Skyhook (47 page)

because of the serious possibility of destroying the exculp—I mean, because they may ruin the evidence, in the long term as well. So, even if we were able to secure normal due process, it may not come in time.”

“That’s it?” the judge asked.

“Yes, Your Honor. I believe so.”

“Well, you’d best be sure. Do you have more to add to this oral argument or not?”

Gracie sighed and looked down for a moment, shuffling the papers before her and trying desperately to find anything else that she hadn’t argued. It was as if she were back in law school trying to defend her interpretation against the impending onslaught of her constitutional law professor, who had been one of the most frightening, arrogant, and devastating humans she’d ever encountered.

What am I missing? It was the same question she’d asked herself in those classes as the professor paced and rolled his eyes at her stupidity.

Oh, God! Of course! “Your Honor, I’m sorry. I almost left out the basis of our adding the FAA to the TRO request, and as a respondent in the show-cause petition.”

“By all means, go ahead, Miss O’Brien.”

“Thank you. Specifically, we have factual reason to believe that the FAA, directly or through various staff members, inspectors, or other personnel, is actively attempting to tamper with, hide, or destroy evidence that would invalidate its enforcement actions against Captain Rosen. We believe the FAA is directly or indirectly involved in taking the wreckage, and we have reason to believe that it is hiding FAA air traffic control radar record tapes that would show the presence of another aircraft at the very place and altitude where Captain Rosen’s aircraft lost the propeller blade. This belief is buttressed by the Coast Guard’s confiscation of the videotapes Captain Rosen’s daughter made of the wreckage before being ordered off the site, and from the fact that FAA personnel in Anchorage lied to Ms. Rosen about the ability of their radar to track an aircraft flying at the low altitudes flown by Captain Rosen just before the accident. In brief, Your Honor, we believe that there may have been another aircraft operated by, or for, an arm of the U.S. government with FAA knowledge, which may have struck a glancing blow to Captain Rosen’s aircraft, leading to the loss of the propeller blade and thus the loss of the aircraft. If so, the aggressive moves to recover and hide

the wreckage, suppress any videotaping of the wreckage, suppress radar tapes as well as misrepresent their contents, form a prima facie pattern of official deception. The purpose of this deception is unclear. It may be for the purpose of supporting the FAA’s misguided attack on Captain Rosen, or it may be for the purpose of hiding or keeping secret some other operation that intersected Captain Rosen’s flight path. In any event,” Gracie summed up, “the career of an honorable and senior airman hangs in the balance with massive monetary and reputation loss, and the FAA should be denied the ability to collude in any manner whatsoever in the suppression of evidence.”

“Now are you through?” the judge asked.

“Yes, Your Honor.”

“All right. Counselor, the level of proof required to make a prima facie case that any arm of the United States government is engaged in illicit or illegal coverups is very high, and it is a burden I expected from the beginning you would have a difficult time reaching. Governmental agencies—and you’ve sued the Coast Guard and the U.S. Navy as well as the FAA here—seldom get the idea they can abandon’the law and all accountability. Thus, if some arm of the military, for instance, did take the wreckage of your client’s aircraft, there is no justification for automatically assuming that it was done illegally or for nefarious purposes, or that they will so mishandle that wreckage that evidence will be destroyed. Hollywood may make such assumptions, but rational jurists and courts do not. Second, there may be very good reasons for confiscation of an underwater videotape that are wholly unrelated to any desire to help the FAA prosecute an individual pilot, and again there is a high burden on your shoulders to make that case sufficient to justify a TRO

and the attendant hearing. The fact that these things occurred is not enough. Finally, a tough FAA inspector offending your client with tough questions does not necessarily constitute prejudicial bias in contravention of due process, nor does your argument with respect to the FAA’s involvement make much sense to me. They’ve taken your client’s license because he had an accident, and they deem it to be a result of

multiple violations. Despite the inconvenience of his being on the ground for awhile, there is a due process procedure for appealing that action, and you may be wasting time in starting that formal process by being here. The fact is that you’ve given me little reason to conclude that the FAA knows anything about the movement of the wreckage, what is or is not on radar tapes, or the presence or absence of other aircraft, other than the fact that their enforcement action might benefit from the absence of the alleged proof you claim is in the wreckage. These are rabbit trails leading in all directions, and yet you want me to accept them in a way that presumes essentially evil intent on the part of the FAA, the Navy, the Coast Guard, and God knows who else.

I’m sorry, Miss O’Brien, but I—”

“Your Honor, may I add one more thing?” Gracie said suddenly, the risk of angering the judge with an interruption paling against an impending rejection of everything Gracie had tried to accomplish.

“Oh, must you, Counselor?”

“Yes, Your Honor. In direct answer to your points.”

Judge Walton sighed and studied Gracie’s face for a few seconds.

“Very well. Go ahead. Briefly.”

“The burden in an equity request for a TRO is on the moving party to state a case that, if factually true, would constitute grounds for injunctive relief. I respectfully suggest that Your Honor is raising that burden higher than the law requires only because this involves the government, and that by so doing you are demanding that I state not only a potentially viable case, but one that logically convinces this court as well. That is not the requirement I have to meet. In fact, I believe I have met the burden, Your Honor. Your detailed examination of the testimony and pleadings are to be made in the show cause hearing, not here.

There is where the court may determine whether the alleged facts I have presented are sufficiently credible. In other words, I ask the court—I plead with the court—to go ahead and issue these TROs and permit the government to answer, before simply sweeping these actions aside, leaving Captain Rosen no pos sible recourse if our allegations are true. The one operable question, Your Honor, should be simply this: If, by some strange anomalous and unprecedented twist of fate I’m right and the FAA has illicitly colluded through other agencies to deprive Captain Rosen of his right to due process, his right to preserve evidence, and his right to exonerate himself, is justice in any way served by cutting off the process at this point?”

Gracie felt her heart fluttering as she watched the fingers of the judge’s right hand drumming on the bench, her other hand cupped under her chin as she leaned forward and stared at Gracie in thought. There was dead silence in the courtroom, except for the hiss of the air-conditioning system and the final keystrokes of the court recorder, who looked up now, first at the judge, then at the lone lawyer standing and waiting nervously for the ruling.

Another sigh from the bench. The judges hand left her chin. The drumming stopped, as did the movement of time in Gracie’s mind.

“Miss O’Brien, that argument violates my ban on flowery language, but it did contain a certain symmetry of thought. I have no doubt that my initial impression will be borne out, and that the dark conspiracies envisioned here will be shown to be nonexistent.

However, in a phrase, you’re right. I was about to hold you to a higher standard than necessary. I’m very much of the opinion that none of these TROs should be granted, but… your question of whether justice is served by dismissal is sufficiently provocative to justify a conservative course here. So, I will issue these TROs and—though it will infuriate my clerk and consternate my fellow members of this bench by interrupting the normal flow of business before this court—I’m going to set a show-cause hearing for tomorrow morning at ten. We’ll see what the FAA and the rest of the government has to say.”

“Thank you, Your Honor.”

“I seriously doubt these TROs will survive their answers, but we shall see.”

When the judge had signed the orders and left the courtroom, Gracie collected the copies from the clerk and walked carefully toward the door with April at her side.

“Gracie, what…” April began, but Gracie put a finger to her lips to quiet her until they were outside in the foyer. They found a bench to sit on and Gracie plopped down, her hand shaking slightly as she held the signed orders.

“That was magnificent, Gracie!” April stage-whispered excitedly, shaking her upper arm.

Gracie’s eyes were closed, her breathing metered as she motioned to wait. Her eyes fluttered open at last and she looked at April and shook her head.

“We almost lost in there.”

“I know, but you yanked her back to reality and won!”

“It’s … I mean, don’t count any chickens, April.”

“We’ve got them on the run now, though. Right? Hey! Let me see at least a little victory smile.”

Gracie nodded, a quick smile flickering across her face, then fading. She looked at April, her eyes haunted.

“She’s right, you know,” Gracie said.

“Sorry?”

“The judge. The government will respond like an anaconda with a blowtorch to its tail. We’ll get a half dozen assistant U.S.

attorneys in here tomorrow morning to buttress the judge’s opinion that this whole thing is a delusional construct of a panicked young lawyer’s mind. They’ll have her convinced I’ve been reading too many mystery thrillers. They’ll say they don’t have the wreckage, they have no idea what I’m on about, and they’ll claim that the FAA has virtually no knowledge of the allegations we’ve made, other than the fact I’m defending a dangerous man whom they’ve saved the public from by the license revocation. They’ll point out that the blood tests in Anchorage proved nothing because too many hours had elapsed since the accident. They’ll lean heavily on the visual-flightinto-instrument thing, and it’s the majesty of the government’s word against ours.

They’ll slide, dodge, lie, wink, and roll their eyes, and in the end, she’ll throw it all out.” Gracie sighed. “We got the wrong judge.”

“Wait a minute. Won’t they have to at least cough up the tapes the Coast Guard took?”

“Oh, they’ll have a story about those tapes being shipped in from Anchorage, but they’ll be erased by the time we ever see them.”

“Gracie, good grief! Listen to you!”

Gracie shook her head and looked down. “I’m sorry, April. We have to face reality. The only way we’re going to fight this is the traditional way, using the normal FAA and NTSB appeals method.

I’ll have to call the captain—”

“Not with a defeatist pity party in progress you won’t!”

“It’s not a pity party. But… well, okay, maybe we can wait awhile.”

“You’re not going to go defeatist on me, Gracie.”

“I’m not trying to be defeatist. I’m trying to be practical and think ahead to the inevitable. This… this was a good gamble, but we’re going to lose it. I’m not saying it wasn’t the right thing to do.”

“Wait… look. Think about your own logic in there. I thought you were brilliant. But go further. If the FAA and the Coast Guard and the Air Force and Navy as a team really are guilty, as we know they are, what would you expect their lawyers to do tomorrow?”

“Sorry?” Gracie looked up, only half listening to the pep talk.

“Actually, you just told me what they’d say in great detail. So why not take the wind out of their sails and start your argument in the morning with their arguments. Give the judge their arguments before they do, and dismember every one of them. You get to go first, right?”

“Yes.”

“Then label the arguments you know they’re going to make for what they are. Lies and dodges, smoke screens and clever side steps.

Convince the judge that they’re simply avoiding answering the real questions in hopes she’ll dismiss our case just on their say-so.”

April saw the logic take root as Gracie looked up and nodded, slowly at first, a faint smile returning to her face.

“That could help, April.”

“See?”

“It really could. But I’ve got about a week of work to do in one day.” She got to her feet. “Starting with the not so insignificant task of figuring out how to serve notice on the appropriate government officials. Let’s go.”

“Back to the hotel? Shouldn’t we eat something first?”

Gracie was shaking her head, her energy returning. “Go without me. It’ll take a few hours to get these served. When I get back, just toss some candy bars and coffee in every now and then, and no matter how much I yell or beg or plead, don’t let me out.”

“I think I’ve heard that line before.”

Gracie realized she was holding her breath as she waited for the judge to make her ruling. She glanced at April, who flashed a reassuring smile and a small nod, but the intensity of the previous ninety minutes and the energy she’d put into arguing the case were taking a toll on her ability to concentrate. She could see the government lawyers in her peripheral vision as they sat at the adjacent table shuffling papers and exchanging knowing glances. Five of them had shown up, including one newly minted lawyer as young as she. The lead attorney had forcefully argued his way through an impressive list of reasons why the judge should throw out the case and stop wasting everyone’s time. There was, they argued, no jurisdiction, insufficient notice, cases wrongly transferred, an improperly admitted petitioner’s attorney, procedural flaws in the complaints, and the basic fact that it was useless to order the government to produce wreckage they didn’t have.

Gracie had startled the government lawyers by following April’s suggestion and stating the government’s arguments herself, batting

them down one by one, but the judge was very good at being impassive and unreadable.