John Nance - 16 Souls

“But, Judith, that screws the whole principle of captain’s authority! I mean, that’s worldwide international law!”

She chuckled ruefully and shook her head. “You know, in law school, one of the universal legal answers to any question — we learned this almost in the first month — was: ‘Well, yes and no!’ and I’ve got to use that phrase to answer you now. Yes and no. Yes, this case involves second guessing a captain’s authority, but no, it is not necessarily inappropriate to require accountability after the fact. If you decided to shoot and kill a passenger, you would be called after the flight to defend yourself as to why that killing shouldn’t be ruled a homicide. Similarly, you can legally decide to land overspeed, but if you do so, you can be held accountable for the correctness or appropriateness of your decision.”

“Jesus! So, it’s perfectly okay for society to prosecute someone like me for making the best decision I could possibly make for the best interests of all? What a wonderful society! Remember, Judith, it wasn’t a case of choice A versus choice B, and only one might result in death. Both choices — either choice in this case — bore a high probability of death. There was no Plan C.”

“And, Marty, that’s exactly the point, that this is a ridiculous case when viewed in the greater framework of what society wants and needs. We need decisive captains who can do their best in a dire emergency, captains, and first officers, who are unafraid to use their best judgment. And they need to feel the support of our legal system beneath their wings. This case is going to set a vital precedent, one way or another, and losing it directly harpoons flight safety worldwide.”

If you ended up convicted for doing your best, can you imagine the chilling effect on virtually every pilot out there who might face an emergency some day? “

“I don’t want the union involved. They can file friend of the court briefs later if this ends up the wrong way, but no… not now.”

“Okay. They do have an interest. We don’t need captains trying to act as lawyers in the middle of a major emergency because they’re afraid they might be prosecuted for an honest decision that went wrong! Criminal law was never supposed to be applied this way, and hopefully the jury will see that with clarity and spend five minutes finding you innocent.”

“And if not?”

“Don’t go there!”

“I’m not plea bargaining, you know that, right?”

“Absolutely! I was only going to sneer at any offer from the DA, but he never opened the door!”

Marty stopped and looked at her with a puzzled expression. “What does that mean, Judith? Why wouldn’t he try to sell me a plea bargain and assure a conviction, versus, as you call it, rolling the dice that I might be exonerated and he’d look stupid… not that he isn’t?”

“Not offering a plea means one of two things. First possibility, that this whole prosecution nonsense and all his grandstanding and the unnecessary submission to the grand jury is some sort of theatrical production for him, and he doesn’t give a rat’s ass whether he convicts you or not as long as he gets a chance to strut indignantly around the courtroom and show the world how much he resembles F. Lee Bailey, Jeanine Pirro, or Perry Mason from an earlier age.”

“What’s the second possibility?”

“That he is genuinely outraged at your decision not to slow down, and he does care about convicting you. If that’s the case, where does that outrage come from? That’s a prosecution born of passion, and it feels to me like malicious intent. Not only does that usually subvert justice, but if I could find out what it is, and if it was significant enough, it might be sufficiently embarrassing to him to sour the jury in your favor on what we call prosecutorial misconduct. You know, get the jury angry over the idea that this whole thing is based on some personal axe he wants to grind.”

“You can tell a jury that?”

“Not directly, and I may have to be really sneaky to get it in front of them. I may have to risk censure from the judge or even contempt, and risk a mistrial. Of course, if it was really a major personal conflict, I could attack the indictment as having been issued under undue influence. But, before I can tell the jury or do anything, I have to discover myself what the hell that motivation is… and right now I haven’t a clue. It may just be that he’s getting older and meaner.”

“Anyone we can ask?”

“We’ve had a private investigator on this for weeks… one we use often. Hopefully he’ll dig up something. We’ve got another PI firm doing everything they can to find out whether there was a snow plow on that runway, or what those lights were that distracted you. As far as Richardson’s anger? I don’t know… maybe Regal Airlines lost his bags sometime in the past or refused to give him a free first class upgrade, or worse, didn’t recognize who he was at the gate!”

Marty looked puzzled. “What would any of that have to do with coming after me?”

“I’m trying to be funny… and not obviously not succeeding. Sorry.”

“Oh.”

“The investigators are supposed to report back this afternoon.”

Marty shook his head. “The trial starts in two days.”

“Believe me, I know.”

“Judith, I want to testify. I know I don’t have to, but…”

She had her hand out to stop him as she nodded an assent. “I want you to. But I want you to be very, very aware of the fact that you have to stay extremely calm, because Richardson will try to gore your goat and get you to show anger or arrogance. The jury needs to see you as the consummate captain — the unflappable guy with icy steadiness they would want flying their loved ones around, and a guy who is being persecuted by a bully of a DA. You can’t whine about being prosecuted, and you can’t go into some diatribe about the injustice of it all. That will lose the jury in a heartbeat. You absolutely must be calm and professional and serious and as certain that you made the right choice as you are broken over the results. Can you do all that?”

“A month ago, hell no. A week ago, maybe. Now… yes.”

“Good. Remember that classic movie, “A Few Good Men,” with Jack Nicholson playing a flint-hard Marine, Colonel Jessup?”

“Absolutely.”

“Can you quote Nicholson’s best line?”

“That’s a strange request. But, yes, so happens I can.”

“Go ahead,” she said, crossing her arms and sitting back for the performance.

He took a deep breath and leaned forward, adopting a furious expression, eyebrows flaring and index finger wagging the air, his voice thick with sarcasm.

“You want the truth? YOU WANT THE TRUTH? YOU CAN’T HANDLE THE TRUTH!”

She clapped slowly and smiled. “Very good!”

Marty relaxed back into his chair, his face returning to normal. “That was kinda fun, but I don’t get the point.”

Judith leaned forward then, looking him steadily in the eye for an uncomfortable few moments before speaking.

“The point is, you can’t be Colonel Jessup, Marty. Colonel Jessup goes to prison.”

Denver — Brown Palace Hotel Churchill Lounge

Entering the plush, leather-bound, cigar-friendly Churchill Lounge in the historic Brown Palace Hotel was always a mixed pleasure for Scott Bogosian. He loved the hotel with its central atrium and 1890’s history, and he also loved the wafting aroma of rich, varietal cigars which enveloped the lounge’s patrons on entry. But any visit had its price: as an ex-smoker of cigarettes already worried about the damage he might have done to his lungs in the past, the temptation to smoke a cigar or to just give in and re-start the two-pack-a-day cigarette habit always reverberated for about a week.