16 Souls

CHAPTER THIRTY-FOUR

Present Day — September 10 — Day 5 of the trial

Courtroom 5D Lindsey-Flanigan Courthouse, Denver

The small procession of lawyers surrounding the defendant moved quickly down the corridor outside Courtroom 5D to a small conference room. TV and print media marked their progress with rolling cameras as Judith Winston leaned toward the uniformed airline captain to whisper something out of range of the reporters.

“Say absolutely nothing and keep an even expression and don’t engage anyone’s eyes!”

When the door had closed behind them, Marty Mitchell whirled and pointed to the courtroom.

“What… what the hell was that? When did my goddamned copilot decide to turn on me?”

“Marty,” Judith began.

“No! Seriously. Whiskey tango fox! I thought he was on my side, not out to help the fucking DA!”

“He IS on our side” she snapped, fitting the retort in between his angry sputterings.

“What do you mean, ‘he is’? He just sold me down the river!”

“Marty, please sit down. This is not a problem. This is not what it seems. The prosecution has presented their case-in-chief, and they called Borkowsky as a prosecution witness and only got the raw truth out of him. This is just the opening round of our defense, which is why I asked to preserve our right to reexamine him on cross, and why I re-called him now.”

The other three lawyers in the room were keeping their distance, their mouths shut, two of them wide-eyed as they, too, tried to see as a good thing any aspect of the previous ten minutes in which First Officer Ryan Borkowsky had testified that his captain knew people would die if Flight 12 wasn’t slowed before landing.

Marty slowly slid down in one of the chairs, his eyes on his lawyer in disbelief.

“Am I not getting this correctly, Judith? Isn’t that F’ing bastard of a DA trying to convince the jury that I knew people would die if I didn’t slow down, and isn’t that the basic criteria for conviction, and correct me if I’m wrong, but didn’t that sniveling little scone-chomping weasel just say precisely what Richardson wanted to hear? Basically, I’m screwed!”

She bit her lip and fixed him with a steady gaze and the hint of a smile.

“No, you’re not. Marty, do you trust me?”

His eyes flared, but the quick and angry retort that would have flown at her like a shotgun blast a month before was a hang-fire, and his jaw moved up and down a few times before he shook his head ‘no,’ while saying ‘yes’.

“Yes… I do trust you. But… what the hell am I missing?”

“I can’t tell you why just yet, but this is unfolding precisely as I would have designed it.”

“Judith… how? Didn’t he just throw me under the bus, for want of a better cliché?”

“He answered my questions correctly and honestly and, thank God, didn’t embellish. I asked if you were aware of the company’s statement that if you two didn’t slow down significantly for landing on Runway Seven, people would be killed. He said yes. I asked him to explain how he knew this, and he told us about the satellite phone call, how he had the sat phone button up on his interphone panel so he was hearing both sides. He testified about Butterfield pushing you hard, and he said it was crystal clear to both of you what Butterfield and the company were saying and what it meant.”

“That if I didn’t slow down…”

“That if you didn’t slow down during a landing approach for a fully plowed Runway Seven…”

“Yeah, Butterfield himself said that yesterday, but I didn’t expect a rubber stamp from Borkowsky!”

“It’s okay, Marty.”

“And this helps me how?”

Judith could see two of the other three lawyers leaning forward ever so slightly to hear the same explanation Marty was seeking. The third, a veteran criminal defense lawyer, was keeping an even expression but as Judith expected, not in need of an answer he already knew.

“It helps us, Marty, because in the end, the fact that you understood what Butterfield was saying is immaterial, and Richardson’s entire case hinges on it being material.”

Marty’s head went down as he exhaled loudly, his hands thrown up in frustration.

“I… shouldn’t even try to follow this insanity.”

“Again, Marty, trust me! Seriously!”

He was nodding, his expression grim. “I do, I will, but good Lord I don’t understand this. I thought criminal defense was supposed to be straightforward, and here I am with my life hanging in the balance and I find out it’s nothing but a fucking game!”

“I know it seems that way, and maybe it is to a certain extent, but it’s the best method we’ve come up with to try to get at the truth.”

He looked up, a sarcastic expression painting his features. “Yeah, and they can’t handle the truth, right?”

“Marty, they can’t handle the truth because they don’t know what it is. We do.”

Judith sighed as she checked her watch. “Okay, everyone hit the restrooms and let’s get back in there. Poker faces in place. Borkowsky is still my witness for cross. No talking on the way in. Everyone… especially Marty… did good walking down here. Please give me a repeat performance.”

The senior partners had promised Judith Winston the best support possible to defend a major criminal case, and the lynchpin of that support had come early in the trial preparation in the welcome form of a veteran criminal defense lawyer who also happened to be an old friend from her early days of practice.

Joel Kravitz, in his seventies, gave the visual impression of being ten years older, his craggy features, gravelly voice, and slightly stooped posture masking a razor-sharp mind that had navigated a half-century of criminal law. When Joel Kravitz and Judith were alone in the room, she looked at him the way an advanced student checks a beloved professor after a presentation.

“What do you think?” she asked.

He exhaled and inclined his head. “The basic plan, Judith is reasonably sound. But what you must do, without question, is convince that jury — or at least one of them — that in fact the airline was wrong about slowing down being the only way. You’re right, of course. Richardson is going for a straightforward kill on the statute. He’s not expecting this tactic. He’s so disgustingly angry… I can tell… he’s left himself open to a mistake like this.”

“His mistake?”

“Yes. Of course. But don’t get cocky. This is still a long shot and that jury will be more inclined to buy Richardson’s binary argument than follow your more complex reasoning.”

“God, I wish we knew, and could explain, how Marty lost control and dug a wingtip.”

“Speed had nothing to do with causing that. Well, I mean, I’m no flyboy, but the research does show that despite Butterfield’s statements, there was, in fact, a credible chance he could have made it, primarily because two thousand feet of Runway Seven had not been plowed further and would have provided back-door braking. That changed the equation. That uncertainty is a tiny thread, admittedly, but it’s sound.”

“So, you’re happy?”

He snorted, a twisted smile on his craggy face.

“HELL no! I’m never happy until double jeopardy attaches and my defendant is acquitted. Then I’m not happy ‘til I’m paid.”

“You’re a curmudgeon, Joel!” she teased.

“And that’s why you love me!” he replied.