Betrayal dh-12

by John Lescroart

  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."

  23

  After the opening statements, they got right down to it as Mills called her first witness.

  The medical examiner, Dr. Lloyd Barnsdale, had been in his position for fifteen years. Dry as dust, pale as the corpses in his lab, the bespeckled and weak-chinned coroner wore what was left of his graying, dirty blond hair in a combover. Today, though the warm Indian summer days of September continued outside, he wore a cardigan sweater over a plain white shirt and a snap-on bow-tie.

  Mills waited impatiently for the ME to be sworn in. The confidence she'd felt in the morning when she'd finished with her opening statement had pretty much dissipated under the amiable onslaught of Washburn's monologue. The truth was that she had her work cut out for her. It would never do to become complacent. Washburn would eat her alive if she gave him any opportunity at all.

  "Dr. Barnsdale, you did the autopsy on Ron Nolan, did you not?"

  "I did."

  "Would you please tell the Court your ruling as to the cause of death?"

  "Certainly. Death was caused by a gunshot wound fired at close range into the head."

  Barnsdale had, of course, been a witness a hundred times before. This did not necessarily make him a good witness. He spoke with a wispiness that was very much of a piece with his looks. Mills, from halfway across the room, found herself straining to hear him.

  She saw that the jurors had, to a person, come forward in their chairs. It did not help that outside the building, road construction continued unabated on Redwood City's never-ending downtown beautification project. The noise of the heavy equipment was nearly as loud as the building's air-conditioning.

  Mills backed up a couple of steps, to just beyond the last juror in the box. If she could hear the witness, so could all the jurors. She raised her own voice, hoping to lead by example. "Doctor," she asked, "were there other marks or injuries to the body?"

  "Yes. There were multiple signs of blunt-force and sharp-force trauma-contusions, bruises, and lacerations on the torso, the groin, and the face."

  "Approximately how many separate injuries were inflicted on the victim?"

  "I counted twenty-eight separate injuries."

  "And did each of these appear to be a separate application of force?"

  "There were a couple that might have been the result of a single blow. For example, the same blow with an instrument could have hit the victim on the forearm and the head. On the other hand, from the size and irregular features of some of the injury sites, it appeared that some bruises might have resulted from multiple blows landing in approximately the same place on the body. I would have to say the man was hit at least two dozen times."

  Mills went back to her table and brought forward a large piece of cardboard on which she'd taped some 81/2 11 color photographs from the autopsy and had it entered into evidence as People's Two, since the autopsy report was People's One.

  When they had gotten to it, Judge Tollson had hand-picked the six autopsy photos that he was going to allow the jury to see. Mills considered his choice a partial victory for herself-whoever had done this to another human being barely deserved to be called one himself. Even without the head wound, the damage to Nolan's body was severe.

  "Doctor," Mills began, "using the photographs to illustrate your testimony, can you characterize these injuries more particularly?"

  "Well, yes," Barnsdale whispered. "As we can see in Photograph A, there were quite a few injuries that either raised bruises, or cut the skin, or both. Although the gunshot wound, particularly the exit wound in the back of the head, no doubt obliterated some of these, there still remained a profusion of them, particularly on the head."

  Using the laser pointer, she walked him through the other five photographs.

  "Do you know what caused these bruises and contusions?"

  "Not specifically. It was my finding that there appeared to be more than one type of bruise, caused by different objects, some blunt and some less so."

  "Doctor, were you given any implement or implements in an effort to determine whether they might have caused the injuries you observed?"

  "Yes. I was given a fireplace poker and a pair of brass knuckles from the evidence locker of the Redwood City Police Department."

  Two more exhibits marked and presented to the doctor.

  "Yes," he said, "these are the items I compared."

  "What was your conclusion, Doctor?"

  "Several contusions, particularly on the jawline, appear to be the result of contact with the brass knuckles. These particular knuckles have a piece or fragment missing from one edge. You can clearly see the pattern injury in several locations that match this implement. Further, in a general sense, the damage inflicted at those injury sites is consistent with what one might expect from being struck with this sort of an object."

  "And what damage is that?"

  "They both cut and bruise. They leave a distinctive imprint."

  "Were there a lot of these brass knuckle contusions?"

  "Distinctly, there were three. Perhaps five. I could not rule them out as having been used to cause other injuries, but there was not enough detail to tell you definitively that this was the weapon used."

  "What about the poker?"

  "I could only find one injury across the forearm that definitively appeared consistent with the poker or something very like it. But all of the injuries to the top and side of the head were consistent with a blow from a hard, cylindrical object that could have been this poker. Further,
I understand from the lab that the victim's blood and tissue was removed from the poker, which also supports the suggestion that this was the weapon used."

  "As to the injuries you've discussed so far, were they consistent with having been inflicted with a man's fist?"

  "No. I don't think so. The injuries I've attributed to the poker and brass knuckles were far too extensive typically to have resulted from a simple blow from the fist."

  "But that leaves, Doctor, does it not, many other bruises on Mr. Nolan's body?"

  "Yes, it does."

  "Could they have been inflicted by a man's fists?"

  "Well, yes they could, although they are very nonspecific and might have been inflicted by any blunt object, including a glancing blow by the poker or brass knuckles, or even by the impact of Mr. Nolan having hit the ground or a table or anything else as a result of one of the other blows."

  "Doctor, could you describe the gunshot wound in any greater detail?"

  "Yes, it was what is called a close contact wound, meaning the gun was fired right up against the skin of the forehead."

  "Doctor, are you able to tell us the order in which the injuries were inflicted?"

  "Not really. Logically, it would seem likely the gunshot wound would have to be last because it would have been immediately lethal. As to the blunt force trauma, it appeared that some had actually started to heal slightly, and therefore might have been inflicted before some of the others which showed less signs of healing. But the body heals more or less quickly at different times and at different places on the body. This isn't a very reliable way to sequence injuries. All I can say is that all of these injuries were perimortem, meaning that they were inflicted around the time of death."