Stephen Penner - Presumption of Innocence

"Let's see what Welles does with that," he whispered back.

Some defense attorneys start with an apology "for your loss" or something equally transparent. Not Welles. He had one question. One perfect question.

"You don't really know whether my client killed your daughter, do you?"

Her hesitation was its own answer. Before she could blurt out the 'Yes!' that she wanted to say, Welles interrupted.

"I understand, Mrs. Montgomery, that people have told you things, made promises and assurances. The police, the prosecutor. But you yourself, you have no personal knowledge whatsoever that my client is in any way responsible for the death of your daughter, isn't that true?"

Mrs. Montgomery shifted in her seat, but kept an icy glare locked on Welles. Finally, through gritted teeth, she admitted, "No."

Welles nodded, but knew enough not to smile. "No further questions."

***

And so it went, all day. Brunelle or Yamata leading the witness through their testimony, admitted photographs, pulling heart-strings. The first cop on scene who found the body, the paramedic who confirmed the death, the forensics guy who dusted for prints. And after every direct examination, one simple question on cross examination:

"You have uncovered absolutely no evidence that my client was in any way involved in the young lady's death, isn't that right?"

Brunelle got it. Back in his office at the end of the day, it was clear Yamata didn't.

"I think it went pretty well today," she said. "I don't think Welles objected even once."

Brunelle laughed sardonically. "Why should he? He's killing us."

Yamata cocked her head at her partner. "You mean that little, 'You don't know my client did it' bit? Please. The jury gets what we're doing."

"Maybe," Brunelle shrugged. "But the judge gets what he's doing. She'll dump this thing at half-time if we don't put on some evidence Karpati is the killer."

Yamata's incredulous frown deepened. "There's no way she dumps it. We're totally proving that girl was murdered in the most horrific way."

Brunelle shook his head. "Of course she was, but we've got to prove Karpati's the one who did it. There are judges who would be afraid to dump a murder case, who'd leave it to the jury to acquit. But not Quinn. She'll fuck us. If we put on a hundred witnesses and every one of them ends with, 'But I can't say Karpati did it' we're fucked. Case dismissed."

Yamata's confident grin was gone. She crossed her arms. "So what do we do?"

Brunelle drummed his fingers on the table. "We hope Chen does better for us tomorrow than everyone did for us today."

***

"Lawrence Chen," the detective identified himself for the record after being sworn in and sitting on the witness stand.

Brunelle was standing across the courtroom, behind the last juror. It was an old trial attorney trick. It forced the witness to speak up and look at the jury. "How are you employed, sir?"

"I'm a detective with the Seattle Police Department."

Then, after a brief verbal resume, years of experience and commendations received, Brunelle got to what really mattered. "Are you familiar with the investigation into the murder of Emily Montgomery?"

Chen set his jaw. It was probably meant to seem serious. Brunelle worried it seemed forced. "Yes," Chen answered solemnly.

"And was part of your job to identify the killer or killers?"

Chen thought for a moment. "Actually, I would say that was my only job. To identify the guilty party and arrest him."

"And did you arrest anyone for the murder of Emily Montgomery?"

"Objection!" Welles stood slowly, a bemused smile on his face. "Objection, Your Honor. This is absolutely outrageous. I'll give Mr. Brunelle credit for his creativity in trying to mislead the jury but-"

"Well, now I'm going to object," Brunelle interjected. "It's inappropriate for counsel to suggest I'm trying to mislead the jury."

"If the lie fits," Welles started, but the judge interrupted.

"Children, children." She looked over to the jurors. "Ladies and gentlemen, I'm going to excuse you to the jury room while counsel and I discuss the objection. Thank you."

The jurors looked at one another and shrugged, but they did as they were told, standing up and filing into the jury room. When the door closed, Judge Quinn pointed a firm finger at Welles, "You will stop the speaking objections immediately, Mr. Welles, do you understand me?"

Welles threw his arms wide and offered his most innocent expression. "I was just trying to articulate the basis for my objection."

"Don't bullshit me, Mr. Welles. It won't work. You just told the jury that the prosecutor was lying to them. You do that again, you're in contempt. Do you understand?"

Welles' face traded innocence for understanding. "Of course, Your Honor."

Before Brunelle could fully form his own 'told ya so' expression, the judge turned her finger to him. "And you. Stop lying to the jury."

"Lying?" Brunelle stammered. "I'm just-"

"You just asked the detective what his job was. When he said his job was to arrest the killer, you asked him who he arrested. Tell me that wasn't designed to have the detective tell the jury that Mr. Karpati is guilty."

"Mr. Karpati is guilty," Brunelle replied.

"Prove it," Welles laughed.

"I'm trying," Brunelle answered.

"Well, you're not going to do it with impermissible opinions as to guilt or hearsay," Quinn instructed. "This detective cannot tell the jury what other people told him happened. That's hearsay. And the law is clear in Washington: no witness, not even the lead detective, can give an opinion as to the defendant's guilt. That's for the jury to decide."

Brunelle clenched his fists, but didn't say anything. There wasn't any response, and he knew it.

"I would ask the court," Welles said smugly, "to instruct Mr. Brunelle not to ask about whether my client was arrested. And further to sustain my objection in front of the jury when they return."

Judge Quinn looked to Brunelle. "I think I should be allowed to tell the jury he was arrested. It's just true."

The judge nodded. "It is true, but you've set it up that the detective has knowledge the jury won't get and he determined Mr. Karpati is guilty."

"Again, Your Honor," Brunelle implored, "he does have knowledge the jury won't get, and Mr. Karpati is guilty."

"And again, Your Honor," Welles said, "I move the court to prohibit any further questions regarding my client's arrest. He requested an attorney and made no statements, so there is no admissible evidence from the arrest."

Judge Quinn raised an eyebrow at Brunelle, inviting a response, but he just shrugged. "I've made my argument."

Judge Quinn smiled. "And I'll make my ruling. No more questions about Mr. Karpati's arrest. Is that understood, Mr. Brunelle?"

Brunelle shrugged. "I'm not Mr. Welles, Your Honor. I disagree with the court's ruling, but I will abide by it."

Welles opened his mouth to protest, but the judge stopped him. "Ah, ah, ah, children. No more bickering." She looked to the bailiff. "Bring in the jury."

The jury marched in and retook their seats. Once they were settled in, Judge Quinn announced, "The objection is sustained. Ask a different question, Mr. Brunelle."

Brunelle forced a smile. "Thank you, Your Honor."

But the truth was, lead detectives are hugely important outside the courtroom and mostly irrelevant inside. Everything they learned was hearsay, so they couldn't tell the jury what witness so-and-so said. They sent everything to the crime lab for testing, but only the scientists could testify about the results. So really, about all they could ever say is, 'I was the lead detective. I talked to some people. I sent some stuff to the lab. I wrote some reports.' Brunelle tried to drag it out a bit, make it more interesting than that, but soon enough his direct examination had concluded.