Betrayal (22 page)

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.”

W
ASHBURN’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.”

M
ILLS 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?”

S
TEPHAN
R
AY,
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.”