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  “That was…those were major considerations, yes.”

  “Were you worried about damaging the airplane?”

  “I don’t understand the question.”

  “Well, was your primary concern about the speed and the length and the drop-off that if things didn’t go just right, the airplane might be damaged? Was that your primary concern?”

  “Of course not.”

  “A yes or no will suffice.”

  “No.”

  “Very well. Was your primary concern in aborting the landing on Runway Seven the safety of your passengers, including the people on your right wing?”

  “Yes.”

  “Did you then decide to land on Runway Three Six Right because it would run a lower risk of injury to your passengers, including the sixteen on the right wing?”

  “Yes.”

  “The primary component of your concern…the reason this wouldn’t be a normal landing…was the excessive airspeed?”

  “Well, I was trying not to kill the people on the right wing.”

  “Understood, Mr. Mitchell, but…”

  “Objection, Your Honor,” Judith interjected. “May we have a sidebar and approach?”

  Richardson shrugged and the judge motioned them forward.

  “Go ahead, Ms. Winston.”

  “Judge, there is a level of purposeful disrespect for the witness in refusing to address him by his title of ‘captain.’ This trial, and the charges leveled by this district attorney, wholly concern his official conduct as a captain, and Mr. Richardson’s tactic of addressing him as ‘mister’ is a calculated ploy to negatively influence the jury by heaping scorn on the witness. I move that the court forbid it.”

  “Judge,” Richardson answered, shaking his head, “Mr. Mitchell is a citizen like all of us. His rank is not military, nor governmental, such as would be the case if he were an ambassador or senator statutorily entitled to the use of a title. ‘captain’ is merely a commercial title. Indeed, even the FAA does not use the term ‘captain,’ they use ‘pilot in command.’ He is not charged with a crime his airline committed, he is charged with personally committing a crime. Ms. Winston’s motion should be denied.”

  Gonzales sighed and rolled his eyes. “Counselors, this amounts to squabbling and I don’t appreciate squabbles in my court. But, Ms. Winston is correct. Mr. Richardson, have you ever used the suffix “esq” after your name to designate that you’re a lawyer?”

  “Ah…yes, Your Honor, but what does…”

  “So have I, and that is not a statutorily imposed requirement. You will address Captain Mitchell as Captain Mitchell, because this action is inextricably intertwined with the essence of this professional position. Proceed.”

  “Captain Mitchell, is it true that with or without the fuselage on your right wing, the primary element which made any landing more risky was the excessive airspeed of two hundred thirty knots?”

  “Yes.”

  “And you chose Runway Three Six Right to lessen the detrimental effect of that airspeed?”

  “Yes.”

  “Could you guarantee that even on Runway Three Six Right that excessive airspeed would not magnify, or make far more lethal, anything else that might go wrong?”

  “No.”

  “So, whether there was a car in front of you on Three Six Right or not, the excessive speed put everyone at greater risk?”

  “Technically, yes.”

  “Wasn’t the excessive speed the essence of what Mr. Butterfield and your airline were trying to warn you about?”

  “Yes, for Runway Seven.”

  “But, you just stated, did you not, that it was the excessive speed that would be a problem for any runway?”

  “It would raise the risk.”

  “For instance, it could cause tires to explode.”

  “Well, the tires are good to two hundred twenty-five knots and this was a cold surface, so, no, the tires were not a problem.”

  “But if anything went wrong, excessive speed raises the risks.”

  “Yes.”

  “And you said the risk you were worried about was not the risk of damaging the aircraft, but the risk of hurting someone, correct?”

  “Yes.”

  “Including the risk of killing someone?”

  “Yes.”

  “And although you speculated and were using your best guesswork, you in fact had no way of knowing at what speed or angle of attack you might lose the fuselage of Mountaineer Twenty-Six Twelve, correct?”

  “That’s correct.”

  “So, therefore, you could not guarantee that slowing to a normal approach speed would or would not result in the loss of anyone in the Beech fuselage, correct?”

  “No, but I had to use my best judgment that it would.”

  “But you didn’t know for an aerodynamic and structural certainty, did you?”

  “No.”

  “And approaching Runway Seven and then deciding to land on runway Three Six Right were volitional decisions?”

  “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 an
noyance 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.”

  “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 i
n 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.”