A Prosecutor for the Defense (David Brunelle Legal Thriller Series Book 4)

by Stephen Penner

  “Good morning, sir,” Westerly started.

  Overstreet nodded in reply, but didn’t say anything.

  “Could you state your name for the record?” Westerly prompted.

  “Gary Overstreet,” he replied. He was visibly nervous, his voice taut and his breathing quick.

  “How are you employed, Mr. Overstreet?” It was one of those stupid lawyer questions. Everyone knew he was a plastic surgeon and Jeremy’s partner, but he had to say it out loud. It wasn’t enough for the lawyers to say it—or anything—facts had to be stated by witnesses. So every witness examination usually started with questions everybody already knew the answers to. Brunelle had done it hundreds of times himself. It was only then that he noticed how irritating it was to listen to.

  “I’m a physician,” Overstreet answered. He kept his eyes glued to Westerly, lest they stray to the defendant’s table. “A surgeon. A cosmetic and reconstructive surgeon.”

  “A plastic surgeon?” Westerly translated with a wry grin. It was important for the jury to understand. It was also important to make Overstreet seem honest. Giving haughty labels to what he did wouldn’t help.

  Still, Overstreet winced at the label. “That’s an outdated term. I perform reconstructive surgery for medical and cosmetic reasons.”

  Westerly nodded. No need to fight that battle any more. “And are you in private practice?”

  Overstreet thought for a moment, as he considered how to answer the question. “Yes,” he finally said.

  “By yourself?” Westerly prompted.

  Overstreet again hesitated, but then shook his head. “No. I have a partner.”

  It was like pulling teeth. Brunelle usually preferred to take notes and appear mildly disinterested in the other side’s case, but Overstreet’s verbal foot-dragging was intriguing even him.

  “Who’s your partner, Dr. Overstreet?”

  Overstreet finally acknowledged the man in the defendant’s chair. He nodded toward the defense table and frowned. “Jeremy Stephenson.”

  Jeremy was scrawling furiously on his legal pad. He looked up long enough to acknowledge his name, but looked down again. Brunelle didn’t like it. It seemed shady somehow.

  Westerly continued his direct exam, in his even, professional tone. “How long have you been partners with Dr. Stephenson?”

  Overstreet thought for a moment. “Almost five years.”

  “What’s the name of your practice?” Westerly asked. “Is it Stephenson and Overstreet, or something like that?”

  Westerly knew damn well what it was, but again, it was about getting the witness to tell the jury.

  “No,” Overstreet responded. “It’s called Adonis Image Studio.”

  Westerly allowed himself a smile. “Quite the name.”

  Overstreet shrugged. “It’s part of the marketing.”

  Westerly nodded. “Of course. In fact, let’s talk a little bit about the business side of your practice.”

  Smooth transition, Brunelle had to admit to himself.

  “Okay.” Overstreet nodded back, but his expression went a little bit slack with trepidation.

  “How is the business structured?”

  “It’s a professional services corporation,” Overstreet replied.

  Westerly needed to translate again. “Is that like a regular corporation? Did you issue stock? Is there a board of directors?”

  “Oh, no, no,” Overstreet waved off those suggestions. “No, the State of California requires doctors and lawyers to form professional services corporations instead of partnerships. It has to do with malpractice and taxation issues. No, it’s basically a partnership. The IRS treats it like a partnership, and that’s what really matters.”

  There were a couple of chuckles from the jury. Brunelle didn’t mind. It wasn’t like Overstreet was a cop. He was Jeremy’s friend and partner. If the jury liked him, that was fine.

  “Okay,” Westerly replied. “And were there just the two partners, you and Dr. Stephenson?”

  “Yes,” Overstreet confirmed.

  “And how were the profits disbursed?” Westerly asked. “Was it based on how much business you each brought in that year or that quarter or something?”

  Overstreet shook his head. “No. We thought about doing that, but cosmetic surgery is a pretty unpredictable business. It’s not like G.I.—that is, gastro-intestinal. If you do G.I., or urology, or ear-nose-and-throat, you always have customers. Er, patients, I mean. There are always people with stomach and bowel problems, urinary tract infections and enlarged prostates, sinus infections and throat cancer. That stuff happens, and those patients need doctors. Cosmetic surgery is different. Basically, all of our patients are seeking elective surgeries so we have to be far more business savvy than your average physician.”

  Brunelle found the answer a bit unappealing. He wondered if any of the jurors did too. As if feeling it too, Westerly tried to rehabilitate his overly business-minded witness.

  “Well, some reconstructive surgeons also do more necessary surgeries, isn’t that right?” he asked. “Like helping women who’ve been the victims of domestic violence, or fixing cleft palates in the Third World?”

  Overstreet nodded. “Well, yes, some do.”

  “Do you?” Westerly hoped.

  Overstreet shifted in his seat. “Uh, no. No, I don’t.” Then, perhaps to remind people who the real villain was, Overstreet looked at his partner. “But neither did Jeremy.”

  Great, Brunelle mentally rolled his eyes. He considered objecting to any further questions along those lines, but he felt pretty confident Westerly wanted to move along too.

  “So if you and Dr. Stephenson didn’t pay yourselves based on the amount you each took in, how did you pay yourselves?”

  Overstreet nodded, then frowned slightly, showing he knew the import of the question. “It was fifty-fifty. We trusted each other.” The frown deepened and he shrugged. “I trusted him.”

  “Did you later come to learn that your trust might have been misplaced?”

  Overstreet hesitated, but admitted, “Yes.”

  “And how so?” Westerly was polite, but not so much that he wasn’t going to extract what he needed.

  Overstreet glanced at Jeremy, then looked to Westerly. “I recently learned Jeremy had been taking money out of our corporate account without telling me.”

  Several of the jurors nodded. They’d heard that much from Westerly in his opening.

  “Do you know what he was taking the money out for?”

  Brunelle stiffened a bit as an objection flashed through his mind. He could have stood up and said, ‘Objection. Calls for speculation.’ Carlisle would have granted it. Overstreet didn’t really know what Jeremy had taken the money for. But Brunelle let the possible objection fade away. He hated objecting—it telegraphed pain to the jury. And besides, he really didn’t mind if the jury heard the answer.

  “I believe it was to help his wife,” Overstreet responded.

  Brunelle smiled. That was a good answer.

  Westerly shifted his weight, obviously considering how to follow up the ‘husband of the year’ type of response Overstreet had just given. “But you don’t know the exact details, right? Because he hid it from you?”

  Overstreet nodded. “Right. It’s just what I’ve heard since.”

  The logical next question was, ‘Who did you hear that from?’ but Westerly’s problem was that Overstreet had likely heard it from him or his detectives, which made it hearsay. So instead, Westerly circled back to the main reason for calling Overstreet in the first place.

  “So, you never gave Dr. Stephenson permission to drain your joint corporate account, correct?”

  “Correct,” Overstreet confirmed.

  “And if you’d found out about it, what would you have done?”

  Overstreet sat back and sighed. He thought for several seconds. “I’m not sure. Things weren’t going all that well anyway. I was bringing in most of the clients any more. Jeremy was very distract
ed. I thought it was by his wife and her dance studio. I guess it was the money too. But I was already wondering whether I might do better on my own. If I’d found out about this, I think I probably would have left the partnership.”

  “And that might actually have improved your financial situation, correct?” Westerly asked.

  Overstreet agreed. “I think so, yes.”

  “And,” Westerly drove the point home, “it would have greatly damaged Dr. Stephenson’s?”

  Again, rank speculation, but Brunelle resisted the objection. Even if it were sustained, everyone would know the answer. No reason to highlight it by objecting.

  “Yes,” Overstreet answered. “I believe so.”

  Westerly nodded and looked up to the judge. “No further questions, Your Honor.”

  Carlisle turned her gaze to Brunelle. “Any cross examination, counsel?”

  Brunelle stood up. “Yes, Your Honor. Thank you.”

  Brunelle’s usual questioning spot was where Westerly had stood: right next to the jury box, farthest away from the witness. It made sure the witness kept his or her voice up—if Brunelle couldn’t hear, nether could the jurors next to him—and also helped the witness look toward the jury when answering, which was always helpful to the jurors, and thereby to his case.

  But cross was different. The jury still needed to be able to hear, but there was a certain drama in cross examination. Jurors expected a little confrontation, some word trickery, raised voices, or the top prize: a blurted out confession. Brunelle knew that kind of stuff never really happened, but that didn’t mean the jurors weren’t kind of hoping for it. Especially after a careful, and slightly boring, direct examination by the button-down prosecutor.

  So Brunelle took a spot at the bar—the ledge that ran in front of the witness box, the bailiff, and the court reporter. It was where attorneys usually stood to address the court on motions and other matters that didn’t require a jury. It enabled Brunelle to get close to Overstreet without being right on top of him. He was going to challenge Overstreet to give him what he wanted, but he wasn’t going to browbeat a confession out of him or anything.

  “Good morning, Dr. Overstreet,” he began.

  Overstreet offered a tentative smile. “Good morning.”

  “I just have a few questions,” Brunelle said. He wanted Overstreet to relax a bit, but more importantly he wanted the jury to know two things: he wouldn’t waste their time, and they should pay attention. Just a few questions suggested those few questions would be important.

  “You and Dr. Stephenson were partners, correct?”

  Overstreet nodded. “Correct.” He’d already said as much.

  “And isn’t it true that partners each own one hundred percent of the partnership’s assets?”

  Overstreet narrowed his eyes and cocked his head at Brunelle. “I’m not sure I understand what you mean.”

  “I mean,” Brunelle clarified, “that you and Dr. Stephenson didn’t have any agreement that for every dollar that came in, fifty cents would go into your private account and fifty cents would go into his. All assets were held by the partnership, and you each had access to all of the funds.”

  Overstreet pursed his lips. “I guess so. I mean, that’s not really how we treated it. It came in however it came in, and then we drew down from the account in equal shares.”

  Brunelle nodded. “I understand that, but as one of the partners, Dr. Stephenson had access to all of the money in the partnership account, correct?”

  Overstreet shrugged. “I suppose so.”

  “So, when he withdrew money from that account, it wasn’t theft, was it?”

  “Theft?” Overstreet repeated. “Well, I kind of think so. I mean—”

  Brunelle raised his hand. “I don’t mean how it felt to you. I mean, technically, under the partnership agreement and the laws of the State of California, it wasn’t actually theft, was it?”

  Overstreet exhaled audibly and frowned. “No, I guess not.”

  It was an interesting subject. Brunelle knew more than one private attorney who’d been a partnership only to come to work Monday to find the accounts emptied. Perfectly legal, even if perfectly immoral. They said you had to be as careful selecting a business partner as selecting a spouse—maybe more so. Doctors probably didn’t do that to each other as often as lawyers, but it served his purposes for cross. Time to move into a different area, but subtly, so the witness wouldn’t see what was coming.

  “But, setting aside this lapse of judgment in order to help his wife, Jeremy was a pretty good business partner, wasn’t he?”

  Overstreet thought for several seconds. Enough to cast doubt on his appraisal of Jeremy as a partner, but eventually he answered, “Yes. Jeremy was a good partner. Until all this.”

  Good enough, Brunelle decided. He’d take what concessions he could get.

  “And in fact, you considered Dr. Stephenson a friend, correct?”

  Overstreet nodded and looked over at Jeremy who had finally stopped scrawling on the pad. “Yes. And despite everything, I still do.”

  That was a nice touch, Brunelle thought. He pressed on. “And he’s a pretty good doctor too, isn’t he?”

  Overstreet looked back to Brunelle. “One of the best cosmetic surgeons I know. That’s why I was willing to be partners with him.”

  Brunelle nodded. He’d gotten almost everything he wanted. Just one more thing and he could sit down. He ticked off the list on his fingers.

  “Good doctor, good partner, good friend. And you said he risked all of that by taking money to support his wife’s dance studio. He risked his professional license, his professional reputation, and his friendship with you, all so he could do anything he could to prop up his wife’s dream of owning a dance studio, isn’t that right?’

  Overstreet nodded. “That’s right.”

  “Well, I’d say that would make him a pretty good husband, too, wouldn’t it?”

  “Objection!” Westerly stood up at counsel table. “Calls for speculation.”

  Carlisle looked to Brunelle. “Any response to the objection?”

  Brunelle suppressed a smile. It didn’t matter what Overstreet answered. He’d made his point, and Westerly’s objection had made it into an exclamation point. Still, it didn’t hurt to try to underline it. “It’s opinion, Your Honor, not speculation. The witness should be allowed to answer, if he can.”

  Carlisle considered for a moment. “I’m going to sustain the objection,” she ruled. “Do you have any further questions?”

  Brunelle shook his head. “No, Your Honor. Thank you.”

  He sat down, and Overstreet was excused. Then Brunelle realized he should actually be glad for the objection. Overstreet could have said something damaging like, ‘Yeah, until he killed her.’ He’d broken the old lawyer rule, ‘Never ask a question you don’t already know the answer to.’ Luckily, Overstreet was a doctor, not a professional witness. Brunelle would need to be more careful with the next witness.

  Westerly stood up. “The People call Detective Frank Ayala.”

  Chapter 35

  Ayala was dressed similarly to Overstreet, better in fact: khakis, suit coat, plus a tie. But somehow, he looked less put-together than the good doctor. The difference between someone who cared about looks versus someone who cared about results. Detectives were about results. Even if those results turned out to be wrong.

  “Please tell the jury your name and occupation,” Westerly began the direct exam from his same spot next to the jury box.

  “Frank Ayala,” the detective replied. “I’m a detective sergeant with the San Francisco Police Department.”

  “How long have you been with SFPD?”

  “It’ll be twenty years next spring,” Ayala replied. He knew to deliver his answer to the jurors directly, rather than Westerly, and turned slightly to impress them with his decades of experience.

  “Are you assigned to any particular department?”

  Ayala nodded and again turned to the
jury. “I’m in the major crimes unit. I’ve been a detective for twelve years, the last five in major crimes.”

  “Is there a homicide unit?” Westerly was barely able to even appear interested. This was all background stuff that he of course already knew. But the jury needed to hear it, so he’d trudge through the introductions. Brunelle listened keenly to see if it varied any from when they’d first met. It didn’t. Good, he thought.

  “No,” Ayala answered. “Homicides are wrapped up into major crimes. I investigate all types of major crimes, including murders.”

  The perfect segue for Westerly. “And did you investigate a murder that occurred at the Inner Beauty dance studio?”

  “Inner Beauty Dance and Dreams,” Ayala corrected. “Yes, I was the lead detective on that investigation.”

  Brunelle considered objecting to Westerly’s use of the word ‘murder.’ Whether it was murder or not was the jury’s call. Murder was an unlawful killing. But the alternative to objecting was explaining, which was often better. He could make his point on cross examination.

  “Please tell the jury,” Westerly encouraged, “how you came to be involved in that investigation.”

  Ayala nodded again and looked to the jurors. “The original call was just for a fire in the SOMA district. A couple of patrol officers went to assist with crowd control, but it was a fire department scene. At least until the fire was under control and they could go inside. That’s when they found the body.”

  “And that’s when you were called in?” Westerly asked.

  “Yes,” Ayala confirmed.

  “Because it was a murder?” Westerly pressed, even though he knew the answer.

  “Uh, no,” Ayala admitted. “People die in fires all the time. Well, not all the time, but it happens. Usually though, it’s an accident, not murder. Still, the patrol guys find a body, they’re gonna call a detective.”

  “When did it become apparent this was more than just a person who died accidentally in a fire?”