
Probably in all of criminal defense
.
Yet nearly all
of them ultimately plead guilty and admit everything . . . and the few who end up going to trial, in Rachel’s mind at least, aren’t any more innocent; they just have a greater risk tolerance, or are in denial.

Rachel is quite sure that the real reason behind Hahn’s position has nothing to do with believing Joe Malone is innocent and everything to do with envisioning his picture on the cover of the
American Lawyer,
complete with some pun-heavy headline:
WORK OF ART
. Or maybe
DEFENSE OF ARTISTRY
. They don’t write articles touting your legal genius when your client takes a plea. Even losing at trial will likely be a boon for Hahn’s career—it’ll add a few hundred thousand dollars to his billable-hours column and increase his stature just by keeping his name in the media. After all, Clarence Darrow lost the Scopes Monkey Trial and yet he’s famous ninety years later.