A Conflict of Interest (24 page)

I had wondered that, but frankly no more seriously in this case than I do whenever a client retains me. Even within the rarified air of $700 an hour white-collar criminal defense lawyers in New York City, there must be more than a hundred of us. There are probably five or six in Cromwell Altman alone, although Ohlig’s wrong about a $2 million retainer coming close to getting Aaron’s attention. It always seemed like a matter of happenstance more than anything else that someone comes to retain me. Usually it’s because the client knows someone who knows me, either through a previous case or whatever connections
people make. We share a dentist, or a friend went to college with me. More than once, the referral came from the parent of one of Charlotte’s friends.

“Why don’t you just tell me why, Michael?”

“Because I wanted someone for whom I wasn’t just another case. I knew that representing me would be personal for you, and that’s what I wanted. Because it is personal for me.”

“Fair enough, but now it seems like you’ve gotten more personal involvement from me than you bargained for.”

“Maybe, but maybe not. I know you’re angry now, and I’d be too if I were you. But I think I know you well enough at this point to be able to make some judgments about the kind of man you are, and it tells me that you’re still the one I want defending me.”

That settles it. If Ohlig wants me as his lawyer, there’s no way Judge Sullivan would let me withdraw, especially on the trial’s eve. Still, I want him to know, in no uncertain terms, that things have changed between us.

“Big chance to take with your freedom, isn’t it?” I say.

He smiles, as if to say that he knows I’m bluffing. “Remember that at your mother’s funeral I told you that I think of you like family?” I do, but answer him only with a barely perceptible nod. “I meant that, and I still do. And, Alex, the thing about family is that family forgives. Maybe not right away, but in time, family always forgives. So, you ask me if I’m taking a big risk by putting my freedom in your hands? I don’t see it that way. I have faith in you, as a lawyer and as a man. I know that as a lawyer, you will convince the jury that I’m innocent, and that, in time, as a man, you’ll forgive me.”

“Not guilty,” I say.

“How’s that?” he asks, not getting my point.

“The jury. The best they’ll be able to do for you is declare you not guilty. Innocence isn’t relevant here.”

J
udge Sullivan would have made a fine dictator. Everything in her courtroom runs on time. The trial of the United States of America versus Michael Louis Ohlig is no exception; it starts right on schedule.

There are probably sixty spectators in the gallery, a number I expect to be cut in half by tomorrow, but doubled on the day of the verdict. There are the usual court watchers, retirees mainly, who have decided that showing up to court every day is as entertaining as catching a movie, or at least that it’s free. I also spot three court sketch artists. They work on spec, hoping to sell their work to the news outlets, or even to the lawyers as a piece of vanity art. Many of the rest I assume are reporters.

Aside from his wife, Ohlig is without any supporters in the audience. Some of that stands to reason, considering Ohlig’s friends live in Florida and I’ve instructed his business colleagues to stay far away, or else risk the possibility they’ll be easy targets for the FBI to question. Allison Shaw wanted to be here, but I put the kibosh on that one, fearing that the jurors might reach the same first impression about the nature of her relationship with Ohlig that I had.

Pamela Ohlig sits dutifully in the gallery’s front row. Per my instructions, she’s wearing nothing that costs more than $500. Ohlig, too, is conservatively dressed—dark suit, blue shirt, dark tie. As I asked, he’s left the Patek Philippe at home.

For my part, I’m wearing both the tie Elizabeth gave me for my birthday and the cufflinks from Abby. Elizabeth said “nice cufflinks” when she saw me for the first time today, and I told her that “I found them on eBay.”

Judge Sullivan conducts the voir dire, the fancy Latin term which literally means to tell the truth. Etymology aside, in practice voir dire has very little to do with truth; it is the process by which lawyers
exclude jurors that they think will decide against them. In some courts, the lawyers are permitted to question potential jurors, but for efficiency’s sake, Judge Sullivan does all the questioning herself.

The judge did permit the lawyers to submit questions to her in advance. We were sure that some of those we proposed Judge Sullivan wouldn’t ask because she’d deem them to be too inflammatory, like “Do you know of instances where the police have framed innocent people?” Others she’ll ask, but they won’t provide us any more information than we can tell by looking at the people who answer them.

The jury consultant we’ve hired, a woman named Leslie Newman, charges more per hour than I do. She’s done focus groups, polling, and psychological profiles in an effort to ascertain the type of person most likely to acquit Michael Ohlig. After all that work—and about $200,000 in fees—she’s concluded our optimal juror is a non-college-educated man, preferably under fifty years of age.

Her argument was one I’d heard before and, truth be told, is considered gospel by many: “The last thing I want is a jury that understands what’s being presented to them,” she said when we discussed the issue with Ohlig a few days ago. “I want a jury that’s as confused as humanly possible. From confusion comes exasperation and then, eventually, someone will say the fact that they are confused is the very definition of reasonable doubt.”

I couldn’t disagree more. To the extent I have a cogent philosophy concerning picking juries, it’s this: The stronger your case, the smarter the jury you want. It’s pretty basic logic. If you want the jury to get it right, you need to pick jurors who are smart enough to understand what you’re telling them.

I didn’t voice any disagreement with Newman’s approach, however. I could feel Abby’s questioning look beside me, but she’s kept her concerns to herself, at least for the time being.

Newman’s only going to be at trial for the jury selection, so we’ve agreed she shouldn’t sit at counsel table for the voir dire. She initially protested, but I won out by explaining that I didn’t want the jury seeing that one day she’s part of the team and the next she’s gone. The smart ones will figure out we’ve hired a jury consultant, which is never
good, and the less smart ones might think we’ve fired her, which would be worse, especially because she’s African-American.

The compromise was that we would have a fairly rudimentary hand signal, the same one my fourth-grade Little League coach used as the steal sign. If she touches her face, it means she wants to strike the juror. No facial contact means I’m being given the green light to put that person on the jury. Just in case she sneezes or accidentally touches her face, we’ve devised a cancellation system. Both hands on the face mean that the previous signal should be erased, and I should wait for a new one.

During jury selection, I follow the marching orders Newman hands down to a tee. I use our eight peremptory challenges to keep off the first eight college-educated people in the jury pool. The jury we end up with is exactly what Newman wanted—eight of the twelve don’t have college degrees, and six of them are men. But of the four we couldn’t strike, one is a retired Air Force colonel, and he should scare the hell out of Newman.

Pavin’s opening is good. Better than good, in fact. He addresses the jury for nearly two hours, although the time goes by much faster than that, and he hits all the right notes. He tells the jury that the victims are people just like them, only that they had the misfortune of being called on the phone by someone who worked for Michael Ohlig. From there Pavin segues seamlessly into describing Ohlig’s personal wealth. Even though I made Ohlig sell the vacation properties, Pavin has a way of describing what’s left—the waterfront mansion in Palm Beach, the luxury cars (two Mercedes sedans, after Ohlig sold his Rolls), and the yacht (something Ohlig refused to sell)—as if merely possessing these things should be a crime.

After establishing Ohlig as a cross between Bernie Madoff and the Grinch, Pavin lays out the evidence the government will present as if he’s reading from a crime novel. He foreshadows the main event—the testimony of Eric Fieldston—whom Pavin describes as a surrogate son to Ohlig, and tells the jury that despite all of Ohlig’s efforts to corrupt him, Fieldston’s conscience could no longer bear the lives that were ruined, and he has now come forward to tell the truth.

I had thought Pavin would have trouble connecting with a jury because he’s always so formal, but he turns out to be one of those rare lawyers who is quite a different person in front of a jury. He seems completely at ease, which permits him to create an intimacy that at times sounds almost as if he’s addressing their concerns rather than making an argument.

My opening is less than fifteen minutes, with the focus entirely on reasonable doubt. When I’ve finished, I know my client is none too pleased.

Ohlig glares at me as the jurors file out for the day, and he doesn’t even wait until we’ve left the courtroom before voicing his displeasure. “Alex, how could you drop the entire section about my testifying without consulting me?”

“You have to let me try the case,” I tell him in a calm voice. “Just because I didn’t promise the jury you’d testify doesn’t mean you won’t. It just keeps our options open a little longer.”

When we’re back at the office and alone, Abby sounds a similar note of displeasure with the way I opened the case. “I’m not second-guessing you, Alex,” she says, although that’s exactly what she’s doing, “but first the jury selection and now this. What’s going on?”

“What do you mean?”

“I mean that you knew Leslie’s recommendation was not the right way to go, but you followed it anyway. And you’ve been telling me since day one that our only chance of an acquittal depends on Ohlig testifying, and now it looks like you’re going back on that too.”

“I didn’t know Leslie was wrong; I just disagreed with her analysis. But Leslie’s the jury expert, not me. If she thinks this is the way to go on the jury, it’s not my place to disagree. As for Ohlig testifying, I’m still leaning toward putting him on, but Pavin’s opening was stronger than I had anticipated, so I thought we needed some more leeway. Besides, you know that Aaron had strong views on this subject, so it’s not as if I’m alone on this.”

“It’s me you’re talking to, Alex,” she says, seemingly more disappointed in me than angry at me. “Don’t tell me that all of a sudden
you’ve concluded that Leslie and Aaron are right. Lying to yourself is one thing, but don’t think I’m going to be an accomplice.”

“What’s that supposed to mean?”

“It means that something is going on with you, and I’m not sure you’re dealing with it the right way.”

“Why don’t you just come out and say it, Abby. You think that I’m throwing the case, don’t you?”

“I’m not saying that, Alex. I’m really not. It’s just that you have a pretty big conflict of interest and I’m worried about the decisions you’re making.”

“What’s life except a series of conflicts of interest?” I say with a smile.

She doesn’t smile back.

“Okay. Let me put your mind at ease. I fully understand my duty to represent my client zealously, and that’s what I’m doing. You know better than anyone, litigation is an art, not a science, and reasonable people can disagree about strategy. That doesn’t mean that I’m throwing the case, it just means we disagree.”

I pause, trying to gauge whether Abby is on board. When I can’t tell, I just ask, “Are we okay?”

“Yeah,” she says, rather weakly.

I
t wouldn’t surprise me if the Department of Justice manual requires AUSAs to open their cases by calling the FBI agent who handled the investigation because I’ve never been involved in a case where that wasn’t what they did. I almost mouthed his name along with Pavin when he told Judge Sullivan that the government’s first witness would be Special Agent Gregory McNiven.

McNiven can best be described as rugged in that everything about him is unfinished. He’s wearing a dark blue suit, but it fits too snugly, probably because he bought it a while ago. My guess is that it’s the only suit he owns, probably purchased when he joined the FBI, and now he pulls it out only when he’s needed in court. He sports a lapel pin with an American flag, the only person outside of an elected official who still wears one.

On most trials, FBI agents act as the associate to the AUSA. A bigger trial may require more junior AUSAs, but in this one I’m sure McNiven plays Abby’s role—the document reviewer, the fact maven, the sounding board.

The irony is that AUSAs and FBI agents have inversely proportional interest in white-collar cases. Although the AUSAs prosecuting terrorists or mob bosses have the better cocktail party stories, law firms look for ex-prosecutors who can defend the people they formerly sent to jail, and there aren’t too many terrorists or busted mobsters able to pay a thousand bucks an hour for defense counsel. That means that AUSAs most covet white-collar work because it’s the gateway to later riches at places like Cromwell Altman. The reverse is true for FBI agents, however. They join the Bureau to catch the real bad guys, the more violent the better. For them, being placed on a high-profile white-collar prosecution is akin to a cop being relegated to traffic duty.

Even though McNiven has probably testified in court at least a hundred times, Pavin nevertheless follows the textbook approach for direct
examination—start by going through the witness’s background to put the witness at ease, asking softball questions before getting to the hard stuff. It reminds me of Freeman’s joke at Pavin’s expense during the joint defense meeting—Pavin not only follows the book; he’s also memorized it.

But this approach establishes beyond any doubt that McNiven is the real deal. In response to questions about his background, McNiven testifies that he graduated from Penn State on a ROTC ride, then served in Iraq, winning two medals for valor, and joined the FBI when his tour was over. He’s been with the FBI for a little more than three years, serving most of his tenure in Organized Crime, which he refers to as “OC.” He testifies that he was recently transferred to securities enforcement, omitting whatever infraction he committed to wind up in FBI agent purgatory.