Accomplice Liability

by Stephen Penner

  “Look, Dave,” Carlisle almost chucked. “I don’t blame you. I’ve seen her, remember? She’s gorgeous. You’d have to be dead not to want to get back with that.”

  Brunelle wanted to protest, but the words ‘gorgeous’ and ‘get back with that’ derailed his thoughts for just a moment.

  “I can see it, Dave,” Carlisle continued. “Everyone can. You can list as many reasons as you want for dumping Keller’s case. You might even be right. But everyone will think you did it because of what I just said.”

  “I’m not sure you’re right,” Brunelle finally managed to defend himself. “And I’m not sure it matters what everyone thinks, if it’s the right thing to do.”

  “If it were the right thing to do, Dave, you would have done it already.”

  Brunelle wasn’t sure what to say to that.

  “It’s too late, Dave,” Carlisle went on. “You gave her a chance. You gave her multiple chances. Now it’s time for trial.”

  Brunelle took a moment, then admitted, “I guess you’re right.”

  “Of course I am,” Carlisle said. “But now that I’m about to climb into the foxhole with you, I need to know you’re not going to pull any punches. Try the hell out of this case, Dave, and make Robyn Dunn realize what a mistake she made.”

  “You mean for turning down a deal?” Brunelle asked.

  “You know exactly what I mean,” Carlisle answered. “Now, are you with me?”

  Brunelle smiled. “I’m with you.” And he was glad for it.

  Chapter 31

  Judge Quinn had left the tables exactly as they had been set up for the motions to sever. With Rittenberger back in his jail cell waiting to testify, it freed up a little room. Ron Jacobsen was no longer on Brunelle’s lap. Then again, neither was Robyn Dunn.

  Four defense attorneys meant everything took more than four times as long. Five parties instead of two, plus the standard slowing down of anything that gets complicated. But after a while, everyone got into the rhythm. First the state—either Brunelle or Carlisle—then Jacobsen, Edwards, Robyn, and Lannigan. That also speeded things up a bit; Jacobsen made most of the arguments, Edwards added some refinements, Robyn adjusted for her own client, and Lannigan said, “Nothing to add.”

  It took a full day to go through preliminary motions, and three more to pick the jury. But on the fifth day, the jury was sworn and seated, and at nine a.m. sharp, the Honorable Susan Quinn instructed them, “Ladies and gentlemen of the jury, please give your attention to Mr. Brunelle, who will deliver the opening statement on behalf of the state.”

  Brunelle stood up and buttoned his suit coat. He nodded to the judge, then stepped out from behind counsel table and positioned himself directly in front of the jury box.

  Opening statement was supposed to summarize the story that the lawyer believed—or hoped—the evidence would show. It was the one opportunity for the lawyers to tell a cohesive, compelling narrative before the disconnected, whiplash-inducing procedure of ‘question, answer, objection, repeat’ began. Many a trial lawyer would insist that a case was won or lost in opening statement. Whichever lawyer told the better story already had a leg up with the jury as they descended into the uneven crevices of testimony. Brunelle’s problem was, he didn’t know the whole story. He barely knew any of it. His star witnesses were a drug addict and an absent girlfriend. He didn’t know exactly what had happened in Hernandez’s house that night. So he started with what he did know.

  “Derrick Shanborn was a snitch.”

  Hardly the sanctifying of the victim they taught at the prosecutor conferences.

  “He was a drug addict. He was a thief. And rather than stay loyal to the very few friends he did have, he snitched them all out to the cops.”

  Brunelle glanced over the faces of the jurors to see if he had them. He did. They seemed stunned, or at least surprised, as if they were waiting for the punchline. Brunelle was happy to oblige.

  “And they murdered him for it.”

  That was the case in a nut shell. One of the advantages—the many advantages—of being the prosecutor was always getting to go first. Opening statement, calling witnesses, closing argument. The prosecutor gets to set the table. But Brunelle needed to put some food on the plates too. It wasn’t like Jacobsen and crew were just going to sit on their hands when he finished.

  So Brunelle would focus on the victim and his story. It wasn’t a very sympathetic story, but he didn’t have much choice. The other story—what happened when he was shot and killed—Brunelle didn’t have a clear version of that. Not clear enough to promise it to the jury. So this would be short and sweet, heavy on emotion and light on details. Then hope to survive the defense openings and start calling witnesses.

  “Opening statement,” Brunelle explained with a practiced gesture of open palms, “is an opportunity for the lawyers to tell you what they believe the evidence will show. It’s not argument—we don’t argue whether those facts equal a crime or not. Instead, it’s a narrative—a story to help you understand the testimony of each witness as they parade through the courtroom one by one.”

  Brunelle took two steps to his right. He knew not to pace. Pacing was distracting at best, annoying at worst. But a slight shift in position kept him from looking like a tree planted in front of the jury box. And it signaled the slight shift in his presentation.

  “But the thing about a murder story is, it’s rarely simple. There are a lot of players, a lot of witnesses. The people involved, the first responders, detectives, doctors, experts. It can get pretty confusing. So like any complicated story, it’s helpful to start with the cast of characters, like inside the playbill you get when you go to your kid’s school play.”

  That pulled a smile from a couple jurors in the back. Brunelle wasn’t a parent himself, but the ones who smiled—they liked being parents, and now they thought he was a parent too, so maybe they liked him a little bit more than when he first stood up. That was important. Ultimately, at the end of the trial, he was going to be asking them to trust him. They wouldn’t really get enough information to make a perfect decision. But they had to make a decision anyway, and, subconsciously, they would give greater weight to the lawyer, or lawyers, they trusted.

  He took two steps back and opened his body to the lawyers and defendants behind him. Time to introduce the players. He’d considered starting with Shanborn, but that would have been a mistake. For one thing, he’d already introduced Shanborn’s name. For another, Shanborn’s roles were responsive—dependent on the players. He was a snitch against someone. He was a victim of someone. And that someone was…

  “Elmer Hernandez.” Brunelle pointed to Hernandez. Even dressed in street clothes so the jury wouldn’t know he was being held in custody pending trial, he looked large and menacing. Perfect. And now everyone on the jury was looking at him too. He shifted slightly in his seat. Brunelle waited another beat, then tagged him. “Drug dealer.”

  Jacobsen exploded to his feet. “Objection, Your Honor!”

  Double perfect, Brunelle thought. Now the jury knew it was true. Thy lawyer doth protest too much.

  Brunelle rotated his upper body to look up to the judge. “I expect the evidence to support that statement, Your Honor.”

  Quinn narrowed her eyes at him. “Stick to the facts, Mr. Brunelle. Not disparaging labels. You know how to describe a person without resorting to incendiary monikers.”

  Brunelle nodded at the ruling and thought for a moment as he turned back to the defense table—the first of several such tables. “Elmer Hernandez,” he repeated. “Entrepreneur.”

  That pulled a few more smiles from the jury box. It might have seemed flippant to call him that initially, but with the objection and instruction from the court, it seemed like Brunelle had no choice. What a guy.

  “Mr. Hernandez ran a substantial, uh, delivery service in the Lake City neighborhood of Seattle. A highly lucrative enterprise, but one that needed to avoid the notice of law enforcement to remain profitable.”
>
  Brunelle took another step back and gestured toward the next defendant. “Nate Wilkins. Mr. Hernandez’s business manager. It was his job to make sure deliveries were made on time, and accounts were collected punctually.”

  That last bit was code for beating up junkies who didn’t pay. The jury could decipher that, he hoped. Edwards didn’t object to the description. The words were smarmy at worst, but not really objectionable. And she was smart enough not to underline Brunelle’s remarks by calling attention to them. Instead, she kept her head down, calmly taking notes. She knew she’d get her chance to talk.

  Next defendant.

  “Samantha Keller.” Brunelle softened his gesture just slightly as he reached the first woman defendant. Sexism was a terrible thing. It was also real. And it could go both ways. A large man in a crisp suit aggressively calling out a woman in extra clothes borrowed from the public defender’s office might engender sympathy from the jurors, or some of them anyway, even if only subconsciously. But a muted gesture and slightly relaxed shoulders were both less confrontational and dovetailed perfectly with the description. “Mr. Hernandez’s dutiful long-time girlfriend.”

  Still a sympathetic description. But Brunelle would have been willing to sacrifice a conviction against Samantha Keller to get Hernandez and Wilkins.

  It had nothing to do with the way Robyn was glaring at him as she sat, cross-armed, next to her client. Really.

  Brunelle paused for probably a second too long as he tried to ignore Robyn’s… well, her everything. He took one more beat, then managed to refocus his thoughts.

  “And Lindsey Fuller.” He set his shoulders a little straighter for this one. Fuller was a woman too, but she was hardly the long-suffering wife type. She was just one tough bitch. “A loyal ally and hardened drug user who conspired to bring Derrick Shanborn to Elmer Hernandez’s house to be murdered as payback for snitching out Hernandez to the cops.”

  Lannigan didn’t object either. He also didn’t ignore or glare. He did the one thing worse for a defense attorney to do than all those. He watched Brunelle in rapt attention, pen down and chin on fist, as if everything Brunelle had to say was too important to miss. God help Lindsey Fuller.

  Brunelle stopped and turned again to square himself fully to the jurors. He’d identified the players. It was time to tell the story.

  “Derrick Shanborn was exactly what every parent fears. A good kid who got hooked on drugs and threw his life away.” Another tug at the parent-jurors’ heartstrings. He had the moms with the school play reference. Time to grab the dads. “He was that skinny ten-year-old standing out in right field, trying to pay attention to the game and just hoping the ball didn’t get hit to him.”

  Brunelle paused just long enough to count the head-nods he got from the men on the jury. Two in the back and one in the front. Good.

  “But Derrick the Little Leaguer turned into Derrick the Teenager, and then Derrick the Young Twenty-Something. And instead of standing alone in a field of outfield dandelions, he was lying alone in a gutter, hopelessly addicted to heroin made from a Central Asian poppy field.”

  It was an awkward construction, but Brunelle liked the symmetry between dandelions and poppies. He considered working in that scene from The Wizard of Oz when Dorothy and her friends all fall asleep in the poppy field, but he couldn’t figure out how to do it and still sound serious and intense. Maybe next trial.

  “Actually, it wasn’t really a gutter,” he continued. “That’s a cliché. In real life, few people end up in an actual gutter. That’s too public. The good people of the world don’t want to see that.” A quick jab at the jurors’ collective guilt.

  “The truth is, heroin addicts like Derrick Shanborn end up in drug houses, flopped out on a mattress on the floor, bodies slack, eyes glassy, and souls dying.”

  Jacobsen stood up again. “Objection, Your Honor.” He was calmer this time, but still officious. “This is opening statement. The prosecutor is supposed to be discussing the facts of this case, not giving a speech about the evils of drug addiction.”

  Judge Quinn raised an eyebrow at Brunelle. “Response?”

  “The facts of this case are a speech against the evils of drug addiction,” Brunelle said. He’d have to thank Jacobsen later for that particular softball. “And the location where Mr. Shanborn used his drugs is highly relevant to the facts of this case.”

  Quinn frowned at him. “Rein it in, Mr. Brunelle,” she warned. “You can discuss the facts, but stay away from the public service announcements.”

  Brunelle provided a contrite nod. “Understood, Your Honor.”

  He turned back to the jurors. “In this case, Derrick Shanborn bought his heroin from Elmer Hernandez. In this case, Derrick Shanborn flopped on a mattress in Elmer Hernandez’s living room. In this case,” a dramatic pause, “Derrick Shanborn’s little league coach was Seattle P.D. narcotics detective Tim Jackson.”

  Every good story has a twist.

  “And one day, Detective Jackson ran into that ten-year-old right fielder turned twenty-something drug addict. And because of that, it looked like Derrick might end up being one of those few—precious few—success stories. Not just another statistic in the war on drugs. Detective Jackson did exactly what a good cop should do—what a good person should do. He reached out to Derrick and rather than arrest him for possession of heroin, he offered to help him kick it.”

  Brunelle nodded thoughtfully and took a small step to his right. “And Derrick Shanborn, twenty-something drug addict, well, he remembered that ten-year-old little leaguer too. He remembered his best friend’s dad, Mr. Jackson. And he said, ‘Yes. Please help me.’”

  Brunelle paused again. He frowned and looked down solemnly. After a moment he looked up again and rested his gaze somewhere between two of the jurors in the back row. “I wish I could tell you that’s where the story ended. That Derrick got clean—which he did—and moved to Montana to get a fresh start—which he planned to do. But that’s not how the story ended. The story ends here, in this courtroom. Because Derrick Shanborn told Detective Jackson who his drug dealer was. And Elmer Hernandez found out Derrick had snitched him out. And no one snitches out Elmer Hernandez. So the defendants in this room hatched a plan to take their revenge on Derrick Shanborn. They lured him to Mr. Hernandez’s house. They shot him to death. And they dumped his body in an open ditch, right behind a gas station on Lake City Way. A warning to everyone that you don’t snitch on Elmer Hernandez.”

  Brunelle returned to his original spot, centered in front of the jury box, and clasped his hands earnestly, solemnly.

  “That was the end of Derrick’s story. But it isn’t the end of the whole story. As I said, the story ends in this courtroom. After you hear the evidence, listen to the arguments, and deliberate on your verdict. Only then will this story finally end. And at the conclusion of this trial, we will stand up again and ask you to end this story with verdicts of guilty to the charge of murder in the first degree.

  “Thank you.”

  Brunelle walked back to his seat and sat down again next to Carlisle who offered a whispered, “Good job.” It had gone about as well as he could have hoped. He didn’t have a lot of details, so he’d painted broadly. A watercolor landscape rather than an oil portrait. He hoped it would be enough. But that would depend on how well his opponents did.

  Something he was about to find out.

  “Ladies and gentlemen,” Judge Quinn announced, “please give your attention to Mr. Jacobsen, who will deliver the opening statement on behalf of Mr. Hernandez.”

  Chapter 32

  Jacobsen stood slowly from his seat and buttoned his coat as he navigated the narrow space between his table and the prosecution’s. He nodded to the judge, then turned to face the jurors.

  “That,” he began, pointing at Brunelle, “was a very nice story. A little short on detail, but still, very dramatic.” He turned and offered a sarcastic golf clap to Brunelle. “Bravo.”

  Brunelle frowned slightly. H
e couldn’t ignore the jab completely, but he didn’t have to take the bait either and object. If Jacobsen wanted to act like a jerk, that was fine. Jurors didn’t like jerks any more than anyone else did.

  “But,” Jacobsen turned back to the jurors, “that’s all it was. A story. A simple, almost fantastic story, filled with clichéd characters and simple motivations. Like a fairy tale. And just like a fairy tale, it has the momentary ability to entertain, but it is ultimately detached from reality. So disregard it. Ignore it. Forget it completely.”

  Jacobsen paused and started pacing. He chewed his cheek for a moment and nodded, as if to himself. “Now, I know what you’re thinking. Or rather, I know what you’re expecting. You’re expecting me to tell a story. A better story. Mr. Brunelle just told you a story. And I just told you to throw it out like so much trash. So I must have a different story, right? A better story.”

  He stopped pacing and shook his head. “No. I have no story for you. Mr. Brunelle can get up here, call my client names, spin some fantastic yarn about little league and lost redemption, and when he’s done everyone thinks they know what the case is about. So of course, I should get up and tell a different story. A ‘competing narrative’ is what they call it, I think. But why should I? Or rather,” he pointed a challenging finger at the jurors, “why shouldn’t I?”

  He waited, as if the jurors might actually answer. After another moment, Brunelle began to worry one of them might. Trials weren’t classrooms. There weren’t question-and-answer sessions. If some juror shouted out a guess, it could mistry the case. He started to stand up to object, but Jacobsen continued before he, or any of the jurors, could say anything.

  “The answer, ladies and gentlemen of the jury, is simple. In fact, it’s so simple that it’s in danger of being overlooked. The reason I shouldn’t provide you with a competing narrative, with a different story of what, as the judge said, I expect the evidence to show is this: I don’t expect the evidence to show anything. And I don’t have to.”