Diminished Capacity

by Stephen Penner

  Carlisle turned to look at Pollard then, making no attempt to conceal her own contempt for him. She did it so everyone else would look at him too. She wanted them to see him, and imagine him saying the words she was putting in his mouth.

  After a moment, she turned back to the jurors, turned her back on Pollard, literally and symbolically. She was done looking at him. She was done with him, period.

  “But Leonard Holloway didn’t just take it. He didn’t just keep walking. He stopped. He looked at the bully. He stood up to the bully. And he said exactly what he should have said. ‘Fuck you, you pussy.”

  Brunelle wasn’t sure that was exactly what Holloway should have said, but he understood why he would have said it. And, thanks to Carlisle, so did the jurors.

  “And that, ladies and gentlemen,” Carlisle jabbed a finger in the air, “that is what set the defendant off. That was what enraged him. That’s what triggered him to attack an old man. To run after him. To chase him down a stairwell to a train platform. To grab him by his shirt. To punch him repeatedly in the face. To shatter his nose. To beat him unconscious. To push his unconscious body off the platform. To jump down after him. To pull him over to the tracks. To put his head on the cold metal of the rail.”

  Carlisle stopped. Everyone knew what was coming. She wanted them to feel it. For as long as possible. She paused between every sentence, letting the jurors experience the full horror of it, no more able to stop it than was the unconscious Leonard Holloway.

  “To stomp on his head.

  “And stomp again.

  “And again.

  “Yelling, ‘Who’s a pussy now?’

  “Even as his own best friend begged him to stop.

  “But he kept stomping.

  “And stomping.

  “Again.

  “And again,

  “And again.

  “Until—” Another pause, as if Carlisle herself were getting sick from what she was about to say. “Until his skull cracked. And gave way. And collapsed under the murderous boot of Justin Pollard.”

  Justin fucking Pollard, Brunelle knew she wanted to say.

  Carlisle waited before speaking again. She kept her eyes downcast. She let the jurors imagine it. She left them there, with nothing else to imagine. Everyone in the courtroom was down on those train tracks with Leonard Holloway’s crushed skull and Justin Pollard’s blood-soaked boots. Then she helped them imagine it even more vividly.

  “Ladies and gentlemen, you are going to hear testimony from the medical examiner who conducted the autopsy in this case. You’re going to hear just how thick the human skull is. How strong it is. How small caliber bullets sometimes bounce off it. And just how difficult it is to crack it, let alone fully crush it. And that medical examiner is going to confirm that’s exactly how Leonard Holloway died. That Justin Pollard stomped and stomped and stomped until Leonard Holloway’s skull collapsed—hair and scalp and skull and brain smashed between Pollard’s blood-soaked boot and the cold metal train track.”

  She shook her head. “All because Mr. Holloway wouldn’t just take it. Because he stood up to the bully. Because he told the defendant to fuck off. Because he called him a pussy. Because he responded to the defendant’s provocation.”

  Carlisle took one last moment to gather herself. Time to wrap it up. Time to brush up against the defense theory without actually stating it, just so there would be no confusion about where the battle lay when Robyn stood up next and confirmed their defense.

  “Justin Pollard was not provoked into attacking Leonard Holloway,” Carlisle said. “No one made him do it.

  “Don’t buy it.

  “Don’t believe it.

  “Don’t let him get away with it.

  “Justin Pollard murdered Leonard Holloway, and at the end of this trial, after you’ve heard all of the evidence, we’re going to stand before you again and ask you to return a verdict of guilty to the crime of murder in the first degree. Thank you.”

  Carlisle turned and marched directly back to her seat next to Brunelle.

  “Wow,” he whispered out of the corner of his mouth. “That was great.”

  “I know,” Carlisle whispered back without looking at him, her hands folded on the table in front of her.

  It was going to be a hard act to follow, Brunelle knew. But he also knew someone who wasn’t about to shrink from a challenge like that.

  “And now, ladies and gentlemen,” Judge Whitaker said, “please give your attention to Ms. Dunn, who will give the opening statement on behalf of the defendant.”

  CHAPTER 31

  Robyn stood up and followed pretty much the same steps as Carlisle. She nodded to the judge. She straightened her jacket. She also put a warm hand on her client’s shoulder. Then she stepped around her table and took the same spot directly in front of the jurors.

  “Everything that woman just said,” she started abruptly, throwing her arm out and pointing at Carlisle, “…is true.”

  She dropped her arm, then flashed a disarming smile. “Well, almost everything.”

  And Brunelle knew she had their attention. Even worse, their interest. Damn it.

  “It is true,” Robyn said, “that my client, Justin Pollard, took the life of Leonard Holloway that fateful evening. And it’s true that he did it by… well, in the way Ms. Carlisle described. But what isn’t true, ladies and gentlemen, is that he’s guilty of murder in the first degree.”

  Robyn cocked her head slightly at the jurors and smiled again. Again, disarming. Endearing even. Double damn it.

  “Wait,” she said rhetorically. “He admits he killed the victim, but he’s not guilty of murder? How can that be?”

  She walked over to Pollard again. Not just a point, or a jab, a gesture, but a slow walk over to her client, so she could put her hand on his shoulder again as she told the jury, “Justin suffers from a serious mental disorder. Now, you wouldn’t know it looking at him.” She leaned to the side and appraised her client herself, then continued. “I mean, he’s a good-looking young man in a nice suit. He’s sitting here calmly and peaceably, even as his life hangs in the balance. If you passed him on the street, you wouldn’t give him a second look, unless maybe you liked his shoes or wondered where he got his suit. We tend to think that people with mental illnesses are easy to spot. And some of them are. We think of the crazy guy on the street, yelling at no one, arms flailing, beard and hair flapping in the wind. And to some degree that makes sense. It’s those people who are most obviously mentally ill. But there are so many more who suffer silently, invisibly, their disability known only to close friends and family. People who can function day-to-day, who are stable for long periods of time, who seem and act and are just like everybody else, until the mental illness flares up again. People like Justin Pollard.”

  Her genial expression had slowly hardened as she spoke, not into anger, but concern, almost sadness. Poor Justin. Poor crazy Justin.

  “Justin suffers from a mental disorder called intermittent explosive disorder, or I.E.D. It’s an unfortunate coincidence that it’s the same acronym as ‘improvised explosive device’, a term we all learned from the Iraq War. But it’s also appropriate. Both are unexpected, both are explosive, and both are capable of causing extreme damage. Justin didn’t ask to be afflicted with I.E.D., and he does what he can to compensate for it, but he can’t control it. That’s the whole point. It’s not a choice; it’s a disorder. An organic deficiency in the way his brain is formed, no different than being blind or deaf or paralyzed. Some people have parts of their bodies that don’t work right. Justin is one of those people. And the part that doesn’t work quite right is his brain.”

  Brunelle generally avoided scrutinizing jurors during the trial. For one thing, no one likes to be stared at, and he didn’t want to be caught gawking at them. For another, it wasn’t usually very useful. There were plenty of times when he thought jurors were thinking one thing only to find out, after the trial, that they were thinking the opposite. Every trial
lawyer has the story of the juror who nodded along their entire closing argument only to be the foreperson who delivered the adverse verdict.

  But he couldn’t help himself. He wanted to see if they were buying Robyn’s ‘Poor Justin’ defense. Were they nodding along? Were they crossing their arms? Leaning forward? Leaning back? Misty eyes, or set jaws? But when he looked over, all he saw were twelve people listening attentively, taking their jobs seriously, open to hearing from both sides. Brunelle frowned. That was the last thing he wanted.

  “But don’t take my word for it,” Robyn continued. “In fact, you can’t take my word for it. The judge has told you already, and will tell you again at the end of the trial: you are to disregard any statement, comment, or argument by the attorneys that isn’t supported by the evidence. What the attorneys say isn’t evidence. Evidence,” she pointed toward the witness stand, “comes from the witnesses. Witnesses like Dr. Nicholas Sanchez, a psychologist and an expert in conduct disorders like I.E.D.”

  She stepped over to the witness stand and rested her arm on the rail that separated the witness from the rest of the courtroom. Attorneys couldn’t testify, but they could stand in such a way that they almost seemed like witnesses, absorbing some of the credibility bestowed by the witness stand without actually speaking from it.

  “Dr. Sanchez is going to tell you about I.E.D., and he’s going to tell you about Justin. And he’s going to confirm what I just told you: Justin Pollard suffers from intermittent explosive disorder. He’s going to explain to you why that means Justin can’t help himself when he suffers from an episode of I.E.D. He’s going to explain to you—and all the other evidence is going to support this, as well—that when Justin Pollard has an episode of I.E.D. he loses the ability to make his own choices. He loses the ability to intend his actions. And ladies and gentlemen, without intent, there can be no murder.”

  Then, just to make sure the jury fully understood: “Dr. Sanchez is going to tell you that Justin is not guilty of murder. He’s going to explain that while Justin may have killed Leonard Holloway, he didn’t murder him. Justin was experiencing a psychotic episode, brought on by his organic mental disability, and therefore, he cannot be held legally responsible for his actions—no more than an epileptic could be held responsible for bumping into someone when suffering a seizure.”

  Brunelle looked again to the jury. He thought he perceived some signs of skepticism. One juror had crossed her arms. A couple others seemed to be frowning. But others seemed more open. One was leaning forward. Most were just listening, their thoughts inscrutable.

  Robyn walked back to her client, standing completely behind him and putting her hands on both of his shoulders. “And so, ladies and gentlemen, at the conclusion of this trial you will be convinced of two things. First, Justin Pollard did—unfortunately, regrettably, tragically—kill Leonard Holloway. But second, that Justin is nevertheless not guilty of the crime of murder. Thank you.”

  And the battle was joined.

  Judge Whitaker looked down at the prosecution table. “The State may call its first witness.”

  Carlisle stood up. “The State calls Kevin Langford.” Then she turned to fetch him from the hallway.

  While she did that, Robyn stood up again and approached the bar to sort through some of the photographs she was going to use for her cross-examination. That left Brunelle and Pollard sitting alone, each at his own table, but only separated by the few feet between those tables. In the awkwardness before Langford appeared to be sworn in by the judge, Brunelle glanced over at Pollard to see what he was doing, and was a bit unnerved to discover that what Pollard was doing was staring right back at him.

  “When I get acquitted,” Pollard whispered to him in the lowest possible voice and without any perceptible change in his deliberately peaceful expression, “you’re next.”

  CHAPTER 32

  Langford stepped up to be sworn in by Judge Whitaker even as Brunelle looked around to see if anyone else had heard Pollard’s threat. But it was clear it had gone undetected. Robyn retook her seat next to Pollard. Carlisle was focused on her imminent examination of the State’s first witness. Judge Whitaker was administering the oath to Langford. And the corrections officers assigned to jump on Pollard if he tried to escape wore the same profoundly bored expressions they always wore throughout every trial they were forced to sit through.

  Brunelle considered interrupting the proceedings, but after surveying the normality of the remainder of the courtroom, he questioned for a moment whether it had actually happened. But another glance at Pollard, and the reciprocated knowing glance out of the corner of Pollard’s eye, confirmed he hadn’t imagined it.

  “Could you state your name for the record?” Carlisle began her direct examination.

  Brunelle sighed and decided to just go ahead and let the trial proceed. How would it look if right as the State was calling its first witness, one of the prosecutors suddenly interrupted and demanded to raise a mysterious issue outside the presence of the jurors? The jurors might assume there was a problem with Langford’s testimony.

  No, there would be time enough to raise the issue at the next break. After all, Brunelle considered, the threat was for after the trial was over. He had plenty of time before he would have to worry about having his own head stomped flat.

  “Kevin Langford,” came the reply to Carlisle’s first question.

  “Do you know the defendant, Justin Pollard?” was the next question.

  “Yeah,” Langford answered. “We’re friends.”

  “How long have you been friends?”

  “Since middle school,” Langford said. “We knew each other in grade school, but we didn’t start hanging out ‘til middle school.”

  “And you’ve been friends ever since?” Carlisle locked down.

  “Yes.”

  “Have you ever seen him angry before?” she asked. “Ever seen him lose his temper?”

  Langford tried to shrug casually, but it was stilted. “I mean, everybody’s got a temper, right?”

  “Right,” Carlisle was happy to agree. That was their entire point. “So, you would say Mr. Pollard had a normal temper, just like everyone else?”

  “Objection, leading question,” Robyn interjected. “And lack of foundation for the opinion.”

  “I will sustain as to leading,” Judge Whitaker ruled. Langford probably had enough factual background to give an opinion about whether Pollard’s temper was more than that of ‘everyone else’. But Carlisle didn’t rephrase the question, lest they get bogged down in an argument that would only boost the credibility of Pollard’s so-called expert. Plus, Langford might take the clue from Robyn and realize he needed to play up Pollard’s temper, rather than play it down. So, Carlisle left the jury to think Langford would have said, if he’d been allowed to answer, that Pollard had a normal enough temper.

  “Let’s talk about the day in question,” Carlisle moved on. “You were with Mr. Pollard that night, correct?”

  “Correct.”

  “Where were you coming from when the incident took place?”

  Langford thought for a moment. “I’m not sure exactly. We had been to a couple of the bars down by the baseball stadium, but I can’t remember which ones.”

  “Okay, that’s fine,” Carlisle assured him. “We don’t need to know the exact name of every place you stopped that night. But you were coming north from the baseball stadium, toward downtown?”

  “Yeah, I think we were going to try to find someplace to eat,” Langford recalled. “Maybe in the International District or Pioneer Square.”

  “And did you find a place to eat?”

  Langford cocked his head at her. “Uh, well, no. Because, you know, the thing happened.”

  “The murder?”

  “Yeah,” Langford answered just before Robyn could object again.

  “Whether it’s a murder is a legal question,” Robyn stated the basis for her objection. “Counsel and the witness should refer to it as a kill
ing or a homicide, or better yet, just ‘the incident.’”

  “Response?” Whitaker invited.

  “Leonard Holloway is dead, Your Honor.” Carlisle pointed at Pollard. “Because of that man’s actions. To sanitize it as simply an ‘incident’ diminishes what happened out there.”

  Whitaker nodded. “Try to avoid the word ‘murder’,” she ruled. “Ms. Dunn is right. Whether this killing is actually a murder for which the defendant can be held legally accountable is the entire question of this trial. That being said, you are an advocate, and I will not prohibit the prosecutor from stating the name of the crime charged. But still, move along.”

  Carlisle nodded. It was a win. And Robyn’s repeated objections might be signaling to the jury that she was nervous, or trying to hide something, or both.

  You didn’t make it to dinner because something happened, right?” Carlisle continued. “So, let’s talk about that. There was another person involved, right? A homeless man.”

  “I guess he was homeless,” Langford shrugged again, more easily that time. “I didn’t actually know him, so I’m guessing.”

  “What led you to believe he might be homeless?”

  Langford thought for a few seconds. “The way he was dressed, I guess. He was pretty dirty. And he was pulling a cart like homeless people do. You know, with all of their stuff in it.”

  “Like a shopping cart?” Carlisle asked.

  “No, more like a suitcase on wheels, but open?” Langford tried to describe it. “Sometimes you see old ladies at the grocery store with them.”

  “Okay,” Carlisle replied. “And was this man old too?”

  “Yeah.” Langford nodded. “He had like gray hair and a long gray beard, so yeah, he was old. I’m not sure, like, a number or anything. But old.”