Betrayal (25 page)

“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.

W
ASHBURN 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.”

W
HEN 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.”

L
OCHLAND 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.”