Mental State, page 13
“I don’t, should I?”
“Well, they turned over every leaf and looked under every stone in researching these guys. Susan Christensen’s husband had some shady real estate deals that she couldn’t distance herself from; Richard Fong was thought to be too soft on crime—one of the killers he let go because he excluded evidence killed someone the day he was set free. I think it was a little girl. The cops didn’t dot their i’s or cross their t’s, so it was legit. But still. There were more stories like this. Everyone had a weakness of one kind or another that the team was uncomfortable with.”
He knew that she knew the stories more or less, but the look on her face suggested that hearing Mike tell them made her feel better.
“The president started to get frustrated. The clock was ticking to get a nominee confirmed for the upcoming term. The entire Fair America plan is being challenged, and we lost several of the cases in the courts of appeals. This means with a deadlocked Supreme Court—four of ours, four of theirs—the lower court rulings would most likely stand. And you know what this means, Sylvia. It means millions of Americans will lose access to cheap, quality health care; it means retirement will be less secure and that Wall Street will continue to earn profits they don’t deserve; it means regulation of the environment, working conditions, bank risk taking, and a whole host of other areas will be reduced or even eliminated; it means…do I have to go on?”
“I know all this. You don’t have to read me the talking points. I get MSNBC at my house. What I don’t know and would like to know is why we are risking this all for him?”
“Well, I was getting to that. As I said, the president was worried we wouldn’t get someone in time to hear these cases, so she pressed her team for a name. Javier Aldeanueva over at Justice threw Pham’s name into the ring. It wasn’t a crazy choice. I guess Javier knew him from some work they did on voting rights and immigration. We all knew Pham was solid as they come on the merits. Plus, an Asian-American justice would be a huge win for the country and for the president. We’d lock up even more of the growing Asian-American vote. The vetting was pretty clean relative to the other candidates. So I call him up and tell him to come to the White House to meet the president. I still remember the meeting. I thought the two of them were going to head up to the residence for some extra-curricular activities they got on so well. Judge Pham said and did everything like a pro, and halfway through, I was completely sure the president would choose him. Especially with the clock ticking.”
“Then what, Mike?”
“Then the judge dropped a bomb. He told the president that the only thing she should be aware of is that he had, you know, something in his past that might be a problem if it came up. He doubted it would…come up, that is. It happened four decades ago and the only other person who knew about it wasn’t likely to talk. I’m sure you can guess who that is.”
“Alex Johnson.”
“Alex Johnson.”
Sylvia got up and started pacing.
“Well, apparently our good friend Professor Johnson is the only person who was privy to the particular facts, but Pham said he was certain he wouldn’t sing. First, it was apparently pretty embarrassing for Johnson, so he wouldn’t want the world to know; and, second, he wouldn’t be credible, since he was a known opponent of the president and Judge Pham.”
“So what happened? I’m not seeing where this is going.” While he was talking, she’d made her way back over to the marble side table where he was sitting.
“Well, Bob’s team did their due diligence, and the guy comes up pretty freakin’ clean, especially compared with our other options. He had no money problems, no drugs, no angry ex-wives, no professional missteps. The guy is a saint, pretty much. With the clock running out, the president smitten with the guy, and him being a homerun on the merits, the next thing I know I’m sitting in the Rose Garden watching him being announced as our nominee. I wouldn’t have picked him, but I didn’t get seventy million votes, she did. I told the president it was a risk, but she took the chance. I don’t leave anything to chance, so I had some of Bob’s guys start running the what-ifs and the backup plans. If Johnson decided to talk, we couldn’t be caught flat-footed. So we developed a series of plans, several of which required extensive planning and a couple of which have been deployed. Of course, if the president knew Johnson was going to sing, she would never have picked this guy. But at the point we learned that he would, our fate was tied to Pham.”
“How’d you…”
“Let me finish.”
“Okay, sorry,” she said meekly.
“Once we learned Johnson was going to the press, we had no choice. If we cast Pham overboard, the bloggers and right-wing websites would never have accepted a cooked-up story about spending more time with his family or the like. They would have dug, found the truth, and no one would have believed we didn’t know the story. The truth would have come out, and the president would have been tarnished by his past. Heck, even if we successfully played the fool and threw Pham overboard, the political winds would nevertheless have changed. Our next nominee would have been much less reliable on the merits. At that point, with two nominees in the can, we would have been at the whim of a bunch of fence-sitting senators. Our whole agenda would be in peril. So, you can see the problem we faced—we didn’t make the bed, but we had to lie in it, and the people who would suffer if we didn’t solve this problem were hard-working Americans, struggling Americans. We just couldn’t let that happen.”
Sylvia could see the events unfolding as he spoke. She could visualize the anxious meetings and the screaming matches, the plotting and the scheming. She imagined herself in their shoes and wondered whether she would have made the same calls. The argument was one every tyrant in history used but that was because it made sense and described a lot of human behavior: we sometimes have to sacrifice one to save many. Soldiers sometimes have to fall on a grenade.
“How’d you know Alex was going to spill the beans? I read his prepared remarks, and they didn’t say anything about skeletons in Pham’s closet—in fact, just the opposite; it sounded like Pham’s mom wrote it.”
“It is my job to know things that no one else knows.” Schafer tried not to make it sound condescending, but he couldn’t. “You don’t need to know how I knew. It is better for you, for me, and for the country that you don’t. Trust me.”
There was a long silence. Sylvia leaned forward and tried several times to formulate a response, but she couldn’t think of anything to say. She wanted to hire Superman to spin the globe backwards to turn back time and undo all the damage done. As she saw it, her life was ruined. There was no way the story wouldn’t eventually come out.
Sylvia Ostergaard looked across the marble table at the man she’d loved since the first day of law school. He’d ruined her life, along with who knew how many others. He’d sacrificed Alex and Marcus for the greater good. The trolley problem comes to life, she thought. She remembered thinking that problem through for the first time with Mike in the common room of Hastings Hall too many years ago to count.
“What would you do,” she could hear Professor Mueller intone, “if you saw an out-of-control trolley headed toward twenty people standing on the track, all of whom will be killed, and you could throw a switch and divert the trolley onto another track, where only one person is certain to be killed?”
“Flip the switch! Of course,” was the first answer out of the gate. Most of her class, nodded along, although some rumblings of disagreement could be heard too.
“But wouldn’t that make you a murderer? You flip a switch, and someone dies. Sounds like pre-meditated murder to me.”
An eager 1L, Ostergaard couldn’t remember who, pushed back.
“But not acting would be worse. Once you find yourself in that position, the question isn’t whether you are going to participate in death, but just how many deaths are going to happen.”
“Interesting.” Professor Mueller had them right where he wanted them. “Try this one: a patient comes into the ER with a sore throat, and the doctor knows that there are twenty people waiting in the ICU for organs, all of whom will die if they don’t get them today. The doctor can kill the patient and save twenty lives. Should she do it?”
“That’s a different case, I think.” The answer was unsure.
“Why is it different?”
The Socratic dialogue went on like this for an hour. She remembered some seeing a difference between acts and omissions. Others worried about slippery slope problems: Mueller asked if it made a difference if there were only two on the other track instead of twenty? Then he varied the facts about the people: What if the one person is a baby and the twenty people are all in their nineties—should it be the number of lives or the number of life years saved that mattered? What if the one person is Mozart or Shakespeare and the twenty people all have Down syndrome?
This was all blood in the water for the sharks of her 1L class at Harvard, and the conversations and debates spilled into the halls and long into the night. She remembers sitting on a ratty couch, looking at awe as Mike Schafer, the handsomest boy she’d ever seen, spin his arguments and tales like a master Persian weaver. She couldn’t remember what side he took in those late-night sessions, but it was the side she believed. Looking across at him now, she could see he hadn’t changed at all. And maybe she hadn’t either. She felt like a pretender then, and she felt like a tool now.
She stared at him for a long time. Then something changed. She knew that she didn’t believe him this time. The decision to sacrifice Alex’s life and Marcus’s life and who knows who else’s life was a decision she regretted being a part of. Law school hypotheticals are one thing, but taking a life, ruining a life, all for the sake of what you think is good policy was just wrong. A surge of disgust rose up in her guts like magma searching for a way out. She was thankful her parents were dead, because what she now had to do would ruin them.
Sylvia Ostergaard stood up, straightened her skirt, and ran her hands through her graying hair. She reached out her hand, as one would to a stranger, stiff at the elbow, and said goodbye to Mike Schafer for the last time.
“Good to see you, Mike. I wish things had been different.”
“About this or about something else?”
“Both.”
“Me too.” He lied.
They walked out together. He peeled off to the Suburban waiting to take him to Gary International Airport and a quick G5 ride back to the White House. She carried her jurisprudence textbook under her arm and watched him go.
Out on Lake Shore Drive headed south toward Gary, Mike Schafer sent the president another email. It read: Sylvia Plath. The meaning was clear, but the way forward was not. Schafer put down his phone, hoping he wouldn’t have to find it.
CHAPTER 25
May 2015
Kiawah Island, South Carolina
On a long wooden dock that jutted out into the Kiawah River, Royce stood surrounded by Jenny and his girls, Claire, her children, and other family. He was holding Claire’s hand with one hand and an urn containing his brother’s ashes in the other. Jenny had brought them all back together. She had been the balm Claire needed to soothe her anger. A gentle plea to bring the children to Kiawah, close to the bosom of the family, worked magic. That Alex had been murdered, had not been selfish, and that Royce had caught his killer helped. The Chicago Johnsons would never be fully integrated with the family, but on this night, they were one.
The sun was setting over the marsh that the river created on the landside of Kiawah Island, and the night was cool and comfortable. They planned the ceremony at dusk because it was Alex’s favorite time of day. The clinking of boat masts and the chirps of bugs in the marsh mixed with the wind rushing through the sweet grass to give the coming night a serenity broken only by gentle sobs of the mourners.
Royce and Claire raised the urn together and turned it over. The wind took the ashes and spread them over marsh grass, into the deeper water of the Kiawah River, and out toward the oyster beds on the bluff. As the family turned to watch them scatter, they all could see the plants and animals that Alex would nourish—herons and osprey fishing in the shallows, alligators lurking below the muddy water. Tips of shells could be seen from an oyster bed the collective family had harvested more times than anyone could remember.
Royce handed the empty urn to Claire and turned toward the family. He hadn’t planned to say anything, and he wasn’t a storyteller, but felt something needed to be said. Claire gave a gentle smile and said, “Goodbye, Alex. We will miss you.”
The family left Rhett’s Bluff holding each other against the chill of the darkening night and their own grief and fears.
CHAPTER 26
Jenny turned off her Kindle reading device, put it on the nightstand, and rolled over toward her husband. He was lying on his back, eyes glued on the ceiling. She curled in next to him, letting his warmth sweep over and envelop her. She breathed him in and nuzzled into the deepest part of his neck. If they had not just scattered Alex to the wind, she would have kissed him, signaling her willingness. But not tonight. Even Royce wouldn’t be interested tonight. No, tonight she was pretty sure he needed her to just lie next to him so he could feel alive and safe. She wanted him to relax enough so he could fall asleep and start again tomorrow.
But after a few moments, she realized it wasn’t working. He was still staring at the popcorn ceiling of the hotel room, hardly blinking. Jenny wanted to help him, but didn’t know a way in.
“It was a beautiful ceremony,” she said.
He looked at her without moving his head but said nothing.
Jenny stood up and went to the bathroom. She splashed water on her face and looked deeply into her reflection and through to Royce, who was on the other side of the mirror. Now that the ceremony was over, and the family saw him as a hero, he should be riding high.
As she started to brush her teeth, she shouted through the wall, her voice muffled by the brush and the paste, “I still can’t believe he was murdered over the grade in a class. I mean, two lives ended over something so…what’s the word…trivial, that’s what Alex would say. Trivial.” She peeked around the corner, but saw Royce lying motionless, still looking up at the ceiling.
“Why’d he do it? I mean, why kill him? Why not, I don’t know, just make him suffer some way—slash his tires or beat him up or spread some rumors about him on Facebook? Murder’s a bit…extreme, don’t you think?”
Royce sat up and scooted to the edge of the bed. He needed to snap out of it. He also needed to talk about it with someone. Crazy theories, forensic clues, intuitions, and testimonies had to be checked and double checked by multiple investigators, none of them with a personal attachment to the case. Definitely not by the brother of the victim. Ideally this would have been taken care of before the arrest but, if it had to be with his wife in a hotel room while Marcus was in jail awaiting trial, then so be it.
“Criminals are irrational. I don’t know why he took that route. Dumb.”
“Do you really want to talk about the case?”
“You brought it up. Do you?”
“I’m interested in what you do. This is the only case I’ve ever known about. It’s my window into your world.”
“Quite a window.”
“Yeah.”
“Should we go for a walk? The kids will be okay.” The girls were in the adjoining room, the television playing to four sleeping faces.
Without answering, Jenny pulled on some sweats. Royce put on his jeans and slipped into his loafers. They were out by the marsh in moments, walking alone along the waters. They walked in silence along the estuary of the Kiawah River, almost as far as the Vanderhorst Plantation. Standing in ankle-deep pine straw among loblolly pines dancing in the wind, Jenny turned and gazed at him.
“Have you ever killed anyone at work?”
“I shot my weapon at a criminal for the first time that day. At Marcus.”
She froze.
“I missed on purpose.”
She kissed his shoulder. There were more questions, but she wanted him to lead. They walked back silently to the inn and strode up the stairs at the back that led to a large wraparound porch.
“Why does he make it look like a suicide?” It was an off-hand remark, but it went off like a bomb.
Royce almost missed a step. “Obviously to throw off the cops. Right? He’s a smart guy, he’s not going to get caught.”
She shrugged. They climbed the rest of the steps and took a seat on a porch swing. She thought about reaching for his hand but pushed off the floor with her feet to make them swing slowly together.
“Sure,” she finally responded, “at one level I get it. But, then again, it doesn’t seem that a law student could do this.” She paused, waiting to see if Royce bit. “I mean, how many murderers make it look like suicide? Can’t be very many, and the ones that do are probably more professional than…than students at Rockefeller.”
They stared out at the marsh, swinging in silence for a minute.
“I guess that question never really…I didn’t ask him why.”
“Alex was a huge guy, and this kid, well, I only saw him on the news, but he seemed short and slight, more point guard than center. Assuming he gets in the front door, how does he make that shot happen so it looks like suicide?”
“There was an upward trajectory to the shot…” He stopped the swing with his feet.
She continued, “You’ve seen the photos.” She shuddered at even the thought. “Thankfully, I haven’t. But that would be quite a shot. Would he be able to pull that off? The entry wound must have had some signs that it was a close-range shot.”
