by Adam Mitzner
“I thought Cameron was great too,” Lindsay says, referring to the girl who played Jesus. “She was so freaked out that we had to kiss, though. You know, when Judas signals to the Roman guards to arrest Jesus with a kiss? I kept saying, it’s no big deal. It’s a kiss on the cheek. So, once, during rehearsal, she turns to allow me to do the kiss, and then I just planted one on her lips.”
“You didn’t!” Samantha squeals.
“Swear to God,” Lindsay says. “And, for whatever reason, after that, Cameron didn’t mind at all when I kissed her.”
Aaron is brought back to years of this dynamic. The way the girls talk to each other as if no one else is around. In the past, he and Cynthia would sit quietly by, the only communication between them expressions of parental pride.
Tonight, however, when he catches Cynthia’s eye, she looks away. It’s as if she is sharing the same memory but wraps it with an entirely different meaning. For her, perhaps, those times are forever behind them, whereas Aaron still clings to the hope that their past has been a prelude to an even happier future.
The moment they arrive back at the apartment, the girls rush to their respective bedrooms, leaving Aaron alone with his wife. “That was really nice,” Aaron says, trying his best to make it sound like a peace offering.
“I think the girls enjoyed all of us being together,” Cynthia says.
“I’d like to . . . I was going to say make amends, but what I really want is to be better, and for us to be happy. We have so little time before the girls go off to college, and I don’t want to waste it.”
Cynthia is not a cruel person, and so Aaron knows that her first instinct will not be to hurt him. But she’s also not a hopeless romantic. It’s the scientist in her, he thinks, that causes her to think about love and life through a more pragmatic lens.
“I know you do, Aaron. I just don’t know if it’s possible. We’ve been . . . drifting for so long . . . and all during that time I was hoping that we’d find some way to come back together. To what we once had. I mean, if you’d come to this epiphany then . . . But what can I say—you didn’t.”
“All I can do is try to be a better person now, Cynthia. I wish I could undo the past, but I can’t.”
“I hope there’s a happy ending in store for us too, Aaron. But sometimes, I don’t know . . . things happen and they’re just too heavy for a relationship to support. I’m not saying that’s what’s happened between us, but I guess I am saying that I’m not sure it hasn’t. But the good news is that I’m trying too. And tonight was nice. So, I guess let’s keep trying and see where that takes us.”
Where it takes Aaron that evening is back to the guest room.
In the darkness, he contemplates the extent to which his love wreaks such havoc on its recipients. Faith. Cynthia. The twins. Maybe Rosenthal and the firm too.
The lawyer in him sets up the argument. He’s made mistakes, yes. And those mistakes caused suffering for others, it’s true. But he now repudiates that conduct and is willing to live a better life. What more can he do than that?
Aaron knows, however, that any judge hearing that plea would dismiss it out of hand. The entire criminal justice system is predicated on the principle that it’s the conduct—not the contrition after being caught—that determines the appropriate punishment.
Which means that in a fair world, he would not be entitled to another chance. Not after all he’s done. And that leads him to pray that the world is truly not fair.
34
Rachel sits beside Richard Leeds at a badly nicked wooden table as they wait for the prosecution team to arrive. On Rachel’s other flank is Alyssa Sanders.
Sanders’s role is one that Rachel knows all too well. She’s the record. She’ll attempt to transcribe every word that’s said, like a human Dictaphone. It would be far more efficient if someone actually recorded the proceeding, but if they did, the prosecutors would have to turn that recording over to the defendant in discovery, which they’re loath to do. So instead, Sanders takes notes for the defense, and a junior prosecutor does the same for the other side. Because these notes are not verbatim transcripts, they magically become shielded from discovery by the attorney work-product doctrine, on the theory that they have become infused with attorney thought process.
Victoria Donnelly is not at all the way Rachel imagined her. Rachel doesn’t know why, but she pictured something of a seductress. The first word that comes to mind upon seeing Victoria Donnelly, however, is intense.
After a hearty, “Good morning, everybody,” Donnelly introduces her entourage. “This is FBI special agent Kevin Lacey, whom I believe you’ve spoken to, Ms. London. And my colleague here at the U.S. Attorney’s Office, Leonard Stanton, and Christopher Covello, the head of the Criminal Division.”
While everyone is still trading business cards, the U.S. attorney enters. “I hope I’m not late,” Fitz says.
Rachel’s immediate instinct is that Fitz’s presence is a harbinger of very bad things to come. The U.S. attorney doesn’t sit in on meetings to hear the attorney-client privilege invoked. If Fitz is taking the time to be here, this meeting is most certainly about something other than Garkov.
After Donnelly gives the standard U.S. Attorneys’ spiel about the perils of lying, she begins the interview by asking Rachel to recite her educational background. Rachel tells the group that she received her undergraduate degree from Stanford (leaving out the part about how things ended there, of course) and thereafter graduated from Columbia Law School. She anticipates that the next question will be to go through her employment, and so she volunteers that she clerked for Judge Davis (again omitting the way her clerkship ended) and then joined Cromwell Altman.
Richard Leeds takes the opportunity to whisper in her ear. “Don’t volunteer. Not even on something like that.”
She nods, bracing herself for the fact that now that the preliminaries are over, Donnelly is going to get to the stuff that matters.
Donnelly says, “Ms. London, did Mr. Garkov ever say anything to you that suggested he might harm Judge Nichols?”
“Don’t answer that,” Leeds immediately says, looking at Rachel as if he’s a knight in shining armor. “Come on, it’s privileged, Victoria. You know that.”
“No, it isn’t, Rich. The violent-crime exception trumps the privilege.”
“Not after the crime,” Leeds counters.
Rachel slumps back in her chair as Leeds and Donnelly start arguing. She knows this exchange will end with both sides agreeing to disagree, but without Rachel providing an answer. That’s the way disputes always end between lawyers. But it’s also why judges exist—to later break such stalemates.
“You worked with Aaron Littman on the trial of Eric Matthews, didn’t you?” Donnelly asks Rachel after the argument ends.
So much for a focus on Garkov, Rachel thinks. Second question in and they’re already asking about Aaron.
“I did,” she says.
“How would you characterize Mr. Littman’s relationship with Judge Nichols during that trial?”
“Like a defense lawyer with a judge.”
Donnelly whispers something to Fitz, and then he whispers something back. When their private exchange ends, Donnelly says, “So, how’d the Matthews case turn out for your client?”
“Not so well. He was sentenced to fourteen years.”
“Did it strike you as odd that right after Judge Nichols was assigned to the Garkov case, Mr. Garkov retained Aaron Littman to represent him . . . even though Mr. Littman’s previous experience before Judge Nichols had turned out, as you just said, not so well?”
Rachel forces herself to chuckle. “No. Aaron Littman is probably the best lawyer in the city, maybe the country. It makes total sense that a guy in serious trouble like Nicolai Garkov would want to hire him.”
As Donnelly shuffles her notes, Leeds leans in again. “What�
��s this all about?” he whispers.
“I don’t know,” Rachel whispers back.
“Did you know that Mr. Littman was having an affair with Judge Nichols?” Donnelly says as if she were asking about the weather.
“What?!” Leeds exclaims.
“Please don’t interrupt, Counselor,” Donnelly snaps. “I will represent to you that Mr. Littman and Judge Nichols were engaged in a sexual relationship. My question is very simple: did you have any knowledge of that relationship, Ms. London?”
Rachel feels her body clench, but without missing a beat, she says, “No, I didn’t know that.”
Donnelly doesn’t seem thrown by Rachel’s denial. She simply plows ahead with a new question.
“Did Mr. Littman ever say anything to you to indicate that he needed to get Judge Nichols off the Garkov case?”
Rachel is trying to gather her bearings and thinks that there might be a basis to invoke privilege—if, say, as part of the Garkov defense, they considered a disqualification motion, perhaps—but decides that it’s better to just offer a denial, which also has the benefit of being true. “No.”
“What is the nature of your relationship with Aaron Littman, Ms. London?” Donnelly says with a full-on sneer.
“What the hell is this, Victoria?” Leeds says.
“It’s a valid question,” Donnelly shoots back.
“Uh, for a reality show, maybe. But not for a criminal investigation where Ms. London is a fact witness only.”
“Who said that?”
“Wait a second . . . are you saying that you have any evidence, or even a suspicion, that my client is involved in this crime? Because that’s news to me.”
“This is an ongoing investigation, Counselor, and we have recently learned new facts which have caused us to view certain people in a different light. For example, perhaps Ms. London saw Judge Nichols as a rival for Aaron Littman’s affections, which is a conclusion I’m inclined to give much more serious thought if the witness continues in her refusal to answer this question.”
Rachel is about to say something when Leeds holds out his arm as if she’s the passenger in a car that Leeds has just stopped short. He turns his focus to the U.S. attorney and says, “Fitz, we’re here voluntarily, and you’re seriously making me regret that decision. I’m about a second away from pulling the plug on this little circus.”
“Your call, Rich,” Fitz says, “but that’s just going to escalate things. It would seem to me that it’s far preferable if your client gives us the information we’re seeking in a less formal way, with you present, rather than through the grand jury process.”
Leeds wears his displeasure on his sleeve. On her other side, Rachel is acutely aware of Alyssa Sanders scribbling down the exchange.
“Ms. London, are you going to continue to answer my questions?” Donnelly asks.
Rachel looks at Leeds, who nods. “Yes. Until my counsel tells me otherwise.”
“Okay, then. I asked about your relationship with Mr. Littman.”
“We’re . . . we’re law partners. Nothing more.”
“So you and Mr. Littman were never romantically involved, is that right?”
“That’s right.”
She can feel herself flush, but no one else seems to notice. Donnelly hasn’t even made eye contact and instead stares at the paper before her, no doubt reformulating the questions now that the romantic angle has been denied.
“Ms. London, did you ever hear Mr. Littman threaten to harm Judge Nichols in any way?”
“No,” Rachel says quickly, as if the very thought is absurd.
Donnelly smiles, as if the next question just occurred to her. “Do you know if Mr. Littman killed Judge Nichols?”
“No,” Rachel says with a laugh.
“No, you don’t know?”
“No. I mean that I have no reason to think that he did.”
“Does that mean you have reason to think that he didn’t?”
“Yeah, about a million reasons,” Rachel says.
“Would you care to share them?”
“Absolutely not,” Leeds says loudly. “This is getting ridiculous, Victoria. How could she possibly know such a thing unless Aaron Littman confessed to her, and you don’t think she might have mentioned that little tidbit to you by now if that had happened?”
“Not if she’s trying to protect him, she wouldn’t,” Donnelly snaps back. “Or if she was his accomplice.”
Donnelly glowers at Leeds, but Rachel can see that her champion is going to back down. Donnelly sees it too, because she turns away from Leeds and resumes her questioning.
“Okay, then, as I was saying, Ms. London, was Mr. Garkov blackmailing Mr. Littman?”
“Privileged! Next question!” Leeds shouts back at her.
“It’s not, Rich. Crime fraud.”
“Next question!” Leeds says.
Rachel stifles a laugh. At long last, Richard Leeds has found his spine.
Retreat isn’t Donnelly’s style, and so she forges ahead. “Where were you, Ms. London, on the night of the murder?”
“Nope,” Leeds says, steam coming out of his ears. “If you’re asking for an alibi, then you should have designated her as a target. She is not answering that. Period.”
“Really?” Donnelly says as if she’s never heard anything so ridiculous. “A member of Cromwell Altman Rosenthal and White is not going to provide an alibi if she has one regarding the murder of a federal judge?”
“You know what,” Leeds says, “we’re done here.”
He gets up and bolts toward the door. It takes Rachel a second to react, but she’s more than happy that this is over.
35
The first thing you learn as a criminal defense attorney is not to utter a word until you’re well clear of the U.S. Attorney’s Office building. That makes the twenty-five-foot-tall orange sculpture in the center of Saint Andrews Plaza the unofficial postmeeting debrief spot.
When Richard Leeds and Rachel arrive at the designated area, however, instead of talking to Rachel, Leeds pulls out his phone.
“Sam, Rich Leeds here. Yeah, we just got done . . . Not good. Much different than the way I thought it was going to go. Rachel’s still here, and I haven’t gotten her take on it yet, but I wanted to reach out to you right away . . . You know, maybe the best thing is for me to come up there, and we can sit down and talk this whole thing through.”
SAM ROSENTHAL CAN’T SAY that he’s very surprised by the turn of events, but it’s certainly unwelcome news. Even after his meeting with Fitz, he still held out some hope that Rachel’s interview would primarily focus on Garkov, and even without Leeds’s giving an explanation, he knows that isn’t even close to what transpired.
Leeds arrives at Rosenthal’s office forty minutes later with Alyssa Sanders in tow.
“Traffic was murder on the FDR,” Leeds says. “I told Rachel that she shouldn’t be here for this meeting. I think she’s back in her office. I hope that was okay.”
“That’s fine,” Rosenthal says. “It’s safer to hear it from you anyway. We’re subject to an oral joint defense, right?”
“Yeah,” Leeds says.
That means this conversation, in which neither lawyer’s client is present, is protected by the attorney-client privilege as inviolately as any discussion that Rosenthal has with Aaron alone or Leeds engages in with Rachel. There was a time when lawyers scrupulously committed joint defense agreements to writing, but the U.S. Attorney’s Office began demanding the production of those agreements, arguing that the terms of the joint defense weren’t privileged, even if the substance was protected. Some judge somewhere agreed with the government, and as a result now such agreements are almost always oral.
“So, what happened?” Rosenthal asks.
Leeds shakes his head, as if he’s being asked to recount a grue
some car accident. “I still don’t have my head around it . . . but man, it sure as hell sounded to me like they’re thinking either Aaron, or maybe even Rachel, killed Judge Nichols.”
“I need a little more specificity, Rich. What kinds of questions were they asking?”
“Alyssa here took notes, and we’ll make them available to you as soon as they’re typed up . . . but my recollection, and correct me if I’m wrong, Alyssa, is that they started out asking some things about Garkov, but pretty soon after that, they were asking solely about Aaron. Did he have an affair with Judge Nichols? Were Rachel and Aaron having an affair? Was Garkov blackmailing him? Did Aaron ever express to Rachel that he needed to get her off the case? That kind of stuff. I finally just shut it down. You know . . . maybe I should have pulled the plug sooner, but I had no idea that this was an angle they’d pursue.”
Rosenthal doesn’t care much about Leeds’s performance. His focus is whether the prosecution has any evidence to support their suspicions that Aaron killed Judge Nichols. Otherwise it’s all conjecture. “Did they show you any proof of the affair?” Rosenthal asks.
Leeds laughs. “Which one? Aaron and Judge Nichols, or Aaron and Rachel?”
“Either,” Rosenthal says without any hint of amusement.
For Rosenthal, this isn’t two lawyers gabbing about a stupid client. This is personal.
Leeds apparently gets the message. “No,” he says, this time with a much more somber expression. “Rachel denied any sexual relationship with Aaron and said she didn’t know about him and Judge Nichols. But the assistant U.S. attorney represented to us that it was true. So is it, Sam?”
Joint-defense privilege or not, Rosenthal’s objective is to get information, not give it, and so he doesn’t even consider Leeds’s question. Besides, right now, Rosenthal’s got much bigger concerns than satisfying Richard Leeds’s curiosity.
“Did they tell you anything about their evidence?”
