Defending Jacob(61)

“I’m sorry I yelled.”

Jacob sniffed. I could not tell what that sniff signaled, whether he was near tears or angry with me. But it struck something in me and made me sentimental. I remembered Baby Jake, our little precious beautiful blond wide-eyed baby. That this boy, this child-man, was one and the same person as that baby—it came to me like a new idea, something I had never known. The baby did not become the boy; the baby was the boy, the same creature, unchanged at the core. This was the very baby I had held in my arms.

I sat down on the bed beside him and laid my hand on his bare shoulder. “I’m sorry I yelled. I shouldn’t lose my temper. I’m just trying to look out for you. You know that, don’t you?”

“I’m going back to sleep.”

“Okay.”

“Just leave me alone.”

“Okay.”

“Okay, so go away.”

I nodded, rubbed his shoulder a few times as if I could press the thought into him through his skin, I love you, but he lay there like a stone and I stood up to leave.

The shape in the bed said, “There’s nothing wrong with me. And I know exactly what they’re going to do to me. I don’t need you to tell me.”

“I know, Jake. I know.”

And then, with the bravado and heedlessness of a child, he fell asleep.





18 | The Murder Gene, Redux


One Tuesday morning near summer’s end, Laurie and I sat in Dr. Vogel’s office for our weekly meeting under the eyes of those howling African masks. The session had not begun—we were still settling ourselves in our familiar chairs, making ritualistic comments about the warm weather outside, Laurie shivering a little in the air-conditioning—when the doctor announced, “Andy, I have to tell you, I think this is going to be a difficult hour for you.”

“Yeah? Why is that?”

“We need to talk about some of the biological issues involved in this case, the genetics.” She hesitated. Dr. Vogel studiously maintained an impassive expression during our sessions, presumably to keep her own emotions from influencing ours. But this time her mouth and jaw clenched visibly. “And I need to take a DNA sample from you. It’s just a quick swab of your mouth. No needles, nothing intrusive. I just use a sterile Q-tip to wipe your gums and take a sample of your saliva.”

“A DNA sample? You’ve got to be kidding me. I thought we were going to exclude all that.”

“Andy, look, I’m a doctor, not a lawyer; I can’t tell you what’s going to be allowed into evidence or what will be excluded. That’s between you and Jonathan. What I can tell you is that behavioral genetics—and by that I mean the science of how behavior is influenced by our genes—cuts two ways. The prosecution may want to introduce this sort of evidence to show that Jacob is violent by nature, a born killer, because obviously it makes it more likely that Jacob committed this murder. But we may want to introduce it too. If it gets to the point where the DA has likely proven Jacob actually killed this boy—I’m saying if; I’m not predicting, I’m not saying this is what I believe, just if—then we may want to bring in the genetic evidence as mitigation.”

Laurie said, “Mitigation?”

I explained, “To reduce it from first-degree homicide to second or manslaughter.”

Laurie winced. The technical terms were discouraging, a reminder of how efficiently the system worked. A courthouse is a factory, sorting violence into a taxonomy of crimes, processing suspects into criminals.

I was discouraged too. The lawyer in me knew, instantly, the calculation Jonathan was making. Like a general preparing for battle, he was planning his fallback positions, a controlled tactical retreat.

I told my son’s mother in a gentle tone, “First-degree is life without parole. It’s a mandatory sentence. The judge has no discretion. With second-degree Jake would be parole-eligible in twenty years. He’d only be thirty-four. He’d still have a whole life ahead of him.”

“Jonathan has asked me to research the issue, to prepare for it, just in case. Laurie, I think the point, the easiest way to think of it, is this: the law punishes intentional crimes. It presumes every act is intentional, a product of free will. If you did it, it is assumed you meant to do it. The law is very unforgiving of ‘yes but’ defenses. Yes, but I had a hard childhood. Yes, but I have a mental disease. Yes, but I was drunk. Yes, but I was carried away by anger. If you commit a crime, the law will say you are guilty despite these things. But it will take them into account when it comes to the precise definition of the crime and when it comes to the sentence. At that point, anything that affects your free will—including a genetic predisposition to violence or low impulse control—at least theoretically can be taken into account.”

“It’s ridiculous,” I scoffed. “No jury would ever buy it. You’re going to tell them, ‘I killed a fourteen-year-old boy but let me go anyway’? Forget it. Not gonna happen.”

“We may not have a choice, Andy, if.”

“This is bullshit,” I told Dr. Vogel. “You’re gonna take a sample of my DNA? I’ve never hurt a fly.”

The doctor nodded. No reaction. A perfect shrink, she just sat there and let the words break over her like waves on a jetty because that was the way to keep me talking. Somewhere she had learned that if an interviewer remains silent, the interviewee will rush to fill the silence.