John Nance - 16 Souls

Grant Richardson was standing beside her now, making his case with equal force that the question the defense attorney was asking presupposed that advice was required. Judge Gonzalez raised his hand in a stop gesture, his ruling surprising Judith who was already working on an alternate query. Richardson seemed equally surprised.

“Objection overruled. Ms. Winston, you may proceed.”

“Thank you, Your Honor,” she replied, turning back to the witness. “First Officer Borkowsky, did you offer the captain any advice or recommendation regarding the speed to be used on landing subsequent to the satellite phone call between the captain and the company?”

“Yes.”

“Would you tell the court and the jury what that advice or recommendation was?”

“I told the captain we should slow for landing.”

“And it is your testimony that you provided that advice after the satellite call between Mr. Butterfield and Captain Mitchell?”

“Yes.”

“Not before, but after?”

Richardson was standing again. “Objection! Asked and answered.”

“Withdrawn,” Judith replied smoothly, stepping closer to Ryan, her eyes going over the papers in her hand and a puzzled expression on her face.

“Sir, I don’t see any such advice on the NTSB transcript.”

Grant Richardson leapt to his feet again, his voice pained.

“Your honor, I object! Now she is testifying!”

Judith had her hand in the air. “I’ll rephrase the question.”

“Continue,” Gonzales added.

“Let the record read that I am now showing opposing counsel, and the witness, defense exhibit E, the transcript released as public information by the National Transportation Safety Board of the cockpit voice recorder. Mr. Borkowsky, this is from the top of page fifty-three, lines 18 through 21, I am going to read out loud for the jury and I’d like you to follow along. Okay?”

“Yes, ma’am.”

“Captain: You okay for a few more minutes, Ryan? I need to talk to the company. First Officer: Yeah. I’m getting used to her now. We’re gonna slow for landing, right?”

Judith paced for a few seconds before looking back at the first officer.

“Mr. Borkowsky, you testified that you advised the captain to slow down after the satellite phone call between Mr. Butterfield and your captain. Does the exchange I just read from the cockpit voice recorder contain advice?”

“I’m… sorry?” Borkowsky was looking trapped, and his expression morphed into frustration.

“I’m trying to understand if the question, ‘We’re gonna slow for landing, right?’ is advice you provided the captain.”

“Yes.”

“But that was not the advice you testified you gave after the satellite call, is it?”

“Yes, it is! That was the advice!” his voice was rising in volume and tone, his right hand flailing the air. “I didn’t have to… to give him a formal statement! We know what each other means in the cockpit.”

“So, Mr. Borkowsky, the only advice you gave the captain was the phrase I just read from the CVR transcript?”

“Yes, I think so,” Borkowsky sighed, shrugging his shoulders.

“But you testified, did you not, that you gave advice on slowing down after the satellite call, correct?”

“Objection, Your Honor! She’s badgering the witness.”

“Overruled, counselor!”

“Mr. Borkowsky?” Judith said.

“That WAS the advice! I said so. This is ridiculous!”

Judith suppressed the smile she would normally have displayed at the very outburst she was hoping for.

The first officer looked like he was going to bolt in terror. At the defense table, Marty had turned to one of the lawyers with an incredulous look which deepened when the younger attorney shrugged his shoulders.

Judith was approaching the first officer again, her eyes boring into his.

“The statement I read is merely a question and not an advisement?”

“No! It was advice. I mean it was obvious I meant he should slow.”

“Were you afraid of Captain Mitchell?”

“No! Not at all.”

“Do you consider him a tough captain?”

“No.”

“Was he difficult to talk to?”

“No! I mean, he’s a bit stiff and disapproving sometimes, but we got along just fine.”

“Did you elect, that day, in that emergency, to give advice in the form of a question because you were concerned he might not like what you had to say?”

“No. I could tell him anything.”

“Was it important that he slow down for landing?”

“Yes.”

“If the speed on landing was important, and if you were not afraid of Captain Mitchell, and if he was not hard to talk to, and if you could ‘tell him anything,’ and if the both of you got along ‘just fine,’ why, Mr. Borkowsky, have you been unable to direct the court’s attention to any evidence attributed to you that would have constituted a recommendation to slow down for landing, instead of a question?”

“I… knew he was thinking it through.”

“Mr. Borkowsky, I am handing you the aforementioned defense exhibit E, and I call opposing counsel’s attention to page 116, line 25. At that point in the CVR transcript, as I have tabbed it, the satellite conversation between Mr. Butterfield and Captain Mitchell begins. Do you see that?”

“Yes, ma’am.”

“Yet the phrase I read, and which you testified constituted your advice to the captain to slow down, appears on the same CVR transcript at page 53, as I previously indicated.”

“Your Honor,” Richardson interjected, “Objection! Is there a question in there somewhere?”

“Ask your question, Ms. Winston.”

“Yes, Your Honor.”

Judith’s mind was racing through the tutorials Joel had given her, and chief among them was to never start a question with ‘isn’t it true,’ although that was what she dearly wanted to lead with next. She sighed internally and turned back to the witness.

“Mr. Borkowsky, it was your testimony that you did provide such advice subsequent… in other words, after… the satellite call?”

A worried expression passed over Ryan Borkowsky’s features as he sensed a trap he couldn’t find. “Yes.”

“Then, could you explain, sir, why the transcription of the question that you asked of the captain — the question that you say constituted advice subsequent to the satellite call — can you explain why that begins on page fifty-three of the same transcript, some sixty-three pages and a considerable amount of time before the satellite call?”

“I… ah… I thought it was before but… I guess I was wrong.”

“In fact, you did not advise the captain to slow down for landing subsequent to Butterfield’s satellite call.”

“No ma’am. I’m sorry… I mixed up the sequence.”

“Mr. Borkowsky, maybe I haven’t been as clear as I could have been with my questions. I apologize. I’ll try my best to be more specific. It’s your testimony today that you provided advice to the captain in the form of a single question that was asked before the satellite call.”

“Yes.”

“Why did you not advise the captain to slow down after that call?”

“I… I don’t know. I mean, there were other choices.”

“Other choices for how to land and where to land?”

“Yes.”

“Did the company’s advice regarding speed cover all possibilities that you and Captain Mitchell considered?”

The shadow of relief appeared on Ryan Borkowsky’s face as he appeared to re-inflate, squaring his shoulders slightly and coming out of the defensive slouch that had characterized his last fifteen minutes on the stand.

“No. Butterfield was concentrating on just Runway Seven, and I was too, but Marty… Captain Mitchell… was thinking beyond that.”