Journal of the Dead (21 page)

Two days later, as Raffi waited for news back in Pennsylvania, Mitchell and Boyne drove back to Carlsbad to hear Judge Forbes’s response to their motion.

“The Court acknowledges that this case presents unique factual circumstances that have never been seen before in the State of New Mexico or in other jurisdictions,” he began. “The Defendant first asks this Court to allow the use of temporary insanity as a complete defense. New Mexico does not recognize the use of temporary insanity as a defense, for the insanity defense in New Mexico requires that the insanity be of a prolonged nature….”

It had taken him only twenty seconds to knock down their first request. So far, he was sticking to the letter of the law. They were not yet discouraged, however, because they both knew that the temporary insanity request was a wild pitch anyway. Half the reason they had put it in the motion in the first place was to give him something to shoot down so that by the time he got to their second request—involuntary intoxication—he might be a bit more open-minded. Boyne held her breath.

“The Defendant appears to concede that New Mexico does not allow for a temporary insanity instruction,” he continued, “and therefore asks this Court to adopt an instruction on involuntary intoxication based on the Defendant’s level of dehydration. The Court does not dispute the Defendant’s extensive research on involuntary intoxication, but the essential question is whether the facts of this particular case allow for an involuntary intoxication instruction, regardless of whether it is a complete defense or not. In order to answer the fundamental question in this Motion, the Court needs to decipher exactly what is meant by the term ‘intoxication.’”

Mitchell’s and Boyne’s hearts sank as Judge Forbes quoted the definition of intoxication from Black’s
Law Dictionary,
then the one from the state’s penal code, then another from a state supreme court case. Ingestion. Ingestion. Ingestion.

“All of these definitions of intoxication call for a substance being ingested or introduced into the body. It is clear that there was no intoxication in this case. A quote from the Defendant’s Motion on page sixteen is useful in the Court’s analysis. ‘The leap from using ingesting of a substance to form the basis of involuntary intoxication to dehydration is a small one.’ The Court agrees that the Defendant’s argument is a ‘leap’ and is a leap, no matter how big or small, that this Court is not prepared to recognize.”

Les Williams was satisfied with judge’s ruling; it had been almost identical to his own response to Mitchell and Boyne’s motion. But he took no delight in the prospect of putting away a man for life for a crime whose intent he couldn’t be sure was evil. Back in November, after the murder investigation turned up nothing, he and Mitchell had talked about the possibility of things coming down a plea bargain. Now they quickly formalized one.

Mitchell explained the details to Raffi later that afternoon: If Raffi pled guilty to second-degree murder, Williams would allow him to retain his right to appeal Judge Forbes’s ruling on the involuntary intoxication motion. If Raffi took the deal, they’d go straight to a sentencing hearing, but it would by no means be a typical one. Judge Forbes was well aware of the unusual nature of this case, and he was prepared to hear extensive testimony and argument, far more than was typical during a sentencing hearing. The involuntary intoxication and temporary insanity defenses might not be admissible in a trial, but he and Boyne could certainly use them in a sentencing hearing. In effect, it would be very similar to a trial. Instead of persuading a jury to issue a not-guilty
verdict, they would try to persuade Judge Forbes to suspend or defer his sentence.

Raffi didn’t like the idea. In his mind, he had no choice but to give Dave the death he wanted in Rattlesnake Canyon, and conceding that it was criminal smacked of betrayal, to Dave, to himself, and to the truth of his intentions. Mitchell told him that he probably wouldn’t get the full fifteen years, but anything was possible. Judge Forbes had so far been unbending. And if he took the plea bargain, he would end up explaining the felony conviction for the rest of his life. How many people would understand? The journalist in Raffi knew that, however organic it had been for him, from the outside his story was outlandish. But there it was: if he didn’t take the plea, he would have to explain it to a jury anyway; if they didn’t believe him, he might get life in prison. Even if they did believe him, they could easily convict him on the principle of the law. A long incarceration would destroy his family. They would hurt even more than they hurt now.

He took the deal.

A
nyone watching the evening news in early May 2000 saw the live aerial footage: an immense ponderosa forest curtained in smoke, and rapidly disintegrating as one-hundred-foot-high trees ignited and vanished as fast as kindling in a campfire. By the middle of the week of May 8, the Cerro Grande blaze was ominously closing in on the town of Los Alamos, and the nation watched in excitement and dread as first one house, then whole blocks and neighborhoods were overrun by the blaze. Raffi Kodikian’s sentencing hearing, which took place the same week three hundred miles away in Carlsbad, didn’t stand a chance against that kind of drama. So it was that few outside of New Mexico ever heard his long-awaited testimony, or learned of the punishment handed out to him.

Raffi entered the courtroom shortly before nine. He looked nothing like the worn-out suspect from the mug shot. He had the obligatory courtroom haircut, close on the sides, slightly longer and stylishly choppy on top. He was wearing a black suit and a blue
shirt, what could have passed as wedding attire. Every eye in the audience was on him, scanning his face for signs of a hidden truth. Some say you can tell a man’s guilt by his eyes, but Kodikian’s must have been more like mirrors than windows: everybody saw something different. Murderous rage, ingenious deception, absolute compassion—his black irises gave back nothing, and in that nothing, individual opinions found their confirmation.

The courtroom had two columns of wooden church-style benches for the public that ran about ten rows deep. Hanging from thick crossbeams were six antique wrought-iron and stained-glass chandeliers, touches of the Old West that kept the audience in relative dimness compared to the courtroom’s well, which was awash in modern fluorescent lighting.

Since Kodikian had accepted the plea bargain, the jury box sat empty, but the audience was full of journalists. Reporters from the
Denver Post,
the AP, the
Albuquerque Journal,
and the Boston papers—the
Globe
and the
Herald
—were all there, along with Kyle Marksteiner, the reporter who had been covering the story for the
Carlsbad Current-Argus
since the day after Kodikian was arrested. It was the biggest herd of newspeople the town had ever seen. Judge Forbes had allowed a pool video camera to be present in the courtroom, and outside two white satellite trucks gleamed on the edge of the courthouse lawn, announcing the hoopla to the cars passing by on Canal Street.
Dateline, 20/20,
and
Inside Edition
were all on hand—each planned to air features on the case, and unbeknownst to any of the other reporters, one of them already had a scoop.

A week earlier, Raffi had given the only interview he’d give about the case to
20/20’s
Connie Chung, who flew out to New Mexico and met with Kodikian and his family in Mitchell’s office.

“It was his idea, he wanted to do it,” Mitchell said of Raffi’s decision to talk. In what would be one of the most intense interviews Chung ever conducted, Raffi brought a cameraman, and two of Mitchell’s secretaries, to tears. Chung herself was also deeply moved but reserved judgment.

“There were people who came to conclusions,” Chung said, “but I couldn’t. For thirty years I’ve trained myself to try and be objective. If I do have a bias, I bend over backwards the other way. If I have a thought or opinion, I bend the other way. I believed the sheriff when I heard his argument, then I believed Raffi when I heard him…. But I’m awful,” she said with an apologetic laugh. “I always believe the last person I talked to.”

Chung was off on another story by the time the hearing started, but the rest of the reporters filled the front rows on the right side of the gallery, clutching their notepads and speculating as to the identities of the people across the aisle, behind Kodikian. A dozen friends and family members had come to support him, and there was a general understanding that no one else was welcome over there. Over time, their collective vow not to speak to the media had hardened into something close to disdain, despite—or perhaps because of—the obvious irony of Kodikian himself being a journalist. Judge Forbes called the court to order, and asked Kodikian to approach the podium.

The judge was a methodical and careful man who fully believed that there was no better alternative to justice than a rigorous trial by jury. He knew that Kodikian’s punishment was one of the most difficult legal decisions in the history of the state and had no desire to make it on his own. As he explained the rights Kodikian was surrendering by pleading no contest to second-degree murder,
he emphasized the gravity of leaving his fate up to a single judge. When he was finished, he looked long and hard at Kodikian, almost as if expecting him to change his mind.

“Now that I have gone through those constitutional rights that you’re waiving … do you
still
want to continue in this no-contest plea?” he asked.

“My lawyer, Mr. Mitchell, has advised me that this would be the best path to take,” Kodikian said, hesitating to acknowledge his own complicity in the plea. Then, after the slightest pause, he quickly blurted out, “Yes, sir.”

Lance Mattson, the ranger who had found Kodikian on the afternoon of August 8, was the prosecution’s first witness. He took the stand in his ranger’s uniform and described how he had learned of the missing hikers, gone down into the canyon, and encountered Kodikian lying alone in the tent. He recalled Kodikian asking him for water and pointing to the pile of rocks where Coughlin’s body was buried, then described turning up the stone that revealed Coughlin’s shirt-covered face. As he told of treating Kodikian, and the conversation they had while in the canyon, Deputy District Attorney Les Williams narrowed in on what would be his main contention throughout the hearing—that Kodikian had been fully aware of his own actions.

“So what would you say his mental state was from the time that you found him to the point that we’re talking about right now?” Williams asked.

“Through my examinations and with my level of training I did feel he was dehydrated,” Mattson replied. “The only evidence to
give me any idea of mental state was whenever I asked a question Mr. Kodikian was slow in responding, like he was thinking about it. But every question I asked he produced an answer. ‘Where is your identification?’ He thought about it and produced it. He knew what I was saying and I knew exactly what he was saying.”

Williams finished with him a few minutes later, ending his examination by having Mattson recall Kodikian’s statements about how he and Coughlin had attempted to kill themselves, failing because their “knives were too dull.” After the prosecutor relinquished the podium, there was a sense among the reporters that the ranger’s testimony—filled with qualifiers and far more guarded than anyone had expected—had done more for the defense than for the prosecution.

Gary Mitchell took his time cross-examining the ranger. Addressing him by his first name, he used Mattson as an expert on the general features of the park, deferring to his backcountry knowledge. His informal, supportive tone seemed to bring the ranger into a more conversational mode, and soon Mitchell was homing in on the park’s policies.

“Now, as part of the preparation, or the availability of water at the National Park Service at Carlsbad, do they sell water there?” he asked the ranger.

“The concession there, the restaurant there, does sell water in small containers.”

“A dollar thirty-eight for a pint of water?”