Journal of the Dead

by Jason Kersten

  As Judge Forbes took in the prosecutor’s words, a look of hard shock set into his face, as if during all the testimony—all the theorizing, storytelling, and hairsplitting—he had forgotten that the onus of deciding punishment was his, and now it was staring him in the face. His eyes widened when Williams first mentioned the word “law,” and the prosecutor picked up on it: he had said it again and again with chastening redundancy, determined that Judge Forbes remember his decision had to be based not on his heart, but on that small, unbending word.

  Peter Bigfoot, who had returned to his perch in the back of the courtroom, was all heart. He was so ruffled by Williams’s demand for a harsh sentence that halfway through he raised his right hand high above his head, as if to ask a question, and held it up throughout most of Williams’s closing argument. The judge and everyone else ignored him, until he finally sat back down and seemed reluctantly to accept that this was not a classroom, and that no one was going to allow him to speak. Later he would explain: “I wanted to say that when you’re in a situation like that—dehydrated, with low blood sugar, sunburned, heat-exhausted, shocked by being lost, in excruciating pain from cactus poisoning—no human being can think straight under those conditions,” he said. “It is impossible to make rational decisions. You’d have to be superhuman. If a person has ever experienced these conditions, they should be compassionately judged.”

  That, of course, was exactly the gist of what Gary Mitchell said (in many more words) in his own closing argument moments later.

  “There’s a saying, Your Honor, that bad cases have a tendency to make bad law,” he began, and went into a soft-spoken, conversational spiel that included references to the Donner party, Jack Kevorkian, and even his own uncle, who had endured the Bataan Death March.

  “I agree with Mr. Williams,” he said. “We don’t allow mercy killings in the state of New Mexico. But this is not a mercy killing in and of itself, this is not a Kevorkian-type case in which states struggle with a physician coming in and taking somebody’s life at the request of the patient. We’re not dealing with that; this isn’t the Rio Rancho case, in which [Kevorkian’s] assistant is being prosecuted for a similar type offense. And I say it’s not because this is not a situation in which, one, obviously Raffi’s not a physician. It’s not made with the intellectual capabilities and concentration and rationalization that physicians and patients make in those type cases. We have a young man who makes that decision based upon the love of his best friend and upon the inability to rationalize what’s going on at the time. And in great pain and agony. Far removed from those types of cases.

  “It is more analogous to those type of cases that we never see in courtrooms, that we never bring up, that we only learn about after decades have gone by and young men have become old men, and they tell them to their grandchildren. We only learn of these types of cases then. We only learn about them when somebody in the twilight of their years is writing a book about what they did in World War II or what they did in Vietnam. That’s where we learn about these things, and those types of cases are never brought before anybody because we understand as human beings that there are those types of situations in which we do what we think is best, not because we think about the law, not because we care about the law at the time, but because we care about our fellow man. And there is something higher than law that most of us believe.”

  Mitchell wound up his argument by citing the fact that there had “not been a single cry from the victim’s family for some type of incarceration” and that the “deep compassion” of the people of the Southwest would allow them to understand if Raffi received a light sentence. He asked Judge Forbes to take into account that there had been no evil intent behind the killing. He asked for either a suspended or deferred sentence. And finally, he asked for the same thing that David Coughlin had allegedly asked for in the predawn gloom of Rattlesnake Canyon.

  “We should receive mercy from the criminal justice system,” he said.

  No one would have been surprised if Judge Forbes had spent a week hunkered in his chambers, reviewing the case, mulling over the angels and devils of every possible sentence. But he had made his mind up before the closing arguments had even begun. When the lawyers were through, he announced his sentence.

  “Historically, sentencing has the components of rehabilitation and retribution. Crime, I think we all know, needs to be deterred. This deterrence can be of a general nature when a court’s concern is to discourage the general public from violating a law as a result of observing the sentence that is imposed against a person like you, Mr. Kodikian, and this high-profile set of circumstances and facts that challenge moral and legal reasoning. Specific deterrence, on the other hand, serves to deter you individually from violating the law in the future, and I find that it’s unlikely that Mr. Kodikian will find himself in the situation that we’ve heard about for the past two days. The improbability of a reoccurrence turns the court’s thoughts along a path of a consideration more of a general deterrence. A long period of incarceration, what the state has asked for—a severe sentence (and both attorneys have different views as to what punishment should be meted in this situation) … but long incarceration I think has been proved here to not be the solution. I believe that it’s predictable that Raffi does not pose a threat or danger to society.

  “I do, however, think that Raffi Kodikian deserves to be punished for his violation of the law and the taking of the life of his friend, David Coughlin. Retribution in this court’s mind serves the very important and crucial purpose of preserving the rule of law that we all have to have for an orderly society…. Raffi Kodikian’s conduct in this situation caused the life of David Coughlin to end. Mr. Coughlin was a particularly vulnerable victim, and the impact on his family is never and will never be forgotten by them. I do know that Raffi’s conduct was not a result of a sustained criminal intent. His character and attributes that I have heard and read about suggest that he’s not likely to reoffend. His mental condition, I do believe, contributed to his conduct, but I find that he had a conscious and rational understanding of what he did at the time that he murdered David Coughlin. Raffi’s remorse is genuine, I don’t question that.

  “It is the court’s sentence that Raffi be sentenced to fifteen years in the corrections department of the state of New Mexico, and the execution of that sentence be suspended with the exception of twenty-four months.”

  His gavel fell lightly to the block.

  Raffi Kodikian accepted his sentence, but not without tears. He raised his hands to his face to hide them, but there are no private gestures in a courtroom. Some people said they were the sincere sobs of a man who truly regretted his act and feared what lay ahead; others wondered if they were tears of gratitude at having received such a light sentence. Perhaps they were both.

  Raffi’s family and friends appeared, for the most part, relieved. The first three rows of the left side of the courtroom became a wave of hugs and lowering heads, sighs and groans, as if they were shaking off all the emotional exhaustion of the last nine months. Even though they had hoped beyond hope that he wouldn’t end up in prison, they knew it could have gone much worse.

  Reactions in the rest of the courtroom were torn. None were as starkly different or unexpected as those of two women, Sharene Brown, the court reporter, and Jane Smith, the bailiff. Brown spoke in a soft and chirpy voice filled with the hospitality of the Southwest. She came to court every day well made up and often in a dress, and was a picture of feminine warmth. “I couldn’t believe that’s all he got,” she said. “I thought he was lying through his teeth. I wasn’t emotional during his testimony, I was skeptical.” Smith, on the other hand, the court cop who called “all rise” in a deep, commanding voice and had even jokingly proclaimed herself a “cast-iron bitch” began crying uncontrollably after Forbes passed his sentence. “We’re not supposed to show any emotion,” she later said, “but it was really hard to keep it together. He shouldn’t have done it, but I sure didn’t want him t
o get prison time. I don’t think he should be punished at all.” It had been Raffi’s testimony, she explained, that had caused her iron to rust.

  A few minutes later, Kodikian, Mitchell, and Boyne walked upstairs to the courthouse’s third floor, where they held a short press conference. “I still feel I did the right thing,” Raffi told the reporters. “I feel that anybody in my position who would turn their back on their friend in that position wouldn’t be deserving of coming out of that canyon in the first place.”

  “How do you feel about the sentence?” one reporter asked him.

  “This is a life sentence,” he said. “I will spend the rest of my life trying to justify my actions.”

  Gary Mitchell initially told the reporters he didn’t know whether or not they’d appeal the two-year sentence—a right Raffi had reserved under the plea agreement—but it was clear he had said it more out of sympathy for his client than out of any intention to do so. The appeals process, he knew, could very well take longer than the sentence itself. Later on, away from the reporters, he was clearly elated. “This was a fair sentence,” he said. “I was expecting about five years. Raffi was fortunate in many ways. He was fortunate to get this judge, and he was fortunate to get this prosecutor, a man more interested in seeing justice done than in nailing heads to the wall. He was fortunate to get out of that canyon alive.”

  Many attributed Kodikian’s light sentence more to Les Williams’s restraint than to Gary Mitchell’s sermons of the range. It wasn’t hard to imagine a younger, hell-bent prosecutor ratcheting up Kodikian’s sentence a month here and a year there by gratuitously dissecting some of his testimony. It could have been easily done. Williams could have asked Kodikian if he and Coughlin had seen the water towers from the top of the canyon. Had the answer been no, he could have shown how they were almost impossible not to see. He could have asked Kodikian how it was he had remembered, in great detail, the conversation he’d had with Kenton Eash, the climb up the slopes, and his dream about the machines, and at the same time been uncertain as to whether he’d burned the topo map or lost it. He could have asked Kodikian if he knew how Coughlin ended up with a three-inch bruise at the base of his skull.

  But Williams had no evidence to prove that Kodikian had acted in rage, and Kodikian certainly wasn’t going to offer any, so he had stuck to the truth he knew and proven what he had set out to prove from the beginning: Kodikian had admitted he knew what he was doing.

  “I didn’t know what to expect,” Williams said of the sentence. “Before we started the hearing, I thought about eight years would be right. After we finished it, the two is fine, because we found out more. His remorse looked pretty real to me.”

  Only Raffi Kodikian can say for sure what happened in the early hours of August 8, 1999, and whether or not he told the truth—and many believe he did—it is disputable that he got away with anything. Just before five P.M., his friends and family escorted him to the Eddy County Jail, and the following morning he was shackled, put on a corrections department bus, and taken to the Central New Mexico Correctional Facility to be processed. From there, he got on another bus and headed east, bound for a lockup near the town of Santa Rosa, where he would serve out his sentence. It was a trip of about four hundred miles in all, and it is safe to say that it was the loneliest one of his life. For the last hundred or so miles, the bus sped east along I 40, and right next to it, visible through the barred windows, was the older road the interstate had replaced. It was the cement fable itself, Route 66.

  EPILOGUE

  Carlsbad returned to normal after the hearing. The TV trucks and reporters raced north to cover the fire, and the motels along Canal Street once again sat mostly empty. That is not to say that things got boring, because, unlike the water, strange news never evaporates on that scratch of the map. Later that summer, a swarm of killer bees attacked an elderly woman in town, causing her to die of a heart attack in her own garden. That sad event was followed by an even sadder one, weeks later, when a section of natural gas pipeline along the Pecos exploded, shooting a stream of flames two hundred yards, right to a spot where ten people, including five children, were camping. All ten of them died. But the strangest story of all happened the following spring.

  Almost a year after Kodikian’s sentencing hearing, Brian Tenney, a thirty-five-year-old Pennsylvanian, was hiking through Rattlesnake Canyon when he noticed an envelope lying on the canyon floor. Inside was a letter written two days earlier by a woman named Emily Schulman. She explained that she was lost in Rattlesnake Canyon and needed help. In case it never came, she had also written her good-byes to her friends and family. The return address on the envelope was in Boston, Massachusetts.

  Being from Pennsylvania, Tenney had heard all about the Kodikian case, and he knew he was walking over the same ground. “I thought it was a hoax someone pulled,” Tenney later told the Carlsbad Current-Argus. “I figured some college kid was watching me with binoculars laughing.”

  His skepticism toward the note quickly turned to concern, however, when he came across torn-up bits of paper nearby. They were pieces of ripped-up business cards, with more notes from Schulman asking for help. He ran much of the way back out of the canyon, then raced back to the visitor center in his car.

  Within minutes teams of rangers and law enforcement officers were winding down the Rattlesnake Canyon trail. Many of the same players were there, including Mark Maciha and Jim Ballard, both of whom noticed that Schulman’s car was parked in the exact spot where Coughlin’s Mazda had been. And after they hiked down into the canyon, their search for Schulman took them right past the spot where Lance Mattson had found Kodikian, lying next to the body of his friend.

  They searched for hours in vain, until the sheriff’s office finally called in a search plane. But this story had a happy ending: the plane spotted Schulman shortly after three P.M. She was about a mile west of the exit trail, waving a T-shirt with all her might. When her rescuers finally reached her, she was almost out of water. She told them that she had come to the canyon two days earlier for a day hike, and missed the exit trail.

  “It was weird,” Maciha later said over the phone. “I don’t know what to make of it. I really don’t know what we can do to make that trail any more visible.”

  It was a bitter vindication for the families of both David and Raffi, who had always been of the opinion that Raffi never would have been driven to mercy killing if the trail had been better marked and rangers had noticed that they were overdue earlier. After the sentencing hearing, the Coughlins had even set up a fund to equip the park with GPS systems that hikers in the backcountry could check out at the visitor center, but Schulman was either unaware of it, or more likely never bothered checking in at the main desk.

  After the State of New Mexico v. Raffi Kodikian, most of the law enforcement and legal professionals involved continued working on less-ambiguous cases, with just as much zeal. Gary McCandless and Eddie Carrasco went back mainly to busting drug dealers, and Les Williams happily returned to prosecuting them. Gary Mitchell continues to fight against the death penalty with great success. Shawn Boyne eventually got tired of the long hours, and she took a professorship at a university. Her involuntary intoxication defense made Law Review.

  Chunky Click lost his reelection bid in November, then took a job in the police department in the nearby town of Loving. To this day, he still believes that Raffi Kodikian got away with murder.

  According to prison officials, Kodikian was a model inmate. His good behavior, and changes in New Mexico state law giving corrections authorities more discretion over prison terms, reduced his time served to sixteen months. He was released in November 2001, and made it home for Thanksgiving.

  David Coughlin will never make it home, but at least a part of him made it to what would have been his next stop on the road to California. “Dave has asked that his remains be cremated & thrown over the edge of the Grand Canyon,” Raffi had written in the journal, and his family took the words to heart. In Aug
ust 2001, two years after he died in Rattlesnake Canyon, the Coughlins made the trek out to Arizona and scattered his ashes into the greatest canyon of all.

  ACKNOWLEDGMENTS

  This book would have been far more difficult to produce if it weren’t for the assistance of many people. I thank them here, beginning with everyone who was willing to be interviewed, at times in spite of their reluctance. Journalism of the dead is an inherently difficult task, often involving asking people to access emotions and memories they’d rather not relive or make public. I am particularly grateful to those people who decided to share their memories of David Coughlin. They are the only voice he has left.

  I’d also like to thank my fellow journalists, some of whom covered the Rattlesnake Canyon case themselves for their respective media outlets and freely offered their insights, help, and encouragement. They are: Kyle Marksteiner and Jose Martinez, Jim Kaminsky, Todd Katz, Jay Cheshes, Sheri de Borchgrave, Laurina Gibbs, Loch Adamson, Tanya Henderson, Sally Hawkins, Connie Chung, Scott MacBlane, Steph Watson, Alistair Bates, and Philip Jones Griffiths, for his wonderful photos and insight.

  Then there are the information providers: all the wonderful folks at the Eddy County Courthouse, Sally Bickley, Sherry Fletcher, the Northeastern News, and Garmin International, for use of their GPS and topo maps, and anyone I’m forgetting.

  Last but not least, my parents and Scott Waxman, Dan Conaway, and Nikola Scott. Their patience was a godsend.

  About the Author