Tribal Court (David Brunelle Legal Thriller Series Book 2)

by Stephen Penner

  Brunelle stopped for a moment to consider her assertion. She took advantage of the silence to steer the conversation back on track.

  "So anyway," she said. "Why were you in a Pierce County casino parking lot not quite witnessing a murder?"

  "It was the night before the arraignment," Brunelle explained. "I spent the night at a hotel down there so I wouldn't be late the next morning. I was walking across the parking lot on my way back to the hotel when I heard the kid scream."

  "Kid?"

  "Yeah," Brunelle frowned. "Turns out he was sixteen."

  "Ouch. That's not much older than Lizzy."

  "Yeah, but Lizzy's not a gang member with a cousin up for murder."

  Kat nodded. "Thank God for that. So, cousins, huh? And both gang-bangers. But thirty miles apart. Probably not related, Sherlock. You might want to leave the sleuthing to the detectives."

  Brunelle nodded casually. "That's what I was thinking too," he said looking down at his plate and pushing some food around absently, "until I compared their autopsy report with yours."

  Kat took a sip of her wine. "Are the wounds really that similar?"

  Brunelle grinned and pulled out his cell phone. "See for yourself. I scanned the reports and emailed them to my phone."

  Kat took the phone and began tapping the screen. Brunelle ate silently as she read the reports, muttering medical examiner phrases like 'sharp force trauma' and 'peritoneal membrane.'

  "David." She finally looked up. "These injuries are basically identical."

  Brunelle nodded. "I know," he said through a mouthful of salmon.

  "Even the length of the incision and the depth of the wound," Kat remarked. "I mean, if I didn't know better, I'd say it was the same knife."

  "Thank you, doctor," Brunelle replied with a smile. "No further questions."

  Kat jerked her face from the phone screen. "No further questions? What? You knew I'd say that?"

  "I hoped you would," Brunelle shrugged. "I thought the same thing, but you're the expert, not me, so you need to say it."

  "Is that what this was all about?" Kat threw down her fork. "This whole fucking dinner? Just to cross examine me?"

  Brunelle could feel his face starting to flush. "Well, to begin with, it's direct examination. You're my witness."

  "Like hell I am, David Brunelle," Kat spat. "I'm not your anything."

  The other diners were starting to look over. "Look. I'm sorry," Brunelle whispered. "It's just shop talk. I, I thought you'd be interested."

  "Bullshit," Kat sneered. "You knew I wasn't returning your calls. You were afraid I was mad at you. So you finally asked me out to dinner again. You figured I wouldn't help you if I was mad at you, so you had to give in and ask me out again."

  Brunelle shook his head, but kept his eyes cast downward. "No. That's not it."

  Kat scoffed. "Of course it is, Mr. Callous-and-Cocky. And I finally saw through it. But not until you got what you wanted. You bastard."

  The waiter hurried over to their table. "Are you ready for the check?" he suggested nervously.

  "Oh, no," Kat replied with a glare at Brunelle. "Bring me a dessert menu, my good man. My date's paying so I'm going all out tonight."

  "Very good," the waiter answered. He turned to Brunelle. "Would you also like a dessert menu, sir?"

  "No, thanks," Brunelle squeaked. "I'm not getting any tonight.

  Kat laughed darkly. "You got that right, buddy."

  Chapter 13

  The only saving grace to the crash-and-burn that was dinner with Kat was the fact that it pissed Brunelle off to be called out like that. And since there was no chance he'd be distracted with further dates in the foreseeable future, he was able to channel his anger into the work of preparing for the motions hearing in front of Judge LeClair.

  Moreover, since one of the two motions was to disqualify him from the case and he was getting pretty tired of being the paleface, outsider, punching bag, he didn't spend too much time on that one. In fact, he may have spent more time trying to convince Duncan to let him concede the motion than actually writing the response, which consisted of little more than pointing out that his presence on the case had been a carefully negotiated agreement between two sovereigns in the exercise of a tenuous and politically charged treaty.

  That left Brunelle plenty of time to prepare for his argument regarding Talon's bullshit 'blood revenge' defense. His initial motion to suppress was a simple two page document, but it was followed by a twenty-plus page, heavily footnoted brief explaining why the defense was, historically and legally speaking, a load of crap. It was little more than a thinly veiled attempt at jury nullification—an effort to wink at the jury, tell them the victim basically deserved it, and hope they let the murderer walk despite the law.

  Brunelle was a trial lawyer. His skills lay in the courtroom, not the law library. Giving opening statements, cross examining witnesses, bringing the house down with monumental closing arguments. Writing briefs was not his strong suit. He'd hated his stint in the drug unit, responding to all those motions to suppress for allegedly illegal searches, and he'd managed to avoid the appellate unit altogether. He'd have been happy never to write another brief in his life. But this brief—'Prosecutor's Memorandum of Law in Support of Motion to Exclude Proffered Defense'—was pretty damn good, if he did say so himself.

  It hit just the right balance between respect for tribal tradition and due deference to insistence on justice. He delved into their own history to show why—even within their own culture—that defense shouldn't be available to Quilcene. It was one thing for Brunelle to say, 'Our law doesn't allow this.' But it was quite another to be able to say, 'And neither does yours.'

  He was proud to have written it.

  He just wished he hadn't let Freddy argue it. "Great brief," Freddy had said the week before when they met to prepare for the hearing. This time, Freddy had driven up to Seattle—he'd insisted on it. 'Always looking for an excuse to come up to the big city,' he'd said, followed quickly by, 'Oh, and can you get me free parking? It was murder last time I went up there.'

  "But," Freddy had flashed that grin of his, "you should let me argue it."

  "Why?" Brunelle had felt a bit possessive of his hard work.

  "Well, to be honest," Freddy shrugged, "because you're white and I'm Native. Your whole point is that our tribal law wouldn't support the defense. Judge LeClair isn't going to like an outsider telling him what his law is. He's likely to rule against you just to prove a point. But let me argue it and that aspect goes away. Just three tribal members discussing the application of tribal law. And no bossy White Man trying to tell us what to do."

  It had made sense, so Brunelle had agreed. And it might have worked too, if Freddy had actually argued Brunelle's brief. But he didn't. Brunelle could only sit at counsel table and cringe as Freddy veered quickly from reasoned analysis to emotional diatribe.

  "May it please the court," Freddy started innocuously enough. "I have the honor of arguing the prosecution's motion to exclude Ms. Winter's proffered defense of blood revenge. Has the court had an opportunity to read our brief?"

  Everyone seemed surprised that Freddy was going to argue the motion. Brunelle had authored the written memorandum, so it would have been usual for him to present the oral argument as well. Not to mention the fact that Brunelle was the seasoned prosecutor and Freddy was… well, Brunelle hadn't quite figured that out yet, but Freddy was definitely not seasoned. And he was about to prove it.

  Talon seemed especially irritated. She had been clear that she wanted to kick Brunelle's ass, not Freddy's.

  Judge LeClair seemed intrigued. "Yes, I've read Mr., Brunelle's brief."

  "Good," Freddy replied with a dismissive wave of his hand. "Then I won't waste any time repeating his arguments."

  Brunelle slowly raised his gaze from his notepad to his co-counsel. Uh oh.

  "Instead," Freddy almost yelled, "I want this court to consider allowing Ms. Winter's defense. And then some!"
>
  Brunelle's eyes widened. "What are you doing?" he whispered brusquely, but Freddy ignored him.

  "Yes!" Freddy threw up his arms. "By all means, let's embrace our noble and savage past, and declare open season on all who prey on the innocent. Child molesters and elder abusers beware: your lives are worthless in the eyes of the Great Spirit."

  Oh, fuck. Brunelle lowered his head into his hands. He hoped the judge might stop Freddy, but no such luck.

  Freddy extended calming hands to everyone in the courtroom. "I know, I know. I'm exaggerating. For effect. But this is a serious issue—one that deserves serious consideration. What the defense is arguing is that, because the tribal jurisdiction for this trial rests in an ancient treaty, then we should apply ancient tribal law. That is, the law and custom of our tribe at the time of the ratification of the treaty. Well, fine, then. Let's do that."

  Brunelle looked up again. He had to admit, he was curious where Freddy was headed with it all. A glance around the courtroom confirmed that the judge and gallery were engaged. Even Talon had set down her pen and was watching Freddy intently, her pretty face resting on her manicured fist.

  "Let's ignore," Freddy continued, "some of those ancient Native traditions revolving around things like slavery and women's rights. Let's ignore the fact that every culture matures and progresses and abandons practices it later comes to find outdated or even abhorrent. Let's assume nothing ever changes and what was once a crime or defense is always a crime or defense.

  "Ms. Winter wants the court to instruct the jury that they should acquit the defendant if they find that he killed the victim in retaliation for the molestations of his niece by that same victim. Fine, let's do it."

  "Freddy…" Brunelle whispered, but to no avail.

  "But let's also instruct them," Freddy proposed, "that someone from Mr. Quilcene's family must be killed to settle the debt created by the murder of George Traver."

  Gasps thrilled through the gallery. Talon just stared at him over her blood-red fingernails. Brunelle rubbed the bridge of his nose. He wondered just how far Freddy would go with it.

  "Let's get photographs of every member of Quilcene's family," Freddy suggested. "Grandmas and babies and fourth cousins thrice removed. Let's write some bios for the jury. Let's really let them know who's who in the defendant's family. Maybe even a PowerPoint presentation, complete with soundtrack and the sounds of children playing and laughing."

  He paused.

  "And then we make the jury pick which one of them dies. Which one dies to settle the score with the defendant? He upped the ante when he killed George Traver. Traver is dead, Now, someone in Quilcene's family must die."

  Talon finally reacted. "Objection, Your Honor. Counsel is completely mischaracterizing my argument."

  "Objection overruled," Judge LeClair said without even looking at her. "Continue, Mr. McCloud."

  "Thank you, Your Honor," Freddy nodded to the judge. "Yes, by all means. Let's get more blood. This is blood revenge after all, correct? Blood revenge leads to blood feuds, and we all know feuds never really end. They're feuds. That's the whole point. They never stop. Hell, this one has just started. One death isn't a blood feud. It's murder. But two deaths? Three? More? Now we're talking."

  Brunelle found himself staring at Freddy, transfixed by the audacity of his argument.

  "So, the only question is: who is worth the life of George Traver, the child molester? There probably aren't that many people that low. Our next victim would need to be a criminal himself. Someone immersed in the criminal lifestyle. Someone who holds himself out as a thug. Someone who, if he ended up with the same damn knife in his own chest, no one would miss any more than George Traver."

  Brunelle's eyes widened. 'The same knife.' Oh my God.

  "But will that end it?" Freddy asked rhetorically. "Not likely. It's a feud, remember? A blood feud. Our glorious tradition of blood revenge often led to another one of our glorious traditions: the Mourning War, where the revenge never stopped and families and tribes were trapped in a never-ending cycle of revenge and murder. So I say, if we're going to let the jury have this question—if they're going to be asked to apply ancient tribal custom as modern day law—then let's really make them do it. If they say 'not guilty' by reason of blood revenge, then they have to fill out a blood feud schedule. Five or six members of each family and the order in which they should be killed."

  Brunelle looked over at the defense table. Talon was just shaking her head, waiting her turn. Quilcene was staring daggers at Freddy.

  Fitting, Brunelle thought.

  "That leaves one question to resolve," Freddy declared. "Who will carry out the killings? The jury? the judge? Maybe our tribal police? Or best yet, just leave it to the members of our community to kill each other, according to our custom. As long as they stick to the schedule, they won't be held any more accountable for their murderous acts than Johnny Quilcene was for the premeditated intentional murder of George Traver."

  The courtroom reverberated in stunned silence for several seconds.

  Finally, Judge LeClair asked, "Are you done?"

  Freddy, who was practically panting after his impassioned monologue, took a couple more deep breaths and nodded. "yes, Your Honor. Thank you."

  LeClair nodded back, his expression inscrutable. He turned to Talon. "Response?"

  Talon stood up and threw her silky hair over her shoulder. "Thank you, Your Honor. To begin with, I'm not even sure which argument to respond to: Mr. Brunelle's specious treatise on our legal traditions, or Mr. McCloud's ridiculous melodrama." She smoothed out her suit. "I suppose I'll start with Mr. Brunelle's written brief…"

  Freddy sat down next to Brunelle, still breathing heavily, and stared straight ahead. Talon was launching into her attack on Brunelle's perfectly crafted brief, but he didn't bother listening. He'd been around long enough to know that LeClair was going to rule however he was going to rule. One of the biggest delusions trial attorneys nursed was the belief that they ever really influenced the judge. LeClair had probably made up his mind about Talon's defense the same morning she first proposed it at the status conference, anticipating and weighing every argument in advance.

  Well, almost every argument.

  "Impressive," Brunelle whispered to Freddy as Talon droned on. "Did you rehearse that or was it all impromptu?"

  Freddy looked down and shook his head. His grin peeked out of the corner of his mouth. "A little of both, actually."

  Brunelle nodded. "You were smart not to tell me what you were going to say. There's no way I would have let you argue that if I'd known."

  The grin widened. "Yeah, I kind of figured that."

  "But actually," Brunelle went on. "That's not what I found really impressive."

  Freddy turned and looked askance.

  "What's really impressive," Brunelle observed with his own subdued grin, "is that hidden in that overly dramatic, hyperbolic, even buffoonish diatribe, was the fact that you actually believe it."

  Freddy affected a laugh. "Naw. I was just exaggerating. Trying to make a point."

  Brunelle shook his head. "You're not fooling me. That was too passionate. You'd be just fine to let the families fight this out and leave the cops and the courts out of it."

  Freddy stared at Brunelle for several second, then down at the table. "Yeah, well, that's not really an option, so it doesn't really matter."

  Brunelle took a moment to look up at Talon. She was still talking. It seemed like she had moved on to part II, Freddy's argument. Based on where she seemed to be in her presentation, Brunelle figured she'd talk for another three, maybe five minutes.

  "I would think," Brunelle whispered as he turned back to face Freddy, "that the bigger problem is Traver doesn't have any surviving family."

  Freddy turned away again. "Is that right?" he whispered.

  "Yeah. I'm pretty sure I told you that at the casino the other night."

  Freddy didn't reply.

  "What would happen then, Freddy
?" Brunelle pressed. "What happened to the blood feud if one side ran out of family members? Would that end it?"

  Freddy shrugged. "It could."

  "But it might not?" Brunelle asked.

  "Depends."

  "On what?"

  Freddy shifted in his seat. "On whether another member of the tribe agreed to take up the feud on behalf of the victim."

  Brunelle frowned and ran a hand through his hair. "That's what I was afraid you were going to say."

  "…and for those reasons," Talon was summing up, "the court should deny the prosecution's motion to exclude the defense of justifiable homicide by way of blood revenge. Thank you."

  Talon sat down and gave Brunelle a 'How ya like them apples?' smirk. He almost wished he'd listened to her.

  "Any rebuttal, Mr. Brunelle?" the judge asked with a raised eyebrow. The direction of his question to Brunelle and not Freddy was clearly intentional. Also clear, from the expression on his face, was the fact that he really didn't want to listen to any more lawyers talking.

  "No, Your Honor," Brunelle replied. "Thank you."

  Silence fell over the courtroom as Judge LeClair nodded and raised pressed fingertips to his lips. "This is a difficult question," he began. "One with wide-ranging impact. There is no doubt that current Washington law would not permit a jury to consider this killing to be justifiable homicide. At least not for the reasons put forward by Ms. Winter. Under Washington law, this would be a vigilante killing at best, cold-blooded revenge at worst. Under Washington law, this would be murder."

  He paused to take a sip of water.

  "But this isn't a Washington court. This is the Duwallup Indian Tribal Court. And this court's jurisdiction arises pursuant to a treaty between the Tribe and the government of the United States. And that treaty is over one hundred years old. So the threshold question is: Does this court apply Washington law of today, or tribal law of last century?"

  Brunelle looked at Freddy again. He knew they disagreed on the answer to that question.

  "If I decide that Washington law applies," Judge LeClair continued, "then that ends the inquiry and the defense is excluded. But if I decided that tribal law applies, then there is a secondary question: would this really have been a defense?"