Insider Justice

by Dennis Carstens

  Marc joined Jeff and Brooke at one of the tables then went to the judge’s clerk to check in. There was already a dozen or so court watchers seated in the gallery. Apparently, word had gotten out that this might not be a routine hearing.

  Marc returned to the table and asked Jeff if he was hooked up and ready. Receiving an affirmative reply, he turned again to his client.

  “I wish Tony were here,” she said.

  “He’ll be here later. He can’t sit in. He’s going to be called as a witness and he can’t be in the courtroom,” Marc reminded her.

  “I know, it’s just, well, it’s comforting to have him around,” Brooke said.

  “You got a daddy thing or a bad boy thing?” Marc playfully asked.

  Brooke suppressed a laugh and said, “Both. I got a bad boy, daddy thing. Most of us do.”

  Now it was Marc’s turn to suppress a laugh.

  “Well, he has kind of, you know, that hot, older man thing going,” she smiled and said. “Don’t you dare tell him I said that.”

  “I don’t have to. He already believes it. Telling him would make it worse. Besides, he’s got a kind of ‘friends with benefits’ thing going with Vivian Donahue.”

  “Really? Old people? Wow, who would’ve thought?” Brooke said.

  The door next to the judge’s bench opened and the prosecutors came in. There were two of them. The older one, a man in his late-fifties, was well-known to Marc. His name was Gerald Krain, and he was easily the prosecutor most despised by defense lawyers in Hennepin County. The other was a young black man whom Marc had just met, Joseph Mosely. Fresh out of law school, he had not yet received word if he had passed the July bar exam.

  Jerry Krain was a thirty year lifer with the county attorney’s office. He had been a methodical, careful and competent trial lawyer throughout his career. The reason he had not risen through the ranks was the Gibraltar size chip on his shoulder. He seemed to be totally pissed off at the world, which made it easy for the world to be pissed off right back at him. It wasn’t just defense lawyers who despised him. His comrades in the county attorney’s office felt the same way. What amazed everyone was how well he came off to a jury.

  “Morning, Jerry,” Marc loudly said knowing a pleasant greeting would likely annoy the man known as the Nazi.

  “If you say so,” he grumbled back at Marc. Krain sat down and began arranging things on the table.

  “Carla would like you to check in,” Marc said referring to the judge’s clerk.

  Without looking up, Krain said, “I’m here.”

  “You’re in a better mood than normal,” Marc said. “Your favorite hooker make bail and take care of you last night?” Needling the Nazi was a favorite pastime of defense lawyers.

  As soon as he said this, Marc noticed the rookie lawyer seated on the other side of Krain visibly cringe. He looked at Krain as if expecting an explosion. Marc felt a twinge of sympathy for the young man. Knowing Krain’s feelings about black people, Marc wondered why Steve Gondeck had assigned him to the second chair with Krain.

  “That rapier wit is still functioning as well as ever I see, Kadella,” Krain replied.

  Brooke grabbed Marc’s arm while Marc was laughing and pulled him toward her. “Why are you trying to make him mad?” she anxiously asked.

  Marc turned and whispered, “I can’t make him angrier than he already is. I’m just having a little fun.”

  “The judge wants to see just the lawyers,” Marc heard Carla say.

  Judge Mitchell rose to greet them and reached across his desk to shake hands. Of course, he knew Jerry Krain well and had Marc before him many times. The judge took a little extra time with young Joseph Moseley to make him relax and feel welcome. When everyone was seated, he looked at Marc.

  “You’re going to make a big deal out of this?” he half-jokingly asked.

  “Well, your Honor,” Marc replied. “I don’t think they have much of a case and I think I can end it here and now.”

  Krain derisively snorted and with a sarcastic attitude said, “It’s probable cause, Judge, I’ll…”

  “Thank you for that reminder, Mr. Krain. I’ll keep it in mind,” Williams said. “You’re planning on calling witnesses?”

  “Yes, a few,” Marc replied.

  “How many?” Krain asked.

  “I’m not sure. I’ll have to see your evidence…”

  “He knows our evidence, Judge,” Krain said. “This is…”

  “His client’s right to do this and we’re going to.” He looked at Marc and asked, “Today and tomorrow enough?”

  “That should be plenty, your Honor,” Marc replied.

  “Okay. You put your case on today and the defense tomorrow. Will that work for you, Mr. Krain?” the judge asked.

  “Yes, your Honor.”

  “Marc?”

  “Sounds good, Judge,” Marc said.

  “Okay. Let’s get at it,” Williams said.

  A probable cause evidentiary hearing is basically a mini-trial. It is used to convince the judge that the prosecution has enough evidence to proceed to the real trial. Normally the defense does not put on any witnesses of their own. The defense uses this as an opportunity to get a good look at the prosecution’s evidence, the witnesses and how the evidence will be presented. Since Marc was trying to stop the case from going forward, he planned to call his own witnesses. This was an opportunity to convince the judge there was insufficient probable cause and dismiss the case.

  There are problems with this strategy. First, if the judge does dismiss at this point, the defendant is not covered by the constitutional protection of double jeopardy. Legally, jeopardy attaches when the jury is sworn in. Or, if the trial is to a judge only without a jury, jeopardy attaches when the first witness is sworn in. That means if Marc is successful and Judge Williams dismisses, the state is free to find additional evidence and charge the defendant again.

  The second problem is, by putting on his own witnesses Marc could be giving away his trial strategy. The prosecution can use that to better prepare their case for trial.

  FIFTY-ONE

  Judge Williams took the bench and looked over the gallery. Normally, these hearings were conducted routinely prior to trial and attracted little or no attention. Even cases with some media interest rarely brought more than one or two reporters in to attend.

  The judge read off the case title and court file number. Both the state’s attorney and the defense noted their presence for the record along with the defendant. Williams then spent a few minutes reminding the media that recording devices and cameras would not be allowed.

  “Do you wish to make an opening statement, Mr. Krain?” Williams asked.

  “Yes, your Honor,” the prosecutor replied after standing at his table.

  “Bear in mind, Mr. Krain, I’ve read the case file, pleadings and supporting memorandums. Be brief,” Williams said.

  Without a jury to impress, Krain kept his beginning statement short and to the point. Judge Williams had just told Krain he was up to date on the case. Because of this, Krain barely spoke for ten minutes. Just enough to give the judge a quick look at what the prosecution’s case was. When Krain finished, Judge Williams, who had pretended to take notes while Krain spoke, turned to Marc.

  “Mr. Kadella, do you wish to make a statement now?”

  Marc stood and politely replied, “I’ll defer for now, your Honor.”

  Williams turned back to Krain and asked, “Are you calling witnesses, Mr. Krain?”

  “Yes, your Honor.”

  “You may proceed.”

  Krain stood and called his first witness. A moment later, Lucy Gibson was led into the courtroom by a sheriff’s deputy. She was sworn by the judge’s clerk and took the stand.

  Marc had guessed correctly that Lucy would be first up. Normally, the prosecution would start with a strong witness. This would have been the lead investigator, Gabe Hunt. With a judge as the fact finder and not a jury, first impressions were not nearly as
important.

  The county attorney’s office had decided against a first-degree murder indictment. Marc believed this was because of the difficulty they would have proving premeditation. Brooke Hartley was charged with second-degree murder and first-degree manslaughter.

  Every criminal act has specific elements that must be proven. And each of them, for a guilty verdict, must be proven beyond a reasonable doubt. For today’s hearing, Krain need only show that there was probable cause to believe Brooke Hartley committed the act that caused the death of Brody Knutson.

  For second-degree murder, the state must prove that the act committed was done with the intent to cause the victim’s death. It need not be premeditated— thought out beforehand—but done to kill. Stabbing someone in the heart with a sharp object, a letter opener, is a fairly obvious indication that death was intended.

  This does not preclude the defense from offering evidence that death was not intended. They could claim that the two people were engaged in a heated argument and in a moment of passion, the stabbing occurred. This was the reason for the manslaughter charge. Krain was using it to head off any claim the defense would bring along those lines. If the prosecution did not charge it and the jury concluded that is what happened, the jury could not impose it themselves.

  Marc could still bring a claim of self-defense. Except, self-defense is what is called an affirmative defense. An affirmative defense is one the defendant must assert before trial and then prove during trial. Since Brooke had no memory of the event and there were no witnesses, self-defense was not a practical option. Plus, you cannot really argue that “my client did not do it, but if you think she did, she acted in self-defense.” It has to be one or the other.

  Lucy Gibson’s testimony lasted about forty-five minutes. Krain quickly and efficiently walked her through her story. She arrived at work and found Brody Knutson dead with his own letter opener in his chest. Brooke was unconscious on the floor a few feet away from him.

  Krain spent most of his time with her, drawing out the animosity Brooke felt toward Brody Knutson. Marc objected to it three times as hearsay, but Judge Williams allowed it as a statement against Brooke’s interest. The fourth objection, repetitive testimony, finally put a stop to it. By then even Judge Williams had heard enough.

  Krain used this opportunity to put a photo up on the TVs located throughout the courtroom. It was a photo of Knutson’s body lying in a pool of blood with the letter opener still in his chest. Lucy agreed that was how she found him. She also pointed out where Brooke had been lying.

  When Krain finished with Lucy’s involvement that morning, he passed the witness to Marc.

  “No questions at this time, your Honor. We reserve the right to recall Ms. Gibson during the case for the defense,” Marc said.

  “Very well. Ms. Gibson, keep yourself available and stay away from any news stories that may be published or shown on TV.”

  “Yes, your Honor,” Lucy said. She stood, stepped down from the witness chair, looked at Brooke and loudly said, “I’m sorry.”

  “And refrain from speaking to the defendant,” Judge Williams admonished.

  As Lucy was walking down the center aisle toward the exit, Williams told Krain to call his next witness.

  “The prosecution calls Detective Gabriel Hunt, your Honor.”

  As part of the prosecution team, Hunt was the only witness allowed to sit in the courtroom. He was in a chair behind the prosecution’s table against the railing.

  Jerry Krain again showed why he was an effective prosecutor. This was his main witness and Krain did not miss anything that could help his case and point at Brooke.

  Krain started off with the detective giving Judge Williams a thorough history of his career in law enforcement. Being a judge with almost fifteen years on the bench, Williams was not the least bit impressed. The judge did manage to do an excellent job of not showing his boredom, but he had heard it from many witnesses many times before.

  Having thoroughly prepared his witness, Krain smoothly transitioned into the investigation itself. Since there wasn’t much of an investigation done, this part of the testimony did not last long. Hunt did manage to superficially go through the steps he took to rule out other suspects. At the end, Krain made a point of emphasizing this part of the investigation.

  “When did you come to believe the defendant committed this crime?” Krain asked.

  “Not immediately, if that’s what you mean,” Hunt replied. “She was certainly a suspect right away, I’ll admit. It wasn’t until after I got the fingerprint results off of the letter opener that I decided she must have done it.”

  Since Hunt did not do the fingerprint analysis himself, this answer was close to objectionable. Marc did not bother because the fingerprint tech was going to testify anyway, so he let it go.

  “Did you find any evidence that anyone else was there in the deceased’s office who could have done it?”

  “No, none at all,” Hunt emphatically said.

  “Your witness,” Krain told Marc.

  Since there was no jury, who were always sympathetic to police, Marc had no need to approach Hunt with a soft attitude. Instead, he decided to go right at him.

  “You found no evidence of anyone else being there in Brody Knutson’s office that morning?” Marc asked from his seat at the table.

  “No, no one.”

  “What would you say if I told you my investigator found such evidence?”

  This caused a bit of a stir in the courtroom which Judge Williams silenced with a stern look.

  “I’d say he was lying,” Hunt replied.

  “Because you were so thorough?”

  “Yes.”

  “Because you didn’t miss anything?”

  “I don’t believe so, no,” Hunt answered but visibly shifted in his chair.

  “And the police crime scene techs didn’t miss anything?”

  “Well, you’d have to ask them…”

  “I’m asking you, Detective. Aren’t you in charge of this case? Aren’t you the one responsible for it? The one who is supposed to make sure every stone is looked under?”

  “Well, yes,” Hunt agreed.

  “The time of death was put at between five-thirty and six-thirty by the medical examiner, was it not?” Marc asked abruptly shifting gears.

  “Objection, that would be testimony for the medical examiner,” Krain said.

  “I have the medical examiner’s report, the autopsy, right here, your Honor,” Marc said.

  “Have you read the medical examiner’s report, Detective Hunt?” Judge Williams asked.

  “Yes, your Honor,” Hunt replied.

  “Overruled,” Judge Williams said. “He can answer.”

  “Yes, that is what the M.E. found,” Hunt admitted.

  “What time did Ms. Hartley arrive at the office that morning?” Marc asked.

  “According to the witness, Lucy Gibson, it was Ms. Hartley’s turn to come in early. She arrived before six,” Hunt answered.

  “This was according to Ms. Gibson. Was she there when Ms. Hartley arrived at the office?” Marc asked.

  “Um, no but that’s the time Ms. Hartley was supposed to be there. No later than six.”

  Marc looked at Jeff Modell and nodded. A moment later, a photo appeared on the TV monitors.

  “On the television monitor is a photograph we obtained from the parking garage surveillance camera. It’s a photo of someone entering the underground parking facility of the U.S. Bank building…”

  “Objection,” Krain said. “We have no one to authenticate this…”

  “I have an affidavit,” Marc said as he stood to address the court. He was holding a one-page document in his hand, “from the building’s head of security. It attests to the authenticity of the photo and we are prepared to bring him in to testify if necessary unless the state will stipulate and allow it in.”

  Marc walked over to Krain and gave him a copy of the affidavit and took one up to Judge Williams. They bo
th took a minute to read it then Judge Williams looked at Krain.

  “Will you stipulate?”

  “Yes, your Honor,” he said and sat down.

  “Objection overruled. Proceed, Mr. Kadella.”

  “There is a date and time stamp on the photo, Detective. Please read it.”

  Hunt read off the information then Marc asked, “That is the date of Mr. Knutson’s death, is it not?”

  “Yes.”

  Another photo appeared on the screens. It was a clear shot of Brooke Hartley’s face. She was leaning out of the driver’s window to use her pass card to raise the ramp’s entry gate.

  Marc described the photo for the stenographic court record then asked Hunt, “Do you recognize the woman in this photo?”

  “It’s the defendant,” Hunt answered.

  “Brooke Hartley?”

  “Yes.”

  “And what is she doing?”

  “She appears to be driving into the building’s parking ramp?”

  “What time is stamped on that photo?”

  “Six oh four,” Hunt replied. “But…”

  “I’ll ask the questions,” Marc quickly said cutting him off.

  “Would it be reasonable to say it took her another minute to park her car?”

  “I guess,” Hunt said.

  “I did it myself,” Marc said. “It is. So, she parked her car at six oh five. Walked to the elevators and went up to the thirty-third floor. Another five minutes. Would you agree, Detective?”

  “I’m sure you timed it so I would agree.”

  “Yes, I did. Didn’t you?” Marc asked.

  When Hunt failed to answer, Marc continued.

  “She went into the office, hung up her coat; you found her coat hung up didn’t you?”

  “Yes, we did.”

  “Her purse in her desk?”

  “Yes.”

  “She then went to the breakroom and poured herself a cup of coffee…”

  “Objection, is there a point to this?” Krain knew there was but wanted to interrupt it.