Diminished Capacity Page 9

  More than shocked. He was panicked.

  “Casey!” Brunelle jumped out of his desk chair as Nicole escorted the detective to his office. “Wha—what are you doing here?”

  Carlisle had been sitting opposite Brunelle, preparing for the hearing. She stood up too, but slowly, assessing the situation.

  “Hello,” she greeted the detective. “I’m Gwen Carlisle.”

  “Oh, hi,” Casey said. “Dave’s mentioned you. You’re second chair on the Pollard case, right?”

  “Not exactly,” Carlisle answered. “But judging by Dave’s reaction to your arrival, I’m gonna go ahead and let him explain that to you.” She turned to Brunelle. “Meet in the courtroom at one o’clock?”

  “Sure,” Brunelle managed to answer, his throat dry. “See you then.”

  Carlisle departed and Casey immediately turned to Brunelle. “What was that all about?”

  Brunelle played dumb. “What was what about?” Then, he tried to change the subject. “And what brings you to my office today, unexpected, unannounced, today?”

  “I’m talking about whatever the heck is going on right here, right now,” Casey answered his first question. “I’m a detective, remember? And I am detecting some bullshit coming from you. I had to run some property over to the Seattle Crime Lab, so I thought I’d surprise you for lunch. But clearly, something else is going on. What’s happening at one o’clock?”

  “Wow, you are a detective,” Brunelle deflected with a laugh. “What’s with the interrogation?”

  Casey crossed her arms. “Are we really doing this?”

  Brunelle hesitated, then he sighed and ran a hand over his head. “No. Of course not.” He pointed to the chair Carlisle had vacated. “Grab a seat. Let me explain. Then you can decide if you still want to have lunch with me.”

  After Brunelle had finished explaining everything—with repeated emphasis on the fact that she kissed him—he threw his hands wide. “So, that’s what’s going on. I’m really sorry. Really, really sorry.”

  Casey nodded for a few seconds, then leaned forward. “Okay. So, where do you want to go for lunch? There’s a Japanese place I like not too far from here, but I don’t work in Seattle, so maybe you know someplace better.”

  “You’re not angry?” Brunelle asked, feeling a combination of relief and puzzlement, with the smallest drop of disappointment.

  “Why would I be angry?” Casey inquired with a raised eyebrow. “Did you do something I should be angry about?”

  “I kissed another woman.”

  “I thought she kissed you.”

  “She did,” Brunelle confirmed quickly. “Right.”

  “Did you kiss her back?”

  Brunelle could hear Carlisle’s voice. He didn’t not kiss her back. But he knew not to make any jokes. “No, ma’am.”

  Casey laughed at the ‘ma’am.’ “It’s not an interrogation, Dave. You’re acting like you want to confess something.”

  “Again, no, ma’am,” Brunelle repeated. “I guess I just expected you to be mad.”

  Casey offered a half-frown that was still somehow a smile. “Look, Dave. I’m not going to get mad because somebody else did something to you. I am a little disappointed, though.”

  “Ah,” Brunelle said. He knew ‘disappointed’ was code for ‘mad.’ As in, ‘I’m not mad, I’m disappointed.’

  Casey read his expression. “It’s not code for ‘angry’, Dave. It’s just disappointed. You should have seen this coming. Your ex-girlfriend gets hired after the case is assigned to you? Suddenly she’s flirtier than she’s been in years? She takes you to where there’s no one else around, but there are still security cameras? And then she kisses you once and runs off? Seriously, how did you not see that coming?”

  “I, uh…” Brunelle stammered. “I hadn’t thought of it like that.”

  “I guess I’m not surprised.” Casey shrugged. “You are a man. And she is pretty. Besides, you’re not an investigator; you’re a presenter. We cops do all the digging. You just polish off the gold and show it to the jury.”

  “Just?” Brunelle questioned.’

  “You know what I mean,” Casey replied. “If you would have told me right after it happened, I could have warned you about what was coming.”

  Brunelle shrugged. “Sorry. I don’t know why I didn’t tell you. I guess I thought it wasn’t that big of a deal.”

  “No, that’s not it,” Casey knew. “In fact, it was just the opposite. You were afraid it was a big deal.”

  Brunelle considered for a moment.

  “A lesser girlfriend,” Casey continued, “might think you didn’t tell me because you did kiss her back.”

  “I didn’t kiss her back,” Brunelle insisted.

  “I said, a lesser girlfriend,” Casey repeated.

  “Right,” Brunelle acknowledged with a nod.

  “This girlfriend,” Casey jabbed a thumb into her chest, “is a cop. And the daughter of a cop. But she also grew up with a lot of people who didn’t trust cops and had good reason not to. When you guys sell your gold to the jury, you tell them the only reason someone runs from the cops is because they know they’re guilty. But I know, sometimes people run from the cops because they know it doesn’t matter if they’re innocent.”

  Brunelle frowned at the insight. But he couldn’t disagree with it.

  “Look,” Casey went on, “I don’t know who you’ve dated in the past—well, I guess I know one of them,” she laughed, “but I’m not them, Dave. I’m me. Don’t assume I’m going to be like anyone else, okay? Give me a chance not to be terrible.”

  Brunelle sighed. He could feel his heart relax.

  “And Dave?” She reached across his desk and took his hand. “If something like this happens again, I want you to remember two things.”

  Brunelle squeezed her hand back. “What?”

  “I carry a gun.” Casey smiled warmly. “And I know how to dispose of a body so no one will ever, ever find it. Mm-kay?”

  Brunelle blinked at her. “Oh, my God,” he said. “I think I love you.”

  CHAPTER 23

  Lunch was at that Japanese place Casey liked. Brunelle kind of owed it to her, plus he wasn’t hungry anyway. Regardless of the strength of his relationship with Casey, he was about to get thoroughly embarrassed in front of pretty much everyone he knew.

  And all he could do was sit and watch because it wasn’t his case any more. He felt like the most helpless person in the world. Until he saw Pollard enter the courtroom. They were making sure there was no chance of a repeat of what happened at the last hearing. Pollard was fully restrained to a chair frame made of steel bars, with wheels and a handle on the back, so it could be tipped back like a delivery dolly, a corrections officer wheeling him into the courtroom like a new appliance. Leather straps held his wrists and ankles to the chair. Another strap stretched across his throat to keep his head in place and a ‘spit sock’ covered his mouth and nose. He wasn’t going anywhere, and he sure as hell wasn’t grabbing anyone’s gun.

  “Is this really necessary?” Robyn demanded when her client was brought in. “He’s still recovering from the gunshot to his stomach. He’s hardly a threat.”

  The corrections officer didn’t respond. He just stared at her, or rather right through her.

  “Yeah, I know, I know.” She threw her hands up. “Tell it to the judge. Well, be sure, I will.”

  Then she turned to Brunelle, seated at the prosecutor table. The only other people in the courtroom were three more corrections officers, Carlisle, and the court staff—clerk, bailiff, and court reporter. Otherwise, the secure front of the courtroom had been cleared out. But the gallery was full of every prosecutor, defense attorney, and court personnel who could get away from their own duties long enough to watch the public hearing about what a creep Dave Brunelle was.

  “Can you do anything about this?” Robyn asked him, waving back at her immobilized client.

  “Sorry,” Brunelle said, with no attempt to inj
ect any sincerity into the word. He nodded toward Carlisle. “You’ll have to ask her.”

  Robyn looked at Carlisle for a moment, then turned away again. “Never mind then.” She stepped up to the bar. “Can we get started?” she asked the clerk. “My client needs to get back to the infirmary.”

  The clerk wasn’t moved. Robyn had earned some good will for talking her client out of killing anyone that day, but she was still associated with him in everyone’s mind. And there was another rumor going through the courthouse that she had actually set the whole thing up to make her client look crazy.

  “The judge will come out when she’s ready, Ms. Dunn,” the clerk replied coolly.

  Robyn huffed and paced her way around the courtroom until finally forcing herself to sit down at the defense table, next to her trussed up client. “How are you holding up?” she asked him.

  His reply was muffled, but seemed generally affirmative.

  “Good,” Robyn replied, her fingers bouncing on the tabletop. “Good.”

  She was definitely worked up. Anxious, even. Brunelle was surprised, but then he supposed he wasn’t the only one who was about to be embarrassed. It took two to kiss. But she was the one who brought the motion; it hadn’t occurred to Brunelle that she might be uncomfortable too. He wasn’t sure exactly how he felt about that, but it was more good than bad.

  “All rise!” the bailiff suddenly called out. “The King County Superior Court is now in session, the Honorable Janet Whitaker presiding.”

  Everyone stood up—everyone but Pollard, that is—until Whitaker took her place above them and said, “You may be seated.”

  Different judges had varying styles when it came to allowing parties to run a hearing. Some judges thought of themselves as referees and let the lawyers play the game until it was time to call a foul or declare the winner. Others thought of themselves as generals who needed to direct every move of the people in their theater of war. Generally speaking, Whitaker was more of a referee—it was easier, if nothing else—but after what happened the last time the case was in court, she was going to make Patton look like a babysitter on the phone with her boyfriend.

  “This is the matter of The State of Washington versus Justin Pollard,” she announced for the record. “This is on for the defendant’s motion to disqualify Mr. Brunelle from the case, based on allegations of misconduct and conflict of interest. I will hear first from the defense, who will have five minutes for oral argument. I will then hear from the prosecution, who will have five minutes to respond. There will be no rebuttal from the defense. I’ve read the written pleadings, so I don’t need to hear more argument than five minutes per side. I will then rule. There will be no challenge to my ruling from either party, or I will hold you in contempt of court. The hearing will then conclude and the defendant will be returned to the jail. I would ask if there are any questions, but my instructions are perfectly clear so there is no need for questions.” She pointed at the defense table. “Ms. Dunn. Go.”

  Robyn seemed shaken by the directness of the judge. No lawyer liked having their time limited. Lawyers were talkers. Trial lawyers anyway. Briefing was just to get in front of the judge; it was the avalanche of verbal eloquence that would carry the day.

  “Thank you, Your Honor,” Robyn began after a moment, already wasting time with the instinctive niceties. But she caught herself and got right to the point. “The Court should disqualify Mr. Brunelle from any further representation of the State on this case because of a deep and troubling personal conflict, to wit: a history of romantic entanglement with the defendant’s counsel of choice.”

  “That’s you, right?” Whitaker interrupted.

  “Uh, yes, Your Honor,” Robyn confirmed. “But this is about Mr. Brunelle, not about me.”

  “Why not?” the judge challenged. “Why shouldn’t I disqualify both of you?”

  So much for five minutes a side, Brunelle thought. Unless the questions didn’t count against each side’s time. But he kind of figured they did.

  “Because the Sixth Amendment ensures a criminal defendant the right to be represented by an attorney of his choosing,” Robyn answered. “Under the Gonzalez-Lopez case, which I cited in my brief, failure to allow a defendant to proceed with his chosen attorney is structural error which would require automatic reversal of any conviction. The same analysis does not apply to a fungible assistant district attorney. Mr. Pollard has chosen me to represent him. That’s the end of the inquiry on the defense side. But the Prosecutor’s Office has literally hundreds of prosecutors who could substitute in for Mr. Brunelle.”

  “They don’t have hundreds of attorneys with experience trying homicide cases,” Judge Whitaker pointed out. “He’s not quite as fungible as you suggest.”

  “Well, I’m not sure about that,” Robyn replied. “His personal desire not to be replaced doesn’t mean he can’t be, or hasn’t been, replaced in the past.”

  Brunelle stopped himself from shaking his head. Double entendres even now? he wondered.

  “Why wasn’t this raised earlier?” Whitaker inquired. “Mr. Brunelle was present at the arraignment. We’re now just a few short weeks before trial. The timing seems strategic. I’m not sure another prosecutor could get up to speed in time to try the case effectively. Is your client willing to waive his right to a speedy trial to allow another prosecutor the time needed to properly prepare?”

  “Waiving one right to secure another preserves neither, Your Honor,” Robyn answered. “The defense will be ready for trial on the scheduled trial date. The State created their own conflict. They can figure out how to get themselves ready in time. And if they can’t, that might speak more to the weakness of their case than to any difficulties caused by the defendant insisting in his constitutional rights being respected.”

  Whitaker frowned for several seconds, then glanced at the clock, confirming Robyn had used her five minutes. She turned to the prosecution side. “Mr. Brunelle. Response.”

  But it was Carlisle who stood to respond. “If it please the Court, I’ll be handling the response on behalf of the State.”

  Whitaker raised an eyebrow. “Is the State conceding the motion?”

  “No, Your Honor,” Carlisle assured. “But we’re not looking to delay the trial either. In an effort to reach an acceptable compromise, I will be taking over the case from Mr. Brunelle, who will stay on as my second chair. As the Court noted, he has extensive experience with homicide cases and has been working on this case since the night of the murder. We are not conceding the merits of Ms. Dunn’s motion. We submitted the surveillance video to the Court, not just stills, and it seems clear that it was Ms. Dunn who initiated the intimate contact, regardless of whether Mr. Brunelle returned it.”

  “He didn’t not return it,” Whitaker observed.

  Brunelle lowered his head into his hand.

  “Again, the State believes that is irrelevant,” Carlisle continued, “but in the interest of having this case tried in a timely fashion, and to protect any resultant conviction on appeal, we are willing to reassign the tasks on our side to minimize whatever concerns Ms. Dunn has regarding trying a case against her ex-boyfriend.”

  “He wasn’t my boyfriend,” Robyn hissed.

  “I wasn’t not your boyfriend,” Brunelle let slip.

  “Stop,” Whitaker boomed. “Both of you. If I grant this motion, it will be to avoid exactly this sort of outburst. I think we can all agree there have been too many outbursts already on this case. We can strap a stun pack to the leg of an otherwise uncontrollable defendant, if necessary, but I’m not above ordering them for the attorneys as well, if you continue to act out. Is that understood?”

  “Yes, Your Honor,” Robyn answered.

  Brunelle echoed his compliance as well.

  “Good.” Then the judge exhaled sharply and shook her head. “This is an important case, not just to Mr. Pollard and the State, but to the friends and families and witnesses involved. I’m not going to let personal games derail it. This
is the part where I make my ruling, by the way, so don’t interrupt. I accept the concern of the defendant, but if he chooses to keep a lawyer who could be compromised by her past entanglement with the assigned prosecutor, then that’s his choice. Similarly, any conflict on the part of Mr. Brunelle is really an issue between him and his client. Of course, the prosecution doesn’t have an actual flesh-and-blood client, but the elected prosecutor, Mr. Duncan, is sworn to uphold the interests of the community which elected him. If he believes allowing Mr. Brunelle to stay on in an advisory capacity protects the interests he is obligated to uphold, then this Court will not substitute its judgment for his.”

  Win, thought Brunelle. An assessment confirmed by the droop of Robyn’s shoulders. Whew.

  “But,” Whitaker went on, “any more games from either side and I will consider replacing both counsel, regardless of what the case law says. Is that understood?”

  Carlisle and Robyn both tried to answer, but the judge didn’t actually wait for any response to her question.

  “Good,” she said again. “And to help ensure that, I’m going to order that any further motions from either side are reserved until the day of trial. You can bring it up with the trial judge, but we’re not wasting any more time in here. We have better things to do than play Law and Order meets The Bachelor.”

  “Thank you, Your Honor,” Carlisle jumped in. It was always good to seal a victory before the other side could start arguing, which, knowing Robyn, was still likely, notwithstanding Judge Whitaker’s warning at the outset of her remarks. “Do we know who the judge will be? So that we can file any necessary paperwork in advance, I mean.”

  Whitaker sighed. “After all this?” she asked no one in particular. “I guess I can’t really hand this mess off to another judge. I’m hereby assigning the case to myself. They’ll just have to find someone to cover my responsibilities in this courtroom for the duration of the trial.”

  Brunelle shrugged to himself. They could do worse than Judge Whitaker. But there was that outstanding issue about deposing Robyn’s psych expert, Dr. Sanchez. That couldn’t wait until the day of trial.