Diminished Capacity Read online

  “And that’s the danger, Your Honor,” Robyn replied. “They may well conclude Mr. Pollard is guilty, based, not on the evidence, but rather on his failure to appear for the last day of trial, when his absence may be the result of nothing more than traffic or car trouble. If Mr. Pollard doesn’t appear this morning, the Court should declare a mistrial, and we can start over once we determine where Mr. Pollard is.”

  Judge Whitaker shook her head. “There is zero chance that I am going to declare a mistrial on a murder case because a defendant fails to appear for the last few hours of it.”

  The judge looked again at the clock. “I will wait until nine-thirty, Ms. Dunn, but if your client isn’t here by then, we will proceed without him. Understood?”

  Robyn nodded. “Understood, Your Honor.”

  Whitaker looked at the prosecution side. “Understood?”

  “Understood,” Brunelle confirmed.

  “Good,” the judge said. “I will see everyone in twenty-two minutes. Mr. Brunelle, be ready to begin your closing argument when I return.”

  Brunelle nodded, unsure of whether he wanted Pollard to appear before then or not. “I’ll be ready.”

  CHAPTER 40

  “Ladies and gentlemen of the jury,” Judge Whitaker said twenty-six minutes later, after welcoming the jury back into the courtroom and making no comment whatsoever about the suddenly empty chair next to Robyn, “please give your attention to Mr. Brunelle who will deliver closing argument on behalf of the State.”

  Brunelle stood up and thanked the judge. He stepped around the counsel table and took a spot in the well, directly in front of the jury. The usual spot. He was probably a half step farther away from the jury box than where Carlisle had stood.

  “I’d like everyone to take a moment,” he began, “and look around this courtroom.”

  It was an unusual way to start a closing argument. Normally, he would have started with the classic ‘attention grabber.’ Maybe a quote from the defendant that showed his guilty knowledge. Or a line from his detective about murder and duty and justice. But Brunelle didn’t want to employ the same trial advocacy strategies he’d been using trial after trial, year after year. He wanted to connect with the jurors. He wanted them to understand.

  The jurors obliged him and glanced around, at least a little bit, while still trying to keep their attention on him.

  He continued. “It’s a very nice courtroom, isn’t it?” He continued, gazing around approvingly. “Wood paneling, bright flags, a gilded portrait of George Washington looking down at us from the state seal. Very nice. Exactly what you’d want from a courtroom. It’s a space for respect, remembrance, even reverence. It’s right that it feels official and solemn.” He paused. “But it’s also so, so wrong.”

  And that grabbed as much attention as shouting out some quote from the defendant.

  “We only come to court when there’s something wrong,” he explained. “Oh sure, there are exceptions. Weddings, adoptions, maybe a name change. But generally speaking, going to court is a last resort. ‘See you in court’ is a threat. If you’re in court, that means something went terribly wrong, and you can’t figure out how to fix it yourself.”

  Another pause. “And then there’s criminal law.”

  He gestured toward the wall where the photos were projected. “Do you remember the crime scene photos? It was a lot different from in here, wasn’t it? Outside, concrete, dirty, cold. And then all that blood. All that gore. It was hard to even look at, remember? And that’s okay. It should be hard to look at. It’s terrible. But sometimes I wonder whether we shouldn’t have criminal trials out at the crime scene. Let the jury experience even some small part of the reality of what happened out there, instead of sitting in cushioned chairs in a climate-controlled room, with fancy wood paneling and golden faces of near-mythical national heroes.”

  He laughed, ever so slightly. “Don’t worry. My chair is cushioned too. And I’m grateful for the climate control. But it seems to me there’s a real danger that in giving ourselves over to the comfort we have in here, we might forget the horror of what happened out there. And we mustn’t forget what happened out there. We mustn’t forget what happened to Leonard Holloway. And we mustn’t forget who did it.”

  He would have turned to look at Pollard, but then he remembered Pollard wasn’t there. The jurors looked anyway, but were greeted only with the image of Robyn, sitting alone, waiting for her turn to try to sway them.

  “And…” he raised a finger at the jurors, “we mustn’t forget why he did it.”

  Another pause, and a deep breath.

  “The defense put on an expert to say the defendant is not responsible for what he did. We put on an expert who said that first expert was wrong. And now, here you are, being asked to decide a question that two people with Ph.D.s couldn’t agree on.” Another light chuckle. “I don’t envy you. But I think I can help you.”

  He took a half step toward the jury box. Again, a gesture of intimacy. But they had no idea.

  “We have all made poor decisions,” he said. “Every one of us. And we have hurt people. And more often than not we have suffered the consequences for those poor decisions, for hurting those we cared about. And that’s really what this case, what any criminal case is about. Poor decisions and consequences.

  “Let me tell you a story.”

  Brunelle hesitated. Not for the dramatic effect, but because he really wasn’t looking forward to saying what he was about to say. But they needed to know he understood what he was asking them to do. And they needed to know they understood what they were doing when they decided, he hoped, that Justin Pollard should be found guilty of murder in the first degree.

  “I am single.” He pointed to his bare left ring finger. “Never married. No kids. And I’m old enough, I’m probably not going to ever have kids. Which is fine. But I was lucky enough once to date a woman who had the greatest daughter. And for a short period of time, I could see myself getting married, being a husband, being a dad, even if it was to someone else’s daughter.”

  He frowned slightly at the memory, or rather at the feeling of it never getting to be a memory.

  “Her mother was, well, she was fantastic. We met through work, through this terrible, horrible, blood-filled line of work. But it gave us an instant bond. Well, maybe the bond wasn’t instant. But the spark was. And it was undeniable.

  “We started dating and everything was great. I’d never felt so comfortable with someone. I’d never felt so understood. I’d never felt so safe. It felt like what my friends told me they had with their spouses. It was wonderful. And it was scary as hell. Which just made it that much more wonderful. A smart, beautiful woman. Her smart, delightful daughter. The perfect insta-family. I couldn’t have been luckier.

  “And then I ruined everything.”

  He sighed and found himself playing with that bare left ring-finger.

  “I did the wrong thing. I hurt her. I did something I never thought I’d do. And to this day, I can’t tell you why I did it. I knew it was wrong before I did it. I knew it was wrong while I was doing it. And I still know it was wrong, looking back after all this time. But I did it anyway.

  “I couldn’t help myself.”

  The courtroom was perfectly quiet. The jurors had all leaned back into their chairs. They were uncomfortable. Everyone was. But everyone was listening too.

  “I met another woman,” he went on. “Another smart, beautiful, wonderful woman in the same line of work. No kids this time. But something else. Something I still can’t explain, Something that messed with my head. It still does, when I think back on her. I don’t understand it, but I can’t deny it.

  “It was something that made me do things I never would have done otherwise. It was like I was a different person when I was with her. Like I was in a different place. A different world, a parallel dimension where I didn’t care about the consequences of my actions. And that, ladies and gentlemen, is a very dangerous place to be. Because w
hen you don’t care about the consequences of your actions, that’s when you hurt people. People you care about. People you love.”

  Brunelle let out another sigh, heaving his chest at the weight of the memories, the regrets.

  “I made decisions I shouldn’t have made. I hurt someone I never should have hurt. And as a result I lost two very special people from my life. I can look back and say I wasn’t thinking straight. I can say I don’t know why I did what I did. I can say I wish I had never done it. And I can say I’m sorry.

  “All of that would be true. And none of it matters.

  “Because I did what I did.

  “It doesn’t matter if I want to label that bad decision as something else. As the result of ‘I couldn’t help myself’.

  “I did what I did. I hurt someone who didn’t deserve to be hurt. And we both paid the consequences for my decision. Worse yet, for my actions.”

  Brunelle went ahead and glanced back at Pollard’s empty seat. But he was really stealing a glimpse of the woman sitting next to it. Then he turned back.

  “Justin Pollard made a bad decision that day. He did things he never should have done. He did things no one should ever do. Leonard Holloway suffered the consequences for that. And now so should he.

  “It doesn’t matter whether Justin Pollard could have stopped himself. What matters is, he didn’t. He killed Leonard Holloway. He’s guilty of murder in the first degree. And he deserves to face the consequences of his actions, just like everybody else has to.”

  “Thank you.”

  And that was it. He’d laid it all out there, Maybe too much. Probably too much. But he didn’t want to look back at an acquittal knowing he could have done more. He returned to his seat, the room still reverberating from his unexpectedly personal confessional.

  “Wow,” Carlisle whispered out of the corner of her mouth.

  “Yeah,” Brunelle whispered back. “Hope it was worth it.”

  Carlisle nodded. “We’ll find out soon enough.”

  “Ladies and gentlemen,” Judge Whitaker broke the silence hanging over the courtroom. “Please give your attention to Ms. Dunn, who will deliver the closing argument for the defense.”

  CHAPTER 41

  Robyn was as stunned as anyone else in the courtroom. More so, Brunelle knew, although he didn’t know how many others would know that too. Probably everyone, he guessed. Everyone was staring at her as she stood up slowly from her seat at the counsel table. She was still alone there. No sign of Pollard. When she sat down, the judge would issue a warrant for her client’s arrest. No pressure. But for Robyn Dunn, no problem.

  “Thank you, Your Honor,” she said as she came around her table and took her place in front of the jurors. She undoubtedly had prepared her remarks, memorized them even. Probably rehearsed the entire closing in front of a mirror, and more than once. But before she got to that, she looked over at Brunelle and shook her head. “Wow.”

  She turned back to the jurors. “I, uh, I’m not sure exactly how to respond to all that. I suppose I admire Mr. Brunelle for having the candor to tell us all about his own personal failings. But we’re not here because of any of that. It’s not all about Mr. Brunelle. This case is about Justin Pollard. And whether the State has proved beyond a reasonable doubt that he committed the crime of murder in the first degree.”

  She put her hands together in front of her body, an intentional gesture of sincerity. “I want you to know that I understand what I’m asking you to do isn’t easy. I’m telling you: yes, Justin Pollard killed Leonard Holloway, but acquit him anyway. That seems, if you’ll excuse the term, crazy. But it’s not.

  “It’s based on the facts.

  “It’s required by the law.

  “And that means it’s justice.”

  She paused, giving them space to consider the idea that letting a killer go could somehow equal justice. Then she explained it to them.

  “The criminal justice system and the mental health system have a long, complicated relationship.” She glanced ever so quickly at Brunelle. “For as long as there have been mentally ill people, there have been mentally ill people who break the law. And long ago, we, as a society, decided that it would be wrong to prosecute mentally ill people because they couldn’t help themselves. That’s why we have the concept of ‘not guilty by reason of insanity.’ The person did it, but the insanity, the mental illness, makes the person not guilty anyway. That’s the law. That’s right. That’s just.

  “And it applies to Mr. Pollard as well. Only, he isn’t insane. He knows right from wrong. But he suffers from a different type of mental illness that compels him to act in a way that he knows is wrong, even though he doesn’t want to. That means he doesn’t have the intent to commit the crime of murder. And you will see in your jury instructions, the crime of murder requires an unlawful intent to kill. Without that intent, it’s not murder. That’s the law. That’s right. And that’s just.”

  She paused again and lowered her hands to her sides. “I’m not going to belabor the point. And I’m certainly not going to stand here and perform some public confessional as a metaphor for a tragic event that everyone, including Mr. Pollard, wishes had never happened. You were here. You heard Dr. Sanchez. He has dedicated his professional life to understanding and treating mental illness. He is an expert in conduct disorders. He examined Mr. Pollard. And he told you, Mr. Pollard did not have the intent required for the crime of murder.”

  Robyn threw another glance at Brunelle, but it was on purpose, with a disapproving frown and the slightest shake of her head.

  “Disregard the State’s so-called expert who says psychology—a scientific discipline that has helped untold millions struggling with mental illness—is no more scientific than a Magic Eight-Ball. Disregard the prosecutor who argues psychology isn’t real, but then inflicts a very public therapy session on everyone in this room.

  “Don’t disregard the facts. Don’t disregard the law. And don’t disregard justice.”

  Robyn looked across the rows of faces in the jury box and allowed herself a small smile.

  “A good lawyer knows when to stop talking,” she said. “So, thank you, ladies and gentlemen. Thank you for your attention throughout this trial. And thank you for the care and seriousness you will bring to bear on what you’re about to do. You have a person’s life in your hands. Remember that, remember who that person is, what he’s endured, and remember your charge to return a true and proper verdict. If you do all that, I have no doubt you will return a verdict of not guilty.”

  Then she turned and walked back to her seat. It was over. Her part anyway, and Brunelle’s. She stole a glance at him as she passed and he let their gazes meet. It really was over. And damn if he didn’t still miss her despite everything.

  “Ladies and gentlemen of the jury,” Judge Whitaker spoke again. “This concludes the trial. You will now retire to the jury room to begin your deliberations. You will be furnished with all of the exhibits admitted into evidence and my instructions on the law. You must apply the law to the facts you determine have been proved at trial, and in this way decide the case. You must act impartially with an earnest desire to return a proper verdict.

  “Since this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict form to express your decision. The bailiff will then bring you into court to declare your verdict.”

  And with that, the jury took the case and disappeared into the jury room, leaving Brunelle, Carlisle, and everyone else in the courtroom to stand there, with literally nothing to do.

  Except the post-trial cleanup. It was customary to shake hands with opposing counsel after trial, but when Brunelle turned to offer his hand to Robyn, she already had an armful of books and a foot toward the door.

  She saw Brunelle’s expression and stopped.

  “Why am I leaving in such a hurry?” she ventured.

  “Well, yeah,” Brunelle confirmed.

  “To fi
nd my client,” she said. “Before he finds you.”

  CHAPTER 42

  Waiting on a verdict was always terrible, the absolute worst part of being a trial attorney. The anxiety caused by the uncertainty of the result was magnified by the uncertainty of how long it would take to get that result. Elections, lottery drawings, football games—those all had definite end times. But jury deliberations? Could be ten minutes, could be ten hours, could be ten days. Hell, there was no rule prohibiting it from being ten weeks, as long as the jurors thought deliberations were making progress.

  It was a slow but constant drip of background adrenaline. Jumping at every buzz of the phone because it might be the court clerk with those wonderful and dreaded words: ‘The jury has reached a verdict.’

  For Brunelle, the only thing that could top the anxiety of having a murder jury out was also having the murder defendant out, after having threatened Brunelle that he would be next to have his skull stomped in.

  Luckily, he was dating a cop.

  After dropping off his stuff in his office, and parting ways with Carlisle, he left to go for a walk. He was useless for anything else right then anyway. Whatever attention his other cases needed, it could wait one more day.

  As Brunelle stepped out of the courthouse and onto Third Avenue, his phone buzzed. But it wasn’t a verdict. It was that cop he was dating.

  “Jury out?” Casey asked when he answered.

  “Yeah, just finished,” he reported.

  “Wanna grab an early lunch?” Casey suggested. “I’m in Bellevue, but I can be there in fifteen minutes. Twenty with parking.”

  “I’m not really hungry,” Brunelle said. His stomach was already filled with adrenaline and uncertainty.

  “How about coffee?” Casey persisted.

  “Sure,” Brunelle agreed, He could always drink coffee. And he knew just the spot. “Meet me at Emerald City Grounds.”

  “Okay,” Casey said. “Where’s that?”