"LADIES 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.
***
WASHBURN 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.
***
"MY 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.
He intended to find out where that point exactly was.
"This case and the issues surrounding it began in Iraq," he intoned. "It's important to understand the significance that Iraq plays in the affair, because so much of the evidence presented by the People that appears to cast Mr. Scholler in a negative light in fact paints a very different picture when viewed in its true context, the context of what happened in Iraq.
"You will hear testimony that the deceased was a highly trained mercenary with a long history of both overt and covert operations in some of the most violent places in the world-Afghanistan, Kuwait, El Salvador, and Iraq. At the time of his death, he was working as a government contractor for Allstrong Security, which has offices both here in California and in Iraq. All of his adult life, the man was surrounded by death and violence. This was his livelihood and he was good at it.
"Evan Scholler, on the other hand, worked as a Redwood City police patrolman until he was called up for deployment to Iraq in the first months after the invasion. He served over there for about three months before he was involved in a firefight against Islamic insurgents in Baghdad in which he suffered a head wound and traumatic brain injury. In a coma that lasted eleven days, he was airlifted first to a field hospital in Iraq, then taken to Germany, and finally brought to Walter Reed Hospital. In March of two thousand four, he came back to work for the police department here in this city."
He paused to meet a few more eyes in the jury box. There it was, he thought with some satisfaction and relief. Short and sweet, and he'd gotten it in. He'd hoped that bringing in this information first thing and right up front might catch Mills in a first-inning lull, and sure enough he'd pulled it off.
Dang! He loved the drama of a trial.
Taking a breath, his heart palpitations forgotten, he moved on to the more pressing evidentiary issues. "Ms. Miille has described at some length the evidence that she says will compel you to convict Evan of first-degree murder. That evidence is neither as clear nor as uncontradicted as she might have led you to believe. She talked a lot about the day of the killing. Just for openers, we don't know the day of the killing. Mr. Nolan was last seen on Wednesday, June third. He was found dead on Saturday, June sixth.
"Now, the prosecutor says he was killed on Wednesday, the third. If so, that would be convenient for the prosecution because that is a date when my client spoke harsh words about Mr. Nolan. The evidence will show, and it is in fact undisputed, that Evan had too many drinks that night, at a bar a few blocks from here called the Old Town Traven. There he learned that the deceased had tried to implicate him in the murders of two Iraqi citizens. Tara Wheatley, Evan's girlfriend, will tell you that, drunk and in a rage, he told her that he was going to go to Mr. Nolan's house and kill him. And in fact, Evan has never denied that he went to Mr. Nolan's house that night, and that the two men fought.
"So the prosecution says, and wishes you to conclude, that that's the night the deceased was killed. But as the saying goes, wishing don't make it so. There is no evidence that Mr. Nolan was killed on Wednesday, as opposed to Thursday, as opposed to Friday.
"And let's take the two motives that, according to the prosecution, caused Evan Scholler to commit murder. First, jealousy. Ms. Wheatley will testify that on the evening of June third, she came to find Evan at the Old Town Traven. She invited him to come back to her apartment for the night. She told him that she had stopped seeing Mr. Nolan, and that she was in love with him."
As though taken by an apparition, Washburn stopped in his tracks, spread his palms to the jurors. "Now, it's been a few years since I've experienced some of the finer emotions such as young love, but if my memory serves, when a woman tells you she's dropped another boyfriend in your favor, that's when jealousy's much more likely to go away than to make you want to go and duke it out with your rival."
This last witticism produced a gratifying hum from the gallery. Several of the jurors broke smiles as well. Feeding off those vibes, Washburn went on. "Now, anger. The evidence will indeed show that Evan was angry-angry enough to drive to Mr. Nolan's house and engage him in a fistfight. He was angry, the evidence will show, because he believed he was being framed for a murder he didn't commit. That's a good reason to be angry," Washburn added. "It might make any of you angry."
"Your Honor! Objection."
Washburn turned and took the opportunity to glance out at the gallery, always a reasonable litmus for how he was doing. Nobody snoring yet, anyway. He produced his patented half-bow, acknowledging the objection, and turned back to the jury box, without even waiting for the judge to rule. "I'll withdraw that last comment, Your Honor," he said.
And continued. "Why, you may ask, did my client illegally let himself into his rival's house? He had come to believe that Mr. Nolan was in fact the killer of Ibrahim and Shatha Khalil. He will testify that he accompanied Mr. Nolan on a kill-and-destroy mission in Iraq that featured the same type of fragmentation grenades as were used in the Khalil murders. This might have been an error in judgment, but it was not a prelude to murder. Had he intended to kill Mr. Nolan, he could have simply waited in his home and done it instead of gathering evidence against him to send to the authorities.
"These are all points that the prosecution has presented to you as facts, and they simply are not.
"Did my client hate Ron Nolan? Yes, he did.
"Was Evan Scholler struggling to recover from the physical injury and mental anguish he sustained as a result of fighting for his country in Iraq? Yes, he was.
"As a result of the pain, both physical and mental, did he sometimes drink too much during the months of his recovery? Yes, he did.
"And as a result of the combination of these things, did he display bad judgment? Without a doubt.
"He did misuse his authority as a policeman to keep track of Ron Nolan's whereabouts. He did break into Ron Nolan's house in the belief that Ron Nolan had a hand in the deaths of the Khalils. He did give way to despair and alcohol and anger, and threaten Ron Nolan. He did go to Ron Nolan's house and fight with him on the night of June third. He did all of these things and has freely admitted doing all of these things.
"But these are not the things for which he is on trial.
"Ladies and gentlemen of the jury, at the close of all of the evidence, you will find that what Evan Scholler did not do was kill Ron Nolan. That is something the evidence does not show. And when, at the close of the evidence, you can see that this has not been proved against my client, you will be obliged by your conscience and by the laws of this state to find him not guilty."