Diminished Capacity

by Stephen Penner

  “Look,” Robyn practically purred, “I get it. You want to pretend there was never anything between us, that I’m just another defense attorney. Fine. I can play that game. Treat me like any other defense attorney. And if any other defense attorney came by wanting to talk about a case, you’d take them back into your office, wouldn’t you?”

  Brunelle stood there for several seconds, his hand still on the door handle, her document still rolled up like a promise of abuse.

  “Fine,” he groaned. “Come on back.”

  “My pleasure,” Robyn purred again.

  Brunelle managed—barely—not to reply.

  When they got to his office, Brunelle threw himself into his desk chair. Robyn perched onto one of the guest chairs.

  “Okay, we’re here,” he announced. “What?”

  Robyn laughed a little, sending her reddish curls bouncing. “Oh, Dave. You’re wound up tighter than a children’s violin. Relax. I’m just here to serve you with this.” She unfurled her pleading and slid it across the desk to Brunelle. “It’s notice of a mental defense. Diminished capacity, to be exact.”

  “Diminished capacity?” Brunelle frowned. “That’s weak, Robyn. Go insanity or go home.”

  “Insanity gets him twenty years in a mental hospital,” Robyn explained. “Diminished capacity gets him an acquittal.”

  “How are you going to prove his mental disorder prevented him from forming the intent to commit murder?” Brunelle inquired. “He chased the victim down a flight of stairs and stomped his skull ‘til it broke. It takes more than a few stomps to do that, Robyn.”

  “The more stomps the better, Dave,” Robyn replied. “Look at the diagnosis.”

  Brunelle looked down and scanned the document. After a moment he looked up again. “Intermittent explosive disorder?”

  “I’m going to call it I.E.D.” Robyn smiled. “A lot.”

  “Well, I’m calling it B.S.,” Brunelle returned. “Did you just make this up?”

  Robyn frowned at the suggestion. “Oh, no. It’s a documented mental disorder.” She glanced over at his bookshelf. “Go ahead. Check your copy of the DSM-5 and confirm it for yourself. I.E.D.—see what I did there?—I.E.D. starts on page 466.”

  Brunelle hesitated, then stood up and crossed his office to where he had what few legal books anyone still kept in paper format. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), was one such text. He pulled the purple soft cover book off the shelf and turned to page 466. And there it was.

  “Fuck.”

  “Maybe later, Dave,” Robyn joked as she stood up and made her way over to him. “Unless you mean figuratively, in which case, yes, you’re fucked.”

  “Intermittent explosive disorder,” Brunelle read aloud from the DSM-5, ignoring Robyn’s jabs, and trying to ignore her proximity. “Diagnostic criteria: Recurrent behavioral outbursts representing a failure to control aggressive impulses… Three behavioral outbursts involving destruction of property or physical assault… The magnitude of aggressiveness is grossly out of proportion to the provocation… The aggressive outbursts are not premeditated and are not committed to achieve some tangible objective…”

  Brunelle closed the book on his thumb. “This is ridiculous.”

  “No, it’s a complete defense,” Robyn explained. “It’s an acquittal.”

  She stepped into his personal space again. “Sorry, Dave. You’re going to lose this one. It’s a real disorder. A nasty one too. You just go off without warning.” She lowered her lids and looked up at him. “That wasn’t a problem for you, if I recall.”

  “Damn it, Robyn,” Brunelle protested, although he didn’t step away. “I can’t think straight when you do that.”

  Robyn laughed. “I know, Dave,” she said, reaching out to stroke his cheek. “That’s the plan.”

  CHAPTER 10

  As soon as Robyn left, Brunelle went downstairs to Carlisle’s office. She was smart, insightful, tough, and prepared. They’d tried a couple of cases together, and he trusted both her judgment and her skill. And she was another one of those people who understood him, but in a good way. Or at least a helpful way. A ‘keep him out of trouble’ sort of way.

  But when Brunelle darkened her door and offered an innocuous, “Hi,” Carlisle looked up from her work and exhaled. “Oh, shit. You.”

  “Wow,” Brunelle responded. “Is that any way to greet your next murder case?”

  Carlisle just shook her head at him. “Let me guess,” she started. “You need help. You’ve got another big new murder case. The defense attorney is someone you know from a past life. You dated her. She flusters you. So now you need someone to come on board as second chair to help you think straight and make sure you don’t succumb to all the mind games the aforementioned ex-lover defense attorney is already throwing at you.”

  Brunelle’s mouth fell open. “How the hell…?”

  Carlisle burst out laughing. “I was gossiping with the receptionist. You should talk with the support staff more, Dave. They see everything. And you’re as transparent as a two-way mirror. I’ve already looked up the case. Robyn Dunn again, huh? Fun. Diminished capacity? Sounds like a challenge. I’m all in.”

  “Okay, well, uh, great,” Brunelle stammered. “But I’m still lead counsel.”

  “Understood.” Carlisle offered a facetious salute. “My job is to keep you focused and not let you do anything stupid, right?”

  “Right,” Brunelle confirmed.

  Carlisle smiled and pointed her thumbs back at herself. “So, your straight man is a gay woman? Nice.”

  CHAPTER 11

  Over 95% of criminal cases settle short of trial. One reason for that is that over 95% of criminal defendants are guilty and everyone knows it. Another reason is that over 95% of the time, the cops don’t make some major error that would result in suppression of necessary evidence. Most defendants eventually accept responsibility, and most cops don’t screw up. So, in the end, most of criminal law is just working out how much prison time the defendant is going to plead guilty to.

  It wasn’t that The System couldn’t handle it if more cases went to trial. Of course it could—just hire more prosecutors and judges, build more courthouses and prisons. County councils always approved more money for public safety. The System didn’t need a 95% settlement rate; it accepted it and had built itself around it. But that meant the other 5%—the cases that were actually going to go to trial—still had to run the same gauntlet of preliminary hearings as the cases designed to reach a non-trial resolution.

  Cases didn’t proceed directly from arraignment to trial. Instead, it was arraignment to pretrial conference, to suppression motions, to omnibus hearing, to status conference, and then maybe, eventually, finally, maybe, to trial. The drug possession case with no priors and a clean search? That would plead guilty after the first pretrial conference. The burglary case with the fingerprint match and the two-page criminal history? That might take two pretrials, maybe a motion to suppress the stolen goods found in the guy’s trunk, before the prosecutor budges a little and the defendant accepts the improved offer. But the first degree murder case with the novel bullshit mental defense? That was going to trial.

  But first, a pretrial conference. In the same room as that drug case and that burglary case and a hundred other cases, with all the assigned prosecutors and retained defense attorneys and appointed public defenders milling about, pulling up chairs and opening files, sharing stories and pictures from the weekend, and also trying to settle the armfuls of cases they’d brought to the large, packed conference room everyone called The Pit.

  Every case had to start in The Pit. There was always a possibility that even the most unresolvable cases might resolve. Some defendants wanted to plead guilty no matter how weak the State’s case was, and some airtight cases unraveled unexpectedly because of one sentence in some supplemental police report. Some defense attorneys loved big retainers but were scared of big trials. And some prosecutors got
jaded and didn’t care any more.

  But not Robyn Dunn. And not Dave Brunelle.

  Or Gwen Carlisle.

  “Shit, it’s crowded,” Brunelle’s co-counsel observed as they opened the door to The Pit that morning. “We’re never gonna find a seat.”

  It was standing room only—one of the downsides of showing up right at 9 o’clock. But assuming Robyn was on time too, they could be done in short order and back to their desks by 9:30.

  Brunelle craned his neck and spotted an empty chair on the other side of the room. “There.”

  He and Carlisle pushed their way through the crowd and managed to get the one available seat before anyone else took it. Brunelle put a hand on the back of the chair to officially claim it, then offered it to Carlisle, but she shook her head. “No,” she said, “you’re older. You need to sit more than I do.”

  Brunelle couldn’t argue with the first sentence, but he was about to take issue with the second when Robyn stepped out of the crowd and swiftly sat in the chair herself. “Why, thank you, Mr. B.” She grinned up at him. “You always were a perfect gentleman.”

  The table seated eight, but the other seven seats were taken up by other attorneys, looking at one another’s motions, reports, and/or summer vacation photos. So, Brunelle was forced to look down at Robyn, an angle filled with beauty and memories.

  “Let’s make this quick,” he said gruffly. “Your guy’s not gonna plead to murder, right? And I’m not gonna offer a manslaughter.”

  “We’re not going to offer a manslaughter,” Carlisle put in. “I’m on the case too.”

  “Nice to see you again,” Robyn replied, and offered a handshake. “Gwen, right?” Then, back to business. “My guy wouldn’t plead to a manslaughter anyway, Dave. And Gwen. We want a dismissal.”

  “And I want a new car and a place on the beach,” Brunelle quipped. “But that’s not gonna happen either.”

  “It could.” Robyn raised an eyebrow. “A guy like you, with your experience? You could make a lot of money at a private firm.”

  Brunelle’s next thought—whatever it might have been—evaporated at the echo of Old Man Pollard’s words. “What did you--?”

  But Carlisle stepped on his words. “Fine. No manslaughter. No dismissal.” She laid it out. “Let’s figure out the schedule for discovery and motions, and fill out the pretrial order for the judge to sign.”

  “Let’s do the motion to dismiss first,” Robyn suggested. “When that’s granted, we won’t have to worry about any other hearings.”

  Brunelle pulled himself back to the present and rolled his eyes. “Pride before the fall,” he said, “or something. What motion to dismiss? Diminished capacity is a defense at trial, not a basis to dismiss beforehand.”

  Robyn smiled again and shrugged. “Says you. But you’re not the judge. We’ll be moving to dismiss based on the mental health issue.”

  “What mental health issue?” interrupted one of the other lawyers at the table. It was Mike Cho, a senior prosecutor in the drug unit. Senior, meaning ‘retired-in-place.’ He’d stopped caring enough to try the big cases years ago, but he wasn’t quite ready to start pulling his pension. So the office put him in the drug unit, and he spent most of his days sitting in The Pit, settling drug cases, small talking with everyone, and, as attested to by his ample waistline, eating from the box of donuts he brought in more mornings than not. “I love a good mental health issue.”

  “I bet,” Brunelle replied. “Too bad this one isn’t any good.”

  “Oh, Dave. That kind of talk just makes you sound scared.” Robyn turned to Cho. “My client suffers from intermittent explosive disorder,” she explained. “He didn’t have the necessary intent to commit the crime of murder.”

  “He stomped a homeless man’s head into a railroad track until his skull collapsed,” Brunelle put in. “Sounds pretty intentional to me.”

  “Do you have an expert?” Cho asked Robyn, interested in the issue and ignoring the sniping. “Someone who will say he’s not responsible for his actions?”

  “Of course,” Robyn answered.

  “Of course,” Carlisle echoed. “You can find someone to say anything if you pay them enough.”

  “Especially if it’s psychology,” put in another lawyer at the table. It was a new attorney Brunelle didn’t know. A young woman with long blonde hair, a navy suit, and her gaze firmly set on her phone even as she interjected herself into the conversation. “Total B.S. It’s not even a real science.”

  “Uh, I think my doctor would disagree,” Robyn responded.

  “Doctor?” the woman replied, still looking at her phone. She was seated next to Cho. Brunelle guessed she was the defense attorney on one of Cho’s drug cases. He didn’t care about yet another drug case because he was at the end of his career. She didn’t care because she was at the beginning of hers. “A medical doctor or a Ph.D.?”

  “Ph.D.,” Robyn answered.

  “In psych?” the other woman asked.

  “Yes.”

  “So, not a real doctor.” The woman finally looked up from her phone. “A Ph.D. in a fake science isn’t really a Ph.D. I mean, not one worth anything anyway.”

  Robyn pulled up a cold smile. “Thank you for your opinion.”

  “It’s not an opinion,” the woman answered. “It’s just true. Psychology is just made-up explanations of stuff we can’t possibly explain. They can’t actually do scientific experiments because you’d have to subject a control group to a bunch of seriously messed up stuff. Plus, there’s too many other variables. Plus, we’re inside looking at ourselves, so there’s no way to really look at anything objectively. I was just reading an article in Nature magazine about how there’s no peer review and there’s no falsifiability. Falsifiability is the cornerstone of science, but psychology experiments are never repeatable. They just make stuff up. That’s why you can always find someone to say anything.”

  “Which is exactly what we’re going to do,” Brunelle put in.

  “What are we going to do?” Carlisle asked, just beating out the same question from Robyn.

  “We’ll find our own expert,” Brunelle explained. “They’ll review your expert’s report and then explain why it’s total bullshit.”

  “Ooh, yeah, that’s gonna be a problem,” Robyn said. “He’s not going to write a report.”

  “Your expert isn’t going to write a report?” Brunelle questioned. “How am I supposed to know what he’s going to say before he testifies?”

  “That’s exactly it, Dave,” Robyn cooed. “You’re not supposed to know.”

  “And it doesn’t matter anyway,” the psychology skeptic interjected one last time as she looked down at her phone again. “It’s all made up anyway. Just have your guy make up the opposite of whatever her guy says.”

  Carlisle laughed lightly. “That is kind of how it works.”

  But Brunelle’s frown was firm. “You have to give me the expert’s report,” he growled at Robyn.

  “Only if he writes one,” Robyn retorted. “Otherwise, I only have to give you his name.”

  “What’s his name?” Brunelle demanded.

  “Dr. Nicholas Sanchez,” Robyn replied. “Head of Psychology at St. Mary’s Hospital.”

  “So, the first motion will be a discovery motion,” Brunelle announced. “To compel disclosure of Dr. Sanchez’s report. Or his notes. Or whatever he wrote down. Anything and everything.”

  “Anything and everything?” Robyn repeated. “Now, why does that sound familiar coming from you?”

  Brunelle set his jaw, fighting off the mind games she was playing. And in public, even! “Because that’s how I prosecute a case. And your client is going down.”

  Robyn raised that perfectly arched eyebrow again. “Dave, honey. Don’t throw me softballs. That’s no fun at all.”

  CHAPTER 12

  “You have to meet with Duncan about the Pollard case?” Carlisle asked, the concern clear in her voice. “Why? Did he hear about how you acted
at the pretrial?”

  “No, it’s about—” But Brunelle stopped and frowned at her. “Wait. How did I act at the pretrial?”

  “Like a pubescent boy,” Carlisle answered matter-of-factly. “I mean, more so than usual.”

  Brunelle scoffed. “She was the one acting like a pubescent boy.”

  Carlisle shook her head. “Nope. It was definitely you. She was acting like someone playing with a pubescent boy.” Then she frowned herself at her turn of phrase. “You know what I mean. Like a cat playing with a horny mouse.”

  “I wasn’t horny,” Brunelle defended. “I was—Ugh. Just never mind. No, I’m meeting with Duncan because Pollard’s dad won’t take guilty for an answer. He insisted on meeting with me and Duncan and Duncan agreed.”

  “And I’m not invited?” Carlisle asked.

  “Matt thinks three prosecutors would be too intimidating,” Brunelle explained. “Or look like we’re concerned. It’s just a meeting between the boss and the murder defendant’s dad. I’m only there to give Matt background on the facts of the case, if he needs it.”

  “Better you than me,” Carlisle offered, then stood up to leave Brunelle’s office. “Tell me how it goes.”

  “It’s going to go terribly,” Brunelle predicted.

  “I know.” Carlisle smiled. “That’s why I want you to tell me.”

  * * *

  “Mr. Pollard.” Matt Duncan greeted Harold Pollard as the receptionist brought the senior Pollard into his office. Duncan was the duly elected District Attorney. The boss. With the corner office and the view of Elliott Bay. That meant he was answerable to the voters, even the ones whose children were murderers. He extended a hand to Harold Pollard and gestured toward Brunelle, who was standing behind him and off to the side. “I believe you’ve already met Dave.”

  “Yes,” Harold answered as he shook Duncan’s hand. “I know all about Mr. Brunelle.”

  Brunelle stifled a frown. “Mr. Pollard and I met earlier to discuss the case,” he confirmed.