Accomplice Liability

by Stephen Penner

  He pointed at his client. His large, scary-looking, drug dealer client. “Take a look at Mr. Hernandez. There he is. Seated in a courtroom. Not as a juror, or a judge, or a lawyer, or a spectator in the gallery. No, he sits here as a defendant. A criminal defendant. And as such, he is absolutely, positively, completely, one-hundred percent innocent.”

  Brunelle almost never objected. Objections just drew attention to the other side’s point, whatever it was. He only objected if he was sure he’d win and keep out evidence the jury shouldn’t hear. Or if it gave him an opportunity to make a point. He stood up.

  “Objection, Your Honor,” he said calmly. “That’s a misstatement of law. Criminal defendants are presumed innocent, not necessarily innocent in fact.”

  Quinn frowned at both of the lawyers. “This is opening statement, not closing argument. We won’t be arguing legal standards here. You made your point, Mr. Brunelle. Move on, Mr. Jacobsen.”

  Brunelle sat down again and Jacobsen nodded, “Only presumed innocent, the prosecutor says. Only. As if it weren’t really all that important. And of course, Mr. Brunelle wants you to think it’s not very important. Who cares about the truth? Who cares about process? Just tell us your story. The prosecutor called your client a drug dealer. Is he or isn’t he? Did he really shoot Derrick Shanborn for being a snitch? Did he play little league too?”

  Jacobsen snorted with practiced disgust. “No, you don’t need to know if Mr. Hernandez is a drug dealer, or a drug user, or short stop for the Seattle Mariners. You only need to know one thing: he is presumed innocent. And the fact that you expect me to tell you a story about the case just goes to show why that presumption is so important.

  “I don’t have to prove anything. The prosecution has to prove everything, and beyond a reasonable doubt. They don’t just have to tell you a story, they have to prove that story to you, beyond a reasonable doubt. And they will fail. Just like with any fairy tale. A goose that lays golden eggs isn’t reasonable. Three bears eating porridge in a cabin isn’t reasonable. And the story Mr. Brunelle just told you isn’t reasonable. It will fall apart just as surely as any children’s bedtime story.”

  Jacobsen crossed his arms and raised his chin to the jurors. “The only thing that could possibly save Mr. Brunelle’s story is if I told you a worse one. Or one that confirmed most of his story, but tried to thread some legal needle. Validate his claim that Mr. Hernandez is a drug dealer, and a violent man, and a troll that lives under a bridge, but he would never actually murder a boy who once played little league. And if I did that, do you know what you would do?”

  Again, a pause for the jurors to answer. Brunelle would give it two more seconds. A second-and-a-half later, Jacobsen answered his own question. “You would stop listening to the evidence. Or rather, you’d never start. If I tell you, ‘Yes, Elmer Hernandez drinks the blood of children for breakfast,’ but no witness ever says that, you’ll still believe it. Because I told you so. And I wouldn’t say it if it weren’t true because I’m his lawyer.

  “So if I stand here and tell you a story, any story, then I am shirking my responsibility to hold the prosecution to its burden, to prove each and every element of the offense beyond any and all reasonable doubt. You want me to tell you a story? Too bad. I don’t tell stories. Mr. Brunelle does. But you don’t convict people of murder based on stories.”

  He pointed again at his client. “Mr. Hernandez is innocent as he sits here now. And at the end of this trial, when the prosecutor has failed to prove his entertaining but ultimately vacuous fairy tale, he will still be innocent. All without me telling you anything.

  “Because that’s how it works.

  “Because that’s justice.”

  Jacobsen spun on his heel and marched back to his seat next to Hernandez.

  Brunelle looked to Carlisle, unsure whether Jacobsen’s opening was brilliant or suicidal. Carlisle didn’t seem to know either. Judge Quinn didn’t seem to care; she had a trial to manage.

  “And now, ladies and gentlemen, please give your attention to Ms. Edwards who will give opening statement on behalf of Mr. Wilkins.”

  Chapter 33

  Edwards stood and took her turn in front of the jury. Brunelle watched her walk into the well. Her expression was inscrutable, but he knew the gears were grinding even as she thanked the judge and took that last deep breath before beginning. She had a choice to make. Double down on Jacobsen’s challenge, or undercut him by actually telling the jury her client’s story.

  Brunelle could guess what she’d do.

  “Nate Wilkins,” she began. She glanced over at her client and smiled softly. “He’s also presumed innocent. He’s also charged with a crime. And he also has a story. But,” she paused and looked back to the jurors, “his story doesn’t include murdering Derrick Shanborn.”

  Brunelle frowned inside. Edwards was good. Direct and powerful. Damn.

  Edwards clasped her hands loosely in front of her—an earnest gesture, practiced and designed to disarm. Brunelle had just used it himself. “Nate was born and raised right here in Seattle. In White Center. As most of you probably know, that can be a pretty tough neighborhood, and Nate couldn’t wait to get out of there. Especially with a drug-addicted mother and an abusive stepfather. As soon as he turned seventeen, he left home, quit school, and moved in with friends up in North Seattle. Maybe not the ideal start to his adult life, but we can’t all have ideal lives, now can we?”

  A dig at those school play moms and little league dads. The tech industry had made Seattle an interesting place. There was almost too much money flying around, and even more guilt. Brunelle had played to their pride; Edwards plucked at their shame.

  “So instead of going to college or even trade school, Nate went to work. He needed to make money. He needed to eat, to have a place to sleep. He wasn’t going to be another homeless youth in the University District, begging for handouts.”

  Edwards took a step to her right and opened her stance slightly toward her client. “Nate was a hard worker, and he always did well at the jobs he took. But there was a limit. You can only make so much as a grocery bagger or a short order cook. He never made enough to get out on his own, to get his own apartment, to start building a real life. He had to rely on friends. Friends like Elmer Hernandez.”

  Brunelle stopped taking notes and looked over at Hernandez, just like everyone else in the courtroom did. Hernandez was aware of the eyes on him, but just sat there dumbly. Jacobsen, ever aware of the jury, took the opportunity to pat him affectionately on the shoulder. Jurors loved that shit.

  “Now, the prosecutor called Mr. Hernandez a drug dealer,” Edwards went on. “Maybe he was, maybe he wasn’t. I don’t know. And neither did Nate. Nate just knew that Mr. Hernandez had a place he could stay when he needed it, and odd jobs to do if he didn’t ask too many questions. And growing up the way Nate did, he’d learned long ago not to ask too many questions.”

  Brunelle wondered, almost absently, whether Edwards planned on calling any witnesses to support this ‘terrible home life’ line she was feeding the jury. Probably not. But they were hearing it. And absent some evidence to the contrary, they’d believe it.

  “Deliveries here. Pick-ups there. A couch to crash on and pad thai from up the street. It wasn’t permanent, but it was real. It was just another chapter in his life. He knew it would end soon enough and he’d start another. But he had no idea that next chapter would begin here in this courtroom, his destiny in the hands of twelve people he can only pray will understand his situation.”

  Brunelle mentally rolled his eyes. Another appeal to the guilty, liberal Seattleites in the jury box. The use of ‘pray’ was nice too, he thought. It suggested Nate Wilkins was a religious person, a choir boy perhaps. He probably hadn’t been to church since he was kicked out of Sunday school in third grade for smoking.

  Edwards took a moment and cast her eyes down solemnly. It almost looked like she might cry. Brunelle knew better of course, but he was impressed by the sho
wmanship. After another moment, she looked up again.

  “Nate knew Derrick Shanborn,” she offered with a nod. “You wouldn’t say they were friends exactly. But they knew each other. Derrick would crash at Mr. Hernandez’s house sometimes too. And Nate knew—just like everybody who knew Derrick knew—Derrick had a drug problem. A bad one. He was addicted to heroin. And you’re going to hear during the course of this trial that heroin is one of the hardest drugs to kick. The withdrawals are so bad, there’s an FDA-approved synthetic heroin replacement that lets addicts basically keep taking the drug during rehab so they don’t die from withdrawal.”

  Brunelle wasn’t sure that was exactly accurate, but it would resonate with the jurors. At least some of them probably binge-watched crime dramas on Netflix. Edwards didn’t have to be accurate; she just needed to dovetail her story with the jurors’ own knowledge base. Nothing rings truer than confirmation of our own biases.

  “Derrick Shanborn was a heroin addict. Nate didn’t know where he got his drugs, and he didn’t want to know. He wasn’t interested in starting down that path. All he had to do was look at Derrick—pale, scrawny, dirty, strung out—to know he wanted no part of that. So whenever Derrick showed up, Nate found an excuse to leave.”

  Edwards paused again. She wanted that last point to have a few moments to sink in. Pauses in oratory give the listener a chance to reflect on what they just heard, and they’ll always reflect on whatever they heard last. A skilled orator will use pauses to emphasize the points she wants the listener to remember. Unfortunately for Brunelle, Edwards was a very skilled orator.

  “The day Derrick died…” She stopped and corrected herself with a nod. “The day Derrick was murdered was no different. No different from all the other days Derrick came over high and looking to get higher. Derrick laid down on the mattress, and Nate stood up to leave. He had no idea what was about to happen, and even less idea why.”

  Brunelle looked up from his note taking. Was Edwards really going to claim Wilkins left before the shooting started? After he’d told the cops he was one of the shooters? They couldn’t introduce that statement to the jury—that was the deal. With one exception: if Wilkins took the stand and testified differently. But if he didn’t take the stand, how in the world was Edwards going to establish Wilkins left the house before the murder?

  But Edwards sidestepped it masterfully. After suggesting, strongly, that her client had departed the house before Derrick Shanborn departed our mortal plane, she left it alone, allowing it to solidify from suggestion to assertion without actually asserting it. Instead, she did what every good entertainer does: she left them wanting more.

  “Derrick Shanborn is dead. There’s no doubt about that. Murdered. Shot three times in the chest, and dumped right off Lake City Way here in Seattle. Again, no doubt about that. But Nate Wilkins guilty of that murder?” She shook her head. “No, there’s nothing but doubt about that. Nothing but reasonable doubt, and a whole lot of it. And at the end of this trial I’m going to stand before you once again and ask you to return a verdict of not guilty.”

  Chapter 34

  Edwards turned and sat down again. She too put a hand on her client’s shoulder. They learned that in defense attorney school. Really. All attorneys were required to take continuing legal education courses, and the ones for criminal defense attorneys stressed ways to communicate to the jury that your defendant wasn’t really all that bad. Obviously avoiding speaking with or even touching your client might inadvertently communicate to the jury that he was exactly the reprobate psychopath the prosecution was making him out to be.

  As Edwards sat down, Robyn Dunn stood up, even before the judge instructed the jurors, “Now please give your attention to Ms. Dunn who will deliver the opening statement on behalf of Ms. Keller.”

  Dunn didn’t look over at Brunelle, but he couldn’t help but watch her as she took her place before the jury. He noticed Carlisle looking at him looking at Robyn, but he ignored her. Dunn started.

  “Samantha Keller didn’t like Derrick Shanborn.”

  Another thing they taught at defense attorney school—and prosecutor school too for that matter—was to start opening statement with what was called an ‘attention grabber’ or ‘hook.’ Admitting that your murder defendant client didn’t like the murder victim was something guaranteed to grab attention. An excuse to keep watching. Brunelle set his pen down. He was as bad as Lannigan. He didn’t care.

  “She didn’t like Nate Wilkins,” Dunn continued. “She didn’t like Lindsey Fuller, Josh Rittenberger, or Amanda Ashford. She didn’t like any of them. And she still doesn’t.”

  Brunelle glanced quickly at the other defendants. Awkward.

  Dunn pointed at Jacobsen’s table. “And Elmer Hernandez? She doesn’t like him either.” Another attention grabber, but more predictable—at least for Brunelle. “She loves him.”

  Despite the tired ‘I don’t like it, I love it’ cliché, Brunelle couldn’t help but smile. Nice introduction, he had to admit to himself. He picked up his pen again to finally take notes as she continued.

  “In fact, that was part of the reason she didn’t like Derrick Shanborn, and why she still doesn’t like any of the rest of the drug addicts, and losers, and hangers-on that Elmer let crash at their home all hours of the day and night.”

  She held up a finger to the jurors. “But,” she said, “she didn’t kill Derrick Shanborn. And she wasn’t involved in any plan to do so.”

  Brunelle looked up again at his one-all-too-brief-a-time girlfriend. Brunelle had told a story to the jurors, like they said to do in trial lawyer school. Jacobsen had defiantly refused to tell a story. Edwards told a story, but she labeled it as such. Now that it was Dunn’s turn, it would have been easy for her to follow either Jacobsen’s or Edwards’ lead and weave the meta-theory of story-telling into her narrative. But her instincts were better than that. It suggested she was already exceeding the very estimable Jessica Edwards in her trial skills. Calling a story a story weakened its power. The difference between, ‘I’m telling you she didn’t shoot Derrick Shanborn’ and simply ‘She didn’t shoot Derrick Shanborn’ was only three words, but was immense in its persuasive effect.

  “Elmer supported Samantha. He paid the bills, put food on the table, and kept a roof over their heads. She didn’t ask how, but, in all honesty, she knew. Computer programmers and aeronautical engineers don’t have drug addicts crashing on mattresses in their front rooms. Now, we could have a lengthy conversation about the wisdom and morality of criminalizing drugs, but that’s not the question before you. And let me make that perfectly clear—”

  She leaned in toward the jury and challenged them with a schoolmarm stare.

  “This is not a case about drug dealing. This is a case about murder. Murder. And the case against my client, Samantha Keller, is separate and distinct from the cases against everyone else in this room, even her boyfriend, Elmer Hernandez.

  “The question before you is not whether anyone in this room was involved in selling or using drugs. The question is not even whether anyone on this room was involved in the murder of Derrick Shanborn. The question regarding Ms. Keller, the only question I care about, is this: Will the state prove, beyond any reasonable doubt, that Ms. Keller herself, committed the crime of murder?

  “And I will tell you right now: they won’t do it. Because she didn’t.”

  Again, Brunelle admired, direct and forceful. He sighed. He really missed her.

  “So let me repeat,” Dunn straightened up to her full height again, her cropped red hair framing her stern face perfectly. “Samantha Keller didn’t like Derrick Shanborn, but she was in no way involved in his murder.”

  She relaxed her posture slightly and paced a few steps as she continued. “The night Derrick Shanborn died was like any other night at their home. Derrick came over to shoot up heroin. Lindsey Fuller and her boyfriend, Josh Rittenberger, came over to shoot up heroin. Amanda Ashford came over to look pretty and make Elmer feel young a
nd attractive again. And Samantha Keller went to her bedroom to get away from all of those people. She didn’t talk to Elmer beforehand, but she planned to talk to him afterward. Another argument about parasitic drug addicts and loose-moraled groupies. But that argument never happened.”

  Dunn turned and paced back to her starting place. “Samantha fell asleep watching T.V. She woke up to the sound of gunshots. When she went out front, she saw Derrick Shanborn on the floor, bleeding. She screamed. She cried. She yelled at Elmer. And when she was done screaming and crying and yelling, and the body was taken away, she cleaned the blood off the floor of her home and tried to go on with her life.”

  Dunn paused for a moment. “Now, Samantha’s not an idiot. She knew the cops would be coming. And they did. But in the meantime, she never talked to Elmer about what happened, and she didn’t talk to anyone else either. When the police arrested her, she was cooperative. She knows Derrick Shanborn was shot to death in her home while she slept, but she doesn’t know who did it.”

  Dunn took a half step back and raised a thoughtful hand to her face. “I suppose I could spend time discussing whether the state even knows who really shot Derrick Shanborn, whether they’ll be able to put on enough evidence to let you know who did it. But I’ll leave that to Mr. Jacobsen, and Ms. Edwards, and Mr. Lannigan. Instead, I’ll simply tell you: Samantha didn’t murder Derrick Shanborn and she doesn’t know who did. And at the end of this trial, the twelve of you will know beyond any doubt that Samantha Keller is innocent of murder.

  “Thank you.”

  With that, Dunn returned to her seat next to an obviously grateful Samantha Keller. It was a good opening statement. Clean, forceful, and it began the all-important task of separating Keller from Hernandez in the jury’s mind.