Fogbound

by Joseph T. Klempner

  Jorgensen threaded the second halyard through its pulley and freed it, and went back under to begin untying the third. By this time, he could barely get his fingers to work, so cold and fatigued were they. At one point, he tried using his mouth, but his teeth were chattering too much to be of use. Finally, on the sixth trip down, he managed to loosen the last coil. Suddenly, the base of the mast came free from the hull, lifting Jorgensen with it as it rose to the surface. At the same time, the hull dropped away beneath him and slid out of sight. As it did, it released the cover to one of the storage compartments, a flat piece of wood the size of a small tabletop. It knifed its way upward, striking Jorgensen painfully in the back of his right leg.

  On the surface now, Jorgensen managed to pull his body up and onto the thickest part of the mast, which - now that it was free of the hull - was buoyant enough to support his weight. He knew he had to somehow get Jake up there with him.

  “C’mere, boy!” he called, and Jake obediently paddled to him, with whatever strength he had left. Grabbing the dog by his neck, Jorgensen hauled him up, only to have him get tangled with the one halyard that remained attached to the far end of the mast. Holding onto Jake’s collar with one cramped hand, Jorgensen used his other to snap the line like a whip, in an attempt to free it. Whatever he did worked, and the bitter end snaked away from him and traveled the length of the mast, slipping through its pulley at the tip. He watched as it began to sink, realizing too late that as it went down, it took with it the creature’s head.

  The radar reflector.

  The blip had disappeared altogether.

  Hiroshi Matsumoto had grown accustomed to its vanishing for a few seconds at a time and then reappearing. Now it was simply gone. He throttled back his engine, slowing to almost idling speed.

  “What are you doing?” Craig Lanahan asked.

  “If I’m right,” said Matsumoto, “and it is a container, it could be just underwater now, not high enough to present a target for our radar. We could be on top of the damned thing before we ever see it.”

  “At this speed?”

  “At any speed. Fucker’d be like an invisible iceberg, just waiting to rip us apart.”

  “So what are you going to do?”

  Matsumoto thought a minute. The blip still hadn’t reappeared. For all he knew, it could have been a whale or a big fish or a sea turtle that had heard them approaching and sounded. Even though they weren’t metal, things like that showed up on the screen from time to time, if they were dense enough. Or the blip might have been nothing more than an electronic glitch of some sort. Artifacts, the radar manufacturers called them.

  Matsumoto had a very sick man on board, a load of fish that wasn’t getting any fresher in the heat, and a crew anxious to make shore. Whatever had been making the blip on his radar screen was gone now. There was no disabled boat in the area, no one needing assistance. Matsumoto spun the wheel to the right and eased the throttle forward, determined to give a wide berth to anything that might still be lying in wait, just beneath the surface.

  Lying on the mast with one arm wrapped underneath it and the other steadying Jake as he bobbed alongside him on the storage compartment cover, August Jorgensen thought he detected the sound of an engine, but he couldn’t be sure. The fog did that to you. He knew that without a radar reflector, they were completely invisible, knew that he should try waving or shouting or getting Jake to bark. But he was simply too exhausted to do anything. All he could do was lie there, and hold on to the mast and his dog.

  After a while, he could no longer make out the sound, if, indeed, it had been a sound in the first place. All he could hear now was Jake’s breathing and his own, and the faint lapping of the water around them. Every muscle in his body ached, every cut and bruise stung. His eyes burned from salt and fatigue, and even though he knew he couldn’t risk falling asleep, he allowed them the luxury of closing, just to rest them for a minute or two.

  He was young again, twelve or thirteen maybe, skiing down a mountain slope. It was fresh powder, dry and ungroomed, and he felt almost weightless in it. At each turn, he’d plant a pole and pump his knees like twin pistons, causing him to unweight. His entire body would rise up out of the snow, allowing him to turn his skis without resistance and change direction in midair. He was all alone on the slope, skiing faster and better than he ever had, faster than he could have dreamed, faster than he imagined anyone had ever skied before. All he could hear was the sound of his own breathing. At each turn, his skis created huge plumes of snow, leaving clouds of powder that hung in the air and drifted, a visible, white fog all around him . . .

  Oyay! Oyay! Oyay! All those having business before the Supreme Court of the United States of America, draw nigh, give your attention, and you shall be heard. God save this honorable Court and these United States. The Chief Justice, and the eight associate justices of the Court, presiding. Be seated please.

  There was a rustle as spectators resumed their seats, and a hush fell over the room. “Good morning,” said Chief Justice Rehnquist, and a muffled “Good morning” rose in return from the audience.

  “Case Number Oh-one-three-three-seven,” intoned the clerk, “Wesley Boyd Davies versus the Commonwealth of Virginia. For the petitioner, Jessica Leigh Woodruff. For the Commonwealth, J. Taylor Bradford.”

  In spite of her years of experience appearing before judges, juries and cameras, Jessica felt the sudden rush of adrenaline. Relax, she told herself, you can do this; it’s nothing but an interview. She rose from the front row, reserved for the litigants, smoothed her skirt, and began making her way to the lectern. She’d decided against the pantsuit; Brandon Davidson had told her to go out and buy something special for the occasion, that Trial TV would pick up the tab. She hadn’t found anything at Bloomingdale’s, but a navy ensemble at Saks, on sale at $695, had struck her as both flattering and appropriate. The top had a V-neck, and she’d spent twenty minutes in front of her mirror this morning, trying to decide how many buttons to leave open at the top. Two seemed a trifle much, but one made her look positively priggish. In the end, she’d gone for the two, over a lacy black bra, just in case anything showed. They knew she was a TV personality, after all; they could hardly expect her to show up looking like some kind of nun.

  She took a moment to arrange her notes on the lectern, as well as a pad and pen to take notes, if the need arose. Then she looked up and smiled - one part nervousness, one part practiced professionalism.

  “Ms. Woodruff,” said the Chief Justice, “as much as we mourn the death of our friend and colleague Justice Jorgensen, it is our pleasure to welcome you. You may proceed.”

  “Thank you,” said Jessica. “If it please the Court-”

  Always start out by saying, “If it please the Court,” Ray Gilbert had told her. No one knew exactly why, or who had first uttered the words. But it had become tradition, and tradition was what the Court was all about.

  “-this case brings before you the issue of whether a state may lawfully take the life of a man who, though admittedly not retarded and found competent to stand trial, possesses absolutely no understanding of why he is to die.”

  “Well,” said Justice Scalia, “there’s never been an actual finding to that effect. Am I correct?”

  “That’s right,” Jessica agreed, surprised to have been interrupted after only a single sentence. “The district court conducted an evidentiary hearing, but never made findings of facts. Instead, the judge ruled that it made no difference, one way or the-”

  “And the Fourth Circuit affirmed,” said Justice O’Connor.

  “Yes.”

  “So,” said Justice Scalia, “you’re coming here today to tell us we should expand the Eighth Amendment to read that any time a state satisfies the myriad of other due process requirements and decides to execute a murderer who has been found both sane and competent, the prosecution must first bear the additional burden of demonstrating that the murderer understands precisely why the state is executing him. And that i
f it can’t meet that burden, the execution a fortiori becomes cruel and unusual.”

  “No, and no,” said Jessica. “I don’t believe we’re asking you to expand the Eighth Amendment at all. And I haven’t for a moment suggested that the state should bear the burden of proof on the issue, just that there should be findings-”

  “Wouldn’t you be the first to argue,” suggested Justice Ginsberg, “that it would be an impermissible burden to place upon a defendant?”

  “I’m not certain I-”

  “Let me see if I understand this,” said Justice Kennedy. “We’re concerned here only with the penalty phase of the trial, right?”

  Jessica nodded, then quickly remembered to say, “Yes, your honor.” She felt like she was being ganged up on. Ray Gilbert had told her to expect questions and interruptions, but this was ridiculous.

  “The petitioner concededly was sane at the time of the crime,” continued Justice Kennedy. “He was found competent then, and continues to be competent now. There’s no indication from the record that he didn’t receive a fair trial below - in both the guilt phase and the penalty phase - and there’s no claim of actual innocence, is there?”

  “OH, YES, THERE IS!”

  Although her mouth was open, the voice was decidedly not Jessica Woodruff’s. It was far deeper, identifiably male, considerably older, and appeared to be coming not from the lectern at all, but from the rear of the courtroom, where one of the huge doors had just swung open. Every head in the room turned in that direction now, every eye focused on the apparition that had just entered their presence.

  And apparition is about as close as one could come to describing him. He was tall and thin, thin to the point of being gaunt. White hair fell across a sunburned and blistered forehead. He was unshaven, with white whiskers sprouting from hollow cheeks. He wore a suit, but it was a faded, purplish thing that looked as though it had been slept in, perhaps for a week or more. And as he ambled forward, he limped badly, as though trying to favor first one leg, then the other.

  “Who is this man?” shouted the clerk, as uniformed U.S. marshals quickly moved in and restrained him. “And what’s he doing here?”

  “My name is Jorgensen,” said the man, “August Jorgensen. And I’m here to argue my case.”

  A murmur rose from the spectator section.

  “We thought you were dead,” said Justice Rehnquist.

  Jorgensen managed a crooked smile. “Me, too,” he said, “at least for a while there.”

  The marshals still had a firm hold of the man and were now looking to the chief justice for guidance. “Let him go,” said Justice Rehnquist.

  “Thank you,” said Jorgensen, staggering slightly and wondering if maybe he hadn’t been better off in their grip.

  “Well,” said Justice Rehnquist, never much a master of the ad lib.

  Justice Scalia, however, was more than up to the task. “Just when it was beginning to look as though there was nothing to say on behalf of Mr. Davies,” he noted, “all of a sudden he has not one, but two lawyers to say it.”

  “Well,” said Justice Rehnquist again, clearing his throat. “We welcome you back to the living, Justice Jorgensen. But Mr. Justice Scalia does have a point. Which of you will speak on behalf of the petitioner?”

  Jessica Woodruff did her best, but never got past, “I will.” She was simply no match for August Jorgensen. Not this day.

  “I speak for the petitioner!” he boomed, making his way to the lectern and all but pushing Jessica away from it. “And I have an answer for Justice Kennedy’s question. Wesley Boyd Davies is absolutely innocent, and I can prove it.”

  As far as anyone could remember, it was only the second time in over 200 years that the Supreme Court had been compelled to take a recess in the middle of an oral argument (the first having been occasioned by a particularly nervous young attorney from Ohio who, when unexpectedly interrupted by a probing question from the bench, had suffered the misfortune of vomiting upon his shoes).

  The justices retired (single-file, and in order of seniority) to the conference room, along with the litigants - a bewildered assistant attorney general from Virginia, and both Jessica Woodruff and August Jorgensen. The conference room, Jorgensen noted, was nothing like the one at Trial TV: It was a large room with a long table and a bunch of chairs around it, but it was uncarpeted and seemed built for business, not for show. The walls were lined with casebooks, and at the far end of the room was a second table, far smaller than the first, with a computer, several telephones, a television set, and some other electronic gadgetry.

  The chief justice took his seat at the head of the table, the other justices assumed what seemed to Jorgensen to be assigned seats, and the lawyers took what was left. “Now,” said Justice Rehnquist, turning to Jorgensen, “as irregular as all of this is, some of my colleagues here are leaning toward indulging you, and entertaining your, uh, offer of proof.”

  Jorgensen couldn’t be certain, but he thought he detected a wink from Justice Souter. “Thank you,” he said. Then, pointing toward the table with the gadgets, he said, “By any chance, is one of those things an RV?”

  “I’m afraid not,” said Justice Scalia. “Have you misplaced your Winnebago or something?”

  “What is you want?” asked Justice Souter.

  “One of those things,” said Jorgensen, “that can play movies on a television set.”

  “That we have,” said Souter. “You’re sworn to absolute secrecy, but we have a hidden camera that videotapes the oral arguments. You know, just in case any of us should fall asleep and end up missing something.” This time, he seemed to wink in Justice Thomas’s direction. Or maybe he just had some sort of facial tic, Jorgensen decided. It was hard to tell.

  Jessica, meanwhile, was busy trying to imagine what the secret videotapes might be worth, say the ones of arguments in high-profile cases, like Brown v. Board of Education, Sirica v. Nixon, or Bush v. Gore. “Do you save them?” she asked.

  Nobody answered her.

  “What is it we can we do for you?” Justice Rehnquist asked Jorgensen.

  “I need my assistant.”

  “Your assistant. And where might he be? Or she?”

  “He,” said Jorgensen, “is presently being detained at the security desk. They weren’t certain he was old enough to be permitted in the chamber. Apparently they had no such reservations about me.”

  Justice Rehnquist rose, walked over to the gadget table, picked up one of the telephones, and punched a couple of buttons. Glancing over at Jorgensen, he asked, “What’s his name?”

  “Who?”

  “Your assistant.”

  “Crawford.”

  “Cindy?” asked Justice Thomas.

  “Crawford,” Jorgensen repeated. These guys were almost as deaf as he was.

  Justice Rehnquist asked the person on the other end of the phone to escort Mr. Crawford to the conference room. Then he rejoined the rest of them at the table. “So,” he said, evidently feeling responsible for the silence that had settled over the room, “what happened out there on the water?”

  “Nothing much,” said Jorgensen. “Fog came up, boat rammed us, spent a day or two hanging onto the mast, Coast Guard picked us up, hospital patched us up and pumped some fluids into us, dropped off my dog, rounded up my assistant, caught a plane, took a cab. The usual.”

  They were all staring at him as though he was certifiably insane, when there was a loud knock on the door.

  “Come in,” said Justice Rehnquist.

  The door opened, a uniformed deputy marshal poked his head in, and said, “I have a Mr. Crawford with me.”

  “Yes,” said the Chief Justice. “Show him in, please.”

  The marshal stepped aside, and Zachary Crawford, all ten years, four feet, and sixty pounds of him, strolled in. He was wearing sneakers, shorts, and a Carolina Panthers T-shirt, and - as something of an afterthought - one of Jorgensen’s old neckties. The tie had been so long that Jorgensen had been forced to tu
ck the ends into the waistband of Zachary’s shorts; what he hadn’t counted on was their protruding from the bottom of the shorts.

  Clutched in both of Zachary’s hands was a box, maybe 4” × 8” × 1”. Printed on the outside of it was the name Sony.

  Jessica Woodruff, who until that moment had seemed distracted to the point of total preoccupation, suddenly sat up in her chair, the color draining from her face. “You stole that,” she said.

  “Did not,” said Zachary.

  “Not you, you!”

  “Mea culpa,” said Jorgensen. “But, I’m afraid, not nearly so culpa as you.”

  “You can’t use that,” Jessica told the judges. “It was taken illegally; he just admitted it. It has to be suppressed.”

  “Correct me if I’m wrong,” said Justice Breyer. “Although we continue to honor your colleague by referring to him as Judge Jorgensen, it’s my understanding that he’s in the private sector now, and no longer affiliated with the government. No illegal governmental action, no basis to suppress anything. Pretty fundamental stuff, no? Are we all in agreement?”

  Eight heads nodded. Nine, if one were to include Zachary’s.

  Jessica felt as though the room were shrinking, the walls literally closing in on her. She opened her mouth to speak, but no sound would come out. For perhaps the first time in her life, she was at a total loss for words.

  But Justice Souter wasn’t. A sometimes sports fan, he seized the opportunity and said, “Let’s go to the videotape.”

  When, later that same day, the media assembled in the court’s press room, they were treated to their own viewing of Kurt Meisner’s videotaped statement, complete with a superimposed date that wouldn’t occur for another eighteen months. As soon as the viewing, and the briefing that followed it, were over, reporters rushed to the phone banks (the few who didn’t have cellular phones of their own) or to camera crews waiting in front of the courthouse steps. In the multitude of televised specials, radio announcements, and front-page stories that followed, the revelations made public by August Jorgensen were most often likened to the dropping of a bombshell.