Journal of the Dead (27 page)

“I think it’s clear from his testimony and from other testimony that he was not demented. He knew what he was doing. He knew he was killing his best friend. He did it on purpose to save his friend from pain and agony. This does not discount that this was a dreadful situation. It was awful, both the defendant and David were in great pain, and frankly, when he said he was without hope, based on what had happened so far, that was a reasonable conclusion. Because they had not been found, obviously they were not able to walk out anymore, so it was certainly reasonable for him to think that he was going to die and it was going to be painful. But the law says you do not kill another person. And the people from the park service who had dealt with numerous people who were lost and dying from dehydration say this is the only time that one person has killed another person in these situations.”

Pausing, Williams walked over to the evidence table and picked up the knife that Kodikian had used to kill Coughlin.

“As further evidence that he knew what he was doing, he said that they had a suicide pact and the only reason they didn’t complete it was that the knife wasn’t sharp enough. This
knife,”
he said, holding it up, “is sharp enough to cut your wrist. This knife is sharp enough to go through your chest. The real reason they didn’t commit suicide was they believe, as I said, where there’s life, there’s hope. And even though they intellectually thought they were going to die, they didn’t really want to kill themselves. When I said there’s life, there’s hope, the defendant thought that, too, because he did not kill himself after he killed his friend.

“It’s a hard thing that you have to do, because this defendant is
not an evil person. He’s not a bad person. But he did do a bad thing, and he did it purposefully and he did it knowingly. Actions speak louder than words. That’s why we can say he didn’t really feel there was no hope because he didn’t kill himself, too. Just as his actions speak louder than words, the court’s actions will also. We have responsibility in the law to look beyond this case to other cases where defendants may be in similar situations and may need to know you will not be forgiven for violating the law. You will not be forgiven for killing your friend. You are not to do it, period. Situational ethics do not apply. You do not get to murder anybody. You do not get to murder your friend. You do not get to mercy kill. That’s the law in the state of New Mexico and in almost every other state. This court must sentence this defendant severely, to teach people they may not place themselves above the law, whether they are a good person, whether they are a caring person, whatever. They must follow the law by not murdering.”

As Judge Forbes took in the prosecutor’s words, a look of hard shock set into his face, as if during all the testimony—all the theorizing, storytelling, and hairsplitting—he had forgotten that the onus of deciding punishment was his, and now it was staring him in the face. His eyes widened when Williams first mentioned the word “law,” and the prosecutor picked up on it: he had said it again and again with chastening redundancy, determined that Judge Forbes remember his decision had to be based not on his heart, but on that small, unbending word.

Peter Bigfoot, who had returned to his perch in the back of the courtroom, was all heart. He was so ruffled by Williams’s demand for a harsh sentence that halfway through he raised his right hand high above his head, as if to ask a question, and held it up throughout
most of Williams’s closing argument. The judge and everyone else ignored him, until he finally sat back down and seemed reluctantly to accept that this was not a classroom, and that no one was going to allow him to speak. Later he would explain: “I wanted to say that when you’re in a situation like that—dehydrated, with low blood sugar, sunburned, heat-exhausted, shocked by being lost, in excruciating pain from cactus poisoning—no human being can think straight under those conditions,” he said. “It is impossible to make rational decisions. You’d have to be superhuman. If a person has ever experienced these conditions, they should be compassionately judged.”

That, of course, was exactly the gist of what Gary Mitchell said (in many more words) in his own closing argument moments later.

“There’s a saying, Your Honor, that bad cases have a tendency to make bad law,” he began, and went into a soft-spoken, conversational spiel that included references to the Donner party, Jack Kevorkian, and even his own uncle, who had endured the Bataan Death March.

“I agree with Mr. Williams,” he said. “We don’t allow mercy killings in the state of New Mexico. But this is not a mercy killing in and of itself, this is not a Kevorkian-type case in which states struggle with a physician coming in and taking somebody’s life at the request of the patient. We’re not dealing with that; this isn’t the Rio Rancho case, in which [Kevorkian’s] assistant is being prosecuted for a similar type offense. And I say it’s not because this is not a situation in which, one, obviously Raffi’s not a physician. It’s not made with the intellectual capabilities and concentration and rationalization that physicians and patients make in those type cases. We have a young man who makes that decision based
upon the love of his best friend and upon the inability to rationalize what’s going on at the time. And in great pain and agony. Far removed from those types of cases.

“It is more analogous to those type of cases that we never see in courtrooms, that we never bring up, that we only learn about after decades have gone by and young men have become old men, and they tell them to their grandchildren. We only learn of these types of cases then. We only learn about them when somebody in the twilight of their years is writing a book about what they did in World War II or what they did in Vietnam. That’s where we learn about these things, and those types of cases are never brought before anybody because we understand as human beings that there are those types of situations in which we do what we think is best, not because we think about the law, not because we care about the law at the time, but because we care about our fellow man. And there is something higher than law that most of us believe.”

Mitchell wound up his argument by citing the fact that there had “not been a single cry from the victim’s family for some type of incarceration” and that the “deep compassion” of the people of the Southwest would allow them to understand if Raffi received a light sentence. He asked Judge Forbes to take into account that there had been no evil intent behind the killing. He asked for either a suspended or deferred sentence. And finally, he asked for the same thing that David Coughlin had allegedly asked for in the predawn gloom of Rattlesnake Canyon.

“We should receive mercy from the criminal justice system,” he said.

No one would have been surprised if Judge Forbes had spent a week hunkered in his chambers, reviewing the case, mulling over the angels and devils of every possible sentence. But he had made his mind up before the closing arguments had even begun. When the lawyers were through, he announced his sentence.

“Historically, sentencing has the components of rehabilitation and retribution. Crime, I think we all know, needs to be deterred. This deterrence can be of a general nature when a court’s concern is to discourage the general public from violating a law as a result of observing the sentence that is imposed against a person like you, Mr. Kodikian, and this high-profile set of circumstances and facts that challenge moral and legal reasoning. Specific deterrence, on the other hand, serves to deter you individually from violating the law in the future, and I find that it’s unlikely that Mr. Kodikian will find himself in the situation that we’ve heard about for the past two days. The improbability of a reoccurrence turns the court’s thoughts along a path of a consideration more of a general deterrence. A long period of incarceration, what the state has asked for—a severe sentence (and both attorneys have different views as to what punishment should be meted in this situation) … but long incarceration I think has been proved here to not be the solution. I believe that it’s predictable that Raffi does not pose a threat or danger to society.

“I do, however, think that Raffi Kodikian deserves to be punished for his violation of the law and the taking of the life of his friend, David Coughlin. Retribution in this court’s mind serves the very important and crucial purpose of preserving the rule of law that we all have to have for an orderly society…. Raffi Kodikian’s conduct in this situation caused the life of David Coughlin to end.
Mr. Coughlin was a particularly vulnerable victim, and the impact on his family is never and will never be forgotten by them. I do know that Raffi’s conduct was not a result of a sustained criminal intent. His character and attributes that I have heard and read about suggest that he’s not likely to reoffend. His mental condition, I do believe, contributed to his conduct, but I find that he had a conscious and rational understanding of what he did at the time that he murdered David Coughlin. Raffi’s remorse is genuine, I don’t question that.

“It is the court’s sentence that Raffi be sentenced to fifteen years in the corrections department of the state of New Mexico, and the execution of that sentence be suspended with the exception of twenty-four months.”

His gavel fell lightly to the block.

Raffi Kodikian accepted his sentence, but not without tears. He raised his hands to his face to hide them, but there are no private gestures in a courtroom. Some people said they were the sincere sobs of a man who truly regretted his act and feared what lay ahead; others wondered if they were tears of gratitude at having received such a light sentence. Perhaps they were both.

Raffi’s family and friends appeared, for the most part, relieved. The first three rows of the left side of the courtroom became a wave of hugs and lowering heads, sighs and groans, as if they were shaking off all the emotional exhaustion of the last nine months. Even though they had hoped beyond hope that he wouldn’t end up in prison, they knew it could have gone much worse.

Reactions in the rest of the courtroom were torn. None were as
starkly different or unexpected as those of two women, Sharene Brown, the court reporter, and Jane Smith, the bailiff. Brown spoke in a soft and chirpy voice filled with the hospitality of the Southwest. She came to court every day well made up and often in a dress, and was a picture of feminine warmth. “I couldn’t believe that’s all he got,” she said. “I thought he was lying through his teeth. I wasn’t emotional during his testimony, I was skeptical.” Smith, on the other hand, the court cop who called “all rise” in a deep, commanding voice and had even jokingly proclaimed herself a “cast-iron bitch” began crying uncontrollably after Forbes passed his sentence. “We’re not supposed to show any emotion,” she later said, “but it was really hard to keep it together. He shouldn’t have done it, but I sure didn’t want him to get prison time. I don’t think he should be punished at all.” It had been Raffi’s testimony, she explained, that had caused her iron to rust.

A few minutes later, Kodikian, Mitchell, and Boyne walked upstairs to the courthouse’s third floor, where they held a short press conference. “I still feel I did the right thing,” Raffi told the reporters. “I feel that anybody in my position who would turn their back on their friend in that position wouldn’t be deserving of coming out of that canyon in the first place.”

“How do you feel about the sentence?” one reporter asked him.

“This is a life sentence,” he said. “I will spend the rest of my life trying to justify my actions.”

Gary Mitchell initially told the reporters he didn’t know whether or not they’d appeal the two-year sentence—a right Raffi had reserved under the plea agreement—but it was clear he had said it more out of sympathy for his client than out of any intention to do so. The appeals process, he knew, could very well take
longer than the sentence itself. Later on, away from the reporters, he was clearly elated. “This was a fair sentence,” he said. “I was expecting about five years. Raffi was fortunate in many ways. He was fortunate to get this judge, and he was fortunate to get this prosecutor, a man more interested in seeing justice done than in nailing heads to the wall. He was fortunate to get out of that canyon alive.”