The Law Is A Ass # 392: Bob’s Brain Has A Darkside

I am reminded of a story my father told me. What story, I’ll get to that shortly. First I’ve got to tell you about another story.

That other story is “Sleepwalker” from Tales From the Darkside# 1. For those of you who, unlike me, aren’t as old as Pangean dirt, there was a syndicated TV show of that same name combined back when Hector was a pup, and I was in my 30s. A half-hour anthology show featuring horror, science-fiction, and fantasy stories that usually climaxed with a twist ending. The show wasn’t bad, but I had a problem with it. I was raised on The Twilight Zone and EC comics. I cut my teeth on twist endings. For me the endings of Tales From the Darkside had as much twist as a pretzel rod.

Joe Hill, a fantasist with a pedigree, both a literary pedigree and a literal pedigree, tried to revive the series for the CW. The series didn’t make in onto TV, but Hill is adapting four of the scripts he wrote for the show into a comic-book series of the same name. And that first issue is the other story I’m telling you about first.

Ziggy was a recent high-school graduate who was working as a lifeguard at a municipal swimming pool on Brody Island. His lawyer mother was out-of-town on business, so he stayed out partying all night then went to his lifeguard job during the day. As bad ideas go, this wasn’t like texting and driving. This was more like typesetting a magazine article complete with multiple fonts and drop caps while driving.

The sleep-deprived Ziggy fell asleep on duty and Ellen Miller died.

Only she didn’t drown. Leastwise, I don’t think she did.

Neither did the coroner. He testified during some courtroom proceeding Ziggy called a trial that Ellen had a weakness in the wall of her heart and Ziggy he probably couldn’t have saved Ellen’s life even if he had “gotten to her in time.” According to Ziggy, the hearing ended in less than an hour with the judge telling Ziggy that he shouldn’t blame himself.

That’s when I went tilt. The story called the proceeding both a hearing and a trial. My brain, with it’s mind trained to think like a lawyer even though none of my law school professors looked even remotely like John Houseman wanted to know. Was it a hearing or a trial?

The proceeding happened so quickly that Ziggy’s mother had to cut her business trip short. That’s not enough time between event and proceeding for it to have been a full trial. Trials take time to mount. Even on small islands with small populations, trials for negligent homicide don’t generally come to court for weeks or months. So let’s take trial off the table. Ziggy, the narrator of the story, probably didn’t know the difference between a trial and a hearing and misspoke, or mis-first-person-narrative-captioned, when he called it a trial. Hearing it is.

Except there appeared to be a jury in what appeared to be the jury box and you don’t have juries in hearings. Only, was it a jury box? The group of people were seated in what looked like a standard jury rig, except for the fact that it was on the other side of the room from the witness stand. The judge’s bench separated the witness stand from the jury box. In every courtroom I’ve been in, the jury box is right next to the witness stand, the better to hear the witnesses with.

So, let’s assume this wasn’t a jury box because it wasn’t where a jury box was supposed to be. Maybe it was an auxiliary seating area for the spectators. Boy there must not be a lot to do on Brody’s Island other than that swimming pool, if the local courthouse routinely gets so many spectators it needs overflow seating. Okay, no jury box means that wasn’t a jury and the proceeding wasn’t a trial. It was a hearing.

But what kind of a hearing? The coroner testified. Could it have been a coroner’s inquest? Not likely. First, coroner’s inquests might be all the rage over in England, when they’re not too busy having their Brexit, lunch and dinner, but they’re aren’t as common in the United States. Moreover, a coroner generally presides over a coroner’s inquest, not a judge. Our hearing definitely had a judge.

I’m guessing it was a preliminary hearing, in which the judge heard some witnesses and determined whether there was enough probable cause to bind Ziggy over for trial. That would be in a courtroom and presided over by a judge. And it only last an hour after the judge heard the coroner testify that Ellen died from a weakness in the wall of her heart, like a ruptured aortic aneurysm, and Ziggy couldn’t have done anything to save her life. Even a tough-on-crime judge would have to find no probable cause after the coroner testified the defendant didn’t kill the victim.

I was almost satisfied. The only question I still had was this: What was Ziggy doing in the witness stand? The prosecution couldn’t call Ziggy to the witness stand. I don’t know what state Brody Island is in, but I don’t need to. All 50 of them recognize the 5th Amendment and its right against self-incrimination. So the State didn’t call Ziggy.

Did he testify on his own behalf? At a trial, maybe. Sometimes defendants testify in order to present a defense with the best possible evidence. But not at a pre-trial hearing. When all that’s happening is the judge hearing the state’s case to determine whether there’s probable cause, no “high-powered lawyer” is going to let the defendant testify. There’s a greater percentage of impurities in Ivory Soap, than there is of allowing a defendant to testify in a preliminary hearing.

I have a theory why Ziggy was in the witness stand. The story was about Ziggy being sleep deprived and sleepwalking through life. Maybe Ziggy sleepwalked into the courtroom and sat in the witness stand by accident. No one moved him because you’re not supposed to wake a sleepwalker.

Okay, it’s not a great theory. But it’s still a hell of a lot better than believing that a defense attorney let the defendant testify at a preliminary hearing.

So after studying the contextual clues of the story, I’ve determined that the proceeding shown in Tales From the Darkside # 1 was a preliminary probable cause hearing.

Now here’s the story my father told me that I was reminded of. When he was in college, my father took a course on Shakespeare. One day the professor came into class with the biggest, broadest cat-that-swallowed-the-canary smile imaginable on his face. The cat didn’t just eat the canary. It had canary cordon bleu, asparagus with hollandaise sauce, and La Bonnotte potatoes; washed it down with a bottle of Chateau Lafite, and got double points for the whole meal on his cash-back rewards card. The elated professor announced that after thirty years of close and intensive study of Hamlet’s text as well as the language, idioms, and word usage of Elizabethan England, he had concluded that, yes, Hamlet had definitely slept with Ophelia.

My father asked one simple question, “And that changes the play, how?”

The professor deflated quicker than a Macy’s balloon after a close encounter of the AK-47 kind.

I was reminded of that story, when I realized that my studying contextual clues to determine Ziggy was in a preliminary hearing didn’t change the story, either. But at least I didn’t spend thirty years determining the answer. Or even thirty minutes. And, unlike Ziggy, I didn’t lose any sleep over my problem.