Death Rattle

by Alex Gilly

  “Here’s the golden rule if you get bitten by a snake: Keep the bite location lower than your heart and get to a hospital. If you get bitten on the ankle, keep your ankle below your chest, and get to a hospital. If you get bitten on the hand, keep your hand down below your heart, and get to a hospital.

  “In the coming days, you will hear evidence that the guards who found Carmen did not have even this basic first-aid knowledge. You will hear from the PDC’s doctor that there was no budget for antivenin in his infirmary. You will hear that more than sixty minutes elapsed between when Carmen was discovered unconscious and when she was given first aid. You will hear of all the ways that the BSCA management, in pursuit of profit, made decisions that severely—fatally—compromised the company’s duty of care to its inmates. All the small cuts that led to Carmen’s death.

  “My name is Mona Jimenez. I am here to show you that Carmen Vega’s death was entirely preventable. I am here today to make sure that what happened to Carmen never again happens to anyone incarcerated in our name by the Border Security Corporation of America. I’m here, on behalf of all Americans, to ask you to hold the BSCA accountable. We must show the BSCA that, even if the company doesn’t care about the people in its prisons, we do. Thank you.”

  * * *

  Mona sat down and tried to read the jury. Two of the women seemed to be looking sympathetically in her direction. Most of the men were looking at the judge, waiting for instruction. It was the defense’s turn to make a statement. Morrison Scott hauled his bulk off the chair. He looked as ruffled as the first time Mona had met him in the conference room at the Juntos office. He gave the impression of being completely inoffensive, like an affable, well-liked high school teacher. A wolf disguised as a dotty old man. Scott greeted the judge, then turned to the jury and smiled.

  “Usually, I would be sitting where Ms. Jimenez is sitting,” he began, “but my honorable colleague appears to be an early bird, which, I’m sure you’ll agree, is a sign of admirable self-discipline. In that, she puts me to shame, I’m afraid; I’m a night owl, and early starts make me grumpy. Just ask my wife.” He gave a little chuckle, and his blue eyes sparkled.

  “Having said that, there are some advantages to being an owl. For centuries, the owl has been a symbol of a certain … what shall I call it? Prudence? Judgment? Let’s just call it common sense. Now, I’m sure there’s no need to define common sense to you, ladies and gentlemen of the jury. I know that folks out here in Paradise County are levelheaded, practical, sensible—immune, I’m sure, to the fashionable notions that sometimes spread like contagions in our cities.

  “Take, for instance, the belief among some of the younger, more impressionable members of my profession that proximity to the jury constitutes some kind of advantage. A decrepit old owl like me cannot help but believe that it’s argument, knowledge of the law, and the inherent common sense of jurors—men and women like yourselves—that wins and loses cases, not the feng shui of courtrooms.”

  Mona saw wry looks on some faces in the jury box. She had a sinking feeling. Morrison was good. Not fire-and-brimstone good, but honey-and-milk good. He was painting himself as the sensible, patient elder, and her as some kind of young, hotheaded radical. She predicted he would use the phrase common sense over and over again.

  “Now, I’m sure that we all agree that we live in the greatest country on earth. But let’s be honest, we are living through difficult times right now. Divided times. There’s a lot of anger. Our representatives in Washington seem to spend most of their time shouting at each other. So do the people on TV. It seems to me that many people today think shouting is the way to win an argument, rather than good reasoning. There seems to be no room for courtesy anymore—young people nowadays seem to be willing to fight by means fair or foul, even over matters of the least consequence, such as the customary seating arrangements in a courtroom.”

  Scott didn’t look at Mona. He didn’t need to. An older lady in the front row of the jurors’ box glanced at her with disapproval. This was a deeply conservative part of the country. Scott was painting her as a punk. Mona glanced at Judge Ross. He had fidgeted throughout her opening statement, flipping through papers and shifting in his seat, giving the impression that he could not wait for her to finish. He wasn’t doing any of that now. He looked comfortably ensconced in his huge chair, up there on his dais, hanging on Scott’s every word.

  Scott continued, “Now, my esteemed collegue has made much of the fact that the BSCA is a for-profit company. And there’s no denying that there is a legitimate debate to be had over the role of private enterprise in securing our borders. But, ladies and gentlemen, that is not the argument you are being asked to resolve here. The only question you will need to answer in this courtroom is this: Did the Border Security Corporation of America cause the death of Carmen Vega?”

  He paused and looked at each of the twelve jurors in turn.

  “The key word here, ladies and gentlemen, is cause. What do we mean by that word, cause? What does it mean specifically in this case?

  “Let’s look first at what it does not mean. It does not mean that the BSCA killed Carmen, because, as my learned friend mentioned during her opening, Ms. Vega died after being bitten by a rattlesnake. Bitten three times, in fact. It was the serpent that killed Carmen; on that, we are in agreement.”

  Here, Scott directed a kindly look at Mona, as though he were a friendly uncle indulging a young niece’s foolish diatribe at the Thanksgiving table. Mona bit her lip.

  “No, there’s no argument that it was the snake that killed Carmen,” emphasized Scott. “So then, are we supposed to believe that the BSCA caused the snake to bite Carmen? Ladies and gentlemen of the jury, ask yourselves: Is it reasonable to hold a person or a company responsible for the actions of rattlesnakes in the California desert?”

  A murmur of agreement from the jury.

  “Now, I expect my learned colleague will tell you all kinds of things about how the BSCA should have stopped the snake. She will tell you that they should’ve built a snake-proof fence. She will try to tell you that the BSCA should stock antivenin at the Detention Center, on account of it being in the middle of snake habitat. Well, ladies and gentlemen, you all live here, too. Have any of you ever built a snake-proof fence?”

  A pause.

  “Of course not. And do any of you stock antivenin?”

  Another pause.

  “Didn’t think so. Why not? Well, because, as my learned friend herself pointed out, the odds of getting bitten by a snake are tiny. Not impossible—tragically, for Carmen—but tiny nonetheless. And the preventative steps that my colleague thinks the BSCA should have carried out are in fact quite impractical, certainly not reasonable, and extravagantly expensive, given how long the odds are.”

  Mona’s heart slid to her feet. He was using her own argument against her. He was making her look like an amateur.

  “Now, the idea of causation has a rather narrow definition in law. For someone to cause an occurrence, legally speaking, two criteria must be met: the ‘but-for’ criterion, and the criterion of proximate cause. The but-for criterion is simply this: but for one event, a subsequent event would not have happened. But for an interception, the Rams would’ve won the Super Bowl. But for a love of sleep, I would be sitting in my rightful spot in this courtroom.”

  More laughter. Scott had the timing of a stand-up comic.

  “You can see what the problem is here, can’t you? With this criterion, you can take almost any event, no matter how remote, and argue that it is necessary for a subsequent event. I’m sure you’ve heard of the butterfly effect: a butterfly flaps its wings in Brazil, which causes a disturbance in the air around it, which builds into a larger eddy, which causes a breeze to blow, and so on and so forth until you get a hurricane in Florida. By this measure, the butterfly did cause the storm, but you can’t blame the butterfly for the storm. In law, we would say that the butterfly was a necessary but not sufficient condition for the storm to occur.
The butterfly was too remote. That’s where the second element of causation, proximity, comes in.”

  He paused, Mona surmised to check that he still had the jury with him. He needn’t have worried. They were rapt.

  “Proximate cause means simply this: that for one event to cause another—I mean really cause it, in the way a sensible person would agree with—the two events need to be close to one another. A butterfly in Brazil is too far from a storm in Florida to be considered proximate cause. But if I pull out a gun and shoot you, then it is my action—firing the gun—that directly causes you to be harmed. Now, I know all this must seem painfully obvious to anyone with an ounce of common sense, but I will beg your forbearance here. This is the kind of gobbledygook that we attorneys eat up for breakfast, I’m afraid.

  “To reiterate my point, my colleague will try to prove to you that, but for the actions of the BSCA, Carmen Vega would be alive today. She will try to say that, for the want of a snake-proof fence, for the want of antivenin, for the want of first-aid training, Carmen Vega would be alive today. Ladies and gentlemen, even if she manages to convince you of this, which would surprise me, it will not suffice. It will not suffice because she must prove proximate cause: that because the BSCA did not stock antivenin, Carmen Vega died.”

  He paused.

  “Let me say that again: Ms. Jimenez will need to prove that, because the BSCA did not stock antivenin, or build a fence, or train its guards, the snake bit Carmen Vega, and she died. See how silly that sounds? That’s proximate cause.

  “It sounds silly, because it is. But what you have to do here is not silly. It’s the opposite of silly, in fact. What you have to decide here is of great consequence, not just to the BSCA but to the entire country. Imagine if a court like this one decided to hold a company or person responsible for the actions of wildlife. Imagine the consequences. Where might it lead?

  “Let me give you one example. Imagine you go camping in Sequoia National Park and, God forbid, you get eaten by a bear.”

  Giggles from the jury box.

  “A sad outcome,” said Scott with a smile. “And I can imagine that, naturally, your family might bear some rancor toward the bear. They may even seek to hunt it—with a permit, of course. But should your family be permitted to sue the bear?”

  More laughter.

  “Should they sue the Parks and Wildlife service? On what grounds? That there are bears in the forest?”

  Scott let the question hang. Mona was absolutely enraged. None of Scott’s statement was presentation of fact. All of this was argument. Why wasn’t the judge intervening? She glared at Ross. He looked entertained, as though by some amusing anecdote being told by a member at his club.

  Scott continued, “Of course not. It would be absurd. It would go against all common sense.”

  Scott paused, allowing a moment, Mona sensed, to let the psychological complicity build between him and his audience. Common sense is what binds us, he was saying. What we have in common is common sense.

  “Now, let us consider for a moment the tragic case of Carmen Vega. I say tragic, because there’s no other word for it. The plaintiff will tell you how she suffered in Mexico, and how, after enduring horrific abuse—torture, there’s no other word for it—she fled in fear of her life. She was intercepted by our border security forces and was being held in the detention center here in Paradise pending her trial. All of which is tragic. It really breaks my heart. But the key question here is, why was she being held here, in Paradise? She was being held in detention because she broke the law. Our law. I’m not blaming her—in her situation, who wouldn’t have fled?—but she was being held in detention while her case was under review, and the law is the law. We are a nation of laws—that is what makes us great. That Carmen died after encountering a snake is a tragic end. But I put it to you that the Border Security Corporation of America is no more liable for the actions of the snakes in Paradise than Parks and Wildlife is for that of bears in its parks, or the State of California for the earthquakes that occasionally devastate the cities built on its fault lines. The natural world is cruel, ladies and gentlemen, of that there is no doubt. But to hold people or institutions or corporations responsible for it is unreasonable. It’s worse than unreasonable, in fact. It’s preposterous. It’s just not common sense.

  “Now, as I said, you look like people who value common sense. You are being asked here today to decide whether the BSCA is responsible for the death of Carmen Vega. You are being asked to base your decision on the preponderance of the evidence. Preponderance—another big word we lawyers like, I’m afraid. A shorter word that means the same thing is weight. When you weigh the evidence that you are going to hear here in this courtroom, you must decide, is it enough to hold the BSCA responsible? I will let you decide. I will avail myself of your common sense. If there is any doubt whatsoever in your minds that it was not the BSCA, but the snake, that killed Carmen, then you must say so.”

  THIRTY-TWO

  “YOUR Honor, may I approach the bench?” said Mona.

  The judge gave her an irate look as if to say, If you must.

  Mona walked over to him. Morrison Scott ambled behind.

  “Your Honor, out of professional courtesy, I did not object to Mr. Scott’s opening statement. However, I feel obliged to go on the record to say that it was all argument, not statement, and therefore entirely inappropriate. The ‘feng shui of courtrooms?’ I mean, come on.”

  “Your Honor, I respectfully disagree,” said Scott. “I was being persuasive, not argumentative.”

  “Oh, please,” said Mona. “None of what he said was founded on evidence. He went directly after my case. He was extremely loose with the facts, and that’s putting it nicely. It was blatant argument.” Mona was speaking quickly, furious. Scott smiled a large, slow smile that only infuriated her more. He turned to Judge Ross.

  “Your Honor, I believe I mentioned in my opening statement that I have discerned among young people today a disconcerting tendency to try to win arguments with sound and fury rather than with reason—”

  Mona wasn’t going to put up with any more of this crap. “Your Honor, the court should immediately declare a mistrial and—”

  “Hold on, Ms. Jimenez,” said Ross.

  “Your Honor, this is a gross—”

  “Goddamn it, one more word from you and I will hold you in contempt. Do you understand? Now listen to me: I think you’re confused about who’s in charge of this trial.”

  Mona had been a summa cum laude student. She had either topped or come near the top of her year at junior high school, high school, college, and law school. She was educated. She got Scott’s sound and fury reference. She had, more than once, told men who had condescended to her that she did not get confused. But standing there in front of the bench in Paradise courthouse, Mona actually did feel confused. Her own opening statement had been textbook; it had been entirely founded on fact, brief, and to the point. She had given the jury a preview of the evidence they were going to see. For Mona, a good opening statement was like the jacket blurb on a novel; it provided the jury a succinct feel for the story they’re going to hear, without spoiling it. Hers had been the kind of opening that was held up as a benchmark in law schools. Morrison Scott, on the other hand, had inveigled the members of the jury not with facts but with imputations and inferences. He had meandered. Any other judge would have called Scott out on it, but there had been not a peep from Ross. The judge’s bias was so obvious, it sent questions tumbling through Mona’s mind. Was Judge Ross not aware of how obvious his bias was? Was he aware, but simply didn’t care? It was clear to her that Ross was not even going to pretend. She had naïvely convinced herself that, given how much media attention the case had attracted, Ross would’ve thrown a blanket over his despotic disposition and feigned impartiality for the press gallery at least. But no. If anything, he had doubled down. He was proudly partisan.

  He was also visibly angry. He swiveled in his chair, and Mona could see the skin
around the diamond-shaped birthmark on his neck flushing red. His wasn’t a generalized hatred, either. It wasn’t intransitive. It had an object.

  Her.

  That was the part that confused her the most. Judge Ross, she sensed beyond any doubt, hated her personally, and she had no idea why. He hated her. She could feel it in her gut, his hatred, the inevitability of it, the way the bell in a church tower knows, once it’s been swung, that it can’t avoid the clapper. There’s an impact, and then an echo, to feeling hated. She’d felt it first in high school, with a boy whose feelings she hadn’t reciprocated. She’d felt it many times since. Always from men.

  Mona collected her thoughts, focused on what the judge was saying. “Ms. Jimenez, you are overruled. I am more than satisfied with Mr. Scott’s opening statement. Now you listen to me, and you listen carefully. You are in my court, Ms. Jimenez, and you will follow my rules. I will not have you calling sidebar conferences every time you have some trivial grievance. In fact, I don’t want to see you up here at my bench again. You hear me? Now get back down there and do your goddamned job.”

  His lip quivered as he spoke. Even Morrison Scott seemed taken aback by the violence of Ross’s words.

  “Yes, Your Honor,” said Mona.

  * * *

  The court started hearing witnesses after lunch. Mona’s first witness was Jared Davies—the younger of the two prison guards who had found Carmen, and by her reckoning the weak link. The guards had done nothing right when they had found Carmen. Nothing that might’ve saved her life. Mona wanted that fact to resonate with the jury. Still, she knew she’d have to find the right balance between aggressive and sympathetic; Jared had been born and raised in Paradise, and he probably knew some of the people in the jury. She knew they wouldn’t take kindly to one of their own getting thrown under the bus. Especially if they thought of her as some kind of urban radical.