Stephen Penner - Presumption of Innocence

"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 flipped 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?"

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.

"I considered it, Your Honor," Brunelle answered, "but there wasn't quite enough information to support it."

Brunelle waited a moment then glanced sideways at Welles. "That recently changed."

Welles decided to push on with the disbelieving laugh despite the judge's serious tone. "Really, Your Honor, this is farcical. Surely the court can see-"

The judge turned back to Brunelle. "Have you provided the defense with this new information?"

"No, Your Honor," Brunelle admitted, "but I can do that by tomorrow. I'm just waiting on some reports."

Judge Quinn narrowed her eyes again. "We'll set the motion to add the aggravating factor for one week from today. I will treat it the same as the torture aggravator, which means you better have some facts to back it up. Is that clear, Mr. Brunelle?"

"Crystal," answered Brunelle.

"Good," the judge continued. "And copies of any information, reports, whatever, that you intend to rely on must be delivered to Mr. Welles' office by nine a.m. tomorrow. Do you understand?"

Brunelle nodded. "Yes, Your Honor."

Before Welles could do more than shake his head and try another disbelieving laugh, the judge turned to him and said, "We'll set your bail hearing for the same time."

Welles threw a pained expression at the judge. "I object. There are no aggravating factors at present, and this latest attempt by the prosecutor is beyond ludicrous. My client should be allowed bail now because-"

"I said one week from today, Mr. Welles," Judge Quinn interrupted. "Did you not understand me?"

Welles regained himself and dropped back into compliant attorney mode. "I understand you, Your Honor. One week from today. Thank you."

With that, the judge banged her gavel again and declared the court at recess. Welles stepped over to Brunelle, a smug grin on his face. "Pretty desperate move, Brunelle."

Brunelle smiled back. "Oh yeah?" He pointed past the defense attorney. "Your client doesn't seem to think so."

They both looked at Karpati, who only scowled back at them.

"I believe," Welles said after a moment, "that he's concerned about your mental health."

"He better be concerned about his own health," Brunelle replied, "because I'm planning on shoving a needle in his arm when this is all over."