“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.”
CHAPTER FORTY-ONE
Present Day — September 14
Hyatt-Regency Hotel, Denver
The insistent banging on the hotel room door had fit uneasily into a complex dream involving byzantine collections of criminal defendants and a jury that had reacted to everything she said with derisive laughter. Judith’s brain finally sorted out which reality to pay attention to, and she sat bolt upright in the plush bed, the banging instilling a flash of fear.
She slipped on one of the hotel robes and moved to the door, checking the peep hole before turning the doorknob, incredulous to find a haggard Marty Mitchell standing on the other side looking like a refugee.
“What on earth?”
“I’m sorry.”
“You can’t sleep?”
“It’s beyond that.”
She sighed. “Come in. Sit.”
Somewhere in the back of her mind it occurred to her that letting a distraught male into her bedroom in the middle of the night when she was clad only in a robe was a risky decision, but she dismissed it with a silent laugh.
“Marty, I need my sleep. I was up until one working on the closing argument. What time…” she glanced around at the clock on the nightstand. “Jeez! Three fifteen.”
There was a small round table between the bed and a bench seat under the window and he settled onto the window seat, his eyes red and wide.
“I figured it out, Judith.”
“Figured what out?”
“Richardson has been laying a huge trap and I fell right into it.”
She sat opposite him on the only chair, the table to one side, tempted to say that of course Richardson had been trying to lay a trap, but she could see that would be useless in calming him down.
“Tell me why you think that?”
“That criminal statute! The way the damn thing is written, it’s a Catch 22! He got me to say that I knowingly decided to land, and tomorrow he’ll tell them that it was the speed that means I condemned someone to death.”
“Marty, you said very clearly that you did not make any such decision.”
“No, no, no! Don’t you see? He’s already twisted everything up! The jury will believe that the only way I’d be innocent is if I followed the company’s dictates and slowed down. I’m screwed!”
“I’m ready to fight that interpretation. Yes, he’s going to make that argument, but all we need is one juror to think it through.”
“I want you to put me back on the stand!”
“Marty, I can’t do that.”
“Can’t you go to the judge? I have more to say… I can clear this up!”
Judith sighed, running her hand through her unruly hair after catching a glimpse of herself in the mirror looking like a Medusa. She stared at the rug, letting her mind deal with the interlocking geometric patterns woven into the carpet before meeting his eyes again.
“Marty, I think I know you well enough now to know you seldom if ever panic. Yet here you are, in the middle of the night, essentially panicking.”
“I’m sorry… I’m really sorry, Judith, but…”
“I’ve got a very strong closing for morning, Marty.”
“I thought if I could re-take the stand I could make them understand.”
She got up and moved to the small refrigerator, tightening the loose tie on the robe before taking out a chilled bottle of water.
“You want one?”
He shook his head.
She unscrewed the top and sat again.
“Marty, no lawyer likes to admit this, but you were right when you called it a game. But it’s a serious game, with serious rules, and in the end, it’s designed to get as close to a correct decision as humanly possible.”