The jurors audibly gasped. Dark then re-ran the video in slow motion. The pumpkins might as well be flesh, or worse, they might as well be brains.
Dark then paused dramatically. “What would happen if those darts hit human flesh?”
“Objection!” I yelled. “He is not a medical expert.”
“The witness can give a lay opinion,” Dark said, not missing a beat. “He was active duty in a combat zone, he has seen people brains get blown up right in front of him.”
“I’ll allow the question.”
“It would be lethal,” Korn said.
“When Mr. Arnold discharged the darts, did he intend to kill people?”
“Objection. Lack of personal knowledge!” I said.
“He can give a lay opinion,” said the judge. When the judge said it in that deep, mellifluous voice, it sounded as if God was issuing the ruling.
“Yes, he did,” Korn said. “Beyond a reasonable doubt. Beyond any doubt. But for the grace of God and Pistol Pat Chino, we would have had a massacre at Caldera.”
“It was an accident,” Marley said to me, his New York accent much stronger with all the stress. “You all know it! They weren’t real darts! Everyone could see they had balls on the tips. The darts wouldn’t have gone off if you didn’t grab it! If it’s an accident, it can’t be aggravated assault, can it?”
The judge pointed at Dark to ask the obvious next question, and Dark knew exactly what to ask. “Was it an accident when he discharged the darts?”
“No, it was not an accident. It was deliberate.”
“Why do you say that?”
“Because he fired the darts before I reached him, as if he wanted to kill everyone before I could stop him.”
I covered Marley’s mouth to stop him from yelling. Dark asked a few more questions and then passed the witness to me. I looked down at my table. I had no notes on the first page of the yellow legal pad. I turned the page. Marley must have written down the three words on the second page: chain of custody. I went to the podium and looked directly at the dean. I had stipulated to everything that had been introduced, and Dean Damon Korn had said beyond a reasonable doubt that my son had intent to attempt to murder three people and then aggravatedly assault ten more. What should I do now? I took one of those martial arts deep breaths to prepare for combat and then noticed that Dark had left one of the projectiles on the podium.
“Are these the actual darts that were fired?” I asked the dean.
“I don’t know,” he replied.
“How did you get these?”
“They were found in the auditorium in Old Main by our staff and turned over to the authorities.”
“And where have they been since you picked them up?”
“I have no idea.”
“Do you know if they’ve been altered in any way?” I asked.
“Objection!” Dark shouted. “Calls for speculation.”
“I’ll rephrase,” I said. “Have these darts been in your possession the entire time?”
“No,” said Korn, “they have not.”
“So, you have no personal knowledge whether anyone altered the tips or not, do you?”
“No, I do not.”
On instinct, I walked to the prosecution’s side table, the evidence table. I found what I was looking for: three soft rubber balls with holes on one side. I put them on the darts, one by one.
“So, if these rubber balls were on the tip of the dart, they wouldn’t be lethal, would they?”
“They could take someone’s eye out.”
I felt the rubber balls. At three inches across, they were too big to take out an eye. They would probably bounce off someone’s nose without leaving a mark. “With a soft rubber ball like these, I don’t think so.”
“Is that a question?”
I ignored him and kept pressing. “And pointing a device downward with these rubber balls on the tip, that would be acting inappropriately, but not necessarily aggravated assault, would it?”
“I don’t know. I thought those were real darts just now. I was genuinely afraid for my life. I’m sure it was reasonable for the people in the audience to be afraid for their life.”
That sounded like he had rehearsed the answer with Dark.
“You rehearsed your answer, didn’t you?” I asked.
“I practiced a few times, yes,” he said. “But that doesn’t mean I’m not telling the truth.”
I was stymied until I looked at my pad and flipped the page. There was fresh ink in Marley’s handwriting below the words “chain of custody.” The word was “safety.” That was odd. Marley was still at the table. How could he write the word on the pad from there?
Chapter 22
Cratercross Examination
I kept Marley’s word in mind as I walked to the cratercross on the evidence table. I picked it up. It was much lighter than expected. Had the others pretended to strain under its weight? I prayed there was a safety on it. Sure enough, a small but sturdy lock of wood was there on top of the bowstrings. It was even labeled “safety” in bright red letters.
“This is a safety?” I asked, hoping he would answer in the affirmative.
“I guess so,” Korn said.
“It was on? I mean, the safety was engaged the entire duration of the incident?”
“I don’t know. The darts still fired.”
“Let’s take that in a minute. If the safety was on the entire time, then my client didn’t intend to kill anyone?”
“But the device still went off,” he said.
I was stopped dead in my tracks there at the evidence table. Korn was right about that. I needed to figure out my next question. I went back to the podium. On the yellow pad, I had noticed where Marley had written “intervening causation.” Those words were now underlined. Had I underlined those words before I went up to the podium? I must have, since Marley was still at the table.
“Could the discharge of the weapon have been your fault?” I asked Korn.
“Objection!” Dark yelled. “Lack of foundation.”
“I’ll rephrase the question,” I said, as a line of cross-examination quickly developed in my mind. “Dean Korn, you’re saying the device went off before you reached my client?”
“Yes.”
“But the safety, this thing here, was still on, right?”
“I guess so.”
“A safety that would have prevented the discharge?”
“I guess so.”
“Is it possible that the accident happened after you wrestled with him and broke the device?”
“I don’t know.”
“Yes or no, is it possible?”
“Yes, it is possible.”
I looked down on the pad and turned to the next page. The pad now had the words aimed at floor! no video! scribbled on the top line. Again, I hadn’t seen Marley write anything on this page.
“Dean Korn, is it possible that my client kept the device pointed at the floor, even after you tried to take it away from him?”
“I don’t remember.”
“It was your testimony on direct that my client aimed it at the crowd, correct?”
“Yes.”
“And the device with a safety on it discharged before you got there?”
“Yes.”
“But isn’t it possible, that the device would not have gone off had you not tried to wrestle the device away from the boy and broke the safety on the device?”
“I don’t know.”
“There is no video of that is there?” I had just asked a question, I didn’t know the answer to. I was operating on faith.
“I don’t believe we videotaped the rehearsal.”
“So then, you want us to take your word that he aimed directly at members of the crowd, is that correct?”
&
nbsp; “I don’t really remember.”
“Once again, I’m asking whether it’s possible that my client aimed downward, as opposed to aiming at the crowd, and the safety broke after you wrestled with him, and the darts accidentally bounced?”
He shook his head. “I don’t know.”
“Please answer the question.”
“I suppose so.”
“If these had been lethal darts those darts would have stuck into the floor instead of bouncing, correct?”
“I guess so.”
“And aiming a cratercross downward, and having a dart with a ball at the end, and then having someone mess with the device so it accidentally discharges the darts with balls on them, discharges those safe darts onto the floor, well, that’s merely acting like an asshole and not attempted murder, is it?"
Dark objected as I expected she would.
“I withdraw the question,” I said.
And then the obvious point hit me, well like a dart. “Wait a second, the darts had already gone off, so when he supposedly pointed the cratercross at the people there were no darts still in it, were there?”
I felt a moment of triumph, but Korn smiled as if I had opened a trap door.
“You see that clear box over there?” Korn pointed to a clear plastic box on the table. Why hadn’t I noticed it before? “Remember, I had fallen off the stage and he was alone up there. He still had more darts he could use to kill more people and those darts didn’t have any rubber balls on the tips.”
I picked up my pad and sat down.
Dark went back up and pointed to the clear plastic box “So he brought up this clear plastic box with him when he did his act?”
“He did.”
“And during the scuffle, you had fallen off the stage?’
“I’m not as graceful as I used to be,” the dean said with a smile.
“So he was all alone up there on stage?”
“He was.”
“So he could open the plastic box and reload in a matter of seconds and fire into the crowd?”
“He could.”
“Do you think that was his intent to kill or at the very least to threaten?”
“Yes.”
“And why do you say that?”
I started to rise and object to the witness testifying to an ultimate issue, but the judge lifted his hand. “I’ll allow the witness to answer.”
“Because the defendant wrote in his diary that he wanted to kill us all. He was just too clumsy and stupid to realize that he still had the safety on and balls on the tips. If he had another few seconds up on stage, he would have fixed the device and made it deadly. It would have been worse than Columbine or Parkland. I know that for a fact.”
The word “fact” echoed through the small courtroom.
“Isn’t there something else?”
Korn clearly had forgotten his script. Dark had typewritten notes and was saving something for her re-direct.
“Permission to refresh the witness’s recollection, your honor?” Dark asked.
She handed him a piece of paper, which must have been his prior statement.
“Oh, sorry,” Korn said with a smile. It was as if he had forgotten to say, “thank you” to someone who held a door open for him, and decided to turn around. “He pointed the device at people and said, ‘I’m going to kill each and every one of you.’”
Dark sat down after letting those words echo. It had been a brilliant tactical decision to wait to her redirect to get those chilling words before the jury.
“Do something,” Marley said.
“May I ask one question?” I asked the judge. Re-cross-examination by defense counsel was at the direction of the judge.
“Just one,” the judge said.
“You had to be reminded by counsel that my client threatened to kill your entire school?”
“Well, a lot was going on that day,” he said.
I looked into his eyes, and he avoided my gaze. I knew he was lying. At that moment, I knew in my heart that my son was innocent. How do I convince the twelve people on the jury of that?
Without a break, Dark next called the psychiatrist Dr. Mary Ann Romero. Dr. Romero had done a psychiatric evaluation on my very first client, Jesus Villalobos, Chuy’s dad. Now she had done an evaluation on my son. Dr. Romero had scarcely aged over the years, even though she had done that first evaluation more than a lifetime ago, before I had even met Luna.
Dark first had Dr. Romero talk about all the evaluations she had done, and the intersections with my life and Luna’s life, among others. She was so good, so practiced, that I could imagine Dr. Romero doing evaluations a hundred years from now. Dark had no problem qualifying Romero as an expert witness, which meant that the doctor could testify about ultimate issues. Romero could make a pronouncement on whether she thought Marley was guilty.
Jane Dark introduced Marley’s diary into evidence, again noting that it had already been stipulated by me. I must have stipulated to everything. The diary had Star Wars ships on the plastic cover and was identical to my diary when I was a kid.
I gingerly opened the banker’s box without the rubber band flying off into space. I had indeed worked the case after all, there was even a trial notebook. I turned to the relevant pages with a copy of pages of the scribbled document.
While Dr. Romero read from the diary, Dark had images of each page already displayed on the Mondopad at several times their normal size.
Dr. Romero read a few passages verbatim. “I don’t know how much longer I can handle this! I want to take this whole school down! After what they did to me, I want them all dead, dead, dead!”
“That was his final entry, was it not?” Dark asked. “On page 239.”
“It was.”
“In your expert opinion, what does that statement mean to you regarding his intent to kill?”
“It means to me that he had the intent to kill everyone at the school.”
“So, in your expert opinion, when the boy known as Cruiser Arnold said, ‘I’m going to kill you,’ he indeed meant that he wanted to kill everybody, correct?”
“In my expert opinion, this is clearly a case where the defendant would be guilty of several counts of attempted murder.”
“And what about the aggravated assaults with a deadly weapon?”
“Guilty as charged. All ten times.”
Dark then passed the witness to me.
“Ask what happened to me the night before,” Marley whispered to me. “It’s in the diary.”
I walked up and picked up the actual diary on the exhibit table. It was surprisingly heavy, heavier than the cratercross, and I nearly dropped it. I flipped toward one of the last pages with writing, page 235, and handed it to Dr. Romero. I couldn’t read the chicken scratch, so I was praying she could decipher it. And, I prayed that once she deciphered it, the chicken-scratch would describe a hazing.
“Could you kindly read that to the jury, Dr. Romero?”
She had no trouble reading chicken scratch. In her lilting Northern New Mexico accent, Dr. Romero read how Caldera Academy had a tradition of Hell Week for new students, and it was similar to what pledges endured at fraternities. Just like in A Few Good Men, they deemed the hazing a “Code Red.” In several entries, Marley talked about his fear of getting “Code Red-ed.” I didn’t know if that was a phrase, but it should have been.
The first day of Hell Week, Hell Day, no one seemed to bother him. “I made it through Hell Day!” Dr. Romero read.
“Please read the next entry,” I said. “On the page after it.”
The doctor read page 236, and the entry described how Marley was really excited. “I have a date. “Counselor says that I can go off campus after curfew!”
Normally this would be against the rules, leaving campus, but his counselor, the resident adviso
r had said it was no big deal, as long as he was back by midnight.
There was a blank space and some remnants of a torn page where page 237 should have been. I wondered who had ripped it. And, there was no page 238 as it was on the back of page 237.
“What happened to page 237?” I asked her.
“I don’t know,” Dr. Romero said. “That’s the condition I received the diary in, with page 237 missing.”
She flipped to the last page in the diary, page 239. “Do you want me to read about where your client made the death threat?” she asked.
“No, we’ve already talked about that.” I sat down next to Marley, dejected.
“What was I looking for?” I asked.
“The missing page, where it reveals that I got hazed really badly and the school knew about it. It’s all on page 237. Ms. Castaneda ripped the page from the diary, crumpled it up and threw it out the window!”
“Why did you tell me to look for it, if you knew it wasn’t there?”
“Laying a foundation,” he said.
Some foundation. The judge looked at me.
Dark rose to re-direct. She had left page 239 on the screen on the Mondopad, and I hadn’t bothered to adjust the screen. I might as well have thrown her a softball that she could hit out of the park. “Could you scroll down to the final entry on the screen, page 239?” she asked.
With a wave of her hand, Dark further enlarged page 239 on the Mondopad screen. “I will get my revenge!” Dr. Romero read out loud. “I will kill them all!”
“Could revenge involve shooting innocent students with a cratercross?” Dark asked.
“It could,” said the doctor.
“Pass the witness.”
“Any re-cross, Mr. Shepard?”
“You need to get page 237,” Marley said.
I didn’t bother to stand up, unless Marley learned a new magic trick, page 237 wasn’t going to reappear. “No re-cross, your honor.”
Rattlesnake & Son Page 20