DB01 - Presumption of Innocence

by Stephen Penner

  Judge Quinn stared down at Welles for several seconds. “Save it for the jury, Mr. Welles. I just need to know if we can bring your client in.”

  Welles smiled. “By all means, Your Honor.”

  The judge nodded to the guards, who opened a side door to the holding cells built behind the courtrooms. Karpati strutted in, hands cuffed in front of him and a guard right behind him. He was wearing his jail-issued gray pajamas and plastic flip-flops. He grinned at the gallery and shook, as best he could, Welles’ hand.

  “May my client be unhandcuffed, Your Honor?” Welles requested. “I assure you he poses no threat to anyone.”

  Judge Quinn nodded again and one of the guards stepped over to unhandcuff Karpati. Then the guard directed him by the shoulders into the defendant’s chair at the defense table. Welles sat beside him and put his arm around him, whispering something in his ear. Brunelle stayed up at the bar and handed the charging documents to the judicial assistant, who passed them to the judge.

  “At this time,” began Brunelle, “the State is filing charges of Aggravated Murder in the First Degree against Mr. Karpati.”

  That much was on the first page. Brunelle was pretty sure Welles hadn’t looked at page two yet.

  “In addition,” Brunelle went on, “the State is filing a count of Rape of a Child in the Third Degree.”

  That got Karpati’s attention. He surrendered an agitated “What?!” before Welles grabbed his arm and whispered something in his ear. Whatever Welles said didn’t seem to make Karpati any less angry, but he didn’t say anything more.

  Welles stood up. “We have received copies of the charging documents, Your Honor. We waive a formal reading of the charges, and enter pleas of absolutely not guilty to all counts.”

  Brunelle rolled his eyes at the ‘absolutely.’

  “We would like,” Welles went on, “to be heard on conditions of release pending trial.”

  Brunelle had already pre-filled out the order on conditions of release. Aggravated murder in the first degree was a capital offense. The court always held capital defendants in custody without the opportunity to post bail. Nevertheless, the judge looked at Brunelle. “What is the State’s recommendation as to conditions of release?”

  Brunelle, still dumbstruck by even the request to discuss bail, hesitated before replying. “Uh, we would ask the court to hold Mr. Karpati without bail. This is a capital case, and pursuant to the state constitution, capital defendants are not entitled to bail.”

  The judge turned to the defense attorney. “Mr. Welles, what say you? It is the normal practice of this court to hold capital defendants without bail.”

  “It may be, Your Honor,” Welles said with a flourish of his hand, “but only because I have yet to argue this issue before this court.”

  Brunelle resisted his urge to huff, and instead busied himself by pretending to take notes on Welles’ argument. Judge Quinn raised an eyebrow, but didn’t interrupt.

  “The State constitution does not deny a capital defendant his Constitutional right to bail,” Welles went on. He pulled out a green covered statute book from his large brief case. He flipped it open to the page he had already bookmarked. “It merely makes such assurance explicit for noncapital cases. The actual language is, and I quote, ‘All persons charged with a crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great.’”

  Brunelle looked askance at Welles. The judge did the same. “That doesn’t seem to support your position, Mr. Welles,” she said.

  “Oh, but it does, Your Honor,” Welles smiled. “Listen again. ‘All persons charged with crime shall be bailable.’ All. The only exception is capital offenses. But not all capital offenses. Oh no. Only those where the proof is evident or the presumption great. Well, we know what the presumption is. My client is presumed innocent. The presumption is great, your honor, in fact it is sacrosanct. But it is a presumption of innocence and therefore a presumption of bail.”

  “What about the part about the proof being evident?” Judge Quinn asked.

  “Precisely!” Welles threw a hand in the air. “What about that evident proof? Where is it? Is it here today? Has the State brought anyone to present this evident proof? No, of course not. Because my client is innocent. Innocent, I say. And I daresay they know that, and that is why they have not brought any evidence to today’s hearing. Just some flimsy pieces of paper drafted by the prosecutor this morning. There is no proof in this case, Your Honor. None. And therefore, under the constitution of this great State, you, Your Honor, with all due respect, you are absolutely prohibited from denying my client bail.”

  Judge Quinn let her stare linger at Welles for a minute. Then she pursed her lips and looked at Brunelle. “State’s response?”

  “The State has filed a criminal complaint,” Brunelle responded evenly, “which charges the defendant with the crime of aggravated murder in the first degree. That is a capital offense. Attached to the complaint is a summary of the investigation which includes information from an eyewitness that the defendant committed the crime in her presence. The proof is evident. The court should deny bail.”

  “The eyewitness,” Welles laughed, “is a fifteen-year-old drug addict, with a history of lying to the police, whose fingerprints were found at the scene and who has every reason to claim someone else did it. In addition, she is currently charged in juvenile as a codefendant, and therefore cannot be called as a witness by the State at my client’s trial without violating her Fifth Amendment right to remain silent. The police officers will not be permitted to testify as to what she said, because that would be hearsay and would deny my client his Sixth Amendment right to confront the witnesses against him, mainly this lying little miscreant. There is absolutely no admissible evidence against my client and the first thing I will be doing after this hearing is drafting up my motion to dismiss this case.”

  The judge looked back to Brunelle. “Is the girl charged out at juvenile hall with this murder?”

  “She is, Your Honor,” Brunelle admitted. “However, I have already had negotiations with her attorney and I have a good faith belief that she will be available to testify at Mr. Karpati’s trial. In fact, Your Honor, the girl in question is the victim of count two, the rape of child in the third degree, so the State has already been contemplating needing to call her as a witness for that count.”

  Judge Quinn nodded as she considered the arguments.

  “You Honor, if I may respond?” Welles tried, but she waved him off.

  “No. Mr. Welles, thank you. I believe I understand your argument. I also believe it has some merit. We regularly set no-bail holds on capital defendants, but I hadn’t really thought about that evident proof requirement until you argued it just now.”

  She tapped her lips in thought.

  “Here’s what we’re going to do. I am going to rule that the State must present evident proof before I can deny bail.”

  Brunelle clenched his jaw, but didn’t say anything.

  “I’m also going to find that they haven’t done that here today. I think an affidavit from the prosecutor can be enough, but not if the evidence comes from a witness who might be unavailable at trial.”

  “Your Honor—” Brunelle tried, but Judge Quinn shushed him as well.

  “Sorry, Mr. Brunelle. You’ve had your chance to speak. We will schedule a hearing in one week. I will give the State a chance to present this evident proof. It can be done in affidavit form by the prosecutor. You don’t need to bring live witnesses in, Mr. Brunelle. That’s what the trial is for. But any witness you reference in the affidavit had better be available as of next week. That means you better get that deal worked out with the girl before the bail hearing, or I’m liable to find there is not evident proof to justify a no bail hold. Do you understand?”

  Unfortunately, Brunelle did.

  “In the meantime, I will allow bail.”

  “Thank you, Your Honor,” said Welles. “We woul
d ask the court to set a minimal amount, perhaps five thousand—”

  “Ten million dollars,” announced Judge Quinn. “It’s still a capital case, Mr. Welles, evident proof or not.”

  Welles was about to argue, but then thought better of it. “Yes, Your Honor. Thank you, Your Honor.”

  “Anything else, Mr. Brunelle?”

  “No, Your Honor.”

  “Then this matter is concluded,” the judge declared. “We will see you back here in one week, ready to argue bail and any other matters duly noted.”

  Judge Quinn stood up and stepped out as the judicial assistant instructed everyone to stand again.

  “Nice argument,” Brunelle whispered to Welles as he collected up his things.

  “Wait until next week, Dave,” Welles whispered back.

  Chapter 8

  “You have reached the voicemail of Jessica Edwards of the King County Public Defender’s Office. Please leave a message and I will call you back as soon as possible. If you are a client and currently detained in the King County Jail, press zero to speak with the receptionist.”

  “Jess, it’s Dave,” Brunelle said into his phone even as Duncan darkened his door and gave him the charades version of ‘come to my office when you hang up.’ “Just calling to firm up the deal with Holly. A little unexpected change of plans this morning. I need to have this in place by next week. Call me.”

  Then he hung and walked the short distance from his nice office to Duncan’s very nice office.

  “Heard what happened this morning,” Duncan said as Brunelle stepped in and sat down.

  “Yeah, that kind of sucked. But I’m pretty sure he won’t post ten million.”

  “He only needs ten percent to get a bonding company to do it for him,” Duncan observed.

  “That’s still a million cash. And he wouldn’t get it back at the end. But it doesn’t matter because I’ll get that no bail hold next week. Just need the get the girl signed up.”

  Duncan frowned, then nodded. “I’m sure you’re right. Now have you given any thought to a co-counsel?”

  Brunelle shook his head. “No, not yet. I was trying to think of someone who could use the experience but wouldn’t get in my way.”

  “What about Yamata?” Duncan suggested.

  “Michelle Yamata?” Brunelle confirmed. “Uh, well. I’ve heard good things about her.”

  He’d heard bad things too. Like she filed a harassment complaint against her last employer, one of the boutique litigation firms in town, and left as part of the settlement. Brunelle didn’t want to be anywhere near her.

  “Do you think she’s ready?” Brunelle questioned. “I know there are some more senior attorneys who haven’t had the chance yet to work on a capital c—”

  “She’s ready,” asserted Duncan. “And she’s better than those other attorneys.”

  She was also far more attractive. Duncan had a penchant for hiring the most attractive job applicant. Yamata, a tall leggy Japanese-American woman, was certainly one of his more attractive hires. She was also at least ten years younger than Brunelle and would, as co-counsel, be in exactly the type of position to him that would support another claim.

  “Can I think about it?” Brunelle asked.

  “Not any more,” Duncan smiled and stood up. “Michelle, thanks for coming.”

  Brunelle turned and saw Yamata standing in the doorway. She was wearing a burgundy power suit and dark stockings with the suggestion of a fishnet design. Brunelle managed to smile as he extended a hand.

  “Welcome aboard, partner,” he said.

  Yamata shook his hand strongly. “Thanks. But welcome aboard what?”

  Her voice was deeper than Brunelle would have expected. It bothered him that he even noticed. He was really going to have to be careful.

  “Dave?” Duncan punted Yamata’s question to him. Brunelle smiled anyway.

  “I need a second chair,” Brunelle started, then opted for more equal terminology, “that is, co-counsel for a capital case I just filed.”

  “Capital?” confirmed Yamata. “As in death? Oh yeah, I’m on board. Can I shove the needle in his arm?”

  She laughed a deep, throaty laugh.

  Brunelle wasn’t sure what to think. He was pretty sure he was scared.

  But he kind of liked her attitude too.

  “When do I start?” she asked.

  “Right now,” declared Duncan. “Why don’t you go down the hall to Dave’s office and he’ll brief you on the case.”

  “Great,” said Yamata. “I know where your office is.” And she started down the hallway, her tight ass swinging invitingly down the hall.

  Brunelle turned from the sight and forced a smile to Duncan. “Thanks, boss.”

  Duncan winked. “I knew you’d approve. Go get her, tiger.”

  Brunelle nodded, but the smile slid from his face as he turned and followed his new partner to his office.

  ***

  She was sitting in his chair. “Nice view,” she motioned toward his windows and Elliot Bay beyond. “I have an interior office in the drug unit.”

  She popped up and danced to one of the chairs across his desk. “I can’t wait to work on a murder case. I’m so sick of drug possession trials. Two rocks, two cops, two days. I want something I can really sink my teeth into.”

  She leaned forward as Brunelle sat in his chair. It smelled of her perfume. She had really nice perfume.

  “Just tell me what to do, Mr. Brunelle. I’ll do anything you say. Anything.”

  Brunelle succeeded in forcing out the improper thoughts that rushed toward his mind’s eye. Instead, he said, “Let’s start with not calling me ‘Mr. Brunelle.’ That makes me feel old. ‘Dave’ will be fine.”

  Yamata smiled, a bright, full-lipped, red-lipstick smile. “Okay, Dave. So, what do I do first?”

  “First,” said Brunelle. “You listen.”

  Then he pulled the binder of scene and autopsy photographs off of his bookshelf and slid it across the desk to her. “And follow along.”

  So he told her the facts of the case. Everything from Holly’s fingerprint on the note to Karpati’s high-priced asshole defense attorney. She had tried to follow along in the binder, but couldn’t quite make it through all the photographs. When he’d finished, he asked, “Any questions?”

  Yamata paused, then answered, “Yeah, one.”

  “What is it?”

  “Seriously,” she said, “Can I shove the needle in his arm?”

  Brunelle appreciated her enthusiasm. “Sorry, no. There’s a separation of powers thing or something. But let’s take it one step at a time. We have to get a conviction first.”

  Yamata grinned. “Right. First thing’s first.”

  But that reminded Brunelle of what really came first. “Actually, the first thing we have to do is lock in his accomplice as our witness.”

  Then he explained what had happened that morning.

  “Wow, that sucks,” Yamata observed. “Hope he doesn’t bail out before then.”

  “Well, I don’t think he will,” Brunelle answered. “But even if we do, the judge will take him back into custody if we can show her he has to be held without bail.”

  “Need a brief?” Yamata offered. “My briefs are exquisite.”

  Brunelle nodded. “Of course they are.”

  Then he shook the thoughts of her panties—her exquisite panties—from his head. “That would be great. First thing to research is that ‘no bail’ issue. My guess is Welles is full of shit. That provision has been in the Constitution since 1889. I bet there’s case law that interprets it the way we want.”

  “That’s why he did it orally,” Yamata suggested. “If it was written, you would have had time to research it.”

  Brunelle grimaced. “Yeah, he’s pretty sleazy. But it might come back to bite him if Quinn feels like he tricked her.”

  “Is there anything else we need?” Yamata asked.

  Brunelle rubbed his chin. “It might be useful to kn
ow whether we can rely on Holly’s statement even if we don’t have her on board. Once Jess gets wind of our predicament, she’s gonna squeeze me—us—for a better deal.”

  Yamata stood up and leaned over his desk. He managed not to look at her chest. Just barely. “My briefs will be on your desk in the morning.”

  Brunelle sighed. “Great, Michelle. Great.”

  Chapter 9

  “Dismissal?” Brunelle was incredulous. “Is that supposed to be a joke?”

  “No joke, Dave.” Edwards leaned back in the chair across Brunelle’s desk. She had stopped by after court on another matter. Nothing like face to face negotiations. “I heard what happened this morning. The whole courthouse is talking about it. Welles kicked your ass.”

  “Welles’ client is in on ten million dollars bail,” replied Brunelle. “That’s not exactly an ass-kicking.”

  “He should be in on no bail,” observed Edwards.

  “He will be.”

  “Not without my client.” Edwards crossed her arms and grinned. “Dismissal.”

  Brunelle appreciated the hardball tactics, but he wasn’t about to dismiss one case outright to maybe get a conviction on another.

  “Well, here’s what I know.” Brunelle folded his hands on his desk. “I have two defendants. One of them gave a full confession. So I’m going to get at least one conviction. It’s up to you and your client to decide whether it will be her or him.”

  Edwards’ smile faded just a bit. Just enough for Brunelle to know she understood.

  “Don’t get me wrong, Jess. I would much rather convict Arpad Karpati. I believe Holly when she says it was all his idea and he did it while she puked in the bathroom. But Welles has a point. It’s a very self-serving statement. She really minimizes. I cut her a dismissal and the jury may well believe I jumped to conclusions and cut the wrong person a deal. But if she pleads to something less, like maybe burglary, she’ll do less than a year in juvi prison, and when I put her on the stand, that very conviction supports one of the aggravators I’ll be trying to prove. Fits nicely with my case theory.”