Flat Lake in Winter

by Joseph T. Klempner

  With all the fight gone out of him, Jonathan became less of a handful for his grandparents. When the repairs to the greathouse had been completed and the upstairs was fit to be lived in again, it was Carter and Mary Alice who moved there. Jonathan stayed on in the cottage, whether by stubbornness on his part, mutual agreement, or some other process of determination. Reasonably good with his hands, he fixed up the smaller of two bedrooms, fashioning a fairly handsome cabinet out of scrap wood for his television set. Somehow he managed to keep his quarters respectably neat, if slightly less than clean. He came to the greathouse three times each day, where Elna Armbrust served him and his grandparents their meals. It must have been a silent ritual, and a terribly sad one.

  FRIDAY’S COURT APPEARANCE was something of a non-event. Fielder had managed to locate a pair of black loafers to replace his work boots, but if the change was noticed by Judge Summerhouse, it drew no comment from him. Jonathan Hamilton was again brought into court handcuffed, again Fielder registered his objection (as he would continue to do on all future court dates), and again it was overruled. Gil Cavanaugh announced that the grand jury had met, heard the evidence, and “returned a true bill,” meaning that a majority of the jurors had voted to indict Jonathan, though Cavanaugh - citing rules of confidentiality - would not specify precisely what it was they had indicted him for. But no one in the courtroom had the slightest doubt that it was for two counts of murder in the first degree.

  Upon Cavanaugh’s application, the case was adjourned a week, for him to assemble copies of the indictment and other legal papers he would be required to provide the defense at the official arraignment, the appearance at which Jonathan would enter his initial plea of not guilty.

  From start to finish, the entire proceeding took just over two minutes. Not that its brevity prevented Gil Cavanaugh from spending the next half hour on the courthouse steps, posing for the cameras and telling every microphone in sight that the citizens of Ottawa County could count on him to uphold the law of the land. “It is my duty,” he intoned at one point, “my solemn, sworn duty, to see that we send out a message, for all to hear, that the good men and women of this county will not tolerate this type of animalistic barbarianism. Scripture teaches us that it’s God’s will to take an eye for an eye, a life for a life. Though, in this case, unfortunately, that’ll still leave us one life behind. But we’ll do what we have to do, I promise you that. I don’t know how many of you know it, but I’m a grandparent myself.”

  Nobody had ever accused Gil Cavanaugh of using few words where many would do.

  MATT FIELDER USED his second sit-down meeting with Jonathan Hamilton to ask Jonathan to tell him what he knew about the stabbings. He was prepared to back off if Jonathan showed any signs of balking; he didn’t want to undo the trust he’d worked so hard to establish at their earlier meeting. But Jonathan didn’t balk - that wasn’t the problem. The problem was that his recollection of the events was so spotty.

  “I remember waking up in the m-m-middle of the night,” he said. “But th-that’s all. I can’t remember anything else about it. Then I woke up again, later. It was just starting to get l-l-light out, just a little bit. I n-needed to go to the bathroom, and I had to f-feel my way there. In the bathroom, it was even d-d-darker, ‘cause there’s no window there. But I d-didn’t want to turn the light on, ‘cause it would hurt my eyes. I p-p-peed. When I went to flush, the handle was all sticky. I thought m-maybe I missed the b-b-bowl. I was thirsty, too, so I w-went to the sink. The f-faucet was sticky, too. I made a c-c-cup with my hands.” He demonstrated to Fielder how he’d done that.

  “When I put my hands under the sp-spout, the sink was full. I d-d-didn’t know why. So I turned the light on.”

  Jonathan didn’t seem to want to go on. Fielder had to prompt him. “What did you see?” he asked.

  “The w-w-water.”

  “Yes?”

  “It was all r-r-red.”

  Jonathan’s first thought was that somebody had been painting. There was red paint in the bowl, red paint on the outside of the sink, on the mirror, on the wall, on the light switch, on the floor - everywhere. In the bowl, it was a light-color red, like somebody had been washing out a paintbrush. Everywhere else it was dark red. In some places it was so dark it looked black.

  “I t-t-touched it,” he said. “I held it up to my nose, so I c-could smell it. It didn’t smell like paint. So I put some on the t-t-tip of my tongue. It was s-salty.”

  After a while his eyes had got used to the light. He saw that there was a trail of red, leading from the bathroom to the front door.

  “Did you know what it was by that time?” Fielder asked him.

  “B-b-blood?”

  Fielder nodded. “What did you do next?”

  “I w-went to check on Grandpa Carter and Grandma Mary Alice.”

  “And what did you find?”

  Jonathan didn’t answer.

  “What did you find, Jonathan?” Fielder asked it as gently as he could.

  “Th-th-th-they was all cut up.”

  That’s when he’d made the phone call, and reached Bass McClure.

  BACK AT HIS CABIN that evening, Fielder changed out of his lawyer clothes and back into jeans and a sweatshirt. He’d gotten over his initial annoyance at having to drive an hour and a half - and that was one way - for a two-minute court appearance of no consequence. But his meeting with Jonathan had certainly been interesting enough. Even if little had come of it in terms of factual revelations about the killings themselves, at least he’d got Jonathan to talk about what he did remember. Fielder figured it would only be a matter of time before the rest of it surfaced too. In that respect, though, he’d be wrong. Whatever terrible things Jonathan had done that night were apparently buried too deep for him to dredge up, then or ever. Fielder could understand that; after all, he had the crime-scene photos, in full, glossy color. The sights they depicted were enough to make anyone want to forget.

  Jonathan had done his best, and that would have to do.

  Aside from that, Fielder was actually relieved to have the one week’s adjournment: Under the law, he had only five days following arraignment to submit a written motion attacking the indictment because of Cavanaugh’s failure to provide the defendant a reasonable time to prepare to testify before the grand jury. The extra week meant that much more additional time to work on his papers.

  Not to mention the money.

  The way Fielder figured it, counting driving time, he’d put in eleven hours by the time he got back home. At $175 an hour, that came to almost $2,000! To someone whose bank balance tended to resemble nothing so much as a fuel gauge constantly hovering just over the empty line, the sum was nothing short of unreal. Pay a man pauper’s wages long enough, and he’ll eventually come around to thinking that they’re all he’s worth.

  In fashioning its version of the death penalty, the battle over the allocation of resources for capital defenders had turned out to be one of the stickiest issues the legislature had been required to deal with. To opponents of the death penalty, the worst part of the system is that it pits the vast power and wealth of the state against those who are almost invariably its very poorest members - in terms of economics, education, and intellect. The history of capital-punishment litigation in the modern era can be read as a study of just how far a state shall be permitted to go before the Supreme Court steps in and says that the system has failed to satisfactorily safeguard the process by which it determines which of its accused will live, and which will die. Posed as a question, it comes down to this: What minimum rules must the state promulgate and follow before it may kill?

  One of the cardinal rules is that it must provide the accused with the effective assistance of counsel. And the key word is effective.

  IN 1972, IN THE landmark case of Furman v. Georgia, the Court had swept the slate clean, voiding every single capital statute on the books at the time - those of thirty-nine states and the District of Columbia, as well as that of the federal go
vernment itself. In all, some 600 death sentences were vacated.

  Furman didn’t go so far as to rule that the states could not have death penalties. Instead, it found fault with how Georgia, and (in the longest written decision ever handed down by the Court, in which, for the first and only time in history each of the nine justices wrote a separate opinion) how every other jurisdiction with a death penalty had failed to administer it properly and fairly. But in doing so, the Court also showed how a death sentence could be enacted and enforced so as to pass constitutional muster.

  No sooner was the ink on the decision dry, than states began the process of rewriting their laws, attempting as they did so to follow the blueprint laid out in Furman. The first efforts encountered unforeseen problems, renewed challenges, and frequent setbacks. But with each setback, the state legislatures learned something, and each subsequent law had the benefit of those experiences. By the end of the decade, death rows began filling up again, and in 1977, when a man named Gary Gilmore successfully insisted that his lawyers curtail their fight to prolong his life, death regained a foothold in American jurisprudence. By the mid-nineties, executions had become commonplace, and it was no longer unusual to pick up a newspaper and read that two or three prisoners had been put to death the evening before.

  Following Furman, more than two decades passed before New York State enacted a new version of capital punishment, to go into effect in September 1995. Not that the legislature hadn’t tried; but every law they passed in the interim had been effectively, if narrowly, vetoed by a staunchly opposed Democrat governor named Mario Cuomo. It was only with Cuomo’s upset defeat in 1994 at the hands of a conservative, law-and-order Republican, George Pataki, that the way was cleared for the return of capital punishment in New York.

  Accordingly, by the time the legislature put the finishing touches on what would become the state’s new death penalty, it had the considerable advantage of a vast learning curve derived from the various successes and failures of nearly forty other jurisdictions. And the result, as even the most vocal critics of capital punishment must grudgingly admit, is a statute that is about as enlightened as any that might be found, in terms of the protections it affords those it seeks to kill.

  In addition to providing reasonable rates of pay to lawyers appointed to represent those accused of capital crimes, the law recognizes the state’s obligation to see to it that the lawyers are provided the tools that are reasonably necessary to effectively represent their clients. Under this reasoning (which is New York’s reasoning, of course, purely because cases since Furman clearly establish that it is the Supreme Court’s reasoning), the defense is authorized to retain the services of private investigators, psychiatrists and psychologists, consultants, interpreters, social workers, and a host of other experts, all to be reimbursed out of state funds. When appropriate, travel and lodging expenses are covered. If a transcript is needed, the state must pay for it. If photographs are required, a professional photographer may be brought in. If copies of lengthy documents must be made, so be it.

  Not that the law is drawn in such a way as to benefit only the defense. Under a specific provision of the statute, the district attorney prosecuting a capital case is eligible for huge additional infusions of state money, but only for so long as he opts to pursue a death sentence in the case. One can easily be sanguine about a system that seeks to balance available resources between adversaries; but it is equally tempting to be cynical about a law that makes state-sanctioned killing profitable, and to wonder about the message being sent out to prosecutors, particularly those laboring under the strictures of county budgets that are already strained.

  When it comes right down to it, death is not only different, it is also expensive - hugely so. And, as always, it is the taxpayer who ends up footing the bill.

  HAVING SECURED THE NECESSARY signatures from Judge Summerhouse on the afternoon of his first court appearance in the case, Matt Fielder needed to get a team up and running. Looking for a local private investigator, he’d asked around first at the courthouse, then at the jail, and finally at a bar up the block and across the street. The name that kept coming up was that of Pearson J. Gunn, a man who reportedly lived in an A-frame in nearby Tupper Lake, but spent many of his afternoons, and most of his evenings, right there in Cedar Falls. Fielder found the bar, a small place shamelessly called the Dew Drop Inn, and was told by the bartender, a pleasant man who answered to the name Pete, that if he sat down and waited twenty-five minutes, he’d have his chance to meet Gunn right there.

  Sure enough, at exactly four o’clock, the door swung open, causing a cluster of little bells above it to break into a chorus of chimes. They were “bear bells,” Pete had explained when Fielder had first commented on them. You wore them when you were out on the trail, so a bear could hear you coming and have a chance to take his leave. What you didn’t want to do was surprise him.

  Now, without looking up from the glassware he was washing, Pete said, “That’ll be him now.” Fielder swung around in time to behold a huge hulk of a man, who - perhaps because of Fielder’s subliminal association with the bells - struck Fielder as absolutely ursine, in terms of height, heft, and hairiness.

  Fielder and Gunn headed to a corner in the back, where they shared a table and a pitcher of something local called Adirondack Amber Ale. Fielder did most of the talking, Gunn most of the drinking. By the end of an hour, Gunn had a few pages of scribbled notes, a pretty good understanding of the facts of the case, and what had to have been a remarkably full bladder. Fielder himself had a pleasant buzz for company on the drive home, as well as a new private investigator.

  For a mitigation team - so called because its assignment would be to dig up information sufficient to persuade a jury that various mitigating factors in the background of the accused outweighed aggravating factors in the crime, and, therefore, that death was not the appropriate sentence - Fielder had already reached all the way down to Albany, to tap the firm of Miller and Munson, better known in the business as M&M, from the logo with which they adorned their cards and stationery. Although he’d met one of the M’s, he’d never worked with them, a fact which had left him a bit uneasy. But he’d tried to reassure himself with the knowledge that “M & M” had a nice ring to it. There were the candies, of course - those pleasing little coated bits of chocolate, of which the browns, being closest to natural, had always been Fielder’s favorites. And then there was the famous Yankee duo of Mantle and Maris, who between them had managed to hit 115 home runs in a single season.

  He’d need only one from Miller and Munson.

  Baseball was on the very short list of Matt Fielder’s true loves. But for a bad break, he might have been a professional ballplayer, major-league material. He’d played college ball on full scholarship at the University of Michigan, a fixture in center field, batting in the third spot. He’d led the Wolverines in hitting three years in a row, with a college career average of .396. Senior year he’d hit .456 and made the starting All-Big Ten team, as well as several first team All-America lists. He’d been drafted twenty-third overall by the Boston Red Sox organization, and assigned to their Class B farm team in Galveston, Texas. His bad break had been of the literal variety. It had come seven weeks into the season, at a time when he was batting a league-leading .429 and waiting to be called up any day to the AA team in Sarasota, Florida. An inside fastball had caught him on the right elbow, shattering the cubital bone into eleven pieces. Three surgeries, six titanium screws, and one year later, he’d finally “hung up his spikes,” gone back to Ann Arbor, and tried his hand at law school. For the most part, he’d hated it. Contracts and property and creditors’ rights interested him not at all; torts was torture, bankruptcy a bore. But criminal law was intriguing, and it was the idea of fighting for the underdog - being the one voice to still the vengeful mob - that had finally lit a fire under him and turned him from a mediocre student to a possessed advocate.

  With a private investigator and a mitigation team on boar
d, Fielder was pretty much up and running. Soon he’d need a mental-health professional - either a psychiatrist or a psychologist, or both - but he wanted to take his time and get the right person. For already he had a pretty good idea that whatever the source of Jonathan Hamilton’s apparent slowness, the result could quite possibly rise to the level of “mental retardation.” Under the New York statute, Fielder knew that would be the ballgame: The legislature, to its credit, had decreed that death was always an inappropriate punishment in such a case, no matter how heinous the crime or how compelling the aggravating circumstances. (Still, there was a serious catch here. In order to constitute “mental retardation” under New York’s law, a defendant’s diminished capacity must have manifested itself before the age of eighteen. In Jonathan’s case, at least part of his mental problems were traceable to injuries he’d sustained during the fire. That had been in 1989, when Jonathan was already nineteen.)

  Next, Fielder figured he’d need a pathologist to review and interpret the autopsy reports. But that could wait a bit, too. He figured he wouldn’t be getting the material for at least several weeks, and his own familiarity with medical terms would be sufficient for a while after that.

  Just who or what else he might need, would to a certain extent be determined by what evidence the prosecution unearthed. In time, Fielder might want to bring in a fingerprint expert, a footprint man, a blood-splatter specialist, or a hair-and-fiber analyst. It might turn out he needed his own lab to do independent DNA testing, or even an exhumation order to permit reexamination of the bodies. But all of that was for another day. He knew better than to go running to Judge Summerhouse with an elaborate laundry list of demands that were, at this point at least, arguably speculative. There are those who counsel defense lawyers to use the scatter-gun approach and immediately demand absolutely everything that might ever conceivably be needed, but they tend to be professors who lecture at universities and write in law journals. In the trenches, Fielder had learned, sometimes it pays to save your shots.