"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."
"And what happens during any of these blackouts?"
"Either one or both of two things: temporary loss of either consciousness or memory."
"And how long can a blackout last?"
"Well, again, that depends. In some sense, lay people might call a coma a blackout, and they've been known to last a decade or more. Most, like fainting or epileptic seizures, last no more than ten minutes."
And suddenly, with this answer from Dr. Bromley, Washburn felt a sickening hollowness in his stomach so acute that he thought for a moment that he might have a period of syncope himself. He had known of the weakness of this blackout information, of course, for the better part of the year, and had gone over it again with Bromley over the past weekend, intent on getting this medical evidence into the record.
Struggling to get to his next point, all at once he saw this testimony now for what it was, and it was smoke. He could sense that it wasn't going to work. His idea had been to establish that Evan's loss of consciousness was a possible, and even common, result of his TBI, tying everything neatly back to Iraq, and the good soldier sympathy vote from Mrs. Ellersby. After the beating Evan had taken on that night, Washburn had assumed that he'd be able to supply at least a colorable argument that Evan's coming testimony held water.
And now, with a great and terrible clarity, he could see it just wasn't going to fly. The fact that Evan might have blacked out at some point was no proof that he actually had spent any or all of that time in an unconscious state. In fact, given his blood alcohol level at the time of his arrest, it was indisputable that he'd had at least flashes of consciousness during that time when he'd drunk himself into oblivion. Washburn's thought that he could slip this past the jury or that it would get lost in a wave of sympathy was just wishful thinking. He had believed it might work because he needed it to work to have any hope of winning this case.
Washburn still had Bromley's testimony about much of what Evan had been through because of his traumatic brain injury. He might go on to suffer effects from that for the remainder of his life. A few of the jurors initially might still give Evan the benefit of the doubt because they took pity on his situation. But Bromley's testimony offered nothing at all in the way of proof that Evan had been incompetent or unable to commit the murder of Ron Nolan. And eventually, this simple fact was very likely to convict his client. He'd been deluding himself to think otherwise.
He walked to his table and took a sip of water. Turning, he came back to his place in the center of the courtroom. Still, he hesitated.
"Mr. Washburn," Tollson asked with some concern, "is everything all right? Would you like to tak
e a recess?"
"No, Your Honor. Thank you." Then he executed his trademark bow, thanked Bromley, and turned him over to Mills.
The prosecutor got up and advanced to her place with an enthusiasm that told Washburn that she hadn't missed the issue. And indeed, her first question honed in on it. "Doctor, with regard to these blackouts you were discussing. You said they usually lasted a few minutes, is that right?"
"Normally, yes, although it can vary."
"So you said. So your testimony is that a blackout can last for a few days, is that right?"
"Well, again, the terminology of blackout isn't precise. If we're talking about fainting or a seizure, I'd say no. They don't last more than ten minutes usually. True unconsciousness, however, can of course extend indefinitely, though I would hesitate to call that a blackout."
"So is there any way that you can assure the jury that Defendant in fact suffered any kind of blackout at all on the night of the beating?"
"No, I can't say that."
Mills threw a plainly gloating look over to the jury, then came back to Bromley. "Thank you, Doctor. That's all."
"Was it just me," Evan asked, "or did not that go very well?"
They were in the holding area behind the courtroom again, for the recess. In a gesture that Washburn took to be one of sympathy, the bailiff had delivered paper cups filled with fresh, hot coffee for both him and his client. Normally, this wasn't allowed since a suspect with a cup of hot coffee was a suspect who could attack people with it, but today for some reason-the change in the weather? the pathetic Bromley testimony?-the bailiff had offered and both men had jumped at the chance.
Washburn, of course, downplayed the problem. Shrugging, he said, "Between Onofrio and Bromley we got in a whole lot of what you've been through. Somebody on that jury is going to care, you watch." He sipped at the brew. The bravado he'd put in his answer wasn't just to buff up his own self-image. Evan was going on the stand next, and Washburn needed him to project both relaxation and confidence while he was up there. He was going to get to tell his story at last and, more importantly, sell it to the jury.
But it wasn't much of a story, and both men seemed to understand that.
"Don't take this badly." Unruffled, collected, Washburn leaned back against the wall and crossed one leg over the other. "I still think we've got a decent shot, but I also think the Court would look favorably on an offer to plead."
Evan turned his head and fixed Washburn with a glare. "We've been through that."
"Yes, we have. And now you're going to tell the jury that you didn't kill Nolan."
"That's right."
"Any idea who did? Because I don't have one."
"It wasn't me."
"Because you don't remember doing it?"
"Everett. Listen. I can't believe I beat him with a poker, then shot him in the head, and have no memory of it. I would remember that."
Washburn sighed. "Well, as you say, we've been all through it. But we could say you went back to talk to him after the fight and he attacked you. You were weak from the earlier beating and you had no choice but to grab the poker…"
Evan was holding up his hand. "…and execute him with a point-blank shot to the head. I didn't do that. That is not who I am."
"Yes, and that may not be the point." He tipped up his coffee and swallowed. "There's absolutely nothing about those days that you remember?"
"You don't think I've tried? You don't think I want to remember any little thing?"
"Maybe you were drunk the whole time?" Washburn rubbed his palms on his pants legs. "I want you to think about this carefully, Evan. If that's what happened, at least that gives the jurors something more to think about."
"If I change my story now, then I'm a liar before, though, right?"
"No. If you just remembered, it's come back to you in the stress of the trial."
"Damn conveniently. They'll see through that in a heartbeat."
"Okay. Suppose it happened that you were home the whole time, suffering from the beating, drinking to kill the pain. You never left the apartment."
"And how does that help me? They'd still have to believe me."
"No." Washburn shook his head. "They don't have to believe you. One of them has to believe you. It's a lot better to say 'I didn't do it' than 'I don't remember, but I probably didn't do it.' There's a real difference there."
Evan took a couple of breaths. "I thought it was about the evidence. Not what I say. What the evidence says."
"That's the problem," Washburn said. "The evidence, my friend, makes a very good case that you did it." Just at that moment, the bailiff appeared, and Washburn punched his client on the thigh. "Drink your coffee," he said. "We're up."
27
After the months of buildup, the endless coaching and strategy sessions, the arguments, disagreements, accords, and prognostications, Evan Scholler's time on the witness stand was really quite brief. Washburn saw no point in having his client go over again all of the reasons he might have had to loathe the victim. That had all been well-established by earlier witnesses. There were really only a couple of lines of inquiry that Washburn thought stood any chance of traction with the jury, if only because they provided an alternative theory to the case, and he got right to them.
"Evan," he said, "why did you break into Mr. Nolan's home?"
"First, let me say that that was wrong. There's no excuse, I shouldn't have done that. I should have advised the homicide detail of my suspicions about Mr. Nolan."
Mills got to her feet. "Your Honor, nonresponsive."
"Sustained." Tollson's glare went from Washburn over to Evan. He spoke to the defendant. "Mr. Scholler. Please only answer the questions that the attorneys put to you. You're not here to make speeches."
"Yes, Your Honor. Sorry."
"All right, Mr. Washburn, go ahead, and carefully, please."
Washburn posed the question again, and Evan responded. "Because I had found out about the Khalil murders from the paper, and then more about them from Lieutenant Spinoza. I had gone on a mission with Mr. Nolan when we were in Baghdad together, and he'd used frag grenades at that time. Then, knowing that Mr. Khalil was of Iraqi descent, and knowing what Mr. Nolan did for a living, it occurred to me that he might have had something to do with those murders."
"Why didn't you simply, as you say, go to homicide?"
"Because I might have been wrong, which would have made me look stupid both to the lieutenant and to Tara, and I couldn't have that."
"Why was that?"
"Well, one, I was a policeman myself. Two, I was hoping to reconnect with Tara."
"All right. So you broke into Mr. Nolan's home?"
"I did let myself in, yes."
"Trying to find evidence that Mr. Nolan had been involved in the Khalil murders?"
"That's right."
"Didn't you think that was a bit far-fetched?"
"Not at all. I'd seen Mr. Nolan kill other people."
Mills raised her voice. "Objection."
"Your Honor," Washburn responded. "Mr. Nolan was a security officer. Sometimes his job was to kill people. Mr. Scholler knew him in that setting in Iraq. There is nothing pejorative about it."
Tollson put his glasses back on. "Objection overruled."
"All right," Washburn continued. "Now, when you went into Mr. Nolan's home, Evan, did you find anything which in your opinion might have been connected to the Khalil murders?"
"Yes."
Evan ran through his actions and motivations in a straightforward manner-the frag grenades, touching the gun both in the backpack and in the bed's headboard, the computer files. As Washburn had coached him, he kept bringing his narrative back to the jury, and particularly-without being too obvious-to Mrs. Ellersby, three over from the left in the second row.
"So you copied the photographic computer file?"
"Yes."
"Presumably, now, you had your proof, or at least some possible proof, of a connection between Mr. Nolan an
d the Khalil murders. What did you do next?"
"Well, I didn't want to take away any of the proof, so that it would still be there when the FBI searched the house-"
Mills pushed her chair back with a resonant squeal and said under her breath, "Give me a break."
Tollson banged his gavel with some force. "If I thought you'd done that on purpose, Ms. Miille, I'd hold you in contempt right now. There will be no histrionics in this courtroom! You will live to regret the next outburst of any sort and I'm admonishing the jury to disregard your unprofessional comment." Then, to Evan, "Go ahead, Mr. Scholler."
Evan let out a long breath, for the moment apparently, and perhaps actually, unable to remember where he'd been in his testimony.
Washburn took advantage of the moment. "I'm sorry, Your Honor, my client seems to have blacked out for a second."
"Oh, Christ!" Mills whispered.
Bam! Bam!
"That's it, Ms. Miille, you're in contempt. We'll talk about what the sanction is going to be outside the presence of the jury." His mouth set in a hard line, Tollson pointed to both attorneys. "This ends here, I'm warning you. Mr. Washburn, does your client need a minute to compose himself?"
"Evan?" Washburn asked. "Are you all right?"
"Fine."
"All right," Tollson said, "let's have the reporter read back the last question, please."
The question got Evan back to where he was saying that he didn't want to take away any of the proof, so that the FBI would find it when they searched the house. "So I decided to make a copy of the photo file on the computer that held what I was sure was a picture of the Khalils' house. So I took one of the diskettes and made the copy and brought it home."
"Now, wait a minute. You were a policeman and you had what you considered strong evidence of a murder, and yet you didn't contact homicide?"
"Right, I didn't."
"And why was that?"
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