A Conflict of Interest (16 page)

The feeling in the back of the car reminds me of that evening after Peter Luger’s. I’m specifically conscious of my hands, so much so that, not knowing what to do with them, I clasp them in each another. Abby is apparently suffering from the same dilemma because her hands are in the same position.

The car pulls up to Abby’s building. Just like before, I get out of the car first. Unlike the last time, however, I extend my hand to help her out of the car.

We stand face-to-face, still holding hands. I feel almost as if a magnetic force is pulling me closer to her.
Only one kiss, and that’s it,
I tell myself, although even as I think it, I know it’s a lie. Once we kiss, I’ll want more.

“Good night,” I finally say, somehow able to get the words out before acting on my impulse.

“Good night,” she replies, smiling as if she heard everything that was in my mind.

I must have the worst poker face on earth because the moment Elizabeth sees me, she says, “Someone looks very happy.”

“Just glad to be home,” I say. “A tough day.”

She’s sitting up in bed, reading, and looks at me suspiciously. “What happened?”

“For starters, the one guy we knew could bury us—Ohlig’s second in command—has cut a deal with the prosecution. So, we’re pretty much dead in the water now.”

“I’m sorry, Alex. I’m sure you’ll figure something out.”

“I don’t see how. The guy’s going to say that Ohlig is guilty. It’s pretty hard to come back from that.”

“What does Ohlig say about it?”

“I haven’t told him. I called him and asked him to come up tomorrow so we can talk face-to-face. You know, he doesn’t even ask me what’s going on. It’s the weirdest thing. I can’t figure out if he’s just super cool or delusional.”

“Do you think he’s going to take a plea now?”

I smile at her, impressed at her understanding of trial strategy. “I don’t know. I’m going to recommend it, but he’s been swearing he’s innocent from day one, and I think he’s so far out there that there’s no coming back.”

S
o, you’ve called me into the Batcave,” Ohlig says as soon as he’s settled into my guest chair. “And now I’m here. Will Batgirl be joining us? Or is Abby more like Robin?”

“I thought we should do this just the two of us,” I say, ignoring his attempt at humor. I also leave out that the reason it’s just me and him is because Abby’s presence immediately brings out Ohlig’s Mr. Happy-Go-Lucky persona.

“Okay, you’ve built your suspense. What’s so important that the phone is no longer an adequate means of communication?”

“Fieldston’s flipped.”

Ohlig gives a weak smile, an attempt to show this is nothing he can’t handle, I suspect. Then, in keeping with that theme, he says, “I had my money on Ruderman. I always thought that guy was a weasel.”

With his punch line delivered, the smile that’s the usual fixture on his face recedes, replaced by the expression that defines most people in Ohlig’s circumstances—the grim sadness of someone confronting his mortality for the first time. Ohlig looks away from me, his focus directed over my shoulder, somewhere out the window.

“I just can’t believe it,” he says, now more in regret than in anger, and not really to me as much as into space. “I mean, Eric was like family. I know that people say that all the time, but I’ve known the guy for twenty-five years. He came to work for me right out of college. I taught him this business. I paid for him to get an MBA, for Christ’s sake.”

I shake my head in sympathy. “Don’t be too hard on him. If Pavin had offered you immunity to turn on Fieldston, I would have told you to take it.”

“But I wouldn’t have.”

I assume Ohlig’s saying that he wouldn’t lie to save his own skin. But it could be that he wouldn’t betray someone to save his own skin even if it required only that he tell the truth. It’s one of those
pronouncements that’s easiest made when it’s not going to be tested, however.

“This changes things,” I tell him.

“No, it doesn’t,” he tells me.

“Michael, we need to focus on reality for a moment. All that stuff about the presumption of innocence they teach you in fifth grade—you can forget it. It just doesn’t exist. Jurors assume the same thing you do when someone’s arrested—that they’re probably guilty. Pavin’s going to show them that you made more money than they can even contemplate exists, and in the process that you destroyed the life savings of thousands of people, most of whom were widows and retirees. And then, to top it all off, Eric Fieldston—the person at OPM you most trusted—will swear under oath that although he loves you like a father, his conscience requires that he tell the truth, and the truth is that he knows for a fact that you knew Salminol was a total sham.”

Ohlig shakes his head. It’s a soft gesture, suggesting he absolutely can’t fathom how it’s come to this.

“I thought Salminol was the real thing,” he says without emotion. “That’s why I bought it for myself, and that’s why my company was selling it.” His words get stronger, picking up some speed as he works his way through a speech I get the sense he’s delivered before. “My business is not selling blue chip stocks, it’s finding the next big thing. We were selling Microsoft before anybody. I remember the questions. ‘Windows?’ How can a computer have windows in it, so you can reach inside?’ That is actually what they would say, no joke. You want to know how many of them retired early because we sold them Microsoft? Okay, so I was wrong on Salminol. I never claimed to be able to predict the future.”

“Michael, with all due respect, your company bought Salminol at a dime and was selling it at ten times that much. Then when the position was completely sold, the market dried up, and the stock crashed to zero.”

“Ah, now that sounds like the government talking, not my lawyer. What actually happened is that the price kept going up, and we sold at the ask. I know we were a large seller of the stock, but that’s not
unprecedented for us. You forget, I was still personally holding four million bucks of the stuff. I was waiting like all the investors for the secondary. Then, literally out of nowhere, the company files for bankruptcy. Everyone tried to get out, which is why we couldn’t sell the clients out of it. We tried. There were just no buyers. I went down the tubes with every other investor.”

I’ll say this, Michael Ohlig can sell it. He looks as sincere as I can imagine a person could be. It reinforces just how strong he’d be as a witness in his own defense.

“A jury is not going to be sympathetic. It’s going to look to them like you’re just fulfilling the company’s motto—getting rich on other’s people money.”

“Motto? Where’d you get that from? OPM stands for Ohlig, Pamela and Michael.”

I don’t say anything. I’ve believed in Ohlig’s innocence when no else did, and I’m wondering if my suspicions now are a fleeting lack of faith or the moment when I come to realize what Abby has thought now for weeks.

“Hey, I need you to level with me, Alex. Your father knew me for more than forty years, and never once questioned my honesty. You and I have been working together for what, three months? Have I ever said anything that turned out not to be true?” I still don’t answer. “Answer me, goddammit. The tapes all show I’m telling the truth.”

“Not all of them.”

“Popowski? C’mon, you know that’s bullshit.”

“And now Eric Fieldston.”

“More bullshit. Fieldston is lying to save his own ass.”

“At this point, Michael, only you and God know for sure whether you’re innocent. Besides which, the truth doesn’t really matter anyway. A trial isn’t about whether you’re actually innocent or guilty, but about what twelve people who aren’t smart enough to get out of jury duty believe. And trust me, the two are not the same thing by any stretch of the imagination. Even before Fieldston flipped, an acquittal was, at best, a fifty-fifty shot, and that might have been too generous in our favor. Now with Fieldston against us, the reality is that our odds of
an acquittal are considerably longer.” I pause, allowing this to sink in, before hitting him with the stuff that’s really going to sting. “I’ve never dwelled on the worst-case scenario with you because, frankly, you never ask, and I’ve always thought you’d consider my bringing it up as a sign that I lacked faith.”

“Just spit it out, Alex,” he says, looking as if the last thing he wants to hear is any more of this speech.

“Okay … here it comes. If you’re convicted, given the amount of money involved and our misfortune in pulling Judge Sullivan, who’s nothing if not tough on white collar crime, you’ll probably get at least twenty years. Even if by some stroke of luck Judge Sullivan takes pity on you, she’s still going to sentence you to somewhere between seven and ten years. Either way, it would feel like a life sentence.”

I expect him to say something. Another protestation of innocence, or maybe that he intends to live much longer than ten years. Anything. But he’s silent. It’s as if he wants me to say everything I have prepared before he commits to a position.

“Pavin doesn’t have a whole lot of experience in front of a jury,” I continue, “and he’s never been in a high-profile case before. That leads me to believe that he’d be more than happy to have you take a plea rather than run the risk of losing his first big case. I think I’ll be able to get him to go down to five years, maybe four. The bottom line is that you can either spend three years in prison and then some time in a halfway house, and then enjoy your retirement, or run the risk you’ll very likely die in jail.”

I’ve had more than a few clients cry at this point, the moment when they realize it’s all over and they’re going away, thoughts of rampant sodomy filling their heads. Some start talking about suicide and one or two have fired me on the spot. I have no doubt Ohlig will not fall into any of these groups.

“That’s what you’d do? You’d plead guilty to something you didn’t do?” His voice is calm, as if he’s conducting a survey.

“Let me start a discussion so we can see where Pavin’s bottom line is on this.”

“Answer my question, Alex,” he says with insistence. “Would you plead guilty to something knowing you’re innocent?”

It’s an occupational hazard of a criminal defense lawyer to put yourself in your client’s shoes. Every client’s knee-jerk reaction is to claim that he would never—
never
—falsely admit guilt, even if it meant avoiding jail. The wisdom of adhering to that principle is reinforced by the movies and on television because when it’s scripted, justice always prevails. Real life, unfortunately, has a way of sometimes ending the other way around. As a result, I’ve long ago considered the practice of criminal law to be less about the pursuit of justice, and more about risk management.

“If it were me, I’d plead,” I tell him. “I don’t see how anyone can rationally risk spending the rest of their life in jail when the alternative, although certainly difficult, is doable. It’s just that simple. It’s too risky to go to trial, even if you’re innocent.”

He nods while I say this, as if he’s actually considering my analysis. Then, with a particularly heavy voice, he says, “You disappoint me, Alex. I thought we were more alike than that.”

I have no earthly idea why he thinks we share any similarities. We have disagreed on most every decision I’ve made so far. If anything, he should be surprised if we were in accord about his decision to head to trial, despite its risks.

“I don’t want to have this discussion again,” Ohlig says. “I’m innocent and I’m not going to admit to something I didn’t do.”

“Okay,” I say.

“No, not okay, Alex. Call me old-fashioned, but I need to know that my lawyer believes in my innocence. So, tell me, straight out. Do you?”

“I do,” I say, and much to my own surprise, I actually still believe it.

I
had been hoping to sleep in a little on Sunday, but wasn’t too surprised when that didn’t happen. I try to get out of bed without waking Elizabeth, but she stirs, and then realizing that I’m awake, she becomes concerned that I’m going back on my promise to spend the day with her.

“You’re not going to work,” she says, “right?”

“I told you that I wouldn’t. I’m just going to make some coffee.”

“Stay in bed. It’s your birthday. I’ll make breakfast. Or we can go out.”

“It’s still early, Elizabeth. You sleep. I can make coffee myself. And I promise, I’ll still be here when you get up.”

“Happy birthday, sweetheart,” she says, and then turns to go back to sleep.

As soon as I’m out of the bedroom, I reach for my BlackBerry. I don’t have any emails, but I have a voicemail. I can feel myself smile and my heart rate picks up. I speed-dial my voicemail, cursing to myself when I can’t get a signal and the call fails. On the second try, I’m in, and after typing in my PIN, I hear the electronic voice confirm that the unlistened-to message is from Abby’s extension.

She actually sings “Happy Birthday,” the full song. When she’s finished, she says in a serious voice, “Alex, I really hope you have a great birthday. I also hope that I get to see you today sometime. I understand if you decide to take the day off, but that doesn’t mean that I’m not going to try to bribe you. I have a little present for you and brought in some candles and two white-and-white cookies, which I know are your favorite. If you can’t come in, at least give me a call so I can wish you a happy birthday in person,” she chuckled. “Or at least over the phone in person. Guess where I’ll be. Bye.”

White-and-white cookies have become just one of many inside jokes
Abby and I now share. They are the classic black and whites, made famous by that Seinfeld episode, but without the chocolate side. Abby and I have gone to the coffee shop downstairs so often that she claims she’s going to need to schedule an intervention to get me to kick the habit.

I listen to the message a second time, and then press the prompt to allow me to leave a return message. “Hi,” I whisper, so Elizabeth won’t hear, even though I’m certain she wouldn’t be able to hear even if I spoke in my normal voice. “Thanks so much for your message. I’m definitely going to try to come in today. Probably before dinner, maybe four-ish. I won’t be able to stay long, but, as you know all too well, I can’t resist a white-and-white cookie. Bye.”