Flat Lake in Winter (22 page)

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.”

Fielder understood the concern. “That’s not what I’m looking for,” he said. “My client’s taking a terrible beating in the press. I’m convinced he’s got an honest, legitimate defense. I want to go public with it, to start offsetting some of the damage. I’m afraid if I don’t do it soon, it’ll be too late by the time we go to trial. It’ll look like some lawyer stunt - you know, pulling the rabbit out of the hat at the eleventh hour. But before I do anything, I’d like to know if I’m going to cause more harm to my guy than good.”

“If we should decide to go ahead with it,” Newhart asked, “how quickly would you need the results?”

“Not for another ten, fifteen minutes,” Fielder joked.

Neither of them so much as smiled. “We’ll get back to you in a day or two,” said Graham Taylor.

It was clear that the meeting was over, and that Fielder was dismissed. He rose and said, “Thank you.” What he was thinking was, he was glad he’d never had to make a living on Madison Avenue.

THICK, LOW CLOUDS obscured the sun on the morning of December 22. Driving to Cedar Falls, Fielder could sense a change in the air, and understood for the first time how local folks claimed to be able to smell snow when it was on its way.

In court, Gil Cavanaugh served and submitted his written response to the defense motions. Quite predictably, he opposed just about everything Fielder sought. The evidence presented before the grand jury had been legally sufficient, he assured everyone, and while he submitted an obligatory transcript of the proceedings for the court’s inspection, he declined to furnish the defense a copy. All of the evidence had been properly obtained, he contended, from the items recovered at the Hamilton estate to the statements uttered by the defendant. He turned over to the defense only those items which the law required him to: copies of the autopsy, toxicology and serology reports, and the results of other scientific tests. Other items, such as investigators’ statements, original notes, and witness lists, he refused to part with. He ridiculed Fielder’s requests for a change of venue, additional jury challenges, and a different judge, and opposed all of them as unnecessary.

Judge Summerhouse put the case off to January 12, for his decision on the motions. Then he wished everyone a merry Christmas. There was a murmur from those assembled that came out sounding like a cross between “Thank you” and “Same to you.” Jonathan Hamilton, blanketless and shivering beside Matt Fielder, said nothing before being led back to the pens.

FROM CEDAR FALLS, Fielder headed home toward his cabin in Big Moose. The talk back at the courthouse had been of the coming storm and he didn’t want to get caught in it. Above him, the sky was now a uniform, solid gray, and there was almost no breeze detectable in the branches of the pines and hemlocks that lined the road on either side. Once or twice a few early flakes appeared and landed on the windshield, but never enough to require a sweep from the wipers. The snow was in no hurry, Fielder could see. Unlike the sudden storms that whipped in with high winds and sometimes even lightning, this snow would come when it was good and ready, when it was time to settle in and stay the night. Until then, there was no need for Fielder to rush home.

So he took a detour. Before Route 30 reached Lake Eaton and the Long Lake Bridge, he turned right onto County Road 18. From there, he found the turnoff to Flat Lake Road, and followed it, as he’d followed it several months ago, back when he’d made his first trip to the estate to see with his own eyes the place where Jonathan Hamilton had risen from his bed that fateful night and ended the lives of the two people he probably loved most in the whole world.

The colors were gone at the lake. The brilliant reds and oranges and yellows of autumn had vanished. The trees they had lit up so spectacularly only months ago were now bare sticks jutting up among the evergreens, starkly silhouetted against the slate gray of the sky. Gone, too, was the perfect reflection of the entire scene upon the still surface of the lake, which had struck Fielder so the first time he’d visited the spot.

But there was a reward, nonetheless.

In place of the autumn colors, in place of the mirror image, winter had provided her quiet answer to autumn’s gaudy show, and it was every bit as breathtaking.

Sometime in mid-December, just before the lake freezes over, the same two men who lower the steel gate in spring to create a skimming effect to rid the surface of debris, show up again. Slowly they crank the big wheel a dozen turns or more, gradually raising the gate until its top comes to rest a full foot above the waterline. The result is that the water no longer flows over the top of the dam; instead it spills out under the bottom of the gate. This change causes the skimming action to cease, and the surface of the lake becomes motionless.

And motionless, it turns to ice.

Already well below the freezing point, the water has resisted turning solid only because of its rapid movement. As soon as that movement ceases, the surface freezes over, literally within hours, before falling leaves and twigs have a chance to mar its surface, or winds to ripple its smoothness. What is left is a plane of ice so perfectly, geometrically flat that it is startling to behold. Carpenters from miles around have been known to come and place their bubble-levels on it - not to measure the flatness of the lake itself, but to check the accuracy of their equipment.

It is then, at least according to the year-rounders, that the lake is truly at its most beautiful: at that instant just after the freezing, but just before the first snows fall and blanket the ice. And it is then - not in the budding, flowering promise of spring; not in the glorious, sun-drenched days of summer; not even in the spectacular, colorful riot of autumn; but in that exquisite moment that comes only in early winter - that Flat Lake reveals her true self, and earns the name by which she is known.

THAT EVENING, MATT Fielder sat in front of his woodstove, resigned to the fact that the falling snow had forced him to postpone at least until the weekend his plans to drive to New Hampshire, sifting through the day’s mail. There was a tax bill, a credit-card solicitation, an Eddie Bauer catalog, a law-school alumni bulletin, and an envelope from Washington, D.C. Carefully he slit it open and unfolded the letter inside. The National Jury Research Institute had agreed to conduct a study with a sample of registered jurors in Cascade County, Montana. The locale had been selected because it had been found to resemble Ottawa County in several important respects. To begin with, there were the obvious geographic similarities, with both counties set in the foothills of major mountain ranges. Their respective county seats, Great Falls, Montana, and Cedar Falls, New York, were virtually indistinguishable in many respects. And in terms of demographics - the ethnic composition, the local economies, the regional politics, and the voting histories of residents toward issues involving crime and punishment generally, and the death penalty in particular - the areas turned out to be almost carbon copies of each other. Furthermore, Montana was sufficiently distant from New York to minimize the likelihood that the survey sample would be tainted by news accounts, or that word of the study would leak out and find its way back east.

The methodology would be fairly straightforward. The subjects would be asked their reactions to a hypothetical case involving a young man accused of a brutal murder. During the course of the interviews, the subjects would be informed, bit by bit, of various aspects of the young man’s appearance, background, conduct following the crime, and - finally - the circumstances under which he’d committed it. The letter went on to say that the results of the study would be available in four to six weeks.

Fielder allowed himself a smile. Maybe, he dared to think, the momentum was getting ready to shift once more.

DOWN IN ALBANY, Hillary Munson and Lois Miller sang carols as they trimmed a small Douglas fir, happy to be able to celebrate the holidays by themselves, without the well-intentioned assistance of family and friends. At the Dew Drop Inn in Cedar Falls, Pearson Gunn stared into the bottom of an empty pitcher, knowing it was time to head home, but wondering if perhaps he hadn’t missed something along the way. And up the block and around the corner, in the Ottawa County Jail, Jonathan Hamilton lay on his back in the half-light of his cell, trying his best to recall a time and a place that kept slipping farther and farther into the distance.

BY THE SECOND week of January, Judge Summerhouse had ruled on the defense’s motions. He decided that the evidence presented to the grand jury had been legally sufficient; he ordered pre-trial hearings into the admissibility of the physical evidence seized, and the statements made by the defendant; and he declined to compel the prosecution to turn over more documents than those which the statute required. There would be no change of venue and no additional jury challenges. And there certainly wasn’t going to be a different judge.

The case was adjourned to the third week of February.

A week later, a large manila envelope marked PERSONAL AND CONFIDENTIAL arrived in the mail at Matt Fielder’s cabin. For a moment, Fielder thought he might have ordered something risque from a mail-order catalog. Then he remembered. He tore open the envelope and found a 200-page bound report bearing an impressive title.

Catchy, it wasn’t. But it soon became apparent that the people down at the National Jury Research Institute had done their homework. They’d taken every single fact Fielder had given them in his proposal, fictionalized it slightly, and shaped it into a question that had in turn become part of a comprehensive survey. Researchers had then gone out into the field and interviewed some 400 citizens of Cascade County, Montana.

The results were nothing short of fascinating.

The subjects were presented with a case of a young man accused of brutally murdering an elderly family member he apparently loved. The evidence pointed overwhelmingly to his guilt. Initially, close to 83 percent of those interviewed believed the man deserved the death penalty. The reasons they cited in support of that belief included the vicious nature of the crime, the age of the victim, and the relationship between the defendant and the victim.

From that point, the NJRI researchers attempted to determine which additional factors, once revealed to the subjects, were likely to reduce the percentage of those favoring death, and which factors were likely to increase it.

Those shown a computer-altered photograph of Jonathan Hamilton were less inclined to execute him. Among those shown a black-and-white photo, the pro-death percentage dropped to 76 percent. But only 59 percent of those shown a color photo, depicting Jonathan’s blond hair, blue eyes, and handsome features, felt he should die.

Of that latter group, only 51 percent continued to advocate death when informed that the suspect was borderline retarded. Among those subjects, provided the additional fact that he stuttered badly when he spoke, the figure dropped to 48 percent. Informed that he was orphaned, only 42 percent held out for death.

Next, the subjects were told that while the defense was conceding the certainty that the young man had committed the crime, it was equally convinced that he’d done so while in the midst of a sleeplike trance. He had a long history of such trances, they were told, which could be documented in writing and fully confirmed by medical experts. Those same experts were satisfied that the young man had been totally powerless to control his actions while in the trance, and had awakened with absolutely no recollection of what he’d done. The group of subjects who still wanted to execute the young man now fell to 17 percent.

But one had to be careful, too.

The 42 percent who were anxious to execute the young man despite the fact that he was an orphan suddenly doubled, to a dangerous 83 percent, if the subjects were made aware of a rumor that the young man himself might have had something to do with causing the deaths of his parents, however accidentally and however long ago. And it climbed to over 90 percent if they learned that he’d once raped his sister, had continued to have sex with her thereafter, and had fathered her illegitimate child.

The lessons were all too clear to Matt Fielder. Not only could he go public with the sleepwalking defense, but he
had
to, if Jonathan was to have a fighting chance at trial. The deck was too stacked against him, as things stood. Get the story out, and the public perception would swing in Jonathan’s favor. At the same time, he’d have to steer clear of the obvious pitfalls - the origin of the fire, and the relationship Jonathan had carried on with Jennifer.

Two questions immediately crossed Fielder’s mind. First, could that be done? Could the helpful part of the story be put out there while the dangerous part was safely contained? And second, if it could, what was the best way to do it?

But all he had to do to find out was to read on. The NJRI questioners had anticipated both of Fielder’s concerns. They’d determined, by asking follow-up questions, that if the sleep-trance information came directly from the defense camp, only 44 percent of the public was likely to believe it. Furthermore, a footnote cautioned him, an intense grilling would no doubt follow the revelation, and matters like the fire and Jennifer’s disappearance might have to be addressed.

On the other hand, if the information came from some other source, the defense probably wouldn’t be subjected to such scrutiny, or at least wouldn’t have to respond in detail. At the same time, the results themselves would be far more dramatic. If the story got out through a leak, for example, through “an anonymous source close to the case, but identified with neither the defense nor the prosecution,” the number of believers rose from 44 to 78 percent. And, in case you really wanted to dream, if you could somehow manage to make it appear that the story came from the prosecution, either directly or in the form of a leak, the figure jumped to an astounding 96 percent!

Before doing anything else, Matt Fielder sat down at his computer and composed a love letter to Allie Newhart, Graham Taylor, and the rest of the staff at the NJRI. Then he picked up the phone and got Hillary Munson and Pearson Gunn on a conference call.

“We need to meet,” he told them. “Tomorrow.”

ONE OF THE THINGS that seems to draw lawyers to criminal-defense work is the lack of paperwork the practice tends to generate. In comparison to corporate, tax, real estate, personal injury, and other types of civil work, the average criminal case file is wafer thin.

But that rule seems to gradually apply less and less as one moves up the ladder of seriousness in terms of the crime charged. By the time you get to major felonies, the wafer has expanded some, and it isn’t unusual to have a few inch-thick files in your drawer. Move up to homicides, and you’ll see some two- and three-inchers, even before trial, and not counting transcripts from earlier proceedings. Take on a capital case, and you can forget about the file drawer altogether; you’re going to have to head to the copy room and start collecting empty cartons.

The night before meeting with Munson and Gunn, Fielder went through his entire file on Jonathan Hamilton’s case - or rather, his cartons. He went over everything, with the aim of organizing it in preparation for the next day’s meeting. This he did, creating files with titles like LEGAL PAPERS, SCIENTIFIC REPORTS, PROSECUTION WITNESSES, DEFENSE WITNESSES, and NEW CLIPPINGS, and filling them with whatever belonged under the headings. In the process, he reread almost every document he refiled. He didn’t start out meaning to do that; it just seemed to turn out that way.

He reread the original complaint and the indictment; his own motion papers and Cavanaugh’s response; the autopsy protocol, and the toxicology and serology reports; the blood, fingerprint, footprint, hair, and fiber comparisons; the DNA results; Jonathan’s old school records and medical files; his psychiatric and psychological evaluations; Hillary Munson’s entire mitigation folder; and the few items Pearson Gunn reluctantly had committed to paper, highlights of interviews with Klaus and Elna Armbrust, Bass McClure, P. J. and Jennifer Hamilton, and Sue Ellen Blodgett. He even tried to decipher Gunn’s coded scribblings of rumors he’d picked up from a confidential source - a shadowy figure he referred to only as CS-1, but who seemed to know a great deal about what was going on in the prosecution’s camp.

Fielder’s fourth-grade teacher was a tall, thin, gray-haired woman named Katherine Sweeny. To this day, he remembered two things about her. The first was that she came from Watertown, a fact imprinted in Fielder’s mind ever since the day she’d written it on the blackboard during science class as “H
2
O-town” The second was her credo: “If you really want to learn something,” she’d always told the class, “write it down.”

To this day, Matt Fielder writes it down. He can’t help himself; it’s as if Miss Sweeny is still standing behind him, peering over his shoulder.

So, as he reread everything in Jonathan Hamilton’s files, Fielder wrote things down. But, because he also wanted to get some sleep that night, he limited what he wrote to those things he didn’t understand, or had questions about, or wanted to look into a bit more deeply. He ended up with a page and a half of notes, which became the last thing he looked at before turning in. As he studied it, only three items bothered him. The first two were from Pearson Gunn’s list of “Things to Think About.”

First, why was it that no fingerprints had been lifted from the knife? Surely the state police investigators realized they’d discovered the murder weapon as soon as they’d unwrapped the hunting knife from the bloody towel found in Jonathan’s vanity cabinet. How could they possibly have been so sloppy in their handling of it? But then again, Fielder had seen poor police work like that before. He’d won more than his share of cases - cases where defendants almost certainly had been guilty - because cops had screwed up the physical evidence. Maybe that should be his approach in this case. Maybe it was a mistake for him to concede that Jonathan was the killer. But then again, was a conservative, upstate New York jury really going buy into a mishandling-of-the-evidence defense? This wasn’t southern California, after all.

Second, what was this business about only six of the seven hairs from the crime scene matching Jonathan’s? Wasn’t six out of seven pretty good? Perhaps the seventh hair was simply broken off and, therefore, missing a follicle, so that it contained no DNA material for comparison. Or perhaps it had belonged to one of the victims, or to Mrs. Armbrust (who probably made up the bed every day), or even to one of the investigators who’d been at the scene. Not much to go on, there.

Then there was something in Hillary Munson’s report of her interview with Sue Ellen Blodgett. Fielder was every bit as excited about Sue Ellen’s contribution to the defense as Hillary was, particularly the 1989 letter in which Jennifer had mentioned Jonathan’s sleepwalking. But something about the letter bothered Fielder. In it, Jennifer had said she was enclosing photos of Troy. Yet according to Hillary’s report, there’d been only
one
photo in the envelope when Hillary opened it.

Fielder looked at the clock and saw that it was almost three in the morning. He realized he’d reached the point where he was truly grasping at straws. He put another log in the stove, a piece of dry, unsplit oak, a good all-nighter. Then he flicked off the lights.

“LOOK AT THESE STATISTICS!” Hillary Munson exclaimed.
“Seventy-eight percent
will believe us.”

“Ninety-six percent,” added Gunn, “if it comes from the DA.”

The vote had been swift and unanimous. Both Munson and Gunn agreed that, given the numbers the NJRI study had come up with, the defense needed to get the story of Jonathan’s sleepwalking defense out to the public as soon as possible.

“Hillary,” said Fielder, “I want you to alert both Dr. Goldstein and Dr. Litwiller that we’re going to do this. Make sure they know that if anyone contacts them, all they’re to do is to confirm that they’ve interviewed Jonathan. And not a word about the fire, the rape, or any of that stuff.”

“You got it,” Hillary said. “How are you going to do this? A press conference?”

“I don’t know.” It was the one thing Fielder hadn’t figured out yet. He
hated
press conferences and tended to look down on lawyers who tried their cases in the media. Still, he knew the time had come for him to get over his aversion. His client’s life might depend upon it.

Gunn spoke up. “Why don’t you give me a day or two to think about that?” he said. “I might be able to come with something.”

As grateful as Fielder was for the reprieve, he knew time was running out on them. He agreed to hold off three days, but that was all. If Gunn couldn’t figure out a way to do it within that time, he’d call a press conference.

How do you even do that?
Fielder wondered.

* * *

THE FOLLOWING DAY, Fielder checked in with Kevin Doyle. He wanted to thank Doyle for putting him together with the people at NJRI and to tell him he was getting ready to air his defense in public.

“Go for it!” Doyle has always been a big believer in what he likes to call the “unified theory of defense” in capital cases. He preaches that you can’t go through the motions of insisting your client’s factually innocent, and then - once he’d been convicted, and the penalty phase had begun - suddenly switch horses and start telling the same jury, “Yes, he did it, but he was high at the time, and he had a really tough childhood.” According to Doyle (and almost everyone else who does this work), you’ve got to put your money on one horse, and leave it there.