An Engineered Injustice (Philadelphia Legal)

by Myers, Jr. , William L.

  “Your Honor?”

  “Objections?”

  “None. Again, my client and I want to ensure that the full nature and scope—”

  “No speeches, Mr. Coburn. First warning.”

  “I apologize.”

  Judge Johnson sighs. “I will admit the photographs but will not view them or consider them in my decision.” Then, to Christina, “Continue.”

  The assistant district attorney begins the witness testimony by calling Albert Cruise, the rail-accident investigator on the NTSB go-team. Vaughn stipulates to Cruise’s expertise, and the witness walks the judge through the train crash. Cruise testifies to the nature of the data gathered and recorded by the train’s event recorder, or “black box,” including train speed, brake pressure, throttle position, distance, and time. He says that, based upon data from the train’s black box, it was traveling at eighty miles an hour going into the curve. And it continued at that speed right up to the time of the crash.

  “How much distance did the train travel from the time it cleared the curve to the time it crashed into the TracVac?”

  “Eighteen hundred feet.”

  “How much time elapsed between the time the train cleared the curve and the time it struck the track machine?”

  “Fifteen seconds.”

  Christina pauses to let the fact sink in that there was plenty of time for the engineer to have reacted to the presence of the TracVac on the track ahead.

  “Between the time the train cleared the curve and the time it crashed into the TracVac, was there any attempt by the engineer to decrease throttle speed?”

  “No. The data from the black box makes clear that the throttle position remained constant.”

  “Was there any attempt by the engineer to apply the train’s normal service brakes, or its emergency brakes?”

  “No.”

  “Did the data from the black box indicate any action whatsoever on the part of the engineer to avoid the collision?”

  “None.”

  Christina Wesley has Cruise identify the printout from the train’s black box, and she moves it into evidence, with no objection by Vaughn. Christina says, “Nothing further.”

  Vaughn begins his cross-examination.

  “Mr. Cruise, if I understand you correctly, the train rounded the curve and the engineer had a full fifteen seconds to see the TracVac on the track ahead and react to it, either by pulling back on the throttle or applying the brakes. But he did neither.”

  “Exactly.”

  “Why didn’t you just look to see why he didn’t react?”

  Cruise frowns. “I don’t understand.”

  “The locomotive was equipped with an inward-facing video camera, wasn’t it?”

  “Yes, but it wasn’t turned on yet, in accordance with an agreement between the railroad and the engineers’ labor union.”

  “Who told you that?”

  “Ah, well, it was Amtrak itself. Its division engineer, Mr. Bunting. That’s why we didn’t attempt to download the video. There wasn’t any.”

  “Mr. Bunting? I see. I’m going to make a mental note to remember that name.” Vaughn looks up at the judge. “Nothing further.”

  As her next witness, the prosecutor calls Nelson Wexler, head of the NTSB go-team.

  Christina establishes Wexler’s credentials, and Vaughn stipulates to his expertise and competence to testify.

  “Were you present when the defendant, Mr. Coburn, was interviewed by the NTSB?”

  “I was.”

  “Was he questioned about how the crash happened?”

  “Yes.”

  “What did he say?”

  “He said he didn’t remember anything after heading into the curve at Torresdale.”

  “Was he asked if there was any medical reason he would have lost consciousness?”

  “Yes, and he said there was none.”

  “Was he asked why he wouldn’t have seen the TracVac on the track ahead, if he were facing forward?”

  “Yes. He said he couldn’t think of any possible reason.”

  “As part of your investigation, did you yourself inspect the curve and the track between the curve and the place where the train crashed into the TracVac?”

  “Yes. It’s a straightaway.”

  “Was there anything, any structure or object, that would have prevented engineer Coburn from seeing the TracVac on the track ahead once he rounded the curve?”

  “No, there was not.”

  Christina pauses, then switches topics. “Let’s talk about his phone. What did he tell you about his phone?”

  “He said he had a cell phone and kept it in his knapsack. He said the phone was turned off, and he made no calls during the run.”

  “Did he confess to you that in fact he had two phones on the train?”

  Vaughn looks up at the judge. “Objection to the term confess.”

  “Sustained.” Judge Johnson tells Christina to continue, and she does.

  “Did there come a point when you learned the defendant had a second phone on the locomotive?”

  “Yes. We were alerted by Amtrak that they were tipped off to the fact that the defendant did have a second phone. So we went to Amtrak’s facility in Bear, Delaware, where the train cars were being stored. We went in and found the second phone.”

  “And what did the phone show when the NTSB electronics division examined it?”

  “It showed that the engineer was on the phone twice during the run. Once when he placed a call, and once when he received a call.”

  “What were the times and duration of those calls?”

  “The first call lasted a minute and a half, from 12:08:10 to 12:09:41. The second call, the one he received, lasted from 12:17:50 the whole way through the crash.”

  “So he was talking on the phone during the critical fifteen seconds leading up to the crash?”

  Wexler declines to answer the question, telling the judge that, per federal statute, the NTSB does not testify as to its conclusions, only its factual findings. The way he explains it, though, makes clear to everyone that the NTSB believes Vaughn was talking on the phone.

  “Even if he were on the phone, the engineer would still have been able to see through the windshield to the track ahead.”

  “Of course.”

  “So he wasn’t just talking on the phone, he was facing away from the windshield?”

  Vaughn objects and Wexler again tells the judge that the NTSB does not testify to its conclusions. And, again, he does it in a way that tells everyone he thinks Eddy wasn’t looking ahead like he was supposed to.

  Christina asks a few more questions, then has Wexler identify and authenticate the transcript of the NTSB’s interview of Eddy, which she moves into evidence.

  Judge Johnson gives Vaughn permission to cross-examine.

  “Your team’s examination of the second cell phone shows that it was turned on during the time leading up to the crash,” Vaughn says to Wexler, “but it didn’t show that my client was talking on the phone, correct?”

  This gives Wexler pause. “I don’t understand what you’re saying.”

  “May I approach the witness, Your Honor?”

  Judge Johnson nods.

  Vaughn walks up to Wexler, holding two cell phones. He uses the one to dial the other, presses the button on the other phone to accept the call, then lays them both down on the witness stand. After a moment, he asks, “Both phones are on?”

  “Yes.”

  “But no one is talking into them?”

  Wexler doesn’t answer.

  “That my client’s cell phone was on during the seconds leading up to the crash doesn’t prove he was talking into the phone at that time, does it?”

  Wexler hesitates.

  “I suppose not.”

  “And if—”

  “You’ve made your point, Mr. Coburn,” the judge interrupts. “Move on.”

  Vaughn turns back to the witness. “Who at Amtrak told you about this tip that Mr.
Coburn had a second phone?”

  “Mr. Bunting.”

  “Bunting again. And who went into the locomotive and found the second phone?”

  “Mr. Bunting.”

  “Bunting,” Vaughn repeats the name. “But isn’t he the Amtrak representative who went into the locomotive the first time, right after the crash?”

  “Yes.”

  “But he didn’t find a second phone then, did he?”

  “Well . . . we weren’t expecting to find a second phone. So after he found the first one, I suppose he stopped looking.”

  “And Bunting’s the one who told the NTSB the recording device for the inward-facing camera was not turned on?”

  “That’s correct.”

  “Had the camera been on, it would have shown us exactly what Mr. Coburn was doing in the seconds leading up to the accident, wouldn’t it?”

  “That’s the whole point of the inward-facing camera.”

  “Yes, Mr. Wexler, it is.”

  “Objection.” It’s Christina Wesley. “Counsel’s testifying.”

  “Sustained,” says the judge.

  “Nothing further,” says Vaughn.

  The judge calls a short recess, and Balzac marches out of the courtroom and down the hallway. He finds a quiet place and makes a call. Jack Bunting’s voice mail answers, and Balzac curses under his breath. Where the hell is he? Balzac listened carefully to Coburn’s questions on cross, and he didn’t like what he heard. The engineer’s lawyer either knows or has intuited that Bunting is at the heart of things. Balzac wonders whether Bunting, like Laurie, has turned. He quickly dismisses the notion; Bunting would never betray him. Any more than Royce would. Which reminds him: Badgett should be well on his way to securing Laurie Mitzner. He lifts his cell phone and makes another call.

  Back in the courtroom, Vaughn is holding his own cell to his ear, his heart racing.

  “Slow down, Erin. Say it again.”

  “Laurie’s gone. We were supposed to meet this morning and spend the day together going over our stories. She was going to stay at my place overnight and come with me to court tomorrow. But she never showed up. I’ve called her home phone and her cell half a dozen times, and I keep getting thrown to voice mail. I called her office to see if she chickened out and went to work. Her assistant said she didn’t show up and didn’t call out sick, either. They have no idea where she is.”

  “Damn.” Vaughn’s mind is spinning. He absolutely needs Laurie’s testimony; everything hinges on the court’s seeing the crash video and tying it to Balzac. Without Laurie to authenticate the video, it won’t get into evidence and his plan will fall apart.

  Has she gotten cold feet? Or come to harm at the hands of Balzac?

  “Go to her apartment,” he tells Erin. “Have the doorman let you in. Tell him you’re a relative and it’s an emergency. And keep calling her. Text me with what you find. I can’t talk on the phone because I’m in court, but I can glance down at my phone to see what you’ve written.”

  Vaughn hangs up. He turns to see his cousin staring at him.

  “Someone went AWOL on us, didn’t they?” Eddy says.

  “No,” Vaughn says firmly. “No one’s leaving you behind this time, Eddy. Not if I have to drag them back myself.”

  34

  THURSDAY, JULY 31, CONTINUED

  The judge resumes the bench and tells Christina Wesley to call her next witness.

  “The Commonwealth calls Melissa Nash.”

  Vaughn watches the witness enter the rear door, walk through the gallery, and then into the well of the courtroom. She’s young, in her midthirties. And attractive—thin, fit, with long blonde hair and large blue eyes. It’s obvious why Christina has chosen Nash to be her first passenger witness.

  Christina establishes that, at the time of the accident, Melissa Nash lived in Germantown with her husband, Tim, a neonatology resident at Children’s Hospital. They were on their way to New York for some much-needed respite.

  “Tim had been working crazy hours for a long time, and I told him he needed a break, even if it was only for a day. He didn’t want to, at first—there were two preemie babies he was caring for, and they were both struggling—but I strong-armed him.” Here, Melissa pauses to gather herself and everyone reads the guilt on her face. “I tried to make it special by getting tickets to see Hamilton, the musical. It was a big splurge for us, but I wanted Tim to have a good time, and he’d been talking about getting up to New York to see it.”

  “Tell us about the crash, and what happened to your husband.”

  “We were moving along and everything seemed fine. It was bright and sunny. Tim was reading the paper, and I was texting one of my girlfriends. All of a sudden, it felt like the whole world exploded. There was a huge crashing sound, and the car went sideways and everyone and everything went flying. Windows were shattering. Stones came flying up into the car. I felt my body tossed around like laundry in a dryer. After what seemed like forever, it stopped, and I was lying on the side of the railcar, which was now the floor. I couldn’t find Tim, so I started screaming his name and crawling around looking for him. I found him about twenty feet away. He was awake and said his leg hurt. I looked, and his right leg seemed okay, but most of his left leg was out of the window, out of the railcar, against the ground. It was pinned. I tried to pull him free, but he was jammed too tightly. I told him to hold on, that help would come and they’d lift the car and he’d be okay. I sat there with him, holding his head in my lap. We talked, at first. He even made a joke about missing the play. Then, after a while, he closed his eyes and stopped talking. I called his name, but he wouldn’t answer.”

  Melissa’s eyes glaze over, and everyone can see that she’s back on the train. After a minute, she steels herself and resumes. “I thought he was in shock, but . . .” Melissa pauses again. “It seemed to take forever for the rescuers to reach us. There was a police officer and an EMT. They lifted me off Tim and checked his pulse. The policeman told me I needed to get out of the train. I said I was going to wait until they got Tim out, but he wouldn’t let me; he said it was unsafe. He walked me to the end of the car, which was ripped wide open, and helped me to the ground, where some other people got me onto a bus.” Melissa’s voice trails off.

  “And your husband?”

  “They told me he bled to death, because of his leg.” Melissa’s eyes are far away again.

  “Thank you,” Christina says.

  “Cross?” Judge Johnson asks Vaughn, her tone making it clear that he’d be a fool to challenge the witness in any way.

  Vaughn stands. “I’m sorry for your loss, Mrs. Nash.”

  Melissa holds Vaughn’s eyes for a long moment. He takes the time to search them, finding neither hate nor anger, only grief. Bottomless grief.

  Everyone waits quietly, respectfully, while the young widow slowly leaves the witness stand and exits the courtroom. When she’s gone, the judge turns to Christina Wesley.

  “How many more passengers do you intend to present?”

  “Just one, Your Honor.”

  “You know you don’t need them. The deaths and injuries have all been stipulated to, as has their being caused by the accident.”

  “Just one,” Christina repeats.

  The judge nods. “All right. This is an unusual case. So I’ll give you the leeway, for now.”

  “Thank you, Your Honor. The Commonwealth calls Brian Stewart.”

  The account offered up by the twentysomething computer technician is no less moving than Melissa Nash’s. Brian, his wife, Elizabeth, and their two-month-old daughter, Reagan, were traveling in the third car. One minute, everything was fine. The next minute, they were thrown into hell.

  “When I came to, I saw Lizzy a few feet away. She was mangled. Her face was . . . I only knew it was her from what she was wearing. I looked for the baby until they forced me to leave the train.” Brian pauses, and everyone sees the same glazed look Melissa Nash had taken on. “It wasn’t until later, after nine,
that I got the call about Reagan. They told me to go to the medical examiner’s office . . . They had her laid out real nice on a table for me. Wrapped in a blanket. But she was . . .”

  Brian Stewart closes his eyes, lowers his head. At that moment, almost as if she’s conjuring the spirit of the dead baby, Emma Coburn starts to cry, bringing many in the gallery to tears.

  The baby’s wailing has a profound effect on Brian Stewart, who stares at Emma, his mouth wide open. Then, something inside him snaps, and his eyes fill with fire. He points at Eddy Coburn and shouts, “You should be ashamed of yourself. Taking chances like you did with other people’s children, when you had one of your own!”

  The witness’s anger is infectious, and Eddy and Vaughn can both feel the crowd heating up behind them. And they can see the hostility in the eyes of the judge’s clerk, and court reporter, and even the bailiff—an old court dog who’s been around long enough to have heard it all.

  The last thing Vaughn wants to do is rise and face the suffering man on the witness stand, but he does so. “Mr. Stewart, my client and I are both very sorry for your loss.”

  The fury flares again in Brian Stewart’s eyes, but in an act of will and grace, he restrains himself. “Thank you,” he says, forcing the words.

  Watching Stewart leave the stand, Vaughn can’t imagine that he’d have handled himself with half as much restraint if he were in the man’s place.

  “Does the Commonwealth have any other evidence to offer?”

  “No, Your Honor,” answers Christina Wesley.

  “Then we’ll take a short recess before hearing argument from defense counsel.”

  “Your Honor?” It’s Vaughn. “The defense has witnesses.”

  This surprises Judge Johnson. Defendants have the right to offer testimony at preliminary hearings but rarely do so. For a defendant, the safe play is to use the hearings to learn the prosecution’s case and cross-examine its witnesses to uncover dirt or inconsistencies, laying a foundation to undermine the witnesses when the case goes to trial. Offering one’s own defense witnesses only serves to tip off the district attorney to the defense strategy and give the prosecution the chance to probe for weaknesses.

  “What witnesses?” asks the judge.