Flat Lake in Winter (19 page)

THE ANSWER, IT turned out, was not quite so mysterious as Fielder first suspected. Or so he learned on the first of two full days spent holed up at the Cedar Falls Free Library. He actually hadn’t intended to start his reading so soon. He’d figured on taking a day off for tree-felling and log-splitting, activities that let his body take over for his brain, and served to rejuvenate him and remind him why he’d fled the city and moved up to the mountains.

But he hadn’t counted on the rain.

An unusually dry August and September had suddenly turned into a wet October. The day after his meeting with Gunn and Munson at Lake George, Fielder had awakened to a freezing rain. By nine, it had changed to a steady downpour. The radio told him it was here to stay for a while, and a look at his own barometer had confirmed the prediction. Operating a wet chainsaw wasn’t Matt Fielder’s idea of a good time, any more than swinging a twelve-pound sledgehammer at a rain-slicked wedge.

So, the library it was.

According to the scientific literature, nearly 1 percent of the adult population is said to suffer from some form of sleepwalking or “night terrors.” Most instances occur during the deeper, “slow-wave” portions of sleep, typically Stage Three or Four. Both children and adults may suffer from the condition. It is not to be confused with nightmares, which are simply a type of dreaming and more often take place during the earlier, first and second stages of sleep. In dream sleep - often called REM sleep, for the rapid eye movements that characterize the continued functioning of a limited number of the body’s smaller muscles - the larger muscles are literally paralyzed, and gross motor functions are shut down; hence, the individual is unable to talk, walk, or otherwise move about.

But during non-REM sleep (or in those rare cases of persons suffering from a condition known as REM sleep behavior disorder), tests indicate that the potential for full locomotion is there. The recent use of a technique called polysomnography - the recording, by electrodes, of brain waves and muscle activity, and the mapping of the interaction between the two - confirms that a subject can actually get up and walk about, thus becoming a
somnambulist
, one who, in the very truest sense, can be said to be a “sleepwalker.” The same individual is fully capable of running, jumping, talking, kicking, throwing punches, wielding a knife, aiming and firing a gun, and engaging in all sorts of other physical activity - and all the while, recordings of his brain waves clearly establish that he is asleep.

Fielder found the literature full of dramatic cases, some of them merely anecdotal, but others carefully and clinically documented. There was, for example, the tale of a retired detective recovering from a nervous disorder, who was asked to assist in a case of an apparently motiveless murder on a beach in southern France, only to realize from a unique four-toed footprint left in the sand that it was he himself who had committed the crime, while in the throes of an episode of sleepwalking.

Or the story of a man, by all accounts quite happily married, who chased his wife from their bed in the middle of the night, caught up with her, stabbed her repeatedly as she lay in the middle of the street, and then - to the horror of onlookers - smashed her head against the pavement, killing her.

Or the twenty-four-year-old Toronto man who arose one night and, still asleep, drove his car fourteen miles to the home of his in-laws, whom he reportedly loved deeply. Upon arriving, he savagely beat his mother-in-law with a tire iron and then stabbed her to death, before attempting to kill his father-in-law as well. Next he drove to the police station, where for the first time he noticed his severely cut hands, and told them he thought he’d just killed some people.

Or the sixty-three-year-old Jewish refugee who, dreaming that Gestapo agents were breaking into his home in Cleveland, Ohio, got up in his sleep and fired a shotgun into the living room, killing his wife of thirty-five years.

The stories went on and on, each more riveting than the one before it. Fielder had heard once that although you could hypnotize a person, you couldn’t make him commit some horrible act under hypnosis that he wouldn’t normally commit. He learned now that there were no such restraints placed upon the sleepwalker. Each of the cases he read dealt with individuals who were non-aggressive, and even gentle in their waking states, but who became aggressive and violent during their sleepwalking.

By the end of a day’s reading, Fielder was convinced that the phenomenon was every bit as real as the chair he was sitting in or the books that lay in front of him. He’d learned terms like “sleep-related violence,” “non-insane automatism,” “sleep apnea,” and “psychomotor epilepsy.” He had twenty pages of notes on case histories, polysomnography studies, and other scientific data. He had statistics quantifying disorders by age, gender, education, and profession.

But while the experts were virtually unanimous in their acceptance of the phenomenon, there were disagreements when it came to the subject of causation. There were, to be sure, a number of clues that emerged from the studies. The vast majority of violent sleepwalkers were men. Typically they had irregular sleep patterns. Many were shift workers, whose schedules were constantly changing, requiring them to readjust their hours of sleep. Often they’d been through some recent traumatic or unsettling experience, such as the loss of a loved one, a marriage, or a job. A number of them had previously experienced other, less dramatic, sleep disorders. Some had resorted to the increased use of caffeine, nicotine, and other drugs. Many, when tested, demonstrated a greatly reduced ability to be roused during their deep-sleep stages.

To Fielder, that last finding seemed paradoxical at first. Why, he’d asked himself, should an unusually sound sleeper be prone to sleepwalking? Shouldn’t the exact opposite be true? But as he’d read on, he realized that that was exactly the point, at least in the minds of many of the researchers: It is precisely that individual, the one who has the greatest difficulty waking up, who is most prone to sleepwalking, because his motor functions are so much more easily aroused than his consciousness.

What kind of a sleeper, he wondered, was Jonathan Hamilton?

FIELDER FOLLOWED UP his two days at the Cedar Falls Free Library with two more at the library of the Syracuse University Law School. There he pored through hundreds of text books, case reports, and law-review articles, in search of the courts’ reaction to sleepwalking when raised as a defense in a criminal prosecution. He read about
mens rea,
about criminal intent and responsibility, about voluntariness, insanity, and all sorts of mental diseases and defects. He read cases involving crimes committed by people with dementia, epilepsy, alcoholism, drug intoxication, and posttraumatic stress disorder. He read about a man who’d strangled his children to death, convinced they were devils bent on destroying the world. He even came across two of the incidents he’d discovered in his earlier reading: The Toronto man who’d killed his mother-in-law had been acquitted by a jury; the Cleveland man hadn’t been so lucky.

On the afternoon of the second day, he found what seemed to be an early case of documented sleepwalking violence. An article written back in 1951 by a law professor named Norval Morris, and intriguingly titled “Somnambulistic Homicide: Ghosts, Spiders, and North Koreans,” led him to a previously unreported case from Victoria, British Columbia, captioned
The King v. Cogdon.
It seemed that a year earlier, one Mrs. Cogdon had been charged with murdering her nineteen-year-old daughter Pat, an only child she’d been deeply attached to. The night before the killing, she’d dreamed that spiders were in the house and were crawling over her daughter. She’d risen from the bed she shared with her husband, gone into Pat’s room, and awakened to find herself violently brushing off her daughter’s face.

The next day Mrs. Cogdon recounted the incident to her doctor, along with a previous dream in which ghosts had come to take her daughter away. The doctor prescribed a sedative for her. That night, after participating in a conversation regarding the Korean War, she fell asleep. She dreamed that North Korean soldiers had invaded the house and that one of them was in her daughter’s room, attacking Pat at that very moment. She jumped up, got an ax from the woodpile, ran to Pat’s room, and swung the ax twice, striking her daughter on the head and killing her.

All she could remember afterward was the dream, and running from her daughter’s room to the home of her sister next door, where she collapsed, crying, “I think I’ve hurt Patty.”

At the trial, Mrs. Cogdon told her story, which the prosecution did not seriously contest. Her lawyers also called to the stand her doctor, as well as a psychiatrist and a psychologist. They all agreed she was not psychotic, and insanity was never raised as a defense. Nevertheless, Mrs. Cogdon was acquitted, the jury apparently concluding that the act of killing had not been, at least in their judgment, her act at all.

But Fielder knew that - however interesting Professor Morris’s account might be - officially unreported cases seldom make converts of judges. He needed to find the seminal case, the earliest recorded pronouncement that stood for the proposition that one who kills while asleep cannot be held criminally responsible by the state.

His search took him another eight hours, to nearly midnight, by which time his eyes could barely focus, his muscles ached from sitting, and his stomach growled for fuel. It took him to a tiny alcove in the sub-basement level, to an ancient, dust-covered volume, one of a leather-bound set of
Queen’s Bench Reports
, containing opinions collected from courts that had sat centuries ago, and an ocean away.

But find it he did.

Regina v. Hawkins,
it was called.

Fielder had to wade through a lot of fine print and old English mumble-jumble before he reached the point where the writer had finally gotten down to the facts and holding of the case.

Fielder had to beg the library’s security guard for change to feed the copy machine. It was already past closing time, and the poor fellow wanted nothing more than to lock up the building for the night. But in the end, the bloodshot eyes and the desperate look on Fielder’s face, combined with his frantic insistence that it was a matter of life and death, finally caused the guard to relent.

By the time Fielder reached his cabin, it was going on three o’clock in the morning, and the rain was changing over to a heavy, wet sleet. He pulled his boots off and collapsed onto his couch, too tired to undress, too weary to make it to the bedroom. His head still spun from shootings, stabbings, bludgeonings, and ax murders; from ghosts, spiders, Gestapo agents, and North Korean invaders.

By the time he’d awake it would be afternoon, almost twelve hours later, and the ground and trees would be covered with the season’s first snowfall. His clothes would smell, his body would ache from stiffness and hunger, and he’d have a scratchy three-day stubble of a beard.

But he’d also have his case.

“DO YOU GET CBS up there in the woods?”

“Some days I don’t even get my toaster,” Fielder answered. “Who is this?”

“Laura Held. Turn on your TV.”

He did as he was told. Laura Held was now one of Kevin Doyle’s assistants at the Capital Defender’s Office down in New York City. As the set warmed up - it was nineteen years old - Fielder found the right channel, just in time to see a close-up of Gil Cavanaugh.

“-bring us up on any other developments in the case?” an interviewer was asking.

“Yes, I can,” said Cavanaugh. He looked even better in makeup, Fielder decided. “I can tell you that senior members of my investigation team have tracked down the last wills and testaments of the murder victims.” Here he paused for dramatic effect.

“And?”

“And the sole living beneficiary,” he announced, “to all those millions, just happens to be the defendant - though, I might add to the taxpayers, not if
I
can do anything about it.”

The camera drew back, and a split screen added the image of the interviewer, a pretty woman sitting in a studio somewhere. “And there you have it, Mike. Gil Cavanaugh, the Ottawa County District Attorney, confirming that DNA testing has positively established Jonathan Hamilton’s presence at the scene of his grandparents’ double murder. And further, that it was Hamilton himself who stood to benefit financially from the deaths. Back to you in the studio.”

“Back to the drawing board?” Laura asked Fielder.

“Did I ever tell you about the time he called me a Jew lawyer?”

“No. Down here we call that redundant.”

They shared a laugh.

“Are you sure you wouldn’t like associate counsel on this one, Matt?”

“Who do you have in mind?”

“No one. There isn’t anyone qualified within 100 miles of you.”

“Thanks for asking,” he said.

The DNA results Cavanaugh was referring to, would turn out to be based upon analysis of the blood sample taken from Jonathan, according to Pearson Gunn’s confidential source. Six of the hairs collected at the scene of the killings had yielded genetic material which, when enhanced by PCR technology, had proven identical to Jonathan’s. According to the tables, the odds of that being a mere coincidence were exactly 1 in 31,468,225.

But Matt Fielder took it all in stride. As far as he was concerned, the case was no longer a whodunnit, if ever it had been. It was now a full-fledged psychodrama. And whatever physical evidence and DNA statistics Cavanaugh might have on his side, the defense had its own ace in the hole: Young Thomas Hawkins, of Bedfordshire.

HILLARY MUNSON REPORTED that she’d prepared a short list of psychiatrists and psychologists to examine Jonathan and testify about sleepwalking. They went over the list, discussing each expert’s credentials, temperament, and availability, before settling on one of each. To Fielder, the experience reminded him of ordering from a Chinese menu; one from column A, one from column B.

He drew up orders and took them to Judge Summerhouse, who gave him the expected hard time.

“This is a fraud on the taxpayers,” the judge said. “No wonder the governor wants to cut your rates.”

Fielder smiled. There was a school of thought among death-penalty defense lawyers, that you hoped judges
wouldn’t
authorize funds for experts, thereby creating grounds for successful appeals in otherwise hopeless cases. But Fielder wasn’t interested in creating appellate issues at this point; he wanted the experts. So his smile was actually a bluff, a theatrical dare to Judge Summerhouse to turn him down and risk reversible error.

The judge signed the orders.

PEARSON GUNN CHECKED with a couple of the corrections officers at the county jail and even got a peek at the records. There’d been no reports of sleepwalking or other unusual behavior on Jonathan Hamilton’s part. By all accounts, however, he did seem an unusually sound sleeper, who often slept through the bells announcing mealtimes, or the clamoring of other inmates.

Gunn re-interviewed the Armbrusts, who had nothing to offer on the subject of Jonathan’s sleepwalking. Either they weren’t aware of it or weren’t saying. But Klaus Armbrust did confirm Jennifer’s account of special locks he himself had fitted to the doors of the main house. He showed Gunn his handiwork, large bolts that could only be opened with keys from the inside. “They were something of a problem the night of the fire,” Klaus confided. “I had to break a window to get in and pull the boy out. The parents, they were asleep upstairs. I couldn’t get to them. Too much smoke.”

A phone hookup with Jonathan’s brother in Atlanta proved to be little help. P. J. had either left home too soon, or had been otherwise occupied, to be aware of any episodes of sleepwalking. “But, hey,” P. J. said cheerfully, “you want me to come say it, I’ll do it. Things are pretty dull around here, you know. I could sure use a change of scenery.”

THE SNOW MELTED and disappeared, but the early Adirondack frost had caused many of the leaves to drop, and now threatened pumpkin patches and winter squash vines. Halloween came and went, and with it October and, for all practical purposes, fall. There was frost on the cabin windows each morning, and up in the mountains, nighttime temperatures were already dipping into the teens.

With no time to cut and split the trees he’d marked that summer, Fielder was compelled to order a cord of firewood. It killed him to do it, but already he was walking around the cabin in a heavy wool sweater, while still burning upward of a dozen logs a night. Both the
Old Farmer’s Almanac
and the meteorologists with their high-tech radar, were calling for an unusually cold winter, with plenty of snow to make up for last year’s drought. So far, they were looking pretty smart.

Fielder turned to his motion papers. He sat himself down at his computer and composed the usual list of requests - to dismiss the indictment because the evidence presented to the grand jury might have been insufficient (always a hard thing for a defense attorney to do, inasmuch as he’s prohibited by law from observing the proceedings); to throw out the physical evidence taken from Jonathan and seized from his cottage, because there hadn’t been probable cause to arrest him or to get the search warrant; to suppress the statements he’d supposedly made to Deke Stanton, because they flowed from the illegal arrest, and also because Jonathan had never knowingly and intelligently waived his constitutional right to silence; and to compel the prosecution to provide the defense with pre-trial discovery: inspections of physical evidence; copies of autopsy reports, scientific tests, search-warrant papers, property vouchers, photographs, and the like; and any information the prosecution had that suggested the defendant’s innocence (and was willing to own up to).

Then Fielder expanded his wish list, so as to include things that he knew Judge Summerhouse would routinely turn down in an ordinary case, but would have to think twice about in a death prosecution. He wanted copies of all police reports, not on the eve of trial, but now. He wanted the investigators’ rough notes, lists of witnesses, transcripts of grand-jury testimony. He wanted a change of venue to another county, to avoid the prejudice of Gil Cavanaugh’s press-conference pronouncements. He wanted additional jury challenges. He wanted Judge Summerhouse to recuse himself, because of his close relationship with Cavanaugh. And so on.

The Capital Defender’s Office preaches that pushing the envelope is an absolute virtue here, and bashfulness a liability. Judges, who hate seeing even their least significant convictions reversed, will occasionally give you more than you may be entitled to in a death case, in order to avoid the pitfall of giving you less than some appellate court decides they should have. So it becomes that rarest of all things for the defense, a win-win situation.
When in doubt,
goes the prevailing wisdom,
ask for it.
You’ll either get it, or you’ll have created a possible point for appeal. And as everyone knows, it’s appeals that keep inmates alive on death row. Which, for better or for worse, is the job of the capital defender.

WITH HER ASSIGNMENT of locating psychiatrists and psychologists completed, Hillary Munson turned her efforts to trying to locate Jennifer’s former friend, Sue Ellen Simms. The task seemed a simple enough one, particularly in comparison to the recent hunts for P. J. Hamilton and Jennifer herself. And this time, Hillary had a major head start: She already knew Sue Ellen existed.

It had been Fielder who insisted Sue Ellen be found. To his way of thinking, she could supply valuable corroboration to Jonathan’s history of sleepwalking. Early on in his Legal Aid days, Fielder had represented a defendant accused of a brutal assault. The man’s claim was that at the time of the incident, he’d been under the influence of phencyclidine, a powerful hallucinogenic drug better known by its street names - PCP, angel dust, or simply “dust.” Fielder had found a psychiatrist at Kings County Hospital who was an expert in pharmacology. He’d testified that a sufficient amount of PCP definitely could render an individual incapable of forming criminal intent. The prosecutor had tried in vain to discredit him on cross-examination.

Nevertheless, the jurors had convicted the defendant in short order. Talking to them afterward, Fielder had learned they’d fully accepted the doctor’s testimony. It was the defendant they doubted; they simply rejected his assertion that he’d taken the drug the day of the incident.

Once bitten, twice shy, Fielder had come away from the experience determined never to make the same mistake. Now, almost twenty years later, he wanted
proof
that Jonathan had been in a somnambulistic state the night of the killings. And, knowing he’d probably never come up with that, he figured the next best thing was to find an independent witness who could at least confirm that Jonathan had been known to walk in his sleep on occasion. From there, he felt the bizarre circumstances of the crime itself would do the rest - the absence of a compelling motive (the existence of the wills notwithstanding), the excessive nature of the wounds inflicted upon the victims, and Jonathan’s confused and compliant demeanor afterward.

Sue Ellen Simms had been a gawky, unattractive girl, at least according to a yearbook photo Hillary Munson dug up at the high-school library. Just the kind of girl the shy, too-tall Jennifer Hamilton would have sought out as a friend. Both girls sang in the school choir and were members of the cooking club; neither, it seemed, had been voted most likely to do much of anything after graduation.

And if Sue Ellen had gone on to exceed expectations, she apparently hadn’t selected world travel as her venue. A visit to the home of her parents in Oak Forest revealed that while Sue Ellen now had a husband, a new last name, and three daughters of her own, she was still living right there in Ottawa County, in the town of Silver Falls.

Armed with an address and a phone number, Hillary thanked the Simms for their help and drove off.
First Matt Fielder gets himself laid,
she smiled to herself.
Then he gets his sleepwalking theory. Now he’s going to get his corroborating witness.

Things were definitely looking a little bit brighter in the defense camp.

PEARSON GUNN KNEW just about everybody there was to know in Ottawa County. One of those he knew was Donovan McNamara. McNamara was a heavy-equipment operator who was equally adept at leveling a house with a bulldozer, dredging out a pond with a backhoe, raising a roof with a crane, or plucking a cat from a treetop with a cherry picker. Like Gunn, Donnie was a regular at the Dew Drop Inn in Cedar Falls. The two men’s taste in beverages differed only slightly: While Gunn had long extolled the virtues of Adirondack Amber Ale, Donnie was partial to Molson’s Ice. But on this particular Friday evening, Gunn’s interest in his drinking buddy transcended such differences. For, in addition to driving heavy equipment by day, Donnie McNamara also drove the pumper for the Cedar Falls Volunteer Rescue Company at night. And it had been that very outfit which, some eight and a half years earlier, had responded to the call from the Hamilton estate near Flat Lake, and had later assisted in conducting the investigation into the cause of the fire.

Gunn waited until he was well into his second pitcher to bring up the subject. By that time, Donnie was clutching his sixth Molson Ice. It was easy to keep track, because Donnie liked to keep the empties on the table as a reminder to not overdo it. When he’d hit double figures, he’d quit. Or at least slow down.

“Remember that fire years ago, up at the Hamilton place?” Gunn asked him, in as casual a voice as he could manage.

“Yup,

“Donnie belched. “‘Ninety-one, it musta been. Or ‘ninety-two.”

“Something like that.” Actually, it had been 1989, but Gunn didn’t argue the point.

“Smoky sonafabitch,” Donnie recalled.

“Yeah. Were you in on the investigation?”

“Me? No.”

“Remember who was?”

“How come?”

“Nothin’ special,” Gunn said. “Got a client who’d like to know.”

“How bad does he need to know?”

Gunn had the private investigator’s sixth sense for knowing a shakedown when he heard one. He reached for his wallet, and took a peek inside, noticed he was a little on the light side.