“So, Mr. Borkowsky, the choices that Captain Mitchell ultimately made about where to land and what speed to use on landing were different from the singular scenario that Regal Airlines was warning against when they tried to direct the two of you to slow the aircraft if you landed on a fully plowed Runway 7?”
Once more Grant Richardson was on his feet, looking pained and shaking his head. “Your Honor, PLEASE! Who is testifying here? This is beyond leading the witness and I object and ask that this entire exchange be stricken from the…”
“Overruled, Counselor!” Gonzales snapped. “I want to hear his answer! “
The judge turned his full attention toward Ryan Borkowsky, who was taking a long drink of water, his hand clearly shaking.
“Would you like the question repeated, Mr. Borkowsky?”
He shook his head no in staccato fashion.
“I can answer it. It was a very fluid situation, and I knew that Marty…Captain Mitchell…was weighing a dozen options a second. I didn’t know exactly what he was thinking other than what he told Butterfield on the sat phone because things were unfolding far too fast. I didn’t even have a clue why he broke off the approach to Runway Seven until a minute or so later. Yes, the company told us not to land at that speed on Runway Seven, and I don’t think they ever realized several thousand feet had been left unplowed. So, were there other options other than what the company was worried about? Yes. Absolutely. And he didn’t have time to explain them to Butterfield or to me.”
“And, in your opinion, Mr. Borkowsky, of those other potential options the company did not know about, do you believe that at least one of them might reasonably be expected to result in no deaths at all?”
“Yes. Definitely. I do.”
“No further questions,” Judith said, turning to walk back to the defense table with a side glance at Grant Richardson. “Your witness.”
CHAPTER THIRTY-SEVEN
Present Day – September 10 – Day Five of the trial
Hyatt-Regency Lounge, Denver
“Judith, conviction or acquittal will turn on the final instructions to the jury,” Joel Kravitz said as the two lawyers sat in the bar of the Hyatt-Regency an hour after leaving court. “It isn’t always that way, but in this case, it may make the difference.”
“I know it,” she replied.
“Grant Richardson seems to have only limited credit with Judge Gonzales, which portends well for your getting the best language you can in the instructions, but in the end, Richardson is going for simple and stupid.”
“What are you telling me, Joel?”
The older attorney sighed. “Shit, I hate things like this. All right. It is my duty to tell you that despite what has been a brilliant attempt on your part to undercut this sleezebag DA, I think he still has you cornered.”
“I’m not following that.”
“He’s reaching the jurors better than you are. This jury is worrisome. Our jury consultants have been watching each of them as you know, and they’re convinced, despite your best efforts to select the best panel you could get, these folks don’t seem terribly bright.
“That seems harsh.”
“It is, but my point is that in the end, they’re going to go for simple because the big DA told them to look for simple and primed them to expect you to do a smoke, mirrors, and sparkly-thing shuffle to confuse and distract them. He’s warning them not to fall for complexity, or compound thoughts. I don’t know if there’s any way you can defuse that prejudice in your closing, but that will be your last, best chance. They’re already sitting there glazed over with their arms folded. Very bad sign.”
“Jesus, you’re a barrel of fun tonight!” she said, gesturing absently to the bartender for a refill.
He laughed.
“I suppose I should point out to you that citing Jesus to a Jew bears some risk of lowered credibility?”
She sighed. “Sorry. I’m just…what’s the word the kids use? Bummed?”
He smiled, and shook his head as if his student just wasn’t getting it. “You really should update your repertoire, Judith. That phrase died in the nineties. Hang out with some certifiably insane teens. Smoke a joint. Listen to some crap music.”
“You mean rap?”
“One and the same.”
She took a sip of the Manhattan she hadn’t really wanted and studied nothing for a few seconds, working hard to keep any feelings of panic at bay. Finally, she turned back to Joel.
“You and the jury consultants really believe this jury is dumb?”
“High probability. Maybe not quite as stone-cold stupid as the OJ jury, but not the sharpest cheese on the cracker. You did your best in voire dire, but…the jury pool was pathetic. No one with a real job ever seems to show up for jury duty anymore.”
She nodded.
“Are you putting your boy on the stand in the morning?” Joel asked.
“I am. I was. Should I?”
“If you’re sure he can stay controlled, yes. His voice is great, a captain’s voice filled with tones of reassurance, and it just might work.”
“Thanks.” She shifted uncomfortable on the bar stool and turned back to him.
“Did Gonzales stipulate that no one could bring up the cause of the midair collision?”
“Yes. That was quite a pretrial battle, but since the NTSB has not ruled, I used the principles of federal preemption and the fact that it had virtually nothing to do with the crime charged, and he agreed. Months ago I wanted to kill that disgusting toad.”
“Richardson?”
“No…Judge Gonzales. But he’s been very fair so far.”
“Oh, by the way, Judith, do you remember that of the five killed in the crash, one was a young socialite named Victoria Moscone?
“Yes, I saw her name. I don’t know anything about her.”
“This may not be worth mentioning, but her husband has been in the courtroom every day so far, sitting quietly and watching. This guy is worth billions – all from venture capital shenanigans and good gambles over time – name is Carl Moscone. Victoria was his much younger trophy wife. Moscone owns a private jet, of course, but it was grounded and she was racing to visit her sick mother in Orlando.”
“Is his presence significant?”
“I don’t know. He’s a very private person…I’ve met him in prior venues…but he’s politically powerful and usually gives the maximum donation to politicos he likes.”
“Such as Grant Richardson?”
“Don’t know, but I’ll check on it. Of course, he has every right to be torn up enough over his wife’s loss to come watch the trial. Maybe it’s just part of closure for him. He hasn’t said a word to anyone.”
She sat in thought for a second wondering where to file this new shard of relatively disconnected information. Was there any chance Richardson’s emotional attack on Marty was a surrogate action propelled by a rich widower calling in a political favor? It wasn’t a question she could answer, and it probably wasn’t worth the effort to even try. The PI she’d hired had reported back empty handed, too.
She shook it off and looked back at the senior lawyer.
“So, Joel, other than fighting like hell over the wording of the jury instructions and preparing a closing argument that will have all twelve of them physically attacking Richardson with pitchforks, what else would you advise?”
“The ultimate fallback in a criminal case, Judith. Go for reasonable doubt. It was always my north star through decades of these types of battles. Plant reasonable doubt like a kudzu vine. Kudzu grows about a foot a day, by the way, and that’s how fast inserting real lingering doubt into their thinking will grow, if Richardson doesn’t kill it with simplicity.”
“Kudzu? Really?”
“It’s a good example. Convince them that Richardson has f
ailed to meet his burden. Convince them he’s failed to prove every element of the charge beyond a reasonable doubt. Reasonable doubt can also be compared to a virus. If it can grow past a juror’s mental immune system and outlast any anti-viral attack by the prosecution, when it comes time to vote in that jury room, it can save the day. One vote to acquit is the last line of defense.”
“I love your analogies.”
“In more traditional terms, my dear, pivot everything on the fact that there is no way that anyone could accept, beyond a reasonable doubt, Richardson’s argument that to knowingly cause the death of another includes an airline pilot who tried everything he knew to save his passengers, and lost a few nevertheless. Couple that with the universality of captain’s authority in an emergency and Richardson will have a steep hill to climb to overcome it and get all twelve past reasonable doubt. He wants to use simplicity? Give it right back to him. The very nature of the captain’s decisional process instills not just reasonable, but severe doubt that his actions could ever meet the language and the intent of that damned law that defines second degree murder.”
“That’s it?” she asked, standing.
“In the final analysis, that’s all you’ve got, kiddo.”
CHAPTER THIRTY-EIGHT
Present Day – September 13 –Day Six of the trial
Courtroom 5D, Lindsey-Flanigan Courthouse, Denver
“Ready, Captain?”
For the previous hour, in a commandeered hotel meeting room, Judith had been carefully and calmly running through the basics of what Marty could expect on the stand when court resumed in less than an hour. There had been one more on the defense list but it was going to be impossible to get that witness to court in time, and Judith had made the unusual decision to go ahead with Marty’s testimony. It was a risk, Joel had warned, to let a defendant testify in the first place, and more so when his voice wasn’t the last one heard from the witness stand. But the risk was not without calculation. Marty’s calm demeanor was both reassuring and disturbing, and the question kept echoing through her mind of whether he was really that composed, or doing a great job of acting? The weekend recess had been taken up with constant study for Judith, and mostly sleep and a few workouts in the hotel gym for Marty.
“Am I ready?” Marty echoed. He nodded with a tight smile, and a big hand reached out to gently touch her shoulder.
“Thank you, Judith. However this debacle turns out.”
She resisted the urge to repeat her warnings about how totally critical it was for him not to get angry or agitated. He might perceive the repeated warning as a lack of confidence.
“You’re welcome! Now let’s go do this.”
With the rest of his legal team reassembled in the courtroom an hour later, Judith called him to the stand, and Marty walked forward with calm confidence, his uniform pressed and sharp, his captain’s hat with the gold braid on the visor left on the defense table, yet clearly visible to the jurors.
Judith glanced at the twelve jurors once again, wondering if they were really as unsophisticated as the jury consultants believed. She had struggled in her opening statement to find the right words to plant in their minds how outrageous was the injustice being visited on this good man. Time would tell if they had heard her. And, as Joel had warned, the statute seemed deceptively clear, and she would have to meet Richardson’s strategy head-on.
Marty Mitchell was right, she mused. It’s a shameful game. But occasionally justice is the imperfect byproduct.
From the witness stand, Marty had fully anticipated that seeing Grant Richardson at the prosecution table front and center was going to be a struggle; and he knew that watching the smarmy bastard sitting back casually with such a smug and self-confident look could upset him. But at Judith’s urging, he’d been preparing himself for this moment for weeks, and an inner calm had genuinely replaced his intense hatred of the man. He looked at Richardson now as somewhat pathetic, especially since the DA had nothing more important to do than personally torture a surviving airline pilot.
Marty could recall almost word for word Richardson’s opening statement, as well as all his questions of his witnesses during the first days of the trial. The DA had been smart in avoiding the vilification of the captain of Regal 12. Instead, he’d cast the accident as a sad series of tragic mistakes, one of which had to be answered with punishment lest people die in the future from another pilot’s negligent and disobedient decisions. Marty knew the jury was curious and not preprogrammed to hate him, and they were being preprogrammed to consider this a simple matter – if A fits B, the only verdict is guilty. He would have to connect with each of them on a profoundly human level to get them to look beyond. In pilots’ lexicon, it was the ultimate checkride with his freedom in the balance. The good part of that, he concluded, was that Marty Mitchell had always been ice-water steady in checkrides, even when the check pilot was an unspeakable ass working relentlessly to rattle him.
For the entire morning and after the lunch recess, Judith followed the usual introduction to the jury by guiding Marty through the details of the flight, the preflight discussion with the dispatcher, the collision and airborne calls with Butterfield, the rapid-fire decisions that had to be made in an unprecedented emergency, and the agony of pushing back against voices that were telling him to condemn the sixteen people on his wing to death.
And finally, as promised, she had turned and asked the questions he had been dying to answer all day, giving him the opening to explain without interruption the last act of the flight.”
“Captain, your first officer testified that when you started a missed approach to Runway Seven, you were low on fuel and the runway was in sight?”
“Yes.”
“Why did you elect to go around?”
“Because,” he said, “I suddenly had a better idea, one that had been staring me in the face as we came down final for Runway Seven, but one I hadn’t figured out until about two hundred feet above.”
“By a ‘better idea,’ what do you mean?”
“One that wouldn’t kill anyone. A way of getting all of us down safely, not just the passengers aboard my Boeing.”
“Would you please describe to the jury what happened from the moment you decided to go around, to the crash?”
Marty Mitchell nodded and took a long look around before beginning, and, to his amazement, the courtroom and all the sounds and sights within began to recede as he commenced speaking, until once again it was the snowy night of January 21st and he was in the cockpit again, the snow streaking past the windscreen, the same fear roiling his stomach as they streaked down final approach far too fast, the remains of Mountaineer Flight 2612 still hanging onto the right wing. He could hear Ryan’s voice, just as before, when Marty ordered him to standby for landing gear extension.
“Five hundred feet to go, Marty. No decision height.”
“Roger.”
“Coming up on two miles to the runway, on speed, one half dot above the glide slope.”
“Roger.”
“Four hundred above and one mile,” Ryan was saying.
“Gear down,” Marty commanded, as Ryan’s hand moved the lever downward, starting the hydraulic sequence that lowered the huge main gear trucks and the nose gear into place.
What had been eating Marty Mitchell finally coalesced, like a blindingly bright flash of crystalline insight. He’d been dutifully following a single idea down a narrow tube and failing to consider or even see any other possibility, but just because a runway was formally declared closed and full of snow didn’t mean it had ceased to exist! What they needed was runway length and some means of slowing down and the absence of a dropoff at the far end.
Jesus! he’d thought, that’s Runway 36 right!
“GEAR UP!” Marty commanded.
“What?” Ryan had asked.
“Going around. Gear Up! Tell the tower.”
For perhaps sixty seconds he held his breath that the change from the shallow descent to a climb hadn’t disturbed the wreckage on the right wing, but he made the pull up very, very smoothly, bringing the power in extremely slowly arresting the descent and gingerly beginning to climb as he held the exact same speed. There was more than enough energy stored in the 230 knot velocity to trade for altitude before the engines came up to full power, but keeping it smooth and the angle of attack constant was absolutely imperative.
He heard Ryan’s expression of befuddlement to the controller but there wasn’t time to worry about it.
“Ryan, tell them we need vectors to the south and then a Category 3 ILS to Runway 36 right.”
“Captain, that runway is closed!”
“Yes, because it’s full of snow, and what do we need? A way of slowing down on the runway, and that’s exactly what a few feet or more of snow will give us! And it’s sixteen thousand feet long with a flat plain beyond.”
“We can’t land on an unplowed runway…can we?”
“We can and we will! At the same speed.”
“But there’s a twenty-knot crosswind on that runway!”
“This aircraft can take it. Tell the tower!”
The obviously stressed voice of the controller acknowledged the request and repeated the same information that the runway was closed and the ILS turned off.
Marty pressed the PA button on the interphone panel.
Folks, this is the captain. We went around because we think there’s a better and far safer way to get us on the ground. We’re going to use a much longer north-south runway. I still need you in brace position, your seatbelts tightly fastened, and to follow the instructions of your flight attendants.”
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