Losing Faith (30 page)

“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.
“Nobody 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 passed that Fitz probably thinks he’s actually reconsidering his prior rejection. Then he says: “What part of
go to hell
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. Hell, 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 fucking 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 balls, 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.

“Fuck 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 God 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

T
he last pretrial conference is a proverbial forever-hold-your-peace moment, constituting 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 anticipate 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 assumes 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
bullshit
, 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 entitled 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.”

Aaron savors the moment. The defense will certainly get its fair share of judicial contempt during the trial, but it’s always nice when the other side pisses off the judge. Better than that, he’ll have Sam Rosenthal at his side at trial, and not testifying against him.

47

R
osenthal wants to put on a reasonable-doubt defense, where they poke holes in the prosecution’s evidence and hope that gives rise to sufficient uncertainty about Aaron’s guilt to obtain an acquittal. It’s a tried-and-true strategy to be sure, and one that Aaron has used more often than not. And yet for his own defense, Aaron thinks it’s lacking. He’s convinced a jury will not let him go free without being firm in the belief that someone else must ultimately be punished for Faith’s murder. In his mind, that means the defense must present an alternative theory of the crime clearly identifying Faith’s murderer.

There’s very good reason why Rosenthal disagrees. Without the vast resources of the prosecution—the ability to compel testimony, conduct forensic analysis, review computer databases for matches to DNA and fingerprints—the defense can easily get it wrong. They could end up pointing the finger at someone who turns out to have an airtight alibi.

Still, Aaron has pressed for a defense that’s uncompromising in the claim that Nicolai Garkov murdered Faith. After all, it’s not every defendant in a murder trial who can point to a terrorist with equal motive. But, as Rosenthal has countered, putting their eggs in the Garkov basket is not without problems. Among other things, the defense has no evidence linking Garkov to the murder, not to mention that he was in jail at the time of the attack.

Plan B is Stuart Christensen, Faith’s husband. Aaron knows from his pillow talk with Faith that Stuart became accustomed to a certain type of lifestyle, and that she completely financed it. More than once she told Aaron that her husband would be up shit creek without a paddle if they
divorced. The apartment was in her name alone, purchased back when she was a partner at Windsor Taft, and she brought all of their net worth into the marriage, which meant that it wasn’t marital property, and she could take it with her when they split. Aaron also knew that big law firms offered their partners outsized life insurance policies, and so he suspects that Faith’s husband profited considerably from his wife’s death.