Diminished Capacity

by Stephen Penner

  “Okay. Old, homeless man, dirty, pulling a cart of belongings, like homeless people do,” Carlisle summarized. “Do I have that right?”

  “Yeah, that’s what he looked like,” Langford confirmed.

  “And so, what happened when you and Mr. Pollard saw this dirty old homeless man?”

  Langford actually had to suppress a chuckle. “Justin yelled, ‘Get a job!’ at him.”

  “And you thought that was funny?”

  Another shrug, earnest this time. “I dunno. I guess so.”

  “Why?”

  “Because it was funny,” Langford said. “I mean, it was supposed to be. We were just having some fun.”

  So the jury knew Langford was also a jerk, which wasn’t really that surprising since he was lifelong friends with the jerk accused of murder. Still, it was good for the jury to know there was distance between the witness and the prosecution team.

  “Did the dirty, old, homeless man think it was funny?” Carlisle asked. Then she corrected herself. “Did Mr. Holloway think it was funny?”

  “Holloway?” Langford repeated. “Was that the old guy’s name? Oh.”

  “Yes, he had a name,” Carlisle replied sharply. “Did Mr. Holloway think it was funny?”

  “Objection,” Robyn jumped up again. “Calls for speculation.”

  Judge Whitaker sighed. “Sustained as to the form of the question. Rephrase, Ms. Carlisle.”

  “Did Mr. Holloway seem to think it was funny?” Carlisle asked instead.

  “Uh, no,” Langford admitted.

  “And why do you say that?” Carlisle followed up. “Did he not laugh?”

  “No, he didn’t laugh,” Langford answered.

  “What did he do?”

  “He yelled back at us,” Langford said. “At Justin.”

  “And what did Mr. Holloway yell back at Justin,” Carlisle asked, “after Justin yelled at him to ‘get a job’?”

  “Uh, he yelled…” Langford hesitated. “Can I say those words in court?”

  “You have to say them,” Carlisle answered, “if they’re what he actually said. What exactly did Mr. Holloway yell at Mr. Pollard?”

  Langford shifted his weight uncomfortably in the witness stand. “Uh, he yelled, ‘Fuck you, you pussy.’”

  Carlisle nodded. It wasn’t surprising testimony—she’d already told the jury about it in her opening statement—but it was important nonetheless. She gave it a moment to sink in. Then she moved on.

  “How did Mr. Pollard react to being told to fuck off and being called a pussy?”

  “He, uh…” Langford shifted again in his seat. “He didn’t like it.”

  “And what made you think that?”

  “He, uh, he got pretty angry,” Langford elaborated.

  “And you’ve seen him angry before, right?” Carlisle said. “You’ve been friends with him since middle school.”

  “I’ve seen him angry before,” Langford confirmed.

  “And was this like those other times?” Carlisle pressed.

  But Langford pushed back. “No, not really. Those were just regular angry. This… This turned into something else.”

  Carlisle let that sink in for a few moments too.

  Then she asked, “Have you ever seen Mr. Pollard hurt anyone before that night?”

  “Uh, I don’t know. I don’t think so,” Langford said. “I mean, he got into a couple of fights, but nothing super serious. Nobody got hurt bad.”

  “Had you ever seen Mr. Pollard murder someone before that night?”

  “Objection!” Robyn popped to her feet again.

  “The answer is no,” Carlisle explained. “I wasn’t trying to suggest Mr. Pollard is a serial killer or anything. In fact, I’m trying to show that his actions that night were not consistent with how he acted normally.”

  Judge Whitaker nodded at her, but said, “Why don’t you just ask it that way, instead of asking whether the defendant has committed other crimes. Objection sustained.”

  Carlisle straightened her jacket. “You’d never seen Mr. Pollard do anything like what he was about to do that night, isn’t that true?”

  Langford nodded. “That is the truth.”

  Then Carlisle took him through it, line by line, as if she had his original witness statement in front of her.

  “Justin yelled back at him.”

  “Justin ran toward him.”

  “Justine chased him down.”

  “Justin punched him in the face.”

  “Justin threw him on the ground.”

  “Justin pushed him onto the tracks.”

  “Justin put his head on the rail.”

  “Justin stomped on his head.”

  “And stomped and stomped and stomped again.”

  Then, “You knew he was dead, didn’t you?”

  Langford nodded. “Yeah,” he said quietly.

  “How did you know that?”

  “I heard it,” Langford said. “I heard him crush his skull. I heard it break.”

  “And Mr. Pollard heard that too, right?”

  This time, no objection from Robyn. Technically, it was speculation, but she’d look pretty weak making an objection to it.

  “I guess so,” Langford answered.

  “You guess so?” Carlisle repeated. “Why do you think he heard Mr. Holloway’s skull crack?”

  “Because,” Langford looked up at Carlisle, “he stopped.”

  Carlisle nodded at the answer. And she knew what to do with it. “No further questions,” she announced.

  Brunelle watched as Carlisle returned to her seat and Robyn rose from hers upon the judge’s invitation to cross-examine the witness. Brunelle wondered what Robyn would do, but he didn’t wonder too hard. She was a good lawyer. Damn it.

  The key to a good cross-examination was brevity. Have a point, make the point, get out. The worst cross-examinations were when a defense attorney just sort of dragged the witness through the whole story again. It was helpful to the prosecution to have the jury hear the story twice, and sometimes they’d even catch something the prosecutor had left out. But it was definitely not helpful to a defendant to spend time repeating the State’s theory of the case. And Robyn was not about to help him, Brunelle knew.

  Laser-like focus on the weakness in the State’s case.

  Lead, lead, lead. Never ask an open-ended question.

  And, of course, never ask a question you don’t know the answer to.

  “You’ve known Justin since middle school?” Robyn started.

  “Even longer,” Langford replied. “We became friends in middle school.”

  “He has a temper, doesn’t he?”

  “I mean, yeah, I guess so,” Langford stumbled on his response. Normally, one might think the defense attorney wouldn’t want to talk about her murder defendant’s temper. But this wasn’t a normal case. At least, it wasn’t a normal defense.

  “You’ve seen him get angry before?”

  “Uh, yeah. I guess so. I mean, I’ve known him a long time. He’s seen me get mad before too.”

  “You’ve seen him explode in anger before, correct?”

  “Uh, wow. I’m not, I’m not sure about that…” Langford was clearly uncomfortable admitting anything like that.

  “You’ve seen him get angry out of proportion with the provocation, correct?”

  Langford frowned, thought for a moment, then replied, “What?”

  “You’ve seen him overreact, right?” Robyn rephrased her question so he could understand it.

  “I mean, sure. I guess. Probably.”

  “Well, this night,” Robyn directed him, “that was an overreaction, right?”

  “Uh, I don’t know,” Langford stammered. He was still trying to help his friend, even if it didn’t seem like his friend’s lawyer was helping him any. But then, he hadn’t heard the opening statements. “I mean, the guy did call him a pussy.”

  “So, you think it’s normal,” Robyn challenged, “to stomp someone’s head in becau
se they called you a name?”

  “Well, no,” Langford defended. “But I mean, he started running away, like being a chicken about it. So that probably pissed off Justin too.”

  “And after he chased the old man down,” Robyn continued, “he killed him. For calling him a name. Right?”

  “Uh, right?”

  “That seems like an overreaction, doesn’t it?”

  Langford just shook his head and shrugged again.

  “I mean, you called the police, right?” Robyn prodded.

  “Yeah, I called the police.”

  “Why?”

  Brunelle’s eyebrows shot up. An open-ended question! Mistake.

  Langford obviously didn’t know what the hell Robyn was trying to do, so he gave up trying to figure it out and just said, “Because he just murdered that old dude, and I didn’t want to get in trouble too.”

  Robyn hesitated. She was obviously trying to assess whether she could use Langford any further. He hadn’t been terribly helpful to her, despite an obvious desire to help his friend. Anything more risked a longer cross with no additional benefits.

  “No further questions,” Robyn decided to say.

  Judge Whitaker asked, “Any redirect examination?” But the prosecution calculus was similar: was there any additional benefit to keeping the defendant’s best friend on the stand? Not likely.

  “No, Your Honor,” Carlisle informed the judge, who then turned and excused Langford.

  “Your next witness?” Judge Whitaker inquired.

  “The State calls,” Carlisle announced, “Detective James Goodman.”

  She didn’t even look to Brunelle to see if he was also ready to continue. Which was a problem, since he was going to be doing the direct exam. He had planned to ask for a brief recess to tell Carlisle about the death threat, but as Goodman entered the courtroom, Brunelle knew he needed to set the threat aside—and be ready for whatever Goodman was going to blurt out to screw up their case.

  CHAPTER 33

  Death threat or no, Brunelle had a job to do. He knew that. And he knew how to do it.

  “Could you state your name for the record?” he began, like he’d begun countless direct examinations before.

  “James Goodman,” came the witness’s reply.

  “And how are you employed, sir?”

  “I am a detective with the Seattle Police Department.”

  Detectives usually made for bad witnesses. They had to be called—juries expected to hear from the lead detective, especially on a murder case. But most of what they did was telling other people to do stuff. Goodman could testify that he directed his forensics officers and evidence technicians to process the crime scene, but he couldn’t testify as to what they found. The individual officers had to do that. Goodman could interview the only eyewitness, Kevin Langford, but he couldn’t tell the jury what he said. That would be hearsay. The jurors had to hear it from Langford himself, which they did. But that left little for the detective to say. Accordingly, Brunelle decided to pad his testimony with some crime scene photos. Those were always inflammatory, so the sooner the jury saw them the better. And it would be difficult for Goodman to screw up a photograph.

  So, after establishing that Goodman was the lead detective on this particular case and confirming he had years of experience as a detective (although he was new to homicides), Brunelle approached the witness stand and said, “Detective Goodman, I’m handing you a series of photographs. Do they appear to be accurate depictions of the murder scene you saw the night of the incident in question?”

  Goodman took his time looking through the photographs. There were only a half dozen, but it was starting to get uncomfortable waiting for the detective to confirm the photos were from the murder scene. Of course they were, or the prosecutor never would have handed them to him.

  “Uh, yes,” Goodman said finally. “Yes, they appear to be.”

  Appear to be? Brunelle thought. Well, good enough. Barely.

  “Your Honor,” he addressed the judge, “the State moves to admit Exhibits Twenty-Four through Twenty-Eight.”

  “Any objection, Ms. Dunn?” the judge asked. She had to ask that.

  “No, Your Honor,” Robyn answered. Why object? She wasn’t contesting that the actual killing took place, just whether the law should hold her client criminally responsible for it.

  “Exhibits Twenty-Four through Twenty-Eight are admitted,” Whitaker ruled.

  “Move to publish,” Brunelle followed up. That meant show them to the jury.

  Again, “No objection,” from Robyn.

  Again, the judge granted Brunelle’s motion.

  In the old days, when Brunelle was a baby prosecutor, he would have walked over to the jury box and held up the photographs for the jury to see, or maybe handed them to the first juror in the box to look at and then pass down the line. But these were the new days, so Brunelle could put the photographs facedown, one by one on a projector, and the screen on the far side of the courtroom would be filled with a wall-sized image of each photo. That could be overwhelming when the wall-sized image was a close-up of a murder victim. So, he started easy.

  “Detective, I’m showing you, and the jury, what’s been admitted as Exhibit Twenty-Four,” Brunelle said for the record. “Could you describe what’s depicted in this photograph?”

  It was a wide shot of the entire crime scene, taken from several hundred feet away. It showed the tracks, the platform, part of the iconic King Street Station clock tower, and, down in one corner, a yellow sheet over what appeared to be a body.

  “That’s a panoramic of the crime scene,” Goodman answered.

  Brunelle wasn’t sure a crime scene could really be ‘panoramic’, but he accepted the description, and replaced that photograph with the next.

  “Now we’re looking at Exhibit Twenty-Five,” Brunelle announced. “What are we seeing here?”

  “This is a closer view of the crime scene,” Goodman described. “You can see the body covered by a tarp, and the train tracks, and a few of the patrol officers. This would have been after I arrived but before the medical examiner took the body away.”

  So far, so good. Interesting, but not too gory. Time to change that.

  “This is Exhibit Twenty-Six,” Brunelle narrated his change of photographs. “What is depicted here?”

  What was depicted there was obvious, as attested to by the gasps from the jury box.

  “This is a photo of the victim, with the tarp removed,” Goodman described. “Or maybe before the tarp was put on. But anyway, that shows most of his body, including the head, where the injuries were.”

  Definitely a bloody scene, but nothing compared to, “Exhibit Twenty-Seven,” Brunelle announced the next image. “What’s this?”

  “This is a closer view of the victim’s head,” Goodman explained. “There’s a lot of blood there, but you can see where his coat ends and his neck starts, so everything above that is his head.”

  The fact that Goodman had to explain which bloody mass was the victim’s head was exactly why Brunelle wanted the jury to see it. And why he left it up on the wall, big as anything, as he asked his next few questions. The gasps had turned to gags and stifled sobs. And there was still one photo left.

  “Is that how Mr. Holloway looked when you first saw him that night?”

  Goodman took another several long moments to analyze the photograph blown up on the wall. As if he was being extra careful. “Yes. That’s what I saw when I went down onto the tracks.”

  Brunelle picked up the last photo, pausing before he put it on the projector. He paused because everyone knew what was next. They’d started with a wide view and moved in. The last one was the upper half of the victim, and bad enough. But everyone knew the next one would be the close-up. And he wanted the jury to have to sit in that moment, imagining the imminent image.

  “I’m now showing you Exhibit Twenty-Eight,” Brunelle said as he slid the close-up onto the projector, and up on the wall. “What’s this?
”

  Goodman’s slow and careful routine went from annoying to useful. And authentic. It actually was difficult to ascertain exactly what they were all looking at. The image was reminiscent of a Jackson Pollock painting, if he went through a red and black phase. Red and black and teeth, and maybe an eyebrow, although it was hard to tell. Which was really the whole point.

  “Uh, I believe that’s a close-up of the victim’s face,” Goodman said finally. “It’s a little hard to tell because it’s so close in, and I never actually bent down and got that close, but yeah, that’s his face.”

  Brunelle could have asked Goodman to go over the photo in detail. Point out where the mouth was, point out the swollen mass that used to be his nose, make sure the jury knew that rounded bloody egg-shaped thing in the corner was his eyeball. But that would have been too much. It was gross. They got it. They’d remember it. And if he left it up any longer, they’d start getting used to it, which would diminish its impact. Better to turn off the projector and take away the image, leaving the jury instead with the emotions they felt upon seeing, for the first time, a man’s head stomped in.

  Time to move on.

  “So,” Brunelle pivoted, “after the crime scene is secure, and you’ve had a chance to examine the body, what is usually the next priority in an investigation like this?”

  “Identify the perpetrator,” Goodman answered quickly. He knew that answer cold. It was the same for any crime, from shoplifting to murder. “And locate him.”

  “And did you get any information that night?” Brunelle followed up, “that aided you in the effort to identify and locate the perpetrator?”

  “Yes,” Goodman answered. “A friend of his called 911. He told the 911 operator he’d witnessed the murder. And he said…” Goodman shook his head and laughed a little to himself. “He said he knew about the twenty-four hour rule.”

  Brunelle raised an eyebrow. “The twenty-four hour rule? What’s that?”

  “He thought,” Goodman explained, “that if you witness a murder and don’t report it within twenty-four hours, you can be charged with the murder yourself.”

  “Is that true?”

  Another chuckle. “No.”

  “Did you tell him there was no such thing as the twenty-four hour rule?”