16 Souls

CHAPTER THIRTY

Present Day — September 3

The neatly dressed man in a crisp white shirt and well-cut blue suit was a far cry from the disheveled and disillusioned pilot who had plopped down in the firm’s main conference room months before with radioactive toxicity. That version of Marty Mitchell had been a study in smoldering anger and determined, martyred defeat. This version was ready for battle and, if not full of confidence, at least focused on what must be done. His fist-shaking rage atop the mountain had been a primal scream at the loss of his integrity, but without really wanting to admit it to himself, it had been Judith’s caring and determination that had restored the possibility of vindication… however remote. “When everything is black and you see a flicker of light, you follow it — no matter how far and faint it is,” he had explained.

And that, Judith Winston thought, looking at her client, was a significant victory, and something she could be proud of, however this mess turned out.

She hesitated for a second, watching him from across the office through the glassed walls of the conference room as she organized her thoughts. Since the Long’s Peak incident and the visits to his hospital room, the contentious barriers between them had slowly dissolved. Even last week’s meeting at the same conference table — a grueling all-day affair to go over every minute detail of the case, the crash, and the critical aspects of the upcoming trial — had been devoid of the fulminating anger at the system that had marked their early meetings. He was still unable to laugh easily — to shed the appearance of a man quietly spooked and ready to run. But at times she had managed to elicit a few genuine smiles.

Judith moved easily into the room, quietly pleased that Marty’s gentlemanly upbringing brought him to his feet as she motioned him back down.

“I… dusted off an old suit,” he said, a bit self-consciously.

“Doesn’t look old to me!” she replied, taking a more detailed look. “Perfect. Quite professional and right for the courtroom.”

“I thought about wearing my airline uniform,” he added.

“So did I,” she said, tilting her head. “I’m still mulling over whether that could be interpreted as somehow arrogant or inflammatory. Or it might just focus the jury on the gravity of the situation. You know, you’re not just someone they call a pilot. Here sits a uniformed airline captain with all his experience and gravitas. And, after all, Regal has yet to fire you, therefore it’s not misrepresentation.”

“Regal would be apoplectic.”

“Fuck ‘em.”

He hesitated, smiling slowly at her response. “So… bottom line… you’re not sure about me wearing the formal uniform?” Marty asked.

She sat down next to him in one of the high-backed leather swivel chairs.

“Frankly, no. Before we decide, though, I want to consult a friend who does big criminal cases. Actually, I’ve been consulting with her quite a bit to make sure I… don’t screw this up in any way.” A ripple of apprehension twittered down Judith’s spine at the thought that she’d just admitted what every aspect of her prior demeanor had been designed to refute: That criminal defense was neither her familiar territory not an area in which her confidence level was unassailably high. Self-doubt was one thing they both had in common.

“I appreciate that,” he said, looking down at the table where his fingers were drumming softly. He looked back up. “Judith, I know this is a stretch for you… not your native turf. And I know the damned judge wouldn’t let you withdraw from the case. ”

She started to protest that she was well prepared now, but something in his eyes told her it was unnecessary, and he’d already raised the palm of his hand to stop her.

“You’re a damn good corporate lawyer, which means you’re a damn good lawyer, period. You don’t need to say any more. I truly appreciate what you’re doing for me.”

“Thank you.”

He cleared his throat, as if to disavow the heartfelt nature of the statement.

“Speaking of the stupid judge, what happened this morning to our motions?”

She glanced past him for a second as if taking in what was happening in the reception area, then looked back.

“It’s more the damned DA than the judge, and of course Grant Richardson was there himself, full of restrained outrage at the mere idea that I would dare file a motion to quash the indictment, let alone a motion to dismiss.”

“I take it both were rejected?”

“Yes, but… the judge said something interesting, something that makes me think he isn’t rubber stamping the idea that criminal charges are legal in a case like this.”

Marty was leaning forward. “Tell me.”

“He said that, without reference to any future appeal, there was a societal interest in determining whether a purposeful act by a captain in discharging official duty constituted even a prima facie case of premeditation sufficient to support a murder charge. In other words, he gave voice to one of my main arguments, that the legislature never meant for the premeditated aspect of murder to include a captain’s decision. Richardson tried to bat it down, but it was there and on the record. It won’t stop the trial, but it’s very well written.”

“Is my union doing anything?”

Judith shook her head. “Just monitoring. Someone will be in the courtroom, and they’ll file a friend of the court brief, an “amicus” brief — if we lose and have to appeal. But they’re confused. This isn’t a case of prosecuting a pilot for making a mistake, which always lights a torch under their tails. This is alleging criminal responsibility because you knew the consequences if you didn’t slow down, and you decided not to slow down anyway. Where the union guys jump the track and glaze over is when we talk about Regal’s attempt to intimidate you. The DA says it doesn’t matter, and that this case is not about you following orders, because as a captain in an emergency you don’t have to. It’s about you having been provided the indisputable information of what would happen if you did Plan A versus Plan B, and, knowing the consequences, you still decided to go with Plan A. Since Plan A included a high probability of killing someone, that’s where the theory of premeditated or purposeful murder comes in.”

“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.”