by Adam Mitzner
Some judges draw a line in the sand at being told by counsel that they can’t do something and might come back with Maybe I can’t make you immunize him, but I can allow him to take the Fifth in front of the jury. Your choice.
Aaron hopes with all his might that Siskind might be that kind of judge. But with a slight shrug, she indicates that she’s not.
“Okay, I’ve heard enough,” she says. “It is exclusively within the province of the executive branch to bestow immunity, and so my hands are tied, Mr. Rosenthal. I’m going to take the witness’s invocation of the Fifth Amendment outside the presence of the jury.”
Rosenthal is on his feet for one last try. “Your Honor, we respect the court’s ruling but request that we be permitted to tell the jury that the reason Mr. Garkov was not called as a witness was because of his assertion of the Fifth. Otherwise, the defense is greatly prejudiced because the jury will not know that we wanted to call him as a witness.”
“I’m going to deny that request as well, Mr. Rosenthal. Telling the jury Mr. Garkov took the Fifth is no different than letting him take the Fifth in their presence.”
And there it is. Rosenthal’s big gamble and Aaron’s best shot at a defense goes up in smoke.
AFTER A SHORT RECESS, AND with the jury still out of the courtroom, Sam Rosenthal calls Nicolai Garkov to the stand. The gallery is standing room only for the occasion, and additional court security is conspicuously stationed at the doors.
The tall Russian walks in dressed to the nines in a silk suit, alligator shoes, and a watch sparkling with diamonds. When he passes Aaron, the son of a bitch actually winks. Then he settles into the witness chair as if it were a throne. It might as well be.
Clint Broden is present in the courtroom, and Judge Siskind grants his request to stand next to his client. With Garkov seated and Broden standing, they’re roughly the same height.
Judge Siskind nods, telling Rosenthal to proceed. He doesn’t even rise, a passive-aggressive show of his dissatisfaction with this turn of events.
“Mr. Garkov, was Faith Nichols murdered on your orders?” he asks.
Garkov shows no emotion at the accusation. Not even a flicker. Broden hands him a three-by-five index card, and Garkov begins to read.
“On the advice of counsel, I assert my rights under the Fifth Amendment of the United States Constitution and all similarly applicable rights available to me by law.”
54
The weekend is a welcome respite. The trial is not going well, and Aaron’s unsure what type of defense they can mount to change that.
He and Cynthia are still on their first cup of coffee Saturday morning when she says, “I’ve been thinking of a defense strategy.” She stops for dramatic effect and then says, “You lie.”
There’s silence for a few moments, until Aaron breaks it with a laugh. “Well, it is the oldest defense there is,” he says.
Cynthia’s expression leaves no doubt that she does not consider this to be a laughing matter. “I’m dead serious, Aaron. You should take the stand and deny everything. The affair. The Garkov blackmail. Seeing her that night. Everything.”
Aaron looks at Cynthia with surprise. His wife has always been the moral compass in the household, and yet now she’s thrown away any sense of playing by the rules.
“Cyn, it’s not that I’m above it, believe me. I just don’t see it working. Jails are full of people who took the stand and denied everything. Even assuming that I’m a good enough liar to pull it off—which I’m far from certain about—there’s proof of the affair and the jury won’t disregard it based on my self-serving denials. I’ll just end up burying myself.”
“What if it won’t be just your self-serving denials?” she says.
“What . . . oh wait, you mean you?”
Cynthia smiles and nods.
“But you can’t alibi me. Too many people saw you in the hospital. And even if you could, your testimony is hardly worth more than mine. The jury will assume that you’d lie to save the father of your children from jail.”
“That’s where Rachel comes in.”
IT’S A SHORT LIST of people for whom you’d do whatever it takes to protect them. For Aaron, that list includes Lindsay, Samantha, and Cynthia, perhaps Sam Rosenthal too.
He’s now about to find out if Rachel is willing to make that kind of sacrifice for him. He’d be lying if he said he didn’t know how Rachel felt about him, and certainly she made it crystal clear that night at the Pierre. Yet he also knows that he’s making an unreasonable request—asking her to put everything she has at risk for him—and he’s offering her nothing in return.
Rachel arrives at the Littman apartment less than an hour after Cynthia laid out her plan for a defense based on a conspiracy to commit perjury. Cynthia has gone out, reasoning that Aaron will have more success persuading Rachel if they’re alone.
At first Rachel seems happy to once again be in Aaron’s company. When Aaron lays out the reason for their meeting, however, she looks far less pleased.
“You want me to testify that we were together the night of the murder?” Rachel says.
“Yes, but only if it’s possible you could do that without being contradicted. Can you?”
“I guess.”
“No, you have to be sure.”
“Well . . . that was the night after Judge Nichols denied the order to show cause, right? I was drafting our brief to the Second Circuit to appeal the ruling. I met with the associates at six-ish, and then not again until about eleven. But I can’t swear that one of them didn’t stop by to ask a question or call me in the office.” She pauses, as if warming to the idea of what she’s about to commit to doing. “But even if one of them did pay me a visit, it wouldn’t have been for more than a few minutes. I could always say that you went to the bathroom or the kitchen for more coffee or something. The firm’s car records will show the exact time I left, but I think it was around midnight.” Then with a full-on smile that suggests that Aaron’s asked her to go steady and not to commit a crime that carries a five-year prison term per lie, she says, “Yeah. I could definitely say you left after me, which puts you at Cromwell Altman, not Central Park, when Judge Nichols was killed.”
For a split second, Aaron considers telling her no, that it’s just too much for him to ask. But instead he says, “Thank you. I . . . I really don’t know what else I can say. But that hardly captures my gratitude. You may truly be saving my life.”
She looks at him with laserlike focus, as if she can hold him there just with the power of her gaze, and then says with deadly seriousness, “You should know by now, Aaron, that I’d do anything for you.”
EVEN THOUGH HE IS not being asked to lie under oath, the criminal risk for Sam Rosenthal is every bit as great as it is for Rachel or Cynthia. As the lawyer procuring what he knows to be false testimony, he’ll be guilty of suborning perjury. Were he to be convicted of that crime, Rosenthal could very well spend the rest of his life in prison.
Aaron is in Sam’s office when he proposes the plan. Rosenthal’s first reaction is to question its wisdom, not its ethical propriety.
“I’m not the biggest Victoria Donnelly fan out there,” Rosenthal says, “but she’s a damn good lawyer. Do you really think that the three of you can hold up under sustained cross-examination?”
Aaron has been thinking of nothing else since Cynthia first raised the idea. Every witness thinks that he can outsmart the questioner, and it’s a very rare individual who can. It takes a combination of high intelligence and complete conviction in what you’re saying. It’s almost like what they say about beating a polygraph—if you believe it’s true, it’s not a lie.
“I’m not sure,” Aaron says. “But it’s the best shot I have. More accurately, it’s the only shot.”
“I wish I could disagree with you,” Rosenthal says, “because this is pretty much a Hail Mary pass. But after
Siskind screwed us on Garkov, we’re left with recalling Stuart Christensen, which I don’t advocate, or a character-witness defense and a closing argument based on reasonable doubt, which I think we both agree is a losing proposition.”
“Like I said, Sam, this is my only shot.”
Rosenthal exhales deeply. “I guess that means we better get everyone down here so we can start to prepare.”
THEY SPEND THE WEEKEND practicing their lies.
On Monday, the curtain goes up on the performance. Cynthia will go first, followed by Rachel, and then Aaron will bring it home.
Sunday night, after the girls have gone to sleep, and Aaron and Cynthia are in bed, Aaron says thank you. He doesn’t link his gratitude to the perjury his wife will commit on his behalf the following day, and so it takes on a much deeper significance. Thank you for staying with me, he’s saying.
Cynthia acknowledges it with a kiss but not further discussion. After a few moments of silence she says, “I was thinking, you know the way I’m always getting those requests from the University of Virginia med school to come teach for a year or two? Maybe it’s time I accepted. With the girls both going off to college, this would be a great time for a change. Charlottesville is really beautiful, and it’s only two hours from DC, so it’s not totally cut off from civilization.”
“Oh. I think that’s a great idea,” Aaron says.
She must hear the reservation in his voice. “I’m not doing this without you.”
Aaron stops himself from reminding her that he may have no choice in the matter. Cynthia is well aware of that possibility. Instead, he decides to indulge her. “So, tell me, what is our new life in Charlottesville going to look like?”
Her eyes light up, even as they well with tears. “I’d like to get a little house,” she says, “nothing too fancy. It would be nice if it had a view of the mountains. There would be a guest room for the girls to stay, but it would be more like a cottage. With a small garden. My teaching hours will be limited. Ten to fifteen hours a week, at most. That’ll give us a lot of time to do the things we want to do. I’m sure that they’ll give you a guest-lecturer spot at the law school if you want it. In fact, I could make it a condition of my deal.”
Aaron lets the fantasy swirl beside him, wary of trying it on for size. It’s simply too greedy for him to wish for anything other than freedom, however.
“And I’d like us to have a dog, maybe,” Cynthia continues. “Not too big, but not a little dog. We’ll go to a shelter and pick out one that would otherwise have a sad end, and we’ll give him a new life.”
“Are you still talking about the dog?”
Aaron has tried to say this with self-deprecating charm, but Cynthia’s expression reflects that this is not a joking matter for her. “I don’t care if it’s here or in Charlottesville or on the moon, I just want us to be together. These last two months with you home have made that crystal clear to me. And if we can be happy under these circumstances, imagine how great it’ll be when all of this craziness is behind us.”
Aaron nods. The same thought has occurred to him a thousand times, always juxtaposed with the guilt that comes with knowing that he brought this all on himself.
Cynthia’s look suddenly hardens. “But it only works if you want to be with me too. And not just because it’s better than going to jail. That’s not the choice you get to make. There’s nothing either of us can do if that happens, but if it doesn’t . . . then you get to decide how you want to live the rest of your life. The only thing that I ask is that you not spend it with me out of some sense of guilt or gratitude. That’s just putting yourself in a different kind of prison.”
“I want a second chance too, Cyn,” he says. “More than anything.”
This is apparently what Cynthia wanted to hear. She presses her body against his, and he immediately feels himself harden. He knows she can feel him too, as she settles herself into him. Aaron’s hands drop to cup Cynthia’s breasts, and she lets out a low gasp. After they’re free of their clothing, Aaron lies on top of her, losing himself in the warmth of her skin. The feeling is so complete that he feels no urgency to enter her, not wanting this sensation to end.
Cynthia, however, is on a different schedule. She immediately guides him inside her, shuddering rhythmically with his slow immersion. When he’s fully submerged, just as he’s about to pull back slightly, she presses down on his back and wraps her legs firmly around his, locking him inside her, never wanting to let go.
55
Cynthia Littman looks completely composed on the witness stand. She’s wearing a cream-colored suit and a single strand of modest pearls. Her hair is down and loose. The idea is for her to present herself as attractively as she can, so the jury believes that Aaron would never have had cause to stray.
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?”
