A Conflict of Interest (26 page)

Then Pavin lays down a trump card.

“Your Honor, we’d like to call one more broker witness. He’s got something new to add.”

“What is it, Mr. Pavin?” Judge Sullivan asks, sounding skeptical. Lawyers are a lot like children in that, no matter how much you give them, they always want one more.

“He’s going to say that Mr. Ohlig offered him a bribe in order to change his testimony.”

“Well, Mr. Miller,” she says, peering down at me from the bench. “
That’s
something different, wouldn’t you say? Let’s take a ten-minute recess and then you can call your witness, Mr. Pavin.”

“You couldn’t just send this one away on a Caribbean vacation?” I’m careful not to raise my voice too much because we’re in one of the annex rooms right outside the courtroom and the walls are thin. “You had to go all out and
bribe
this one?”

Ohlig chuckles as if he’s amused by the joke.

“There’s nothing funny about this, Michael! What do you think you’re doing? This is a
serious
crime you’ve committed. On top of which, I’m betting that Pavin is going to think I’m a co-conspirator. And call me crazy, but I’d rather not be indicted at this stage of my legal career.”

“Can I offer something?” Abby says.

“I wish you would,” Ohlig says, as calm as always. “I think Alex here is about to explode.”

“Can’t we keep the evidence out on relevance grounds? Bribing a witness”—Abby looks at Ohlig—“
allegedly
bribing a witness isn’t evidence that Michael committed securities fraud.”

“It is evidence of obstruction of justice, however,” I say.

“So let Pavin bring those charges,” Abby counters. “But we can argue that it isn’t one of the counts of this indictment, and it’s unduly prejudicial under Rules 404 and 608.”

Ohlig responds before I can. “Abby,
you
make the argument. Maybe you’ll have better luck on this one than Alex, since you, at least, seem interested in my defense.”

“May we approach, your Honor,” I say as soon as we reenter the courtroom. The jury hasn’t been summoned yet, but I don’t want to have this discussion in front of the press.

“What is it, Mr. Miller?” Judge Sullivan says, clearly annoyed that there’s going to be a further delay.

“If we may approach.”

“Come, but make it quick,” she says.

As soon as we’re beside the bench, I tell her that we’d like to be heard on the relevance of the prosecution’s next witness.

“Didn’t we already discuss this at the last sidebar?” Judge Sullivan says rather sternly. “Mr. Pavin has already proffered a theory of relevance that was accepted by this court.”

“The relevancy objection we previously discussed concerned duplicative testimony,” I explain. “Now that the government has identified the new area that this witness is going to address, we would like to be heard about why the testimony should be excluded under the Federal Rules of Evidence.”

“Make it quick, Mr. Miller.” Judge Sullivan sighs as if she’s got somewhere else she’s supposed to be.

“Actually, Ms. Sloane is going to address the court on this one.”

“Let’s hear it, Ms. Sloane.”

“Thank you, your Honor,” Abby says. “Without conceding the truth of what this witness will say, testimony about an alleged bribe isn’t relevant to the crime at hand, but speaks to the commission of another crime, one with an extremely attenuated relationship to securities fraud. Pursuant to Federal Rules of Evidence 404 and 608, this kind of testimony is, at most, character evidence, which is inadmissible for the purposes of proving that the person acted in conformity therewith. To the extent the government claims it’s impeachment evidence, it would still be improper at this juncture of the proceedings because Mr. Ohlig
has not testified and therefore there’s nothing to be impeached. Finally, if the government has evidence of the commission of another crime, they have an obligation to present such charges to a grand jury. They can’t end-run that requirement by introducing the evidence now in this trial.”

Abby is nothing short of outstanding. Perhaps it’s because of the hold she has on me, but I can’t keep my eyes off her. She’s confident and in total control, and I’m embarrassed that it reminds me of how she was in bed.

“Your Honor, this is an issue for the jury,” Pavin says when it’s his turn. “If they don’t believe the witness’s testimony that Mr. Ohlig offered him money if he recanted, then so be it. But if they do believe it, then it certainly shows a guilty state of mind by Mr. Ohlig.”

“When did you learn of this alleged bribe offer?” Judge Sullivan asks.

“I’m not exactly sure, your Honor.”

And bingo—Judge Sullivan’s expression leaves little doubt that Pavin just gave the wrong answer. If there’s one thing she simply will not tolerate, it’s the government not being straight with her.

“That tells me it wasn’t yesterday, which is the only excuse that I would have tolerated from an Assistant United States Attorney for failing to raise this issue before trial. You go back and you tell the United States Attorney that he is
never
to send an Assistant to me that doesn’t know precisely when evidence of a crime was discovered.”

“Your Honor—”

“Don’t even think about your Honoring me,” Judge Sullivan snaps. “Tell me, Mr. Pavin, who is the government planning on calling after this next witness?”

“Your—” and then Pavin catches himself before finishing the phrase, “Our next witness is our expert. Unfortunately, he’s not in the courtroom today. We had expected to lead with him tomorrow—”

“Stop right there, Mr. Pavin. You’re zero for two and, to be blunt about it, I’m really quite fed up with you today. The very idea that you would not have your next witness present so that you thought
I’d have no choice but to let you go with this one or else lose the afternoon—”

“That’s not it—” Pavin is trying to get a word in, but Judge Sullivan won’t let him.

“You listen when I’m speaking, Mr. Pavin. That’s how it works. In case you forget that, ask yourself who’s wearing the robe. Because that’s the person who
always
goes first.”

“I’m sorry, your Honor.”

“Don’t apologize, just do your job better. And, to help you out, I’m going to give you the rest of the day off to talk to your boss about what happened today in court. And then bright and early tomorrow morning, you can put on your expert.”

No matter how much you hate your adversary, it’s still hard to watch him getting his head handed to him by a judge. Not that Pavin doesn’t deserve it, but I know it could just as easily be me the next time, and it probably will be.

“Abby, I really owe you,” Ohlig says later, when we’re heading back to the office. “How about I treat you to a very nice dinner. Ever been to Masa?”

Nothing but the best, or should I say, the most expensive, for Ohlig. I’ve never been to Masa, but I understand you can’t get out of there for less than $400 a person.

“You too, Alex,” he adds, although I get the sense that his invitation to me is hardly sincere.

“Thank you,” I say, “but I should take advantage of the mini-vacation to prepare for Heller. Sansotta will be here by five.”

Andrew Heller is the government’s expert economist, and Paolo Sansotta is our counterpoint. Ohlig knows about this meeting with Sansotta, which is probably why he invited me to come along with Abby—he knew I’d have to decline.

“That leaves just you and me,” he says to Abby. “Is it a date?”

She looks to me for the answer, but I’m doing my best to provide no hint. I could, of course, keep her from going simply by saying that
she’s needed for the expert prep, but that would concede that I think she’d otherwise go.

I could also push her the other way if I told her I’d be fine without her, denying her a polite decline. That, also, would cede too much.

“Thank you,” she says, “but I need to stay here and help.”

“I guess you’re right,” Ohlig says, without a smile this time. “I’d be in serious trouble if I didn’t have you keeping Alex honest.”

A
bby and I meet with Sansotta for about an hour, but by sixthirty I tell them both that I’m ready to call it a night. Abby looks at me like I’m crazy but doesn’t say anything until after Sansotta’s left.

“So that’s it?”

“Now that I have you keeping me honest, there’s really nothing else for me to do.”

I didn’t intend for it to sound like I was taking my ball and bat and going home, but I suspect that’s exactly what it sounded like.

“I’m sorry, Alex. But you know it’s not my fault.”

“I know, Abby. I didn’t mean it that way. You did a great job today. You should be as proud of yourself as Ohlig is pleased with your work. I’ll definitely be sure to mention it to Aaron.”

“I hope you can tell that I’m not at all happy about this.”

“There’s no reason for you not to be happy. Angry clients are part of the job. I’d be concerned if he wasn’t angry. At least with you on the team, he likes one of us.”

“Then why are you leaving now?”

“I haven’t seen Charlotte in weeks, and I thought this was an opportunity for me to cut out early.”

“Okay,” Abby says, although she sounds far from okay. “I guess it’s no secret that I miss being with you outside of the courtroom.”

“Same here,” I say.

The entire day in court washes away the moment I hear Charlotte’s excited announcement that I’m home. Without any lead-in, she’s talking to me as if we’ve been in the middle of a conversation.

“Gavin said that I wasn’t allowed to play monster because that’s a boy game and the girls have to play dress-up and princess, but I like playing monster sometimes. The other girls are scared, but it’s not like
there’s a real monster, it’s just one of the boys, usually it’s Ryan, wearing a scary mask and screaming like this—
grrrrrrrrrrrrrrr
—and so it’s not scary, and if you tag the monster you get to be the monster the next time.”

“You go to an all girls’ school; where do you play with boys?” I’m embarrassed to even be asking this question, given that it highlights just how much of my daughter’s life is foreign to me.

“At sports, after school. There are boys and sometimes at the end, if we’re good, they let us play whatever we want. And that’s when the boys play monster.”

“So did you get to be the monster?”

“Daddy, I just told you, girls aren’t allowed to play monster.”

“But I thought you wanted to play.”

“I want to play, but they won’t let me. Isn’t that unfair?”

“That sounds very unfair.”

“Do you want to play monster with me, Daddy? You could be the monster, but if I tag you, then I’ll be the monster.”

Elizabeth has up until now been standing quietly as Charlotte detailed the discriminatory practices of monster. “Sweetheart,” Elizabeth says, “Daddy’s probably hungry. After he has some dinner, then maybe the two of you can play monster.”

“Then what should I do now?” Charlotte asks.

“Do you want to watch a little SpongeBob?”

Elizabeth often jokes that SpongeBob is like crack for five-year-olds. Sometimes she jokingly refers to an episode as a bump, as in,
Maybe I’ll give Charlotte a bump of the Bob to chill her out.

Charlotte is clearly pleased with Elizabeth’s offer. In fact, I’m sure she views it as much of more of a win-win than a compromise.

After the television is turned on, Elizabeth joins me in the dining room, and hands me a glass of red wine. A half-filled glass is already on the table.

“Is the trial over?” Elizabeth says with a sarcastic smile. She knows it’s not but is asking why I’m home before midnight.

“The judge let us out early.”

“So, how’s it going?” she asks, after taking a sip of her wine.

“We’re getting our butts kicked is how it’s going. But Abby had a strong day today, so at least she’s making Ohlig happy.”

I’m exploring Elizabeth’s face for some reaction to my invocation of Abby’s name. As usual my wife is difficult to read. Maybe because I want to push Elizabeth into some revelation about Abby, I begin to explain Abby’s heroics. “So, Ohlig clearly bribed this guy to change his testimony. Of course, he doesn’t seem the least bit concerned he’s been found out, and it’s now my job to make sure that, even though he’s committed a crime, it’s not put into evidence. I’m telling him there’s no way, and then Abby comes up with this half-baked relevancy argument. Ohlig loves it, and he tells me that he wants her to make it. I say fine, and wouldn’t you know it, Judge Sullivan ends up being pissed at the prosecutor over something else entirely and so she rules in our favor. That’s justice in America. The one time we should definitely lose an argument, we win because the judge wants to send a message to the U.S. Attorney, probably as some kind of payback over something that happened in another case, maybe years ago.”

“But it’s good for you, right?”

“Yes. For today, it was good, but tomorrow’s likely to be quite another story. First they’re going to put their expert on, and then, after that, Fieldston is going to testify. He’s Ohlig’s number two and he’s just going to bury us.”

“You don’t think that Ohlig’s testimony will be enough for reasonable doubt?”

Once again Elizabeth’s grasp of trial strategy is right on. I suppose being married to a litigator is the equivalent of at least two years of law school.

“It’s the only thing that might. He’s really quite good. I guess it’s true what they say: once you can fake sincerity, everything else is easy.”

After dinner, I play monster with Charlotte, alternating between being the monster and the scared villager. At different intervals Charlotte tells me that I’m playing wrong, even though it doesn’t seem to me that there are any rules besides running around screaming. After the game, it’s bedtime, and I read her the same story I did the last time I put her to bed, which was more than three months ago, I think.

Elizabeth is watching television in bed. After I’ve returned from my evening ritual, brushing my teeth, taking my contact lenses out, and putting on my pajamas, I notice that she’s wearing a nightgown. It’s not one of the lacy things that I’ve bought her over the years for Valentine’s Day, the kind that’s intended to be worn once, and even then for less than five minutes. Rather, it’s what I suspect some women wear to sleep every night, but Elizabeth prefers flannel pajamas, especially in the winter.