Presumption of Innocence (David Brunelle Legal Thriller Series Book 1)

by Stephen Penner

  "What the hell are you doing?!"

  Jessica Edwards was angry. Livid. Maybe even apoplectic. She was inches away from Brunelle's face, which under certain circumstances might not have been so bad. But 8:50 in the morning in Judge Quinn's courtroom on that case were not those circumstances.

  "I'm calling your client to testify," Brunelle answered calmly, taking a half step back.

  "She didn't agree to testify, Dave. You can't do this."

  "I didn't say," Brunelle crossed his arms, "I was enforcing a plea agreement. I said I was calling her to the stand. I don't need your permission to do that, Jess."

  Edwards threw her arms up. "Of course you do, Dave. She's just gonna plead the Fifth. You can't call a witness just to plead the Fifth in front of the jury."

  Welles, who, along with Yamata, had been content to watch Brunelle and Edwards have it out, spoke up. "She's right. I won't let you do that."

  Brunelle glared over at Welles. "It's not really up to you. Last I checked you were still one of the attorneys, not the judge."

  "It's settled law, my dear David," Welles replied. "You can't call a witness just to plead the Fifth Amendment. When the judge comes out, she'll ask, like she does every time she comes out, if the lawyers have anything before the jury is brought in. I assure you I will move to prohibit this charade."

  Brunelle narrowed his eyes. He knew Edwards and Welles were right. But he also knew it was always easier to say you were going to do something than to actually do it. She might back down and testify after all.

  And he had a Plan B. But both plans required Holly's butt on the witness stand.

  "Fine," he said. "Bring out the judge."

  The bailiff raised an eyebrow at him. The judge would come out when she was ready. But it was almost nine o'clock, so they didn't have to wait long before the bailiff called out, "All rise!" and Judge Quinn took the bench.

  "Good morning, counsel. Any matters before we bring in the jury?"

  Welles threw a sneer over at Brunelle, then a smile up to the bench. "Yes, Your Honor. It appears Mr. Brunelle has some theatrics planned for this morning. He intends to place Holly Sandholm—the one person who has confessed to this murder—on the stand for the sole purpose of having her invoke her right against self-incrimination in front of the jury. The idea is to bolster the State's unsupportable assertion in its opening statements without actually presenting any competent evidence. Obviously, this is improper and I would ask the court to prohibit it."

  Quinn rolled her head to Brunelle and glared down her nose at him. "Please tell me this is a misunderstanding, Mr. Brunelle. You don't really think I'm going to allow you to do that, do you?"

  Brunelle nodded politely. "I think it is a bit of a misunderstanding. Ms. Sandholm is here this morning and the State does wish to call her as a witness. It's one thing to say you're going to refuse to testify under the Fifth Amendment; it's another to actually do it. But we have no objection to the court having Ms. Sandholm initially take the stand outside the presence of the jury to see what she says."

  Quinn stared at Brunelle for a few moments, then looked back to Welles. "Any objection to that procedure, Mr. Welles?"

  "I'd like to object, Your Honor," Welles laughed, "but I'd rather just get on with it. I have no doubt that Ms. Sandholm will refuse to testify. The sooner we can get this parlor trick over with, the sooner my client can be acquitted and go home."

  "Well, I object!" Edwards stepped forward.

  Judge Quinn raised an eyebrow. "Ms. Edwards. You represent Miss Sandholm, I take it."

  "Yes," Edwards tossed back her straight blond hair. It was one of her signature moves. "I object to my client being transported here without any notice to me—"

  "I left you a voicemail," Brunelle interrupted.

  Edwards narrowed her eyes at him. "At seven-thirty last night. If I hadn't checked my messages first thing this morning I'd be in a completely different courtroom this morning."

  "Ms. Edwards," the judge drew her attention back up to the bench. "Let's set aside the notice issues for a moment. We're all here now and I have a jury waiting. Is there any reason your client can't just take the stand and formally assert her Fifth Amendment rights?"

  Edwards huffed and threw her hands wide. "Yes, Your Honor! She's scared to death of the defendant. She's a victim too. He raped her. The State even charged him with that before they dropped it for some reason."

  "The reason," Brunelle stepped forward, "is that she refused to testify. Maybe she'll rethink it now that she's in a safe environment. Maybe we refile that charge."

  "Well, now, I would object to that," Welles interjected. "Mandatory joinder rules clearly provide—"

  "Enough, enough!" Judge Quinn raised her voice. The lawyers instantly silenced theirs. "There is no point in discussing who might object to what might happen if something else happens. Put Miss Sandholm on the stand and see what she does."

  The judge nodded to the jail guard, who turned and opened the secure door to the holding cells behind the courtrooms. As they waited for Holly to be escorted into court, Yamata stepped up and whispered into Brunelle's ear.

  "You told the family about this, right?"

  Brunelle shook his head slightly. "No, there wasn't really time. Why?"

  "Because the parents are in the gallery, and they're looking panicked."

  Brunelle turned to see Mr. and Mrs. Montgomery sitting in the front row of the public seating section. They didn't look exactly panicked to him, but they didn't look happy either. Mr. Montgomery motioned for them to come over.

  "What's going on, Brunelle?" he demanded when they did.

  "I'm not going to let her off the hook quite so easily," Brunelle answered. "She can't just claim she's going to invoke her right to remain silent. We're going to make her take the stand and do it."

  "Do we need her testimony?" Mrs. Montgomery asked.

  Brunelle sighed. "Honestly... yes. It wouldn't hurt, at least."

  "But what if she does refuse to testify?" was Mrs. Montgomery's follow up question.

  "Don't worry," Brunelle assured. "I have a back-up plan."

  "What's the back-up plan?" Mr. Montgomery demanded.

  "The only way you get to claim the Fifth Amendment is if what you say would subject you to criminal penalties," Brunelle explained. "I can make that go away by giving her immunity."

  The Montgomerys both stared at him for several seconds. "Immunity?" Mrs. Montgomery asked.

  "Yes," Brunelle said. "I can do that unilaterally, even without an agreement. I do that, and she can't plead the Fifth any more."

  Before either of the Montgomery's could say anything more, the guard brought Holly into the courtroom.

  Brunelle excused himself with a shrug then returned to counsel table to watch Holly be marched up to the witness stand.

  She stared straight down at her feet the whole time. As she passed Karpati's table he made a kissing noise, but by the time anyone realized what he'd done, Holly was sitting down. Edwards stepped over and whispered something into her ear.

  "Mr. Brunelle?" Judge Quinn invited.

  "Thank you, Your Honor," Brunelle replied. Then, turning to Holly, he started. "Could you please state your name for the record?"

  "My client," Edwards said in response, "invokes her right against self-incrimination under the Fifth Amendment of the United States Constitution and Article One, Section Seven of the Washington State Constitution."

  Brunelle shrugged and looked up at the judge. "She has to do it personally, Your Honor."

  Judge Quinn looked down at Edwards. "Mr. Brunelle is right. She does have to do it personally."

  When Edwards frowned, the judge went on. "I don't expect her to cite constitutional provisions, but she has to say herself that she's refusing to testify."

  "I refuse to testify," Holly blurted out.

  Edwards smiled. The judge did too. "Is that good enough for you, Mr. Brunelle?"

  Brunelle shrugged again. "I think the question
is whether that's good enough for Your Honor. Just let me know when you find it to be an invocation of her right against self-incrimination so I know when to go ahead and grant her immunity."

  "Immunity?" Welles slammed the table as he stood up. "You're going to grant immunity to the only person who admitted to the murder?"

  Edwards whispered hurriedly into Holly's ear. Holly sat up straight and said, "I invoke my right against self-incrimination. Under the constitution and stuff."

  Judge Quinn crossed her arms and leaned back in her chair. She smiled slightly and looked down at Brunelle. "I can't tell the prosecutor's office what to do regarding immunity. I will find that Miss Sandholm has invoked her right against self-incrimination, and I rule that the State may not call her as a witness in front of the jury just to invoke that right again."

  She leaned forward. "So what are you going to do, Mr. Brunelle?"

  But before Brunelle could respond, Yamata tugged his jacket sleeve and pointed to the gallery. The Montgomerys were trying to get his attention.

  "May I have a moment, Your Honor?" Brunelle asked.

  "Of course, counsel. But remember, the jury is waiting."

  Brunelle and Yamata stepped to the half-wall separating the gallery from the counsel area.

  "Please don't grant her immunity," Mrs. Montgomery pleaded. "That other lawyer is right. She confessed to this. You can't just let her walk away."

  Brunelle frowned. "If I don't, Karpati might walk free."

  "We know," Mr. Montgomery said. "But we don't want both of them to walk free."

  Brunelle pursed his lips as he considered for a moment.

  "She could still refuse to testify, you know," Yamata pointed out to Brunelle. "Just because she doesn't have a privilege to claim doesn't mean she has to say anything. She could just sit there and refuse to answer questions."

  "What would happen then?" Mr. Montgomery asked.

  "The judge would hold her in contempt," Brunelle answered. "And put her back in jail until she agreed to testify."

  "Or until the trial is over," Yamata said. "The judge isn't likely to hold up the whole trial for this late gambit. If she can last another week in jail without testifying, the case will be over and she'll be released."

  "That doesn't seem worth it," Mrs. Montgomery observed.

  Brunelle had raised a finger to his pursed lips. "Actually, there's something even worse, I just realized."

  "What?" Mr. Montgomery asked.

  "If she does testify," Brunelle explained, "and says she did everything and Karpati did nothing, wasn't even there. I can't revoke the grant of immunity. She'd still walk. And most likely so would he."

  "Mr. Brunelle?" the judge called out. "What is the State going to do?"

  Brunelle looked at Mr. Montgomery, Mrs. Montgomery, and Yamata in turn. Yamata frowned and shook her head. Brunelle agreed.

  "Nothing, Your Honor," he announced as she stepped back to his table. "We're done with Miss Sandholm. No immunity."

  Then, under his breath, "Damn it."

  Brunelle tapped on his legal pad and frowned as the bailiff went to collect the jury.

  "You know," Welles leaned over and whispered to him, "you could still call that fake Holly of yours. You know, the one you unethically sent into the jail to entrap my client?"

  Brunelle looked out of the corner of his eye at his opponent but didn't say anything.

  "I won't even object to the late notice," Welles went on. "Just tell me her name."

  Brunelle finally turned to face Welles, and in so doing noticed that Karpati was looking at him as well, pen at the ready over his own legal pad.

  "You want her name?" Brunelle asked.

  Welles smiled. "Only to be properly prepared, I assure you."

  Brunelle nodded thoughtfully. "How about initials?"

  "Better than nothing," Welles replied.

  They all stood as the jury entered the room. Brunelle raised a hand to block his mouth from the jury's view. "F.U."

  Chapter 35

  The next morning found Yamata in Brunelle's office. Brunelle hung up the phone and sighed.

  "Chen says they're gone," he reported. "All of them, just vanished."

  "Every last No Blood?" Yamata confirmed. "I thought they were supposed to be tough? Stand their ground or guard their turf or something."

  Brunelle shrugged. "I'm sure if it were a rival gang, they'd still be there, spoiling for a fight. But when being around means getting picked up on a subpoena and helping the Man put one of your brothers in prison? Guess not."

  "So what do we do?"

  Another shrug. "We hope Chen can scrape somebody up while we're in court today. We're running out of witnesses." Then he recalled who the morning's first witness would be. "You ready?"

  Yamata smiled. "Oh yes. Let's see what the good doctor has to say."

  ***

  "Kat Anderson. Assistant Medical Examiner."

  She identified herself for the jury with a pleasant smile, being sure to turn and address her responses to the jurors, not Yamata, who would be asking the questions. The decision to have Yamata do the direct exam had been easy. Yamata needed the experience examining a coroner.

  And Kat was still pissed at Brunelle. The last thing they needed was Brunelle asking to have the M.E. declared a hostile witness.

  "Are you familiar with the autopsy of Emily Montgomery?" Yamata began.

  "Yes," answered Kat. "I performed it myself."

  "Let's begin at the beginning then," Yamata directed. "What is the purpose of an autopsy?"

  Kat nodded and turned again to the jury box. "The purpose of an autopsy is to determine the manner of death."

  Yamata checked off the questions on her notepad. "And what are the possible manners of death?"

  "There are four," Kat answered. "Natural causes, accident, suicide, and homicide."

  "Were you able to determine the manner of death of Emily Montgomery?"

  Again a look to the jury. "Yes."

  Yamata nodded. "And what was the manner of Emily's death?"

  "Emily Montgomery's death was a homicide."

  Although expected, this response elicited a confirmatory ripple through the jury. But Brunelle knew it wouldn't be enough. There was no real question that it was a homicide. 'Homicide' just meant being killed by someone else. Self-defense and lethal injection are homicides too, but they're legal. The real question was whether it was murder—unlawful homicide. And if so, did Karpati do it?

  "Thank you, doctor," Yamata continued. "So the manner of death was homicide. What was the cause of death?"

  "The cause of death," Kat answered, "was cardiac arrest brought on by an acute loss of blood."

  "And were you able to determine what caused this loss of blood?"

  "Yes," Kat replied to the attorney, then turned to tell the jury, "The only injury to the body was a laceration to the neck, impacting the carotid artery."

  Kat illustrated the location of the artery by pointing to her own throat, on the right side, just below the corner of her jaw.

  "How large was the laceration?" Yamata asked.

  "Actually, it was rather small. Just enough to open the artery."

  Yamata nodded thoughtfully as she checked off another question and answer on her pad. "So did it appear to be expertly made?"

  Brunelle expected an objection from Welles. 'Objection! Calls for speculation,' or something like that. But Welles ignored it; he didn't even look up from his note-taking.

  "Well," Kat considered, "in my opinion, yes. The incision was large enough to open the artery and no larger. It's exactly the cut I would have made to sever that artery."

  "And were there any other pre-mortem wounds to the body?"

  Kat shook her head. "None."

  Yamata paused as she turned a page. But really, the pause served more to signal a new, and important, direction in her examination. "Can you please explain the significance of the carotid artery?"

  "The carotid artery leads directly from th
e heart to the brain." Again Kat turned to the jury and indicated locations on her own body. "It's the first place blood goes when it leaves the heart. You see, as blood travels through the body delivering oxygen, it also takes away waste products like carbon dioxide. When the blood gets back up to the heart, the carbon dioxide is deposited into the lungs to be exhaled and fresh oxygen is put into the blood. When the freshly oxygenated blood leaves the heart, the first place it goes is up the carotid artery to the brain."

  "So in a way," Yamata translated, to make sure the jury got it, "that's the purest blood in the body."

  Kat nodded. "I think that's a fair statement."

  "So what effect would a laceration to the carotid artery have?

  "Absent immediate medical care, it would be fatal. It's not a survivable injury."

  "Would a person's heart continue to beat?"

  "Absolutely," answered Kat, "and that's the problem."

  Brunelle leaned back and watched. These two were feeding off each other perfectly. A glance to the jury box confirmed the jurors were interested too.

  "Why is that a problem?" Yamata asked, even though she knew exactly why.

  "As I explained," Kat told the jurors, "the heart pumps blood directly into the carotid artery. But if the artery is severed, the blood can't reach the brain. Instead, it would spurt out of the body with each heartbeat."

  "And would a person die from that?"

  "Absolutely." Kat confirmed. "In a matter of minutes."

  Yamata set down her legal pad. "You saw Emily's body at the murder scene, is that correct?"

  "Yes, that's correct."

  "And she was suspended upside down, is that correct?"

  "That's correct," Kat answered. "I assisted in lowering her body to the ground. She was already dead by the time I arrived on scene."

  "Would being suspended upside down impact the rate of blood loss from incision to the carotid artery?"

  "Yes, it would."

  "Can you explain how?"

  "Certainly." Kat again exposed her neck to the jury as she explained. "The heart is designed to pump blood throughout the body, including pumping up against gravity into the brain. Hanging a body upside down would only accelerate the blood loss through the carotid artery, as the heart pumped hard enough to defeat gravity, but really was being aided by it."