Stephen Penner - Presumption of Innocence

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."