Accomplice Liability

by Stephen Penner

  Brunelle was disappointed that Samantha Keller’s attorney hadn’t been given that place of honor, but he was glad for the arrangement. It meant Quinn was already making plans for a joint trial. She had to entertain the defendants’ motions to sever, but it sure didn’t look like she was planning on granting them.

  “The state is ready,” Brunelle announced for his side.

  Each of the defense attorneys answered in turn as Quinn pointed to them. She started with Jacobsen, then moved along the tables: Edwards, Dunn, Lannigan, and Rainaldi. Everyone was ready.

  Quinn was too. “Mr. Brunelle. Ms. Carlisle.” she started. “Is the state agreeing to any of the motions for severance?”

  Translation: Has the state cut a deal with any of the defendants and, if so, can we get them out of here?

  “Yes, Your Honor,” Brunelle was relieved to report, as he stood to address the court. “The state has no objection to the severance of Mr. Rittenberger’s case for trial. The state anticipates calling Mr. Rittenberger as a witness in its case-in-chief at the trial of the other codefendants. We would ask the court to grant Mr. Rittenberger’s motion to sever and reschedule his trial for sixty days after the commencement of the joint trial.”

  A little cockiness at the end there, assuming the remaining cases would stay joined. But that was part of the fun of trial work: poking your opponent in the eye.

  Quinn turned to Rittenberger’s lawyer. “Ms. Rainaldi, any objection to Mr. Brunelle’s proposal?”

  Rainaldi stood up. “No, Your Honor. Thank you, Your Honor.”

  “All right then.” Quinn nodded. “As to defendant Rittenberger, the motion to sever trial is granted. We will reschedule his trial date as suggested by the parties.” She looked to the lead jailor. “As soon as Mr. Rittenberger has signed his scheduling order, he can be returned to the jail. We could use the space.”

  The jailor acknowledged the instructions, and Quinn pushed on even as Rittenberger was made ready to leave.

  “Any others, Mr. Brunelle?” Brunelle frowned. He wished there were. But there was one small consolation. “No, Your Honor.”

  Jacobsen looked up at him, surprised, then quickly over at Robyn. That was the consolation: Jacobsen hadn’t seen that coming. Everyone who read Jackson’s report figured Keller was turning state’s witness. But that was before Keller got cold feet, or buyer’s remorse, or whatever, and backed out. Robyn didn’t return Jacobsen’s gaze. She had her game face on, waiting for her turn to argue for severance.

  She wouldn’t have to wait long. “Okay, then,” Judge Quinn said. “Let’s get started. I placed you in the order I want to hear from you. And I mean that for both today and at trial.” She paused. “Assuming, I don’t grant the motions to sever, that is,” she managed to add, albeit unconvincingly at that point. “I’ll hear first from Mr. Jacobsen on behalf of Mr. Hernandez.”

  Jacobsen stood up, buttoned his suit coat, and chanced one last glance at Robyn. She didn’t look up from her note taking.

  “Thank you, Your Honor,” Jacobsen began. “I’d like to begin by pointing out the obvious. The state has decided that my client, Mr. Hernandez, is the person who shot and killed Derrick Shanborn. They have reached this conclusion, however, without a shred of reliable evidence. They have merely managed to convince three drug addicts to tell them about the event, and clearly they were able to communicate to these people two things. First, they wanted to hear that Mr. Hernandez was the shooter, and second, they were in a lot of trouble if they didn’t say as much. Two of them suggested it without actually saying it, and the one who did say it also claimed responsibility for himself. The state then elected not to charge one of them, cut a deal to another, and ignore the one person who admits someone other than Mr. Hernandez shot the victim.”

  “And this is relevant to the question of separate trials how?” Quinn interjected.

  My question exactly, Brunelle thought. He gave a glance to Carlisle to communicate the thought, and she nodded in reply.

  “It’s relevant, Your Honor,” Jacobsen answered, “because the state has no credible evidence against Mr. Hernandez and instead wishes to paint the defendants all together with one broad brush, hoping the jury will throw up their hands and simply convict everyone in the room. Unable to disentangle the evidence against one defendant, such as it may be, from the evidence against the others, the jury will be tempted to convict everyone, lest the real killer—whoever that may be—be acquitted.

  “Mr. Hernandez deserves to have the evidence against him presented to his own jury so that jury can decide his guilt or innocence independent of any responsibility for the others more involved in Mr. Shanborn’s death.”

  “More involved?” Quinn raised an eyebrow.

  “Mr. Hernandez vigorously maintains his innocence, Your Honor,” Jacobsen replied quickly. “So anyone else here who was involved in Mr. Shanborn’s death would, by definition, be involved more than him.”

  “Hm,” Quinn answered. “That’s not how it sounded when you said it.”

  Jacobsen simply nodded to the judge.

  “Anything further, Mr. Jacobsen?”

  Jacobsen thought for a moment. “No, Your Honor. Mr. Hernandez deserves his own trial. That’s enough.”

  Quinn looked to the next attorney. “Ms. Edwards. Would you like to argue your motion on behalf of Mr. Wilkins?”

  Edwards stood up as Jacobsen sat down. “Yes, Your Honor,” she said. “Thank you. As Mr. Jacobsen vaguely referenced, my client, Mr. Wilkins, is in the unique situation of having cooperated with the police, only to be told his cooperation wasn’t really wanted after all. He gave a statement which the state may or may not seek to introduce at trial—”

  Brunelle stood up. “We will not be introducing it.”

  Jacobsen stood as well. “We may seek to introduce it, Your Honor. If this is a joint trial, I mean.”

  “You’re going to introduce a statement that your client shot the victim?” Brunelle asked incredulously.

  “I’ll introduce a statement that two other people shot him,” Jacobsen countered. “And—”

  Quinn slammed her gavel on the bench. “Counsel! This will not deteriorate into a roundtable discussion of trial strategy. This is a motion to sever. I will hear first from the moving parties, and only then will I ask to hear from the prosecution. Is that understood, Mr. Brunelle?”

  Brunelle lowered his eyes. “Yes, Your Honor. I apologize. I was just trying to add information for the court.”

  “Do it when it’s your turn,” Quinn instructed. She looked to Jacobsen. “You too, counsel. Understood?”

  Jacobsen added his consent. Quinn nodded again to Edwards. “Go on, Ms. Edwards.”

  Edwards thanked the judge and continued. “Apparently, the state doesn’t like what Mr. Wilkins said, because it didn’t fit their theory of the case. So now he sits here, willing to cooperate, but joined for trial with Mr. Hernandez, the man who intimidated everyone into being involved in the first place. The dynamic in the house that day will simply be repeated here in this courtroom.”

  Again, Quinn interrupted. “Don’t worry, counsel. I will not tolerate any outbursts in my courtroom. I am aware of what occurred at the arraignment.”

  But Edwards shook her head. “I’m not talking about physical violence, Your Honor. I’m talking about psychological intimidation. I’m talking about Mr. Wilkins having to decide whether to take the stand in his own defense, worried about, not just the state mischaracterizing they tricked him into making, but also afraid to explain his actions with Mr. Hernandez in the room. A joint trial will have a chilling effect on my client’s rights to due process and a fair trial.”

  “Thank you, Ms. Edwards,” the judge said. She turned next to Dunn. “Ms. Dunn?”

  Robyn stood up. She tugged her suit coat into place. She didn’t look at Jacobsen or Brunelle or anyone. She looked up at the judge, right in the eye. “Ms. Keller not only deserves a separate trial, Your Honor, she deserves a dismissal.”

>   Brunelle frowned slightly. He knew what was coming. He couldn’t really blame her—she was just doing her job—but he had let himself hope she might not raise the whole allegedly falsified report thing.

  “Ms. Edwards is partially mistaken,” Dunn explained, “when she says only her client spoke to the police and was then rebuffed. Ms. Keller also spoke to the police, but rather than have her version of events rejected by the state, her version of events was never recorded in the first place. Instead, the detective misrepresented her statement in his report. And when I say ‘misrepresented,’ I mean, he lied. Now, Ms. Keller faces the prospect not just of being confronted with a prior statement like Mr. Wilkins, but being confronted with something she never actually said. This issue threatens to overshadow this entire trial. I certainly intend to make that happen. The issue is no longer who shot Derrick Shanborn, but rather, why would the lead detective lie about it?”

  “Chen is actually the lead detective,” Brunelle whispered to Carlisle, but she shushed him. He returned his attention to Robyn, who had clearly gotten the attention of the judge.

  “You plan to put the detective on trial?” Quinn asked.

  “Yes, Your Honor,” Robyn replied. “And I expect to take a long time doing it. If you don’t want the other defendants’ murder charges to disappear into the morass that I expect will come of my questioning of Detective Jackson, then you should grant the motion to sever.”

  “Sever everyone?” Quinn asked. “Four separate trials?”

  “I couldn’t care less about the other three defendants, Your Honor,” Robyn replied honestly, and brutally. The very things Brunelle liked about her. “I only care that Ms. Keller has her own trial so the issue of police, and prosecutor, misconduct can take its rightful place front and center before the jury.”

  Quinn nodded thoughtfully as Robyn sat down again. After a moment, she turned to the last attorney still seated at the table. “Mr. Lannigan?”

  Lannigan had been doodling on his notepad. He looked up with a jerk, then glanced at his client. After a moment, he shrugged and stood up. “Uh, we stand on our briefing, Your Honor. I have nothing to add.”

  Quinn frowned. Fuller did too. Brunelle tried not to.

  “Are you sure, Mr. Lannigan?” Judge Quinn asked. “I’d like to hear the circumstances unique to your client.”

  Lannigan shrugged again, then stood up. He didn’t bother to straighten his suit coat. In fact, it wasn’t even a suitcoat; it was a blazer that didn’t even match his pants. “Well, Your Honor, that’s kind of the point. Ms. Fuller never made any statement to the police and she didn’t try to cut a deal with the prosecutor. So I don’t have the same arguments as the other lawyers. Sorry.”

  Quinn shook her head. “Don’t be sorry, Mr. Lannigan. But do please do your job. If you have an argument on behalf of your client receiving a separate trial, I’d like to hear it.”

  Lannigan nodded weakly and thought for a moment. “Well, Your Honor, if you’re going to sever the other defendants, then you should probably sever Ms. Fuller too.”

  Quinn raised an eyebrow. “That’s it?”

  Lannigan shrugged yet again. “Like I said, Your Honor, we rest on our written brief. I trust you to do what you think is right, regardless of whatever I argue.”

  Quinn frowned. “All right then.” She looked to the prosecution table. “Mr. Brunelle or Ms. Carlisle? Any response?”

  Brunelle stood up. Carlisle had handled the Jacobsen motions. It was his turn.

  “Yes, Your Honor, thank you,” he began. “I understand the points raised by the defense attorneys, but they all fail when weighed against the advantages of a joint trial. It is well established, Your Honor, that the law favors joint trials. Judicial economy is best served by a single trial, rather than two, or three, or four separate trials. Four separate juries, but all hearing the same evidence, from the same witnesses. And I think that’s the deciding factor in this case, Your Honor. The evidence isn’t different for these defendants. The evidence against Mr. Hernandez is the same as the evidence against Ms. Keller, and the same against Ms. Fuller, and the same against Mr. Wilkins. There may be differing cross-examinations, but the core evidence is the same, and it is a waste of resources to require the state’s witnesses to testify four times to the same thing.”

  “Especially if some of those witnesses are cooperating codefendants?” Quinn interjected knowingly.

  It was Brunelle’s turn to shrug. “In all candor, yes, Your Honor. It’s hard enough to get a cooperating codefendant to testify once. Getting them to testify four times may prove impossible, no matter what arrangements are made in advance. And if our witnesses refuse to cooperate after one or two trials, then that means the last defendant or two to have their trials may get acquittals simply because they were fortunate enough to be scheduled after the others. That’s not justice.”

  “Is it justice to trick a codefendant into giving a statement and then not using him?” Quinn challenged. “Or lying about what another codefendant said?”

  Brunelle took a moment to answer, lest he actually take the bait. “Justice will arise out of the examination and cross-examination of the witnesses. That will actually be better served if one single jury gets to hear all of the defenses against the state’s case. Let Mr. Hernandez’s jury hear that Mr. Wilkins was left at the proverbial altar. Let Ms. Fuller’s jury hear that Ms. Keller claims the detective is a liar. Let one group of twelve people hear it all, and then decide accordingly. And whatever they decide, that will be justice.”

  Quinn grinned. “You have great faith in our jury system.”

  Brunelle demurred. “We have nowhere else to put our faith, Your Honor. The system may not be perfect, but it’s better than anything else anyone has tried. In my experience, they usually get it right. And they’ll get it right this time.”

  Quinn chewed her cheek for a moment and leaned back in her chair. The lawyers shuffled their papers for the short time it took the judge to collect her thoughts and pronounce her ruling.

  “I believe,” the judge began as she leaned forward to address the lawyers, “that Mr. Jacobsen made the most salient point in today’s arguments.”

  Brunelle frowned. That was an inauspicious beginning. Maybe the table setup really was just for today. He suddenly realized the tables could be put back to wherever they came from just as easily as they had been brought there in the first place.

  “Mr. Jacobsen pointed out,” Quinn continued, “that it would be difficult, if not impossible, for a jury to disentangle the evidence in this case. There are five different defendants, at least one of whom is now also a witness for the state. But everyone who testifies will be testifying about the same event, that is, the shooting of Derrick Shanborn. No matter what anyone says, their testimony will be entangled with the testimony of everyone else.”

  Brunelle had to admit that was true.

  “And that’s why,” the judge ruled, “I am going to deny the motions to sever. One jury should hear all of the evidence, and all the challenges to that evidence, from every corner. I’m not persuaded by the state’s concerns about cooperating witnesses getting cold feet—that’s the nature of making those sorts of deals. But I am persuaded that this case, like every case, should be decided by a jury that has as much information as possible. I don’t believe that can be done piecemeal with four separate trials. Accordingly, I am denying the motions to sever. Are the parties ready to begin trial next week?”

  Jacobsen, who had seemed pleased when Judge Quinn began her ruling, had returned to a stone-faced countenance. “Mr. Hernandez will be ready, Your Honor.”

  “Mr. Wilkins is ready,” Edwards added.

  Robyn stood up sharply. “Ms. Keller will be ready, Your Honor.”

  All eyes turned to Lannigan. He took a moment to realize it, then said, “Sure, Your Honor. We’ll be ready.”

  Then Quinn looked to Brunelle. “Will the state be ready to begin trial on the scheduled trial date?”

  God,
I hope so, Brunelle thought, before answering, “Absolutely, Your Honor.”

  Chapter 30

  It was a little after eight o’clock on the night before trial and Brunelle was still in his office. Usually, he spent the night before a trial in his apartment, alone, maybe sipping a little whiskey, and going over his opening statement in his head until it felt just right. But this trial was different. So was his partner.

  And he had an idea.

  He picked up his phone and called Carlisle on her cell phone.

  “Hello?” she answered.

  “Hey, Gwen. It’s Dave.” He spun in his chair so he could look out the window. Random office lights lit up the night skyline. “I’ve been thinking about our case.”

  “Well, that seems appropriate,” she replied, “since we’re starting the trial tomorrow.”

  “Exactly,” Brunelle answered. “I think I have an idea to streamline things a little.”

  “That sounds like a good idea,” Carlisle responded. “What are you thinking?”

  Brunelle gazed out at the nightscape. “What if we go ahead and cut a deal to Keller. Not in return for testimony; just to get her out of the courtroom. She pleads to rendering criminal assistance and heads off to prison. One less defendant in the courtroom, and less for us to explain to the jury.”

  There was a long pause on the other end. “You want to cut Samantha Keller a deal? No testimony, just because?”

  Brunelle shrugged to himself. “I dunno. Maybe. The evidence suggests she really didn’t do anything. We can focus on Hernandez and Wilkins, the real bad guys.”

  When Carlisle didn’t immediately respond, Brunelle asked, “What do you think?”

  “What do I think?” Carlisle was ready with a response this time. “I think you want to give your ex-girlfriend a deal so she won’t stay mad at you, in case there’s the slightest chance you two could get back together.”

  “What?” Brunelle spun away from the windows. “No! No, I just—I was just thinking one less defendant would mean that much easier of a case. And she’s a bit player, at best.”