A Conflict of Interest (13 page)

“Barring something completely unforeseen like an admission on the tapes,” I say, keeping with the caveats, “I don’t see how I’ll be able to keep him off the stand.”

“Don’t let the inmates run the asylum,” Aaron says with a parental note of disapproval. “It’s your case, and you’re much closer to it than me, but I wouldn’t open with even the suggestion that Ohlig’s going to testify. Stick to an attack of the government’s case, with a heavy emphasis on reasonable doubt. If you promise your guy is going to testify, and then think better of it, you’re screwed. Juries just won’t forgive that kind of bait and switch. On the other hand, there’s no problem if your opening doesn’t address the issue, and then you later decide to put him on.”

Aaron’s strategy is the textbook approach, especially when representing a guilty client. But I continue to believe in Ohlig’s innocence. More than that, as I’d told Aaron, this is a state-of-mind case, and I can’t imagine a jury voting to acquit without Ohlig taking the stand. As the adage goes,
If you don’t talk, you don’t walk
.

I’m about to explain this to him when he abruptly changes the subject. “So, how’s Abby working out?” he asks.

The question throws me for a moment. I can’t help but wonder if there’s gossip around the firm about Abby and me, even as I console myself with the thought that there’s really nothing to gossip about.

“She’s great,” I say. “Very smart and hard working. Ohlig just loves her.”

Aaron smiles but is too politically correct to say what I imagine he’s thinking about Ohlig’s interest in Abby. “So, I take it you’ll be supporting her when she comes up for partner?”

“I don’t see why not. But the more important question, of course, is whether you’ll be supporting her.”

Aaron deflects the tribute with a shrug of his shoulder. “You know that your vote is just as important as mine.”

I’m surprised he can say this without laughing. Although he’s technically correct that each partner has a single vote and majority rules, Aaron’s power at the firm is so unchallenged that his backing is all it takes. Since I’ve been a partner, every partnership vote has been unanimous, both for or against, much the way political conventions always nominate by acclimation, regardless of how contentious the primary battle. Once the result is a foregone conclusion, there’s no reason not to side with the winners. At Cromwell Altman, Aaron’s vote makes the result a foregone conclusion.

“But to answer your question, yes, I’ll be supporting her,” he says.

L
ast year during the holiday season, Elizabeth and I dragged Charlotte to ten of the city’s most elite private schools, begging them to allow us to pay more than $30,000 a year for her to attend their kindergarten. The process involved Charlotte being tested by a child psychologist; multi-page applications, complete with essays written by us addressing the type of school environment in which we believed Charlotte would most thrive; “private interviews” with Charlotte and the school admissions directors; “play groups,” which enabled other school admissions officers to watch Charlotte as she interacted (or didn’t) with peers; and interviews of Elizabeth and me with the schools’ headmasters to see if there was the “right fit,” a euphemism that applied to everything from our religion to how much we could be expected to contribute to the school beyond tuition.

On February 15, known as D-Day to those involved in what is called the “independent school admission process,” we received a letter from each of the schools, only two of which contained enrollment contracts. Charlotte was deemed worthy by Hamilton, a co-ed K-8 that is more than 150 years old, and an all-girls establishment called The Hewson School, which was trying to shake its reputation as a finishing school and become a more rigorous academic institution. We picked Hewson because Elizabeth fully bought into the whole pitch about the benefits of a single-sex education—that girls are more mature and can learn more quickly in the earlier years, are apt to be distracted by boys in the classroom in middle school, and are able to thrive in math and science and take leadership roles in a single-sex high school.

Hewson is housed in a double-wide brownstone just off Fifth Avenue in the seventies, which is about as expensive as real estate gets. Townhouses in the area routinely sell for well over $5 million, and apartments of similar square footage in the white glove doorman buildings can go for twice that. With the marquee address, however,
comes a shortage of space, which requires that all full-school events be held at the Presbyterian church around the corner.

As predicted, my detour to Aaron’s office has made me late. The concert started twenty minutes ago. If Charlotte’s kindergarten class went on first, I might as well have not shown up at all.

At school events like this, the seniors wear long white dresses so as to differentiate them from the sea of glen plaid that is the official school uniform—jumpers for the girls in K–6 and skirts paired with white blouses for grades 7–11. Not all of the seniors are required to sing, and those who aren’t in the choir work as ushers. Upon entering the church, a senior with long, dark curly hair hands me today’s program. On the cover it announces that
Autumn Is Here
and features a drawing of a tree surrounded by birds that is attributed to Olivia Regan, Grade 2. The inside page lists the order of performance, and to my great relief the kindergartners are up last.

Elizabeth is sitting on the left side of the church, near the back. She’s saved me a seat next to her, on the end of the pew. After I’ve settled in beside her, I lean over and kiss her on the cheek. Her expression does not say that she’s glad to see me.

On the stage, a group of girls is singing a song I’ve never heard before. I peg them to be fourteen or so, which means I’ve missed the seniors and juniors, and quite possibly the sophomores as well.

“Thank goodness she’s last,” I whisper to Elizabeth.

“Kindergarten always is,” she replies, as if this is a written rule somewhere that I should have known about. After a short pause, she adds, “I suppose I should thank you for showing up at all.”

“I’m sorry. Aaron needed to see me at the last minute.”

“What if you had already left? Or told him that you’d see him tomorrow?”

At moments like this, I can’t help but wonder how different my life might be with Abby. We speak the same language, whereas there are times with Elizabeth when I feel the need to translate what she’s said in my head before it makes sense. Some of it is simply work-related. Abby understands what I’m talking about when I use legal shorthand, and she knows that Aaron Littman is not someone you push off until
the next day, be it for your daughter’s kindergarten concert or because you’re in need of major surgery.

“I said I’m sorry.” Then, placing my hand on Elizabeth’s, I add, “After the Ohlig trial everything will return to normal.”

Elizabeth looks at me with a different expression, but one that also needs no further articulation to make its point.
What’s normal to you?

What
is
normal to me? I’m thirty-five years old, the youngest partner at a world-renowned law firm, with a beautiful wife and a healthy daughter, earning more every year than my father did in a decade, and yet I’m unhappy.

Forty-six minutes later (with me checking my watch after each performance), the school’s headmistress finally utters the words I’ve been waiting for. “Parents, for our final performance of the evening, the kindergarten is going to sing “Trees Are Our Friends.” Now, I know that you’re not going to be able to control yourselves from taking pictures, but please don’t wave to your daughters. It distracts them.”

She is halfway through her little schoolmarm speech when the first of Charlotte’s classmates enters the sanctuary through a door at stage left. Like clockwork, two people whom I assume to be the girl’s parents rise and begin to wave. The little girl doesn’t seem too distracted as she waves back, a wide, toothy grin on her face. The ritual is repeated with every girl, and when Charlotte finally appears, about midway through the processional, it’s Elizabeth’s and my turn to disobey the headmistress’s request.

T
he Constitution provides every criminal defendant with the right to a speedy trial. The original intent was based on the belief that someone charged with a crime would want to erase the stain of accusation at the earliest possible time. The reality of criminal practice now has it completely the other way around, however. The prosecutor is far more eager than the defendant to get to trial because by the time an indictment is issued, the prosecutor has already completed his investigation, but the defendant is just learning what the evidence looks like and has to play catch-up.

The Ohlig case proves the point. In the five weeks since the indictment, we’ve barely made a dent in understanding what the prosecution’s case is really going to look like. Even though they have Popowski, since he’s not part of OPM management, he likely won’t be able to get them all the way to a conviction. They’re still going to need to rely primarily on the trading tickets to put together the story of how OPM took a worthless stock, jacked up the price, and then reaped more than a hundred and fifty million dollars in profit before it cratered to zero. The government has already done this analysis, but for us to review those tickets will take at least another month.

Ohlig flew back to New York last night so he could be at this morning’s scheduling conference, the sole purpose of which is to set a trial date. Initially Ohlig wasn’t going to attend because I told him that these types of calendar calls are not very substantive, explaining that Pavin would throw out an unreasonably early date, we’d counter with an unreasonably late one, so as to put off the day of reckoning for as long as possible, and then Judge Sullivan would pick one in the middle. That would likely mean we’d start trial in March or April of next year.

Yesterday Ohlig changed his mind and insisted on being here. I should have asked him why, but I just chalked it up to his wanting to
be part of his own defense. Then, on our way to the courthouse, he tells me the real reason.

“I want you to ask for the earliest possible trial date,” he says matter-of-factly.

“What?”

“I want to get this over with as soon as possible. Tell the judge that the first available trial date is when we want to go.”

“That … that just makes no sense, Michael. We’ve already talked about the benefits of delay, and I thought we were in agreement. Is there some reason why you think an earlier trial is all of a sudden to our advantage?”

“The sooner it’s tried, the sooner I’m acquitted.”

“If only that were always the case. The truth is, the sooner you’re tried, the less likely you’ll be acquitted.”

“Do you still work for me, Alex, or have I missed something?” He says this with his trademark smile, but by now I know it belies a deadly seriousness.

“I do,” I tell him, wondering if he has the judicial equivalent of a death wish.

“The earliest possible date,” he says, ending the discussion.

Judge Sullivan is known around the courthouse as the Love Judge. Rumor has it that she worked as a model to put herself through law school, but it’s not part of her official judicial resume. She’s in her early forties and has been on the bench for four or five years. For the most part, she’s known to be a smart, no-nonsense jurist, with a reputation for being particularly tough on defense counsel, so much so that some among the defense bar refer to her as “AUSA Judge Sullivan” because she can make it feel like there’s another prosecutor in the room. To make matters worse, she’s ambitious, which, almost by definition, makes her pro-government for the simple reason that no one has ever been disqualified from achieving higher office because they were too hard on criminals, whereas many a judicial career has been derailed by the beneficiary of a lenient sentence who returns the favor by going
onto murder or rape—or, in Ohlig’s case, defraud unsophisticated investors like Mr. Rudnitsky—again.

“Good news, everyone,” Judge Sullivan announces upon taking the bench, a spark in her voice that sounds like she’s about to tell us she has just saved a lot of money on her car insurance. “Another case that was scheduled to go to trial has just settled. I can put this matter down for November 29. That’s the Tuesday after Thanksgiving. Does that work for everyone?”

The federal courthouse in New York does not permit electronic devices in the building, including cell phones or BlackBerry. It’s a post-9/11 development, although the state courts don’t follow the prohibition and most other federal courts just ask you to turn off your phone. As a result of the ban, the lawyers—at least those who are not technologically impaired—can’t access their schedules when a judge asks for availability. Even without my BlackBerry, however, I know that the twenty-ninth is a little more than two weeks from today. There’s no way we can be ready by then, even with Abby and me working our usual fifteen-hour-day, seven-days-a-week schedules.

Pavin stands, buttoning the top button of his suit jacket. “Your Honor,” he says, looking surprisingly grim-faced, “the government respectfully requests you set a trial date for some time after the first of the year.”

Judge Sullivan’s suggestion of a trial date two weeks out was surprising, but Pavin resisting it really throws me. It’s a usual point of pride with the U.S. Attorney’s Office that the government is always ready.

“Do you have a conflict in another court, Mr. Pavin?” Judge Sullivan asks.

“No, your Honor.”

“Then what’s the problem with the twenty-ninth? I would think that you wouldn’t have brought an indictment unless you were ready to proceed to trial. Frankly, I expected some pushback from Mr. Miller, but not from the government.”

As a former assistant herself, Judge Sullivan’s one pro-defense characteristic is that she can be counted on to give prosecutors a hard time
whenever she believes that they are not living up to her lofty standards. This is seemingly going to be one of those times.