Flat Lake in Winter

by Joseph T. Klempner

  And in Cedar Falls, New York, Jonathan Hamilton was slipped a plastic tray through the bars of his cell. The tray was machine-stamped with little compartments, which this day had been filled with breaded chicken nuggets, mashed potatoes, frozen peas, and jellied cranberry sauce. Some jailer’s version of a Thanksgiving Special.

  ON THE MONDAY following Thanksgiving, Matt Fielder drove west from Nashua to Albany, and attended a meeting at Hillary Munson’s office. Mitch Dinnerstein, of the Capital Defender’s Office, had driven up from New York for the occasion, representing Kevin Doyle. Pearson Gunn was there, as well as Drs. George Goldstein and Margaret Litwiller.

  It was Fielder who had called the meeting, and he spoke first. He’d brought the group together, he explained, because he wanted to address a problem and get the reaction of everybody present to a possible solution. The problem was the adverse publicity they were getting in the press. With each passing day and every court appearance, Gil Cavanaugh was consolidating his manipulation of public opinion. The defense camp, meanwhile, had so far remained silent, fearful that anything they said could only make things worse for Jonathan.

  It took the group all of a minute and a half to reach a consensus that they were indeed taking a beating from the media. The discussion quickly shifted to the remedy Fielder now proposed: floating the sleepwalking defense to see how it might play out there.

  The two doctors spoke first. Both were completely convinced that Jonathan had held no conscious malice toward his victims and that the killings could only be explained as an act of somnambulistic violence, for which he should not be held criminally responsible. Both were satisfied beyond any doubt that Jonathan was neither malingering nor attempting to dupe them; he simply lacked the intellectual capacity necessary to pull off that sort of deception. Both were willing to stake their reputations on their findings, and both voted wholeheartedly in favor of going public.

  Hillary Munson agreed in principle, but raised a yellow flag. Defense lawyers, she cautioned, lately had been feeding the public an ever-increasing diet of exotic defenses. Over the past decade or so, there’d been high-profile trials attributing sensational crimes to insanity, alcohol abuse, drug dependency, gambling addiction, spousal violence, childhood sexual abuse, multiple personality disorders, posttraumatic stress disorder, racial injustice, and a variety of other claims. Alan Dershowitz had even published a book on the subject, titled The Abuse Excuse. Hillary’s fear was that a saturation point was being approached and that society might well be headed for a period of backlash, in which juries might finally reach the point of not caring why a particular defendant had committed a crime, so long as he had in fact committed it.

  Mitch Dinnerstein spoke up. First he wanted to know if they weren’t jumping the gun. “Are you sure you’re ready to concede factual guilt?” he asked.

  Fielder looked across the room, in the direction of Pearson Gunn. After all, Gunn had conducted the bulk of the defense investigation, and it was Gunn who had a confidential source close to the prosecution’s team. But Gunn was gazing off to one side, and Fielder failed to catch his eye. He wondered if the investigator might be feeling just a bit intimidated by the others in the room. Gunn was a high-school dropout, surrounded by a roomful of advanced-graduate-degree holders. But there was too much at stake to worry about such considerations.

  “How about it, Pearson?” he asked. “From what you know, do

  you have the slightest bit of doubt that Cavanaugh can prove Jonathan did it?”

  Gunn shook his head slowly from side to side. “The way his people are talking,” he said, “you can stick a fork in the kid right now.”

  Which was simply another way of saying, He’s done.

  “Then it seems to me,” said Dinnerstein, “that you’ve got nothing to lose. Always try to remember what the goal in these cases is. It’s not to win, at least not in the traditional sense of getting somebody acquitted, walking him out the door. What we’re doing comes down to triage. It’s saving lives. You go public with this, come right out and say your client did it, first thing that happens is you’re going to score points for honesty. Then, when you tell them he shouldn’t be held fully responsible because he was a known sleepwalker, they’ll at least be listening to you. Of course, you’ll have to be ready to put your money where your mouth is. Can you do that, when push comes to shove?”

  “We’ve got proof,” Fielder said, “documentary proof that Jonathan was sleepwalking at least as early as ten or twelve years ago. Probably a lot longer than that.”

  “And we can back that up with test results,” chimed in Dr. Litwiller.

  “Then fucking go for it,” Dinnerstein said. “If you can sell it in the court of public opinion, Cavanaugh will blink. As soon as he sees that Joe Six-pack doesn’t want to kill this kid, he’ll come to you and offer you elwop.”

  “‘Elwop’?” asked a confused Dr. Goldstein.

  “Life without parole,” Fielder translated. “L-W-O-P.”

  “What we really call it,” said Dinnerstein, “is a home run.”

  But Fielder, whose call it was, still wasn’t fully convinced. “Supposing you’re right, Mitch: It’s all well and good. We get a little public support, force Cavanaugh’s hand, see where it all takes us. But suppose Hillary’s right: Suppose it turns out the public couldn’t care less. How do we know the whole thing’s not going to blow up in our faces?”

  “That’s the chance you take,” Dinnerstein said. “But, hell. Wouldn’t you rather find out now, instead of down the line, when the jury brings in its verdict?”

  “I sure wish,” said Fielder, “there was some way we could gauge ahead of time how the public’s going to react to this.”

  “Maybe there is.” The voice was Hillary Munson’s. “What do politicians do when they want to try out an idea? Or Madison Avenue types, when they need to see how an ad campaign is going to play?”

  “They test-market it?” Fielder guessed.

  “Exactly.” Hillary nodded. “They try it out on a focus group.”

  Fielder inched forward on his chair. “You mean we ought to go out and find a bunch of housewives, ask them what they think of the idea?”

  “Something like that,” Hillary said, “but be careful some feminist doesn’t hear you talking like that.”

  “Right,” said Fielder. “But I can’t go to the judge and ask him to sign an order allocating funds for market research. He’d throw me out on my ear. Worse yet, he’d make me tell him what the nature of the defense is, that we want to do the research on. And as soon he knows, Cavanaugh will know. So we can’t go to the judge. And if we can’t, where else would we ever get the money to do something like that?”

  It was at that point that all eyes slowly turned in the direction of Mitch Dinnerstein.

  “All right, all right,” he said after a moment. “I’ll run it by Kevin. Who knows? He might just be crazy enough to go for it.”

  BY THE SECOND week of December, autumn in the Adirondacks is already a distant memory. The cold has set in for good by that time, after a series of false starts and temporary reprieves. But it is by no means the cold that is the worst part of an upstate winter. Nor is it the snow, which traditionally falls far more heavily in the western regions of the state. Nor is it even the wind, for that matter, though on a blustery day that can be a pretty serious contender for the honors.

  Ask almost anyone who lives in the heart of Adirondack Park to tell you the single thing he or she hates most about winter, and the answer you’ll hear isn’t the cold, or the snow, or the wind.

  It’s the darkness, hands down.

  And when they talk about darkness in the Adirondacks, it isn’t simply a matter of the tilt of the earth producing a later sunrise and an earlier sunset as you move farther north. No, the elements have gotten together in a conspiracy that reaches far deeper than that. What little daylight there is in winter comes from a sun that crosses low in the sky, where its path is not only dramatically shorter, but where
its rays are often obscured by high mountains, filtered by the boughs of tall evergreens, and angled through an increasingly thick layer of clouds, water vapor, and other atmospheric particles. Instead of being light by five or six in the morning, the sky remains pitch-dark until nearly eight. It takes almost to noon before anything remotely approaching true brightness is achieved, and by then, it seems, the sun is already thinking about setting. By three it is dusk; by four you need your headlights to drive.

  For the locals, it all adds up to fewer hours spent outdoors, less opportunity for physical exercise, and a dramatic increase in cases of breathing disorders due to molds, spores, and dry wood smoke. This is the stuff that depression is made of. The Adirondacks are where the term “cabin fever” originated. It’s little wonder that the upstate suicide rate is said to nearly triple during the period from early December to mid-March.

  For Matt Fielder, the shortened days brought a slow but steady retreat into the confines of his heated living room. That meant fewer hours of cutting wood, and more of burning wood. As esthetics gradually yielded to survival, the doors of his stove stayed shut almost around the clock. Fire had become a commodity to be felt, rather than a luxury to be watched.

  Beyond that, the diminished daylight provided Fielder with even more time to himself. More time for reading, for writing, and for attending to some much-needed repairs to the interior of his cabin. More time to focus on Jonathan Hamilton’s case, and to miss Jonathan Hamilton’s sister.

  In Fielder’s mind, the two things had become hopelessly intertwined. Sure, there were all the usual reasons for wanting to prevail in the case. In spite of what he’d done, Jonathan remained a hugely sympathetic figure, a profoundly damaged boy trapped in a man’s body and subjected to forces about which he had little understanding, and over which he had no control. The enemy was a pompous, self-serving politician with an agenda that had nothing at all to do with fairness or justice. And the stakes they were playing for were enormous: Nothing less than Jonathan’s life hung in the balance.

  As always, there was the driving force of Fielder’s own ego at work, the innate competitiveness that had driven him to this strange line of work years ago. Like any criminal-defense lawyer who’d ever walked into a courtroom, Matt Fielder loved to win, and - even more - hated to lose. So the case ended up being one that consumed him like no other. It was a case he took to sleep with him each night and woke up with each morning.

  And yet there was even more.

  There was Jennifer.

  Here Fielder had finally succeeded in leaving his former life behind him - and with it the never-ending grind of work, the suffocating closeness of the city, and the absurd, complicated strategies of remaining single in a world that seemed created for couples, families, and groups. Here he was, living out his Walden Pond fantasy in his cabin in the woods, away from it all, a million miles from civilization, thumbing his nose at the rest of the world. He had everything he needed, and nothing he didn’t want. It was the culmination of a dream, a time he should be reveling in and celebrating, as the happiest man on the face of the earth.

  And he was miserable.

  He was in love.

  He knew he didn’t want to win this case just so he could save Jonathan, or beat Cavanaugh, or strike a blow for Truth, Justice, and the American Way. He didn’t even want to win it just to satisfy his own precious ego. No, he wanted to win it for her. He wanted to free the prisoner from the dungeon so that the real prize could be his. In dream after dream, Fielder saw himself scooping up the waiting princess in his arms and carrying her off from her wretched trailer park to his magical clearing in the forest. There he’d even build an addition to his cabin, so there’d be room for her son as well.

  Though he figured the one bathroom should still be enough.

  AS IT TURNED out, Kevin Doyle was crazy enough to like the idea of market research into a sleepwalking defense. The problem was, he simply didn’t have the money to commit to it. Governor Pataki was already hounding the legislature to cut back funding on defense expenses in capital cases. Why, the governor wanted to know, had the Court of Appeals set the rates for defense lawyers so high? Why couldn’t they pay them the same $40 in court and $25 out of court they paid them in other cases? Surely they’d still have plenty of takers, if only for the publicity value generated by the cases. The purpose of the death penalty was to deter murderers, after all, not to enrich defense lawyers. And why take the taxpayers’ hard-earned money and spend it on all these fancy, unnecessary defense experts, like mitigation specialists, psychiatrists, psychologists, social workers, and the like? It was all so very simple in the governor’s mind: You really want to deter somebody, you execute him. Then see how quickly he goes out and kills somebody else.

  Doyle was simply too busy trying to hold the line against cutbacks to stick his neck out and allocate funds for what Fielder’s team wanted. But he did have a suggestion. “Call Allie Newhart,” he said. “She’s down in Washington, at the NJRI. It sounds like the kind of thing they might be interested in.”

  The NJRI, or National Jury Research Institute, is a privately funded, non-profit group established to analyze the processes by which juries reach their verdicts. Its studies are published in various scientific texts and journals, and are available to any interested party, prosecution and defense alike. Its methodology includes questioning real jurors who have sat on actual cases and are willing to be interviewed, as well as the staging of mock trials during which the mechanics of jury deliberations can be observed.

  Capital cases have long been of particular interest to the NJRI, especially the penalty-phase portion of trials, at which jurors are asked to decide whether a convicted defendant will be sentenced to death, or to some lesser punishment. What the NJRI has found is that jurors faced with this most difficult and important task often operate either in ignorance or defiance of the rules that are supposed to govern their decision-making process, and instead routinely resort to methodology never contemplated in the wildest dreams of legislators, judges, and lawyers.

  They have found, for example, that capital jurors invariably vote for death because they refuse to believe that “life without the possibility of parole” really means just that; notwithstanding the judge’s clear instructions to the contrary, they persist in assuming that unless they vote to execute the defendant, he’ll be out in five or ten years to commit more crimes. They vote for death in overwhelming numbers whenever they’re told their decision will only be regarded as a “recommendation” to the sentencing judge, assuming that the judge will pay little or no attention to their recommendation - though the truth is, in many states, juries’ recommendations are legally binding on the court, and almost always are followed even in those states where the judge has the power to ignore them. Juries vote for death because they feel it’s required of them once they’ve found the defendant guilty as charged, since the crime he’s accused of is, by very definition, “capital murder.” They vote for death because they mistakenly think that if they fail to, their earlier finding of guilt will be overturned, and a new jury will have to begin the entire process all over again. They vote for death because they believe that, given all the appeals and delays built into the system, there’s no chance the defendant will ever actually be executed.

  Or, if they vote against death, they do so for equally bizarre reasons. They vote against death because of “lingering doubt”: because they believe the defendant may have been the victim of mistaken identity, or may have acted in self-defense, or might not have been responsible for his acts because he was insane at the time he committed them - all laudable-enough reasons for jurors to hesitate to send a man to his death, but all grounds that should have compelled them to acquit him in the first place!

  Fielder flew down to Washington, D.C., a week before Christmas. Five days earlier, he’d overnighted to the NJRI a ten-page confidential proposal for a study to be conducted on the reactions of jurors to a defense of sleepwalking in a capital prosecution
. He’d included news articles and editorials from both Adirondack Advertiser and the Plattsburgh Press. Both papers had reported public sentiment as running high in favor of executing Jonathan Hamilton for the murder of his grandparents. The clippings read like movie ads. “Brutal,” the Advertiser had said. “Senseless and depraved acts,” according to the Press, “fully deserving . . . of death.”

  “Looks like you’re doing just great with the media,” said Allie Newhart. She was tall, stocky, and stern-looking, and shook hands like a man. But at least she knew how to be sarcastic.

  “I just sent you the highlights,” Fielder said. “There’s a guy on a talk-radio station out of Saranac Lake who thinks the death penalty’s too good for my client. Wants him tortured first, cut up into small pieces - real slowly, so he can experience what the victims must have gone through.”

  “And I bet he wants front-row seats to watch.”

  They were joined by Newhart’s boss, Graham Taylor, a towering, gray-haired man whom Fielder was instantly ready to dislike, until Allie introduced him as a fugitive from a Madison Avenue ad agency who’d given up a seven-figure income to run a non-profit study group on a shoestring budget. Fielder decided he could forgive even a good-looking, six-foot-seven Wasp, with credentials like that.

  “We’ve gone over your proposal,” Taylor said, “and I must say we’re interested in the idea.”

  “But we have one major reservation,” Newhart added.

  “What’s that?”

  “We want to make certain,” said Taylor, “that you’re not looking to us to find out what type of juror to select at trial. We can’t risk getting labeled as a jury-consulting firm, offering our services to the highest bidder. There are plenty of them out there, you know.”