A Conflict of Interest Page 11

  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.

  Pavin glances over at counsel table to Agent McNiven. It looks to me like McNiven nods his assent.

  “Your Honor, we have a missing witness, I’m afraid. We need some time to track him down.”

  “Who is it?” she asks. When Pavin looks reluctant to answer, Judge Sullivan adds, “Mr. Pavin, the parties have exchanged witness lists, am I correct?”

  “You are, your Honor,” Pavin confirms.

  We had exchanged witness lists with the government as part of initial discovery, but both our lists were virtually worthless. Ours had 115 names and theirs more than that, listing every employee of OPM and every purchaser of Salminol, as well as every member of Salminol’s board of directors. Both sides knew that almost none of those people would actually be called as witnesses. They were included as a combination prophylactic measure, just in case they were needed, and to hide the real witnesses in plain sight.

  “In that case,” Judge Sullivan says, “the defense already knows everyone you’re likely to call, so I don’t see the problem in sharing with us which witness you’re having trouble locating. In fact, I have a problem with them thinking someone is going to testify for the government who, in fact, is not going to testify.”

  “Your Honor,” Pavin begins, this time sounding even more sheepish, “one of the government’s key witnesses is a man named Kevin Popowski, although he went by the alias Kevin Gates when he worked as a broker at the defendant’s firm. The government has interviewed Mr. Popowski, several times in fact. We have a sworn statement from him that Mr. Ohlig knew that Salminol—the stock in question in this case—was worthless, and to avoid a catastrophic loss for his firm, Mr. Ohlig ordered that it be pumped up and dumped on unsuspecting investors, mainly the elderly. Unfortunately, when we attempted to make contact with Mr. Popowski earlier in the week, we were informed that he’d moved out of his apartment and did not leave a forwarding address. We suspect Mr. Ohlig has hidden him.”

  Even before I could say anything, Judge Sullivan does it for me. “Does the government have any proof of that?”

  “Not yet, your Honor.”

  “I’ll take that as a no, then. And I suggest you not raise those kinds of allegations when you don’t have any proof.” She then looks in my direction. “Mr. Miller, even though I won’t permit unsubstantiated allegations in my courtroom, please be advised that if your client is hiding a witness, I will not hesitate to hold him—and you, for that matter—in contempt. The crime of obstruction of justice is one that is ongoing, and so if you know where Mr. Popowski is, you have a duty as an officer of this court to so inform the prosecution, or you’ll be aiding and abetting the obstruction. That’s a long way of saying that the attorney-client privilege does not apply here, so act at your own peril.”

  “I have absolutely no idea where he is,” I tell Judge Sullivan, thankful that Ohlig was smart enough not to involve me in this scheme.

  “Okay, then,” she says, and then swings her gaze back to Pavin. “While I sympathize with your predicament, Mr. Pavin, the speedy trial rules are in effect, and if Mr. Ohlig wants a fast trial, a fast trial he will get. Lucky for you that you have the FBI at your disposal to track down your missing witness. I think two weeks should be enough time because if you can’t do it by then, you’re probably not going to be able to find him no matter how long I give you.”

  “Your Honor, we won’t have to find him if we’re simply permitted to introduce the tape.”

  “I bet Mr. Miller’s going to have something to say about that, aren’t you?”

  I take this as an invitation to state my piece. “We would object to that. Without Mr. Ga—Popowski to authenticate it, the tape recording is hearsay.”

  “Not necessarily, your Honor,” Pavin says. “We can put Special Agent McNiven on the stand to testify the tape was on Mr. Popowski’s phone, and we have Mr. Popowski’s sworn statement that it’s his voice on the tape.”

  “Your Honor …” I say, but she waves her hand.

  “No need, Mr. Miller. Mr. Pavin, it’s not going to fly. Anyone could have used the phone, and the affidavit is hearsay too, so that can’t be used to corroborate another piece of hearsay. I wish you well in your search for the elusive Mr. Popowski. Now, Mr. Miller, do you want to be heard on the issue of the trial date?”

  The fact that the government temporarily lost Gates-Popowski gives me a reason to support Ohlig’s desire for an early trial. Given time, the FBI will eventually track him down.

  “The twenty-ninth of November is fine for us,” I tell her.

  “Very good,” she says, now looking down at some papers, most likely for her next case. She turns her gaze toward us again. “Gentlemen, and you too Ms. Sloane, I will see you all here on Tuesday, November 29th. Have a happy Thanksgiving, everyone.”

  We are all silent as we leave the courtroom and during the elevator ride downstairs. It’s an unspoken rule of court—like not talking to your pitcher if he carries a no-hitter past the sixth inning—that you don’t comment on a court proceeding until you’re safely out of the building. It’s more than just superstition. Anyone who overhears what you say could be a member of the press or the judge’s law clerk or someone from the U.S. Attorneys’ Office.

  “What?” Ohlig says to me when we’ve made it to the bottom step outside the courthouse. Even though it seems like he’s trying to keep a straight face, he can’t, and he breaks out a wide grin. “What I heard is that Popowski came into some unexpected money, and headed south, somewhere remote.”

  It doesn’t take a genius or having the FBI at your disposal to narrow down the possibilities regarding Popowski’s sudden disappearance. He’s either dead or in hiding.

  On the bright side, I don’t think he’s dead. Pavin expressly stated they had evidence he was in hiding and was asking for time to find him. But if Popowski’s dropped out of sight, he’s either afraid to be found or fulfilling his end of a bargain. I reject fear as a motive out of hand. In my limited experience with these matters, killers don’t threaten to kill witnesses—they just kill them. Besides which, whatever else he might be, Ohlig’s not a killer, he’s a money guy. So the far greater likelihood is that Ohlig paid for Popowski to take a long vacation to someplace warm, and without an extradition treaty.

  “I don’t want to know, Michael,” I say, shaking my head. “And just so you know,
it’s not only because of what Judge Sullivan said about my becoming a co-conspirator. I’m still holding onto the idea that I’m representing an innocent man.”

  19

  Abby and I go to dinner that night at Michael’s, a well-known power scene for the media set. Like many midtown restaurants, getting a table for dinner is much easier than securing a spot for lunch.

  “I’m going to have a glass of wine,” I say, “so feel free to imbibe as well.”

  “Thanks, Dad,” she says with deserved sarcasm.

  “Should I order a bottle?”

  “You should if you’re going to drink most of it. Some of us are going to have to go back to work.”

  We each order by the glass. White for Abby, who orders the sea bass, a cabernet for me to go with the lamb chops.

  “Are you still going to go to Florida for Thanksgiving?” she asks me after our entrees have arrived.

  “I don’t think so. As it is, I don’t see how we’re going to be able to get everything ready by the 29th. There’s no way that’s going to happen if we really have to be ready to go the Wednesday before that.”

  “What are you going to do then?”

  “I don’t know. We’ll probably end up going to Elizabeth’s family in Fairfield. It’s not a great situation because I don’t want my mother to be alone.”

  “You should invite her up.”

  “Yeah, I will, but I don’t know if she’ll come. She’s going to complain about the travel and the cost—even though I’ll pay, she’ll still complain about it. It was one of the funny things about my parents. My dad, you could be sticking pins in his eyes and he wouldn’t say a word. But my mom, if the temperature in a restaurant was two degrees warmer than she liked it, she’d tell the waiter she was sweltering. Don’t get me wrong, I love my mother, but she’s the kind of woman who can just suck the air out of a room.”

  “Well, you know what they say, Alex?”

  “No, what do they say, Abby?”

  “That boys marry their mothers.”

  I laugh. “Not me. If anything, I married my father. I suppose it’s just further proof of what my mother says—I’m exactly like her, right down to picking the same type of spouse.”

  “I’ve seen your wife, and I’m pretty sure she doesn’t look anything like your father. Unless he was a knockout too.”

  “That’s funny because Elizabeth just asked me if you two had ever met, and I told her that I didn’t think you had.”

  “I don’t think we were ever formally introduced, but I’ve checked her out at different events. You don’t go unnoticed by the female associates, Alex, so I was curious about the type of woman you chose to marry.”

  “Really?”

  “Yes, really. But enough flattery for your pretty little head; tell me more about how you married your father. This seems like the kind of stuff that could keep a shrink employed for some time.”

  I feel myself becoming choked up at the thought of my father. I wonder if he ever felt tempted by someone else the way I feel about Abby. For a moment I wish that he were alive so I could ask him, but even if he were, I know I wouldn’t ever raise the issue, nor could I expect him to truly give me an honest answer, any more than I would tell Charlotte about my infatuation with Abby twenty years from now.

  “It’s not that she’s like my father, per se,” I begin to explain, “it’s just that she … I’m not quite sure how to say this without it sounding bad, and I don’t mean it to sound bad, but she’s … distant like he was. Hard to read. You know, when I saw my mother when we went down to Florida, she asked me if I thought my father was happy. I told her I thought he was, but she said she had absolutely no idea, and then was going on about how sad that was because they were married forever and she didn’t even know if he was happy. And the whole time I’m thinking, I would say the exact same thing about Elizabeth.”

  “Why do you think I’m still single?” she laughs, a lovely sound.

  “That’s actually a question I ask myself a lot.” She gives me a serious look, and I worry for a moment that I’m out of line, but then she laughs again.

  “I’m sure that’s what you spend your days thinking about.”

  “Seriously, how is that you’re not spoken for?”

  “Maybe it’s because I prefer to do my own speaking.” Now I give her a look, prodding her to answer. “Okay, if you want a reason, I’ll give you one, but I’m afraid it’s not very interesting. In fact, it’s probably the oldest tale known to womankind. Focus on work to the exclusion of all else, and then one day you’re thirty-two, about to make partner, knock on wood”—and then she knocks on the table—“but alone.”

  “Well, I’m sure you’re not destined to be single forever, and take it from an old married guy, when you do take the plunge, make sure it’s with someone who understands what the life of a partner at Cromwell Altman is like.”

  “Why, Alex, I’m not sure which of the unspoken parts of that sentence interest me most.”

  I laugh. “Well, I think it’s dangerous for me to go into any of them too deeply. But I will tell you that I had a recent discussion with Aaron about you, and things are looking very good.”

  “Really?”

  “Really. So, even if Michael Ohlig goes down in flames, you won’t.”

  “Well, let’s hope I make it and he’s acquitted. And, speaking of Michael, I wanted to ask you, do you still really believe he’s innocent?”

  “What do you mean?”

  “Today you told him that you wanted to continue to believe we were representing an innocent man. But after the whole Popowski thing, you can’t really believe that, can you?”

  “I take it from the question that you don’t.”

  “Don’t tell me you think he’s not behind Popowski’s disappearance.”

  “No, but I don’t think he killed him, if that’s any consolation.”

  “Sending a witness into hiding isn’t exactly the conduct of an innocent man.”

  “I don’t know. I can envision a scenario where Ohlig feels like he’s being persecuted, and he’s trying to improve his hand. He figures he’s innocent, so the ends justify the means. If Popowski was a rogue broker, he’s going to lie under oath that Ohlig put him up to it. Who’s obstructing justice more in that scenario—the government by giving Popowski immunity in return for his lying under oath, or Ohlig by paying for his vacation?”

  Abby stares at me for a moment before saying “Wow. You can just about convince yourself of anything, can’t you? Batman would be very proud.”

  20

  Elizabeth’s expression is one that I’ve become all too accustomed to seeing lately. She’s disappointed in me. I shouldn’t be surprised this time—I’ve just told her that, with the trial starting right after Thanksgiving, we’re not going to be able to spend the holiday with my mother in Florida as we had previously planned. So far she’s kept her thoughts unspoken, apparently deciding that neither of us needs to articulate what we both already know.

  I’m not so disciplined, however. “I know you wanted to go, and I wish we could, but there’s just no way I can take four days off—or even one day off—right before trial. It’s not fair to my client.”

  I shouldn’t have said the last part, which revives the struggle we’ve been having for years—Elizabeth telling me that my devotion to work shortchanges her and Charlotte, and my countering that it’s not as if she doesn’t spend the money I earn. It’s a battle that I know I’m on the wrong end of; Elizabeth would be very content with a simpler life than the one we lead.

  “Alex,” she says with a heavy sigh, “it’s not so much that I wanted to go. I’m more than happy to spend Thanksgiving with my family in Connecticut. But think of it from your mother’s point of view. It’s the first Thanksgiving without your father.”

  “I know. I’m going to invite her up here. She can come with us to your parents.”

  “It’s not the same thing. She’s not going to have any fun up here. Thanksgiving wil
l be nice, but then on Friday you’re going to run to the office and she’s going to be stuck with me for the rest of the weekend. As it is, I’m probably going to want to go back up to Fairfield and spend some more time with my family, so she’ll end up in Connecticut all weekend and not see you at all.”

  “I really don’t have any choice,” I say.

  “Oh, please. Don’t give me that. You always have a choice, Alex.”

  I call my mother the next day from the office. I don’t know what my parents thought my work life was like, but neither of them ever called me at the office and whenever I called them from work, it seemed to alarm them more than anything else. True to form, my mother’s immediate reaction is to ask if anything is wrong. I tell her we’re all doing fine, and then proceed to tell her what’s wrong.

  “The reason I’m calling is because the judge in one of my cases just threw us a curve ball. I have a trial that’s going to start right after Thanksgiving. The fact that it’s been moved up like this means I can’t take any real time off over Thanksgiving because I need to stay here to prepare. I’m going to take Thanksgiving day off, and we’re going to go to Elizabeth’s parents’ house in Connecticut. I’d like you to come up here so we can still all be together. I’ll buy a ticket for you, and you can fly up on Wednesday and then go back whenever you want.”

  My failure to tell my mother that the client in question is Michael Ohlig is intentional. Seeing that I’ve already put in an appearance in open court, the attorney-client privilege no longer bars me from telling her, or anyone else for that matter, that I represent Ohlig in a criminal case. But Ohlig specifically asked me not to say anything to her, and so I still have an obligation to my client to keep my mother in the dark.

  “Thank you for the very generous offer,” my mother replies, “but I haven’t been feeling that well lately. I don’t think I’m up to traveling on Thanksgiving weekend and the cold weather I could do without.”