Fogbound

by Joseph T. Klempner

  It took the lawyers nine years and two evidentiary hearings before they’d exhausted Boyd Davies’s state court appellate rights. After that, they brought a writ of habeas corpus in federal district court, contending that Boyd had been denied rights due him under the United States Constitution. Losing there, they began their way up the federal appellate ladder, reiterating their arguments at the Fourth Circuit. Twice they’d made it all the way up to the Supreme Court, only to lose twice. Now they were headed back there for one final try, one last-ditch effort to win a new penalty-phase trial, in the hope that they might persuade a new jury to spare Boyd’s life and let him live out his days in prison.

  “And what’s the issue?” Jorgensen asked.

  “Because of his autism,” Jessica Woodruff replied, “Boyd can’t grasp the notion that they actually mean to kill him, or why.”

  “Eighth Amendment?”

  “Exactly,” she said with a smile.

  “So under the unique circumstances of this case,” said Jorgensen, “executing Boyd Davies would amount to cruel and unusual punishment.”

  “Bingo,” said the law professor.

  “They’ll never go for it,” said Jorgensen, “not in a million years. They know it would throw open the floodgates for every poor slob on death row.”

  “Which is why the stakes are so high,” said Woodruff.

  “Don’t you see what they’re doing?” Jorgensen asked his guests. “They’ve granted cert on the perfect case. A heinous crime, a repeat offender who’s demonstrably guilty, and a record showing he not only had effective trial counsel, he actually had excellent counsel. They’ve taken the Eighth Amendment issue in order to knock it down, once and for all.”

  “Maybe,” Jessica Woodruff admitted.

  “But we don’t know that, do we?” It was the third one, the one from the monitoring program, who chimed in with that remark.

  Jorgensen didn’t take the bait. Maybe they didn’t know what a hopeless long shot it was, but he did. He’d seen too many of these cases, and he knew only too well how the Rehnquist death-majority operated. But that still left him with one question.

  “Why me?” he asked. “Why not Tribe or Dershowitz or Boise, or any one of half a dozen others? They know this stuff backwards and forwards.”

  “Exactly the point,” said the professor. “We feel it’s time for some new blood.”

  Jorgensen didn’t much care for the metaphor, but he let it go. Jessica Woodruff leaned forward in her chair. “We want you,” she said, “because you’ll bring something special. People remember how you left the bench out of principle, how you went into-” and here she waved her hand around, “-exile. The following year, you were voted one of America’s ten most-admired men. When your name comes up, people associate it with courage, with dignity, with a sense of integrity.”

  “And the court cares about such things?”

  “They will,” said Jessica Woodruff, “by the time Trial TV profiles you.”

  “Ahhh,” said Jorgensen, allowing himself a smile. “I’m to become a media star.”

  “Don’t kid yourself,” said the monitoring guy. “That TV set of yours is more powerful than you think . . .”

  Jorgensen didn’t bother correcting him. He hadn’t owned a television for close to a decade.

  “. . . and besides, the time is right. Polls show that support for the death penalty is eroding, at least where life without the possibility of parole is an option. Why, in Illinois, the governor has declared a moratorium on executions, and he’s a Republican. And-”

  Jorgensen held up a hand. “What about the drawings?” he asked. “The bait you lured me with?”

  “We’ll run those as a teaser,” Woodruff explained. “They’ll captivate our viewers, just like they captivated you.”

  Jorgensen didn’t much like the sound of that, but he understood that there was such a thing as the Court of Public Opinion. Trouble was, men like Scalia and Thomas never seemed swayed by it. “If I do decide to get involved with this - and I’m not saying for a moment that I’m going to - what is it you’ll want of me?”

  “Very little,” said the law professor, “at least in terms of your time. The scheduling order hasn’t come down yet. Most likely the case won’t be heard until late spring. We’ve already got a team working on the brief, and they’ll prepare you for the oral argument. All you’ll have to do is be the point man.”

  “The figurehead,” mused Jorgensen.

  “If that’s what you want to call it, go ahead. But a man’s life is at stake here, and - if our thinking is correct - so are the lives of hundreds, maybe even thousands, of other men. Besides which,” he added, “we’re prepared to pay you. An honorarium, they call it.”

  Jorgensen knew what an honorarium was. In the year or two following his retirement, he’d been offered a number of them to give speeches at conventions or lectures at law schools. He’d turned them all down. He received a decent pension that, along with his Social Security checks, provided him with more money than he could ever spend. Childless, he had no family to provide for. And he had little desire to make speeches, and even less to give lectures.

  He pushed himself up from his stuffed chair with some difficulty; it was why he favored the kitchen. He walked over to the porthole and pressed his face up close to it, cupping his hands around his eyes to block out the glare of the room.

  It was full dark now; that much he could tell. But there was no moon visible, no stars, no crests of waves catching the reflection. There had to be ships out there, he knew, great ships making their way up or down the coast. But he couldn’t see them, or their running lights.

  All he could see was fog.

  By morning, the fog had lifted. Over coffee that was evidently stronger than his guests were accustomed to, Jorgensen posed a question. “Would it be all right,” he asked, “if, before I give you my decision, I were to pay Mr. Davies a visit?”

  “Uh, I’m afraid we’re not funded for that,” said the law professor. “Right now our budgetary constraints are somewhat-”

  “Not to worry,” said Jorgensen. “I can drive, and I’ll pay my own way.”

  The three of them exchanged glances. They had to have noticed his truck sitting right there in the driveway, thought Jorgensen. They must have taken him for too old, or too feeble to mix it up with off-island drivers.

  “I can take you,” said the one from the court monitoring program. “There’s no need for you to make such a long trip alone.”

  “No, no,” said Jorgensen, “I’d rather prefer it. Besides which,” he added, reaching down to give Jake a pat on the head, “I won’t be alone.”

  There was an awkward moment of silence, and Jorgensen was about to assure them that he wouldn’t let the dog do too much of the driving, when Jessica Woodruff spoke up. “I suppose that’ll be all right,” she said. “I’ll have my staff see to it that there’s a visitor’s pass waiting for you when you get there.” They left him the file, or at least the summary they’d brought, a three-inch thick manila folder. Though he’d never handled a death case as a litigant, Jorgensen had sat on enough of them as a judge to know that by the time one of them was in its sixteenth year, the word file had become obsolete; room full of cartons was more apt to be the case.

  He spent the rest of the day with the summary, rereading documents, cross-checking reports, and studying appellate opinions. But he kept coming back to the drawings. They were every bit as striking as the first three Jessica Woodruff had used to bait him. The lines were exquisite; the details real to the point where you wanted to reach out and try to touch the objects. The angles, proportions, perspectives and shadowing were all flawless - less the work of a twenty-one-year-old unpracticed amateur than an accomplished adult artist. He could almost feel the heft of the shovel; the stickiness of the tape wrapped around its handle. He could see the grave site as though he were standing at it sixteen years ago, with Boyd Davies by his side. What had happened that September day, he wondered.
What had gone so wrong that it had ended up bringing nothing but tragedy to two families?

  He left the following morning, just after sunup. Jake settled his butt into the passenger seat, at the same time managing to stick his nose out the side window that Jorgensen had cracked open for him, knowing that he’d hear nothing but whining if he didn’t. Anyone who might have noticed the two of them heading west over the flats and salt marshes toward the bridge that would take them to the mainland would have figured they were off to pick up a sack of groceries and the weekly paper, and maybe a tin of bait while they were at it. But then, they’d have had no way of seeing the small overnight bag wedged behind the driver’s seat, or the road atlas resting on the floor, or the three-inch-thick manila folder lying next to it. They would have noticed only an old, white-haired man and his dog, chugging along in a red Chevy pickup truck, the kind with bug-eye headlights, a split windshield, and running boards that looked to be fashioned from pure rust.

  The kinda truck you couldn’t hardly get no more.

  The trip would take them two full days. The truck, which had either 270,000 or 370,000 miles (Jorgensen could no longer remember which) could do sixty, so long as it was downhill with a good tailwind and the windows were rolled up, but under normal conditions, fifty or fifty-five was more like it. It got about twelve miles to the gallon; only you didn’t want to fill the tank more than halfway, because if you did it tended to leak. Which was just as well, because both the driver and the passenger were getting on in years, too, and the same could be said of them. The combination made for frequent pit stops, some at filling stations or diners, but just as many by trees or bushes. Men’s bushes, as Jorgensen liked to think of them. He didn’t know what Jake thought of them as, but whatever it was, the arrangement seemed to work.

  They picked up I-77 outside of Columbia, and headed north, crossing over the state line sometime in the late afternoon. By 6:00, Jorgensen’s back was feeling it, and he pulled off the interstate a ways past Charlotte, at a little town called Cornelius. Cornelius had been the name of the wise old elephant in the Babar stories, if Jorgensen remembered correctly. He liked children’s stories: Things were simpler in them, more straightforward.

  If the meatloaf and redeye gravy at the local diner were good, the mashed potatoes were a bit on the lumpy side, but nothing compared to the mattress at the Sleepy-Time Motel. Jake solved the problem by finding a spot on the floor that suited him. Jorgensen, his bones weary from the drive, slept fitfully, dreaming at one point that he was lying helpless on his back on a plate, while someone ladled gravy over him. Only when he looked closer, he could see that it wasn’t a ladle at all they were using, but a shovel - a shovel with duct tape wrapped around the handle, halfway up its length.

  Brushy Mountain State Prison looms as a giant wall, set atop a hill and visible for miles from whatever direction one approaches. The bricks that were used to fashion the wall a century ago were molded from the red-brown clay of the surrounding Allegheny Mountains. The result is that the wall takes on the color of the ground from which it rises. It is the color of iron, of soil, of the earth itself.

  But August Jorgensen lived by the sea, and to him, it looked less like a wall and more like one of those giant ocean-going tankers you saw riding high and dry at anchor, its rusted hull risen up from the depths.

  He identified himself and was permitted to drive through the gateway, where he was directed to park his truck in a visitor’s spot and leave his dog.

  “Unless he’s one of those seeing-eye ones,” said a guard.

  “No, no,” said Jorgensen, “I’m afraid he’s not.” But the thought of a guide dog navigating for a blind driver caused him to chuckle and smile at the guard, in appreciation of the man’s little joke.

  The guard didn’t smile back.

  There was an inner wall, smaller and less imposing than the first, but it had gun towers at each corner and was topped with big loops of razor wire. Razor wire is exactly what it sounds like: It is barbed wire (or bob-wire, as they say in the South), only instead of sprouting pointed barbs every four inches or so, it sprouts razor blades.

  Jorgensen took the manila folder, a pen, a legal pad to take notes on, and his reading glasses. Everything else he left in the truck. He knew from having been a defense lawyer years ago that he’d be going through metal detectors inside, and that any loose change, keys, or paperclips in his pockets would only set buzzers off and be taken from him.

  He was ushered into a sign-in room, where he was required to produce identification and fill out a handful of forms. They wanted his full name, address, nationality, date of birth, year of admission to the bar, and about twenty other particulars. He was required to promise in writing that he was a member in good standing of the bar, that he was unarmed, and that he wasn’t smuggling drugs or other contraband into the prison. He was made to wait while a lieutenant confirmed that arrangements had been made for him to visit Wesley Boyd Davies. Then he was made to wait some more while someone contacted someone else on the unit where Davies was housed, and an officer could be dispatched to escort the inmate to the attorney visit room.

  Finally, after almost an hour, Jorgensen was told they were ready for him. He was directed through a series of steel doors, each of them electronically opened by a guard housed behind thick glass. The last of the doors opened into a large room containing small tables bolted to the floor. At each of the tables were two or three flimsy plastic chairs, the kind you could hit someone with, Jorgensen figured, and not hurt him too badly.

  Except for a guard who sat behind a desk on a raised platform, overseeing everything, there was only one other person besides Jorgensen in the room. He was a black man, seated at one of the tables. He was dressed in a prison-issue blue jumpsuit. And he looked to be about thirty-five years old.

  Jorgensen walked over to where he sat. “Are you Boyd Davies?” he asked the man.

  The man said nothing and didn’t look at Jorgensen. But he nodded up and down once. Jorgensen sat down opposite him. “My name is Jorgensen,” he said, “August Jorgensen. Some people have asked me to help you with your case. I’m here to find out if that’s okay.”

  “That’s okay,” said Boyd Davies.

  Well, that was certainly easy, thought Jorgensen. “Good,” he said. “Before I ask you a few questions, is there anything you want to ask me?”

  “Ask me.”

  “Any questions you have?”

  “Questions you have.”

  And it dawned on Jorgensen that Boyd Davies wasn’t so much answering him as he was repeating the last few words of everything he heard. Echolalia, they called it, a behavior characteristic of autism.

  “What is your name?” asked Jorgensen, pointing his finger at Davies’s chest on the word your.

  It took a moment, but Davies replied, “Boyd.”

  “Hello, Boyd. I’m August.”

  “Hello.”

  “Hello.”

  If it was a less ambitious start, at least it seemed to get them acquainted. “How are you, Boyd?” Jorgensen tried next.

  Nothing.

  “Are you okay?”

  “Okay.”

  Hard to tell from that.

  Jorgensen was stumped. Here he’d driven for the better part of two days, waded through a small mountain of bureaucratic red tape, and waited for an hour, only to find out he hadn’t the vaguest idea of how to communicate with his client. His would-be client.

  Then an idea hit him. He took the legal pad he’d brought and slid it across the table in front of Boyd. Then he handed him the pen. “Draw something for me,” he said.

  Boyd looked down at the objects as though unable to make the connection between them, or between them and what Jorgensen had just said.

  “Can you draw a face?” Jorgensen asked him.

  “A face,” Boyd repeated. But he gave no sign of comprehension.

  “A happy face?” Jorgensen suggested, forming his mouth into an exaggerated grin. “Or a sad face?” in
verting it into a pout.

  No reaction.

  “How about Boyd?” he tried. “Can you draw Boyd?”

  Still nothing.

  “Can you draw anything at all?”

  Apparently not. Apparently whatever gift, whatever talent the young man had once possessed, had died at some point, somewhere within these walls. In a last-ditch effort, Jorgensen picked up the pen himself, reached for the pad, and began drawing himself. He wasn’t much of an artist, and he ended up with a crude stick figure, standing next to a lollypop tree. He rotated the pad 180 degrees, so that it faced Boyd, and offered him the pen.

  But wherever Boyd Davies was at that particular moment – if, indeed, he was anywhere at all - it wasn’t at a place where he could take pen and paper and make things come to life.

  It was dark by the time Jorgensen got back outside to his truck. He found a motel south of a town called Rocky Gap. It wasn’t until he was feeding Jake that he realized he himself hadn’t eaten since breakfast. But he was tired, far too tired to go looking for food. He stretched out on the bed and, within minutes, fell asleep with his clothes on, even his shoes. He felt old and exhausted, and very far from home.

  “So do you think he’ll do it?”

  The voice was Brandon Davidson’s, checking in with Jessica Woodruff by cell phone, fifteen minutes before Jessica was to take over as anchor for Trial TVs afternoon segment of “You Be the Jury.”