Fogbound

by Joseph T. Klempner

  “Oh, he’ll do it,” she said. “That’s not what worries me.”

  “Okay,” said Davidson, “what worries you?”

  “I don’t know. He insisted on going up to the prison, and meeting with the defendant.”

  “What’s wrong with that?”

  “Nothing,” said Jessica. “Only I don’t like working with people who need to control everything. Why couldn’t he just say yes or no, and then, if he’s going to do it, just go with the program?”

  “He’s from the old school,” said Davidson.

  “What’s that supposed to mean?”

  “Well, when he was on the bench and used to find himself in the minority - which was most of the time, naturally - he was never satisfied just saying he disagreed with the majority. He always insisted on writing something. And his dissenting opinions were usually so well written that more often than not, he’d drag another judge or two with him. The majority always prevailed, because they had the votes. But if you were to sit down and read the full opinions, you’d see he was almost always on the right side of the issue.”

  “Well,” said Jessica, who hadn’t sat down and read a full opinion since law school, “I just wish he wasn’t such a weirdo. I don’t like working with people who like to make waves. It makes me nervous.”

  “He’ll be okay,” said Davidson. “What are you covering this afternoon?”

  “Some trial from Florida. Nine-year-old kid brings a loaded revolver to school for ‘Show and Tell.’ Prosecutor wants him tried as an adult, so they can lock him up for fifteen years.”

  “And the audience?”

  “Pretty evenly divided.”

  “Ratings?”

  “Eighteen-five. I’ve been on the phone with the defense lawyer, trying to talk him into putting the kid on the stand. I figure we could break twenty if he does. The kid’s cute.”

  “Good,” said Davidson. “What’s Court TV doing?”

  “The usual. Timothy McVeigh, the World Trade terrorists, A1 Sharpton.”

  “Jerkoffs.”

  “I’ve got to go, Brandon. Makeup wants me.”

  “Okay, babe. Break a leg.”

  “Thanks.”

  Mercifully, the drive home from Brushy Mountain didn’t take nearly as long as the drive up. At least it seemed that way to Jorgensen. It always seemed that way, in fact. There was something about heading home, some mysterious gravitational force that exerted itself on you, and drew you in as you got closer and closer. He decided to drive straight through, even though Marge would have told him not to trust his eyes after dark. But the thought of another night lying on a bad mattress in a cheap motel made him shudder, and he tightened his arthritic hands around the steering wheel and pushed on.

  “To the lighthouse!” he shouted. “To the lighthouse!” And if he aimed the words at his dog, who responded with a concurring wag of his tail, August Jorgensen knew full well that the rallying cry was meant for himself.

  For two days it blew hard, huge sheets of rain driving relentlessly against the weather side of the old lighthouse. Jorgensen used every towel he owned to mop up around the portholes, and when he ran out of towels, he used old shirts. He ventured out only once, to have a look at how the catboat was riding at its mooring. He knew the lines were good, and the mooring itself would hold - he’d salvaged a huge mushroom anchor from an old PT boat and sunk it deep in the mud. Still, he was worried the sheer volume of rain might swamp the open boat.

  But it looked to be okay, as far as he could tell. Jake was all for rowing out to it and bailing it out, but Jorgensen told him no, not in this weather.

  Back inside, he changed out of his soaking oilskins and climbed the spiral staircase all the way up to the light chamber. There he stood and watched as long, jagged streaks of lightning lit up the horizon and illuminated the surf directly beneath him. The glass surrounding him was thick, he knew, hurricane thick, and the lighthouse was topped with a lightning rod. He felt a safeness here he couldn’t possibly have described. The more the sky lit up, the louder the thunder crashed, the harder the rain drove - the safer he felt.

  Beyond that, there was a majesty to it, an incredible majesty. He had lived right here for a dozen years, in fair weather and foul, and right here he would die, when it was his time. It was a shame about Boyd Davies, behind the Wall at Brushy Mountain, and it would have been something to get to argue a case before the Supremes. But this was his home; he belonged here. He would leave the courtroom battles to younger men and women. Right here, he had all the battle he needed. What a trivial, insignificant contest Davies v. Virginia was, when compared to the likes of Man v. Nature, or The Sea v. The Land!

  Toward the evening of the third day it cleared, and Jorgensen surveyed the damage, as he always did after a storm. A few new chinks and cracks had appeared in the outer wall of the lighthouse, but nothing too serious. It was definitely time to do some major recaulking around the portholes. And as soon as the sea calmed a bit, he and Jake would row out to the catboat and bail her out. But the biggest impact the storm had had wasn’t on the lighthouse or the boat, but on the beach. A good twenty feet of sand had been washed away, leaving Jorgensen’s home that much closer to the advancing ocean.

  “We better hurry up and die,” he told Jake, “before old Neptune comes and gets us.”

  On the fourth day, there was a letter for him when he called at the post office. It had no return address, but a postmark told him it was from some place called Falls Mills, Virginia. Back at the lighthouse, Jorgensen slit it open. There was a handwritten note, which he read first.

  Dear Mr. Jorgensen:

  My name is Homer, and I am a C.O. at Brushy Mountain State Prison. I got your name and mail address off the sign-in sheet in Reception. I thought you might like to have this. You left it behind in the Counsel Room after your visit Monday.

  There was no closing, no signature, no last name (or perhaps no first name) to go with “Homer.” All of that made Jorgensen wonder if the man had maybe been aware that he was violating some administrative rule by sending whatever it was that was inside. Nor could Jorgensen remember leaving anything behind: He’d remembered to take his folder, his legal pad, his pen, and his reading glasses. Everything else, he’d made a point of leaving back in the truck.

  He checked the envelope. All that remained in it was a single piece of paper, which he removed. It was folded in thirds, but even though the outside of it was blank, he recognized it as one of the sheets from his legal pad. He couldn’t remember having taken any notes at the visit; there’d been nothing to take notes about. Then he remembered the stick figure he’d drawn for Boyd in an attempt to get Boyd to draw something of his own. Nice of Homer to return it, but hardly necessary. He unfolded it.

  No doubt it was the combination of what he saw - measured against the low level of his expectations - that caused Jorgensen to react as he did. Imagine an unsuspecting visitor walking into the Sistine Chapel and looking up, fully expecting to find a dropped ceiling, courtesy of Home Depot.

  It was astounding. No, it was more than astounding. It was absolutely incredible, so incredible that it was almost frightening.

  What August Jorgensen was looking at was a portrait of a man, rising from the slope of his shoulders and the base of his neck to a three-quarter view of his face, on up to an unruly shock of hair. A cinderblock wall in the background identified the setting as the counsel visit room at Brushy Mountain. Jorgensen could tell from the ruled lines on the paper, and from one or two places where the folds of the paper had smudged the pencil marks, that it was a drawing he was staring at. But had it not been for those clues, he would have bet everything he owned in the world that what he was holding in his hands was a professionally taken, studio-quality photograph of himself.

  Suddenly aware that his knees were shaking, Jorgensen lowered himself onto one of his kitchen chairs, his eyes never leaving the portrait. Vanity had never been one of his vices, and surely it wasn’t vanity that riveted his gaze no
w to the likeness in front of him. Indeed, had it been about vanity, Jorgensen might have found much to dislike in the face. Deep creases gave the flesh a texture that was nothing short of leathery; hollow cheeks accentuated the facial bones and suggested the outlines of the skull hovering just beneath the skin; eyes set so deep as to hint at blindness; hair so unruly as to defy even a passing acquaintance with brush or comb.

  But it was more than that. Looking hard, Jorgensen was struck by how very tired the man looked. Not just tired, but worn out, weary. And weary not just from lack of a night’s sleep or long hours behind the wheel, but from something far more draining - as though there was some terrible, terrible sadness deep inside the man’s heart.

  His heart.

  Had Boyd Davies merely been committing to paper what was in front of him? Or had he seen something beneath the surface, something that Jorgensen himself hadn’t been aware of? What was it that had prompted Boyd to put pencil to paper as soon as Jorgensen had walked out the door? And how on earth had he been able to create a likeness of someone he’d seen for less than an hour, and even then had barely seemed to take notice of?

  If August Jorgensen had a head full of questions, he had no answers. But he’d picked up a lesson or two in his eighty-plus years on the planet, and one of them was this: When the fish are biting, don’t switch your bait. Well, evidently he wasn’t the only one who knew that rule. Each time, someone had dangled it in front of him, and each time it had been the same: a young man’s strange, uncanny ability to capture the world and re-create it on a piece of paper. First, it had been a TV woman named Jessica Woodruff; then a long-dead detective named Daniel Wyatt; and finally a corrections officer wanting to be known only as Homer. Each time, he’d taken the bait. Twice he’d felt the prick of the hook and managed to spit it out. But they say the third time’s the charm, and as is the case with most of those old sayings, there must be some truth to it, or they wouldn’t keep saying it.

  So when Jessica Woodruff stopped by a few days later to get his final answer, her driver waiting in a car with its engine running, Jorgensen hemmed and hawed a bit. But once he’d used up his quota of hems and haws, he told her yes, they could count him in.

  In plain and simple terms, he’d been caught.

  The Eighth Amendment to the United States Constitution decrees, among other things, that the government may not inflict “cruel and unusual punishments” upon any person. Just what a cruel and unusual punishment might be, the authors of the amendment never got around to specifying. So, as with most words and phrases in the document, the task of answering that question fell to the courts, specifically the justices of the Supreme Court. And over the years, there has been no shortage of interpretation on the subject.

  Torture, it would seem, is definitely cruel and unusual; so, too, are maiming and dismemberment. But surprisingly enough, death - most people would consider its infliction the ultimate punishment - is not, in and of itself, cruel and unusual. The basis for such a seeming paradox is entirely historical: Centuries ago, back when the Eighth Amendment was drafted and adopted, executions were relatively commonplace. In seventeenth-century England, for example, pickpockets were hanged in the public square, even as their competitors worked the crowd. Hence, no matter how cruel executions might have been, one would have been hard-pressed to say that, at least to the authors of the Eighth Amendment, there was anything unusual about them.

  To be sure, some limitations have been put in place over the years; and today, while states are free to impose and carry out death sentences, they may not do so indiscriminately. Limits exist in terms of eligibility, proportionality, and methodology. For example, it would be cruel and unusual (and therefore prohibited) for a state to impose death upon a child of ten, say; or as a penalty for shoplifting or stealing a car; or by stoning, burning at the stake, or some other method likely to entail protracted and agonizing suffering.

  Some states, furthermore, have adopted death penalty statutes more restrictive than required by the Eighth Amendment (just as some have declined to get into the business of death altogether). In terms of methodology, the guillotine, the hangman’s noose, the firing squad, the gas chamber, and the electric chair have all but given way to the syringe - the thinking being that lethal injection is more “humane,” and accordingly less subject to constitutional challenge as cruel and unusual. And yet, electric chairs still exist in one or two states, and to this day, Utah allows a condemned man to choose death by a firing squad. Nothing cruel and unusual about that, says the Supreme Court.

  Age limits vary from state to state, too, with some reserving capital punishment for those over twenty-one or eighteen, while others have displayed a willingness to execute offenders as young as sixteen. But no state authorizes death for the truly young; a law that did so in this day and age would no doubt be rejected as cruel and unusual.

  Nowhere in the debate, however, has there been more disagreement than in the area of the mental capacity of the accused. Some states have expressly exempted the mentally retarded; others have left the matter up to juries, allowing them to consider a defendant’s retardation a “mitigating factor” in their deliberations. For a long time, the Supreme Court pretty much managed to avoid the issue. For the majority of the justices, it seemed that sufficient protection was afforded by the natural screening process that takes place before and during trial. In other words, a defendant who’s so feeble-minded as to be incapable of understanding the charges against him will usually be found unfit to stand trial in the first place. And one who’s so mentally ill as to be unable to conform his conduct to the law will presumably be adjudged insane by the jury. Conversely, a defendant competent enough to stand trial, and sane enough to be found guilty at that trial, is fully qualified to die.

  But after years of stonewalling, the justices had recently agreed to consider an appeal of a retarded man, whose lawyers were asserting that killing him would be cruel and unusual. Unfortunately for Boyd Davies, “retarded” was a club he didn’t belong to. No showing had ever been made that Boyd was retarded. Illiterate, yes; uneducated, surely. But going back to his childhood, every time he’d been tested by someone using a nonverbal protocol (in other words, having him figure out how many blocks were hidden behind the visible ones), he’d done well. So retardation was out of the question, and however the Supreme Court happened to come down on that particular case, it wouldn’t save Boyd. And there was no spillover, no “interest-of-justice” doctrine that would prompt the justices to use common sense and say, “Well, if you can’t execute a retarded person, you can’t execute one with a serious developmental disorder, either.” No, for the Supremes, the rule was that you decided cases on the narrowest possible grounds, if, indeed, you were forced to decide them at all.

  Of course, it was precisely that sort of thinking that had driven August Jorgensen from the bench years earlier. Now here he was, stepping back into the fray, taking up the cause of a man who wasn’t retarded, had been found competent prior to trial, and sane during it.

  So just where did Boyd’s autism fit into the equation? The Supreme Court, in granting his lawyers one final writ of certiorari, had said it would limit its analysis to a very narrow question: Could a competent, sane, non-retarded individual, who was nonetheless incapable of understanding the connection between his criminal act and his execution, be put to death without violating the Eighth Amendment?

  At a hearing some months earlier, defense experts had testified that Boyd showed no evidence of being able to make that link in his mind; prosecution experts had, with equal certainty, assured the court that he could. It was a state of affairs that no longer surprised Jorgensen so much as nauseated him. As a judge, he’d seen too many times how easy it was for each side to line up teams of experts with long and impressive résumés to come into court and swear to one thing or another. They were mercenaries, willing to sell their opinions to the highest bidder. And the law, priding itself on its adversary system, not only put up with them, but embrac
ed them as a substitute for real science.

  But a funny thing had happened at Boyd Davies’s hearing. After all the experts were done testifying, the hearing judge had surprised everyone. Instead of deciding that Boyd did or didn’t understand why he was to be killed, the judge had ruled that it didn’t matter - that the Commonwealth of Virginia was free to execute him either way.

  Had the hearing judge simply chosen to say he believed the prosecution’s experts, that would have been the end of it. The Fourth Circuit would have ruled that the judge hadn’t abused the wide discretion accorded him; the Supreme Court would have declined to review that ruling, and Boyd Davies would likely have been a dead man by now.

  Instead, by ducking the factual issue, the judge had created a legal one. When his ruling went up to the Fourth Circuit, they’d quite predictably affirmed it. (Hell, Jorgensen remembered enough about his old colleagues in Richmond to know they’d affirm a lynching, if given half a chance.) But the certiorari application to the Supreme Court had been granted, meaning that at least four of the justices - and Jorgensen had no trouble guessing that meant Souter, Ginsberg, Stevens, and probably Breyer - had voted to hear the case. Of course, that still left a majority of five, and the odds of winning over Rehnquist, Scalia, Thomas, O’Connor, or Kennedy on a death case were right up there with being able to walk on water.

  And the funny thing about it was that even if the defense were to win, their victory would be limited, and no doubt short-lived. For if the Supreme Court agreed with them, and said you couldn’t execute someone who didn’t understand why you were doing it, they’d send the case back to the Fourth Circuit, which in turn would remand it to the hearing judge, with instructions to make a decision one way or the other. And as soon as he said, “Okay, I find that Davies understands why he’s going to be killed,” that would trigger a final appeal, but one limited to the question of whether there’d been a sufficient factual basis for his finding. “Yes,” the Fourth Circuit would be sure to rule, and the Supremes would quickly pass with two words: “Cert denied.” Their quaint way of saying, “Strap him down and hook him up.” At best, Boyd Davies would have won a few more months among the living.