“Heartburn, Justice Harkness. I’ll be fine with a little water.” I poured a glass from the carafe on the table. My hand was shaking.
“Tom Donovan for the respondent, the People,” the A.G. was saying.
“Mr. Rios, if you’re ready,” Dahlgren said.
“Yes,” I replied, and went to the podium. The justices regarded me dubiously. “Not to be impertinent, but I can see from Your Honors’ faces that you’re less than thrilled with another Three Strikes case on your docket.”
Harkness permitted herself a smile, but Dahlgren said, “It’s fair to say, counsel, that you’re not the first lawyer to argue that Three Strikes is cruel and unusual punishment, so maybe we can cut this short. Every appellate court that’s considered the issue has held that sending repeat felons to prison for life upon conviction of their third felony does not violate either state or federal constitutional proscriptions against cruel and unusual punishment. What’s your pitch?”
“My pitch, Your Honor,” I said “is that this law is an abomination. In this case, it’s sending my client to prison for the rest of his life because he got into a tussle with a security guard in the parking lot of a supermarket from which he had stolen a case of infant formula for his eight-month-old daughter.”
Justice Harkness leaned forward. “He was convicted of robbery,” she said. “The law doesn’t distinguish between stealing diamonds and stealing baby food, Mr. Rios, where the theft is accomplished by force or fear.”
“He committed robbery only in the narrowest sense of the statute because he bumped the security guard with a shopping cart. Technically, that’s force, but come on, this is L.A., where people shoot each other for parking spaces.”
Justice Harkness shook her head. “The security guard was a woman who was five inches shorter and forty pounds lighter than your client.”
“Your Honor, with all due respect, she was asked on cross-examination if she was afraid, and she said no. There was no fear and the force was minimal. The Three Strikes law doesn’t distinguish between stealing diamonds and stealing baby food, which is why this court must.”
The third justice, Rogan, said, “I agree.”
“You do?” The surprise was so evident in my voice that the lawyers in the gallery burst into laughter. But it wasn’t surprise they had heard; it was the shooting pains in my arm and the waves of nausea that continued to sweep through me.
“I do,” Rogan said when the laughter subsided. “But Mr. Rios, Three Strikes doesn’t just punish the current felony, it also punishes defendants for past serious felony convictions. Your client has a record as long as Pinocchio’s nose.”
“But only two convictions are qualifying strikes,” I said, “and those were insignificant burglaries…”
“Insignificant by what standard?” Harkness asked.
“They were nonviolent, the losses were small, my client pled.” I saw a flash of lights and then groaned as someone with very cold hands squeezed my heart.
I heard the alarm injustice Harkness’s voice when she said, “Mr. Rios, are you sure you’re all right?”
I gasped, “If I could just have another minute.”
Dahlgren said, “Actually, counsel, your time has expired.”
I keeled over.
I didn’t completely lose consciousness until I reached the emergency room. I had this vision of myself as a very small boy—maybe three or four—holding a seashell to my ear to hear the ocean, but instead of a gentle reverberation, I heard a thunderous swell of water rising from a black depth. Terrified, I dropped the shell, but the roaring did not stop and I began to wail. Slowly I turned around and found myself standing at the edge of an ocean shimmering with light. Like shifting plates of glass reflecting the sun, the movement of light mesmerized me. I stopped crying and my terror evaporated. I felt a dim but widening awareness that if I stepped into the tide, everything would be all right, and it seemed to me at some point the water ceased to be water and revealed itself instead to be a brilliant sentience that called to me with such benevolence I rushed toward it. When my foot touched the light, I felt a kind of ecstasy, but then someone hooked her arms beneath my armpits and dragged me away. I looked up and saw my sister, Elena, as she had been at eight or nine. Her grave dark eyes communicated love and terror. I tried to struggle out of her grip to run back into the light. “No,
m’ijito,”
she said, holding me against her body
“No es tu tiempo.”
Then a male voice shouted, “He’s back,” and an excruciating sensation roiled though my body that left me gasping with pain. I groaned my sister’s name.
I woke up in the middle of the night in a narrow bed, groggy, disoriented and scared. Across the foot of the bed, a window looked out on the nurse’s station, from which light filtered into the room. I was pinned to the bed by tubes, lines and catheters and felt more specimen than human. In the darkness, a chair squeaked and I realized with a start there was someone else in the room. Laboriously, I turned my head toward the noise. When I saw who it was, I was sure I was either dead or crazy.
“Mom?”
The woman inclined her face toward the light. “No, Henry, it’s Elena.”
Only her voice persuaded me my mother had not risen from the grave. My mother, though born in California, was the daughter of Mexican immigrants. Spanish was her natal language and she spoke English with a slight but unmistakable Mexican accent. My sister, Elena, spoke in the educated tones of her profession—she was a professor of English at a small private college near Oakland. Her hair was the same dense black shot through with white as our mother’s had been. At fifty-five, her face was worn to the same grave lines, with the same smooth olive darkness of skin, and her eyes were the same unrevealing black. She leaned forward and the resemblance ended. Elena was thin, whereas our mother’s body was a mound of flesh that only seemed soft until you touched it and discovered its laborer’s strength.
Elena touched her palm to my forehead as if she was taking my temperature. “How are you feeling?”
“Where am I?”
“The hospital. The intensive care unit. Do you remember that you had a heart attack?”
“I remember the judge wouldn’t let me finish my argument.” Her presence confused me—who had told her I was in the hospital? When I tried to express my bewilderment, it came out with unintended harshness. “What are you doing here?”
Hurt, she replied, “You asked for me. Just after your heart stopped.”
“My heart stopped.”
“For a few seconds, and then they resuscitated you. You don’t remember?”
The boy with the seashell. That incandescent light. My sister dragging me away. “Why didn’t you let me go?”
“What do you mean, Henry? Let you go where?”
I wanted to explain, but my head was a jumble of thoughts and images. A red-headed male nurse had materialized at the nurse’s station, and I thought I was hallucinating again because I recognized him. “Which hospital is this?”
“I think it’s called Westside,” she said.
“The AIDS ward is one floor down. This is where I brought Josh the last time he was hospitalized.” I roused myself as best I could and stared at her. “He’s dead. So many people, friends, also dead. Why not me, too? I’m not afraid and there’s nothing…nothing left to do. More of the same. I don’t want it. Why didn’t you let me go?”
She grasped my hand. “It’s not your time yet.”
And then it was morning, that day or the next. A doctor—a cardiologist named Hayward—came to examine me. Elena excused herself. Hayward perched at the edge of my bed. He was a small man who wore round tortoiseshell glasses beneath which were quick, bright eyes that beamed rays of ironic intelligence. Despite his thinning hair and slight potbelly, he retained the air of a precocious child but he had the beleaguered smile of a man with too many demands on his attention.
“How do you feel today, Henry?”
“Forget the soothing bedside manner,” I replied. “Just tell me what happened to me.”
“You had a heart attack—actually we call them myocardial infarctions, now, or M.I.’s—and you lost about twenty percent of your heart.”
“Lost?”
“It died,” he said. “That’s what M.I.’s do. They kill a portion of the heart muscle. The quality of life depends on what the remaining capacity can handle.”
“How can I even be alive if twenty percent of my heart died?”
“Well, fortunately,” Hayward said, grinning, “the body is rather overengineered with excess capacity.”
“What, like an SUV?”
He laughed. “Something like that.”
“Am I going to require some kind of surgery?”
“Not necessarily,” he replied. “If there’s arterial blockage, we can often open it up with angioplasty, and there are also preventive treatments. Surgery is a last resort.”
“My sister said my heart stopped.”
He nodded. “Yes, you died for almost a minute. When you came back, you were asking for her. In Spanish. I speak enough to understand what you wanted, so we tracked her down. That took some doing. She wasn’t in your medical power of attorney. I had to call your lawyer to find her.”
“I know. My sister and I aren’t close.”
He looked at me quizzically. “It seemed urgent to you that she come.”
“Thank you,” I said, declining his implicit invitation to explain.
“Sure,” he said. He hopped off the bed and patted my head. “I’ll see you tomorrow.”
For most of our lives, we had been brother and sister in name only. My father’s drinking and violence had made for an unpredictable and terrifying childhood. My mother retreated into religion, leaving Elena and me to fend for ourselves. We each survived in our own way; I, simply, began to disappear, spending more and more time away from home, at school, at the houses of friends, at the city library, at the track field, anywhere I could find a refuge from my father’s rage and my mother’s sadness.
While I found ways to escape my family, Elena stayed behind but learned how to occupy space without calling any more attention to herself than a chair did. She was obedient, dutiful and quiet; I could only look bad by comparison. But children reveal themselves to each other in ways that are not apparent to grown-ups, and there were moments when I understood she was not quite the girl she pretended to be at home.
My most striking memory of this was when I saw her with her friends one afternoon while I was taking the long way home from school to eat up time. I passed a hamburger joint where a group of teenage girls—I was nine or ten—were sitting at a picnic table drinking Cokes and smoking cigarettes. I noticed them because they were wearing the blue-and-white uniforms of the parochial high school Elena attended. One of the girls was sitting with her back to me, having her hair brushed by a girlfriend. When the first girl turned slightly to address the second, I saw it was Elena. Her hair, which at home she wore in a long braid, spilled down her back and across her blue-sweatered shoulders. I was as startled as if one of the nuns who taught at my elementary school had suddenly removed her wimple. Even more shocking, she lifted a cigarette to her lips and inhaled with perfect aplomb. After a moment, I continued on my way without her having seen me and wondered what to do with this information. In the end, I could see no way of using it to my advantage, so I kept it to myself, but I looked at her differently after that. When she sat quietly at dinner as my father raged at my mother or me, delicately cutting her food into small bits that she pushed around her plate without eating, I knew she was also silently plotting her exit. A week after she graduated from high’ school, she entered the convent of the Sisters of the Holy Cross. I would not see her again for five years, and by then we were strangers to each other. We had remained strangers for many years, until she asked my help in a legal matter that forced us to reveal parts of ourselves to each other that we had kept hidden. Elena, who had by then left her religious order, came out to me as a lesbian; I told her about my own struggles with my homosexuality and alcohol. She met my lover, Josh, who eventually died from AIDS, but while he was alive, he badgered me to keep in touch with her and we had formed the fragile bond of two people who had survived a catastrophe—the cataclysm of our childhood. After Josh’s death four years ago, Elena had tried to keep the connection alive, but I had only sporadically responded to her calls and e-mail. I had been startled by her appearance in the hallucination I had had in the emergency room, and I was still puzzled by why I had called for her and why she had come.
Elena had gone to call her partner, Joanne Stole, a painter who taught in the art department at the same school where Elena taught in the English department. I knew almost nothing about Joanne except that she seemed to disapprove of me.
When she returned to the room, I said, “How is Joanne?”
“She’s fine, Henry,” Elena said. “She sends her best wishes.” She picked up her book.
“I’m sorry I caused all this trouble for you.”
“You’re my brother.”
“Joanne’s your real family.”
She put the book down and studied me for a moment. “The first time the hospital phoned, they told me you were dead,” she said. “Two minutes later, they phoned again and explained they’d made a mistake, but the sadness I felt after that first call was indescribable.”
“It’s not like you to be sentimental.”
“I’m not sentimental,” she said. “But I trust my feelings. I felt that terrible grief because we have never resolved the things that have estranged us all these years.”
“What things?”
“To begin with, you could forgive me.”
“For what?”
“For not protecting you from Dad when we were children.”
“That wasn’t your job.”
“I know that now but at the time I thought it was, and so did you. You looked to me for protection.”
“I don’t remember anything like that.”
She reached into her purse and handed me an old snapshot. A little girl in pigtails happily held a laughing toddler in her lap. With astonishment, I recognized them as the children in my emergency-room hallucination. Elena and me. In the picture, her skinny arm encircled my waist possessively, as if to keep me from squirming away. I remembered how, in the hallucination, she had dragged me back from the light. The sensations came back with such clarity and force that it seemed like a real memory, not a dream.