Accomplice Liability

by Stephen Penner

  Brava, Ms. Dunn, Brunelle thought.

  Then all eyes turned to Nick Lannigan.

  Chapter 35

  Judge Quinn looked to the jury and gave her well-practiced introduction one more time. “Ladies and gentleman, please give your attention to Mr. Lannigan who will deliver the opening statement on behalf of Ms. Fuller.”

  Lannigan stood up, but didn’t step out from behind his table.

  “Your Honor,” he said politely, “at this time I’d like to reserve opening statement.”

  Quinn blinked at him. “Reserve?” she nearly stammered.

  Brunelle looked over too. So did Carlisle, and the defense attorneys. And the defendants. Even the corrections officers guarding the exits.

  A defense attorney could reserve opening statement until after the prosecution had presented all of its evidence and rested its case. Theoretically, it enabled a defendant to wait and see all of the evidence against him and then tailor his story to fit the evidence. But that was exactly what the tactic looked like, so defense attorneys almost never reserved opening. It made the defendant look guilty. Besides, the jury was dying to hear what the case was about, what your side of the story was. So you tell them. As soon as you can.

  “Yes, Your Honor,” Lannigan confirmed. He didn’t say anything else.

  Judge Quinn stared at him for several seconds, then dropped a sympathetic glance at Lindsey Fuller. Finally, she turned away and nodded to Brunelle and Carlisle.

  “All right then,” she said. “State, call your first witness.”

  Carlisle stood up. “The state calls Detective Larry Chen to the stand.”

  Chapter 36

  Brunelle fetched Chen from the hallway bench where he’d been waiting while the lawyers made their opening pitches. It was pretty normal to start a homicide case with the lead detective. It helped frame all the rest of the witnesses’ testimony, and there was a familiar whodunit vibe to a cop telling the story of finding a bullet-ridden body in a ditch.

  As Chen made his way to the front of the courtroom to be sworn in by Judge Quinn, Brunelle returned to his seat. Carlisle was going to do the direct. They had jointly decided that. For one thing, Brunelle had given the opening, so it was important that Carlisle appear to the jury as an equal partner. For another, they were striving for an even split in number and importance of witnesses. Carlisle would do the medical examiner and Brunelle would do the ballistics expert. Brunelle would do Josh Rittenberger and Carlisle would do Amanda Ashford. And Carlisle would do Chen so Brunelle could do Jackson.

  “Please state your name for the record,” Carlisle started. Good place to start.

  “Larry Chen,” came the practiced response.

  And they were off. Questions and answers to tell the story of finding Derrick Shanborn’s body behind the gas station. Brunelle knew the story already. Hell, he was there. He tried not to let his mind wander, but Carlisle was doing fine and he didn’t feel the need to monitor every exchange. He forced himself to focus again on the direct exam.

  “...how long have you been investigating homicide cases?”

  “I was assigned to the homicide division six years ago, but I assisted on several homicide investigations while I was still in the major crimes unit...”

  Still on the preliminaries. Brunelle glanced around the courtroom at his opponents, counsel and client, to see if they were paying attention. Of course they were, at least the lawyers; they still had to cross-examine him.

  Another look up to Carlisle and Chen.

  “...what happened next?”

  “I walked to the back of the gas station parking lot and....”

  And looked into the ditch and saw a body, Brunelle knew the answer.

  The problem with Chen’s testimony was that it was necessary to establish the murder, but he couldn’t point the finger at any of the defendants. Not personally. Anything a witness like Amanda Ashford or Josh Rittenberger told him was hearsay. He couldn’t tell the jury what those people said—they had to come into court themselves and tell the jury themselves. The only exception was when a defendant said something. A cop could always testify to what a defendant told him. They were serious about that ‘anything you say can and will be used against you’ stuff.

  But Hernandez and Fuller had refused to talk and Wilkins and Keller only did so after a promise not to use their statements against them. Chen wasn’t even allowed to tell the jury that they had all initially lawyered up. They had a constitutional right to remain silent and so the exercise of that right couldn’t be used against them. As a result, all Chen could really tell the jury was he found a body in a ditch, it had been shot several times, and it was later identified as Derrick Shanborn.

  “Thank you, Detective.” Carlisle picked up her notepad and binder and looked up to the judge. “No further questions, Your Honor.

  She returned to her seat and Brunelle gave her a ‘good job’ nod, as if he’d been paying close attention the entire time. She returned the nod with a subtle smile then turned her gaze to the first of the attorneys to cross-examine her witness. Jacobsen.

  Brunelle watched too. He was curious what tack each attorney would take. In his experience, shorter cross-examinations were often more effective. Rather than rehashing everything the witness had already said on direct examination, the skilled defense attorney focused on the one or two areas that most benefitted their client—then sat the hell down.

  By all indications, Jacobsen was a good attorney, but he was also a showman. And he loved the sound of his own voice. He stood up and delivered his first question from behind counsel table, pointing an accusing finger at Chen.

  “You’re a detective, is that right?”

  Chen thought for a moment, as if there might be a trick imbedded in the simplicity of the inquiry. Then he answered, “Yes, sir.”

  Jacobsen came out from behind his table then, but kept the finger wagging at his witness.

  “You solve cases, right?”

  Chen shrugged and looked to the jury. “I try to.”

  Good, thought Brunelle. Self-effacing. A few of the jurors smiled at the reply.

  “It’s like solving a puzzle, isn’t it?”

  Chen considered the comparison. “I suppose. Sometimes.”

  “Sure it is,” Jacobsen encouraged. “You look for patterns, deduce what isn’t there, and try to figure out what really happened. That’s solving a puzzle.”

  Chen waited for a question, but there really wasn’t one. “Okay,” he replied.

  “For example,” Jacobsen raised his voice and gestured toward the ceiling, “a body dumped in a public place is a warning. Isn’t that what you said?”

  Chen nodded slowly. “It can be.”

  “Well, I think you said it was. That when you found Derrick Shanborn’s bullet-ridden body in a ditch just yards from Lake City Way, you knew it was a warning. Isn’t that what you said?”

  “I’m not exactly sure what I said,” Chen admitted, again turning to the jury. “But when I found Derrick’s body in that ditch, I considered the possibility that it was meant as a warning because usually people try to hide bodies, not dump them right next to main thoroughfares.”

  Jacobsen jabbed his finger several times toward Chen. “Yes, yes, yes. Exactly. So,” he grinned at the detective, “if I wanted to kill my business partner to steal his money and run away with his wife, I should dump the body next to Lake City Way, or Aurora Avenue, or Alaskan Way, and you’ll think someone else did it to warn people not to become a lawyer, correct? You’ll never even think to look at the classic motives and money and jealousy because I out-thought you and made you think it was a warning.”

  Chen thought for a moment before answering. He sat up a bit straighter in his chair. “Well, I think there would be more evidence than that. If the firm’s accounts were drained into yours and you and the widow flew off to Hawaii for two weeks immediately after the funeral, I might find that suspicious as well.”

  Brunelle smiled. He never had to obje
ct with Chen.

  Jacobsen, though, frowned. Still, he wasn’t about to let the witness off the hook. “Well, yes. But now you’re introducing facts into my hypothetical. Absent those additional facts, you will conclude from the mere fact that a body was dumped near a main road that the killing was likely a warning.”

  Chen again considered. “It would be one of my first hypotheses.”

  Jacobsen’s frown deepened at the careful reply. His animated hand dropped to his side. “Fine. One of your first hypotheses. And that’s because you look for patterns when you solve your puzzles, right? Because a dumped body equals a warning. Just like one plus one always equals two.”

  “Usually,” Chen answered, again looking to the jury. Another smile or two greeted him.

  “Usually?” Jacobsen practically gasped. “One plus one usually equals two? When does it not, sir?”

  “When there’s another explanation,” Chen replied.

  But Jacobsen shook his head. “No, no, no. Please answer my question. One plus one equals two, correct?”

  “Usually,” Chen repeated.

  “No,” Jacobsen shot back. “Always. One plus one always equals two, doesn’t it detective?”

  Chen hesitated, unsure what he was really being asked.

  “Set aside metaphors and analogies, detective,” Jacobsen instructed. “And remember, sir, you are under oath. One plus one always equals two, correct?”

  Chen took several moments to answer. But setting aside metaphors and analogies and remembering he was under oath, there was only one answer. “Yes, sir.”

  Jacobsen spun triumphantly on his heel. “No further questions,” he announced and returned to his seat.

  Judge Quinn watched after Jacobsen, then gave the slightest shake of her head before saying, “Ms. Edwards. Any questions?”

  Edwards stood up. “Yes, Your Honor.” She took the time needed to come out from behind her table and take up a position at the bar in front of the witness.

  “You were the lead detective on this case, correct?” she started.

  “Yes, ma’am,” Chen agreed.

  “That means you decide what needs to be done and assign those tasks to others to complete, correct?”

  Chen thought for a moment, then nodded. “Yes, ma’am, I think that’s a fair description.”

  “And these other people—be they patrol officers, forensic scientists, or other detectives—they write up reports and send them to you for review, correct?”

  Again a nod. “That’s correct.”

  “So you yourself don’t actually do anything, right?”

  Chen frowned at that characterization. “I don’t think that’s exactly accurate,” he defended.

  “You didn’t do the autopsy, correct?”

  “No, ma’am,” Chen admitted.

  “And you didn’t do the ballistics examination on the bullets, did you?”

  Again, Chen admitted, “No, ma’am.”

  “Photographing the scene, collecting the evidence, transporting the body to the morgue, you didn’t do any of that, correct?”

  Chen frowned. “Correct.”

  “You get the call out, see the body, and come up with a theory of what happened,” Edwards said. “Then you collect any evidence that fits that theory and ignore the rest, correct?”

  Chen straightened up in his seat. “I wouldn’t say that.”

  “Oh, really?” Edwards responded. “Well, I would.” She looked up to the judge. “No further questions, Your Honor.”

  Robyn was next. The same order as the opening statements. The same order as the defendants would put on their own cases, and the same order as closing arguments. She straightened her suit and took her place at the bar.

  “You’ve been a homicide detective for six years, is that correct, sir?”

  Chen nodded. “Yes, ma’am.”

  “And you were a detective in major crimes for ten years before that, correct.”

  Another nod. “Correct.”

  “And before that, four years investigating property crimes and drugs and the like?”

  “Yes, ma’am.”

  “And in all of those twenty years as a detective, or in your eight years before that as a patrol officer, did you ever have any occasion to investigate my client for anything? Anything at all?”

  Chen thought for a moment, but only a moment. He knew the answer. “No, ma’am. Not until this case.”

  Robyn nodded herself. “No further questions.”

  She returned to her seat and it was Lannigan’s turn.

  He squeezed out from behind his table upon the judge’s invitation to question the witness. He stood awkwardly in the middle of everything, not quite at the bar, but not back with his client either.

  “Detective,” he started, his voice a bit too loud, “did you see Lindsey Fuller shoot Derrick Shanborn?”

  Chen cocked his head at the question. Then he shook it. “No.”

  Lannigan turned to look up at the judge. “No more questions, Your Honor,” he said, and returned to his seat.

  The courtroom was filled by a moment of dumbfounded silence. Then Judge Quinn raised her eyebrows and looked down at Carlisle. “Any redirect examination?”

  Carlisle shot to her feet. “Yes, Your Honor.”

  Brunelle wasn’t sure it was a good idea to ask Chen any more questions, but he was Carlisle’s witness. She made her way to the bar.

  “One plus one equals two, right, detective?” she began.

  Chen gave an uncertain half-smile. But he trusted the prosecutor in front of him. “Right.”

  “And one plus one plus one equals three, right?” she continued.

  Chen nodded. “Right.”

  “And,” Carlisle raised a professorial finger in the air, “a police informant, plus a drug dealer, plus three gunshots, plus a body dumped for all to see, equals these four defendants are guilty of murder, right?”

  Before Chen could answer, Jacobsen sprang up. “Objection!” he shouted. “The question calls for an opinion on the ultimate issue.”

  Brunelle frowned. That wasn’t necessarily a valid objection, he knew. Witnesses gave opinions all the time on the ultimate issue of a defendant’s guilt or innocence—or at least came close. One DUI trial with a cop saying the driver was falling down drunk proved that. But Brunelle was glad for the objection. And he hoped Quinn sustained it.

  The judge frowned. She also must have known it wasn’t really a valid objection. But it was a dangerous question. “I’ll sustain the objection as to the form of the question,” she said.

  Jacobsen hesitated, then sat down again. Carlisle grinned. She’d made her point. The question was what mattered, not the answer. “No further questions, Your Honor,” and she returned to her seat as well.

  Chen’s examination was over. Brunelle breathed a sigh of relief. Carlisle’s question had been dramatic, but the answer would have been catastrophic. Chen was a detective, but he wasn’t there when Derrick Shanborn was murdered; he couldn’t say for sure what happened that night. And he was honest.

  He would have answered, ‘I don’t know.’

  And that would have equaled reasonable doubt.

  Chapter 37

  The next witness was Det. Jackson. Brunelle was doing the direct exam. He decided to keep it focused solidly on little Derrick Shanborn.

  “Please state your name for the record,” he began.

  “Timothy Jackson,” the detective replied.

  “And how are you employed, sir?”

  “I’m a detective with the Seattle Police Department.”

  And they were off. A few more of the name, rank, and serial number questions, and the jury knew that Tim Jackson had been a narcotics detective with Seattle P.D. for going on a dozen years.

  “Did you know Derrick Shanborn?” Brunelle asked.

  Jackson took a moment before answering. He frowned and lowered his eyes. “Yes.”

  “How did you know him?”

  Jackson nodded then looked up
to the jury. “He was my son’s best friend when they were kids. I was his little league coach for three years. He was a good kid.”

  The jury nodded sympathetically. They already knew the story of course—Brunelle had told them—but there was something about hearing it from the horse’s mouth. Or the detective’s.

  A few more questions about Derrick’s time as the skinny awkward kid who got stuck playing right field but who made all the boys laugh after the game at the ice cream shop and Brunelle jumped the narrative forward.

  “Did you have occasion to run into Derrick again as an adult?”

  Jackson nodded and took another moment before telling the jury, “Yes. I arrested him for drug possession. Heroin. I didn’t even know it was him at first.”

  Brunelle made a gesture toward the jury box. “Please tell the jury what happened that day.”

  Brunelle knew the story. He’d heard it that first day he’d met Jackson. So he was surprised that Jackson didn’t seem to remember the story very well himself.

  “Well, it was a while ago,” he started, looking toward the ceiling. “I remember I was doing standard narcotics enforcement up in Lake City when I ran across him. He was obviously a heroin addict; one look at him told me that. I stopped him on the sidewalk. He was tripping so bad I figured he might have some on him. I patted him down and found a used syringe with some brown liquid in it, so I arrested him for possession of drug paraphernalia.”

  Brunelle cocked his head slightly. “Did he also have drugs on him? Or anything like baggies or a scale, like drug dealers use?”

  Jackson thought for a moment. “Well, I didn’t write a report, so I may be forgetting some of the details. But I remember arresting him and then I remember recognizing him.”

  Well, okay, thought Brunelle. That was the important part.

  “What happened when you recognized him?”

  “Well, at first, I was like, ‘Derrick? Is that you?’” Jackson related. “I mean it had been ten years. He’d grown up. And he looked really bad from the drugs. All gaunt and yellowy. But in a way, that was kind of how I recognized him. He was always a skinny little kid. And thanks to the heroin, he was still skin and bones.”