16 Souls

CHAPTER FORTY

Present Day — September 14 — Day Seven of the trial

Courtroom 5D, Lindsey-Flanigan Courthouse, Denver

Aside from the very real possibility that his exclusive story about William Jantzen and the crash of Regal 12 might result in the offer of a full-time position with the Post, Scott Bogosian realized he had developed a proprietary attachment to the trial of Captain Mitchell. Try as he might to avoid taking sides, he was sliding into Mitchell’s camp and developing a serious dislike for the district attorney. Treating an inadvertent airline tragedy as a criminal act was, to him at least, patently ridiculous.

Scott sat now in the gallery of the courtroom, watching preparations for what might be one of the last days of the trial as Grant Richardson got to his feet to re-call Captain Mitchell to the stand.

It had been a shock, Scott recalled, to see the airline captain in full uniform on the first day of the proceedings. He had thought it pretentious at first, but now the idea that Marty Mitchell the man could be separated from Captain Mitchell, the pilot in command of Regal 12, made little sense. In effect, they were trying the captain of a ship, not an individual, and that was the pivot point for the furious response of most airline people.

Marty adjusted himself in the witness chair again, feeling far more settled than he expected as the enemy walked toward him.

“Captain Mitchell, I just have a few followup questions,” Richardson began, an unctuous smile on his face.

Rather like an open-mouthed rattlesnake getting ready to strike, Marty thought. The image was amusing and also somewhat calming.

“Why, Mr. Mitchell, did you abort the landing on Runway 7?”

Judith was on her feet.

“Objection. Asked and answered.”

“Sustained,” the judge replied.

Richardson was unfazed.

“Very well, let me ask it this way. Is it true, Mr. Mitchell, that a primary reason you elected to abort the landing on Runway Seven was because of your concern over the combination of a two hundred and thirty knot landing speed against the useable length of that runway and with consideration of the severe drop-off at the eastern end?”

“That was… those were major considerations, yes.”

“Were you worried about damaging the airplane?”

“I don’t understand the question.”

“Well, was your primary concern about the speed and the length and the drop-off that if things didn’t go just right, the airplane might be damaged? Was that your primary concern?”

“Of course not.”

“A yes or no will suffice.”

“No.”

“Very well. Was your primary concern in aborting the landing on Runway Seven the safety of your passengers, including the people on your right wing?”

“Yes.”

“Did you then decide to land on Runway Three Six Right because it would run a lower risk of injury to your passengers, including the sixteen on the right wing?”

“Yes.”

“The primary component of your concern… the reason this wouldn’t be a normal landing… was the excessive airspeed?”

“Well, I was trying not to kill the people on the right wing.”

“Understood, Mr. Mitchell, but…”

“Objection, Your Honor,” Judith interjected. “May we have a sidebar and approach?”

Richardson shrugged and the judge motioned them forward.

“Go ahead, Ms. Winston.”

“Judge, there is a level of purposeful disrespect for the witness in refusing to address him by his title of ‘captain.’ This trial, and the charges leveled by this district attorney, wholly concern his official conduct as a captain, and Mr. Richardson’s tactic of addressing him as ‘mister’ is a calculated ploy to negatively influence the jury by heaping scorn on the witness. I move that the court forbid it.”

“Judge,” Richardson answered, shaking his head, “Mr. Mitchell is a citizen like all of us. His rank is not military, nor governmental, such as would be the case if he were an ambassador or senator statutorily entitled to the use of a title. ‘captain’ is merely a commercial title. Indeed, even the FAA does not use the term ‘captain,’ they use ‘pilot in command.’ He is not charged with a crime his airline committed, he is charged with personally committing a crime. Ms. Winston’s motion should be denied.”

Gonzales sighed and rolled his eyes. “Counselors, this amounts to squabbling and I don’t appreciate squabbles in my court. But, Ms. Winston is correct. Mr. Richardson, have you ever used the suffix “esq” after your name to designate that you’re a lawyer?”

“Ah… yes, Your Honor, but what does…”

“So have I, and that is not a statutorily imposed requirement. You will address Captain Mitchell as Captain Mitchell, because this action is inextricably intertwined with the essence of this professional position. Proceed.”

“Captain Mitchell, is it true that with or without the fuselage on your right wing, the primary element which made any landing more risky was the excessive airspeed of two hundred thirty knots?”

“Yes.”

“And you chose Runway Three Six Right to lessen the detrimental effect of that airspeed?”

“Yes.”

“Could you guarantee that even on Runway Three Six Right that excessive airspeed would not magnify, or make far more lethal, anything else that might go wrong?”

“No.”

“So, whether there was a car in front of you on Three Six Right or not, the excessive speed put everyone at greater risk?”

“Technically, yes.”

“Wasn’t the excessive speed the essence of what Mr. Butterfield and your airline were trying to warn you about?”

“Yes, for Runway Seven.”

“But, you just stated, did you not, that it was the excessive speed that would be a problem for any runway?”

“It would raise the risk.”

“For instance, it could cause tires to explode.”

“Well, the tires are good to two hundred twenty-five knots and this was a cold surface, so, no, the tires were not a problem.”

“But if anything went wrong, excessive speed raises the risks.”

“Yes.”

“And you said the risk you were worried about was not the risk of damaging the aircraft, but the risk of hurting someone, correct?”

“Yes.”

“Including the risk of killing someone?”

“Yes.”

“And although you speculated and were using your best guesswork, you in fact had no way of knowing at what speed or angle of attack you might lose the fuselage of Mountaineer Twenty-Six Twelve, correct?”

“That’s correct.”

“So, therefore, you could not guarantee that slowing to a normal approach speed would or would not result in the loss of anyone in the Beech fuselage, correct?”

“No, but I had to use my best judgment that it would.”

“But you didn’t know for an aerodynamic and structural certainty, did you?”

“No.”

“And approaching Runway Seven and then deciding to land on runway Three Six Right were volitional decisions?”

“Excuse me?”

“You made the decision to land on Runway Seven, and you made the decision to change and land on Three Six Right, is that correct?”

“Yes.”

“Stated another way, you knowingly made the decision to land on both runways.”

“Yes.”

“You knowingly made the decision to land on Runway Three Six Right even though the excessive airspeed of two hundred thirty knots could result in deaths?”

“I made the decision to minimize the possibility of hurting or killing anyone.”

“Yes, or no, Captain Mitchell?”

“I… what?”

“Let me re-state the question. Knowing full well that the key problem was the excessive airspeed of two hundred thirty knots and that such airspeed could result in the death of at least one passenger, you nevertheless knowingly decided to use that airspeed on landing on Runway Seven and then on Runway Three Six Right. Yes or no?”

“You’re trying to twist this around…”

Richardson turned the judge, obviously having waited for this moment.

“Your Honor, the witness is being unresponsive. Would you please direct him to answer the question?”

Judge Gonzales turned his head toward Marty and nodded. “Captain Mitchell, you will answer the question with either a yes or a no.”

Marty met the judge’s gaze, seeing a weariness there as he tried to make a decision on how far to push. He knew precisely what Richardson was trying to do, using the word “knowingly” right out of the statute. But how would the jury view a refusal to play the game? The complexity of the legal question surrounding that statute was beyond his understanding, so did it really matter?

Nevertheless, allowing himself to be cornered was simply not in his nature.

“My answer is ‘no’,” Marty said.

Richardson looked confused. “Captain, how can you answer no when you already told the court that you were aware that excessive speed was the primary concern regardless of where you landed and that excessive speed raised the possibility of killing someone?”

“The answer to your question is no,” he tried again. “Would you like me to explain?”

“I ask the questions here, Captain, in a cross examination, and I did not ask you for an explanation.”

Once again Judith sprang to her feet. “Objection, Your Honor. He just got through asking the witness for a subjective response as to his reasoning for answering ‘no.’ Now he’s being argumentative, and he wants to stifle that explanation!”

“Sustained,” Gonzalez replied. “Mr. Richardson, either withdraw the question or permit the witness to answer fully.”

Richardson nodded, his face betraying annoyance as he paced a few steps to one side and then addressed Marty once more.

“I withdraw the question.”

Grant Richardson paused, papers in hand, looking for the best method of salvaging what had been building to be a final self-incriminating ‘yes’ from the defendant. But after the ‘no,’ to spar with him further would merely defuse the effect and probably bore the jury.

“No further questions, Your Honor.”

“Ms. Winston?” the judge began, “have you any further questions?”

She rose, glancing first at Joel then at Marty as she walked toward him.

“Just one re-direct, Your Honor.”

“Proceed.”

“Captain Mitchell, did you at any time, inclusive of your decision to land on any runway, knowingly take any action that would be reasonably expected to result in the death of anyone?”

“Absolutely not!” Marty answered, “I was doing everything I could to save all lives, not hurt anyone.”

“Thank you, Captain.” She turned to the bench. “No further questions.”

Marty stepped down and returned to the defense table feeling painfully self-conscious and embarrassed, as if he’d been intellectually shown to be an idiot by a superior speaking a foreign language. He knew he’d been tripped up by Richardson, but the ‘how’ of it was eluding him.

Judith motioned him to stay quiet as she conferred with Joel for a few seconds, then got to her feet.

“Your Honor, the defense rests.”