Diminished Capacity

by Stephen Penner

  Brunelle could see people wanting to talk to Emory. And he could see people wanting to punch Goodman. Maybe, he thought with a smile as he leaned back in his chair, he’d get to see both.

  “So, Kevin turned me in, huh?” Pollard said as soon as the detectives finished reading him his rights. “I knew he would. I knew that’s why he wanted to split up. I should have made him stay with me.”

  “Don’t worry about Kevin right now, Justin,” Emory started. “We want to hear what you have to say. We want to hear your side of the story.”

  “There’s always two sides to a story,” Goodman put in.

  Emory fought back a pained expression. Her line had been delivered smoothly, like a snake hypnotizing a small animal before devouring it. Goodman sounded like tag-along little brother. He was going to break Emory’s spell. It gave ‘good cop/bad cop’ a new meaning. Not ‘nice’ and ‘mean’, but ‘competent’ and ‘not so much’.

  “What did Kevin tell you?” Pollard persisted.

  Goodman started to answer, but Emory put a hand on his arm.

  “He told us you were provoked,” she said.

  “He said that?” Pollard asked.

  “He sure did,” Emory confirmed. “And he said eventually you just sort of lost it.”

  Pollard nodded. “Yeah.”

  “So, why don’t you tell us what happened?” Emory tried again.

  Pollard looked down at the floor for several seconds, his mouth twisted up in thought. Finally, he looked up again. “If Kevin already told you what happened, why do you need to hear it from me?”

  “It’s different if it comes from the suspect,” Goodman blurted out.

  Brunelle slapped his forehead. Goodman was right. It was called a confession. If Pollard confessed to what happened, Brunelle wouldn’t need Kevin to testify at all. But you don’t tell the suspect that.

  Emory knew that too. “It’s different,” she spun it, “because only you can tell us why it happened. Only you can help us to understand your side of the story.”

  But Pollard didn’t seem to be buying it. They’d lost him. Goodman had lost him. Damn it.

  “I don’t know…” Pollard started. “I think maybe I shouldn’t be talking to you guys.”

  He was slipping away. As soon as he said the word ‘lawyer’ they’d have to stop the interrogation cold. And it sure looked like he was about to say it. Emory was running out of time.

  “Yeah, that’s what I thought.” Emory sneered. She pushed herself back in her chair and crossed her arms. “That’s what Kevin thought too.”

  Pollard looked confused. “What do you mean? What did Kevin think?”

  “Kevin said the old man was right.” Emory shook her head dismissively. “You are a pussy.”

  “He said that?” Pollard leaned forward, his wrist pulling at the handcuffs.

  “Yep,” Emory answered. “He said the old man called you a pussy, and the old man was right. Only a pussy would beat up an old, drunk, crazy, homeless man. Only a pussy would make himself feel like a man by attacking the weakest victim he could possibly find. And only a pussy would be afraid to admit what he’d done.”

  Pollard just blinked at her.

  “Thing is,” Emory went on. “I don’t think he’s right at all.”

  “You don’t?” Pollard asked.

  “No,” Emory explained. “Pussies aren’t weak. They’re tough as shit. You push a baby through your dick and go back to work the next day. But you? No, you’re not tough enough to be a pussy. You wish you were a pussy.”

  Brunelle was impressed. One, at her argument for the toughness of the female anatomy—she made a good point. But two, if an old homeless man calling Pollard a pussy set him off, it was a good bet that a young woman police detective calling him that would set him off too.

  Except it didn’t.

  "That doesn't sound like Kevin," Pollard said calmly, almost sadly. "But even if he did say that, he's wrong. That's not how it went down."

  “Uh, ok,” Emory regrouped. "How did it go down, then, Justin? Tell me how it went down."

  Pollard took another moment. He looked down again, his brow furrowed. "I, I don't know." Then, the magic word. "Maybe I should talk to a lawyer."

  “Shit,” Brunelle whispered. Emory undoubtedly thought something similar herself.

  "You don’t know what happened?" Emory tried. "Or you don’t know if you should talk with a lawyer?"

  Pollard paused again before answering, "I'd like to talk to a lawyer now."

  Emory slapped the table. "Damn it. Fine. We're done, Pollard." She stood up. "You're under arrest for first degree murder. You'll be arraigned tomorrow afternoon."

  "What about my lawyer?" Pollard whined.

  "We don’t have to give you a lawyer," Emory told him. "We just can't ask you any more questions without one. So, fine, no more questions. Nice talking to you. You can get your lawyer yourself when you get access to a phone. In the meantime, enjoy your night in jail. It won't be your last."

  Then she stormed out and left Goodman to do the dirty work of actually transporting Pollard to the King County Jail in Seattle.

  "That went well," Brunelle quipped when Emory came to fetch him from the observation room.

  Emory shrugged. She’d acted angry when she left the interrogation room, but seemed reflective by the time she reached Brunelle. “It could have gone worse,” she appraised. “He basically confirmed what Kevin told us.”

  “Well, he didn’t deny it,” Brunelle half-agreed, “but I’m not sure that’s the same thing as confirming it.”

  “I’m sure you’ll be able to spin it that way to the jury just fine,” Emory countered.

  Brunelle decided that was a compliment and accepted it with a grin.

  “You didn’t get him mad, though,” he pointed out.

  Emory frowned. “Yeah. I thought for sure that whole ‘you’re a pussy’ thing would work. It worked before when the old man said it.”

  “Or it didn’t,” Brunelle offered. “And Langford was lying to us.”

  Emory nodded as she considered. “Pollard sure doesn’t seem like the guy Langford described. Either Pollard is a really good actor—”

  “Or Langford is,” Brunelle finished.

  “Yeah,” Emory reluctantly agreed, ideas racing behind downturned eyes. Then she shook herself out of her thoughts and slapped Brunelle on the arm. “Tag!”

  “Tag?” Brunelle asked, looking down at where she’d slapped him.

  “You’re it,” she explained. “I just arrested a man for a murder that didn’t even happen in my city, based on the word of a single witness, who we both think might be lying. Now you get to try to convict him for it. Good luck!”

  Brunelle forced another grin. “Gee. Thanks.”

  CHAPTER 5

  Arraignments were always in the afternoon, to give the prosecutors time to review the previous night’s arrest reports to decide whether and what charges to file. But Brunelle didn’t need to review any police reports on Justin Pollard. He’d seen the body. He’d heard from the eyewitness. He’d watched the suspect’s half-confession. The charging paperwork was finished in short order and Brunelle spent the rest of the morning waiting for a phone call from that high-priced lawyer Pollard said he wanted.

  But the call never came.

  So, at 1:00 p.m., Brunelle walked into court to learn that Pollard would be represented by the public defender at his arraignment, just like almost everyone else. The only difference was, while the car thieves and drug dealers got one of the newer public defenders, still cutting their teeth on felonies after a few years representing misdemeanant shoplifters and trespassers, Pollard was a murderer. He’d get the best the King County Department of Public Defense had to offer. He’d get Jessica Edwards.

  “Hey, Jess,” Brunelle greeted her as he stepped into the crowded arraignment courtroom on the twelfth floor of the King County Courthouse. “You handling the Pollard arraignment? I didn’t think he’d qualify for the public d
efender.”

  “He probably won’t,” Edwards agreed. “But he hasn’t hired anyone yet, and the judges aren’t about to let a murder defendant get arraigned without a lawyer. Private counsel will probably substitute in before the first pretrial conference.”

  “Yeah, probably.” Brunelle handed her a copy of the charging paperwork. “Or maybe he’s living off mommy and daddy and they don’t want to pay to defend their little boy now that he’s charged with murder.”

  Edwards cocked her head at him, then smiled softly. “Oh, that’s right. You don’t have kids.”

  Brunelle huffed. “Well, maybe the parents would pay, but they can’t. Maybe they’re not really as rich as we thought.”

  “Or maybe,” a voice next to them suggested, “that’s what he wants you to think when you’re coming up with your bail recommendation.”

  It was Gwen Carlisle, another prosecutor in Brunelle’s office. She had straight blonde hair, cut at her jaw, and tended toward classic fashion with minimal flash or bling. She had an armful of files, ready for her own arraignments. Or maybe it was just one really big file. She had just been transferred from property crimes to the special assault unit. Bigger cases, bigger stakes, bigger investigations, bigger files.

  “If he shows up with a team of gold-plated lawyers in designer suits,” Carlisle posited, “the judge is gonna double the normal bail, just to try to hold him. But if he comes out in his jail jammies and stands next to the ‘Public Pretender’—” She turned to Edwards. “No offense, Jessica.”

  “None taken,” Edwards assured. “I get your point.”

  “Right. So, if he stands there next to the Public Pretender,” Carlisle repeated, “well, then maybe mommy and daddy aren’t that rich, or that supportive, or whatever you were letting yourself get tricked into thinking, Dave.”

  Brunelle straightened up. “What? No, I was just—”

  “And so, bail gets set low,” Carlisle concluded, “and he can use the difference to hire that team of gold-plated lawyers I was telling you about. Shit, they’re probably sitting in the gallery right now, waiting to see how much of their retainer they’re going to get up front.”

  Brunelle and Edwards both just stared at Carlisle for a moment.

  Then Carlisle laughed. “Or not,” she said. “See ya.” And she excused herself to make her way over to the defense attorneys she needed to speak with before the judge took the bench.

  “I can’t decide if I like her,” Edwards said, looking after Carlisle.

  “No, you like her,” Brunelle asserted. “You just don’t like her being on my side.”

  Edwards thought for a moment then nodded. “Yes. That’s it exactly.”

  The judge came out then. “All rise!” the bailiff called out. “The King County Superior Court is now in session, the Honorable Janet Whitaker presiding.”

  Judge Whitaker was one of those judges all the lawyers sort of forgot about unless they found themselves appearing in front of her. She was hidden in the middle of the judicial pack. There were judges with more experience, and judges with less. There were judges who made better rulings, but judges who made worse. And while there were judges who filled the courtroom with their personality, and those who seemed to be sleeping through even the most thrilling proceedings, Judge Whitaker simply listened attentively, asked a question or two if helpful, then issued a calm ruling, fully expecting everyone in the courtroom to respect it because, after all, she was the judge.

  It was her turn in the arraignment court rotation. No judge wanted to spend their entire career presiding over nothing but arraignments, bail hearings, and guilty pleas. So instead, they all agreed to take turns in that particular barrel. In fact, for the longest time, that’s what everyone called the arraignment/plea court—'the barrel’—until someone realized where the phrase came from and County H.R. quickly sent out a memo prohibiting further use of the term, explaining the myriad ways it violated county policies against sexual harassment and discrimination.

  So, when boring, forgettable, reasonable Judge Whitaker took the bench and asked if any matters were ready, all the attorneys relaxed a bit, and Brunelle stepped forward to call his case first.

  “The parties are ready on the matter of The State of Washington versus Justin Pollard,” he announced. “It comes on for arraignment and the State would also request to be heard regarding conditions of release.”

  Edwards stepped forward to the bar as well. “Jessica Edwards appearing on behalf of Mr. Pollard,” she identified herself for the record, then nodded to the corrections officers standing by the secure door to the holding cells. “Mr. Pollard is entering the courtroom now.”

  ‘Entering’ might have been a charitable description. While he was definitely coming into the courtroom from a location outside of the courtroom, ‘being dragged in’ was probably more accurate. To be fair, it was only a half-drag, with a series of encouraging shoves in the back from the corrections officers on either side of him as he shuffled forward in his red jail scrubs and one-size-fits-most slip-on plastic sandals. His hands were cuffed behind his back, which Brunelle made note of. Not every defendant needed to be handcuffed in court. Most of them were docile enough, only too happy to be out of their cells for court, even for just an hour or so. Brunelle tensed up just a bit, curious whether Pollard would cause any trouble, but comfortable in the knowledge that, if he did, there were several large corrections officers who would handle it for him.

  When Pollard reached the bar, he took an unsure spot next to Edwards, who patted his arm reassuringly and told him to listen as Brunelle proceeded with the arraignment.

  “The State has charged Mr. Pollard with one count of murder in the first degree.” Brunelle handed a copy of the charging paperwork to the bailiff, who in turn passed it up to the judge.

  Judge Whitaker reviewed it briefly, then addressed Edwards. “Counsel, have you received a copy of the charging papers?”

  “Yes, Your Honor,” Edwards answered. “We would waive a formal reading of the charges and enter a plea of not guilty.”

  “A plea of not guilty will be entered,” Whitaker confirmed. “Mr. Brunelle, conditions of release?”

  In misdemeanor court, ‘conditions of release’ actually meant that. The defendant would be released, without posting bail, but they would have certain conditions placed on them—things like, no contact with the alleged victim, no further law violations, etc., while the case was pending. But in felony court—and especially when that felony was murder—‘conditions of release’ really meant conditions to prevent release, starting with bail.

  “The State is asking the Court to set bail in the amount of two million dollars,” Brunelle began. Standard bail on a Murder One was more like one million, but Pollard was reportedly loaded—or his family was, anyway—and again the purpose of bail was to prevent release, so Brunelle doubled the number, hoping Mommy and Daddy Pollard wouldn’t have two million liquid enough to give to the county clerk, nor would they want to pay a non-refundable $200,000 to a bonding company to post it for them. “In addition, the State would ask the Court to order the defendant to have no contact with the victim’s family, to remain within King County unless granted leave by the Court, to remain in contact with his defense attorney, and to appear for all future court hearings in the event he should post bail.”

  Brunelle refrained from saying ‘unlikely event’ because, first, it would have been snarky and unprofessional, and second, he didn’t actually know it was unlikely.

  “Thank you, Mr. Brunelle,” Judge Whitaker said. She turned to Edwards. “I’ll hear now from the defense.”

  “Thank you, Your Honor,” Edwards said. “The defense has no objection to the no contact order or other release provisions suggested by Mr. Brunelle. We do, however, object to bail in the exorbitant amount of two million dollars. Bail is meant to secure a defendant’s presence, but there is no reason to believe Mr. Pollard will not appear for court if given the chance to do so on his own. He has no criminal
history and was cooperative with authorities during the time of his arrest. I realize the Court is unlikely to release someone charged with first degree murder on their personal recognizance, but we would ask for a lower bail in the amount of two hundred thousand dollars.”

  That was exactly the amount Brunelle thought she’d recommend. He’d ask for two million. Edwards would ask for two hundred thousand. And the judge would compromise at one million, the default bail anyway. That was another reason he’d asked for the two mil.

  Judge Whitaker did not disappoint. “I appreciate your advocacy, counsel,” she said to Edwards, “but I am mindful that the allegation here is that the defendant attacked and killed a random stranger, for no reason other than being called a vulgar name. If true, that makes him a threat to everyone in our community. I understand he is presumed innocent until and unless he is proven guilty beyond a reasonable doubt at trial, but I am charged with keeping the community safe until such time as that trial can be held. Therefore, I will set bail in the more reasonable amount of one million dollars. The other conditions requested by the prosecutor will also be imposed.”

  And that was that. Or not.

  “One million dollars?” Pollard yelled. “One million dollars?! You’ve never seen one million dollars in your life. You’re just a judge. A government bureaucrat. It’s your job to keep the peace so your betters can make money. Way more money than one million fucking dollars. Who the hell are you to tell me I have to give you a million dollars to buy my freedom? Nobody! That’s who! You’re fucking nobody!”