Marine One

19

WE DROVE TO Hackett's office early in the morning so we could get set up for the deposition. His Washington offices were spectacular, just like his offices in New York, Los Angeles, and San Francisco. He had a paneled, corner office at each location, surrounded by those of numerous associates who ran his cases day to day. He had no partners. That would require sharing his profits.

He'd fly in on his Gulfstream and set up shop for a day or two at each office each month, but his primary office, his home base, was still in New York. Since the crash of Marine One he'd spent most of his time in Washington. He had increased his staff, hired a couple of additional attorneys, and taken on a well-known woman to handle the PR. Her job description must have been to get him on the front page every week. She issued written statements from him on everything. Every time the NTSB said anything, every time WorldCopter said anything, every time a document was filed with the court, every time there was a hearing, the press always got his opinion in a faxed, professionally prepared statement, which was usually quoted word for word.

Knowing all that, I should have anticipated what Hackett did next. When we arrived at his office and were ushered into the gorgeous conference room, sitting around the table and against the walls were at least ten reporters with their notepads ready and "gotcha" looks on their faces.

I tried not to say anything right away. I shook Hackett's powerful hand, as did Rachel, then the hands of the other three attorneys who sat by him. Rachel and I sat down and put down our heavy litigation bags. After we exchanged superficial pleasantries, I asked Hackett, "Who invited the press?"

"Well, obviously since you didn't, and we're the only two parties coming to this deposition, I must have. Did you really think someone else might have?"

"I just like to confirm things. I thought maybe they had offices here."

Hackett smiled. "The press calls me all the time, just as I'm sure they call you. Unlike you, I answer them because I have nothing to hide. They asked me what was happening next in the case, and I told them about this deposition. They asked if they could come, and I said of course. Depositions are open to the public. So unless you obtain an order from the court before the start time of this deposition-ten minutes according to my watch-they'll be here. You set this deposition for nine o'clock. Mrs. Collins is here, the court reporter is here, and I'm here. So we're ready to begin. If you find the presence of the press and the scrutiny of your case intolerable and want to try to exclude them, you will have missed your chance to take Mrs. Collins's deposition and you won't get another. Now, are you ready to begin?"

Hackett loved gamesmanship. I wasn't going to let him or his scheming distract me. I sat down, opened my notebook, looked at the court reporter, and said, "Swear the witness." I looked at Melissa Collins carefully for the first time. She was surprisingly attractive. I had met Chuck Collins and found him rather ordinary-looking, in a Marine sort of way. He was in excellent shape with short hair and sharp features, and he was always tan from his noontime runs. But I didn't think anyone would call him handsome, although Tinny had. I had always carried around a stereotype that attractive people married other attractive people. I found it unusual when an average-looking person married someone attractive. This seemed to be one of those exceptions. Melissa Collins was beautiful. Especially for a woman of her age, maybe thirty-five. She was tall and slender and at least the same height as Collins. She had steel blue eyes and looked directly at me with infinite curiosity and clarity. It was quite an amazing look. She was obviously strong, and composed.

Many attorneys begin by asking witnesses if they understand they've been sworn to tell the truth, and other silly questions that are essentially throat-clearing, but I had abandoned that long ago. I went right at the hard questions from the beginning, then asked follow-up questions as I went along. I just asked whatever question came to my mind and only looked at my outline later to make sure I had covered everything.

She had clearly been prepared for the usual approach. I started in by asking if she was the wife of the pilot of Marine One, which she of course quickly acknowledged. I then asked, "Did you ever consider divorcing Colonel Collins?"

Hackett came out of his chair. He accused me of harassing the witness, of trying to intimidate her, of inappropriate questions, whatever he could come up with. I looked at her again and said, "Your attorney has objected, but he did not instruct you not to answer, which was wise on his part because that is inappropriate in a federal case. Did you ever consider divorcing Colonel Collins?"

"No," she said softly and firmly. She was annoyed by my question but wasn't going to show it.

I went back and started at the beginning of her relationship with Collins, how they had met, where they had been married, the various places they had been stationed, his time in the Marine Corps, how difficult the separation was, and how absolutely wonderful their relationship was before he was killed. "Did you and your husband ever sleep in separate bedrooms?"

This time Hackett came unhinged. He accused me of invading the privacy of her relationship with her husband, which of course I responded to by pointing out that she had made a claim for loss of consortium-the loss of sexual satisfaction from her marriage-and that as I understood it, she wanted WorldCopter to pay her for that loss. I had to determine what that loss was. Hackett acknowledged that and said that I was entitled to inquire, but the questions had to be appropriate. The question was of course appropriate. He just hated it. After our debate Hackett stood up. "We're going to take a break. I want to speak to my client about this."

Being obstreperous is common among attorneys. It was what they did. And they got away with it because, if you brought a motion to stop it, the judge would always say, now now, you young children get along, go back and try it again. There just aren't enough judges around who will spank an attorney for behaving badly.

Hackett probably wanted to ask her why in the hell I was asking about her and her husband sleeping in separate rooms, and if there was something he should know. Clearly she hadn't told him about their marital problems. He'd find out soon enough. It wouldn't make any difference in his demands or anything else about the way he'd approach the case, but he'd find out. And he'd be a little annoyed. But I wasn't there just to point out things to him that he didn't know, I was there to find answers that would change the case. If a woman came into a courtroom crying about the death of her loving husband, and it turned out they hadn't slept together in five years and she'd filed for divorce while sleeping with someone else, that was an entirely different case.

She returned. Hackett sat down beside her. "She's ready to answer."

"Do you remember the question?"

"Yes."

"And what's your answer?"

"Our relationship was fine. We slept together in the same bed, every night."

I looked her in the eye and saw nothing but hardness. So she was willing to lie. Either that or Tinny Byrd had gone to the wrong house. So how do you prove that a woman hadn't been sleeping with her husband? Who else is going to testify about that when she's lying and he's dead?

"You're still living at the same house where you lived on the day of the accident?"

"Yes."

"And have you changed anything, have you rearranged any furniture, moved anything from one closet to another, anything like that?"

"I've cleaned up a little bit."

"Have you moved your husband's things? Have you taken his books, clothes, personal effects, and moved them from one room to another?"

Hackett sat up and leaned his elbows on the table. "What is the possible relevance of this, counselor?"

I ignored him. "You can answer the question."

"No. I've left everything where it is. I'm not able to do that yet."

I looked at Hackett. "I'd like you to instruct your client to keep everything as it is. I will be preparing a formal demand to enter her premises and inspect the house, and I will have it personally served on you today. We'll be doing that inspection"-I glanced at my watch-"in ten days."

"There's no reason to inspect her house. This is just to annoy her," Hackett said, annoyed himself.

I turned to Rachel and whispered in her ear, "E-mail Braden to prepare a demand to inspect her house." She nodded and pulled out her BlackBerry.

I continued, "And if you were sleeping in the same room, when was the last time you had sex with your husband prior to the accident?"

Hackett slapped his hand on the table. "This is ridiculous. You don't need to ask these questions."

"Are you making a demand for loss of consortium?"

"Of course. It's part of the standard wrongful-death case."

"Then I am entitled to find out the nature of the relationship."

He sat back and huffed, but said nothing else.

"Your answer?"

"The night before."

"Are you sure?"

"Yes."

"And before that night, when was the last time you had sex with your husband?"

"I don't know. A couple of days."

"On the average, how often did you have sex with your husband?"

"It varied. He was gone a lot."

"When he was home."

"I don't know. Maybe three times a week, maybe twice."

Now that I had her feeling uncomfortable and realizing that this was very real, and that this testimony could be used in trial if it came to that, she was much more reserved than she had been when we entered the room.

"Did you understand what I and your attorney were talking about? That we're going to ask that you allow us into your house to inspect it, look at it, videotape it, and have a better understanding of your living relationships with your husband, where he spent his time and the like, you understand that?"

She shook her head. "I don't understand why you would need to do that to me."

"What I need from you now, ma'am, is an assurance that you will not change anything materially inside your house that might help us understand your relationship with your husband. Do you give us your word on record that you will not change it any?"

Hackett put his hand in front of her on the table so she wouldn't answer. "She's not here to make promises. She's here to answer questions."

I continued to look at her and said, "I have asked her a question, whether she's willing to give me that assurance. If not"-I turned my head to Hackett-"I will simply ask the court to impose an order that nothing be changed or modified. We can do it either way."

Hackett said, "She won't change anything materially."

"I appreciate that you're willing to give me your assurance. But unfortunately you don't live there."

I looked at her again. "Will you give me yours?"

"Yes, there's nothing to change, of course."

"Fine. Let's go on with some of the other questions then." I spent the rest of the day asking the questions that you have to ask in a wrongful-death case. It's difficult to probe into a person's life and ask questions that he or she has never been asked by anybody, not even their parents. It's difficult to ask how someone values the death of a spouse. What did her husband mean to her? How different is her life? She told us of the dreams that they had together, the life they had planned after his retirement from the Marine Corps, the mountain home he planned to build in North Carolina, how difficult it had been not to be able to have children. They had grown to love the independent life that they lived, the ability to travel at the drop of a hat. Her ability to go visit him in the places he was stationed, in Japan, in Europe, in ports in the Mediterranean. She had traveled the world and had enjoyed her life. And that had all been snatched from her. She cried, she took breaks, she showed that she cared and that she was vulnerable.

And I wasn't buying it. Ever since she had told me that she and her husband had slept in the same room, I wasn't buying it. It was just fabrication to support the first lie. If it was as she said, how could their lives not be completely intertwined in a wonderful relationship? She was just giving me the answers she had to give. It all sounded too good and sweet.

I ended the day after she was tired and wanted to quit, and after I had implied that we were going to go on for three days. "Your husband was quite the reader."

"Yes."

"I know that you provided copies to us of the books in his den, or rather in your house."

"Yes."

"He left margin notes in nearly every book he read."

"True. He was always writing in the margins."

"He said what he thought about things in the margins, about the author, or the topic, or something else entirely."

"I didn't really read his notes."

"It would be strange for him to say things he didn't mean in those notes, wouldn't you agree?"

"I'm sure he meant every word. He was never one to say something he didn't mean. It was one of his pet peeves, when other people would say things to please others, or to be better regarded."

"Did he have any particular interest in the international policies of President Adams? And Asia, in particular?"

____________________

I walked to my car in the parking garage in the basement of Hackett's building. I thought the deposition had gone reasonably well and checked my BlackBerry for messages. I had an e-mail from Frank Flannery. He was ready to meet. I said to Rachel, "You want to go meet the mystery witness?"

She looked at her watch. "It's almost six. But I guess so, yeah."

I pulled out of the garage and headed directly for Flannery's office. We parked in the cramped garage underneath his office building on M Street and took the elevator up to the lobby, then to his law office. The office of the well-known firm was stately. People were leaving, and the receptionist was shutting down her computer when we arrived. We told her we were there to see Flannery. She asked us to wait and he would be with us shortly.

Flannery came up and I stood to greet him. I introduced myself and Rachel, and he escorted us into a glassed-in conference room next to the reception area. He closed the miniblinds to block the view into the conference room from the reception area and told us how the meeting would proceed. Just a meeting, the witness would say whatever he wanted. After the meeting we would all figure out what we were going to do.

The door from the back of the conference room opened and the witness walked in. He wasn't at all what I expected. He was dressed poorly, had a bad haircut, and obviously did not eat well or exercise. He wasn't exactly fat, but he was lumpy. He had the hands of a workingman, and the eyes of someone who could anger quickly, particularly when intoxicated, which I guessed was often. He sat next to Flannery across the table from us.

"Good evening, I'm Mike Nolan and this is Rachel Long."

The man sat silently and stared at us. His attorney responded, "He would love to tell you his name, but we are not to that point yet. The purpose of this meeting of course is to discuss whether or not you're interested in the information that he has, and whether you are willing to meet his terms to obtain that information." Flannery paused as he searched for exactly the right words. "I am taking no position on the appropriateness of his demands. He has asked me to put this meeting together, to protect his identity, and to make sure he crosses no boundaries. I have done that, and he is here. You may ask him questions, to which he will respond as he deems appropriate."

I wasn't sure where to start. An uneasy tension was in the room. "You have some information about the accident that you think we might want to know. I believe that's why you called me."

"Yeah. I called. I have information that will blow the case wide-open."

"In what direction?"

"In all directions. Case over."

" 'Case over' meaning what exactly?"

"I can't go into it until we decide whether you're going to meet my terms."

"I'm not even going to consider your terms until we find out what information you have, at least in general. Do you know why this helicopter crashed?"

"I know what happened to the helicopter before it flew. And it will end the case."

"How? How did you gain access to this knowledge?"

"I was there."

"Meaning what?" I watched him as he considered how to answer.

"I'm not going to say. You might figure out who I am." He sat back in the leather chair. He looked uncomfortable.

"If I don't know how you got your information, let alone what it is, how can I recommend that you get paid?"

"You have to tell me that you're willing. You have to give me your word. Then I'll tell you."

"Will it be admissible? Can I get it into evidence at trial?"

"I don't know anything about that."

"And what if your information is all crap and you don't know anything?"

"You want this or not?"

"I don't know. What kind of compensation are you looking for?"

"Hundred thousand dollars, cash. No questions asked. Tell you what, you bring that cash to this attorney here, leave it with him, I'll tell you what I know. You don't like it, you take the money back. Otherwise, I take the money and disappear. You'll be able to get more based on what I tell you. You can go ask other people questions. You think about it."

The man stood up and walked through the door from which he had come. I looked at his attorney as I closed my notebook, not having written anything. "This is real sketchy."

Flannery was uninterested in a discussion. "I'll be here when you call."

As I pulled out of the garage, Rachel said, "Are you buying that?"

"I don't know. I really don't. I'm going to tell WorldCopter about it and see what they think. I want you to take another look at Braden's memo. Check the cases and ethics opinions of the state bar. See how close to the line this is. And check one other thing. What if the client does the paying and not the attorney? They're not bound by our ethical obligations. What if we can't control them?"

"Can't?"

"Or don't."

The next morning my cell phone rang as I was dressing. New York number. I answered quietly, "Mike Nolan."

"What were you thinking?" a female voice demanded.

It sent an awakening jolt of adrenaline through me. It was Kathryn. "What do you mean?"

"You let the press sit in on Melissa Collins's deposition? Have you seen the headlines? Let me read from the front page of this morning's New York Post, which I was just privileged to pick up. 'WorldCopter Lawyer Grills Marine One Pilot's Widow on Sex Life.' Did you do that?"

"I wouldn't put it like that, but basically, yeah. Of course. Just like you did when you were practicing. Those questions are routine."

"You don't grill a widow about her sex life in front of a roomful of reporters!"

"I didn't anticipate him inviting them, but it wouldn't have made any difference. I could have adjourned the depo and gotten a protective order, which probably would have been denied, and that would have been worse. 'WorldCopter Tries to Grill Widow in Secret.' And then I would have asked the same questions anyway."

"The protective order may have been granted. It would have cut down on the circus. We have to get a protective order for the other depos now. Hackett's whole idea is manipulation, winning in the press. It has nothing to do with the facts."

"I know that, and you know that. But we've got to be willing to take some lumps to prepare this case. Otherwise you can just write him a check."

She paused, obviously frustrated. "Just try to see these things coming so we can talk about it before it happens. All right? I don't like talking about bad things unless I anticipated them and prepared for them."

"Fair enough." I'd been working with Kathryn for years. I'd never heard her raise her voice. Hackett was really starting to piss me off. Trial was now sixty days off, and I had thirty days to finish my discovery, come up with my theory, get my expert reports together, and otherwise look like a genius. This thing was going to trial whether I was ready or not.

As I drafted an e-mail on my BlackBerry to Rachel about a protective order, I saw a new e-mail from Tripp at WorldCopter. The light bluish white screen glowed in the dark as Debbie slept. Tripp had read my e-mail report on the secret witness and wanted to meet with him immediately. If this guy was going to lead us to evidence, Tripp wanted to get on it right away.

I told Tripp where Flannery's office was and he said he was on his way. I called Flannery after Tripp, and he said he could have the witness there at 9 AM. I had a couple of minutes to talk to Tripp before we went into the conference room. I sent Rachel an e-mail asking for anything she had found about Braden's memo.

We went to the same conference room as the day before, and Flannery went through the familiar routine of lowering the shades. The witness walked in right on cue. He was wearing the same clothes he had been wearing the night before, and his hands were still dirty.

Tripp didn't want to hear about his clothes or hands or what he might do for a living. He knew the man had information that could exonerate WorldCopter. After the introductions, Tripp jumped right in. "What is it that you know that would be so valuable to us?"

The guy shook his head. "I'm not going to go into it until I get paid."

"Let's say that we can arrange for you to be paid. Can you tell me the kind of information that you have?"

"If I tell you what I know, I'll lose my job, I won't be able to hang around here anymore. I want you to move me to a different place and find me a job. I'm not afraid they're going to like kill me or anything, but I'm going to have to get out of here. I want to go to Montana and set up my own tire store. I'll need at least a hundred and fifty thousand dollars, and moving expenses. Probably another thirty or so. So a hundred and eighty grand."

I said, "We could just subpoena you. And last time you said a hundred thousand. What changed?"

"No, you can't. You'll never find me. You don't know my name or where I work, and-"

"You sure about that?"

"Yeah, I'm sure. There's no way you could. So I won't be there when you come looking for me. And I've been thinking about everything I will need to do. One fifty is the minimum."

Tripp said, "Let's agree in principle-"

"Can I talk to you for a second?" I said, indicating the door.

Tripp stopped, looked at me, and said begrudgingly, "Sure."

We got up and walked into Flannery's deserted lobby. I looked around and saw that we were alone. I said in a loud whisper, "We don't know anything about this guy. We can't pay him. It will taint the whole case. If this gets out-and I assume everything will get out at some point in this case-we'll be crucified. I say we shut this guy down. Challenge him to testify about the truth, or shut the hell up with this cloak-and-dagger bullshit."

Tripp's face turned red. "Mike, we may miss a chance to blow this case wide-open if we don't take this guy up on his offer. What's a hundred fifty grand in the big scheme of things?"

"It's not the money, it's the principle."

"What principle? Helping a witness who has critical information not to have his life ruined for bringing the information out? We'll tell the jury what we paid and why. They'll understand."

"No, they won't. And it's probably unethical. I could be disbarred."

"So what? You can get rebarred. We'll bring you in-house to work for us until you're cleared again."

I stood back and looked around. He started to turn. I grabbed him arm. "David, I'm advising you not to do this. Let's walk away. It smells."

"I can't. I've got to find out at least what he knows. Come on." Tripp turned and hurried back into the conference room.

Before we even sat down again he said to the witness, "What kind of information do you have that would make it worth that much money?"

The man leaned forward and looked Tripp squarely in the eye. "Are you saying you can do this? That you will?"

"I don't know. I'm saying I might. Depends on the kind of information you have. You've got to let me know why it would be worth our while."

The man spoke softly but openly, "But if I convince you that it's worth it, you're willing to do this?"

I leaned over to speak to Tripp, but he was already responding, "Yes."

The man nodded eagerly and sat back. "Smart man. What I've got are maintenance records."

Tripp waved his hand at him dismissively. "We've already got all the maintenance records. We've been through them with a fine-tooth comb."

"You don't have these maintenance records."

"What are you talking about?"

"Maintenance records on the rotor blade the day before the accident."

Tripp swallowed, not believing what he'd just heard. "You have maintenance records on the blade right before the accident? Where'd you get them?"

"Never mind. I'll give you copies, hard copies that you can then pursue. There are maintenance guys' names on them, and it shows what they did to the rotor blade."

"What did they do?"

"You'll have to wait to see. You wire the money to this law firm-I forget what they call it-"

"Our client trust account," Flannery said.

"Right, the trust account. Then I will have him fax to you and send hard copies overnight of the five pages of maintenance records."

"How do we know you have any?"

The man pulled a folded piece of paper out of his Windbreaker pocket, unfolded it, and passed it across the table. I immediately recognized it as a standard Marine Corps maintenance form. It was a copy of a sheet noting vibration in the helicopter three days before the accident. He said, "Bet you've never seen this."

We both examined it and looked at each other. We hadn't. Tripp asked, "Is this one of the five pages?"

"Yup. The juicy stuff though is on the other four pages."

"May I keep this?"

"Yup, and I want the money in this account within forty-eight hours. Can you do that?"

I couldn't just sit there. This just didn't make sense. "Let me make sure I understand. You give us an example of a maintenance record that we've not seen, you tell us there are others that have critical information on them, but you won't tell us what that information is, and we're just supposed to wire a buttload of money to you?"

"Yes, sir."

I shook my head. "It's up to my client, but I'm telling you this, I won't recommend that he do this unless you tell me right now what the content of those records is. We can't use it without you or without the records. Maybe we can find the Marine who did the work, but it sure gives us some motivation to comply with your request if you tell us what they did. Otherwise, I'm not sure why we would do it."

The man thought about my request. He had been playing with a paper clip the entire time he was speaking. This nervous habit seemed out of line for somebody who was so sure and steady. After an interminable pause, he replied, "It's about the tip weights, they had an incident with that blade. It was worked on the day before the accident. I'll prove it to you."

Tripp was about to wet his pants. "Give me the account number."

"Give me your e-mail address and I'll get it to you," Flannery said. Tripp stood. "We'll wire the money tomorrow."