DB01 - Presumption of Innocence

by Stephen Penner

  “Case theory?” Edwards laughed bitterly. “Listen to you. I’m talking about a young girl’s life and you’re worrying about your case theory.”

  Brunelle raised an eyebrow. “It’s not like her hands are totally clean in this, Jess. She knew exactly what that bastard was gonna do, and she still knocked on that girl’s door.”

  Edwards didn’t have a response ready for that.

  “Don’t try to hardball me, Jess. I’ll cut her a fair deal, but I’m not desperate. Michelle Yamata is already working on the brief that’ll get Karpati in on a no-bail hold, regardless of whether Holly is smart enough to save her skin.”

  “Michelle Yamata?” Jess practically choked. “Yamata’s your second chair?” She started to laugh. “That cheerleader’s gonna file a sexual harassment claim on you the second the case is over.”

  Brunelle forced a smile. “You think she’ll wait that long?” he joked darkly.

  “Well, of course, Dave. She’ll want to notch a capital case in her belt before she gets your ass fired.”

  Brunelle nodded. “Great.”

  “All right, no dismissal,” Jess changed the subject back to their negotiations. “But I don’t like burglary. How about rendering criminal assistance? Burglary is a level eight offense. With her history that means mandatory time in juvi. You cut her a rendering and at least I can argue for credit for time served and probation.”

  Brunelle pursed his lips. He drummed his fingers on his desk. He pushed himself back into his chair.

  “I have to think about it, Jess. That’s a huge reduction. From aggravated murder one all the way down to rendering criminal assistance? I’ll have a lot of explaining to do.”

  That reminded him. Brunelle slapped the desk. “Damn it. I gotta talk to the family before I can offer anything. I almost forgot.”

  “What if they say no?” Jess furrowed her brow. “You’re not going to let them have the final say, are you?”

  “Of course not,” replied Brunelle. “They don’t have any say. It’s my call. But they need to think they had a say. I have to at least pretend to listen to them, explain the options, and tell them why they should agree with what I’m going to do anyway.”

  Edwards looked at her watch. “Well, you better hurry, Dave. That bail hearing is gonna be here before you know it.”

  Brunelle nodded. “Yeah, I know. And I have to meet with someone else first.”

  Chapter 10

  “Grande triple americano with one ice cube, please,” Kat told the barista.

  “One ice cube?” Brunelle asked as he pulled out his wallet.

  “I like to drink it fast,” explained Kat. “And put your wallet away. At least for my drink. I’m paying for myself.”

  Brunelle smiled. “Okay. As long as you’re not paying for me too. I don’t want to owe you anything.”

  Kat looked him up and down. Then she started laughing. “Like hell you don’t.”

  She took her drink and headed for a small table in the corner. Brunelle ordered a brewed coffee and in a few minutes joined her.

  “As much as I’d like to think the coffee invite was because of my dazzling eyes,” Kat batted her eyelashes over her drink, “this is business, isn’t it?”

  Brunelle shrugged and took a sip from his still too-hot coffee. “Probably both. But yeah, I do need to talk to you about the Montgomery case. Have you done the autopsy yet?”

  “Are you kidding? That was a week ago. We don’t let them back up like that. I’ve done that and a dozen more since.”

  Brunelle smiled tightly. “Wonderful.”

  Kat laughed again. “I love my job.”

  “That’s great. Really. I couldn’t do it, I know that.”

  “It’s almost like opening Christmas presents,” Kat enthused. “You never know what you’re going to find inside.”

  “Wow,” laughed Brunelle. “Remind me not to let you join our secret Santa this year.”

  Kat shook her head. “Fine, Mr. Squeamish. What do you want to know about the Montgomery autopsy?”

  Brunelle was bothered that she might think less of him for being squeamish, but he decided not to protest. He was a lawyer, not a pathologist. He’d never keep up with her on that front.

  “Maybe,” Brunelle tried, “it might be best if I just lay it all out on the table.”

  Kat laughed. “That’s generally how I work.”

  Brunelle smiled and shook his head.

  “Sorry,” said Kat. “Couldn’t resist. By all means, overwhelm me with honesty and candor.”

  Brunelle sipped again, then got right to it. “I have two defendants. One confessed, but basically implicated the other. And the other lawyered up.”

  “Yeah, I already knew all that.”

  Brunelle screwed up his face. “You did?”

  “Well, I read the paper. And besides,” she took a long drink of her coffee, “everybody’s talking about how Welles kicked your ass in court.”

  “He did not kick my ass!”

  The other patrons turned to look at Brunelle. He started to blush. Kat burst out laughing.

  “Oh, you are fun, David Brunelle.”

  “He did not kick my ass,” Brunelle repeated in a lower voice. “I still got ten mil on his client. But yes, his client is the one who lawyered up. The girl wants a dismissal, and I want to know if there’s anything forensically that supports the fact that Welles’ client was the killer.”

  Kat’s radiant smile finally faded as she pursed her lips in thought. But her eyes still sparkled and Brunelle wondered if she could tell just how glad he was to be with her right then, no matter how grisly the conversation.

  “We did fingernail clippings,” Kat considered. “DNA might have linked him, but the crime lab said the only profile was hers.”

  “Anything from the autopsy to support a larger person, a man, versus, say, a fifteen year old girl?”

  Kat gave a noncommittal shrug. “Maybe. The bindings on the wrists were tight, the flesh was pressed in very deep. That suggests strength. Then there’s the whole issue of pulling a 100 pound body up off the ground and tying it off on the balcony.”

  “She was only one hundred pounds?”

  “Yeah she was a small little thing.”

  That reminded him of something else he needed to ask. Something that would corroborate, to a degree anyway, Holly’s claims. But he wasn’t entirely sure how to ask it.

  “Um. How thorough are your autopsies?”

  Kat cocked her head. “Very thorough. Of course. That’s the whole point.”

  Brunelle nodded. “Right, right.” He took a nervous sip of his coffee. “Look, I need to ask a question, and it’s fine if you don’t know the answer. I don’t imagine it’s something you check usually. But I just want you to know there’s a reason I’m asking and please don’t shout out the question back to me in this crowded, already suspicious of me coffee house.”

  Kat listened intently, then laughed again. Brunelle really liked how her mouth looked when she laughed. “Okay, David. Wow. I promise. Now you’ve got me curious. What piece of information do you want to know from my examination of a dead thirteen year old girl’s body?”

  Brunelle took a bracing sip of his coffee. “Was she a virgin?”

  Kat pursed her lips and took another long drag from her coffee. “Please tell me you’re not a pervert.”

  Before Brunelle could respond, Kat added, “Well, at least not that kind of pervert.”

  Brunelle was pretty sure he blushed, although he wasn’t exactly sure whether it was because of what he had asked or what she had suggested. “No, not that kind of pervert.”

  He explained what Holly had said about Karpati needing a virgin for a victim.

  “Are you fucking kidding me?” Kat said. “He thinks he’s a vampire?”

  Brunelle shrugged. “That’s what the girl said.”

  “Does he sparkle?” Kat laughed.

  “No, he’s old school. Transylvanian royalty and all that.”

&
nbsp; Kat drank again. “Well, Mr. Pervert. I guess I can help after all. Yes, she was a virgin. We checked for evidence of sexual assault. There were no signs of trauma, and her hymen was in tact.”

  Brunelle nodded and sipped at his coffee.

  “Happy now?” Kat asked.

  Brunelle frowned. “Not really. She’s still dead.”

  Kat’s usual smile faded a bit. “She was dead before you got involved, David. You can’t change that. You can just try to bring her and her family some justice.”

  Brunelle nodded and managed a faint grin. “Thanks, Kat.”

  He looked at his watch. “I better get back to the office.”

  “Aww,” pouted Kat. “I haven’t finished my coffee.”

  Then she tipped her head back and downed the rest of her drink all at once. “Okay, that’s better. Thanks for the date, David.”

  They both stood up. “We’ll have to do this again sometime,” Brunelle said casually.

  “Great,” Kat slipped an arm through his. “When?”

  Brunelle was taken aback. But he was used to thinking on his feet. And taking advantage of a beneficial statement.

  “How’s next Friday?” suggested Brunelle. “Dinner maybe. I’ll even let you buy.”

  Kat laughed as they stepped out of the door. “Oh, how kind of you. But you’d owe me.”

  “Right. That was the plan.”

  Then Kat slapped her forehead. “Wait, next Friday? No I can’t. My daughter has a recital that night.”

  “Ahh,” said Brunelle, but what he meant was ‘Ohh, you have kids.’

  “Yes, I am divorced and I have a daughter, Mr. Brunelle,” Kat replied. “A wonderful fourteen-year-old daughter named Lizzy, who has a ballet recital next Friday night. Is that gonna be a problem?”

  “Not for me,” Brunelle answered. “But she’s probably gonna be upset that you’re missing her recital.”

  Kat laughed. “How about the Friday after that? She’ll be visiting her dad in Portland that weekend.”

  “Oh yeah?” Brunelle asked.

  “Oh, yeah,” purred Kat.

  Brunelle smiled. “It’s a date.”

  Chapter 11

  Yamata’s briefs were, in fact, exquisite.

  Welles was a lying sack of crap. Brunelle knew it, but Yamata reduced it to writing.

  “Very nice,” Brunelle said to her over the pleadings as he finished. “Let’s get these filed today.”

  He looked at the last page. It was prepared for his signature. “One change though. Make these for your signature.”

  “Oh,” said Yamata. “I just figured, since you’re lead…”

  “I’m co,” corrected Brunelle. “And you wrote them, so you get to sign them.”

  Yamata shifted in her seat.

  “You’re not at a private firm anymore, Michelle. And I’m not some partner looking for an ego massage.”

  He immediately regretted the ‘massage’ reference, but figured she knew what he meant.

  “That’s nice to know, Mr. Bru—, er, Dave. But there’s something else. What if they’re no good.”

  Brunelle smiled. “No worries there. They’re great. In fact,” he leaned forward, “why don’t you argue it?”

  Yamata choked. “Me? You’re lead.”

  “Co. And yes, you. You wrote the briefs. You know it better than I do. It’ll lose something in the translation.”

  “Uh, okay. Great. Thanks, Mr. Br—, uh, Dave.”

  “Now,” Brunelle stood up. “Ready to meet the parents?”

  Yamata stood up too and put a hand to her stomach. “Ugh. Wow, really? No. I’m not sure I could ever be ready for that.”

  Brunelle smiled. “That’s exactly the right answer. Now come on, this time you can let me do the talking.”

  Yamata exhaled loudly. “Yes, sir. Thank you, sir. May I have another?”

  Brunelle glanced at her. She smiled and curtsied.

  “Glad you’re enjoying yourself,” Brunelle laughed. “Because this next part is going to suck.”

  ***

  Mr. and Mrs. Montgomery were already in the conference room, along with Tammy Gardner of the victims and witnesses support division. Mr. Montgomery stood up as Brunelle and Yamata walked in. Mrs. Montgomery remained seated next to Tammy, who patted her shoulder supportively.

  “Mr. Brunelle.” Montgomery stuck out his hand. “Good to see you again. Tammy told us you filed the death notice. Thank you.”

  Despite Brunelle’s job, it still seemed like a strange thing to thank someone for. But he had stopped a long time ago trying to understand or anticipate the emotions of murder victim families.

  “It’s well warranted,” Brunelle answered as he shook Montgomery’s hand. “Let me introduce Michelle Yamata, the other prosecutor on the case.”

  Yamata extended her hand too, but Mr. Montgomery ignored it. “You need two prosecutors? Why? Is there a problem with the case?”

  “Roger! Please.” Mrs. Montgomery huffed at him but he ignored her.

  It was like they were all still out by the patrol car the night of the murder. Brunelle managed not to roll his eyes.

  “Just the opposite, Mr. Montgomery,” Brunelle answered. “We always put two attorneys on a death case. And Michelle is one of our best attorneys.”

  Mr. Montgomery looked her up and down. “Yes. Well. I can see that.”

  And then everyone was uncomfortable.

  “Why don’t we have a seat, Mr. Montgomery?” Yamata motioned to the chairs surrounding the table. “Mr. Brunelle and I have some things to tell you and we’d like to hear your input.”

  Brunelle was impressed by how Yamata grabbed control of the situation. Montgomery stopped leering and sat next to his wife, who whispered at him to be quiet and listen.

  “I’m sure Tammy has already let you know that we’ve charged two people with the murder of your daughter,” Brunelle started. “One adult and one juvenile.”

  “And you’re seeking death on both, right?” Mr. Montgomery wanted to confirm.

  Brunelle shook his head. “I’m afraid not. Juveniles can never be executed. The U.S. Supreme Court has held it to be unconstitutional.”

  “What, never?”

  “No, never,” confirmed Brunelle. “But that may be just as well.”

  Mr. Montgomery was about to argue, when Mrs. Montgomery stepped in. “How do you mean, Mr. Brunelle?”

  “Well, we have some important decisions moving forward as we try to bring your daughter’s killer or killers to justice. Unfortunately, the entire system is stacked against us. A defendant is presumed innocent. We don’t just have to prove the case, we have to prove it beyond a reasonable doubt. If a suspect refuses to talk and asks for a lawyer, we can’t tell that to the jury. We have to give them every last police report, every last sticky note any cop or any other witness ever creates about the case. They don’t have to give us anything. And the jury will be told again and again by the judge that if they aren’t sure about something, then they have to give the defendant the benefit of any doubt.”

  “Sounds like you think you can’t win the case,” sniffed Mr. Montgomery.

  “Hush, Roger. It sounds like he’s being honest.” Mrs. Montgomery turned back to Brunelle. “So what do you have planned?”

  “Well, this isn’t about a plan,” Brunelle said. “I just want to explain to you where we’re at and what we’re facing.”

  “All right then, Mr. Brunelle,” said Mrs. Montgomery. “Where are we at, and what are we facing?”

  Brunelle took a deep breath. “There are two people responsible for your daughter’s murder,” he explained. “A twenty-year-old man and a fifteen-year-old girl. The twenty-year-old man is the major player. It was his idea, he recruited the girl to help, and he did the actual deed.

  “The girl is the minor player. She was just along for the ride, and was actually a victim of the man too. She was underage, but he forced himself on her sexually. So we have a pretty clear cut, evil bad guy, and a pretty cl
ear cut, less culpable juvenile who was used by this guy.”

  Neither Montgomery said anything, but they were both leaning forward, ready for more.

  “The girl isn’t looking at much punishment anyway,” Brunelle continued. “She’s a juvenile. We can’t seek the death penalty, and if she stays in the juvenile system, which is a better than fifty-fifty chance, she’ll only do a few years.”

  “That’s bullshit,” said Mr. Montgomery.

  “You’re absolutely right,” answered Brunelle. “But it’s the reality of the situation. Here’s another reality. We don’t have any evidence against the twenty-year-old man. He’s gonna walk.”

  “What?” cried Mrs. Montgomery. “The man responsible for murdering Emily is going to get away with it? How can you say that?”

  “I can’t convict him without evidence,” Brunelle shrugged. “But he lawyered up. That is, he asked for an attorney and refused to give a statement. The only witness I have is the girl, but I can’t call her as a witness because she’s a defendant herself. She has the right to remain silent. Which is too bad, because she gave a full confession which totally and completely implicated the man.”

  “Can’t you just play the confession then?” Mr. Montgomery asked.

  Brunelle frowned and shook his head. “I’m afraid not. The man—Karpati is his name—Karpati has the constitutional right to confront and question his accusers. We can’t play a tape from the girl without putting the girl on the stand for his lawyer to cross examine. But like I said, we can’t put her on the stand because she has the right to remain silent.”

  Mr. Montgomery’s face started to turn a blotchy red, and his clenched fists were shaking. Mrs. Montgomery’s eyes were starting to glisten.

  “So as it stands now,” Brunelle concluded, “if nothing changes, I expect to convict the girl in juvenile court and get a few years on her. And I expect the man to be acquitted, if a judge doesn’t throw the case out before that.”

  “That’s not very good news, Mr. Brunelle,” said Mrs. Montgomery. “I’m not sure what I expected but it wasn’t that.”

  Mr. Montgomery stood up and gazed out the window. Brunelle looked at Yamata. Her eyes were wide and she sported a deep frown. He nodded ever so slightly to her.