“You can’t lay a foundation for something that doesn’t exist,” I told Marley.
“You should have tried to ask her about it anyway,” Marley frowned, whispered to me, wary of the judge overhearing. “Would I get credit for time served on my fifty-seven years, or does that start fresh after they convict me?”
“Don’t worry,” I said. “I’ll save you. Somehow.”
“Will you be able to use the diary if I ever sue the school for hazing me?” Marley asked.
That was an odd thing to say, but he was correct. We did have a potential law suit against the school for intentional, or at least negligent infliction, of emotional distress. However, there was one problem with that thinking.
“You realize that if you are convicted of three counts of attempted murder and ten counts of aggravated assault with a deadly weapon, you can’t sue the school for shooting you, much less hazing you?” I asked him. “That’s what we call unclean hands.”
He was about to reply when there was a sound from outside the building. It sounded almost like a helicopter was landing on the roof.
The judge frowned. “As you know, they are renovating court computer systems all over the state. My staff just texted me that due to technical difficulties we have to continue this trial at another location.”
Another location? This was so weird. The sound of the machinery on the roof grew louder. “I’ve got a feeling that we’re not in Cruces anymore,” I said to Marley.
Chapter 23
T or C
The machinery outside the room hummed along smoothly, but we were now in the small Sierra County Courthouse, the courthouse where I had first met Marley. I knew this because when I blinked, we were in a much smaller courtroom. While the Las Cruces courtroom was dark, this one had white wallpaper that glowed as if lit from behind. I also couldn’t see the jurors on the other side of Dark’s table. That big pile of evidence, the cratercross, the darts, and half a dozen other carefully stacked banker boxes blocked the view. What else did Dark have in those boxes?
My single banker’s box was below our table, the rubber band back on it.
Oddly, Judge Brady, the judge from T or C, now presided over the trial and was already on the bench. “Thanks ladies and gentlemen,” he said. “Because of New Mexico Supreme Court mandated courthouse renovations, venue for the trial has been shifted here. As this is my courtroom, the judge from Las Cruces, Judge Most, has asked me to take care of proceedings for today, assuming of course that none of the parties have any issue with me doing so. I’ve carefully reviewed all the testimony and exhibits of the trial through the Shoftim system before court, so I’m good to go.”
I looked at Marley. “I like this judge,” he said. “He was the one who let me out of custody the first time.”
While it was unusual to switch judges for the day, this was a jury trial and not a bench one, and this judge was just the referee. The jurors ran the show, not the judge. Shaharazad was there, too, of course. Her hair had grown even longer, and now reached her waist. Once she was ready and we were on the record, Jane Dark had no objection to the new judge. Neither did we.
“Where is everyone?” Marley asked me softly. “Where’s Team Marley?”
"I don’t know,” I said. “Maybe they didn’t know that the court had been moved.”
Before I could call to check, the jurors filed in and court was in session.
“The Shoftim system has provided me with all testimony and shown me exactly where we are in the trial, so the state will call its next witness,” Judge Brady said.
Dark called the barracks “counselor” Edgar Ermey, to the stand. A counselor? This made this musclebound lunkhead in his purple blazer sound like a camp counselor and not a drill sergeant. While I had thought he was a marine, upon Dark’s questioning, Ermey revealed he, too, had served in the air force. His service had been over the hill from Las Cruces at Holloman Air Force Base. He wasn’t special forces, or a pilot, and hadn’t seen combat. He had served in logistics, a bookkeeping clerk in charge of ordering tools for the mechanics. He had worked at Holloman for three years, the last few months as a civilian employee, also in logistics. Then he left the service and came over to Caldera.
As a “counselor” he had a variety of duties on campus. He supervised the kids in their barracks, was an assistant wrestling coach, and worked in the infirmary. He never went near a classroom and didn’t even have a teaching credential and certainly had nothing related to counseling.
Dark asked a few preliminaries, then got to the interactions between Ermey and Marley.
“Did the defendant end up at the infirmary?’
“Yes, the morning after he broke curfew I took him to the infirmary as a precaution. He said he had been hazed.”
There was a brief mix-up about the dates on whether it occurred on which day. “It was weird, but the next morning, several graves were overturned at the old cemetery, and I reported that to the police as well.”
“Objection, relevance!” I said. “My client is not being charged with overturning graves.”
“Your honor, I was just offering the evidence of the overturned graves to refresh Mr. Ermey’s recollection.”
“I’ll allow the testimony that graves were overturned to refresh the witness’s recollection.”
When Dark cleared up the date, I realized that had been the time I had a burst of headaches. I remembered when I called the school, I was told that Marley had been taken to the infirmary and then released.
Dark then introduced a document from the infirmary stating that Marley had no injuries. “And what does it say at the bottom of the document?”
“No injuries. student narrative of incident not credible.”
“Ermey made that up about me not being credible!” Marley whispered. “I told them the truth.”
“How did the defendant act after his release from the infirmary?” Dark asked.
“Back when I was in the military we called it a ‘Section 8.’ Invariably, the kid who was weird to begin with just got weirder under stress.”
“Could you give us a specific incident?”
Before I could stand to object, Dark was ready. “Defense counsel already stipulated to the prior bad acts.”
Marley gave me a dirty look. Note to self, stop stipulating to everything!
Ermey continued, even before I could sit down. “Like he didn’t talk to anyone, but muttered to himself about revenge, and that he was going to kill everybody.”
“Were you there for the day of dress rehearsal?” Dark asked.
“Yeah, I was going to be part of a skit with some of the kids.”
“Was the defendant in that skit?”
“No. There wasn’t a part for him, as the script is the same one we do every year, and he was a last-minute addition to the barracks.”
Marley whispered into my ear. “Everyone in the whole barracks was in the skit, except me!”
Everyone in his dorm in a skit, except him? I really felt for my son. If the barracks had a softball team, he’d be playing Left Out.
“Mr. Ermey, tell me, what happened during the rehearsal?” Dark asked.
“Well, the defendant takes out the cratercross and he like totally fires it, straight at us, before the dean tries to take it away.”
"So, when Mr. Arnold discharged the weapon, you were genuinely afraid he was going to kill you?”
“Yes. It was reasonable for me to assume that he was going to kill me. The dart thing came right at me. I had to dive out of the way.”
Dark was good at painting a scene. She pointed the cratercross at Ermey. She pretended to fire it. She then walked toward him, carrying a dart, sans a rubber ball on the tip, with her right hand. The dart came inches from his forehead. On cue, he ducked as if the dart had just missed him.
“And you’re quite sure that the dart was f
ired before the dean reached the defendant?”
“I am.”
“What happened after the dean reached him?”
“They fought, and the dean fell off the stage. Alone up there, Cruiser said, ‘I’ll kill all of you, each and every one of you.’ It would have only taken him a second to load a few more darts. I remember that quite distinctly. But the dean was getting up again, so he just ran out the door, still holding the crossbow thing.”
The words were clearly rehearsed. Still, it was effective. I didn’t pay attention to Dark’s next question, as I was talking to Marley.
“You never said ‘I’m going to kill each and every one of you,’ did you?” I asked my son.
“I’m not stupid,” he said. “They’re all lying.”
How many times had I heard that from clients? Yet, Marley kept eye contact with me. He looked sincere to me, damn it.
During my brief conversation with Marley, Dark had sat down and suddenly I found myself up at the podium with only my yellow pad. I hoped Marley had written more notes on my pages.
How do I attack this Ermey’s credibility? He was no great brain, but he sounded as if he had memorized his answers and rehearsed every one with Dark. He probably had to go over them a million times, just like putting together his rifle in boot camp.
“You talked with the DA, right?” I asked. He seemed confused by the initials as if it meant something else on base. “This woman in red over here?”
“I did. I’m not very good at talking to groups that aren’t kids,” he said. “She told me what to say.”
“She told you what to say? That prosecutor over there?”
“I guess so.”
“Did you practice what you would say with her?”
“Yeah, kinda.”
“You’re sure the darts were fired before the dean reached my client on stage and not after?”
“Yes.”
“Are you sure?”
“Yes.”
“Even though the safety was on?”
“I don’t know,” he said.
Time to bang the intervening cause drum. “Isn’t it possible that the dean’s actions broke the safety and caused the discharge of the darts.”
“I guess so.”
“And you’re saying that after he broke away from the dean, while he was alone on stage, he would still have had a chance to reload the darts?”
“Yes.”
What the hell did I expect him to say? My notebook page now had code red! written in the middle of the page. Did I want to go into Marley’s motive? That could backfire and make him look worse, but I was cocky. I could be channeling Tom Cruise in A Few Good Men, but Ermey was no Jack Nicholson as the brave Colonel Jessup. He was more like Jack Nicholson as the Joker with his twisted grin.“You knew about the hazing, Hell Night number one?” I wasn’t going to call it a code red.
“It’s a part of our culture at the school,” Ermey said.
“Culture? Did you go to the school?” I remembered that Ermey had told the bully that when he went to school, no one would be such a lame ass.
Ermey gave a graduation date from Caldera back when it was Caldera Christian Military Institute.
“So, you personally hazed people back when you were in school?”
Ermey said nothing. Dark objected. I moved on.
“What happened that night? Hell Night number one?”
“Well, a girl asked Cruiser to go out with him, presumably to make out with him at the grave yard. Then right when he gets there, some boys come and leave him there in an open grave. Once the mark finally realizes that he’s been tricked, he walks back and then gets busted for a curfew violation. That’s it.”
“That’s it?”
“As far as I know.”
I knew he was lying. “Yet after he’s left at the cemetery he came into the barracks and you took him to the infirmary?”
“Yes, I worked there. It was just a precaution.” He pointed at the Mondopad. "See up there on the screen, it said he had no injuries and his story was not credible.”
I looked up at the image on the screen. The infirmary report was not signed by any doctor. Time to take another leap of faith.
“You wrote those words on the form, that the boy’s account was not credible, didn’t you?”
“Umm . . . yeah. But I was infirmary staff. I could do that.”
“And what was my client’s version of the hazing? It wasn’t that he was just left at the cemetery and walks back and gets in trouble. There was more to it, right?”
I was asking another question that I didn’t know the answer to. I had no idea what happened that night.
“I don’t know,” Ermey said. “I wasn’t there in the graveyard.”
“You were a student at Caldera once. That would be a lame hazing back in your day?”
“Yeah.”
“What did he tell you had happened?”
“Cruiser said just as he was going to kiss the girl, the boys surprised him, and then pushed him into an open grave and shit and peed on him.”
That took a moment to sink in. That went beyond mere hazing. I looked back at Marley and he nodded.
“And also, you have to admit it was kind of funny,” Ermey said, apropos of nothing. “Even though it didn’t really happen.”
“Why do you say that?”
“His face was clean.”
I remembered the poor student who had to water the non-existent grass. “There’s a hose by the dorm. Could he have washed his face before coming in?”
“I guess so.” Ermey smirked.
“You still think it was funny?”
“I guess you had to be there.”
“I’m not laughing. So the actions of your residents, even if they were just as you say, to leave him in the cemetery, were authorized by you—and thus by the school?”
“I knew about it. It’s an old trick. No harm done. You get a pretty local girl to flirt with the kid, some sister of one of his classmates who’s in on the joke. She lures him to the cemetery, some boys push him into the grave, tell him to stay and then leave him there so he misses lights out and when he walks back to the barracks he gets in trouble by me. Like I said, no big deal. It builds barracks unity.”
Barracks unity? Marley sure didn’t feel united.
“The boys who did this, they had permission by you to do it?”
“I suppose so.”
Damn, I wish I had page 237 where Marley detailed the abuse. “You honestly don’t know if the boys pushed him into the grave and urinated and defecated on him?”
Ermey forced a grin. “Boys will be boys.”
“You would be mad if a pretty local girl who’s in on the joke led you to a dark spot to make out and somebody pushed you into a grave?”
“I suppose so.”
“You’d be mad that instead of kissing a pretty local girl— maybe kissing a girl for the first time—someone took a dump on your forehead and peed in your mouth, wouldn’t you?”
“I suppose so. But like I said, that’s not what happened.”
“And you’re saying that my client pushed over some graves afterwards?”
“I don’t know who else could have done it.”
“You never saw my client harm anyone in your barracks?” I sure hoped Ermey would say what I wanted him to say.
“No, he was a pussy, I mean a wimp.”
“So, the fact that a boy in the heat of the moment writes a threat doesn’t necessarily mean he intended to kill anyone?
“I suppose not.”
I looked at my pad and turned to the next page, and under the heading of ermey, Marley had written ask about ermey’s discharge!
Might as well go with my gut. “Mr. Ermey, isn’t it true you received a dishonorable discharge from the military?�
��
“I had a general discharge.”
“Isn’t it true that you were once disciplined in the air force and confined to quarters?”
“How do you know that?”
I had no idea how I knew that. It was just a hunch. “Please answer the question,” I said. I looked at Dark, as she was about to rise. “Counsel is going to object on the grounds of relevance,” I said. “Your honor, this witness testified that Marley intended to kill people when he pointed that weapon, thus the nature of this witness’s discharge shows his bias.”
The judge nodded. “I’ll allow it.”
“I was confined to quarters for a few months and got a general discharge. I was able to continue to work at the base as a civilian employee.”
“You shouted at your commanding officer, ‘I will kill you!’ Isn’t that true?”
“I did. I actually said: ‘I will totally f-ing kill you,’ but I didn’t mean it.”
“So then it’s possible that when Marley shouted and/or wrote 'I’m going to kill you', he didn’t mean to do any such thing, just like you?”
“Yes, it’s possible.”
Chapter 24
Hot for Teacher
Dark didn’t bother to re-direct. I was excited. I had a bit of momentum going. Dark next called the creative arts teacher, Yvette Castaneda. They had only the one teacher for all creative endeavors at the school. Apparently, writing, art, drama and anything that wasn’t scientific or military was deemed a “creative art” at Caldera. Well, you didn’t go to Caldera to be creative or artistic.
Castaneda, the woman from the promotional video, was even more breathtaking in the flesh. I had figured she was a model or actress from LA, but she commuted from El Paso and really did teach five classes at Caldera. Today she wore a peasant dress accented with a scarf and looked like a busty Stevie Nicks. She also bore a passing resemblance to Luna, if Luna had quit the law and worked instead in a mixed media gallery. Ms. Castaneda was clearly an aspiring artist who took this gig to pay the bills. By the way my son stared at her, he was hot for his teacher, just as I had been in the video.
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