Betrayal (23 page)

“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.”

“M
R.
R
AY,
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.”

B
ECAUSE 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.

O
VER 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.”

“L
ADIES 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.

W
ASHBURN 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.

“M
Y 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.