Accomplice Liability
Page 25
Quinn’s eyes widened. She looked over at Brunelle and Carlisle, but didn’t say anything. She looked back to Dunn. “Go on.”
“So now, Your Honor, I am put in the position of having to decide whether to put my client on the stand knowing that even if she tells the truth and says the exact same thing she said in that interview, the state will cross-examine her using Detective Jackson’s report and accuse her of lying on the stand. Presumed innocent or not, we all know the jury is going to believe a seasoned detective over someone accused of murder. As a result, I can’t risk putting her on the stand, although under any other circumstances, I would. And so rather than simply answer, ‘We won’t be putting on any witnesses,’ I want the jury to understand why my client won’t be testifying.”
Judge Quinn thought for a moment, then sighed. She turned to the prosecution table. “Any response, Mr. Brunelle?”
“She’s my witness,” Carlisle whispered to him. “Let me respond.”
But Brunelle shook his head. Keller was her witness, but what happened between Robyn and Detective Jackson was his problem. His fault.
“Your Honor,” he began, trying to sound as reasonable and understanding as he could. “I appreciate Ms. Dunn’s frustration. And I appreciate why she would want to explain to the jury why she’s deciding not to put her client on the stand. But Your Honor, none of what Ms. Dunn is saying is evidence. Evidence comes from the witnesses, not the lawyers. In every trial, the jurors are instructed,” he recited the pattern jury instruction from memory, “‘the attorneys’ remarks, statements, and arguments are intended to help you understand the evidence, but they are not evidence. You are to disregard any remark, statement or argument that is not supported by the evidence.’ To allow Ms. Dunn to tell the jury her reasons for not calling Ms. Keller to the stand are certain facts which were never admitted into evidence would create a situation where the jury might base their decision on Ms. Dunn’s assertions even though there is no evidence in the record to support them.
“If she wants the jury to know her theory about what happened between Detective Jackson and her client, then she puts her client on the stand, or maybe even recalls Detective Jackson. But she doesn’t get to just tell the jury some story and then sit down without any of her assertions being subject to cross-examination.”
Brunelle avoided looking over at Robyn. Partly because it was unprofessional to mean-mug your opponent. Mostly because he didn’t want to see what expression she was throwing at him.
“She’s made her record for the appeal,” Brunelle wrapped up. “Now, let’s bring the jury back in and she can say yes or no to the question of whether she’s putting on a case. If it’s no, then Your Honor can proceed to Mr. Lannigan and we can keep this trial moving. Thank you.”
Brunelle gave in and stole a glimpse of Robyn as he sat down. He expected her to look angry, or frustrated, or sad. But she just looked like any other lawyer. Like a stranger to him. That hurt even more.
“Any response, Ms. Dunn,” Judge Quinn asked, “before I make my ruling?”
“Just that Mr. Brunelle makes my point for me,” Dunn replied. “There’s a story the jury needs to hear, but thanks to the malfeasance of the government, I can’t put my client on the stand to tell it. And I’m certainly not recalling Detective Jackson. If I put him on the stand, I’d be suborning perjury.”
Cheap shot, Brunelle thought. But he didn’t object. There was no jury and Quinn was going to do what she was going to do. And all the sympathy in the world wouldn’t change the simple fact that a lawyer isn’t allowed to testify.
“I’m sorry, Ms. Dunn,” Judge Quinn said, “but Mr. Brunelle is right. My question was whether you intended to put on a case, not why or why not. You’ve made your record. I’m going to bring the jury back in now and then I’ll ask you again whether you intend to call any witnesses. I want a yes or no answer. Understood?”
Dunn set her jaw, but acquiesced. “Yes, Your Honor.”
Quinn nodded to the bailiff and a few moments later the jury was escorted back into the jury box. The judge apologized for the delay, then looked down at Dunn. “Ms. Dunn, do you wish to present any evidence?”
Dunn presented as pleasant a face as the circumstances allowed. “No, Your Honor. Thank you.”
Quinn nodded and turned to the last defense attorney. They were almost there, Brunelle thought. No way Lannigan has anything to put on.
“Mr. Lannigan,” Quinn asked, almost perfunctorily, “do you wish to present any evidence?”
Lannigan stood up and smiled. “Yes, Your Honor.”
All heads turned to the lawyer at the end of the row.
Lannigan ignored the gazes and kept his smile. “I call Lindsey Fuller to the stand.”
Fuller stood up and moved forward to be sworn in by the judge.
“I forget,” Carlisle whispered, “who did we decide was going to cross Fuller?”
“We didn’t decide,” Brunelle whispered back. “And I’m doing it.”
When Fuller was all sworn in and seated on the witness stand, Lannigan stepped up to the bar from which the other attorneys had questioned the witnesses. It looked like he might be ready to actually at least try to keep up with everyone else.
“Ms. Fuller,” he started, “did you shoot Derrick Shanborn?”
Fuller shook her head vigorously. “No, I did not.”
Lannigan smiled again then looked up to Judge Quinn. “No further questions, Your Honor.”
Brunelle and Carlisle looked at each other as Lannigan returned to his seat.
“Any cross examination?” Quinn asked, as if it were normal to call a murder defendant and only ask one question. Well, Brunelle could play that game too.
“Yes, Your Honor,” he said as he stood up. He didn’t bother coming out from behind his table.
He looked Lindsey Fuller square in the eye across the courtroom. “Who did?”
But Fuller gave the safest answer possible. “I don’t know.”
Brunelle considered for a moment. He could ask her where she was, what she’d been doing, what, if anything, she’d seen. But he knew she would just deny everything. She wasn’t accused of shooting Shanborn herself; she was accused of being an accomplice to whoever did shoot him. Lannigan had been clever with his one-question-wonder routine, but he hadn’t taken the time to have Fuller deny what she really needed to deny: that she was there, that she knew what was going to happen, and that she helped. If Lannigan hadn’t given her the chance to deny that role, why should Brunelle do it for him?
“No further questions,” he said and sat down.
“That’s it?” Carlisle demanded in a whisper.
“That’s enough,” Brunelle replied. He hoped he was right.
Lannigan didn’t have any redirect, of course, and a minute later Fuller was back in her seat next to her lawyer. They were almost done with the defense cases. Edwards had said she might put Wilkins on the stand, depending on what evidence the other defense attorneys put on. Fuller denying she did it, or knew who did, didn’t seem like the type of thing that required a response from Wilkins. Brunelle looked at the clock. If they worked through lunch, Carlisle would have almost three hours to get ready for her closing argument.
“Ms. Edwards,” the judge returned her attention to the last remaining defendant to answer the question, “do you now wish to put on any evidence?”
Edwards stood up. She wasn’t the drama type. Not like Jacobsen, or Welles. She was hyper-competent and no-nonsense. But that didn’t mean she wasn’t a trial lawyer. And trial lawyers can’t help but enjoy the showmanship of the job at least sometimes. Everyone thought they had finally, after weeks of testimony, reached the end of the trial. So there was the slightest smile tucked into the corner of Edwards’s mouth as she announced, “Yes, Your Honor. We call Nathan Wilkins to the stand.”
Chapter 43
Wilkins made his way to the witness stand to be sworn in by the judge. When he was seated and ready, Edwards began. Pretty much
where Lannigan left off.
“Mr. Wilkins, did you shoot Derrick Shanborn?”
Wilkins kept his eyes glued on Edwards. Professional witnesses turned and delivered their answers to the jury. Brunelle used to think it seemed artificial or ingratiating, but he’d heard enough jurors comment, post-verdict, how much they appreciated that kind of response that he didn’t question it any more. Hopefully, all the reasons they liked it when the cops talked directly to them would lead them to not like it when Wilkins didn’t.
He shook his head. “No, ma’am.”
Having asked Lannigan’s question, Edwards next asked Brunelle’s. “Do you know who did?”
But the response was different. “Yes, ma’am.”
Brunelle decided it didn’t matter which way Wilkins was facing; everyone was hanging on his next response.
“Who shot Derrick Shanborn?” Edwards asked.
Wilkins looked past his lawyer and pointed. “Elmer Hernandez.”
Brunelle tried not to look excited. He couldn’t force Wilkins on the stand, but he could sure as hell take his testimony and use it to hang Hernandez.
“Why did Elmer Hernandez shoot Derrick Shanborn?” Edwards continued.
“Because Derrick was working as a snitch for Detective Jackson,” Wilkins answered. “And Mr. Hernandez found out.”
“How did he find out?”
Wilkins didn’t hesitate. “I told him.”
Brunelle’s eyebrows lowered slightly. Wilkins had just told the jury he was an accomplice. Brunelle didn’t know where this was going. He didn’t like not knowing where a witness’s testimony was going.
Edwards paused. For effect, Brunelle knew. She wasn’t taking the time to form her next question. She had all her questions memorized. The pause was to give the jury a moment to digest the answer before she shifted to a new topic. Brunelle wondered—and feared—what that topic might be.
“Mr. Wilkins,” Edwards continued, “do you recall giving a statement to the prosecution prior to the start of this trial?”
Murder on the Orient Express, Brunelle thought. He’d need to actually read that eventually.
Wilkins nodded. “Yes, ma’am.”
“Did you tell the truth in that statement?”
Wilkins shook his head. “No, ma’am.”
Brunelle’s brows dropped deeper. Where was this going?
“Why not?” Edwards asked.
“Because,” Wilkins finally turned to the jurors—which just added that much more emphasis to his answer, “Detective Jackson was there.”
What did he just say? Brunelle thought to himself.
Carlisle whispered it out loud. “What did he just say?”
Oh, shit, Brunelle thought. Here it comes. He still didn’t know what exactly, but he knew it was going to be bad.
“Why did it matter that Detective Jackson was there?” Edwards asked the question everyone in the courtroom wanted answered.
“Because,” again Wilkins delivered his answer directly to the jurors, “Detective Jackson was the one who told me Derrick was a snitch.”
That had the expected effect. Everyone turned to whoever was next to them as if to say, ‘Did you hear that?!’
Edwards paused again, longer this time, to really let it sink in. Then she posed the next question everyone wanted answered “Why would he do that?”
“Because he was never quite able to get Mr. Hernandez for the drug dealing,” Wilkins explained. “He’d been going after us for years, but we were too good. You can cover up a drug operation if you’re smart and you’re disciplined. And if the people who know about it are too loyal, or too scared, to snitch on you. But you can’t cover up a murder like that. Dead bodies don’t just go away. And when someone goes missing, people eventually start asking questions. Even if the person who’s missing is a loser drug addict like Derrick Shanborn.”
Edwards nodded. “So why did he tell you?”
“Because he knew I’d tell Mr. Hernandez. I had to. If he found out I knew about a snitch and didn’t tell him, I’d be the one who ended up in a ditch. Detective Jackson knew exactly what would happen. He knew I worked for Mr. Hernandez. He couldn’t prove anything, but he knew it. He knew I’d tell Mr. Hernandez. And he knew Mr. Hernandez would kill him.”
Wilkins had answered Edwards’ question. But he kept talking. Brunelle let him.
“That’s why I made up some crazy story when I talked to the cops. Jackson was right there. I didn’t know what he might do. I wasn’t looking to be the next inmate who ends up dead in his jail cell, no questions asked. And that’s why he made up that stuff about Sammy too. I read the report he wrote. There’s no way Sammy would say she saw Burner shoot Derrick, ‘cause she wasn’t there. But he wanted her to shut up too.”
Brunelle looked over to Robyn. She actually looked back at him. There was a touch of ‘told ya so’ in her gaze, but it was mostly ‘holy shit.’
“So yeah, Mr. Hernandez killed Derrick,” Wilkins concluded, “but it was Detective Jackson who set it all in motion.”
Edwards knew to stop on that. “No further questions.”
Carlisle started to stand for cross-examination, but Brunelle pulled her back into her chair and stood up himself.
“No questions,” he said before Quinn could even ask. “And we move to adjourn for the day.”
Quinn nodded. “Of course, Mr. Brunelle.” She banged her gavel. “Court is adjourned.”
Brunelle was halfway out the door before the echo died away.
Chapter 44
“Where is he?!”
Brunelle stormed into Chen’s office. Chen looked up from his work, but didn’t immediately reply. Strong, silent types don’t respond to being yelled at unexpectedly.
“Jackson,” Brunelle clarified. “He’s not in his office. Where is he?”
Chen took another moment. “I don’t know,” he answered with deliberate calmness.
“I need to find him,” Brunelle insisted. “Help me find him.”
Chen thought another moment, then stood up. “Okay. Let’s find him.”
They started by backtracking Brunelle’s steps to Jackson’s office. He still wasn’t there, of course.
“Do you want to tell me what this is about?” Chen finally asked.
“He blew Shanborn’s cover,” Brunelle replied. “Jackson. Jackson told Wilkins that Shanborn was a snitch so Hernandez would kill him.”
Chen stood there for several seconds, staring at Brunelle, assessing him. Then he turned around.
“Martinez!” he called out to one of the patrol officers seated in a nearby cubicle. “Have you seen Jackson anywhere?”
The young, heavy set officer spun in his chair. “Sorry, Detective. I haven’t seen him today.”
Brunelle clenched his fists, but then a uniformed officer yelled to them from the end of the hall. “I just saw him heading toward the elevator,” she said. “I think he said he was going to the gym.”
Brunelle clapped Chen on the arm. “Let’s go.”
After a quick elevator ride and a long walk through several subterranean corridors, they arrived at the door to the fitness center. Chen flashed his badge over the scanner and the door unlocked with a beep and a clunk. Jackson was inside, dressed in workout clothes and sitting on a weight bench, facing the door. He was tying his shoes and didn’t look up when the door opened.
“Jackson!” Brunelle yelled, rather unnecessarily in the small room.
The detective raised his head. “Oh, hey, Dave. Hey, Larry,” he said pleasantly enough. “What’s going on?”
“That’s what I want to know,” Brunelle responded. He stepped over to Jackson. He tried not to feel ridiculous wearing a suit and tie in a workout room. “Wilkins just testified that you’re the one who told him Derrick Shanborn was a snitch. That you couldn’t catch Hernandez dealing drugs, so you set him up with a murder he couldn’t refuse.”
Jackson didn’t immediately reply. But he stood up. “What else did he say?”
Jackson tightened his jaw and nodded slightly. “And you believed him?”
“It doesn’t matter what I believe,” Brunelle snapped. He was trying to control his temper. “But the jury is going to believe him unless I put you on the stand in rebuttal to say it isn’t true.”
Again Jackson took a moment to reply. “Look, Hernandez was a menace. Kids were dying up there, O.D.’ing every day with needles still stuck in their arms. Now he’s off the street and looking at spending the rest of his life in prison. I don’t care how we got there, I’m just glad we did. I’d call that a win.”
It was a non-answer. Trial lawyers don’t accept non-answers. “Did you tell Wilkins that Shanborn was working for you?”
Jackson grinned and looked toward the ceiling. “You know, Mr. D.A., I have so many conversations with so many of the lowlifes you don’t have to deal with until I put my ass on the line to catch them, it’s hard to remember everything.”
“That’s why you write reports,” Brunelle countered.
“That’s why I don’t write reports,” Jackson answered. “If I put the name of one of my informants in a report, they’re as good as dead. I said that on the stand.”
“Yeah,” Brunelle said, “but you didn’t say the same thing happens if you blow their cover yourself.”
Jackson clenched his fists, flexing his thick arms. “I do my job. I don’t need bean-counters and pencil-pushers like you going over every line in my reports looking for a mistake. If there’s no report, then there are no witness statements. If there are no witnesses, it’s like it never happened.”
“Or if the only witnesses are a charged murder defendant and her lawyer,” Brunelle realized, “then you can write whatever you want in the report.”