Defending Jacob

by William Landay

  It was a matter of time, of course. Sooner or later, typing into his laptop late one night in the stoned-out bliss of Web surfing, Jacob would make a dumb-shit teenage slipup. It finally came in mid-August. Early on a Sunday morning I glanced at Marvin Glasscock’s Facebook page to find an image of Anthony Perkins in Psycho, the famous silhouetted figure with a knife raised over his shoulder to stab Janet Leigh in the shower, now with Jacob’s face Photoshopped onto it—Jacob as Norman Bates. The face was clipped from a snapshot of Jacob, apparently at a party. It showed Jacob grinning. Jacob had posted the mash-up photo with the caption “What people think of me.” His friends responded with these comments: “Dude looks like a lady.” “Awesome job. You should make this your new profile pic.” “Wee-wee-wee [Psycho music].” “Marvin Glasscock! Dude comes in with the total facemelter!!!”

  I did not immediately delete the photo. I wanted to confront Jacob with it. I carried the laptop upstairs with me, the machine humming in my hand.

  He was in his room, still asleep. One of his young-adult novels lay open, pages down, on the night table. These were invariably futuristic science fiction or military fantasies about ultrasecret Army units with names like “Alpha Force.” (No broody teen vampires for Jacob: not escapist enough.)

  It was around seven. The shades were down, the light in the room was muted.

  As I tromped barefoot to the side of his bed, Jacob woke up and twisted to look at me. No doubt I was scowling. I turned the computer around to show the screen to him, the evidence of his crime.

  “What is this?”

  He groaned, not quite awake.

  “What is this?”

  “What?”

  “This!”

  “I don’t know. What are you talking about?”

  “This picture on Facebook. From last night? Did you put this up?”

  “It’s a joke.”

  “A joke?”

  “It’s just a joke, Dad.”

  “A joke? What’s wrong with you?”

  “Do we have to make a big deal—”

  “Jacob, do you know what they’re going to do with this picture? They’re going to wave it around in front of the jury and do you know what they’re going to say? They’re going to say it shows consciousness of guilt. That’s just the phrase they’ll use, consciousness of guilt. They’ll say, ‘This is how Jacob Barber sees himself. Psycho. When he looks in the mirror, this is the reflection he sees: Norman Bates.’ They’ll use the word psycho over and over, and they’ll hold this picture up and the jury will stare at it. They’ll stare at it and guess what? They’ll never be able to forget it, they’ll never be able to quite get it out of their minds. It’ll stick in their heads. It’ll affect them. It’ll twist them, it’ll stain them. Maybe not all of them, maybe not much. But it will move the needle just a little further against you. That’s how it works. That’s what you did with this: you gave them a gift. A gift. For no good reason. If Logiudice finds this, it will never go away. Don’t you get that? Don’t you know what’s at stake, Jacob?”

  “Yes!”

  “Do you know what they want to do to you?”

  “Of course I do.”

  “Then why? Tell me. Because it doesn’t make any sense. Why would you do this?”

  “I already told you, it was a joke. It means the opposite of what you’re saying. It’s how other people see me. It’s not how I see myself. It’s not even about me.”

  “Oh. Well, that’s perfectly reasonable. You were just being clever and ironic. And of course the DA and the jury, they’ll all understand that too. Jesus. Are you stupid?”

  “I’m not stupid.”

  “Then what’s wrong with you?”

  Laurie’s voice, behind me: “Andy! Enough.” Her arms were crossed, eyes still sleepy.

  Jacob said mournfully, “Nothing’s wrong with me.”

  “Then what possessed you to—”

  “Andy, stop.”

  “Why, Jacob? Just tell me why?” My anger had peaked. Still, I was feeling wild enough to spray a few bullets Laurie’s way too. “Can I ask him that? Can I ask him why? Or is that too much?”

  “It was just a joke, Dad. Can we just delete it?”

  “No! We can’t just delete it. That’s the whole point! It doesn’t go away, Jacob. We can delete it but it doesn’t go away. When your buddy Derek goes to the DA and tells him you have a Facebook account named Melvin Glasscock or whatever and you put this picture up, all the DA has to do is send them a subpoena and he gets it. Facebook will just give it to him, all of it. This stuff sticks to you. It’s like napalm. You can’t do this. You can’t do it.”

  “Okay.”

  “You can’t do stuff like this. Not now.”

  “O-kay, I said. Sorry.”

  “Don’t be sorry. Sorry won’t fix the problem.”

  “Andy, stop already. You’re scaring me. What do you want him to do? It’s done. He said he’s sorry. What do you keep haranguing him for?”

  “I keep haranguing him because it’s important!”

  “It’s done. He made a mistake. He’s a kid. Please calm down, Andy. Please.”

  She came across the room, took the laptop from my hands—I was barely aware I was still holding it—and she examined the photo closely. She held the laptop with one hand on each edge, like a cafeteria tray.

  “All right.” She shrugged. “So let’s just delete it and be done with it. How do I delete it? I don’t see a button.”

  I took the laptop and searched the screen. “I don’t see it either. Jacob, how do you delete this thing?”

  He took the laptop and, now seated on the edge of his bed, he clicked it a few times. “There. Gone.” He closed the lid, handed it to me, then lay down and rolled over, turning his back to me.

  Laurie gave me a look, like I was the crazy one. “I’m going back to bed, Andy.” She padded out of the room, then I heard our bed rustle as she climbed back into it. Laurie had always been an early riser, even on Sundays, until this happened to us.

  I stood there a moment, the laptop by my side now, held at my hip like a closed book.

  “I’m sorry I yelled.”

  Jacob sniffed. I could not tell what that sniff signaled, whether he was near tears or angry with me. But it struck something in me and made me sentimental. I remembered Baby Jake, our little precious beautiful blond wide-eyed baby. That this boy, this child-man, was one and the same person as that baby—it came to me like a new idea, something I had never known. The baby did not become the boy; the baby was the boy, the same creature, unchanged at the core. This was the very baby I had held in my arms.

  I sat down on the bed beside him and laid my hand on his bare shoulder. “I’m sorry I yelled. I shouldn’t lose my temper. I’m just trying to look out for you. You know that, don’t you?”

  “I’m going back to sleep.”

  “Okay.”

  “Just leave me alone.”

  “Okay.”

  “Okay, so go away.”

  I nodded, rubbed his shoulder a few times as if I could press the thought into him through his skin, I love you, but he lay there like a stone and I stood up to leave.

  The shape in the bed said, “There’s nothing wrong with me. And I know exactly what they’re going to do to me. I don’t need you to tell me.”

  “I know, Jake. I know.”

  And then, with the bravado and heedlessness of a child, he fell asleep.

  18 | The Murder Gene, Redux

  One Tuesday morning near summer’s end, Laurie and I sat in Dr. Vogel’s office for our weekly meeting under the eyes of those howling African masks. The session had not begun—we were still settling ourselves in our familiar chairs, making ritualistic comments about the warm weather outside, Laurie shivering a little in the air-conditioning—when the doctor announced, “Andy, I have to tell you, I think this is going to be a difficult hour for you.”

  “Yeah? Why is that?”

  “We need to talk about some of the biological
issues involved in this case, the genetics.” She hesitated. Dr. Vogel studiously maintained an impassive expression during our sessions, presumably to keep her own emotions from influencing ours. But this time her mouth and jaw clenched visibly. “And I need to take a DNA sample from you. It’s just a quick swab of your mouth. No needles, nothing intrusive. I just use a sterile Q-tip to wipe your gums and take a sample of your saliva.”

  “A DNA sample? You’ve got to be kidding me. I thought we were going to exclude all that.”

  “Andy, look, I’m a doctor, not a lawyer; I can’t tell you what’s going to be allowed into evidence or what will be excluded. That’s between you and Jonathan. What I can tell you is that behavioral genetics—and by that I mean the science of how behavior is influenced by our genes—cuts two ways. The prosecution may want to introduce this sort of evidence to show that Jacob is violent by nature, a born killer, because obviously it makes it more likely that Jacob committed this murder. But we may want to introduce it too. If it gets to the point where the DA has likely proven Jacob actually killed this boy—I’m saying if; I’m not predicting, I’m not saying this is what I believe, just if—then we may want to bring in the genetic evidence as mitigation.”

  Laurie said, “Mitigation?”

  I explained, “To reduce it from first-degree homicide to second or manslaughter.”

  Laurie winced. The technical terms were discouraging, a reminder of how efficiently the system worked. A courthouse is a factory, sorting violence into a taxonomy of crimes, processing suspects into criminals.

  I was discouraged too. The lawyer in me knew, instantly, the calculation Jonathan was making. Like a general preparing for battle, he was planning his fallback positions, a controlled tactical retreat.

  I told my son’s mother in a gentle tone, “First-degree is life without parole. It’s a mandatory sentence. The judge has no discretion. With second-degree Jake would be parole-eligible in twenty years. He’d only be thirty-four. He’d still have a whole life ahead of him.”

  “Jonathan has asked me to research the issue, to prepare for it, just in case. Laurie, I think the point, the easiest way to think of it, is this: the law punishes intentional crimes. It presumes every act is intentional, a product of free will. If you did it, it is assumed you meant to do it. The law is very unforgiving of ‘yes but’ defenses. Yes, but I had a hard childhood. Yes, but I have a mental disease. Yes, but I was drunk. Yes, but I was carried away by anger. If you commit a crime, the law will say you are guilty despite these things. But it will take them into account when it comes to the precise definition of the crime and when it comes to the sentence. At that point, anything that affects your free will—including a genetic predisposition to violence or low impulse control—at least theoretically can be taken into account.”

  “It’s ridiculous,” I scoffed. “No jury would ever buy it. You’re going to tell them, ‘I killed a fourteen-year-old boy but let me go anyway’? Forget it. Not gonna happen.”

  “We may not have a choice, Andy, if.”

  “This is bullshit,” I told Dr. Vogel. “You’re gonna take a sample of my DNA? I’ve never hurt a fly.”

  The doctor nodded. No reaction. A perfect shrink, she just sat there and let the words break over her like waves on a jetty because that was the way to keep me talking. Somewhere she had learned that if an interviewer remains silent, the interviewee will rush to fill the silence.

  “I’ve never hurt anyone. I don’t have a temper. That’s just not me. I never even played football. My mother never let me. She knew I wouldn’t like it. She knew. There was no violence in our house. When I was a kid, do you know what I played? I played the clarinet. While all my friends were playing football, I played the clarinet.”

  Laurie slid her hand over mine to smother my growing agitation. These sorts of gestures between us were becoming more rare, and I was moved by it. It calmed me.

  Dr. Vogel said, “Andy, I know you have a lot invested in this. In your identity, your reputation, in the man you’ve become, the man you’ve made yourself. We’ve talked about that, and I understand perfectly. But that’s exactly the point. We are not just a product of our genes. We are all a product of many, many things: genes and environment, nature and nurture. The fact that you are who you are is the best example I know of the power of free will, of the individual. No matter what we find encoded in your genes, it will say nothing about who you are. Human behavior is much more complex than that. The same genetic sequence in one individual may produce a completely different result in different individuals and different environments. What we’re talking about here is just a genetic predisposition. Predisposition is not predestination. We humans are much, much more than our DNA. The mistake people tend to make with a new science like this one is over-determinism. We’ve discussed this before. We are not talking about the genes that code for blue eyes here. Human behavior has many, many more causes than simple physical traits.”

  “That’s a lovely speech—and yet you still want to stick a Q-tip in my mouth. What if I don’t want to know what’s in my DNA? What if I don’t like what I’m programmed for?”

  “Andy, as hard as this is for you, it’s not about you. It’s about Jacob. The question is, how far will you go for Jacob? What will you do to protect your son?”

  “That’s not fair.”

  “It’s the way it is. I didn’t put you here.”

  “No. Jonathan did. He’s the one who should be telling me these things, not you.”

  “Probably he doesn’t want to fight with you about it. He doesn’t even know if he’ll use it at trial. It’s just something he wants to keep in his pocket, just in case. Also, he might think you’d say no to him.”

  “He’s right. That’s why he ought to be having this conversation himself.”

  “He’s just doing his job. You of all people should understand that.”

  “His job is to do what his client wants.”

  “His job is to win, Andy, not to spare anyone’s feelings. Anyway, you’re not the client; Jacob is. The only thing that matters here is Jacob. That’s why we’re all here, to help Jacob.”

  “So Jonathan wants to argue in court that Jacob does have the murder gene?”

  “If it comes down to it, if we get desperate, yes, we may have to argue that Jacob has certain specific gene variants that make him more likely to act in aggressive or antisocial ways.”

  “All those qualifications and nuances, to ordinary people it’s mumbo jumbo. The newspapers will call it a murder gene. They’ll say we’re natural-born killers. Our whole family.”

  “All we can do is tell them the truth. If they want to distort it, sensationalize it, what can we do?”

  “Okay, say I go for it, I let you take your DNA sample. Tell me exactly what it is you’re looking for.”

  “Do you know anything about biology?”

  “Only what I got in high school.”

  “Were you any good in high school biology?”

  “I was better at clarinet.”

  “Okay, in a nutshell? Bearing in mind that the causes of human behavior are infinitely complex and there is no simple genetic trigger for particular human behaviors; we are always talking about a gene-environment interaction; and anyway ‘criminal’ behavior is not a scientific term, it’s a legal one, and certain behaviors that may be defined as criminal in one situation may not be criminal in another, like war—”

  “Okay, okay, I get it. It’s complicated. Dumb it down for me. Just tell me: what are you looking for in my spit?”

  She smiled, relenting. “Okay. There are two specific gene variants that have been linked to male antisocial behavior, which might help account for multigenerational patterns of violence in families like yours. The first is an allele of a gene called MAOA. The MAOA gene controls an enzyme that metabolizes certain neurotransmitters like serotonin, norepinephrine, and dopamine. It’s been called ‘the warrior gene’ because of its association with aggressive behavior. The mutation i
s called MAOA Knockout. It has been argued in court as a trigger for violence before, but the argument was too simplistic and it was rejected. Our understanding of the gene-environment interplay has improved since then—the science is getting better and very quickly—and we may have better testimony now.

  “The second mutation is located in what’s called the serotonin transporter gene. The official name for the gene is SLC6A4. It’s located on chromosome 17. It encodes a protein that facilitates the activity of the serotonin transporter system, which is what enables the re-uptake of serotonin from the synapse back into the neuron.”

  I held up my hand: enough.

  She said, “The point is, the science is good and it’s getting better every day. Just imagine: up till now, we’ve always asked, What causes human behavior? Is it nature or nurture? And we’ve been very good at studying the nurture side of the equation. There’s lots and lots of good studies on how environment affects behavior. But now, for the first time in human history, we can look at the nature side. This is cutting-edge stuff. The structure of DNA was only discovered in 1953. We’re just beginning to understand. We’re just beginning to look at what we are. Not as some abstraction like the ‘soul’ or metaphor like the ‘human heart,’ but the real mechanics of human beings, the nuts and bolts. This”—she pinched the skin of her own arm and pulled up a sample of her own flesh—“the human body is a machine. It is a system, a very complex system made of molecules and driven by chemical reactions and electrical impulses. Our minds are part of that system. People have no trouble accepting that nurture affects behavior. Why not nature?”

  “Doctor, will this keep my kid out of prison?”

  “It might.”

  “Then do it.”

  “There’s more.”

  “Why does this not surprise me?”

  “I need a swab from your father too.”

  “My father? You’re joking. I haven’t spoken to my father since I was five years old. I have no idea if he’s even alive.”

  “He is alive. He’s in Northern Prison in Somers, Connecticut.”