Accomplice Liability

by Stephen Penner

  “Your Honor,” Jacobsen stood up again, “may I interrupt? There was one more point I wanted to make on this issue.”

  Quinn thought for a moment, then agreed. “All right, Mr. Jacobsen. Proceed.”

  “Thank you, Your Honor,” Jacobsen said. “I just wanted to point out a policy argument in favor of the procedure which should have been used here, and quite frankly, should be used every time a witness is interviewed by the state after a defendant has been arrested. And that is this: if the witness were to suddenly go missing between the interview and the trial, their statement would be inadmissible as out-of-court hearsay. All that valuable information, lost to the state. And the jury. But if the defense attorney were present, then evidence rule 804 would allow the interview to be admitted into evidence even if the witness had disappeared. E.R. 804 allows for the admissibility of hearsay where the speaker is unavailable and,” he looked down to read from his evidence handbook, “‘the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.’ You see? Even the Washington Supreme Court, who adopted our state’s evidence rules, suggests a procedure whereby witnesses are subject to cross-examination when interviewed prior to trial.”

  Quinn frowned a little at Jacobsen. “I’m not sure this particular situation is what the Supreme Court had in mind when they adopted that rule,” she said. “But that doesn’t mean it wouldn’t be applicable.” She turned again to the prosecution. “What do you have to say to that, Ms. Carlisle? Doesn’t it sound like a better procedure if it also means we could admit prior statements for witnesses who may be in the wind by the time the trial finally rolls around?”

  “Again, Your Honor,” Carlisle responded, “I don’t think the court should be concerned with what procedure might be the best, or have advantages later on down the line if something else does or doesn’t happen. Right here, right now, this defendant wants his murder case dismissed because of a completely standard, never before questioned practice of interviewing potential witnesses without a defense attorney in the room. Even if the court prefers the procedure suggested by Mr. Jacobsen, that doesn’t mean the procedure used here was improper, and certainly not to the point of requiring dismissal.”

  Quinn narrowed her eyes and nodded. “So you’re saying that I shouldn’t go back and examine the procedures used to date, at least in part because it’s never been challenged like this before?”

  Carlisle shrugged her shoulders. “That’s one of the things I’m saying, Your Honor, yes.”

  Quinn leaned back and sighed. She was clearly troubled by the issues raised in Jacobsen’s motion. But she would also have been mindful that it was a murder case. In theory, a murder case was no different than a shoplifting case. In practice, not so much. The judge pointed at Brunelle. “Mr. Brunelle, I’m curious to hear your thoughts on the matter.”

  Brunelle looked at Carlisle, who mostly managed to mask her irritation at the judge’s request to talk to her supervisor. He stood up slowly and addressed the court. “This really is more Ms. Carlisle’s motion. I’m sure she can answer any questions you might have.”

  But Quinn shook her head. “I don’t think so. The question I want answered is what you think of all this. You. I’ve known you for a long time now and I’m curious what your opinion is. I’d like to talk to you, not as a prosecutor, but as a lawyer. Not as an advocate, but as an intellect. One schooled and experienced in the criminal law.”

  Brunelle sighed to himself. That wasn’t a road he wanted to go down right then. Especially not when Carlisle was supposed to be driving. He looked over at her to gauge her disapproval, but her expression was inscrutable. Or at least unexpected. Brunelle couldn’t read what she was thinking. But she didn’t wait long to let everyone know.

  “Your Honor?” Carlisle interrupted. “If you’re going to speak with Mr. Brunelle, may I be excused for a few minutes? There’s a matter I believe I should attend to.”

  Quinn’s eyebrows shot up. Attorneys didn’t usually tap out in the middle of oral argument. But she acquiesced. “All right, Ms. Carlisle. If you believe you have something more important than this argument, I won’t stop you from attending to it.”

  “Not more important than this argument,” Carlisle insisted. “Just suddenly very time sensitive.”

  Quinn frowned, but not as deeply as Brunelle did. He would never have wanted to be abandoned in the middle of an argument, but it was all the worse after having to endure Carlisle’s complaining about not being involved enough.

  “I’ll be right back,” she whispered to him. He gave the slightest of nods in reply, but kept his eyes on the judge.

  “Mr. Brunelle,” Judge Quinn said as Carlisle slipped into the hallway, “what do you think of Mr. Jacobsen’s argument that truth, and thereby ultimately justice, would be better served if he had been present when you interviewed Ms. Ashford and Mr. Rittenberger?”

  Brunelle sighed. The judge wanted to talk to him as an intellect, not an advocate. That was a problem. In that moment, he had to do what the judge asked of him—that is, give her his candid appraisal of the arguments, independent of his role as counsel for the state. But it wouldn’t change the fact that, after that moment, he would still be trying to put Hernandez away for murder.

  “As a prosecutor,” he made sure to begin, “I disagree strongly with Mr. Jacobsen’s motion. But as a lawyer and an intellect,” he almost groaned, “I have to admit, he has a point.”

  Quinn nodded. She clearly had expected that response. “Go on,” she instructed.

  Brunelle did as he was told. “Yes, had Mr. Jacobsen been present, he may have posed additional questions which could have fleshed out or tested the witness’s account of the event. To that extent, Mr. Jacobsen’s argument has merit. On the other hand”—he was glad to have an ‘on-the-other-hand’—“the court should keep in mind that the witness may not be willing to talk at all if the lawyer for the man they’re giving evidence against is right there, ready to pounce on them once they’ve finished telling their story. In that event, truth and justice would not be served because the information is never obtained.”

  Quinn nodded thoughtfully for several seconds. Then she turned to Jacobsen. “Anything more on this issue, Mr. Jacobsen?”

  Jacobsen too thought for a moment. “I don’t believe so, Your Honor. We would urge you to find a knowing violation of my client’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Washington State Constitution, and grant our motion to dismiss the charges against Mr. Hernandez.”

  Quinn pursed her lips, and tapped her fingers loudly on the bench in front of her. She nodded slightly to herself as the words formulated in her mind. The lawyers knew enough to be patient and silent, even if the wait was killing them. Finally, Quinn leaned forward again and spoke.

  “This is a very interesting issue,” she started. “I have never heard of a defense attorney being present at the police interview of a witness against their client. Then again, this is an uncommon case. The witnesses against Mr. Hernandez are all also potentially accomplices to his alleged crime. As a result, each has a motivation to lie, or at least downplay their own roles. They may also, either by themselves or through advice from their own attorneys, be able to infer that the state is most interested in prosecuting Mr. Hernandez. As a result, they may inflate his relative level of culpability in order to curry favor with the prosecutor.”

  Brunelle frowned. But he also knew she was right. They usually did that, even when he told them not to.

  “That all being true, I have to agree with Mr. Jacobsen that the preferred procedure would be for a defendant’s attorney to be present to ask questions at any proffer made by a codefendant, at least after the primary defendant has been arrested and charged.”

  Brunelle kept his poker face. Quinn wasn’t done talking. He really hoped the judge had her own ‘on-the-other-hand.’


  “On the other hand,” Judge Quinn gave Brunelle his wish, “Ms. Carlisle raised the excellent point of whether this preferable procedure is in fact also the required procedure. That is, whether failing to follow this procedure sufficiently violates a criminal defendant’s rights as to require dismissal of the charges against him. Dismissals for governmental misconduct—which is what Mr. Jacobsen is requesting here—are rare. The case law calls dismissal ‘an extraordinary remedy.’ One to be avoided if possible. So the question for this court is whether there is a remedy short of dismissal which will still protect the defendant’s rights, or at least prevent further violations moving forward.”

  Brunelle closed his eyes. Crap. He knew what was coming. He looked at the courtroom door again. Where the hell was Carlisle? She needed to hear this too.

  “Mr. Brunelle,” Judge Quinn summed up, “I am not going to dismiss your case against Mr. Hernandez, but I am going to order that any further interviews must be conducted with counsel for the remaining accused present.”

  Brunelle cringed. “When you say, ‘any further interviews,’ do you mean conducted as of today or turned over in discovery as of today?”

  Brunelle knew how important that distinction was. Jacobsen hadn’t—until Brunelle asked the question. He jumped to his feet. “We would ask that it be any interviews turned over in discovery as of today. To date we are only aware of the proffers of Ms. Ashford and Mr. Rittenberger. Anything further—”

  Carlisle burst through the doors at that moment and rushed to Brunelle’s side. “Sorry, Your Honor,” she said without seeming to really mean it. Without waiting for any sort of acknowledgement from Quinn, she shoved a police report into Brunelle’s hands. “It’s Jackson’s report. I got him to email me the unapproved version. Keller talked. She said Hernandez was the shooter.”

  Brunelle took a moment to process that he didn’t have any more moments to bother reading the report. He turned and slammed it on Jacobsen’s desk.

  “No objection to the court’s ruling,” he announced. “We don’t expect to interview any further witnesses.”

  Chapter 26

  Brunelle and Carlisle went out for a celebratory lunch. Nothing special. The Mexican sort-of-fast-food joint down at Second and Union. But still, they deserved the victory meal. Quinn had granted some of the less important of Jacobsen’s motions—providing a bill of particulars, which was going to be a snap now that they had Keller’s version of the shooting—but they had dodged the dismissal bullet. And even the ruling about Jacobsen being present for future interviews was a hollow victory for him. They wouldn’t be interviewing any more of the codefendants.

  And, as a bonus, Brunelle would get to work with Robyn after all. Regardless of how she wanted to describe it.

  Or maybe not.

  Brunelle had barely returned to his desk when Robyn stormed into his office.

  “What the hell is wrong with you?” she shouted at him.

  “Uh,” was all Brunelle could manage at first. She was really angry. Her flushed cheeks almost matched her red locks. He’d never seen her that angry—and he’d seen her angry before. “I, I was just going to call you. Looks like we’re going to get to work together after—”

  “No!” she snapped. “No. We are not working together. Ever. Certainly not on this case. And if this is how you’re handling your cases now, not on any case ever. I need to be able to trust someone I’m working with.”

  Brunelle thought for a moment. “Is this about what happened between us at that club? Because, I kinda thought we were past—”

  “Arggh!” Robyn threw her hands up in the air. “Why do you always have to be so dense? God, it never stops. No, Dave, I don’t care about what happened between us at that club. I don’t care what happened between us anywhere. What I care about is, you lied to me. You and that asshole Jackson lied to me and now I’m fucked. Or more accurately, my client is fucked, which is a million times worse. She was counting on me, Dave. God damn it, she trusted me. And you lied to me. And now she’s fucked.”

  Brunelle was only sure of one thing right then: he had no idea what she was talking about. Well, that and the fact that she was really upset.

  “Robyn, I’m not entirely sure what you’re talking about,” he said in as soothing a voice as he could manage, “but I want to know.” He pointed to his guest chairs. “Let’s sit down and start from the beginning. Obviously, you know something I don’t. I just got the unapproved version of Jackson’s report this morning. I haven’t had time to do more than skim it. It looked like Samantha cooperated, but maybe I missed something. So let’s figure this out.”

  Robyn’s face was still flushed, her jaw still clenched, but her eyes softened. “Damn it, Dave,” she said in a lower voice. “I trusted you. Why did I trust you?”

  Brunelle considered a cute quip, maybe something double entendre-y. He thought better of it. “What happened?”

  Robyn sighed, then finally threw herself into the chair. “Jackson lied, Dave. His report. It’s not what Samantha said. He made it all up.”

  Brunelle’s eyebrows shot up. “What?”

  “Jacobsen sent me the report after your hearing,” Robyn said. “He said you won most of the motions and he congratulated me on working out a deal with the devil.”

  “And I’m the devil?” Brunelle confirmed.

  “Presumably,” Robyn answered with a reluctant grin. “But don’t ask me if I agree with him. You’re looking pretty devilish to me right now.”

  “In a bad way?” Brunelle ventured.

  But Robyn was in no mood. She raised a palm. “Don’t. I’m still mad at you.”

  Brunelle nodded. “Right. Okay. So, Jackson got your client’s statement wrong?”

  Robyn laughed darkly. “You prosecutors. You think cops are all above reproach. No, Dave, he didn’t get it wrong. He lied. What he put in his report, that’s not what Samantha said. It’s not even close. I should have known. That’s why he didn’t want it recorded, so he could write down whatever he wanted.”

  That was a pretty big accusation, Brunelle knew. He also knew Robyn’s judgment could be clouded by her loyalty to her client. He needed to walk a fine line.

  “So what exactly did he get wrong?” When Robyn shot him a scowl, he corrected it to, “What did he lie about?”

  Robyn pulled her copy of the report from her purse. It was half-folded, half-wadded, obviously shoved in there in a fit of anger. Brunelle pulled his copy out of the Hernandez file, still resting on the corner of his desk.

  “What didn’t he lie about?” Robyn started. “Let’s see. Well, yes, the interview did take place in the conference room of the jail. And yes, Detective Jackson, Samantha Keller, and Ms. Keller’s attorney, Robyn Dunn, were all present. After that, it’s pretty much a fairy tale.”

  Brunelle looked at his copy of the report. It was actually a pretty short report, Brunelle noticed. Just over a page and a half. It didn’t have any verbatim quotes, just summaries and paraphrases by Jackson.

  “Can you be more specific?” Brunelle asked.

  “Where he wrote that Samantha said she saw Hernandez shoot the victim. She never said that?”

  “Never?”

  “Never,” Robyn confirmed. “In fact, she was insistent that she didn’t see the shooting.”

  Brunelle looked down at the report. Jackson was crystal clear: ‘Keller stated she saw Hernandez produce the gun, point it at victim Shanborn’s chest, and fire three times.’

  Brunelle shook his head. “I don’t understand.”

  Robyn laughed again, with even less mirth. “Of course you don’t. You’re a prosecutor. You think everything in a police report is gospel. You’ve never sat down with a client and had them tell you the cop was lying. And you’ve never had to tell them that it doesn’t matter because the prosecutor will always believe the cop, and the judge will always believe the cop, and the jury will always believe the cop.”

  Brunelle frowned. “Well, between a cop and a crim
inal…”

  “They’re only a criminal because the cop said so!” Robyn shouted. “Don’t you get it? A cop says somebody did something, then they did it. And if the person says they didn’t do it, well, that’s exactly what a criminal would say. There’s no way to win. And if you guys even begin to suspect that maybe the report is, quote, ‘not accurate,’ unquote, then do you confront the cop? No, you cut a deal to make the case go away. I have to advise my clients to take the deal even if they’re innocent because you have to take a deal for credit for time served over the risk of two or five or ten years in prison. And the fucking cop walks away, knowing he can do it again and again and again. Because he’s a fucking cop and you’re a fucking prosecutor.”

  Brunelle crossed his arms. “I’m not sure how true that is.”

  “Well, I’m sure your cop lied. Samantha never I.D.’ed Hernandez as the shooter. She wasn’t there. She didn’t see it.”

  She shook her head and pointed at him. “Here’s the bottom line, Brunelle.” She never called him ‘Brunelle.’ “You fucked me over. I was going to put my client on the stand at trial to testify that she had no advance knowledge of what was going to happen and wasn’t present when it did happen. But now I can’t. That fucking report is going out to every other attorney on this case. Not just you and Jacobsen, but Jessica and Nick and Rainaldi. Even that pompous ass Welles. And when Samantha testifies differently from what’s in the report—which she will because the report is a fucking lie—then every attorney in the room will make her look like she’s changing her story when she isn’t. And the jury will conclude she’s a liar. And she’ll get convicted. Of fucking murder, Brunelle. Murder. All because I was stupid enough to trust you.”

  Brunelle was speechless.

  Robyn stood up. “Well, don’t worry. I won’t make that same mistake again.”

  Brunelle stood up too.

  “Well, you may not trust me,” he said, “but I still trust you. I’ll talk to Jackson.”