Fogbound

by Joseph T. Klempner

  The Lincoln Navigator snaked its way through the tall grass of the salt flats. It was too much car for the narrow dirt road, but the rental agent at the airport had talked them into it when he’d heard where they were headed.

  “You’d be better off with four-wheel drive,” he’d told them. “Those roads get washed out every time it rains, and before you know it you’re knee-deep in sand.”

  They’d taken his advice, not so much because they were really afraid of getting stuck, but because Trial TV was picking up the tab. So what if it cost an extra $30? They were working with a six-figure budget here, right? In fact, the top suits at Trial TV were betting on this case to eventually draw them even with Court TV in terms of market shares, or even pass them. Which wasn’t too shabby, considering that Ricki and her friends over there had enjoyed a monopoly for nearly ten years before any competition came along.

  Gradually, the color of the road began to change, from the reddish clay they’d seen so much of to a lighter sandy shade, telling them they were finally getting close to the ocean.

  At one point, the road narrowed to a single lane, and the driver slowed to cross over a rickety wooden bridge. A small sign told them they’d left the mainland and were now on a protected barrier island, and would be prosecuted to the full extent of the law if they were to disturb bird nesting areas or discard trash of any sort.

  “Think they give you the death penalty here for littering?” the woman asked.

  “Wouldn’t be surprised,” said the driver. “You weren’t kidding when you said the old guy lives like a hermit, were you?”

  “No,” she said, “I wasn’t kidding.”

  “You sure he’s our man?” asked the other man, from the back seat.

  “Oh, he’s our man, all right.” She smiled, a very pretty, made-for-TV smile. “Just wait till you see him.”

  When they drove up, he was out back, mending shrimp nets. Even though they couldn’t see him at first, they pretty much knew they’d find him there. His old red pickup truck was parked right there in the driveway, after all, and his little sail boat bobbed at its mooring, not a hundred feet offshore. And a curl of smoke rose from the chimney - or at least from the top of the lighthouse, where there must have been a chimney of some sort. Besides which, according to what they’d been told in town, he was just about always there; he no longer went anywhere else, it seemed.

  Not that it had always been like that. In his day, he’d been one of the most famous judges in the country, except maybe for those who made it to the United States Supreme Court. And he’d even been considered for that at one time, until his fierce opposition to the death penalty and outspoken support for abortion rights caught up with him and killed off any chance he might have had.

  But all that had been long ago. Now he was an old man, his tall frame bent over, perhaps by the winds that constantly swept the barrier islands, or perhaps to better withstand them. His face was lined and leathery, and sorely in need of a shave. And his hair - his magnificent shock of snow-white hair - looked as though it hadn’t met up with a comb or brush in days.

  His hearing, which had never been much to brag about, had by now pretty much quit on him altogether, and he might not have noticed their arrival at all, had it not been for Jake. The old Labrador, his coat as black as his master’s was white, barked twice - his way of letting it be known that they had visitors. And a moment later, they were joined by three strangers, two men and a woman. City folk, from the look of them.

  “Judge Jorgensen?”

  It was the woman who spoke, stepping forward from the men. She was pretty and poised, he noticed. In her thirties, he guessed, and doing a pretty fair job of fighting off forty. A woman of business, no doubt. A lawyer, perhaps, or - even worse - a politician. And to top it off, a Northerner, a Northerner who’d been practicing her drawl the whole way from the airport.

  “I’m Jorgensen,” he said.

  “And I’m Jessica Woodruff,” she said, offering a hand for him to shake. It felt soft and small in his own, but that was to be expected: His were oversized, gnarled from age and arthritis, and rough from sea salt and rope burns. “This is Tim Harkin, and this is Ray Gilbert.” He shook their extended hands, found them not too much different from hers.

  “Forgive us for barging in like this,” she said, “but your phone’s unlisted, and-”

  “It’s not unlisted,” he said. “It doesn’t exist.” He’d given up the damn thing years ago, shortly after his wife had died. The only calls had been from people wanting to sell him things, and he didn’t need anything. Or at least, what he needed he could find at the general store, over in town.

  “Perhaps you read our letter.” It was one of the men who spoke up now, though August Jorgensen had already forgotten his name.

  “Perhaps,” said Jorgensen, though it was more likely that he hadn’t. He read books and a local newspaper. Mail held little interest for him. Anything that arrived with less than first-class postage went into the fireplace unopened; envelopes with his address typed in or affixed with a preprinted label he considered highly suspect; in the end, only those that were hand-lettered tended to make the cut. “Perhaps,” he repeated.

  “Do you think we might have fifteen minutes of your time?” It was the woman, back in charge of things.

  Jorgensen looked the three strangers up and down. Wherever they’d started out from, they’d come a long way to see him. The wind was beginning to kick up, and though he hadn’t been aware of the cold while he’d been busy with the shrimp nets, he felt it now. And he could see from the way they arched their backs and shifted from one foot to another that they did, too. “Why not?” he said. “Come on in. I’ll make us a pot of tea.”

  They followed him and Jake inside, single file. Lighthouses were generally built with small doors, almost always set on the lee side, away from the weather. They ducked their heads as they entered, following Jorgensen’s cue, even though he was the only one tall enough to have hit the crossbeam. Once inside, they gawked around like tourists, as though grasping for the first time that it was truly a lighthouse that he lived in and not some modern structure with a faux façade.

  They climbed the circular staircase to the second level, where he put a match to the old wood stove and lit it with a whooshing sound that startled them. He filled the kettle with bottled water, knowing that the slightly brackish taste of his tap water - something he himself had long ago become accustomed to - would be a problem for his guests.

  “Sit,” he said, motioning to the four mismatched chairs that ringed a table, the top of which had once been the transom of a wooden boat, and still read - if you squinted hard enough from just the right angle – RACHEL III, ST. MARYS, GEORGIA.

  They sat.

  “So,” he said, once they were sipping tea that was no doubt too strong for them, and nibbling toast that was too stale, “refresh my recollection, if you would. Tell me again what was in the letter, the business that brings you out here.”

  This time, it was the second man who spoke, the one who hadn’t said a single word up to that moment. He slowly put down his cup and fixed August Jorgensen with a stare that was direct without being impolite. “What we want to know,” he said, “is if you might be willing to handle a case.”

  Jorgensen chuckled. Years of solitude had eroded much of his social skills, but not all, and he knew better than to laugh out loud. Still . . .

  “Let me see if I heard you correctly,” he said. “You all,” waving at the three of them, “want to know if I want to handle a case.”

  “That’s right.” The woman was back in charge.

  “Handle a case,” he repeated, the words making no more sense than they had the first time he’d heard them. “As a . . .”

  “As a lawyer.�
�

  “You realize,” he said, “that I haven’t practiced in, what, thirty years?”

  “Thirty-three, actually. State versus Tomlinson. Aggravated arson. Davis County. Acquitted on all counts.” Evidently, she’d done her homework.

  “But why should you feel the need to exhume me, after all this time? Have I missed something else in the mail? Have all the lawyers in the state suddenly decided to stop practicing and run for governor, or gone off to start up computer businesses?”

  It was their turn to chuckle at his attempt at humor, and they did, without overdoing it. But they said nothing to let him off the hook.

  “Besides which,” he said, “I’d bet my dinner that I’ve got a lawyer or two sitting right here at this table.”

  “And you’d go to bed a full man,” the quiet one conceded. “Though none of us practices much. Jessica’s an anchor and director for Trial TV. Tim here heads up the Southern States’ Court Monitoring Program. And I do a little teaching down at Tulane Law School.”

  “I can promise you,” said Jorgensen, “that my answer to your proposal will be no. But since you’ve come all this way - not to mention that you took the trouble to look up my last trial before they put me on the bench, where they figured I’d be able to cause less trouble - you may as well tell me what this case is, which no one else seems willing to take.”

  “Oh, there are plenty of others willing to take it,” said the one formerly quiet. “In fact, all told, the defendant’s had, what, half a dozen lawyers?”

  “Eleven, actually,” said Jessica, the Trial TV anchor. “Eleven lawyers in sixteen years.” Jorgensen guessed that back in law school, she’d been the goody-good who sat in the first row and came to class having read all the cases three times over, looking to show up the rest of the students.

  “Eleven lawyers in sixteen years,” Jorgensen repeated. “Let me take a wild guess. Our man is a murderer. He’s on death row. He’s pretty much exhausted his appeals. He has no viable claim of actual innocence, and all of his legal issues have been shot down.”

  No one disagreed.

  “So now, with nothing else to go on, you figure it might be worth a shot dusting me off and winding me up, and holding a sort of Judicial Old-Timer’s Day, to see if I could appeal to some kangaroo court on geriatric grounds.”

  “It’s not exactly some kangaroo court,” said Gilbert, the law professor.

  “The state supreme court?” Jorgensen asked.

  “Higher.”

  “The Fourth Circuit?” It had been August Jorgensen’s last assignment, the federal court that sat in Richmond and had appellate jurisdiction over all the district courts of Virginia, West Virginia, North and South Carolina, and Maryland.

  “Keep going.”

  Jorgensen smiled. There was only one place to keep going. “The Supremes.”

  Professor Gilbert nodded. “Not your everyday kangaroo court, you have to admit.”

  Jorgensen shrugged. “Bigger kangaroos,” he said. “Anyone want more tea?”

  No one did.

  “So who’s the defendant?”

  This time it was Tim Harkin who spoke. “Man by the name of Wesley Boyd Davies.”

  “Black.” Jorgensen had meant to say African-American,” but “black” had come out. He was so old that “negro” had once been correct, and before that, “colored.” He tried keeping up on these things, but it wasn’t easy.

  “Black,” said Gilbert.

  “What a surprise,” said Jorgensen. “And the victim - or victims - were white.”

  “There was only one,” said Gilbert. “And, yes, she was white.”

  “And before he killed her,” guessed Jorgensen, “he raped her.”

  “Actually, the coroner couldn’t say if it was before or after, or for that matter if it was an actual rape, as opposed to-”

  “Lovely,” said Jorgensen. He didn’t need to hear the details. The scenario was familiar enough. It was cases like this that had driven August Jorgensen from the bench. Not the horror of them - by that time, he’d seen enough of the terrible things human beings could do to each other that he’d become all but immune to the shock. No, it hadn’t been the horror; it had been the sadness of the cases, the incredible sadness about them. Sadness for the victims, their lives cut short, their fates undeserved. Sadness for their families, left behind to struggle with loss and anger and a never-satisfied need for “closure.” Sadness for the defendants - always black, it seemed, always poor, often illiterate, invariably “slow” or “troubled” or “challenged,” or some other nice euphemism for retarded, and almost always victims themselves of some sort of horrible abuse when they’d been growing up.

  It was enough to destroy you.

  And in Jorgensen’s case, it almost had. At first, he’d tried his best to approach the cases analytically, to see them as purely legal problems. If the proof had been sufficient and the trial fair, he went along with his colleagues and reluctantly voted to affirm the conviction. But the more he looked into the cases, the more he had to look into the defendants, and after a time it became impossible to see them merely as cases, or crimes, or trials. They were people. And with the ascendancy of the Rehnquist Court and its increasing willingness to overlook trial errors as “harmless,” there came a point for Jorgensen when he could no longer tell himself that by affirming a conviction they were simply engaging in a legal exercise. The thing was, each time they affirmed a conviction, sooner or later a man died. How long could he keep telling himself it was harmless?

  Not that long, it turned out.

  His first heart attack had been a “minor” one, a warning, his doctor told him. But there was every reason to believe his second one would kill him.

  “Exercise,” his doctor told him, “exercise and a proper diet. And above all, you must avoid stressful situations.”

  Jorgensen had laughed. He’d have laughed now, too, but the sadness got in the way. That, and he didn’t want to be rude to his guests. They’d taken the trouble to come out here, after all. The Trial TV anchor, the law school professor, and the other guy, whatever he did. He admired their willingness to do battle for this defendant, to go up against the forces who meant to kill him. He envied their ability to do it, he really did. Of course, they were a lot younger than he was. Looking at them, he wondered what it would take to burn them out, to drain the fight from them, to send them off to their own lighthouses. Five executions? Ten? Twenty? Himself, he’d lost count, finally. But it had reached the point where he’d had to drink himself to sleep; he knew that much. And even then, he used to see their faces in his dreams.

  Above all, you must avoid stressful situations.

  “I’m afraid I’m not your man,” said August Jorgensen.

  The three people sitting around his table smiled politely. If they’d done their homework - and it seemed they had - they hadn’t come out here thinking it would be an easy sell.

  “Don’t you at least want to hear what the issue is?” asked Jessica Woodruff.

  “No,” said Jorgensen, as firmly as he could. He closed his eyes, willing his guests to vanish from his kitchen. But even in the darkness, they were there. The faces. Not the faces of Jessica Woodruff, Tim Harkin, and Ray Gilbert. No, the faces he saw were the faces of Dwayne Luther Crawford, of Joseph Edward Hollis, of Felix Angel Rodriguez, of Willie Lee Williams. Eyes still shut, he began speaking in a weary monotone. “Blacks were systematically excluded from the panel. The prosecution withheld exculpatory evidence. A key witness had a secret deal with the police that was never revealed to the jury. The defendant is severely retarded. He was denied access to expert witnesses. His lawyer was inexperienced, underpaid, and slept through significant portions of the trial.” Jorgensen could have gone on and on; there were too many issues to list, too many faces to remember.

  Jessica Woodruff reached for her purse. Jorgensen had a momentary vision of his wife doing that, pulling out her cigarettes, lighting up. When he first met Marge, he’d loved the way s
he did it, loved the ritual of it, loved how sophisticated it made her look, loved the smell the burning match made, even liked the smell of the first puff of smoke. “I was born in Durham,” Marge had told him, when he’d asked her about her smoking. “My daddy farmed tobacco, his daddy farmed tobacco, and his daddy’s daddy farmed tobacco. Of course I smoke.” Later, when her coughing became a part of the ritual, he liked it far less. And finally, by the time they’d both realized it was going to literally be the death of her, he’d learned to hate it, to hate it with a passion he reserved for little else.

  Death.

  Passion.

  Death and passion.

  If one was going to be passionate about something, it might as well be something worth being passionate about.

  But he needn’t have worried, not about Jessica Woodruff, anyway. What she took from her purse was not a pack of cigarettes, but a manila envelope, which now she extended in his direction, as though it were some sort of peace offering, presented in ceremonial fashion.

  “We’ve taken quite enough of your time,” she said - rather formally, he thought. “Is it all right if we leave this with you?”

  He didn’t take it from her, but he didn’t say no, either. Again, that would have been rude. She smoothed out the crease in it and placed it on the table. He could see his name typed on the outside of it, the honorable august l. jorgensen. Still he said nothing.

  “May we call again in a week or so?” Ray Gilbert asked. “Once you’ve had a chance . . .”

  “I have no phone,” Jorgensen reminded them.

  They nodded in unison, as if to say they already knew that.

  “So how do you think it went?” Jessica Woodruff asked her companions.

  “You were right about his looks,” said Harkin. “Reminds me of that famous photo of Judge Learned Hand.”

  “And that voice,” said Gilbert.

  There was a pregnant silence in the car, which the anchorwoman in Jessica Woodruff felt compelled to break after a couple of beats. “What I mean is,” she asked, “do you think he’s up to it?”