“Were you afraid of Captain Mitchell?”
“No! Not at all.”
“Do you consider him a tough captain?”
“No.”
“Was he difficult to talk to?”
“No! I mean, he’s a bit stiff and disapproving sometimes, but we got along just fine.”
“Did you elect, that day, in that emergency, to give advice in the form of a question because you were concerned he might not like what you had to say?”
“No. I could tell him anything.”
“Was it important that he slow down for landing?”
“Yes.”
“If the speed on landing was important, and if you were not afraid of Captain Mitchell, and if he was not hard to talk to, and if you could ‘tell him anything,’ and if the both of you got along ‘just fine,’ why, Mr. Borkowsky, have you been unable to direct the court’s attention to any evidence attributed to you that would have constituted a recommendation to slow down for landing, instead of a question?”
“I… knew he was thinking it through.”
“Mr. Borkowsky, I am handing you the aforementioned defense exhibit E, and I call opposing counsel’s attention to page 116, line 25. At that point in the CVR transcript, as I have tabbed it, the satellite conversation between Mr. Butterfield and Captain Mitchell begins. Do you see that?”
“Yes, ma’am.”
“Yet the phrase I read, and which you testified constituted your advice to the captain to slow down, appears on the same CVR transcript at page 53, as I previously indicated.”
“Your Honor,” Richardson interjected, “Objection! Is there a question in there somewhere?”
“Ask your question, Ms. Winston.”
“Yes, Your Honor.”
Judith’s mind was racing through the tutorials Joel had given her, and chief among them was to never start a question with ‘isn’t it true,’ although that was what she dearly wanted to lead with next. She sighed internally and turned back to the witness.
“Mr. Borkowsky, it was your testimony that you did provide such advice subsequent… in other words, after… the satellite call?”
A worried expression passed over Ryan Borkowsky’s features as he sensed a trap he couldn’t find. “Yes.”
“Then, could you explain, sir, why the transcription of the question that you asked of the captain — the question that you say constituted advice subsequent to the satellite call — can you explain why that begins on page fifty-three of the same transcript, some sixty-three pages and a considerable amount of time before the satellite call?”
“I… ah… I thought it was before but… I guess I was wrong.”
“In fact, you did not advise the captain to slow down for landing subsequent to Butterfield’s satellite call.”
“No ma’am. I’m sorry… I mixed up the sequence.”
“Mr. Borkowsky, maybe I haven’t been as clear as I could have been with my questions. I apologize. I’ll try my best to be more specific. It’s your testimony today that you provided advice to the captain in the form of a single question that was asked before the satellite call.”
“Yes.”
“Why did you not advise the captain to slow down after that call?”
“I… I don’t know. I mean, there were other choices.”
“Other choices for how to land and where to land?”
“Yes.”
“Did the company’s advice regarding speed cover all possibilities that you and Captain Mitchell considered?”
The shadow of relief appeared on Ryan Borkowsky’s face as he appeared to re-inflate, squaring his shoulders slightly and coming out of the defensive slouch that had characterized his last fifteen minutes on the stand.
“No. Butterfield was concentrating on just Runway Seven, and I was too, but Marty… Captain Mitchell… was thinking beyond that.”
“So, the company’s advice between slowing down for Runway Seven, or risking death and serious injury on Runway Seven in particular if you didn’t slow down, that binary choice did not include any other runways?”
Borkowsky’s head was suddenly on a swivel as he looked at the judge, looked at Judith, and then, for the first time, looked at Marty before answering.
“Yes. That’s exactly right. We had other choices.”
“Choices that might not automatically result in anyone’s death?”
“Yes.”
“Choices that your company had not considered?”
“Yes.”
“So, Mr. Borkowsky, the choices that Captain Mitchell ultimately made about where to land and what speed to use on landing were different from the singular scenario that Regal Airlines was warning against when they tried to direct the two of you to slow the aircraft if you landed on a fully plowed Runway 7?”
Once more Grant Richardson was on his feet, looking pained and shaking his head. “Your Honor, PLEASE! Who is testifying here? This is beyond leading the witness and I object and ask that this entire exchange be stricken from the…”
“Overruled, Counselor!” Gonzales snapped. “I want to hear his answer! “
The judge turned his full attention toward Ryan Borkowsky, who was taking a long drink of water, his hand clearly shaking.
“Would you like the question repeated, Mr. Borkowsky?”
He shook his head no in staccato fashion.
“I can answer it. It was a very fluid situation, and I knew that Marty… Captain Mitchell… was weighing a dozen options a second. I didn’t know exactly what he was thinking other than what he told Butterfield on the sat phone because things were unfolding far too fast. I didn’t even have a clue why he broke off the approach to Runway Seven until a minute or so later. Yes, the company told us not to land at that speed on Runway Seven, and I don’t think they ever realized several thousand feet had been left unplowed. So, were there other options other than what the company was worried about? Yes. Absolutely. And he didn’t have time to explain them to Butterfield or to me.”
“And, in your opinion, Mr. Borkowsky, of those other potential options the company did not know about, do you believe that at least one of them might reasonably be expected to result in no deaths at all?”
“Yes. Definitely. I do.”
“No further questions,” Judith said, turning to walk back to the defense table with a side glance at Grant Richardson. “Your witness.”
CHAPTER THIRTY-SEVEN
Present Day — September 10 — Day Five of the trial
Hyatt-Regency Lounge, Denver
“Judith, conviction or acquittal will turn on the final instructions to the jury,” Joel Kravitz said as the two lawyers sat in the bar of the Hyatt-Regency an hour after leaving court. “It isn’t always that way, but in this case, it may make the difference.”
“I know it,” she replied.
“Grant Richardson seems to have only limited credit with Judge Gonzales, which portends well for your getting the best language you can in the instructions, but in the end, Richardson is going for simple and stupid.”
“What are you telling me, Joel?”
The older attorney sighed. “Shit, I hate things like this. All right. It is my duty to tell you that despite what has been a brilliant attempt on your part to undercut this sleezebag DA, I think he still has you cornered.”
“I’m not following that.”
“He’s reaching the jurors better than you are. This jury is worrisome. Our jury consultants have been watching each of them as you know, and they’re convinced, despite your best efforts to select the best panel you could get, these folks don’t seem terribly bright.
“That seems harsh.”
“It is, but my point is that in the end, they’re going to go for simple because the big DA told them to look for simple and primed them to expect you to do a smoke, mirrors, and sparkly-thing shuffle to confuse and distract them. He’s warning them not to fall for complexity, or compound thoughts. I don’t know if there’s any way you can defuse that prejudice in your closing, but that will be your last, best chance. They’re already sitting there glazed over with their arms folded. Very bad sign.”