Diminished Capacity

by Stephen Penner

  “But, of course, you already know that,” Harold said to Duncan as they all took a seat around the large conference table Duncan had in his spacious office. “I’m sure Mr. Brunelle has briefed you on every facet of his prosecution of my son. Or at least the parts that help his side.”

  “Our side,” Duncan corrected. “And I believe he’s told me everything on both sides. I’m aware of the mental health concern regarding your son.”

  “Then you’re aware that my son cannot be held responsible for his actions,” Harold asserted. “And you’re aware that Mr. Brunelle insists on prosecuting my son anyway, regardless of his legal and ethical obligations.”

  Duncan looked at Brunelle to respond.

  “Ms. Dunn filed a notice of a diminished capacity defense,” Brunelle reported. “I disagree with her legal analysis as to the import of the alleged mental disorder.”

  Duncan raised an eyebrow. “Ms. Dunn?”

  Brunelle had left out that little detail in their pre-meeting briefing. “Yes. Robyn Dunn. She’s the defense attorney.”

  “Ah.” Duncan nodded, half to himself. “I’m aware of her.”

  “Then you’ll also be aware that she is a tenacious litigator and dedicated advocate,” Harold said. “She’s the perfect attorney for this case.”

  Brunelle had his own thoughts about that. Luckily, Duncan returned to the merits of the case instead.

  “Dave,” he asked, “have you considered the mental health defense raised by Ms. Dunn?”

  “Yes,” Brunelle answered.

  “And have you considered other mitigating factors, such as the defendant’s lack of criminal history or any provocation by the victim?”

  “Yes,” Brunelle repeated.

  “And have you made what you consider to be a fair offer for resolution of the case?”

  “No,” Brunelle answered, a bit to Duncan’s obvious surprise. But then he explained. “Before I could make any offer, Ms. Dunn informed me that she wasn’t interested in plea bargaining the case. She specifically stated she wouldn’t accept a reduction to manslaughter and would settle for nothing less than an outright dismissal.”

  Duncan thought for a moment. “Do you think the case should be dismissed?”

  “I think,” Brunelle replied, “that if she wants a dismissal, she’ll need to get it from the judge, or an acquittal from the jury. But she’s not getting it from me. I saw the victim that night with my own eyes. I have no doubt this was premeditated, intentional murder.”

  Duncan nodded and turned back to Harold Pollard. “I can’t ask for more than that from my prosecutors, Mr. Pollard. Perhaps you should speak with Ms. Dunn again and see whether she might be more reasonable about a possible resolution to the case.”

  “The case should be dismissed,” Harold asserted.

  Duncan glanced to Brunelle and back. “We disagree.”

  Harold didn’t offer any response for several moments. Gears were turning behind his eyes, and by the looks of it, they were turning pretty fast. Finally, he said, “I’d hoped for more from you, Mr. Duncan.”

  “I’m sorry to disappoint,” Duncan replied. “Truly. I understand this isn’t easy for you either. One man is dead. Another, your son, is looking at spending most of his life in prison. There are no winners here.”

  A smile crept into the corner of Harold’s mouth. “Not yet.”

  Then he stood to take his leave. Duncan and Brunelle followed suit and after another round of polite but cold handshakes, the receptionist came to fetch Mr. Pollard from the boss’s office.

  Duncan closed the office door behind them, then spun to face Brunelle. “The defense attorney is Robyn Dunn?”

  “Uh, yeah,” Brunelle admitted. “Do you know her?”

  “Oh, I know her,” Duncan answered. “And I know you.”

  “Is there a problem?” Brunelle asked, not sure he really wanted to hear the answer.

  But Duncan smiled and shook his head slightly. “Come on, Dave. I didn’t get to be the boss by not knowing what’s going on in my own office. I can’t know everything, but I know you. And I know about you and her.”

  “Look,” Brunelle raised his hands, “that was a long time ago. It’s ancient history. It’s not even history. It was like a moment in time. An ancient moment in time.”

  “So, there’s nothing between you two any more?” Duncan pressed.

  “Nothing,” Brunelle assured.

  “Are you sure?”

  Brunelle thought for a moment. He wanted his answer to be true. “Yes. I’m sure.”

  CHAPTER 13

  “Oh, my God, Dave,” Casey gasped. “You’re so good!”

  Brunelle grinned up at her. “It’s all in the wrist.”

  He took a step forward and released the ball up the Skee-Ball ramp. The heavy sphere struck the bumper and jumped directly into the top center hole. “Another thousand points!” he announced triumphantly.

  In the old days, paper tickets would have spit out of a dispenser, next to the coin slot. But it was the new days, so the electronic card reader flashed and displayed the number of credits he’d won for another high score game.

  “If I keep this up,” he said, “I’ll get enough tickets to trade in for something cool. Maybe I can get you one of those plastic whistle rings.”

  “Whoa, whoa.” Casey held up her hands and laughed. “Don’t you think it’s a little early in our relationship to be talking about plastic whistle rings?”

  “You’re right,” Brunelle nodded seriously. “Plastic whistle rings are more of a third date thing. Maybe the candy necklace?”

  “Nice.” Casey nodded. “Still jewelry, but less pressure.”

  “Plus it’s edible,” Brunelle added.

  “Always a plus,” Casey agreed. Then she looked around. “So, what made you think of an arcade for our second date?”

  Brunelle shrugged. “I don’t know. I was looking for something fun in Bellevue. This popped up when I did a search. Not every city has a high-end arcade and bowling alley in the middle of its luxury shopping center. It seemed a little different.”

  Casey laughed. “For you maybe. I’m here every weekend.” She pointed at the entrance to that luxury mall. “There are a bunch of nightclubs all through these buildings, filled with twenty-somethings looking for a rich spouse and forty-somethings on round two of doing the same thing. Hormones, alcohol, and money can bring out the worst in people. More often than not, somebody’s getting assaulted before last call.”

  “Beats getting your head stomped in before dinner, I suppose,” Brunelle observed.

  “I suppose,” Casey had to agree. “Speaking of which, how’s the case going?”

  Brunelle swiped his card through the Skee-Ball machine’s card reader to claim his tickets, then started walking toward the prize redemption counter. “Well enough, I guess. The defense attorney has raised this mental health defense. Intermittent explosive disorder. She’s claiming it absolves him of responsibility for the crime.”

  “Intermittent explosive disorder?” Casey half-laughed. “Sounds more like it confirms his guilt.”

  “I know, right?” Brunelle agreed.

  “Are they going to call a psychiatrist to say he’s not guilty?” Casey asked.

  “Psychologist,” Brunelle corrected. “And yeah. At least I think so.”

  “You think so?” Casey questioned as they reached the prize counter. “What does that mean?”

  “The defense attorney told the expert not to write a report,” Brunelle explained. “So, I won’t know exactly what he’s going to say until he actually says it at trial.”

  “That hardly seems fair,” Casey opined. “What are you going to do about it?”

  Brunelle handed his ticket card to the teenager working behind the counter, and pointed at the candy necklaces. “I’m going to force her to give it up.”

  Which wasn’t how he meant to say it.

  CHAPTER 14

  “Mr. Brunelle.” Judge Whitaker looked down at the
m again from the bench. In addition to all of the arraignments and guilty pleas, she also handled the miscellaneous non-testimonial criminal motions. A Janet-of-all-trades, at least for that rotation. “This is the State’s motion. You go first.”

  Brunelle stood up and nodded to the judge. “Thank you, Your Honor.”

  Carlisle remained seated as Brunelle began his argument. Robyn sat in silence at the other table, Pollard sitting next to her, still in his jail clothes. Daddy hadn’t come up with the funds quite yet to free his little boy. Or he was using it for other things, like lawyers and experts.

  “The State,” Brunelle began, “is moving the Court for an order compelling the defense to disclose any and all documentation of the defense expert, uh,” he paused to look down at the name of the expert again, “Dr. Nicholas Sanchez, Ph.D., as it pertains to her examination of the defendant.”

  He gestured toward the defense table, but avoided direct eye contact with either of its occupants. “The defense put this issue in play when they filed their Notice of Mental Health Defense, claiming diminished capacity for an alleged mental illness called intermittent explosive disorder. Obviously, such a defense will require the testimony of an expert in psychology, and although Ms. Dunn timely provided the State with the name of that expert, she has steadfastly refused to provide the State with any of Dr. Sanchez’s reports, notes, or other documentation, whether written, digital, photographic, or otherwise.”

  The courtroom wasn’t one of the large trial courtrooms, empty save whatever litigants were then before the judge. This wasn’t the trial; it was just a preliminary motion. And not even a dispositive one, like a motion to dismiss the drug charges because of a bad warrant, or to suppress the confession because of bad Miranda warnings. It was a discovery motion. Lawyers bickering over which pieces of paper had to be exchanged in preparation for those other, more significant hearings. So, this type of motion was scheduled in the catchall criminal motions calendar, presided over by a judge on six-month criminal motions rotation, with dozens of motions scheduled every day, and the courtroom filled with dozens of other prosecutors and defense attorneys waiting their turn to complain about some preliminary matter that didn’t really matter, or it would be in a different courtroom.

  Except it did matter. To Brunelle, at least. He had a job to do, and he intended to do it well. He picked his court rules up off the table and opened to the page he’d bookmarked with a sticky note before the hearing.

  “Criminal rule 4.7(g) clearly states that ‘the court may require the defendant to disclose any reports or results, or testimony relative thereto, of physical or mental examinations,” he emphasized, “or of scientific tests, experiments or comparisons, or any other reports or statements of experts which the defendant intends to use at a hearing or trial.’”

  He set the rule book down and continued his argument. “Ms. Dunn went to the trouble of filing a formal written ‘Notice of Mental Health Defense.’ She then endorsed this Dr. Sanchez as a witness for the trial. I’m not sure how much clearer it could be that she intends to use Dr. Sanchez’s report at the trial. That being the case, the State is entitled to a copy of the report, well in advance of trial. That’s what the court rule says.

  “And that only makes sense,” Brunelle went on. “The Court should stop and take a moment to consider the policy behind the court rule. Expert opinions are different from the factual testimony of an eyewitness. Expert opinions are based on training and experience and scientific theories that other people may not understand as well. That’s why they’re experts. In order to properly prepare to rebut whatever assertions Dr. Sanchez might make on the stand, I need to know in advance what those assertions are, and perhaps more importantly, I need to know what they’re based on. That way, I can consult my own expert and see if they agree. If they do, fine. But if they don’t, then I may want to call my own expert to give a different opinion. But that takes time. You can’t just have a psychologist on call for any time you might need to respond to some specious argument made by some other psychologist who supplements his income by testifying for defendants in criminal cases.”

  He took a moment to collect his thoughts, then concluded, “The court rule requires disclosure. The policy reasoning behind the court rule supports disclosure. The Court should grant the State’s motion for disclosure of any and all reports of the defense expert, Dr. Nicholas Sanchez. Thank you.”

  Judge Whitaker nodded, although it was no more than an acknowledgement of the argument being over. She turned to Robyn. “Response?”

  Robyn, too, stood to address the Court. “If only it were as simple as the prosecutor makes it out to be,” she began. “But then again, that’s what prosecutors do. They make it all sound so simple and obvious. Trust us and don’t be distracted by silly, complicated things like the presumption of innocence, or proof beyond a reasonable doubt, or the actual words of a court rule. “

  Wow, Brunelle thought. No need to make it so personal. Or so general. Not all prosecutors were like that. And Brunelle certainly wasn’t. …Was he?

  “If Your Honor looks at the language of the rule,” Robyn continued, “the actual language of the rule, you will see that disclosure of expert reports is discretionary. The two most important words on that entire rule are ‘may’ and ‘report.’ Because, even if there is a report, the Court doesn’t have to order its disclosure. And second, there needs to be a report to disclose. In this case, Dr. Sanchez has prepared no such report, so there is nothing to disclose.”

  “Why would he not prepare a report?” Judge Whitaker inquired. “Wouldn’t you want a copy of his findings?”

  “I know his findings, Your Honor,” Robyn replied. “And I notified the prosecution of that as soon as I was retained. Mr. Pollard suffers from intermittent explosive disorder and is therefore not responsible for his actions while under the effects of an episode.”

  “Episode,” Brunelle whispered derisively to himself.

  Robyn threw a disappointed glance at him, but continued her argument. “There was and is no need for a written report.”

  “Did you tell him not to write a report?” the judge asked. “Specifically to avoid disclosure to the prosecutor under this rule?”

  “Well, Your Honor, if I did,” Robyn replied, “that would only be good advocacy on behalf of my client. And I will never apologize for that.”

  Whitaker sighed and managed to stifle most of an eye roll. “So, there’s no report?”

  “There is no report,” Robyn confirmed.

  “But you’re planning on calling him as a witness at trial?”

  “He will be the defense’s main witness, Your Honor, Robyn confirmed. “Yes.”

  Another sigh. Whitaker looked over to Brunelle again. “Any reply before I rule?”

  Brunelle stood again to address the Court. “Yes, Your Honor. I have trouble believing there are absolutely no written materials regarding Dr. Sanchez’s examination of the defendant. There should at least be notes, perhaps taken during his interviews or whatever he did to come to the preposterous conclusion that the defendant isn’t legally responsible for literally stomping in the head of another human being.”

  “There are no written materials whatsoever,” Robyn interjected. “At my direction.”

  This time it was Brunelle who sighed. “Well, I’m still entitled to a summary of any oral statements of any witness the defense intends to call, expert or not.”

  “Actually,” Robyn interjected again, “the rule says ‘the substance of any oral statements.’ I don’t have to prepare a written summary. And I already gave you the substance: my client is innocent.”

  “Okay, that’s enough!” the judge interrupted. “I won’t have the two of you bickering like an old married couple. There is a procedure for motion hearings. The moving party goes first, the responding party goes second, and the moving party gets a brief reply. That’s it. Then I rule. No interruptions, no side comments. I expect you to act like professionals, not teenagers.”
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br />   Brunelle lowered his eyes. “Sorry, Your Honor.”

  “My apologies as well,” Robyn added.

  “I’ve heard all the argument I need from you two,” Whitaker told them. “I’m going to take a ten-minute recess to review my notes, then I will be back on the bench to deliver my ruling. Court is at recess.”

  The bailiff banged the gavel and everyone who wasn’t already standing stood up for the judge’s departure.

  Brunelle was going to check in with Carlisle, but before he could, Robyn tapped him on the shoulder. “Could I speak to you for a moment? In private?”

  Brunelle looked over to Carlisle, who gave her assent with a combination of head nod and eye roll.

  Robyn led the way out of the courtroom and into the hallway, but it was the main hallway for several of the courthouse’s busiest courtrooms. It teemed with defendants, friends of defendants, and lawyers. No place for a quiet talk.

  But where there were defendants and lawyers, there were also conference rooms. Specifically, at the end of the hallway, there was a row of small, closet-like consultation rooms, reserved for private attorney-client conversations. Or, in this case, attorney-attorney conversations. Robyn marched toward the last of them and opened the door for Brunelle to enter first. He ducked in and she quickly closed the door behind them.

  Brunelle turned back toward her. “So, what do you—?”

  His question was muffled by Robyn pulling his head down and planting a hard, deep kiss on his mouth.

  Brunelle froze. He didn’t kiss back, but he didn’t push her away either. After several seconds, and a thousand emotions, Robyn pulled away. “God, you’re hot in court,” she gasped. “I had to stand up to argue just so I wouldn’t leave a wet spot on the chair.”

  Brunelle could hardly think. “You—You always stand to address a judge,” he stammered.

  Robyn laughed. “God, you’re adorable.” Then she gathered herself up and nodded. “Right. Okay. Well, I got what I needed. Shall we go get our ruling?”

  “Uh…” Brunelle managed to utter as Robyn opened the door and stepped back into the hallway. But she wasn’t listening anyway.