He hesitated, smiling slowly at her response. “So… bottom line… you’re not sure about me wearing the formal uniform?” Marty asked.
She sat down next to him in one of the high-backed leather swivel chairs.
“Frankly, no. Before we decide, though, I want to consult a friend who does big criminal cases. Actually, I’ve been consulting with her quite a bit to make sure I… don’t screw this up in any way.” A ripple of apprehension twittered down Judith’s spine at the thought that she’d just admitted what every aspect of her prior demeanor had been designed to refute: That criminal defense was neither her familiar territory not an area in which her confidence level was unassailably high. Self-doubt was one thing they both had in common.
“I appreciate that,” he said, looking down at the table where his fingers were drumming softly. He looked back up. “Judith, I know this is a stretch for you… not your native turf. And I know the damned judge wouldn’t let you withdraw from the case. ”
She started to protest that she was well prepared now, but something in his eyes told her it was unnecessary, and he’d already raised the palm of his hand to stop her.
“You’re a damn good corporate lawyer, which means you’re a damn good lawyer, period. You don’t need to say any more. I truly appreciate what you’re doing for me.”
“Thank you.”
He cleared his throat, as if to disavow the heartfelt nature of the statement.
“Speaking of the stupid judge, what happened this morning to our motions?”
She glanced past him for a second as if taking in what was happening in the reception area, then looked back.
“It’s more the damned DA than the judge, and of course Grant Richardson was there himself, full of restrained outrage at the mere idea that I would dare file a motion to quash the indictment, let alone a motion to dismiss.”
“I take it both were rejected?”
“Yes, but… the judge said something interesting, something that makes me think he isn’t rubber stamping the idea that criminal charges are legal in a case like this.”
Marty was leaning forward. “Tell me.”
“He said that, without reference to any future appeal, there was a societal interest in determining whether a purposeful act by a captain in discharging official duty constituted even a prima facie case of premeditation sufficient to support a murder charge. In other words, he gave voice to one of my main arguments, that the legislature never meant for the premeditated aspect of murder to include a captain’s decision. Richardson tried to bat it down, but it was there and on the record. It won’t stop the trial, but it’s very well written.”
“Is my union doing anything?”
Judith shook her head. “Just monitoring. Someone will be in the courtroom, and they’ll file a friend of the court brief, an “amicus” brief — if we lose and have to appeal. But they’re confused. This isn’t a case of prosecuting a pilot for making a mistake, which always lights a torch under their tails. This is alleging criminal responsibility because you knew the consequences if you didn’t slow down, and you decided not to slow down anyway. Where the union guys jump the track and glaze over is when we talk about Regal’s attempt to intimidate you. The DA says it doesn’t matter, and that this case is not about you following orders, because as a captain in an emergency you don’t have to. It’s about you having been provided the indisputable information of what would happen if you did Plan A versus Plan B, and, knowing the consequences, you still decided to go with Plan A. Since Plan A included a high probability of killing someone, that’s where the theory of premeditated or purposeful murder comes in.”
“But, Judith, that screws the whole principle of captain’s authority! I mean, that’s worldwide international law!”
She chuckled ruefully and shook her head. “You know, in law school, one of the universal legal answers to any question — we learned this almost in the first month — was: ‘Well, yes and no!’ and I’ve got to use that phrase to answer you now. Yes and no. Yes, this case involves second guessing a captain’s authority, but no, it is not necessarily inappropriate to require accountability after the fact. If you decided to shoot and kill a passenger, you would be called after the flight to defend yourself as to why that killing shouldn’t be ruled a homicide. Similarly, you can legally decide to land overspeed, but if you do so, you can be held accountable for the correctness or appropriateness of your decision.”
“Jesus! So, it’s perfectly okay for society to prosecute someone like me for making the best decision I could possibly make for the best interests of all? What a wonderful society! Remember, Judith, it wasn’t a case of choice A versus choice B, and only one might result in death. Both choices — either choice in this case — bore a high probability of death. There was no Plan C.”
“And, Marty, that’s exactly the point, that this is a ridiculous case when viewed in the greater framework of what society wants and needs. We need decisive captains who can do their best in a dire emergency, captains, and first officers, who are unafraid to use their best judgment. And they need to feel the support of our legal system beneath their wings. This case is going to set a vital precedent, one way or another, and losing it directly harpoons flight safety worldwide.”
If you ended up convicted for doing your best, can you imagine the chilling effect on virtually every pilot out there who might face an emergency some day? “
“I don’t want the union involved. They can file friend of the court briefs later if this ends up the wrong way, but no… not now.”
“Okay. They do have an interest. We don’t need captains trying to act as lawyers in the middle of a major emergency because they’re afraid they might be prosecuted for an honest decision that went wrong! Criminal law was never supposed to be applied this way, and hopefully the jury will see that with clarity and spend five minutes finding you innocent.”
“And if not?”
“Don’t go there!”
“I’m not plea bargaining, you know that, right?”
“Absolutely! I was only going to sneer at any offer from the DA, but he never opened the door!”
Marty stopped and looked at her with a puzzled expression. “What does that mean, Judith? Why wouldn’t he try to sell me a plea bargain and assure a conviction, versus, as you call it, rolling the dice that I might be exonerated and he’d look stupid… not that he isn’t?”
“Not offering a plea means one of two things. First possibility, that this whole prosecution nonsense and all his grandstanding and the unnecessary submission to the grand jury is some sort of theatrical production for him, and he doesn’t give a rat’s ass whether he convicts you or not as long as he gets a chance to strut indignantly around the courtroom and show the world how much he resembles F. Lee Bailey, Jeanine Pirro, or Perry Mason from an earlier age.”
“What’s the second possibility?”
“That he is genuinely outraged at your decision not to slow down, and he does care about convicting you. If that’s the case, where does that outrage come from? That’s a prosecution born of passion, and it feels to me like malicious intent. Not only does that usually subvert justice, but if I could find out what it is, and if it was significant enough, it might be sufficiently embarrassing to him to sour the jury in your favor on what we call prosecutorial misconduct. You know, get the jury angry over the idea that this whole thing is based on some personal axe he wants to grind.”
“You can tell a jury that?”
“Not directly, and I may have to be really sneaky to get it in front of them. I may have to risk censure from the judge or even contempt, and risk a mistrial. Of course, if it was really a major personal conflict, I could attack the indictment as having been issued under undue influence. But, before I can tell the jury or do anything, I have to discover myself what the hell that motivation is… and right now I haven’t a clue. It may just be that he’s getting older and meaner.”