16 SOULS

by John J. Nance

  A short recess separated Richardson’s rhetoric and Judith’s by fifteen minutes, but as they reassembled in the courtroom, she leaned toward Marty and gave a reassuring pat on his hand.

  “He didn’t surprise me at all. I expected everything he said.”

  Marty nodded, his face a study in stoic apprehension. He took his seat again and listened as Judith moved for dismissal on the grounds that the state had failed to prove even a basic case, but as she had told him, the motion was just for the record and would be rejected, as it was.

  The embarrassment he felt for coming apart in the middle of the night had been all but replaced by a quieter level of dread. But even that was diminished by the feeling that he was not alone. The yawning chasm of loneliness that had been his life for the last few years, long before January, had been breached, and that gap had admitted a vulnerability he had long denied. He was still scared to death, but there was something different about the way that felt.

  Judith was on her feet now, the jury following her as she moved out from behind the table, wearing a carefully chosen, classy dress in a soothing shade of blue, set off with a simple strand of pearls. She smiled and greeted the jury and began to walk them through the facts from Marty’s point of view rather than the cynicism of Richardson’s re-telling. She painted a crystal-clear picture of a dilemma into which no human should be placed, laced with the unhelpful pressure from the airline and the shifting facts regarding runways and snowfall that all had to be dealt with by two pilots who also had to struggle to keep a crippled airplane aloft while balancing a precariously attached fuselage of another aircraft on its wing.”

  “Yes, I ask you to empathize and sympathize. We are, after all, human, and it would be completely inhuman not to put yourself in this man’s position, in that cockpit, where we are now told that having the courage NOT to condemn those sixteen souls to certain death was a crime. Mr. Richardson would have you believe that because no one technically knew precisely what combination of angle of attack or airspeed would condemn those sixteen people to fall off the wing, Captain Mitchell’s best estimate should be discounted. An airline captain fighting for survival in a dire emergency seldom has the luxury of dealing with certainties. By the way, that is precisely why we have humans and not computers flying our jetliners and making the tough calls in emergencies, as rare as they are, because machines can’t deal with uncertainty the way we can. You heard the testimony about the near-disaster in Singapore a few years ago with a fully loaded Airbus A-380, Qantas Flight Thirty-Two, using the largest passenger airliner on the planet. It took five qualified pilots nearly three hours to figure out how to land safely. If the computers alone had made the decisions, the aircraft would have crashed with the loss of all aboard, over three hundred people. We need captains like Marty Mitchell who can quickly take in all the evidence, and working with the captain of a Mountaineer 2612, determine that slowing down would be fatal. You heard Michelle Whittier’s testimony! She and her copilot had to fly…literally fly…their fuselage in order to stay on the wing of the 757 even at two hundred thirty knots. Can you really ignore all that testimony? Can you really say that Captain Mitchell should have just assumed they’d stay attached, suppressed his own training and experience and instincts and experimentation, thrown all that away and just trusted that his airline’s spokesman had better information, and then slowed to normal approach speed? You see, far from smoke and mirrors, that’s the key to this and to your deliberation. Mr. Richardson wants you to conclude that slowing down was a certain win for the occupants of the 757, and that since there was no certainty about when the Beech would fall away, deciding to slow down would not have constituted knowingly causing the deaths of those sixteen. But that’s nonsense! In fact, if Captain Mitchell had slowed down, and if everyone aboard the 757 had lived, but the sixteen people on the wing had died, by his definition of the criminal statute we would still be right here with Mr. Richardson charging Captain Mitchell with second degree murder because he had knowingly slowed the aircraft…knowing that it would case the deaths of the Mountaineer passengers. Are we really ready to imprison someone who had an impossible choice? Are we that crass and hateful as a people to use the literal meaning of law to inflict an outrageous result?

  “Again, that’s the key. No matter what he did, by Mr. Richardson’s definition of the law, we would be here trying the same case for a different set of deaths.”

  “The law against second degree murder is for punishing someone who knows that doing something completely voluntary, such a pulling the trigger on a gun they’ve cocked and aimed, would likely result in a death, and they did it anyway. This law was never intended to cover a dire emergency by reference only to its outcome. Captain Marty Mitchell, as he said himself, never did anything volitionally or knowingly to hurt another human. That has one conclusion and only one when you get into the jury room. You must acquit.” “Please keep this in mind: If you do not acquit, you will be sending a major message to every airline pilot who flies into or through Colorado that should an emergency ever happen with life threatening potential, their only hope of avoiding criminal prosecution will be blindly following whatever their company tells them to do. Imagine being on such an airplane and the pilots are not allowed to use their own training and intelligence. Imagine your life hanging on the opinion of someone in a distant command center who isn’t even there and who cannot have all the facts. If that’s what you want to fly with, then convict Captain Mitchell. If you want thinking, caring humans doing their best, you must acquit.”

  Richardson was not about to let Judith have the last word, and since the prosecution gets the chance to make the final comment, he rose again to address the jury with as much simplicity as he could muster.

  “Ladies and gentlemen, Ms. Winston certainly didn’t disappoint in providing a great opportunity to distract you. But let me bring you back to reality. Captain Mitchell made the conscious decision to maintain a dangerous airspeed knowing that the potential for loss of human life was very great, and thus regardless of any other information about runways or headlights or any other distraction, the fact is unavoidable: Because of his refusal to slow down to a safe speed, he knowingly caused five deaths, and in accordance with Colorado law, you have no choice but to convict.”

  Two hours of intense wrangling between Judith and Grant Richardson in front of the judge finally distilled the court’s final instructions to the jury, as she explained to Marty later, the best compromise they could engineer. With that, the case went to the jury, and the waiting began.

  Sitting quietly at the defense table, Marty was aware of Judith and the team beginning to repack all the notebooks and legal pads and other supporting materials, but he remained without comment until she snapped her briefcase shut and turned to him.

  “You okay?”

  “I don’t know. I’ve never wanted to snap anyone’s neck before, but with Richardson…I…”

  They were interrupted by someone handing a folded note to Judith

  “What’s this?” she asked.

  “A gentleman in the back would like a word with you, if you have a moment.”

  She unfolded the note.

  It is urgent I have a moment to speak with you. I believe a great injustice is about to be done, and there is a very material element to all this that you – and the court – should be aware of. Carl Moscone

  “What is it?” Marty asked.

  “I’m not sure. Would you go with Joel and the others back to that conference room and let me see.”

  “Sure. But what do you think?”

  She touched his arm, “Marty, I think we hit all the points, and I don’t think Richardson scored any home runs. But this is what we all hate about the jury system – having to wait and worry.”

  He knew that wasn’t a real answer, but he was being kind enough and calm enough not to press.

  She moved towar
d the courtroom door feeling a combination of exhaustion and dread, none of which she could articulate.

  When the small conference room door closed behind her, Carl Moscone shook her hand formally and asked her to sit.

  “What is this about, sir?” she asked.

  He remained standing, a well-groomed man in his late sixties, gray at the temples but with a full head of dark hair and a sculpted, almost regal profile.

  “Had you wondered, Ms. Winston, why Grant Richardson is so angry with your client?”

  She sat forward. “Absolutely, but despite spading up heaven and earth with our PI’s, we couldn’t discover any connection, other than his attendance at two of the funerals.”

  “He would have attended the funeral for my wife, Victoria, but he feared someone would find out.”

  “I’m not following you.”

  “My wife, Ms. Winston, was much younger than I. There was the usual clucking about a trophy wife, but when we married, we were both very much in love, and we remained so, although in certain areas…libido, for one…we became increasingly mismatched. She quietly set out to do something about it, and I essentially pretended not to notice.”

  “I…find this fascinating, but what does it have to do with…”

  “Victoria had a longtime lover, Ms. Winston, and his name is Grant Richardson, our District Attorney.”

  “Oh my God!” Judith responded, her had involuntarily going to her mouth. “No wonder…”

  “Victoria enjoyed him as a clandestine lover, but I happen to know that she wasn’t prepared for him to fall head over heels in love with her, which happened years back.”

  “So, when she died in the crash…”

  “He was devastated, angry, and determined to blame someone, and your client was in the crosshairs.”

  “Richardson has a wife and kids!”

  “Yes, as he has reminded us all in his exploitive political ads. That didn’t bother Victoria. As for my attitude? Frankly, I don’t respect hypocrites, and the more Richardson puffed his chest out as a pseudo-lawyer politician and a defender of family values while banging my wife behind my back, the more I disliked him.”

  Judith sat and watched Moscone for a minute as he looked at the wall, his hands clasped behind him.

  “How did her death affect you, Mr. Moscone?”

  “Carl, please. I internalize my grief. I was deeply affected, and feel a great loneliness and loss which hasn’t lessened. But I understand what happened, and I have great empathy for the impossible dilemma Mitchell faced. I do not blame Victoria’s death on him. I did expect Grant Richardson would be emotionally devastated, because for all his buffoonery and dishonesty, I know he truly loved her. I also know the man wears his feelings on his sleeve, so to speak. But I did not expect vengeance. I feel very badly for your captain because I am very opposed to using criminal law to address honest human errors of any sort. It is a bastardization of the law.”

  “Of course, I couldn’t agree more,” Judith echoed.

  “That’s why I’ve been here every day watching, Judith. May I call you Judith?”

  “Certainly.”

  “I would have preferred to stay silent about Grant and Victoria’s relationship, but I can’t allow this miscarriage of justice. I was simply hoping this case would be dismissed, or that by the time it went to the jury, it would be an inevitable acquittal and I could stay silent. But it didn’t and I can’t. You are very impressive, by the way.”

  “Thank you, but I’m really a corporate lawyer.”

  “Oh, I know. All the more impressive.”

  “But why now, at the eleventh hour?”

  “Because you’re going to lose.”

  “Why do you say that?”

  “Technically, Richardson is right on the law, and it’s the law that’s wrong and far too broad and poorly written. But it’s time the judge knows that this entire prosecution is a personal vendetta. I hope we’re not too late. He may be willing to quash the indictment and dismiss this prosecution without forcing it into an appeal. Perhaps I should have come forward earlier, and I apologize for not doing so.”

  “Richardson will just file it again.”

  “Someone else will have to do it without his participation once the world knows why he did this to begin with, and there’s the little fact about double jeopardy attaching when the jury is sworn in.”

  “You sound very familiar with the law?”

  “I went to law school and passed the New York Bar a very long time ago, then quickly decided I’d rather hire lawyers on Wall Street than be one. But I do keep up. Now. How do we proceed?”

  CHAPTER FORTY-THREE

  Present Day – September 15 – Day Eight of the trial

  Courtroom 5D, Lindsey-Flanigan Courthouse, Denver

  The urgent request from the defense to bring Judge Gonzales back to the bench in open court had been met with an irritated order to assemble both legal teams in his chambers. The rancid memory of the last time she had entered Gonzales’ small office flashed in high definition across her mind as Richardson came through the door angry to be summoned back to the courthouse without a verdict. Judith looked at the district attorney, surprised to feel a tinge of pity for the man, if not for his love and his loss and the impending destruction of his career, then for the seismic shock she was about to deliver.

  Carl Moscone was waiting in the same conference room, out of sight, but available if needed.

  “All right, Counsellors, what’s so urgent?” the judge said, settling his considerable bulk behind his desk.

  “Your Honor,” Judith began, “…we are prepared to move in open court for the dismissal of the indictment against Captain Mitchell on the grounds of prosecutorial misconduct and prejudice.”

  Both Judge Gonzales and Grant Richardson looked at Judith as if she’d lost it.

  “What are you talking about, Ms. Winston?” the judge asked.

  “I would prefer to present this in open court on the record, Your Honor.”

  “That may be your wish, but I want to know what the hell you’re talking about?”

  Judith glanced at Richardson who still had no clue.

  “Just after you sent the jury out to deliberate, Your Honor, I was approached by a prominent member of the community with information based on firsthand knowledge that explains Mr. Richardson’s vehement and puzzling prosecution of Captain Mitchell. This information constitutes grounds for immediate dismissal of the indictment.”

  “And what, Ms. Winston, would that information be?”

  “That the hidden and undisclosed impetus for this prosecution was the death aboard Regal Airlines Flight 12 of Ms. Victoria Moscone, and the fact that Mrs. Moscone and Grant Richardson had been involved in a long term and ongoing romantic and sexual relationship for many years.”

  ‘WHAT?” Richardson snapped, his eyes suddenly wide. “Who the hell made that allegation?”

  She turned to bore her eyes into his, speaking slowly.

  “Mr. Carl Moscone, who, by the way, is here in the courthouse waiting for an opportunity to testify under oath if necessary.”

  Gonzales sat back in his chair as if trying to widen the scope of his vision as he looked at Richardson, who was trying not to stammer.

  “Is this true, Mr. District Attorney?”

  “Judge,” Richardson began, but Gonzales raised a hand to stop him, sitting forward suddenly, his eyes narrowing. “Be…very…careful, counselor, with your next statements and answers. I will jail you on criminal contempt if you lie to me, is that understood? Clearly?”

  “Yes, Your Honor. Of course.”

  “Did you have a romantic and sexual relationship with Victoria Moscone, who perished in the crash of Regal Twelve?”

  Grant Richardson’s shoulders slumped ever
so slightly as he exhaled and nodded. “Yes, but that did not…”

  “That’s enough!” the judge snapped. “We’re re-convening in open court immediately.”

  Ten minutes later, with Marty and the defense team as well as the prosecution team back in court, and the court recorder in position, Judge Gonzales entered the courtroom and sat down, banging his gavel angrily.

  “Court is now in session. Ms. Winston? I believe you have a motion to make?”

  “Yes, Your Honor. I move for the immediate dismissal of the indictment for second degree murder true billed against Captain Mitchell on the grounds that the grand jury was misled and not informed about a fatal personal conflict of interest on the part of the District Attorney who brought the case. Specifically, malicious prosecution which constitutes prosecutorial misconduct during grand jury proceedings also constitutes valid grounds for attacking an indictment, and such indictment must be dismissed if the defendant has suffered actual prejudice or been the target of prosecutorial misconduct, which includes a prosecutor hiding a major personal conflict of interest. In this case…”