16 Souls

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.”

He pressed the #1 VHF radio button again and hit the transmit button himself.

“Approach, whoever I’m talking to… there’s no time for debate. I need the unplowed snow to slow me down and I need the length, and I need that ILS turned on right this second.”

“Ah, Twelve, roger, we’re doing it. It takes the ILS time to come on line.”

“Approach, it will take about five minutes I figure, for us to come around for a stabilized approach. Give me maximum on the runway lights, approach lights, the rabbit, and the VASI’s, all of it.”

“They may be snow covered, sir.”

“I know that. Please do it. All equipment clear?”

A brief pause marked the controller’s relay of the question which resulted in a quick response.

“Roger, Twelve, the tower advises the runway is clear of everything but snow. Turn right now, one eight zero, climb to and maintain eight thousand.”

“We’ll stay at seven thousand, Approach.”

“Roger… seven thousand. I’ll turn you for the intercept in about five miles.”

Ryan was looking at him with a feral expression and Marty glanced to his right long enough to acknowledge it.

“What, Ryan?”

“We’re burning fuel now from the left main, Marty. Our balance is going to be affected quickly.”

“We need five minutes. Do we have five minutes?”

“God, I hope so. You really think this will work?”

“Same answer. God, I hope so! But, yes, it’s what we both were missing. Who gives a rat’s ass what runway is formally open? We have emergency authority to land anywhere.”

“Can the gear take it? This is big landing gear! Maybe we should land gear up?”

“No. If the gear can’t handle it, we’ll still be decelerating on a very long runway with no dropoff at the end. Dammit, why didn’t I think of this before?”

“Regal Twelve, turn right now to a heading of three one zero, maintain seven thousand feet to intercept the localizer, and you’re of course cleared for the Cat 3 approach to Runway 36 R as requested. Be advised our ILS monitors are not indicating a stable signal yet.”

“We have it up here, and we’ve got GPS backup. We’re good.”

“The emergency equipment will be relocating from Runway Seven.”

“Roger.”

Marty carefully banked the 757 fifteen degrees to the right, holding the turn until on a 45 degree intercept for the final approach course. He could see the localizer coming alive and beginning to move across the screen, the artificially created horizontal situation indicator showing them rapidly approaching the centerline of the runway as projected out many miles by the instrument landing system transmitter. He began another bank to the right, and rolled out on centerline.

“Intercepting localizer.”

“How do you want to do this, Marty? As a monitored approach?”

“No time. I’ll hand fly. Read the radio altimeter all the way down and help me find the runway. We’ll lower the gear in three miles. Give me landing lights at two hundred feet.”

“Speed is two thirty, on the nose,” Ryan announced. “Flaps are still where we left them.”

“Got it. Bringing the combiner back down,” he said as he pulled the heads up display back into position in front of his eyes.

With both pilots used to approach speeds being somewhere between eighty to a hundred knots slower, the rapid approach of the normal descent point was startling, as if they were flying a high speed jet fighter instead of a lumbering transport.

“Give me the gear, now!” Marty called, realizing he was about to overrun the descent point. “Gear down, before landing checklist.”

Ryan responded immediately, the gear handle snapping down and the sound of the huge main landing gear and nose gear rumbling into place, followed by three green lights on the panel.

“Down and three green,”

“Before landing checklist,” Marty ordered, and Ryan began rapidly going through the sequence.

“Checklist complete, one thousand feet above, speed two thirty.”

“Roger.”

“You’re a bit above the glide slope!”

‘I know it. I’m going to stay in a right crab against this right crosswind until just over the runway, then I’ll kick it out and align us.” Marty’s hand pulled the two throttles back a bit more, his eyes darting between the attitude indicator, HSI, and airspeed as he gently lowered the nose to increase the rate of descent.

“Still one dot high on the glide slope,” Ryan called out.

“I know it.”

“Seven hundred above, two miles to go.”

“Gear and flaps rechecked down?” Marty asked.

“Gear down and locked, flaps just beyond ten degrees.”

Marty was working diligently to keep the speed on target at 230 while checking to make sure the deck angle of the 757 was at least two degrees nose up. The main gear had to touch first, but any flaring of the aircraft, and raising of the nose just over the runway, with such excessive speed would simply fly them back into the air. Yet the descent rate was just over twelve hundred feet per minute which would mean a very hard landing that the gear could probably take, but it would be a crunching arrival at best, and if too hard, the Beech fuselage would undoubtedly be broken loose.

“Five hundred feet, just over a mile. I’ve got some fuzzy lights ahead and the snowfall is decreasing.”

“Roger.”

“Three hundred feet. Half a dot high on the glide slope. Two hundred feet above, landing lights coming on.”

Ryan left hand had been resting on the landing lights and he snapped them on now, revealing a torrent of snow streaming past the windscreen.

“Approach lights in sight,” Ryan added, “…slightly to the left! One hundred feet”

Marty’s focus had been on the projected green numbers and lines in the combiner, but with the landing lights came the streaking snow and the faint glow of a sequenced line of strobes called the rabbit, as well as the white runway lights which were broadening and moving toward them like outstretched arms, the dark of the runway between them, suddenly illuminated by something that made no sense at first.

Two lights, just ahead, right in the middle of his intended touchdown and nowhere near the runway lights or any other rational explanation except that maybe there was still a snow plow on the runway and they were aiming right for it at over two hundred thirty knots!

Marty was still crabbing to the right and had just begun to push the left rudder while holding the right wing down, but suddenly the entire picture changed.

“Fifty feet, over the threshold,” Ryan said.

Time dilated in Marty’s mind, his left hand translating the only rational action which was to roll the aircraft back to the left enough to let the right main gear pass over what he could see now was slightly to the right of the runway centerline. He pulsed the yoke back slightly as he rolled left, with no time to explain to anyone, and when the lights of whatever was below had flashed beneath them with no feeling of impact, he began to move the yoke back, unprepared for the heavy gust of wind that was suddenly raising the right wing and rolling him much further left than he’d panned. A quick pulse to the right with the yoke wasn’t enough, and with growing horror he felt the left wingtip drag onto the runway surface, the drag pivoting the 757’s fuselage left as the left main gear crunched onto the runway partly sideways, followed by the right main gear, and now it was a frantic attempt to kick the aircraft back to the right and keep the right wing from contacting the runway, but every attempt to regain control was too little too late as the aircraft went fully sideways, rolling to the right, the right wing now skidding along the surface, the sound of tearing metal and impossibly confusing gyrations lasting for an eternity and exceeding anything he could influence as his world skidded along the snow covered surface shedding parts.

Marty’s consciousness returned to the courtroom. There were no sounds around him, all eyes looking in his direction, and his words still effectively echoing around the heads of everyone present.

He could see his attorney standing quietly by the defense table, watching him with a slightly stunned expression, and he was greatly relieved when she shook herself into motion and stepped forward.

“Thank you, Captain. I have a few more questions.”

He swallowed hard and nodded at her.

“When all the motion had ceased, what do you recall?”

He exhaled and shook his head. “It was pitch black and very cold and I heard sirens everywhere. We were on our right side… the cockpit section… and I didn’t know the fuselage had broken in two. Ryan was knocked out, but I could see he was breathing. I had no idea who was still with us, where anyone was, and I guess I blacked out before they pulled us out of the wreckage.”

“Captain, if no headlights had appeared in front of you, would the crash have happened?”

Richardson had shaken himself into action as well and was on his feet to object.

“Objection. Speculation.”

“Overruled, counsellor,” the judge replied. “I think this man is perhaps the most qualified individual in all Christendom to answer that. The witness may answer.”

“No, we would not have crashed. It was going to be a hard landing, but I could have kept it under control, and even if the Beech fuselage had detached at that point, they had a long, flat surface ahead in which to safely decelerate. So we would all have been okay.”

“So, Captain, the presence of those headlights was a material factor?”

“Yes. If I hadn’t needed to avoid that snowplow, or whatever it was, I would have been able to safely align the aircraft with the runway as I had started doing, and then using the snowpack to decelerate us.”

“Did your selection of 36 Right mean that there was an alternative to the two choices Mr. Butterfield had considered?”

“I’m sorry?”

“Mr. Butterfield, according to his testimony, said that there were essentially two choices that he had heard from you. One was to slow the aircraft to normal or near normal landing speed so as to be able to land on Runway Seven and stop before the drop-off to the east, and the second choice was to maintain your speed in the hope that the Beech fuselage and the occupants would not fall off the wing.”

“Yes.”

“So, in both your sat phone conversations with Mr. Butterfield, your choice was either to slow or maintain speed, but landing on Runway 7 was the only choice, correct?”

“That’s right. My idea about landing on Runway Three Six Right provided a third potential solution, and I knew it was the key to getting all of us down without anyone dying. I had been fixated… bore-sighted, so to speak… about landing on Runway Seven. So… yes, I made the decision to reject the course of action Butterfield wanted me to reject, if that makes sense.

“So you did not, in fact, knowingly do anything to cause the death of anyone.”

Richardson was on his feet again, this time sounding almost wounded.

“Objection, Your Honor, if that isn’t leading the witness, I don’t know what is!”

“Sustained. Counselor, rephrase the question.”

“Yes, Your Honor. Okay, Captain Mitchell, in choosing to land on Runway Three Six Right, did you knowingly do anything to cause the death of another human being?”

“Absolutely not!”

“No further questions.”

It was disturbing, Judith thought that Grant Richardson asked to delay his cross examination of Marty Mitchell. Obviously the defendant was going to be available the remainder of the trial, but it was the unknown strategy behind his request that concerned her.

Gonzales had approved a fifteen minute recess as Marty left the stand, yet it seemed like a mere heartbeat before everyone was back. There was only one remaining witness on Judith’s list, but this one, she figured, would be a considerable surprise to the jury, and indeed, the eyes of every juror went to the door of the courtroom as an attractive woman walking hesitantly with a cane moved with obvious pain and deliberation toward the front.

“Your Honor,” Judith said, “the defense calls Captain Michelle Whittier to the stand.”

Hyatt Regency Lounge

The small gathering in the hotel bar just after 6 pm consisted of Marty Mitchell and his legal team, and was supposed to have included the captain of Mountaineer 2612. But after testifying, Michelle Whittier had been thoroughly exhausted and begged off, her ride home provided by a chauffeured town car with Judith’s heartfelt appreciation.

“She’s in the middle of physical therapy, and as you saw, she’s struggling.”

“I thought she was wonderful,” Marty said.

Judith nodded in agreement. “She may not have contributed anything to the legal analysis, but she connected with the jurors big time. You agree, Joel?”

“Completely,” he responded. “All sixteen humans on that Beech were saved by this man’s refusal to just follow orders, and there was one of them in the flesh in that courtroom, a brave woman who would be dead and buried except for Captain Mitchell’s perseverance. In essence, what this jury needs to feel is that a vote to convict Marty here is a statement to that young woman that she should have been abandoned and killed. That’s powerful. Richardson took a hit with her, and you noticed his cross examination was respectful and essentially useless. To ask the jurors to reward Marty for saving her life and that of all the others by throwing him in prison is unspeakably horrific. By the way, was she the worst injured?”

“Yes,” Judith replied. “There was a neck injury to a male passenger caused by the collision, but the amazing thing was, when the 757 began to go sideways at that blazing speed, the Beech fuselage skidded off pretty much cleanly and rocketed right down the runway and it didn’t tumble. The Boeing actually went tumbling ahead of it. The Beech fuselage collided with part of the disintegrating right wing of the 757, or that would have been the only injury. Michelle would have walked away.”

“But she’ll make a complete recovery?” Joel asked.

“She was in a coma for two months. There was a massive concussion and a closed skull injury, and when she awoke, she couldn’t walk or talk coherently, so she’s made incredible progress and I’m told will eventually fly again.”

Judith could sense Joel was holding back a less optimistic analysis of the day for a private conversation later. She could see it in his eyes, despite the broad smile. But providing some much needed relief for Marty right now was more important, and she repeated her earlier compliments about his self-control, and the cool authority he had projected throughout the time on the stand.”

“So how are you feeling?” she asked Marty.

“I’m good. But how are we doing?”

Judith forced herself not to hesitate or glance at Joel. “I think we’re on target. Richardson will get a shot at you tomorrow or the next day, and he’ll have his whole team working on how to get a rise out of you, but just repeat today’s outstanding cool and we’re fine.”

When they had called it an evening and dispersed, Judith shoved the card key in her hotel room door and gratefully closed it behind her. Her smartphone had been buzzing with increasing urgency, but she’d suppressed the urge to pull it out until now. She kicked off the pumps that had begun to cause her real pain by the end of the afternoon, and read the screen. Three missed calls and an urgent text from her assistant.

Judith, I’ve been trying to reach you! I know you’ve got to be exhausted but there’s a reporter for the Denver Post about to break a very important story on Regal 12 and he’s been battering our door down to get to you.

A weary sigh accompanied her callback to her assistant’s cell phone.

He answered on the first ring with the name of the reporter.

“Okay,” she said, pushing her hair back and thinking about a hot bath and delighted there was a jetted tub even though she had yet to use it. “Please call Mr. Bogosian and inform him that I will not give any interviews on or off the record until… what?”

It was uncharacteristic for her assistant to interrupt her, but his voice was urgent.

“No, Judith. He doesn’t want an interview. He wants to give you information he says is vital to Captain Mitchel’s case.”

“Did he say what that information was? Could be a ploy.”

“Only that he’s been in the courtroom every day and although he’s not taking sides, whatever it is will be extremely important to a just decision.”

She snorted. “Who the hell talks about just decisions anymore?”

“His words, Judith. Not mine.”

She copied down Bogosian’s cell number and punched it in, noting the fact that he, too, answered on the first ring.

“I understand you want to talk to me, urgently, Mr. Bogosian? This is Judith Winston.”

“Where can we meet?”

She sighed. “Whoa, hold your horses! I’m… it’s been a very long day, and I’m already in my hotel room…”

“It’s not quite eight and I’m sure there’s a bar.”

“Yes… of course there’s a bar. There’s always a bar, and I just left it, but…”

“Please tell me the hotel and I’ll meet you in that bar in fifteen minutes.”

“Seriously? I have no idea who you really are or why you’re even calling.”

“Google me. I absolutely promise you it’s vitally important, what I have to tell you.”

“Okay, but… is this really necessary? Tonight, I mean? Can’t you tell me over the phone?”

“Yes, it’s very necessary and no, I need to talk to you in person, and tomorrow my story will be front page above the fold and I would feel very bad if you were blindsided.”

“Front page, huh? And this concerns Captain Mitchell’s prosecution?”

“Materially.”

“You understand I will not be giving you any information or interviews on or off the record?”

“Absolutely. I accept that ground rule. I’m the one doing the talking.”

“Alright, Mr. Bogosian. Hyatt Regency bar, then. Fifteen minutes.”