Accomplice Liability

by Stephen Penner

  “No, Your Honor,” Carlisle responded. “The state rests.”

  Brunelle always felt a huge sense of relief when the state rested its case. Like wet snow falling off a tree branch. Quinn started to instruct the jurors about coming back tomorrow to start the defense case, and keeping an open mind because they haven’t heard all the evidence yet, and to avoid discussing the case even among each other until all the evidence had been submitted, but Brunelle wasn’t really listening. It wasn’t directed at him and he’d heard it all before more times than he could count.

  As the courtroom packed itself up for the day, Brunelle was thinking about going home, pouring himself a glass of whiskey, and lying awake all night worrying they’d forgotten to elicit that one piece of evidence the jury would need to hold the killers responsible. That is, his usual post ‘the state rests’ routine.

  But Carlisle put a hand on his shoulder. “Good job, partner,” she congratulated him. “Shall we grab a drink?”

  Chapter 41

  Carlisle took them to a new bar that had just opened up on Broadway. On Capitol Hill. Where Robyn lived. Again.

  Apparently, Carlisle lived there too. Small world.

  “My first apartment was just around the corner from here,” she was saying as they sat at the bar waiting for their drinks. The after-work rush hadn’t quite started, so they’d had their choice of seats at the bar. Soon enough, the place would be full with Seattleites washing away their workdays, but just then it was at that pleasant equilibrium between too empty and too full. “Of course, they’re condos now. They completely renovated them. Wood floors, state of the art appliances, rooftop garden. No way I could afford it now on my government salary.”

  Brunelle nodded politely and offered an affirmative grunt. He was distracted by the thought that Robyn could walk in any moment. And even more distracted by his distraction. Why should it matter? He wasn’t dating Robyn any more. And he wasn’t dating Carlisle. Not yet anyway.

  Their drinks arrived. Brunelle got a pour of whiskey. Carlisle got a classic daiquiri. She raised her glass. “To the successful completion of our case-in-chief. May the defense cases suck ass.”

  Brunelle almost spit out the whiskey he’d started sipping. “Wow. Glad you didn’t talk like that during the trial.”

  Carlisle laughed. “Just wait. I’m giving closing, remember?”

  Brunelle smiled. “I can hardly wait.” He finished that sip. “But don’t get ahead of yourself. We’re not quite there yet. We should figure out who’s going to cross which defendants if they choose to testify.”

  “Do you think any of them will?” Carlisle asked. “I kinda like civil cases where you can call the defendant and make him testify. How do you prepare to cross examine someone if you don’t know until the last second whether they’re even going to testify? They should have to tell us before the trial starts or something.”

  Brunelle shrugged. “That might undercut that whole presumed innocent, right to remain silent, thing.”

  “Why? It’s just giving us sufficient notice to prepare,” Carlisle argued.

  “Well, yeah, you have a point,” Brunelle agreed. “But they’d just say, ‘I haven’t decided whether my client will testify, Your Honor. We’re going to wait until we see what evidence the state puts forward.’ So, basically, ‘We reserve.’”

  “Like Lannigan did with opening,” Carlisle nodded, then her eyes flew wide. “But oh my God! How hilarious is his whole ‘Did you see my client shoot Derrick Shanborn?’ to every single witness thing? That was crazy, right?”

  Brunelle couldn’t disagree. “I’ve never seen anything like that. Pretty brave.”

  “Or pretty stupid,” Carlisle countered over her glass. “The jury’s going to want to hear more than that. She could have shot him without any of those people seeing it. Lannigan better hope Hernandez doesn’t take the stand and say she was the shooter. What’s he going to ask then, huh?”

  She punctuated her question with a light laugh. Brunelle smiled at the sound.

  “Do you think Hernandez will testify?” he asked.

  Carlisle thought for a moment, her mouth twisted up in consideration. “No, probably not. I mean, court and strategy and lawyer stuff aside, he was the shooter. It’s hard to take the stand and lie.”

  “You think he would murder somebody but he wouldn’t lie on the stand?”

  Carlisle shook her head. “No, of course he would. He’s a piece of shit. No, I mean, lying is hard because you have to get all the details right. It’s too easy to get tripped up. You didn’t shoot him? Okay, then who did? Whose gun was it? Where, exactly, were you standing? All that stuff. He won’t have thought of all of that, so he’ll get shredded on cross. He knows that. And so does Jacobsen. No way Jacobsen lets that happen. He’ll just get up in closing and say we didn’t prove it. That’s better than having his client prove it for us.”

  “Good analysis,” Brunelle complimented her.

  Carlisle demurred. “Like I said, I used to try civil cases. Why do you think we always called the other side to the stand? So we could expose them for the liars they were. Jacobsen does civil too. You can bet he’s sat at counsel table, watching helplessly as his client torpedoed whatever bullshit claim he was bringing.”

  Brunelle raised his glass. “And to Matt Duncan for being wise enough to put you on this case with me.”

  Carlisle smiled at Brunelle, but didn’t reply immediately. She took another sip of her drink. “Okay, so Hernandez probably doesn’t testify. What about Wilkins?”

  Brunelle narrowed his eyes as he considered. He didn’t know Wilkins, of course. Not beyond what he’d learned through the case. But he knew Edwards. “I bet he testifies. Jessica knows juries want to hear defendants say they didn’t do it. We tell them a thousand times that they can’t hold it against a defendant if he doesn’t testify, but we do that because we all know they’re going to. Jess doesn’t do civil. She does criminal. And she can put Wilkins on the stand to say he didn’t shoot Shanborn without it being a lie. Probably,” he added with his own light laugh.

  “But what about that crazy ‘Murder on the Orient Express’ story he gave us?” Carlisle pointed out. “If he testifies differently, then the statement comes in as impeachment. And if he tells the same story—”

  “—then no one believes him,” Brunelle finished. “Yeah, good point. I bet Jess regrets letting him talk to us.”

  “Not half as much as Robyn Dunn does,” Carlisle laughed. “God, did you see the way she was looking at you during the trial? It was like she wanted to murder you herself.”

  Brunelle couldn’t stop the half-smile that crept onto his face. “She was looking at me during the trial?” he asked. “Huh, I didn’t notice.”

  Carlisle let out a loud laugh. “Now who’s lying? You’re obviously still very hung up on her.”

  Brunelle raised an indignant eyebrow. “I most certainly am not,” he protested. “And I don’t see what business it is of yours,” he probed.

  Carlisle shook her head and laughed. “It’s my business if my trial partner can’t keep his head in the game because he’s thinking of putting his head someplace else.”

  Brunelle’s other eyebrow shot up. “Wow. Just… wow.”

  Another laugh from Carlisle. “I’m sorry, did I upset your delicate sensibilities?” Brunelle noticed her drink was already gone. “Fine, let’s stick to business. Do you think Samantha Keller will testify?”

  Brunelle frowned. “I’m not sure. I mean, Robyn knows the same thing Jessica does. But she was really upset about how the interview with Jackson went. So I don’t know…”

  Carlisle motioned at the bartender for another daiquiri then turned to Brunelle. “She’s cute, isn’t she?”

  “The bartender?” Brunelle asked. He looked over. He’d seen cuter. “Uh, sure. I guess.” It was a little awkward, so he joked, “I mean, she’s no Amanda Ashford.”

  Carlisle laughed. “Or Robyn Dunn.”

  Brunelle felt like
he’d been punched in the chest. The wind was knocked out of him. Carlisle could see it.

  “If Keller does testify,” she said, “let me do the cross exam.”

  Brunelle cocked his head. “Why?”

  “Because you’ll go easy on her,” Carlisle accused. “Because you feel bad about what happened with Jackson.”

  “No, I don’t,” Brunelle insisted.

  “Again, look who’s lying,” Carlisle shot back. “I mean, at least be honest about it. Say, ‘I do feel bad about it, but I won’t let that affect my professional responsibilities.’”

  Brunelle smiled. “Fine. I do feel bad about it, but I won’t let it affect—”

  “Yes, you will,” Carlisle interrupted. “You can’t help it. You’re a nice guy.”

  Brunelle was about to protest with an ‘I am not,’ but stopped himself. He didn’t know what to say.

  “Trust me on this one, Dave,” Carlisle put a hand on his. “If Keller testifies, I’ll do the cross. The jury needs to hear what she told Jackson, and we both know we can’t trust you to go after her as hard as you should. You might. But you might not. This way, you don’t have the responsibility.”

  Brunelle was again about to protest but again stopped himself. He looked down at Carlisle’s hand on his. Then he nodded. “Okay. I’m not admitting you’re right. But you can do the cross of Keller, if she testifies.”

  “Good.” Carlisle gave his hand a squeeze then returned hers to her drink glass. “And you can do Fuller. ‘Did you see Mr. Lannigan shoot Derrick Shanborn?’” she mimicked in a goofy voice.

  They both laughed.

  “That,” Brunelle pointed at her, drink in hand, “would be hilarious.”

  He finished his drink and only hesitated a moment before ordering another.

  After a moment, Carlisle smiled at him. “She’s lucky to have a nice guy like you hung up on her.”

  Brunelle was taken off guard. Yet again, he wasn’t sure what to say. More feelings than he could name—or wanted to think about—flashed through his gut. Then he shrugged and answered honestly. “Thanks.”

  They continued to discuss the case and what they thought the various defense attorneys might do in their own cases-in-chief. But there was a big difference between two drinks and three, and when the second glasses were empty, Carlisle slipped the bartender her credit card and the evening was over.

  “Need a ride home?” she asked. She’d driven them from downtown.

  But Brunelle lived within walking distance. And he kind of wanted time to think. But driving home meant waiting at the bar with Gwen while the buzz wore off, then arriving at his apartment, probably still buzzed and still slightly reeling from the punch to the chest. He might well do something stupid like invite her up. He did stupid things like that. But at least he knew it. “No, thanks. I think I’ll just walk. It’s a nice enough night.”

  Carlisle nodded and stood up from the bar. “Understood,” she said. “Maybe next time.”

  Brunelle smiled at that. He liked the idea of a next time with Gwen Carlisle.

  Yeah, it was good he was walking home alone.

  Chapter 42

  When court next convened, it was time for the defense to put on their cases. Maybe. Most defendants didn’t put on cases. Character witnesses were generally inadmissible unless a character trait was specifically at issue. Most people don’t have friends who can testify as to whether they’re ‘murdery.’ Alibi witnesses were rare in real life too. It was one thing for a friend to maybe lie to a cop and say the defendant crashed on his couch the night in question. It was another thing to come into court and testify to it under oath—especially when it was a murder case. That left just the defendants themselves to testify. And Brunelle and Carlisle had already laid odds on that.

  “Mr. Jacobsen,” Judge Quinn began. “Do you wish to put on a case?”

  The judge had to ask it that way. First of all, she had to ask in front of the jury so they wouldn’t wonder why one or more of the defendants hadn’t put on any evidence. Secondly, she had to make it sound like it was truly an option, because each defendant was presumed innocent and any suggestion that they should put on a case would be a claim on appeal that their right to be presumed innocent was undermined by the judge asking, ‘So after all of that evidence the state just put on, you’re not going to just sit there and not deny it, are you?’

  Unfortunately, the defense attorney never just said, ‘No.’ Instead, the jury also got to hear the explanation as to why the defendant wasn’t putting on a case. And it was never the truth. It was never, ‘No, Your Honor. My client is guilty of the crime charged and so I’ve advised him not to take the stand and admit as much.’ The kind of crap Jacobsen was about to pull.

  “Thank you, Your Honor.” Jacobsen stood to address the court. “As the court knows, Mr. Hernandez is presumed innocent, and that presumption continues throughout the trial until and unless the state overcomes the presumption beyond any and all reasonable doubt. Now that the state has presented its evidence—that is, what little evidence it has—it is clear that they have failed to overcome the presumption of innocence, and certainly have failed to do so beyond a reasonable doubt. Accordingly, Mr. Hernandez will not be presenting any evidence in this trial, as is his absolute constitutional right.”

  Brunelle rolled his eyes. Judge Quinn kept a poker face, although Brunelle suspected her eyes were also rolling on the inside. The judge turned next to Edwards.

  “Ms. Edwards,” Judge Quinn asked, “Do you wish to put on any evidence?”

  Brunelle realized if this ended with four ‘no’s’, they’d be giving closing arguments by the afternoon. He hoped Carlisle was ready.

  Edwards stood up. “We’d like to reserve that decision for the time being, Your Honor.”

  Brunelle looked up. That was a new one. Quinn looked perplexed as well.

  “Can she do that?” Carlisle whispered to Brunelle.

  “I, I’m not sure,” he admitted.

  Judge Quinn clearly wasn’t sure either. “Reserve?” she inquired. Everyone knew she needed to be careful in front of the jury. They probably should have discussed this possibility before the jury was brought out, but again, a defendant doesn’t have to tip his hand before he, or she, plays it.

  “Yes, Your Honor,” Edwards replied calmly. “The court established an order of defendants for presenting argument and conducting cross-examination, but I don’t believe the court can require any one defendant to decide whether to put on evidence before any other defendant.” Edwards turned to Jacobsen. “I respect Mr. Jacobsen’s independent decision not to put on a case. However, my decision may be impacted by evidence that might be put on by the other defendants. Therefore, I’m asking to reserve. I do not wish to put on any evidence at this moment, but that may change depending on what evidence, if any, is put on by Ms. Dunn or Mr. Lannigan.”

  “Kinda makes sense,” Brunelle admitted to Carlisle in another whisper. She nodded in reply.

  Quinn nodded as well. “Thank you, Ms. Edwards. You may reserve.” She continued down the line. “Ms. Dunn, do you wish to put on any evidence… at this time?”

  Edwards sat down and Dunn stood up. Brunelle’s heart began racing despite himself. He wouldn’t relish watching Carlisle destroy Robyn’s client on the stand. He’d allow it, but he wouldn’t enjoy it.

  Don’t put her on the stand, don’t put her on the stand, he repeated in his mind.

  “Your Honor,” Dunn began. “Thank you. As you know, the decision whether to put an accused client on the stand is the most difficult decision a criminal defense attorney has to make. Mr. Jacobsen is correct that each and every defendant is presumed innocent. He’s also correct that the state has to prove every element of every crime beyond a reasonable doubt. Every defendant must decide for herself or himself whether to take the stand to tell their side of the story, knowing that, if they do so, the prosecutor will have the opportunity to cross-examine them. And this cross-examination will be done by an
advocate for the state, while the defendant sits alone on the witness stand, with no opportunity to discuss her answers with her attorney.

  “An unsophisticated defendant, one like Ms. Keller who, the evidence has shown, has never been investigated for anything before, could very well come across as dishonest or dissembling. It is a difficult decision in any case. But in this case, the situation has become impossible due to the misdeeds of the state prior to the commencement of this trial…”

  Brunelle jumped to his feet. “I’m going to object at this point, Your Honor. The question was whether Ms. Dunn was going to put on evidence. It was not an invitation to give a Shakespearean soliloquy on the moral failings of her adversary.”

  Quinn raised an eyebrow and regarded both Brunelle and Dunn. She’d heard the rumors like everyone else in the courthouse. But she wasn’t about to let the attorneys’ personal lives ruin a murder trial.

  “Mr. Brunelle,” she started. “You can sit down.”

  Then, “Ms. Dunn, do you wish to make a record as to the reasons why you may or may not be putting on a case? That’s a yes-or-no question.”

  Dunn nodded respectfully. “Yes, Your Honor.”

  Judge Quinn turned to the jury. “Ladies and gentlemen, I’m going to send you to the jury room while I discuss this matter with the attorneys. I will be calling you all back into the courtroom within just a few minutes.”

  The jurors displayed a collection of nods and shrugs as they stood up and followed the bailiff back into the jury room. When the bailiff stepped out again and closed the door behind him, Quinn turned to Dunn.

  “Make your record, Ms. Dunn. I’ll let you know what, if any, of it you can say in front of the jury.”

  “Thank you, Your Honor,” Dunn answered. “My client gave a proffer to the state prior to the trial. She didn’t want to, and refused repeated invitations to do so. Eventually, Mr. Brunelle came to me with an offer to have just Detective Jackson and me in the room, to allay Ms. Keller’s concerns about speaking about the case. I reluctantly agreed, a decision which I now regret, because Detective Jackson subsequently lied in his police report about what my client said in that interview.”