DB01 - Presumption of Innocence Page 10

  Chapter 25

  “Are the parties ready on the matter of State versus Karpati?” Judge Quinn didn’t look at the lawyers as she took the bench and called the case.

  “Ready and eager to argue our cause, Your Honor,” announced William Harrington Welles.

  Brunelle expected the usual disapproving glance from the judge, maybe even a ‘save it for the jury’ comment. But there was nothing of the kind. That worried Brunelle a little.

  He reminded himself that although there was no jury there, there was media. Several television cameras were filming the proceeding through the glass partition that separated the gallery from the secure courtroom.

  “The State is ready,” Brunelle stood to answer the judge.

  “Will you be arguing for the State this time?” she asked.

  “Yes, Your Honor.”

  “I noticed you wrote the brief, Mr. Brunelle.”

  “Yes, Your Honor.”

  “Ms. Yamata writes excellent briefs,” the judge observed.

  Brunelle managed a smile and sat down.

  “Ouch,” whispered Yamata.

  “Bet it doesn’t hurt half as much as her ruling,” Brunelle whispered back.

  “It’s your motion, Mr. Welles,” the judge announced, “so why don’t you go first.”

  “I would be delighted,” Welles puffed. “Shall I argue all my motions at once, or would Your Honor prefer to rule on them in turn?”

  Quinn frowned. She didn’t consult Brunelle. “What is your preference, Mr. Welles?”

  “I would ask the court to rule on them in turn. I believe the court’s decision on one may help the court in ruling on the next.”

  “All right then, Mr. Welles. Proceed with your first motion.”

  Welles grinned at Brunelle, clearly relishing the smack-down he intended to inflict upon his opponent.

  “Then let us begin with our motion to reveal the identity of the state agent sent into the jail to illegally interrogate my client.”

  Judge Quinn finally looked to the prosecution table. “Is that all right with you, Mr. Brunelle?”

  “Yes, Your Honor, although I disagree with the characterization.”

  “I just asked if you were prepared to argue that motion, Mr. Brunelle. Yes or no. You can argue the merits when Mr. Welles is finished.”

  Brunelle forced a smile and offered a compliant nod. “Yes, Your Honor. I am prepared for this motion. Thank you.”

  The judge looked back at Welles. “Please proceed, counsel.”

  “Thank you, Your Honor. As the court knows, my client, Mr. Karpati, is being held—over my strenuous and righteous objection, I might add—without the opportunity to post bail. He is in custody because, and only because, the State has filed these meritless aggravating factors, turning the outlandish accusation of murder against my client into the reprehensible charade of capital murder.”

  “I’m sorry, Your Honor,” Brunelle interjected. “I thought we were arguing the C.I. motion, not the aggravators?”

  “Don’t interrupt,” the judge snapped at Brunelle. He sat down again.

  “We are so screwed,” Yamata whispered. Brunelle just nodded as he pretended to take notes.

  Judge Quinn turned back to Welles. “Thank you counsel, I am aware of your client’s custody status and the role both the prosecutor and I have played in that. Could you explain to me why that’s relevant to your motion to reveal the identity of the police agent Mr. Brunelle sent in to question your client?”

  “Of course, Your Honor,” Welles replied with a slight bow of his head. “Thank you for allowing me to make a full record. As the court is aware, any questioning of a citizen while that citizen is detained must be preceded by an advisement of Constitutional rights—the so-called Miranda warnings, although we all know there have been literally hundreds of cases since Miranda versus Arizona which have recognized, reaffirmed, expanded, and confirmed the right of someone whose liberty has been stolen from him to know, before an inherently coercive interrogation is begun, that not only does he have the right not to answer any questions, but he has the right to have an attorney at that very moment to help him decide whether to answer such questions.”

  Welles paused to take a sip of water. Then he laid a fatherly hand on Karpati’s back and continued. “Your Honor, my client did both of these things when initially arrested. He requested an attorney and he declined to answer questions until he had an opportunity to discuss the case with someone trained in the criminal laws. And I can assure you,” Welles went on, “that he made sure the detectives were paying close attention when he made that request.”

  Brunelle couldn’t quite suppress a smile at the memory of Karpati yanking Chen’s chain.

  “And so not only do we have a situation where my client was in custody due to the unethical charging decisions of Mr. Brunelle, but even knowing from prior conduct of this particular man”—again a heartfelt pat on Karpati’s shoulder—“that he wished to have an attorney present, his own attorney whom he had taken the trouble and expense to retain, nevertheless Mr. Brunelle sent in an undercover officer—there really is no other way to describe this person—an undercover police officer to question my client.”

  Another sip of water. Then a step behind his client and both hands on his shoulders. “That is beyond the pale, Your Honor, and we simply must be given the identity of this police officer so that I might properly prepare to defend my client’s very life against the unlimited resources and power of the state. Thank you.”

  “Thank you, Mr. Welles,” Judge Quinn nodded warmly. Then a cold expression as she turned to Brunelle. “Response?”

  Brunelle stood up and cleared his throat. “It’s very simple, Your Honor. The State does not intend to use this witness or any of the information gathered through this witness at trial. Therefore the informant’s identity is not discoverable.”

  Brunelle waited for the judge to respond. She did. “That’s it?”

  “That’s enough. Not a witness, not discoverable. That’s the end of the inquiry.”

  “Then why send her in, Mr. Brunelle?” Judge Quinn asked. “Surely you intended to use her as a witness. Should the fact that she failed to gather useful information relieve you of the obligation of divulging her identity?”

  “She did gather useful information,” Brunelle countered. “Mr. Karpati admitted to instructing Holly Sandholm to knock on the victim’s door so they could gain access to the home and commit the murder.”

  “Objection!” Welles slammed the table as he stood up. “That is a complete misrepresentation of my client’s statement. And furthermore, if the State has no intention of using the information at trial, then it’s improper and unethical for him to provide that information to the media.” Welles waved at the TV cameras. “He’s trying to taint the jury pool.”

  Judge Quinn smirked at Welles familiarity with that concept. She looked to Brunelle. “Any response to the objection, counsel?”

  “Just that I was answering a direct question by the court, not trying to taint the jury pool. We obtained information useful to this prosecution. We will not be using it. We will not be calling this witness. Therefore the identity of the witness is irrelevant.”

  “Then why send her in?” asked the judge.

  “This was a heinous murder, Your Honor. And evidentiary questions aside, there is no doubt Mr. Karpati committed it.”

  “Objection!” Welles slapped the table again.

  “Overruled,” the judge said quietly. “Go on, Mr. Brunelle.”

  “Thank you, Your Honor. As I was saying, there is no doubt Mr. Karpati committed this heinous murder. It seems reasonable that this might not be the only violent crime he had committed. It also seems reasonable that Miss Sandholm might have helped in other crimes before the murder of the victim in this case. Accordingly, we attempted to gain information, not necessarily about this case—for which I agree he was represented by Mr. Welles—but also about additional cases for which I am unaware Mr. Welles
has been retained.”

  Brunelle turned to his opponent. “Has your client committed other murder you represent him on that we don’t know about?”

  Welles’ face started to blotch red, but before he could reply, the judge said, “Direct your comments to the bench, counsel, not each other.” She pursed her lips and raised an eyebrow at Brunelle. “You expect me to believe you sent that girl in there to get info about other murders, and not this one?”

  Brunelle smiled. “I assure you, Your Honor. Had Mr. Karpati confessed to additional murders, we would be prosecuting those as well.”

  The judge nodded for several moments. Then she looked at Welles. “The defense motion to reveal the identity of the confidential informant is denied. The State has represented they will not use the witness at trial. I will hold them to that.”

  “But Your Honor,” Welles protested, “we need to know her identity. We need to interview her. We need to—”

  “I know what you want to do, Mr. Welles,” Judge Quinn interrupted, “but I am not putting a juvenile in your cross-hairs if I don’t have to. Next motion.”

  Welles was visibly shaken, Brunelle pleasantly surprised. While Karpati rasped something unpleasant in Welles’ ear, Yamata offered her own, “Good job!” whisper to Brunelle. He just smiled, suddenly hopeful he might win the motions after all.

  Welles stood up. “Yes. Well, then. Perhaps we should just move to the most important motion, the motion to dismiss the case for governmental misconduct.”

  Judge Quinn nodded. “And is the alleged misconduct the same you just outlined for me in your previous argument?”

  “Yes, Your Honor,” Welles started.

  “Motion denied,” Judge Quinn interrupted. “Mr. Brunelle has articulated a legitimate law enforcement purpose for his actions, and I have fashioned a remedy short of dismissal. That witness shall not be allowed to testify at your client’s trial. Therefore, dismissal is not warranted.”

  Brunelle smiled again. Two for two. The warm “Good job again” whisper from his attractive co-counsel only deepened the smile.

  “Well, then,” Welles stammered. “We would next ask the court to dismiss the aggravating factors alleged by the State. They are unsupported by the law or the facts, and should not be allowed to be put to a jury. The mere presence of these allegations will prejudice my client by suggesting his alleged crime was worse than others similar in nature. The court should dismiss the burglary aggravator because the alleged burglary is based on the murder itself. That is bootstrapping and completely unfair. Further, the court should dismiss the aggravator of torture for, while no doubt this was a heinous murder—apparently committed by the young lady in juvenile detention who confessed to it—”

  “Now who’s trying to taint the jury pool?” Judge Quinn interrupted.

  “By no means, Your Honor,” Welles replied, hand to his heart and apparently aghast at the very notion. “I simply point out the fact that there is no evidence that my client committed this crime, let alone that this poor girl suffered any more than any other murder victim. Accordingly, these aggravating factors must be dismissed, lest their very existence prejudice my client’s right to a fair trial.”

  Judge Quinn scowled this time, her narrowed eyes trained on the defense attorney. Then she turned to Brunelle. “Tell me why I shouldn’t dismiss these aggravators.”

  Brunelle stood again to address the court. “Gladly, Your Honor. First of all, I disagree with counsel’s characterization of the evidence for these aggravators as ‘weak.’ There is no doubt Mr. Karpati committed a burglary, and—”

  “Let me stop you there, counsel,” the judge interrupted. “How did he commit a burglary? Was anything stolen?”

  “No, Your Honor,” Brunelle admitted. Now he had to engage in that dance of educating a judge about the law without the judge feeling like she’s being talked down to. “As the court knows, burglary is unlawfully entering a building with the intent to commit a crime. Here, Mr. Karpati forced his way into the victim’s home with the intent to commit murder.”

  “So murder is the predicate crime for the burglary?”

  “Yes, Your Honor.”

  “Nothing else?”

  “No, Your Honor.”

  Judge Quinn nodded. “The defense motion is granted. I won’t let you aggravate a murder with itself. The burglary aggravator is dismissed.”

  Brunelle was surprised despite himself. He had originally expected to lose that motion but the hearing had gone so well to that point, he thought he was home free. He glanced at the defense table. Welles looked a bit surprised too, but it was hard to see through his smarmy grin.

  “What about the torture aggravator, Mr. Brunelle?” the judge pressed. “Any response to that?”

  Brunelle gathered himself. “Well, this one is different in kind, Your Honor. The court just made a legal ruling that burglary by murder can’t aggravate the same murder. I disagree, but I understand the logic. But this aggravator is a factual determination. Either the girl suffered to a degree associated with torture, or she didn’t. Whether she did should be left to the sound judgment of the jury.”

  Judge Quinn raised an eyebrow. “Do you think I can never dismiss a charge if there’s no evidence to support it?”

  Brunelle pressed a hand into his pants pocket and raised the other in a professorial gesture. “Well, that’s an interesting question, Your Honor. Allow me to suggest that the answer might be ‘No, you can’t.’ It’s a separation of powers issue. The prosecutor’s office is part of the executive branch. We decide what charges are brought. Your Honor is part of the judicial branch and ought not to be allowed to second guess the charging decisions of the executive.”

  “But I just dismissed one of your aggravators,” the judge pointed out.

  “Yes you did,” Brunelle acknowledged. “Over my objection, I might add. But that may be different. That was a purely legal question. This one is factual.”

  “But isn’t there case law that a court can dismiss charges when it determines that no reasonable jury could find what the State is alleging?” the judge pressed. “State v. Knapstad? Bremerton v. Corbett?”

  “Well, yes,” Brunelle admitted. “But I don’t think that’s the case here.”

  Judge Quinn frowned and held up some papers. “Did you read the affidavits Mr. Welles provided?”

  Brunelle swallowed hard. “Yes, Your Honor,” he admitted.

  “Do you have any affidavits to the contrary?”

  Another swallow. “No, Your Honor.”

  Brunelle considered arguing the point further, but Quinn wasn’t one of those judges who rules for whoever argues last. She was sharp. In fact, Brunelle was pretty sure she’d already made up her mind on all the motions before she ever took the bench.

  “The defendant’s motion to dismiss the torture aggravator is also granted.”

  Brunelle managed just to grimace even as the defense table erupted in hushed congratulations.

  “We would like to be heard on bail, Your Honor,” Welles trumpeted. “Now that this is no longer an aggravated case.”

  Brunelle didn’t wait for the judge to ask his opinion. “We object to that, Your Honor. By court rule, all motions must be made with five days notice. That includes motions to reduce bail.”

  Welles huffed in surprise. “That’s ludicrous, Your Honor. This is no longer a capital case. You can no longer constitutionally hold my client without bail. I shouldn’t have to note a motion to be argued five days from now.”

  Judge Quinn glowered at Brunelle. “I understand the court rules, Mr. Brunelle, but why should we wait five days to do something that, Constitutionally, I have to do now.”

  “Because, Your Honor,” Brunelle answered as he pulled copies of his pleadings from his file. He handed a copy to Welles and one to the judge, “the State is filing a motion to add a new aggravating factor. We can argue that in five days as well. If the Court allows the amendment, then bail cannot be granted.”

  Welles flipp
ed through the document roughly. “New aggravator? Which one?”

  “RCW 10.95.020, section fifteen,” Brunelle answered.

  Welles’ faces screwed up as his mind recalled the statue. “The gang aggravator? This wasn’t a gang killing.”

  “It’s any group, counsel,” Brunelle explained. “It applies if the killing was committed to advance the defendant’s status in any identifiable group.”

  “What group?” Welles demanded.

  Judge Quinn looked up from her examination of Brunelle’s pleadings. “Vampires?”

  Chapter 26

  The gallery broke out into almost immediate laughter. ‘Almost,’ because it took a second or two for everyone to confirm they really heard what they thought they heard. Even the jail guards were fighting back laughter. Brunelle scanned the courtroom. Yamata was staring at him in disbelief and Welles was grinning it up for the cameras. The only people who weren’t laughing were the judge, and Karpati.

  Brunelle made a point of never looking at defendants. Partly because he wasn’t supposed to stare them down, partly because there was no reason to since all communication went through counsel, and partly because half the time they wanted to try to stare him down. But when he looked over to see Karpati’s reaction, Karpati’s eyes bored into Brunelle’s. He could tell Karpati didn’t think it was funny at all. The man was pissed. And that let Brunelle know he’d made the right decision.

  “Order! Order!” Judge Quinn pounded her gavel, something judges rarely did in real life. “Everyone get a hold of themselves.”

  When the giggling subsided, the judge stared down at Brunelle. “Are you being serious, Mr. Brunelle?”

  “Absolutely, Your Honor,” Brunelle answered confidently.

  “And why didn’t you file this originally?” asked the judge.