A Conflict of Interest Read online

  “I’ll deny it. All of it.”

  “But they may have evidence to support it. Judge Sullivan will almost definitely let them put the broker you bribed on the stand. She may even let them put in the Popowski tape. And, last but not least, don’t forget that if you deny it, there’s the little matter that you’ll be committing perjury!”

  “Says you,” he responds like a six year old. “He’ll have to prove that too.”

  “Putting aside the perjury thing, their whole case was Fieldston. Now they’ve got nothing. Less than nothing actually, because their credibility is shot. With Sansotta’s testimony, we’ll have enough for reasonable doubt.”

  “No way,” Ohlig says again. “This is not up for discussion. I’m testifying.”

  “Hear me out for a moment.”

  “Alex, don’t think I don’t know what’s going on. Hell, even Abby sees it.”

  Abby casts her eyes downward. Her reflex aligns her with Ohlig as much as if she had joined hands with him.

  I turn away from her and toward my client. “Michael, after court today, Pavin pulled me aside and said that if I knew what he knew we’d be worried, or something to that effect.”

  “What does that even mean?”

  “Your guess is as good as mine. It could be an out-and-out bluff. But it also could mean he has something we don’t know about, just like we had on Fieldston, and he’s just dying to use it. Maybe something on the tapes.”

  “Why would Pavin tell us if he had something? And if he did have something on the tapes, he would have already used it during his case.”

  “I don’t know. Maybe you’re right and he is bluffing. I know you’re a gambler, but this is a lot to put on one bet, Michael.”

  “From day one, I told you I was going to testify, and you agreed that was the only way to get an acquittal,” Ohlig says, an obvious sadness in his voice, a further sign he feels betrayed. “More than that, you agreed because you believed in me, in my innocence. And now …” Without finishing the thought, he turns to Abby and asks, “What do you think? If you were me, would you take the stand?”

  “I don’t know,” she says quietly. “I really don’t know.”

  She looks back at me, her face says that she, too, feels betrayed by me.

  Ohlig locks his eyes onto mine. It’s a struggle, but I manage to hold his stare.

  “Alex, this is my life we’re talking about. I don’t know what you think happened between your mother and me, but you have to let it go. Not just for my sake, but for yours too. When this trial is over, I’m not the only one who’s going to have to live with the consequences. So, you tell me: if it was you, if your freedom was at risk, would you go to the jury without letting them hear you swear you’re innocent?”

  “Yes,” I tell him as if there is no doubt in my mind.

  Ohlig’s normally erect posture sags, signaling his concession. “You’d better goddamn be right.”

  41

  The next morning, as expected, Pavin rests the government’s case. As a pro forma matter, I move for a directed verdict—a judgment of acquittal on the grounds that the government’s case is legally insufficient to support a guilty verdict—which basically means that no reasonable juror could vote to convict based on the evidence presented. Needless to say, Judge Sullivan denies the motion without a moment’s hesitation, and then she asks me to call the defense’s first witness.

  I call our expert, Paolo Sansotta.

  Because we were second in the expert sweepstakes—the prosecution had Heller locked up before Ohlig even knew about the investigation—our expert witness is the second best. He’s got a Nobel too, of course, and has won all the awards Heller has, so his weakness has nothing to do with his expertise or intellectual firepower.

  The problem with Sansotta is purely superficial, but that’s really what matters most in a trial. He’s younger than Heller by about thirty years, and although in some quarters that might make him seem more impressive, usually jurors like their experts with gray hair. The bigger problem is that Sansotta is from the Wharton School by way of Italy, and he speaks with a trace of an Italian accent, English being one of six languages he’s mastered. As impressive as that is, an American jury is likely to think that anyone who speaks with an accent is less smart than someone who speaks without one.

  Sansotta rebuts each point Heller made, telling the jury that an expert cannot determine what was in Ohlig’s mind, that it’s not uncommon at all for one firm to push a thinly traded stock, thereby causing the price to rise, that part of the attraction for investors in low-priced stock is the possibility of quick and large gains, and that also means that there is a possibility of quick and large losses.

  Pavin’s cross lasts little more than an hour and, as was the case when I questioned Heller, it does little damage. Unless all twelve people in the jury box have their own Nobel Prizes in economics, I don’t see how they can conclude guilt beyond a reasonable doubt based solely on the testimony of the experts.

  “Next witness?” Judge Sullivan says, without any indication that she’s expecting the response she’s about to receive.

  “Your Honor, the defense rests,” I say, as if I’m making a triumphant pronouncement.

  Closing arguments follow, rehashing the points made originally during openings. Shortly before six, Judge Sullivan gives the case to the jury to begin their deliberations.

  Only the lawyers have reason to celebrate the beginning of jury deliberations. For us, the case has ended, but for the client it has really just begun. Rather than rub that point in with Ohlig, I tell him that Abby and I still have some work to do to be prepared in case the jury has some questions, so he should go back to the hotel and get some rest.

  As soon as Ohlig leaves, Abby asks, “What work could we possibly do now? We can’t guess what questions the jury is going to ask.”

  “I know. I thought we could go out and get a drink, just the two of us. I know you’re angry with me, and I figure if Michael’s convicted, that’s going to get worse, so this may be my last opportunity.”

  “Opportunity for what?” she says with a lascivious grin.

  “To win back your affections.”

  Abby selects Cesca, which I know is her favorite restaurant. It’s on the Upper West Side, so it’s a good choice for me because I’m much less likely to run into someone Elizabeth or I know. It’s also close to Abby’s apartment.

  The restaurant is busy and loud. I can’t help but scan the tables as the hostess leads us to ours, confirming that I don’t recognize any of the other diners.

  “You seem nervous, Alex,” Abby says when we sit down. “Relax, okay? We’re two colleagues having dinner together. No one is going to call the police.”

  It unnerves me sometimes that Abby seems to know exactly what I’m thinking, but then I realize it’s possible that I’m wearing my feelings on my sleeve to such an extent that anyone could be so prescient.

  When the waitress asks if we would like to order a bottle of wine, Abby nods in my direction and says, “I’m game if you are.”

  I order an expensive bottle of Amarone, telling Abby that Ohlig would definitely approve of the selection, and then joking that he might have a different opinion on my decision to charge this meal back to him. She laughs, but in so doing so I detect a hint of nervousness on her part, something I might have noticed earlier had I not been so uncomfortable myself.

  “Everything okay with you?” I ask.

  “Yeah,” she says half-heartedly. “How do you think it’s going to turn out?”

  “You’ve been watching the same trial I have.”

  “Sometimes I’ve wondered.”

  “What’s that supposed to mean?”

  “Maybe I should have asked you how you want the trial to turn out?”

  “No reason to be subtle, Abby. Just come right out and ask me if I’ve thrown the case because I want Ohlig to go to jail.”

  “Okay. Have you?”

  “Is this the next stage o
f our relationship? I tell you that I’ve committed an act that would get me disbarred?”

  “Is that your way of saying it’s true and you don’t trust me?”

  “No,” I say and force a smile.

  She smiles back. “No that it’s not true, or no that you really do trust me.”

  “Both. Of course I trust you, and it’s not true. I know that you would have made different calls than me. You would have put him on the stand, right?”

  She nods. “Call me crazy, but when you were going on and on about how an acquittal in a state-of-mind case was virtually impossible without the defendant’s testimony, I believed you.”

  “Anything else?”

  “I was surprised that you didn’t go after the brokers harder. And you knew as well as I did to argue relevance with regard to the bribery testimony.”

  “And I’ll bet you ninety-nine times out of a hundred, Judge Sullivan lets him testify to the bribery attempt. We got lucky because Pavin pissed her off.”

  “Maybe,” Abby says, not sounding too convinced. “But it was certainly worth the argument.”

  “Agreed, which is why we made it.”

  “I made it, Alex. I made it because Ohlig thought you wouldn’t. He’s talked to me about it, you know. He thinks you’re setting him up. He asked me to tell him if I thought you were doing anything that was not in his best interest.”

  “And what did you tell him?”

  She gives me another disappointed glare. One that I expect to be followed with the question What do you think I told him? Instead she answers me directly.

  “I told him that you would never sabotage a client, that you were committed to his innocence and that I had absolutely no doubt every decision you made was solely because you thought it was the best way to achieve an acquittal.”

  “Thanks,” I say.

  “Don’t thank me, Alex. Tell me it’s true.”

  As always, our dinner conversation is easy, equal parts flirtatious banter and deep insights about ourselves that we share as if they’re precious gifts. When the waitress asks if we’ve saved any room for dessert, Abby asks that she give us a minute.

  “I’d like dessert, but not here,” she says, looking at me so intently I feel as if I can’t move.

  “Where then?”

  “Mmmmmmmm,” she purrs. “Here’s a hint. It’s close by, and I promise it will be delicious.”

  She reaches across the table and takes my hand. Even though I’d already ascertained that I didn’t recognize any of the other diners, I scan the room again out of reflex. Abby holds my hand tighter and guides it off the table and into my lap, so that our handholding is out of public view. She takes the opportunity to glide her hand over my pants.

  “At least I know you’re thinking about it,” she says, a reference to my erection.

  “If it’s the place I’m thinking of, I’ve been there before and loved it.”

  “So, shall we?”

  “I wish I could,” I say, “but not tonight.”

  “Okay,” she says softly, letting go of my hand.

  “Don’t be upset,” I say, more out of reflex than anything else because Abby doesn’t look upset.

  “I’m not,” she says. “I know you want to, Alex. If you didn’t, that would upset me. And I know you’re conflicted, and if you weren’t, well then you wouldn’t be you.”

  I smile and nod. As usual, she’s read me exactly right.

  “Anyway, when I’m in bed alone tonight, in my mind at least we’ll be together. It just won’t be as good as when you’re actually there.”

  “I’m going to have those same thoughts tonight,” I say.

  “I know you will,” she says.

  42

  The next morning, after Judge Sullivan takes the bench, she calls in the jury solely so she can send them back out to deliberate. When the last of them exits, Judge Sullivan gives us all permission to leave the courtroom, telling us that she’ll send word if they reach a verdict or have any questions.

  “I’m going to get some coffee,” Ohlig says to me. “Is it okay if I do that?”

  “Sure,” I tell him. “Just don’t leave the building.”

  “If I haven’t run yet, I’m not going to, Alex.”

  Since the trial ended, Ohlig hasn’t once asked me to handicap the outcome. At first I thought that was because he’s still playing his role as Mr. Cool, but I’ve come to believe it’s more that he no longer trusts me to give him an honest answer.

  At six-thirty, Judge Sullivan takes the bench.

  “It looks like we’re not going to have a verdict today,” she says. “I’m inclined to let the jurors go for the weekend, unless either side wants to be heard on the issue.” Pavin and I tell her that we do not. “Okay, then, let’s get the jury back here and I’ll dismiss them.”

  Judge Sullivan’s clerk, a woman likely no more than a year out of law school, who usually sits below the bench, walks over and whispers in the judge’s ear. It must be something amusing because Judge Sullivan is all smiles.

  “I spoke too soon, apparently,” the judge then says. “It seems that the jury has just reached a verdict on all counts.”

  Although the timing is coincidental, it’s not that surprising. Jurors often reach decisions at the end of the day, when they realize that if they don’t they have to come back for another day. That impetus is twice as great on Friday afternoons. I’ve never studied it, but I bet that most verdicts are reached at that time.

  If I’m agnostic about the ability to predict a jury’s verdict during voir dire, I’m a hardcore atheist on the subject of whether there are any tells regarding the jury’s conduct during deliberations. I don’t subscribe to any of the theories you hear on television, even though I have colleagues who swear that they’ve experienced them all first-hand. I don’t believe you can read anything into the evidence the jury wants to see while deliberating; and when they ask to have a portion of testimony re-read it’s impossible to know if that’s because they’re going to base their decision on that testimony, or they see it as an indication that the witness was totally unbelievable.

  I’ve also heard a million theories about predicting the verdict based on the time the jury spends deliberating. Some people will tell you a quick verdict means an acquittal because juries are more sober about convicting and like to make it seem as if the decision was hard to reach. I’ve heard just as many others claim that a quick decision usually results in a guilty verdict because the longer the jury is out, the more it shows they have some reasonable doubt, or that they aren’t unified.

  As far as I’m concerned, it’s all wishful thinking. I’ve seen juries deliberate for an hour and come back with a guilty verdict, and I’ve seen them deliberate for two weeks and return the same verdict. Same thing with acquittals. There’s no rhyme or reason, and trying to make believe you can discern one is no different than whistling by a graveyard. It may make you feel better, but that’s all it does.

  Even though I don’t believe it foreshadows anything, I can’t help but look into each juror’s eyes as they file into the courtroom. The old saw is that jurors who look away from the defendant have voted to convict and those who make eye contact are acquitting. In this case, some of the jurors look right at Ohlig, others look at the floor, still others look at Pavin, and one walks in with his eyes fixed on Judge Sullivan.

  When all the jurors are seated in the jury box, Judge Sullivan says her line: “Has the jury reached a verdict?”

  The Air Force Colonel, the one that frightened our jury consultant most during voir dire, rises. He has been chosen as the jury foreman. This probably doesn’t mean anything other than that he volunteered for the job, and it’s even possible he was selected after the verdict was reached, which sometimes happens. Nevertheless, it could also be an indication that he was a leader in the jury room, which, at least according to our jury consultant, would be very bad news for Ohlig. I’m sure Ohlig is thinking the same thing.

  “We have, y
our Honor,” he says.

  “Please approach the bench, Mr. Foreman.”

  The foreman walks to the bench and hands the judge a piece of paper with the verdict. This gives everyone in the courtroom one more chance to try to read the tea leaves in the judge’s expression. Like every other judge I’ve ever seen, Judge Sullivan is completely impassive as she looks down on the page she’s been handed, and even if she danced a jig or started sobbing, I still wouldn’t know which way that cut.

  “Thank you,” Judge Sullivan says after reading it.

  As the foreman walks back to the jury box with that precious piece of paper in hand, I remember that this is a multi-count indictment. That means if he starts delineating the verdict by counts at least one must be a guilty verdict, even if the top count is a not guilty. Otherwise he’d say—“with regard to all counts”—or words like it. Conviction on just one of the lesser counts could still put Ohlig in jail for more than a decade.

  The foreman is back in his spot, and Judge Sullivan is finally going to bring the theatrics to an end. “Will the defendant please rise,” she says.

  Ohlig and I stand. I’ve actually thought about letting him go it alone, but even my anger has its limits. I make it a point not to put my hand on his shoulder, however. He’s flying solo here, and he should know it. As if he feels the solitude, he looks back at his wife.

  “Mr. Foreman, what is the jury’s verdict?” Judge Sullivan asks.

  He waits a beat, perhaps to savor his moment in the spotlight. “On the first count of the indictment, violation of section 10(b) of the Securities and Exchange Act of 1934, we, the jury, find the defendant not guilty.”

  There is a roar in the gallery and Ohlig’s posture slackens. He even grabs my hand with his fingers. He must not realize that the jury is going to offer a separate verdict for each count.

  The foreman’s voice cracks through the gallery’s chatter. “On the second count of the indictment—” and then he stops, looking up from the sheet he’s holding and toward Judge Sullivan. “Your Honor,” he says, breaking the rhythm in the room, “do I have to read each count separately? We’ve voted not guilty on all of them.”