Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  “Please state your name for the record,” Jacobsen began his direct examination.

  “Peter Sylvan.” The sexologist had a relaxed air about him. Confident, with just a trace of arrogance. Perfect for an expert witness.

  “Are you familiar with the case at issue here today?”

  Sylvan nodded. “Yes. I have been retained by the accused as an expert.”

  Jacobsen nodded. He had a three-ring binder open on the bar and was working through his obviously prepared direct exam. He wasn’t even looking at Sylvan. But everyone else in the courtroom was.

  “And what is your area of expertise?”

  “I’m a sexologist,” Sylvan replied, fully expecting the titter that washed through the gallery. “I hold a bachelor’s degree in psychology and human sexuality from the University of Michigan, and a master’s degree in sexology from Seattle State University.”

  Jacobsen looked up from his binder long enough to acknowledge the awkwardness of the topic with an uneasy smile. But it was the nature of the case. The human thing to do was to be slightly embarrassed. The lawyerly thing to do was to press on.

  “And do you have a particular sub-specialty?” Jacobsen asked, returning his gaze to his notes.

  Sylvan nodded, then looked up to the judge to answer. “I specialize in nonreciprocal power relationships and restraint protocols.”

  Jacobsen looked up to see if the judge got it. Her expression was difficult to read, so he followed up. “Sado-masochism?” he tried to clarify.

  Quinn’s eyebrow raised enough to signal her understanding of that term. But Sylvan expanded. “That’s one dynamic,” he answered. “There are others. Not all involve actual infliction of pain. There’s a broad variety of activities people engage in.”

  The murmur through the gallery was more subdued. Scholarly interest, perhaps, rather than juvenile tittering.

  “Have you had a chance, Dr. Sylvan,” Jacobsen continued, “to review the police reports in this case?”

  “I have,” Sylvan replied. “I also reviewed the crime scene photographs and the autopsy reports.”

  “So are you familiar with the circumstances surrounding Christina Belfair’s death?”

  Yes,” Sylvan answered. He was about to expound but Judge Quinn cut him off.

  “As am I,” the judge said. “As I said, I’ve reviewed the pleadings, which included the relevant police reports so I could assess whether a jury could possibly convict Mr. Atkins. I don’t want to spend time having this witness recount the details of the death here. I assume,” she looked to Jacobsen, “this witness has more to offer than a recitation of the facts?”

  “Yes, Your Honor,” Jacobsen replied. He turned to Sylvan. “Based on your education and experience, and your review of the reports in this case, do you have an opinion as to whether any rational jury could possibly find Mr. Atkins guilty of manslaughter?”

  Yamata jumped to her feet. “Objection!”

  Brunelle looked up at her, wide-eyed. Apart from everything else, Sylvan was his witness. Only he was supposed to make objections. Now Quinn could force Yamata to do the cross exam, which would defeat the entire purpose. “What the hell are you doing?”

  “What the hell are you doing?” she whispered back. “You can’t let this guy give that kind of opinion. We don’t have a responsive witness—because there aren’t supposed to be any witnesses. The only record for the judge will be Sylvan’s opinion and she’ll have to grant it.”

  Brunelle didn’t fully agree with that analysis—that’s what cross examination was for—but he could see her point.

  “Will Ms. Yamata be doing the cross examination?” Quinn asked. That was enough for Brunelle to dodge that bullet.

  “No, Your Honor,” he replied before Yamata could. “I’ll be doing the cross. Just a little communication problem. My apologies.”

  Yamata glared at him but didn’t say anything.

  “Are you objecting?” Quinn asked.

  Brunelle hesitated. Yamata raised her eyebrows at him and gave an animated nod. Brunelle frowned. He didn’t like to object, but Yamata’s concern was valid.

  “We do object to that particular question, Your Honor,” he said. “It’s for the court to decide whether any reasonable jury could find the defendant guilty. That’s a legal conclusion and Dr. Sylvan’s area of expertise is, well, not the law anyway.”

  A light laughter passed through the gallery. Brunelle thought he saw a smile crack the corner of Quinn’s mouth as well.

  “I think he could give his own opinion as to whether a crime occurred,” Brunelle continued, “but he shouldn’t be allowed to do more than that.”

  Quinn nodded thoughtfully and looked to Jacobsen. “Any response?”

  Jacobsen also nodded thoughtfully, but regardless of the logic of Brunelle’s objection, Jacobsen was still an advocate first. “There’s no rule against a witness providing an opinion as to the ultimate issue. When he testifies at trial—” Then he corrected himself. It was important to be confident about his motion to dismiss. “That is, if he were to testify at a trial, then he would give the opinion Mr. Brunelle is trying to limit him to here. But the question before the court is whether any jury could possibly find my client guilty and that is the question I want him to answer.”

  Quinn pursed her lips in thought for several seconds. Finally, she sustained the objection. “I’ll determine whether any jury could find Mr. Atkins guilty. This witness should limit his testimony to his own opinion on Mr. Atkins’ guilt. Please rephrase your question.”

  Jacobsen frowned. But the difference between what he wanted to ask and what he was being allowed to ask was pretty thin, especially after a discussion that made it obvious what Sylvan would have said if he were allowed to answer the original question. “Yes, Your Honor,” Jacobsen deferred to the judge. He returned his gaze to his witness. “What is your opinion as to whether Mr. Atkins is guilty of any crime in relation to Ms. Belfair’s death?”

  Sylvan nodded, finally allowed to speak. “Based on my expertise as a sexologist, and my review of the relevant law enforcement reports, and the relevant statutes defining the crime of manslaughter, it is my opinion that Mr. Atkins is not guilty of any crime. This was an accident. A fatal accident, to be sure, but an accident nonetheless.”

  Jacobsen closed his binder and smiled at his witness. “Thank you, doctor. No further questions.”

  All eyes turned to Brunelle. Especially Yamata’s. And, he knew, Robyn’s. If he were honest to himself, he had to admit part of his reason for wanting to cross Sylvan was to show off to Robyn what she’d taught him during their night together.

  He stood up and took his place as the cross-examiner. Close enough to the witness to suggest confrontation, but far enough away to not be a jerk about it. There was no jury to impress anyway.

  “Good morning, Doctor,” he began. “Nice to see you again.”

  Sylvan smiled. “You too. How’s the practice?”

  That stunned Brunelle for a moment. Wow, what an ass, he thought. He was going to enjoy the cross exam.

  “Oh, you know,” he offered his own grin. “Learn something new every day.”

  Sylvan raised an eyebrow. His curiosity apparently overcame his antagonism. Brunelle pressed his advantage.

  “So you’re an expert in BDSM, correct?”

  Sylvan nodded carefully. “Correct.”

  “And that stands for bondage, discipline, and sado-masochism.”

  Another careful nod. “Correct. I’m an expert on all aspects of human sexuality, but those are my areas of focus.”

  As much fun as it might have been to explore the details of that area of focus out loud in a crowded courtroom, Brunelle knew the best cross examinations were the shortest. Select your opening and hit it hard. So to speak.

  “And although those practices are,” he looked to the ceiling for the right word, “atypical, they are enjoyed by a large number of people, correct?”

  Sylvan gave a more honest nod. “Y
es. The numbers vary, but it is a substantial portion of the population. Many people don’t talk about it because of the stigma associated with, as you said, atypical sexual practices.”

  Brunelle braved a glance back at Yamata. Her expression was incredulous. ‘What the hell are you doing?’ was pretty clearly written across her features. Brunelle turned back to his witness.

  “In fact,” he said, “those practices are common enough that there are several companies which manufacture, um,” another glance to the ceiling, “equipment, correct?”

  “Oh, yes,” Sylvan replied. “There is no shortage of ‘equipment’ for people who wish to enjoy themselves that way.”

  “Equipment specifically designed for nothing but that type of sex, right?” Brunelle pressed. “Not just rope and handcuffs, but very specific things that have no other possible use?”

  Before Sylvan could answer, Judge Quinn interrupted. “Is this going somewhere, Mr. Brunelle?”

  Brunelle looked up to the bench. “Uh, yes, Your Honor.”

  “Can we get there quicker?” the judge encouraged.

  Brunelle nodded. “Yes, Your Honor. Just a few more questions. I’ll get to the point.”

  Quinn leaned back. “Thank you.”

  Brunelle turned back to Sylvan. “And these devices, they’re readily available?”

  Sylvan had to agree. “Yes.”

  “Manufactured by corporations that would get sued if they made anything that ended up hurting anyone?”

  Sylvan’s nod was practically in slow motion as he finally understood where Brunelle was going. “Ah, well, I don’t know about that exactly…”

  “But instead of using any of that equipment, Mr. Atkins chose to rely on standard rope and his own knot-tying abilities and now Tina Belfair is dead, isn’t that correct?”

  “Objection.” Jacobsen stood up with an air of fatigue. “That’s a compound question.”

  Quinn looked down at Brunelle. “He’s right. And you made your point.” She crossed her arms. “Are we there yet?”

  Brunelle looked to Yamata. She actually looked pleased. It was a nice look on her.

  “Yes, Your Honor,” Brunelle answered. “No further questions.”

  “No redirect, correct, Mr. Jacobsen?” Quinn’s question was clearly anything but. Jacobsen acquiesced.

  “Ready for argument, Your Honor,” he replied.

  Then both attorneys gave their arguments, Jacobsen maintaining it was a tragic accident, Brunelle blaming Atkins’ poor rope skills. By the end, the gallery was full of whispering, and Quinn’s eyes were full of relief that the hearing was finally over.

  “Thank you, counsel, for that,” she looked to the ceiling herself, “educational hearing. But if there’s one thing I’ve learned from this, it’s that this is obviously a very complicated area, full of facts not generally known to the average person. We can all agree that the death of Ms. Belfair was tragic. But I will let the jury decide whether it was a crime. The motion to dismiss is denied.”

  Brunelle pumped his fist ever so slightly and looked to Yamata.

  She shrugged but smiled. “I guess you knew what you were doing after all.”

  The judge adjourned the case and everyone stood up to leave. As Brunelle was gathering his things, Sylvan stepped up. “Well done,” he said. “I thought you were going somewhere else with that line of questioning.”

  “Oh yeah?” Brunelle asked. “Where?”

  But Sylvan just smiled. “Somewhere else.” Then he nodded to Yamata and took his leave. “See you at the trial, counsel.”

  Jacobsen was still crouching over the defense table huddling with Atkins, so Brunelle skipped the professional nicety of saying ‘good job’ or ‘goodbye’ and instead followed the crowd out into the hallway. He craned his neck to spy Robyn in the back of the courtroom but she was already gone. His heart sank at the thought that she had missed his brilliant cross exam, but it was buoyed again when he saw her in the hallway. She was leaning against the opposite wall and looking right at him as he exited the courtroom, but before he could walk up to her, he was accosted by several reporters and at least three news cameras with blinding lights activated.

  One of the reporters shoved a microphone in his face. “How did you manage to win that hearing?” she asked. “The defense expert seemed to think it was pretty black and white.”

  Brunelle recognized the reporter from Atkins' arraignment. Unfortunately it stirred up slippery memories of their first encounter, and in his victory haze, he spoke without thinking. “Most things aren't black and white. In this case, Mr. Atkins is fifty shades of guilty.”

  He immediately regretted the quip, but the cameras were rolling and he knew it would make the air by the way the reporter squealed at getting the sound bite that had eluded her earlier. In fact, as soon as they got the audio, they were done with him. They turned off their camera lights and raced after Jacobsen and Atkins who had tried to sneak out the other way.

  Yamata was about to make some undoubtedly sarcastic remark when she noticed Robyn waiting for him. So instead she said, “I'll meet you upstairs, Dave. We can debrief and map out our next steps to prep for trial.”

  She gave Robyn a parting nod and headed for the elevators. The rest of the crowd had also dissipated, leaving Brunelle and Robyn alone together in the hallway. Robyn pushed herself off the wall and stepped over to him.

  Forcing his sound bite blunder out of his mind, he smiled at her. “So what did you think of my cross?”

  Brunelle expected accolades. Maybe even a proposition. Instead, Robyn slowly shook her head at him, a disappointed smile creasing the corner of her mouth.

  “I think,” she said, “you didn't learn a damn thing.”

  Chapter 26

  The phone rang. Even as he answered it, Brunelle thought maybe he shouldn’t have.

  “Fifty shades of guilty?” It was Kat. “What the hell kind of quote was that?”

  Brunelle peered at the clock on the other side of his apartment. It was 6:07. The news must have led with his comment. It was before the first commercial anyway.

  “A stupid one,” Brunelle answered. “I wasn’t thinking.”

  “It was funny,” Kat admitted. “But not very professional.”

  “I know.”

  “You’re going to get in trouble, aren’t you?”

  Brunelle lowered his head into his hand. “Yeah. Probably.”

  “With who?”

  “Matt,” Brunelle started. “Judge Quinn. The victim’s family. Jacobsen. Pretty much everybody.”

  “What about the Bar?” Kat asked.

  Brunelle frowned. He’d snatched defeat from the jaws of victory. No amount of charm and small talk was going to get him out of that one. “Yeah, them too. Prosecutors aren’t supposed to make comments like that to the media.”

  Kat laughed lightly. “Just the jury, right?”

  Brunelle smiled weakly, even if Kat wasn’t actually there to see it. “No. I’m pretty sure the Court of Appeals wouldn’t like it either.”

  There was a pause. Then Kat asked, “So what were you thinking? You’re usually good with the media.”

  He shook his head. “I don’t know. I guess I was just jacked up from winning the hearing. I… I don’t know.”

  But he did know. He just didn’t want to tell Kat.

  Kat paused again, then asked, “Do you want to come over tonight, maybe spend the night? Lizzy’s here, but it’s not like she doesn’t know what we do. Some company might do you good.”

  But that was the last thing he wanted to do. He felt guilty enough for letting Yamata and Duncan down by making that statement. He didn’t need his guilt compounded by seeing Kat face-to-face only days after being with Robyn.

  “Thanks,” he said, “but I think I just want to be alone tonight.”

  Another pause. “I’m sorry about dinner last week,” Kat said. “I had a really shitty day and I took it out on you. That wasn’t fair of me.”

  And neither was that
apology, thought Brunelle. He’d needed the resentment he’d felt that night to help him justify what he really couldn’t justify. An apology was just going to make it worse. “No worries,” he said. “Nothing to apologize for. I have shitty days too.”

  Kat chuckled. “Like today.”

  Brunelle shrugged. “It was good except for that stupid sound bite.” He was thinking about winning the hearing. Then he thought about what Robyn had said afterward, and how she’d turned and walked away from him after saying it. “Well, mostly good. I guess.”

  They were both quiet for a few moments, then Kat said, “Well, I think I’m going to let you go. You don’t seem like you really want to talk, and I’m not gonna be a bitch and force myself on you. But don’t beat up on yourself. You’re a really decent guy. Everybody makes mistakes.”

  Brunelle grimaced. If only she knew. “Thanks, Kat. Have a good night.”

  “You too,” she replied. “Call me tomorrow?”

  Brunelle nodded to himself again. “Sure.” Then, “Yes. Sounds good.”

  They hung up and Brunelle leaned back on his couch. What a shitty day. And suddenly Saturday night—which he’d initially thought of as one of the best nights of his life—had perhaps become one of his worst mistakes. He knew Robyn would keep her mouth shut. He wasn’t so sure he could.

  He sat there for several minutes, his thoughts and emotions swirling in his head. Finally, he picked up the phone and dialed.

  “Hello?” Kat answered.

  “Is that invitation still open for tonight?”

  He couldn’t see it, but he knew she was smiling. “Yes. Of course.”

  He hesitated. “Are you sure she knows what we do?”

  Kat laughed. “She’s in high school, David. She knows.”

  “I’ve had enough public humiliation today,” he said. “Do you think you can be quiet?”

  “I can be whatever you need,” she purred.

  Brunelle knew that. He just wished he would have remembered it earlier.