Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  “Yes?” she encouraged. But her eyes betrayed trepidation.

  “Well, just…” He tried, but trailed off. “Well, I mean. I guess maybe I need some space.”

  He looked at her eyes briefly, then quickly glanced away. He didn’t like what he saw there. He didn’t like being responsible for it.

  It was a lame phrase. ‘Some space.’ It didn’t mean anything. It was breaking up without breaking up, wanting to see other people without admitting it. But its very ambiguity amplified its impact.

  “Space?” Kat managed a half-laugh. “Well, it’s not like we’re married.” She forced a smile onto her features, but it was hard. “You can have all the space you need, David. By all means. I don’t want to scare away the life-long bachelor by being there for him, listening to his worries, sharing his victories, laughing at his stupid jokes. You want space? You can have it. You can have as much fucking space as you need. In fact,” she stood up, “let’s go ahead and start now. You can finish dinner on your own.”

  She wasn’t crying, but she wasn’t about to stay and let that happen, Brunelle knew. She stormed toward the exit. He would have tried to stop her, but really, he wanted her to leave. He wanted space. And time. To return Robyn’s text.

  But when he pulled the phone out of his pocket, there was another text from her.

  Never mind. On second thought, bad idea. Sorry.

  Brunelle closed his eyes and tried to ignore the explosion of emotions inside him. “Well, fuck.”

  Chapter 30

  The Kat-and-Robyn-less days dragged on, but eventually it was the night before trial. Brunelle found himself alone in his apartment. He didn’t drink much, but when he did, it was usually whiskey. He poured some over a glass of ice and stepped onto his balcony.

  He was farther away than ever from understanding how to win the case. It was an accident. Jacobsen was going to say that a hundred times, just in his opening statement, And Brunelle could hardly argue. It was an accident. It’s just that it was also a crime.

  But why?

  He could explain the law to the jurors, but he could imagine their eyes glazing over as he spoke.

  ‘A person is guilty of manslaughter in the first degree when he or she is aware of a substantial risk that death might occur and ignores that risk. In contrast, a person is guilty of manslaughter in the second degree when there is a substantial risk of death, and a reasonable person would be aware of that risk, but the defendant wasn’t aware of the risk and such lack of awareness was a gross deviation from normal conduct.

  ‘Now, criminal negligence isn’t defined anywhere in any statute, but we know it’s higher than regular negligence—the kind you would see in a civil suit for damages. We just don’t know how much higher. And a substantial risk is more than a regular risk, but again, how much more isn’t really defined anywhere.

  ‘Now, let’s talk a little about the word ‘recklessly’…’

  Brunelle shook his head. That type of argument would be sure to both bore and confuse the jury. Bored juries don’t feel a passion for justice. Confused juries don’t convict beyond a reasonable doubt.

  He took a drink and looked out at the small section of city visible from his balcony.

  He thought about the case, turned it over in his mind every which way, like a Rubik’s cube, trying to figure out the solution.

  But there was another reason he was obsessing about the case.

  He took another drink. Too much. It burned going down.

  If he could keep his mind filled with the case, there wouldn’t be room for Kat.

  Or—and he damned himself for still thinking about her, but he couldn’t help it—for Robyn.

  Chapter 31

  In the end, Jacobsen elected not to ask the prospective jurors about Brunelle’s ‘Fifty Shades of Guilty’ comment.

  On the record, he explained to the judge, “Given our Hobson’s choice between inquiring into whether the jurors have been tainted by Mr. Brunelle’s misconduct, and ensuring they are so tainted by so asking, we reluctantly choose not to raise the issue.”

  Off the record, he admitted to Brunelle, “This is a free shot for me. Like when the defense jumps offsides and the ball gets hiked anyway. The quarterback can send everybody long and throw for the endzone. If it’s caught, it’s a touchdown. If not, no worries. Just accept the penalty and replay the down.” When Brunelle didn’t immediately embrace the metaphor, Jacobsen explained, “There’s no way the Court of Appeals lets any conviction stand after your comment. If the jury acquits, we’re done. If they convict, it’s coming back anyway.”

  Brunelle still didn’t reply. Just a noncommittal nod that said, Yep. You’re saying what you’re saying. But he knew Jacobsen could be right. The best defense attorneys didn’t just try to win; they planted seeds for the appeal. So, after a relatively uneventful and uncontentious jury selection, Judge Quinn seated twelve jurors and two alternates and adjourned until the next morning for opening statements.

  When they reconvened, Judge Quinn confirmed there were no more issues from the attorneys, then brought in the jury and announced, “Ladies and gentleman, please give your attention to Mr. Brunelle, who will deliver the opening statement on behalf of the State.”

  Chapter 32

  Brunelle stood up and surveyed the courtroom. It was packed. Every seat in the gallery was taken. More spectators stood shoulder-to-shoulder against the walls. A TV camera stood in one corner. Pointed directly at him.

  Everyone was waiting for him to speak. Everyone wanted to know what he was going to say. This was his moment. Whatever he said, it was likely to be the one thing everyone remembered. He needed to make it count. He needed to take advantage of the fact that the prosecution always gave the first opening statement. He needed to seize the initiative and put Jacobsen back on his heels.

  He needed to be powerful. There were few things more powerful than honesty. And candor.

  He stepped in front of the jury and opened his palms. A practiced gesture—calculated, ironically enough, to communicate sincerity. If they were only going to remember one thing, he wanted it to be the truth.

  “It was an accident.”

  A surreptitious glance out of the corner of his eye. If everyone had been wondering what he’d say first, they were dying to know what he’d say next.

  “No one wanted Tina Belfair to die that night. Not Tina. Not the staff at the Cu-CUM-ber Club. And certainly not Michael Atkins.”

  He looked back to where Atkins was sitting. Not because he really wanted to look at Atkins, but because it made Brunelle look sincere in the front of the jury, and because he wanted to see if his opening was pissing off Jacobsen as much as he’d hoped it would. He was going to give the defense opening first—then rebut it. All before Jacobsen got to say so much as, ‘Good morning.’

  But the defense attorney was wearing a solid poker face. Brunelle turned back to the jurors and continued.

  “The defendant loved Tina. They had been in a committed relationship for years. They enjoyed each other’s company. And they shared common interests. But it was during one of those commonly shared interests that Michael Atkins accidentally killed the love of his life.”

  This next part was tricky. The sexual circus that surrounded Tina’s death threatened to distract from the significance of the crime. Prosecutors need jurors who feel the weight of the wrong and yearn to help right it. Distractions were always bad. Titillating distractions were worse. Titillating distractions that provided defenses to the charges were the worst.

  “I’m not going to get into all the details of their relationship right now. You’ll hear plenty of testimony about the sorts of things Tina and the defendant enjoyed doing together. But ultimately, those things don’t really matter. What matters is that Tina Belfair is dead. And she’s dead because of the conduct of Michael Atkins.”

  Brunelle took a moment to gather his thoughts and let the jury know that the next bit was important. There were few things worse than listening to
a lawyer talk. Brunelle knew that. He never understood the attorneys who delivered three-hour opening statements. Openings were supposed to preview what the evidence would show. The longer you talk, the more you’re promising the jury things you might not be able to deliver. And more importantly, you’re boring the hell out of them. Get in, get to it, get out.

  “It’s important to understand that the defendant never intended to kill Tina. He is not charged with murder. He’s charged with manslaughter. I won’t get into the definition of manslaughter right now. That’s not appropriate for opening statement. At the end of the trial, the judge will instruct you on the elements of manslaughter, and you will decide whether the State has proved each of those elements beyond a reasonable doubt, but for now it’s important to note one thing. Manslaughter is an accident. And manslaughter is also a crime.

  “You see,” he opened a professorial hand to the jury, “just because something was an accident, doesn’t mean it isn’t also a crime. Mr. Atkins didn’t mean to kill Tina, but he did. And he had an obligation to be more careful than he was. If you back up your SUV in a crowded parking lot and run over a child, that’s an accident. If you knew there were kids around, and you knew someone could be hurt, and you went ahead and backed up anyway, that’s manslaughter. If there’s a substantial risk someone could get killed, and you disregard that risk, it’s more than just an accident. It’s a crime.”

  That was the crux of it. Accident or not, Atkins was guilty. He’d given them the roadmap, the outline. He just needed to fill it in a little with some detail and he’d be done. It wasn’t quite enough to tell the jury that Tina died because Atkins messed up. They needed to feel it.

  “The night Tina Belfair died, she was helpless. Her hands and feet were bound and her mouth was gagged. The defendant wrapped a rope around her throat. She could do nothing to save herself, or even tell the defendant she was in distress. Immobilized and unable to speak, she slowly suffocated to death even as her friend and lover stood by, oblivious to what was happening. Oblivious to what he had done. Just like the man who backs up his SUV in a parking lot full of kids, Michael Atkins should have known better. And in fact, he did know better. He knew there was a substantial risk Tina could die from having her breathing so restricted. But he didn’t care. He had his own needs to attend to.”

  A subtle dig at Atkins. Overdue, really.

  “And while he attended to those needs of his, and he disregarded the risks to his lover, Tina Belfair died.”

  Time to wrap it up.

  “No one wanted Tina Belfair to die that night,” he repeated. “Not Tina. Not the staff at the Cu-CUM-ber Club. And certainly not Michael Atkins. But just as certainly, there was one person in the world who could have prevented it: Michael Atkins. It was accident. But it was also a crime. And at the end of the trial I’m going to stand up again and ask you to return of guilty to the charge of manslaughter in the first degree. Thank you.”

  Brunelle returned to his seat and accepted a tight, professional nod from Yamata, the most a prosecutor will do in such a serious situation. No high fives in front of the jury. It was a good enough opening. It was time to see if Jacobsen could match it.

  “Ladies and gentleman of the jury,” Judge Quinn announced, “please give your attention to Mr. Jacobsen, who will deliver the opening statement on behalf of the defendant.”

  Chapter 33

  Jacobsen took a stance directly in front of the jury box. He was a large man and used his stature to command the room. He clasped his hands in front of him to signal he was about to speak.

  “When you hear hoof beats,” he said, “don’t look for zebras.”

  Brunelle suppressed a grimace. It was an old lawyer’s phrase. All the lawyers knew it. But likely none of the jurors did. So it was effective. That’s why it had survived to be an old lawyer’s phrase.

  “Sometimes the most obvious answer is the correct answer,” Jacobsen translated. “And sometimes an accident is just that. An accident. Nothing more.”

  That time Brunelle suppressed a nod. Jacobsen was right: that was where their battle was joined.

  “Let me tell you a little about Michael Atkins,” Jacobsen continued. He too looked back at the defendant, but his expression showed warmth. Brunelle knew it was a practiced mask. He also knew the jury didn’t know that.

  “Michael,” Jacobsen said, “lives in Kirkland. He has a condo near the downtown park and likes to watch the sun set over Lake Washington. He enjoys hiking and kayaking, and he recently took up cycling after he had to stop jogging because of a knee injury. He works for a small software start-up in Kirkland, he likes romantic comedies, and his favorite food is pad thai.”

  Jacobsen paused and looked to the floor. Dramatic effect. Time for Brunelle to suppress an eye roll.

  Jacobsen raised his gaze again, practically biting his lip with faux emotion. “And he loved Tina Belfair with all his heart.”

  Brunelle usually tried to avoid looking at jurors directly during the defense opening statement. He didn’t want to be seen scanning them for reaction, or overly interested in what he, by virtue of his adversarial position, must think is a load of B.S. But he snuck a glance to see if Jacobsen’s dramatic ploy had worked. From what Brunelle could gather, it had mixed success. There were definitely a few jurors who seemed engaged, but for every pair of moist eyes, there were a pair of crossed arms elsewhere in the jury box. Good, he thought, and returned his eyes to the notepad before him.

  “Michael and Tina met about five years ago,” Jacobsen continued. “They joined the same hiking club. One day they ended up next to each other on a hike and started talking. They got along and soon enough talking led to flirting. Flirting led to a first date. A first date ended in a first kiss. They became a couple. And then something wonderful happened. Not only were they compatible when it came to hiking and romantic comedies, but they were also compatible sexually.” He paused and lowered his voice just enough that it wasn’t too creepy. “Very compatible.”

  He nodded, to let his characterization of their relationship sink in. “In fact, they were more than just compatible, they were complimentary.”

  Jacobsen paused again. This was where it would have made sense to get into details. But it also would have been uncomfortable. The jurors needed to be eased into it. They didn’t need some middle-aged guy in a suit suddenly talking about bondage.

  “You'll hear all the details later,” he promised. “What's important to understand now is this: not only did Tina and Michael love each other, but they had something very special. Unique even. And Michael would never, ever have done anything to jeopardize that.”

  Brunelle couldn’t quite suppress a frown. That was a good point. Then again, people screwed up good relationships all the time, because they were too dense to see a good thing when they had it. Everybody knew that.

  “So, ladies and gentlemen,” Jacobsen began to wrap up, “I’m going to ask you to do one of the hardest things any person can do. I’m going to ask you to keep an open mind. Not just about Michael and Tina’s relationship, but about this case. The prosecution gets to go first. They get to put on evidence, and call witnesses, and present their case. All I get to do is cross examine the witnesses they choose to put on. And so it’s entirely possible at the end of their case, you’ll think Michael is guilty. But remember, you’ve only heard one side of the story, and the judge has told you and will tell you again and again, you cannot begin deliberating this case until you’ve heard all of the evidence. And that includes the evidence we put on. You’re going to hear from an expert in relationships like Michael and Tina’s. He’s going to explain to you how perfect they were for each other, and how this case is nothing more than a terrible, tragic accident. And you’re going to hear from Michael himself. He’s going to tell you how much he loved Tina, how much he misses her, and how he would do anything to have her back.”

  One more pause. Obviously, Jacobsen was going to emphasize Michael and Tina’s Freaky Love throughout the
trial. If the leash doesn’t fit, you must acquit.

  “And then, at the conclusion of this trial,” Jacobsen summarized, “after you’ve heard all of the evidence, I’m going to stand up again and ask you to find Michael Atkins not guilty. Thank you.”

  Jacobsen returned to his seat. Judge Quinn waited for him to do so—giving him one extra pause for his words to sink in on the jury—before looking to Brunelle and Yamata.

  “The State may call its first witness.”

  Brunelle stood up. “The State calls Patrick Gillespie.”

  Chapter 34

  Patrick Gillespie walked into the courtroom, looking as comfortable as a chicken at a fox convention. His eyes darted around the room, and sweat was already beading his brow before the judge even swore him in. As he sat down in the witness chair, he took a deep breath and exhaled it loudly, like he was about to confess all of his sins. To his wife. With a cop and a stenographer present.

  Ordinarily, Brunelle preferred his witnesses to be more at ease, but he supposed it didn’t really matter in this case. The jury didn’t have to like Gillespie; they just had to believe him.

  “Could you state your name for the record?” Brunelle asked from his spot at the back of the jury box. It forced the witness to look toward the jury and keep his voice up. Vital with a civilian witness. Especially a nervous one.

  “Uh, Patrick Gillespie,” he managed to answer, not without some initial hesitation.