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  She had come forward, alarm showing in her eyes.

  “No, no, no, Marty! I didn’t mean that in reference to you. I meant…we have a disciplinary structure to go after ethics violations.”

  But it was too late. The shame of making such an epic mistake overwhelmed him again, and there was simply no more to say. The dinner ended quickly, and sitting in his bed now, Marty realized they had come very close to a moment of shared insight, or maybe even intimacy. But that intimacy had receded like a rifle shot – ripped from the artificial reality of an absorbing movie by a filmbreak in the projection booth.

  It was now 3 am, and the only recourse was the TV remote.

  CHAPTER THIRTY-FOUR

  Present Day – September 10 – Day 5 of the trial

  Courtroom 5D Lindsey-Flanigan Courthouse, Denver

  The small procession of lawyers surrounding the defendant moved quickly down the corridor outside Courtroom 5D to a small conference room. TV and print media marked their progress with rolling cameras as Judith Winston leaned toward the uniformed airline captain to whisper something out of range of the reporters.

  “Say absolutely nothing and keep an even expression and don’t engage anyone’s eyes!”

  When the door had closed behind them, Marty Mitchell whirled and pointed to the courtroom.

  “What…what the hell was that? When did my goddamned copilot decide to turn on me?”

  “Marty,” Judith began.

  “No! Seriously. Whiskey tango fox! I thought he was on my side, not out to help the fucking DA!”

  “He IS on our side” she snapped, fitting the retort in between his angry sputterings.

  “What do you mean, ‘he is’? He just sold me down the river!”

  “Marty, please sit down. This is not a problem. This is not what it seems. The prosecution has presented their case-in-chief, and they called Borkowsky as a prosecution witness and only got the raw truth out of him. This is just the opening round of our defense, which is why I asked to preserve our right to reexamine him on cross, and why I re-called him now.”

  The other three lawyers in the room were keeping their distance, their mouths shut, two of them wide-eyed as they, too, tried to see as a good thing any aspect of the previous ten minutes in which First Officer Ryan Borkowsky had testified that his captain knew people would die if Flight 12 wasn’t slowed before landing.

  Marty slowly slid down in one of the chairs, his eyes on his lawyer in disbelief.

  “Am I not getting this correctly, Judith? Isn’t that F’ing bastard of a DA trying to convince the jury that I knew people would die if I didn’t slow down, and isn’t that the basic criteria for conviction, and correct me if I’m wrong, but didn’t that sniveling little scone-chomping weasel just say precisely what Richardson wanted to hear? Basically, I’m screwed!”

  She bit her lip and fixed him with a steady gaze and the hint of a smile.

  “No, you’re not. Marty, do you trust me?”

  His eyes flared, but the quick and angry retort that would have flown at her like a shotgun blast a month before was a hang-fire, and his jaw moved up and down a few times before he shook his head ‘no,’ while saying ‘yes’.

  “Yes…I do trust you. But…what the hell am I missing?”

  “I can’t tell you why just yet, but this is unfolding precisely as I would have designed it.”

  “Judith…how? Didn’t he just throw me under the bus, for want of a better cliché?”

  “He answered my questions correctly and honestly and, thank God, didn’t embellish. I asked if you were aware of the company’s statement that if you two didn’t slow down significantly for landing on Runway Seven, people would be killed. He said yes. I asked him to explain how he knew this, and he told us about the satellite phone call, how he had the sat phone button up on his interphone panel so he was hearing both sides. He testified about Butterfield pushing you hard, and he said it was crystal clear to both of you what Butterfield and the company were saying and what it meant.”

  “That if I didn’t slow down…”

  “That if you didn’t slow down during a landing approach for a fully plowed Runway Seven…”

  “Yeah, Butterfield himself said that yesterday, but I didn’t expect a rubber stamp from Borkowsky!”

  “It’s okay, Marty.”

  “And this helps me how?”

  Judith could see two of the other three lawyers leaning forward ever so slightly to hear the same explanation Marty was seeking. The third, a veteran criminal defense lawyer, was keeping an even expression but as Judith expected, not in need of an answer he already knew.

  “It helps us, Marty, because in the end, the fact that you understood what Butterfield was saying is immaterial, and Richardson’s entire case hinges on it being material.”

  Marty’s head went down as he exhaled loudly, his hands thrown up in frustration.

  “I…shouldn’t even try to follow this insanity.”

  “Again, Marty, trust me! Seriously!”

  He was nodding, his expression grim. “I do, I will, but good Lord I don’t understand this. I thought criminal defense was supposed to be straightforward, and here I am with my life hanging in the balance and I find out it’s nothing but a fucking game!”

  “I know it seems that way, and maybe it is to a certain extent, but it’s the best method we’ve come up with to try to get at the truth.”

  He looked up, a sarcastic expression painting his features. “Yeah, and they can’t handle the truth, right?”

  “Marty, they can’t handle the truth because they don’t know what it is. We do.”

  Judith sighed as she checked her watch. “Okay, everyone hit the restrooms and let’s get back in there. Poker faces in place. Borkowsky is still my witness for cross. No talking on the way in. Everyone…especially Marty…did good walking down here. Please give me a repeat performance.”

  The senior partners had promised Judith Winston the best support possible to defend a major criminal case, and the lynchpin of that support had come early in the trial preparation in the welcome form of a veteran criminal defense lawyer who also happened to be an old friend from her early days of practice.

  Joel Kravitz, in his seventies, gave the visual impression of being ten years older, his craggy features, gravelly voice, and slightly stooped posture masking a razor-sharp mind that had navigated a half-century of criminal law. When Joel Kravitz and Judith were alone in the room, she looked at him the way an advanced student checks a beloved professor after a presentation.

  “What do you think?” she asked.

  He exhaled and inclined his head. “The basic plan, Judith is reasonably sound. But what you must do, without question, is convince that jury – or at least one of them – that in fact the airline was wrong about slowing down being the only way. You’re right, of course. Richardson is going for a straightforward kill on the statute. He’s not expecting this tactic. He’s so disgustingly angry…I can tell…he’s left himself open to a mistake like this.”

  “His mistake?”

  “Yes. Of course. But don’t get cocky. This is still a long shot and that jury will be more inclined to buy Richardson’s binary argument than follow your more complex reasoning.”

  “God, I wish we knew, and could explain, how Marty lost control and dug a wingtip.”

  “Speed had nothing to do with causing that. Well, I mean, I’m no flyboy, but the research does show that despite Butterfield’s statements, there was, in fact, a credible chance he could have made it, primarily because two thousand feet of Runway Seven had not been plowed further and would have provided back-door braking. That changed the equation. That uncertainty is a tiny thread, admittedly, but it’s sound.”

  “So, you’re happy?”

  He snorted, a twisted smile on
his craggy face.

  “HELL no! I’m never happy until double jeopardy attaches and my defendant is acquitted. Then I’m not happy ‘til I’m paid.”

  “You’re a curmudgeon, Joel!” she teased.

  “And that’s why you love me!” he replied.

  CHAPTER THIRTY-FIVE

  Present Day – September 10

  Police Department, Denver International Airport

  Being summoned away from the courtroom at the height of a murder trial was both a relief and a worry; an uneasy balance between the targets of his curiosity.

  Scott Bogosian glanced at his watch, which proclaimed him ten minutes early for the appointment that the chief of police of Denver International Airport had requested. Scott sat back and let his thoughts slalom freely around the last two days of Marty Mitchell’s trial, noting that his dislike of Grant Richardson had increased markedly. Maybe it was disgust that a pilot was being forced to fight for his freedom for doing his job imperfectly, a perception that triggered a feeling Scott did not want: a sense of common cause with the pilot. Or perhaps it was the smarmy intensity of the practiced litigator and the constant feeling that Richardson was sneering at anyone who did not believe Mitchell should be drawn and quartered without further ceremony.

  Those, of course, were not the words Richardson had unleashed at the jury. His opening statement had been full of righteous indignation about a paid servant of a company with smarter people at the helm who had issued the gospel according to Regal Airlines, and the unbelievable, unforgivable act of the renegade captain to reject that wisdom. It was, Richardson said, open and shut, and the jury would find it very easy to dispense with the case by voting quickly for a guilty verdict. The rest, he warned, would be smoke and mirror verbiage from the defense solely designed to pull the jury off target. After all, he told them, the defense has no defense.

  “It’s terribly simple, folks,” Richardson had said, as if talking to a tight team of intellectual equals about to be egregiously bored by morons, “…the law…The Law…okay? The law says, with crystal clarity, that when someone in this state knowingly causes the death of another, that person is guilty of second degree murder. ‘Knowingly’ means that you are informed that if you do a particular thing, it will cause a death, but you do it anyway, and, indeed, a death occurs. You’re then a murderer. No if’s, and’s, or but’s. No qualification. And that is precisely what the state will show: that pilot in command Martin Mitchell did something he was informed in no uncertain terms would, in fact, cause the death of at least one other human. He rejected that wisdom and did what he was told not to do, and sure enough, people died. End of case. Guilty is your only possible verdict.”

  “Mr. Bogosian?” a uniformed officer was leaning over him.

  “Oh! Yes. Sorry.”

  “The chief wants to know if you can wait about fifteen minutes while he deals with a routine emergency?”

  “Sure,” Scott replied, wondering exactly what emergencies could be considered routine at a major airport.

  He settled back in the waiting room chair, recalling the look and the smell of the huge tire he had been inspecting so carefully in the nearby warehouse days before. Whatever had gouged the extremely tough rubber had gone from front to back along the left side of the tread. It was no more than a quarter of an inch deep, but the question that was bothering him most was whether the tire had touched something prior to the launching of Flight 12, or something moments before the crash.

  Scott had leaned in to get as close a look as his eyes would allow and by playing the flashlight around the cut, began to realize what he was staring at: a small amount of colored substance along and embedded inside the cut. It looked for all the world like flecks of yellow paint, but just a small track of it.

  Scott had glanced around furtively, verifying that the NTSB investigator who had been his willing host was elsewhere for the moment. He pulled an envelope from the inside of his jacket...another overdue bill, but the envelope would do. Using a penknife, he scraped as much of the yellow substance as he could into the envelope and quickly stowed it and the penknife before standing.

  “Really fascinating,” Scott said, his voice causing his host to turn around some thirty feet away where he’d been inspecting a part of the broken fuselage.

  “I’d like to see the top of the right wing over there, if I could,” Scott added.

  “Sure,” the investigator replied, turning and waving him into motion. “It’s an incredible sight, how that Beech fuselage rammed itself into the wing structure without taking out the wing spar and collapsing the wing. There’s no way they should have stayed attached with them flying for over a half hour at such a speed. In fact, there’s no way anyone should have survived such a midair collision to begin with.”

  Twenty minutes later, emerging into bright daylight, Scott had thanked the man profusely before lofting a final question.

  “There’s no yellow paint used on the runways here, right? No surface signage?”

  “Not that I know of. That’s a rather odd question.”

  “Just curious. I get these little dangling facts sometime that don’t fit the mosaic.”

  To Scott’s relief, the investigator considered the remark too far out to pursue. He decided to let it go, probably wondering if anyone could explain how reporters think.

  Scott remembered not a moment of the drive back to town, but he recalled clearly obsessing over the incongruities. He knew the airport and its equipment well. No yellow paint was used on the snowplows, or the airport supervisory trucks. Yellow was used on all the fire trucks and fire command cars, but according to Josh Simmons, absolutely all of the fire and rescue equipment had been well accounted for as Regal 12 flew over.

  So, where was the source of the gouge and the yellow paint? What could that tire have grazed? Maybe this, too, was nothing – but the loose-end aspect of it wouldn’t leave him alone, especially since he’d read at least five times the transcript of the NTSB’s interview with the captain:

  NTSB: Captain Mitchell, you say a bright light appeared just in front and to the right, startling you.”

  MM: Yes. I couldn’t tell if it was like headlights or a single light but something clearly was in the way, on the runway, at the last second. I figured it was a snow plow in the wrong location and to understate things, I did not want to hit it.

  NTSB: The First Officer has reported to us that he did not recall seeing such a light.

  MM: Maybe he didn’t. I did. Things were happening very, very fast at that speed.

  NTSB: But Captain, if a vehicle was on the runway and its lights on sufficient for you to see, and if the copilot was looking out as well, why would you have been the only crewmember to see it?

  MM: You guys calling me a liar?

  NTSB: Certainly not, Captain Mitchell. We’re trying to…

  MM: There was a light from something down there right in front of us and it would have been potential suicide to continue descending into it.

  NTSB: You are aware that the airport authority reports that there were no vehicles on that runway, and that all airport and fire vehicles were accounted for.

  MM: Yes. That’s what they say. But something was there.

  NTSB: Did you tell your copilot you were seeing a light?

  MM: No. There was only time to react. Did I tell him? We’re talking a split second!”

  NTSB: Could you have mistaken a runway edge light or one of the approach lights for a vehicle?

  MM: Absolutely not. I know what I saw, and it was not an approach or runway light!

  Scott’s assumption that he could pull a very big favor from the head of the Colorado State Patrol’s crime lab had almost been proven wrong, but an impassioned plea won the day. It was obvious, however, that there would be no future concessions. He’d dropped the yellow scrapings off at
the lab and hoped for a call back that hadn’t come for six days. But at last, with the trial of Captain Marty Mitchell in its fifth day, Scott’s phone rang withthe lab director on the other end.

  “Scott, your substance is automotive paint, used only on Chevrolets manufactured between the years of 2004 and 2006. Called Wheatland Yellow. Does that help?”

  “Immensely. Thank you!”

  “I can’t send you a formal report, but I can send the basics to you via email, and I’ll preserve the sample that’s left.”

  Just as the trial had adjourned for the day, a quick call to the Denver Airport Police had snagged the chief on his way out of the door. Scott had met the veteran cop months before and dutifully followed his habit of taking business cards or asking for phone numbers.

  “May I ask you a question…partially a legal question?”

  “Sure.”

  “All of this is off the record, if that’s okay with you.”

  There was a chuckle from the chief. “Wait, aren’t I supposed to ask that?”

  “Works both ways, sir. Okay, here’s the question. If an airport worker drove his appropriately tagged private vehicle onto a closed runway during the January blizzard, without authorization or clearance, about the time of the Regal crash, would that be a police matter?”

  There was a calculating hesitation on the other end.

  “Well, that would definitely be a disciplinary matter but…yes, we would want to know about it.”

  “Chief, there is a small streak of yellow paint confirmed to be from a Chevrolet product manufactured between 2004 and 2006 found in a lateral gouge on the bottom of the right rear tire on the right main gear of Regal 12. The captain maintained to the NTSB that a pair of headlights suddenly came on in front of him that night on final approach and directly influenced his actions, but there has been no proof, and essentially, the story has been discounted. Now, there are no official yellow Chevrolet cars or trucks as far as I can tell in the airport inventory. Additionally, of the fire and rescue equipment on the field – all of which is painted a different, almost greenish shade of yellow – none is made by General Motors. So, would it be possible for you to run a check of all the private vehicles which have permits to be on the air side of the airport to see which ones might be yellow Chevy products manufactured between those years?”