Stephen Penner - Presumption of Innocence

Brunelle shook his head. "No. This was never about getting a confession for trial. I can't send a C.I. in to talk to someone who's invoked his right to an attorney. Not and use the information for his trial anyway. No, this is about shoring up a weak case so the judge doesn't dismiss it."

Kat's narrowed eyes were joined by a doubtful frown. She pointed the letter opener at Brunelle. "Explain."

"Welles was going to file a motion to dismiss anyway," Brunelle answered. "Our case is paper thin. It's just and righteous, but paper thin. We can't call Holly and we don't have any other witnesses. But now Karpati has admitted to the murder-or at least to telling Holly to knock on the door. That's not going to convict him at trial, but it should keep the judge from throwing it out, now that she has confirmation, even through inadmissible evidence, that Karpati did it. Hopefully she'll let the jury acquit instead of tossing it out pre-trial. She doesn't want to be the judge who let the kid-killer out. Not in an election year."

"But if the evidence is inadmissible, how does the judge even know about it?"

Brunelle smiled broadly. "Because Welles put it in his brief."

"Welles' brief is mostly bullshit," Yamata opined from a cross-legged slouch across from Brunelle's desk. He tried not to look up her skirt. "We don't have to reveal the C.I.'s identity if we're not going to use her."

"And we're not," Brunelle confirmed, being sure to address his co-counsel's face.

"We can't," Yamata corrected. "Not in this trial anyway. If you charge him with attempted witness tampering, then you'll have to, but not as it stands now."

Brunelle nodded. He'd pretty much figured that out already. "You said 'mostly' bullshit. What's not bullshit?"

Yamata leaned forward. She didn't uncross her shapely legs, but now her chest was competing for Brunelle's attention. He almost wished Duncan had assigned that irritating guy Peters to co-chair. But not quite.

"The motion to dismiss the aggravators is strong. He has affidavits from three doctors that the method of killing in this case doesn't rise to the level of torture. And he's calling bullshit on your burglary based on the homicide aggravator."

"You don't like that, huh?" Brunelle asked.

"No. It's weak. Weaker than weak. And the judge is going to dump it."

Brunelle chewed his cheek for a moment. "You're right, she is. What about the torture one?"

Yamata shrugged. "It's fifty-fifty, I'd say. Now you're talking about a factual determination: how much did she suffer? Not a legal question about whether a murder can be aggravated by itself. The judge is going to be more open to keeping that one alive, but it may be hard if he's got three docs who will all say she didn't really suffer, not more than any other murder victim anyway."

Brunelle nodded.

"Do we have any docs who could testify she did?" Yamata asked.

"No," answered Brunelle.

"Why not?"

"Because," Brunelle frowned, "she didn't."

***

Brunelle pushed back in his chair. His reply brief was done. He wasn't going to make Yamata write this one. She was good, too good to write what needed to be written in that brief. The set up for the other pleading he drafted.

He knew he was going to lose the aggravators. If he just let that happen, Karpati's sentence would drop from death or life without parole to twenty years. Still a lot, but not enough. The bastard was young. He'd be out of prison before he reached Brunelle's age. That wasn't acceptable.

It was well past the end of the day. Everyone else had gone home hours ago, including the legal assistants who sat near the printer where his documents usually printed. He pulled open his reply brief and his other document. He'd file the reply in the morning. The other one would stay inside the file until the hearing. He hoped he wouldn't have to file it. He really hoped that.

"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."