Losing Faith Part 21

Rosenthal turns to the gallery and gestures that Cynthia and the twins should stand. They do as requested, and sit down almost immediately after coming to their feet.

"Finally, Mr. Littman has the const.i.tutional right to partic.i.p.ate in his own defense," Rosenthal continues, "and if he is incarcerated, that partic.i.p.ation will be greatly restricted. For those reasons, Your Honor, we ask that the court release Mr. Littman on his own recognizance."

"Thank you, Mr. Rosenthal," Judge Gruen says. "Any response by the government?"

Donnelly now stands. She's wearing what must be her best suit for her star turn, a serious black number with a cream-colored blouse poking through. Like Judge Gruen said, seasoned prosecutors normally don't make bail arguments. Then again, bail arguments normally don't warrant a courtroom packed with reporters, either.

"Just as the prosecution does not dispute that Mr. Littman has been a lawyer in this city for many years," Donnelly begins, "the defense cannot dispute that he is not in this courtroom today for that particular reason, but because he has been accused of brutally murdering a member of this court. The proof against him is overwhelming. In addition, the defendant is a man of considerable means, who can easily live out his life abroad and in luxury, and thereby escape being brought to justice for his crimes. As for the supposed family ties that Mr. Rosenthal mentioned, the evidence in this case will show that Mr. Littman was having an affair with Judge Nichols, and therefore there's absolutely no reason to believe that his wife is sufficient reason for him to stay within the jurisdiction. And his children can just as easily visit him in Paraguay or Venezuela during school breaks as they could in prison. For these reasons, the government strongly urges this court to remand Mr. Littman to custody without bail, pending trial. He deserves no special treatment and should be treated like any other accused murderer."

"What a surprise," Judge Gruen says. "The defense says that Mr. Littman wants nothing more than to have his day in court, and the prosecution says that the moment he walks out this door, he's on the first flight to any country without an extradition treaty." Gruen looks at Donnelly and asks, "Is this a capital case?"

Aaron swallows hard. He hasn't even considered that the prosecution might seek the death penalty.

"We are still considering that issue," Donnelly says as matter-of-factly as if the issue at hand were what color to wear and not whether to seek to put a man to death.

"Here's what I'm going to do," Gruen says. "I think that a cash bail, in any amount, frankly, is too lenient under these very unique circ.u.mstances. As the prosecution stated, this is a very serious crime, and therefore the impulse to flee is proportionately strong."

Aaron sucks the air around him hard. It sounds very much like Judge Gruen is about to deny him bail.

"But I also think that the government is overreaching a bit," he continues. "So, in my best impression of King Solomon, I'm going to issue a ruling that I'm quite sure will make neither side happy." He smiles, although he must realize that it's inappropriate to think anyone is amused, and then says, "It is the order of the court that Mr. Littman shall post ten million dollars' bail, but thereafter he will be confined to his residence pending trial. During that time, he shall only be permitted to leave for a medical emergency. Visitors shall be restricted to immediate family members, medical personnel, and counsel who are on a preapproved list. When the trial begins, and subject to the trial judge's rulings, the terms of the confinement shall be modified to include visits to the defendant's counsel's office."

The air comes back into Aaron's lungs. He's being allowed to go home.

Aaron doesn't care that he won't be permitted to go anywhere else. There's no other place he wants to be.

PART THREE.

43.

Seventy days.

That's how much time stands between Aaron and the trial.

Most federal criminal cases take a year, and sometimes longer, to get to trial. The defense is to blame more often than not for the delays, especially when the defendant is out on bail. It's pretty straightforward logic: every day before trial is a day out of jail, and the pa.s.sage of time can only help memories to fade or, if you're lucky, witnesses to die.

Rosenthal, however, decided to buck the conventional wisdom by invoking Aaron's const.i.tutional right to a speedy trial, which requires that it begin no later than seventy days after the indictment. Rosenthal was convinced that because the prosecution rushed to get an indictment, it wouldn't have all its ducks in a row. It was more than a little bit of guts ball. The shortened time frame also means that the defense has to get ready in record time too, but as Rosenthal said when Aaron made this point, the defense doesn't have to prove anything.

The trial judge is the Honorable Jodi Siskind. At thirty-six, she is the youngest member of the bench in the Southern District of New York, and looks like a mom in a children's aspirin commercial, with her short brown hair cut in a bob and excited-just-to-be-here expression. She's only been on the bench for four months, and before that, she was a partner at Taylor Beckett, where she specialized in intellectual property matters. As a result, she has no criminal law experience and probably never tried a case in her life.

With the Const.i.tution telling her she had little choice, Judge Siskind set down the trial for June 4-seventy days after the indictment was filed.

Seventy days.

Not very much time in the big scheme of things, but when it's all the time there is before you stand trial for murder, the entire concept of time takes on a very different significance.

AS THEY WAIT FOR Aaron's day of reckoning, the other Littmans try to hew to their normal routines. Cynthia sees her patients and makes her rounds, and the twins continue to go to school and out with their friends.

But try as they might to feign normalcy, Aaron knows that a sea change has occurred in his family. The girls can barely make eye contact with him, and when they do, their disappointment in him is so glaring that it makes Aaron wish they hadn't.

The change in Cynthia runs in the opposite direction. She has seemingly decided that seventy days is too little time to spend even a moment of it angry, and so she has turned her emotions on a dime. Aaron has been permitted back into the bedroom, and there is barely mention of Faith Nichols at all-not an easy feat when the trial hangs over them like the sword of Damocles.

While his wife and daughters have their daily grind to shroud their upheaval, Aaron's day-to-day existence is completely foreign from the life he once led. He wakes up and has absolutely nothing to do. No client calls. No court deadlines. No firm administration matters. Nothing. He spends the day reading, watching old movies, and trying not to think too much about the future.

Of course, time has not stood still. Eric Matthews has sought a new trial, citing Aaron's misconduct, and filed a one-hundred-million-dollar malpractice suit against Cromwell Altman. Rosenthal told Aaron not to worry about it. With a shrug, he said, "Matthews will get convicted again when his lawyer isn't sleeping with the judge, and so where's the harm? Besides, this is why the firm carries a billion dollars in malpractice insurance. So we can all sleep easy when something like this comes along."

Aaron appreciates the words of comfort, but he cannot sleep easy. In fact, it's worst of all at night. When the lights go out, Aaron's mind reels with the horrors that await him in prison.

Nearly all of Aaron's clients who had the misfortune to become involuntary guests of the federal government were sent to minimum-security facilities. Even the few who weren't so lucky served their time in medium-security.

But that's not where Aaron would do his life sentence. A judge killer spends the rest of his years in a place worse than h.e.l.l.

Which is why the impulse to run is so overwhelming.

Everything Victoria Donnelly said during the bail hearing is true: Aaron Littman is a man of means, and so living his life abroad wouldn't be too much of a hardship. Although Cynthia tells him at every opportunity that they're in this together, Aaron can't help but think she would be secretly relieved to be released from that obligation. And if by some stroke of the imagination Cynthia really wants only death to part them, she could always leave the country with him.

Lindsay and Samantha are a far different matter, however. He can't expect them to live their lives in hiding. And while visiting him as a fugitive might not make them criminals, he couldn't guarantee that the prosecutors wouldn't present them with the Hobson's choice of giving up their father's location or committing perjury. On the other hand, how often will he see them if he's spending the rest of his life in maximum security in another part of the country?

Even though the smart move is to flee, Aaron is determined to stand trial. It's not because he believes he will be acquitted, however. Having spent most of his adult life navigating the criminal justice system, Aaron knows that beating the prosecution in a criminal trial is like winning in Vegas-possible, but not very likely. He's going to place his fate in the hands of the jury for the least n.o.ble reason there is: he doubts he could get away with jumping bail. He doesn't know the first thing about false identification, or accessing funds without leaving a trace, or blending into a country where he doesn't speak the language, and he doesn't know anyone he trusts enough to teach him. And when he thinks about it, life on the run, cut off from his family, is just a different kind of prison.

At times, he likens his predicament to a cancer diagnosis. Thinking about percentages of survival, trying to enjoy the little time he has left.

44.

Sam Rosenthal served a comprehensive discovery demand on the prosecution the day after Aaron's arraignment. The request sought all doc.u.ments, video footage, audiotapes, and electronic data in any way relevant to the murder of Faith Nichols, the investigation of the crime, and the evidence against Aaron Littman, as well as any exculpatory evidence.

The prosecution has still not handed over a sc.r.a.p of paper or a single e-mail, however. Weekly requests demanding compliance are met with the standard U.S. Attorney's Office reply that the government understands its discovery obligations and will fully comply in a timely manner.

When or how they will do that is always unstated, but Rosenthal can read between the lines. Those sons of b.i.t.c.hes would comply at the last possible moment, and the extent of that compliance would be the least amount they could get away with.

The day before the last pretrial conference, which is a week before trial is scheduled to begin, Rosenthal's executive a.s.sistant of more than forty years, a frail woman named Dotty-an unfortunate diminution of Dorothy because nowadays she does seem more than a little bit out of it at times-knocks on his door.

"This just arrived for you, Mr. Rosenthal," she says.

Dotty hands Rosenthal a light gray, legal-sized envelope. The return address indicates it's from the U.S. Attorney's Office. The lack of heft confirms Rosenthal's suspicion that the government's discovery response would be paltry at best.

After thanking Dotty and giving her time to leave and shut the door behind her, Rosenthal opens the envelope and removes its contents. The top two pages are Victoria Donnelly's cover letter, in which she objects to the discovery request as overly broad, unduly burdensome, vague and ambiguous (as if they were two different things), and not reasonably calculated to lead to the discovery of admissible evidence. Then she reserves her rights with regard to admissibility, relevance, and privilege, and whatever other rights she possesses but hasn't listed.

Behind the letter are Faith Nichols's cell phone bills. The first one contains the calls during August, a month before Aaron's affair with Judge Nichols began, and they continue month after month until the day she died.

Rosenthal skims the first few pages. A week into September, the calls began. Every day. From the same number. Usually at the same times, 8:15 p.m. and 7:45 a.m. Every so often, one number vanishes from the bill, replaced by another that makes and receives calls with equal frequency, at the same two times. That pattern continues the next four months, until the calls abruptly stop two days after Faith handed down the Eric Matthews sentence.

The last calls were all incoming, and each a minute in duration. After the sentence, Aaron was undoubtedly trying to reach her and she was ignoring his calls. The final page of the phone records contains the two calls Aaron told him about on the day Faith died: a one-minute call at 8:03 p.m., and after that, the return call from Judge Nichols, which was made at 8:36 p.m. There's also a call at 8:04 p.m. from Aaron to Judge Nichols's phone, again one minute in duration. Aaron didn't mention this one, but Rosenthal a.s.sumes it was an oversight; the 8:03 call must have been dropped and so Aaron simply tried again. Easy enough to have forgotten.

The phone bill shows one more call on that last day. The last call to or from Faith Nichols. Three minutes and three seconds in duration, to Aaron's office number. It was placed at 9:48 p.m.

d.a.m.n.

The prosecution might not be able to link the burner calls to Aaron, but the final entry is indisputable evidence of contact between Judge Nichols and Aaron, smack in the middle of the window in which she was murdered.

Rosenthal stares at the page the way you might focus your attention on a child who's disappointed you. And like that child, the page offers nothing back.

The next doc.u.ment is a text message that Aaron sent Judge Nichols at 8:05: Faith, please call me at this number as soon as you can. Very important.

Alone on the white page, the text looks more threatening than it likely did on Judge Nichols's phone screen. Still, like the calls from the burner phone, it's far from a smoking gun. It could have been sent by anyone and could be referencing anything.

Behind the text message are multiple copies of Aaron's driver's license on Ritz-Carlton letterhead, each bearing a different date. They follow roughly the same pattern as the phone calls-beginning on September 6 and ending January 12. Behind the driver's license papers are the invoices for the room, indicating that Aaron always paid in cash.

This will be more than enough to prove the affair. Aaron Littman, a married man, checking into a hotel once a week that is less than a mile from his home, and paying cash so there's no record of the event. There's no other explanation to sell to the jury.

The one glimmer of hope is that the prosecution's discovery doesn't include any direct proof linking Faith to these visits. That means the Ritz-Carlton must not have surveillance cameras in their common areas. But Rosenthal a.s.sumes that the prosecution can plug that hole. A witness will appear who saw them kissing in the lobby, or a desk clerk will testify that Judge Nichols asked what room Mr. Littman was in.

The bulk of the production is composed of various forensic reports. The cause of death is blunt-force trauma, and diagrams indicate that Judge Nichols suffered wounds to the back of the head. The prosecution can be expected to play this to mean that she was attacked from behind, likely taken by surprise, perhaps trying to flee from a raging Aaron Littman.

There are six crime-scene photos. In them, Judge Nichols lies on her side, her eyes closed, with her head resting on her arm. The blood is visible but not readily apparent, blending in with the leaves and dirt around her, muting the brutality of the scene.

The defense's experts would have to translate the medical jargon, but Rosenthal has seen enough of these types of doc.u.ments to be able to separate the wheat from the chaff. Very good news here: nothing appears to place Aaron in Central Park with Judge Nichols.

As he places the pages back in the envelope, Rosenthal thinks again about that last phone call-the one from Judge Nichols's cell phone to Aaron's office. If it weren't for that one call, he'd really be celebrating.

THE LITTMAN DINING ROOM table seats twelve, but two hours after he received the prosecution's discovery, Sam Rosenthal, Rachel London, and Aaron are huddled on one end, with Rosenthal sitting at the head. The lawyers fit the part-Rosenthal in his standard three-piece suit and Rachel wearing a black pantsuit and jacket-but the client is in jeans and unshaven.

Rosenthal warned Aaron that Rachel might still end up being a witness, which meant that she shouldn't be privy to defense strategy. The prosecution might call her to testify about her nasty interactions with Judge Nichols during the failed request for the order to show cause on Garkov's bail revocation. And if called by them, Rosenthal wanted to leave open the possibility of using Rachel as a character witness.

Rachel's involvement was one of the few points about the defense on which Aaron would not acquiesce to Rosenthal's judgment, however. He made it crystal clear that he only wanted people he trusted implicitly handling the case, and that meant it could only be Sam and Rachel.

A compromise was reached. Rachel would second-seat for the pretrial work, which included reviewing the discovery, partic.i.p.ating in witness interviews, and crafting an overall defense strategy, but she wouldn't be present at counsel table when the trial began.

"We finally got some discovery," Rosenthal says, and then nods to Rachel. She reaches into her briefcase and pulls out the gray envelope.

"This is it?" Aaron asks, taking the packet from Rachel.

"Donnelly claims that what you have in your hand is the full extent of the government's discovery obligations," Rosenthal confirms. "And you know the only reason she produced it now is so that Judge Siskind doesn't take her head off at the pretrial tomorrow."

Aaron takes the pages out and turns his attention immediately to the phone bills. He flips the pages until he comes to the end, and there he lingers.

The 8:03 entry gives rise to the despair he felt when he got Faith's voice mail, as if it's happening all over again. A second call at 8:04. Aaron forgot that he called her twice, hanging up both times in frustration before sending the text.

He next focuses on the 8:36 call from Faith's cell to the burner phone. That he remembers all too well. The coolness of her voice, clearly not pleased to be hearing from him.

But the last entry is a complete bombsh.e.l.l. A call from Faith's cell to his office number at 9:48. For three minutes and three seconds.

Aaron repeats the timeline in his head, as if maybe he doesn't remember parts of the night that are inextricably etched into his brain. He called Faith, got her voice mail, and hung up. Twice, apparently. Then he sent the text a minute later. She called him back-the 8:36 call-and that's when they agreed to meet at the Alice in Wonderland statue. She showed up around 9:30. They talked for five or so minutes, and then she left. That was at 9:40, maybe 9:45, but no later than that.

He didn't speak to her from the office at 9:48. He was still in Central Park when the call came in.

"The receptionist on fifty-seven can testify that I wasn't in the office that night," Aaron says hopefully. "Or maybe the building's security guard."

"Yeah, we should definitely consider that," Rosenthal says, which to Aaron's ear sounds a lot like the opposite.

He quickly realizes what Rosenthal has already grasped. There's no way that the firm's receptionist or the security guards in the lobby will remember what time Aaron left the building two months ago. Usually a car voucher would indicate his departure time, but he knows he walked home that evening, and so there is no such record.

"I left that day around seven," Aaron says. "Maybe it'll show up on the building's security cameras."

"Even before we got the discovery we checked that out," Rachel says. "It's tough to make anyone out definitively. There's just too much traffic in the lobby at that time. We can point to a figure and claim it's you, but . . . to be honest, I really can't be sure that it is you."

"And even if it is," Rosenthal adds, "all it proves is that you left the building at that time. The prosecution can easily argue that you returned, careful to avoid the security cameras. Or they'll point to some shadowy figure about your size coming back into the building and claim it's you."

Aaron continues to stare at the phone records. "How is this possible? I didn't get a call from her," he says. "I wasn't even in the f.u.c.king office!"

Aaron's declaration is met with silence. Worse still, Rosenthal and Rachel both look away. They might have just as well said that they've heard such denials before from guilty clients.

I didn't do it. You have to believe me.

"Um . . . I'll check the firm's hard drive for voice mail," Rachel finally says. "Best case, there will be three minutes of static on your voice mail that you might have deleted without giving it a second thought. I get those sometimes . . . you know, b.u.t.t dials."

"We can deal with the call," Rosenthal says. "Garkov knew you were having an affair with her, and I suspect that her husband might have too. Either one of them could have dialed your number after they killed her, as a way of pointing the police in your direction. And no time-of-death a.n.a.lysis is that precise. There's no way anyone knows if the call was made before or after she died."

Aaron doesn't see it that way. A phone call to him coming around the time of death may not be a smoking gun, but it sure as h.e.l.l doesn't look good, either.

45.