Betrayal (20 page)

“Way more than that, Tara. I’m going to kill the son of a bitch.”

“Shh, shh, shh.” She moved up and put her fingers to his lips. “Don’t talk like that. That’s just crazy drink talk. Let’s just the two of us get out of here and—”

“Hey!” Taking her hand down, roughly, away from his mouth. “Listen to me!” Low and deadly earnest. “It’s got to stop! It can’t go on! It’s not about fucking drinking. Are you hearing me? It’s about honor. Who I am. What he’s done to us! Don’t you see that?”

“Yes, I do see that. You’re right. You’re completely right. But this isn’t the time to fix all that.” She moved in close and stood straight before him, arms at her side. “Please, Evan. I’m going to ask you one more time. Please come home with me. Whatever it is, we’ll work it out together. I promise.”

But the glaze in his eyes was all that answered her. Standing, weaving slightly, he gripped the back of his chair. “Enough’s enough,” he said.

She looked him in the face one last time. “I’m begging you,” she said. “Please.”

If he heard her at all, he didn’t show it. He stared blankly ahead at her, shaking his head, shaking his head. Then he started walking toward the door.

“Evan, please,” she called after him. “Wait.”

He stopped, and for a second she thought that she’d convinced him. He turned back to her. “Leave me alone,” he said. “I know what I’ve got to do and I’m gonna do it.”

And then he turned and again started walking unsteadily toward the door.

T
ARA 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.

L
IMPING, 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.

T
EN 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.”

W
HEN
E
VAN SAW
T
ARA
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.”

O
N
T
UESDAY 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.

I
N
T
OLLSON’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.