Journal of the Dead

by Jason Kersten

  He could woo a jury until their hearts bled with compassion for Raffi’s ordeal in the canyon, but at the end of day the judge was obligated to instruct them to disregard his entire argument. “Mercy” was not an admissible defense; if they believed it was a mercy killing, then the letter of the law commanded them to convict for murder. His best hope with a mercy argument was the legal equivalent of the long bomb: a jury nullification, in which the jury simply ignored the judge and the law and ruled according to their conscience, but by law he was forbidden to tell them that the option even existed. They’d have to reach that conclusion on their own, and the judge could always declare a mistrial. The next best outcome was a hung jury, but good defense attorneys don’t bet on juries hanging or nullifying, especially when their clients are from out of town; they bet on not-guilty verdicts with arguments based solidly on the evidence and the law.

  Mitchell bought as much time as he could for Raffi. The basic law in New Mexico is that a case has to go to trial within six months, but he was able to wrangle and get it pushed back from January 3, 2000, to April 30. But all the time in the world wasn’t going to change the fact that a euthanasia defense, no matter how good, just wasn’t going to fly with a judge. In early February, as Mitchell began preparing in earnest, he finally had to accept that he’d have to replace the euthanasia story he’d been telling the press with a defense that the judge would actually allow. After seven months of selling mercy, he was totally blank as to what that would be. So he walked down the hall to the office of Shawn Boyne, a whip-smart lawyer whom he’d hired eight months earlier.

  “Raffi’s in serious trouble because we don’t have any mercy-killing statute,” he told her with a grave, panicked look on his face. “You’re going to have to invent something.”

  Shawn Boyne had seen that look before. Her boss had been pressed for time ever since she’d started working for him the previous spring, after she responded to a Help Wanted ad he’d placed in several New Mexico papers.

  “It was a very bizarre ad,” Boyne remembered, “It said something like, ‘Do you want to fight for the downtrodden?’ It was an advertisement for a ‘Don Quixote type’ lawyer.”

  The Quixote reference struck a chord. At forty-two years old, Boyne’s career had been as much of a crusade as Mitchell’s. Originally from Wisconsin, she had gotten a law degree from USC, then taken a job in a public defender’s office in Watts, Los Angeles, right when the crack wars were wreaking their havoc on the community. Like a lot of young lawyers, racking up case experience was as much a motivation for taking the job as idealism, but the experience taught her something she would never forget: those who don’t have the money to pay for a good lawyer invariably get longer prison sentences. And, like a lot of public defenders, she eventually burned out.

  She had seen New Mexico for the first time while on a road trip almost identical to the one Kodikian and Coughlin had been making—from Boston to L.A.—and fallen in love with its explosive landscape. It had never left her mind all throughout law school and her time in Watts, so when she quit the public defender’s office she drove back and took the first job she could find, at a district attorney’s office in Farmington. Once she had some prosecuting experience under her belt, Boyne moved on to another district attorney’s office, this time in Taos, where she had always wanted to live. Her work there, prosecuting domestic violence and child-abuse cases, satisfied her in terms of activism, but Shawn Boyne had an admitted nose for trouble. In Taos, Boyne claimed, she noticed that some of the cases moving through the district attorney’s office weren’t being prosecuted, and she called the FBI when she realized that the defendants were friends and relatives of prosecutors and local politicians. She said the Taos district attorney fired her as a result of her queries, and the FBI had nothing to go on because the critical files mysteriously disappeared in a robbery of the office. But Boyne was just getting started. She rolled up her sleeves, filed a wrongful-termination case, and began campaigning for her former boss’s opponent in the upcoming election. The case was settled, and her old boss lost his reelection bid.

  “I ended up being forced into private practice because no D.A. in the state would hire me,” she said. “I also ran for judge up in Taos, but didn’t win, and decided I wanted to get the hell out of Dodge.”

  It was right about then that she saw Gary Mitchell’s Don Quixote ad.

  “I hadn’t thought much of becoming a criminal defense lawyer,” she said, “but I had no choice.”

  She sent Mitchell her resume. He called her a few weeks later on a Sunday night at around ten-thirty. He had read about her in newspaper stories about the Taos scandals, and had also heard of her through one of his best friends, Joe Shattuck.

  “He said, ‘This is Gary Mitchell,’ and I didn’t believe him,” Boyne recalled. “I told him that Gary Mitchell wouldn’t call me at ten-thirty on a Sunday night. Then I said to him, ‘You’re at the office. This sounds like a job I’m not interested in.’ I don’t think he was used to anybody giving him shit like that. But it really was Gary Mitchell.”

  A few days later, she drove down to Ruidoso, and he gave her the job.

  Boyne had worked no more than three murder cases since then, and on those she had mostly assisted. Asking her to come up with a defense in any murder trial would have been placing a lot on her shoulders, but asking her to find one for Kodikian was like asking her to identify what species a bird with fins belonged to, then convince a judge and jury the creature wasn’t from another planet. She needed a defense that in some elastic way fit the facts of Kodikian’s case. She had no idea what to do, so she started at square one by whipping out a copy of New Mexico’s jury instruction booklet and writing out a list of all the complete defenses for murder.

  It didn’t take her long: there were only six complete defenses for murder in New Mexico:

  Alibi

  Entrapment

  Self-defense

  Duress

  Insanity

  Involuntary Intoxication

  Because Kodikian had already admitted to a mercy killing, most of the defenses on the list—alibi, entrapment, self-defense, duress—were immediately out. Insanity was getting warmer—they could argue that the desert heat had driven him mad—but it usually required a long-term condition, and Raffi didn’t have a diagnosed history of becoming homicidal every time he got thirsty. (Temporary insanity, another good option, wasn’t even on the list. The state of New Mexico does not consider it a complete defense; all it does is lower the charge to second-degree murder).

  Her eyes settled on involuntary intoxication.

  She’d barely even heard of it. It was a fairly new defense that had cropped up in the wake of the explosion of both illicit and prescription drugs in the last thirty years. There’d been some rare cases in which defendants had been secretly dosed with drugs, or even been prescribed a drug, that had caused them to become murderously violent or negligent in their actions. Since they’d had no idea they were under the influence in the first place, they obviously couldn’t be held accountable for their actions.

  She pulled out Raffi’s medical records from the file that Mitchell had handed her. At first glance, Raffi seemed like a poor candidate for an involuntary intoxication defense—he hadn’t been prescribed anything, and his blood work had shown negative for drugs. But there were substances he had in overabundance, namely sodium, which had risen in concentration as his water level dropped. His sodium level of 174, in fact, was 22 to 16 percent higher than normal, more than enough to cause sodium poisoning. Boyne quickly got on the World Wide Web and looked up the symptoms of sodium poisoning. Severe mental impairment was a primary result.

  In the brain, sodium acts as an electrolyte, working in conjunction with potassium to conduct signals between neurons. When it becomes too concentrated, not only can the signals become disrupted but cells in the brain (and elsewhere in the body) can become damaged as they dump their water into the blood to maintain osmotic equilibrium. The conditi
on is called hypernatremia, a fancy word for dehydration of the brain. It is precisely the same condition that causes sailors lost at sea to go mad after they’ve ingested salt water. Raffi hadn’t drunk seawater, but his resultant state was the same. He’d become intoxicated—against his will or knowledge—by his own salt.

  An hour later, she walked into Mitchell’s office.

  “I found a defense. It’s involuntary intoxication.”

  Mitchell just stared at her as she explained, his face as wooden as the knots in his desk. For a moment Boyne thought she would have to start looking in the Help Wanted sections again.

  “Brilliant,” he finally said.

  However clever the defense was, it was still a long shot, because the involuntary intoxication defense itself was almost unheard of. Involuntary intoxication had not only never been used in a dehydration case in New Mexico, it had never been used in the state, period, and had been used only a relative handful of times in the history of American law. In New Mexico’s jury instruction book, Boyne even saw a footnote that said, “Some commentators have suggested that the defense is non-existent.” Using it in a case where no drugs had been taken had never been done. The legal definition of intoxication was also a problem. Black’s Law Dictionary defined it as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body.” Since Raffi hadn’t actually ingested anything, there was no way they could use the defense in a courtroom without first getting Judge Forbes to approve it in a pretrial motion.

  With less than two months to go until trial, Boyne began putting the motion together by interviewing as many experts and case law references as possible. She had no problem finding doctors who could confirm that, based on his sodium level, there was a high probability that Raffi had hypernatremia. She also discovered that their best possible shot at getting the judge to disregard the “ingestion” problem was, oddly enough, hyponatremia, or the exact opposite of having too much sodium. Its symptoms were virtually identical—it was merely an imbalance in the opposite direction. Most important, there were drugs that could cause it, namely diuretics. Theoretically, Raffi could have ingested a diuretic and wound up with the same mental impairment. If the resultant state was the same, she would argue, then ingestion was incidental.

  While Boyne and Mitchell prepared their motion, they also realized that it didn’t make much sense for the state of New Mexico to recognize involuntary intoxication as a complete defense, but not temporary insanity. As they aptly put in their motion: “Essentially, involuntary intoxication occurs when an individual becomes temporarily insane without his knowledge or consent.” Since they were already throwing a bomb, they decided to go for broke and ask Judge Forbes to be the first judge in the state ever to allow temporary insanity as a complete defense. If he felt uncomfortable presiding over the state’s first involuntary intoxication case, maybe he’d feel better calling it something else. They submitted their memorandum in a hearing at the district court on March 28, 2000. Raffi’s fate now depended on whether or not Judge Forbes would allow both or either defense. If he did, Mitchell and Boyne were almost certain they could convince a jury to let Kodikian walk. But without a ruling accepting temporary insanity as a complete defense, or jury instruction allowing their use of involuntary intoxication, odds were Raffi was at best looking at conviction for second-degree murder, which could cost him fifteen years in prison—and at worst, life. Judge Forbes told them to come back for his answer in three weeks.

  The wind was roaring outside the king cab as they made the 150-mile drive back to Ruidoso. They had just passed Artesia, which lies about midway between Carlsbad and Roswell on US 285, when Mitchell suddenly screeched to a halt and turned the truck around.

  “What’s going on?” Boyne asked.

  “We just passed one of our witnesses,” he said.

  But Boyne saw no one, not even a car. Then Mitchell pointed to a sign on the other side of the road. It was a historical marker for one of the many Spanish expeditions that had passed through hundreds of years ago.

  “I’m gonna call the University of New Mexico history department and see if anybody in that conquistador’s army died of dehydration,” he said. Boyne rolled her eyes.

  She knew her boss would revel in wowing a jury with yarns about dead Spaniards, but when they came back to earth, they’d acquit Raffi based on the unvarnished principles of organic chemistry.

  Two days later, as Raffi waited for news back in Pennsylvania, Mitchell and Boyne drove back to Carlsbad to hear Judge Forbes’s response to their motion.

  “The Court acknowledges that this case presents unique factual circumstances that have never been seen before in the State of New Mexico or in other jurisdictions,” he began. “The Defendant first asks this Court to allow the use of temporary insanity as a complete defense. New Mexico does not recognize the use of temporary insanity as a defense, for the insanity defense in New Mexico requires that the insanity be of a prolonged nature….”

  It had taken him only twenty seconds to knock down their first request. So far, he was sticking to the letter of the law. They were not yet discouraged, however, because they both knew that the temporary insanity request was a wild pitch anyway. Half the reason they had put it in the motion in the first place was to give him something to shoot down so that by the time he got to their second request—involuntary intoxication—he might be a bit more open-minded. Boyne held her breath.

  “The Defendant appears to concede that New Mexico does not allow for a temporary insanity instruction,” he continued, “and therefore asks this Court to adopt an instruction on involuntary intoxication based on the Defendant’s level of dehydration. The Court does not dispute the Defendant’s extensive research on involuntary intoxication, but the essential question is whether the facts of this particular case allow for an involuntary intoxication instruction, regardless of whether it is a complete defense or not. In order to answer the fundamental question in this Motion, the Court needs to decipher exactly what is meant by the term ‘intoxication.’”

  Mitchell’s and Boyne’s hearts sank as Judge Forbes quoted the definition of intoxication from Black’s Law Dictionary, then the one from the state’s penal code, then another from a state supreme court case. Ingestion. Ingestion. Ingestion.

  “All of these definitions of intoxication call for a substance being ingested or introduced into the body. It is clear that there was no intoxication in this case. A quote from the Defendant’s Motion on page sixteen is useful in the Court’s analysis. ‘The leap from using ingesting of a substance to form the basis of involuntary intoxication to dehydration is a small one.’ The Court agrees that the Defendant’s argument is a ‘leap’ and is a leap, no matter how big or small, that this Court is not prepared to recognize.”

  Les Williams was satisfied with judge’s ruling; it had been almost identical to his own response to Mitchell and Boyne’s motion. But he took no delight in the prospect of putting away a man for life for a crime whose intent he couldn’t be sure was evil. Back in November, after the murder investigation turned up nothing, he and Mitchell had talked about the possibility of things coming down a plea bargain. Now they quickly formalized one.

  Mitchell explained the details to Raffi later that afternoon: If Raffi pled guilty to second-degree murder, Williams would allow him to retain his right to appeal Judge Forbes’s ruling on the involuntary intoxication motion. If Raffi took the deal, they’d go straight to a sentencing hearing, but it would by no means be a typical one. Judge Forbes was well aware of the unusual nature of this case, and he was prepared to hear extensive testimony and argument, far more than was typical during a sentencing hearing. The involuntary intoxication and temporary insanity defenses might not be admissible in a trial, but he and Boyne could certainly use them in a sentencing hearing. In effect, it would be very similar to a trial. Instead of persuading a jury to issue a not-guilty verdict, they would try to persuade Judge Forbes to suspend or defer his sente
nce.

  Raffi didn’t like the idea. In his mind, he had no choice but to give Dave the death he wanted in Rattlesnake Canyon, and conceding that it was criminal smacked of betrayal, to Dave, to himself, and to the truth of his intentions. Mitchell told him that he probably wouldn’t get the full fifteen years, but anything was possible. Judge Forbes had so far been unbending. And if he took the plea bargain, he would end up explaining the felony conviction for the rest of his life. How many people would understand? The journalist in Raffi knew that, however organic it had been for him, from the outside his story was outlandish. But there it was: if he didn’t take the plea, he would have to explain it to a jury anyway; if they didn’t believe him, he might get life in prison. Even if they did believe him, they could easily convict him on the principle of the law. A long incarceration would destroy his family. They would hurt even more than they hurt now.

  He took the deal.

  19

  A nyone watching the evening news in early May 2000 saw the live aerial footage: an immense ponderosa forest curtained in smoke, and rapidly disintegrating as one-hundred-foot-high trees ignited and vanished as fast as kindling in a campfire. By the middle of the week of May 8, the Cerro Grande blaze was ominously closing in on the town of Los Alamos, and the nation watched in excitement and dread as first one house, then whole blocks and neighborhoods were overrun by the blaze. Raffi Kodikian’s sentencing hearing, which took place the same week three hundred miles away in Carlsbad, didn’t stand a chance against that kind of drama. So it was that few outside of New Mexico ever heard his long-awaited testimony, or learned of the punishment handed out to him.

  Raffi entered the courtroom shortly before nine. He looked nothing like the worn-out suspect from the mug shot. He had the obligatory courtroom haircut, close on the sides, slightly longer and stylishly choppy on top. He was wearing a black suit and a blue shirt, what could have passed as wedding attire. Every eye in the audience was on him, scanning his face for signs of a hidden truth. Some say you can tell a man’s guilt by his eyes, but Kodikian’s must have been more like mirrors than windows: everybody saw something different. Murderous rage, ingenious deception, absolute compassion—his black irises gave back nothing, and in that nothing, individual opinions found their confirmation.