Skyhook (50 page)

“All of our requests here, Your Honor, are based on the significant potential and ongoing harm to Captain Rosen’s career, his health, and his property interests. To justify a restraining order, I am required to show that if not restrained, the respondent will take actions or continue actions that will cause substantial and irreparable harm. But the burden then shifts to the respondent at the show-cause hearing to show by a preponderance of evidence that the petitioner’s factual claims are wrong. If the respondent fails to meet that burden, the restraining order becomes a temporary injunction. That’s the way we should have been treated by the lower court.”

“And what again was this threat, Miss O’Brien?” Judge McNaughton asked.

April had remained at the back of the courtroom listening to the interruptions as Gracie began describing how Arlie Rosen was being harmed. April glanced down once more at a note that had been handed to her.

Ms. Rosen, you have a visitor in the foyer who says it is vitally important that you come out right now to talk to him. He says he has material evidence pertaining to this case.

April pushed through the double doors as quietly as she could, leaving Gracie’s voice behind and spotting the writer of the note immediately some twenty feet away as he sat and waited on a bench. She felt her jaw drop in amazement. “Ben Cole! What on earth are you doing here?”

He stood and took her hand, shaking it. “Trying to make up for being cowardly.”

“But, how on earth did you find us?”

“I called your dad on Sunday. He told me where you’d be. Am I too late?”

April involuntarily glanced behind her at the closed double doors,

then looked at him. “No! It’s just starting, but… we lost yesterday, and this is what Gracie calls a very limited appeal.”

“I’m ready to testify, Miss Rosen.”

She stood, feeling stunned, and immediately wondering how to transmit the information to Gracie not a hundred feet away.

“Follow me into the courtroom,” April said.

Ben hurried ahead of her and held open the door, following her inside to a spot behind the counsel tables. She saw Gracie glance around at her and raise an eyebrow. April pulled her notebook out and wrote a note.

Gracie, Dr. Ben Cole is here from Anchorage to testify! He was on board when the Gulfstream nearly hit us, and when the Albatross was lost. He can corroborate the fact that the Gulfstream came very close to the Albatross.

April leaned over the divider and poked Gracie with the folded note until she reached down and took it, reading it quickly before glancing back to verify Ben was really there.

Gracie cleared her throat and looked up at the judges. “In the district court yesterday, the defendants were allowed to shift the burden of proof illicitly to Captain Rosen by doing little more than declaring that what we said wasn’t true. They offered no proof that government vessels had not been in the recovery area. They offered no reason for confiscating April Rosen’s videotape of the wreckage. They offered no explanation of why FAA radar tapes have been withheld, what’s on them, and whether a second aircraft, which may have clipped Captain Rosen’s aircraft, was in his way that night. They merely came in and said, We deny everything,” and on that basis alone, their word was taken as being more trustworthy than his. I submit that as a matter of law and equity, that is incorrect, and by itself constitutes an error requiring reversal and reinstatement of the TROs.”

The light inside the podium was already yellow. Gracie glanced at it now and watched it turn red. Jim Riggs took the podium and she sat down to take notes, looking for ways to attack his arguments when the government’s case was through.

She’d caught April’s questioning look as she turned to sit, but there was no time to explain the futility of Cole’s presence in the appeals court. She had to concentrate on the opposing argument, which began with force and precision.

Gracie heard a noise beside her and turned to find April kneeling at her side with another note.

When are you going to tell them he’s here and what he’s got?

She leaned down to whisper in April’s ear. “I can’t. This is an appeal on the law. If they reverse the lower court, then we can add his testimony.”

“But he’s willing to testify!” April whispered back.

“April, I’ve got to keep track of this. Go back and sit down.”

Gracie could see one of the judges diverting his attention from the government’s arguments to the whispered conversation at the petitioner’s table, and she sat up instantly, feeling like a schoolgirl caught passing notes in class. She resumed her writing, aware of April’s frustrated sigh as she withdrew. The thought began eating its way into her consciousness, however, that maybe somehow April was right.

Is there anything I’m missing? Gracie thought, as the government lawyer turned his attention to a list of cases that allegedly proved Gracie was wrong.

Fact presentation is to be done in the trial court. But doesn’t this court have the right of original equity jurisdiction as well?

She tried to keep half her mind on the argument while the other half re-blazed its way through law school and the lessons on how the equity courts and the law courts of old England had been separate, one dealing with normal common law, the other issuing court orders and injunctions and restraining orders in equity.

There was something one of her professors had taught in the third year when she’d

done a directed research paper, but what was it? The lesson was hanging there, just out of reach in her mind. She thought back to that warm spring day in the professor’s comfortable office, and the memory returned. “Never forget,” he’d told her, “that even a federal court of appeals has full equity powers, even though they seldom use them beyond lifting injunctions or imposing stays of execution.”

“And therefore, Your Honor,” Riggs was saying, “not only did the trial court have the right to rule the petitioner’s factual claims insufficient on their face with or without evidence, the burden of proof was theirs, and they failed to uphold it. Finding alleged facts sufficient or insufficient is a process best left to the trial court, especially in a show-cause hearing, especially since no hearing of additional evidence can be had in an appeal such as this.”

Gracie was only marginally aware of standing. On one level, she had never felt more in control, but on another, she was merely a spectator to an unfolding interruption that could easily earn her an embarrassing rebuke from the bench.

“Your Honor, forgive the interruption, but Mr. Riggs is absolutely wrong, and we have just received pivotal new evidence that we need leave to introduce.”

Riggs turned to her with a shocked expression, the prospect of being interrupted in an appellate argument apparently never having crossed his mind.

“What are you doing?” he asked almost conspiratorially before looking back at the judges, two of whom were exchanging puzzled glances as the third, Judge McNaughton, leaned forward.

“Counselor, if you’re not aware of the protocol, you should know that we don’t allow our lawyers to interrupt each other here.

You’ll get a two-minute rebuttal, provided you sit down. And I’d recommend a thorough review of our procedures before arguing here again.”

“Your Honor,” Gracie answered, moving closer to the podium and Jim Riggs’s side. “This actually is an appropriate interruption.

May I tell the court why?”

“No!” Riggs thundered as he recovered from the shock. “Sit down.”

“That will do, Mr. Riggs. We’re capable of giving the same orders from up here,” Judge McNaughton said. “Miss O’Brien, if you persist in this affrontive behavior, we could consider a contempt citation to bring you under some modicum of control. I prefer hogtying misbehaving lawyers, but case law, and our esteemed chief judge, seldom allow it.”

“Your Honor, this court has original equity jurisdiction and can hear new evidence in the form of a new witness, and here we have a doozy.”

An immediate commotion broke out at Jim Riggs’s table and the bench simultaneously as one of the judges began banging his gavel while the other two exchanged some hurried words. Judge Williamson finally quieted his two colleagues with hand gestures and took the floor.

“Miss O’Brien, we’re intrigued by your risk-taking here in insisting on educating us as to the scope of our jurisdiction, but if you haven’t noticed, there is no witness stand in this court.”

“No, Your Honor, but this court’s jurisdiction is not defined by furniture.”

There were renewed protests punctuated by Jim Riggs’s giving voice to the urgent buzz of advice from the other lawyers at the government’s table.

“Your Honor, we must protest the interference with our time for argument—”

“Wait a minute, Mr. Riggs,” Judge Williamson said. “We do have the authority to add to your allotted time, you know. You’ll get your additional minutes.” Judge Williamson turned back to Gracie, who could feel icy cold adrenaline in her bloodstream with the recognition of possible real danger.

“Now, Miss O’Brien. Please continue.”

“When our courts were created by the constitution and formed by congressional action, federal appellate courts were limited to hearing disputed matters of law only on appeals from normal legal matters. But equity jurisdiction has always been an uneasy mix, an additional duty for the courts, as it were, and there was never any prohibition in the enabling legislation nor in the rules of this court that suspended the duty of an appeals judge to consider equity pleas. In fact, any one of you may hear a matter in equity and even compel testimony, if you so choose, and the fact that it is not often done does not mean that you do not possess the authority. A breakthrough witness has just walked into the courtroom with vital evidence that wholly contradicts the government on several key points, and what he will say under oath will prove the justice and applicability of the restraining orders that were issued, then vacated by the lower court.”

“You … are alleging that we have the discretion to hear original testimonial evidence, Miss O’Brien, even though our procedures and rules do not permit it?”

“Yes, Your Honor. You may issue injunctions and restraining orders just as a federal district judge may, and your powers are not limited to that in equity.”

Jim Riggs was on his feet again, but Williamson warned him to stay quiet with a quick tilt of his head. Gracie held her breath, thoroughly alarmed at what she’d just done, and only marginally aware of more noises and commotion from the back of the courtroom.

Riggs had reached the breaking point.

“Your Honor, I move for a brief recess.”

Judge Williamson smiled an amazed smile over the top of his reading glasses.

“A recess in an appellate argument, Counselor?”

“Yes, Your Honor. The United States would appreciate a recess and opportunity to converse about this extraordinary circumstance in chambers.”

“Really? Well, I think,” Williamson continued, “that given the wholly unprecedented nature of the last few minutes, that would be a wise idea. I remind counsel for the petitioner that holding this

hearing in the first place was an extraordinary concession to the justice of the matter. So, we will…”

Judge McNaughton whispered something to Williamson, who nodded.

“Oh, yes. We are going to take a short recess and meet in chambers, but first, Miss O’Brien, precisely what are you requesting?”

“That I be allowed to swear in Dr. Ben Cole of Uniwave Industries in Anchorage, Alaska, who is in the courtroom, and examine him on the issue of his presence aboard a government project aircraft on the night Captain Arlie Rosen lost his aircraft, permitting him to testify as to the high probability that Rosen’s aircraft was actually clipped by the aircraft Dr. Cole was in.”

There was a gavel banging away and a scowling Judge McNaughton was holding it as he turned to his colleagues, then back to the lawyers.

“Fifteen-minute recess to chambers.”

“All rise,” the clerk called as the judges got to their feet and filed out.

Gracie could feel her heart pounding as she glanced at Jim Riggs, expecting him to turn and charge her with angry protests.

But he had turned and gestured to someone behind her, and Gracie turned as well in time to see one of three men in business suits’

nod to Riggs and begin to make his way toward the government lawyers’ table.

April, too, was in motion, coming to Gracie’s side with a wide eyed Ben Cole in tow.

“What’s happening?” April asked as Gracie ran her hand through her hair and shook her head.

“I think,” she said, shaking her head, “that I just screwed up big time. But I’m not sure.”

Mac MacAdams waited while the guard verified his name and identification, then opened the gate to the front drive of the White House. The meeting he had requested was a huge risk, but it had to be done. His call earlier in the day had been received with consternation that a potential leak had occurred, but the news that Ben Cole himself had arrived in Washington with an obvious intention to violate the secrecy agreement he’d signed meant they had to take action, and the authority for what had to be done could only come from one source.

Mac walked into the main foyer, unable to keep his eyes off the artifacts of living history that defined the American form of self governance.

A Secret Service agent with the cold, expressionless eyes of a cobra nodded to him as he showed his pass and turned down a familiar corridor, checking his watch as he passed. The appointment was in exactly eight minutes, and he intended to arrive as the second hand hit the twelve.

UNITED STatES COURT OF appeals FOR THE DISTRICT OF COLUMBIia An assistant clerk appeared at Grade’s side from nowhere.

“Miss O’Brien, your presence is requested in the judges’

conference room. Please follow me. Dr. Cole? You, too.”

Gracie shot a “stay here” glance to April, who nodded and sat down at the petitioner’s table, watching Gracie and Ben following the clerk as if they were being escorted the last mile to a gas chamber.

Judge Williamson was waiting in what appeared to be a large boardroom. Jim Riggs was already there, pacing along one wall and looking agitated. The three men Gracie had seen in the back of the courtroom were standing near Riggs.