Accomplice Liability

by Stephen Penner

  Brunelle definitely wasn’t going off script again with that Pandora’s box.

  “Let’s get back to the night Derrick Shanborn was shot,” he said. “Was Derrick already at Mr. Hernandez’s house when you arrived?”

  Rittenberger’s face twisted up in attempted memory. “I’m not really sure actually. He might have been. Or he might have come right after I got there. I don’t really remember. Sorry.”

  Brunelle shrugged off the apology. “At some point, though, were you, Derrick, and Mr. Hernandez all in the house at the same time?”

  “Yes.” Rittenberger was sure of at least that much.

  “And was it during that time that Derrick Shanborn was murdered?”

  Rittenberger paused long enough to digest the question, then nodded and answered, “Yes.”

  “Did you see Derrick get shot?”

  Brunelle had to ask it. Even though he knew what the answer would be, or roughly what it would be, he still had to ask it. Again, the jury wanted to know.

  “I think so,” Rittenberger tried. “I remember him being there, and remember him not being shot yet, and then I remember him being shot. So, yeah.”

  Brunelle frowned a bit at the answer, but it was about what he’d expected.

  “Were you high at the time?” Again, it had to be asked. Better by him, than by Jacobsen. And Edwards. And Dunn and Lannigan. Well, not Lannigan. He only had one question he asked.

  “Oh, yeah,” Rittenberger practically laughed the answer.

  “But you remember at least some of what happened when Derrick was shot?”

  Rittenberger got serious again. “Yes. Definitely.”

  “What do you remember?”

  Brunelle half-expected another ‘calls for narrative’ objection from Jacobsen, but it never came. Rittenberger’s opiate-soaked memory probably made a true narrative impossible anyway.

  “Well, okay,” Rittenberger started, “I had just shot up and was laid out on one of the mattresses in the front room.”

  Great start, Brunelle thought to himself.

  “And then I heard some kind of argument, or yelling, or something. So I looked over and saw Derrick and Burner in the kitchen.”

  “Could you tell what they were arguing about?” Brunelle interjected.

  Rittenberger frowned. “No, not really. I was pretty high. I mean I’d just shot up—I think. Unless I blacked out and woke up because of the yelling.” He frowned deeper, trying to remember. “I don’t know. I mean, I was already kinda high when I got there. I was just trying to get higher.”

  Even better, Brunelle thought.

  “But you’re sure they were arguing?” he tried.

  “Well, maybe it was more like yelling. Like, Burner was yelling at Derrick. I don’t think Derrick was really yelling back, you know? He was more like apologizing and stepping back.”

  Okay, that was good.

  “Did you ever hear the word ‘snitch’?” Brunelle asked.

  Rittenberger nodded. “Yeah, I think I did.”

  “Who said it?”

  Rittenberger thought for a moment. “I think maybe both of them did. Or maybe Nate. I’m not sure. It was a dude, though, I remember that much.”

  “Could it have been Derrick?” Brunelle probed.

  Rittenberger paused as he tried to remember. “Yeah. Maybe him too. Like, ‘I would never snitch on you, Burner. I know what would happen.’ Or something like that.”

  Brunelle stopped. There were times to go off script. “And what would happen to someone who snitched on Burner?”

  “Exactly what did happen, man,” Rittenberger answered with wide eyes. “Burner would kill them.”

  “Did you see Mr. Hernandez shoot Derrick Shanborn?” The million-dollar question.

  “Uh, Well, I saw Derrick get shot,” Rittenberger gave a two-bit answer, “but I can’t say who shot him exactly. I was looking at him. And I was pretty high. I had tunnel vision, you know. So, uh, yeah. I saw him get shot, but I didn’t see who pulled the trigger.”

  “Well, right before the shots,” Brunelle tried to bolster the account a bit, “where was Mr. Hernandez?”

  “He was standing over Derrick, yelling at him.”

  “For being a snitch?”

  “Right.”

  “And where was Mr. Wilkins?” Brunelle continued. “Right before the shots.”

  “Standing next to Burner.”

  “Where was Ms. Keller?”

  “She was in the house, I think,” Rittenberger said. “But I didn’t see her in the kitchen.”

  “And what about Ms. Fuller? Was she in the kitchen too?”

  That was supposed to be the last question. Get all the defendants in the room, or at least the house, then stop asking the junkie questions. But the junkie had other plans.

  “Uh, no,” Rittenberger answered. “I don’t think she was there. She wasn’t there.”

  Brunelle stared at Rittenberger for several seconds. They had made sure to ask him that during his initial interview. And he had been clear—well, as clear as he could manage—that Fuller was present when Hernandez shot Shanborn. It was recorded. Brunelle could go back to counsel table and dig the transcript out from his briefcase. He could show Rittenberger the line where he’d previously told the cops that Fuller was present. Confront him with the inconsistency. Make him admit that either he didn’t really remember after all, or he was lying.

  But neither of those seemed like a good option. Fuller was the least culpable, after Rittenberger anyway. Should he really undercut the credibility of his one eyewitness to make sure Fuller was convicted? It wasn’t like Lannigan was going to ask him any questions about it anyway. Even if he wanted to go beyond his one and only question, there was no reason to challenge a witness who said your client wasn’t there.

  Brunelle was actually surprised how well Rittenberger had done. But he looked tired. The jury would likely understand why a man would omit his girlfriend. He could readdress it in closing, maybe. But he wasn’t going to finish his direct exam doing a boring transcript-dance (‘Please turn to page forty-seven and read lines sixteen through nineteen to yourself...’) with an unpredictable witness and no promise of what might happen.

  He looked up to Judge Quinn. “No further questions, Your Honor. Thank you.”

  When Brunelle returned to his seat, Carlisle tugged at his arm. “He said she was there when he talked to us before,” she whispered.

  “I know,” Brunelle whispered back. Then, the worst thing a man can say to a woman, “Trust me.”

  Jacobsen stood and strode confidently to the bar.

  “Hello, Mr. Rittenberger,” he started.

  Rittenberger hesitated. He really did look tired. And scared. Hard to blame him. “Hello,” he offered weakly.

  “You’re a drug addict,” Jacobsen started.

  “I was,” Rittenberger claimed, unconvincingly.

  “You’re a murder defendant,” Jacobsen continued.

  “I was,” Rittenberger said again.

  Jacobsen paused. “You still are, aren’t you? You don’t get your deal until after you testify, correct? Until then, you’re still awaiting trial for the murder of Derrick Shanborn.”

  For the first time, Rittenberger looked past his inquisitor to the front row. Rainaldi gave a short nod. Then Rittenberger looked back up to Jacobsen. “Yes, I guess that’s right.”

  “So, you’re a drug addict,” Jacobsen repeated. “And a murder defendant. And you’re a liar.”

  Rittenberger shook his head. “No. I’m not a liar.”

  Jacobsen smiled and crossed his arms. Brunelle noticed he hadn’t brought any paper up with him. Unscripted, but clearly not unprepared.

  “Didn’t you tell the police,” Jacobsen asked, “when they first talked to you, that you didn’t remember anything?”

  Rittenberger thought for a moment. “Uh, yeah. I think so.”

  “And then you were charged with murder anyway,” Jacobsen said, “and you suddenly remembered ever
ything. Is that right?”

  “Not exactly,” Rittenberger answered.

  “You told the police you didn’t remember anything, but you told the prosecutor you remembered everything,” Jacobsen recapped. “So either you lied to the police or you lied to the prosecutor. Which is it?”

  “It’s not like that,” Rittenberger said. “I was still really strung out when I first talked to the cops.”

  “And after you got charged,” Jacobsen pressed, “you told Mr. Brunelle what he wanted to hear and you got a deal.”

  “I just told the truth, man,” Rittenberger insisted.

  “The truth?” Jacobsen asked.

  “Yeah.”

  “You want to tell the truth?” Jacobsen followed up.

  “Yeah,” Rittenberger said.

  “Okay, let’s see if you can tell the truth.” Jacobsen leaned forward. “Was Lindsey Fuller there when Derrick got shot?”

  All eyes shot over to Fuller and Lannigan. But no objection from Lannigan. It probably wouldn’t have been sustained, but still. Do something.

  The eyes returned to Rittenberger. “I, uh, I…” he stammered.

  “So you’re a liar?” Jacobsen repeated.

  “No!”

  “Was Lindsey Fuller there?!” Jacobsen demanded.

  Brunelle could only watch and wait. It almost didn’t matter what the answer was. The damage was done. Well, most of it.

  Finally, Rittenberger hung his head. “Yes.”

  “She was there?” Jacobsen confirmed.

  “Yes, she was there.”

  “Which,” Jacobsen raised both his voice and a finger to the ceiling, “proves you are in fact a liar. Not ten minutes ago you told this jury she wasn’t there. That was a lie.”

  Rittenberger didn’t look up. “I was just trying to protect her. She didn’t have anything to do with this.”

  “In fact, it was more than a lie, wasn’t it?” Jacobsen ignored Rittenberger’s assertion as to Fuller’s culpability. “You were under oath. So it was perjury. Your testimony is perjury.”

  Rittenberger shrugged. “I guess so.”

  “No further questions,” Jacobsen declared, with a surprising amount of disgust for a person defending a murderer.

  Edwards stood up next. She picked up the club Jacobsen had been beating Rittenberger with.

  “You lied about Lindsey Fuller not being there, is that correct?”

  Rittenberger nodded. “Yes.”

  “So how do we know you’re not also lying about Nate Wilkins being there?”

  “I’m not,” he insisted

  “Maybe,” Edwards allowed. “But now that you’ve admitted to lying under oath, how can we know if you’re telling the truth about anything?”

  “I am.”

  “But how do we know?”

  Rittenberger stared at the floor for several seconds. Then he admitted, “I guess you don’t.”

  And Edwards was finished.

  Dunn rose to take her place. “You didn’t see Sammy in the kitchen that night when Derrick was shot, did you?”

  Rittenberger was clearly still rattled, but he responded to the friendliness in Dunn’s voice. “No,” he agreed. “I mean, she usually was around, you know? She lived there, right? But I don’t remember seeing her. She didn’t like it when me, or Derrick, or anybody like that would come over and crash, so she would usually leave and go someplace else.”

  Dunn nodded. “No further questions.”

  And then Lannigan offered his single question for the witness: “Did you see Lindsey Fuller shoot Derrick Shanborn?”

  Rittenberger shook his head and looked at his ex-girlfriend, who looked away. “No, man. She didn’t shoot Derrick. She was there, but she didn’t shoot nobody.”

  Lannigan sat down again and Judge Quinn looked to Brunelle. “Any redirect examination?”

  As entertaining as it might have been to try to rehabilitate someone who’d just admitted to lying on the stand, he decided to pass. “No, Your Honor. Thank you.”

  Rittenberger was finished, but he couldn’t get up and leave the courtroom because of that whole ‘still being held on murder charges’ thing. So the judge called a recess and the jurors filed back into the jury room. When they were done, the judge left the bench and court was adjourned for fifteen minutes so the guards could take Rittenberger back to his jail cell.

  Rainaldi checked in with Rittenberger before the guards took him away through the secure side entrance. Then she checked in with Brunelle and Carlisle.

  “He did good enough, right?” she asked. “That bit with Lindsey wasn’t great and I’ll talk to him about it, but he gave you Hernandez. He said Hernandez shot Derrick.”

  Brunelle frowned, but it was Carlisle who responded. “He didn’t quite say that. He said he didn’t see but it was probably Hernandez. And he admitted to lying on the stand, so I don’t know. The deal might be off.”

  Rainaldi was about to protest, but Brunelle spoke up first. “The deal was to testify truthfully. He didn’t do that. At least at first. But I think the jury may forgive him trying to protect his girlfriend.”

  “Exactly,” Rainaldi responded. She looked at Carlisle. “Exactly.”

  “Why don’t we wait to see what the jury says?” Brunelle suggested. “If these defendants get convicted, even if your guy didn’t really live up to his end of the bargain, we’re probably not going to want to try the entire case a second time just to get him.”

  “Exactly,” Rainaldi said a third time. “Okay, I’ll talk to him. And if you need him in rebuttal or something, he’ll be ready. I’ll make sure of that. He’ll be ready.”

  Rainaldi excused herself and left Brunelle and Carlisle to consider.

  “That wasn’t great,” Carlisle started.

  “Yeah, but it could have been worse,” Brunelle opined. “Did you believe him when he admitted to lying to protect Lindsey?”

  Carlisle thought for a moment. “Yeah, I guess so.”

  “So did I,” Brunelle said. “And I bet the jury did too.”

  “You mean, you hope they did,” Carlisle said.

  Brunelle smiled weakly. “That too.”

  Chapter 40

  Start strong. Finish strong.

  Those were two of the (probably too many) rules of trial practice. But when the witnesses with the most information also have the least credibility, strong becomes more art than science. They didn’t want to end on Rittenberger; they knew he might struggle, although admitting to perjury was worse than they’d expected. So Brunelle and Carlisle were both glad to wrap up their case with the medical examiner.

  In truth, Dr. Albrecht’s testimony was perfunctory. No one was contesting that Derrick Shanborn died from three gunshot wounds to the torso. But it never hurt to remind the jury how the victim died. A grisly description of blood filling a chest cavity to collapse a lung could help the jury feel the level of fear and indignation they would need to find someone guilty of murder. And it was better to finish with images of Shanborn’s bullet-ridden corpse on the autopsy table than with Rittenberger’s perjury-ridden testimony on the witness stand.

  Brunelle glanced around the courtroom as Carlisle approached the end of her direct examination. The jurors seemed politely interested. Contested or not, the cause of someone’s death was always interesting.

  The attorneys were visibly less attentive. It had been a long trial already and keeping up appearances of interest became harder with each day. They also knew cause of death wasn’t the issue in the case. They each had other issues to focus on, so they were all eyes-down, taking half-hearted notes. Except Lannigan. He was enthralled. Brunelle wondered if he’d ever heard a medical examiner testify before.

  “And so,” Carlisle wrapped up, “at the conclusion of your autopsy, were you able to determine a cause of death?”

  “Yes,” answered Dr. Albrecht. He sat erect in his chair, his deep set eyes fixed on his questioner.

  “And what was the cause of death, doctor?”


  “The cause of death,” Albrecht turned to the jurors. “was homicide.”

  Carlisle nodded and grabbed up her binder. “Thank you, doctor. No further questions.”

  Quinn invited Jacobsen to cross examine. He paused before standing, then stepped forward. “The cause of death was homicide, correct?”

  “Correct,” Albrect confirmed.

  “And you can tell that because someone else shot him, right? He didn’t shoot himself three times in the chest, right?”

  “Right,” Albrecht answered. “A single gunshot to the head or chest might be suicide, but the number and trajectory of shots indicate another person caused the injuries which led to his death.”

  “But an autopsy can’t show you who shot him, can it?”

  Albrecht nodded. “Correct.” Again he turned to the jurors. “I can tell you that he was shot, but I can’t tell you by whom.”

  “Thank you, doctor,” Jacobsen said and he returned to his seat.

  Edwards stood up. “You also can’t say why he was shot, can you doctor?”

  Albrecht smiled slightly at the question. “No, of course not.”

  “Thank you. No further questions.”

  When she sat down, Judge Quinn turned to Dunn. “Any questions, counsel.”

  But Dunn demurred. “No questions, Your Honor.”

  That left Lannigan. “Any questions?” Quinn asked.

  “Yes, Your Honor,” he replied.

  Of course. The same question he’d posed to every single witness. The state’s case would end with the assistant medical examiner confirming he also hadn’t seen Lindsey Fuller shoot Derrick Shanborn.

  “Doctor,” Lannigan said from right up at the bar where the other attorneys always stood, “how can you do that job? Isn’t it gross and depressing?”

  Brunelle dropped his pen.

  But Albrecht didn’t miss a beat. “Oh no. I think it’s absolutely fascinating.”

  Lannigan smiled. “Wow. Really? That’s great. I mean, someone has to do it, right?” Then he looked up to Judge Quinn, who looked as shocked as Brunelle felt. “No further questions, Your Honor.”

  Quinn took a moment to watch Lannigan retake his seat. Then she remembered to ask, “Any redirect, Ms. Carlisle?”