DB01 - Presumption of Innocence

by Stephen Penner

  Orbst pretended to think about the question. “Yes,” he answered after a moment. “I would agree with that.

  Welles took a moment to let the jurors get interested again. “Could you explain to the jury just what is meant by the word ‘insane’?”

  This time when Orbst turned to look at the jury, he opened his palms and took on a truly professorial affect. “People use the word ‘insane’ everyday, and they use the word ‘crazy’ and more colorful terms like ‘nuts’ and ‘wacko.’ In day-to-day speech, that’s fine. We all understand it simply means something strange or out of the ordinary. But in the legal field, in a courtroom setting, insane has a very specific definition.”

  “And what is that definition?” Welles was practically salivating as he asked the question.

  “A person is legally insane if he doesn’t appreciate the wrongfulness of his conduct, if he is unable to distinguish right from wrong.”

  Welles nodded. “So why would someone who believes he’s a vampire be considered legally insane?”

  “If someone truly believed he was a vampire,” Orbst explained, “then he would truly believe he needed human blood to survive. There is a principal in the law called necessity. There are times when it is lawful to kill someone. One of those times is when it’s necessary to save your own life. A person who truly believed he was a vampire might truly believe he needed to kill another person in order to preserve his own life. He would be wrong, but he would still believe it. And that would make him insane.”

  Welles turned away from Orbst for a moment. When his back was fully to the jury he gave Brunelle a wink.

  “Now, doctor, I’d like you to imagine the following hypothetical.” Welles turned back to his witness. “A man who truly believes he’s a vampire, and truly believes he needs the blood of young girls to survive, goes and murders a young girl to drink her blood. Would that person be insane?”

  Again a pause for fake consideration. “Yes. Yes, that person would be insane.”

  “And if a person commits a crime because they’re insane, can that person be found guilty of the crime?”

  “No,” Orbst turned and instructed the jury. “That person would be not guilty by reason of insanity.”

  “Thank you, doctor.” Welles looked up to the judge. “No further questions. Your Honor.”

  Brunelle watched Welles take his seat at the defense table. Welles didn’t wear his usual smug grin—not in front of the jury. But he didn’t have to. His direct had been perfect. It planted the seed of doubt generally, without ever actually admitting Karpati committed the murder or really thought he was a vampire.

  So it was Brunelle’s turn to cast doubt on the doubt.

  “Good morning, doctor. It is doctor, right?”

  Not really, Brunelle thought.

  “Yes,” Orbst replied. He was undoubtedly used to the question, so kept his testiness in check, but Brunelle knew it still bugged him. “I have a PhD in psychology.”

  “Okay, but you’re not a medical doctor?”

  “I don’t need to be. I have five years of advanced studies in human psychology and behavior. Knowing how to perform ankle surgery wouldn’t make me any more qualified.”

  So, not too testy, but definitely close to the surface. Yamata was right. Good.

  “Do you have a practice then?” Brunelle asked. “Patients you see on a regular basis?”

  Orbst turned again to deliver his answer to the jury. “My expertise is forensic psychology, not clinical. I conduct research, write articles, and of course, testify in court. I don’t maintain a list of clinical clients on top of that.”

  “So you make your living testifying?”

  Orbst took a moment to reply, wisely considering the question. “I make my living as a forensic psychologist. Testifying is just one of the aspects of that.”

  Brunelle nodded. Then he gestured toward Orbst. “Nice jacket.”

  Orbst seemed taken aback. “Er, thank you.”

  “Is that Lauren?”

  “Uh, no,” stammered Orbst. “It’s an Antoni.”

  “Antoni,” repeated Brunelle. “Is that a nice brand?”

  Orbst shrugged. “Pretty nice.”

  Brunelle peered over the little wall in front of the witness stand. “Nice shoes, too. Are those also Antoni?”

  “Antoni doesn’t make shoes,” Orbst replied.

  “Your Honor,” Welles stood up. “I’m going to object. I don’t see how Mr. Orbst’s fashion choices are relevant to the case at bar.”

  “I’m getting to that,” Brunelle replied.

  “Get to it quick, Mr. Brunelle,” the judge warned. “Or move on.”

  Brunelle turned back to Orbst. “Your shoes are scuffed.”

  Orbst looked down. “Are they?”

  “Well, more like the sole is paper-thin. And your jacket is fraying at the end of the sleeve.”

  Orbst raised an arm to examine the unwinding threads.

  “Your practice or whatever has seen better days, I take it?”

  “I don’t have a clinical practice,” Orbst reminded him. “And my forensic psychology business is doing fine, thank you.”

  “You don’t get paid much for those articles you write, do you?”

  “I get royalties.”

  “You can’t live on the royalties.”

  “Well, no. Not exclusively.”

  “In fact, you make the majority of your income from testifying, isn’t that true?”

  “I am paid for my time.” The standard answer. Time, not the opinion. Really.

  “In fact,” Brunelle pressed, “you’ll say whatever you’re paid to say, isn’t that right?”

  Brunelle knew it was too soon to ask that question. Orbst had heard it a thousand times and would knock it down easily. But then Orbst would think he’d won the exchange and relax.

  “Of course not. I am a professional and have a reputation to maintain. A psychologist who would just say anything would soon lose all credibility.”

  Brunelle nodded, hand to his chin. “Good point, good point. I mean, you want to be the kind of witness who gets hired again and again, right?”

  “Consulted, not hired,” Orbst corrected. “And yes, exactly.”

  “You haven’t been testifying in criminal cases very long, have you?”

  Brunelle saw Orbst tense up at the question. He hoped the jury noticed it too.

  “I’ve testified in criminal cases for some time now,” Orbst answered coldly.

  “But before that,” Brunelle continued, “you mostly testified in civil cases, isn’t that right? Lawsuits, malpractice, divorce and child custody? Stuff like that?”

  Orbst nodded carefully. “Yes, stuff like that.”

  “And in that kind of a setting, you might get hired by either side to testify, correct? Husband or wife? Patient or hospital?”

  “Correct.”

  “And then you screwed up, didn’t you?”

  Orbst’s face hardened. “I didn’t screw up. I testified honestly and the judge made a decision.”

  Brunelle smiled. Yamata was right. Orbst still wasn’t over it. “You testified that a man was mentally fit to raise his children, then he drowned his daughter in the bath tub.”

  “I testified honestly and accurately about a forensic psychological opinion. The court made a decision based on all of the evidence in the case, not just my testimony. That little girl’s death is not on my head.”

  The force of his denial belied it.

  “And after that,” Brunelle went on, “no one in the civil law community wanted to hire you again, isn’t that right?”

  “That is not right. I continued to testify in child custody cases and all types of civil litigation.”

  “But word got out, and the phone stopped ringing and you needed to expand into criminal work to pay the bills?”

  “I chose to expand into criminal work.”

  Brunelle nodded again. “But criminal work is different, isn’t it? The prosecution, we have our ow
n psychologists, right? The doctors at Western State Hospital, right? And they’re paid a salary. We don’t have to pay them anything. So the State never would retain a private psychologist like you, isn’t that right?”

  “I wouldn’t say never,” Orbst replied. “It does happen.”

  Brunelle smiled. “But you’d agree that it’s very rare.”

  Orbst surrendered a shrug. “I suppose it is rare.”

  “Exactly. So if you’re going to make a living testifying in criminal cases it’s going to be by testifying for defense attorneys, isn’t it?”

  Orbst pulled himself up. “It’s going to be by testifying truthfully.”

  “Sure, sure.” Brunelle waved the answer away. “But you would agree with me that if every time you got hired by a defense attorney, you testified that the defendant was competent to stand trial and legally responsible for his actions, well, after a while, those defense attorneys would stop calling?”

  “I, I don’t know.”

  “But,” Brunelle drew the word out and laid a hand on the witness partition, “if you testified in a notorious murder case—one with shock value from an innocent young girl and a crazy vampire-man—and the murderer got acquitted because of your testimony? Your phone would be ringing off the hook, wouldn’t it?”

  “I testified honestly,” Orbst defended.

  “Those shoes are really scuffed,” Brunelle observed. “Have you bought a pair since Lindsey’s dad drowned her in the tub?”

  “Objection!”

  “Do you think of that little girl when your finger catches on a loose thread of your jacket?”

  Welles objected again, but the judge wasn’t ruling on them, so Brunelle pressed on.

  “Exactly how many zeros is your so-called expert opinion based on?”

  “My expert opinion is based on years of study and hard work, a thorough review of all the police reports, and an extended clinical interview with Mr. Karpati!”

  Brunelle stopped. He turned to Yamata who raised an eyebrow to show her understanding. Welles’ eyes flew wide, then dropped intently to his legal pad. The judge had the slightest curve buried in the corner of her mouth. The jury didn’t get it. But they were about to.

  “You spoke with Mr. Karpati?” Brunelle asked.

  Orbst’s face showed he realized it too, but it was too late.

  Anything you say can and will be used against you.

  When Orbst hesitated, Brunelle clarified, “You spoke with him about the murder?”

  “Objection,” Welles tried half-heartedly. “Calls for hearsay.”

  Weak. Every lawyer in the room knew a defendant’s own statements were never hearsay when the prosecution elicited them.

  “Overruled.”

  “Then another objection,” Welles tried again. “Any communications between my client and his psychologist are privileged.”

  Weak too.

  “He opened the door, your honor,” Brunelle responded. “The witness mentioned the interview first, not me. I should be allowed to explore.”

  “Objection overruled. Proceed, Mr. Brunelle.”

  Brunelle mentally cracked his knuckles. He’d just wanted to rattle Orbst, make him look like the expert-for-hire he was. He hadn’t expected this, but he wasn’t going to waste it either. The temptation was to ask ‘What did he say?’ But this was cross examination. Lead the witness, make him agree with you.

  “Karpati admitted he killed Emily Montgomery, didn’t he?”

  Orbst shifted uneasily in his chair. He absently fondled the worn cuff of his jacket. Finally, after the gears stopped turning, he looked away from the jury and admitted, “Yes.”

  All the professionals in the room knew Orbst would never get hired again. Too bad for him.

  “He tied her hands behind her back, hoisted her upside down, and slit her artery to drain her blood, right?”

  Another pause. Orbst still didn’t look at the jury. “Right.”

  “And he did it because he wanted people to think he was a vampire, correct?”

  Orbst looked up at Brunelle defiantly. “He did it because he is mentally ill and not responsible for his actions.”

  Brunelle frowned. One question too far, that was the danger in cross. But he’d needed to ask that question. Having done so, he had to clean up Orbst’s answer. Or at least scare the hell out of the jury so they would never consider walking Karpati.

  “Mentally ill?” Brunelle confirmed.

  “Yes,” Orbst sneered. “It is my expert opinion that Mr. Karpati suffers from vampirism and therefore does not appreciate the wrongfulness of his conduct. He believes it necessary for his survival, and therefore acts under the influence of an irresistible impulse.”

  Brunelle nodded. “Irresistible impulse?”

  “Oh yes.”

  “So given the opportunity, he’d do it again?”

  “Absolutely,” Orbst crossed his arms. “And when he did, it would prove I’m right.”

  Brunelle nodded. There was so much more he could ask, but he was done.

  “No further questions.”

  “Redirect examination, Mr. Welles?”

  All eyes turned to the defense attorney. He was in a heated whisper exchange with his client. Whatever Karpati was saying, he was angry and emphatic. Welles was shaking his head and tapping the legal pad with his pen for emphasis.

  “Mr. Welles?”

  Welles stood up. “No further questions, Your Honor. Thank you. At this time the defense would suggest we adjourn until Monday. My client and I have some matters to discuss.”

  The judge shrugged and looked at Brunelle and Yamata. “Any objection?”

  Brunelle looked to Yamata, but she waved her hand back to him. His call. It had been a long week. And it was a good way to leave it with the jury.

  “No objection, Your Honor.”

  “Court is adjourned,” the judge quickly declared. “We will reconvene Monday morning at nine.”

  The clerk hit the gavel, the bailiff led out the jurors, and the guards took Karpati away. Brunelle expected a smarmy comment from Welles, but the defense attorney was busy packing his things. He avoided Brunelle’s gaze.

  “That was awesome!” Yamata yanked Brunelle’s face to hers. “I could kiss you right now.”

  Brunelle stared at her for a second, then shook his head. “How the hell did you win a sexual harassment suit against your old firm? You’re the most flirtatious lawyer I’ve ever had the pleasure to try a case with.”

  Yamata cocked her head, then let out a belly laugh, just making her even hotter somehow. “Is that what everyone thinks? No wonder no one will talk to me. Not ‘sexual harassment,’ dummy. ‘Sexual discrimination.’ As in ‘gender discrimination.’ As in one of the old-boy partners got caught saying he’d never make a woman a partner. Thought he’d hung up his phone but it was on speaker. Hello, payday, and goodbye, law firm. Finally could pay off my student loans and take a kick-ass prosecutor job for half the money.”

  Brunelle was stunned. That was a lot of unexpected information all at once. He latched onto the last bit. “Half?”

  Yamata laughed again, a deep purr of a laugh. “Okay, a third.” Then she thought for a second and laughed again. “Hey, don’t tell anybody, okay? I kinda like everyone being scared of me.”

  Brunelle shrugged. “I won’t tell, but Welles probably heard and I can’t speak for—”

  He turned to the defense table, but Welles had slipped away without so much as a goodbye. That wasn’t like him.

  Brunelle should have known it meant trouble.

  Chapter 42

  “And then he says,” Brunelle swallowed his bite and pointed at Kat with his fork, “No, my opinion is based on my education, the police reports, and…. my interview of Mr. Karpati!”

  Kat nodded. “Okay, sounds reasonable.”

  Brunelle shook his head. “No, no. The point is, we didn’t know he’d done that interview. Defense doesn’t have to share that with us. I mean, not unless they’re gonna
use it at trial. Welles probably should’ve given it to me, but I never would have known if Orbst hadn’t let it slip.”

  “Ah,” Kat nodded. “Well, lucky break for you.”

  “Luck?” Brunelle scoffed. “More like scathing cross examination.”

  Kat just raised an eyebrow.

  Brunelle laughed. “Okay, yeah, luck. But I got him to admit that Karpati had confessed to the murder.”

  “Wow, how did he explain that away?”

  “He said Karpati was mentally ill and driven by an irresistible impulse. He’d do it again and that just proves he’s not guilty by reason of insanity.”

  Kat’s face scrunched into a frown. “That logic is what’s crazy.”

  “I know,” Brunelle laughed. “And so does the jury. No way they let him out.”

  Then his cell phone vibrated. He looked down at it and shrugged. “I’m gonna ignore that, I think.”

  “What if it’s a new homicide?” Kat questioned.

  “Then you’re probably the next person they’ll call,” Brunelle smiled. “We’ll see if your phone goes off too.”

  The persistent hum of Brunelle’s phone was clearly audible over the voices of the restaurant.

  “You know,” Kat leaned onto the table and gestured toward the phone on his hip. “That could be fun under the right circumstances.

  Brunelle smiled. “Hmm. Not sure I can text one-handed.”

  Kat’s eyes twinkled. “Maybe I’ll do the texting. You can watch.”

  Brunelle’s eyebrows shot up. “Oh my.” Then he scanned the restaurant. “Time for the check, I think.”

  Kat laughed. “We’re still on the appetizer, Romeo. Besides, Lizzy’s at the house.”

  “I have an apartment,” Brunelle replied. “And we can hit the drive-thru on the way back to your place.”

  “Great, walk in to see my daughter, still smelling like you and french fries. Mom of the Year.”

  Brunelle’s phone was still buzzing, or rather buzzing again.

  Kat nodded at it. “You better answer that.”

  Brunelle frowned. “Yeah, you’re probably right.”

  He pulled the phone from its hip holder and pressed it to his ear. “Brunelle.” Then. “Hey, Michelle. What’s up? Kinda busy here.”

  Kat waited and watched as Brunelle’s face dropped.