Betrayal (27 page)

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.”

W
HEN
W
ASHBURN 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.”

B
Y THE FOLLOWING
T
UESDAY 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.”

“M
R.
O
NOFRIO,
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.

T
HE 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.”

D
ENIED 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.”