Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  Jacobsen surrendered a tight frown. But he wasn't one to be pushed off course by a witness. “He didn't hold back though, correct? He answered every one of your questions, right?”

  Chen paused. But he had to admit, “Yes, that's true.”

  “And what it all boiled down to is that this was all just a horrible accident, isn't that correct?”

  Brunelle knew he could probably object. It was speculation, and it was an opinion on the ultimate issue. The types of objections you learn in law school. The type of objections that get overruled. He'd just have to rely on Chen. And he knew he could.

  “Accident?” Chen repeated. “No, this was no accident. The word 'accident' suggests something unavoidable. This wasn't an accident. This was a mistake.”

  Jacobsen's expression hardened. But he couldn't sit down on that answer. He had to salvage something. “So it wasn't intentional, correct?”

  Chen surrendered his own expression. A begrudging smile. “Correct.”

  Jacobsen sat down. He'd scored what points he could, and he couldn't trick Chen.

  Brunelle stood up. He had one more point and he could trust Chen.

  “It wasn't intentional?” Brunelle confirmed. “But it was reckless, wasn't it?”

  Jacobsen could have objected too. For all the same reasons, plus it was leading. But the judge would have overruled those too. He sat and waited for the answer just like everybody else.

  “Yes,” Chen was visibly pleased to answer. “It was reckless.”

  And there were no further questions for the lead detective.

  Chapter 36

  After Chen came a series of secondary witnesses. Patrons who'd seen Tina and Michael earlier that night. Patrol officers who locked down the scene. Forensic officers who took photographs and collected evidence. Not terribly interesting, but necessary to complete the story. Because an incomplete story could lead to doubts, and doubts lead to acquittals.

  It was important to finish strong, though, and so special consideration needed to be given to the final witness. In an assault case, you start with the victim and finish with the doctor. In a homicide case, the victim can't testify, so it was all the more important to finish with the medical examiner.

  “The State calls Dr. Kat Anderson.” It was a phrase Brunelle had said a dozen times. But this time it was Yamata who called the M.E. to the stand.

  Brunelle was going to avoid looking at Kat as she walked through the doors to the courtroom and realized he wasn’t going to be doing her direct examination. But he stole a glance despite himself. The initial surprise and confusion on her countenance were quickly pushed aside by realization and irritation. And disappointment. Which was why he hadn’t wanted to look in the first place.

  He lowered his head over his legal pad and pretended to take notes while Yamata handled the strong finish.

  “Please state your name for the record,” Yamata’s voice began confidently.

  “Kat Anderson,” came the reply. Brunelle still didn’t look up. He imagined Kat was staring at him. But he knew she wasn’t. Which bothered him even more.

  “How are you employed?”

  “I’m an assistant medical examiner with the King County Medical Examiner’s Office.”

  Then came her degrees and training, her qualifications and experience. Brunelle knew them by heart. She was a very impressive woman. A very impressive person.

  “Do your duties,” Yamata inquired, “include responding to the scenes of suspicious deaths and conducting autopsies?”

  “Yes.” A simple, elegant syllable. Brunelle dared a glance. Kat’s eyes were fixed squarely on her questioner. Yamata. He knew it should have been him. He returned his eyes to the doodles on his yellow pad.

  “Did you respond to a report of a suspicious death at the Cu-CUM-Ber Club in Seattle?”

  “Yes.”

  How could she make that one syllable so sensual?

  “Please tell the jury what you encountered.”

  Another stolen glimpse and Brunelle caught Kat’s perfect profile as she looked to the jury and explained, “I encountered a female subject who had died prior to my arrival.”

  “What was the condition of the body?”

  “She had died within the preceding hour, so the body was still warm to the touch and rigor had not yet set in.”

  A doctor’s answer. Brunelle smiled slightly. He knew that wasn’t what the lawyer wanted.

  “Let me be more specific,” Yamata said. “How was she dressed and was there anything of note, uh, attached to her body?”

  “Ah,” Kat replied. Another perfectly formed syllable. “The body was partially dressed in a leather costume. Her arms and legs were bound with rope.”

  “Did you observe any injuries on the body?”

  A pause, then, “Not at the scene. However, at autopsy, I did observe several bruises at various stages of healing on her back and legs. Speaking with law enforcement later, it appears those bruises were not related to the death.” Another pause. “Well, not directly anyway.”

  “So you conducted an autopsy?”

  “Yes. We almost always conduct autopsies for unnatural deaths. And certainly when the death is the subject of a criminal investigation.”

  “Were you able to determine a cause or manner of death?”

  “I was able to determine both a cause and a manner of death.”

  “What’s the difference?”

  Brunelle knew Yamata knew, but he also knew Yamata knew the jury didn’t know.

  “Cause of death,” Kat explained, “means the specific mechanism that caused the person to die. A gunshot wound, for example. Manner of death refers to one of four statutory categories that all deaths fall into: homicide, suicide, accident, and natural causes.”

  “What was the cause of Tina Belfair’s death?”

  “The cause of death was hypoxia.”

  “And what is hypoxia?”

  Another quick glance. Kat was in full professor mode, punctuating her explanation with graceful hand gestures. Brunelle loved how she moved.

  “Hypoxia is a condition when there is inadequate oxygen in the blood and tissue, which can be, and in this case was, fatal.”

  “What’s the difference between hypoxia and strangulation or suffocation?”

  “One way to think of it is that strangulation or suffocation lead to hypoxia. Hypoxia means you don’t have enough oxygen. Being strangled or suffocated will certainly do that, but there are other ways.”

  “What other ways?”

  “It can occur during activities like mountain climbing, when there isn’t enough oxygen in the air to begin with.”

  “So was Tina strangled to death?”

  A logical conclusion, Brunelle knew. But also incorrect. But Kat would explain it. She always knew what was really going on.

  “No. Strangulation will leave behind several telltale signs, including obvious signs like broken blood vessels in the eyes—something called petechiae. That wasn’t present here. Although there was some squeezing of the flesh, which led to blanching, there was no indication that her airways or arteries were constricted.”

  This time it was Yamata who paused. Strategically, to ensure the jury’s attention, and mimic their own likely uncertainty. “So what happened?” she asked.

  “The hypoxia was caused by a substantially reduced intake of air over an extended period of time. She could still breathe, but not deeply. Our bodies periodically need to take deep breaths, expanding our rib cages to do it. If the rib cage is prevented from opening wide enough, and especially if the mouth or nose is also partially blocked, the body simply can’t take in enough air, and a person can die of hypoxia even though they can still breath somewhat.”

  Another pause. Brunelle looked up to see if Yamata knew enough to move on. He looked down again because he knew she did. And because Kat started to peer over at him.

  “Did you say you determined a manner of death?” Yamata asked, to signal the change in topic and orient the ju
ry on the impending answer.

  “Yes.”

  “And what was that determination based on?”

  “It was based on the cause of death and the condition of the body upon initial examination at the scene.”

  “Did it appear that another person had contributed to the cause of death?”

  “Yes.”

  “So what was the manner of death?”

  Brunelle didn’t have to look up to know Kat turned to the jury to deliver what would be her final answer on direct exam. “Homicide.”

  “No further questions,” Yamata announced and she took her seat next to Brunelle. He tried to offer a ‘good job’ to his his co-counsel, but she was focused squarely on the defense attorney as he stood up to begin his cross examination.

  “Homicide, you say?” Jacobsen began, his voice almost folksy. Brunelle again focused on the words without looking at the witness. He knew Kat could take care of herself.

  “Yes. Homicide.”

  “But homicide doesn’t mean murder, right? Or even manslaughter?”

  “Murder and manslaughter are legal terms,” Kat admitted. “Those terms describe when a homicide is also a crime. I don’t determine that. The jury does.”

  “Exactly,” Jacobsen replied. “Now what’s the difference between homicide and an accident? If I crash my car and kill someone, is that homicide or an accident?”

  Kat paused as she considered the question. “If you intended to crash your car and injure someone, then it would be homicide. If you crashed for other reasons and someone ended up dying, that would probably be an accident.”

  “So are you saying my client intended to kill his girlfriend?”

  Kat knew not to take the bait. But the honest answer wasn’t going to help Brunelle any. He wondered absently whether she even cared about that any more. “No,” she answered. “I’m not saying that.”

  “So, really, the manner of death was accident?”

  Kat hesitated. “I still believe it was homicide. The mechanism of death—the restraints—were placed on her intentionally.”

  “But never with the intent that she die.”

  “If you say so,” Kat tried.

  But Jacobsen wasn’t going to just accept that type of reply. “I don’t say so, doctor. You do. You said if a person causes a death, but didn’t mean to, that’s an accident.”

  “I said,” Kat’s voice hardened, “that if a person dies as a result of another person’s intentional act, that’s homicide.”

  A long pause as Jacobsen obviously considered whether to continue the battle. He wisely chose against it. He’d made his point and could return to it in his closing argument. So instead he circled back to his main point: Kat Anderson wasn’t a lawyer, or the jury. “Homicide, you said, but not manslaughter, correct?”

  “It was homicide,” Kat replied. “I can’t say more than that.”

  “Oh, I bet you could,” Jacobsen needled, “but you’ve said enough for me. Thank you, doctor.”

  He returned to his seat and confirmed, “No further questions, Your Honor.”

  Quinn looked to Yamata. “Any redirect examination, counsel?”

  Yamata thought for a moment then stood up. “Tina Belfair wouldn’t have died that night but for the restraints placed on her by the defendant, correct?”

  Kat thought for a moment. “I think that’s fair to say.”

  “No further questions.” And Yamata sat down.

  Quinn looked back to Jacobsen. “Re-cross?”

  Jacobsen stood as if to ask another question, but then grinned. “No, Your Honor. The defense is satisfied with the good doctor’s testimony. Thank you.”

  Brunelle shook his head ever so slightly, and looked at his final doodle: the word ‘JACKASS’—but the squiggly arrow that accompanied the letters was pointed directly at himself.

  Chapter 37

  After Kat had walked out of the courtroom--possibly glaring at Brunelle, but he didn't know for sure because he still wasn't looking at her--Brunelle stood up and importantly announced, “The State rests.”

  The good news was, they were done with their case. They had presented the best evidence they had in the best possible way, and now they could relax, just a little, and prepare for whatever evidence the defense might choose to put on.

  The bad news was, the judge adjourned early for the day and Kat was still in the building. She was waiting outside his office when he stepped off the elevator.

  “What the hell was that?” she demanded. She shoved a fist on a perfectly curved hip as she said it. Brunelle really liked her hips.

  But he could keep his wits about him.

  “What the hell was what?” He taught his witnesses, if they needed a little extra time to think about an answer, they should ask the attorney to rephrase the question. He had just done the normal conversation equivalent.

  “You had Yamata do the questioning?” Kat sneered.

  Brunelle tried to shrug casually. “I thought she could use the experience.”

  Kat narrowed her eyes. “She's plenty experienced, David.”

  Brunelle raised an eyebrow and considered her comment. “Is that some kind of sex thing? Are you suggesting there's something going on between me and Yamata?”

  Guilty consciences speak loudly.

  But Kat laughed, rather scornfully in fact. “No, I wasn't suggesting that at all. But maybe I should have. You've been M.I.A. for weeks now. I practically forgot what you looked like.”

  Brunelle shrugged and looked away. “It's this case. You know how I get when I'm in trial.”

  “Bullshit,” Kat barked. Brunelle's gaze snapped back to her hardened face. “You get distracted, distant even, but nothing like this. And this case brought us closer at the beginning. You were all over me, literally.”

  Brunelle felt his mouth tip into a weak smile, but he didn't say anything.

  Kat's expression softened ever so slightly. “What's going on, David?”

  Another shrug, another look away. “Nothing.”

  But Kat wouldn't have it. “Don't lie to me, David. It's me. It's Kat. You can be honest with me.”

  Brunelle smiled again, ruefully this time. Honesty. And candor. He could give her honesty, but not candor.

  Honesty: “This case has led to a lot of things that are distracting me.”

  Candor: And I'm fucking her.

  He shook his head and walked past her to his office. “I'm sorry, Kat.”

  And that was true too.

  Chapter 38

  The biggest mystery of a criminal trial was whether a defendant would testify. The second biggest mystery was, if he did, then when. The prosecution can't force a defendant to testify, or even call him as a witness and force him to assert his right to remain silent. And the one thing the prosecution can never do is make any comment on what a defendant might or might not say until he actually does. And if he doesn't testify, then the prosecutor can't say anything at all. The defense holds all those cards, and doesn't have to play them until after the State rests its case.

  So the next morning, Brunelle had to be prepared not just for Master Michael taking the stand, but also for any other defense witness. And if it ended up being someone other than the defendant, then Brunelle would have to conduct his cross exam not knowing whether or not Atkins might eventually take the stand after all. That was far more difficult than if Atkins testified first. Jacobsen knew that, of course. And so, of course, Jacobsen's first witness was Dr. Peter Sylvan, Sexologist.

  The only good news was that Robyn had come to watch the trial again. Interest in the subject matter, Brunelle knew. Oh, how he knew. Cross exam was going to be hard enough without being distracted by his memories of Robyn, each a potential illustration for Sylvan's next book.

  Sylvan practically threw the doors open and all heads turned as he marched importantly to the witness stand. He clearly enjoyed being watched. A different topic for a different cross examination, Brunelle supposed.

  The judge swore Syl
van in and Jacobsen proceeded with the same introduction he’d done at the motion to dismiss. Sylvan introduced himself, listed his degrees, explained what sexology was, and again described his area of focus as ‘nonreciprocal power relationships coupled with device and restraint protocols.’

  That got everyone’s attention.

  “Are you familiar with the case of Michael Atkins and Christina Belfair?” Jacobsen asked.

  Brunelle had to hand it to Jacobsen. That was a good way to put it. It wasn’t State vs. Atkins, homicide. It was Michael and Tina, true love.

  “Yes,” Sylvan confirmed.

  “And how are familiar with it?”

  Sylvan turned to the jury to explain, “I have reviewed all of the police reports, as well as related documentation such as the autopsy report. I also met with Mr. Atkins multiple times to discuss the case. In addition, I am quite familiar with the location of Tina’s death, the Cu-CUM-Ber Club.” Then he turned ever so slightly and Brunelle could have sworn Sylvan glanced out of the corner of his eye at him as he added, “And other similar clubs, such as The Opal Room.”

  “So, doctor,” Jacobsen asked, “do you have an opinion as to the manner of Tina Belfair’s death?”

  “Yes, I do,” Sylvan answered simply. He’d testified before and undoubtedly rehearsed with Jacobsen. He knew he’d get to state his opinion in a few more questions.

  “And what was that opinion based on?”

  Sylvan again looked to the jury. It was important to the defense that the jury knew why they should trust his opinion. “It was based on my review of the aforementioned reports, my interviews with Mr. Atkins, my interviews with friends and family of both Michael and Tina, as well as my own experience and training in the area of sexology.”

  “What conclusions did you draw about Michael and Tina’s relationship?” Jacobsen started with Sylvan’s conclusions about Michael and Tina, the couple.