Diminished Capacity

by Stephen Penner

A light rain started. That Seattle rain that was always possible, too light to bother with an umbrella, but heavy enough to cause a middle-aged man to squint against it and wonder if it would last long enough to require his suit to go to the dry cleaners before he could wear it again.

  He frowned at his own thoughts. Reckless about his suit. They weren’t cheap, and he didn’t make that much working for the government. He should treat them better. He should have treated a lot of things better. A lot of people better.

  Robyn.

  Kat.

  Victoria.

  It was a long list.

  He smiled again when he thought of Casey, initially telling himself he’d been treating her well. But the smile melted away as he remembered his antics with Robyn in the conference room. Carlisle was right—he hadn’t not kissed her back. And then it was all made public.

  Casey was tough. She could handle it. She said so herself.

  But why did she have to?

  He’d embarrassed her, hurt her. Or if he hadn’t, it wasn’t for lack of trying.

  The Cucumber Club was gone. Kat was gone. And despite mind games and temptations, Robyn was gone too—in that way. He needed to remember that.

  The gentrification of Capitol Hill was closing in on the building formerly known as the Cucumber Club. A glance to the left and right revealed brightly lit streets with busy pedestrians and national chain stores. It was closing in all around the building. All around him.

  There was nothing wrong with remembering the past, but he couldn’t live there any more. And he couldn’t pretend he didn’t have something to learn from it.

  The rain picked up. He needed to get inside somewhere. He needed to protect that suit. It was too valuable to get ruined while he stood there like a lost child, reminiscing about his past and all the things that had never come from it. Because of his mistakes.

  He didn’t want to make any more mistakes.

  He turned and hurried toward the shelter of bright lights and good people.

  CHAPTER 27

  There was one last hearing before the trial actually started. Not for motions—Judge Whitaker stuck by her previous decree that any motions would be heard after the trial began. But there was one final hearing before that could happen: the status conference. Usually they were scheduled one to two weeks before trial. It was meant to be an opportunity for one side or the other to raise any outstanding issues and/or bring up scheduling issues that might affect their ability to proceed on the scheduled trial date. But Whitaker had made it clear she wasn’t interested in any of that. So, the status conference was scheduled for Monday morning, with the trial to start the next day.

  Brunelle was there, carrying Carlisle’s proverbial briefcase. Robyn was there. Pollard was wheeled in again, strapped to the same chair-like apparatus—he’d be put in street clothes for any time he was in front of the jurors, since they weren’t supposed to know he was in custody. But this wasn’t one of those times. Pollard’s dad was present too, in the gallery of Whitaker’s normal courtroom. With no other cases scheduled, the courtroom was otherwise empty. In five minutes, they’d be done and it would be completely empty again.

  “Is the State ready to proceed to trial tomorrow morning?” Whitaker asked Carlisle upon taking the bench.

  “Ready, Your Honor,” Carlisle answered.

  “Is the defense ready?”

  “Ready, Your Honor,” Robyn replied as well.

  “Then we are confirmed for trial, first thing tomorrow morning,” Judge Whitaker declared, and she left the courtroom again. And that was that.

  Brunelle looked over to Carlisle. “Are you really ready?”

  “I’m ready,” she insisted. “Are you really ready?”

  But Brunelle frowned slightly. He looked around the courtroom, letting his gaze linger an extra second over the form of Robyn Dunn, leaning in and undoubtedly asking her client the same question Carlisle had just asked him.

  “You’re never really ready,” he said. “But you have to do it anyway.”

  CHAPTER 28

  Brunelle had a routine for the night before trial. It didn’t involve anything like poring over the police reports one more time, or practicing his opening statement in the mirror. If he wasn’t ready by then, one last night of cramming wasn’t going to help. And Carlisle was doing the opening anyway.

  It did involve staying home, and it did involve whiskey. One pour, a little heavy perhaps. Enough to help him relax and think, but not enough to be an issue the next morning. The kind of drink that lets a man stand by his balcony door, look out at the lights of the city, and consider the evil in the world and his small part in combating it.

  Alone.

  It was almost a sacred time. One to be protected and revered. One to repeat and relive, gaining strength and clarity from the familiar grooves of the evening. Almost like a prayer, definitely like meditation. A safe, silent space for his mind to go in preparation for the nigh holy work to be done on the morrow. A visit to the oracle before the start of the quest. A place of absolute perfect silence and solitude to rejuvenate the mind and soul.

  “Hey, you poured two of those, right?”

  Or that was how Brunelle had always done it before. But he was finally ready to let go of before. He was ready for what was next.

  “Of course,” he turned back from the balcony door and pointed toward the counter. “Yours is right there.”

  Casey smiled and snatched her glass off the counter. “Damn right it is.”

  She crossed the room and gave Brunelle a kiss. “Penny for your thoughts. Two if it’s not about the trial.”

  “Oh, it’s about the trial,” Brunelle confirmed. “Of course, it is. What would you think if I wasn’t thinking about the first degree murder trial I start in the morning?”

  “I’d think you were crazy,” Casey answered. “Or drunk. But you’re not drunk.”

  “I’m not crazy either,” Brunelle added. “So, yeah. I’m thinking about the trial.”

  Casey pulled away from Brunelle and sat on the couch. She patted the seat next to her. “Wanna talk about it with someone?”

  Brunelle looked over at her and thought a whole lot of things that had absolutely nothing to do with whatever that thing was that was happening tomorrow. “Yeah,” he said. “I’d like that a lot.”

  CHAPTER 29

  Even the first day of trial still wasn’t really the trial. Not the interesting stuff, not the stuff they show on T.V. It was the preliminary stuff: first rulings on evidence, working out scheduling problems, jury selection. All the things that needed to get done before the real show started. It was painting the lines on the football field, doing the final sound check, making sure the uniforms were all clean, the costumes all fit.

  Brunelle looked down at his dark suit, white shirt, and red tie. His uniform/costume. It was clean, it fit, he was ready. So was Carlisle. And Robyn. And Judge Whitaker. Even Justin Pollard looked ready for the show. He was in street clothes so none of the jurors would know the judge thought he was so dangerous that he needed to be held in jail pending the outcome of the trial—let alone strapped to a rolling chair with a mask over his mouth. Instead, he had on his own dark suit, much nicer than Brunelle’s, which effectively covered the small stun device strapped to his thigh. The judge and the corrections officers all had buttons connected to it; one wrong move and Pollard would be tased, thoroughly and painfully incapacitated. It would cause a mistrial, but they could always pick another jury.

  So, once the jury was selected and seated, once the preliminary rulings on evidence were made, once the numerous scheduling conflicts inherent in any undertaking involving so many judges, lawyers, cops, psychologists, lay witnesses, and jurors were all worked out—once all that was done, and the lawyers had their files laid out, and the exhibits were pre-marked, and the jurors filed out of the jury room and into the jury box, eager to finally find out what the case was actually about, it was finally time to really and truly start the trial.

&nbs
p; And the first part of any criminal trial was the prosecutor’s opening statement.

  Judge Whitaker looked down to the jurors assembled in the jury box. “Ladies and gentlemen,” she instructed solemnly. “Please give your attention to Ms. Carlisle, who will deliver the opening statement on behalf of the State.”

  CHAPTER 30

  Carlisle stood up and nodded to the judge. She tugged at her suit jacket, exhaled, then stepped around the prosecution table into ‘the well’—the empty space between the attorneys’ tables, the judge’s bench, the witness stand, and most importantly at that moment, the jury box.

  Another exhale. Then she began.

  “Beyond a shadow of a doubt.”

  And Brunelle immediately regretted letting Carlisle do the opening statement. It was never a great idea for the prosecution to mention the burden of proof in its opening statement, and even less so to start off with it. But how much worse to misstate it, and raise it from beyond any reasonable doubt, past beyond any doubt, all the way to beyond even the shadow of any possible doubt.

  “That’s how convinced you will be,” Carlisle continued, “that the defendant, Justin Pollard, killed the victim, Leonard Holloway. Beyond a shadow of a doubt. There is simply no question about it at all. The first witness you will hear from is one of the defendant’s closest friends, and he will tell you he watched the defendant kill Mr. Holloway right in front of him. Absolutely no doubt about it all. And that will make part of your job easier. But, as we all know, nothing is ever really easy. Not in court. And not with murder.”

  A pause. Give the jurors a chance to consider that word: ‘Murder’. To consider the stakes, and how important their job was. How important it was to keep listening.

  “Leonard Holloway,” Carlisle repeated. “Remember that name. We’re going to spend a lot of time talking about the defendant, Justin Pollard. You’re going to hear his name over and over. Justin Pollard. Mr. Pollard. Justin. You won’t forget his name anytime soon, maybe ever. But try to remember the name Leonard Holloway. Because, honestly, no one else will.”

  Nice. Brunelle nodded slightly. He knew he was right to let Carlisle do the opening statement.

  “Leonard Holloway was just another of those old homeless men who push their carts of ragtag belongings along the streets of Seattle. Not the nice streets, of course. Not Fourth and Pike. Not East Madison. Certainly not Madrona. No, they push their carts along the streets south of downtown. Near the mission. Near the stadiums. Near the train station.”

  She had their attention. She had Brunelle’s too, and he already knew the story.

  “That night, the night this happened, the night,” she turned and pointed to Pollard, “the defendant killed Leonard Holloway, was just like any other night for the homeless in our midst. The workday was over and the good people who fill up the offices in all those glass-and-steel skyscrapers we have downtown were already on the freeways, heading out to whatever suburb they lived in, fighting traffic to live someplace nice. Someplace pretty. Someplace safe. Someplace without people like Leonard Holloway.”

  Nothing like a little guilt to add sting to words. Carlisle wasn’t just accusing Pollard of murder; she was accusing the jurors of the indifference that left the victim vulnerable to it.

  “Mr. Holloway had come out of the shadows and was making his way to someplace where he could find a little food and a place to lay his head for the night. He was another nameless, faceless homeless man minding his own business. Nameless because no one knew him. Faceless because no one looked at him. The good people of the world—you, me—we look away. We don’t want to look someone like that in the eye. We would feel uncomfortable, sad, guilty.”

  She paused, letting the guilt seep into the jurors. Guilt was good. It meant you felt bad. It meant you cared. And she needed the jurors to care about Leonard Holloway.

  “But not everyone would feel that way,” she continued. “Some people wouldn’t feel sad or guilty. Some people would feel contempt, disgust, hatred. People like Justin Pollard.”

  She turned again to look at Pollard, sitting there in his expensive suit and uncomfortable expression. Robyn didn’t look up from the notes she was taking, but offered a quick shake of the head, for whatever it might be worth to the jurors.

  “The defendant,” Carlisle went on. “Justin Pollard. He saw Leonard Holloway and he felt contempt. He felt disgust. He felt hatred. He felt a desire to inflict even more injury, to heap even more humiliation on a man already so injured by society and his own demons that he slept on concrete every night, hungry and dirty and broken. Justin Pollard saw Leonard Holloway and felt a desire to humiliate the most humiliated among us. Just a little more. Just a reminder. You are less than me.”

  Brunelle was feeling it. He ventured a glance at the jurors and they seemed to be feeling it too. But there was a risk Carlisle would oversell it. A risk that Carlisle would oversimplify something they all knew was actually a lot more complicated than just that, and in so doing, would undermine her own credibility. Luckily, Carlisle seemed to know it too.

  She raised a cautionary finger. “Now, of course, homelessness is a very complex issue. Mental illness and substance abuse and poor choices all contribute to varying degrees, depending on the individual and the circumstances. Everyone living on the street has a different story. But not everyone’s story ends in violence. Not everyone’s ends in murder. Not everyone’s ended at the hands of Justin Pollard. Or rather,” another dramatic pause, “the boots of Justin Pollard.”

  There was a collective cringe that passed through the courtroom. Juries were always interested in what had happened, in why they were there. And opening statement was the first time they got more details than just the name of the crime the defendant was charged with. They wanted to know what happened. But in murder cases, there always came that moment when they wished they didn’t know after all. And Carlisle had just trapped them all in that uncomfortable, terrible, horrible moment. And somehow left them actually wanting more.

  So she backed up the story and made them wait for it. “Leonard Holloway was walking up Fourth Avenue South that night, minding his own business, like he always did. Keeping his head down, like he always did. Avoiding eye contact, like he always did. Just trying to survive and let the rest of the world pass by, hoping not to get in the way, hoping not to get beat down any more—like he always did. But sometimes the rest of the world doesn’t just pass by. Sometimes—this time—the rest of the world was Justin Pollard.”

  Carlisle took a half-step toward the jury box. It was the first time she’d moved her feet from the spot where she’d rooted herself at the beginning of her comments. And as such, it was notable. The jury felt it. Closeness implies intimacy. Intimacy implies truth.

  “Now, I need to take a minute and slow down the scene for you. It’s very important that you understand what was happening at that moment. The moment Justin Pollard saw Leonard Holloway. The moment he thought it would be funny to yell, ‘Get a job!’”

  Carlisle paused again. She wanted the jury to feel the moment. She wanted them to feel what Pollard had yelled at the victim. What a terrible thing to say. What a terrible person to say it.

  Carlisle didn’t bother looking over at Pollard again. She didn’t have to. The jurors did it themselves. To look at the person who had yelled that at a poor, old homeless man.

  “You need to understand,” Carlisle repeated, “what was happening when Justin Pollard yelled, ‘Get a job!’ at Leonard Holloway. You need to feel it. Because it was calm. Because it wasn’t necessary. Because nothing provoked it. Justin Pollard was not provoked into yelling it. He just chose, of his own free will and without provocation, to knock down a man who was already at rock bottom.”

  Brunelle knew it was going to be difficult to address the defense Robyn was planning on putting forward, not least because the prosecution wasn’t allowed to attack a defense that hadn’t actually been raised yet. Notices and pleadings aside, a defendant is presumed innocent, and a defe
nse attorney could change defenses at any time, even in the middle of trial. Robyn was allowed to stand up in her opening statement and suddenly claim it was self-defense, or tell the jury that Pollard was three states away with an ironclad alibi.

  If Carlisle told the jury that the defense would be diminished capacity based on intermittent explosive disorder before Robyn even gave her opening statement, that would be grounds for a mistrial, and a motion to dismiss for governmental misconduct. So, rather than attack the defense, Carlisle was attacking the facts that supported it. Which was better anyway.

  “It was near sunset,” Carlisle continued. “Rush hour was over. It was that quiet time between work and sleep. The day was done, but night hadn’t quite settled in yet. Golden light streamed between the skyscrapers like a blanket, putting another day to bed. The warm calm of twilight.

  “That’s what was happening in the world. That’s what was happening on Fourth Avenue South. That was the state of the world when Justin Pollard decided to verbally attack Leonard Holloway. All was calm. Except Justin Pollard. He wasn’t provoked. He wasn’t reacting to anything. He was just being a first-rate jerk.”

  Brunelle was a bit surprised by the sudden informality of that description, but he kind of liked it. Hopefully the jurors did too. And he was relieved Carlisle hadn’t used whatever expletive she was really thinking.

  “Get a job!” Carlisle raised her hands to her mouth like a megaphone. “Get a job!” She lowered her hands again and shook her head. “That’s just mean. That’s just bullying. Making someone else feel small so you can feel big. And Leonard Holloway was just supposed to take it. It wasn’t an invitation for Holloway to explain whatever circumstances had limited his vocational opportunities. It was a power play. Mr. Holloway was supposed to shrug it off, like everything else in his life, like all the other indignities he suffered every day. Sleeping in doorways, eating from garbage cans, living in dirty, soiled clothes. Just one more thing. Just ignore it. Just keep walking. Let the jerk have his laugh. Keep walking. Just keep walking, you dirty old bum.”