Accomplice Liability

by Stephen Penner

  “Tape recorder?” Robyn interrupted. “Did you really just say tape recorder? Recorders haven’t used tape in, like, a century or something. How old are you?”

  “Too old,” Brunelle joked. Then, “Maybe.”

  “Maybe,” Robyn agreed. “Maybe not.”

  “Anyway,” Brunelle kept playing it straight—mostly, “Jackson said he knows her from way back, before she met Hernandez. He thinks she’ll talk if it’s just him.”

  “Just him?” Robyn questioned.

  “And you too, or course,” Brunelle affirmed. “But no Chen. No me. No Gwen Carlisle.”

  “Ah, yes, Gwen Carlisle,” Robyn almost purred the name. “Tell me what you know about her.”

  This time it was Brunelle’s turn to feel a burn in his cheeks. “Uh, actually I don’t really know her that well.”

  Robyn laughed. “Oh, Dave. You’re adorable.” Another laugh. “And I know you’re telling the truth.”

  Brunelle wasn’t sure what to say. Somehow, she could laugh at him in a way that just made him want her all the more. He needed to wrap it up.

  “So, anyway,” he started. “Yeah. Um, so maybe talk to your client. Samantha. Sammy. Ms. Keller. Tell her it’ll just be her and Jackson. And you. And no tape recorder. Or whatever type of recorder. He’ll just write up a report later.”

  Robyn nodded and gave him a small smile. “Okay. I don’t think she’ll go for it, but I’ll talk to her. For you.”

  Brunelle offered a chuckle. “Yeah. We go way back.”

  Robyn smiled more broadly—a smile that reached her eyes. “A way back. That sounds nice.”

  Brunelle smiled back. “Yeah. It does.” He stood up. “I can see my way out. See you later, Robyn.”

  Robyn didn’t stand up. Instead she turned her chair so she could watch him leave. “See ya, Mr. B.”

  Chapter 25

  Brunelle didn’t want to arrive too early for the hearing on Jacobsen’s motions. Early meant sitting in the judge-less courtroom, trying to make small talk with Jacobsen. That sounded terrible. It wasn’t that Jacobsen was a defense attorney. Brunelle had plenty of friends who were defense attorneys, and he’d enjoyed plenty of pre-judge conversations with the likes of Jessica Edwards and Nick Lannigan. It was that Jacobsen was a jerk.

  So he swung by Carlisle’s office and the two of them walked to the courtroom together, timing it to arrive just as the clock struck nine. If he was going to have to engage in small talk, Brunelle would much rather it be with Carlisle than Jacobsen.

  “So, I got a voicemail from Jackson,” he informed her on the way. “He said the interview with Keller went well. No details though. And no word from her attorney yet either, so I assume everything went well.”

  “Yeah, ‘her attorney,’” Carlisle replied with a grin. “Robyn something, right? What is up between you two?”

  Brunelle considered denying anything between him and Robyn. In a way, he would have been right. But instead, he said, “It’s a long story.”

  Carlisle laughed. “I bet.”

  “Anyway,” Brunelle pushed on, “I can’t wait to hear what Keller said, but no report from Jackson yet.”

  “When do you think we’ll get it?” Carlisle asked. They were almost to Judge Quinn’s courtroom.

  Brunelle shrugged. “Before next week’s hearing on the motions to sever, I hope. Jackson probably has the report already. It’s likely just waiting approval by a supervisor. Every report has to be approved by a supervisor before we see it. For new cops, that’s important. For senior detectives, it’s just so much red tape.”

  Brunelle opened the courtroom door for Carlisle and they entered the chamber. As expected, Jacobsen was already there, but his client was with him too, so there wouldn’t be any small talk. It was just the two of them this time—no other defendants or defense attorneys. It almost felt lonely in the otherwise empty courtroom.

  Before Brunelle and Carlisle had even reached the prosecution table, the judicial assistant asked them if they were ready. Brunelle stole a glance at the clock. It was 9:00 exactly. Quinn was punctual, he’d give her that. He’d also give her that she was a good judge, with reliable instincts based on years of experience. But right then, punctuality was front and center.

  “We’re ready,” Brunelle confirmed.

  The judicial assistant made a quick, mouth-covered phone call—to the judge’s chambers, Brunelle knew—and a few moments later, the Honorable Susan Quinn took the bench.

  “Is the state ready to proceed, Mr. Brunelle?” she asked once everyone had returned to their seats following the traditional bellow of “All rise!”

  Rather than reply himself, Brunelle looked to Carlisle, who stood up and responded. “The state is ready, Your Honor.”

  Judge Quinn smiled. “Will you be handling the motion then, Ms. Carlisle?”

  “Yes, Your Honor,” Carlisle replied. She didn’t need to mention that she’d also written the briefs. Quinn was a conscientious judge. Everyone knew she’d read the briefing, and it was Carlisle’s signature at the end. For better or worse, it wasn’t unusual for junior attorneys to have to write the briefs but not get to argue the motions. Hence Judge Quinn’s assumption she would be hearing from Brunelle; and her apparent pleasure at learning she was wrong.

  The judge turned to the defense table. “And I assume you’ll be arguing for the defense, Mr. Jacobsen?”

  Jacobsen stood and offered a polite laugh for the judge’s little joke. “Yes, Your Honor. And gladly. We have raised some significant issues, I believe, and—”

  “Okay, hold on, Mr. Jacobsen,” Quinn interrupted. “I’m looking forward to your advocacy as much as anyone, but let’s be organized about this. Which motion do you want to argue first?”

  Jacobsen considered, but only for a moment. “Why don’t we start with my motion to dismiss for governmental misconduct? If the court grants that motion, we need not address the others.”

  Brunelle would have rolled his eyes at Jacobsen’s arrogance, but he appreciated the logic.

  Quinn looked back to the prosecution table. “Will that work for you, Ms. Carlisle?”

  “Yes, Your Honor,” Carlisle was quick to reply.

  “All right then,” Quinn said. She adjusted the papers in front of her and got comfortable in her seat. “It’s your motion, Mr. Jacobsen. Begin whenever you’re ready.”

  Jacobsen thanked the judge, then stood up and organized the papers and notes in front of him as well. Once he was satisfied with their positioning and accessibility, he looked down to his client, nodded, then raised his face to the judge.

  “Your Honor,” he practically shouted. His voice echoed off the walls of the nearly empty courtroom. “This case presents a unique confluence of misconduct by the prosecutor’s office. Misconduct which has deprived my client of his constitutional rights to confront the witnesses against him, to have competent and prepared defense counsel, and to have the fair trial demanded by the Due Process Clause of the United States Constitution and Article One, Section Twenty-Two of the Washington State Constitution.”

  Brunelle rolled his eyes, then looked down to take diligent notes, lest he roll them again and the judge see it. He understood advocacy required a certain amount of showmanship. He just hated having to sit through other people’s showmanship.

  Carlisle had her chin on her hand, focused attentively on Jacobsen as he went on.

  “My client, Elmer Hernandez,” Jacobsen gestured dramatically to the man seated next to him, “sits before Your Honor charged with the heinous crime of murder in the first degree. But his path to this courtroom today was not a simple one. No, the lengths and depths taken by the state to generate sufficient evidence to support, even if just barely, the charges against Mr. Hernandez are, quite frankly, astounding. And deeply, deeply troubling.”

  Brunelle frowned. The problem with someone else’s showmanship arose when they were good at it. Jacobsen was good at it. Quinn would discount it, but the jurors could end up mesmerized by the
tall, handsome man in the tailored suit, words dripping from his mouth like so much honey.

  Hmm, Brunelle thought, maybe I could use that in rebuttal…

  “For you see, Your Honor, when my client was first arrested for the murder of Derrick Shanborn—may God rest his soul—even the prosecutor’s office had to admit they didn’t have enough evidence to hold him. Rather than charge and arraign Mr. Hernandez, they had him held for two extra days while they flailed about for something, anything, that might implicate him. And they found it, barely, in the likes of one Amanda Ashford.”

  Jacobsen reached down and picked up his book of court rules. “Now, it’s important to note, Your Honor, that under federal constitutional law a defendant’s right to counsel does not attach until he or she has been charged with a crime, while under Washington law, that right to counsel attaches immediately upon arrest. Under Washington Criminal Rule 3.1, Mr. Hernandez had the right to an attorney as soon as he was placed in handcuffs by Detectives Jackson and Chen.”

  “Are you claiming some sort of Miranda violation?” Judge Quinn asked. “As I understand it, your client invoked his right to an attorney and all questioning ceased.”

  “Correct, Your Honor,” Jacobsen replied. “All questioning ceased—as it should have—but Mr. Hernandez’s constitutional right to prepared counsel did not.”

  Quinn frowned, but she nodded to him. “Go on.”

  “You see, Your Honor,” Jacobsen continued, “the violation here came not from questioning Mr. Hernandez without his attorney present, but from questioning the witnesses against him without his attorney present.”

  “You wanted to be present during the interview of Amanda Ashford?” Quinn asked.

  “It’s not about what I wanted or didn’t want, Your Honor,” Jacobsen answered. “It’s about what the Constitution requires.”

  “And your position,” Quinn sought to clarify, “is that the Constitution requires a defense attorney be present anytime law enforcement interviews a witness? That seems a little unworkable, Mr. Jacobsen. What are officers supposed to do in the middle of a bank robbery, or when they arrive at a murder scene? Wait for someone from the public defender’s office to arrive before they proceed?”

  “Or course not, Your Honor,” Jacobsen answered. “And therein lies my point.”

  Quinn raised an eyebrow. “How so?”

  “In those instances,” Jacobsen explained, “the police are responding to the crime, protecting the public, trying to identify a suspect. No one has been arrested yet, let alone charged. But here, in Mr. Hernandez’s case, the police had already made up their minds that he was the killer. He was arrested and booked into the King County Jail on suspicion of murder. And, as I mentioned earlier, under the court rules, his right to an attorney attached as soon as he was arrested.

  “They would not have been allowed to speak to him without his attorney present. And similarly, they should not have been allowed to interview the witnesses against him without his attorney present. This was not the bank robbery or murder scene example Your Honor just gave. There were no exigent circumstances here, save the emergency for the state that they didn’t have enough evidence to lawfully hold my client. They found a witness they could manipulate and prohibited me from being present while she was interviewed.”

  Quinn didn’t mind a little showmanship, but she also knew how to call B.S. on something. “I’m not sure they prohibited you, Mr. Jacobsen. I don’t know that you were even on the case yet. But it wasn’t like you were standing in the precinct lobby, demanding admittance to the interrogation room.”

  “I can assure you, Your Honor,” Jacobsen replied, “had I known what they were doing, I most certainly would have been in the precinct lobby demanding to be part of that interview. And the state should have wanted me there.”

  Quinn cocked her head at that. So did Brunelle. Carlisle was writing furiously on her notepad.

  “Why would the state want a defense attorney present during the interview of a potential witness to a murder?” Judge Quinn asked.

  “Why should they want anything different, Your Honor?” Jacobsen gestured toward Brunelle and Carlisle. “The prosecutors always claim that they just want the truth from the witness. They deny that they want a particular version that incriminates a known suspect. But we all know that’s exactly what they want. If they truly wanted the truth, they would allow what happens here in open court when we want to figure out the truth: vigorous cross-examination. How much more information would the state have gotten, how much better would they be able to judge her credibility, how much more reliable would the entire interview have been, if I had been permitted to ask questions of Ms. Ashford myself? If I had been permitted to challenge her memory, her motives, her veracity? Perhaps she withstands the scrutiny. If so, we can all feel better that her word is believable. But perhaps she doesn’t. Perhaps her story comes apart at the seams because there was someone there with a motivation to challenge it. How much better would we all be if a criminal defendant were not charged based on the unreliable and untested word of a co-conspirator looking for a deal?”

  “And how does any of that implicate your client’s right to confront witnesses?” Quinn challenged. “The witness will still have to come into court and testify. You’ll get your chance to cross-examine her then.”

  Jacobsen smiled, like a salesman who knew he had his mark. “Ah, but will I? Will I truly get to cross-examine as effectively as due process requires? Or will I be hamstrung by the interview I was excluded from? You know what will happen if the witness deviates from their prior statement, Your Honor. The prosecutor will produce a transcript of the interview and for every little thing that’s different, the prosecutor will be allowed to introduce the prior statement—the one I wasn’t present for—to either refresh the witness’s memory about what happened or to challenge their new testimony because it’s inconsistent. Either way, that interview will make its way to the jury without Mr. Hernandez’s lawyer ever having had the chance to bring out the real truth about the event in question.”

  Quinn took several moments to absorb Jacobsen’s argument. Too many moments for Brunelle’s comfort. The judge raised a hand toward Jacobsen. “I’m sure there’s more to your argument, but I’d like to hear from the state at this point. Ms. Carlisle, can you explain to me why Mr. Jacobsen is wrong?”

  Carlisle stood up sharply and tugged her suit coat back into place. “I would be glad to, Your Honor,” she started. “First, let me begin by rephrasing the argument. This is not a question of whether a quest for the truth would be best served by giving all interested parties an opportunity to question that witness. The answer may or may not be yes. The question isn’t even whether such questioning need take place at the time of the original interview, or whether that goal of truth-seeking can be satisfied by subsequent interviews by the defense attorney, which is the standard practice. No, the question is not what might be the optimal practice. The question is whether a murder defendant is entitled to have his murder case dismissed because the police followed standard procedure, rather than untested, never-used, pie-in-the-sky procedure devised by some defense attorney trying to help his client get away with murder.”

  Jacobsen stood up again. “I would object to that personal attack, Your Honor. I’m not trying to help anyone get away with anything. To the contrary, I’m trying to make sure the state doesn’t get away with violating my client’s rights.”

  Quinn liked showmanship, but not brawls. She pointed at Carlisle. “Rein in the personal attacks. The reason I asked you to respond now was because I think Mr. Jacobsen might have a point. Don’t undercut your response by stooping to insults, even veiled ones.”

  Carlisle nodded contritely. “My apologies, Your Honor. I was trying to illustrate a point, perhaps too vigorously. But the point is valid. The question isn’t, what are the best practices for witness interviews. The question is, whether anything done here justifies the dismissal of murder charges. And the answer is no.”
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  “So what remedy then?” Quinn put to her. “Suppress the witness’s statement? Prohibit the state from calling the witness at trial?”

  “Well, Your Honor,” Carlisle replied. “Discussing remedies presupposes a violation for which a remedy is needed.”

  “Oh,” Judge Quinn smiled slightly at Carlisle, “I thought you were conceding the violation by moving directly to the remedy.”

  “No, Your Honor. Absolutely not,” Carlisle assured. “It’s just that the two concepts are interrelated. Remedies are fashioned to correct violations of the law. Even assuming a violation here, dismissal would not be appropriate. But we maintain that there was nothing wrong with interviewing Amanda Ashford without a defense attorney present. She was interviewed before Mr. Hernandez was charged.”

  Jacobsen stood up to say something, but Judge Quinn waved him off.

  “Hm…” the judge said, stroking her chin in thought. “What about the interview of Josh Rittenberger? That was after Mr. Hernandez was charged. I believe Mr. Jacobsen had already filed his notice of appearance, communicating to everyone who cared to ask that he represented Mr. Hernandez regarding this very case, this very murder. Should he have been invited to the interview of Mr. Rittenberger?”

  Carlisle hesitated, but only for a moment, and only long enough to process the question.

  “No, Your Honor,” Carlisle answered. “This is not open court and not the trial. There is a time for cross-examination, but it is not at the information-gathering stage. A defense attorney doesn’t have a right to be present at a police interview any more that Mr. Brunelle or I would have a right to listen in on a conversation between Mr. Hernandez and his attorney.”

  Quinn narrowed her eyes at that. “I think that might also implicate the attorney-client privilege. You’re not claiming some sort of witness-prosecutor privilege, are you?”

  “Of course not, Your Honor,” Carlisle began. “I just—”