Diminished Capacity

by Stephen Penner

  “No, sir.”

  “Why not?”

  Goodman turned to the jury. “Because I wanted him to talk.”

  The jurors seemed to understand. They were still a little shaken by the photos, so they appreciated what small amount of levity there was in the fictitious twenty-four rule.

  “What was the friend’s name?” Brunelle asked.

  “Kevin Langford,” Goodman recalled.

  “And did you speak with him?”

  “Yes,” Goodman answered. “He said—”

  But Brunelle interrupted. “Don’t tell me what he said exactly. That’s hearsay. But did he tell you what happened?”

  Goodman seemed frustrated that he couldn’t report what Langford had said, but he accepted the limitation. “Yes, he did.”

  “And did he give you the name of the person who committed the murder?”

  “Yes, he did.”

  “And what was that name?”

  Goodman hesitated. “Can I say that?”

  “Yes,” Brunelle assured. He didn’t go into an explanation of the definition of hearsay and the exceptions contained in the Rules of Evidence, Rules 803 and 804, versus the exclusions contained in 801(d). “You can say the name.”

  Goodman turned again to the jury. “Justin Pollard.”

  The moment would have been more dramatic if Langford hadn’t already told the jury the whole story. Still, a classic trial moment: detective identifies defendant as the murderer.

  “Were you able to locate Mr. Pollard that night?” Brunelle continued.

  “Yes,” Goodman answered. “We found a last known address in Bellevue and got an agency assist from the Bellevue Police Department.”

  “Was he at that last known address?”

  “Yes.”

  “And was he arrested there?”

  “Yes.”

  “Were there any issues with the arrest?”

  “No,” Goodman answered. “He was fully compliant.”

  “Did he seem surprised to see you?”

  “Objection!” Robyn finally interjected. It was her first objection for this witness. Either she had decided to rein in her objections, or she had been giving Brunelle more leeway than she’d given Carlisle. “Calls for speculation.”

  Judge Whitaker thought for a moment. “Reply?” she asked Brunelle.

  “I didn’t ask if he was surprised,” he explained. “I asked if he seemed surprised.”

  “It’s only relevant if he actually was surprised, Mr. Brunelle,” Judge Whitaker pointed out.

  Brunelle nodded. “I suppose that’s true. But that makes it relevant. I think the witness should be allowed to describe the defendant’s demeanor at the time he was arrested for murder in the first degree.”

  Whitaker thought a few more moments. “I’ll allow you to ask what the defendant’s demeanor was, but he shouldn’t speculate as to any particular thoughts or emotions. Rephrase the question.”

  Brunelle nodded again as Robyn sat down. “Detective Goodman,” he said, “how would you describe the defendant’s demeanor?”

  Goodman just shrugged. “I don’t know. He didn’t fight. We didn’t have to shoot him. That was kind of my focus.”

  “Your focus was whether you’d have to shoot him?”

  “Yeah,” Goodman confirmed.

  “Okay…” Brunelle was a little surprised by that. He moved on. “What did you do next?”

  “We interviewed him,” Goodman answered.

  Brunelle needed to be careful. Goodman could always testify about what a charged defendant said—that was a confession, not hearsay. But the one thing he couldn’t tell the jury was that Pollard had requested an attorney. That would be a comment on Pollard’s right to an attorney. That would be a mistrial. And a motion to dismiss for governmental misconduct.

  “Did Mr. Pollard admit to being involved in the murder?” Brunelle chose his words carefully.

  Goodman was less careful. “Kinda. He admitted he was there with Kevin Langford, and it was pretty clear he knew what we were talking about, but then he asked for—”

  “Okay!” Brunelle interrupted him. “Okay. But he admitted to being with Mr. Langford and generally present at the time of the murder?”

  Goodman thought for a moment. “Yeah, I guess so.”

  “And did he ever mention,” Brunelle asked, “at any time, in any way, that he was suffering some type of episode?”

  Goodman’s face screwed up into a frown. “Episode?”

  “A mental health episode,” Brunelle clarified. “Did he ever say he was suffering from a mental health episode, either at the time of the interview or at the time of the murder?”

  “No,” Goodman answered. “I mean, I don’t think so. But what he did was pretty freaking crazy.”

  Brunelle just blinked at Goodman. Really?

  “Okay, but he never actually said anything about any mental health problem?”

  This was a fairly important point to make., If Goodman couldn’t give it to him, Brunelle might have to call Casey as a witness after all. And disclose their relationship. And endure another motion to be disqualified based on who he was sleeping with.

  Goodman chewed on his cheek for a moment. Then ventured, “Naw, I don’t think so. I probably would have remembered that. ‘Cause that would have made sense, actually.”

  Really really?

  Brunelle took a moment. Goodman had given him what he needed. And then stuck a knife in it. Best to stop the bleeding.

  “No further questions,” he practically admitted.

  Robyn was on her feet before Whitaker could even ask, “Any cross-examination?” She looked like a kid with a new toy. And that toy was the knife Goodman had just stabbed Brunelle with.

  “Detective Goodman,” she started. “You’re an experienced detective, correct?”

  “Uh, sure, I guess so,” he answered, squinting distrustfully at her question.

  “And you were the lead detective on this case, right?” Robyn asked.

  “Right.” Again, some residual distrust in his voice at any question from a defense attorney.

  “And you think,” Robyn summarized, based on your experience and everything you saw and everything you did and everything you know about this case, you think it only makes sense that whoever committed this murder probably had some sort of mental health problem?”

  Brunelle could have objected. Again, it called for speculation. Only expert witnesses could speculate, and Goodman was not a mental health expert. Whether a crime scene was properly processed? Sure. Whether a person suffers from an impulse-control or conduct disorder? No way. So, his objection would probably have been sustained.

  But then the jury would think he was trying to hide something—fatal for a prosecutor. More importantly, Goodman’s answer didn’t even matter. It was Robyn’s question that mattered. And the jury had already heard it. So Brunelle let Goodman answer the question.

  Then something really crazy happened. He answered it well.

  “Look, I don’t know,” Goodman started. “I mean, I’m a detective, but really, I’m just a cop. I’ve seen a lot of terrible stuff. This was right at the top, but I’ve probably seen worse, if I’m totally honest. All of it is crazy in its own way. Normal people don’t go around killing other people, but it happens all the time. Does that make them crazy? I don’t know. But I do know that makes them murderers. And that’s all this old cop cares about.”

  Robyn’s face dropped. The problem with playing with knives is that you can get cut yourself.

  She stepped away from the witness stand. “No further questions.”

  Whitaker looked down to Brunelle. “Any redirect examination?”

  No fucking way, Brunelle knew. “No, Your Honor,” he said.

  Whitaker turned to Goodman. “You are excused, Detective.” Then she looked at the clock, then the jury. “Ladies and gentlemen, we are going to adjourn for the day. You are reminded not to discuss this case with anyone, including your fellow jurors. You
have not heard all of the evidence in the case, and it’s important that you keep an open mind until all of the evidence has been presented and the case has been submitted to you for deliberations.”

  The attorneys stood as the bailiff led the jurors out and the judge departed the bench. Then they set about the task of collecting up their files and books and notepads. Brunelle finally had a chance to tell Carlisle about Pollard’s threat. But it seemed silly all of a sudden. Like he was running to his mommy.

  And anyway, there was someone else he decided to tell first. Someone he’d promised to tell about stupid stuff like that.

  CHAPTER 34

  “You didn’t tell her?” Casey practically shrieked. “What is wrong with you?”

  “I don’t know.” Brunelle shrugged. “By the time I got a chance to say anything, it didn’t seem like a big deal.”

  “Not a big deal?” Casey’s eyes widened. “A murderer threatened to kill you, and it’s not a big deal?”

  “Accused murderer,” Brunelle pointed out.

  “Because he did it!” Casey shook her head.

  “Well, yeah,” Brunelle admitted. “But I didn’t want her to worry about me.”

  “I don’t think she’s the type to worry about you,” Casey said. “But what about her?”

  “What about her?”

  “If he’s threatening you,” Casey asked, “why not her too?”

  “Oh,” Brunelle paused. “I hadn’t thought of that.”

  “No, wait.” Casey raised a silencing palm to him and a thoughtful fingertip to her lips. “Let’s run with that. Why didn’t he threaten her too?”

  Brunelle thought for a moment. “No opportunity. He did it right before she examined the first witness.”

  “Who examined the second witness?”

  “I did.”

  “So, he could have done it then,” Casey suggested.

  “Maybe,” Brunelle said. “But Robyn was sitting right next to him then. When he threatened me, she was up at the bar.”

  But Casey wasn’t convinced. “No. It’s more than that. Call Carlisle.”

  “Now?” Brunelle protested. But he also took his phone out of his pocket.

  “Yes,” Casey answered. “Strategy session. Here. Now. We need to figure this out before you go back in session tomorrow morning.”

  Brunelle dialed Carlisle’s number. “Hey, Gwen. You up for a night of frozen pizza and conspiracy theories?” Then after a moment, “Ok, and bourbon.”

  He hung up. “She’s on her way.”

  * * *

  Two hours, six drinks, and several conspiracy theories later, Brunelle, Casey, and Carlisle sat around the coffee table, still working through their options.

  “But if we tell the judge,” Carlisle said, “it’s a guaranteed mistrial. We have to start all over. And you will be kicked off the case, for good.”

  “What if I just tell Robyn?” Brunelle suggested. “See what she says.”

  “She already knows, Dave,” Casey posited. “She probably set the whole thing up.”

  “So, once I tell her,” Brunelle realized, “she has confirmation it actually happened, not just her client’s word for it.”

  “And she can sit on it,” Carlisle said. “See how the trial goes.”

  “It’s a poison pill,” Casey said. “If the trial isn’t going well, she can blow it up any time up to the verdict.”

  “Wrong,” Brunelle frowned. “She can blow it up after the verdict too. If I should have recused myself at the beginning of the trial, it will invalidate the entire thing, including the verdict.”

  “So, she can’t lose,” Carlisle concluded. “It’s either an acquittal or a new trial.”

  “Only if I tell her,” Brunelle said. “If she brings it up without me complaining about it, it will sure look like she set it up.”

  “Or at least she knew about it and didn’t say anything,” Casey added.

  “And you could always say you never heard it,” Carlisle suggested.

  “I’m not going to lie to the judge,” Brunelle protested.

  “Fine,” Carlisle conceded. “Tell the truth: you heard it, you thought it over, you thought it wasn’t a big deal, so you moved on and did your job. That kind of attitude would support the idea that it’s not a basis for a new trial.”

  Casey tapped at her wine glass. “It’s not enough,” she said. “The defense attorney needs to know you know.”

  “Yes,” Carlisle agreed. “And she needs to know you’re not going to tell her.”

  “How do you do that?” Casey wondered.

  “I know how.“ Brunelle smiled and took a drink from his own glass. “We ask every witness from here on out the exact same question. Every one of them, no matter what they did. And it doesn’t matter if it’s the first question or the last question or buried somewhere in the middle. She’ll notice it. We ask every one of them, ‘Would you agree that a threat beforehand is evidence of unlawful intent?’”

  “But there was no threat in the case,” Carlisle pointed out. “Pollard just attacked him.”

  “Exactly,” Brunelle replied. “Robyn will know we’re really talking about Pollard’s threat to me.”

  “Won’t that confuse the jurors?” Casey asked. “You don’t want to play games with the jury.”

  “They’ll just think it has to do with Pollard chasing him down,” Brunelle assured. “They won’t even notice. But Robyn will. And it’ll piss her off. She can dish it out, but trust me, she doesn’t like it when other people play games with her.”

  CHAPTER 35

  So, that’s what they did. Every witness after Goodman got the same question somewhere in their direct examination: ‘Would you agree that a threat beforehand is evidence of unlawful intent?’

  Every one of them said yes. And Robyn never objected, even though the question was objectionable as leading. Whitaker probably would have sustained the objection. But Robyn just pretended to ignore it. Which only confirmed she noticed it. She knew what they were doing. She knew Brunelle knew she knew.

  It was harder to tell whether it actually threw her off her game though. Her cross-examinations were still strong, focused, zeroing in on the idea of provocation and explosion. But there was only so much Evidence Technician #3 or Cop-who-kept-the-crime-scene-sign-in-log could really say about that. The meat of her case would come after Brunelle and Carlisle rested theirs. When Dr. Nicholas Sanchez took the stand.

  The last prosecution witness was also a doctor. But not a squishy social science Ph.D. The only thing squishy about the medical examiner’s testimony was the organs she removed from Leonard Holloway’s body.

  “Could you state your name for the record?” Brunelle began the examination.

  “Louise Tucker,” replied the doctor. She was dressed in a business suit. Formal attire for court. A step up from the scrubs she wore when cutting open corpses.

  “How are you employed?”

  “I’m an assistant medical examiner with the King County Medical Examiner’s Office.”

  “Do you have any special education or training for that job?” Brunelle invited her to tell the jury her resume.

  “Yes,” Tucker answered, then she turned to the jurors and began to list her qualifications, beginning with her M.D. degree.

  When she finished, Brunelle got right to the case at bar. “I’d like to direct your attention to an autopsy you conducted on a man named Leonard Holloway. Do you recall that autopsy?”

  “Normally I might not recall any individual autopsy,” Tucker answered. “But I definitely recall this one, even without reviewing my file, which I did anyway before coming here today.”

  “What was it about this particular autopsy that makes you remember it?”

  “The injury to the head,” Tucker answered. “You don’t usually see such extensive trauma in a homicide case.”

  “Do you see it elsewhere?” Brunelle asked.

  “Yes. We do autopsies for more than just homicides. We also do them for suic
ides and accidents. I’ve done many autopsies on people who were killed in industrial accidents. Those can be quite gruesome. I’ve seen bodies with the head entirely decapitated by some sort of heavy machinery. But short of that, this is one of the worst cranial injuries I’ve ever seen. And the worst for any homicide by far.”

  “Why is that, do you think?” Brunelle followed up.

  “Most people stop before they crush a skull so completely,” Tucker answered. “You can kill someone with blunt force trauma to the head without having to cave the entire skull in.”

  Brunelle nodded. Good introduction. Time to get into the details. Just not the ones everyone expected.

  “Before we talk more about the head injury,” Brunelle said, “were there any other injuries discovered at autopsy?”

  “Uh, well, yes.” Tucker seemed a bit surprised not to talk about the main injury right away. The jurors were probably a little disappointed too. But the trick of making a jury have to wait to hear something wasn’t just for opening statement. Besides, this was their last witness, and Brunelle wanted to take a moment to remind the jury who the victim was.

  “Rows of puncture wounds on his arms, thighs, and between his toes.” Drug addict.

  “Trench foot and a gangrenous toe.” Inadequate clothing, especially footwear.

  “An infected open wound on his leg that had been unable to heal completely.” No healthcare.

  “And various bruises and contusions in various stages of healing.” Fights and other violence from living on the street.

  “All common maladies for homeless people,” Brunelle concluded.

  “Yes,” Tucker agreed. “Although I don’t treat living patients. I only see it after they have succumbed to their injuries or some other cause of death.”

  “Did any of these injuries contribute to Mr. Holloway’s death?” Brunelle asked.

  “No,” Tucker answered. “They are all chronic conditions, very common in our homeless populations. If continually neglected, they could eventually lead to serious illness or even death. But they aren’t what killed this man.”

  “What killed this man?”

  “His skull was crushed,” Tucker answered.