Rattlesnake & Son

by Jonathan Miller

  This bully now looked like the real victim, not Marley. Much as I had a natural hatred of bullies, he was just a fourteen-year old kid too. He didn’t deserve to have a cratercross pointed at him. Hazing or no.

  When I tried to continue my cross-examination about the details of the hazing, Dark hit me with “Assumes facts not in evidence,” and the judge sustained her objections. I was pissing off everyone in the courtroom with the delay. I just sat down after the last objection.

  Dark stood up. “Just one question. Mr. Zabka, would leaving a young man in a cemetery on a warm night so he misses curfew be justification for shooting up a school?”

  “Not even,” Bobby the Bully said.

  With that “not even,” I realized that Marley was probably going down on the Ag Assault Deadly Weapon charges, and I hated to say it, deservedly going down. The boys at school may have been mean to my son and left him out at a cemetery all alone. Boo hoo.

  Even if they did haze him, it was not grounds for what happened next. My son then intentionally tried to take out the whole school, or at the very least was reckless in his disregard for his safety which in the eyes of the law was the same thing.

  How do you defend someone you know is guilty? You make the state prove their case beyond a reasonable doubt. What do you do if the state can prove a dozen counts of that case without breaking a sweat? You work out a deal.

  I also had a more depressing thought. My son was probably not the psychic I imagined him to be. If he had any psychic abilities, he would have used them during the rehearsal to gain his revenge and not accidentally discharge a cratercross.

  There were logical explanations for what I thought were psychic abilities. My headaches were just migraines. There was a fault line near Socorro, New Mexico and the minor seismic events that occurred were just coincidences. Ermey talked about graves falling over, but Bobby the Bully said Marley pushed them down himself. The bleeding from my forehead was due to stress, which caused me to scratch. I probably hadn’t turned my phone off all the way and that’s why the voice came through the radio on September 22, right?

  When I flipped through my yellow pad, I realized Marley had already written one-line notes on several of the pages in preparation for each witness’s testimony.

  Marley was wiping his eyes and picking his nose at the same time. That was the extent of his abilities—the ability to do two bodily functions at once. Could he chew gum as well? He was just a sad, lonely boy who acted out after being bullied. I looked at my poor, pathetic son and my realization that he wasn’t special made me love him even more. We were two of the same kind.

  The judge asked for the parties to approach after the tenth and final student who testified verbatim about Marley firing the three darts and being afraid due to Marley’s aggravated assault with a deadly weapon.

  “How much more testimony do you have?” the judge asked Dark.

  “I can have seven more witnesses testify,” Dark said, “if need be, but I think I’ve proved all my charges.”

  “The standard is beyond a reasonable doubt, not beyond all doubt. You’ve more than proved your case,” the judge said. “You’ve made my day.”

  That was beyond an inappropriate thing for a judge to say, but there was no real reasonable doubt he was correct.

  “So, Ms. Dark,” the judge said. “I want the state to rest your case in front of the jury.”

  Jane Dark went back to the podium. She looked each juror in the eye. “The state rests.”

  The jurors nodded. She had them in the palm of her hands. Even Gollum muttered guilty under his breath.

  After the jury exited the room, the judge looked at me. “Do you have any motions?”

  “I make a motion for a directed verdict on all—”

  “Denied,” the judge said, before I even said the word “counts,” much less give my arguments on any of the thirteen charges.

  “I don’t know where you will be tomorrow,” the judge said as he left the bench. “I don’t know which judge will be hearing it, just that it won’t be me. Mr. Shepard, a man’s got to know his limitations.”

  Know my limitations? Was he saying I was going to lose. I didn’t respond.

  “If the two of you lawyers can work out a deal in the next few minutes,” the judge continued in that drawl. “I can stay and take it. That way we can wrap this up right now. Perhaps we can work out something where your boy would get a pre-sentence report and see if he is found amendable to treatment.”

  The judge was giving us the wink and nod to settle this thing because my client would be found guilty and he would ask for a pre-sentence report. With a pre-sentence report, Marley could still get a juvenile as opposed to an adult sentence. The judge left out the back exit, but left the door open, in more ways than one.

  Still in the courtroom, I approached Dark. She seemed taller today, or perhaps I had shrunk. “Can we work something out? He pleads to the Ag Assaults and does time in a juvenile facility?”

  “He pleads straight up to all the charges, and we leave his amenability up to the judge,” she said. “Whether he gets sentenced as a juvenile or an adult is up in the air, depending on the pre-sentence report.”

  I thought of getting doug-ed. “He still could get fifty-seven years in prison as an adult,” I said.

  “Or, he could get juvenile probation,” she said. “Like I said, it depends on the report, which would be done by pretrial services. Your son doesn’t have a real record other than the shoplifting. It would look favorable to a judge if he takes responsibility for his actions. Do you have faith in your son’s ability to convince the psychologist who preps the pre-sentence report that he is a good kid amenable to treatment? Do you have faith in your abilities as a lawyer to argue for your son and keep him in a juvenile facility?”

  She said “son” rather than “client.” She was making it personal to me. While he looked like a kid, young for his age even, a judge might max Marley as an adult. Then again, a judge might show him mercy. While probation was unlikely, Marley could do two or three years at the juvenile facility, hopefully at a treatment facility for smart kids with issues. Some of those treatment facilities were summer camps with locks on the doors. He’d then get out without a real criminal record. He’d still have a life.

  “I’ll talk to him.”

  Chapter 26

  Inmost Cave

  Marley and I sat in an attorney-client witness room somewhere in the courthouse. It was probably the same room we used when we met for the first time. All these cramped empty rooms were the same. So much time had passed in the last few weeks. He looked years older. He was still in the same suit. Then again, so was I.

  Instead of putting him on the other side of the window, today we were scrunched in on the same side of the room. As there was only one chair, I let him sit while I leaned. The walls seemed much closer with the two of us on the same side.

  Marley smelled terrible, or perhaps we both did. He hadn’t showered. I hadn’t either. That harsh smell of a gaping wound had returned. Had another inmate been wounded in one of the holding cells?

  “What’s going to happen?” Marley asked. His breath made things even worse, if that was possible. Couldn’t he at least have stolen a toothbrush from a Walmart before court? “Things don’t seem to be going too good for me right now.”

  “Going too well,” I said, echoing what my own father would have reminded me. I took a deep breath, but I had trouble keeping the foul air in my lungs. I coughed.

  “Are you all right?” he asked. “I’m worried about you. You smell like crap, Dad.”

  “I’m fine,” I said. “This is about you, not me.”

  The volume of the mechanical sound went up, as if a giant medieval torture wheel was pushing the walls even closer. We couldn’t hear each other until the sound dissipated. I felt faint for moment, then steadied myself and was able to breathe.


  “I think you should plead straight-up,” I said, putting my hand on his shoulder. “No agreement as to sentencing. Throw ourselves at the mercy of the court. No guarantees, but I think if the judge orders a pre-sentence report it will say that you’re ‘amenable to treatment’ and keep it juvenile.”

  “What does that mean?”

  I tried to sweeten the deal by repeating what Dark had said. “You would have a chance at juvenile probation, but it would be up to the judge.”

  I instantly felt guilty. I didn’t want to be doug-ing my own son, so I’d better be honest. “But most likely if you get a juvenile sentence, you would do a little time somewhere, worst case until you are twenty-one, but you would be eligible for parole when you turn eighteen.”

  “That means I don’t have to go to prison?”

  “It’s all up to the judge. Hopefully, you’ll just go to a juvenile facility, a treatment facility and get some counseling. Hell, maybe I could even get you into treatment as an outpatient. Even better, if you get a juvenile commitment it would not go down on your permanent record.”

  The prospect of Marley at a treatment facility was not terrible. He could work on his issues for a year or so. It sure sounded better than Caldera Academy. I had a vision of a facility with horses and art therapy with an artist who looked like Senorita Castaneda. His friends would be gifted/special ed just like him. Something in Taos, in the mountains. When Marley came out, he wouldn’t be a felon, might even be able to get into Albuquerque Academy for his senior year.

  “I want to talk to my mom, talk to Dew and Denise. They’ll know what to do.”

  Was I doug-ing myself and believing something that wasn’t really in the cards? I also wanted to check with Luna, then I remembered I didn’t have a phone. “It’s your call and only your call. It’s just you and me here.”

  “If I plead, I can still get an adult prison for fifty-seven years at eighty-five percent time? That’s almost fifty years.”

  I had to be honest. “Yes,” I said. “There would be a pre-sentence report and then ‘amenability’ hearing where all that would be decided. The judge could do whatever he wanted.”

  “The parts of my diary that they showed would pretty much screw me. It’s already screwed me. If only we had page 237 to prove they hazed me, which would explain why I said all those messed up things in my diary.”

  “It would be all up to the judge,” I said. “The charges are serious, but you don’t have much of a record. Other than the shoplifting.”

  “But I didn’t do anything that night. I didn’t have the specific intent to hurt anyone, as you keep saying. That means I’m innocent, right?”

  “That’s a question of fact. That’s up to the jury.”

  “Do I have to testify?”

  “To win, you’re going to have to testify that you had no intent to hurt anyone, no specific intent when you pointed the cratercross—”

  “I pointed it down at the ground. They’re all lying! They hazed me! That’s the only reason I put those things in my diary. I didn’t mean them. I told you, Korn must have sent a mass text to the whole campus. If you get my phone from the palm tree, I can prove it.”

  My son was losing it. The smell grew even more intense every time he opened his mouth. I worried that I was losing it too, because I almost believed him.

  “Well, the jury will have to believe you over ten nice kids at a military school with an honor code against lying, a dean, a counselor and a trained psychologist. They all said you did it. And the jury has to believe that over your story that it was all part of your silly trick that was supposed to make a three of clubs disappear and re-appear somewhere else.”

  He looked down at his untied shoes. “Does the DA get to cross-examine me?”

  “Of course. That’s part of the game.”

  “What would she ask me?”

  “She would go through your life and show that you were a disturbed young man, that you were seeking revenge. She would go through every bad thing you’ve ever done.”

  “How would she find that out?”

  “She would investigate you. I mean, she has already investigated you.”

  “Do you think I would be able to take it?”

  This kid was now hyperventilating. No, he wouldn’t be able to last three questions with Jane Dark on cross.

  “I don’t know. You get nervous being questioned for a minute by a border patrol agent. You even get nervous being questioned by your mother.”

  “This is different. My life is on the line. Where is she anyway? My mom?”

  “I have no way of getting in touch with them. We’re on our own. You have to make the decision yourself.”

  Marley slumped deeper into his plastic chair. For a moment I thought he had passed out and the hair was propping him up. Then I saw blood seeping from the back of his jacket. Was that wound smell coming from him, and not from the inmate in the cell on the other side of the wall? I felt faint again, too. What was going on here?

  “You’re bleeding,” I said.

  “You are too.”

  There was a dark liquid on the floor, under my shoes.

  I sure didn’t want to unbutton my shirt, or his, in this cramped room. I heard more of that deafening mechanical noise coming from above.

  Then the noise stopped.

  Suddenly, we heard music. It was a forgotten song coming from somebody’s car stereo, but it sounded positively angelic.

  I knew the song, but couldn’t place it. Marley just smiled, as if to say they’re playing our song. I then recognized Bruce Springsteen’s voice, but couldn’t place the tune.

  Marley and I looked up. I hadn’t realized there was a skylight, but I felt light coming from above. I even felt a breeze of fresh air.

  In the sunlight, Marley solidified before my eyes. He clenched his fist and pounded it to the beat of the music, then picked himself up from the chair, standing perfectly straight. He was now as tall as I was. I looked down at the floor. The blood was gone; it must have been fluids from a burst pipe in the bathroom near-by.

  He put his hand on my shoulder and I felt an electric current. I put my hand on his shoulder and that current grew stronger. Both our hearts beat faster in step with the music. Team Marley only needed two people.

  He released his grasp and then he turned and gripped the door knob, but still looked me straight in the eye. “Can you protect me up there on the stand?”

  He was my son. I had already given my word and intended to keep it. “I can try.”

  I now recognized the song—“The Promised Land,” a powerful acoustic version by Bruce Springsteen.

  “Promise?” he asked.

  “I promise.” I felt I should promise on something stronger and put my hand over my rapidly beating heart.

  For one moment he judged me with his mother’s eyes, and I saw he was going to rule in my favor. “I can do this,” he said. “For reals. I don’t want to take a plea to anything when I’m innocent. Not even.”

  “It’s not being innocent, it’s being not guilty. I don’t want you doing the ‘but you said’ thing. I can’t guarantee that we will win. You understand that the DA is going to question you and rake you over the coals. She’s going to make you justify your actions, make you justify your life.”

  He nodded. “I get it. This is on me, it’s not you. I’m ready. I’m bucked up. Will you be there for me?”

  “Yes.”

  The day I first met Marley in court that day in Truth or Consequences the bailiff had asked me a simple question, when I said I was Marley’s lawyer. Marley couldn’t have known that, but now he asked me the very same question the bailiff had asked when he denied me entrance to the courtroom. “Are you sure?”

  “I’m sure.”

  “It’s going to get pretty hairy in there. You’ve got to stick with me, finish
this no matter what. Seriously, no matter what. It’s more important than you know. Promise me that.”

  As if on cue, Bruce sang “Mister, I ain’t a boy; no, I’m a man. And I believe in the promised land.”

  I realized why he now seemed as tall as I; he was wearing rattlesnake cowboy boots, identical to mine. Did that make him Rattlesnake Junior? My skinny son was becoming a man, an equal partner in Rattlesnake Lawyer & Son.

  “As I said before, I promise,” I said. “Cross my heart and hope to die.”

  I opened the door and called out to Jane Dark, “Can you tell the judge that we are going to put on a case.”

  “The judge is already gone for the day.”

  Chapter 27

  The Promised Land

  I’ve got a feeling we’re not in Consequences anymore,” I said to Marley.

  They had moved court yet again. This time we were in Lemitar, that little speck of a settlement in the biblical desert north of Socorro. The statewide courthouse retrofitting must have forced the judicial system to improvise its ass off to move here in the middle of nowhere.

  The abandoned gray warehouse off the freeway had been converted into a high-tech courtroom, but the ambiance was more like a barn, right down to the smell. Through one window, we could see the promised land billboard.

  Was this was the promised land, I asked myself for the tenth time. While the courtroom had all the usual twenty-first century amenities—a jury box, judge’s bench, even a Mondopad—it felt like something out of an old John Woo Hong Kong action film. There were doves, well there were pigeons, in the belfries. I half-expected to see a donkey and a manger in one corner.

  A new judge now graced the bench. Judge Comanche had come down from Albuquerque and didn’t seem happy to make even this northern stretch of the jornada del muerto. I didn’t like us switching judges all the time, but maybe it was a good thing. We could get a fresh start after the debacle of the day before. He was already on the bench, going through the case notes on his computer, most likely via the Shoftim system. He nodded when he was satisfied with his preparation.