Losing Faith (8 page)

The gallery is full of members of the press, the lucky ones who were granted access to report on the proceedings firsthand. A hundred or so of their colleagues have been shut out of the main event, relegated to shouting questions on the courthouse steps after the hearing.

From Aaron’s presence at counsel table, the members of the media in the courtroom now know of the change in counsel. Faith won’t become so aware, however, until she takes the bench and sees Nicolai Garkov sandwiched between Aaron and Rachel London.

Three hard knocks on the doorpost connecting the judge’s chambers and the courtroom announce that the judge is about to enter. “All rise!” the court officer bellows. The massive wooden door leading to the judge’s chambers swings open and all eyes turn toward the Honorable Faith Nichols.

Even cloaked in her loose-fitting black robe, Faith looks more like a 1940s Hollywood star than a United States district court judge.
Her dark hair is down and loose, and she flashes a glimpse of her calf when she walks.

Aaron feels almost light-headed.
Focus
, he tells himself.

“Please be seated,” Faith says without looking up. Then her eyes meet Aaron’s, and she swallows hard. After a momentary pause, she says, “Uh, counsel, please state your appearances for the record.”

Aaron can only imagine that Faith is seething inside. He wishes he could convey somehow that this isn’t his fault, convinced that she’d understand if she knew all that he did.

The prosecutor stands first. “Good morning, Your Honor. David Sanyour, assistant United States attorney, representing the United States of America. I am joined this morning by Assistant United States Attorney Michael Herrera.”

Aaron knows Sanyour from past battles and respects him as an adversary. The person David Sanyour reminds Aaron of most is not a person at all, but Buzz Lightyear from the
Toy Story
movies. Erect, solid, sternly chipper, he looks the way you might imagine lawyers appeared in the 1950s, with short-cropped hair and black-plastic–framed glasses. There’s something absurdly robotic about him, made all the more comical by the seriousness with which he believes in his own moral superiority.

“Good morning, Mr. Sanyour. And you, too, Mr. Herrera,” Faith says. Then she turns and stares hard at Aaron. “And it appears we have two new lawyers present for the defense.”

Aaron rises to address Faith. “Good morning, Judge Nichols. Aaron Littman of the law firm Cromwell Altman Rosenthal and White. With me is my partner Rachel London. If it pleases the court, we move to be substituted as counsel of record for Nicolai Garkov.”

Aaron says this with a friendly smile, but Faith doesn’t return the gesture. Her face is locked in a grimace, as if she’s just swallowed something particularly foul tasting.

“This certainly does
not
please the court, Mr. Littman. Not even a little bit. In fact, I find it the height of arrogance for you to come
to this proceeding and take your place next to Mr. Garkov as if my granting your application is a mere formality.”

“My apologies, Your Honor. I didn’t think—”

“I couldn’t agree more, Mr. Littman. You clearly did not think. So now I’m thinking for you. I assume you’re aware that my predecessor, Judge Mendelsohn, put this matter down for trial on April fourteenth?”

“I am, Your Honor. But given that the court and defense counsel both have to play a little catch-up, we were hoping for a short adjournment of that date.”

“Well, you can keep hoping, Mr. Littman, because that’s not going to happen. As far as I’m concerned, the fourteenth is etched in stone. I’m well aware of the game of musical lawyers that defendants with means attempt to play as a way of pushing out the trial date. But not in my court, I can assure you. So, Mr. Garkov, if that’s why you hired Mr. Littman, then I’m afraid you’re not getting your money’s worth.”

Aaron already knew it was a distinct possibility that Faith wouldn’t postpone the trial. But it’s Faith’s phrasing that’s the true concern. If Garkov didn’t think he was getting his money’s worth, what would he do to ensure a more adequate return on his investment?

“We’ll be ready for trial on the fourteenth,” Aaron says. “Will Your Honor please accept our substitution?”

“Hand it up,” Faith says, followed by a sigh that reeks with displeasure.

Aaron passes the piece of paper to the court officer, who walks the document over to Faith. In her three years on the federal bench, Faith’s seen hundreds of substitution forms, and all this one contains is a single sentence, stating that Nicolai Garkov consents to the substitution of Aaron Littman for Roy Sabato as counsel of record, followed by signatures from Aaron, Sabato, and Garkov. Nothing else. Nevertheless, Faith studies the single page intently. When she’s finished, she lifts her head and addresses Sanyour.

“Does the government have any objection?”

Sanyour stands and buttons his suit jacket. “Your Honor, so long as there is no prejudice to the government by a delay of justice, we have no objection to Mr. Littman becoming counsel of record for the defendant.” Then he unbuttons his suit jacket and sits down.

Aaron can almost see the wheels turning in Faith’s head. With the prosecutor’s consent, she’s out of options for denying the change of counsel.

“Mr. Garkov,” she says in a stern voice, “although you are entitled to counsel of your choosing, it is my responsibility to ensure that such counsel can be effective in his or her representation of you. I have severe misgivings in this case about allowing a substitution at this late date. As I just indicated, I’m unwilling to delay the trial, and you were previously represented by very capable counsel in Mr. Sabato.”

Aaron touches Garkov’s arm, the coaching signal that he’s not to speak. Aaron too remains silent, as Faith has not posed a question so much as expressed displeasure at what’s unfolding before her.

As if she realizes that the floor remains hers, Faith continues. “I can tell you firsthand, Mr. Garkov, having stood before the bench myself for quite a number of years, that litigation and wars are often won or lost in the preparation. For that reason, you have to be absolutely certain that your interests are better served by Mr. Littman trying this case with very little time to prepare than if Mr. Sabato remained as your lawyer.” She looks firmly at Garkov. “So that there is no going back on this decision, Mr. Garkov, I need you to state in open court that you are aware of the time constraints that Mr. Littman would face if he were to become your counsel, and you nevertheless wish to proceed with him.”

Aaron rises and pulls Garkov to his feet by yanking him at the elbow. When they’re both upright, Aaron looks up at his client towering above him. He offers a subtle nod, telling Garkov to provide the confirmation Judge Nichols seeks.

“Yes,” Garkov says.

Faith scans the courtroom, as if trying to come up with another way out. But if the prosecution and Garkov aren’t going to give it to her, she has no choice but to sign the order.

“Given that Mr. Garkov is willing to proceed on the same schedule as previously established,” she says, “and noting the prosecution’s acquiescence, as well as Mr. Garkov’s constitutional right to proceed with counsel of his choosing, with the reservations I’ve already stated on the record, I’m going to permit the substitution.”

“Thank you, Your Honor,” Aaron says, but his groveling doesn’t seem to register with Faith in the least. She doesn’t even make eye contact as she signs the document officially making him counsel of record.

When Faith does look up again, it’s in the direction of the prosecution table.

“Mr. Sanyour,” she says, “are there any matters that you would like to raise with the court at this time?”

Sanyour stands again and again buttons his jacket. “No, Your Honor,” is all he says, and then he sits down.

Faith next turns her attention to Aaron. “Mr. Littman, I’m assuming that you are still too new to have an opinion about anything in this matter. But I’m going to raise an issue of my own. Although Judge Mendelsohn saw fit to permit Mr. Garkov to be in home confinement pending trial, it is my order that Mr. Garkov be held without bail, pending trial. Effective immediately.”

There’s a loud rumble in the gallery, reflecting the utter shock at Faith’s ruling. Garkov has been out on bail for months, and there hasn’t been any change in circumstances to justify incarcerating him now.

“Your Honor,” Aaron says, quickly coming to his feet, “given that this is a departure from Judge Mendelsohn’s ruling, and because the court has ruled without notice or the benefit of briefing, the defense requests that you hold your decision in abeyance until we can be heard on the matter.”

“You can be heard now, Mr. Littman. In fact, I’m all ears. Please explain to me why your client should continue to be able to live in the lap of luxury. This is a man who has been indicted for crimes that, if he were to be convicted, would likely result in life imprisonment. He is probably one of the most egregious flight risks imaginable, given the seriousness of the crimes for which he stands accused, coupled with the fact that he is a man of considerable means who is not a citizen of this country.”

Prior to making an argument before a court, Aaron is usually provided extensive legal memos outlining the state of the law and bullet points of the best arguments and sound bites to make. He takes that work and uses it as the basis for crafting his own presentation. As a general matter, every five minutes Aaron speaks in court are preceded by one hundred hours of other people’s toiling. But that doesn’t mean he hasn’t had to wing it from time to time. Indeed, some of Aaron’s best arguments have come in such circumstances.

“Thank you, Your Honor,” he says, and then pauses for a moment as he mentally sorts through the points he intends to make. “First, as the court is aware, bail has nothing to do with punishment, but is a device to ensure the defendant’s appearance at trial. Mr. Garkov has been out on bail for months without incident. Accordingly, there’s no reason to believe that he is a flight risk now. If anything, the risk of flight was much greater back when Judge Mendelsohn initially ruled that Mr. Garkov should be placed in supervised home confinement. Second, Mr. Garkov is under extremely tight protection. I can attest firsthand that it would be virtually impossible for him to flee the jurisdiction. He is guarded by no fewer than six people at all times. Third, at the present time, Mr. Garkov’s home incarceration is at no cost to the government. By contrast, time in the prison system imposes a cost, not only in terms of the dollars required to clothe and feed inmates, but also in the fact that the prison system is already overcrowded. And finally, Mr. Garkov has a constitutional right to aid in his defense. We understand that Your Honor has ruled that the
substitution of counsel shall not delay the trial, and we respect that ruling, but it does mean that we have to get up to speed very quickly. That will be immeasurably more difficult if Mr. Garkov is held at the Metropolitan Correctional Center than if he were in home confinement.”

“Thank you, counsel,” Faith says in a perfunctory way.

For a moment she turns to Sanyour, as if she’s going to ask the prosecution to weigh in. She must think twice about that, perhaps out of concern that Sanyour will cut her off at the knees the way he did on the substitution issue, because she quickly straightens up in her chair. Aaron knows from the Matthews case that it’s the posture she assumes when she’s about to rule.

Faith hesitates for a beat and then plunges forward. “It is the order of this court that the bail conditions previously entered are hereby revoked. Mr. Garkov is to be held in the Metropolitan Correctional Center until trial. The court officers should now take the defendant into custody.”

The court officers move toward the defense counsel table. As Garkov’s hands are being cuffed, he presses his face right against Aaron’s ear.

In an icy-calm voice, Garkov says, “I want to see you tomorrow morning.”

11

F
aith is still trying to catch her breath when she closes the door to her office. She held her composure in the courtroom, but the moment she’s out of sight, her head starts to spin.

What in the hell could Aaron have been thinking?

That’s just it, she tells herself; like she said in court, he wasn’t thinking. Or, equally likely, he was thinking only of himself. Typical Aaron. Goddamn it. He could never turn down a marquee case, even if it is for a terrorist.

Faith knows full well the furious activity that’s about to kick into gear at Cromwell Altman. Half a dozen lawyers will work all night on a motion to reconsider. It will be one of the classic Cromwell Altman tomes, fifty pages long with two hundred case citations, despite being written in less than twenty-four hours, and will say little more than that she was wrong to revoke bail.

“Judge,” her clerk Sara says, entering Faith’s office. “I . . . Do you want me to do anything? Research bail revocations, maybe? Um . . . I don’t know . . . Anything?”

Sara looks to be in as much shock as Faith over this turn of events, albeit for a very different reason. Sara knows that Faith normally doesn’t make a judicial ruling, particularly one of such magnitude, without consulting her clerks and asking for research.

“No,” Faith says, trying her best to sound like she’s in total control. “Thanks, Sara. I . . . I would like some privacy, though. In fact, tell Kenny too. I don’t want any interruptions this afternoon.”

NEWS OF THE DRUBBING
Aaron took in court made it back to Cromwell Altman ahead of him. Even before he removes his coat, Diane is telling him that the phone has been ringing nonstop.

“There have been at least twenty press inquiries,” she says. “And Paul Stillman called and said it was urgent. Mr. Rosenthal also asked that you see him right away.”

Paul Stillman is the firm’s public relations guru. Although Aaron doesn’t fully understand what Stillman does to earn his twenty-five-thousand-dollar monthly retainer, handling the fallout from Cromwell Altman’s representing a terrorist certainly falls within his bailiwick.