by Adam Mitzner
48
On Sunday evening, the night before the trial is scheduled to begin, Aaron feels the full weight of what is about to unfold. He has done yeoman’s work to keep it all together in the days since his indictment, but this night, lying in bed beside his wife, all that emotion is ready to burst free.
Aaron’s not so naïve as to think that the last two months, in which nothing has been normal, are a good indicator of future happiness, but he’s also not so far gone that he doesn’t recognize the possibility that he’s being given the rarest of all gifts: a second chance.
“I love you so very much, Cynthia,” he says, choking on the words.
Cynthia looks at him and is also near tears as she kisses him on the lips very softly. “I love you too,” she says. “And we’re going to get through this. Together.”
The irony is powerful enough to bring a broad smile to his face. For the first time in . . . he doesn’t know how long, Aaron is optimistic about the future.
Even as tomorrow, the trial of his life begins.
A LINCOLN TOWN CAR picks Aaron up in front of his home to take him to court. As he gets in the backseat amid the popping flashes, Aaron suspects the spectacle in front of the courthouse will be twice as bad.
And holy God, it is.
There are actually two federal court buildings in lower Manhattan. The original structure was built in the 1930s and has the majestic columns denoting a courthouse of that era. The newer building was erected twenty years ago and is positioned diagonally behind its predecessor. It has two entrances that are open to the public, which means that at least the press factor is cut in half at each one.
Aaron opts for the back entrance, which is still blocked by at least a hundred reporters. He smiles for the cameras and then quickly ducks inside. Cynthia will come separately, the thought being that if she doesn’t arrive with Aaron, she might not attract the attention of the paparazzi. Aaron knows now, however, that is very unlikely.
Inside the courtroom, the gallery is at capacity. Even so, when Cynthia finally arrives, she’s allowed to sit in the front row behind the defense table. All have agreed it’s best if the girls are not present for any of the trial, the thinking being that if the jury believes Aaron is subjecting his children to the prurient details of his life, they’ll be more likely to be angry with him than feel sympathy for his daughters.
Faith’s husband, Stuart, sits on the opposite side from Cynthia, directly behind the prosecution team. He will almost certainly be a witness against Aaron but is permitted to watch jury selection—or voir dire, as Judge Siskind prefers to use the French term—and opening statements, after which the judge has ordered that all potential witnesses will be barred from the courtroom, so as not to taint their testimony. Erring on the side of caution, Cynthia will also be absent during the testimony, just in case she’s needed as a character witness. It is for that reason, too, that Rachel is back at the firm and not here.
Jury selection goes quickly. Most federal judges don’t stand for the weeks of vetting that can occur in the state courts. The questions designed to ferret out bias are submitted by the lawyers, and then Judge Siskind asks the prospective jurors only the ones she deems relevant. Proceeding in that fashion results in all twelve being seated in less than a day.
Although some lawyers swear that picking a jury is the most important part of any trial, Aaron likens it more to the scoring system of Olympic judges—you throw out the high and the low, and the rest are going to be fine. The low—those predisposed to convict—means anyone with a background in, or penchant for, law enforcement. The only juror who fits that bill is a retired air force colonel who now teaches sociology at John Jay College. Had he been in the first chair, Aaron might have struck him, but Rosenthal waved off Aaron’s concern, reasoning that the professor is an academic more than a military man, and that makes him more inclined to acquit on grounds of reasonable doubt.
In the end, the jury’s composed of six men and six women. Five of them appear to be minorities. They range in age from twenty-two to seventy-two.
Aaron considers it a fair enough jury, at least insofar as he can make any assessment based on physical appearance and the answers to rudimentary questions intended to root out only the most severe prejudices. If he’s ultimately convicted, he won’t blame it on the jury composition, which honestly is all you can ask out of voir dire.
THE NEXT DAY, JUNE 5, begins with opening statements. Victoria Donnelly is no more pleasant in front of a jury than she is in real life. She still carries herself with that particularly noxious combination of superiority and contempt for others. Perhaps the jury will find her to be a no-nonsense prosecutor, but Aaron can’t help but think that it’s good for him that Donnelly has taken the lead and not Covello or, as he once threatened to do, Fitz himself.
It’s immediately apparent that Rosenthal’s decision to rush to trial hasn’t impacted Donnelly’s preparation. She speaks without notes, and the exhibits she plans to introduce appear on cue on the forty-eight-inch television screens on either end of the jury box.
“Think of my opening statement like the printout you get from Google Maps,” Donnelly tells the jury, a rare instance when she smiles.
It was once part of the U.S. Attorney’s Office’s standard opening-statement monologue to tell the jury that they were presenting a road map. Apparently, this is their effort to get with the times.
Aaron’s given instruction to enough clients to know not to react to anything Donnelly says. Nevertheless, when Donnelly tells the jury about his affair with Judge Nichols, it takes all of his willpower not to turn to the gallery to ascertain Cynthia’s reaction.
“Ladies and gentlemen,” Donnelly says, “the defendant was in love with Faith Nichols. They had a torrid affair during which nothing else mattered to him. Not his wife of more than twenty years, not his children, not even his professional standing. You will hear evidence that, subsumed by this obsessive love, Mr. Littman did something unthinkable for a defense lawyer. He appeared as counsel for a client named Eric Matthews in a case in which Judge Nichols—his lover at the time—was the judge. This type of conflict of interest could, and indeed should, result in a lawyer never practicing law again.”
Donnelly pauses and shakes her head in disgust. Aaron notices that some of the jurors seem to squirm in their seats.
“If that was the only infraction Mr. Littman committed,” Donnelly continues, “it would be a matter for the disciplinary committee that governs attorney conduct, and not you, ladies and gentlemen. But after Eric Matthews, the defendant represented Nicolai Garkov. Mr. Garkov was on trial for very serious crimes. So serious, in fact, that he likely would have received life in prison if convicted. And so when Faith Nichols became his judge, Mr. Garkov immediately hired Aaron Littman, even though he already had a very competent trial attorney representing him. Why did Mr. Garkov do this? For one simple reason: he knew about the defendant’s affair with Judge Nichols, and he was blackmailing Mr. Littman to blackmail her. You see, ladies and gentlemen, unlike this trial, where you, the jury, will ultimately decide guilt or innocence, Mr. Garkov waived his right to a jury, which meant that Judge Nichols, and she alone, would render the verdict. It was a very simple plan. Mr. Garkov told his new lawyer, Aaron Littman, that he was to convince his lover, Judge Nichols, to find him not guilty, or else he’d go public about their affair, which would end both of their careers.
“And that’s precisely what Mr. Littman set out to do. The evidence will show that the defendant met with Judge Nichols right before she was murdered,” Donnelly says, without explaining what that evidence would be. “They met in Central Park at night, a place where no one would see them. And when they did, the defendant told Judge Nichols about Mr. Garkov’s threats.”
Aaron scribbles on the legal pad in front of him, OBJECT! but Rosenthal dismisses it with a shake of the head. Jurors often view objecting during an opening stateme
nt as discourteous, and truth be told, Aaron can’t recall ever having done it himself. That being said, Donnelly has gone far beyond what is permissible under the rules, making arguments based on inferences rather than merely recounting what the evidence will be.
“But Judge Nichols told the defendant that she would not compromise her office,” Donnelly continues, as if there is no doubt that this is what occurred, even though there is no possible way she could know what Judge Nichols said. “And that meant that Mr. Littman would be disbarred for sure, not to mention that his wife might divorce him when news of his extramarital affair became public. And so in the heat of the moment, Aaron Littman beat Judge Nichols to death.”
It’s a truism of criminal practice that only two people know what actually happened—the victim and the perpetrator. In a murder case, that means no one who knows the truth is going to reveal it. And yet Donnelly has gotten a lot of it right.
SAM ROSENTHAL COULD EASILY make it to the podium without his cane. Yet he leans on it heavily to make the five-foot trek, an unspoken communication with the jury that he is a man who has known struggle.
“Ladies and gentlemen of the jury . . . I disagree with much of what Ms. Donnelly told you,” Rosenthal says in a slow voice, almost like he’s sharing a sad story. “About the evidence indicating Mr. Littman’s guilt, of course. But about so much more, as well. Even about the purpose of our opening statements. Ms. Donnelly told you that her opening statement was a map. I don’t see it that way at all. I believe that what Ms. Donnelly and I tell you to begin this case is a promise. No, it’s even more than that. It’s a sacred vow about what each side will demonstrate during this trial. And like all vows, be wary of those who make them cavalierly and then do not follow through.”
Aaron wishes Rosenthal chose a different phrase. Having never been married, Rosenthal might not have made the connection to Aaron’s own broken marriage vows.
“Ms. Donnelly promised you a great many things in her opening statement,” Rosenthal continues, his voice growing stronger. “She promised you proof of an affair between Mr. Littman and Judge Nichols. She promised you a motive: blackmail. She promised you that at the end of this case, you would not have a single reasonable doubt that Aaron Littman committed this brutal murder.”
Rosenthal stops and tries to make eye contact with each of the twelve in the jury box. It appears to Aaron that most of them have accepted his lawyer’s gaze.
“I make you one promise, and one promise only,” Rosenthal says with a closing crescendo. “And that is this: Ms. Donnelly will break her promises. The government, with all its vast powers and resources at hand, will not prove Mr. Littman’s guilt beyond a reasonable doubt. Of that you can be certain.”
With that, Rosenthal limps back to counsel table and sits down. Aaron had wanted Rosenthal’s opening to go on longer, hitting back at the evidence and setting up Garkov, but Rosenthal overruled him.
Aaron is questioning Rosenthal’s judgment right up until the moment he spies Donnelly’s scowl. It is the surest measure of the effectiveness of Rosenthal’s presentation. Perhaps the old man was right to quit when he did.
49
The afternoon begins with Victoria Donnelly calling her first witness to the stand. Stuart Christensen is wearing a black suit, undoubtedly to remind the jury that he’s still in mourning.
In something of a monotone, Stuart answers Donnelly’s open-ended questions to explain that he suspected his wife was having an affair, and one night he followed her to the Ritz-Carlton, and then waited three hours for her to leave.
“Did you see who she was meeting?” Donnelly asks.
“Yes. She came out of the hotel holding Aaron Littman’s hand.” Even without Donnelly’s prompting, Stuart knows to make the in-court identification. “The man I saw with my wife is that man, there,” Stuart says, pointing at Aaron.
As revenge fantasies go, this must rank pretty close to the top. You may have fucked my wife, but now I’m going to send your sorry ass to jail for the rest of your life.
“Let the record reflect,” Donnelly says quickly, “that the witness has identified the defendant, Aaron Littman.”
Aaron wants to scream Liar! Instead, he leans over and whispers to Rosenthal: “He never saw us. Faith and I never left together.”
Victoria Donnelly has already asked her next question, and rather than answer Aaron, Rosenthal instead gets to his feet and shouts, “Objection! Hearsay.”
Judge Siskind seems surprised, as it’s the first time Rosenthal’s objected. “Counsel, please approach,” she says.
Although Aaron is technically not included in the request that counsel approach, he joins Rosenthal at the bench anyway. When everyone is assembled, Judge Siskind places her hand over the microphone in front of her and leans forward to address the lawyers below her.
“It’s your objection, Mr. Rosenthal, so it’s your turn.”
“Your Honor, Ms. Donnelly’s question suggests that she’s trying to elicit from this witness the testimony about Judge Nichols’s consideration for a nomination to the Supreme Court,” Rosenthal says. “My objection is that such testimony should be precluded on hearsay grounds because Judge Nichols was his sole source for that information. As a result, he’s really just testifying to what she told him, and that’s classic hearsay.”
Thank God Rosenthal was listening to Donnelly and not his complaint that Stuart Christensen was lying, Aaron thinks. This is a critical issue for the defense. If Donnelly can get into evidence that Faith knew her Supreme Court nomination was linked to Garkov’s conviction, the prosecution has gone a long way to show motive.
Judge Siskind’s eyebrows rise, suggesting she thinks Rosenthal’s made a good point. She turns to Donnelly. “Any rebuttal, Counselor?”
“This witness will establish Judge Nichols’s mental state,” Donnelly counters. “Therefore his testimony meets an exception to the hearsay rule. As the victim’s husband, he was well aware that Judge Nichols believed she was under consideration for the Supreme Court. That belief caused Judge Nichols to reject the defendant’s attempt at blackmail, and that’s what we’re putting before the jury.”
Like a spectator at Wimbledon, Judge Siskind turns back to Rosenthal, as it’s now his turn to volley. “What do you say to that, Mr. Rosenthal? Can’t a husband testify to his wife’s mental state?”
“Not if that conclusion is based solely on hearsay,” Rosenthal replies. “Mr. Christensen is free to testify about what he observed, but a conclusion that is based on nothing more than a statement made by his wife is no different than testifying to the truth of the statement itself. Either way, it’s hearsay.”
When Donnelly tries to offer a rebuttal, Judge Siskind stops her in her tracks. “No, I think Mr. Rosenthal’s got you on this one,” she says. “The objection is sustained. Ms. Donnelly, move on to something else with this witness. If you want to get into evidence that Judge Nichols was being considered for the Supreme Court, I suggest you get the White House on the phone.”
As they walk back to counsel table, Rosenthal whispers to Aaron, “That was huge for us.”
NOW UNABLE TO ESTABLISH motive through Stuart Christensen, Donnelly decides to pull at the jury’s collective heartstrings. Stuart recounts how much he misses his wife and how grief-stricken he was upon hearing the news of her murder. Aaron can only imagine that somewhere up there Faith is rolling her eyes.
When Judge Siskind says that Rosenthal may begin his cross-examination, he rises slowly and says, “No questions for this witness, Your Honor.”
“In that case,” Judge Siskind says, “the witness is excused, and we’re adjourned for a twenty-minute recess.”
Aaron holds his tongue until the last of the jurors leaves the courtroom, and then a few moments longer to allow Judge Siskind to depart the bench. The moment the coast is clear, however, he turns on Rosenthal.
“What the hell, Sa
m?! Why didn’t you question him?!”
Rosenthal looks away from the papers he’s shuffling. “It was too risky,” he says. “Did you look at the jury while he was testifying? They wanted to hug the little shit.”
“But he’s lying about seeing Faith and me together at the hotel! That wasn’t true at all, and you didn’t call him out on it.”
Rosenthal grasps Aaron by the elbow and says, “I know the lawyer in you knows this, Aaron, but without proof, what’s calling him a liar going to do for us? And it’s not going to help us win any sympathy points with the jury, that’s for damn sure.”
Aaron feels himself deflate. He knew the Ritz-Carlton records would establish he’d been at the hotel, but he had held out hope that the prosecution couldn’t prove he’d been there with Faith. And now they have.
“Keep your eye on the ball, Aaron. Garkov’s the real play here. If we can get his assertion of the Fifth before the jury, we’re home free.”
Aaron wants to ask, What if we can’t? but he already knows the answer. Having passed on the opportunity to go after Stuart Christensen, without Garkov the defense has nothing.
50
Victoria Donnelly’s next witness is a desk clerk at the Ritz-Carlton. Donnelly’s strategy is now clear. She’s going to go all-in on the one thing she can prove without any shadow of a doubt—the affair—in the hope that when she’s done, the jury will be poisoned against Aaron to such an extent that they won’t much care that the evidence that he committed murder is wholly circumstantial.
The clerk’s name is Dana Luria. She’s in her early twenties, at most, and has the attractive but unthreatening quality that a luxury hotel would look for in someone to meet their guests. She speaks so softly that Judge Siskind has to ask her more than once to speak up so the jury, which is sitting less than fifteen feet from her, can hear.
