DB01 - Presumption of Innocence

by Stephen Penner

  “I think it went pretty well today,” she said. “I don’t think Welles objected even once.”

  Brunelle laughed sardonically. “Why should he? He’s killing us.”

  Yamata cocked her head at her partner. “You mean that little, ‘You don’t know my client did it’ bit? Please. The jury gets what we’re doing.”

  “Maybe,” Brunelle shrugged. “But the judge gets what he’s doing. She’ll dump this thing at halftime if we don’t put on some evidence Karpati is the killer.”

  Yamata’s incredulous frown deepened. “There’s no way she dumps it. We’re totally proving that girl was murdered in the most horrific way.”

  Brunelle shook his head. “Of course she was, but we’ve got to prove Karpati’s the one who did it. There are judges who would be afraid to dump a murder case, who’d leave it to the jury to acquit. But not Quinn. She’ll fuck us. If we put on a hundred witnesses and every one of them ends with, ‘But I can’t say Karpati did it’ we’re fucked. Case dismissed.”

  Yamata’s confident grin was gone. She crossed her arms. “So what do we do?”

  Brunelle drummed his fingers on the table. “We hope Chen does better for us tomorrow than everyone did for us today.”

  ***

  “Lawrence Chen,” the detective identified himself for the record after being sworn in and sitting on the witness stand.

  Brunelle was standing across the courtroom, behind the last juror. It was an old trial attorney trick. It forced the witness to speak up and look at the jury. “How are you employed, sir?”

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

  Then, after a brief verbal resume, years of experience and commendations received, Brunelle got to what really mattered. “Are you familiar with the investigation into the murder of Emily Montgomery?”

  Chen set his jaw. It was probably meant to seem serious. Brunelle worried it seemed forced. “Yes,” Chen answered solemnly.

  “And was part of your job to identify the killer or killers?”

  Chen thought for a moment. “Actually, I would say that was my only job. To identify the guilty party and arrest him.”

  “And did you arrest anyone for the murder of Emily Montgomery?”

  “Objection!” Welles stood slowly, a bemused smile on his face. “Objection, Your Honor. This is absolutely outrageous. I’ll give Mr. Brunelle credit for his creativity in trying to mislead the jury but—”

  “Well, now I’m going to object,” Brunelle interjected. “It’s inappropriate for counsel to suggest I’m trying to mislead the jury.”

  “If the lie fits,” Welles started, but the judge interrupted.

  “Children, children.” She looked over to the jurors. “Ladies and gentlemen, I’m going to excuse you to the jury room while counsel and I discuss the objection. Thank you.”

  The jurors looked at one another and shrugged, but they did as they were told, standing up and filing into the jury room. When the door closed, Judge Quinn pointed a firm finger at Welles, “You will stop the speaking objections immediately, Mr. Welles, do you understand me?”

  Welles threw his arms wide and offered his most innocent expression. “I was just trying to articulate the basis for my objection.”

  “Don’t bullshit me, Mr. Welles. It won’t work. You just told the jury that the prosecutor was lying to them. You do that again, you’re in contempt. Do you understand?”

  Welles’ face traded innocence for understanding. “Of course, Your Honor.”

  Before Brunelle could fully form his own ‘told ya so’ expression, the judge turned her finger to him. “And you. Stop lying to the jury.”

  “Lying?” Brunelle stammered. “I’m just—”

  “You just asked the detective what his job was. When he said his job was to arrest the killer, you asked him who he arrested. Tell me that wasn’t designed to have the detective tell the jury that Mr. Karpati is guilty.”

  “Mr. Karpati is guilty,” Brunelle replied.

  “Prove it,” Welles laughed.

  “I’m trying,” Brunelle answered.

  “Well, you’re not going to do it with impermissible opinions as to guilt or hearsay,” Quinn instructed. “This detective cannot tell the jury what other people told him happened. That’s hearsay. And the law is clear in Washington: no witness, not even the lead detective, can give an opinion as to the defendant’s guilt. That’s for the jury to decide.”

  Brunelle clenched his fists, but didn’t say anything. There wasn’t any response, and he knew it.

  “I would ask the court,” Welles said smugly, “to instruct Mr. Brunelle not to ask about whether my client was arrested. And further to sustain my objection in front of the jury when they return.”

  Judge Quinn looked to Brunelle. “I think I should be allowed to tell the jury he was arrested. It’s just true.”

  The judge nodded. “It is true, but you’ve set it up that the detective has knowledge the jury won’t get and he determined Mr. Karpati is guilty.”

  “Again, Your Honor,” Brunelle implored, “he does have knowledge the jury won’t get, and Mr. Karpati is guilty.”

  “And again, Your Honor,” Welles said, “I move the court to prohibit any further questions regarding my client’s arrest. He requested an attorney and made no statements, so there is no admissible evidence from the arrest.”

  Judge Quinn raised an eyebrow at Brunelle, inviting a response, but he just shrugged. “I’ve made my argument.”

  Judge Quinn smiled. “And I’ll make my ruling. No more questions about Mr. Karpati’s arrest. Is that understood, Mr. Brunelle?”

  Brunelle shrugged. “I’m not Mr. Welles, Your Honor. I disagree with the court’s ruling, but I will abide by it.”

  Welles opened his mouth to protest, but the judge stopped him. “Ah, ah, ah, children. No more bickering.” She looked to the bailiff. “Bring in the jury.”

  The jury marched in and retook their seats. Once they were settled in, Judge Quinn announced, “The objection is sustained. Ask a different question, Mr. Brunelle.”

  Brunelle forced a smile. “Thank you, Your Honor.”

  But the truth was, lead detectives are hugely important outside the courtroom and mostly irrelevant inside. Everything they learned was hearsay, so they couldn’t tell the jury what witness so-and-so said. They sent everything to the crime lab for testing, but only the scientists could testify about the results. So really, about all they could ever say is, ‘I was the lead detective. I talked to some people. I sent some stuff to the lab. I wrote some reports.’ Brunelle tried to drag it out a bit, make it more interesting than that, but soon enough his direct examination had concluded.

  Brunelle’s only hope was that Welles would ask Chen the same type of question. ‘You don’t have any information that my client committed the murder, do you?’ That would open the door to Holly’s statement and everything else the investigation had linking Karpati to the murder.

  So of course, Welles stood up and said, “No questions, Your Honor.”

  Chen was excused and Brunelle was in serious trouble.

  Chapter 33

  “We’re in trouble, aren’t we?” Yamata asked when they returned to Brunelle’s office at the end of the day. The problems with Chen had been repeated with the patrol and evidence officers who followed. They spoke to people and collected evidence, but they weren’t allowed to relate the substance of the conversations or the results of any forensic testing.

  “Yeah, we’re in trouble,” Brunelle answered as he fell into his chair and raised his fingertips to his lips in thought.

  “Do we have any witness who can put Karpati at the crime scene?” Yamata asked, choosing to pace over sitting.

  Brunelle frowned through his fingers. “I can only think of one.”

  Before Yamata could ask, ‘Who?’ Brunelle hit the speaker button on his phone and dialed a four-digit in-county extension.

  “Juvenile detention center,” came the voice over the phon
e. “Transport desk.”

  “This is Dave Brunelle with the prosecutor’s office,” he said with a shrug to Yamata. “I’m going to need a transport first thing tomorrow morning to the main courthouse.”

  “The adult courthouse?” asked the officer.

  “Yes.”

  “And what’s the name of the juvenile?”

  “Sandholm. Holly Sandholm.”

  Chapter 34

  “What the hell are you doing?!”

  Jessica Edwards was angry. Livid. Maybe even apoplectic. She was inches away from Brunelle’s face, which under certain circumstances might not have been so bad. But 8:50 in the morning in Judge Quinn’s courtroom on that case were not those circumstances.

  “I’m calling your client to testify,” Brunelle answered calmly, taking a half step back.

  “She didn’t agree to testify, Dave. You can’t do this.”

  “I didn’t say,” Brunelle crossed his arms, “I was enforcing a plea agreement. I said I was calling her to the stand. I don’t need your permission to do that, Jess.”

  Edwards threw her arms up. “Of course you do, Dave. She’s just gonna plead the Fifth. You can’t call a witness just to plead the Fifth in front of the jury.”

  Welles, who, along with Yamata, had been content to watch Brunelle and Edwards have it out, spoke up. “She’s right. I won’t let you do that.”

  Brunelle glared over at Welles. “It’s not really up to you. Last I checked you were still one of the attorneys, not the judge.”

  “It’s settled law, my dear David,” Welles replied. “You can’t call a witness just to plead the Fifth Amendment. When the judge comes out, she’ll ask, like she does every time she comes out, if the lawyers have anything before the jury is brought in. I assure you I will move to prohibit this charade.”

  Brunelle narrowed his eyes. He knew Edwards and Welles were right. But he also knew it was always easier to say you were going to do something than to actually do it. She might back down and testify after all.

  And he had a Plan B. But both plans required Holly’s butt on the witness stand.

  “Fine,” he said. “Bring out the judge.”

  The bailiff raised an eyebrow at him. The judge would come out when she was ready. But it was almost nine o’clock, so they didn’t have to wait long before the bailiff called out, “All rise!” and Judge Quinn took the bench.

  “Good morning, counsel. Any matters before we bring in the jury?”

  Welles threw a sneer over at Brunelle, then a smile up to the bench. “Yes, Your Honor. It appears Mr. Brunelle has some theatrics planned for this morning. He intends to place Holly Sandholm—the one person who has confessed to this murder—on the stand for the sole purpose of having her invoke her right against self-incrimination in front of the jury. The idea is to bolster the State’s unsupportable assertion in its opening statements without actually presenting any competent evidence. Obviously, this is improper and I would ask the court to prohibit it.”

  Quinn rolled her head to Brunelle and glared down her nose at him. “Please tell me this is a misunderstanding, Mr. Brunelle. You don’t really think I’m going to allow you to do that, do you?”

  Brunelle nodded politely. “I think it is a bit of a misunderstanding. Ms. Sandholm is here this morning and the State does wish to call her as a witness. It’s one thing to say you’re going to refuse to testify under the Fifth Amendment; it’s another to actually do it. But we have no objection to the court having Ms. Sandholm initially take the stand outside the presence of the jury to see what she says.”

  Quinn stared at Brunelle for a few moments, then looked back to Welles. “Any objection to that procedure, Mr. Welles.”

  “I’d like to object, Your Honor,” Welles laughed, “but I’d rather just get on with it. I have no doubt that Ms. Sandholm will refuse to testify. The sooner we can get this parlor trick over with, the sooner my client can be acquitted and go home.”

  “Well, I object!” Edwards stepped forward.

  Judge Quinn raised an eyebrow. “Ms. Edwards. You represent Miss Sandholm, I take it.”

  “Yes,” Edwards tossed back her straight blond hair. It was one of her signature moves. “I object to my client being transported here without any notice to me—”

  “I left you a voicemail,” Brunelle interrupted.

  Edwards narrowed her eyes at him. “At seven-thirty last night. If I hadn’t checked my messages first thing this morning I’d be in a completely different courtroom this morning.”

  “Ms. Edwards,” the judge drew her attention back up to the bench. “Let’s set aside the notice issues for a moment. We’re all here now and I have a jury waiting. Is there any reason your client can’t just take the stand and formally assert her Fifth Amendment rights?”

  Edwards huffed and threw her hands wide. “Yes, Your Honor! She’s scared to death of the defendant. She’s a victim too. He raped her. The State even charged him with that before they dropped it for some reason.”

  “The reason,” Brunelle stepped forward, “is that she refused to testify. Maybe she’ll rethink it now that she’s in a safe environment. Maybe we refile that charge.”

  “Well, now, I would object to that,” Welles interjected. “Mandatory joinder rules clearly provide—”

  “Enough, enough!” Judge Quinn raised her voice. The lawyers instantly silenced theirs. “There is no point in discussing who might object to what might happen if something else happens. Put Miss Sandholm on the stand and see what she does.”

  The judge nodded to the jail guard, who turned and opened the secure door to the holding cells behind the courtrooms. As they waited for Holly to be escorted into court, Yamata stepped up and whispered into Brunelle’s ear.

  “You told the family about this, right?”

  Brunelle shook his head slightly. “No, there wasn’t really time. Why?”

  “Because the parents are in the gallery, and they’re looking panicked.”

  Brunelle turned to see Mr. and Mrs. Montgomery sitting in the front row of the public seating section. They didn’t look exactly panicked to him, but they didn’t look happy either. Mr. Montgomery motioned for them to come over.

  “What’s going on, Brunelle?” he demanded when they did.

  “I’m not going to let her off the hook quite so easily,” Brunelle answered. “She can’t just claim she’s going to invoke her right to remain silent. We’re going to make her take the stand and do it.”

  “Do we need her testimony?” Mrs. Montgomery asked.

  Brunelle sighed. “Honestly… yes. It wouldn’t hurt, at least.”

  “But what if she does refuse to testify?” was Mrs. Montgomery’s follow up question.

  “Don’t worry,” Brunelle assured. “I have a back-up plan.”

  “What’s the back-up plan?” Mr. Montgomery demanded.

  “The only way you get to claim the Fifth Amendment is if what you say would subject you to criminal penalties,” Brunelle explained. “I can make that go away by giving her immunity.”

  The Montgomerys both stared at him for several seconds. “Immunity?” Mrs. Montgomery asked.

  “Yes,” Brunelle said. “I can do that unilaterally, even without an agreement. I do that, and she can’t plead the Fifth any more.”

  Before either of the Montgomery’s could say anything more, the guard brought Holly into the courtroom.

  Brunelle excused himself with a shrug then returned to counsel table to watch Holly be marched up to the witness stand.

  She stared straight down at her feet the whole time. As she passed Karpati’s table he made a kissing noise, but by the time anyone realized what he’d done, Holly was sitting down. Edwards stepped over and whispered something into her ear.

  “Mr. Brunelle?” Judge Quinn invited.

  “Thank you, Your Honor,” Brunelle replied. Then, turning to Holly, he started. “Could you please state your name for the record?”

  “My client,” Edwards said in response, �
�invokes her right against self-incrimination under the Fifth Amendment of the United States Constitution and Article One, Section Seven of the Washington State Constitution.”

  Brunelle shrugged and looked up at the judge. “She has to do it personally, Your Honor.”

  Judge Quinn looked down at Edwards. “Mr. Brunelle is right. She does have to do it personally.”

  When Edwards frowned, the judge went on. “I don’t expect her to cite constitutional provisions, but she has to say herself that she’s refusing to testify.”

  “I refuse to testify,” Holly blurted out.

  Edwards smiled. The judge did too. “Is that good enough for you, Mr. Brunelle?”

  Brunelle shrugged again. “I think the question is whether that’s good enough for Your Honor. Just let me know when you find it to be an invocation of her right against self-incrimination so I know when to go ahead and grant her immunity.”

  “Immunity?” Welles slammed the table as he stood up. “You’re going to grant immunity to the only person who admitted to the murder?”

  Edwards whispered hurriedly into Holly’s ear. Holly sat up straight and said, “I invoke my right against self-incrimination. Under the constitution and stuff.”

  Judge Quinn crossed her arms and leaned back in her chair. She smiled slightly and looked down at Brunelle. “I can’t tell the prosecutor’s office what to do regarding immunity. I will find that Miss Sandholm has invoked her right against self-incrimination, and I rule that the State may not call her as a witness in front of the jury just to invoke that right again.”

  She leaned forward. “So what are you going to do, Mr. Brunelle?”

  But before Brunelle could respond, Yamata tugged his jacket sleeve and pointed to the gallery. The Montgomerys were trying to get his attention.

  “May I have a moment, Your Honor?” Brunelle asked.

  “Of course, counsel. But remember, the jury is waiting.”

  Brunelle and Yamata stepped to the half-wall separating the gallery from the counsel area.

  “Please don’t grant her immunity,” Mrs. Montgomery pleaded. “That other lawyer is right. She confessed to this. You can’t just let her walk away.”