Unforeseeable? Why Use an Unusable Standard?

I was doing some research today when I ran across Metrish v. Lancaster, a US Supreme Court case which was primarily an AEDPA decision, but which had an interesting discussion on the retroactive application of judicially made changes to laws. We all know that laws passed by legislatures cannot be applied ex post facto. However, the courts have largely exempted themselves from this constitutional requirement, although still subjecting their changes to a far less stringent due process standard. Here is my breakdown of that part of Metrish.

Metrish v. Lancaster, MAY13, USSC No. 12-547: (1) If a law is judicially changed in an unforseeable manner after the date of the offense then applying the change to the defendant violates due process. (2) Retroactive application of a judicial decision which is a judicial expansion of narrow and precise statutory language violates due process. (3) Judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where the alteration is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. (4) Judicial abolishment of an obsolete common law rule which has never been relied upon by the appellate courts (outside of dicta) does not violate due process. (5) Applying (a) a post-offense superior appellate court's ruling (b) which overruled an inferior appellate court's well established interpretation of a statute (c) when the superior appellate court had not previously addressed the statute's interpretation (d) does not violate due process.

Metrish is a murder case in which diminished capacity was a recognized defense, under a line of cases from the Michigan Court of Appeals, when the defendant committed the homicide. However, before the trial under appeal was tried the Michigan Supreme Court, in a case of first impression, overruled the Court of Appeals. It ruled that Michigan statutes did not allow a diminished capacity defense. Therefore, the defendant was not allowed to use diminished capacity as a defense.

What the Opinion Should Have Said

Personally, I think the Supreme Court got this right, but for the wrong reason. If the court had said this was a matter of procedure rather than substance I think it would be a better decision. The substance of the crime remains the same; the elements of murder remained the same as they had been prior to the homicide. What changed was whether an affirmative defense was allowed. Whether something is allowed as an affirmative defense is a matter of procedure and the usual breakdown is that a court should apply the substantive law in place at time of offense and procedural law in place at time of trial.

Foreseeability Failure

Instead, the Court went with the incredibly subjective and unworkable "unforeseeability" standard.  This has all sorts of problems. In a case involving the substance of a law it would violate the requirement that notice be given that something is illegal. Notice of current status of the law is contained in the existing statutes and case law. A person does not have notice of something that won't be in the case law until six months after he does an act which falls afoul of it - no matter how "foreseeable" the change might be to an appellate judge who is watching trends in American law and has definite opinions as to where the law is heading.

Part (2) above refers to a case from South Carolina in which a statute defined trespass as entering property after barred. After the defendants had committed their act, the South Carolina Supreme Court made a ruling that the statute also applied if a person refused to leave a property after being told to. The US Supreme Court said this was an unforeseeable expansion of the law which was not in place at the time of the defendants' act and therefore the change in the law could not be applied in their case.

Note that this was a change in the substance of the law.  No matter how strongly the Court asserts the opposite, there's nothing terribly unforeseeable about a trespass statute applying to people who refuse to leave a property after being barred. However, as a substantive change in the law it would have easily fit under the framework I suggested above.

Parts (3) & (4) above refer to a case in Tennessee wherein the "year and a day" rule was eliminated by the appellate courts after the defendant did the act which eventually led to the death of his victim. In that case, the Court ruled that because the national trend was to eliminate the rule and Tennessee had only referred to the rule three times "in dicta" that the change was foreseeable. This shows something of an ignorance of how trial courts work. Accepted law, even as laid out in what courts may later dismiss as dicta, is applied over and over again in trial courts once it has been recognized by appellate courts. This sort of change is not "foreseeable" in the trial court until it takes place. In fact, the trial judge who refused to apply the rule that his appellate courts had previously recognized was technically in error until the appellate courts abolished the rule.

Whether or not the abolishment of the year and a day rule was foreseeable depends entirely on 20/20 hindsight. It was just as foreseeable that a longstanding doctrine recognized by the appellate courts of Tennessee could stand. However, as this is an affirmative defense it would be a procedural matter and easily fit under the framework I suggested above.

Finally, part (5) above is the rule in this particular case. Here is where the foreseeability standard really starts to sputter. The Court wants us to believe that when an intermediate appellate court has expressed the same opinion several times without the intervention of the state supreme court that we should foresee the state supreme court withdrawing its tacit approval of the intermediate appellate court's opinion. Is it foreseeable? Sure if you mean foreseeable in absolute terms. I mean, it's foreseeable that the US Supreme Court could overturn Griswold in the next term. Is it going to happen? Nope, but it's not unforeseeable. On the other hand, if they mean foreseeable as so clearly going to happen that trial courts ignore the intermediate court's precedent, how often does anyone see that? Maybe foreseeable is meant as probable? Legitimately possible?

Personally, I think the most likely meaning is "probable." However, that ambiguity is not resolved in this case.  Even if it did mean probable, it's not probable that a state supreme court would overrule a set of opinions it has given tacit approval to by not overruling previously. Does it happen? Sure it does. Is it likely in any particular set of opinions? Nope.

In other words, it was not foreseeable. It was a procedural change, but it wasn't foreseeable.

You have to wonder why the Court would use an unworkable "foreseeability" analysis when the simpler substantive/procedural analysis of the situation was available.

The Doctrine of Chances In Arson Cases

I'd never heard of this doctrine prior to getting involved in some arson cases lately, which seems to be where we see it the most in the U.S. Has anyone else seen this used and, if so, in any cases other than arson? What follows is a section of a brief which I wrote in one of the arson cases.

One fire, completely believable. Two fires, wicked bad luck. Three fires, no way.

State v. Vuley (Vt. No. 2011-087, 2013)

The man who wins the lottery once is envied; the one who wins it twice is investigated.

U.S. v. York, 933 F.2d 1343 (C.A.7 (Ill.), 1991).

The doctrine of chances (also known as the doctrine of objective improbability) is generally recognized to have sprung from the English case of Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915)(the death of a third wife by drowning in a bath tub allowed introduction of the first two wives' deaths by drowning in bath tubs) and to have entered American jurisprudence in United States v. Woods, 484 F.2d 127 (4th Cir. 1973)(when the seventh child in a woman's care died with symptoms of cyanosis evidence of the prior deaths was admitted to establish the corpus delicti). However, as Woods recognizes, there was already long established precedence in American common law that “prior acts can be proved to establish the corpus delicti of arson.” Id. At 135, citing State v. Schleigh, 210 Ore. 155, 310 P.2d 341, 348 (1957) (eight fires along the same road the defendant was on were allowed into evidence to show motive, common scheme, and to negative inadvertence); State v. Smith, 221 S.W.2d 158 (Mo. 1949) (proof of a prior fire was admissible to show that a second fire was incendiary); People v. Wolf, 334 Ill. 218, 165 N.E. 619 (1929) (proof of fire in the house was admissible to show that the burning of the barn was caused by human agency); State v. Ritter, 288 Mo. 381, 231 S.W. 606 (1921) (proof of prior fires admissible to show intent, show that the fire in question was of incendiary origin, and also to prove the corpus delicti, or connect the appellant with same); People v. Jones, 123 Cal. 65, 55 P. 698 (1898) (proof of burning of four separate buildings admissible to prove corpus delicti).

The purpose of the admittance of prior occurrences under the doctrine of chances is to show that lack of accident or, as older cases state it, to “negative inadvertence.” This doctrine is particularly well suited for cases in which insurance claims are involved. In York, supra, evidence of one murder where the defendant was the beneficiary of a life insurance policy on the deceased was admissible in a later murder trial where the defendant was the beneficiary of a life insurance policy on another deceased. Of course, insurance claims are also involved in arsenous fires. “Where the same person has a series of fires and collects insurance, it furnishes a basis for an inference, of more or less strength, that the fires were not accidental.” People v. Harris, 263 Ill. 406, 418 (Ill. 1914). See also People v. Mardlin, 487 Mich. 609 (2010)(four previous fires with insurance claims allowed into evidence in trial of a fifth fire with an insurance claim), & State v. Allen, 301 Or. 569, (1986)(proof of an arson with an insurance claim in 1975 allowed as evidence in an arson with an insurance claim in 1982).

Survivor: Chapter Fourteen

When I woke I was back in Lexington proper. I was lying on the grass in front of the courthouse and as I sat up I could see that the area in front of the courthouse had been converted into some sort of triage. To my left were a couple dozen injured women and one man.

“Dammit, Ducky, don’t you believe in bringing anybody back alive?”

I looked up to see Sanchez standing above me. I tried to get up, but my legs wobbled and I ended up falling back to the grass. Sanchez just grinned.

“Stay down. Nothing wrong with you that a good night’s sleep won’t fix. That asshole split your reality - just yours - and the remerging zonked you. Best I can figure he thought maybe it would weaken you enough to give Taug a shot. Over four hundred dead goblins later, he learned better.”

I shook my head causing a burst of pain in my temples. That took a second to clear. When it was mostly gone I looked up at Sanchez.

“That doesn’t make sense. He gave me the weapons which kept me alive.”

“Gave you . . .” Sancez’s eyes widened and she knelt down next to me. “Ducky, please tell me you didn’t take anything from that dirtbag.”

“He said he owed me for Taug. He gave me tactical gear and some sort of super pistol. He said it would more than make up for Taug’s actions.”

“More than? You sure he said more than?”

I thought for a second and nodded.

Sanchez put her head down with her left hand covering her eyes. Then she sighed and looked at me.

“Ducky, exactly how stupid can you be? He was playing you. It was all a big game. Always is to him. Sacrificed all those goblins, trolls, ogres, and even Taug just so he could put you in his debt. Asshole.”

I wasn’t sure if Sanchez was talking about me or Svarog and at the moment I didn’t care. I’d just incurred a debt to an incredibly powerful being who did not wish me well.

This day sucks.

Survivor: Chapter Thirteen

Svarog strolled down stairs and walked toward the Captain and Taug. They were frozen in place with the dragon on his back and Captain Long kneeling on his neck, about an inch from driving the long end of the ankh through Taug's right eye.

He nodded at Sanchez. "What a mess. You know I never play this sloppily."

She nodded back. "I know."

He stood next to her about five feet from the frozen combatants and looked down at Taug. "I know you can hear me because I left everyone’s senses intact and brains functioning.”

“You’ve always been a problem child Taug. I have to keep a leash on you all the time to keep you from doing something stupid. And now you’ve managed to do something even I couldn’t ameliorate. Let me list the ways you've mucked everything up.”

He lifted one finger on his right hand. “You’ve damaged my Market. I’ve been building Lexington into the biggest supernatural market in the New World since 1782. In a single hour, you have done so much harm that the market in Barinas has a sixty-two percent probability of surpassing us for the first time in more than a century.”

He lifted a second finger. “You’ve now established that the CIS can come into my part of Lexington. Before today it was an open question whether they had jurisdiction here. Now it’s going to be an exercise in futility to deny them. Your stupidity brought them in force. Because of you, they showed up with a Ma'at, an Ifrit, the Survivor, and," He pointed at Sanchez, "One of them."

He held up a third finger. "You interfered with my plans to return to the reality on the other side. You’ve muddled at least a dozen potential realities and,” He pointed at Margaret, “Even mixed in a predicted and conformed reality so that I couldn’t intervene to stop you until it was certain she would survive. This fiasco single-handedly reduced my probability of success from eighty-two percent to twenty-seven.”

He held up a fourth finger. “Worst of all, you failed. I cannot abide failure by those acting in my name. Stupidity I can work with and correct for. Failure is unforgivable.”

“I want you to know that I could save you Taug. I won’t, but I could. This moment I have bound in place shall last maybe a minute or two more. I leave you to the tender mercies of the Ma’at.”

With that, the man in the red and green soccer jersey turned to leave, only to have Sanchez put a hand on his shoulder. She looked between me and me and then looked at Svarog. “Fix it.”

He smiled at her. “Well, since you asked so nicely.” He turned, pointed two fingers at the other me, and flicked them in my direction.

PAIN!

Every nanometer of my body burst into instant screaming pain. And then it was gone. I found myself on my knees, my whole body shaking, and being flooded with two sets of memories of the last hour. Then a wave of weakness swept over me and I slumped to the ground. The last two things I saw were Svarog closing the door behind himself as he went back into the courthouse and Sanchez positioning herself on the outside of Captain Long’s left arm and taking a firm grip. Then things faded to black.

Survivor: Chapter Twelve

This time the old woman was ready. As my arm came up, she dove backward and my shots passed harmlessly through the air she had occupied a second before. The goblins returned fire and one of the ogres stepped between me and the bullets. A second later she screamed as twenty rifle rounds tore into her skin. She fell, bleeding from wounds no regular rifle could cause. Realizing the bullets were silver, the second ogre turned and ran, only to have twenty more bullets smash into her back and send her sprawling. I was running for a nearby building and shot its window out, fully intending to dive through it into cover. I could hear the labored breathing of Margaret as she followed as quickly as an ogre could.

Then, hundreds of huge feathers came flying through the opening of the Army tent and every supernatural in the Market stopped. They all stared at the feathers as a single feather flew to each of the dead bodies. As the feather settled it seemed to push the body down into the ground until a second later the ground closed back over each body. The remaining feathers floated above everyone in the Market except me.

The supernaturals remained still. Fear was evident in their faces. Even Taug looked like a couple shades lighter until one of the trolls leaned over and whispered to him.

Smoke rolled from his nostrils as he snapped back at the troll. “I know damn well that the feathers mean a Ma’at is coming. Keep your shit together. He can’t judge anyone who’s still alive.”

The dragon turned to face the tent and the trolls turned with him. When the goblins started to turn as well, Taug barked at them to keep facing us and to "shoot the ogre first if that monkey does anything!"

Then Captain Long and the entire CIS team walked out of the tent in the same square formation it entered in - including me in the center. I blinked and looked again. Yeah, that was me standing in the middle of the formation holding my shield above my head. What the hell?

Taug let loose a roar and fire streamed from his mouth and nose. It shot toward the officers, but Sergeant Sanchez stepped forward and put out her right hand. The fire twisted toward her and she caught it. Then she held the hand palm up, with a two foot roiling ball of flame on top of it.

"Interesting. Attacking me with fire isn't usually the first choice."

With that, she closed her fist and the flame was gone.

"You're . . . You're a . . . You're not a Ma'at!" Taug stammered.

"No." Sanchez nodded agreeably and pointed at the Captain. "He's the Ma'at. And I'm pretty sure he has something he wants to say to you morons."

The Captain stepped forward, giving Sanchez a strange look as he stepped past her. He held an ankh in his left hand and some sort of staff in the right. He stopped about three feet past Sanchez.

“You have two options. Surrender and go to the Michaels or be judged.”

I saw the troll who had spoken to Taug wince and heard Margaret gasp behind me “Oh God, he’s going to judge them.”

All the supernaturals were facing the Captain now. The goblins pivoted to face him the moment he said the word “judged.” The fear on their faces was that of sheer terror. I think the only reason they weren’t running was the basic instinct not to attract the attention of a predator.

Taug took a step forward. “You can’t judge us yet. We ain’t even dead. You can’t judge those of us still living.”

Captain Long looked at him levelly. “I can render you judgeable. It’s what we do. It’s what I prefer.”

With that every single member of Taug’s crew broke. The troll who had spoken with Taug was the first to run and it snapped the others out of their stasis. They scattered, although the majority were running roughly in my direction - away from the Captain. The only exception was Taug, who screamed a high pitched wail as he charged, stretching his neck forward as his jaws sought the Captain’s head.

The next thing I knew, a troll was ten feet from me and about to run right through me. I raised my pistol, but a giant moss green form stepped past me and slapped it in the head.

“STOP.”

The world froze. I don’t mean that the people in it stopped moving. I mean everything in it froze in place. The slap in front of me stopped with the troll’s head whipped to the right and its feet just an inch or two off the ground.

I looked around, unsure how I was still able to move. The entire area was a diorama with the exception of four forms. I was moving. Sergeant Sanchez was moving. The other me was moving.

And Svarog was standing on the steps of the courthouse.

Survivor: Chapter Eleven

I don't exactly know what a handheld mass driver from the Republic of Wyoming is, but whatever it is, it's a sweet weapon. No recoil. No bang; just a loud hum. Best of all, it's accurate as hell. A three round burst went down range and slammed into the charon. She was blown clean off her feet and sent tumbling at least twenty feet across the pavement.

Then, I swung the pistol up at Taug. Except, he wasn't where he'd been a half second before and this burst went into a hapless fairy, blowing off its arm and sending the screaming fay careening backward to smash into a building. The creatures in the air scattered and I could see Taug almost at the corner of the street, banking left to fly behind a building. I fired the pistol as quickly as I could, trying to fill the sky into which he was turning. His left wing shredded, but momentum carried him behind the building and that was immediately followed by a loud crash.

I looked around. A few hundred goblins and the trolls were all frozen in place, staring at me. I raised the pistol in front of me. "Alright you primitive screwheads! Listen up! This is my . . ."

Apparently, goblins don't care for monologuing any more than I do, because they charged as one giant, ravenous horde.

For my part, I took one look at that mob and I ran. I went right, which was where the fewest goblins were and started using the pistol more like a water hose, firing it at an arc to clear the area in front of me. I was trying to make it to the first ogre cage, in the hope that I could climb into the cage where that mob couldn't get me. I could see that the cages were only latched closed. Things were pelting off the shield as I held it between me and as much of the mob as I could. Some of them had gotten around behind me and I felt things hitting my back as well. Then something well and truly rang my bell.

I stumbled, but didn't fall, and on pure instinct kept running for the cage. A couple seconds later, when my brain kicked back in, I realized that I'd run to the wrong place. Instinctively, I'd run to the ogre chained to the front of the cage, but the entrance was on the side and the goblin swarm was already there. In fact, the swarm had closed around me although it seemed cautious about coming closer. They formed a half circle around me and I backed up to the bars of the cage. I wasn't sure what was keeping them at bay, but I was fresh out of ideas.

I raised the shield and pointed the pistol at the goblin directly in front of me - which meant I was totally unprepared when one rushed me from the left. He moved fast and I tried to catch him with the shield.

Then a massive ogre body slammed up into the other side of the bars and two giant fungus colored arms reached over me to crush the goblin's head between them. The goblins all stepped back. Apparently the idea of facing me and the superpistol which had already taken dozens - perhaps scores - of their lives wasn't too much of a problem, but coming within arms reach of a chained ogre who might kill one or two was a terrifying prospect.

Wait a second Chains. That was it! I yelled to the ogre pressed up to my body through the bars. "Hold your arms out and as far apart as you can!"

She did it and the two massive hands had silver manacles at their wrists bound together by a thin silver chain about four inches long. It wasn't much, but it didn't need to be considering an ogre’s total inability to break silver chains. However, my pistol had no such problem and it made short work of two or three of the links.

Her hands pulled back into the cage and I could hear her removing the gag. A gravely voice came from behind me. "Thanks, monkey boy." Then the voice changed to a roar.

"It's time to kill vermin!"

The voice echoed off the surrounding buildings and at least half the goblins broke. They lit out like proverbial cats with tails a'fire. The other half swarmed the gate to the cage. The smarter ones tried to keep her from reaching through the bars and opening the latch. They delayed her for about ten seconds as she swatted away several and crushed the one which had curled its body around the latch. Once the latch was loose, she slammed the gate open causing a dozen goblins to fly back and crushing at least half that many when the door swung fully open against the side of the cage.

Then she was in amongst them. They were all over her, literally climbing her body as they attempted to stab, claw, and bite her. The ones that weren't climbing on her were shooting their pistols at her. They were hitting their own kind more than the ogre and even the shots which got through were ricocheting off her skin back into the goblins surrounding her. As for the ogre, she was crushing the skull of any goblin she got her hands on and stomping any she could get beneath her feet.

Me? I was getting totally ignored. Not that this was a bad thing. There was an indicator on the side of the pistol which said I had ninety-two rounds in it. That was up seven from when I'd shot my last goblin. If I had to start firing again I was pretty sure the thing would run dry long before I ran out of supernaturals to shoot.

Then the ogre turned and started walking toward the second cage. Her voice came back to me. "Move it, monkey boy. I need you to get the others free."

I didn't exactly follow her. Actually, I went around the other side of the first cage and made sure I kept a good distance from her and the suicidal goblins surrounding her. When we got to the second cage, she went to the gate and fought through another group of goblins to get it open. Approaching the cage from the other side, I shot a few goblins and found the second ogre with her body already crushed against the side of the cage and her arms extended. I knelt under her arms and shot through the links on her chains. She didn't even bother taking the gag out of her mouth before she charged out of the cage and started slaughtering goblins.

The goblins broke entirely this time. Every single one of them who could run away did and the last few still fighting were finished off within seconds. Then the three of us walked over to the third cage.

On the way, the second ogre pulled off her gag. "That's the last time I trust a man with anything kinky."

Ogre one chuckled. "That how they got you, sweetie?"

"Yeah. Met the guy at a bar. He had one of those cool foreign accents. 'C'mon luv. It will be a jolly good time for all.' I figured what the hell, if he gets too weird I can change and take care of him. Didn't realize the chains were silver until he had them on me. The gag had silver thread in it too. But you know the worst thing?"

Ogre one shrugged and the second continued. "He didn't do anything. Up to that point he was all into it. The moment he had me trussed up he stopped, turned on the light, straightened his tie, and made a call on his cell. 'She's in room six twenty-two; ready for pickup.' And then he just walked out. Only thing I can figure, the guy must have been gay."

The first ogre was trying so hard not to laugh that she was shaking and the second snapped at her. "So, how did you get here?"

"Oh, I was betrayed by my partner. And he's going to hear about it when I get back to New England. But I am not going to fill in the details in front of Officer Friendly here." She hooked a thumb at me.

I shot the manacles off the third ogre and she came out of her cage.

I looked her over. "Margaret Terrel?"

"You know damn well who I am Corporal Dixon." The frost in that voice could have frozen the Ohio River. "And I want to know what you are going to do about them." She pointed behind me and the other ogres and we turned to look.

The old woman was back at the flap of the Army tent still holding her hands up as if to keep a door closed. I was impressed. I'd seen the rounds from this pistol go through four or five goblins per shot. Nevertheless, she was on her feet. I could see a huge bruise forming on her neck and she appeared to be straining hard at whatever she was doing, but she was on her feet.

Standing beside her were the three trolls, about twenty goblins with rifles, and Taug. His left wing was dragging on the ground behind him, but he was there.

"Congrats." Taug said. "Good fight." He looked around at the carnage. "I think you may have singlehandedly solved the goblin overpopulation problem in Ohio. It'll be hard for them to spawn more since you've killed more than half their females. And, of course, their failure here today means that I’ve destroyed all their incubation nurseries and in the process killed every goblin under the age of twelve. The only ones left are the spawn of these ladies here." He motioned toward the twenty goblins with rifles. “And they are willing to die to keep their spawn alive."

“And in case you don’t know . . .”

This guy is never going to learn to stop monologuing. I raised my pistol and shot the old woman.

Suvivor: Chapter Ten

When I walked outside the scenery had changed. A lot of the tents were trampled into the ground and most of the others looked empty. The merchants under the metal pavilion had abandoned their tables and it looked like they left their wares behind in their haste. And the entire area was swamped with goblins.

They were about two thirds the size of men. Each of them had orange and brown stripes painted diagonally across its face and they were all wearing Cleveland jerseys. Even worse, they all had pistols on their hips and a few even had rifles slung across their backs. Fortunately, none of them were paying attention to me at the moment, they were too busy looting and fighting and generally just being chaotic.

I looked for the little Army tent and it was back in its place with the old lady. Only, this time she was standing and had both hands pressed against the closed flap like she was holding something in. Between me and the tent were three of the biggest trolls in existence. At least they looked that way to me. It was clear that they were not going to let me leave easy.

Then a voice came from above. “I see the boss has finished discussing whatever the deep topic of the day is with you.”

I looked up to see the sky filled with harpies, gargoyles, and at least two or three fairies. Directly in front of me, flying in a lazy circle, was a brown-green lizard with two legs folded under its belly and wings spread over a ten foot span.

The lizard spoke. “The boss likes to talk too much. That’s why we’re around. He talks. We do all the nasty things that need to be done. And you’re a nasty thing that needs to be done.”

“The way I see it,” The lizard went on, “You can surrender and become my slave, you can try to get through all of us to escape, or you can die trying to save the girls.”

One of his feet kicked out a bit and at that signal a bunch of goblins pulled down three tents. Inside each was a metal cage with a female ogre in it. Each had her hands chained to the bars in front of her and a massive gag in her huge ogre mouth. Even if I was willing to abandon two of them, there was no way I could tell which was Margaret Terrel.

The voice from above went on. “I thought of piling logs against the cages and setting bonfires, but I figure by now you know Ogres are too tough for that. So, instead I’m going to . . .”

Enough of the monologuing. I raised my pistol and shot the old woman.

Survivor: Chapter Nine

I followed the dark haired man as he walked up to the door of the old courthouse. He pushed the door open and waved me inside, but I stopped and pointed for him to go first. He grinned and walked through, holding the door so it wouldn’t slam in my face. I followed.

Inside the building was a shell. There were no walls and no floors above the ground level. Looking up I could see the inside of the dome, which I was pretty sure had been covered by a drop ceiling years ago in the mundane world.

Immediately in front of us was an area with a futon, recliner, and thirty-two inch television. It was an exact duplicate of the furniture in my apartment. The rest of the building was empty.

He sat in the recliner and motioned me toward the futon. I remained standing.

“What’s going on here?” I asked.

“Well,” he answered, “That’s a deep question. Games within games are being played. There are games of the moment within games of years within games decades in length within games lasting centuries within games played over millennia within the game whose duration is the entirety of creation.”

“I need to know something a little more specific than that.”

“Of course you do.” He paused for a second and then nodded. “Think of it this way. There’s a massive game of go and within the placement of each stone there are an almost infinite number of chess games being played and within each move on the chess board there is another almost infinite set of backgammon games being played and within every roll of the dice there are yet another infinite number of domino matches and within the placement of each domino is yet another infinite set of checkers games. Are you following me so far?”

“That’s not giving me a specific answer. It’s just saying the same thing a little dumbed down.”

“True. It’s just so hard to make things understandable for beings at your level.” He leaned back in the recliner and squeezed his eyes shut. “And reality being such a mess right now isn’t helping.”

“Let me try again. All your games are at the tic-tac-toe level. Except, the game is rigged so you can’t lose. Your opponent places an X. Then you place two O’s. Then your opponent places an X and you get to place two more O’s. You can’t lose.”

I started to speak, but he raised his hand in a halting gesture (without opening his eyes). “Wait a sec, I’m getting there.”

“There are problems surrounding your game. First, you were over five years early. This changed the playing fields of your tic-tac-toe games from two dimensional to three. You wouldn’t notice this much because your advantage means you’re still going to win, but those of us who watch these things see the difference.”

“And then Beatrice weighed in. Since she’s only one of the Disir, her ability to shape reality bounced right off you, but it hit the ogre full force. Her reality conformed to the reality of being in love with you and moving toward marriage while your half of that equation remained a black hole of pure free will. All of this has left local reality all screwed up.”

I’d had enough of the metaphysics lesson. “That’s all fine. What’s it got to do with what’s going on right now? I’m not here for a philosophy lecture. My job is to rescue the ogre and bring Taug to the Michaels.”

He sat back up with a sigh. “Yeah, about that. Taug’s my vassal . . . or, I guess a more modern term might be minion, although I don’t like some of the connotations of that word. Servant? Maybe?”

I started to turn to leave and his voice sharpened. “Hold on! Hold on! The point is, I’m responsible for his actions even though I did not sanction them. He thinks he’s doing something which will gain him favor with me. What he’s actually doing is acting as a tool of Beatrice’s predicted reality. Girl gets in trouble, girl gets saved, girl falls for hero. It’s so predictable. You’d think that in a post-feminist world we’d be past such tropes. Still, I guess as long as it works . . .”

He shook his head and stood. “Sorry, I have a hard time compressing my thoughts in a time frame suitable for your existence. Anyway, I shall have a long discussion with Taug after this is all over. Unfortunately, the predicted reality is just strong enough to keep me from intervening directly. Nevertheless, I can do two things for you. First I can re-equip you.”

With a wave of his hand, I was back in tactical gear. Except now the shield hummed with some sort of energy and I found a weapon in my hand which I’d never seen before.

“What’s this?”

“I owe you both for the act of my subordinate,” He grinned a little and I heard him mumble “better word” before he went on, “and for destroying your personal weapon. This tactical gear should more than compensate you fairly. The armor is adaptive and both your helmet and shield have repulsion capabilities. All of these have a ninety percent probability of being part of police gear in the next hundred years or so. The firearm is a military grade, handheld mass driver that has a sixty percent chance of being built by the Wyoming Republic in about two hundred years. I’m probably going to have to grease some palms and trade some favors to make sure it’s built. Don’t be surprised if the manufacturer’s name and nationality carved on the bottom of the handle change every so often as futures change and coalesce. It’s even an anti-supernatural model, so each pellet it fires has a core of oak molecules, surrounded by silver molecules, surrounded by iron molecules. It has the standard eight hundred pellet load and the catalyzer will generate a new pellet every ten seconds if not being fired. All this stuff is keyed to you. If you want any or all of it to appear or disappear, just wish it so. And no, you won’t end up stark naked.” He grinned. “The clothes you were wearing before will reappear.”

“The second thing I can do is urge you not to save the ogre.” He shook his head a bit sadly. “I know it’s a terrible thing to say, but it’s the smart move. Taug’s playing an angle. He thinks he can take away one of your O’s by making you follow Beatrice’s prediction and he may be right. Localized reality here is such a soup of free will, predicted reality, and the manipulation of your early arrival that I can’t read it well. If he does clip your wings, the fact that he moved first gives him an advantage and you probably have about a fifty-fifty chance. By now Suzie, the charon who runs the entry tent, is back. Taug couldn’t have afforded to bribe her to stay away too long. I’d advise you to go straight to the tent and leave. Remember, the prediction doesn’t affect you; there’ll be no consequences.”

“Sorry.” I started walking back toward the door. “Running away from danger’s not the job.”

“No, it’s not.” A voice from behind me said. “But I’ve never seen a constabulary teach heroic last stands as a technique either - well, outside of the old Romans, maybe.”

As I walked back out the door, I didn’t feel particularly Roman.

Survivor: Chapter Eight

The rest of the week the officers assigned the Southside beat the bushes and asked a lot of supernaturals a lot of questions. It wasn’t entirely useless. They arrested eleven supernaturals with mundane warrants pending and finally caught that alchemist who was selling temporary gold. However, nobody turned up the ogre girl.

Meanwhile, on the Northside I found out the hard way that if a coven of witches tries to cast a love spell on me it will boomerang on the entire coven - not just the hot seventeen year old they intended to use to control me. Thankfully, the spell wore off sometime Friday afternoon and I stopped having to dodge highly aggressive seventy and eighty year old women.

When Saturday morning rolled around the entire CIS team gathered in our basement office and geared up. By the time we were done everyone was wearing kevlar and helmets as well as carrying glass shields. Various members of the squad carried all sorts of other weapons, mostly consisting of different types of rifles and grenades. Sanchez even had a LAW rocket strapped on her back.

The Captain started his briefing at seven.

“Okay. Listen up. Everyone here, except Corporal Dixon, has been to the Market before. We’re going to hit it before many customers have arrived in order to minimize potential collateral casualties and damage. Standard square formation. Sergeant Sanchez and I will be in the front, four people on the right, four people on the left, and two in back. We’ll keep Corporal Dixon in the center since he’s the target. Keep shields facing outward, communicate any threat you see, and follow orders given by me or Sergeant Sanchez.”

“We don’t know exactly what we’ll be facing, but we also don’t expect anything terribly subtle. I expect we’ll know within seconds of arrival. Keep it together and keep it tight.”

With that, he motioned to Sanchez. As she stood she pushed a button on her cell phone. The phones of several officers in the squad beeped or buzzed - including mine - and she glared at us.

“First of all, why the fuck does anybody have sound or vibration turned on? Fix it.” She waited while we all fumbled with our phones and then pressed a button on hers again. This time there was no sound.

“Better. Now look at the picture I just texted you.”

It was a grainy, out of focus picture of a green-brown lizard with two wings and two legs. All-in-all, I could have made something that looked more realistic with the software on my computer.

“That,” Sanchez continued, “is the only known picture of Taug the Runt, Excommunicant of the Halls of Fire. He’s our target.”

"Taug's a dragon, but he's their version of a crippled midget. His power level is far below that of a normal dragon and he's only survived through the years by sheer cussedness. Still, we should be able to handle him."

"Right now we want him for abduction. I'm sure that when we turn him over to the Michaels they'll punish him for more than that. We just have to get him there."

"You all know the person we're trying to save. Maggie Terrel." She tapped her phone again and the next text opened to show a young woman in a sun dress. "Maggie's also an ogre, but there are no pictures of her in that form. So, be careful because we know she was taken in ogre form and she probably still is.”

She finished and the Captain walked back to the front. "Any questions before we begin the operation?"

"Yeah," Meiers voice came out of the crowd of officers, "Why are we doing this? Wasn't this a purely monster on monster thing? We're supposed to protect our own, not them."

There was a second of stunned silence and then the Captain spoke. "We are here to protect everyone in Lexington and that question is clearly outside regulations."

"No it's not. I read the regs Cap and they say we are here to protect people and property. And even the Lexington PD, in all its PC cow towing, hasn't defined monsters as things I'm supposed to be sensitive about." He waved his hand. "Or 'supernaturals' or whatever fancy name you want to put on them. So, I can ask things that need to be asked like, Why are we going in to risk our lives to save Sanchez's pet monster, Dixon's girlfriend?"

The Captain looked stunned. Then anger started to darken his face and he took a couple steps toward Meiers, but Sanchez calmly stepped between them, facing Meiers. She gave him a cold look.

"Twenty thousand dollars worth of damage done to a business owned by a mundane. The 'person' at the front cash register got a broken arm. These both fall under your damn narrow definition of our duties. So you're going to do this. Now shut the fuck up!"

----------

At exactly five minutes after eight, every member of CIS piled out of two white vans at the side of a closed off road behind the old courthouse. There was a steel pavilion and under it were a bunch of hippies and farmers setting up to sell fruits and vegetables. A sign attached to the pavilion proclaimed it to be "The Lexington Farmer's Market."

We walked past that market and went to a small tent set up on the other side. It wasn’t even fancy. It was just an old Army single pole tent with the flap closed. There was an old lady sitting on a fold up chair in front of it. She took one look at us, sighed, and folded the flap open.

We packed the square tight with overlapping shields on all sides and me holding mine overhead. We barely fit through the opening and as we walked through there was a gut wrenching feeling and I found myself standing outside the open flap of the tent by myself.

The old lady was sitting on her chair again. She grinned at me sheepishly. "Sorry about that. My job is to make sure only those who are allowed can get through. Right now entry is invitation only. Welcome to the Market."

She pointed behind me and I turned. The metal pavilion was still there, but now it was filled with fairies, dwarves, and even a couple trolls. All of them stood behind tables filled with objects ranging from necklaces to shrunken heads and every single being under the pavilion was staring at me.

I realized that I was still holding the shield over my head like an idiot and I pulled it down as I turned back around. The woman was gone. The tent was gone.

My heart started beating so hard that I felt like my chest might explode. I was trapped . . . somewhere, without support and with a dragon hunting me. I didn’t even know if the whole “survivor” thing worked here. After all, why would the dragon choose this place if it didn’t give him some sort of advantage?

But, then nothing happened for the next thirty seconds. And for the next thirty. I got control of myself and looked around a little more. The same buildings stood in the same places as they did in Lexington, except the areas between the buildings were filled with multi-colored tents. Most of them had open flaps and I could see tables set up in several. I looked more closely inside the nearest open tent and saw tables stacked with cages holding honest-to-goodness jackelopes. The goblin inside did his best imitation of a smile and pointed to an oversize price tag which read "$400 or 2 Minor Favors."

"They're not worth that." I turned with my shield raised to see a man on my right with short black hair; he was dressed in jeans and a red soccer jersey with "MAGYAR" across the front in green letters. "People only buy them to mess with mundanes. They're dumb as rocks, make terrible pets, and tend to draw chupacabras."

I stood there with the shield between us and he looked me up and down. "Yeah, you're not going to need all that right now."

With a wave of his hand all my tactical gear was gone and I was in my regular uniform. "There. That's got to be more comfortable."

I pulled my sidearm and pointed it at his chest as I moved back far enough to be out of arm's reach. "Identify yourself."

"Officer, do you really think I can't make that gun disappear?"

"I think the ammo in this thing is something you can't touch."

"You're absolutely correct." He nodded agreement. And my pistol vanished from my hand, leaving fifteen bullets to fall to the ground and scatter in front of my feet.

I stood there for half a second before I reached for the old fashioned night stick the CIS had issued me. It was an oaken stick with an iron core and had silver inlays. I stopped half way there when I noticed the man was chuckling.

“No. No. Don’t stop on my behalf. If you feel more comfortable waving a stick at me, go ahead.”

I just rested my hand on the night stick. “Who are you?”

“I’m Svarog and we better get off the street before that idiot Taug shows up.”