Diminished Capacity

by Stephen Penner

  Brunelle took a moment to wonder at that, his only theory being that they were the lawyers in front of the judge when it happened and it was unnatural to disengage from battle—even when the battle turned literal. But it didn’t really matter why he had stayed rooted to his spot as Pollard stole Johnson’s gun. What mattered was that he was still there when Pollard got the gun, looked around, even more wide-eyed than before, and leveled it at the seven other people in the room.

  “Well, shit,” Pollard almost laughed. “Now what?”

  CHAPTER 19

  What should have happened next was simple. Ramirez fires and kills Pollard. He was an inmate pointing a loaded gun at a room full of people. No doubt it was the right thing to do. No reason to hesitate.

  Well, there was one reason.

  Before the armed corrections officer could quite make the decision to pull the trigger and take a human life, Robyn stepped in front of Pollard, blowing up the obvious calculus.

  “Justin, stop,” she said evenly, her palms raised to him. “Not this way. I promise, you will walk out of this place, but it won’t be today, and it won’t be with a gun in your hand. Put the gun down and let me handle this. Just like we talked about. Trust me to handle this.”

  Brunelle took a moment to assess the situation. When Pollard had gotten control of the gun, everyone had frozen. He was still standing at his place at the bar. The three young lawyers Ramirez had landed on were huddled in the far corner. Johnson was off to the side, helpless to do anything but watch, and Ramirez was up on one knee, both hands holding the gun pointed squarely at Robyn’s back.

  Robyn was the key to the entire situation. The keystone. If she moved, it would all tumble down.

  “Get out of the way, ma’am!” Officer Ramirez shouted. “Step aside now!”

  If it hadn’t been such a serious situation, Brunelle would have laughed at the idea that Robyn would do something just because some man told her to. Especially if he added ‘now!’ to the end of it. But he didn’t laugh. And Robyn didn’t step aside. In fact, she adjusted her position to make sure Pollard was even more blocked from Officer Ramirez’s view, and gun. She kept her attention focused on her client.

  “Put the gun down, Justin,” she repeated. “Let’s do this my way.”

  But Pollard clearly wasn’t the type of person to do as he was told either. After all, there wasn’t a sign up that said, ‘Inmates, Do Not Steal Gun from Corrections Officer’, but it was implied.

  “I like my way better.” Pollard grinned, his eyes wide as he appraised his accomplishment. A gun in his hands and six hostages, even if one of those hostages had a handgun trained at him too. “Tell the cop to drop his gun, or I start shooting.” He looked at Brunelle. “I’ll start with the prosecutor. That makes the most sense, right?”

  It kind of did, but Brunelle decided not to voice his agreement.

  “No,” Robyn said. “That makes the least sense. If you’re going to shoot anyone, shoot me.”

  “Step aside!” Ramirez bellowed again. He had stood up into a crouch and was creeping to the side, his gun extended in front of him with two hands. Another step or two and he’d have a clear shot at Pollard. Brunelle had no problem with that, but it wouldn’t take much more than a shift of her body weight for Robyn to put herself back in the line of fire when Ramirez pulled the trigger. Let alone what might happen if Pollard noticed it and started shooting uncontrollably in the direction of everyone in the courtroom.

  “Wait!” Brunelle shouted, and for a moment everyone froze. Too bad he didn’t know what he was going to say next. He just needed everything to stop. Just for a second. So he could think. Then talk.

  That’s what he was supposed to be good at.

  Pollard didn’t seem angry. He seemed surprised at the success of his gambit. Intoxicated, even. This wasn’t intermittent explosive disorder. There was no explosion. If he hadn’t acted out of anger, then he’d acted out of calculation. And he could be reasoned with.

  “Justin,” Brunelle started, buying himself another second of thought before he had to actually say something meaningful. “It worked. You had your third outburst. The diagnosis will hold up now. The railroad tracks, the arraignment, and now. You have the best lawyer in the courthouse. Put the gun down now, and she’ll use this to walk you out the front door, no matter what I do. Mission accomplished.”

  Robyn shot daggers at him, but didn’t move from her position between two large men pointing handguns at each other.

  “But Officer Ramirez isn’t going to wait forever,” Brunelle continued. “He has more training than you and is almost certainly a better shot than you. When I finish this sentence, he’s going to make a decision, and by the time you realize what it is and how to react, you’ll have two bullets in your chest, and you’ll get rolled out of the courthouse feet first.”

  He paused. Pollard looked past Robyn at Ramirez. Ramirez looked irritated that Brunelle had called out his next step. Pollard looked worried by it. And Robyn—Brunelle couldn’t quite decipher her expression, but it seemed incongruous to the situation. Which was all the confirmation he needed. Or at least, it was all he was going to get in that split second.

  “This wasn’t the plan, was it?” Brunelle asked.

  Pollard thought for a moment, his eyes narrowing with a twitch. He looked at Robyn, then back to Brunelle. “No,” he admitted.

  Brunelle dared to exhale as Pollard’s shoulders, if not exactly slumped, then relaxed. He looked at Robyn one more time, his eyes still wide, but their expression transformed from wild to wondering. Robyn nodded to him.

  He took a deep breath, then closed his eyes and let the gun fall to the floor.

  Then Ramirez shot him anyway.

  CHAPTER 20

  “Holy shit!” Brunelle yelled, right on the heels of Robyn’s “What the fuck?!”

  She tried to get to her client, slumped in the corner, holding his gut, a pool of blood forming underneath him, but Johnson pulled her away.

  “You didn’t have to fucking shoot him!” Robyn wailed. “He wasn’t going to shoot anyone.”

  “You don’t know that, ma’am,” Ramirez responded. He holstered his gun and began the process of handcuffing the man he’d just shot in the stomach, who responded with a scream of pain. “And I wasn’t going to take the chance.”

  “He’d dropped the gun!” Robyn continued.

  “You need to step away, ma’am,” Ramirez ordered her. “Now. Or I will arrest you for obstructing a law enforcement officer.”

  Robyn didn’t step away, but she didn’t say anything either. She was clearly calculating the right thing to do. So Brunelle interrupted, lest she get the answer wrong.

  “Let’s go,” he said, grabbing her arm. “We’re in the way. Let the paramedics help your guy.”

  The indicated paramedics were rushing into the courtroom right then, along with a half dozen other corrections officers and police officers.

  Robyn yanked her arm out of Brunelle’s grasp. “Don’t touch me!”

  But she wasn’t the only one who could yell. “Now!” Ramirez repeated. He stood up to communicate the seriousness of his threat. His eyes were pretty wild at the edges too.

  “Come on, Robyn,” Brunelle softened his tone. “There’s nothing we can do right now.”

  “Maybe not,” Robyn growled. “But you can be damn sure I’m going to be doing something about it later.”

  Brunelle finally succeeded in pulling her into the attorney Pit next to the courtroom. But once he got her out of the way of the emergency personnel, the kindness evaporated from his voice. “So, that didn’t exactly go as planned, huh?”

  Robyn’s eyes flared. “What the hell are you talking about?”

  “You needed proof of three outbursts involving property damage or physical assault, right?” Brunelle asked. “You can’t get better proof than it happening in open court, with literally dozens of witnesses. So, now you have your three outbursts: the murder, the arraignment, and now this. And as
a bonus, I didn’t get my order to depose your shrink.”

  “Are you insane?” Robyn yelled back. “You think I told him to steal a corrections officer’s gun?”

  Brunelle shrugged. “I mean, you couldn’t have him go off at every court date, right? That would be constant explosive disorder. That’s just being a jerk, right? But he wasn’t supposed to get the gun, was he? I mean, I hope not. It was pretty obvious you were both surprised by that.”

  “I was surprised because I didn’t know he was going to do it,” Robyn said through gritted teeth.

  “Of course, now he’s in even more trouble,” Brunelle considered. “He’s looking at a whole bunch of new charges. Multiple counts of assault with a deadly weapon, theft of a firearm. I’m sure I can think of some more.”

  “It won’t matter,” Robyn snarled, her cheeks reddening. “Add all the charges you want. If I.E.D. gets him an acquittal on a murder charge, it’ll sure as hell get him an acquittal on what just happened in there.”

  “So, what, he’s prosecution-proof?” Brunelle asked. “He can do whatever he wants and never be held responsible? That’s ridiculous.”

  “No, Dave, that’s the law,” Robyn shot back. “I don’t write the rules, but I’m sure as hell going to use them.”

  “Even if it means setting up some crazy scenario that could have gotten a bunch of people killed?”

  “I didn’t set up any scenario, Dave!” Robyn yelled. “And by the way, you’re welcome for saving your worthless life.”

  “I don’t think you can save someone’s life,” Brunelle said, “if it was never really in danger.”

  “Oh, really?” Robyn crossed her arms. “Because if the plan wasn’t for him to actually get the gun, then when he got the gun, he was off-plan, wasn’t he?”

  Brunelle considered for a moment. “Oh.”

  “Yeah. Oh.” Robyn punched him in the chest. “God damn it, Dave. Do you really think I would do that? Do you really think I would endanger everyone in the courtroom, including you, just to bolster my defense?”

  “I think,” Brunelle answered after a moment, “you would do whatever it takes to win a case.”

  “Do you really think that?” Robyn demanded, the blood draining from her cheeks, her breath slowing.

  Brunelle took a moment to be sure of his thoughts. Then he nodded. “Yes.”

  Robyn’s eyes narrowed into angry slits. “Well, then,” she hissed. “Fine. That makes my next decision way easier.”

  CHAPTER 21

  “Motion to disqualify prosecutor David Brunelle,” Carlisle read aloud from the new pleading Robyn had just filed. “That’s a pretty specific caption.”

  “Read the first sentence,” Brunelle encouraged, his head in his hand as he sat at his desk.

  It was several days after the shooting incident in the courtroom. Pollard had been treated and was expected to make a full recovery; Ramirez’s bullet hadn’t hit anything important. Brunelle and Carlisle had met and decided to wait to file any additional charges until after the murder trial was over, so as not to complicate anything. And Robyn? Robyn was still pissed, apparently.

  “Comes now the defendant, Justin Pollard,” Carlisle read again from the document Brunelle had called her up to his office to see, “by and through his attorney of record, Robyn Dunn, and moves this Court for an order disqualifying Assistant District Attorney David Brunelle from the above-captioned case by and for the reason of….” She stopped and looked up at Brunelle. “Oh my.”

  “Yeah,” Brunelle agreed, looking up again.

  “By and for the reason of,” Carlisle continued reading, “romantic and sexual liaisons, past and present, with the defendant’s chosen attorney.”

  Carlisle tossed the pleading on Brunelle’s desk. “You fucked her?”

  “You knew that,” Brunelle reminded her. “Everyone knows that.”

  “Sure, but that was forever ago,” Carlisle replied. “But this says, ‘sexual liaisons past and present.’ Dave, are you sleeping with the enemy?”

  “No,” Brunelle insisted. “Not any more. Not on this case. Look at the exhibit.”

  Carlisle flipped to the exhibit attached to the end of the pleading: a black-and-white copy of a still photograph from the courthouse security camera in the last attorney-client meeting room at the end of the hall.

  “She kissed me,” Brunelle explained.

  “Hm.” Carlisle looked at the photo. “Well, you didn’t not kiss back. You look pretty okay with it.”

  “Really?” Brunelle threw his hands wide.

  “Not that I blame you,” Carlisle went on. “She’s hot. I mean, except for that completely fucking up our case thing. I totally blame you for that. Just not for not not kissing her back.”

  “She set me up,” Brunelle complained.

  “Well, obviously,” Carlisle agreed. “And by the way, thanks for telling me about this when it happened. You know, so I wouldn’t be blindsided by it. I’m glad we’ve reached that level of trust. Partner.”

  Nicole Richards, Brunelle’s legal assistant, appeared then and knocked on his office doorframe. “Hey, Dave. Duncan wants to see you in his office.”

  Brunelle’s stomach sank. “About what?”

  “I don’t know.” Nicole shook her head. “He didn’t say. He just asked me to interrupt you and tell you to get into his office.”

  “How can he know already?” Carlisle wondered as Nicole returned to her desk.

  “Maybe Robyn emailed him a courtesy copy,” Brunelle theorized. “This whole thing is designed to embarrass me.”

  “Is it working?” Carlisle asked with a grin.

  Brunelle let out a pained sigh. “Yes.”

  Duncan’s office was just down the hall from Brunelle’s. Brunelle knocked on the open door and walked into the office, Carlisle right behind him,

  “Dave,” Duncan greeted his visitor with a broad smile. “Oh, and Gwen. Oh, great. I didn’t know you were coming too, Gwen, but that’s alright. It’s about the case you two have together.”

  Brunelle raised his hands. “Look, Matt, I know what you’re going to say.”

  He didn’t, actually. Not exactly anyway. But it seemed like a good way to stop Duncan from saying whatever it was he planned to say.

  “Well, I’m going to say it anyway,” Duncan responded. He slapped Brunelle on the shoulder. “Good job, Dave! I knew you had it in you.”

  Brunelle looked askance at Carlisle. She seemed equally surprised by Duncan’s praise.

  “Had what in me?’ Brunelle ventured, turning back to his boss. “Poor judgment?”

  Duncan laughed. “Poor judgment, recklessness, bravery. Whatever you want to call it, I’m proud of you.”

  “You’re proud I kissed the defense attorney?” Brunelle asked.

  “I thought she kissed you?” Carlisle interrupted.

  Brunelle shot her a sharp glance. But it was Duncan whose expression fell. “You did what?” he asked.

  “Yeah, I thought maybe we were talking about different things.” Brunelle nodded. “You’re talking about that whole ‘the defendant grabbed a gun in open court thing,’ aren’t you?”

  “I was,” Duncan confirmed, “but I’m not any more. You kissed the defense attorney?”

  “She kissed me,” Brunelle clarified.

  “Did you kiss her back?”

  “He didn’t not kiss her back,” Carlisle put in. “But it’s okay,” she held up Robyn’s motion to disqualify, “because she’s fucking him now. Figuratively speaking, of course.”

  Brunelle winced at the profanity—they were talking to their boss after all—but Duncan seemed more concerned about the substance of her statement. He took the pleading from her hand and scanned the first page.

  “God damn it, Dave,” he vented. He stepped over to the windows that looked over downtown Seattle and the water beyond. “What are we going to do about this?”

  Brunelle shrugged. “I don’t know.”

  “I do,” Carlisle said.
/>   Duncan turned around. “What?

  “Give me the case,” Carlisle proposed.

  “What? Give in?” Brunelle complained, throwing his hands up. “Just take me off the case without a fight?”

  “No, you stay on the case,” Carlisle clarified. “But I’m lead. You get to be my second chair.”

  “You think you’re ready to be lead on a murder case?” Duncan questioned.

  “I’ve been ready for a while,” Carlisle asserted.

  “Don’t tell me you’re seriously thinking about this,” Brunelle interjected. “It’s my case.”

  Duncan walked back over to his two employees. “Then you shouldn’t have kissed the defense attorney.”

  “She kissed me,” Brunelle insisted.

  Duncan ignored Brunelle’s protestations. “You’re not going to kiss her, are you?” He asked Carlisle.

  “No promises,” Carlisle quipped, “but she’s not really my type.”

  “Good enough for me,” Duncan answered, and offered a quick thumbs-up. “It’s official. Gwen is promoted to lead counsel.”

  “Nice!” Carlisle beamed.

  “That means I’m demoted,” Brunelle went ahead and said it out loud.

  Carlisle stepped over and patted him on top of his head. “Aw, see, you’re already learning,” she chimed. “This will be a good opportunity for you, Dave. And you’ll look cute carrying my briefcase.”

  CHAPTER 22

  Robyn had scheduled the hearing on her motion to disqualify Brunelle for one week after she served it on him. That was the minimum time allowed under the court rules, but it was more than long enough for pretty much everyone in the courthouse to hear about it. But Bellevue Detective Casey Emory didn’t work in the courthouse, and Brunelle hadn’t mentioned the whole, unpleasant ‘I kissed someone else’ business to her. So, he was more than stunned when she showed up uninvited at his office at 11:30 a.m. on the day the motion was scheduled to be argued at 1:00 p.m.