Accomplice Liability

by Stephen Penner

  Brunelle narrowed his eyes at Welles. But then he looked to Chen, who nodded. Brunelle turned back to Ashford. “Okay, Ms. Ashford, go ahead. I won’t interrupt again.”

  Ashford hesitated, her eyes wide in her frail face, then sighed. “Okay, like I said, I didn’t see Derrick get shot. But I know Burner did it ‘cause he told me before that he was gonna do it, and he told me after that he did it.

  “See, me and Burner, well, I was one of his girlfriends. I mean, Sammy is his old lady. They’re, like, a couple. But a man like Burner, he’s too much for just one woman. Sammy lets him get some on the side, so long as it ain’t serious. Just sex for drugs, or a place to crash or whatever. So, when I showed up, Burner was all like, ‘You and me are gonna be good friends.’ He made sure I had enough dope and a place to sleep. And in exchange, I gave him whatever he wanted whenever he wanted it.” She shrugged. “I’m not proud of it, but I ain’t gonna be ashamed either.”

  Brunelle had promised not to interrupt, so instead of saying, ‘I don’t need to know your sexual habits. I need to know who killed Derrick Shanborn,’ he just nodded encouragingly.

  Ashford continued. “So, like I said, Burner told me he was gonna kill Derrick. Derrick had been hanging out with us for a while, but he kinda stopped using. He always had some excuse, but they were lame. Like one time he said he had the stomach flu, and every time somebody offered him a needle, he was like, ‘Oh man, I gotta take a shit.’ At first, it was like, whatever, man. But after a while it got really suspicious. So Burner had somebody follow him and he saw Derrick meeting with some cop.”

  She looked over at Chen. “Not you,” she said. “A white dude. Burner knew him. Said he worked drugs, so Burner knew Derrick had turned snitch. Man, you don’t cross Burner. Derrick was dead as soon as Burner found out. It was just a matter of time. Whenever Burner wanted to kill him, that’s how much longer Derrick was gonna live.

  “Burner told me what was going down and what he was gonna do. He told me the whole plan. They were gonna lure Derrick over to his place and confront him. Make him tell them what he’d told the cops, then they were gonna kill him.”

  Brunelle didn’t interrupt, but Chen did. “Why would he tell you all that?”

  Ashford shrugged. “It wasn’t like he was really telling me. It was more like he was just talking to himself. We had just boned, and he was talking afterward. You know, just lying there and talking after you fuck.”

  Brunelle wanted to make a comment about all the times he’d laid there after sex, talking about who he was gonna murder. Instead, he just said, “Go on.”

  Ashford did. “Well, Derrick was kinda sweet on me. I mean, he knew I was fucking Burner, so he wasn’t gonna try anything, but I saw the way he looked at me. So my job was to call him and tell him to come over to Burner’s place. They figured if Burner called him, he might get suspicious, ya know. He might be paranoid and think Burner knew and not come over. So I called him and told him I was alone over at Burner’s house. I told him I came over with Burner but then Burner and Nate left and so I was all alone. I didn’t say I was gonna fuck him or anything, but I knew he’d come over just in case maybe I woulda.”

  Brunelle nodded. Yeah, that’s how guys think. At least Ashford was credible. So far, anyway.

  “After I made the call, Burner gave me a shitload of dope and told me to go shoot up in the back bedroom. Well, I wasn’t gonna say no to that. I went back there and shot up. It was good shit too. I was fucking tripping. I passed out, I think. When I woke up, Burner was pulling me out of bed and telling me I had to clean up.

  “When I came out front, Josh and Lindsey and Nate were all there, and Derrick was wrapped up in a rug. There was blood all over the walls and the floor. Burner gave me a bucket and a sponge and told me to start cleaning up the blood. And it was hard, ‘cause Derrick was still there, ya know, on the floor. So I just worked on the walls. But Burner said they had to leave his body there until it was dark. Then they were gonna take it down to Nate’s truck and dump it someplace where people would find it. He wanted everyone to know, you don’t snitch out Burner Hernandez.”

  Brunelle finally interrupted with a question. The obvious one. “So why are you snitching him out?”

  “I’ll handle this one,” Welles interjected, much to Brunelle’s irritation. He’d rather hear the answer directly from the witness. Plus, he just really hated listening to Welles talk. “Ms. Ashford came to me because she was aware that the authorities might misconstrue her actions as those of an accomplice to murder.”

  “Calling the victim to come over so the murderer can kill him is pretty much the definition of accomplice,” Brunelle replied.

  “Yes, well,” Welles smiled. “There’s a bit more to it than just that, I assure you. I believe my client may be overstating how much Mr. Hernandez actually told her before the murder—a vital point for any theory of accomplice liability. But I don’t believe you have time for that right now. Suffice it to say, I listened to Ms. Ashford’s story, then made some inquiries into the status of your investigation.”

  Brunelle raised an eyebrow and looked to Chen. Chen lowered his own eyebrows and shook his head. “My officers better not be giving information out to defense attorneys.”

  “My sources are strictly confidential,” Welles responded. “The point is, I knew you needed additional information and I knew you needed it now. The iron was as hot as it was going to get for my client and so I struck.”

  Brunelle frowned and began chewing the inside of his cheek. Welles was right: what Ashford had just admitted to was sufficient to charge her as an accomplice to the murder. But she only said it after Brunelle agreed not to use any of her statements against her. Still, if the others threw her under the bus and were willing to testify against her, she could still be facing a murder conviction and the next two to three decades in prison.

  “What do you want?” Brunelle asked.

  “Rendering criminal assistance in the second degree,” Welles was ready with his answer. “For aiding with the cleanup.”

  “Assisting after a murder is rendering criminal assistance in the first degree,” Brunelle pointed out.

  “And first degree is a felony,” Welles returned. “Second degree is a misdemeanor. She pleads guilty to the misdemeanor and testifies against Hernandez and the rest of them at trial.”

  It wasn’t a great deal. Brunelle hardly wanted to hand a misdemeanor to someone who was probably an accomplice under the law. On the other hand, she was his best chance of holding Hernandez responsible, and giving an accomplice a misdemeanor was a lot better than giving the murderer a free pass.

  “She testifies first,” Brunelle said, “and if she tells the truth, then she gets her misdemeanor.”

  Welles stood up and smiled broadly. “I believe we have a deal.” He extended his hand to Brunelle.

  Brunelle hesitated, then stood too. With no smile at all, he reached out and shook hands with the devil.

  Chapter 9

  Chen escorted Welles and Ashford to the lobby then returned to the conference room.

  “So, you gonna charge Hernandez now?” He asked Brunelle.

  But Brunelle had been asking himself that same question. “What happens when I file charges based on what Amanda Ashford just told us?”

  “The judge will set bail at a million dollars and he sits in jail awaiting trial on first degree murder charges.”

  “Correct,” Brunelle said. “But what about all the other people who were in on it? What happens with them?”

  Chen thought for a moment. “Well, Wilkins is in on those drug charges. We bring him in and add charges of murder.”

  Brunelle nodded. “Okay, easy enough. What about Samantha? Fuller? Rittenberger? What do they do?”

  “They scurry like cockroaches when you turn on the light.”

  “Exactly.” Brunelle stood up. “I can ask the judge for those extra forty-eight hours now. You use that time to scoop up those three. Then, come Wednesday, I’ll charge
all five of them with the murder of Derrick Shanborn and we can have one big happy arraignment.”

  “Should be a hell of a show,” Chen said.

  “Yeah,” Brunelle answered. “Bring popcorn and your tasers.”

  Chen surrendered a chuckle, but his expression remained grim. “That’s gonna be a security nightmare. Maybe we should see if we can have each of them arraigned in front of a different judge.”

  But Brunelle shook his head, and he had no trouble smiling. “No,” he said. “I want them to see each other.”

  Chapter 10

  The judges were less enthused about a quintet of murder codefendants sharing a courtroom. There were only so many corrections officers available, and assigning ten of them to one courtroom was a bit more than the court wanted to allow. Instead, the compromise was to have them heard all by the same judge, but one after another, in the secure courtroom up on the eleventh floor of the King County Courthouse. One judge, three guards, and five holding cells on the other side of a secure door. Also, one prosecutor—Brunelle—and five defense attorneys, one for each defendant.

  Each defendant needed to have his or her own attorney because every one of them might decide to sell out any other one of them. One attorney couldn’t advise a client to snitch out another client of theirs; that was an insurmountable conflict of interest. No, each defendant got their own attorney, and they could each consider selling out some or all of the rest. A wonderful system.

  The problem was, Brunelle needed at least one of them to agree to testify against the others. Amanda Ashford was a good start, but she couldn’t give Brunelle the information he needed most: what exactly happened when Elmer Hernandez shot and killed Derrick Shanborn. So Brunelle decided to charge them all and wait for ‘the race to the phone’ that would ensue as each attorney explained to each client just how fucked they were.

  “Good afternoon, Dave,” greeted the first of the day’s attorneys as she entered the secure courtroom and approached the bar where Brunelle stood, five different files in front of him, ready to start the show. It was Jessica Edwards, one of the senior attorneys at the King County Public Defender’s Office. Whichever defendant drew her was lucky. She had defended at least as many murder cases as Brunelle had prosecuted, and all for a middling government salary. Top shelf representation at rock bottom prices.

  “Afternoon, Jess,” Brunelle returned the greeting. They were routinely adversaries, but that didn’t mean they couldn’t also be friends. “Who have you got?”

  “Mr. Wilkins,” Edwards answered simply. She was ready for battle, dressed in a black suit and a pale yellow blouse to match her shoulder-length blonde hair.

  Brunelle nodded. “Yeah, I figured you’d get either Hernandez or Wilkins. They seem to be the biggest fish.”

  “Well, I don’t know about that,” Edwards replied. “But Mr. Hernandez hired private counsel. I took Mr. Wilkins. The rest we farmed out to local attorneys willing to handle a murder case for the paltry sum the county pays on conflict cases.”

  That conflict of interest rule extended to all attorneys in the same firm, and the public defender’s office was essentially a law firm. So Edwards took the biggest fish who needed public counsel, and sent Keller, Fuller, and Rittenberger out to three private attorneys who were struggling enough to agree to represent a murder defendant for ten percent of whatever Hernandez’s lawyer was charging.

  Brunelle reached into the Wilkins file and pulled out Edwards’ copies of the charging paperwork. “Here you go. We’re going in reverse-guilty order. Hernandez will be last. Wilkins is right before him.”

  “Again, no comment,” Edwards replied, but with a smile. “I’ll just take a seat then. Mr. Wilkins and I are ready.”

  Brunelle spread out the files on the bar and looked at the clock. 1:24. The judge would be out in six minutes. Edwards, of course, was early, and prepared. Brunelle wondered which attorney would arrive next, and who they’d be representing. But court was about to start, so they didn’t show up neatly, one at a time. Instead, they all walked in together at 1:29, talking amicably in the relaxed way the defense bar always seemed to have when they were hanging out together. Brunelle had to admit, his office was a lot more uptight. Probably had something to do with what kind of people were attracted to the job of forcing other people to follow the rules. Not a bad thing necessarily. Just different.

  Brunelle recognized all three of the attorneys who walked in. One was Nick Lannigan, a local DUI and misdemeanor attorney who was trying to graduate to more serious felonies. Brunelle hoped he was representing Josh Rittenberger. In part, because Lannigan shouldn’t be representing anyone more seriously involved than that, and in part, because Brunelle wanted to cut a deal with Rittenberger and Lannigan was going to be scared to death to go to trial.

  Another was Barbara Rainaldi. She was a former prosecutor who left Brunelle’s office about five years earlier to set up a private practice with her husband. By all accounts, she had been a competent prosecutor and was doing fine out on her own too.

  But it was the last attorney that made Brunelle’s heart jump, and not from the fear of a superior litigator. From the rush of seeing a former love—or at least, lover—and the confused combination of excitement and pain at interacting again with someone, his feelings for whom he hadn’t ever taken the pain to really work through. He’d just ignored them and figured it would be a long time until Robyn Dunn was doing homicide cases.

  Lannigan and Rainaldi took their seats next to Edwards. But Robyn strutted right up to Brunelle. “Hello, Mr. B. Long time, no...” She grinned. “Well, we probably shouldn’t talk about that right here.”

  Brunelle could actually hear his heart pounding in his ears. She looked even more amazing than the last time he’d seen her. She had a slightly different hairstyle, shorter and sharper, the curving red hair framing her perfect face and bright blue eyes. That face with its dimple on one cheek, and a beauty-mark scar on the other. Perfect.

  Brunelle had been a trial attorney for over twenty years. He was practiced at concealing his nervousness and presenting a calm facade to judges and juries. He could extend it to former lovers. Maybe.

  “Oh, hey, Robyn. Are you here on this case? Aren’t you still with the public defender? How can you and Jessica both be on the case?”

  That was all way too fast, man, he thought. Ugh.

  Robyn smiled, making that dimple pop. “I left three months ago, Dave. Set up my own practice. I was tired of waiting my turn to work on big cases.” She lowered her voice a notch and looked up at him with lidded eyes. “You know how impatient I can be.”

  Brunelle did know. He also knew that she was playing him, trying to rattle him right before the arraignments, keep him from thinking straight. The worst part was, it was working. And they both knew it.

  Luckily, the judge came out and the bailiff called the courtroom to order. Brunelle could turn his back on Robyn without it being rude. And just in time.

  “Are you ready, Mr. Brunelle?” the judge asked as he took his seat above the participants.

  It was Judge Michael Jankowski. He’d been around for a while, although most recently he’d been in the family court rotation, handling contested divorces and child dependency petitions. He’d grown a salt-and-pepper beard while he was away. Brunelle was glad to see him back doing criminal again.

  “Yes, Your Honor,” Brunelle responded. He grabbed the file on top of his stack and nodded to the corrections officer standing at the secure door to the holding cells. “The first matter that’s ready is The State of Washington versus James Rittenberger.”

  The guard unlocked the door and shouted, “Rittenberger!” into the concrete holding area. Then, to Brunelle’s slight disappointment, Barbara Rainaldi stood up and walked to the bar to wait for her client.

  A few moments later, a disheveled, gaunt, and cowering Josh Rittenberger skittered into the courtroom. Rather than the standard jail outfit—like nurse’s scrubs, but red—he was dressed in the padded gown t
hey gave to the inmates on suicide watch. A determined inmate could hang himself with a standard shirt and pants; not so with two baseball catcher’s chest pads connected at the shoulder and waist by Velcro. Apparently, Josh wasn’t taking his current situation well.

  Brunelle handed the charging documents to Rainaldi, who reduced the arraignment to its most efficient form with a professional, “We acknowledge receipt of the information, waive formal reading, and enter a plea of not guilty.”

  Brunelle appreciated the professionalism. Very prosecutorial. Efficient, no drama.

  They moved next to the bail argument. “The defendant is charged with murder in the first degree, Your Honor,” Brunelle started. “He has prior convictions for simple drug possession and traffic matters. He has a history of failing to appear for court on most of his cases. The state would ask for bail in the amount of one million dollars.”

  Standard request for a murder case. Unfortunately, Rittenberger wasn’t quite the standard murder defendant.

  “Your Honor, Mr. Rittenberger is charged as an accomplice,” Rainaldi responded, “not a principal. A million dollars may be appropriate for the person who pulled the trigger, but it is clearly excessive for someone who, even by the state’s account, was a minor player. My client can likely make arrangements to post bail in the amount of ten thousand dollars, and I will work with him to ensure he makes all of his court dates.”

  Judge Jankowski only considered for a moment before declaring, “Bail will be set at five-hundred-thousand dollars. Other standard conditions apply, including no criminal law violations and no contact with witnesses or codefendants.”

  Brunelle nodded and began filling out the form for conditions of release. Rainaldi stepped away and the in-court corrections officers guided the still handcuffed and apparently confused Josh Rittenberger back to the other guard, who opened the door, pushed Rittenberger through and called out the next name Brunelle announced. “Fuller!”