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."
Lochland 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."
Mills looked up at the clock, which read four forty-five. She could probably get in a question or two about whether or not Scholler's "Goddamned right" had sounded coherent or not to the lieutenant, but in the end she decided that this would only serve to underscore Washburn's thrust-that nothing Evan said that day meant much of anything. Even "Goddamned right," which she had worked so hard to get in. It was what he'd said, and she had no doubt what it had meant-it was tantamount to an admission that he'd killed Nolan and Washburn knew it. But whether or not the jurors would come to see it that way was anyone's guess. She was going to have to trust that they would use their common sense.
All she wanted at the moment was to put this day behind her. She'd get another hack at Washburn tomorrow, and she had the cards-Evan Scholler was guilty and the jury was going to see it and that was all there was to it. Raising her eyes to the judge, she felt the urge to smile begin at the corners of her mouth. She looked over to the jury, to Washburn, back up to the judge. "No questions," she said.
Tollson brought down his gavel. "Court's adjourned until nine-thirty tomorrow morning."
25
Fred Spinoza was a far cry from being a hostile prosecution witness.
In fact, he felt seriously abused that someone who worked for his department, played on his bowling team, got his help finding the address of the house he was planning to break into, where he would then commit murder, and had even come to his own home and played the war hero with his children…
Every time Spinoza thought about it, it roiled his guts. He believed that there was a special section in hell reserved for someone who could have done that to his kids.
Never mind what Evan Scholler did to Ron Nolan.
Resplendent in his dark blue uniform, Spinoza settled himself into the chair hard by the judge's platform. He'd put in a lot of time on the witness stand in his career, and rarely had he looked forward to the experience more than today. Now here came Mary Patricia Whelan-Miille up from her table in the packed courtroom, to a space about midway between him and the jury.
Mills and he had shared drinks on several occasions, once they'd gotten to know each other over this case. There had been a short time in the first weeks when he thought she might be coming on to him, but though he found her quite attractive, he loved Leesa and had made that clear enough to Mills that, if she was in fact trolling, she chose to back off.
But some chemistry, he knew, still sparked between them.
He knew that this would play well for a jury-it was just another one of those intangibles that sometimes came into play during a trial. A major People's witness and an assistant DA working in understated sync could bring a sense of rightness, of unassailable conviction, to a prosecution case.
Mills seemed rested and confident as she nodded to the jurors, then smiled at her witness as though she meant it. "Lieutenant Spinoza, what is your position with the police department?"
"I'm the head of the homicide detail."
After she went over the details of his service, she got down to it. "Defendant was a patrolman, was he not, Lieutenant?"
"Yes. He'd been a patrolman working a regular beat before he went overseas, and when he came back, he went back to his former position."
"How was it, then, that you came to know him?"
Spinoza shot half a grin at the jury, then shrugged. What was he going to do? It was the truth. "He was on my bowling team."
"Can you tell the Court, please, Lieutenant, about the first time you ran across a connection between Defendant and the victim in this case, Ron Nolan?"
"Yes. I was in the office on a weekend. The Khalil murders had just taken place, so I was working overtime. I happened to run across the defendant at one of the computers, and I asked him what he was doing. He told me he was trying to locate the address of a drug dealer."
"Did you ask him the name of that drug dealer?"
"Yes. He told me it was Ron Nolan."
"Is that against department policy?"
"Well, it's a gray area. Of course, police are not allowed to use computers for personal reasons. He could use the computer to follow up on a narcotics tip, although, strictly speaking, he should have referred the whole thing to vice."
"How about using the computer to locate a romantic rival?"
"That would not only be against policy, but completely illegal. If he were caught doing that, he could expect to be fired and probably prosecuted."
"So Defendant's use of the computer in this case was illegal?"
"As it turns out, yes."
"And yet you helped him?"
In his prep work with Mills, they had both acknowledged that this would be an uncomfortable moment that they needed to address head-on. "Of course, I didn't know the real reason he was using the computer at that time, but yes. He told me he was tracking a drug dealer and I believed him."
"So in what way did you assist him?"
Spinoza looked at the jury, spoke directly to them. "Well, I knew that he'd have to know how to work the system if he ever did need to find an address from a license plate. I suppose you could say I viewed it as more or less a casual thing, a training opportunity."
"Did Defendant tell you why he wanted to find Mr. Nolan's address?"
"Yes. But I thought his reason…I thought he was making a joke." This was an important clarification that Mills had wanted him to make sure he got in, since it served to underscore both Evan Scholler's arrogance and his premeditation.
"Nevertheless, what was the reason he gave you?"
"He said he wanted to hunt down Mr. Nolan and kill him."
A shimmer of reaction echoed through the courtroom, serious enough that Tollson dropped his gavel a couple of times.
Mills let the murmur die down and then resumed her questioning. "Did Defendant mention this killing of his rival any other times?"
"Yes."
"And where was that?"
Spinoza turned in the witness chair to face the jury again. "At my house. After work."
"Was this a usual occurrence, a patrolman coming to your home outside of work hours?"
"No. It was decidedly unusual."
"So what happened?"
"Well, we got ourselves some coffee and went outside and since it was something we'd joked abo
ut before, I asked him if he'd killed his dope dealer yet."
"And what was his answer to that?"
"He said he hadn't because Mr. Nolan was out of town."
"And yet you still considered this a joke?"
"Maybe not a funny joke, but it's the way we cops often talk to each other. It still never in a million years occurred to me that he was actually planning-"
Washburn was on his feet, not letting him finish. "Objection!"
Not missing a beat, Tollson nodded. "Sustained. Confine your answers to the questions, please, Lieutenant. Go ahead, Counsel."
Mills nodded, satisfied, and apparently ready to begin the next line of questioning they'd rehearsed, which was the aftermath of the murder itself, the FBI's involvement, and Scholler's arrest. But then, suddenly, she paused, threw a last glance at the jury, and must have seen something she liked, because her next words were, "Thank you, Lieutenant." And then to Washburn, "Your witness."
Spinoza knew Washburn well. As head of homicide in Redwood City, he'd sparred with the veteran attorney many times before, and he was particularly looking forward to it today. Confident that even a master like Washburn wouldn't be able to put a different spin on the events about which he'd just testified, Spinoza was settling himself in, getting psyched for a cross-examination he thought he'd actually enjoy, when Washburn lifted his head, shook it, and said to Tollson, "I have no questions for this witness."
"Special agent Riggio," Mills began with the next witness, "how did the FBI get involved in the Khalil case?"
Marcia Riggio had short, cropped dark hair. She wore a navy-blue suit that would not have looked out of place on a man. But the severe look was mitigated by a tan open-necked blouse of some soft and shimmery material, as well as by a plain gold chain necklace. She sat upright in the witness chair, her hands folded in her lap, and spoke with a formal and flat inflection. "Many witnesses at the scene reported hearing an explosion, which the arson inspectors concluded was consistent both with the damage to the bedroom and with the cause of the ensuing fire. Mr. Khalil and his wife were both naturalized citizens from Iraq, and so because of a possible terrorist angle, local officials deemed it prudent to contact Homeland Security, the Bureau of Alcohol, Tobaccco and Firearms, and the Federal Bureau of Investigation. Subsequently, analysis of the shrapnel from the explosion revealed that the blast was caused by a device called a fragmentation grenade, probably of domestic manufacture, the possession of which is against federal law. Effectively, the FBI took jurisdiction of this case, although we of course shared our findings with local police."
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