by Rick Mofina
His room phone jangled. It was the clerk in Washington, D.C., confirming Cohen’s fax number. The response was coming now. His eyes went around the room, to the TV muted on CNN, the two double beds, one unmade, the other buried under legal briefs, files, records, newspapers. Then to his portable fax, connected to his cellular phone, which trilled and blinked dutifully as his machine came alive, clicking into receiving mode.
Paper curled out of the machine. Cohen read it before the transmission was completed.
The decision came like a blow forcing Cohen to sit on the cluttered bed, clutching the pages. It’s over. I’ve lost him.
There was no reason given for denying the appeal. They never give one. Cohen shut his eyes. The ashes will be distributed in the Livingston Range. He then opened his eyes to the room’s closet, seeing his dark suit hanging there, the one he would wear to witness Hood’s execution, evoking the Grim Reaper as another solitary rig growled into the mountains. He stared blankly at the news pictures. He would have to tell Isaiah it was over. He was going to die. He was sorry, so sorry. And when it was over, he would fly back to Chicago and struggle to put it all behind him. He would go to a ball game. Friends would console him over beers at bars and parties. Others would change the subject. He’d take a trip, maybe Bermuda, in a Pilate-like attempt to cleanse the blood from his hands.
Soon he would have to stare into a man’s eyes and tell him he had failed to save his life. He would watch him die and then carry his ashes in his rented car to the Rocky Mountains.
His motel phone rang. He knew who it was.
“David, it’s Lane. I just got it. We tried everything. We knew going into this how hard it would--”
“Lane. Please understand, I don’t feel like talking right now.”
Cohen hung up, then swatted his files across the room. They scattered as he thrust his face into his hands. He sat in silence, listening to the trucks for a few minutes. Come on now, get a grip. He collected himself and his papers.
Much of the spilled file was that of the sole witness, the thirteen-year-old girl whose testimony sealed Hood’s death warrant. There were pictures of her in a yellowing portion of the folder that Cohen had almost forgotten. Black-and-white images. Almost like police mugs. Maybe taken by Goliath County Sheriff’s Office when she was first questioned. Cohen was not sure of the source. Pretty kid. Looked familiar.
Cohen lowered the photograph, just as his attention was pulled to the muted TV and the report of the search for Paige Baker. A still color photograph of the lost girl flashed as the report played excerpts from her mother’s news conference. Cohen’s concentration pinballed at the speed of light to her face, her daughter’s picture, the picture in his hand.
His jaw dropped.
He scrambled, rummaging through the newspapers for the lost girl stories, studying the news photos there, comparing them to those in Hood’s files.
It’s her. How could I have missed this? Emily Baker is the witness. It was her testimony that convicted Hood.
Cohen snapped through the files. The names were different. The firm had hired private investigators to track her down. But they were unsuccessful. Her mother had taken her from Montana years ago. They could not locate her. The investigators reported no record of her death, convictions or military service. She may have changed her name, her date of birth, her Social Security Number, or lied on records about eye and hair color. All the usual identifiers. But why would she or her mother go to such lengths?
In the early part of the case, Isaiah had said little in his own defense. Cohen flipped through the old records. Now he maintained his innocence in the death of five-year-old Rachel Ross.
Emily Baker’s eyes stared at Cohen from the Missoulian splayed on the bed and from the old black-and-white court photo of her taken at the time of Rachel’s death. He pored over her statement and the transcripts of her testimony.
Three people were on that ledge in the backcountry that day twenty-two years ago.
Isaiah Hood was back water trash, the product of pitiful circumstances. He had less standing and sympathy in the community than a stray dog. No one was interested in the truth of the tragedy. Guilt suited Hood like his worn clothes. His court-appointed attorney barely performed his fiduciary duty. He never really challenged the testimony of the county attorney’s sole witness, a thirteen-year-old child.
Cohen shuddered. Throughout his handling of the case, he had secretly doubted his client’s innocence, choosing to believe Hood’s conviction was based on elements that violated his constitutional rights. They were enough to mire his case in year after year of appeals, in what was the judicial equivalent of false hope for a dead man.
But now, staring at the old pictures and those in the news stories, knowing that Emily Baker’s ten-year-old daughter was missing in the same region and under similar circumstances as the case with her sister all those years ago, with the clock ticking down, Cohen feared--for the first time--the state of Montana was about to execute an innocent man.
His motel phone rang again, reminding him that the attorney general’s office would be calling after receiving its copy of the U.S. Supreme Court decision.
“David, John Jackson in Helena,” said the AG’s senior counsel.
“You got it.”
“As you know, the case can now go to the Board of Pardons and Parole for executive clemency.”
“It’s done, John. I’ve set the mechanism in motion.”
“As expected. But as I’ve told you, nothing has surfaced to give the governor reason to intervene. You and Ms. Porter must brace yourself for the inevitable likelihood that your client’s sentence will be carried out at the date and time indicated on his warrant. We’ll send you paper on that. I have your fax. We’re issuing a press statement immediately. I am sorry, David.”
“Hold on there, John,” Cohen’s voice was wavering, his eyes going to the TV screen and Emily Baker’s face.
Could she have killed her sister and now her daughter? They cannot execute Hood. Somehow he had to stop it.
THIRTY-ONE
She isholding her little sister Rachel’s hand. It is smaller, softer with the trust and vulnerability of a younger child, feeling like in belongs in hers forever.
All is right in their world. They are walking down the lane from their house near Buckhorn Creek to wait for their dad’s pickup. Sitting in the summer grass, Rachel looks up to her, blinking in the sunlight.
“I love you, Lee.”
“I love you, too, Sun Ray.”
Sun Ray. That’s what Emily called her. She loved how Rachel had trouble pronouncing her name. She loved everything about Rachel. Little blue eyes twinkling from an angel’s face, snow-white teeth, a sprinkling of freckles, tawny hair, which Rachel let her braid on long winter nights. They shared stories and dolls. They cried when their mother read them Charlotte’s Web.
Emily would never forget those terrifying summer storms, pounding the mountains with thunderclaps rattling the house; lightning illuminating the sky as if the Rockies were collapsing. On those nights, Emily’s bedroom door would crack open. Rachel would be standing there in the doorway holding her teddy, the lightning streaking her face.
“I’m scared, Lee.”
She would lift her blanket, inviting her into her bed. Put her arm around her protectively, inhale the sweet scent of her little sister’s hair, feel her warmth as she snuggled against her. Together, they were safe.
“I don’t feel scared anymore.”
The storm would subside and the whispering rain would lull them to sleep. How Emily would listen to it, wishing they could stay that way. Freeze time. Then the monster came.
“Guess what I’m going to do.”
***
She is in the church now. The scent of candles, the polished wood of the pews, the oak floors, the fragrant flowers. Rachel’s white casket is open. She is walking toward it. Her sister is lying inside, looking smaller. She is wearing a cotton dress with lace trim, her church dress
their mother has made. Hands clasped and fingers entwined. Her teddy is tucked under her arm. The sleeves cover the bruises.
“Back of her head was split. Much of the damage was internal.” The sheriff’s deputies and some local men were behind the church, passing a small bottle, and talking.
Rachel’s face is clear. Her eyes closed. Lee reaches in and takes her hand. It is cold. So cold. My Sun Ray.
“I don’t feel scared anymore.”
Rachel’s death had fractured Emily’s family. Her father never smiled. Every ounce of happiness had left him. Her mother would sit alone for hours in Rachel’s room, not allowing anything to be touched. In their grief, her parents were melting away from her when Emily needed them.
The words were never spoken, but in their anguish they held her responsible for her sister’s death. They branded her with blame, searing it into her soul.
It was her fault.
She was there.
It is the annual summer camping trip with the Buckhorn Creek Girls Club. Four days and nights in the backcountry of Glacier National Park. Mothers and fathers are dropping girls off at the Town Hall. Lee and Rachel’s folks giving them hugs and kisses.
“Remember to watch over your little sister.”
“I will.”
Hauling their sleeping bags and packs from the car, waving good-byes from the bus. Her parents waving, smiling for the last time.
The group hikes deep into the park. The mountains, the fragrant trees and clear water streams sparkling in the sun. This must be the way to heaven, Lee thinks. Everything about the trip is perfect. Rachel loves it. They pick flowers, make crafts, sing songs by the campfire, toast marshmallows, tell ghost stories, count stars. It is perfect.
The third afternoon the group has a scavenger hunt. When her turn comes, Rachel reaches into a leader’s hat and pulls out a folded slip of paper with instructions to catch two butterflies and place them in the empty glass jelly jar.
“Will you help me, Lee?”
Rachel holds the jar while her big sister takes her hand and they go the meadow nearby.
“Not too far girls,” one of the leaders called after them.
The meadow is abundant with flowers, glacier lilies. Butterflies flit about them, white, pink and yellow. Emily is taking pictures of Rachel, laughing in the sun, chasing butterflies.
“Look, a blue one.”
Rachel trots up the meadow hill to a forest edge.
“Rachel, wait!”
Rachel vanishes into a stand of spruce.
She follows, catching up to her as they come to the cliff, gasping as they halt in their tracks.
He is standing there. Smiling.
The monster.
Emily fought with every fiber of her being to tell Agent Tracy Bowman the things she could never tell anyone, not even Doug.
Paige had disappeared into the same abyss as Rachel. How could this be happening? Emily could not bear it. Could not. Please. She wept.
Arms wrapped around her, holding her together. Someone was saying her name. “Emily, it’s OK to cry.”
Doug? It was not Doug. He was off talking to searchers.
“Emily, it’s OK.” Bowman comforted her. “Tell me what is tormenting you.”
Emily could not stop sobbing. Doug. Could not get the words out.
How do you begin to say my daughter is lost where my sister died, and I am the one responsible? How do you say that and keep yourself alive?
She should tell Doug.
But before she realized it, Emily could no longer contain her pain.
“It’s happening again,” she cried.
“What is happening again, Emily?”
“I was there when she died.”
“When who died?”
“My sister. Now it is happening again.”
THIRTY-TWO
Stay focused,Dolores. Focused. Fidelity Bravery Integrity. I cannot let the team down. Got to find the lost little girl. But right now, FBI Special Agent Dolores Harding had to sit down to catch her breath.
She and Orin Mills had been scouring their assigned patch of Grizzly Tooth ever since daybreak. Coming up on fourteen hours.
“Over here, Mills!”
Twenty yards off, he raised his walking stick, signaling he would join her on the rock ledge in the shade of a stand of pine.
The sun was high. Harding’s calves and thighs ached as she reached for her water bottle, scanning the mountains’ majesty from behind her sunglasses. She was a marathoner, a twenty-nine-year-old hard-driving agent assigned to the OCPD at the Salt Lake City Division. It seemed only yesterday she was surveilling two case targets who were to arrive at Salt Lake City International Airport from Mexico City via LAX. They were no-shows. Could have been bad information. Or they were tipped.
It was two days ago, wasn’t it? She was exhausted out here. For after that job, Harding suddenly found herself partnered in Glacier National Park with Special Agent Orin Mills with White Collar at the Division. Cerebral guys. Harding and Mills were part of the horde of agents dispatched from Utah. Even for some case-hardened agents, it was a gut-wrenching assignment. Harding saw how some of the agents who were fathers were quite pensive about this one, while the young jerks were quietly tabulating availability pay.
Mills was a big, friendly, soft-spoken, fifty-two-year-old Mormon with three grandchildren. Took this emergency assignment personally. Harding, a blue-collar girl who left Pennsylvania’s Rust Belt to study criminology at John Jay in New York, and Mills, a church-goer who was raised in Provo, had scoured Sector 21 three times. Heartache written in Orin’s face as he joined her on the ledge, inhaling the air as it cooled in the sunset.
“Not much time left for looking today, Dolores. Can you imagine the horror this child is enduring?”
Harding regarded the mountains, the glacier valleys, and felt bad for quietly complaining about her body aches and discomfort. She was an adult FBI agent in jeans and a T-shirt, equipped with heavy socks, boots, water, food, a semi-automatic .40-caliber Glock, bear repellant, bug spray, first-aid kit, radio, training, physical conditioning. If a few hours searching a mountain slope had exacted this much on her, what would it do to lost, frightened child from the city? Harding became angry at the mountains, as if they were an informant refusing to disclose life-and-death information. Come on, give her up. You do not need her. Give her up. This has gone on long enough.
Harding reached for her well-thumbed sector map. Precision-folded and marked.
“We’ve got some time, Orin. Any areas you want to re-visit--darn!”
Harding dropped her water bottle; it tumbled and swished for a few yards. She climbed from the ledge carefully to retrieve it. It had rolled into a small surface fissure. As she reached for it, a metallic glint seized her attention. Harding shone her penlight into the crack, which was about two feet. She removed her sunglasses, eyes adjusting to the light on a small ax.
“Mills! We got something here!” Concentrating, Harding was certain she saw a lace pattern of browned blood on the head reaching to the handle. Gooseflesh rose on her arms. “Mills! It’s not good! Stay where you are and get ERT on the radio. We need them here now!”
The FBI’s Evidence Response Team descended upon the scene. Yellow crime scene tape sealed the area. Radios crackled; helicopters landed nearby by or hovered; photographs were taken. Harding was instructed to remain at the scene, to maintain the evidence chain.
Suddenly, she found Frank Zander next to her.
“You’re Harding? You made the find?”
Even dreamier up close.
“Yes, I found it. Just dumb-ass luck.”
“Good work.”
It was a camping ax. A one-and-a-half pound Titan Striker with a drop-forged steel head and a sixteen-inch curved handle with a rubberized cushion grip. It was placed in a plastic evidence bag and flown from the area on Harding’s lap under the last vestiges of daylight.
It fit the description of Doug Baker’s ax given earlier
by the New York detective, thought Zander. They could check the serial number for distribution points, run credit cards. He was standing off by himself at the scene, staring at the Rockies. A blood-stained T-shirt, a bloodied hatchet, a public argument, a domestic dispute at home, a mother undergoing counseling. The pieces were falling into place. A noose was being fashioned. Zander’s jaw clenched.
It was time to talk to Doug Baker again.
Time to learn the truth.
THIRTY-THREE
Concern flowed through the phone line from John Jackson, the chief lawyer for Montana’s attorney general in Helena.
“David, are you all right?”
Since David Cohen had taken on Isaiah Hood’s case three years ago, the two lawyers had developed a strong professional kinship.
“John, there’s been a development.”
“A development? What sort of development?”
Standing alone in his disheveled motel room in Deer Lodge, Cohen sniffed and ran a shaking hand through his hair.
“A grave, urgent development.”
“David the Governor will not intervene. The sentence will be--”
“John, I believe he is innocent.”
Jackson knew losing a death sentence appeal was a punishing blow for death penalty lawyers to absorb. Jackson had lawyer friends in Florida and Texas. Few people know of the horror they often endure. One committed suicide. Jackson gave the eulogy.
“I absolutely believe that the state will be executing an innocent man.”
Cohen’s eyes burned into the TV news.
“David, the Supreme Court has rejected you. There is no basis of law--”
“To hell with the law.”
“David, have you been drinking?”
“No. John. Just hold off on your press release and give me some time--”
“I can’t I--”
“John, I swear, if you go ahead with this, Montana will never recover. You will have your place in history for having sealed its fate as the judicial pariah of the nation. I swear--”
