Losing Faith (36 page)

Sam Rosenthal’s preliminary questions allow Cynthia to establish that she’s a woman of substance, not one of those ladies who lunch while their master-of-the-universe husbands oppress the other 99 percent. She tells the jury about her Ivy League education, the fellowships she’s received, and finally about her medical practice, leaning heavily on the fact that she specializes in high-risk births.

When Rosenthal asks how she met Aaron, Cynthia answers quickly, so as to head off a relevance objection. It’s word-for-word as scripted.

“I was in my last year of med school, and Aaron just came up to me one day in the library and said, ‘My name is Aaron Littman. I’m sorry to bother you, but I was hoping you’d let me take you out on a date sometime.’ ”

Cynthia laughs to herself, as if she’s momentarily forgotten she’s a witness in her husband’s murder trial. “That’s Aaron in a nutshell, right there,” she says. “The confidence to walk up to a girl he didn’t know and ask her out, but also a little bit of insecurity, that maybe he was bothering me. The thing that struck me most, though, was how serious he was. Truth be told, he still is. Nobody said
take you out on a date.
It was always
hang out
, or
buy you coffee
, or something like that. Casual. But that wasn’t Aaron. He was always very serious.”

Aaron smiles, as if he’s remembering that day too. He’s not, however. The truth is that they met in a bar, had too much to drink, and had sex that first night. The story that Cynthia weaves, however, is much more romantic.

Rosenthal next turns to the night of the murder. “Mrs. Littman, please tell the jury where you were the night Judge Nichols was killed.”

“I was at work, at Lenox Hill Hospital, in and out of the delivery room. My patient was going through a very difficult labor. Several times, the fetal heart rate dropped to dangerously low levels. I stayed with her to get her through a natural delivery, which is always preferable to a C-section. It was one of the hardest labors I had ever seen, and then at the end, the mother developed preeclampsia, which is a spike in blood pressure, and for a moment, I thought I was going to lose her and the baby.” Cynthia breaks contact with Rosenthal and looks at the jury. “I’m happy to say that it all ended very well. It was a natural birth and mother and baby are doing just fine now.”

Rosenthal concluded patient confidentiality would prevent the prosecution from getting the medical records to refute whatever Cynthia said occurred in the hospital that night. As a result, Cynthia was given carte blanche to make the delivery sound as perilous as possible, even though it was actually quite routine. At worst, the prosecution would track down the patient and her husband, but Cynthia could simply say that it’s her job to make it seem that everything is going according to plan, even when it’s truly dire.

“When you returned home, what time was it?” Rosenthal asks.

“A little before 1:00 a.m.”

“And was your husband at home?”

“He was.”

“How would you describe his demeanor when you saw him?”

“Asleep.”

There are some chuckles in the gallery. Aaron catches a sideways glimpse of the jury. Cynthia has their rapt attention, and the men are smiling.

“Did you notice anything out of the ordinary when you came home? For example, was your husband acting oddly, or was there any disarray in the apartment? Was there any blood in the apartment or on his clothing?”

“Oh, no. Aaron was so sweet to me when I woke him up. He always likes me to wake him when I come home, and because the delivery was so difficult, I wanted to talk about it a little bit. We stayed up for another hour or so talking.” Cynthia says this looking at the women on the jury, who no doubt complain that their own husbands never listen to them.

Again, every word is a lie. Aaron had been drinking when Cynthia arrived home at 1:00 a.m., and she knew instantly that something was wrong. Still, from the nods coming out of the jury box, the only people who matter seem to be eating up this version of the night’s events.

Rosenthal takes a deep breath, as if contemplating whether to cross the next Rubicon. Aaron assumes that this must mean he’s about to address the affair.

This is the greatest area of danger for the defense. It’s always difficult when a witness contradicts a written record, and the Ritz-Carlton documents prove Aaron checked into the hotel about once a week for close to four months, and always paid in cash. To convince the jury Aaron was not having an affair with Faith Nichols, they have to explain away that evidence.

“Did you know Faith Nichols?” Rosenthal asks.

“Not personally, no,” Cynthia says. “But I knew that Aaron tried a case before her, and that she was the judge on the Garkov case as well.”

“Do you have any reason to believe that your husband had an affair with Judge Nichols?”

Donnelly rises. “Your Honor, it’s not my place to invoke the marital privilege, if both Mr. Littman and his wife intend to waive it. But I will object later and ask that this testimony be stricken if the Littmans attempt to use the privilege as both a sword and a shield,
testifying to the marital communications between them that they want the jury to hear, and then invoking the privilege to block other communications.”

“The defense has nothing to hide,” Rosenthal says, looking at the jury. “We will not be invoking marital privilege.”

Judge Siskind’s expression subtly betrays surprise at the tactic, but it’s not her place to say so. “Then continue on, Mr. Rosenthal.”

Rosenthal repeats his question and Cynthia emphatically declares her husband has never been unfaithful. Rosenthal walks back to counsel table and Aaron hands him the Ritz-Carlton documents that prove otherwise.

After obtaining the court’s permission, Rosenthal approaches the witness stand. He hands the Ritz-Carlton bills to Cynthia.

“Mrs. Littman, before you is an exhibit previously introduced by the prosecution. As you can see, it’s a series of photocopies of your husband’s driver’s license on the letterhead of the Ritz-Carlton hotel, each bearing a date. Also among the documents I handed to you are various Ritz-Carlton invoices indicating that your husband paid for these hotel rooms in cash. My question to you is simple: did you know that your husband was at the hotel on those dates?”

“I did,” Cynthia says confidently.

“And why was your husband there?”

“To see me.” There’s nervous laughter in the gallery. “This is embarrassing . . . but, Aaron and I have been married awhile and, well . . . to put some spark back in our marriage, we would meet at the Ritz once a week or so.”

The defense knew that the moment Cynthia laid out this story, the prosecution would scour the hospital charts to see if there was any date that she could not have possibly been at the Ritz-Carlton. But Cynthia said that there was nothing to worry about. She could have arrived at the hotel at any time, and given that the desk clerk couldn’t recall Aaron’s presence, that also necessarily meant that she couldn’t convincingly say her failure to remember Cynthia was proof that she wasn’t there.

There’s one more thing Rosenthal needs Cynthia to explain away. He asks, “Mrs. Littman, if this was part of a
fantasy
—as you claim—why did your husband pay in cash? It required him to go to the ATM, when he could have easily paid the room charge with a credit card.”

Cynthia looks surprised and says, “I honestly didn’t know he paid in cash until it became an issue in this case. I was never with him when he checked in, which was also part of the role-play. But that’s the thing about Aaron. He’s like a Method actor in that way. The part he was playing was to be secretly meeting a woman at a hotel, and so he stayed in character all the way, which included paying in cash.”

Out of his peripheral vision, Aaron sees Donnelly’s incredulity. But when Aaron turns to the jury, they look far less skeptical.

IT’S A TESTAMENT TO
how well Cynthia’s done that when it’s Donnelly’s turn, she has the look of a boxer storming out for the fifteenth round in need of a knockout.

“You would agree with me, would you not, Mrs. Littman, that the whole point of an extramarital affair is to keep it secret from your spouse?”

“I wouldn’t know the whole point of it, Ms. Donnelly. I’ve never had an affair.”

It’s a warning shot by Cynthia, telling Donnelly she shouldn’t take her on. Donnelly pauses, as if she’s rethinking some of the questions she decided to ask.

She must conclude that Cynthia poses more risk than reward, because she then retreats, falling back to the hackneyed questions prosecutors always ask of a testifying spouse. It’s smart tactics. Donnelly’s not going to get Cynthia to contradict herself and she can better make her points through her cross-examination of Aaron, who will have much less built-in goodwill with the jury.

As a result, the next half hour is composed of the types of questions to which the answers are preordained.
You love your husband, don’t you? You’d worry about your children if their father went to jail? You’d do anything to help him?

For her last question Donnelly asks, “You’d even lie for your husband under oath, wouldn’t you, Mrs. Littman?”

“Yes,” Cynthia says without hesitation. After a slight pause, she adds, “I’m thankful I don’t have to.”

The first part of the answer was just about the only truthful testimony Cynthia provided.

56

A
s soon as Sam Rosenthal says Rachel London’s name, Donnelly shouts out her objection and asks to be heard in chambers.

A few minutes later, everyone is reassembled in the judge’s office. The judge sits behind her desk with the lawyers standing in a semicircle in front of her.

“What’s the story on this witness?” Judge Siskind asks.

Donnelly says, “On Saturday, we received notice of the defense’s intent to call Ms. London as an alibi witness. Obviously, Rule Twelve notice should have been made weeks ago.”

The defense knew this would be a problem. If they had an alibi witness, the rules of criminal procedure required that they provide notice to the prosecution within fourteen days of its request—one the government made more than a month ago. Rosenthal came up with the only solution that could possibly work, and now it’s time to see if Judge Siskind will go for it.

“Your Honor, the failure to file the Rule Twelve notice was entirely mine, and I apologize profusely to the court and to the prosecution. I thought I made the disclosure two weeks ago, shortly after I received the government’s discovery, which Your Honor might recall was provided to the defense only the day before the last pretrial conference. Just this past weekend, as I was preparing our defense, I realized the Rule Twelve notice had never gone out, and so I immediately sent it. Certainly, in a case where the stakes are this great, Mr. Littman should not be denied an alibi witness because of a mistake made by his counsel. Just as important, there is no harm done by the late
disclosure because, as Ms. Donnelly said, the government has already interviewed Ms. London. On top of which, as the court knows, the defense was denied a witness list in this case, and so the government can hardly complain about prejudice because they only had a few days’ notice about this witness when the defense in turn had absolutely no notice of any prosecution witness.”

“Your Honor, this is an eleventh-hour desperation move,” Donnelly says, sounding a bit desperate herself. “The hard truth is that we believe Ms. London is going to perjure herself to help Mr. Littman. We interviewed Ms. London during our investigation and she never suggested that she could alibi Mr. Littman. It doesn’t take a genius to figure out that the defense sees the trial going badly, and so they either lean on a junior partner to commit perjury, or maybe they’re bribing her to do so with the promise of, say, a bigger bonus next year, or she’s doing it on her own volition out of some misguided sense of loyalty. Whatever her motive, this court cannot let perjured testimony come into evidence.”

Judge Siskind furrows her brow. Based solely on her body language—arms crossed, eyes narrowed—Aaron has a moment of panic that Judge Siskind might actually preclude Rachel’s testimony.

“Whether or not this witness is telling the truth is an issue for the jury,” she finally says.

Donnelly looks apoplectic. “Your Honor—”

“I’ve ruled, Ms. Donnelly. If you think that Ms. London is committing perjury, you can file criminal charges. Now let’s go hear what she has to say.”

RACHEL IS THE ANTI-CYNTHIA
on the witness stand. She’s done everything she can to tone down her looks. Her hair is pulled back into a single ponytail, she wears little makeup, and her suit is the most masculine in her closet—she hasn’t worn it in years for just that reason. Even so, she looks like the supposedly ugly girl in one of those teen comedies, where the audience knows that once she removes her
glasses, she’ll be a knockout.

Rachel tells the jury that she is a partner at Cromwell Altman and has known Aaron for more than a decade. She describes her relationship with him as “like a mentor and a mentee.”

Rosenthal doesn’t ask if she and Aaron are lovers. Better for Donnelly to cross that line and then have Rachel become outraged by the suggestion.

“Were you working with Mr. Littman on the Garkov case?” Rosenthal asks.

“I was.”

Rosenthal clears his throat and then limps over to counsel table and pours himself a glass of water. It’s an old lawyer trick. He wants to make sure that the jurors are listening for this part.

After he resumes his position behind the podium, Rosenthal says, “Ms. London, I only have a few more questions, but they’re very important. First, please tell the jury where you were on the evening that Faith Nichols was murdered.”

“I was in the Garkov war room. That’s the conference room near my office where we kept most of the Garkov files.”

“Are you sure about that?”

“Absolutely positive. After Judge Nichols denied our request that she reconsider Garkov’s bail revocation, we had a lot of work to do regarding a possible appeal. So, there’s no other place I’d be.”