Accomplice Liability

by Stephen Penner

  “Did you hear that?” Chen asked. “Did you hear Derrick begging for his life?”

  But Rittenberger shook his head. “No, man. It was just, it was the tone, you know. Plus, he got down on his knees and was just like scream-crying up at Burner.”

  “Do you remember what Burner was yelling?” Chen tried.

  “No,” Rittenberger answered. “Like I said, it was just really interesting—probably ‘cause I was high—but I wasn’t trying to follow exactly what was going on. I mean, shit, I didn’t know they were gonna shoot him. I just figured he got caught stealing something and they were gonna beat his ass or something. Nothing serious.”

  An ass-beating for stealing something, Brunelle thought. Nothing serious. Welcome to the underworld of the drug culture.

  “Right,” Chen affirmed the sentiment. “So what happened next?”

  “Well, I was just kinda staring at Derrick. It was so weird, man. He was just, he was just on his knees, and he looked so scared, man. It was trippy. I was tripping. It was all, just, whoa.”

  Brunelle could imagine his closing argument: ‘Ladies and gentlemen of the jury, the murder of Derrick Shanborn was all, just whoa.’

  “And then,” Rittenberger went on, “it was just like, Bam! He got shot. And Bam! Bam! again. And I was like, Holy shit! And I just totally freaked out. I think I started screaming too ‘cause Burner just started yelling at everybody to shut the fuck up. And Derrick is just lying there, man, dead. Blood fucking everywhere. And Burner is telling everyone to shut the fuck up.”

  “So what did you do?” Chen asked.

  “I shut the fuck up, man,” Rittenberger answered. “Man with a gun tells you to shut the fuck up, you shut the fuck up, man.”

  “So he had the gun in his hand?” Jackson interjected.

  Rittenberger thought for a moment. “Yeah, I guess so. Yeah.”

  Brunelle smiled internally. That was huge. Good job, Detective Jackson.

  “Then what happened?” Chen followed up.

  “He told us all to clean up.”

  “Did you?”

  “Hell, yes,” Rittenberger answered. “He’d just killed Derrick, man. He was begging for his life and they just shot him. I didn’t know what they’d do to me. I was a witness. I thought I might be next. So yeah, I helped clean up.”

  “What did you clean up with?” Jackson asked.

  “Shit, I don’t know.” Rittenberger shrugged. “Whatever they gave me. Bleach or some shit.”

  “Then what did you do?” Chen asked.

  “After I was done cleaning?” Rittenberger clarified.

  “Yeah.”

  “I got high, man. Really fucking high. And I stayed as high as I could until you guys arrested me.”

  Brunelle had no trouble believing that.

  “Did you ever talk about it with Burner or Nate?” Jackson asked.

  Rittenberger shook his head strenuously. “Nope. Nobody.”

  “Not even Lindsey?” Jackson inquired.

  “Nope,” Rittenberger assured. “No. Body. I got as high as I could and stayed that way.”

  Chen nodded and looked to Brunelle. Brunelle was satisfied, for the moment anyway.

  “Okay, thanks, Barbara,” he directed his comments back to the attorney, rather than the client. “Let me consider this—” He caught himself and smiled at Carlisle. “Let us consider this, and we’ll get back you.”

  Rainaldi nodded. “Okay. Thanks, Dave. Call me if you have any follow up questions.” She turned to her client. “So that’s all for now, Josh. I’ll come visit you later today and we can talk more about what you said and what happens next.”

  Rittenberger nodded to express his agreement with his lawyer’s proposal. He didn’t really have a choice.

  But Brunelle did. Brunelle and Carlisle. Once they were back out on the street, Brunelle started the conversation.

  “So what do you think?”

  “I believe him more than Wilkins,” Carlisle replied.

  “Me too,” Brunelle agreed.

  “But he didn’t actually I.D. the shooter. It could have been either Hernandez or Wilkins.”

  Brunelle nodded. “That is a problem.”

  “And Ashford says she wasn’t in the room,” Carlisle recalled.

  “So neither of them can contradict Wilkins directly.”

  “I guess that means they could all be telling the truth,” Carlisle offered.

  “More likely, they’re all lying,” Brunelle opined with a frown. “And we’re running out of time.”

  Chapter 22

  The omnibus hearing was scheduled four weeks prior to the trial date. That was supposed to give the lawyers enough time to get their preparation complete by the omnibus, and the trial judge enough time to set new deadlines after yelling at them for not getting it done by then after all.

  The judge in question was the Honorable Susan Quinn. She’d been a judge long enough to see through the tricks the attorneys tried to pull on her. And before that, she’d been a lawyer long enough to have pulled all the tricks herself, so she didn’t get upset about it. The lawyers had a job to do, and so did she. Sometimes those jobs came into conflict. It was the nature of the system. She was a hard-ass without being a jerk about it. That was about the best a lawyer could hope for.

  Brunelle and Carlisle arrived at Quinn’s courtroom together. Brunelle had taken Carlisle’s criticism to heart and had swung by her office on his way to the courtroom so they could enter as a team.

  When they did, Team Jacobsen was already there. He had two suited underlings seated behind him in the first row of the gallery. And there was a stack of motions waiting on the prosecutor’s table.

  “Good morning, Mr. Brunelle, Ms. Carlisle,” he greeted them from the defense table as they walked in. “I must admit, I’m a bit hurt. You never called me to see if my client wanted to talk with you. Everyone else got to play.”

  “Everyone else doesn’t represent the actual killer,” Brunelle replied.

  But Jacobsen shrugged off the reply. “I suppose it depends whose statement you believe. Mr. Wilkins said there were three killers.”

  “Mr. Wilkins said your guy shot first,” Brunelle replied. “And anyway…” But he trailed off. He was about to say they weren’t planning on using Wilkins, but that exact decision hadn’t been made yet. The plan was to see how the omnibus hearing went, then make final decisions. But it would take some sort of unforeseen disaster for Nate Wilkins to supplant Josh Rittenberger on the state’s witness list.

  “It all sounds very confusing,” Jacobsen opined. “In fact, it sounds remarkably like reasonable doubt. Are you sure you don’t want to speak with Mr. Hernandez? I could probably talk him into pleading no contest to a misdemeanor in exchange for his testimony.”

  Brunelle offered a saccharine smile but didn’t reply. He turned his attention to the stack of pleadings on his table. They were undoubtedly new motions, just filed by Jacobsen, to be argued at yet another pretrial hearing. Brunelle decided not to look at them just then. They were there for the motion to sever. Five motions to sever actually, one filed by each defense attorney. The only appreciable difference was the name of the defendant in the caption and the name of the attorney in the footer.

  He looked again at the stack of papers on his table. “I don’t suppose those are just additional copies of old motions?”

  Jacobsen offered a grin. “Exactly the opposite, actually. Originals of new motions. And I expect to have more when those are done.”

  Brunelle had expected as much. Jacobsen was being paid by the word, so he made sure there were lots of them, and multisyllabic to boot. But the rest of the defense attorneys were being paid by the office of the public defense. At a fixed rate. It wasn’t cost-effective to file frivolous, harassing motions.

  The motion to sever wasn’t frivolous. In fact, it probably would have been malpractice not to bring it. But regardless of the defense attorney who signed the brief, the issues raised were basically the same
for all of them. Each defendant was worried they’d be painted with a broad brush and the jury would have difficulty separating the evidence against one of them from the evidence against the others. And they were right. Which was why Brunelle would fight the motion.

  The other defense attorneys began to arrive for the hearing. The defendants were all in custody, so they had been brought en masse by the jail guards and seated in the jury box, with at least one seat on each side separating them all from each other. Looking at the collection of jail-garbed accused murderers in the box, Brunelle was reminded of Daniel Webster’s jury. He wondered whether he’d be able to summon the same articulateness when it came time for him to argue his case to the true jury of teachers, retirees, and others who could afford to be off work for the weeks and weeks a multiple codefendant trial was sure to last.

  The first attorney to approach Brunelle was Rainaldi. She leaned down and whispered into Brunelle’s ear. “So, do we have a deal?”

  Brunelle nodded, but also shrugged. “I think so. I’ll send you a formal offer this afternoon.”

  “I kind of need to know now,” Rainaldi responded. “If we don’t have a deal, then we need to note up the motion to sever.”

  Brunelle nodded again. “Understood. Let’s go ahead and note it for two weeks out. We can always strike it if—I mean, when—we work out the deal.”

  Rainaldi frowned slightly but agreed. “Okay. Is that what you’re doing with the others too?”

  Brunelle smiled. “What others?”

  Rainaldi surrendered her own, less enthusiastic smile. “Fine. Just send me that offer this afternoon. I need to know if I’m really going to trial. If not, great. But if so, I have a lot of prep to get started.”

  Brunelle understood that. Absent a plea of guilty by all five of them, he was going to have to do his own prep. He considered whether it would help to read that Daniel Webster story again…

  Brunelle was about to respond with some comment about his own trial preparation or whatever, but that’s when Robyn Dunn walked into the courtroom. He couldn’t help but notice.

  “Excuse me,” he said to Rainaldi, with a lesser gesture in the direction of Carlisle, who had been sitting quietly next to him at the prosecutor’s table. He stood up and headed for Robyn.

  “Hey,” he greeted her, although it was a bit awkward that he did so. He wasn’t the maître d’ for the courtroom.

  “Uh, hey,’ Robyn replied. “Did you come to escort me to my table?”

  Brunelle just shook his head. “No. I just wanted to say that I appreciate your representation of your client.”

  Robyn waited a moment. When Brunelle didn’t say anything more, she replied. “Okay. A compliment from the prosecutor about how to be a defense attorney. I guess I’ll accept it in the spirit it’s offered.”

  Brunelle gave a lopsided smile. “Thanks. It’s just too bad we can’t work together on this.”

  Robyn didn’t smile back. “We would never work together, Dave. Even if my client agreed to testify, I wouldn’t be working with you. I would be representing my client’s best interests. It’s possible that those interests might align with yours, but we wouldn’t be working together.”

  Brunelle’s smile, such as it was, faded. “Well, I guess it would feel like we were working together. For me anyway.”

  “I guess that’s what matters,” Robyn replied coldly. “How you feel.”

  As Brunelle reeled slightly, Robyn stepped to the side to go around him. “Now, if you’ll excuse me, Dave. I need to go talk to my client before Judge Quinn takes the bench.”

  Brunelle suddenly became aware of the room again. Carlisle, alone at counsel table after Rainaldi went to talk with her client, was staring at him. So were the two jail guards. Luckily, Jessica Edwards walked in right then, followed by Nick Lannigan. A study in opposites. Rather than greet them too, Brunelle returned to join Carlisle at their table.

  “Are you going to be able to focus on the case?” Carlisle asked. Her voice was serious, not mocking.

  Brunelle frowned. “Of course.” He picked up a couple of the pleadings and tapped them on the table to straighten them. “We need her client to testify. I was just trying to butter her up a bit.”

  Carlisle raised an eyebrow, but let it go. “Okay. Sure.” She looked around the courtroom. “So everyone is here. What’s the plan?”

  “The plan,” Brunelle answered, an experienced eye on the shadow appearing in the doorway to the judge’s chambers, “is to stand up.”

  “All rise!” the judicial assistant called out as Judge Quinn entered the courtroom. “The King County Superior Court is now in session, the Honorable Susan Quinn presiding.”

  “Please be seated,” Judge Quinn instructed once she’d ascended the bench. “Are the parties ready to proceed?”

  Brunelle, who had just sat down, stood up again to address the judge. “The state is ready, Your Honor.”

  This was followed by a disorganized series of ‘yesses’ and ‘readys’ from the various defense attorneys.

  Quinn looked out at her packed courtroom and frowned. The defendants were all still in the jury box, guards within lunging distance and unwilling to risk the chaos that might occur if they were required to seat all of the defendants next to each other at a table in front of the judge. The defense attorneys were scattered. Edwards was sitting next to Wilkins in the jury box. Robyn was standing just outside the box, next to Keller, who had received an outside seat. Jacobsen was seated alone at the defense table, his client barely within his field of vision. Rainaldi was standing behind Jacobsen, apparently unsure where to sit. And Lannigan had just taken a seat in the gallery—the second row of the gallery.

  Judge Quinn pursed her lips, then nodded to herself. “Okay. I’m just going to take over then. This is going to take forever if I let you folks direct the proceedings.”

  Brunelle had no problem with that. Quinn was right, and he had other things to do that day, just like everybody else. “Yes, Your Honor,” he said, as if the judge needed his agreement. Carlisle remained quiet and the defense attorneys threw in another discordant chorus of ‘yes your honors’ and at least one ‘sounds good.’ Judge Quinn couldn’t quite suppress an eye roll. Then she got started.

  “Trial is scheduled for four weeks from today. Is anyone requesting a continuance of the trial date?”

  All the attorneys answered in the negative.

  “Has all discovery been provided by the state to the defense attorneys?”

  All the attorneys agreed that it had.

  “Pretrial motions were due by this morning’s hearing.” Quinn went on. “Have they all been filed?”

  Brunelle patted the stack of papers on his table. “Yes, Your Honor.”

  “Is the state agreeing to any of the motions?”

  Brunelle knew that he would eventually agree to sever the trials of any codefendants who turned into state’s witnesses. But he hadn’t made that final decision yet. He had been hoping Robyn might have changed her mind. He was still hoping she might. Agreeing to any severance at that point would tip everyone off as to who was going to turn state’s evidence. “No, Your Honor,” he answered.

  Quinn sighed. “I was afraid of that. So we’ll need to schedule a hearing on the motions to sever. The five different motions to sever,” she added with obvious irritation.

  “There are five motions,” Brunelle replied, “but they’re not really that different. I think it was so many cut-and-paste jobs.”

  Quinn frowned at him. “The law is the law, Mr. Brunelle. I don’t need original prose. We’re not giving out Pulitzers here.”

  Brunelle nodded contritely. “Yes, Your Honor. I just meant to say that the issues will be very similar for each defendant.”

  Quinn did an even worse job of suppressing her next eye roll. “I’m not sure your opponents would agree, Mr. Brunelle,” she allowed. “We need to get these ruled on as soon as possible. Can we set them for next week?”

  At that, Jacobsen sto
od up to address the court. “I would ask that the motions to sever be set over for two weeks so that the court can address Mr. Hernandez’s additional motions in advance of that hearing.” He nodded toward the stack of papers on the prosecution table. “We have filed several motions in addition to those filed by the other defendants.”

  Brunelle looked down at the stack of papers with the name ‘Smith, Lundquist, Jacobsen and Brown’ in the bottom right corner. “That’s true, Your Honor.”

  “Any objection to hearing those motions next week, Mr. Brunelle?”

  “None, Your Honor,” Brunelle replied quickly. He’d anticipated the time table already.

  The other attorneys all agreed to setting the severance motions two weeks out.

  “Anything else, then?” Judge Quinn asked.

  Brunelle looked at each defense attorney in turn. All of them offered a shrug or shake of the head to confirm there were no additional issues for that morning’s hearing. “No, Your Honor,” Brunelle answered. He hadn’t looked to Carlisle before answering.

  “All right then,” Quinn exhaled. “Thank you for being on time and thank you for your efficiency this morning. If we can keep this up, we might get this case tried before the end of the year after all.”

  She stood up to leave and the judicial assistant barked out the “All rise!” order again. Once Quinn was out of the room, the defense attorneys went to the individual defendants to explain what had just happened and answer any questions their clients might have. Brunelle scooped up the defense motions and nodded to Carlisle, before the two of them exited the courtroom and turned toward the elevators.

  But Carlisle stopped them after a few steps away from the courtroom doors.

  “Don’t take this the wrong way, Dave,” she said, “but should I just skip the motions to sever?”

  “What?” Brunelle lowered his eyebrows. “Why would you skip them?”