16 Souls

CHAPTER FORTY-THREE

Present Day — September 15 — Day Eight of the trial

Courtroom 5D, Lindsey-Flanigan Courthouse, Denver

The urgent request from the defense to bring Judge Gonzales back to the bench in open court had been met with an irritated order to assemble both legal teams in his chambers. The rancid memory of the last time she had entered Gonzales’ small office flashed in high definition across her mind as Richardson came through the door angry to be summoned back to the courthouse without a verdict. Judith looked at the district attorney, surprised to feel a tinge of pity for the man, if not for his love and his loss and the impending destruction of his career, then for the seismic shock she was about to deliver.

Carl Moscone was waiting in the same conference room, out of sight, but available if needed.

“All right, Counsellors, what’s so urgent?” the judge said, settling his considerable bulk behind his desk.

“Your Honor,” Judith began, “…we are prepared to move in open court for the dismissal of the indictment against Captain Mitchell on the grounds of prosecutorial misconduct and prejudice.”

Both Judge Gonzales and Grant Richardson looked at Judith as if she’d lost it.

“What are you talking about, Ms. Winston?” the judge asked.

“I would prefer to present this in open court on the record, Your Honor.”

“That may be your wish, but I want to know what the hell you’re talking about?”

Judith glanced at Richardson who still had no clue.

“Just after you sent the jury out to deliberate, Your Honor, I was approached by a prominent member of the community with information based on firsthand knowledge that explains Mr. Richardson’s vehement and puzzling prosecution of Captain Mitchell. This information constitutes grounds for immediate dismissal of the indictment.”

“And what, Ms. Winston, would that information be?”

“That the hidden and undisclosed impetus for this prosecution was the death aboard Regal Airlines Flight 12 of Ms. Victoria Moscone, and the fact that Mrs. Moscone and Grant Richardson had been involved in a long term and ongoing romantic and sexual relationship for many years.”

‘WHAT?” Richardson snapped, his eyes suddenly wide. “Who the hell made that allegation?”

She turned to bore her eyes into his, speaking slowly.

“Mr. Carl Moscone, who, by the way, is here in the courthouse waiting for an opportunity to testify under oath if necessary.”

Gonzales sat back in his chair as if trying to widen the scope of his vision as he looked at Richardson, who was trying not to stammer.

“Is this true, Mr. District Attorney?”

“Judge,” Richardson began, but Gonzales raised a hand to stop him, sitting forward suddenly, his eyes narrowing. “Be… very… careful, counselor, with your next statements and answers. I will jail you on criminal contempt if you lie to me, is that understood? Clearly?”

“Yes, Your Honor. Of course.”

“Did you have a romantic and sexual relationship with Victoria Moscone, who perished in the crash of Regal Twelve?”

Grant Richardson’s shoulders slumped ever so slightly as he exhaled and nodded. “Yes, but that did not…”

“That’s enough!” the judge snapped. “We’re re-convening in open court immediately.”

Ten minutes later, with Marty and the defense team as well as the prosecution team back in court, and the court recorder in position, Judge Gonzales entered the courtroom and sat down, banging his gavel angrily.

“Court is now in session. Ms. Winston? I believe you have a motion to make?”

“Yes, Your Honor. I move for the immediate dismissal of the indictment for second degree murder true billed against Captain Mitchell on the grounds that the grand jury was misled and not informed about a fatal personal conflict of interest on the part of the District Attorney who brought the case. Specifically, malicious prosecution which constitutes prosecutorial misconduct during grand jury proceedings also constitutes valid grounds for attacking an indictment, and such indictment must be dismissed if the defendant has suffered actual prejudice or been the target of prosecutorial misconduct, which includes a prosecutor hiding a major personal conflict of interest. In this case…”

Grant Richardson was on his feet, his interruption totally unexpected.

“Your Honor, the State moves at this time for dismissal of the indictment and all charges against Captain Mitchell.”

The bailiff entered quietly and passed a note to the judge, who looked at it and shook his head.

“Hold everything and everyone in place,” the judge instructed. Nodding, the bailiff scurried from the courtroom as Gonzales returned his gaze to Richardson.

“Counselor, do I understand you to be moving on behalf of the State to do precisely what Ms. Winston is requesting?”

“Yes, Your Honor.”

“And, I presume, your intention is to obviate the necessity of Ms. Winston presenting her evidence for quashing the indictment and dismissing this circus?”

“Ah… yes, Your Honor… in essence, her testimony is not needed.”

“To the contrary, Mr. District Attorney. I am taking your motion under advisement until I hear all applicable evidence from Ms. Winston and any witnesses she cares to present.”

The expression on Grant Richardson’s face was ashen. His last, best ploy to prevent the nightmare of public disclosure of his infidelities was taking precedent over any concern about malicious prosecution of a mere airline pilot, and he jerked around to see whether Carl Moscone was already in the courtroom, unaware Moscone was waiting just down the corridor.

“You may proceed, Ms. Winston,” Gonzales ordered.

The temptation to point and screech at Richardson for all the hell he’d caused was not easy to resist, but Judith had always prided herself on a professional demeanor under fire. She calmly finished laying the legal grounds for dismissal of the indictment before proceeding to the very thing Grant Richardson was desperate to avoid: repetition of what had been said in the judge’s chambers.

But there it was, at last, on the public record, and sure to be the lead story on the evening news.

“I therefore request immediate dismissal of the indictment, and of the charges against Captain Mitchell,” Judith said.

Gonzales shifted his gaze to Richardson, who was standing by the prosecution table breathing hard.

“Do you have anything to say or add, Mr. Richardson?”

“No, Your Honor, other than… no. Just no.”

“Well, Counselors, I have a bit of a dilemma, because the note I received several minutes back was from the jury foreman informing me that they have reached a unanimous verdict. I, of course, do not yet know what that verdict is, but I now have a difficult choice. I can agree with Ms. Winston and dismiss the indictment and run the risk for Captain Mitchell that someone in the DA’s office who did not lose a girlfriend aboard Flight Twelve will re-file the charges. I can do so and run the risk of being overturned by the appeals court on the ground that the prosecutorial misconduct was not sufficiently severe or prejudicial. I can table both motions and reassemble the jury and hear their verdict, in which case if it’s an acquittal there is no need to dismiss because double jeopardy protection eliminates any chance of re-trial. However, if they have reached a guilty verdict, then I am faced with whether to set aside the verdict and dismiss the indictment, or let the verdict stand and assume Ms. Winston will appeal.”

“For the record, Your Honor, the defense would request a dismissal as moved,” Judith added.

“Understood, Ms. Winston. And I also have the state’s request for dismissal, which I will not allow to be withdrawn as of this moment. But first I have to say, Mr. Richardson, I am going to file charges against you in front of the state bar for grossly unethical conduct. You, sir, have utterly wasted the time of this court and twisted and violated your oath to faithfully discharge your duties to the public, and materially harmed the man you indicted out of obvious personal animus and anger. I can’t recall a case of such unforgivable misconduct.”

“I offer my humble apology, Your Honor.”

“Well, sir, for the damned record, that is not accepted.”

Judge Gonzales sighed heavily, his eyes going to Marty for a second.

“Very well. First, the State’s motion to dismiss is granted with prejudice. I do not need to hear from Mr. Moscone since Mr. Richardson has already admitted to having had an intimate affair with Mrs. Moscone, who was killed in the subject crash, and whose death has propelled this ill-conceived prosecution. Secondly, this court agrees with the premise that the law relating to second degree murder has been illicitly used in this case, and I would hope the Colorado legislature will correct the ability of anyone in the future to misuse that statute in the way it was misused in this case. Thirdly, this court formally apologizes to Captain Mitchell. All charges are hereby vacated, and you, sir, are free to go. Now, bailiff, please clear the courtroom so I can bring the jury back to thank and dismiss them.”

It was Joel Kravitz who touched Judith’s arm in the corridor outside the courtroom, alerting her that the bailiff was standing and waiting for an opening.

“Ms. Winston, the judge would like a word with you in chambers.”

“Called to the principal’s office again!” she said with a smile directed at Joel. “Marty? Joel? Please wait for me. We at least need a debrief at the nearest bar.”

She followed the bailiff down the familiar hallway, surprised to find Judge Gonzales standing in an open doorway waiting.

“Judge?”

He reached out and took her hand. “Two things, counsellor. One, I want to apologize for my… shall we say less than gentlemanly demeanor when you visited me several months back wanting off this case. I… admit I had a bone in my throat and you walked into my gunsights. Second, though, I am very glad I was angry enough to refuse to let you off the hook, because you did an excellent job with this case. Really superlative.”

“Thank you, Judge.”

“This has been a very strange case, but we could use a lot more of your type of well prepared, intelligent, professional demeanor in criminal matters.”

“I appreciate it, but this has been a struggle I don’t think I want to repeat. I plan to slip quietly back to my corporate practice and only litigate traffic tickets.”

He chuckled, then fell silent for a second. “Too bad about Richardson. He’s a good litigator, but this will be the end of the line for him.”

“Indeed.”

“So, what’s next for your client? Will this free him to fly again?”

Judith shook her head. “We don’t know. He’s still on unpaid leave, and the National Transportation Safety Board hearing is coming up in three weeks. It’s not to set blame, but the findings will probably determine whether Mitchell gets his job back.”

“Well, I wish the man well. What a horrible dilemma.”

“Thank you, Judge,” she said, reclaiming her hand and turning to go, then turning back.

“I… don’t suppose I should ask you what the verdict was?” she said, eyebrows raised.

“I don’t suppose you should,” he smiled.