Fogbound

by Joseph T. Klempner

  The technician played with his keyboard again. Jorgensen remembered Doc Crawford’s nephew Zachary, and the magic he’d been able to do with one of those things.

  JANUARY 11, 2002 3:39 p.m.

  “Beautiful,” said Jessica. “Why don’t you leave it there for now. Lights!”

  Jorgensen froze as the room suddenly brightened. Those in the front rows were already rising from their seats, a few of them even turning his way. He pushed himself up and tried to pivot toward the door, but his knee locked, causing him to momentarily lose his balance and pitch forward. He put out his hands to catch his fall (a reflex known all too well by roller skaters and their orthopedists), landing awkwardly on the padded carpeting.

  The others in the room let out a collective gasp and rushed over to offer assistance.

  “Are you all right?” a woman asked.

  “Don’t move him!” shouted a man. “Someone call nine-one-one.”

  “Stand back,” said another man. “Let him breathe.”

  But the others paid no attention, instead crowding around Jorgensen’s fallen body so tightly that the last person to reach him was forced to peek between two others in order to get a glimpse of his reddened face. When she did, she managed to confine her reaction to a single word.

  “Fuck” is what Jessica Woodruff said.

  “Would you like some more water?” someone asked him. “Some ice for your forehead, maybe?”

  “No,” said Jorgensen, “this is fine, thank you.”

  From Screening Room One they’d adjourned to Conference Room One. It was every bit as nice as the first room, but in place of the giant monitor and the rows of theater seats, there was a large wooden table (teak, was Jorgensen’s guess this time), surrounded by a dozen chairs. Jorgensen had been helped into one of them, at one end of the table. Half the others were occupied now, presumably by the same people who’d been at the screening moments earlier. Jessica Woodruff - it had been her - sat at the opposite end. Jorgensen recognized Ray Gilbert, one of the two men who’d accompanied Jessica on her first visit to the lighthouse, though the other one, Tim Harkin, was nowhere in sight. The man who seemed to have been in charge of things during the screening was there, as well as several others Jorgensen couldn’t place. The technician appeared to have been excused.

  “Are you certain you’re all right?” asked In Charge. He looked to be fifty or so, and very handsome, in a corporate sort of way. “We have a physician on call, and a-”

  “Thank you,” said Jorgensen, “but not to worry, I’m really fine. A bit embarrassed, but fine.”

  “I’m Brandon Davidson, by the way. I’m a big fan of yours. Though I must say, I’m surprised to see you here in New York. Jessica - you remember Jessica from-”

  Jorgensen nodded.

  “-Jessica was just getting ready to fly down to, to-”

  “South Carolina.”

  “Right, along with Ray here, to begin prepping you for the oral argument.”

  “And I can assure you I was very much looking forward to it,” said Jorgensen.

  “Perhaps,” Davidson suggested, “they can even join you on your return flight, if you wouldn’t mind.”

  “I wouldn’t mind at all,” said Jorgensen. “But if you’ll permit me-”

  “Yes?”

  “-I mean, will there still be an oral argument?”

  Jorgensen thought he noticed Jessica shifting her weight uncomfortably in her chair.

  “I’m not sure I follow you,” said Davidson.

  “The screening,” said Jorgensen. “Kurt Meisner. Everyone in this room now knows Boyd Davies is 100 percent factually innocent. Don’t we have an obligation to ask the justices to take the case off its docket while we pursue our remedies in the Virginia courts?”

  “I’m afraid it’s not quite that simple,” said Davidson.

  “What’s not simple about it?”

  “Plenty,” said Davidson. “For one thing, you’re making the assumption that Mr. Meisner was telling the truth.”

  Jorgensen rubbed his eyes. Maybe the fall had affected him more than he realized. “Why on earth,” he asked, as calmly as he could, “would he be lying? Why would he suddenly claim that his own son was the murderer if it weren’t true? And why would he acknowledge that he’s known it all along and covered it up, allowing an innocent man to spend sixteen years on death row? Those are pretty damning admissions, wouldn’t you say?”

  “Okay,” said Davidson. “Let’s assume for just a moment, for the purpose of argument, that Meisner was telling the truth. Who says he’s going to be believed?”

  “He has to be believed,” Jorgensen fairly shouted. “Other than it being the truth, what other explanation can there possibly be for it? That he’s suddenly decided he likes Boyd Davies? That he wants to reward him for killing his daughter, by setting him free?”

  “Remember also,” said Jessica Woodruff, “that his statement is hearsay. There was no opportunity for cross-examination.”

  “But you have to start somewhere,” Jorgensen explained. “The tape, along with a written transcript of it, will get us into court. Some judge will have to order an evidentiary hearing, where we’ll subpoena Mr. Meisner and have him testify. That’s when the state will get its chance to cross-examine him. That’s how it’s done.”

  None of them said a word; all they did was exchange glances across the table. It occurred to Jorgensen that he might have overestimated these people. Weren’t they lawyers, though? Didn’t they know anything about criminal procedure, and how the rules of evidence worked?

  “There are a few things you evidently don’t know,” said Brandon Davidson.

  “I don’t know?”

  “Yes,” said Davidson. “In the first place, no one’s going to need to cross-examine Kurt Meisner.”

  “I don’t understand how you can say that.”

  Jorgensen interpreted the pause that followed as a sign of contemplation on the part of his hosts. But as the seconds ticked off, it began to dawn on him that they were simply giving him the silent treatment. He looked from one face to another, hoping to spot someone on the same wavelength as he was - the way he used to look around for a fellow judge on the bench whose reaction to an appellate argument might be the same as his. But not one of them would even make eye contact with him, and eventually, he gave up trying. Across from him, at the far end of the table, Jessica Woodruff appeared to be engrossed in studying her shoes, or perhaps the carpet beneath them, and now she began to shake her head slowly from side to side. At last, she looked up, sighed, and said, “I’m afraid this isn’t working.” She spoke the words softly, without emotion, as though she were suddenly very tired after a long day. Turning to Brandon Davidson, she said, “May I?”

  Davidson shrugged, and waved his hands slightly. Jorgensen couldn’t quite tell if that was his way of granting Jessica permission of some sort, or washing his hands of the whole thing. Jessica seemed to take it as the former.

  “Judge Jorgensen,” she began, giving him the distinct impression that he was in for a speech, “if you had to name the single driving passion that unites everyone in this room, what would you come up with?”

  “The single driving passion?”

  “Yes.”

  Jorgensen thought for a moment, wondering if it might be a trick question, before deciding to play it straight. “Justice?” he answered.

  “Not bad,” said Jessica. “Can you be a little more specific?”

  “Justice for Boyd Davies?”

  “Try going in the other direction for a moment,” she suggested. “Boyd Davies is only one man. Try thinking big, why don’t you.”

  Jorgensen leaned back in his chair. He wanted to tell this television woman that as driving passions went, justice was a pretty big thing, even justice for one man. Particularly when that man had been wrongly convicted and spent the past sixteen years of his life on death row for a crime he hadn’t committed. But he sensed that Jessica Woodruff wasn’t really looking for
a debate on that point. She was going somewhere else with this, somewhere else entirely. Somewhere big, as she’d put it. So he held his tongue and waited.

  “Why did you retire from the bench, Judge?”

  Jorgensen smiled. “I was getting old,” he said. “It was time to make room for some younger men. Younger women, too.”

  “Be honest,” Jessica told him. “It was more than that. I’ve read some of your writings. I think everyone in this room has.”

  “I was tired.”

  “And what was it you were tired of?”

  Years ago, Jorgensen had been a chess player. He’d never played enough to get really good at it, but he’d liked the game, the way you had to plan five, six, sometimes seven moves ahead. The thought that came to him now was that he was badly overmatched and caught in an endgame, with the enemy pieces closing in on him, with each move backing him slowly but surely into a corner.

  “The caseload,” he said, “and the constant bickering with colleagues.”

  Buying time, slipping out of check for a moment.

  “Which cases?” she pressed him. “And bickering over what?”

  Check.

  “You must know,” he said.

  “Yes, I know. But I’d prefer for you to tell us.”

  Check.

  He closed his eyes, but it was no use. He could see them still, the endless line of petitioners, each with three names, which were almost always easily identifiable as black or Hispanic. Their all-too-familiar stories of alcoholic parents, broken homes, and physical abuse. Their pitiful IQ scores, forever hovering somewhere in the range between sixty and seventy.

  “The death cases,” acknowledged August Jorgensen.

  Mate.

  “Every single person in this room,” Jessica was saying, “is a committed, passionate foe of capital punishment. Because it’s immoral, because it’s invariably applied in a racist manner, because study after study has demonstrated that it has absolutely no deterrent value whatsoever. And because it defines us as an uncivilized nation that places a higher value on vengeance than on compassion. Sound familiar?”

  Eyes still closed, Jorgensen nodded.

  “It should,” said Jessica. “If I’m not mistaken, those are your own words.”

  He’d actually said it a little better, as he recalled, a little more succinctly. But she was pretty close.

  “Why do you think it was,” she asked, “that we sought you out in the first place?”

  He opened his eyes, blinked a couple of times at the unexpected brightness. “You told me so yourself,” he replied. “It was my good looks and deep voice.” A ripple of polite laughter spread around the table. “That, and your claim that I’d bring a bit of dignity with me, a degree of gravitas, I think you called it.”

  “All true,” said Jessica. “But you’re overlooking the biggest requirement of all, the sine qua non.”

  “That being?”

  “That being your longstanding principled opposition to executing fellow human beings.”

  Jorgensen smiled at the mouthful. He knew there was a reason he had no use for television.

  “So,” said Jessica, “here’s what we need to know. Do you still feel the same way you felt when you stepped down from the bench in protest and wrote those words? Are you one of us? Can we trust you?”

  “Can you trust me?”

  “Yes.” The voice was that of Brandon Davidson. “What Jessica means, I think, is that we’re about to share a confidence with you, a very important confidence. We need your assurance in advance that you’ll treat it as such. In other words, we need to know we can trust you with it.”

  “And I’m supposed to give you my word in a vacuum, before I hear what this confidence is.”

  “I’m afraid so.”

  “And if I won’t?”

  Davidson looked him hard in the eye. “If you won’t,” he said, “we’ll get someone else who will.”

  Jorgensen sat for a moment, pondering that. Once, as a small boy, when he’d been tagging along with a group of older boys, they’d pulled him aside and asked him if he could keep a secret. Wanting to hear it, he’d promised that he could. So the older boys had told him they planned to set fire to the barn of a farmer who’d chased them off his fields. Bound by his promise, young Augie Jorgensen had stood by helplessly as the barn burned to the ground. It had been a hard thing to watch, and an experience he hoped he’d learned from.

  Slowly now, he placed the palms of his hands on the arms of his chair and began pushing himself up. When he reached a standing position, he said, “If you’re truly satisfied that I’m as principled in my opposition to the death penalty as you are, that should be all the word you need. If it isn’t, then by all means get someone else.”

  There was an embarrassing silence. Finally, someone said, “That’s good enough for me.” That was followed by a, “Me, too,” and a, “He’s okay.” Only after everyone at the table had voiced approval in one way or another did Jorgensen lower himself back down into his chair.

  No barns would burn this day.

  “Several years ago,” began Jessica, “we received a report about a man living in Virginia by the name of Kurt Meisner. Meisner was said to be in poor health and staying by himself in a rest home. According to our source, he was troubled by a burden that he’d been carrying around for almost fifteen years, a burden that might be of particular interest to us at Trial TV. Our research department did some digging and came up with the fact that back in the mid-eighties, a child named Ilsa Meisner had been murdered, and that court records from that time listed her father’s name as Kurt.

  “Through Social Security records, we found Kurt Meisner, at the very same seniors’ residence where you yourself visited him not too long ago.”

  “Which explains,” said Jorgensen, “why you didn’t have to ask me where he was.”

  “Correct,” said Jessica. “In any event, back when we first spoke with him, Mr. Meisner was uncooperative. He denied carrying around any sort of a burden and insisted he had no idea what we were talking about. But we persisted.”

  Jorgensen wasn’t sure he liked the emphasis she placed on the word persisted, but he let it go. There were times in life, after all, when the end truly did justify the means.

  “Eventually, after assuring Mr. Meisner that the statute of limitations had long run on any crimes he might have committed-”

  “And in the interest of full disclosure,” broke in Ray Gilbert, “we also provided him some modest financial assistance, defraying some of the costs of his care at the facility.”

  “Right,” said Jessica. “There came a time when he finally broke down and told us his story.”

  “His story,” echoed Jorgensen. A part of him was beginning to see where this was going; another part was having great difficulty digesting it.

  “Yes,” said Jessica. “The same story he told you.”

  Jorgensen rubbed his eyes. Maybe he’d hurt himself more than he’d thought when he’d fallen back there in the screening room. He kept remembering how a couple of weeks ago, back at the lighthouse, Jessica, the Duke, and the cameraman had said they were going to see Meisner as soon as they left. Wasn’t that when they’d found him, and made the videotape of him? All of a sudden, everything seemed confusing, as though a fog bank had settled in. He rubbed his eyes again. “When was this?” he asked.

  It was Brandon Davidson’s turn. “A year ago,” he said, “a little more, maybe. Eighteen months, tops.”

  The fog parted momentarily. Jorgensen leaned forward, straining to see, fighting to comprehend. “You all have known all this for a year?” he asked.

  Nods all around.

  “And the videotape?” He waved in the direction of the screening room.

  “What about it?” Jessica asked.

  “When was it made?”

  “About eight months ago.”

  Eight months ago. Of course: That explained the younger, healthier Kurt Meisner, the one with more hair on his
head. Jorgensen suddenly felt very old and very foolish. Here he thought he’d performed a minor miracle, running around like some Don Quixote with Boyd Davies’s drawing, until he’d stumbled upon Kurt Meisner and succeeded in prying the truth out of him. And now they were telling him they’d found Meisner a year and a half ago, and had had his story down on videotape before they’d ever sought Jorgensen out. The fog was rolling in again, thickening, threatening to overwhelm him.

  “So,” he said, forcing himself to fight it back, “so you all have known for a year and a half now that there was an innocent man sitting on death row in Brushy Mountain. And for eight months, you’ve been in a position to prove it.”

  “That’s true,” said Davidson, “to a certain extent.”

  “Did you go see Boyd?”

  “Yes,” said Jessica. “At least we sent someone in to see him. And we did a lot of fact-checking on him, too.”

  “And what facts did you come up with?”

  “That he can’t read, can’t write, and doesn’t speak. That he has no visitors, no family that cares about him, no friends in prison or out, no comprehension of what he’s there for, no ability to distinguish between one day and the next. Nothing.”

  “But you knew he was innocent,” said Jorgensen, “you’ve said so yourselves. You had no choice but to-”

  “Stop . . . right . . . there,” said Jessica. “That’s precisely where you’re wrong. In fact, the more we thought about it, the more we realized we did have a choice, one we’d be forced to make. On the one hand, we could save Boyd Davies. If we did that, we’d be patted on the back and told we were heroes. But what would we really have accomplished? Davies would be taken out of Brushy Mountain. But with nobody to care for him and nowhere to go, he’d still be a ward of the state. He’d trade in his prison cell for a bed in the psychiatric wing of some dreadful state hospital, where he’d probably be worse off than he is now. He’d languish there until the day he died.”

  “Which, in all fairness,” said Ray Gilbert, “would then be later, rather than sooner. In other words, if we chose to save him, he’d live longer.”

  “If you consider that a blessing,” countered Jessica. “But that’s not the worst of it. The worst part is that if Meisner’s story were to come out in time to save Davies, the opposition - the pro-death forces - will get a chance to put their own spin on it, and claim it as a victory. ‘See,’ they’ll all say, ‘the system works; an innocent man has been set free.’ And all we’ll have succeeded in doing is to hand them the ammunition they need to shoot us down with.”