Diminished Capacity

by Stephen Penner

  He wiped her lipstick off his mouth with the back of his hand and followed after her, grateful he didn’t wear those tight, ‘slim-fit’ suits the younger men in the office were partial to. He had no idea what had just happened. He was pretty sure of that. The one thing he didn’t know was that there were security cameras in each of those consultation rooms, just like everywhere else in the courthouse.

  When he got back to the courtroom, Carlisle gave him a quizzical look. “You okay?” she asked.

  “Yeah,” Brunelle assured. “All good.”

  Carlisle cocked her head and squinted at his collar. “Is that lipstick?”

  “What?” Brunelle nearly shrieked, reaching up to cover his collar.

  “Wow,” Carlisle laughed. “I was joking. But, oh my God, relax, Brunelle.”

  Brunelle dropped his arms to his sides again, and dared not to look over at Robyn, who was undoubtedly laughing, at least on the inside, and likely a little on the outside as well. He was about to say something, anything, to change the subject, when the bailiff did it for him.

  “All rise!” followed quickly by the judge’s countermanding order, “Be seated.”

  The attorneys did as they were told and awaited the ruling. In the classic tradition, she split the baby. Only neither side was about to jump up and abandon their case for the greater good. “Ms. Dunn has asserted, as an officer of the court, that there are no written materials of any kind produced by Dr. Sanchez in relation to this case. I will accept Ms. Dunn’s word and therefore deny the State’s motion to compel discovery of such documentation, primarily on the grounds that it does not exist.”

  Robyn smiled slyly at Brunelle, who couldn’t help but look over at the woman who had just kissed him. His lips were still tingling.

  “However,” Judge Whitaker continued, “Mr. Brunelle is entitled to know the substance of any oral statements of Dr. Sanchez. I disagree that simple notice of a particular mental health defense is sufficient discovery. Accordingly, I am ordering that the defense make Dr. Sanchez available for an interview by the prosecution team, and that such interview take place within the next two weeks.”

  Another bang of the gavel and Judge Whitaker called out for the next case. They were done.

  Brunelle stepped back and looked askance at Carlisle. “Who won?”

  But it was Robyn who answered, coming up from behind him and patting his arm even as the corrections officers took her client away. “I did, Dave. I did.”

  CHAPTER 15

  Casey arched her back, grabbed the back of Brunelle’s head, and pushed herself deeper into his mouth as she let out a deep moan and a sharp cry. Brunelle held himself there, savoring her taste and waiting for the grip on the back of his head to release as the last waves washed over his lover. When she finally let go, she dropped her arms to her sides and melted into the sheets, heart pounding and skin glistening. Brunelle kissed her stomach, then pushed himself up and dropped down next to her. He kissed her again on the shoulder and stroked her cheek with the back of his hand.

  “Excellent technique,” she panted after a moment. “Nine-point-zero.”

  Brunelle kissed her shoulder again. “Only a nine? No tens?”

  “Well, like I said,” she turned onto her side and faced him, their noses almost touching, “excellent technique. But I have to admit, there was something lacking.”

  Not what any man wanted to hear after sex. “Lacking?”

  “Oh, don’t get me wrong.” She rubbed his chest reassuringly. “I liked it. Obviously.” She chuckled. “But it seemed like you were auditioning. Focused on the execution, not the person. Not me.”

  Brunelle was stung. “I—I’m not sure about that…”

  “Don’t overreact, Dave,” Casey put a finger over his lips. She pushed him onto his back and laid her head on his chest, her soft curls tucking warmly under his chin. “I’m being honest. I’m telling you I want more. I deserve more.”

  Brunelle didn’t know what to say.

  “And you know what?” she asked him, her fingers tracing swirls on his chest.

  “What?”

  She pushed herself up onto one elbow and looked him in the eye. “So do you.”

  CHAPTER 16

  “This guy is a dick.”

  Carlisle whispered her opinion to Brunelle, but not quietly enough to prevent Robyn or Dr. Sanchez from hearing it. Which, Brunelle felt comfortable concluding, was probably intentional.

  But he could hardly disagree. They were twenty minutes into the interview and they’d barely gotten the good doctor to admit his own name, let alone anything regarding Justin Pollard.

  “Look.” Brunelle leaned forward onto the table that separated him and Carlisle from Robyn and Sanchez. “Let’s just cut to the chase. You’re going to say the defendant suffers from intermittent explosive disorder, right?”

  “I don’t like the term ‘suffer’, Mr. Brunelle,” Sanchez avoided the question again.

  Brunelle pinched the bridge of his nose and exhaled, long and loud. He looked at Sanchez again. “I’ll make this as basic as possible. Justin Pollard. Intermittent explosive disorder. Yes?”

  Sanchez frowned slightly. “Is that a question?”

  Brunelle blinked at the doctor, then turned to Robyn. “This isn’t working. If your expert doesn’t start answering our questions, I’ll go back to the judge and get an order for a deposition. Then he can answer under oath or be held in contempt of court. You want a minute to talk to him?”

  Robyn’s rigid expression didn’t change. “I’ve already talked to him, Dave. If you can’t figure out how to extract information from a witness, that sounds like a you problem. If you want to run and cry to the judge like a little bitch, then go ahead.”

  Brunelle was taken aback by the response. Especially the ‘little bitch’ part.

  “Fine. We can just cross him on it at trial,” Carlisle intervened. “Let the jury know he refused to talk to us. It’ll just prove he’s a hired gun who will say anything Daddy Pollard pays him to say.”

  Brunelle thought for a moment. “Okay, I guess that will work for me.” He leveled a glare at Robyn. “Will that work for you, Ms. Dunn?”

  “You do whatever you want, Dave,” she replied. “That’s what you always do anyway. That’s who you are.”

  “Oh, really?” Brunelle shot back. “’Cause that sounds a lot more like you, if I recall correctly.”

  “You don’t,” Robyn answered. “Your memory must be going. That happens when you get older.”

  “I can remember what happened a week ago,” Brunelle snarled. “And I can remember who just did whatever she wanted to.”

  “Uh, what are you talking about?” Carlisle interrupted.

  “Nothing,” Brunelle gruffed. He stood up. “Fine. The interview is over. You can explain to the judge why you wouldn’t let us interview your expert. The jury isn’t going to be impressed either. You’re so confident in your defense that you wouldn’t even let your expert try to justify it.”

  Robyn stood up too and glared at him across the table. “Oh, he’ll justify it, Dave. In the courtroom, to the jury, and you’ll just have to sit there and take it.”

  Brunelle almost came back at her with a memory of Robyn lying there and taking it, but he stopped himself. That’s what she wanted. And he had to stop always giving her what she wanted.

  “We’re done,” he said. “Let’s go.”

  He stormed out of the conference room, through the lobby of Robyn’s office, and straight to the elevator bank on the other side of the floor.

  Carlisle followed right behind. “That went well,” she said sarcastically as she reached the elevators.

  But Brunelle smiled. “Yeah,” he said earnestly. “That was pretty much perfect.”

  CHAPTER 17

  Next stop on the Crazytown Express was Western State Hospital. Western State was one of Washington State’s two publicly-funded mental hospitals, the other being, predictably, Eastern State Hospital, on the eastern side
of the Cascade Mountains that divided coastal cities like Seattle from inland cities like Spokane. Western State was in a city called Lakewood, a suburb of Tacoma, which was about thirty miles south of Seattle.

  Only thirty miles, but well over an hour in Seattle traffic. By the time Brunelle and Carlisle arrived, they were ten minutes late for their meeting with Dr. Sigrid Belden, Psy.D., staff psychologist and, if all went well, soon-to-be expert witness for the prosecution.

  “Hi. Sorry we’re late,” Brunelle extended his hand as they entered Dr. Belden’s office. “Thanks for taking the time to meet with us.”

  “Thank you for agreeing to meet down here,” Dr. Belden returned. “It can be hard to get away from the hospital. We’re underfunded and understaffed, hours are long and morale is low, we’re operating under a federal court order with multiple lawsuits pending, and we can barely keep up our accreditation. Hopefully, there won’t be any emergencies while you’re here.”

  “Wow.” Brunelle knew it was bad—lack of funding for mental health services was pretty well known in criminal law circles, but it was tangential to their work, as long as there were enough prison beds—but he didn’t realize it was quite that bad. “Are you sure you have the time right now?” Kind of a lame question after a long drive and after they’d all sat down, but it seemed polite.

  “It’s not going to be any better tomorrow,” Belden laughed. “Mental illness can be very treatment intensive—a lot of work for minimal results. There are plenty of people who respond very well to treatment and medication, but our population here,” she gestured generally at the entire facility, “tend to be harder to help. You have to have a pretty thick skin to work in a place like this. Those of us who stay are just the ones with the thickest skin.”

  “And biggest hearts,” Brunelle offered.

  Belden gave him a crooked smile. “Don’t try to flatter me, counselor. I know you’re a lawyer. You’ll say whatever you think will get you what you want.”

  “Well, we’re prosecutors,” Brunelle defended.

  “Am I wrong?” Belden challenged.

  Brunelle thought for a moment. “I hope so.”

  “It’s complicated,” Carlisle offered her own opinion. “Lots of gray.”

  “Kind of like psychology,” Belden replied. “But that’s why you’re here, isn’t it? To get my opinion on one of your cases, and see if it’s the same as the defendant’s expert.”

  “Exactly,” Brunelle confirmed. “Have you had a chance to review the materials we sent you?”

  “Of course,” Dr. Belden answered. “There wasn’t very much.”

  “That’s part of the problem,” Carlisle said. “The defense expert refuses to write a report and the defendant has no prior history of involuntary commitments. All we have is the police report.”

  “And the notice of the diminished capacity defense,” Brunelle put in. “But that was written by his attorney, so it has limited value. Lawyers will say anything to get what they want, right?”

  Belden smiled at her own words returning to her. “Well, it’s not completely worthless. It lets me know what mental disorder they’re asserting, and so I was able to review the police reports with that in mind to see if there was anything there to support it.”

  “And is there?”

  “Oh, heck yes.” Belden nodded. “Absolutely.”

  Brunelle lost whatever smile he might have been wearing. “What happened to lots of gray?”

  Dr. Belden’s own smile broadened. “Well, that may be working against you, Mr. Brunelle. Mental disorders can present very differently from individual to individual. That’s why the criteria for diagnoses are flexible. It’s not like every case of intermittent explosive disorder will present every one of the diagnostic criteria. That being said, Mr. Pollard seems to fit the diagnosis quite well. I’d like more information to know for sure, of course, but I can’t say Dr. Sanchez’s opinion is clearly wrong.”

  “Are you sure?” Carlisle asked. “That’s kind of exactly what we want you to say.”

  Dr. Belden laughed again. She was very affable. A jury would love her. Too bad she was talking her way out of being a witness. “I know,” she said. “But I can’t. Here, look.”

  She slid her copy of the DSM-5 over from its spot on the corner of her desk. “Intermittent explosive disorder,” she read from the well-known page 466. “Outbursts not premeditated, but rather impulsive and/or anger-based? Check. Magnitude of aggressiveness grossly out of proportion to the provocation? Check. Outbursts associated with financial or legal consequences? Well, obviously. The only thing I don’t have here is three outbursts within a twelve-month period.”

  “You’ve got one.” Carlisle pointed at the police reports.

  “Two,” Brunelle added. “He lost it at the arraignment.”

  “Well, there you are,” Belden said. “He’s just one prison riot away from a perfect diagnosis.”

  “Maybe we should release him pending trial after all,” Carlisle joked. “Avoid that prison riot.”

  Brunelle frowned. “So, if we call you as a witness, you’ll say he has intermittent explosive disorder, too?”

  “I won’t say he doesn’t,” Belden answered.

  “Well, fuck,” Carlisle said.

  “Yep,” Belden agreed.

  CHAPTER 18

  Insanity, they say, is doing the same thing over and over and expecting a different result. Diminished capacity, apparently, was going to the same judge over and over and hoping for a different ruling.

  Same docket. Same judge. Same prosecutors and defense attorneys, milling about behind the bulletproof glass that separated the front of the secure courtroom from the public gallery, filled with family and the few felony defendants who’d managed to post bail but had to come back to court for whatever motion their attorney had noted up.

  The corrections officers by the secure door to the holding cells were probably the same too. That day it was Johnson and Ramirez, two of the dozen or so Brunelle had gotten to know over the years. But once court was in session, the C.O.s tended to blend into the background, so Brunelle couldn’t say for sure which ones had been in court the last time he’d tried to get the judge to force Robyn to turn over information on her expert.

  Speaking of Robyn, she was late. The hearing was set for 9:00 a.m., but it was one of many scheduled for that exact same time, so the judge would take them in the order of matched pairs. That is, the first case where both lawyers were present got to go first, then the next, and so on. So, when Robyn finally showed up at 9:20, they were stuck behind a motion to reduce bail, a motion to release medical records, and a restitution hearing. By the time the officers brought Pollard out, the front of the courtroom felt like a crowded elevator, with the last of the lawyers having arrived and first of the lawyers still lingering.

  “Thanks for your punctuality,” Brunelle teased under his breath as he and Robyn finally approached the bench to argue their motion, standing at the bar, directly in front of the bailiff and the court reporter. Carlisle wasn’t there. She had a scheduling conflict with a hearing on one of her other cases, but given that this was a motion to reconsider a motion they’d already argued once, they agreed even Brunelle could handle it alone. And anyway, Brunelle was essentially just going to whine and complain that Dr. Sanchez had refused to cooperate, and he was okay not whining and complaining in front of his trial partner.

  Robyn ignored Brunelle’s jibe. He thought maybe she hadn’t heard him, but he didn’t have time to repeat himself. It was a busy calendar. Judge Whitaker wasn’t one to dally.

  “State versus Powell,” she read from the printed calendar. “State’s motion for deposition of defense expert.” She looked up to see Brunelle and Robyn before her. “Wait. Didn’t I already rule on this?”

  “Not exactly, Your Honor,” Brunelle answered. “You ordered Ms. Dunn to make Dr. Sanchez available for an interview, which she did. He just refused to answer any questions.”

  “I would disagree with t
hat assessment,” Robyn put in. She seemed tenser than usual. In addition to failing to acknowledge his earlier witty comment, her left hand was clenching the front of the bench, and her right hand was bouncing on it frenetically, a ballpoint pen laced between her fingers. Pollard seemed almost as distracted as his lawyer, his eyes wide and his head on a swivel, as he kept surveying the crowded room. Brunelle was a bit surprised. Sanchez must not be as solid a witness as Robyn was pretending, if they were that worried about Brunelle getting to actually ask him a few probing questions.

  “Your Honor,” Brunelle tried to continue, “if I could…”

  But he couldn’t. Because all hell broke loose.

  Pollard was a big guy. Not Hulk big, maybe not even Superman big, but Captain America big. Big enough that when he suddenly grabbed Officer Ramirez by the gun-belt and yanked him forward, the combination of strength and surprise threw the officer into a crowd of stunned attorneys, none of whom went to law school for the profession’s reputation for hand-to-hand combat. Ramirez crashed onto a pile of them, even as Pollard used the split second the shock of his first action gave him to grab at Officer Johnson’s holstered handgun.

  The fight was on.

  And so was the panic.

  The attorneys nearest the exits grabbed at the door handles. The door to the gallery was locked, but the door to the attorney negotiating room—The Pit—flew open and bodies spilled out of the far side of the courtroom. The public in the gallery headed for their own exit at the back of the courtroom, while the judge and her staff ducked out through their entrance at the opposite end of the room, behind the judge’s bench. That meant, by the time Pollard had successfully wrestled the gun away from Johnson, the only other people left in the courtroom were Ramirez and the three attorneys Ramirez had pinned to the ground. And Brunelle. And Robyn.