Substantial Risk (David Brunelle Legal Thriller Series Book 5)

by Stephen Penner

  Chapter 27

  Brunelle got to work early the next morning. It had been a nice night. Nothing fancy, or acrobatic, or 'atypical'. Sometimes vanilla can taste pretty good.

  But whatever lingering afterglow he took with him to the office disappeared when he checked his voicemail.

  “Hey, Dave, it’s Larry. Saw you on the news. Great quote. Hilarious. All the guys down here loved it. Uh…. you weren’t supposed to say that, were you?”

  Beep.

  “Mr. Brunelle, this is Yvonne Taylor from the Washington State Bar Association. We will not be dismissing your grievance after all. In fact, we'll be opening a new file based on your comments to the media. I strongly encourage you to retain an attorney and have them contact me as soon as possible.”

  Beep.

  “Dave. This is Matt. Come to my office as soon as you get in. I think you know why.”

  Beep.

  He lowered his head into his hands, then pushed his fingers through his short, graying hair. “Could this get any worse?”

  “Yes,” came the unexpected reply. It was his secretary Nicole, darkening his door with a document in her hand. She stepped into the office and tossed the paper on Brunelle's desk.

  He looked down and read the caption: ‘Defendant's motion to dismiss for prosecutorial misconduct.’

  Brunelle frowned. “Well, damn.”

  “Yeah,” Nicole laughed darkly. “You're fifty shades of fucked.”

  Chapter 28

  The courtroom was actually more packed than for the last motion. Sex sells. So does humiliation. Combine them into one prosecutorial train wreck, and a crowd was guaranteed. Where Brunelle had been glad to see Robyn at the last hearing, he was relieved she hadn’t bothered to come to this one.

  Especially when Judge Quinn took the bench.

  Usually a judge will call the case, ask the attorneys if they’re ready to proceed, then invite the moving party to begin. Quinn did none of that. She sat down and pointed right at Brunelle. “What is wrong with you?”

  Brunelle grimaced. This was going to go even worse than he’d thought.

  “Uh…” he started. Several thoughts flashed through his mind. The first was how criminal suspects were always told they had the right to remain silent. The second was that they almost never did. The third was that he used their non-silence to send them to prison. Lesson: shut up and don’t admit shit. But he also thought about his professional obligations. Honesty in dealing with others. Candor to the tribunal. And all the cases he had where it didn’t matter whether the defendant talked to the cops or not; all the other evidence proved he was guilty, witnesses, trace evidence, even video. Surveillance video. Or television video.

  Sometimes the only thing you can say is sorry. “I apologize, Your Honor. It wasn’t intentional.”

  “Of course it was intentional,” Quinn fired back. “You can’t form a sentence accidentally. Not a coherent sentence. Not that sentence.”

  Brunelle nodded. She was right. He’d said it intentionally. He just didn’t intend the consequences. “You’re right, Your Honor. I just meant that I didn’t think before I spoke. I didn’t mean to jeopardize the case.”

  “Never mind jeopardizing your case,” Quinn snapped. “What about jeopardizing Mr. Atkins’ right to a fair trial? Did you forget about that?”

  Brunelle thought for a moment. Honesty. Candor. “Yes, Your Honor. That’s exactly what happened. I forgot.”

  There was a tense silence for several seconds as Quinn scowled down at him. Finally Jacobsen cleared his throat and stood up.

  “Would the court like me to articulate the basis for our motion?” he asked.

  But Quinn shook her head. “No, counsel. Your brief is more than adequate. The Court is fully aware of the import of Mr. Brunelle’s misconduct.”

  Great, Brunelle frowned. Officially labeled as ‘misconduct.’ Robyn wasn’t there, but he wondered if Yvonne was. He didn’t turn around to look. He had enough happening in front of him. And to the side of him, Yamata was sitting stony and silent. He imagined she didn’t want to get painted with the same broad brush.

  Quinn turned back to Brunelle. “Tell me why I shouldn’t dismiss this case right now.”

  That was the whole issue, Brunelle knew. He’d known he was going to get a public spanking—although he hadn’t expected it to be quite this harsh. And he knew he was going to be seeing more of Yvonne the Inquisitor. But none of that mattered. What mattered was the case. What mattered was Tina Belfair.

  “Because Mr. Atkins killed Tina Belfair,” he said, “and she deserves justice.”

  It was an aggressive response to a judge, but what the hell. He didn’t have much more to lose.

  “My client deserves justice!” Jacobsen interjected.

  Quinn glowered at him. She was delivering the spanking. “Your client deserves a fair trial,” she corrected. “And it’s my job to ensure that.” She turned back to Brunelle. “And you, Mr. Brunelle, have severely damaged my ability to do that.”

  So that was why she was so pissed. She was taking it personally.

  “Trial is in two weeks, Mr. Brunelle. Court administration has already sent out the jury summonses. We knew we might need extra jurors for this given the pretrial publicity. But now, two weeks from trial, you make some stupid comment that’s gone viral. We summoned a hundred jurors just for this case. How many will we need now to find twelve who haven’t been impacted by the publicity and your asinine comment? Two hundred? Three hundred?”

  Brunelle shrugged. “I don’t know.”

  But she had just handed him his way out. It was a small crack, but the door was open.

  “And again, I apologize for the trouble my mental lapse has made.”

  “It wasn’t just a mental lapse,” Quinn corrected. “It was a professional lapse.”

  Brunelle could hardly disagree. “Yes, Your Honor. And I apologize. Your Honor has known me for some time now and knows that I don’t try cases in the media. I take my professional obligations seriously and I had a momentary failing. A moment of weakness. I admit it and I apologize. But the court should deny the motion to dismiss anyway. At least right now.”

  Quinn’s expression hardened, but there was a glimmer of curiosity in her eyes. “Why?”

  “For exactly the reasons you said, Your Honor.” It was always smart to butter up the judge when telling her why she should do something she didn’t want to do. “Because this isn’t about me. It’s about Mr. Atkins’ right to a fair trial. My comment was ill-advised, but it only becomes relevant if it impacts Mr. Atkins’ trial rights. I can do all sorts of ill-advised things. I can park in a handicap spot. I can text while driving. I can cheat on my girlfriend.”

  Oh my God, why did I say that?

  “B— But none of those matter,” he regained himself quickly, “because they don’t affect Mr. Atkins’ right to a fair trial. And we don’t know yet whether my stupid, asinine comment did either. It may impact my standing with the bar, or my reputation generally—both of which I deeply regret—but the only way it impacts Mr. Atkins is if we can’t pick a jury who was unimpacted by my comment. And the only way to do that is to bring in as many potential jurors as possible and at least try to seat an impartial jury.”

  Quinn frowned and crossed her robed arms, but she didn’t say anything immediately. Brunelle knew that was good for him.

  So did Jacobsen. “There’s more to the inquiry,” the defense attorney inserted. “Mr. Atkins is prejudiced either way.”

  Quinn looked to him and raised an inviting eyebrow.

  “The only way for me to discover whether a potential juror has been impacted by Mr. Brunelle’s misconduct,” he explained—Brunelle never thought he’d prefer being called asinine, but it was better that misconduct—”is for me to ask the juror. And the only way for me to ask the juror is for me to repeat Mr. Brunelle’s asinine comment.”

  Much better, Brunelle thought sardonically.

  “And if by some chance we do ge
t a juror who hasn’t heard it,” Jacobsen continued, “I myself will make sure the juror does hear it by asking the question in the first place. That puts Mr. Atkins in the untenable position of having to either make sure everyone on the jury has heard the comment by asking about it, or picking a jury without knowing who might have heard it because I didn’t want to repeat it. That is patently unfair. It is incurable. And the case should be dismissed.”

  Fuck, Brunelle thought. He had a good point. A glance at Yamata confirmed she thought so too. She’d lowered her face into her hands.

  Both prosecutors looked up to the judge. The judge frowned down at them.

  But no judge wants to dismiss a murder case. And Brunelle had given her an out. Again.

  “It seems entirely possible that Mr. Brunelle’s comments to the media may have made it impossible for us to seat a fair jury,” Judge Quinn started. “But it will be impossible to determine that until we at least try. I will order the clerk of the court to summon another hundred potential jurors. I think perhaps we overestimate how carefully the general public pays attention to the news. Perhaps we’ll be surprised by easily we can find twelve people who weren’t tainted by Mr. Brunelle’s stupidity.”

  Brunelle grimaced at the characterization, but was glad for the ruling.

  “Thank you, Your Honor,” he said—barely resisting the urge to follow up with, ‘May I have another?’

  Chapter 29

  A few days later Brunelle finally ran into Robyn. He was waiting for the elevator when she came out from one of the hallways to the courtrooms. She was wearing a dark suit with a knee length skirt. He noticed because she usually wore pant suits. And because he always noticed her. He liked how the suit hugged her curves even though he'd seen those curves without anything but his hands hugging them.

  His greeting got caught is his throat as his eyes got caught on her soft red locks. So she spoke first.

  “I heard about your hearing in front of Quinn,” she said. “I guess you can talk your way out of anything.”

  Brunelle grinned. A stupid school boy, the cute girl is talking to me grin. He shrugged. “I guess so.”

  “How'd ya manage it? From what I heard, you totally should have had your case dismissed.”

  The specificity of the question allowed him to focus on the answer, rather than the body he knew was hidden beneath that dark suit. “I just accepted what had happened and why we were there. I screwed up. I have a role in the system and just fell short. But I realized that didn't mean anyone else had to drop their role. Jacobsen had to bring the motion. He has an obligation to his client, so I didn't get mad at him. And Quinn has a job to do too. I made her job harder. So I acknowledged everyone's role in the system and explained why we could still go forward without anyone compromising their obligations.”

  Robyn listened intently to his answer. Then, after a moment, she smiled slightly and shook her head. “You have so much potential, Dave. And you don't even know it.”

  * * *

  The elevator had come at that point and Brunelle went up to his office while Robyn headed for the exit. He knew he should feel bad about having cheated on Kat with Robyn, but he couldn't manage any feelings of regret right then. Instead, he was focused on the awkwardness of the encounter with Robyn and memories of her body against his. The last thing he wanted to think about was the ethics of it all so he was doubly annoyed when Kat texted him.

  Dinner? Read the text.

  Ugh, he thought. 'Dinner' usually meant more than just dinner. Except last time when it meant less. When it meant a not-quite-argument, and a walk, and a flyer, and eventually doing that 'more than dinner' with someone else. He stared at the text. Just like 'dinner' meant more than dinner, a 'no' might mean more than just a no to dinner. His fingers hovered over the screen, but he hesitated.

  His lack of immediate response apparently prompted an encouragement text: I found this great new restaurant. You'll love it.

  He sighed. Then typed.

  Sounds great. Let's say 7:00. I'll meet you there. What's the name of the restaurant?

  He watched his screen and waited for the response. Then, with a clench of his heart, he suddenly guessed what the restaurant would be just before it flashed on the screen: The Pond. c u there. <3

  The heart was the perfect touch. Just fucking perfect.

  * * *

  Brunelle tried to beat Kat there. Maybe, if he was lucky, he could get that same secluded table. And tell the waiter there was an extra tip in it if he brought the food fast and the check faster. But that just reminded him that the wait staff might recognize him. In the event, it didn't matter. Kat was already there and had grabbed a table right near the entrance. Where any beautiful young defense attorney might walk in and reasonably conclude he had taken her romantic restaurant and commandeered it for another relationship.

  “David!” Kat waved at him when he walked in. “Over here.”

  Maybe he could fake a stomach flu or something. He waved back and stepped over. “Hey, you.” Then with a glance around the restaurant, he added, “Nice place.” Like he’d never been there.

  He sat down and tried to look around the way a person who had never been there before might do it. He picked up the menu that was already on the table.

  Oh, look! A menu.

  “Isn’t this place amazing?” Kat enthused. “I just heard about it. I never knew it was here. It’s totally hidden.” She lowered her eyelids at him. “The perfect place for a clandestine rendezvous.”

  Brunelle forced a smile over the panic. “Yeah.”

  Good. Short simple responses. Like what he always told his witnesses about getting cross-examined by the defense attorney: answer the question, but don’t elaborate.

  Kat glanced down at her menu. “So how was your day?”

  For a moment, he considered giving her a taste of her own medicine and answering, ‘My day sucked,’ just to do it. But that would have been petty. And besides, his day was fine.

  “Uh, good,” he said. “Nothing special.”

  Kat looked up long enough to nod, then back down to the menu.

  It took him a moment, then he remembered to ask her too. “Uh, how was your day?”

  The whole thing felt forced. He didn’t like that. It had always felt natural with Kat. More than natural. But not then. Not any more.

  She looked up again and smiled. “Fine. Cut up some bodies. Nothing special.”

  An awkward silence followed while Brunelle perused the menu without actually reading anything and glanced around in a way he hoped looked casual to see if he spied the waiter from his last visit. He didn’t.

  Kat set her menu down. “What are you going to have?” she asked him.

  “Hm?” he pulled his thoughts back to where he was, and who he was with. “Uh, I don’t know. Maybe the garlic chicken again.”

  Kat raised an eyebrow. “Again?”

  Fuck.

  He shrugged as casually as he could muster. “Yeah, isn’t that what I usually get when we go to an Asian place?”

  Kat gave him a long, appraising look. Finally she asked, “Are you okay, David?”

  Brunelle felt his heart tighten. There was no way he was going to let the conversation go down that path. So he took refuge in his work. “Oh, it’s just this damn sex club case.” He shrugged. “I know there’s a way to crack it, but I know I don’t see it yet.”

  “He killed his girlfriend,” Kat replied. “How hard is that to prove?”

  “I can prove that no problem,” Brunelle answered. “I’m just not sure I can prove it was a crime. He didn’t mean to kill her. That sounds like accident, not manslaughter. I need to figure out why it’s manslaughter.”

  Kat laughed. “Maybe you should have figured that out before you charged it.”

  Brunelle had trouble appreciating the joke. “Yeah, well, it looked different at charging. They always do. But I can tell there’s something I’m missing. Something that will make the jury understand.”

  B
efore either of them could say any more, the waitress came over. Brunelle was relieved it was a woman—definitely not the man who waited on him and Robyn. They placed their orders. Kat got the curry prawns. Brunelle got the garlic chicken. Again.

  After the waitress’ departure, the conversation returned to Brunelle’s case. He complained some more and was generally morose and irritable. That seemed to keep Kat at an arm’s length, lest she start asking specific questions he didn’t want to answer, or lie about.

  But just as Kat’s irritability had worn on Brunelle, so too did his mood impact Kat.

  “Ya know,” she said, standing up and dropping her napkin next to half eaten prawns, “I think I’m going to go to the restroom. Maybe you can use the time to get into a better mood.”

  But her admonition simply ensured the opposite. He didn’t think she had much right to lecture him on being pleasant dinner company.

  He sat and stewed for a few minutes, then pulled out his phone and checked for messages. He had a new text. From Robyn.

  I’m willing to give you another chance. Lol. Interested?

  His blood raced, and not to his brain. But before he could reply, Kat returned from the bathroom. He slipped the phone back in his pocket, the unanswered text burning a hole in his leg.

  She sat down and leveled her eyes at him. “Are we in a better mood now?” she asked in a sickly sweet sing-song.

  Brunelle didn’t like that. He wasn’t her child.

  Honesty, he told himself. And candor. But then the lawyer in him kicked in. Or a reasonable facsimile thereof.

  “So, um,” he cleared his throat. He couldn’t believe he was about to say what he was about to say. But he knew what he was about to do. What he already had done. And he didn’t want to be dishonest about it. That didn’t mean he had to tell her everything, but he couldn’t pretend everything was the way it had been either. “I’ve been thinking…”

  Kat’s face screwed up into a tight, guarded expression. Brunelle was smart; there was no doubt about that. But he wasn’t the type to go around ‘thinking.’ That was the kind of phrase someone used when they were about to say something bad. Something really bad.