Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  Normally all a prosecutor had to do to defeat a Knapstad motion was just stress that the jury should decide the case, not the judge. But given the touchy motion to dismiss she was going to have to deal with after a trial, Quinn could wash her hands of the whole thing by ruling that no reasonable jury could possibly find Atkins guilty for the accidental strangulation of his willing sex partner, dismiss the case, and punt the misconduct claims squarely to the Bar.

  So when Brunelle walked into the lobby of the Washington State Bar Association that Thursday, the stakes were even higher than just his bar license. If he could get the complaint dismissed before the hearing on Monday, Quinn would relax a bit and do what judges are supposed to do: get out of the lawyers’ way and let the jury make the decision.

  He greeted the receptionist and took a seat in the steel-and-glass decorated lobby, trying not to look anxious. But he was definitely distracted—he hadn’t even noticed whether the receptionist was attractive. He thumbed absently through the latest issue of the Bar News, waiting for Yvonne Taylor and taking some solace in his preparation. He wasn’t an expert on the Rules of Professional Conduct. But he was an expert on evidence, and what it takes to prove somebody did something they shouldn’t have.

  “Mr. Brunelle?” Taylor stepped into the lobby from the hallway leading back to the interrogation chambers. Brunelle looked up from the magazine he wasn’t reading. There was no question Yvonne was attractive.

  He stood up and dropped the magazine on the table. “Ms. Taylor.” He made sure to match her level of formality. He’d have returned an ‘Yvonne’ if she’d led with ‘Dave.’ “Thank you again for expediting this meeting. I think it will prove fruitful.”

  A half smile creased Taylor’s mouth. “Maybe,” she offered, crossing her arms. Then she uncrossed them again and gestured into the bowels of the bar offices. “This way, Mr. Brunelle.”

  Lamb to the slaughter, Brunelle thought. But he was thinking about her.

  Taylor's office was the same glass and steel furniture, with professionally matted diplomas and certificates looming on the wall behind her. The photos on her desk were of her in various national parks, hiking and generally exuding the prototypical Northwest Woman. He noticed she was alone in all the pictures. Good. There were also none of some guy or of any kids. Even better.

  A comment about her vacation photos would be too transparent. A compliment about her appearance would be too unprofessional. But he needed her to like him enough to be open to dismissing the complaint against him. A defense attorney friend once confided after one too many drinks—it was professionally advantageous to socialize with friends on the other side—that he told his clients to say three things at sentencing: One, I’m sorry; two, I’ve learned from this; and three, it will never happen again. That’s what the judge wanted to hear. The last thing any judge—or bar investigator—wanted was to cut somebody a break only to have that person go out and reoffend.

  The punch line of the defense attorney’s story was that he had worked out a sweetheart deal for an obsessive-compulsive client who was charged with stalking. The guy couldn’t quite let go of his ex-girlfriend. At sentencing, the client knew what he was supposed to say but he opted to be honest instead. He said, ‘I’m sorry. I’ve learned a lot. And I can almost guarantee this will never happen again.’ The judge ignored the plea bargain and gave him the maximum sentence.

  Brunelle leaned forward in his seat across Taylor’s desk. “Thank you,” he said, “for agreeing to expedite your investigation. I know it's not your normal procedure and I know you didn't have to do it. But like I explained, it really helps me out given what the judge ruled. I know you didn't have to do this, so I just thought I should tell you, no matter how this turns out, I appreciate the professional courtesy.”

  Brunelle could tell Taylor was smart enough to see through any disingenuous attempts at flattery. She deserved an honest thank you. He was smart enough to give it to her. Sometimes honesty was the best policy. It didn't help that stalker, but something told Brunelle it might well help him.

  Taylor's reluctant smile told him he was probably right. She inclined her head slightly toward him. “You're welcome, Mr. Brunelle. Usually we do take longer to complete our investigations, but then again, usually the attorneys are in no hurry to be disciplined. This isn't the usual case.”

  Brunelle allowed a small smile onto his mouth. But he wore a huge grin inside. Lawyers deal in words. Words can deceive, but they can also reveal. Taylor had let slip two important facts.

  First, she saw Brunelle’s interview as a conclusion to the investigation. That confirmed what Brunelle suspected. Second, if most investigations delayed an eventual imposition of discipline, and his wasn’t the usual case, that suggested there would be no imposition of discipline. The logical consequence from his suspicion.

  The only question left in his mind was whether to hang back and respond to whatever Taylor decided to do, or go ahead and take the offensive. But there wasn’t much of a question. He was a prosecutor. Prosecutors played offense.

  “Mr. Atkins declined to be interviewed for your investigation, didn’t he?” Brunelle started.

  Taylor hesitated, sitting up slightly in her chair, as if both surprised by Brunelle’s question and unsure how to reply. But then she relaxed again.

  “No,” she admitted. “His new defense attorney—”

  “Ron Jacobsen,” Brunelle suggested.

  “Right,” Taylor acknowledged. “Mr. Jacobsen indicated his client couldn’t provide any further information, given the pendency of the criminal case. He urged us to take action based on Mr. Atkins’ original written complaint.”

  I’m sure he did, Brunelle thought. He managed not to make a snarky comment like, ‘How nice of him,’ and instead moved on. “Mr. Lannigan didn’t talk to you either, did he?”

  Taylor had to smile a bit. “No. He expressed concern about the ethical implications of his own conduct.”

  Brunelle nodded. He figured Lannigan would be worried about his own hide. Or his own bar card.

  “So really,” Brunelle ventured, “you don’t have any competent evidence I did anything wrong.”

  It wasn’t about whether the defendant committed the crime. It was about whether the prosecutor could prove the defendant committed the crime.

  Taylor’s smile grew despite her obvious effort to stifle it. “I have Mr. Atkins’ original complaint.”

  Brunelle waved his hand. “Rank hearsay.”

  Taylor actually laughed, in part because they both knew he was right. “I have your own admissions,” she reminded him, “from when I came to your office.”

  Brunelle frowned slightly. She had a point. He enjoyed telling people that criminal suspects talked far more often than they invoked their right to remain silent. People were surprised. He’d stopped being so. But he was surprised just then to realize he’d been just as stupid with Taylor as all those defendants were with whatever detective was interrogating him. Everybody thinks they can talk their way out of a jam. It turned out he wasn’t any different.

  The frown morphed into a chagrined smile. “I don’t think I admitted too much.”

  “You admitted to speaking with a represented party,” Taylor replied.

  Brunelle nodded. “Are you sure I didn’t admit to speaking with his lawyer while he was present?”

  Taylor just looked at him.

  “You didn’t record our conversation,” Brunelle pointed out. “If I recall correctly.”

  That smile Taylor was fighting cooled a bit. “This isn’t some criminal trial, Dave.”

  Dave. Perfect. He had her.

  “No,” Brunelle agreed. “It’s far more serious. It’s my bar license.”

  Another involuntary laugh. He was going to be out of there in fifteen minutes. Maybe ten.

  Taylor raised an eyebrow as she considered his allocution. “I see you’ve thought this through,” she admired. “But this isn’t a courtroom and I’m not bound by the rules of eviden
ce. You talked to a represented person. That implicates RPC 4.2.”

  “Implicates it,” Brunelle agreed, seizing on the word, “but doesn’t violate it. Courtroom or not, to prove an allegation there has to be evidence that a particular rule was violated, whether that’s RPC 4.2 or RCW 9A.32.050.” That was the statute for Manslaughter in the First Degree. Even sitting there defending his law license, that damn case was never really out of his head. “You don’t have that evidence. Without Atkins and Lannigan, all you’ve got is me.” He smiled innocently. “Cooperating fully with the Bar and in all ways the model attorney.”

  Taylor leaned back and steepled her fingers in front of her face—mostly to hide the full blown smile he’d elicited. “You’re very confident in yourself, Mr. Brunelle.”

  Back to ‘Mr. Brunelle’, but it fit the sentence. It was still friendly. There were situations when he liked being called Mr. Brunelle. He could imagine even more—and who with. Damn that case. He shook his head ever so slightly to regain his focus.

  “I’m confident in you, Ms. Taylor,” he replied deftly. “Confident you’ll look at all the evidence, or lack of evidence, and conclude that while I may have exercised poor judgment, there’s insufficient evidence to find I actually violated any of the Rules of Professional Conduct.” Time to wrap this up. “But I can tell you this: I'm sorry this happened, I've learned from it, and I'll never do anything like this again.”

  Taylor tapped her fingers against her pursed lips and regarded the man across her desk. Brunelle held her gaze, but tried to do so earnestly, rather than aggressively. Finally she leaned forward again and dropped her hands on her desk.

  “I already decided just that,” she announced. “Whenever a complainant refuses to be interviewed, we’re likely to dismiss the complaint. Once the only other witness also declined to cooperate, I knew exactly what I was going to do.”

  Brunelle smiled, relief mixed with irritation. “Then why make me come all the way down here?”

  Taylor shrugged. “I wanted to see what you had to say. I didn’t think you’d go all trial lawyer on me, but you make a good point. Let me review the file one more time, then I’ll send you a letter stating the complaint has been dismissed. You’ll have it well before your trial.”

  Taylor stood up and so Brunelle followed suit. He extended his hand. “Thank you, Ms. Taylor.”

  She took it and smiled—finally just a relaxed, unfettered smile. “Call me Yvonne. And you’re very welcome, Dave.”

  Chapter 22

  Brunelle felt like celebrating. Fortunately, it was Thursday night and he and Kat had a standing dinner date at The Jade House in the International District. He was excited to share his triumph with her. He’d had a good day.

  Unfortunately, Kat had had a shit day.

  Her gait was a bit lumbering, her hair a bit disheveled, her expression a bit cloudy. None of which Brunelle noticed when she trudged up to the table where he was already seated.

  “You’re late,” he grinned.

  She didn’t smile back. Brunelle wasn’t a stickler for punctuality. He didn’t like a concept that gave you sixty seconds to get it right, and everything else was either too early or too late. Ordinarily, he wouldn’t even have noticed her late arrival, but he was eager to begin the celebration.

  Kat, however, appeared anything but celebratory.

  She didn’t offer a witty rejoinder. Not even a tired, but good-natured, ‘Fuck you, David.’ Instead she just glowered at him as she dropped into her chair. His heart tightened under her disapproving glare.

  “Uh, so...” he stammered as he reached for the glass of water the bus boy had already brought. “I had a really good day today.”

  Kat looked up from the menu, but just barely. She raised her eyes, but kept her chin down, so she was practically looking through her eyebrows. “Ask me how my day was.”

  He really didn't want to. He wanted to tell her about his day. And there was no doubt she'd had a bad day. She was going to complain or worse about God knew what and he was going to have to pretend like he cared, like she was totally right, and like he was just as upset, or offended, or outraged as she was at whatever or whomever she was angry at. But then, he supposed, that came with being the 'boyfriend.' Being there for her, even when he'd rather be somewhere else. He took a sip of water, wished he had something stronger, and steeled himself. “How was your day?”

  She slapped the menu onto the table. Brunelle just knew she hadn't picked anything. It was going to be forever before they ordered, longer before they ate.

  “My day sucked,” Kat started, “thank you very much.”

  Brunelle nodded. He already knew that. He also knew to shut up and let her talk.

  “First off,” Kat continued, “I woke up late. I never wake up late. But Lizzy... Oh God, David, be glad you never had kids. I don't care how cute they are when they're little, they grow into teenagers. She's got homework, grades, ...boys.” That last word held especially noticeable venom. “And now she wants to go visit her dad, and well, you met him.”

  Another nod, but he didn't take the bait to criticize her ex-husband. He was familiar with the 'I can criticize my family, but you can't' dynamic and she was in a rare mood. He may have been stupid, but he was no fool.

  “So anyway, we got into big argument, and it just went on forever, and I was up way too late then couldn't sleep, and I slept right through my fucking alarm. Lizzy slept in too since I didn't wake her up, so she missed the bus and I had to drive her to school which was just a joy considering the previous night's argument and the fact that that was the reason we were late in the first place.”

  There seemed to be a break in the narrative, one long enough to offer maybe a 'Yeah, that sucks,' but he stuck with the silence. It was safer.

  “So I was over an hour late to work. Usually I get in before rush hour, but this morning I got stuck right in the middle of it. What the hell is wrong with the drivers in this city?” She shook her head at her own question and went on. “What the hell is wrong with everyone in this city? There were eight bodies waiting for me when I got in. Well, seven bodies, and one body bag full of miscellaneous remains that were half liquefied.”

  Brunelle grimaced slightly. He wondered if the other patrons could hear her. He also made a mental note to skip the miso soup.

  “Then, when I finally get changed and into the examining room, Fenton is already doing one of my autopsies. One of mine.”

  “Yours?” Brunelle went ahead and asked. “Why was it yours? Do you guys call dibs the night before or something?”

  Kat narrowed her eyes. “No. They get assigned out every morning by the director. Fenton had his list, I had mine. But he finished his first one before I got there, so he started doing mine.”

  Brunelle’s brow knitted. “Maybe he was trying to do you a favor?”

  Kat’s own eyebrows lowered, but in a menacing way. “Fenton’s a jerk. He doesn’t do anybody any favors. He was trying to make me look bad.”

  Brunelle decided not to respond. He was pretty sure whatever he might say would be wrong.

  “He’d go blab to everyone that he’d done all of his autopsies plus some of mine.”

  Brunelle ventured a syllable. “Oh.”

  “Exactly,” Kat elected to agree. “So I told him to step away from the corpse.”

  “Did he?”

  “After a second, yeah,” Kat snarled. “Then he tried to hand me his scalpel, blade first.” She paused for a moment. “Fucker.”

  Brunelle wasn’t enjoying the dance, but he knew the music was still playing. “He should have handed it handle first, right?”

  “He shouldn't have handed it to me at all,” she replied like a mother disappointed with her child's denseness. “I don't want to use his fucking scalpel. I have my own, thank you. And yeah, he shouldn't have handed it blade first.” She narrowed already angry eyes into near slits.

  “Do you think he did it on purpose?” Brunelle asked, trying to keep up with her indignatio
n.

  But Kat scowled at him. “No, not on purpose,” she spat. “Jesus, David, do you always have to be the prosecutor?”

  That wasn’t what he’d meant. He was just asking. He shook his head slightly. “Well, yeah. Sorry. I guess, I dunno.” He wasn’t sure what to say. “I guess that would have hurt, huh?” he offered with a shrug.

  “Fuck the pain, David,” Kat growled. “He could have stabbed me with a biohazard. The body—my body—was a homeless guy they found O.D.’d in an alley. I could have gotten TB, or Hep C, or even fucking AIDS.”

  Okay, yeah, Brunelle agreed in his head. That would have sucked.

  “I would have had to go to the hospital,” Kat went on, “to get a bunch of blood drawn and they would have put me on a cocktail of like ten fucking antibiotics until I was shitting water every thirty minutes.”

  Brunelle nodded. Definitely no soup.

  “Well, look.” Brunelle wasn’t really sure why Kat was getting so upset about something that didn’t actually happen, but he was starting to get tired of defending against ghosts. “I don't think—”

  But Kat cut him off. “That's exactly right, David. You don't think. You don't know shit about what I do, but you think you do because you read autopsy reports. You think you know guns because you read ballistics reports. You think you know mental illness because you read psych reports. But really, everybody else actually does stuff and then you just glom on at the end and pretend you're part of it too. You can pretend you're a doctor, or a firearm expert, or a psychologist, but really you're just a lawyer. Maybe you should stop pretending you’re something you're not and accept who you really are.”

  Brunelle didn't have to hold his tongue that time. He was speechless.

  Kat seemed oblivious. She took a long drink of water, then finished her complaint. “I ended up working through lunch so I wouldn't be late for our fucking dinner, and to top it all off, Lizzy came home sick and so she's home alone now, still mad at me, and here I am with you.”