The Sixth Amendment says, ‘In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.’ The courts have interpreted that to mean more than simply getting to see them in open court, but to have a meaningful opportunity for effective cross examination. Just like Edwards said in the Pit.
There was a thin line of case law supporting keeping witnesses’ identity secret, but the cases mostly dealt with the early stages of the case, not trial and trial preparation. Still, it was all he could find, so he built a brief around it and hit ‘Save’ one last time at 5:49 the night before his response was due. He’d proofread it in the morning.
It was time for a drink.
‘Whither’ was a restaurant and bar on the west side of Capitol Hill, past Broadway but not quite to Madison Park. It featured cheap mixed drinks and garlic kale. Brunelle didn’t eat kale, but he didn’t mind a drinking glass full of five different liquors for only eight bucks. Or two glasses full. By the time he finished the second glass, he was almost buzzed enough to try some kale after all, but not so far gone that he didn’t know to stop after two drinks. So he had to kill an hour until his blood alcohol level was low enough to drive home.
He kept the tab open in case he ordered the kale after all, but switched to ice water and decided to pass the time people-watching from his spot at the bar. The place was full, mostly couples and double dates judging by the almost perfect one man/one woman ratio. ‘Almost,’ because he was there very alone.
The distraction was entertaining at first. Moving his gaze from one table to another, trying to discern the status of each group.
Was that couple on a first date? Was it their last?
Was that group of four really two couples? Or was it just four friends sharing a drink?
Was that guy already drunk?
Was that Robyn Dunn?
Brunelle’s heart raced at the possible sight of his former paramour. He couldn’t be sure from that distance, in that light, at that angle. But there was definitely a young woman with soft reddish curls facing away from him and talking to an enragingly good-looking young man.
The good-looking part was enraging, but so was the young part. He hadn’t forgotten how much younger Robyn was than him. He also hadn’t forgotten those curls, or how they felt in his hand when he held her. His heart sank at the thought of her out with another man. Especially that man. That good-looking young man.
“Another drink?” the bartender asked. Brunelle ripped his gaze away from the woman across the room and looked to the woman taking his drink orders. She was nice enough to look at too, although perhaps a little heavier than he usually preferred. Still, she had a pretty face with brown curls of her own, and soft eyes that peered over small, stylish glasses. For a moment, he wondered whether the lenses even had a prescription or were just for looks, but then he remembered it was Seattle. Everyone was nearsighted and vitamin D deficient.
“Uh, no thanks,” he replied, and held up his water glass. “I’m just waiting until I’m okay to drive.”
“Do you want anything else?” she asked.
Brunelle looked back over to the table with the red-haired girl and the good-looking young man. This time, the woman turned enough for Brunelle to see her profile—it wasn’t Robyn after all. Just another beautiful young woman he had no business thinking about.
Brunelle shook his head, in part as a response to the bartender’s question, in part to shake out thoughts of young redheads and curvaceous brunettes. “No, thanks.” He pulled out his wallet and handed her a credit card. “In fact, I think I’m ready to go home after all. I’ll just call a cab.” He looked over at not-Robyn again and sighed. “I have a big day tomorrow.”
Chapter 13
Brunelle wasn’t lucky enough to draw Judge Jackson again for Edwards’ motion to compel the name of his confidential witness. Not that Jackson was on Brunelle’s all-star judge list after setting bail so low on Brown, but at least he’d found probable cause. Brunelle would have had a shot with Jackson. Not so with the judge they were assigned to: Judge Helen Grissom.
Grissom had no love for law enforcement, and in her view the prosecutors were just an extension of the cops. She’d spent her career as a civil rights attorney, only dabbling in criminal defense when it involved protesters being arrested or high-profile police brutality cases. She hadn’t been appointed by the governor—she was too politically toxic for that. She gained the bench the old fashioned way: she ran for it. And won handily. No one had run against her since. She didn’t owe her position to anyone, and she wasn’t going to rule a certain way just to make somebody happy.
So Brunelle prepared himself to be unhappy.
Edwards, on the other hand, seemed almost giddy as they walked into Grissom’s courtroom.
“Do you want to just give me that name now?” she teased. “It would save a lot of time.”
Brunelle forced a smile. “Does your client want to plead guilty now? That would save even more time.”
Edwards offered a polite laugh. “You know I can’t do that, Dave. This will be a trial. Everyone is just going to have to suffer through it.”
Brunelle thought for a moment, Edwards’ words tickling an idea in the back of his mind.
There was an old lawyers’ saying: a good lawyer knows the law, a great lawyer knows the judge. It sounded like some sort of endorsement of nepotism, but what it really meant was that a lawyer should know what makes a judge tick, how to present an argument in a way that appealed to the judge’s pre-existing sensibilities. A lawyer won’t convince a judge to change her convictions; he needed to convince the judge that his position was in line with those convictions.
“All rise!” announced the bailiff, and Judge Grissom took the bench. The courtroom was empty save the litigants: Brunelle, Edwards, and Kenny Brown. There was no one in the gallery for a preliminary motion to compel discovery.
“Are the parties ready,” Grissom asked as she tipped up the court file to read the case name, “on the matter of the State of Washington versus Kenneth Brown?”
Brunelle stood. It was usually important to show proper respect to a judge; with Grissom, it was vital. “The State is ready, Your Honor.”
Even calling his side ‘the State’ added to his sense of impending loss. He wished he could say, ‘the People’ like the D.A.s in California, but no such luck. He represented the State, the Government, the Man.
“The defense is ready,” Edwards said, also standing. At least, Brunelle, thought, she didn’t say, ‘the accused.’ He hated that term. It was hard to hear it without wanting to insert the word ‘unjustly’ in there somewhere. Which was the point. He imagined Edwards would be using that in front of the jury, and more than once.
“This is your motion, Ms. Edwards,” the judge said. “I’ll hear first from you.”
Edwards remained standing as Brunelle sat down to listen to his worthy opponent. He had a notepad ready, but he knew what she was going to say. He’d read her brief. And all the cases that said she was right.
“Thank you, Your Honor,” Edwards began. “As you know, my client is charged with murder in the first degree. He is accused of killing a woman named Amy Corrigan, whom the State alleges was a prostitute in the employ of Mr. Brown. There is no actual evidence that Ms. Corrigan is even dead, let alone that she was murdered by my client. No body has ever been found, and there are no witnesses who claim to have seen Mr. Brown kill or otherwise grievously harm Ms. Corrigan. Instead, the State’s theory is that Mr. Brown was the last person to be seen with Ms. Corrigan and, therefore, somehow, he must be the killer.”
Brunelle wished that weren’t an accurate description of his case, but with the exception of the evidence about Amy not visiting her daughter as one might expect, that was pretty much all he had. All the more reason to protect Linda.
“The State does have a witness, apparently, who saw Ms. Corrigan with my client shortly before her disappearance. I say ‘apparently’ because they re
fuse to identify this witness. I have been provided a police report and an interview transcript of this witness, but the State blacked out her name. As a result, I have no way of contacting her to ask her questions about what she stated in her police interview. As the Court can imagine, I might have some different questions than the police.”
Grissom nodded at that. Of course. Brunelle looked back down at his legal pad. He hadn’t taken a single note yet. He set his pen down. No reason for appearances; there was no jury in the room.
“I have asked Mr. Brunelle for the name and contact information of this witness, but to no avail.” Edwards offered a glance at her opponent. “I have worked with Mr. Brunelle for a long time now and have generally found him to be a reasonable prosecutor to deal with.”
Well, thank you, Brunelle thought.
“However,” Edwards went on, to Brunelle’s chagrin, “in this circumstance, Mr. Brunelle seems to be blinded to his ethical duties by his desperation to obtain a conviction in a case where he simply doesn’t have enough evidence to convict. Rather than lay his cards on the table and win the case on the strength of the evidence, he is attempting to gain an unfair advantage by preventing me from being fully prepared for trial and hoping that I might, therefore, do a less than effective job in front of the jury.”
Brunelle frowned. That wasn’t what he was trying to do, or why. He was trying to protect someone from Edwards’ murderous client.
“Your Honor,” Edwards began summing up, “this is a simple motion with only one just result. The court should order the state to divulge the identity of the witness immediately so that I can be properly prepared to defend Mr. Brown against this most serious of charges. Thank you.”
Grissom nodded to Edwards then looked over to Brunelle. He, too, nodded at his opponent’s argument, then stood up. He straightened his suitcoat and buttoned it. Then he placed a hand dramatically on counsel table and looked up to the judge.
“Your Honor, may it please the Court,” he began, using that outdated phrase all the new attorneys thought they were supposed to say and all the old attorneys stopped saying years ago. “Allow me to begin by acknowledging the conundrum placed before both Ms. Edwards and yourself: how to protect the rights of a criminal defendant while also protecting the public. And let me be perfectly clear: I don’t mean protecting the public from Mr. Brown. No, that would be too simplistic. Rather I mean an evil which Your Honor has spent a career fighting: protecting the public from the overreach of government authority.”
Grissom raised an eyebrow at that. Good, Brunelle thought. I have her attention. A glance to his right showed he had Edwards’ attention as well—and maybe a bit of concern.
“The entire criminal justice system is something of a contradiction. The entire system is weighted strongly in favor of the defendant.” He raised his hand slightly. “Now, I’m not complaining, mind you. I’m just making an objective observation. To start with, a defendant is presumed innocent. Is that a good thing? Undoubtedly. But it’s not as if that were some kind of requirement of a functional criminal justice system. In fact, most countries don’t follow that model. In most countries, including very enlightened and socially liberal democracies in Europe, a defendant is presumed guilty. After all, why would someone be charged with a crime if there weren’t facts to support the accusation? In fact, I think the reason we keep reminding juries that a defendant is presumed innocent is because that’s just not a natural way of doing things. You hear the cookie jar break and come into the kitchen to find your child standing there with chocolate on her mouth, you’re not going to presume she’s innocent. You know she did it; you just want confirmation. So right from the beginning, the scales of justice are tipped in favor of the defendant. He’s innocent, and he stays innocent until and unless the government can prove otherwise.”
He paused to assess the faces of his audience, namely Judge Grissom and, to a lesser extent, Edwards. Their expressions were about what he’d expected. They had no idea where he was going with all this. But they also seemed intrigued by that mystery, so he had them hooked. Time to press on.
“Which brings me to another way in which the system is stacked in favor of the defendant. Not only must the prosecution prove the crime, but we have to do so beyond a reasonable doubt. So you can have a situation where everyone in the room agrees the defendant probably committed the crime—perhaps some horrible crime—but the jury is nevertheless ordered to find the defendant not guilty, because the prosecution wasn’t able to foreclose every reasonable alternative explanation.
“In addition, a defendant doesn’t have to testify, which is all well and good. But the natural thing to do when someone refuses to deny an accusation is to conclude that they probably did it, and that’s exactly what is not allowed to happen. I can’t argue that a defendant’s silence means they probably did it, and the jury is specifically instructed that they cannot use a failure to testify against the defendant in any way. Again, that’s exactly opposite of what we do in our normal lives, and that’s exactly why we tell the jury over and over not to do it, because they would otherwise.”
Grissom finally interrupted. She narrowed her eyes under the still raised brows. “Is there a point to all this, Mr. Brunelle? I’m pretty sure we all took criminal procedure in law school.”
Brunelle smiled at the joke. Of course he did; she was the judge. You always smile at the judge’s jokes. “Yes, Your Honor. And I was just about to get to it.”
Grissom nodded and leaned back, signaling he could go on.
“My point is, we have all these protections for the defendant—and rightly so. We bend over backwards to make sure everything is slanted as far in his favor as possible, that every ambiguity is resolved in his favor, and every close call goes to him. We do that so, at the end of the day, if a jury comes back with a guilty verdict, we can feel comfortable that the defendant really is guilty and an innocent man isn’t heading off to prison.”
Grissom nodded. “Agreed.”
Brunelle pointed slightly up at the bench, in what he hoped was a respectfully muted gesture. “Yes, but there’s a cost to this. And the cost is that, in our focus on the rights and protections afforded the defendant, we forget that the whole reason we’re even affording the defendant any rights, is because he did something horrible in the first place to land himself here. It’s all well and good that a criminal defendant gets the right to remain silent, to confront witnesses, to be presumed innocent. But what about the crime victim who doesn’t get any of those rights? What about the domestic violence victim who gets beaten because her husband doesn’t like what she served for dinner? What about the convenience store clerk who gets shot because he didn’t open the cash register fast enough? What about the prostitute who gets murdered because her pimp is fed up with her skimming off her earnings?”
Edwards stood up. “Objection, Your Honor.”
Brunelle looked to her and opened his palms. “What objection? This is argument on a motion, not examination of a witness in front of a jury. You’ll get a chance for rebuttal.”
“I’ll rule on the objections, Mr. Brunelle,” Judge Grissom interjected. Then she turned to Edwards. “This is argument on a motion, Ms. Edwards. I understand your frustration at Mr. Brunelle’s insinuation about your client, but you’ll get a chance to address that in your rebuttal argument, if you so choose.” Back to Brunelle. “You may continue, counsel, although I’d like you to get to that point you promised you were about to make.”
Brunelle nodded to the judge. “Yes, Your Honor. Thank you.” It was time to wrap it up. “Every criminal defendant should have the rights and protections afforded him, but we shouldn’t lose sight of the fact that he is a criminal defendant. He committed a crime. He gets all those rights because he did something so bad that we, as a society, have decided he should be punished for it. We mustn’t forget, in our eagerness to protect the rights of the defendant, that the entire point of the criminal justice system is to vindicate the rights of the victimi
zed and hold offenders accountable.”
Brunelle paused, long enough to suggest he might be finished. The judge leaned forward and asked, “I appreciate your advocacy, and I’ll tell you that I think some of what you said makes sense and some of what you said is debatable, but I don’t understand how any of that is relevant to Ms. Edwards’ motion to compel discovery of the name of your witness.”
Brunelle inclined his head to the judge. “Of course, Your Honor. Here’s my point: the only reason any of us is here dealing with this issue is because Mr. Brown is charged with a crime. The court then steps in and safeguards Mr. Brown’s trial rights. In so doing, the court is acting as an official government actor. Meanwhile, out there in the community, there is a person who, through no fault of her own, has information which supports the allegation that Mr. Brown committed murder. She provided that information to law enforcement and that information—all of it—has been provided to Mr. Brown so that he might defend himself against the accusations. The entire transcript was provided to Ms. Edwards and, of course, her client is fully aware of what he did regardless of whether he can be compelled to say what it is.
“The only thing this court can do, and would be doing if it granted Ms. Edwards’s motion, is use the power of government to terrorize a private citizen by requiring the disclosure of that private citizen’s identity and whereabouts to a man who, first of all, is accused of murdering one of her friends for doing exactly what she did, and secondly, has posted a ridiculously low bail and is out on the streets where he can follow through with exactly the kind of action she fears and which he already has done to land himself in this situation in the first place.”
Brunelle brought his hands together in front of his chest. “So, Your Honor, I’m asking you to protect the rights of an innocent private citizen and not use governmental authority to expose her to personal injury or worse. Thank you.”
Brunelle sat down, his heart beating a bit fast but maintaining an exterior of calm. A glance at Judge Grissom’s face only confirmed that her expression was inscrutable. She pursed her lips and looked over to Edwards.
Corpus Delicti (David Brunelle Legal Thriller Book 6) Page 5