Diminished Capacity

by Stephen Penner

  He stood up. “Uh, Your Honor?”

  But Whitaker wasn’t having it. “Nope.” She pointed at Brunelle. “Second chair, remember?”

  Brunelle hesitated, then nodded. “Yes, Your Honor.” He gestured to Carlisle to come over so he could whisper in her ear. But she ignored him.

  “Thank you, Your Honor,” Carlisle said again, signaling her desire for the hearing to end. “I’ll speak to Mr. Brunelle outside. I’m sure whatever it is can wait.”

  Whitaker accepted the offer and adjourned the hearing. The corrections officer behind Pollard tipped his chair back again, rather roughly, and wheeled him out of the courtroom. Robyn followed after, to discuss next steps back in the holding area. Carlisle led Brunelle the opposite direction into The Pit, barely able to contain the smile unfurling across her face.

  “This is crazy,” Brunelle said as soon as the courtroom door closed behind them.

  “I know, right?” Carlisle responded. “This is going to be so much fucking fun!”

  CHAPTER 24

  One advantage of a moratorium on pretrial motions was a little extra time for Brunelle, enough to grab dinner out with his girlfriend. But then again, the trial was still imminent, so dinner with his girlfriend and his trial partner. And trial partner’s girlfriend.

  Introductions all around—“Casey, Gwen. Gwen, Casey. Casey, Julia. Julia, Casey. Julia, Dave. Dave, Julia.”—then a table in the back corner of the Nepalese restaurant hidden in a basement off Broadway on Seattle’s Capitol Hill. Hidden, in the sense that it wasn’t visible from the road, but definitely not hidden in the minds of the neighborhood’s residents. In fact, even on a Thursday night, it was packed, and the four of them had to crowd around their almost too small table, elbows practically brushing the couple jammed into the two-top next to them. But that was part of the fun. Along with the chai tea martinis.

  Brunelle didn’t want to be the first one to bring up the case, but when it finally did get brought up, he regretted not being the one to frame the conversation.

  “So, you get to be Gwen’s assistant, huh?” Julia asked, putting a hand on Carlisle’s arm. Julia had large round glasses and her short black hair contrasted with Gwen’s blond ponytail. “She’s pretty excited about getting to be the main prosecutor.”

  “I’m not her assistant,” Brunelle instinctively defended. But he managed to pull back. “I’m her advisor. Or something. Right?”

  “If that’s what it took to keep Whitaker from kicking you off the case,” Carlisle answered. “We can call you whatever we want. You’ll still be doing the closing argument and half the witnesses.”

  “I’m doing closing?” Brunelle was surprised to hear. “I don’t remember divvying up the trial yet.”

  “Assistant,” Julia repeated with a grin,

  “You have to do closing,” Carlisle answered. “If you do opening, Whitaker will call bullshit on you just being an advisor. But once we start doing witnesses, she’ll relax. Then you can pull it all together with a killer closing. Don’t you want to do the closing argument?”

  “Of course I do,” Brunelle admitted. “I just—I didn’t realize we’d decided who was doing what yet. That’s all.”

  “Don’t worry, Dave,” Carlisle assured him. “I’m not taking over. We can divide up the witnesses however you want.”

  “Ok, cool,” Brunelle said.

  “Except, I’m going to do the first witness,” Carlisle said. “So Whitaker doesn’t get suspicious.”

  “Uh, okay,” Brunelle agreed.

  “Oh, I’m going to cross Dr. Sanchez,” Carlisle informed him.

  Brunelle pushed back in his chair—bumping seat backs with the man behind him. “Wow. Okay, well, who do I get to examine? The patrol officer who put up the crime scene tape, maybe?”

  “I mean, if you think you’re up to it,” Carlisle teased. “And maybe the clerk from the property room?”

  Brunelle didn’t laugh.

  “What about our expert?” Carlisle offered in earnest. “I’ll take theirs, you take ours. That seems fair.”

  “Except we don’t have an expert,” Brunelle pointed out. “Dr. Belden agrees with Sanchez. I don’t think we want to call a witness who supports the defense theory of the case. Especially when that theory means he’s not guilty even if he did it.”

  “Wait, both doctors say he’s not guilty?” Casey asked.

  “Well, they both say he suffers from intermittent explosive disorder,” Brunelle clarified. “The defense attorney is the one who will argue that makes him not guilty.”

  “Oh yeah, the defense attorney,” Casey repeated. “What’s her name again?”

  Brunelle frowned at her. “Robyn Dunn,” he replied, in a pained voice.

  “Don’t you know her or something?” Carlisle asked. Julia chuckled, confirming everyone at the table was in on the joke.

  “Anyway,” Brunelle pressed on, “we don’t have a psych expert who will say Pollard doesn’t suffer from I.E.D. because he actually does meet the diagnostic criteria.”

  “I.E.D.?” Julia asked.

  “Intermittent explosive disorder,” Brunelle clarified.

  Casey shook her head. “Don’t call it I.E.D.”

  “I know, I know,” Brunelle answered. “I won’t. Not in front of the jury anyway. But no matter what we call it, the psychologists are all going to say he has it. And then that Robyn Dunn lady is going to argue that means he didn’t really form the intent required to hold him responsible for murder.”

  “That’s stupid,” Julia opined, as the waiter brought the first round of chai martinis. “If you do something because you’re crazy, you still did it.”

  “The issue isn’t whether he did it,” Carlisle piped in. “It’s whether he can be held responsible for it. If it’s some kind of uncontrollable impulse, then he’s not really responsible. That’s what uncontrollable means, right? At least, that’s what they’re going to argue.”

  “Isn’t that what they used to call it?” Casey asked. “Uncontrollable impulse? Like when a man comes home and finds another man in bed with his wife.”

  “That’s just the patriarchy excusing violence by men,” Julia put in. “They can change the labels, but it’s just about excusing violence and misogyny.”

  “Well, there’s no misogyny in this case,” Brunelle said. “Our victim was an old man. But yeah, that’s a good point.”

  “It doesn’t apply, but it’s a good point?” Casey questioned him. “That sounds like something a lawyer would say.”

  Brunelle smiled but shook his head. “No, the part about society just putting labels on things to excuse them. That’s what we do. Psychology does it too. They just make it look all official by putting it in a book and calling it by a cool acronym. DSM-5.”

  “You’re going to attack the whole DSM-5?” Carlisle questioned. “Why not just attack the entire discipline of psychology?”

  Brunelle thought for a moment. “Yeah,” he said. “Why not? Remember what that lawyer was saying in The Pit? About psychology being a phony science?”

  Carlisle squinted as she recalled. “I think so. But she was just kind of shooting her mouth off, I thought.”

  “She kind of was,” Brunelle agreed. “But she seemed to be pretty sure of herself too. Didn’t she mention an article or something? I bet we could find that. And I bet we could find someone who says psychology is just a bunch of made up bullshit.”

  He was met with three dubious expressions.

  “I don’t know, Dave…” Casey started.

  “Well, at a minimum, we can show that the standards keep changing,” Brunelle defended his idea. “I mean,” he waved toward Carlisle and Julia, “the old DSM-3 listed homosexuality as a mental disorder.”

  “Okay, wow.” Carlisle put her hands up. “Don’t go there, Dave. Weird.”

  “Yeah, gross,” Julia agreed, with a disgusted frown.

  “Okay, sorry,” Dave apologized quickly, “but you see my point, right? It’s subjective and it c
hanges with the times. That’s not science.”

  “It’s social science,” Casey pointed out.

  “Exactly,” Brunelle answered. “And society changes. We just need someone with a bunch of letters after their name to tell the jury that.”

  The rest of the table considered Brunelle’s argument for a few more seconds, then Carlisle spoke up for them. “Fine. It’s worth looking into. As my assistant, I think that task falls to you.”

  Julia laughed at Brunelle’s exasperated sigh.

  “I hereby task you,” Carlisle continued, “with finding someone with a bunch of letters after their name who will say intermittent explosive disorder is bogus because all of psychology is bogus. Good luck with that.”

  Brunelle ignored the sarcastic ‘good luck.’ He leaned into his chai martini and smiled. He knew it could work. And he knew Robyn knew it too.

  CHAPTER 25

  The rest of dinner moved on and off the topic of Brunelle and Carlisle’s case, and after strolling up Broadway to do some window shopping and grab another drink at another bar, the two couples went their separate ways.

  It would be a little more than a week later before Brunelle could turn his inspiration to reality. It only took a day to find the article that other lawyer had been talking about. It took another two to confirm that someone important enough to get published in Nature magazine wasn’t really available or interested in testifying in some random murder trial in Seattle, Washington. It took several more days to find someone who was interested in doing that, and shared the opinion expressed in the article, and had enough letters after his name. And it was the day after that when Brunelle typed up the notice of expert and delivered it personally to Robyn’s office.

  Two could play at that game.

  He ignored the more troubling fact that he still wanted to play games with her.

  “Is Ms. Dunn available?” Brunelle asked the receptionist when he stepped into the law offices Robyn shared with several other solo practitioners. It was a common practice among defense attorneys to run a solo practice without the complications of a formal partnership, but share the rent, the copier, and the receptionist.

  Said receptionist—a young woman with brown hair and glasses—lifted the handset on her desk phone. “I’ll see if she’s in. Could I get your name, sir?”

  “Just tell her it’s Dave,” Brunelle replied. “And tell her I’ve got a surprise for her.”

  The receptionist frowned. Obviously she would have preferred something simple like, ‘John Smith.’ “Are you a client?” she asked.

  Ah, Brunelle realized. He didn’t usually have to deal with the criminal types he prosecuted. Not directly anyway. Most of them were in jail awaiting their trials, and the ones who weren’t didn’t regularly come by his office to visit. Being a defense attorney, on the other hand, meant always worrying one of your clients might show up at your place of employment to repeat whatever terrible thing he did to his spouse, coworker, stranger on the street, etc., to need to hire you in the first place.

  “Uh, no,” Brunelle answered. “Sorry. My name is Dave Brunelle. I’m with the County Prosecutor’s Office. I have a case with Ms. Dunn, and I’m here to give her some paperwork.”

  “Oh, okay.” The receptionist relaxed. “Do you want to just leave the paperwork with me?”

  Brunelle smiled. “No. I’d like to hand it to her personally.”

  The receptionist nodded. “Okay. I’ll see if she’s available.”

  She punched a few buttons on her phone and Brunelle couldn’t help but hear her end of the conversation. “There’s a gentleman here to see you. David Brunelle. Yes. Yes, he does. Okay. Yes. Okay, thanks.”

  She hung up the phone and looked at Brunelle. “Ms. Dunn will be out in a few minutes.”

  “Great, thanks,” Brunelle answered. He hadn’t really expected to have to wait minutes—he just needed to drop off a two-page notice of expert witness. But he supposed he didn’t like being interrupted in the middle of some task either, and Robyn was the type to finish her task before rewarding him with her presence. He took a seat in the waiting area and picked up an old copy of National Geographic.

  It was probably ten minutes before Robyn finally came out to greet Brunelle in the lobby.

  “Mr. B,” she said with a smile on her face and an edge to her voice. “To what do I owe the pleasure of this unexpected visit?”

  Brunelle was only happy to answer. He stood up and handed her the notice. “This is for you. I wanted to deliver it personally.”

  Robyn glanced at the caption. “Ah, I figured you’d endorse your own psychologist. Who is it? Someone from Western State Hospital? You know I’ll be able to get them to agree that Justin has I.E.D., right?”

  “I do know that,” Brunelle returned. “If I gave you that chance. Which I won’t. Because, again, I know that.”

  Robyn frowned, then looked down again at the paper. “Dr. Alastair Mount, B.S., M.S., Ph.D., Psy.D. That’s a lot of letters.”

  “The better to spell stuff with, my dear,” Brunelle tried to joke. “Or something like that. Anyway, Dr. Mount, Ph.D., E.T.C., won’t say your client is suffering from I.E.D. He’ll say I.E.D. is made up and therefore can in no way be a defense to murder in the first degree.”

  Robyn took a moment. “You’re kidding, right?”

  Brunelle smiled. He’d been smiling the whole time actually, but the smile broadened. “Nope.”

  Robyn nodded for a few more seconds. “Let’s go back to my office for a minute.”

  Brunelle hesitated. That broad smile faded.

  “Don’t worry,” Robyn guessed at his concern. “There are no cameras.”

  “That might be worse,” Brunelle responded. “No proof that nothing happened. You could accuse me of anything.”

  Robyn frowned and turned to see if the receptionist was listening. Brunelle looked too. She appeared to be on the phone and pretty much ignoring them. There was no one else in the lobby. Robyn lowered her voice.

  “Look, I know you think I set you up,” she said. “And I know you think I set up that whole thing with Justin grabbing the guard’s gun. But I promise you, I didn’t. Both of those things just happened. But…”

  “But you couldn’t pass up using them to your advantage?” Brunelle ventured.

  “I have a job to do,” Robyn defended.

  “So do I,” Brunelle pointed out. “So maybe we just make sure to do that in public from now on. And with your client in restraints.”

  Robyn looked up into Brunelle’s eyes. “The only reason this is even an issue is because there’s still something there. Something between us. Something unresolved.”

  When Brunelle didn’t react—primarily because he didn’t know how to—she went on, “Look, I’ll admit it. Powell’s dad did some snooping around, and he hired me because he thought I could get into your head. And he was right. I can. But you can get into mine too. ...If you want to.”

  Brunelle couldn’t say for sure that he didn’t. But he was suddenly severalfold happier that he had declined her invitation to retire to her office. “I can’t let you get into my head any more, Robyn.”

  “Because of one little case?” she asked.

  “Because of a lot of things,” Brunelle responded.

  “Come back at the end of the day,” Robyn suggested, with a glance back at the receptionist. “When everyone else is gone. We can figure this out. Together. Alone.”

  Brunelle didn’t answer.

  “No one would have to know,” Robyn pressed. “I won’t say a word. I promise.”

  Brunelle looked deep into her eyes and, despite everything, he believed her.

  But it didn’t matter.

  “I’d know,” he said. And he left.

  CHAPTER 26

  With no motions allowed prior to trial, the trial approached that much faster, psychologically speaking anyway. If there were really such a thing as psychology, that is.

  The Friday night before trial found Brunelle going
for a walk after the sun had set and the crispness of the night air had settled onto the city. Casey was working a late shift, so he didn’t have any other plans, and he didn’t feel like working on a trial—even one only days from starting—on a Friday night. So a walk would give his legs and his thoughts free roam, and if he ended up someplace where they served a good Manhattan or Old Fashioned, he didn’t have to worry about driving home.

  The walk led him back up to Capitol Hill, or the outskirts of it anyway. Not quite to the well-lit, commercialized Broadway, complete with Starbucks and Urban Outfitters. But the older, grittier, more personal Capitol Hill. Not the one he’d shared with Casey and Carlisle weeks earlier, but the one he’d shared with Robyn well before that.

  Before he realized where those legs and those thoughts had taken him, he was there. He stopped, hands in his pockets, and looked up at the building that had previously housed the Cucumber Club, one of several no-questions-asked clubs up on the Hill. He’d prosecuted a case from there. It seemed like forever ago. But it wasn’t.

  The Cucumber Club was gone. A business like that doesn’t do well with dead bodies and live cops inside. There were other places for the sexually diverse to congregate, places away from the prying eyes of law enforcement, whether it be a cop in a uniform or a prosecutor in a suit. Brunelle looked down at himself. Sure enough, he was still wearing his suit. He hadn’t bothered to change. Change clothes, that is. Maybe he never changed at all. Maybe he hadn’t changed since then. He looked back up at the storefront.

  There was a commercial real estate ‘For Lease’ sign in the corner of one of the whitewashed windows. The sign for the club had been taken down, leaving just gray concrete and red brick. If you hadn’t known it was there, you never would have known it was there. Brunelle felt a pang of regret as he imagined a coffee shop or organic market moving in. Something daylit and wholesome. Didn’t the world still need dark, troubling places?

  Didn’t he?