Accomplice Liability

by Stephen Penner

  “You seem to have everything under control, I guess,” Carlisle replied. “I mean, you didn’t really consult me in there once the judge came out. I don’t want to sound ungrateful, but I have lots of other cases that need work. I can’t really afford to spend time coming to court if I’m just going to sit at the table and watch you answer questions about how the case should proceed.”

  Brunelle thought for a moment. He considered arguing with her. Instead, he said, “Sorry.”

  Carlisle’s expression softened. “It’s just... Well, it’s kind of embarrassing. I’m an accomplished attorney and litigator. I don’t want everyone thinking I’m just here to carry your briefcase.”

  “Of course you’re not,” Brunelle insisted.

  “Then include me,” Carlisle said. “Or let me go. It seems like you know your way around a murder case just fine.”

  “I do,” Brunelle answered. “But you know Jacobsen, and he just dropped fifty pages of motions on me.” Then he smiled, and Brunelle held out the stack of papers for Carlisle. “I mean, on us.”

  Chapter 23

  Three days later, Carlisle was in Brunelle’s office to discuss the motions Jacobsen had filed on them. On her.

  “I counted thirteen different motions,” Carlisle reported. “Although some of them kind of blurred into each other, or were repeated in a different pleading in a slightly different way.”

  “Sounds kind of sloppy,” Brunelle remarked. It was another nice day. The sunlight streamed in the window and lit the edge of Carlisle’s hair.

  Carlisle smiled sardonically. “That’s what you’re supposed to think. But really, it’s clever. It makes it harder for his opponent to respond. Make no mistake, he’ll be crystal clear at oral argument.”

  “So what kinds of motions are they?”

  “Mostly garbage, actually,” Carlisle answered. She pulled the top pleading off the stack. “Lots of demands for things.”

  “Like what?” Brunelle took a sip from his morning coffee. Drip, black, extra hot.

  “A bill of particulars, for starters,” Carlisle replied. “He claims we haven’t alleged the crime with sufficient particularity.”

  “His client murdered Derrick Shanborn,” Brunelle said. “How much more particular can we be?”

  “Probably a lot more, to be honest,” Carlisle admitted. “We aren’t exactly clear on how he died.”

  “He was shot. Three times.”

  “Okay, okay, right.” Carlisle held up her hands. “But we don’t say who did it. Was it Hernandez acting as the shooter, or was he an accomplice to someone else?”

  “It doesn’t matter.” Brunelle took another sip of coffee. “You get the same punishment whether you’re the principal or an accomplice.”

  “Agreed,” Carlisle responded. “But he’s claiming he can’t defend Hernandez if he doesn’t know whether we’re saying he’s the shooter or just an accomplice.”

  Brunelle shook his head. “He knows whether Hernandez shot. Hernandez told him.”

  “I’m sure he did,” Carlisle answered. “But we’ll never find out the content of that communication. It’s privileged. So it’s kind of irrelevant.”

  Brunelle nodded begrudgingly. “I know. But it’s stupid. It’s not about what really happened, it’s about what we can prove.”

  “And adequate notice to the defense attorney of what we’re going to try to prove,” Carlisle added. “Which brings me to kind of an important point. The other motions are similar. Basically complaining about a lack of notice as to what evidence we’re actually going to put on at trial. We’ve given him transcripts of all the proffers to date—Ashford, Wilkins, and Rittenberger—but we haven’t told anyone who we’re actually going with. I can’t really respond to these motions if I don’t know what factual theory we’re going with.”

  “Factual theory?” Brunelle repeated. “Our factual theory is the truth.”

  Carlisle sighed. “Whose truth? Wilkins’? Rittenberger’s?”

  “I dunno.” Brunelle smiled. “But that sounded pretty good, didn’t it? ‘Our factual theory is the truth.’ Yeah, nice.”

  Carlisle laughed a little. “You’re in a good mood today,” she observed.

  Brunelle returned the chuckle. The sunlight was still lighting up Carlisle’s hair, and accentuating the clean curve of her jaw. And his coffee was just the right degree of scalding. “I guess I am. It’s good to know these motions are in the right hands.”

  “Mine?” Carlisle confirmed.

  “Yes.”

  “So you’re not going to help at all?”

  Brunelle cocked his head. “I’m helping now, aren’t I? And anyway, you said you wanted to play a more active role.”

  Carlisle laughed. “I’m not sure I meant writing all of the responses to thirteen different motions to compel and dismiss.”

  “How about closing argument then?” Brunelle asked.

  Carlisle took a moment. “What?”

  “Closing argument,” Brunelle responded. “I think you should do the closing argument.”

  Carlisle took another moment. “You want me to do the closing argument on your murder case?”

  “It’s our murder case, remember?” Brunelle laughed. “And yes, I think you should do the closing.”

  “Why?” Carlisle asked. “I mean, don’t get me wrong. I’m flattered. But why would you give me the closing? I thought I might do opening, or maybe you’d do both opening and closing.”

  “No, I’ll do opening statement, but you should do closing argument,” Brunelle answered. “Opening statement is just a story. Letting the jury know what the evidence is going to show. But closing is when you explain to the jury what the evidence did show, and why it adds up to murder.”

  “Isn’t murder more your area of expertise?”

  But Brunelle demurred. “It’s not about murder, per se. It’s about logic, puzzle solving, explaining. It’s about taking all the disjointed testimony and exhibits, spread out over weeks of trial, and muddied and bloodied by cross-examination and inarticulate witnesses and jurors dozing off after lunch, and making it all make sense again.”

  Carlisle just looked at Brunelle.

  “That’s your strength. That’s why you’re on this case.”

  “Not because of Jacobsen?” Carlisle asked.

  Brunelle shrugged. “It’s related. Jacobsen represents the worst guy, and he’s filed the most motions. He’ll be the leader of the defense in the courtroom. You understand him. And you know how to clarify his disparate arguments—and destroy them. And that’s closing argument.”

  Carlisle leaned back in her chair and smiled. “Yeah. I guess you’re right. I’d love to do closing argument. Thank you.”

  Brunelle waived the thanks away. “Thank you for agreeing to do this case. I can take on one defense attorney, maybe two. But five? Six, if you count Welles. No way. I’d be overwhelmed.”

  But Carlisle narrowed her eyes. “You don’t seem like the kind of guy who’s easily overwhelmed.”

  Brunelle smiled. He was about to deliver a nice double entendre that he hoped might lead to dinner on Friday, but his parry was interrupted by a knock on his doorframe and the appearance of the short, stocky figure of Detective Tim Jackson.

  “Hey, Dave,” he greeted Brunelle. Then he looked to Carlisle. “Uh, hey…?”

  “Gwen,” Carlisle replied with a gracious, although still slightly irritated, smile. “Gwen Carlisle.”

  “Right,” Jackson replied. “I knew that. Sorry. It’s been a long day already.”

  Brunelle looked at his clock. “It’s nine-thirty.”

  “I’m a cop, Dave,” Jackson defended. “I get calls at two in the morning on a regular basis.”

  “Did you get one last night?” Carlisle asked.

  Jackson laughed. “Well, no. But you know, it could have happened.”

  “You sound like a defense attorney,” Brunelle joked. “So what brings you by, detective? Has there been a development? Somebody confess or s
omething? Maybe video from a nearby business showing the entire murder on tape?”

  Jackson grinned. “I wish. No, actually Chen told me there’d been developments on your end. Burner’s lawyer filed a bunch of motions or something?”

  Carlisle held up the stack of papers. “Yeah, he’s bitching because we haven’t told him our factual theory yet.”

  “Truth,” Brunelle interjected. “Our factual theory is the truth.”

  Carlisle laughed at their inside joke. “Unless we can’t figure that out. Then we’re going with what Rittenberger and Ashford said.”

  “Not Wilkins?” Jackson asked.

  “No, not Wilkins,” Brunelle confirmed. Then he asked, “Why? Do you think his ‘we all did it together’ thing is actually true?”

  But Jackson shook his head. “No. No way. I was just making sure you weren’t buying it. He’s the last guy we should cut a deal with. He needs to go away for a long time. As long as Burner.”

  Brunelle nodded. “Okay. Good. The only problem is, Rittenberger and Ashford aren’t really that great of witnesses. Ashford wasn’t there and Rittenberger was too high to really be credible. I wish we had somebody else.”

  “What about Sammy?” Jackson asked. “I always thought she’d turn state’s evidence.”

  “I think she’s too loyal to Hernandez,” Carlisle offered.

  “Yeah, I talked with her lawyer,” Brunelle added, “but she won’t budge. So we’re left with Ashford and Rittenberger. Hopefully, it’s enough.”

  Jackson’s eyebrows shot up. “Hopefully? You don’t sound too sure.”

  Brunelle shrugged. “Like, I said, they aren’t the best witnesses. But they’re all we have.”

  “But if you got Sammy, you think you could definitely convict Hernandez and Wilkins?” Jackson asked.

  Brunelle exchanged glances with Carlisle. Lawyers knew there were never any ‘definitelys’ in trial work. “I don’t know about ‘definitely,’” he said, “But it would help a lot.”

  Carlisle nodded up at Jackson. “A lot,” she confirmed.

  “So make another run at Sammy,” Jackson suggested. “We want the case to be overwhelming.”

  But Brunelle shook his head. “It won’t work. Believe me, I’ve tried.”

  Carlisle nodded. “Oh, he’s definitely tried. Like the nerdy school boy asking the cheer captain to homecoming.”

  Brunelle shot a look at Carlisle. “Wow. Thanks. Nerdy school boy?”

  Carlisle laughed. “So you don’t disagree that Miss Robyn Dunn is like a hot cheerleader?”

  Brunelle could feel his face begin to flush again. An image of Robyn in a cheerleader outfit flashed through his mind—of course. He couldn’t find words.

  Carlisle laughed. “He has it bad,” she said to Jackson.

  “I don’t have anything bad,” Brunelle protested. “I’m just done asking the cheer captain to prom.”

  “Homecoming,” Carlisle corrected.

  “Whatever!” Brunelle threw his hands up. “It’s over. She won’t talk.”

  “Make another run at her,” Jackson insisted. “Tell her Detective Jackson wants to talk with her.”

  Brunelle’s levity dropped a bit. “Why? Would that matter?”

  Jackson nodded. “Yeah, I knew her back in the day, before she got involved with Hernandez. She was a drug addict, but she was a good kid. Like Derrick. She’ll talk to me if it’s just me.”

  “It won’t be just you,” Brunelle interjected. “I’m going to be there.” Then he remembered to point at Carlisle and say, “We’ll be there. And her attorney. And Chen, I would think.”

  But Jackson shook his head. “No. Just me. You all don’t need to be there. Neither does Chen. Just me and her.”

  “Well, her lawyer will be there,” Carlisle pointed out. “There’s no way around that.”

  “Is that right, Dave?” Jackson asked. “Does her lawyer have to be there?”

  “Oh yeah,” Brunelle confirmed. “We can’t talk to her without her lawyer present. We’d all get fired.”

  Jackson frowned for a moment. “Okay, just me and her and her lawyer. No one else. No recording. Just talking. I’ll get her to tell us what she knows.”

  “Uh…” Brunelle raised a concerned finger. “I want it recorded. I’ll need a transcript.”

  “No,” Jackson answered. “That’ll freak her out too. We need her as comfortable as possible. Extra people and digital recorders will just make her clam up.”

  Brunelle gave a concerned look to Carlisle, who returned it.

  But Jackson assured them, “I know what I’m talking about. I interview people for a living. The best thing you can do is make them comfortable and forget they’re talking to a cop. People are more forthcoming when they think things are off the record.”

  “But it’s not off the record,” Brunelle pointed out. “We’ll need to disclose whatever she says to all the other attorneys. How do we do that if she’s not recorded?”

  “I’ll take notes,” Jackson answered. “And I’ll write a report when I’m all done. You’ll know exactly what she said and you can disclose it to every lawyer in town, for all I care. But if we don’t do it this way, you won’t have anything to disclose because she won’t talk.”

  Brunelle thought for several moments. He looked to Carlisle. “What do you think?”

  Carlisle pursed her lips. “It’s worth a shot. If it doesn’t work, we’re no worse off than we are now. But if she talks, then we’ll have that information and can make her a witness. That’s a way better position than we’re in right now.”

  “Robyn won’t go for it,” Brunelle opined. “No way.”

  “It’s not her call,” Carlisle reminded him. “It’s her client’s. Just get her to ask her client if she’ll talk to Jackson one-on-one, no recordings. Say it’s for old time’s sake or something.”

  Brunelle frowned. “I don’t think that will work.”

  But Carlisle leaned forward and smiled broadly. “Come on, Dave. Just turn on that Brunelle charm. Robyn Dunn will find you irresistible.”

  Brunelle considered that for a moment and sighed. Exactly the opposite, actually, he thought.

  Chapter 24

  Brunelle stepped into Robyn Dunn’s tastefully appointed law offices, above a bookstore, and just a few blocks from the courthouse.

  “This is really nice,” he remarked. “A lot better than Nick Lannigan’s place.”

  “I’m a lot smarter than Nick Lannigan,” Robyn replied as she walked them from the reception area to her corner office in the back. “And prettier too.”

  There was no point in denying that, Brunelle knew. Especially walking behind her. When he didn’t reply, Robyn laughed lightly. They arrived at her office and she gestured toward a guest chair and took a seat at her desk. It looked like an antique, with sloping legs and a leather writing surface. It matched perfectly with the collections of plants and prints in the office, and the view of the city out her window.

  “I kind of miss you, Dave,” she said.

  Brunelle frowned slightly and nodded. “I kind of miss you too.”

  “So is this a social call?” she asked.

  But Brunelle shook his head. “Afraid not.”

  Robyn clicked her tongue. “Pity.”

  “I know,” Brunelle agreed.

  “So what’s up, then?” she asked, leaning forward and resting her hands on her desk. “I assume this is about the Keller case?”

  Brunelle nodded. “I wanted to try one more time to convince you to get your client to cooperate.”

  “Cooperate with you, you mean?” Robyn barbed. “She’s always been very cooperative with me.”

  “Yes, with me,” Brunelle admitted. “With the state.”

  “With the prosecution?”

  “Yes.”

  “Of her boyfriend?”

  Brunelle shrugged. “That seems likely.”

  “Likely?” Robyn laughed. “Now that’s the David Brunelle I know. Never willing to fully co
mmit.”

  Brunelle ignored the comment behind the comment. “It’s the lawyer in me, I suppose. But I say ‘likely’ because I just want her to tell the truth. If the truth is that Hernandez shot the victim, then yeah, I guess she’d be cooperating with the prosecution of her boyfriend.”

  “And why would she do that?” Robyn wondered aloud.

  “I don’t know,” Brunelle replied. “I mean, he wasn’t really that great of a boyfriend. He was cheating on her with Amanda Ashford.”

  Robyn gave an exaggerated nod and another few tongue clicks. “Yes. Tsk-tsk. That’s the behavior of a scoundrel. It would be hard to forgive that.”

  Brunelle felt his stomach turn. Even their business calls were social calls somehow. He tried to push forward. “Well, I guess it depends on the person. I don’t really care if she’s forgiven him or she hates him. I just want to hear what she knows about him, and what happened that night.”

  Robyn tapped her fingers on her desk and considered her guest for several moments. “And what if Elmer isn’t really the killer?”

  “Then she would’ve talked already,” Brunelle posited.

  Robyn laughed. “Good point. You may be a crappy boyfriend, but you’re a good lawyer.”

  “Uh, thanks?” Brunelle replied. “I guess.”

  “But why do you think she’ll talk now?” Robyn asked. “I’ve already told you no twice.”

  “Maybe,” Brunelle allowed, “but you didn’t say the safe word, so I didn’t know if you really meant it.”

  Robyn’s cheeks betrayed the slightest blush. “Mr. Brunelle,” she exclaimed. “I’m shocked. Shocked, I say.” Then she lowered her eyelids ever so slightly and giggled. “You really can’t help but flirt, can you?”

  “Is it helping my cause?” Brunelle asked with a grin.

  “Which cause?” Robyn returned. “Getting my client to talk, or getting down my pants?”

  “You mean getting down your pants again,” Brunelle quipped.

  “Not cool,” Robyn stiffened up a bit. “And not helping your cause. Either one.”

  Brunelle nodded. “Okay, then let me try this. Det. Jackson thinks your client is freaked out by ten people in a room and a tape recorder.”