"Thank you, Doctor. No further questions." Mills, apparently shaken by the photos and the testimony in spite of herself, had gone nearly as pale as the medical examiner. She turned back to the defense table. "Your witness."
Washburn had the impression that Mills had cut her questions short because she was getting sick. Beyond that, he'd barely heard the testimony of the witness from back where he sat, and he doubted that the jurors, intent on the photographs, had heard too much of it either. He normally didn't like to spend too much time with this more or less pro forma witness, the medical examiner, since typically all his testimony served to do was prove that a murder had been committed, and that wasn't at issue here. But this time, he thought he might pry a nugget loose from this normally unpromising vein.
And if he was going to go to that trouble, he wanted the jury to hear what the man had to say. So when he got to the middle of the room, he pitched his own volume down to the nearly inaudible. "Doctor," he said, "can you tell how old a bruise is?"
"I'm sorry," the witness replied, cupping his ear. "I didn't hear the question."
Washburn barely heard the response, but came back with his question just a few decibels louder than the first time.
Barnsdale leaned forward, his face scrunched in concentration. "Can I what?" he asked. "I'm sorry."
Behind Washburn, the gallery was getting restive. Tollson brought his gavel down one time firmly. "I want it quiet in this courtroom!" He brought his focus back inside the guardrail that separated the gallery from the bullpen of the court. "And I need you two gentlemen both to speak up, is that clear?"
"Yes, Your Honor," Washburn straightened up and nearly shouted.
Shaking his head-this was rank theatrics, circus behavior-Tollson looked down at the witness. "Doctor?"
Barnsdale looked around and up at him. "Sir?" A whisper.
"Louder, please. The jury needs to hear you."
Back to Washburn. "Go ahead, Counselor."
"Thank you, Your Honor. Doctor." A smile meant they were friends. "You've talked about these bruises on the body of the victim, that we've seen now in these photographs. My question is can you tell the age of a bruise?"
"As I just said, only within very broad limits."
"Please humor me, Doctor. Explain in some detail how you can tell that one bruise is older than another."
Clearing his throat, Barnsdale complied. "Yes, certainly. Bruises begin healing as soon as they are made, so the degree of healing, diminishing of swelling, thickness and solidity of scabbing, color, and so on, can tell you roughly how long it is since the bruise was sustained. We all know that some people bruise more easily than others. And it's also true that the same person might bruise more easily on a different part of his body, at a different time in his life, or depending on his general health. But all things being equal, we can get some idea from the bruises themselves."
Tollson, from the bench, intoned, "Louder, please."
Washburn went on. "And these bruises to the victim, were they all the same age, so to speak?"
"No."
"No? What was the greatest difference you observed between them?"
"Impossible to say."
"Impossible, Doctor. You can't give us any information? Are you telling me one of these bruises could have been inflicted on Mr. Nolan when he was five years old, and another a few minutes before his death, and there would be no difference."
A small round of laughter from the gallery.
"Well, no, of course not."
"Then could some of these injuries been inflicted a month before Mr. Nolan's death?"
"No."
"A week before?"
Some hesitation. "I doubt that seriously."
"But it could have been a week before."
"I doubt it."
"Well, certainly, Doctor, some of the injuries could have been inflicted three or four days before Mr. Nolan's death. That's true, isn't it?"
Washburn knew he had the doctor, and knew what the answer had to be.
"Well, I'd have to say yes."
"And, Doctor, did you make any effort at the time specifically to note in your autopsy the age of the various bruises?"
"I didn't record a specific analysis of that for each bruise."
"Why not?"
"It seemed irrelevant at the time. It certainly was irrelevant to the cause of death."
"Because none of these blows killed him, isn't that right, Doctor? Mr. Nolan died from the gunshot wound, whenever that was inflicted. True?"
"Yes."
"Thank you, Doctor. No further questions."
Next up was Shondra Delahassau, a forensics sergeant with the police department. A dark ebony woman in her early thirties with her hair in cornrows, projecting competence and confidence, she couldn't have been more of a contrast to Dr. Barnsdale.
"We got the call on a Saturday afternoon after the groundskeeper, who was blowing leaves off the back patio, saw evidence of a fight and what looked to be splashes of blood in the living room."
"And what happened next?" Mills asked.
"Well, the first responders to arrive were a patrol team, who entered the townhouse to see if there were injured persons or suspects still on the premises. They found only a dead body and left without disturbing anything. Once the house was cleared, they waited out front for other officers. My unit, which is crime scene investigation, got there about the same time as Lieutenant Spinoza, who had obtained a search warrant, at around four-thirty."
"And what did you find inside?"
"First, of course, the blood, a lot of blood. In the rug and on the walls and so on."
"Did your unit take samples of this blood for analysis, Sergeant?"
"Yes. We took samples from every location for testing in the lab."
Mills spoke to the judge. "Your Honor, I believe the defense is prepared to stipulate that DNA testing matched blood samples from the premises to either the defendant or Ron Nolan."
This was bad news, and a buzz arose in the gallery, but Washburn had been only too happy to enter the stipulation after Mills had told him that the lab tech who had actually done the DNA testing was out on maternity leave. It wasn't to his advantage anyway to have a half day of scientific evidence putting Evan's blood and Nolan's blood all over Nolan's home.
"Thank you, Sergeant," Mills said. "Now, back to the townhouse itself, what else did you find?"
"Well, furniture had been knocked over in the living room and in the office. We found a fireplace poker that was stained with the victim's blood on the floor in the office. Then we discovered the victim's body on the floor in the bedroom. There was a nine-millimeter Beretta semiautomatic on the bed."
"What did you do next?"
"While Lieutenant Spinoza called the medical examiner's office, I supervised while members of my unit started taking photographs of the scene, collecting blood, hair, and fiber samples and fingerprints if any were available. My usual drill at a murder scene."
Mills duly marked and had her identify almost two dozen samples with the trace evidence from Nolan's place. When they'd finished, Mills pulled the gun out of a protective firearms box and gave it to the bailiff to clear, demonstrating on the record that it was unloaded and safe to handle. "Now, Sergeant, did you personally dust the gun for fingerprints?"
"I did."
"Did you find any usable latents?"
"Yes."
"And were you able to identify whose fingerprints were found on the gun?"
"We did. It held the fingerprints of Mr. Nolan, as well as those of the defendant, Mr. Scholler."
Again, a rush of comment swirled across the gallery. Mills let it go on for a satisfying moment before she turned to Washburn and gave him the witness.
Washburn had always believed that there were basically only two ways to defend against a murder charge. The first was to present an affirmative defense case that, on its own merits, created either mitigation or reasonable doubt. This former approach had been Washburn's
stock-in-trade over the years and he'd done exceedingly well with it. He would listen to all the prosecution's facts and theories, and then introduce his own defense case, which might include self-defense, diminished capacity, temporary insanity, or any other of the many psychiatric defenses (including PTSD). In San Francisco, over time, these became pretty much slam dunks. But even in San Mateo County, such a strong affirmative defense would often convince a jury to convict only of a lesser charge. Washburn believed this was because people basically wanted to believe in the goodness of their fellow man. Even if they had done something truly heinous, if there was a semiplausible reason that they'd been driven to it by events outside of their control, jurors tended to give them a break.
The second way to win was, in Washburn's experience, both far more difficult and far less effective; this was the reactive defense, which challenged every fact and assertion made by the prosecution. Naturally, good defense attorneys also did this automatically even when they had a strong affirmative case, but debunking a carefully built prosecution was never an easy task. In most cases, of course, this was because the defendant was guilty. But beyond that, it was a huge hurdle for most jurors to disbelieve government testimony and to doubt the sworn testimony of authority figures such as doctors, forensics experts, and the police.
When Tollson had taken PTSD away from him, Washburn knew he was stuck with a reactive defense, and this was what had filled him with such a sense of dread. Now here he was with his second witness on his first day-a woman whom he normally would have dismissed without a cross-examination because she had nothing of substance that would help his case-and he was rising to question her, grasping at straws just to keep up the charade that he was putting on an enthusiastic, even passionate, defense.
"Sergeant Delahassau," he began, "you've testified that you tested Mr. Nolan's townhome for fingerprints, blood, hairs, and fibers, isn't that so? Your usual drill, I believe you called it."
"Yes, that's right."
"And you discovered matches with Mr. Scholler's blood and fingerprints?"
"Yes."
"What about his hair?"
The gallery let out what seemed to Washburn to be a collective chuckle.
"Yes, we found samples of his hair too."
"Did you find any other hair, besides Mr. Nolan's and Mr. Scholler's?"
"Yes. We found traces of hair from at least three other individuals."
"Can you tell if that hair was from a male or female?"
"Under some circumstances, DNA can determine that. You need a follicle."
"And to your knowledge, did anyone run DNA tests on these hair samples?"
For the first time, Delahassau's face clouded. She threw a troubled look over to Mills, then came back to Washburn. "Uh, no, sir."
"Why not?"
Another hesitation. "Well. We had no other suspects with which to match samples."
"But these hair samples surely indicated that someone else had been in Mr. Nolan's townhouse, isn't that true?"
"Well, yes, but they could have been years old, or…"
"But, bottom line, Sergeant, you do not know if the three hair samples found in the victim's home came from men or from women, do you?"
"No."
Unsure of what, if anything, he'd just proven, Washburn decided he'd take his small victory now and move on to his other minuscule point. "Sergeant," he asked, "did you recover the bullet that had killed Mr. Nolan?"
Letting out a sigh of relief that the other line of questioning had ended, Delahassau reverted to her confident self. "Yes. It was embedded in the floor directly under the exit wound in his head."
"So he was shot while he was already on the ground?"
"That appeared to be the case, yes."
"And did you run a ballistics test on the Beretta?"
"No. The bullet was deformed too much for that."
Washburn brought his hand up to his mouth in an apparently genuine show of perplexity. "Sergeant," he asked with an exaggerated slowness, "are you telling me that you do not know for an absolute certainty that the bullet that killed Mr. Nolan came from the weapon that had my client's fingerprints on it?"
"No, sir, but…"
"Thank you, Sergeant. That's all."
He'd barely gotten the words out when Mills was on her feet. "Redirect, Your Honor?"
Tollson waved her forward. "Sergeant," she began before she'd even reached her place, "what was the caliber of the bullet that killed Mr. Nolan?"
"Nine millimeter."
"And what was the caliber of the recovered weapon?"
"Nine millimeter."
"And was the recovered weapon a revolver or a semiautomatic?"
"It was a semiautomatic."
"Now, sergeant, when a nine-millimeter weapon is fired, what happens to the casing-the brass jacket behind the actual bullet that holds the gunpowder that propels the blast?"
"It gets ejected."
"You mean it pops out of the gun?"
"Yes."
"And did you find a casing for a nine-millimeter round in Mr. Nolan's bedroom?"
"Yes. It was among the sheets on the bed."
"Were you able to match that casing to the recovered Beretta?"
"Yes."
"So there was one nine-millimeter bullet and no others recovered from the scene, one nine-millimeter casing and no others recovered from the scene, and although the bullet itself was not capable of comparison, the only casing at the scene that could have contained that bullet was fired by the nine-millimeter Beretta with the defendant's fingerprints on it."
"Yes."
"Thank you."
24
When they all got back to their tables after a short afternoon recess, Washburn noticed that Mills seemed to be losing her sense of humor as the day wore on. But whether Mills was enjoying it or not, she was putting on the kind of straightforward, linear case that juries tended to like. Her next witness was Evan's direct superior in the police department, Lieutenant Lochland, who, alarmed at Scholler's absence from work, had found him in his apartment, drunk and covered in blood, and eventually placed him under arrest.
"Lieutenant," she began, "Defendant was under your direct supervision while he worked with the police department. Isn't that so?"
But Washburn and Evan had talked about this coming testimony on the break, and the old lawyer was on his feet before she'd finished her question. "Objection! Relevance. Three fifty-two, Your Honor."
Tollson turned a questioning look down to Mills. "Counselor?"
"Foundational, Your Honor," she said.
"That's fairly broad. Can you be more specific?"
"Goes to Defendant's state of mind leading up to the act. Also foundational to the break-in at Mr. Nolan's."
The judge, in what Washburn was beginning to recognize as something of a pattern, pulled his glasses off to ponder for a minute.
Before he could put them back on and render his decision, Washburn said, "Your Honor, if you will, I'd like to request a sidebar." If Mills was getting tired or losing her chops due to low blood sugar, if this was her afternoon tendency-and her body language made it appear to be-Washburn wouldn't hesitate to use that against her.
A shorter pause this time, until Tollson nodded. "Very well. Counsel may approach." When the two attorneys had gotten in front of the bench, Tollson peered over it. "What's the problem, Everett?" he said.
"Your Honor, there's no possible relevance to Lieutenant Lochland's relationship to my client. The only thing this will get the People is negative character stuff. That Evan was angry, that he lied to his superiors when he broke into Nolan's place, that he disobeyed orders, maybe got drunk on duty. There's nothing possibly relevant there and even if it is, it's far more prejudicial than probative and opens up a whole number of cans of worms."
"Ms. Whelan-Miille?"
Clearly, Washburn's attack on this point had blindsided her. But she wasn't about to give up any ground without some kind of a fight. "The lieutenant's a ho
stile witness, Your Honor. You think he wants to be up here testifying against another cop, and one that worked for him? He's not going to say anything bad about Evan's character. At worst, he'll say he was mixed up and still recovering from the wounds in Iraq. And that will, if anything, incite sympathy from the jury. This is all part of Mr. Washburn's case anyway. How can he want to put it in through his own witnesses and keep it out with mine?"
"If it was all that sympathetic," Tollson said, "I doubt if Mr. Washburn would object to the testimony. And in that case, why do you want it?" the judge asked. When Mills couldn't come up with an answer in the next ten seconds, Tollson stepped back in. "Let's move on, shall we? How's that sound?"
Washburn inclined his head. "Thank you, Your Honor."
Back at the defense table, he pulled his yellow legal pad over in front of him and drew a happy face that he showed to his client under his hand. At the same time, Mills tried to pick up with her witness. "Lieutenant, it was you who arrested Defendant, was it not?"
"Yeah. That was me."
"Can you tell the jury the specifics?"
"Sure." He turned to face the panel and began in a conversational tone. "Lieutenant Spinoza-he's the head of the homicide detail-called me at home as a courtesy on that Saturday to tell me he was worried about Patrolman Scholler. He'd been called on the Ron Nolan homicide and remembered that Patrolman Scholler had looked up that name on the police computer in the past few days. Spinoza wondered if I'd heard from him and I told him I hadn't. Patrolman Scholler hadn't been into work on Thursday or Friday, so when I got Spinoza's call, I was a little worried myself.
"I thought the best bet would be to go check out his apartment, so I drove up there-he lived in one of those units along Edgewood Road. All the blinds in the windows were pulled down, so there was no seeing in. I knocked and called out his name, and nobody answered, but I heard some movement inside, like something, some object, falling over.
"Now I'm starting to think something's wrong. I get out my cell phone and call his number and the phone inside starts ringing, and I started pounding on the door, calling for him."
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