Betrayal

18

Tara had never felt so grateful for her job.

It was getting to the end of the year, and her kids were handing in their big reports and concluding their projects on the ancient world in preparation for the school's open house on Friday night, when all the work would be displayed in the classrooms. In Tara's room, they had rearranged all the desks to make room for the papier mâché pyramids, the dioramas of the growing cycle along the Nile, the plumbing schemes for the residences of the pharaohs. Hieroglyphics, the early domestic cat, the library at Alexandria, Moses and the Exodus.

So all day and much of the nights of Thursday and Friday, Tara was busy organizing and tending to last-minute crises among her students and, often, their families. She had no time to contact Evan to find out what, if anything, had happened after he'd stormed out on her on Wednesday night. And, truth to tell, she wasn't too inclined to call him anyway. She thought she would let him take a few days to sober up and get over his embarrassment about how he'd acted. Then, after he'd called her and apologized, they'd see where they were. But in the meanwhile, she had her job and her kids. She thought that a couple of days' respite from the emotional turmoil and upheaval surrounding Ron and Evan might do everybody involved a world of good.

Saturday, she slept in until nearly ten o'clock, then went down to the pool and swam a hundred laps. Coming back upstairs to her apartment, she showered and threw on some shorts and a T-shirt, made a salad for lunch, and after that dozed off watching a tennis match on TV. When she woke up, she graded the last of the written reports for another hour or so. At a little after four, she was just finishing up the last one when her doorbell rang. Checking the peephole, she saw Eileen Scholler, her face blotched from crying.

Limping, scabbed, and bruised in his orange jail jumpsuit, Evan entered his side of the visiting room chained to twenty other men. Watching the line enter, Tara stood among a loose knot of mostly women in a kind of bullpen waiting area on their side of the Plexiglas screen that separated the visitors from the inmates. A row of facing pairs of talking stations bisected the room from one end to the other.

Tara had to fight to hold back her tears as they unfastened Evan from the chain of men to whom he'd been attached. He saw her and started to raise a welcoming hand, but his wrists were still attached to the chain around his waist. The guard directed him to one of the desks and Tara excused herself through the now-pressing crowd of visitors and sat herself at last facing him. There was a hole in the Plexiglas through which they were supposed to talk.

It was Wednesday, his fourth day in custody, and the first day that his injuries had healed enough to allow him to walk unaided and to see visitors. In the first moment, neither could find anything to say. They looked at each other, then away, and back again.

How could either of them be here? How could it have come to this?

Finally, Evan leaned forward, shrugged, manufactured some kind of brave face. "I guess I should have gone home with you after all."

Tara didn't trust herself to say anything.

"I am so sorry," he said.

Tara opened her mouth, but again no words came. Now, unexpectedly, tears began to overflow onto her cheeks. She didn't try to stop them.

"Oh, babe," he said. Then, "I don't think…" He shook his head and looked at her. His shoulders rose and fell. "I don't believe I killed him."

Tara was still reeling from the bare fact that Ron Nolan was dead. Putting Evan together with that on any level wasn't yet possible for her; the idea couldn't bear any scrutiny. Instead, she found herself fighting a sense of unreality that permeated her waking hours as though she were living within a bad dream from which she couldn't will herself awake.

"I wouldn't have killed him," he said, then waited for her until he couldn't take it any longer. "Can you say something, please?"

"What am I supposed to say? What do you want me to say? I'm here. That says something, doesn't it?"

"I hope it does."

"I hope so too. But I'm not sure. Are you hurt?"

"I'll be all right."

"Will you? When will that be? What does that mean?"

He just looked at her.

Ten weeks passed before they saw each other again.

In that time, Evan was charged with the murder of Ron Nolan, but no charges were brought against him for the Khalil slayings-the district attorney, Doug Falbrock, decided that the evidence tying Evan to those murders wasn't strong enough to convict. As almost always in a murder case, bail was denied.

Tara had cleaned up her classroom and then hung around her apartment for the first couple of weeks of summer. On the Fourth of July, she went up to her parents' condominium to spend the holiday near Homewood on Lake Tahoe and decided on more or less the spur of the moment that she wasn't going to go back home. She couldn't bear reading about Evan every day in the newspapers down there. She needed to be away from the whole thing-the requests for interviews with reporters, her proximity to the jail, the expectations and/or accusations of people who didn't know her. She wound up staying alone at Homewood until late August-reading, running at altitude, dead sober, swimming in the cold lake.

Finally, it was time to come and get her classroom ready for the new year. She drove down on a Thursday morning, cleaned up the dust that had gathered in her apartment, stopped by the school, and started in again on the familiar yearly routine. And somewhere in the middle of it, she realized that she'd come to her decision. Finishing for the day at a little after three o'clock, she drove directly to the house Evan had grown up in, parked out front in the street, and knocked at the door.

Eileen greeted her as she always did-effusively, sincerely-with a welcoming smile, a hug, a kiss on both cheeks. They went together into the airy, modern kitchen and made catch-up small talk until Eileen had poured them both iced teas and they were sitting across from each other at the table in the nook that looked out at the Eden that was the Schollers' backyard. At last, Eileen cocked her head in her trademark fashion. "So what brings you around today?"

"I wanted to ask you if you think Evan would want to see me again."

"I think he'd want that more than anything."

"I wasn't too good the one time, you know? Did he tell you about that?"

"He didn't give me too many details. He said it wasn't very easy between you two. But he didn't blame you. Nobody blames you-I mean we don't-you know that, don't you?"

Tara nodded. "I just didn't know where to put any of it. Everything happened so fast. Finding out about all the lies Ron told me, and then thinking Evan and I, we might get another chance. Then that last night in the bar…where I thought…" She stopped, swallowed, shrugged.

Eileen reached over and patted her hand. "It's all right. If it means anything, and I think it does, Evan has no memory of what happened over there. He doesn't believe he killed Ron. He says that's just not who he is. He never would have done that."

"I believe him."

"So do I."

"But somebody did."

"Maybe somebody connected to these Khalils. That's what Everett says he believes."

" Everett?"

" Everett Washburn. His lawyer." A rueful smile. "His expensive lawyer." She waved away the comment. "But that's all right. We've got enough savings, thank God. I can't think of anything better to spend it on."

Tara hesitated, then came out with it. "They want me to testify about that last night. Against him."

" Everett said they would. I think it'll be all right if you just tell the truth."

"The truth wasn't too pretty, Eileen."

"No, I understand. But you can't do anything about that."

Tara twirled the iced tea in its little ring of condensation. "I could marry him," she said.

Sitting back and straightening in her chair, Eileen drew in a big breath and let it out. "Well…and here I've been thinking these old bones would never be surprised by anything again. But I don't think you'll have to take it that far."

"Not just to keep from testifying, Eileen. I've had all summer to think about how I feel about all this stuff. And over the weeks, it's just gotten clearer and clearer. Whatever happens, I'm on Evan's side. If he still wants me. If he'll see me."

Again, Eileen patted Tara 's hand. "Oh, I wouldn't worry about that at all, dear. Not in the least little bit. I'm going down there to visit him in the next fifteen minutes if you'd like to come along."

When Evan saw Tara standing next to his mother on the other side of the room, he turned his face upward and closed his eyes. His body seemed to heave in relief. Tara came to the window-Eileen waiting in the back-and sat down across from him.

"Hi," she said.

"Hi."

"You look a lot better than last time."

"I feel a lot better too. How have you been?"

"Good. Gone. I'm sorry it's been so long."

He shrugged.

"I was trying to figure things out," she said.

"Any luck?"

"Pretty much. I finally got so I could see what ought to have been obvious all along."

"Which is what?"

"That if I'd have just gotten down off my high horse when this all started, when you deployed…I was just afraid I was going to lose you, that you'd be killed. I couldn't believe you'd be willing to sacrifice everything we had. I was so mad-"

He raised his palm. "Hey, hey, hey. We've been through that enough, haven't we?"

She nodded, almost letting a smile break. "Way enough. You're right."

Now he reached his hand out and put it against the Plexiglas separating them. "It's so incredibly good to see you. Do you know that?"

"You too." She leaned in toward him. "I came down here to tell you that I love you, you know, Evan Scholler. I've always loved you. All that other stuff, not answering your letters, everything with Ron, I was just young and stupid."

"No, the stupid award goes to me. Walking away from you that night at the Traven."

This time, a smile broke. "Okay, maybe we're tied on that one. But I'm not going to be stupid anymore."

He sat back, then came forward again, his voice raw. "You realize people might say that this is stupid, visiting me, getting involved again with me on any level. If you're going to be doing that."

"I am. And it's not stupid, it's right. This is what I need to be doing. This is who I am, who we are. I'm just sorry it took me so long to figure it out."

"You don't have to be sorry for anything," he said.

But she shook her head. "No, you're wrong. I'm sorry for everything that's got us to here. I'm just so, so sorry, Evan. I really am."

His eyes met hers. "I am, too, Tara," he said at last. "I am, too."

19

On Tuesday morning, the second week of September 2005, an assistant district attorney with the impossible name of Mary Patricia Whelan-Miille looked at her wristwatch in Department 21 of the San Mateo County Courthouse in Redwood City. It was nine forty-two A.M. This meant that court was starting a few minutes late, but the tardiness didn't bother her.

Mary Patricia's law-school friends had given her the nickname of Mills almost before she'd gotten her full name out for the first time, and now Mills, with excitement and some trepidation, took in the scene around her. She was exactly where she wanted to be at this moment-in a courtroom as a prosecutor about to begin the trial of her life, and one that had a chance to become a defining moment in her career.

Oh, there would undoubtedly be pitfalls ahead, as in fact there had already been. Her boss Doug Falbrock's decision to abandon the charges against Evan Scholler in the murders of Ibrahim and Shatha Khalil for lack of evidence, for example, had been a bitter pill for her to swallow in the early innings. Pulling Tollson, a multidecorated Vietnam combat veteran who'd lost a foot to an antipersonnel bomb in that war, as the trial judge perhaps wasn't the greatest bit of good fortune imaginable either. Probably fewer than two or three years from retirement, Tollson, as the prototypical éminence grise, had earned the sobriquet "His Griseness" from Mills's paralegal, Felice Brinkley, and it fit perfectly.

Outside of the courtroom, in the building's halls, Tollson limped along exuding a nearly boyish enthusiasm. He came across as preppy, favoring casual menswear instead of coat and tie. He wore blue contact lenses, his perfectly combed, silver-tipped, Grecian Formula hair nearly luxuriant in a man his age. But on the bench he wore the black robe and thick black eyeglasses that magnified a pair of rheumy, depthless black pupils. His hair remained permanently in disarray, as though he spent his time in chambers running his hands through it in constant despair at the human condition. Add the permanent scowl, which emphasized heavy brows, a prominent and aggressive nose, and the thin-lipped set of his mouth, and His Griseness was a formidable and vaguely menacing force that attorneys in court crossed at their own peril.

Nor was Mills entirely sanguine about the defense attorney who was now standing behind his desk fifteen feet to her left. Everett Washburn, somewhere north of seventy, white-haired, and in rimless glasses, wore a light tan suit that was at least one size too large. His shirt had had all of its wash-'n'-wear washed out of it. The tie was an orange-and-tan paisley design, three inches wide. His florid face was a creased dried apple, and his voice combined equal parts honey and whiskey. He had the teeth of a horse, yellowed with age, cigars, strong coffee, and wine.

Washburn, reportedly, had lost a murder trial once, but nobody remembered when. Mills herself had come down to court just to watch him perform several times and considered him tenacious, brilliant, ruthless, and unpredictable. A dangerous combination.

Plus, and this made it worse, he was a famous nice guy, a favorite of all the judges, bailiffs, clerks, and even prosecuting attorneys such as herself. He knew every birthday and anniversary in the building and reportedly spent in excess of fifty thousand dollars a year on political fund-raisers, charity events, and lunches.

And that didn't include his bar tabs.

But all of that being said, Mills liked her chances. Greater forces were at work here, the first of which was the fact that some benign karma had delivered her to San Mateo County. Her first seven years as a prosecutor had been in San Francisco and in spite of always being prepared beyond reason and never seeing a suspect who hadn't committed the crime of which he or she had been accused, she had only managed four jury trials-the rest had been pled out by her superiors for far less than any sentence they would have received in a fair world-and her record in those trials had been three hung juries and an acquittal. San Francisco juries, she believed because it was true, just didn't convict.

But San Mateo County!

She loved San Mateo County as it in turn hated its criminals-its vandals, gang-bangers, burglars, petty thieves, and murderers all alike. San Mateo County wanted these people dealt with and trusted the system to deal with them. As did Mills, whose parents she'd loved in spite of the mouthful of moniker they'd laid on her at birth, and who'd been murdered in a carjacking when she was sixteen.

So there was San Mateo County, essentially on her side. It was a miracle, given her record, that they'd hired her here. The interview had come on the particularly bad afternoon when the big fourth of her four losses had come in and she'd been in a quiet and reasonable fury in her interview with Falbrock-a real I-don't-give-a-fuck-what-happens mood. Karma again. She'd found herself launched into her take-no-prisoners tirade before she could stop herself, and much to her surprise and delight, after she gave her exceptions about people the state should put to death, Falbrock had smiled and said, "I don't know. I'm not so sure we shouldn't execute shoplifters. It's a gateway crime." And he'd hired her on the spot.

There was, next, her victim, Ron Nolan-a young, wealthy, clean-cut, handsome, and charismatic ex-Navy SEAL, recipient of three Purple Hearts, the Afghanistan and Iraq Campaign Medals, the Liberation of Kuwait Medal, the Global War on Terrorism Expeditionary Medal, the Meritorious Service Medal, and the Bronze Star. Mills, learning about the extraordinary life of Ron Nolan as she had investigated his death, had wondered more than once why she hadn't had the good fortune to have met him in her real life before he'd been murdered. She hadn't quite fallen in love with his memory, but she felt a fascination bordering on infatuation that she couldn't deny, and if she could avenge his senseless death in any way, she would consider it her privilege and duty.

Which brought her to her suspect.

She stole a glance over to where Evan Scholler stood. To her, he was the definition of scumbag, and it still galled her to see him in the courtroom now all cleaned up, with a dress shirt and tie and nice jacket. But she was convinced that by the time she was done, the jury would see beyond the façade that Washburn was so adept at creating, beyond the injured war veteran with the pretty and supportive girlfriend and the loyal parents, to the alcoholic and Vicodin addict whose incompetent leadership had led his squad of San Mateo County boys into their fatal ambush in Iraq.

As she waited for the judge to enter the courtroom, her heart was beating hard in anticipation. She was particularly keen to face some of the issues that were to be adjudicated before jury selection was to begin, the most important of which was going to be up first today. Mills had prepared a 402 motion requesting a foundational hearing to determine the admissibility of evidence related to post-traumatic stress disorder.

From the outset, it had been clear that Everett Washburn intended to use PTSD as an integral part of his defense of Evan Scholler. After all, the young man had endured exactly the kind of severe personal trauma during wartime that had produced volumes of literature on the subject. He'd also exhibited, to a host of witnesses over a substantial period of time, some, if not all, of the classic symptoms of PTSD.

So for a while early on, Mills had let herself get lulled into a grudging acceptance that PTSD, with its expert-witness madness, media appeal, and the emotional overtones it created, particularly in the context of the increasingly unpopular war, was going to be part of the trial.

And then one day it came to her that Washburn couldn't have it both ways. Either he could argue that Scholler had killed Ron Nolan but that PTSD was an extenuating circumstance or even a defense; or he could maintain that Scholler hadn't killed Ron Nolan at all, in which case he wouldn't, strictly speaking, need any other defense. If Scholler didn't do it, then it wasn't PTSD or self-defense or anything at all that had made him do it. So, believing that she had logic on her side-not that it always mattered-Mills had written her 402 motion. She wanted a full-blown hearing on the issue and was prepared to argue heatedly for it.

"All rise. Hear ye! Hear ye! The Superior Court, State of California, in and for the County of San Mateo, is now in session, Judge Theodore Tollson presiding."

Now she stood up and brought her eyes forward. Tollson had ascended to the bench. The clerk said, "You may be seated." After fifteen months, interviews filling thirty-seven binders, twelve pretrial written motions, three boyfriends, and the hint that the proper outcome would garner a six-figure book-deal offer, they were about to get on the boards at last.

Tollson glared down from the bench to both attorneys' tables, back over the small bullpen partition, and across the packed gallery. He looked in no way amiable. He straightened his back and pushed his glasses up to the ridge of his nose. "Mr. Washburn," he began. "Ms. Miille. Are you ready to begin?"

Both intoned, "Yes, Your Honor."

"All right, then, before we get down to it, let's spend a few moments in my chambers." And with that, he was up again, off the bench, and through the side door. To Mills, there was an absurd quality to the judge's formal entrance minutes before, followed by his near-immediate retreat back to his private office, but it was far from the only absurd moment she'd spent in and around courtrooms.

By the time she'd gathered her papers, Everett Washburn had come over to her table and, like the cultured gentleman that he was, waited for her to come around. She almost expected him to hold out his arm as a courtier might, for her to take it. But he merely bowed and let her precede him across the courtroom and to the back door, where the bailiff was waiting.

In Tollson's chambers, a faded green-and-gold pennant from the University of San Francisco took pride of place on the wall behind the large oak desk. A trophy case held more than a dozen ancient baseball and football trophies. A golf bag sat up against the bookshelf wall. A credenza sported a dozen or more framed photos of family members. Someone had arranged his diplomas, honors, and ceremonial pictures in a large rectangular pattern that covered the last empty wall.

The bailiff stayed until they were seated, then disappeared, leaving only the two lawyers and the judge. Tollson, in his robe and glasses behind his desk, nevertheless was his casual, out-of-the-courtroom self as he began. "So, I take it you two haven't reached a last-minute settlement, Mr. Washburn?"

The old lawyer sat back with his legs crossed-bemused, tolerant, good-natured. "That's correct, Your Honor."

"So what are we looking at for time?"

The question was asked of both of them, but Mills spoke up first. "The People's case, Your Honor, maybe four weeks, depending on cross. I've never worked with Mr. Washburn before, so I don't know how long he takes. I'll let him give you the estimate for the defense. I don't know about rebuttal." She paused, decided to hedge her estimate. "A lot will depend," she said, "on what you let in."

"We'll be getting to that here," Tollson said. "Jury selection?"

"Probably a couple of weeks, Your Honor. I would suggest a week of hardship, based on the length." She was suggesting that they first screen prospective jurors to see who could be with them, basically without pay, for what looked like a couple of months. The idea was that it was wise to eliminate the vast majority of prospective jurors whose employers would not pay for that length of jury service, or who could not otherwise handle the commitment. Only those who survived the initial screening would undergo the more complex and time-consuming questioning that would decide who would sit on the jury.

She went on, "So we've got twenty peremptory challenges each, and some hot-button issues such as the Iraq War and maybe some psych stuff, depending on your rulings. We use questionnaires, we should get our hardships done in three days or so, and the regular jury picked a couple days after that, give or take."

Tollson nodded. "Mr. Washburn? Sound about right to you?"

"Pretty close," he intoned. "I agree we should hardship first, and have the jury fill out questionnaires." He reached into his inside pocket and extracted a handful of paper, folded the long way. "And I just happen to have a proposed questionnaire for this case with me." Handing a copy to Mills and the judge, he added, "I'll need about a week for the defense, Your Honor."

Tollson, perusing the questionnaire, didn't look up, but said, "Motions?"

This time Washburn went first. "Limit the use of autopsy photos, Your Honor. They don't need a bunch of gory photos to prove this guy is dead."

"Your Honor," Mills said. "This guy, the victim, was in superb health. Somebody beat him to a bloody pulp. Not a robber or a burglar, but someone who hated him. The jury will need to see the savagery of the attack to appreciate that this was a personal killing."

Washburn shot back, "Too many autopsy photos might unduly prejudice the jury."

Tollson held up a hand. "Show me the photos you want to have admitted. I'll let you know which ones you can use before we start jury selection. Anything else?"

This was the moment. Mills produced copies of her 402 motion for Washburn and Tollson and said, "Mr. Washburn has discovered some stuff on PTSD, Your Honor, and has expert witnesses on his list. We would like a full-blown hearing on what you're going to admit before we get near a jury."

She wanted the judge to require Washburn to call his witnesses outside of the presence of the jury and have them testify under oath. Then the two sides could argue over whether such testimony was admissible, and the Court could rule on it. If the evidence was admitted, the same witnesses would have to give exactly the same testimony later in front of the jury.

If the Court refused to hold the hearing, testimony got heard for the first time with the jury present. In this case, if the Court then ruled that the testimony should not have been admitted, the only remedy was to instruct the jury to pretend they had never heard it. Popularly known as "unringing the bell," this was a notoriously ineffective way to deal with the problem.

Mills went into her pitch. "The defendant claims PTSD, Your Honor, but the defense here is that he didn't do it. If he didn't do it, then his state of mind is irrelevant. All this is going to do is put his war record and injuries in front of the jury to excite sympathy."

Washburn, leaning back with his legs crossed, ran a finger around in his ear. "My client was blacked out during the period where it appears Mr. Nolan was killed, Your Honor. First, evidence of PTSD will support his claim that he can't remember anything about this period. Second, if he did kill someone and there is a doubt about his mental state because he might have been in a PTSD episode, then he is entitled to that doubt. The crime would certainly be less than premeditated murder, maybe voluntary or even involuntary manslaughter."

This brought the first sign of Tollson's courtroom testiness. "I believe I understand the issues, Counselor." He spent a few more seconds looking over Mills's pages, then squared them and put them down with Washburn's questionnaire. "I'm going to allow two weeks for motions. Until we know what the jury will hear, we can't tell them how long the case will be, so jury selection starts two weeks from today. Sound good?"

It sounded good to Mills. She'd gotten her hearing. A good omen.

Tollson continued. "My staff will have the jury commissioner start to put panels together. Six court days for jury selection, including three days of hardship. Six weeks of trial or so if you get into PTSD, probably four at the outside if you don't. Let's get outside on the record and get to work."

20

Everett Washburn stood in the center of the courtroom, addressing his first witness in the hearing on PTSD. Dr. Sandra Overton was a frizzy-haired, earnest psychiatrist in her mid-forties. She wore a dark blue business suit with low heels. She had already recited her credentials and experience as a psychiatrist-i.e., a medical doctor-specializing in veterans returning from active combat. "In your experience with these veterans, Doctor," Washburn asked her, "have you run across a condition known as post-traumatic stress disorder, or PTSD?"

She almost laughed at the question. "It's pretty much all I work with."

"Can you tell the Court exactly what it is, then?"

"Certainly." She looked across at the prosecution table, where Mills sat with her hands folded in front of her, then around and up to where the judge sat on the bench. "It's pretty much what the name says. It's a psychiatric disorder that occurs after an episode of traumatic stress."

"A psychiatric disorder? Do you mean it's a mental illness?"

She shook her head. "That's not really a descriptive term. Legally it would qualify as a disease, defect, or disorder. Medically it is more a range of continuing symptoms and reactions experienced by someone who's endured a traumatic event. The key word being continuing."

"In what way?"

"Well, almost everyone who experiences a traumatic event has a reaction to it. Shock, or depression, or insomnia. But with PTSD, the reaction first tends to be more serious and second, it persists for a lengthy period of time, sometimes forever. It becomes a disorder, not a reaction."

"And what is a traumatic event, Doctor?"

Again, Overton shook her head. "There's no one definition. What's traumatic for one person might be relatively innocuous to another. But certainly traumatic events would tend to include military combat, serious accidents, crimes such as rape, natural disasters, terrorist incidents, and the like."

"Military combat?"

"Yes. Very commonly. Although the disorder wasn't much studied until after the Vietnam War. Before then, when people talked about it at all, it was usually called Da Costa's syndrome. But since Vietnam, estimates of soldiers with combat experience suffering from PTSD have run as high as thirty percent."

"And what are some symptoms commonly associated with PTSD?"

"One of the main symptoms is a reliving of the original traumatic experience through either flashbacks, or in nightmares. Beyond that, there's insomnia, of course, and a sense of disconnect with life. Then depression, memory and cognition issues, abusive and self-destructive behavior. A huge range of personal and societal problems, actually."

"Doctor, you referred to abusive and self-destructive behavior. Could this include alcohol abuse?"

"Yes, of course."

"And memory issues? Do you mean blackouts?"

"Yes. Blackouts are not uncommon, especially if coupled with excessive drinking or drug use or both."

"I see." Washburn acted as though he were hearing all of this for the very first time in his life. Now he moved a step closer to his witness. "Doctor, is there a physical component to PTSD? Or is it simply what a layman might just call a mental problem?"

As Washburn intended, this question kept Overton from becoming lulled in her relatively straightforward recounting. This hearing hadn't been his idea, but since he was in it, he was dry-running her to play to the jury's sensibilities when and if she testified at trial. She sat up stiffly, her expression defiant. "Absolutely not! In the first place, a mental problem is a real problem. It's as real as a broken leg. Secondly, with PTSD there is measurable altered brain-wave activity, decreased volume of the hippocampus and abnormal activation of the amygdala, both of the latter having have to do with memory. The thyroid's affected, as is production of epinephrine and cortisol. I could go on, but suffice it to say that there are many, many physical and neurological changes and reactions associated with PTSD."

"I see, Doctor. Thank you," Washburn said. "Now, have you had an opportunity to interview and examine my client, Evan Scholler, with regard to PTSD?"

"I have."

"What were your findings?"

"I found that Mr. Scholler clearly suffers from the disorder. His memory, particularly, seems to be compromised, and this symptom has been aggravated by a traumatic brain injury he suffered in Iraq in August of two thousand three. He suffers from frequent migraine headaches. Beyond that, he has reported the experience of blackouts and episodes of rage, shame, guilt, and depression. Sleeping has been a consistent problem. Finally, he has spoken to me about a tendency to abuse alcohol and other painkilling drugs, such as Vicodin. All of these symptoms are not only consistent with PTSD, they are diagnostic of it."

"And what about the physical changes you've described-to the amygdala and hippocampus and so forth? Did you test Mr. Scholler for these?"

"Yes, I did."

"What were your findings?"

"I found decreased cortisol with increased epinephrine and norepinephrine levels. Together, these hormone levels impact the body's fear response and the startle reflex, both of which I found to be in the abnormal range with Mr. Scholler."

"And your conclusions as a medical professional? Does Mr. Scholler suffer from PTSD?"

Dr. Overton looked over at the defense table where Evan sat. "Yes. Unremitting and severe PTSD. Without a doubt, in my professional opinion."

"Without a doubt. Thank you, Doctor." Washburn inclined his head in a courteous bow. Facing Mills, he turned his palm up. "Your witness, Counsel."

"Dr. Overton," the assistant district attorney began, "you've testified that blackouts were not uncommon among people with PTSD. Were you saying that PTSD causes blackouts?"

"Not exactly. I believe I said that blackouts were common, especially when drugs or alcohol were part of the picture."

"Oh, so PTSD does not in itself cause these blackouts, is that true?"

"Well, in a sense you can say that-"

"Doctor, I'm sorry. It's a yes or no question. Does PTSD cause blackouts?"

Overton frowned, glanced over at Washburn. "They are commonly associated with PTSD, yes."

"Again, Doctor, not my question. Does PTSD cause blackouts?"

Washburn cleared his throat and spoke from his table. "Objection. Badgering."

Tollson didn't take two seconds to make up his mind. "Overruled." He leaned over to speak to the witness. "Please answer the question, Doctor."

Mills jumped right in. "Would you like me to repeat it?"

Tollson transferred his scowl down to her. "Can the sarcasm, Counselor. Doctor, answer the question, does PTSD cause blackouts?"

"Yes, there are some reports of that."

"Some? How many of these reports are you personally familiar with?"

"I'm not sure. To the best of my recollection, a few."

"A few. All right. And do any of these few reports with which you're familiar speak to the duration of any of these rare PTSD blackouts?"

From behind her, Everett Washburn rumbled forth again. "Objection. Assumes facts not in evidence. The doctor's awareness of only a few reports on blackouts doesn't mean that the blackouts themselves are rare."

"Sustained."

But Mills came right back at Overton. "Doctor," she said, "do any of these few reports with which you're familiar speak to the duration of any of these PTSD blackouts?"

"Yes, they do."

Mills had her own expert witness on this topic, although she wasn't sure she was going to use him. In any event, she'd done her homework and knew her facts. "Doctor," she said, "isn't it true that these PTSD blackouts tend to be of very short duration?"

"Yes."

"Along the line of forgetting where you put your keys, for example?"

"I'm not sure I understand what you mean."

"You put your keys on your kitchen counter, for example, then are struck with a vivid post-traumatic flashback. When it's over, you can't remember where you placed your keys. That's the kind of PTSD blackout discussed in the literature, is it not? In other words, a memory lapse of relatively short duration?"

"I think so. Yes."

Mills walked back to her table, took a drink of water. Turning around to the witness, she asked, "Doctor, are you aware of any PTSD blackouts that extended for more than a day?"

"No. I've never heard of that."

"How about an hour?"

"No, I don't think so."

"Ten minutes?"

"Somewhere in that realm, I believe. The flashback, usually, tends to be intense but short-lived."

The gallery might not have understood exactly what Mills was getting at with this questioning, but the doctor's answer of ten minutes sent a buzz through the room. Galvanized by it, the prosecutor moved in closer to the witness. "Doctor, you've also testified about blackouts that are coupled with excessive alcohol and drug use, or both. Would you characterize these blackouts as caused by PTSD, or by the alcohol and/or drug use?"

"Well, they're related. The PTSD exacerbates the abusive behavior."

"But it is the drinking or the drug use that causes the actual blackouts, is it not?"

"I don't think we can say that."

"Well, Doctor, alcohol and drug use by themselves can cause blackouts, correct?"

"Yes."

"And this is a fairly common and well-documented phenomenon, is it not?"

"Yes."

"But blackouts associated with PTSD are both rare and of short duration, isn't that true?"

Washburn knew that this was a compound question, and hence objectionable, but saw nothing to gain by further interruption.

"Yes."

"So," Mills continued, "if you had a blackout for an extended period of time, Doctor, say a couple of days, there is scientific evidence that it could have been caused by alcohol, and no scientific support for the suggestion that it was caused by PTSD alone, correct?"

"Yes."

"Thank you, Doctor. Now, you've said that Mr. Scholler told you that he had abused both alcohol and Vicodin, isn't that so?"

Clearly frustrated now, Overton had come forward in the witness chair, her hands on the balustrade of the box. "That's right."

"Did he also tell you, Doctor, that he had abused alcohol in Iraq before one of these so-called traumatic experiences?"

"Your Honor!" Finally Washburn was moved to rise to his feet in outrage. "I object to Counsel's characterization. Most of us humans would consider sustaining a severe head wound during a rifle and grenade attack on foreign soil in defense of our country a traumatic event. There is nothing spurious or so-called about it."

This brought the gallery noise now to a full hum, and Tollson dropped his gavel for the first time. Without a word, he glared around the room until all the noise had ceased.

Mills broke the silence. "I'll withdraw the word so-called, Your Honor." But she wasn't backing down. "Perhaps the court reporter can reread my question without the offending word."

Tollson looked down over the bench at his reporter and nodded.

The woman pulled the tape up and read, "Did he also tell you, Doctor, that he had abused alcohol in Iraq before one of these"-a pause-"traumatic experiences?"

Overton, her mouth set, shot a glance at Washburn, then came back to her tormentor. "Yes, he did."

"In other words, Mr. Scholler's alcohol abuse preceded his PTSD, and by itself was capable of producing extended periods of memory blackout, isn't that so?"

"Apparently," Overton snipped out.

"That would be a 'yes,' then, is that correct?"

Through all but gritted teeth now. "Yes."

"And Mr. Scholler told you that the particular blackout after the death of the victim, Ron Nolan, lasted approximately four days, isn't that true?"

"Yes."

"Thank you, Doctor," Mills said. "No further questions."

Lawyer and client sat knee to knee in a holding cell behind the courtroom during the lunch recess. Outside their two small wired windows, it was a bright and sunny day. Their view included a small city of media vans that had set up out in the parking lot. Washburn's mouth was full of liverwurst on rye, but it didn't shut him up. "It doesn't matter," he said. "What's important is she established the PTSD. Now we've just got to make sure we get Tollson to let it in. You gonna eat your pickle?"

"No. I'm not holding anything down. You go ahead."

Washburn stopped chewing. "You nervous?"

"Why would I be nervous? On trial for murder and all."

"You've got to keep your strength up." Washburn grabbed the pickle and took a bite of it. After he finally swallowed, he sipped from his bottled water and cleared his throat. "But we need to talk about what we do if he doesn't allow it."

"You mean Tollson?"

A nod. "And the PTSD. We get that, we're going to have the jury on our side. They're going to see what happened in Iraq, what you've been through…it's decent odds they don't convict. On the other hand, this morning I was hoping Ted would rule to let the PTSD in without a hearing, but he didn't do that. Which means he's thinking about it, maybe he thinks it's bogus."

"Why would he think that? He lost a foot himself."

"Yeah. But remember, whatever else happened to him, he didn't get any PTSD from it. Which means, maybe, that to him it's just a bunch of mumbo-jumbo from weak-ass lesser beings. Or shyster lawyers like me."

"Is this supposed to cheer me up?"

Washburn shrugged, took another monstrous bite of his sandwich. "Just running down the possibilities. Look," he went on, "don't get down about this. Half the world's on our side."

"Which means half isn't."

"But we don't need half. We just need one out of twelve. So get over it. The fact is you're a wounded veteran who's the victim of an extremely-now-unpopular war. The more we get the war in as a villain, the more we got Nolan as a victim of the war himself. Without the war, nobody would have been killed. Your guys in Iraq, Nolan, nobody. Plus we got our big surprise when you testify, which will sway some hearts and minds, since it brings it all around and gives them an alternative theory to think about. But all that's counting on the PTSD, without which it's a different ball game." Taking another drink of water, Washburn swished it around. "So the question is, Tollson doesn't let it in, we might want to talk about a plea."

Evan closed his eyes for a second, then shook his head. "No way."

"Wait. Before you-"

"Everett, listen. Mills's last offer was forty to life. I can't do forty."

Washburn looked at his client. He'd been here with other clients more times than he cared to remember, but it never got easy. Tollson's ruling to hold a hearing on the PTSD evidence was unexpected and perhaps ultimately disastrous. Washburn had truly believed that his argument in chambers, casually though he had phrased it, would carry the day and that Tollson would allow the PTSD evidence at the trial.

But now, possibly, that wasn't to be the case.

Washburn wasn't giving up. It wasn't in his nature to do that. But he had to get it through to Evan that they might, after all, lose. "I'm sure I could get Doug Falbrock to drop the gun," he said. Any use of a gun in the commission of a murder in California added an automatic twenty-five years to the sentence. "Plea to a second. Get them down to, say, twelve to life."

Evan was sitting back, arms crossed. "Wasn't it you who said the immortal words 'Anything to life equals life'?"

"I was being glib," he said. "You'd be a model prisoner, out in the minimum."

"Still," Evan said, "twelve years."

Washburn unfolded his hands, took his last bite of sandwich. "I'm just saying"-he chewed a couple of times-"I'm just saying you might want to think about it."

21

Washburn's plan to get the war into the trial at every opportunity was behind his decision to call Anthony Onofrio as his next witness. Onofrio had come home six months ago and had immediately contacted Washburn's office asking if and how he could help with Evan's defense. As an older veteran, a father of three who'd left his Caltrans job and home in Half Moon Bay to do his duty, as well as the lone military survivor besides Evan in the Baghdad firefight, he was in a unique position to recount the traumatic event that was at the heart of this hearing.

But no sooner had the clerk sworn in the thick-necked, friendly looking workman than Mills stood to object. "Your Honor, the last witness has already testified and established to the People's satisfaction that Mr. Scholler suffers from post-traumatic stress disorder. We are willing to concede that point, though we still contend that it's irrelevant. The People fail to see what probative value, if any, this witness can bring to these proceedings. He wasn't even here in the United States during the time of the murder and his testimony can have no bearing on the defendant's guilt or innocence."

Judge Tollson leaned back in his chair on the bench, his eyes nearly closed. He inclined his head a quarter of an inch. "Mr. Washburn?"

"Your Honor, this witness is foundational. There can be no post-traumatic stress without an original trauma, and Mr. Onofrio was an eyewitness to the trauma that Mr. Scholler experienced and to the effects of which Dr. Overton just testified. We did not simply hire a rent-a-shrink to come in here and invent a condition following an event which never took place. Without the event, there can be no condition."

For a long moment, and against all reason, since he was basically correct, Washburn lived with the agonizing possibility that Tollson was going to dismiss his witness and call an end to his entire line of questioning.

He also had time to reflect that Mills's objection made little sense. In theory, by granting this hearing without the presence of a jury, Tollson had provided her with a bonus-she'd get to see all of his evidence before he could present it at trial. She should want to hear everybody he brought in so she'd, in effect, have two chances to take them apart-now and when the jury had been impaneled.

But then, he realized, she was probably running mostly on nerves and adrenaline herself. And the fact remained that if Tollson did side with her and preclude Onofrio from testifying, the same objection and rationale might get some traction regarding calling his following witnesses as well, and that would truly be problematic.

Tollson ended the suspense. "Ms. Whelan-Miille," he said, "this is a hearing. That means we get to hear what people have to say before we get to trial. Mr. Washburn is right. This witness's proposed testimony is foundational to the question of trauma. The objection is overruled. Mr. Washburn, you may proceed."

Trying to hide his sigh of relief from the Court, Washburn leaned his head forward, the merest hint of a bow. "Thank you, Your Honor." He turned to the witness. "Now, Mr. Onofrio, can you please tell the Court about your relation to Mr. Scholler?"

"Until he was wounded, he was my squadron leader in Iraq in the summer of two thousand three."

Over the next few minutes, Washburn walked Onofrio through the makeup of the squadron and its general duties as a military convoy unit, then came back to the main thrust. "Mr. Onofrio, you've said that Mr. Scholler was your squadron leader until he was wounded. Would you please tell us how that came about?"

"Sure. We were escorting Ron Nolan to a meeting with-"

"Excuse me," Washburn said. "You were escorting the same Ron Nolan who is the victim in this case?"

"Yes."

"He was with you in Iraq, was he?"

"He came and he went, but basically, yes. He was working for Allstrong Security, which was handling the Baghdad Airport and doing other work over there. It was one of our regular jobs driving him where he needed to go."

"All right, so he was with your convoy on the day the Mr. Scholler was hit?"

"Yes, he was." Onofrio sat back in the witness chair and basically told it as he remembered it. The tension on the city's streets, Nolan firing on the purported suicide car, the discovery of what it had really been and who had been in it, the rock-throwing and then the sustained attack from the surrounding buildings and rooftops. "Just after it all started, though, the actual rifle firing and the first RPG, we had a chance where maybe we could have gotten out, but the lieutenant wouldn't give the order to pull out until we'd gotten the men who'd already been hit into one of our vehicles."

"He wasn't going to leave anyone behind?" This was important information, carefully rehearsed. Washburn wanted it to be clear in the jury's mind, when it came to it, that Evan was in grave danger, in the thick of it, and had acted nobly.

"No, sir. So he ran up to the lead car, which was still smoking, and tried to get out the guys who'd been hit."

"He did this while you were under heavy fire?"

"Yes, sir. But then the second car took a hit and a couple of the other guys went down, so it was obvious there wasn't going to be any chance for any of us to get out if we didn't move pretty quick. So Nolan kept firing through the roof and had me drive up to where Evan was pinned down. He still wanted to try to carry some of the guys out if he could get to them, but an RPG went off somewhere behind us and next time I looked over, he was down."

"What had happened?"

"He was hit by shrapnel, or something. In the head. There was blood everywhere. I thought he was dead. I thought we were all dead."

"All right, thank you, Mr. Onofrio. I'm glad you made it home alive." He half turned back to Mills. "Your witness."

Mills saw this as a no-win cross-examination and almost passed the witness, but decided she had nothing really to lose if she just took the judge's advice and heard what the man would say. No jury was listening now, and maybe she'd strike some promising vein that she could mine when she had him again during the trial. If Washburn was going to call up what she considered these largely irrelevant witnesses, she might as well take the opportunity to go fishing with them.

"Mr. Onofrio," she began. "First let me say that I, too, and all of us in the courtroom, are grateful that you made it home alive. Thank you for your service to our country."

Shrugging, embarrassed, Onofrio mumbled, "You're welcome."

"One of the things I was struck with in your testimony was the fact that you were not sent over to do convoy work. Did I get that right?"

Onofrio nodded. "That's right. We were supposed to be doing maintenance on heavy equipment transport vehicles, but when we got to Kuwait, they weren't there yet, so they farmed a bunch of us out as convoy units."

The questioning was getting far afield, but Washburn took his own advice and let it go. Better to hear the answer now than find out for the first time in front of a jury about some land mine in the witness's testimony.

"How did you feel about that?" Mills asked.

He smiled, either at her naïveté or at the question. "They didn't ask us. It wasn't like it was negotiable."

"No, I understand that. But the convoy work at the front, wasn't it more dangerous than the work you'd originally been scheduled to do?"

"Only by about a factor of ten. Maybe twenty."

"So? Much more dangerous, then?"

"Yes. Way more."

Mills paused, and kept casting. "Didn't you and the other men object to that?"

"Sure. But what were we going to do?"

"I don't know, Mr. Onofrio. What did you do?"

"Well, we complained about it to Lieutenant Scholler. We asked him to talk to the base commander and see if we could get transferred back to our regular unit."

"And did he do that?"

"He tried, but he couldn't get in to see him. Not in time, anyway." Then, trying to be helpful, Onofrio added, "He was going to see if Nolan could pull some strings with the brass, but again, that didn't happen in time."

"Mr. Scholler thought that Mr. Nolan might be able to pull some strings for him. Why was that? Were they friends?"

"I'd say so, yeah."

"Close friends?"

"Well, I don't know." He shrugged again, then unwittingly dropped his bomb. "Drinking buddies, anyway."

The words had barely registered as significant when Mills heard Washburn all but erupt behind her. "Objection! Irrelevant!"

But this was the purest bluff. No one in the courtroom thought the answer was even remotely irrelevant, and Tollson sealed that opinion in an instant. "Overruled."

Mills kept her mouth tight to avoid telegraphing her pleasure. "Thank you, Your Honor," she said. Then, back at the witness. "Mr. Onofrio, when you characterize the friendship between Mr. Nolan and Mr. Scholler as that of drinking buddies, do you mean that they literally drank together?"

Onofrio, picking up the panic in Washburn's tone, flashed a quick look over to the defense table. "Occasionally, I think, yes."

"Do you think they drank together, or did you see them drinking together?"

"Yes, they drank together."

"Mr. Onofrio, is there a rule in the military against drinking on duty, or in a war zone?"

"Yes."

"But Mr. Scholler broke this rule?

"I suppose so."

"You witnessed this yourself, personally?"

"Yes."

"How many times?"

"I don't know exactly. A few."

"More than five times?"

"Your Honor," Washburn said. "Badgering the witness."

"Overruled."

Mills nodded. "More than five times, Mr. Onofrio?"

"Maybe."

"More than ten?"

"I didn't count the times," Onofrio said. "I really couldn't say for sure."

"Once a day? Once a week? Once a month?"

"A few times a week."

"All right, then. Did Mr. Scholler drink to excess?"

"Objection," Washburn sang out. "Calls for a conclusion."

"Overruled," Tollson said. "A lay witness can give an opinion as to sobriety."

Mills slowed herself down. She was close to something very good here and didn't want to blow it. "Did Mr. Scholler ever appear drunk to you when he was on duty?"

"Objection. Conclusion."

"Sustained."

Mills tried again. "Did you, personally, ever see Mr. Scholler intoxicated after he'd been drinking with Mr. Nolan?"

Onofrio threw another worried glance over to Washburn and Evan. "Yes, ma'am."

"And by intoxicated, do you mean that you heard him speak with slurred speech or have trouble walking?"

"Yes, ma'am."

"Mr. Onofrio. When was the last time you remember noticing these things-defendant's slurred speech or the uncertain walk?"

Onofrio looked down at his lap. "His last night over there."

"The night before this incident at Masbah, is that what you're saying?"

He blew out and slowly nodded. "That's what I'm saying."

"Mr. Onofrio, on the day the shooting started, when Mr. Scholler was leading the convoy that got ambushed, did he appear to be intoxicated?"

"No, ma'am," Onofrio answered strongly.

Mills paused, then came out with it. "But he certainly was hung over, wasn't he?"

Stephan Ray, the language and recreational therapist from Walter Reed, nodded enthusiastically at Washburn from the witness stand. "He is definitely one of the success stories. He worked very hard and was also very lucky. But his success doesn't take away from the seriousness of his injuries. There was a real question for at least a couple of months as to whether he'd live, and then a further question about how completely, if at all, he'd recover."

"What were the areas most affected?"

"Well, most obviously affected were speech and memory, although there were also some coordination issues early on that cleared up more or less on their own."

"So how did these memory problems manifest themselves?"

"Well, at first, just after the surgery, of course, he remained pretty much continually unconscious for three weeks-in fact, I believe they kept him in an induced coma until they were confident that he'd gotten sufficiently well to handle consciousness, although I'm not a hundred percent sure of that. I wasn't on his medical team. I'm not a doctor. But when I first encountered Evan, he had what I'd call severe memory and cognition issues. He didn't know where he was, he thought I worked for the CIA, he didn't know what had happened to him exactly. But mostly, he didn't have a vocabulary."

"No vocabulary at all?"

"At first, very little. But then over time, as the healing progressed, he recovered the use of most common words."

"Was this a natural event?"

"To some degree, yes. But a lot of it was a matter of training the brain again, or relearning what he'd once known. We used flash cards, just the way you would if you were learning a new language, and Evan made really remarkable progress, especially compared to many others of our patients who never recover their ability to talk or to reason."

Washburn nodded. "Even with all this progress, how long did Evan remain in therapy with you at Walter Reed?"

"Nearly six months."

"Six months. And during those six months, while he was progressing so well, did he also suffer from blackouts?"

"I'm not sure exactly what you mean by blackouts."

"Periods when he could not recall what he'd done or where he was. As you described when he'd first come out of surgery."

"Ah. Well, yes. They were not infrequent."

"Not infrequent. So they were common?"

"Yes, but that's always to be expected in a case of traumatic brain injury."

"And how long could a blackout period last?"

"Again, it would vary. I remember a time with Evan, this was after three or four months of therapy, when he woke up one morning convinced that he was in Baghdad. He didn't understand why there was snow outside when it was summer in Baghdad. I thought it was a serious enough setback to bring it to the attention of the doctors, but he woke up on the third morning and was fine."

"He didn't think he was in Baghdad anymore?"

"No. He knew he was in Walter Reed. He picked up just where he'd left off in terms of his recovery."

"But for those three days, he was different?"

"As far as he was concerned, he was in Baghdad."

"I see. Now let me ask you this, Mr. Ray. After Evan woke up, realizing that he was in Walter Reed and not in Baghdad, did you ask him about his memory of the time he'd imagined he was in Baghdad? In other words, did you ask him about his memory of his past three days?"

"Yes, I did. He remembered none of it."

"None of it?"

"None. In fact, he thought I was playing a joke on him. Those days were just gone, as though he'd never lived them."

"Thank you, Mr. Ray. Ms. Whelan-Miille, your witness."

"Mr. Ray, did Ron Nolan visit Mr. Scholler at Walter Reed?"

"Yes, he did. I met him on that occasion."

"Did you play a part in their conversation?"

"Not really, no."

Mills went right on. "Would you describe Evan's demeanor after Mr. Nolan left?"

"He was very upset and angry to the point of tears. I remember distinctly that later he developed a migraine headache so severe that he had to be sedated for a time."

Mills stood still for a moment, wondering how far she could push this point. Surely, if she got Ray at trial, she could take Evan's anger and jealousy further, but today she didn't want to overplay her hand. She knew he'd be there for her if she needed him at the trial.

"Thank you, Mr. Ray," she said. "No further questions."

Because she was on the People's witness list, Tara wasn't allowed in the courtroom. Now, at five-fifteen, in the jail's visiting room, she bit her lip and tried to keep up a brave smile every time she met Evan's eyes.

And then they were at the window that would be theirs for today, one chair on either side of it, the hole in the Plexiglas through which they had to talk. It was by now all so familiar, and still so awful. But Tara wasn't going to concentrate on the bad. She could take her cues from Eileen, upbeat and positive. "I saw you on TV in a coat and tie."

"I thought I told you. I get to look like a regular person in court."

"You look like a regular person now."

"If you took a poll, I bet most people would say I look like a regular jailbird, what with the jumpsuit and all. What'd they say about things on TV?"

"They said it was a mixed day. What do you think?"

He shrugged. "There's no jury yet, so really none of this counts, but it didn't feel too mixed to me. This prosecutor woman is pretty tough. She's pounding on the drinking theme."

"Why does she want that so much?"

"Everett says it's all positioning for the jury. They're not going to be disposed to like or believe a drunk. Whereas if I'm suffering from PTSD and blacking out, then I'm a wounded war veteran with a mental illness who's caught in a terrible situation he didn't really create, and the sympathy flows like honey. I know, it's a little cynical. But the point is, if we get the PTSD, then to some extent it explains the drinking. Not that I'm using that as an excuse for myself. The drinking, I mean." He lowered his gaze for a moment. "I still don't know what got into me that night, why I didn't just go home with you."

"Did it ever occur to you that maybe what Mr. Washburn's arguing is actually true and not cynical after all? That your physical brain wasn't healed yet so you weren't completely rational-your cognitive powers just weren't all there. And you put PTSD on top of all that, I don't see how a jury could ever get to first-degree murder."

"Well, let's hope." He fell silent, seemed as if he were about to say something, but held it back.

"What?" she asked.

He drew a breath and let it out. "At lunch today, Everett said that I might want to start thinking about if I wanted to take a plea bargain after this hearing phase if the judge doesn't let in the PTSD."

"A plea bargain? Why? He's been saying all along we were going to win."

"Apparently it's not such a sure thing without the PTSD."

"Well, why wouldn't the judge let it in?"

"I don't know. Everett didn't even think it would be an issue until Tollson ordered the hearing this morning. But now it is, and if we lose it…" He lifted his shoulders.

"What would you plead to?"

"Second-degree murder. Everett thinks he could talk them into dropping the gun charge."

"So how long would that be?"

He hesitated for a beat. "Twelve to life."

Tara's head dropped as though she'd been struck. After a minute she looked up again, her eyes brimming with tears. "If you do plead, isn't that admitting you did it?"

"Yeah."

"You can't do that."

"No, I don't think I can."

"You don't remember anything about those four days?"

"Tara, we've been over that a thousand times."

"Well, maybe the thousand and first…"

He shook his head. "It's not going to happen. I remember going to Ron's after I left you. I remember hitting him and him hitting me back, both of us getting into it. Then nothing until I woke up in jail. I'm sorry. I'm just so sorry, but there's nothing there. It's like I disappeared into those damn bottles."

Tara bit down on her lip. "You can't plead that you did it, Evan. We can't let ourselves accept we're going to get beaten here."

"That's what I was thinking too. But if we do-get beaten, I mean-then I'm going to be in prison for a lot longer than twelve years."

"I'd wait, Evan. I really would."

"I could never ask you to."

She was rubbing her hand back and forth over her forehead. "God God God."

"I don't think He's listening," Evan said.

Over the next two and a half very tedious days of technical testimony, Everett Washburn called two psychologists who had administered batteries of tests to Evan over the previous several months. Personality tests, neuropsych tests, intelligence tests, perception tests, concentration tests, memory tests. Both agreed with Dr. Overton that Evan clearly suffered from symptoms that were consistent with PTSD. Washburn called several members of the Redwood City Police Department who had worked with Evan and who had specific recollections of times when he'd exhibited PTSD symptoms in their presence-particularly inappropriate laughter and speech aphasia-an overlong pause in the stream of his conversation. Lieutenant Lochland described his irrational anger and some of the complaints he'd fielded about Evan related to the defendant's work in the DARE program.

Now it was Friday, the lunch recess was over, as was the PTSD hearing, and Judge Tollson had both attorneys back in his chambers. In contrast to his usual out-of-courtroom affability-perhaps worn down by the gravity of the issues, perhaps chastened by the enormity of the decision he had to make-today the judge sat all the way back in his chair, his arms crossed over the robe at his chest. Still and expressionless, he waited until both Washburn and Mills had taken their seats and the court reporter set up her machine.

Finally, he looked over, got a nod from her, and cleared his throat. "Mr. Washburn," he said, "for the record, have you called all your witnesses related to the PTSD evidence that you're seeking to place before the jury?"

"Yes, Your Honor."

"Ms. Miille, do the People have any evidence they wish to offer on this issue?"

"No, Your Honor."

"All right. And before I make my ruling on the People's four oh two motion, do you have any comments that you'd like to make?"

"Just what I said at the beginning, Your Honor. That my witnesses proved beyond a doubt that Mr. Scholler suffers from PTSD and this in turn supports his claim that he can't remember anything about this period."

Tollson turned to the prosecutor. "Ms. Whelan-Miille? Comment?"

"After hearing all the evidence, Your Honor, the People still believe the entire issue of PTSD is irrelevant and highly prejudicial to this case. The defendant's position here is that he didn't commit the murder. So he's not arguing a quarrel with the victim, or heat of passion, or even self-defense. The only possible result of allowing this PTSD evidence will be to create sympathy for the defendant with the jury."

Tollson sat still for another few seconds, then came forward and rested his arms on his desk, his hands clasped in front of him. "Mr. Washburn, I substantially agree with Ms. Whelan-Miille. I've given this matter long and hard thought in terms of weighing prejudice against probative value. And my ruling is that I'm not going to allow this PTSD evidence."

Washburn, staggered by the ruling, brought his hands up to both sides of his face, then rested them on the side of his chair while he got control of his emotion. "Your Honor," he said, "with all respect, this evidence needs to be admitted."

"For your purposes, perhaps, but not as a matter of law, Counselor. It's inadmissible because it has no relevance to the evidence related to Mr. Nolan's murder. Beyond that, it has the strong possibility of wasting a lot of time and confusing the jury. If I let in your expert testimony on psychological issues, the jury is necessarily going to have to hear about a lot of hearsay which would not otherwise be admissible, would not be subject to cross-examination, and would be likely to prejudice the prosecution by exciting sympathy for the defense and a dislike of the victim. When you balance that against the entirely speculative argument that the defendant might have been undergoing an episode of PTSD when he killed the victim, which by the way he entirely denies doing, the whole thing is just designed to turn this trial into a circus. Until you tell me your client or somebody else is going to testify to a self-defense claim now at this eleventh hour, this evidence does not come in."

"Your Honor." Washburn uncrossed his legs and moved to the front of his chair. Normally unflappable, the old barrister had broken a sweat over a flush during the judge's monologue. He wiped at his neck with the handkerchief from his jacket pocket. Looking over at the court reporter, he sighed in pure frustration. "Of course, this guts the defense, Your Honor, and I hope the Court will keep an open mind toward reconsideration as the case comes in."

"Of course, Counsel." Tollson at his most brusque. "This Court's open-mindedness is legendary."

22

"Ladies and gentlemen of the jury." Today-a Wednesday, two weeks after the PTSD ruling-Mills wore a subdued blue suit over a white blouse, no jewelry, low black pumps. Jurors knew she had a government salary and she was expected to dress in a "lawyerlike, ladylike" fashion. Her presentation was supposed to be professional. Any sign of flamboyance might be taken for disrespect, or even arrogance. Representing the People of the State of California before this jury of seven men and five women, she wanted nothing to call any undue attention to herself. Neither aggressive nor hostile, she was to be the plainspoken voice of truth and reason, recounting the prosecution's case.

Starting in the middle of the courtroom, Mills walked a short course up to the foreman's position, along the front row of the jury panel, and then, after a quick stop at her desk to turn the page in her binder and check her notes, back to where she'd begun. She did this as a kind of timing device to slow herself down; she also believed in making eye contact with each and every member of the jury. The message was clear-she was leveling with them, person to person, looking them right in the eye and telling them the unblinking truth.

"Good morning. As you know from the questions you answered during your selection as members of this jury, we'll be here for the better part of a couple of weeks hearing the evidence that proves that this defendant"-here she turned and pointed to Evan-"murdered a man named Ron Nolan. The defendant hated Ron Nolan. There's no doubt about it. He thought Ron Nolan had stolen his girlfriend. He hated him for being a business success in Iraq, where Defendant had been injured while serving in the Army. He blamed Ron Nolan for the injuries he'd received, injuries that actually occurred because Defendant, after a long night of drinking, led his men into an ambush in Iraq. Evan Scholler hated Ron Nolan.

"He made no secret of it. He told his parents, he told his girlfriend. He hinted as much to some of the police officers with whom he worked. He stalked Ron Nolan by illegally using police information to keep track of his whereabouts. He broke into Ron Nolan's house and tried to frame him for the killing of two Iraqi citizens murdered in the United States.

"Finally, the evidence will show that Defendant carefully planned and premeditated this murder. Several days before his attack on Mr. Nolan, Defendant, while on duty and in uniform as a policeman for the city of Redwood City, contacted a locksmith and tricked him into letting him into Mr. Nolan's townhouse. The locksmith admitted Defendant into the home. In a subsequent search, the FBI found planted in that house evidence related to the murders of Ibrahim and Shatha Khalil. Unfortunately for Defendant, his plan failed when Ron Nolan found the evidence that was planted and called the FBI, who then discovered Defendant's fingerprints in Mr. Nolan's home.

"The defendant hated Ron Nolan, and when he couldn't frame him for murder, in a drunken rage he went to Ron Nolan's house and killed him. The actual cause of death was a single gunshot wound to the head. Not just to the head, mind you, but fired from a gun held just inches from the skull.

"But Defendant didn't just murder Ron Nolan. First, he administered a savage beating. He broke his jaw. He broke his wrist. He broke at least two of his ribs. He left bruises and cuts and injuries over a lot of Ron Nolan's body. The evidence will show that this defendant hated Ron Nolan, and he killed him.

"But if that is what happened, how do we know he did it? Well, for openers, he told his girlfriend he was going to. He left his fingerprint on the murder weapon found by the body. And within hours after Nolan's body was found, the police found Defendant cowering in his apartment, Ron Nolan's blood still on his hands and clothes, the injuries he'd received in the fight still unhealed, and the murdered man's blood still on the brass knuckles he used to inflict the beating I've described.

"This defendant hated Ron Nolan and he killed him. And he killed him in a way that the law defines as first-degree murder. At the close of the evidence in this case, I'll stand before you and that is the verdict for which I will ask."

Mills was doing it by the book, dispassionately laying out the elements of the People's case. Like all prosecutors, she would consistently refer to the deceased as "Mr. Nolan," and later, sometimes, even Ron, to humanize him to the jury-a living, breathing human being whose life had been prematurely taken from him. By the same token, Evan Scholler would forever after remain "the defendant," or even, less familiarly, simply "Defendant"-a clinical term denoting the place in society to which he'd fallen. A nameless, faceless perverter of the social order who deserved only the most cursory acknowledgment as a human being and no sympathy.

In the center of the courtroom one more time, she paused, noting that Washburn had let her go on this long without objection. It was a calculated technique, she knew, to signal to the jury that, in spite of this apparently damning litany condemning the defendant, the defense remained confident-nay, unconcerned by these allegations.

Letting out a theatrical sigh, Mills again allowed herself a glance over to the defendant's table, but this look communicated sadness and resignation. No one would have enjoyed putting on the kind of recitation she'd just completed. The human condition was sometimes a terrible burden. Mills had done her disagreeable though imperative job, hoping to bring justice to the evil defendant and closure to the victim and to those who had loved him.

Washburn had the option of coming out swinging now with his defense opening statement, or waiting until the People had presented their case and delivering it then. After Mills had sat down, Tollson asked him what he wanted to do, and he said he'd be going right ahead with his statement now. He didn't like to let the jury sit too long with one story without being made aware that there was another one, or another version of the same one. He found that if the prosecution got to make an unrebutted opening statement and then followed it with up to a week or more of its own witnesses, all he could do was play defense. And this passive style didn't win too many cases.

But, furthering his earlier strategy of avoiding interruptions and objections, he no sooner indicated to the judge his decision to give his opening statement-enthusiasm to defend his innocent client!-than he got the gallery chortling by commenting, in his folksiest manner, "But after Ms. Whelan-Miille's eloquent opening statement, Your Honor, the bladder of a poor old country lawyer could sure use a short recess." Which of course, reflected his opinion that the prosecution's opening had not in any way threatened his client, or even called into question Evan's innocence. Washburn would get to all that in just a minute in his own opening statement and clear up any nagging little inconsistencies that might point to Evan's guilt.

But first he had to pee.

Though, actually, he didn't.

The judge gave them fifteen minutes, and Washburn and Evan took the opportunity to walk out the courtroom's back door to the small holding cell, where they sat across from each other on the cold cement blocks that served as benches. Washburn had shaved carefully but had missed a fairly obvious spot along his jawline for three days running now. Beyond that, never sartorially close to splendid, in a too-large wheat-colored suit with a ludicrous orange tie, he looked particularly disheveled today, as he would every day of the trial. His ten-year-old brown wing-tips had frayed laces and holes in both soles, so he could cross either leg and get the regular-guy message out. Juries, he believed, didn't like fancy dressers as defense lawyers. They liked real people who talked straight and respected their intelligence. And it didn't hurt if you had a personality either.

But now his immediate concern was his client. Evan had cleaned up pretty good. In contrast to defense attorneys, juries tended to like handsome and decently dressed defendants. Not too handsome, especially in a jury with seven men, but respectable. Evan's body language already spoke with an accent of defeat and dejection-not unexpected, given Mills's effective castigation of him-but troublesome nonetheless.

They both sat with their elbows on their knees, heads nearly touching. "You don't look good," Washburn said. "That get to you?"

Evan raised his eyes. "I can't believe I did so many stupid things."

"You were injured," Washburn said with apparent sincerity. "You weren't back to yourself yet. You are now."

"You believe that?"

"I do."

A pause. "You believe me?"

"I wouldn't be here if I didn't."

"Is that true?"

Washburn took a long beat. "That is God's truth, my son. You may not know what you did, and you know what that's consistent with?"

"What's that?"

"Innocence. If you weren't there, you wouldn't know what happened, would you?"

Evan sighed. "Everett, I broke into his house."

"You did not break into his house. You let yourself into his house."

"Either way. That was just stupid."

"Granted. It's one of the things I find fascinating about this case, all the stupidity." He held up a hand. "No, I'm serious. You've admitted to a lot of stupid behavior, plus you were drinking way too much, which never helps, but you've never admitted planting that evidence at Nolan's, have you?"

"That's because I didn't."

"You know that. I know it. And that would have been another stupid move. So it's not the stupidity that's keeping you from copping to it. You see what I'm saying? Staying drunk for four days after your fight with Nolan was stupid. Not going to work all that time was stupid. But you didn't drive up to Nolan's in an alcoholic stupor, somehow get into his home without alerting him, get ahold of his gun, and kill him. You couldn't have done it. Your state of mind, pardon me, was too stupid. Whoever did this planned it, timed it, did it right. And call me a soft-hearted romantic, I don't see that being you."

Evan almost broke a smile. "You going to argue that?"

"If I can get the right spin on it, which might be a trick. But, listen, the main thing…"

"I'm listening."

"I need you to buck up in there. You don't have to be indignant, or angry, or anything negative. But you've got to sit up straight and don't let the weight of all the shit she's piling on you get you down. You'll look guilty and pathetic."

"You want me to look happy?"

"No! God, no. You're unjustly accused. Nobody's happy with that. But you're a soldier. You're fighting the good fight. You've been through battle, betrayal, brain injury, bottle-epsy, and now this bullshit. You beat every other one of 'em, and now you're standing up to this one. That's the message. Stick with it. Those jurors are going to try to be objective, okay, but they're twelve unpredictable human beings. Don't forget that. And if they're inclined to like you, that's not a bad thing. Every one of their votes is going to count equally. You get one of 'em on your side, it's over."

Evan sat up straight, his back against the wall. "You really think we can still win this thing?"

"We're not in it to lose, Evan. So when I go out and razzle-dazzle 'em in the next few minutes, it'd be good to have an enthusiastic fan in the peanut gallery. You think you can do that?"

"I'll give it a shot. If I knew what the peanut gallery was."

"You know. The peanut gallery. Howdy Doody, Buffalo Bob, Clarabelle the Clown. All those guys." But clearly, Evan was clueless about The Howdy Doody Show. Washburn hit him on the shoulder. "Anyway, so forget the peanut gallery. Just hang tough out there and remember that the jury's looking at you. We're doing good."

"If you say so, Everett. If you say so."

At that moment, the bailiff knocked and opened the courtroom door, telling them their time was up. Washburn let Evan precede him, then stopped short in the doorway. His heartbeat stuttered. And again. He'd had a heart attack about five years previously, and this did not feel like that. There was no pain. The arrhythmia caught his breath, that was all, and then the moment was over. But suddenly he found that the confidence he'd been exuding in his pep talk with Evan had vanished. The harsh reality, as his body took another opportunity to remind him, was that he was getting old. He persisted in living each day with the myth that he was still at the peak of his powers and would live forever. When in truth, he was even older than the Howdy Doody generation, maybe even older than Buffalo Bob himself, now long deceased. He'd lost the PTSD fight to a far younger opponent and now, no matter what he'd told Evan, he faced a far more difficult uphill battle against Mills. It struck him that he might not have the advantage this time, that age and treachery might not overcome youth and skill.

As he stepped into the courtroom behind his client, he realized that he'd allowed his shoulders to slump, that his right hand had lingered at his chest. He willed it down, squared himself away, caught the eye of the young and confident Mary Patricia Whelan-Miille at her table, and flashed her a mouthful of teeth that would have done a horse proud.

"My friends, I'm going to speak to you for just a few minutes to tell you about the rest of the evidence in this case-things that the prosecution chose not to mention because they don't fit Ms. Miille's version of what happened, and things that at the close of this case will still be unexplained. This evidence will make you wonder whether Evan Scholler killed Ron Nolan, and will leave you with a reasonable doubt and will require you-require you if you fulfill your oaths as jurors-to find Evan Scholler not guilty."

Washburn stood with his hands in his pockets, relaxed and genial. He'd actually won a round or two with Tollson in chambers, though it really didn't feel like it. But the whole question of Iraq, he'd argued, had to be part of the trial. It was relevant on its face, and essential if the jurors were even going to begin to grasp any of the complexities surrounding both the defendant and the victim. And Tollson had agreed with him. To a point.

He intended to find out where that point exactly was.

"This case and the issues surrounding it began in Iraq," he intoned. "It's important to understand the significance that Iraq plays in the affair, because so much of the evidence presented by the People that appears to cast Mr. Scholler in a negative light in fact paints a very different picture when viewed in its true context, the context of what happened in Iraq.

"You will hear testimony that the deceased was a highly trained mercenary with a long history of both overt and covert operations in some of the most violent places in the world-Afghanistan, Kuwait, El Salvador, and Iraq. At the time of his death, he was working as a government contractor for Allstrong Security, which has offices both here in California and in Iraq. All of his adult life, the man was surrounded by death and violence. This was his livelihood and he was good at it.

"Evan Scholler, on the other hand, worked as a Redwood City police patrolman until he was called up for deployment to Iraq in the first months after the invasion. He served over there for about three months before he was involved in a firefight against Islamic insurgents in Baghdad in which he suffered a head wound and traumatic brain injury. In a coma that lasted eleven days, he was airlifted first to a field hospital in Iraq, then taken to Germany, and finally brought to Walter Reed Hospital. In March of two thousand four, he came back to work for the police department here in this city."

He paused to meet a few more eyes in the jury box. There it was, he thought with some satisfaction and relief. Short and sweet, and he'd gotten it in. He'd hoped that bringing in this information first thing and right up front might catch Mills in a first-inning lull, and sure enough he'd pulled it off.

Dang! He loved the drama of a trial.

Taking a breath, his heart palpitations forgotten, he moved on to the more pressing evidentiary issues. "Ms. Miille has described at some length the evidence that she says will compel you to convict Evan of first-degree murder. That evidence is neither as clear nor as uncontradicted as she might have led you to believe. She talked a lot about the day of the killing. Just for openers, we don't know the day of the killing. Mr. Nolan was last seen on Wednesday, June third. He was found dead on Saturday, June sixth.

"Now, the prosecutor says he was killed on Wednesday, the third. If so, that would be convenient for the prosecution because that is a date when my client spoke harsh words about Mr. Nolan. The evidence will show, and it is in fact undisputed, that Evan had too many drinks that night, at a bar a few blocks from here called the Old Town Traven. There he learned that the deceased had tried to implicate him in the murders of two Iraqi citizens. Tara Wheatley, Evan's girlfriend, will tell you that, drunk and in a rage, he told her that he was going to go to Mr. Nolan's house and kill him. And in fact, Evan has never denied that he went to Mr. Nolan's house that night, and that the two men fought.

"So the prosecution says, and wishes you to conclude, that that's the night the deceased was killed. But as the saying goes, wishing don't make it so. There is no evidence that Mr. Nolan was killed on Wednesday, as opposed to Thursday, as opposed to Friday.

"And let's take the two motives that, according to the prosecution, caused Evan Scholler to commit murder. First, jealousy. Ms. Wheatley will testify that on the evening of June third, she came to find Evan at the Old Town Traven. She invited him to come back to her apartment for the night. She told him that she had stopped seeing Mr. Nolan, and that she was in love with him."

As though taken by an apparition, Washburn stopped in his tracks, spread his palms to the jurors. "Now, it's been a few years since I've experienced some of the finer emotions such as young love, but if my memory serves, when a woman tells you she's dropped another boyfriend in your favor, that's when jealousy's much more likely to go away than to make you want to go and duke it out with your rival."

This last witticism produced a gratifying hum from the gallery. Several of the jurors broke smiles as well. Feeding off those vibes, Washburn went on. "Now, anger. The evidence will indeed show that Evan was angry-angry enough to drive to Mr. Nolan's house and engage him in a fistfight. He was angry, the evidence will show, because he believed he was being framed for a murder he didn't commit. That's a good reason to be angry," Washburn added. "It might make any of you angry."

"Your Honor! Objection."

Washburn turned and took the opportunity to glance out at the gallery, always a reasonable litmus for how he was doing. Nobody snoring yet, anyway. He produced his patented half-bow, acknowledging the objection, and turned back to the jury box, without even waiting for the judge to rule. "I'll withdraw that last comment, Your Honor," he said.

And continued. "Why, you may ask, did my client illegally let himself into his rival's house? He had come to believe that Mr. Nolan was in fact the killer of Ibrahim and Shatha Khalil. He will testify that he accompanied Mr. Nolan on a kill-and-destroy mission in Iraq that featured the same type of fragmentation grenades as were used in the Khalil murders. This might have been an error in judgment, but it was not a prelude to murder. Had he intended to kill Mr. Nolan, he could have simply waited in his home and done it instead of gathering evidence against him to send to the authorities.

"These are all points that the prosecution has presented to you as facts, and they simply are not.

"Did my client hate Ron Nolan? Yes, he did.

"Was Evan Scholler struggling to recover from the physical injury and mental anguish he sustained as a result of fighting for his country in Iraq? Yes, he was.

"As a result of the pain, both physical and mental, did he sometimes drink too much during the months of his recovery? Yes, he did.

"And as a result of the combination of these things, did he display bad judgment? Without a doubt.

"He did misuse his authority as a policeman to keep track of Ron Nolan's whereabouts. He did break into Ron Nolan's house in the belief that Ron Nolan had a hand in the deaths of the Khalils. He did give way to despair and alcohol and anger, and threaten Ron Nolan. He did go to Ron Nolan's house and fight with him on the night of June third. He did all of these things and has freely admitted doing all of these things.

"But these are not the things for which he is on trial.

"Ladies and gentlemen of the jury, at the close of all of the evidence, you will find that what Evan Scholler did not do was kill Ron Nolan. That is something the evidence does not show. And when, at the close of the evidence, you can see that this has not been proved against my client, you will be obliged by your conscience and by the laws of this state to find him not guilty."

23

After the opening statements, they got right down to it as Mills called her first witness.

The medical examiner, Dr. Lloyd Barnsdale, had been in his position for fifteen years. Dry as dust, pale as the corpses in his lab, the bespeckled and weak-chinned coroner wore what was left of his graying, dirty blond hair in a combover. Today, though the warm Indian summer days of September continued outside, he wore a cardigan sweater over a plain white shirt and a snap-on bow-tie.

Mills waited impatiently for the ME to be sworn in. The confidence she'd felt in the morning when she'd finished with her opening statement had pretty much dissipated under the amiable onslaught of Washburn's monologue. The truth was that she had her work cut out for her. It would never do to become complacent. Washburn would eat her alive if she gave him any opportunity at all.

"Dr. Barnsdale, you did the autopsy on Ron Nolan, did you not?"

"I did."

"Would you please tell the Court your ruling as to the cause of death?"

"Certainly. Death was caused by a gunshot wound fired at close range into the head."

Barnsdale had, of course, been a witness a hundred times before. This did not necessarily make him a good witness. He spoke with a wispiness that was very much of a piece with his looks. Mills, from halfway across the room, found herself straining to hear him.

She saw that the jurors had, to a person, come forward in their chairs. It did not help that outside the building, road construction continued unabated on Redwood City's never-ending downtown beautification project. The noise of the heavy equipment was nearly as loud as the building's air-conditioning.

Mills backed up a couple of steps, to just beyond the last juror in the box. If she could hear the witness, so could all the jurors. She raised her own voice, hoping to lead by example. "Doctor," she asked, "were there other marks or injuries to the body?"

"Yes. There were multiple signs of blunt-force and sharp-force trauma-contusions, bruises, and lacerations on the torso, the groin, and the face."

"Approximately how many separate injuries were inflicted on the victim?"

"I counted twenty-eight separate injuries."

"And did each of these appear to be a separate application of force?"

"There were a couple that might have been the result of a single blow. For example, the same blow with an instrument could have hit the victim on the forearm and the head. On the other hand, from the size and irregular features of some of the injury sites, it appeared that some bruises might have resulted from multiple blows landing in approximately the same place on the body. I would have to say the man was hit at least two dozen times."

Mills went back to her table and brought forward a large piece of cardboard on which she'd taped some 8¹/2 11 color photographs from the autopsy and had it entered into evidence as People's Two, since the autopsy report was People's One.

When they had gotten to it, Judge Tollson had hand-picked the six autopsy photos that he was going to allow the jury to see. Mills considered his choice a partial victory for herself-whoever had done this to another human being barely deserved to be called one himself. Even without the head wound, the damage to Nolan's body was severe.

"Doctor," Mills began, "using the photographs to illustrate your testimony, can you characterize these injuries more particularly?"

"Well, yes," Barnsdale whispered. "As we can see in Photograph A, there were quite a few injuries that either raised bruises, or cut the skin, or both. Although the gunshot wound, particularly the exit wound in the back of the head, no doubt obliterated some of these, there still remained a profusion of them, particularly on the head."

Using the laser pointer, she walked him through the other five photographs.

"Do you know what caused these bruises and contusions?"

"Not specifically. It was my finding that there appeared to be more than one type of bruise, caused by different objects, some blunt and some less so."

"Doctor, were you given any implement or implements in an effort to determine whether they might have caused the injuries you observed?"

"Yes. I was given a fireplace poker and a pair of brass knuckles from the evidence locker of the Redwood City Police Department."

Two more exhibits marked and presented to the doctor.

"Yes," he said, "these are the items I compared."

"What was your conclusion, Doctor?"

"Several contusions, particularly on the jawline, appear to be the result of contact with the brass knuckles. These particular knuckles have a piece or fragment missing from one edge. You can clearly see the pattern injury in several locations that match this implement. Further, in a general sense, the damage inflicted at those injury sites is consistent with what one might expect from being struck with this sort of an object."

"And what damage is that?"

"They both cut and bruise. They leave a distinctive imprint."

"Were there a lot of these brass knuckle contusions?"

"Distinctly, there were three. Perhaps five. I could not rule them out as having been used to cause other injuries, but there was not enough detail to tell you definitively that this was the weapon used."

"What about the poker?"

"I could only find one injury across the forearm that definitively appeared consistent with the poker or something very like it. But all of the injuries to the top and side of the head were consistent with a blow from a hard, cylindrical object that could have been this poker. Further, I understand from the lab that the victim's blood and tissue was removed from the poker, which also supports the suggestion that this was the weapon used."

"As to the injuries you've discussed so far, were they consistent with having been inflicted with a man's fist?"

"No. I don't think so. The injuries I've attributed to the poker and brass knuckles were far too extensive typically to have resulted from a simple blow from the fist."

"But that leaves, Doctor, does it not, many other bruises on Mr. Nolan's body?"

"Yes, it does."

"Could they have been inflicted by a man's fists?"

"Well, yes they could, although they are very nonspecific and might have been inflicted by any blunt object, including a glancing blow by the poker or brass knuckles, or even by the impact of Mr. Nolan having hit the ground or a table or anything else as a result of one of the other blows."

"Doctor, could you describe the gunshot wound in any greater detail?"

"Yes, it was what is called a close contact wound, meaning the gun was fired right up against the skin of the forehead."

"Doctor, are you able to tell us the order in which the injuries were inflicted?"

"Not really. Logically, it would seem likely the gunshot wound would have to be last because it would have been immediately lethal. As to the blunt force trauma, it appeared that some had actually started to heal slightly, and therefore might have been inflicted before some of the others which showed less signs of healing. But the body heals more or less quickly at different times and at different places on the body. This isn't a very reliable way to sequence injuries. All I can say is that all of these injuries were perimortem, meaning that they were inflicted around the time of death."

"Thank you, Doctor. No further questions." Mills, apparently shaken by the photos and the testimony in spite of herself, had gone nearly as pale as the medical examiner. She turned back to the defense table. "Your witness."

Washburn had the impression that Mills had cut her questions short because she was getting sick. Beyond that, he'd barely heard the testimony of the witness from back where he sat, and he doubted that the jurors, intent on the photographs, had heard too much of it either. He normally didn't like to spend too much time with this more or less pro forma witness, the medical examiner, since typically all his testimony served to do was prove that a murder had been committed, and that wasn't at issue here. But this time, he thought he might pry a nugget loose from this normally unpromising vein.

And if he was going to go to that trouble, he wanted the jury to hear what the man had to say. So when he got to the middle of the room, he pitched his own volume down to the nearly inaudible. "Doctor," he said, "can you tell how old a bruise is?"

"I'm sorry," the witness replied, cupping his ear. "I didn't hear the question."

Washburn barely heard the response, but came back with his question just a few decibels louder than the first time.

Barnsdale leaned forward, his face scrunched in concentration. "Can I what?" he asked. "I'm sorry."

Behind Washburn, the gallery was getting restive. Tollson brought his gavel down one time firmly. "I want it quiet in this courtroom!" He brought his focus back inside the guardrail that separated the gallery from the bullpen of the court. "And I need you two gentlemen both to speak up, is that clear?"

"Yes, Your Honor," Washburn straightened up and nearly shouted.

Shaking his head-this was rank theatrics, circus behavior-Tollson looked down at the witness. "Doctor?"

Barnsdale looked around and up at him. "Sir?" A whisper.

"Louder, please. The jury needs to hear you."

Back to Washburn. "Go ahead, Counselor."

"Thank you, Your Honor. Doctor." A smile meant they were friends. "You've talked about these bruises on the body of the victim, that we've seen now in these photographs. My question is can you tell the age of a bruise?"

"As I just said, only within very broad limits."

"Please humor me, Doctor. Explain in some detail how you can tell that one bruise is older than another."

Clearing his throat, Barnsdale complied. "Yes, certainly. Bruises begin healing as soon as they are made, so the degree of healing, diminishing of swelling, thickness and solidity of scabbing, color, and so on, can tell you roughly how long it is since the bruise was sustained. We all know that some people bruise more easily than others. And it's also true that the same person might bruise more easily on a different part of his body, at a different time in his life, or depending on his general health. But all things being equal, we can get some idea from the bruises themselves."

Tollson, from the bench, intoned, "Louder, please."

Washburn went on. "And these bruises to the victim, were they all the same age, so to speak?"

"No."

"No? What was the greatest difference you observed between them?"

"Impossible to say."

"Impossible, Doctor. You can't give us any information? Are you telling me one of these bruises could have been inflicted on Mr. Nolan when he was five years old, and another a few minutes before his death, and there would be no difference."

A small round of laughter from the gallery.

"Well, no, of course not."

"Then could some of these injuries been inflicted a month before Mr. Nolan's death?"

"No."

"A week before?"

Some hesitation. "I doubt that seriously."

"But it could have been a week before."

"I doubt it."

"Well, certainly, Doctor, some of the injuries could have been inflicted three or four days before Mr. Nolan's death. That's true, isn't it?"

Washburn knew he had the doctor, and knew what the answer had to be.

"Well, I'd have to say yes."

"And, Doctor, did you make any effort at the time specifically to note in your autopsy the age of the various bruises?"

"I didn't record a specific analysis of that for each bruise."

"Why not?"

"It seemed irrelevant at the time. It certainly was irrelevant to the cause of death."

"Because none of these blows killed him, isn't that right, Doctor? Mr. Nolan died from the gunshot wound, whenever that was inflicted. True?"

"Yes."

"Thank you, Doctor. No further questions."

Next up was Shondra Delahassau, a forensics sergeant with the police department. A dark ebony woman in her early thirties with her hair in cornrows, projecting competence and confidence, she couldn't have been more of a contrast to Dr. Barnsdale.

"We got the call on a Saturday afternoon after the groundskeeper, who was blowing leaves off the back patio, saw evidence of a fight and what looked to be splashes of blood in the living room."

"And what happened next?" Mills asked.

"Well, the first responders to arrive were a patrol team, who entered the townhouse to see if there were injured persons or suspects still on the premises. They found only a dead body and left without disturbing anything. Once the house was cleared, they waited out front for other officers. My unit, which is crime scene investigation, got there about the same time as Lieutenant Spinoza, who had obtained a search warrant, at around four-thirty."

"And what did you find inside?"

"First, of course, the blood, a lot of blood. In the rug and on the walls and so on."

"Did your unit take samples of this blood for analysis, Sergeant?"

"Yes. We took samples from every location for testing in the lab."

Mills spoke to the judge. "Your Honor, I believe the defense is prepared to stipulate that DNA testing matched blood samples from the premises to either the defendant or Ron Nolan."

This was bad news, and a buzz arose in the gallery, but Washburn had been only too happy to enter the stipulation after Mills had told him that the lab tech who had actually done the DNA testing was out on maternity leave. It wasn't to his advantage anyway to have a half day of scientific evidence putting Evan's blood and Nolan's blood all over Nolan's home.

"Thank you, Sergeant," Mills said. "Now, back to the townhouse itself, what else did you find?"

"Well, furniture had been knocked over in the living room and in the office. We found a fireplace poker that was stained with the victim's blood on the floor in the office. Then we discovered the victim's body on the floor in the bedroom. There was a nine-millimeter Beretta semiautomatic on the bed."

"What did you do next?"

"While Lieutenant Spinoza called the medical examiner's office, I supervised while members of my unit started taking photographs of the scene, collecting blood, hair, and fiber samples and fingerprints if any were available. My usual drill at a murder scene."

Mills duly marked and had her identify almost two dozen samples with the trace evidence from Nolan's place. When they'd finished, Mills pulled the gun out of a protective firearms box and gave it to the bailiff to clear, demonstrating on the record that it was unloaded and safe to handle. "Now, Sergeant, did you personally dust the gun for fingerprints?"

"I did."

"Did you find any usable latents?"

"Yes."

"And were you able to identify whose fingerprints were found on the gun?"

"We did. It held the fingerprints of Mr. Nolan, as well as those of the defendant, Mr. Scholler."

Again, a rush of comment swirled across the gallery. Mills let it go on for a satisfying moment before she turned to Washburn and gave him the witness.

Washburn had always believed that there were basically only two ways to defend against a murder charge. The first was to present an affirmative defense case that, on its own merits, created either mitigation or reasonable doubt. This former approach had been Washburn's stock-in-trade over the years and he'd done exceedingly well with it. He would listen to all the prosecution's facts and theories, and then introduce his own defense case, which might include self-defense, diminished capacity, temporary insanity, or any other of the many psychiatric defenses (including PTSD). In San Francisco, over time, these became pretty much slam dunks. But even in San Mateo County, such a strong affirmative defense would often convince a jury to convict only of a lesser charge. Washburn believed this was because people basically wanted to believe in the goodness of their fellow man. Even if they had done something truly heinous, if there was a semiplausible reason that they'd been driven to it by events outside of their control, jurors tended to give them a break.

The second way to win was, in Washburn's experience, both far more difficult and far less effective; this was the reactive defense, which challenged every fact and assertion made by the prosecution. Naturally, good defense attorneys also did this automatically even when they had a strong affirmative case, but debunking a carefully built prosecution was never an easy task. In most cases, of course, this was because the defendant was guilty. But beyond that, it was a huge hurdle for most jurors to disbelieve government testimony and to doubt the sworn testimony of authority figures such as doctors, forensics experts, and the police.

When Tollson had taken PTSD away from him, Washburn knew he was stuck with a reactive defense, and this was what had filled him with such a sense of dread. Now here he was with his second witness on his first day-a woman whom he normally would have dismissed without a cross-examination because she had nothing of substance that would help his case-and he was rising to question her, grasping at straws just to keep up the charade that he was putting on an enthusiastic, even passionate, defense.

"Sergeant Delahassau," he began, "you've testified that you tested Mr. Nolan's townhome for fingerprints, blood, hairs, and fibers, isn't that so? Your usual drill, I believe you called it."

"Yes, that's right."

"And you discovered matches with Mr. Scholler's blood and fingerprints?"

"Yes."

"What about his hair?"

The gallery let out what seemed to Washburn to be a collective chuckle.

"Yes, we found samples of his hair too."

"Did you find any other hair, besides Mr. Nolan's and Mr. Scholler's?"

"Yes. We found traces of hair from at least three other individuals."

"Can you tell if that hair was from a male or female?"

"Under some circumstances, DNA can determine that. You need a follicle."

"And to your knowledge, did anyone run DNA tests on these hair samples?"

For the first time, Delahassau's face clouded. She threw a troubled look over to Mills, then came back to Washburn. "Uh, no, sir."

"Why not?"

Another hesitation. "Well. We had no other suspects with which to match samples."

"But these hair samples surely indicated that someone else had been in Mr. Nolan's townhouse, isn't that true?"

"Well, yes, but they could have been years old, or…"

"But, bottom line, Sergeant, you do not know if the three hair samples found in the victim's home came from men or from women, do you?"

"No."

Unsure of what, if anything, he'd just proven, Washburn decided he'd take his small victory now and move on to his other minuscule point. "Sergeant," he asked, "did you recover the bullet that had killed Mr. Nolan?"

Letting out a sigh of relief that the other line of questioning had ended, Delahassau reverted to her confident self. "Yes. It was embedded in the floor directly under the exit wound in his head."

"So he was shot while he was already on the ground?"

"That appeared to be the case, yes."

"And did you run a ballistics test on the Beretta?"

"No. The bullet was deformed too much for that."

Washburn brought his hand up to his mouth in an apparently genuine show of perplexity. "Sergeant," he asked with an exaggerated slowness, "are you telling me that you do not know for an absolute certainty that the bullet that killed Mr. Nolan came from the weapon that had my client's fingerprints on it?"

"No, sir, but…"

"Thank you, Sergeant. That's all."

He'd barely gotten the words out when Mills was on her feet. "Redirect, Your Honor?"

Tollson waved her forward. "Sergeant," she began before she'd even reached her place, "what was the caliber of the bullet that killed Mr. Nolan?"

"Nine millimeter."

"And what was the caliber of the recovered weapon?"

"Nine millimeter."

"And was the recovered weapon a revolver or a semiautomatic?"

"It was a semiautomatic."

"Now, sergeant, when a nine-millimeter weapon is fired, what happens to the casing-the brass jacket behind the actual bullet that holds the gunpowder that propels the blast?"

"It gets ejected."

"You mean it pops out of the gun?"

"Yes."

"And did you find a casing for a nine-millimeter round in Mr. Nolan's bedroom?"

"Yes. It was among the sheets on the bed."

"Were you able to match that casing to the recovered Beretta?"

"Yes."

"So there was one nine-millimeter bullet and no others recovered from the scene, one nine-millimeter casing and no others recovered from the scene, and although the bullet itself was not capable of comparison, the only casing at the scene that could have contained that bullet was fired by the nine-millimeter Beretta with the defendant's fingerprints on it."

"Yes."

"Thank you."

24

When they all got back to their tables after a short afternoon recess, Washburn noticed that Mills seemed to be losing her sense of humor as the day wore on. But whether Mills was enjoying it or not, she was putting on the kind of straightforward, linear case that juries tended to like. Her next witness was Evan's direct superior in the police department, Lieutenant Lochland, who, alarmed at Scholler's absence from work, had found him in his apartment, drunk and covered in blood, and eventually placed him under arrest.

"Lieutenant," she began, "Defendant was under your direct supervision while he worked with the police department. Isn't that so?"

But Washburn and Evan had talked about this coming testimony on the break, and the old lawyer was on his feet before she'd finished her question. "Objection! Relevance. Three fifty-two, Your Honor."

Tollson turned a questioning look down to Mills. "Counselor?"

"Foundational, Your Honor," she said.

"That's fairly broad. Can you be more specific?"

"Goes to Defendant's state of mind leading up to the act. Also foundational to the break-in at Mr. Nolan's."

The judge, in what Washburn was beginning to recognize as something of a pattern, pulled his glasses off to ponder for a minute.

Before he could put them back on and render his decision, Washburn said, "Your Honor, if you will, I'd like to request a sidebar." If Mills was getting tired or losing her chops due to low blood sugar, if this was her afternoon tendency-and her body language made it appear to be-Washburn wouldn't hesitate to use that against her.

A shorter pause this time, until Tollson nodded. "Very well. Counsel may approach." When the two attorneys had gotten in front of the bench, Tollson peered over it. "What's the problem, Everett?" he said.

"Your Honor, there's no possible relevance to Lieutenant Lochland's relationship to my client. The only thing this will get the People is negative character stuff. That Evan was angry, that he lied to his superiors when he broke into Nolan's place, that he disobeyed orders, maybe got drunk on duty. There's nothing possibly relevant there and even if it is, it's far more prejudicial than probative and opens up a whole number of cans of worms."

"Ms. Whelan-Miille?"

Clearly, Washburn's attack on this point had blindsided her. But she wasn't about to give up any ground without some kind of a fight. "The lieutenant's a hostile witness, Your Honor. You think he wants to be up here testifying against another cop, and one that worked for him? He's not going to say anything bad about Evan's character. At worst, he'll say he was mixed up and still recovering from the wounds in Iraq. And that will, if anything, incite sympathy from the jury. This is all part of Mr. Washburn's case anyway. How can he want to put it in through his own witnesses and keep it out with mine?"

"If it was all that sympathetic," Tollson said, "I doubt if Mr. Washburn would object to the testimony. And in that case, why do you want it?" the judge asked. When Mills couldn't come up with an answer in the next ten seconds, Tollson stepped back in. "Let's move on, shall we? How's that sound?"

Washburn inclined his head. "Thank you, Your Honor."

Back at the defense table, he pulled his yellow legal pad over in front of him and drew a happy face that he showed to his client under his hand. At the same time, Mills tried to pick up with her witness. "Lieutenant, it was you who arrested Defendant, was it not?"

"Yeah. That was me."

"Can you tell the jury the specifics?"

"Sure." He turned to face the panel and began in a conversational tone. "Lieutenant Spinoza-he's the head of the homicide detail-called me at home as a courtesy on that Saturday to tell me he was worried about Patrolman Scholler. He'd been called on the Ron Nolan homicide and remembered that Patrolman Scholler had looked up that name on the police computer in the past few days. Spinoza wondered if I'd heard from him and I told him I hadn't. Patrolman Scholler hadn't been into work on Thursday or Friday, so when I got Spinoza's call, I was a little worried myself.

"I thought the best bet would be to go check out his apartment, so I drove up there-he lived in one of those units along Edgewood Road. All the blinds in the windows were pulled down, so there was no seeing in. I knocked and called out his name, and nobody answered, but I heard some movement inside, like something, some object, falling over.

"Now I'm starting to think something's wrong. I get out my cell phone and call his number and the phone inside starts ringing, and I started pounding on the door, calling for him."

Washburn could have objected to this narrative, but again knew it was coming in, and was just as happy to get through it as quickly as possible.

"And finally I hear, 'Yeah, one minute,' and a few seconds later Patrolman Scholler opens the door, just like that. Then I take a look at him and he's all beat up. So I ask him what happened? But he didn't seem to understand the question. So then I asked him if he knew about a guy named Ron Nolan, that he'd been killed." Lochland stopped, sat back, clasped his hands in his lap.

But Mills wouldn't have called him up if he didn't have something she needed. So she asked. "And did he have any reaction to that, Lieutenant?"

"Yes, ma'am. He swore."

"He swore. What exactly did he say, Lieutenant?"

Washburn knew the answer to this question, and came halfway out of his chair as he objected and, much to the displeasure of both Mills and Tollson, requested another sidebar.

When both attorneys were again in front of the judge, Mills started right in. "Your Honor, this is a frivolous objection if we've ever heard one. Mr. Washburn knows what Defendant's words were upon learning about Mr. Nolan's death, and the jury needs to hear them."

Washburn shot back at her. "There is no need to subject the jury to vulgarity, Your Honor. The defense will stipulate that Evan used language that some might find offensive, in spite of the fact that even that admission might taint him in the eyes of some of the jury members."

"Oh, please." Mills rolled her eyes. "The man's on trial for murder, Your Honor. He's broken into the victim's house. He's admitted to beating him with brass knuckles-"

"Fighting him with brass knuckles," Washburn replied calmly. "The evidence supports a fight between two professional warriors, not a beating."

"This is hair-splitting of the most obvious kind, Your Honor. And in fact, on reflection, I wonder if Mr. Washburn didn't help prepare Lieutenant Lochland in his testimony so that he would set up this objection, rather than simply repeat Defendant's words, which he'd always used with me in my preparation."

"Your Honor." Washburn's face reflected his sadness that his opponent had stooped so low as to accuse him of coaching her witness, although of course he had done just that. If he could somehow keep Evan's unfortunate choice of words, uttered in an alcoholic stupor, out of the record, it would be a significant victory. "I strenuously object to Counsel's intimation that I may have acted unethically."

"I'm not saying that, Your Honor. I'm saying that the jury knows that Defendant did all these other pretty questionable things, plus he lied to his boss and his locksmith friend. The fact that he used a mild swear word isn't likely to stain his reputation at this point."

Tollson put his glasses back on and scowled down through them. "I agree, Counselor. The witness can answer the question."

"Your Honor," Washburn said, "allowing a witness to use vulgarity on the stand is a slippery slope that…"

"Counselor, I don't believe…we're not talking about the f-word, the c-word, or the n-word, are we?"

"No, Your Honor," Mills said.

"We can't know that yet, Your Honor, the witness hasn't answered yet."

But this last comment, finally, got under Tollson's skin. "Don't toy with me, Counselor. I've made my ruling. Stop wasting the Court's time."

"Of course, Your Honor. Apologies."

Tollson ignored him. "Ms. Whelan-Miille," he said, "you may proceed."

So after all that, Mills was back at her place ten feet in front of the witness. "Lieutenant, would you please tell the jury Defendant's exact words when you asked if he knew a Ron Nolan, and that he had been killed?"

"Yes, ma'am." Frustrated that he wasn't going to be able to keep it out, Lochland put the best face he could on it. He turned toward the panel and spoke directly to them. "He said, 'I kicked his ass.' And I said, 'Jesus, Evan, he's dead.' And he said, 'Goddamned right.'"

Mills dared a glance over to Washburn, and certainly knew that she risked incurring the judge's wrath as she nodded, directing the words as much to her opponent as to the jury. "'Goddamned right,'" she said. "Thank you, Lieutenant. No further questions. Your witness, Mr. Washburn."

Fresh as a teenage boy, Washburn all but hopped up and over to his place to begin his cross-examination. "Lieutenant Lochland, after Patrolman Scholler reacted to the news, what did he do next?" The decision to refer to Evan by his police rank with this witness was, of course, intentional.

"He kind of folded himself down to a sitting position, then lay back all the way."

"On the floor?"

"Yes."

"Was he resisting arrest?"

"No, sir. His eyes were closed. I rolled him over and put handcuffs on him and he still didn't wake up."

"So he was asleep, then?"

"Asleep, maybe, but also drunk. We tested him at the station and his blood alcohol was point two four."

"And what, Lieutenant, is the blood alcohol level at which a person is considered legally drunk in California?"

"Point oh eight."

"So Patrolman Scholler was at something like three times the legal limit for driving?"

"I don't know the math, but he certainly was very drunk."

"Incoherently drunk?"

Mills jumped all over the question. "Objection! Conclusion."

"Sustained."

Washburn took a short beat, came at it another way. "Did Evan respond immediately to your question about what had happened to him?"

"No."

"At his apartment, did he ever call you by name?"

"No."

"Was his speech slurred?"

"Yes."

"And did you have to repeat your questions before he answered?"

"Yes."

"Now, Lieutenant Lochland, he never said he killed Ron Nolan, did he?"

"No, he did not."

"The only thing he said was that he kicked Nolan's ass, correct?"

"Right."

"And to repeat that colorful phrase, Evan Scholler looked like he'd gotten his ass kicked as well, didn't he?"

"Yes. He was seriously beat up."

"Now he said something else," Washburn continued, "after he said he'd kicked Mr. Nolan's ass, didn't he?"

"He said, 'Goddamned right.'"

"Before he said that, you said that Ron Nolan was dead, correct? But you have no way of knowing whether he understood you when you said that, do you?"

"Well, no, not for sure."

"He was drunk, beat up, and more than a little incoherent, correct?"

"Yes."

"So to repeat my question, do you have any way of knowing whether he heard or understood you when you told him that Ron Nolan was dead?"

"He was pretty out of it. I can't honestly tell you that he understood anything that was going on."

"Did Patrolman Scholler say anything else while you were transporting him to the police station?"

"Nothing coherent. Just gibberish."

"Your Honor!" Now Mills was on her feet, truly enraged. "Sidebar, please."

Clearly, tempers all around were fairly raw by this time. Tollson gave the request a full thirty seconds before, muttering, he nodded and waved the two attorneys forward for their third sidebar of the afternoon.

When they got to the front, Tollson was waiting, pointing a finger at them as though he were a schoolteacher. "I'm getting more than a little tired of this bickering, Counselors. This is not the way we do a trial."

But Mills, fire in her eyes, came right back at him. "I'd prefer we didn't have these issues, either, but Mr. Washburn's conduct here is unconscionable! You just sustained my objection about the word incoherent and now the witness gets it in, barely disguised."

"In such a way that his answer was not conclusory as to my client's mental state, Your Honor. That was, I believe, the objection. Lieutenant Lochland is certainly qualified to call gibberish incoherent."

But Mills wasn't giving up. In a restrained voice, she said, "Your Honor. Obviously, if Defendant was incoherent, then his earlier words don't have nearly the same power."

Washburn had a great deal of experience in situations like this one. The temptation was to begin responding directly to your opponent, and this invariably infuriated judges. So he kept his eyes on Tollson, his voice modulated and relaxed. "That is, of course, more or less my intention in pursuing this line of questioning, Your Honor. The distinction between an incoherent epithet and an incriminating answer to a question, though perhaps too subtle for my opponent to grasp, is hugely significant."

"All right. That's enough of that, both of you. I'm going to allow the question and the answer to stand. Ms. Whelan-Miille, you, of course, may redirect." He pointed down at them once again. "I will not be entertaining any more sidebar requests today. This witness has been up here for nearly an hour, and two-thirds of that time we've been up here arguing about four or five words. It's got to stop. If you have objections, raise them in the usual way and I'll rule as best I can. But that's the end of this quibbling nonsense. Understood? Both of you?"

Washburn nodded genially. "Yes, Your Honor."

Mills stood flatfooted, apparently still too angry to talk.

Tollson brought his hard gaze to rest on her. "Counselor? Clear?"

At last she got the words out. "Yes, Your Honor."

Lochland was still on the stand, having established that on the Saturday of his arrest, Evan had been a fount of incoherent and meaningless babble. Washburn could be forgiven for feeling that things were going his way. After he passed around to the jury the booking photo, Defense Exhibit A, in which a completely disheveled Evan stared blankly at the camera, further establishing his incoherence, Washburn, in his courtliest manner, half turned to Mills. "Redirect."

Mills looked up at the clock, which read four forty-five. She could probably get in a question or two about whether or not Scholler's "Goddamned right" had sounded coherent or not to the lieutenant, but in the end she decided that this would only serve to underscore Washburn's thrust-that nothing Evan said that day meant much of anything. Even "Goddamned right," which she had worked so hard to get in. It was what he'd said, and she had no doubt what it had meant-it was tantamount to an admission that he'd killed Nolan and Washburn knew it. But whether or not the jurors would come to see it that way was anyone's guess. She was going to have to trust that they would use their common sense.

All she wanted at the moment was to put this day behind her. She'd get another hack at Washburn tomorrow, and she had the cards-Evan Scholler was guilty and the jury was going to see it and that was all there was to it. Raising her eyes to the judge, she felt the urge to smile begin at the corners of her mouth. She looked over to the jury, to Washburn, back up to the judge. "No questions," she said.

Tollson brought down his gavel. "Court's adjourned until nine-thirty tomorrow morning."

25

Fred Spinoza was a far cry from being a hostile prosecution witness.

In fact, he felt seriously abused that someone who worked for his department, played on his bowling team, got his help finding the address of the house he was planning to break into, where he would then commit murder, and had even come to his own home and played the war hero with his children…

Every time Spinoza thought about it, it roiled his guts. He believed that there was a special section in hell reserved for someone who could have done that to his kids.

Never mind what Evan Scholler did to Ron Nolan.

Resplendent in his dark blue uniform, Spinoza settled himself into the chair hard by the judge's platform. He'd put in a lot of time on the witness stand in his career, and rarely had he looked forward to the experience more than today. Now here came Mary Patricia Whelan-Miille up from her table in the packed courtroom, to a space about midway between him and the jury.

Mills and he had shared drinks on several occasions, once they'd gotten to know each other over this case. There had been a short time in the first weeks when he thought she might be coming on to him, but though he found her quite attractive, he loved Leesa and had made that clear enough to Mills that, if she was in fact trolling, she chose to back off.

But some chemistry, he knew, still sparked between them.

He knew that this would play well for a jury-it was just another one of those intangibles that sometimes came into play during a trial. A major People's witness and an assistant DA working in understated sync could bring a sense of rightness, of unassailable conviction, to a prosecution case.

Mills seemed rested and confident as she nodded to the jurors, then smiled at her witness as though she meant it. "Lieutenant Spinoza, what is your position with the police department?"

"I'm the head of the homicide detail."

After she went over the details of his service, she got down to it. "Defendant was a patrolman, was he not, Lieutenant?"

"Yes. He'd been a patrolman working a regular beat before he went overseas, and when he came back, he went back to his former position."

"How was it, then, that you came to know him?"

Spinoza shot half a grin at the jury, then shrugged. What was he going to do? It was the truth. "He was on my bowling team."

"Can you tell the Court, please, Lieutenant, about the first time you ran across a connection between Defendant and the victim in this case, Ron Nolan?"

"Yes. I was in the office on a weekend. The Khalil murders had just taken place, so I was working overtime. I happened to run across the defendant at one of the computers, and I asked him what he was doing. He told me he was trying to locate the address of a drug dealer."

"Did you ask him the name of that drug dealer?"

"Yes. He told me it was Ron Nolan."

"Is that against department policy?"

"Well, it's a gray area. Of course, police are not allowed to use computers for personal reasons. He could use the computer to follow up on a narcotics tip, although, strictly speaking, he should have referred the whole thing to vice."

"How about using the computer to locate a romantic rival?"

"That would not only be against policy, but completely illegal. If he were caught doing that, he could expect to be fired and probably prosecuted."

"So Defendant's use of the computer in this case was illegal?"

"As it turns out, yes."

"And yet you helped him?"

In his prep work with Mills, they had both acknowledged that this would be an uncomfortable moment that they needed to address head-on. "Of course, I didn't know the real reason he was using the computer at that time, but yes. He told me he was tracking a drug dealer and I believed him."

"So in what way did you assist him?"

Spinoza looked at the jury, spoke directly to them. "Well, I knew that he'd have to know how to work the system if he ever did need to find an address from a license plate. I suppose you could say I viewed it as more or less a casual thing, a training opportunity."

"Did Defendant tell you why he wanted to find Mr. Nolan's address?"

"Yes. But I thought his reason…I thought he was making a joke." This was an important clarification that Mills had wanted him to make sure he got in, since it served to underscore both Evan Scholler's arrogance and his premeditation.

"Nevertheless, what was the reason he gave you?"

"He said he wanted to hunt down Mr. Nolan and kill him."

A shimmer of reaction echoed through the courtroom, serious enough that Tollson dropped his gavel a couple of times.

Mills let the murmur die down and then resumed her questioning. "Did Defendant mention this killing of his rival any other times?"

"Yes."

"And where was that?"

Spinoza turned in the witness chair to face the jury again. "At my house. After work."

"Was this a usual occurrence, a patrolman coming to your home outside of work hours?"

"No. It was decidedly unusual."

"So what happened?"

"Well, we got ourselves some coffee and went outside and since it was something we'd joked about before, I asked him if he'd killed his dope dealer yet."

"And what was his answer to that?"

"He said he hadn't because Mr. Nolan was out of town."

"And yet you still considered this a joke?"

"Maybe not a funny joke, but it's the way we cops often talk to each other. It still never in a million years occurred to me that he was actually planning-"

Washburn was on his feet, not letting him finish. "Objection!"

Not missing a beat, Tollson nodded. "Sustained. Confine your answers to the questions, please, Lieutenant. Go ahead, Counsel."

Mills nodded, satisfied, and apparently ready to begin the next line of questioning they'd rehearsed, which was the aftermath of the murder itself, the FBI's involvement, and Scholler's arrest. But then, suddenly, she paused, threw a last glance at the jury, and must have seen something she liked, because her next words were, "Thank you, Lieutenant." And then to Washburn, "Your witness."

Spinoza knew Washburn well. As head of homicide in Redwood City, he'd sparred with the veteran attorney many times before, and he was particularly looking forward to it today. Confident that even a master like Washburn wouldn't be able to put a different spin on the events about which he'd just testified, Spinoza was settling himself in, getting psyched for a cross-examination he thought he'd actually enjoy, when Washburn lifted his head, shook it, and said to Tollson, "I have no questions for this witness."

"Special agent Riggio," Mills began with the next witness, "how did the FBI get involved in the Khalil case?"

Marcia Riggio had short, cropped dark hair. She wore a navy-blue suit that would not have looked out of place on a man. But the severe look was mitigated by a tan open-necked blouse of some soft and shimmery material, as well as by a plain gold chain necklace. She sat upright in the witness chair, her hands folded in her lap, and spoke with a formal and flat inflection. "Many witnesses at the scene reported hearing an explosion, which the arson inspectors concluded was consistent both with the damage to the bedroom and with the cause of the ensuing fire. Mr. Khalil and his wife were both naturalized citizens from Iraq, and so because of a possible terrorist angle, local officials deemed it prudent to contact Homeland Security, the Bureau of Alcohol, Tobaccco and Firearms, and the Federal Bureau of Investigation. Subsequently, analysis of the shrapnel from the explosion revealed that the blast was caused by a device called a fragmentation grenade, probably of domestic manufacture, the possession of which is against federal law. Effectively, the FBI took jurisdiction of this case, although we of course shared our findings with local police."

"And what were your findings?"

"Very little in the first few days. Besides the fragmentation grenade, we discovered that both victims had been shot before the explosion, with nine-millimeter caliber bullets which, when we found them, were too badly formed for comparison to a firearm. We interviewed several family members, of course, in the wake of the attack, and were beginning to process that information when my partner, Jacob Freed, and I received an envelope in the mail that contained a computer diskette with a photograph file that focused our attention in a different direction. Among the pictures in that file were photographs of the Khalils' home taken from several angles, with a handwritten note that the pictures had been downloaded from a computer belonging to a Mr. Ron Nolan. Subsequently, Mr. Freed obtained Mr. Nolan's telephone number and left him a message that we would like to have a discussion with him on a matter that might involve national security. There was no mention of the Khalils, or of the photograph."

"Did you in fact interview Mr. Nolan?"

"Yes."

"What did he tell you?"

Washburn was on his feet. "Objection. Hearsay."

Tollson looked at Mills. "Counsel?"

"You've already ruled on this, Your Honor," Mills said. "When Mr. Nolan's accusations to the FBI are repeated to Mr. Scholler, they give Mr. Scholler yet another motive to kill him."

Tollson looked over to Washburn. "She's right, Counsel. We did talk about this, and it's coming in. Objection overruled."

She went on in the same vein, meticulous as to every detail and nuance. Nolan's call to the FBI, his theory that his romantic rival, the defendant, might have broken into his house, his discovery of the frag grenades and 9mm Beretta weapon in his closet, the record of computer usage while he'd been away; then, following up on Nolan's theory, the FBI's discovery a day later of the defendant's fingerprints on the computer diskette. Finally, she came to an end.

"Trying to get the timeline correct, do you recall the day or date that you made the discovery about Defendant's fingerprints on the diskette?"

"Yes. Both. It was Thursday, June fourth."

Mills waited for more of a reply until she realized that Special Agent Riggio had answered her question and didn't need to deliver a speech about it. "And after you had that information, did you try to contact Defendant?"

"Yes, we did. We attempted to reach him through his job as a police officer in Redwood City, but he had not come into work that morning."

"Had he called in sick?"

"No."

"All right. Where did you try next?"

"We called him at his home, but there was no answer there. So we left a message on his answering machine."

"Did he ever answer that message?"

"No, he did not."

"Were you planning to place Defendant under arrest at that time?"

"No. At that time, we wanted to question him."

"Did you stake out his apartment?"

"No. We had no reason to suspect that he was avoiding us. We thought it likely that he would either call us or we would otherwise locate him in a day or so."

"Did you attempt to locate Mr. Nolan during this time?"

"No. He said he would call us if he got any more information. Beyond that, we had no reason to try and contact him during this period."

"So what did you do next?"

"We ran the fingerprints we'd picked up in Mr. Nolan's townhouse and determined that he had been correct. The Defendant had been in his house. Further, the defendant's prints were on the Beretta that was in Mr. Nolan's backpack."

"Did you find his prints on the fragmentation grenades?"

"No. They have a rough surface and did not contain usable fingerprints."

"But the Beretta with Defendant's prints was in the backpack with the fragmentation grenades, was it not?"

"Yes."

"And could you tell if that gun had been fired recently?"

"We could only say that it had not been fired after its last cleaning. But we have no way to tell when it had last been cleaned."

Mills, in a rhythm, kept it going. "Was the gun loaded?"

"Yes. There was a full magazine and a round in the chamber."

Mills knew she had covered a lot of ground with Riggio, who was in many ways the ideal witness, an uninflected, just-the-facts-ma'am kind of presence. But she still had a ways to go. "Special Agent Riggio, how did you discover that Mr. Nolan had been killed?"

Spinoza and Riggio ate up the whole morning, and court didn't resume until nearly two o'clock in the afternoon.

Washburn, who'd remained silent throughout the lengthy direct, showed little of the enthusiasm he'd displayed the day before as he slowly rose from his chair and advanced to make his cross. "Special Agent Riggio," he began sonorously, "you've testified that in the immediate aftermath of the Khalils' shootings, you interviewed several family members. What did you talk to them about?"

"We had the usual preliminary interviews following this kind of event."

"And what are these interviews comprised of?"

"Developing knowledge of the relationships between the family members and the deceased, as well as business, personal, political, or any other issues that might throw light on the investigation of the crime."

"How many of these interviews did you have?"

Mills spoke from behind him. "Objection. Relevance."

"Sustained."

Washburn couldn't entirely camouflage a disappointed grimace. "The Khalils have widespread business interests, do they not?"

Again: "Objection. Irrelevant."

This time Washburn replied. "Not at all, Your Honor. The People, while never charging Mr. Scholler with the murder of the Khalils, are attempting to insinuate without proof that he was somehow involved in their deaths. I'm wondering if Special Agent Riggio had interviewed anyone among Mr. Khalil's vast business interests who had any connection to Mr. Scholler."

"All right. Overruled. You may answer that question."

To Riggio, it was all the same. Unruffled, she nodded. "Yes, the Khalils had widespread business interests."

"Just here in this country?"

"No. Overseas as well."

"In Iraq?"

"According to the children, yes."

"But you didn't check that information yourself?"

"We were beginning to verify all the information we'd gathered when Mr. Nolan was murdered."

"So," Washburn said, "the answer is no, you didn't check the information about the Khalils' business interests in Iraq, isn't that so?"

"Your Honor!" Mills tried again. "Relevance?"

Washburn said, "It'll be clear in a second, Your Honor."

"All right, but it had better be. Overruled."

"Special Agent Riggio, Mr. Nolan worked for an American security contractor firm in Iraq, did he not? Allstrong Security."

Now Mills was on her feet. "Your Honor, please! We've discussed this before. This fishing expedition is going nowhere and the only purpose to eliciting this hearsay is to suggest a connection between Mr. Nolan and the Khalils, which is unsupported by any evidence."

Washburn knew he could probably get away with at least one outburst per trial. He figured this was as good a time as any, and whirled around on Mills. "There's a whole lot more evidence of Nolan's involvement with the Khalils' murders than of my client's. You just don't want the jury to hear anything that doesn't fit your theory."

Bam! Bam! Bam!

"Mr. Washburn!" Tollson exploded. "Both of you. Enough. Any more of this and somebody's going to get a contempt charge. You're to address your remarks to the bench and not to one another." Tollson stared them down, giving equal time to both. Then, glancing at the wall clock, he said, "I'm calling a ten-minute recess so everyone can cool off."

When Washburn resumed, his was once again the voice of sweet reason. He produced a stack of documents received from the FBI and gave them to Riggio on the stand. "Special Agent Riggio. Using these business records, did you have an opportunity to investigate the fragmentation grenades that you discovered in Mr. Nolan's apartment?"

"Yes."

"And what did you discover?"

"These particular grenades were produced in late two thousand two-if you want the stocking and serial numbers, I've got them, but-"

"That won't be necessary. Go ahead."

"And they were shipped to Iraq in the early weeks after the invasion."

"Do you know if they were delivered to Mr. Scholler's patrol?"

"No."

"No, you don't know, or no, they weren't?"

"They were delivered as part of a consignment to Allstrong Security in Iraq."

"Is there any evidence that Mr. Scholler at any time had possession of these grenades, or shipped them back, by whatever means, to the United States?"

"No."

"Special Agent Riggio, have you any witnesses that reported seeing these grenades in Mr. Scholler's possession at any time?"

"No."

Even though he'd gotten the right answer on the last several questions, Washburn knew it wasn't much. But it was probably all he was going to get. He smiled at the witness. "Thank you," he said. "No further questions."

26

By the following tuesday afternoon, the weather had turned. A violent early-season storm toppled trees and flooded many of the low-lying streets around the courthouse, playing enough havoc with the morning's traffic patterns that court couldn't be called into session until nearly eleven o'clock, and then only to adjourn almost immediately for an early lunch.

In the previous two trial days, Washburn hadn't had much to say to the witnesses Mills called. The other FBI agent, Jacob Freed, provided pretty much the same testimony as his partner, Marcia Riggio. Washburn hammered a bit at the provenance of the frag grenades again, at the lack of real investigation into the lives and motives of possible other suspects in both the Khalil and Nolan murders after they'd identified Evan as their main person of interest. But he knew that he'd inflicted little if any damage to the prosecution's case-the fact, and Washburn hated to admit it, was that the FBI and Spinoza had coordinated very well, and had fashioned an evidentiary chain that was pretty damn compelling. In the end, Washburn just wanted to get Freed off the stand as quickly as possible, although he still took the better part of half a day.

Likewise, David Saldar, the locksmith, came to the stand and, by far the most nervous and uncomfortable witness to date, gave his testimony without any surprises. He was talking about an unarguable point in any event-Evan Scholler had done exactly what Saldar was saying he'd done. He'd lied to a friend, he'd used the police uniform to buttress his credibility, he'd let himself into a home that was not his. It wasn't exactly a high-water mark for the defense, but Washburn couldn't do anything about that either.

Mills's final witness, who'd taken up most of yesterday's-Monday's-time, had been Tara. In spite of clearly conveying to the jury that she was involved with Evan, she not only reaffirmed the fact that Nolan had told her he was concerned and worried about Evan's break-in, but she also provided the crucial testimony of the overt threat to Nolan's life that Evan had made at the Old Town Traven.

Coming from a woman who so obviously did not want to hurt the defendant, Tara's testimony seemed to resonate with the jury in an especially powerful way. And Washburn, try as he might, couldn't get a handle on what he could cross-examine her about-that she hadn't believed Nolan's assertion about Evan planting the weapons in his house? That Evan hadn't really meant what he'd said about killing his rival? Neither of those opinions would be admissible, since that's all they would have been-the opinions of a woman, the jury would feel, who would certainly lie if lying would help her lover's defense.

Now the prosecution had rested and Washburn would get his chance to present an affirmative defense. But in the absence of a client who could even deny that he'd committed the crime, in the absence of an alternative suspect, and with the plethora of motive and opportunity weighing in against Evan, he knew that this might be the legal challenge of his entire career. He didn't have much, and what he did have was dubious at best.

The first order of business was to try to get the jury, to the extent it was going to be possible at all, into Evan's camp. Reminding himself that he only needed one juror, he settled on a woman in the back row named Maggie Ellersby, who was about the same age, and pretty much had the same suburban-housewife look, as Evan's mother, Eileen. More than that, during jury selection she'd revealed that she had two sons of her own; that she was opposed to the war in Iraq, although she supported the troops there. She might have a liberal streak, which in turn might extend to perceiving Evan as some kind of a victim of something, and hence not completely culpable. Beyond that, she had been married to the same man for thirty years, and so might in her heart be rooting for Tara and Evan to put this problem behind them and have a life together. All of this, of course, was extremely nebulous, but it gave Washburn hope to have a "litmus juror" to whom he could target his defense.

"Your Honor," Washburn said as a fresh squall of rain tattooed the courtroom's windows, "the defense calls Anthony Onofrio."

"Mr. Onofrio, you knew the defendant, Evan Scholler, in Iraq, did you not?"

Washburn wanted Onofrio for a variety of reasons, not the least of which because he exuded such an appealing "regular guy" quality. This was an inherently friendly man who worked with his crew on California's roads. He had some, but not too much, education. Good-looking in a casual way, he might be able to bring Mrs. Ellersby, for example, along in his regard for Evan Scholler.

"Yes, I did. He was my squadron leader."

Over the next hour, Washburn led Onofrio over the same ground they'd covered during the PTSD hearing before jury selection. Mills objected to the same things she'd objected to at that time-that Onofrio wasn't even in the U.S. at the time of the murder and therefore his testimony couldn't possibly be relevant-but Washburn argued again that Onofrio's testimony was foundational to Evan's head injuries, which so far hadn't even made it into the record. Even without mention of PTSD, those head injuries were certainly relevant to his blackouts, and these, in turn, Washburn argued, and Tollson agreed, could be a core issue for the defense.

The gallery grew hushed as Onofrio began describing the firefight at Masbah, concluding with the observation, "…we could have gotten out, but two of our men had already been hit, and Evan wasn't going to leave without them."

"So what did he do?"

"He led a couple of the other guys up to the first Humvee and pulled out the driver of that vehicle, then carried him back to our car. Then they went back for the gunner."

"And was Lieutenant Scholler under fire at this time?"

"A lot of fire, sir. It was pretty hot, coming from all over."

"All right." Having established Evan's bravery as well as his concern for his men, Washburn let Onofrio get to the end of the Masbah story without further interruption. Washburn was happy to see that Mrs. Ellersby needed to dab at her eyes with a Kleenex several times during the recitation. When Onofrio finished, Evan bleeding profusely from the head and surrounded by his dead comrades, several other jurors were having similar reactions.

Washburn stood still for several seconds, moved as the jurors had been by the story. Then he turned the witness over to the prosecution.

The last time Mills had cross-examined Onofrio, during the 402 hearing on PTSD, she'd hit pay dirt with questions regarding Evan's alcohol use in the war zone. Accordingly, she wasted no time broaching the topic again as soon as she was in front of the witness.

"Mr. Onofrio, did you personally witness Defendant drinking alcohol in Iraq?"

But this time, Washburn was ready for her. "Objection. Irrelevant."

"Sustained."

Mills was halfway back to repeating her question when she stopped herself in almost a double-take fashion. "Your Honor," she said, "with respect, Mr. Washburn made a similar objection during our four-oh-two hearing in this matter, and at that time you overruled him."

Tollson removed his glasses, leaned over the bench. "Yes, I did, Counselor. At that time, the question of Defendant's alcohol use, or not, was germane to the issues involved in that hearing. Here, unless you can show me that Defendant's alcohol use, or not, in Iraq in some way refutes Mr. Onofrio's testimony, or relates directly to the crime with which Defendant is charged, I'm not going to allow it. It's irrelevant, as Mr. Washburn has noted."

Mills stood flatfooted, then walked back to her table, checked her binder, turned a page or two of it, and looked back up. "All right, then." Determined not to let the jury see she'd been caught off balance, Mills smiled through clenched teeth. "Well, then, thank you, Your Honor," she said. "I'll tie this up and we'll come back to it later."

Denied his use of PTSD, Washburn's best hope was still some kind of a medical defense. If the jury didn't buy the fact that Evan had suffered a severe and extended blackout, then he was left with no defense whatsoever, except that he was lying. So, to that end, over the past weekend Washburn had spent several hours going over his next witness's testimony. He could only hope that it was going to be enough.

"Dr. Bromley," he began. "What kind of doctor are you?"

"I'm a neurologist at Stanford Medical Center and at the Palo Alto Veterans Center."

"A brain doctor, is that right?"

In his mid-fifties, though he looked ten years younger, Bromley dressed impeccably. With a strong jaw, a prominent nose, fathomless eyes, and a short, well-kept Afro, he exuded a steely confidence. Now he allowed a breath of a smile to grace his features as he nodded. "That's the lay term, yes."

"Doctor, did you know Mr. Scholler before his arrest?"

"Yes. He was a patient of mine at the Veterans Center after he was released from Walter Reed."

"According to your understanding, Doctor, what was his situation at Walter Reed?"

"He was admitted there in September of the previous year. When he arrived, he was still in an unconscious state from injuries sustained overseas. Doctors had already performed a craniectomy-removal of a section of skull to allow the brain to swell-and his condition was poor. They thought it highly likely he would die. Second prize was that he would survive, but be a vegetable."

Washburn noticed several of the jurors flinch at this brutally matter-of-fact account. He went on. "And when you first saw him here in California? When was that, by the way?"

"Mid-March, nine months after he was wounded. He had made, frankly, a nearly miraculous recovery."

"In what sense?"

"In almost every sense imaginable. They'd replaced the disk of his skull about three months before that, and already his speech patterns had returned to almost normal. His memory still suffered small short-term lapses, and specific words would evade him from time to time, but he seemed to be improving in these areas with each test we administered. His physical coordination was such that I had no problem recommending that he go back to his work as a policeman, so long as his assignment was neither too strenuous nor stressful. In short, his was the most remarkable recovery from traumatic brain injury that I've seen in my twenty years of medical practice."

Washburn nodded, delighted that he had fastened upon Bromley. He'd always been in the picture, of course, but the opportunities for Evan's defense that involved PTSD had always seemed somehow sexier and more compelling. Now, knowing what was going to come out, he started to entertain a small ray of hope that a straightforward medical explanation could produce approximately the same results as a PTSD defense. If he could make his client any kind of a victim, he knew he still had a chance.

"Doctor, did you have an opportunity to examine Mr. Scholler after he was arrested?"

"Yes."

"How soon after?"

"A couple of days."

"And what was his condition at that time?"

"Well, mostly he was suffering from headaches. But he was also experiencing fairly severe disorientation as well as some speech aphasia. All of this is, of course, consistent with trauma to the brain."

"But you have testified that the symptoms of his traumatic brain injury had all but passed by a few months before that, isn't that so?"

"Yes."

"And yet these symptoms seem to have reappeared. Right?"

"Correct."

"And why is that?"

"Because of new trauma. At the time I saw him after his arrest, Mr. Scholler had sustained several new head injuries."

"And how did he get those?"

"He told me he had been in a fight with Mr. Nolan."

"A fight with Mr. Nolan." Washburn half turned to bring the jury along with him. He particularly noted Mrs. Ellersby, canted forward in her chair, rapt. "Doctor, could a mere fight produce these kinds of debilitating injuries?"

"Of course. Any knock to the head can cause severe injuries, or even death. And from examining Mr. Scholler's head, I found evidence-bruises and broken skin-of several such blows. He also had a new concussion."

"Were these injuries enough to make a person pass out?"

"Certainly."

"At the time they were inflicted?"

"It could be then."

"Could it also be later?"

"Yes."

"Thank you." Washburn risked another quick look at the jurors. Everyone was still with him. "Now, Doctor," he continued, "in a case like this one, where there had been previous traumatic brain injury within the past year, might the ramifications of a beating such as the one endured by Mr. Scholler be more serious than in someone without that history?"

"There's no might about it."

"So the symptoms of this kind of beating would be more serious than they would be to someone who hadn't had the earlier trauma?"

"Well, not to say that a single beating couldn't be severe enough to cause significant damage, and even death. But certainly the history of recent trauma would exacerbate any symptoms from the beating."

"And why is that?"

"Because the brain is an extremely complicated and slow-healing organ." Bromley-bless him, Washburn thought-turned to address his remarks directly to the jury. "It's common, in fact it's the norm, for a TBI to cause neurological and physical problems forever. Other scenarios, particularly if they involve bleeding and clotting, can take two to four years to clear up entirely. And even then, there may be scarring and other complications."

"What about blackouts?"

"Yes, of course, blackouts too. Although typically, medical professionals don't refer to them as blackouts. It's not a very specific term."

"Is there a specific medical term, Doctor?"

"Well, there is syncope"-he pronounced it sin-co-pee-"which is more or less simple fainting. Then there are seizures, both epileptic and psychogenic, that is, nonepileptic. And finally there are alcoholic blackouts, where you have anterograde amnesia during or following a drinking binge. All of these would probably be called some sort of blackout by a lay person, and all of them might be affected by TBI."

"And what happens during any of these blackouts?"

"Either one or both of two things: temporary loss of either consciousness or memory."

"And how long can a blackout last?"

"Well, again, that depends. In some sense, lay people might call a coma a blackout, and they've been known to last a decade or more. Most, like fainting or epileptic seizures, last no more than ten minutes."

And suddenly, with this answer from Dr. Bromley, Washburn felt a sickening hollowness in his stomach so acute that he thought for a moment that he might have a period of syncope himself. He had known of the weakness of this blackout information, of course, for the better part of the year, and had gone over it again with Bromley over the past weekend, intent on getting this medical evidence into the record.

Struggling to get to his next point, all at once he saw this testimony now for what it was, and it was smoke. He could sense that it wasn't going to work. His idea had been to establish that Evan's loss of consciousness was a possible, and even common, result of his TBI, tying everything neatly back to Iraq, and the good soldier sympathy vote from Mrs. Ellersby. After the beating Evan had taken on that night, Washburn had assumed that he'd be able to supply at least a colorable argument that Evan's coming testimony held water.

And now, with a great and terrible clarity, he could see it just wasn't going to fly. The fact that Evan might have blacked out at some point was no proof that he actually had spent any or all of that time in an unconscious state. In fact, given his blood alcohol level at the time of his arrest, it was indisputable that he'd had at least flashes of consciousness during that time when he'd drunk himself into oblivion. Washburn's thought that he could slip this past the jury or that it would get lost in a wave of sympathy was just wishful thinking. He had believed it might work because he needed it to work to have any hope of winning this case.

Washburn still had Bromley's testimony about much of what Evan had been through because of his traumatic brain injury. He might go on to suffer effects from that for the remainder of his life. A few of the jurors initially might still give Evan the benefit of the doubt because they took pity on his situation. But Bromley's testimony offered nothing at all in the way of proof that Evan had been incompetent or unable to commit the murder of Ron Nolan. And eventually, this simple fact was very likely to convict his client. He'd been deluding himself to think otherwise.

He walked to his table and took a sip of water. Turning, he came back to his place in the center of the courtroom. Still, he hesitated.

"Mr. Washburn," Tollson asked with some concern, "is everything all right? Would you like to take a recess?"

"No, Your Honor. Thank you." Then he executed his trademark bow, thanked Bromley, and turned him over to Mills.

The prosecutor got up and advanced to her place with an enthusiasm that told Washburn that she hadn't missed the issue. And indeed, her first question honed in on it. "Doctor, with regard to these blackouts you were discussing. You said they usually lasted a few minutes, is that right?"

"Normally, yes, although it can vary."

"So you said. So your testimony is that a blackout can last for a few days, is that right?"

"Well, again, the terminology of blackout isn't precise. If we're talking about fainting or a seizure, I'd say no. They don't last more than ten minutes usually. True unconsciousness, however, can of course extend indefinitely, though I would hesitate to call that a blackout."

"So is there any way that you can assure the jury that Defendant in fact suffered any kind of blackout at all on the night of the beating?"

"No, I can't say that."

Mills threw a plainly gloating look over to the jury, then came back to Bromley. "Thank you, Doctor. That's all."

"Was it just me," Evan asked, "or did not that go very well?"

They were in the holding area behind the courtroom again, for the recess. In a gesture that Washburn took to be one of sympathy, the bailiff had delivered paper cups filled with fresh, hot coffee for both him and his client. Normally, this wasn't allowed since a suspect with a cup of hot coffee was a suspect who could attack people with it, but today for some reason-the change in the weather? the pathetic Bromley testimony?-the bailiff had offered and both men had jumped at the chance.

Washburn, of course, downplayed the problem. Shrugging, he said, "Between Onofrio and Bromley we got in a whole lot of what you've been through. Somebody on that jury is going to care, you watch." He sipped at the brew. The bravado he'd put in his answer wasn't just to buff up his own self-image. Evan was going on the stand next, and Washburn needed him to project both relaxation and confidence while he was up there. He was going to get to tell his story at last and, more importantly, sell it to the jury.

But it wasn't much of a story, and both men seemed to understand that.

"Don't take this badly." Unruffled, collected, Washburn leaned back against the wall and crossed one leg over the other. "I still think we've got a decent shot, but I also think the Court would look favorably on an offer to plead."

Evan turned his head and fixed Washburn with a glare. "We've been through that."

"Yes, we have. And now you're going to tell the jury that you didn't kill Nolan."

"That's right."

"Any idea who did? Because I don't have one."

"It wasn't me."

"Because you don't remember doing it?"

"Everett. Listen. I can't believe I beat him with a poker, then shot him in the head, and have no memory of it. I would remember that."

Washburn sighed. "Well, as you say, we've been all through it. But we could say you went back to talk to him after the fight and he attacked you. You were weak from the earlier beating and you had no choice but to grab the poker…"

Evan was holding up his hand. "…and execute him with a point-blank shot to the head. I didn't do that. That is not who I am."

"Yes, and that may not be the point." He tipped up his coffee and swallowed. "There's absolutely nothing about those days that you remember?"

"You don't think I've tried? You don't think I want to remember any little thing?"

"Maybe you were drunk the whole time?" Washburn rubbed his palms on his pants legs. "I want you to think about this carefully, Evan. If that's what happened, at least that gives the jurors something more to think about."

"If I change my story now, then I'm a liar before, though, right?"

"No. If you just remembered, it's come back to you in the stress of the trial."

"Damn conveniently. They'll see through that in a heartbeat."

"Okay. Suppose it happened that you were home the whole time, suffering from the beating, drinking to kill the pain. You never left the apartment."

"And how does that help me? They'd still have to believe me."

"No." Washburn shook his head. "They don't have to believe you. One of them has to believe you. It's a lot better to say 'I didn't do it' than 'I don't remember, but I probably didn't do it.' There's a real difference there."

Evan took a couple of breaths. "I thought it was about the evidence. Not what I say. What the evidence says."

"That's the problem," Washburn said. "The evidence, my friend, makes a very good case that you did it." Just at that moment, the bailiff appeared, and Washburn punched his client on the thigh. "Drink your coffee," he said. "We're up."

27

After the months of buildup, the endless coaching and strategy sessions, the arguments, disagreements, accords, and prognostications, Evan Scholler's time on the witness stand was really quite brief. Washburn saw no point in having his client go over again all of the reasons he might have had to loathe the victim. That had all been well-established by earlier witnesses. There were really only a couple of lines of inquiry that Washburn thought stood any chance of traction with the jury, if only because they provided an alternative theory to the case, and he got right to them.

"Evan," he said, "why did you break into Mr. Nolan's home?"

"First, let me say that that was wrong. There's no excuse, I shouldn't have done that. I should have advised the homicide detail of my suspicions about Mr. Nolan."

Mills got to her feet. "Your Honor, nonresponsive."

"Sustained." Tollson's glare went from Washburn over to Evan. He spoke to the defendant. "Mr. Scholler. Please only answer the questions that the attorneys put to you. You're not here to make speeches."

"Yes, Your Honor. Sorry."

"All right, Mr. Washburn, go ahead, and carefully, please."

Washburn posed the question again, and Evan responded. "Because I had found out about the Khalil murders from the paper, and then more about them from Lieutenant Spinoza. I had gone on a mission with Mr. Nolan when we were in Baghdad together, and he'd used frag grenades at that time. Then, knowing that Mr. Khalil was of Iraqi descent, and knowing what Mr. Nolan did for a living, it occurred to me that he might have had something to do with those murders."

"Why didn't you simply, as you say, go to homicide?"

"Because I might have been wrong, which would have made me look stupid both to the lieutenant and to Tara, and I couldn't have that."

"Why was that?"

"Well, one, I was a policeman myself. Two, I was hoping to reconnect with Tara."

"All right. So you broke into Mr. Nolan's home?"

"I did let myself in, yes."

"Trying to find evidence that Mr. Nolan had been involved in the Khalil murders?"

"That's right."

"Didn't you think that was a bit far-fetched?"

"Not at all. I'd seen Mr. Nolan kill other people."

Mills raised her voice. "Objection."

"Your Honor," Washburn responded. "Mr. Nolan was a security officer. Sometimes his job was to kill people. Mr. Scholler knew him in that setting in Iraq. There is nothing pejorative about it."

Tollson put his glasses back on. "Objection overruled."

"All right," Washburn continued. "Now, when you went into Mr. Nolan's home, Evan, did you find anything which in your opinion might have been connected to the Khalil murders?"

"Yes."

Evan ran through his actions and motivations in a straightforward manner-the frag grenades, touching the gun both in the backpack and in the bed's headboard, the computer files. As Washburn had coached him, he kept bringing his narrative back to the jury, and particularly-without being too obvious-to Mrs. Ellersby, three over from the left in the second row.

"So you copied the photographic computer file?"

"Yes."

"Presumably, now, you had your proof, or at least some possible proof, of a connection between Mr. Nolan and the Khalil murders. What did you do next?"

"Well, I didn't want to take away any of the proof, so that it would still be there when the FBI searched the house-"

Mills pushed her chair back with a resonant squeal and said under her breath, "Give me a break."

Tollson banged his gavel with some force. "If I thought you'd done that on purpose, Ms. Miille, I'd hold you in contempt right now. There will be no histrionics in this courtroom! You will live to regret the next outburst of any sort and I'm admonishing the jury to disregard your unprofessional comment." Then, to Evan, "Go ahead, Mr. Scholler."

Evan let out a long breath, for the moment apparently, and perhaps actually, unable to remember where he'd been in his testimony.

Washburn took advantage of the moment. "I'm sorry, Your Honor, my client seems to have blacked out for a second."

"Oh, Christ!" Mills whispered.

Bam! Bam!

"That's it, Ms. Miille, you're in contempt. We'll talk about what the sanction is going to be outside the presence of the jury." His mouth set in a hard line, Tollson pointed to both attorneys. "This ends here, I'm warning you. Mr. Washburn, does your client need a minute to compose himself?"

"Evan?" Washburn asked. "Are you all right?"

"Fine."

"All right," Tollson said, "let's have the reporter read back the last question, please."

The question got Evan back to where he was saying that he didn't want to take away any of the proof, so that the FBI would find it when they searched the house. "So I decided to make a copy of the photo file on the computer that held what I was sure was a picture of the Khalils' house. So I took one of the diskettes and made the copy and brought it home."

"Now, wait a minute. You were a policeman and you had what you considered strong evidence of a murder, and yet you didn't contact homicide?"

"Right, I didn't."

"And why was that?"

"Because I couldn't tell them what I'd found without admitting I got it in an illegal search. None of it would have been admissible in court."

"So what did you do?"

"I mailed the diskette to the FBI, who I heard were investigating the Khalil murders."

"And then what happened?"

"And then Mr. Nolan came home and must have realized that somebody had been in his house."

"In fact, he must have realized it was you, Evan. Isn't that so?"

"Well, the way it worked out. Yes, apparently. So he turned it all around to make it look like it was me who'd planted the evidence at his place and also, incidentally, killed the Khalils."

Washburn knew this was all inadmissible speculation but was betting that Mills, still reeling from the contempt citation and the reaming she had taken in front of the jury, would be keeping a low profile, at least for a while. He pressed on. "And did you, in fact, kill the Khalils?"

"No, I did not."

"Were you ever charged with killing the Khalils?"

"No."

"Did you at any time send fragmentation grenades or any other type of arms, ammunition, or ordnance from Iraq to the United States?"

"No, I did not."

"At any time, did anyone ever present you with any evidence that you had tried to send these items from Iraq to the United States?"

"No."

"Now, when you heard that Mr. Nolan had turned the tables on you and reported to the FBI, what was your reaction?"

"I was furious. I wanted to confront him and fight him."

"You did not want to kill him?"

"That never entered my mind. I was mad. I wanted to hit him."

"With brass knuckles?"

"I just happened to have them with me that night, and when I got there, I thought I might need them. Mr. Nolan had a great deal of training in hand-to-hand combat, more than me, and I wanted to level the playing field."

"So, by fighting him, did you want to stop him from telling his story to the FBI?"

"No. It was too late for that. He'd already done it." This was another critical point related to Evan's alleged motive. There would be no point in killing Nolan to stop him from turning over evidence to the authorities if that had already happened, which it had.

"So let me get this straight, Evan. On the evening of June third, two thousand four, Tara Wheatley told you that she had ended her relationship with Mr. Nolan and wanted to pursue one with you, is that correct?"

"Yes."

"And on that same night, you learned that Mr. Nolan had already supplied the FBI with evidence that supposedly connected you to the Khalil murders, right?"

"Right."

Washburn threw an open glance at the jury. Could his point be more plain? But it was, of course, necessary to nail it down in all its particulars so there could be no misunderstanding at all. "In other words, Evan," he said, "did you have any motive to kill Ron Nolan on account of your relationship with Ms. Wheatley?"

"No, I did not."

"And did you have any motive to kill Mr. Nolan to prevent him from talking to the FBI?"

"No. He'd already done that."

"So you had no motive to kill Mr. Nolan, is that right?"

"I had no reason to kill him."

Washburn cast one last sidelong glance at the jury box, fixed on Mrs. Ellersby for a second, and was pleased to note that she was nodding soberly, as if newly convinced of something. Evan's testimony had, he was sure, made a strong impression on her. And if on her, then maybe on one or more of the others.

Mills rose slowly from her table, her brow creased, her face set in an expression of deep concern. She came and stood in her spot and brought her right hand to the side of her face, then let it down. "Mr. Scholler, as you've testified, on June third, two thousand four, you went up to Mr. Nolan's townhome with the intention of fighting him, and then you did in fact engage in a fight with him, am I right so far?"

"Yes."

"What did you do after that fight ended?"

"I don't remember."

"You don't remember? Did you black out?"

"I don't remember."

"So it is not your testimony that you suffered a blackout, after all. Is it?"

"No. Whether I did or not, I don't remember."

"You suffered quite a beating yourself in this altercation, did you not?"

"Yes."

"And yet, with all the problems you've had, particularly with traumatic brain injury, you did not seek medical help?"

"Apparently not, but I don't remember."

Washburn raised a hand at his desk. "Your Honor, objection. Badgering. If he doesn't remember anything, it follows that he doesn't remember particulars."

This satisfied Tollson, and he nodded. "Sustained."

Mills pursed her lips and paused to phrase her question so it came at things from a slightly different angle. "Mr. Scholler," she said finally, "what is your first memory after you sustained your injuries on Wednesday night at the hands of Mr. Nolan?"

"I remember waking up in a hospital bed, I think it was the Saturday night."

"So Wednesday night through Saturday night is a complete blank, is that right?"

"That's right."

"All right." Mills paused for another second or two, and then-just like that!-her posture changed. Her back straightened perceptibly, a wisp of a grim smile tugged at the corners of her mouth. Obviously, she had reached some decision, as though she'd done everything in her power to get to this point, and now the time had come to commit irrevocably to her strategy. "So now, Mr. Scholler, as you are sitting here in front of me and the members of this jury, maybe you killed Mr. Nolan and maybe you didn't. You just don't remember. Is that right?"

Evan sat with the question for a long moment.

"Mr. Scholler," she prompted him. "It's a yes or no question. Can you tell me that you did not kill Mr. Nolan?"

Evan's eyes went to Washburn, who returned his gaze impassively. Coming back to face his prosecutor, Evan leveled his gaze at Mills. "I don't remember," he said at last.

28

At eight-thirty the next morning, Mary Patricia Whelan-Miille sat on the corner of her desk in her small office. Behind her, outside the window, the freak storm was into its second day and showing no signs of clearing. In the parking lot just outside, the cold and heavy rain slanted nearly horizontal in gusting sheets. In front of Mills, her secretary, Felice Brinkley, sat with a notepad on a folding chair that she'd set up by the door.

Felice was a no-nonsense woman who wore minimal makeup and had let her hair go almost completely gray. Mills thought she'd done this as a defense against being hit on by guys-with her finely pored skin, sculpted cheeks, and a hooded, sensuous cast to her eyes, and even with the gray hair and lack of fuss, she was a strikingly attractive woman. The curvaceous figure didn't hurt either.

Thirty-six years old, she was the mother of two boys and a girl, all under twelve. Mills also believed that Felice was among the smartest people she'd ever met and constantly tried to persuade her to take the LSATs and become a lawyer herself, but Felice would have none of it-perhaps in itself, Mills had to admit, a testament to her intelligence. The way it was now, Felice was explaining for the fiftieth time, she could come in early, work her regular hours, skip lunch, and be home just about in time to be there for the kids when they got home from school. Her husband, John, worked a swing shift in maintenance for the city for the pay differential, so one of them was always there for the kids. "That's just our priority."

"But with the extra money, and there'd be a lot more of it, John wouldn't have to work at all if you got in with a high-ticket firm, which you would," Mills replied.

"Sure. But I'd have to work twenty-hour days. And how would that make him feel, not working? He wants to work. Or if I made more money than him? I don't necessarily think that's a recipe for a happy marriage."

"But it's okay for him to make more money than you?"

"He doesn't."

"But if he did, that would be okay?"

"Sure. But it would also be okay if I made more than him, if that's just the way our lives work out. But why should I go for a new job that I wouldn't like as much and would keep me away from my kids just for the money?"

"Because money is what makes you safe, Felice." She held up an admonitory finger. "Okay, and I know you don't want to think about this, but what if he leaves you?"

"Who, John?" She laughed. "John is never going to leave me."

"How can you be sure of that? He's a man, isn't he?"

Felice had heard all of this before, and found it mildly amusing. Her poor, sad, driven boss who worked impossible hours and was never in a stable relationship trying to tell Felice how to have a more secure and happy life-there was something inherently funny, if also somewhat pathetic, about the situation. "All men don't leave," Felice said. "Both the kids' grandfathers are still around, for example, and married to the grandmothers. It happens. In fact, in both of our families, John's and mine, it's kind of a tradition." She brushed her hair back from her forehead, opened the notepad on her lap, snapped her ballpoint a couple of times, checked her watch. "Now, how about you show me this closing argument?"

Suddenly wide-eyed, bushwhacked by the time, Mills boosted herself off her desk. "Oh, God, is it really eight-thirty already? We've got to…"

Felice raised her hand. "You've got to just calm down, MP, and tell the story. That's all you've got to do. Slow and easy."

"You're right." Mills blew a strand of her hair away from her mouth. "You're right."

"Yes, I am." Felice clicked her pen again. "Okay, hit it."

"Ladies and gentlemen of the jury." Mills held her legal pad with her notes as a prop, although she knew pretty much exactly what she was going to say. "At the beginning of this trial, I told you that the evidence would prove to you beyond a reasonable doubt that Defendant killed Ron Nolan with premeditation and malice aforethought. I'd like to take a last few minutes of your time now to talk about the law and explain how the evidence has done exactly that."

For the next forty-five minutes, she focused on the elements of murder to help the jury wade through the verbose and sometimes arcane instructions that the judge would give them at the end of the case. Then she got to the core of the argument.

"So now I've explained what murder is. We've talked a little about what the legal definition of premeditation is, and I hope my comments have helped you understand what precisely the law requires be proved before the defendant may be found guilty. Now I'd like to talk to you about the evidence, the specifics of the testimony in this case, the exhibits, the reasonable inferences to be drawn from that testimony and from those exhibits that show the defendant's conduct meets the definition of first-degree murder.

"And what is that evidence? First, Mr. Nolan and Defendant were rivals for the attention of the same woman, Tara Wheatley. The defense would have you believe that on the night of Defendant's attack on Mr. Nolan-one that he freely admits, by the way-Ms. Wheatley, after a six-month relationship with Mr. Nolan, decided to suddenly change her allegiance and affections in favor of Defendant, and that because of this shift, Defendant no longer had a motive to want to kill Mr. Nolan. I submit to you that this is simply untrue."

"Wait a minute," Felice said. "Not 'untrue.' Be more earthy. Why not, 'Does this make any sense to you?'"

Mills nodded. "Better." She made a note, then resumed her pacing and her argument. "The defense is telling you that a man who lost his girlfriend to another man, who believes that that man lied and cheated and betrayed him, who knows that the man has enjoyed an intimate relationship with the defendant's girlfriend while he was laid up in the hospital, is suddenly told by the girlfriend that she intends to come back to him, and now everything is okay. No bitterness. No animosity. No hate. That's what the defense is selling. I hope you're not buying.

"First of all, because your common sense tells you that's nonsense. Blood feuds don't end in a minute. Long-held hates don't vanish overnight, and the defendant must have known that Ms. Wheatley, who had already changed her mind once, could just as easily change it again tomorrow and prefer Nolan to him. But more to the point, all the evidence shows that as a simple fact, the defendant still did hate Ron Nolan.

"After he talked to Tara, he armed himself with a deadly weapon-and as you've heard from the evidence, those brass knuckles are a deadly weapon-and he went to Ron Nolan's place for the express purpose of beating him. Does that sound to you like someone who had given up hard feelings, someone who had forgiven his enemy, someone who did not still want revenge and to inflict pain? Of course not. That's just nonsense." She stopped by the window. "Is that enough on that?"

Felice nodded. "I think so. You don't want to beat it to death. Just move along."

Pacing again, Mills continued. "While I'm discussing motive, let me just say that motive alone is not…"

"No," Felice said. "The weight of motive evidence will be in the jury instructions. You don't have to go there."

With a nod, Mills started in again. "The defense would also have you believe that the second equally compelling motive-that Defendant wanted to stop Mr. Nolan from producing more evidence to connect him to the Khalil slayings-was moot because Mr. Nolan had already produced such evidence. This is a spurious argument." She stopped. "Is spurious okay?"

Felice considered for a second. "Maybe a little fancy."

"How about specious?"

"Maybe a lot fancy." The paralegal rolled her eyes. "How about going for the blue-collar vote and using phony."

"Fake."

"False."

Mills snapped her fingers. "That's it. False." She went back to her formal voice. "This is a false argument because first, Defendant may well have believed that Mr. Nolan had more evidence. But more to the point, none of what Mr. Nolan had told the FBI about the Khalil evidence could be used against Mr. Scholler if Mr. Nolan was dead. If there's one thing you've learned in this trial, it's that we need to produce live witnesses to give testimony. I suggest to you that the defendant had an even greater motive to kill Mr. Nolan once it was clear that Nolan had turned him in and was prepared to cooperate as a witness against him.

"If the defendant did kill the Khalils, adding one more murder to the list to protect him from being caught wouldn't have been a big deal."

"Whoa up," Felice said. "You better be ready. Washburn's gonna light up on that one."

"I know. But I'm allowed to argue, and I want the jury to hear it."

"The judge won't let it in."

"No, probably not. But I'll talk fast and get as much of it in as I can before they shut me down."

"So long as you know."

"I know. Okay, moving on." Mills consulted her notes briefly. "So let's get down to what actually happened, what the undisputed evidence proves happened. Arming himself with brass knuckles, and admitting to Tara Wheatley that he was going to quote put an end to this unquote, Defendant drove to Mr. Nolan's house and attacked him. A fight ensued, and both men were injured. Three days later, a gun bearing Defendant's fingerprints was found on the bed in Mr. Nolan's bedroom, near to where Mr. Nolan lay on the floor with a fatal gunshot wound to the head from the same caliber weapon.

"Exactly what happened on the night of that fight? The only person in this courtroom who could tell us that claims that he has no memory of that time. No memory at all. And this in spite of his own doctor's testimony that blackouts last no more than ten minutes. That leaves a lot of conscious time for which Defendant has no explanation, and no memory. The evidence you've heard, and from his own witness, does not support his testimony.

"So with a lack of absolute certainty, we are left with the task of asking ourselves what is the most reasonable explanation for the facts in evidence. Is it more reasonable to assume that Defendant finished his fight with Mr. Nolan and then, inebriated and with a concussion, drove himself to his apartment, where he continued to drink for the next two days, while some unidentified third party, for some inexplicable reason-"

"Maybe unexplained."

"-for some unexplained reason, entered Mr. Nolan's home, beat him with a fireplace poker, and then shot him?

"Or is it more reasonable to assume that, armed with his set of brass knuckles, Defendant got the better of Mr. Nolan in their fight and, when he had finished that exercise, simply shot him in the head with a handgun he found at the scene? Then, ladies and gentlemen, and only then, after he had murdered Mr. Nolan in cold blood, did he drive himself home and proceed to drink himself into an alcoholic stupor." Mills stopped, locked eyes with Felice, and shook her head. "I hate this guy," she said.

"It's not coming across," her paralegal answered. "It's very clean and objective. I buy it completely."

"Not too short?"

"Not for me."

Mills glanced up at the wall clock. "Almost showtime. Imagine if I actually pull off beating Washburn."

"Don't get ahead of yourself. Just take it a sentence at a time." Felice stood up and gave her boss a quick hug. "You feel ready?"

"As I'll ever be."

"Okay," Felice said. "Go get 'em."

29

By late Friday afternoon, the tension was thick in the jury room. Ryan Cannoe, the foreman, had just counted the fifteenth ballot and the vote-from an original of eight to four to convict-now stood at eleven to one.

"Maggie," he said to Mrs. Ellersby, "we've got another forty-five minutes and then we're going to have to come back after a very long weekend. Now, I'm not trying to coerce any kind of a different vote from you, but if you're sure you won't budge, and you're never going to budge, maybe we should just send out the word that we're hung and leave it at that."

This brought a burst of invective from several of the other jurors. "After all the time we've put in on this!" "No way!" "That's bullshit!" "The guy's guilty as sin and we all know it."

"Maybe we don't all know it," Ellersby replied. The day-in fact, the whole jury experience-had been its own trial for her, especially since this morning when the last two defections from her camp had crossed over, leaving her as the lone vote to acquit.

"So that's your final decision, Maggie?" Cannoe asked again. "You really don't think he did it?"

"Not exactly that," she said. "I think he might have done it, as I've said all along. I just can't be sure in my heart that it's first-degree murder. If he went there to beat Nolan up and he died by mistake, that's second-degree."

Cannoe kept his patience. "Except he didn't die from the beating."

"No. I know that. Things got out of hand."

Juror #2, Sue Whitson, a woman of Ellersby's age who'd been an early voter for acquittal, now joined the argument. "Maggie, I'd be with you except that in the end, he put the gun up to the man's head and shot him. How do you explain that except to say that at some time, Mr. Scholler decided to kill him? And that's murder one."

"The point," Cannoe added, "is that you believe Scholler did it, don't you? Never mind all the legal distinctions. He pulled the trigger, right?"

Ellersby sighed and whispered, "I don't see how he didn't, but I don't know if they proved he did."

"It's not absolute proof, Maggie," Sue said. "It's proof beyond a reasonable doubt. And they've done that."

"You admit it yourself," Cannoe said. "You just said you don't see how he didn't do it."

"I know."

"Well, then…"

"Well, then, I just keep coming back to what Mr. Washburn said in his closing statement. That they could have come up with any number of other defenses that seemed to make more sense. Self-defense, for example, or heat of passion, or simply saying no, he didn't do it. But instead they went with the truth, which he admitted was maybe harder to believe…"

Sue reached out and put a hand on Maggie's arm. She spoke with a surprising gentleness. "Maybe because it wasn't, in fact, true, Maggie. Maybe Washburn's just playing on our gullibility, figuring we'll want to believe that this young man, Evan, who'd had such a terrible time in Iraq, that somehow his injuries there are to blame for the fact that he can't say he didn't kill Nolan. If it wasn't for all the Iraq stuff, would you have any doubt about what really happened? Would his story have made any sense at all? That's what I finally came to see. It just doesn't. I wish it did, but it doesn't."

"He came to beat him up," Cannoe said, "and wound up staying to kill him. If that's not what you see, Maggie, and you don't think you can ever say otherwise, I'll call for the bailiff and tell him we're hung. You want me to do that?"

Ellersby looked around the table at all of her intelligent, well-meaning fellow citizens. None of them cold-blooded, none out for vengeance. All of them had given nearly a month out of their lives to see that justice was done, that the system worked. And for her part, she knew that she had been irrationally swayed by the power of Washburn's simple argument in closing that he was too smart and too experienced to ever allow a ridiculous defense like Evan's "I don't remember" to be the centerpiece of his case, except that it was the truth.

That's why they had gone with that defense, because it was the truth.

And Maggie Ellersby's mind's eye could picture Evan passed out in his apartment, not from alcohol, but from his brain injury-not in a blackout but in a true state of unconsciousness, knocked out from the beating he'd taken.

But there was no evidence that that was what had happened. None at all. And what if Washburn, as another one of her colleagues on the jury had pointed out early on, was nothing more than a man who was paid to tell lies on behalf of his clients? That's what all lawyers were, right? She flashed on the O. J. Simpson case, the Dan White "Twinkie Defense" case in San Francisco. If she was the lone holdout, and her vote to acquit wasn't based on any evidence she could name, how would she be able to explain herself to her husband and her friends?

How could she live with herself?

"Maggie?" Sue softly queezed her arm again.

"Do you want me to call the bailiff?" Cannoe asked.

Ellersby looked up to the ceiling, said a quick prayer for Evan Scholler's soul, and brought her eyes back down to the table. "No," she said. "I think we need to do one more ballot."