Losing Faith (34 page)

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 assigned 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 assignment 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 assuming 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 assume 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 assume 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 fashion.”

“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 analysis 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?”

Sabato looks past Donnelly to Aaron. He gives the subtlest shake of his head, perhaps to suggest that he’s not enjoying this.

“That’s when I told Mr. Littman that Mr. Garkov had incriminating information about him that he would reveal to the public if Mr. Littman did not agree to meet with him.”

“Did you tell Mr. Littman that Judge Nichols was now the judge presiding over Mr. Garkov’s case?”

Sabato hesitates. Aaron knows the answer is yes, for he recalls clearly it was that disclosure that put the fear of God in him. Either because Roy Sabato truly does not recall, or because he’s trying to curry some favor with Aaron, he says, “I just don’t remember. I may have. I just can’t be sure.”

Donnelly’s nostrils flare, a pretty good indication that Sabato was previously more definitive with her on this point. She can’t turn on her own witness, however, and so Sabato’s testimony will have to stand as the last word on the discussion.

“After you told Mr. Littman of Mr. Garkov’s threat to reveal this
incriminating information, did Mr. Littman change his mind and agree to meet with Mr. Garkov?”

“Yes.”

“Your witness,” Donnelly says, smiling at Rosenthal.

With Roy Sabato, Rosenthal finally has a compliant witness, but only so far. Sabato readily concedes that Garkov may have been lying about actually having incriminating evidence about Aaron, but he will not budge on his recollection that he was clear in relaying the message to Aaron, or Aaron’s capitulation after the threat was made.

The prosecution has now established that Aaron was being blackmailed. In other words, they have proven motive.

53

R
oy Sabato is the last government witness. When he steps down, Donnelly announces in a triumphant voice that the government rests.

“Let’s adjourn for the evening then,” Judge Siskind says. “Tomorrow morning we’ll deal with the defense’s motions.”

For Aaron, the trial now has the feel of halftime in a football game that’s a blowout. There’s still a lot of time left to mount a comeback, but it seems that all is already lost.

Aaron thinks back to Donnelly’s opening: the promises she made to the jury, the ones that Rosenthal said she could not keep.

Proof of the affair. Check.

Proof of communications between him and Faith on the night of the murder. Check.

Proof of blackmail by Garkov. Check.

Prove that Faith was going to convict Garkov. Check.

Some points might be weaker than others, but in its totality, it’s more than enough to convict. There’s no escaping the fact that he’s in serious trouble.

That is, unless Nicolai Garkov can save him.

Tomorrow will be the decisive moment of the trial. If Judge Siskind rules the defense can get Nicolai Garkov’s assertion of the Fifth Amendment before the jury, Aaron’s chances of acquittal become real.

But if she goes the other way, Aaron’s equally certain that he’s going to be convicted.

THE NEXT MORNING THE
courtroom has an air of excitement. Word
has leaked out that today’s session will include an appearance by Nicolai Garkov, which has brought the press to a lather.

“On the record,” Judge Siskind says, looking down at the court stenographer. “I have excused the jury for the day so that we may take up two items outside their presence. First, the defense has indicated it would like to make a motion for a directed verdict. After that, I will hear from the parties regarding Mr. Nicolai Garkov.”

By her phrasing, unintentional or not, Judge Siskind has alerted both sides that the motion for the directed verdict—which, if granted, would end the case with an acquittal—has no chance of success.

Even though he now must realize this is a fool’s errand, Rosenthal stands as if there’s still hope.

“Your Honor,” he says, “at this time, the defense requests that the court enter a judgment of not guilty. Even applying the very liberal standard of permitting the prosecution every reasonable inference, there is simply not enough evidence to support a guilty verdict, and therefore the case shouldn’t go to the jury.”

Judge Siskind puts up her hand, directing Rosenthal to stop. Aaron knows that Rosenthal has more to say. He was planning on going through a point-by-point rebuttal of every government witness and every document submitted into evidence.

“I’m not sure I need to spend any more time on this, Mr. Rosenthal. I’ve considered the evidence, and without prejudging the ultimate issue of guilt beyond a reasonable doubt, it’s certainly within the jury’s domain to conclude the government has met its burden of proof. The evidence presented supports that the defendant and the victim were intimate, and the 9:48 p.m. phone call placed by Judge Nichols to Mr. Littman’s office permits the inference that the defendant saw Judge Nichols on the night she was murdered, within the time window that this crime was committed. Mr. Sabato’s testimony certainly leaves room for the jury to draw the conclusion
that Mr. Garkov knew of the affair and was threatening to make it public if he was convicted, and Mr. Kagan’s testimony suggests the odds of that happening were extremely high. Put together, it adds up to motive, means, and opportunity sufficient for a jury to conclude beyond a reasonable doubt that Mr. Littman committed this crime.”

“Your Honor—” Rosenthal manages to get out before he sees Judge Siskind’s hand again.

“I know what you’re going to say, Mr. Rosenthal, and I’d be the first to concede that it’s also possible that the jury might reject what I just said. But my point is that a reasonable juror
could
reach a guilty verdict based on the evidence presented. And that’s the legal standard. So, on that basis, I am denying the defense’s motion for a directed verdict.”

Rosenthal sits down. The case will not be dismissed.

Siskind’s not finished, though. “I am intrigued, however, Mr. Rosenthal, about the defense’s motion with regard to Mr. Garkov. If I understand your position, you would like to call Mr. Garkov to the stand even though he has already notified both you and the prosecution that he will invoke the Fifth Amendment. Do I have that right?”

Rosenthal stands to address the court. “That’s correct, Your Honor. The defense believes that Mr. Garkov killed Judge Nichols. Therefore we seek to ask him one question, and one question only: did you murder Judge Nichols?”

“But he’s not going to answer,” Judge Siskind says. “Isn’t that precisely why this should occur outside of the jury’s presence?”

“Respectfully, no, Your Honor. Could there be more probative evidence of Mr. Littman’s innocence than that Mr. Garkov believes that if he answers the question of whether
he
is guilty of this crime, his answer will incriminate him? It would be a gross miscarriage of justice if the jury decided Mr. Littman’s innocence or guilt without knowing
that Mr. Garkov virtually confessed to the crime.”

Judge Siskind smiles, but it’s a gesture that could just as easily suggest that she’s enjoying the give-and-take and not that she’s inclined to agree. “Well, Mr. Rosenthal . . . I suspect that Ms. Donnelly is going to tell me it will be a gross miscarriage of justice if I rule in your favor. Is that the government’s position, Ms. Donnelly?”

“Yes. Yes, it most certainly is, Your Honor,” Donnelly says, coming to her feet. “Contrary to Mr. Rosenthal’s claim, a Fifth Amendment assertion is
not
a confession. All it means is that Mr. Garkov, perhaps mistakenly, believes that if he answers the question it might lead—
might lead
—to admissible evidence indicating that he is guilty of
some
crime. Not necessarily the crime at issue in this case—the murder of Judge Nichols—but it could well be some
other
crime for which he fears incriminating himself. In Mr. Garkov’s case, it’s not difficult to see why he would assert that privilege. He’s currently under indictment for numerous felonies, and he’s a suspect in other murders. On top of which, it is the government’s theory in this case that he committed various acts of blackmail. It is far more likely that Mr. Garkov fears incriminating himself in the crimes he’s actually committed, rather than the one crime for which someone else has been charged and now stands trial—namely the murder of Judge Nichols. The defense’s motion is little more than a request for permission to confuse the jury on what Mr. Garkov’s invocation of his Fifth Amendment rights actually means. The jury will equate it with a confession, but Mr. Garkov’s assertion may well have nothing to do with this crime at all.”