16 Souls

CHAPTER THIRTY-SIX

Present Day — September 10 — Day Five of the trial

Courtroom 5D, Lindsey-Flanigan Courthouse, Denver

“All rise.”

The familiar tones of the bailiff presaged the entrance of Judge Gonzalez who mounted the bench somewhat ponderously and then scanned the courtroom to assure himself everyone was in place.

“All right, Counsel, before I bring the jury back, any motions, objections, or temper tantrums?”

A few people in the galley chuckled and Gonzales smiled at them before ordering the twelve jurors readmitted.

Judith watched with an even expression, ever so slightly relieved. She had expected a rancid attitude toward her from Gonzales after his boorish conduct earlier in the year, but he had been a gentleman in the courtroom, and seemed openly respectful of her as well as the district attorney. Judith, however, was not about to drop her guard.

“Call the witness please, Counsel,” Gonzalez directed, looking at Judith.

“I re-call First Officer Ryan Borkowsky.”

Borkowsky got to his feet, looking as rattled as before, and climbed back into the witness box carefully avoiding Marty’s gaze.

“You realize you are still under oath, Mr. Borkowsky?” Judge Gonzalez asked.

“Yes, sir.”

Judith took her time approaching the witness stand, a sheaf of papers in her hand as she consulted first one, then another.

“Mr. Borkowsky, after overhearing the conversation by satellite phone between Mr. Butterfield and Captain Mitchell, did you provide any advice to the captain regarding the speed to use on landing?”

Richardson was on his feet instantly.

“Objection, your honor. She’s testifying.”

Judith was shaking her head. “No, your honor, I am not suggesting an answer or testifying through that question. He was the first officer, the second in command. He overheard a conversation in which his company was essentially ordering their flight crew to do certain things regarding airspeed. The captain had clearly been resistant to those suggestions from the company. It would be appropriate for a first officer to offer an opinion or advice to the captain following such an exchange. I am merely asking if such a communication occurred. And, may I remind Mr. Richardson that Mr. Borkowsky is his witness, and this is cross-examination, which means I can ask leading questions.”

Grant Richardson was standing beside her now, making his case with equal force that the question the defense attorney was asking presupposed that advice was required. Judge Gonzalez raised his hand in a stop gesture, his ruling surprising Judith who was already working on an alternate query. Richardson seemed equally surprised.

“Objection overruled. Ms. Winston, you may proceed.”

“Thank you, Your Honor,” she replied, turning back to the witness. “First Officer Borkowsky, did you offer the captain any advice or recommendation regarding the speed to be used on landing subsequent to the satellite phone call between the captain and the company?”

“Yes.”

“Would you tell the court and the jury what that advice or recommendation was?”

“I told the captain we should slow for landing.”

“And it is your testimony that you provided that advice after the satellite call between Mr. Butterfield and Captain Mitchell?”

“Yes.”

“Not before, but after?”

Richardson was standing again. “Objection! Asked and answered.”

“Withdrawn,” Judith replied smoothly, stepping closer to Ryan, her eyes going over the papers in her hand and a puzzled expression on her face.

“Sir, I don’t see any such advice on the NTSB transcript.”

Grant Richardson leapt to his feet again, his voice pained.

“Your honor, I object! Now she is testifying!”

Judith had her hand in the air. “I’ll rephrase the question.”

“Continue,” Gonzales added.

“Let the record read that I am now showing opposing counsel, and the witness, defense exhibit E, the transcript released as public information by the National Transportation Safety Board of the cockpit voice recorder. Mr. Borkowsky, this is from the top of page fifty-three, lines 18 through 21, I am going to read out loud for the jury and I’d like you to follow along. Okay?”

“Yes, ma’am.”

“Captain: You okay for a few more minutes, Ryan? I need to talk to the company. First Officer: Yeah. I’m getting used to her now. We’re gonna slow for landing, right?”

Judith paced for a few seconds before looking back at the first officer.

“Mr. Borkowsky, you testified that you advised the captain to slow down after the satellite phone call between Mr. Butterfield and your captain. Does the exchange I just read from the cockpit voice recorder contain advice?”

“I’m… sorry?” Borkowsky was looking trapped, and his expression morphed into frustration.

“I’m trying to understand if the question, ‘We’re gonna slow for landing, right?’ is advice you provided the captain.”

“Yes.”

“But that was not the advice you testified you gave after the satellite call, is it?”

“Yes, it is! That was the advice!” his voice was rising in volume and tone, his right hand flailing the air. “I didn’t have to… to give him a formal statement! We know what each other means in the cockpit.”

“So, Mr. Borkowsky, the only advice you gave the captain was the phrase I just read from the CVR transcript?”

“Yes, I think so,” Borkowsky sighed, shrugging his shoulders.

“But you testified, did you not, that you gave advice on slowing down after the satellite call, correct?”

“Objection, Your Honor! She’s badgering the witness.”

“Overruled, counselor!”

“Mr. Borkowsky?” Judith said.

“That WAS the advice! I said so. This is ridiculous!”

Judith suppressed the smile she would normally have displayed at the very outburst she was hoping for.

The first officer looked like he was going to bolt in terror. At the defense table, Marty had turned to one of the lawyers with an incredulous look which deepened when the younger attorney shrugged his shoulders.

Judith was approaching the first officer again, her eyes boring into his.

“The statement I read is merely a question and not an advisement?”

“No! It was advice. I mean it was obvious I meant he should slow.”

“Were you afraid of Captain Mitchell?”

“No! Not at all.”

“Do you consider him a tough captain?”

“No.”

“Was he difficult to talk to?”

“No! I mean, he’s a bit stiff and disapproving sometimes, but we got along just fine.”

“Did you elect, that day, in that emergency, to give advice in the form of a question because you were concerned he might not like what you had to say?”

“No. I could tell him anything.”

“Was it important that he slow down for landing?”

“Yes.”

“If the speed on landing was important, and if you were not afraid of Captain Mitchell, and if he was not hard to talk to, and if you could ‘tell him anything,’ and if the both of you got along ‘just fine,’ why, Mr. Borkowsky, have you been unable to direct the court’s attention to any evidence attributed to you that would have constituted a recommendation to slow down for landing, instead of a question?”

“I… knew he was thinking it through.”

“Mr. Borkowsky, I am handing you the aforementioned defense exhibit E, and I call opposing counsel’s attention to page 116, line 25. At that point in the CVR transcript, as I have tabbed it, the satellite conversation between Mr. Butterfield and Captain Mitchell begins. Do you see that?”

“Yes, ma’am.”

“Yet the phrase I read, and which you testified constituted your advice to the captain to slow down, appears on the same CVR transcript at page 53, as I previously indicated.”

“Your Honor,” Richardson interjected, “Objection! Is there a question in there somewhere?”

“Ask your question, Ms. Winston.”

“Yes, Your Honor.”

Judith’s mind was racing through the tutorials Joel had given her, and chief among them was to never start a question with ‘isn’t it true,’ although that was what she dearly wanted to lead with next. She sighed internally and turned back to the witness.

“Mr. Borkowsky, it was your testimony that you did provide such advice subsequent… in other words, after… the satellite call?”

A worried expression passed over Ryan Borkowsky’s features as he sensed a trap he couldn’t find. “Yes.”

“Then, could you explain, sir, why the transcription of the question that you asked of the captain — the question that you say constituted advice subsequent to the satellite call — can you explain why that begins on page fifty-three of the same transcript, some sixty-three pages and a considerable amount of time before the satellite call?”

“I… ah… I thought it was before but… I guess I was wrong.”

“In fact, you did not advise the captain to slow down for landing subsequent to Butterfield’s satellite call.”

“No ma’am. I’m sorry… I mixed up the sequence.”

“Mr. Borkowsky, maybe I haven’t been as clear as I could have been with my questions. I apologize. I’ll try my best to be more specific. It’s your testimony today that you provided advice to the captain in the form of a single question that was asked before the satellite call.”

“Yes.”

“Why did you not advise the captain to slow down after that call?”

“I… I don’t know. I mean, there were other choices.”

“Other choices for how to land and where to land?”

“Yes.”

“Did the company’s advice regarding speed cover all possibilities that you and Captain Mitchell considered?”

The shadow of relief appeared on Ryan Borkowsky’s face as he appeared to re-inflate, squaring his shoulders slightly and coming out of the defensive slouch that had characterized his last fifteen minutes on the stand.

“No. Butterfield was concentrating on just Runway Seven, and I was too, but Marty… Captain Mitchell… was thinking beyond that.”

“So, the company’s advice between slowing down for Runway Seven, or risking death and serious injury on Runway Seven in particular if you didn’t slow down, that binary choice did not include any other runways?”

Borkowsky’s head was suddenly on a swivel as he looked at the judge, looked at Judith, and then, for the first time, looked at Marty before answering.

“Yes. That’s exactly right. We had other choices.”

“Choices that might not automatically result in anyone’s death?”

“Yes.”

“Choices that your company had not considered?”

“Yes.”

“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.”