“But, Judith, that screws the whole principle of captain’s authority! I mean, that’s worldwide international law!”
She chuckled ruefully and shook her head. “You know, in law school, one of the universal legal answers to any question – we learned this almost in the first month – was: ‘Well, yes and no!’ and I’ve got to use that phrase to answer you now. Yes and no. Yes, this case involves second guessing a captain’s authority, but no, it is not necessarily inappropriate to require accountability after the fact. If you decided to shoot and kill a passenger, you would be called after the flight to defend yourself as to why that killing shouldn’t be ruled a homicide. Similarly, you can legally decide to land overspeed, but if you do so, you can be held accountable for the correctness or appropriateness of your decision.”
“Jesus! So, it’s perfectly okay for society to prosecute someone like me for making the best decision I could possibly make for the best interests of all? What a wonderful society! Remember, Judith, it wasn’t a case of choice A versus choice B, and only one might result in death. Both choices – either choice in this case – bore a high probability of death. There was no Plan C.”
“And, Marty, that’s exactly the point, that this is a ridiculous case when viewed in the greater framework of what society wants and needs. We need decisive captains who can do their best in a dire emergency, captains, and first officers, who are unafraid to use their best judgment. And they need to feel the support of our legal system beneath their wings. This case is going to set a vital precedent, one way or another, and losing it directly harpoons flight safety worldwide.”
If you ended up convicted for doing your best, can you imagine the chilling effect on virtually every pilot out there who might face an emergency some day? “
“I don’t want the union involved. They can file friend of the court briefs later if this ends up the wrong way, but no…not now.”
“Okay. They do have an interest. We don’t need captains trying to act as lawyers in the middle of a major emergency because they’re afraid they might be prosecuted for an honest decision that went wrong! Criminal law was never supposed to be applied this way, and hopefully the jury will see that with clarity and spend five minutes finding you innocent.”
“And if not?”
“Don’t go there!”
“I’m not plea bargaining, you know that, right?”
“Absolutely! I was only going to sneer at any offer from the DA, but he never opened the door!”
Marty stopped and looked at her with a puzzled expression. “What does that mean, Judith? Why wouldn’t he try to sell me a plea bargain and assure a conviction, versus, as you call it, rolling the dice that I might be exonerated and he’d look stupid… not that he isn’t?”
“Not offering a plea means one of two things. First possibility, that this whole prosecution nonsense and all his grandstanding and the unnecessary submission to the grand jury is some sort of theatrical production for him, and he doesn’t give a rat’s ass whether he convicts you or not as long as he gets a chance to strut indignantly around the courtroom and show the world how much he resembles F. Lee Bailey, Jeanine Pirro, or Perry Mason from an earlier age.”
“What’s the second possibility?”
“That he is genuinely outraged at your decision not to slow down, and he does care about convicting you. If that’s the case, where does that outrage come from? That’s a prosecution born of passion, and it feels to me like malicious intent. Not only does that usually subvert justice, but if I could find out what it is, and if it was significant enough, it might be sufficiently embarrassing to him to sour the jury in your favor on what we call prosecutorial misconduct. You know, get the jury angry over the idea that this whole thing is based on some personal axe he wants to grind.”
“You can tell a jury that?”
“Not directly, and I may have to be really sneaky to get it in front of them. I may have to risk censure from the judge or even contempt, and risk a mistrial. Of course, if it was really a major personal conflict, I could attack the indictment as having been issued under undue influence. But, before I can tell the jury or do anything, I have to discover myself what the hell that motivation is… and right now I haven’t a clue. It may just be that he’s getting older and meaner.”
“Anyone we can ask?”
“We’ve had a private investigator on this for weeks…one we use often. Hopefully he’ll dig up something. We’ve got another PI firm doing everything they can to find out whether there was a snow plow on that runway, or what those lights were that distracted you. As far as Richardson’s anger? I don’t know…maybe Regal Airlines lost his bags sometime in the past or refused to give him a free first class upgrade, or worse, didn’t recognize who he was at the gate!”
Marty looked puzzled. “What would any of that have to do with coming after me?”
“I’m trying to be funny…and not obviously not succeeding. Sorry.”
“Oh.”
“The investigators are supposed to report back this afternoon.”
Marty shook his head. “The trial starts in two days.”
“Believe me, I know.”
“Judith, I want to testify. I know I don’t have to, but…”
She had her hand out to stop him as she nodded an assent. “I want you to. But I want you to be very, very aware of the fact that you have to stay extremely calm, because Richardson will try to gore your goat and get you to show anger or arrogance. The jury needs to see you as the consummate captain – the unflappable guy with icy steadiness they would want flying their loved ones around, and a guy who is being persecuted by a bully of a DA. You can’t whine about being prosecuted, and you can’t go into some diatribe about the injustice of it all. That will lose the jury in a heartbeat. You absolutely must be calm and professional and serious and as certain that you made the right choice as you are broken over the results. Can you do all that?”
“A month ago, hell no. A week ago, maybe. Now…yes.”
“Good. Remember that classic movie, “A Few Good Men,” with Jack Nicholson playing a flint-hard Marine, Colonel Jessup?”
“Absolutely.”
“Can you quote Nicholson’s best line?”
“That’s a strange request. But, yes, so happens I can.”
“Go ahead,” she said, crossing her arms and sitting back for the performance.
He took a deep breath and leaned forward, adopting a furious expression, eyebrows flaring and index finger wagging the air, his voice thick with sarcasm.
“You want the truth? YOU WANT THE TRUTH? YOU CAN’T HANDLE THE TRUTH!”
She clapped slowly and smiled. “Very good!”
Marty relaxed back into his chair, his face returning to normal. “That was kinda fun, but I don’t get the point.”
Judith leaned forward then, looking him steadily in the eye for an uncomfortable few moments before speaking.
“The point is, you can’t be Colonel Jessup, Marty. Colonel Jessup goes to prison.”
Denver – Brown Palace Hotel Churchill Lounge
Entering the plush, leather-bound, cigar-friendly Churchill Lounge in the historic Brown Palace Hotel was always a mixed pleasure for Scott Bogosian. He loved the hotel with its central atrium and 1890’s history, and he also loved the wafting aroma of rich, varietal cigars which enveloped the lounge’s patrons on entry. But any visit had its price: as an ex-smoker of cigarettes already worried about the damage he might have done to his lungs in the past, the temptation to smoke a cigar or to just give in and re-start the two-pack-a-day cigarette habit always reverberated for about a week.
The old friend who’d recommended the Churchill as their meeting place waved to him from the far corner, near the bookcase, and Scott moved to greet him.
“Hope you don’t mind, Scotty,” he
said, “…but I haven’t had one of these in months.” He held up the lit Rocky Patel. “And, I suppose it’s not too early for a scotch. What’ll you have?”
A waitress materialized and Scott ordered coffee as he sat down.
“How long has it been since we’ve seen each other?” Scott asked.
“Well…since the paper folded, probably. We started working together back in the 80’s if you’ll recall.”
Scott laughed. “Yeah, I do. Others do, too! A friend…in fact, the chief ranger up in Rocky Mountain National…remembered you recently as the guy carrying a sack of Nikons.”
“About right,” he laughed. “But that was back when dinosaurs walked the earth and we used something called film. Nowadays I dance with the pixels!”
“Which is why I wanted to see you,” Scott replied.
“Uh, oh. Not a social occasion, huh? Business?”
Scott pulled an 8x10 photo from a thin folder and slid it over the table.
“This is one of yours, right?”
The veteran news photographer studied the shot for a second. “Yep. That’s one of mine. I don’t know the exact date, but sometime in late January.”
“That was taken at the funeral of one of the Regal Airlines crash victims, as I recall?”
“Yes. I remember, her name was Martha Resnick. The teenage girl killed in the crash. Why are you interested?”
Scott sighed. “I’m trying to figure out why our district attorney is so damned determined to put this airline captain in prison. The captain of the Regal Air crash in January.”
“Right. Just doing his job, I guess, right?”
“Well, Richardson is making a lot of people in aviation very angry by charging the guy with murder and really stretching the law to do so, but the odd thing is, he’s all but snarled about it in news clips, like he really hates that pilot. Why the intensity? I can’t find any evidence or even rumors that he and the captain knew each other or had ever met. I checked school records, newspaper morgues, a world of databases, military records…you name it. Nothing. So, I have to wonder, was there was someone he knew in that accident? Someone who’s death upset him? I haven’t found any connection yet, but I thought it might be a big clue if he had attended any of the funerals.”
“Did he?”
“I don’t know, but that’s where you and this shot come in. I looked at the newspaper and online coverage and saw your shot and when I looked closely, there’s this one guy standing just behind the main family group who might, just might, be Grant Richardson. I just can’t see his face.”
“So…you’re hoping I have more shots in the file, and maybe one or two of them might show him?”
“Exactly.”
“I don’t know, Scotty, but I’ll look. You mentioned you’re doing a book on that crash, right?”
“I’m really close to making a launch decision, yes. But there’s no real hurry.”
“A lot of very shaken people came off both those planes.”
Scott sighed. “Probably none more so than a woman on the 757 who thought her fiancé was in the cabin of the Beech on their wing. Lucy Alvarez. She was sitting right across from them and was convinced she’d seen him in one of the windows.”
“If he was aboard the commuter, though, he lived. Right?”
“Well,” Scott began, “…after she lived through hell, it turns out he was at her place in Denver with a dead phone wondering where the hell she was. He’d ditched his business trip to be with her, and she was angry at him and fleeing to Florida.”
“So they’re probably married now?”
“Nope. Broke up,” Scott replied. “Survivor’s guilt was part of it.”
“You do know the trial is coming up in two days, right?”
“This has nothing to do with the timing of the trial, and in fact, the captain’s lawyers probably already have this question about Richardson answered. I just can’t stop wondering.”
“Tell you what,” the photographer said. “Rather than emailing, I’ll dump everything I shot at that funeral on a flashdrive and get it to you. It won’t be many pictures…I was taking pains to be very discreet and respectful.”
“I appreciate it.”
“You’re welcome. Who knows. One of the frames might show Richardson passing money to a Russian prostitute or something else deliciously salacious.”
CHAPTER THIRTY ONE
Present Day – September 4
Office of the Managing Partner – Walters, Wilson, and Crandall, Denver
One of the primary reasons Judith Winston had accepted the post-law school job offer from Walters, Wilson, and Crandall so many years ago was the warmth of Jenks Walters, one of the cofounders. With a fearsome reputation as a corporate litigator, personally he was as jovial and friendly as he was a truly excellent lawyer. Compared to the only other living senior partner, Roger Crandall – who was cold, humorless, and always gave the impression of being royally pissed off about something – Jenks was somewhere between a grandfatherly entity and a very sharp colleague.
Now, Judith needed the latter.
She had spent the previous fifteen minutes briefing the senior partner on the Mitchell prosecution, and he had reviewed the pleadings as well as a particularly brilliant paper she had commissioned from an outside expert on the law pertaining to sea captains and airline captains and their emergency authority.
“Judith, great preparation as always. I said you’d have no trouble rising to the challenge of a criminal case, but…you’ve got to understand the basic equation here. Judge Gonzalez is an angry little man with a couple of huge chips on his shoulder who has little use for arcane legal theory. I tried a fairly simple corporate case before him several years ago and he, honest to God, actually told me to cut out all the ‘legal schmeegal’ arguments and just state the law. I was stating the law, but he didn’t have the patience, or perhaps the understanding, to follow.”
“He is a lawyer, right?”
“Yes, and I checked up on him. He was fairly high in his law class at UNM in Albuquerque. But he just doesn’t have the patience. And…that’s why I’m bringing this up. That paper you commissioned may only be useful on appeal. All it’s likely to do for Gonzalez is irritate him.”
Judith had been standing, more or less gazing out of the window toward the front range of the Rockies while Jenks sat back in his plush desk chair and studied her. With the last statement, Judith turned to face him, her stomach tightening as the slight bravado she’d felt evaporated.
“Jenks, you…you think we’re going to lose this?”
Jenks Walters looked at her for a long time before answering.
“Well, Gonzalez is going to let Richardson put on as much of a show as he wants, and Grant is more actor than lawyer so he’ll play to the jury, and you already expect him to read the criminal statute word for word which, as you know, clearly says that if the defendant knowingly caused a death he’s guilty of second degree. Judge Gonzales is not going to allow anything in regarding the broader law of the air and sea, and…on top of all that…while I don’t necessarily disagree about putting your captain on the stand…”
“Bottom line, Jenks?” she interrupted.
“They’ll convict him,” he shot back without a pause. “They won’t freaking have a choice, unless you can pull an entire warren of rabbits out of your hat…and you don’t normally wear hats, to torture the metaphor.”
“How about the success of an appeal?”
“You’ll have a better shot with an appeal, but it’s not a slam dunk. What’s really needed is a legislative change to prevent this kind of miscarriage of justice from ever happening again. Oh, and Judith, one more item. After you boy’s little mortality-threatening stunt on Long’s Peak? Expect Gonzalez to vacate bail and jail him immediately after the verdict as a
flight risk, no pun intended.”
She sighed deeply, eyes averted downward as she thought about the agony of having to prepare Marty Mitchell for the worst.
“Judith, you breeding any rabbits?”
She jerked her head up suddenly. “Excuse me? Oh! Sorry. I…well, I’ve been puzzled by Grant Richardson’s conduct.” She outlined the refusal to offer a plea bargain and the apparent anger driving his prosecution and having unleashed the firm’s private investigator as early as possible to find reasons. “I just thought there might be some personal animus that I could use as a basis to seriously question the indictment on grounds of misconduct. I even stated that to the news people the day after Mitchell tried to kill himself.”
“Yes. I saw that performance, Judith. Very polished, very professional – and very dangerous. You know my thinking on trying cases in public.”
“I do, but I’m very worried and maybe a bit desperate to crack this. Jenks, you know him personally, don’t you?” she asked.
“We’re talking Richardson, right? Not the judge?”
“Grant Richardson, yes.”
“I know him, but I don’t like the little pontificating weasel. I even caught him cheating at golf.”
“Can you think of any connection he’d have with any of the victims of the crash? I ran every name through every possible connection or family link I could think of, but found nothing.”
“Grant’s an arrogant climber who wants to be president and doesn’t care who he steps on along the way. I don’t think the man has any principles, and of course we don’t need any more people like that in government. But I tell, you, Judith, it’s hard for me to imagine Richardson caring for anyone deeply enough to want to avenge their death. It’s just not like him. I wish I had a better forecast for you.. I think the jury will have no choice but to convict, because you can be certain the jury instructions Gonzalez will approve are going to be simple and tough. You know, if there are clouds in the sky, you must convict. No latitude.”
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