Losing Faith (32 page)

SAM ROSENTHAL COULD EASILY
make it to the podium without his
cane. Yet he leans on it heavily to make the five-foot trek, an unspoken communication with the jury that he is a man who has known struggle.

“Ladies and gentlemen of the jury . . . I disagree with much of what Ms. Donnelly told you,” Rosenthal says in a slow voice, almost like he’s sharing a sad story. “About the evidence indicating Mr. Littman’s guilt, of course. But about so much more, as well. Even about the purpose of our opening statements. Ms. Donnelly told you that her opening statement was a map. I don’t see it that way at all. I believe that what Ms. Donnelly and I tell you to begin this case is a promise. No, it’s even more than that. It’s a sacred vow about what each side will demonstrate during this trial. And like all vows, be wary of those who make them cavalierly and then do not follow through.”

Aaron wishes Rosenthal chose a different phrase. Having never been married, Rosenthal might not have made the connection to Aaron’s own broken marriage vows.

“Ms. Donnelly promised you a great many things in her opening statement,” Rosenthal continues, his voice growing stronger. “She promised you proof of an affair between Mr. Littman and Judge Nichols. She promised you a motive: blackmail. She promised you that at the end of this case, you would not have a single reasonable doubt that Aaron Littman committed this brutal murder.”

Rosenthal stops and tries to make eye contact with each of the twelve in the jury box. It appears to Aaron that most of them have accepted his lawyer’s gaze.

“I make you one promise, and one promise only,” Rosenthal says with a closing crescendo. “And that is this: Ms. Donnelly will
break
her promises. The government, with all its vast powers and resources at hand, will
not
prove Mr. Littman’s guilt beyond a reasonable doubt. Of that you can be certain.”

With that, Rosenthal limps back to counsel table and sits down.
Aaron had wanted Rosenthal’s opening to go on longer, hitting back at the evidence and setting up Garkov, but Rosenthal overruled him.

Aaron is questioning Rosenthal’s judgment right up until the moment he spies Donnelly’s scowl. It is the surest measure of the effectiveness of Rosenthal’s presentation. Perhaps the old man was right to quit when he did.

49

T
he afternoon begins with Victoria Donnelly calling her first witness to the stand. Stuart Christensen is wearing a black suit, undoubtedly to remind the jury that he’s still in mourning.

In something of a monotone, Stuart answers Donnelly’s open-ended questions to explain that he suspected his wife was having an affair, and one night he followed her to the Ritz-Carlton, and then waited three hours for her to leave.

“Did you see who she was meeting?” Donnelly asks.

“Yes. She came out of the hotel holding Aaron Littman’s hand.” Even without Donnelly’s prompting, Stuart knows to make the in-court identification. “The man I saw with my wife is that man, there,” Stuart says, pointing at Aaron.

As revenge fantasies go, this must rank pretty close to the top.
You may have fucked my wife, but now I’m going to send your sorry ass to jail for the rest of your life.

“Let the record reflect,” Donnelly says quickly, “that the witness has identified the defendant, Aaron Littman.”

Aaron wants to scream
Liar!
Instead, he leans over and whispers to Rosenthal: “He never saw us. Faith and I never left together.”

Victoria Donnelly has already asked her next question, and rather than answer Aaron, Rosenthal instead gets to his feet and shouts, “Objection! Hearsay.”

Judge Siskind seems surprised, as it’s the first time Rosenthal’s objected. “Counsel, please approach,” she says.

Although Aaron is technically not included in the request that
counsel approach, he joins Rosenthal at the bench anyway. When everyone is assembled, Judge Siskind places her hand over the microphone in front of her and leans forward to address the lawyers below her.

“It’s your objection, Mr. Rosenthal, so it’s your turn.”

“Your Honor, Ms. Donnelly’s question suggests that she’s trying to elicit from this witness the testimony about Judge Nichols’s consideration for a nomination to the Supreme Court,” Rosenthal says. “My objection is that such testimony should be precluded on hearsay grounds because Judge Nichols was his sole source for that information. As a result, he’s really just testifying to what
she
told him, and that’s classic hearsay.”

Thank God Rosenthal was listening to Donnelly and not his complaint that Stuart Christensen was lying, Aaron thinks. This is a critical issue for the defense. If Donnelly can get into evidence that Faith knew her Supreme Court nomination was linked to Garkov’s conviction, the prosecution has gone a long way to show motive.

Judge Siskind’s eyebrows rise, suggesting she thinks Rosenthal’s made a good point. She turns to Donnelly. “Any rebuttal, Counselor?”

“This witness will establish Judge Nichols’s mental state,” Donnelly counters. “Therefore his testimony meets an exception to the hearsay rule. As the victim’s husband, he was well aware that Judge Nichols
believed
she was under consideration for the Supreme Court. That belief caused Judge Nichols to reject the defendant’s attempt at blackmail, and that’s what we’re putting before the jury.”

Like a spectator at Wimbledon, Judge Siskind turns back to Rosenthal, as it’s now his turn to volley. “What do you say to that, Mr. Rosenthal? Can’t a husband testify to his wife’s mental state?”

“Not if that conclusion is based solely on hearsay,” Rosenthal replies. “Mr. Christensen is free to testify about what he observed, but a conclusion that is based on nothing more than a statement made by his wife is no different than testifying to the truth of the statement itself. Either way, it’s hearsay.”

When Donnelly tries to offer a rebuttal, Judge Siskind stops her in her tracks. “No, I think Mr. Rosenthal’s got you on this one,” she says. “The objection is sustained. Ms. Donnelly, move on to something else with this witness. If you want to get into evidence that Judge Nichols was being considered for the Supreme Court, I suggest you get the White House on the phone.”

As they walk back to counsel table, Rosenthal whispers to Aaron, “That was huge for us.”

NOW UNABLE TO ESTABLISH
motive through Stuart Christensen, Donnelly decides to pull at the jury’s collective heartstrings. Stuart recounts how much he misses his wife and how grief-stricken he was upon hearing the news of her murder. Aaron can only imagine that somewhere up there Faith is rolling her eyes.

When Judge Siskind says that Rosenthal may begin his cross-examination, he rises slowly and says, “No questions for this witness, Your Honor.”

“In that case,” Judge Siskind says, “the witness is excused, and we’re adjourned for a twenty-minute recess.”

Aaron holds his tongue until the last of the jurors leaves the courtroom, and then a few moments longer to allow Judge Siskind to depart the bench. The moment the coast is clear, however, he turns on Rosenthal.

“What the hell, Sam?! Why didn’t you question him?!”

Rosenthal looks away from the papers he’s shuffling. “It was too risky,” he says. “Did you look at the jury while he was testifying? They wanted to hug the little shit.”

“But he’s lying about seeing Faith and me together at the hotel! That wasn’t true at all, and you didn’t call him out on it.”

Rosenthal grasps Aaron by the elbow and says, “I know the lawyer in you knows this, Aaron, but without proof, what’s calling him a liar going to do for us? And it’s not going to help us win any sympathy points with the jury, that’s for damn sure.”

Aaron feels himself deflate. He knew the Ritz-Carlton records would establish he’d been at the hotel, but he had held out hope that the prosecution couldn’t prove he’d been there with Faith. And now they have.

“Keep your eye on the ball, Aaron. Garkov’s the real play here. If we can get his assertion of the Fifth before the jury, we’re home free.”

Aaron wants to ask,
What if we can’t?
but he already knows the answer. Having passed on the opportunity to go after Stuart Christensen, without Garkov the defense has nothing.

50

V
ictoria Donnelly’s next witness is a desk clerk at the Ritz-Carlton. Donnelly’s strategy is now clear. She’s going to go all-in on the one thing she can prove without any shadow of a doubt—the affair—in the hope that when she’s done, the jury will be poisoned against Aaron to such an extent that they won’t much care that the evidence that he committed murder is wholly circumstantial.

The clerk’s name is Dana Luria. She’s in her early twenties, at most, and has the attractive but unthreatening quality that a luxury hotel would look for in someone to meet their guests. She speaks so softly that Judge Siskind has to ask her more than once to speak up so the jury, which is sitting less than fifteen feet from her, can hear.

Donnelly’s direct is straightforward. She establishes that hotel procedure is to copy identification for every guest checking in and then submits into evidence the hotel’s records indicating each and every time that Aaron was there.

“Ms. Luria, let me call your attention to the line that indicates the form of payment,” Donnelly says, a copy of the Ritz-Carlton bill for September 6—the day of the Vanderlyn dinner, the first day Aaron slept with Faith—shown on all six television monitors. “Please tell the jury the amount of the charge for the room on that night.”

“Six hundred and sixty-five dollars, which includes taxes.”

“And how did Mr. Littman make that payment?”

“In cash.”

One by one, Donnelly systematically goes through the rest of the Ritz-Carlton bills. As each invoice flashes on the monitors, the clerk
takes a few moments to carefully study the paper copy in her hand—as if she hasn’t already reviewed it numerous times in preparation—and then announces the nightly charge and that Aaron paid in cash.

Donnelly walks back to counsel table and whispers something in the ear of her second chair, Stanton. A moment later, Faith’s picture comes on the computer screens, the same photo that the newspapers ran for her obituary.

Donnelly asks, “Did you ever see this woman at your hotel?”

“Yes. Many times.”

“Tell the jury about that.”

“She was something of a regular. Once a week or so, she would come in and head straight to the elevators. She never checked in, and I never saw her with any luggage. She just always went straight to the elevators.”

“Thank you, Ms. Luria. No further questions, Your Honor.”

Rosenthal’s cross is brief, but he drives home the only point there is to make.

“You must see thousands of people in your job?” he asks.

“Yes.”

“And you don’t recall ever seeing Mr. Littman, do you?”

The answer must be no. Otherwise, Donnelly surely would have had Luria make the identification during direct questioning.

“Not that I remember,” she says.

“And that must necessarily mean that even though you
claim
that you saw Judge Nichols at the hotel on various occasions, you have no reason to believe that Mr. Littman was meeting with her at any of those times. Is that correct?”

“I know that he checked into the hotel because of the records.”

“Ms. Luria, is that something that Ms. Donnelly told you to say?”

“Objection!” Donnelly calls out.

“Sustained.” Judge Siskind gives Rosenthal a sharp look. “Counselor, please. You know better than that.”

Indeed, Rosenthal does. Still, Aaron is thankful that the effort was made.

“Let me phrase it a different way,” Rosenthal says. “Ms. Luria, I grant you that you know from the hotel records that Mr. Littman was a guest at the Ritz-Carlton on certain dates. And your testimony is that you recall seeing Judge Nichols in the lobby from time to time. Is that correct?”

“Yes.”

“And so, all that I’m asking is if you can say, under oath, that you know, for a fact, that Mr. Littman and Judge Nichols were ever in the hotel on the same day.”

Luria hesitates, but again Rosenthal knows that if she could have put them together, Donnelly would have made this the center point of her direct examination.

“No,” Luria says softly.

“And isn’t it a bit odd, Ms. Luria, that you recall seeing Judge Nichols in your hotel—a woman who
never
actually checked in—but you
don’t
remember seeing Mr. Littman, who stood at the front desk for probably five minutes at a time, week after week, and handed over his driver’s license each time?”

Luria looks confused. “I’m not lying,” she says defensively. “I just don’t remember seeing him.”

“I don’t think you’re lying about
that
,” Rosenthal says. “Who could remember seeing someone months ago? It’s the part about you remembering that you saw Judge Nichols in your hotel that I’m suggesting is highly doubtful.”

“Objection!” Donnelly shouts.

“I agree,” Rosenthal says quickly, “it is highly objectionable, which is why I have no further questions for this witness.”

When Rosenthal sits down, Aaron whispers in his ear, “Nicely done, Sam.”

51

T
he last witness of this busy trial day is Sara Meyers. Upon hearing her name, Rosenthal leans over to Aaron and asks, “Who the hell is that?”

“One of Faith’s law clerks,” Aaron whispers back. “I never spoke to her.”

Aaron assumes Meyers will provide further evidence to support the affair. After all, no one knows more about the comings and goings of a judge than her law clerks. But when Donnelly asks if Sara was assigned the Garkov case, Aaron realizes that’s not the reason she’s testifying. She’s been called as a witness to provide evidence of motive.

“Ms. Meyers, what was your perception of Judge Nichols’s reaction to being assigned to the Garkov case?” Donnelly asks.

“I was super excited. It was a very high-profile case.”