Diminished Capacity

by Stephen Penner

  DIMINISHED

  CAPACITY

  David Brunelle Legal Thriller #10

  STEPHEN PENNER

  Diminished Capacity

  ©2018 Stephen Penner. All rights reserved. No part of this book may be reproduced or transferred without the express written consent of the author.

  ISBN 13: 9780578435121

  ISBN 10: 0578435128

  This is a work of fiction. Any similarity with real persons or events is purely coincidental. Persons, events, and locations are either the product of the author’s imagination or used fictitiously.

  Joy Lorton, Editor.

  Cover design by Nathan Wampler Book Covers.

  THE DAVID BRUNELLE LEGAL THRILLERS

  Presumption of Innocence

  Tribal Court

  By Reason of Insanity

  A Prosecutor for the Defense

  Substantial Risk

  Corpus Delicti

  Accomplice Liability

  A Lack of Motive

  Missing Witness

  Diminished Capacity

  Short Stories starring David Brunelle

  Case Theory

  Beyond a Reasonable Doubt

  DIMINISHED

  CAPACITY

  TABLE OF CONTENTS

  Chapter 1

  Chapter 2

  Chapter 3

  Chapter 4

  Chapter 5

  Chapter 6

  Chapter 7

  Chapter 8

  Chapter 9

  Chapter 10

  Chapter 11

  Chapter 12

  Chapter 13

  Chapter 14

  Chapter 15

  Chapter 16

  Chapter 17

  Chapter 18

  Chapter 19

  Chapter 20

  Chapter 21

  Chapter 22

  Chapter 23

  Chapter 24

  Chapter 25

  Chapter 26

  Chapter 27

  Chapter 28

  Chapter 29

  Chapter 30

  Chapter 31

  Chapter 32

  Chapter 33

  Chapter 34

  Chapter 35

  Chapter 36

  Chapter 37

  Chapter 38

  Chapter 39

  Chapter 40

  Chapter 41

  Chapter 42

  Chapter 43

  Epilogue

  Excerpt from Winter’s Law

  About the Author

  Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form the intent required for the crime charged.

  State of Washington

  Pattern Criminal Jury Instruction 18.20

  “Diminished Capacity”

  CHAPTER 1

  Homicide prosecutor David Brunelle sat perched on a stool at his favorite bar, blissfully ignorant of how crazy his life was about to become.

  “One more,” Brunelle told the bartender, pointing at his empty glass. The bar was walking distance from his condo, so he could safely have another. That was part of why it was his favorite bar.

  “Whiskey, neat,” the bartender confirmed. “Got it.”

  As the bartender stepped away to pour the drink, a woman’s voice came over Brunelle’s shoulder. “Hey, stranger.”

  Brunelle turned around, not sure what to expect. The voice was familiar—someone from his past—but he couldn’t quite place it. There were a lot of people in his past, both good and bad, especially with his profession. In the split second it took to spin the barstool, he steeled himself to encounter an unhappy defendant or victim or ex-girlfriend, but allowed himself to hope it might actually be someone good from his past. And given that it was a Friday night, maybe someone good from his future.

  It was Detective Casey Emory of the Bellevue Police Department. They’d had a case together once, but over in Bellevue, the affluent suburb east of Seattle. They weren’t exactly strangers, but they didn’t exactly know each other either. Brunelle did homicides and Bellevue didn’t get a lot of homicides.

  So, it was someone good from his past. Always a relief. She was in the typical street-clothes uniform of a police detective: dress pants and a button-up shirt, a badge on her belt and a gun on her hip. Her relaxed black curls brushed her shoulders, and those bright green eyes shone out past her smooth brown skin.

  “Oh, hey,” Brunelle greeted her. “What are you doing in Seattle?”

  “Long story,” Emory said. “Buy a girl a drink?”

  “Of course,” Brunelle pushed out the stool next to him. “What are you drinking?”

  “Whiskey sour would be fantastic,” Emory said as she sat down. “It’s been a hell of a day. I just spent three hours on the stand getting grilled by a defense attorney on this embezzlement case it took me almost a year to put together.”

  Before Brunelle could empathize, his phone went off. He sighed at the number displaying on the phone as it buzzed silently atop the bar. “This is Seattle P.D.” He recognized the prefix. “I better answer it.”

  Emory nodded. “By all means, counselor.”

  Brunelle raised the phone to his ear. “Brunelle,” he said simply. Then, “Shit. Really? Okay. Where? Anyone in custody yet? Right. Okay. Yeah, I’ll be right there.”

  Brunelle hung up just as the bartender brought him that next drink. But he was still feeling the first one. They poured heavy at that bar. Another reason it was his favorite. He pushed the glass away slightly and smiled at his new companion. “So… Did you drive here?”

  Emory laughed and pulled her car keys out of her pocket. “Where are we headed?”

  “King Street Station,” Brunelle answered. He stood up and threw some bills on the bar. “They found a body down on the tracks. Crushed skull.”

  “Seattle P.D. calls prosecutors out to accidental deaths too?” Emory questioned.

  Brunelle shook his head. “He wasn’t hit by a train. It was murder.”

  * * *

  But it sure looked like the victim had been hit by a train.

  The thing about skulls is that they’re really thick. It takes a lot of force to even fracture them. Most people, when they died, however violently, their skull remained intact, so no matter how mangled the rest of their bodies might be, they still looked human, just dead human. But when a skull cracks, and breaks, and fully gives way, the result is a stomach-turning mixture of blood, brains, and distended facial features that will haunt the dreams of even the most hardened street cop.

  And Brunelle was no hardened street cop.

  “Holy shit,” he exhaled as he and Emory reached the body, sprawled only a few feet to the side of the railroad tracks beneath the clock tower of Seattle’s iconic King Street Station. The gore was cordoned off from the city’s touristy bits by a perimeter of yellow crime scene tape. Deep shadows made the corpse’s collapsed face even more gruesome in the increasing half-light of the fading day. “What the hell happened?”

  But apparently, Brunelle wasn’t the only one asking the questions. Not yet anyway. He might have to wait to get the case into a courtroom before that could happen. First, there was a surprisingly aggressive Seattle Police detective to deal with.

  “Hey! Who are you?” the detective demanded. He stormed over from where he’d been talking with a couple of uniformed patrol officers near the stairs up to the platform. He was average height, but stocky, with a thick brown mustache and thinning brown hair. He had a badge and gun on his waist too. “How did you get down here?”

  Brunelle reached for the I.D. in his wallet. “I’m Dave Brunelle. I’m a homicide prosecutor with the King County Prosecutor’s Office. I got called out to the scene.”


  The Seattle detective frowned at Brunelle’s I.D. card, then threw a sharp nod at Emory. “Who’s she?”

  “Why don’t you ask me yourself?” Emory suggested. She jerked a thumb at Brunelle. “He’s not my handler.”

  The man’s eyes narrowed. “Fine.” He crossed his thick arms. “Who are you?”

  Emory pulled back the edge of her coat to reveal her own badge. “Detective Casey Emory, Bellevue P.D.”

  “Bellevue?” the Seattle detective sneered. “Oh, honey. You’re a long way from Bellevue.”

  “Thanks for the geography lesson, honey,” Emory returned. “And who might you be, sweetums?”

  As much as Brunelle liked a good argument, he preferred to be part of it, not next to it. “Right, sorry,” he jumped in. “What’s your name again, detective? I don’t think we’ve met before.”

  The Seattle lawman set his jaw and glared at Emory for a few seconds before answering. “Goodman. Detective Jim Goodman.”

  “Nice to meet you, Jim.” Brunelle extended a hand to shake. “Are you new to homicides?”

  “Uh, yeah,” Goodman answered slowly, taking Brunelle’s hand, but still glaring at Emory out of the corner of his eye. “There was an opening when Detective Chen went down. Some jackass led him into an ambush and he took a bullet.”

  “Ah.” Brunelle knew that jackass. “So, it’s temporary?” he asked. “Until Chen comes back?”

  “If Chen comes back.” Goodman shook his head. “A lot of guys don’t come back from something like that.”

  Brunelle frowned and decided to change the subject. He nodded at the twisted remains at their feet. “This guy’s definitely not coming back from whatever happened to him. You sure he didn’t get hit by a train? He looks like he’s homeless. Maybe he fell asleep on the tracks.”

  “Only way he got hit by a train,” Goodman said, “was if the train was wearing size thirteen boots. He’s got boot prints all over his face and scalp. No, somebody stomped his head in. All the way in.”

  “Why would someone do that to a random homeless man on the railroad tracks?” Emory wondered aloud.

  “I don’t know,” Goodman answered, without the ‘honey’ this time. “But it’s that kind of crazy shit that keeps us all employed.”

  Brunelle had to nod at the observation.

  "Detective!" shouted one of the patrol officers. He gestured for Goodman to come over to him.

  "I'll be right back," Goodman said. "Don't touch anything."

  "Why would—?" Emory started, but stopped herself and shook her head. "That guy is a jerk," she declared at Goodman's retreating figure.

  "He doesn't seem to like you very much," Brunelle agreed. "Maybe because you're from Bellevue?"

  "Maybe,” Emory answered. “Or maybe because I'm a woman. Or maybe because I'm Black. Probably all three."

  "Could be," Brunelle responded. "Although that doesn’t explain why he doesn’t seem to like me either."

  "Oh, that's easy," Emory laughed. "You're a lawyer."

  Brunelle frowned, but had to laugh a little too. He turned his attention to their murder victim. "Somebody sure didn’t like this guy either. Whoever did this was somebody he knew."

  "Why do you think that?" Emory asked.

  "You'd have to be out of your mind with rage to smash somebody's head in like that," Brunelle opined. "It's hard to get that angry at someone you don't know."

  Emory cocked her head and frowned. "I’m not so sure about that. People are capable of a lot of hate."

  Brunelle regarded the dead man again. He was definitely homeless. The telltale cart full of belongings wasn't in sight, but was undoubtedly close by. Nevertheless, his layers of dirty clothing and matted gray beard identified him as someone who lived on the streets. “Residentially unstable,” Brunelle recalled aloud. “Isn’t that the latest euphemism for homeless?”

  Emory shrugged. “I don’t think it matters what we call them. This is what happens to them.”

  Brunelle looked again at the man’s collapsed head. He wasn’t sure that was exactly true—not for all of them anyway—but before he could voice his disagreement, Goodman returned.

  “We caught a break,” he announced. “Someone was with the killer when he stomped the old man’s head in. A friend of his or something. He just called 911 to report the murder. Told the operator he knew he’d be charged with murder too if he didn’t report it within twenty-four hours.”

  “Uh, that’s not accurate,” Brunelle responded. You couldn’t help a murderer hide, but the law didn’t require you to turn him in either.

  “I know,” Goodman said. “But this guy doesn’t. So, do me a favor and don’t educate him. At least not until we’re done talking to him.”

  “I can observe, then?” Brunelle asked. “I want to know what kind of witness he’ll be. See if I can build a case on him.”

  “Fine.” Goodman sighed. “But like I said, no legal advice. Just shut up and watch.”

  Brunelle really did want to get along with Goodman, especially if they were going to be doing a case together, so he chose to ignore the ‘shut up.’ “Right. Understood.”

  Goodman frowned, apparently unconvinced, but he shrugged. “Sure. Whatever.” Then he nodded toward Emory. “I think there’s coffee in the observation room, so your girlfriend can come too, if you want. The more the merrier.” And he turned to make his way back to the precinct.

  Emory turned to Brunelle. “Girlfriend?”

  But Brunelle, still feeling that drink he’d had, latched on to a different word. “Coffee?”

  CHAPTER 2

  It was only a few blocks from King Street Station to the main downtown precinct of Seattle P.D. Emory drove again but not just because Brunelle was still buzzed; it was her car. Plus, she was a cop and cops were control freaks. But then again, so were prosecutors.

  Goodman met them at the entrance and led them back to the observation room where they’d watch him and another Seattle detective question whoever this witness was. They’d learned his name by that point—Kevin Langford—but they didn’t know how helpful he’d really be.

  Pretty damn helpful, as it turned out.

  “Coffee?” Brunelle asked again. This time it was an offer to Emory after he poured himself a Styrofoam cup of the brown liquid that had been sitting on the coffee machine burner when they’d arrived.

  Emory shook her head. “No, thanks. It’s almost nine o’clock at night. Who drinks coffee that late?”

  “A Seattleite?” Brunelle ventured. “Especially one who expected to fall asleep by now after a couple of non-caffeinated, but very alcoholic drinks.”

  Emory shrugged, then pointed toward the plate of glass in the wall that looked like a window to them and a mirror to the man being led into the interrogation room. “Here he is. Let’s hear what he has to say.”

  He was young and uncomfortably tall—at least 6’ 6”—with long arms and a lanky gait. Goodman directed him by the back of his arm to one of the chairs at the metal table, before taking a seat in the other one opposite him. It was just the two of them.

  “No second detective?” Brunelle wondered aloud in a whisper.

  “Probably no one wants to work with him,” Emory opined in her own hushed tone.

  “Yeah, but now he’s gonna have to be the good cop and the bad cop.”

  “Bet he’s just the bad cop,” Emory quipped.

  “Thanks for taking the time to talk with us, Kevin,” Goodman started. “We really appreciate it.”

  Kevin blinked and looked around the room. “Uh, ‘we’?” he asked. Then he pointed at the two-way mirror. At Brunelle and Emory. “Oh, somebody’s watching this?” The thought clearly made him uncomfortable. “Oh, wow. Maybe we shouldn’t—”

  “What?” Goodman interrupted. He waved dismissively at the mirror. “Oh, no, no, no. I just meant ‘we’ like ‘all of us cops’, you know? Everyone working on the case. I’m the lead detective, of course, but there’s a lot of people behind the scenes.”

&nbs
p; Kevin looked again at the two-way glass. “Behind the scenes?”

  “Look, why don’t we just get right to it?” Goodman tried to press on. “You called 911 because you have information about the murder of the homeless man down by the train station, right?”

  “Well, yeah,” Kevin said, slowly pulling his focus away from the two-way mirror. “I mean, I called because I didn’t want to get charged too. If you witness a murder, you have to report it within twenty-four hours, right? Or you get charged too?”

  “Uh, sure.” Goodman shrugged. “So, what did you see? What happened?”

  Kevin blinked again and shifted in his chair. “Uh, look, I don’t really want to be the one who gets Justin in trouble…”

  “Justin,” Goodman repeated. “Justin who?”

  “Uh, Pollard,” Kevin answered. “Justin Pollard. But look, uh, he’s a friend of mine, and I just….”

  “Justin Pollard,” Goodman said the name again, with an entirely not imperceptible glance at the mirror where absolutely no one—other than the prosecutor and another detective—were watching Kevin snitch out his friend. “Do you know his birth date?”

  “His birthday?” Kevin questioned.

  “Birth date,” Goodman clarified. “I need the year too.”

  “Uh, his birthday is in March,” Kevin answered. “I’m, uh, I’m not sure what year. He’s like twenty-two, I think.”

  “Okay, okay, good enough, I guess.” Another poorly hidden glance at the mirror.

  “Does he expect us to run him or something?” Emory asked.

  “I forgot my office computer at my office,” Brunelle said.

  “Yeah, mine’s in Bellevue,” Emory pointed out. “I assume Seattle P.D. has somebody for that.”

  Brunelle sighed. “I’ll see if there’s a patrol guy in the hall. He said March, right?”

  “Sure.” Emory shrugged. “Unless it isn’t.”

  “Right,” Brunelle nodded. Then he opened the door and flagged down a passing patrol officer. Brunelle provided what info he had—first and last name, birth month, approximate birth year—and asked the officer to try to find a criminal history or driving record and a last known address. Then he returned to the window/mirror. “What did I miss?”