“They don’t understand, Judith!”
“I think they will! But I cannot put you back on the stand unless there is new evidence, and there isn’t. We already proved the existence of the car on the runway… that was huge, Marty! Huge! It validated everything you said.”
She took a swig of the water and put the bottle on the table, then moved the chair forward and reached out, taking both his hands in hers, looking him in the eye.
“You promised to stay with me, Captain. Remember?”
“I am. I’m here.”
“But I need your courage as well.”
A tear had begun to roll down his face, and he turned in an attempt to hide it as she gave his hands a small shake.
“It’s going to be okay, Marty. I’m not supposed to say that… it’s unprofessional to speculate… but it’s going to be okay.”
His eyes were pools of anguish and pain, a watery window into his tortured soul.
“I’m scared, Judith,” he said at last, inhaling sharply as the admission left his lips, “…and I have no one else to tell.” The words were spoken so softly they barely registered. He snorted suddenly and looked at the ceiling. “Getting ready to kill myself on Long’s? I wasn’t a bit scared. But now… I’m… terrified. Far worse than in the cockpit that night.”
Mentally Judith stuffed a sock in the face of her better judgment and rose from the chair, sitting next to him then, pulling him to her, folding her arms around him until he leaned into her at last, his head resting on the fabric of the robe pulled tightly over her breasts as the silent tears morphed into body-racking sobs.
CHAPTER FORTY-TWO
Present Day — September 15 — Day Eight of the trial
Courtroom 5D, Lindsey-Flanigan Courthouse, Denver
The fact that Carl Moscone had once again slipped quietly into the courtroom registered on Joel Kravitz, who had glanced at the wealthy investor and saw the same absolute poker-faced expression that apparently never changed. The question of why he was here in the first place had begun to take greater precedence in Joel’s mind, and the formula so far didn’t balance. The man had lost his young and beautiful wife in the breakup of the Regal Air 757 on Runway 36R, yet there wasn’t the slightest flash of anger, angst, or grief, and certainly none of the sneers that Grant Richardson had poorly hidden in his obvious anger toward Marty Mitchell.
As Richardson took the floor in his attempt to hit a homerun with the jury, Carl Moscone sat expressionless.
At the defense table, Judith Winston sat quietly, several pages of notes in front of her, each anticipating one of the points Richardson was bound to make. In his first fifteen minutes, he had missed nothing.
“So, ladies and gentlemen,” Richardson continued, facing the jury box, “you’ve heard all the facts, and you’ve also heard Captain Mitchell’s attempt at excuses, and in a little while you will hear an eloquent attempt by Ms. Winston to distract you so badly with smoke and mirrors that, she hopes, your confusion in the jury room will lead to a wrongful acquittal. So, let me insulate you against the dog and pony show to come. The law is stunningly simple. It says that if you, or I knowingly cause the death of someone, we’re guilty of second degree murder here in the great state of Colorado. There are no if’s, and’s, or but’s regarding the person’s intentions other than one thing: Did they know that a particular action would most likely result in the death of someone, and yet they took that action anyway? If so, they’re guilty of second degree murder. That’s it! That’s literally all you have to decide, and the decision has already been made for you. Captain Mitchell was warned that to keep two hundred and thirty knots of speed would result in a crash, and he disregarded that advice, maintained that speed, crashed his plane and killed five passengers. Nothing else matters. It does not matter legally whether the crash was on Runway Seven or Runway Three Six Right or anywhere else, or what might have contributed.
Now, Ms. Winston will try to mesmerize you with the fact — and it is a fact–that Captain Mitchell was attempting to save the lives of the poor passengers in the Beech fuselage. But, he did not have the right to condemn the passengers in the 757 in order to maybe save the Mountaineer folks. Remember, Captain Mitchell testified that he did not know whether the fuselage would come off or not. That fear was pure, panicked speculation. What he DID know was that landing overspeed on Runway Seven would kill someone, and the fact that he changed runways without slowing does not erase the fact that he made a ‘knowing’ decision that resulted in five deaths. Ms. Winston will ask you to have sympathy for him because he was trying his best. She will remind you that his last, best idea about landing on 36R would have worked except for a car on the runway. But all that is nonsense when you consider, as you must, that he knowingly made the decision to maintain a dangerous speed, and people died as a result. That leaves you no legal choice. You may have sympathy and pity and feel very bad for Captain Mitchell, but as a matter of law, you are required to fit the evidence to the statute which leaves no room for any other verdict than a verdict of guilty. Thank you.”
A short recess separated Richardson’s rhetoric and Judith’s by fifteen minutes, but as they reassembled in the courtroom, she leaned toward Marty and gave a reassuring pat on his hand.
“He didn’t surprise me at all. I expected everything he said.”
Marty nodded, his face a study in stoic apprehension. He took his seat again and listened as Judith moved for dismissal on the grounds that the state had failed to prove even a basic case, but as she had told him, the motion was just for the record and would be rejected, as it was.
The embarrassment he felt for coming apart in the middle of the night had been all but replaced by a quieter level of dread. But even that was diminished by the feeling that he was not alone. The yawning chasm of loneliness that had been his life for the last few years, long before January, had been breached, and that gap had admitted a vulnerability he had long denied. He was still scared to death, but there was something different about the way that felt.
Judith was on her feet now, the jury following her as she moved out from behind the table, wearing a carefully chosen, classy dress in a soothing shade of blue, set off with a simple strand of pearls. She smiled and greeted the jury and began to walk them through the facts from Marty’s point of view rather than the cynicism of Richardson’s re-telling. She painted a crystal-clear picture of a dilemma into which no human should be placed, laced with the unhelpful pressure from the airline and the shifting facts regarding runways and snowfall that all had to be dealt with by two pilots who also had to struggle to keep a crippled airplane aloft while balancing a precariously attached fuselage of another aircraft on its wing.”
“Yes, I ask you to empathize and sympathize. We are, after all, human, and it would be completely inhuman not to put yourself in this man’s position, in that cockpit, where we are now told that having the courage NOT to condemn those sixteen souls to certain death was a crime. Mr. Richardson would have you believe that because no one technically knew precisely what combination of angle of attack or airspeed would condemn those sixteen people to fall off the wing, Captain Mitchell’s best estimate should be discounted. An airline captain fighting for survival in a dire emergency seldom has the luxury of dealing with certainties. By the way, that is precisely why we have humans and not computers flying our jetliners and making the tough calls in emergencies, as rare as they are, because machines can’t deal with uncertainty the way we can. You heard the testimony about the near-disaster in Singapore a few years ago with a fully loaded Airbus A-380, Qantas Flight Thirty-Two, using the largest passenger airliner on the planet. It took five qualified pilots nearly three hours to figure out how to land safely. If the computers alone had made the decisions, the aircraft would have crashed with the loss of all aboard, over three hundred people. We need captains like Marty Mitchell who can quickly take in all the evidence, and working with the captain of a Mountaineer 2612, determine that slowing down would be fatal. You heard Michelle Whittier’s testimony! She and her copilot had to fly… literally fly… their fuselage in order to stay on the wing of the 757 even at two hundred thirty knots. Can you really ignore all that testimony? Can you really say that Captain Mitchell should have just assumed they’d stay attached, suppressed his own training and experience and instincts and experimentation, thrown all that away and just trusted that his airline’s spokesman had better information, and then slowed to normal approach speed? You see, far from smoke and mirrors, that’s the key to this and to your deliberation. Mr. Richardson wants you to conclude that slowing down was a certain win for the occupants of the 757, and that since there was no certainty about when the Beech would fall away, deciding to slow down would not have constituted knowingly causing the deaths of those sixteen. But that’s nonsense! In fact, if Captain Mitchell had slowed down, and if everyone aboard the 757 had lived, but the sixteen people on the wing had died, by his definition of the criminal statute we would still be right here with Mr. Richardson charging Captain Mitchell with second degree murder because he had knowingly slowed the aircraft… knowing that it would case the deaths of the Mountaineer passengers. Are we really ready to imprison someone who had an impossible choice? Are we that crass and hateful as a people to use the literal meaning of law to inflict an outrageous result?