"And what were your findings?"
"Very little in the first few days. Besides the fragmentation grenade, we discovered that both victims had been shot before the explosion, with nine-millimeter caliber bullets which, when we found them, were too badly formed for comparison to a firearm. We interviewed several family members, of course, in the wake of the attack, and were beginning to process that information when my partner, Jacob Freed, and I received an envelope in the mail that contained a computer diskette with a photograph file that focused our attention in a different direction. Among the pictures in that file were photographs of the Khalils' home taken from several angles, with a handwritten note that the pictures had been downloaded from a computer belonging to a Mr. Ron Nolan. Subsequently, Mr. Freed obtained Mr. Nolan's telephone number and left him a message that we would like to have a discussion with him on a matter that might involve national security. There was no mention of the Khalils, or of the photograph."
"Did you in fact interview Mr. Nolan?"
"Yes."
"What did he tell you?"
Washburn was on his feet. "Objection. Hearsay."
Tollson looked at Mills. "Counsel?"
"You've already ruled on this, Your Honor," Mills said. "When Mr. Nolan's accusations to the FBI are repeated to Mr. Scholler, they give Mr. Scholler yet another motive to kill him."
Tollson looked over to Washburn. "She's right, Counsel. We did talk about this, and it's coming in. Objection overruled."
She went on in the same vein, meticulous as to every detail and nuance. Nolan's call to the FBI, his theory that his romantic rival, the defendant, might have broken into his house, his discovery of the frag grenades and 9mm Beretta weapon in his closet, the record of computer usage while he'd been away; then, following up on Nolan's theory, the FBI's discovery a day later of the defendant's fingerprints on the computer diskette. Finally, she came to an end.
"Trying to get the timeline correct, do you recall the day or date that you made the discovery about Defendant's fingerprints on the diskette?"
"Yes. Both. It was Thursday, June fourth."
Mills waited for more of a reply until she realized that Special Agent Riggio had answered her question and didn't need to deliver a speech about it. "And after you had that information, did you try to contact Defendant?"
"Yes, we did. We attempted to reach him through his job as a police officer in Redwood City, but he had not come into work that morning."
"Had he called in sick?"
"No."
"All right. Where did you try next?"
"We called him at his home, but there was no answer there. So we left a message on his answering machine."
"Did he ever answer that message?"
"No, he did not."
"Were you planning to place Defendant under arrest at that time?"
"No. At that time, we wanted to question him."
"Did you stake out his apartment?"
"No. We had no reason to suspect that he was avoiding us. We thought it likely that he would either call us or we would otherwise locate him in a day or so."
"Did you attempt to locate Mr. Nolan during this time?"
"No. He said he would call us if he got any more information. Beyond that, we had no reason to try and contact him during this period."
"So what did you do next?"
"We ran the fingerprints we'd picked up in Mr. Nolan's townhouse and determined that he had been correct. The Defendant had been in his house. Further, the defendant's prints were on the Beretta that was in Mr. Nolan's backpack."
"Did you find his prints on the fragmentation grenades?"
"No. They have a rough surface and did not contain usable fingerprints."
"But the Beretta with Defendant's prints was in the backpack with the fragmentation grenades, was it not?"
"Yes."
"And could you tell if that gun had been fired recently?"
"We could only say that it had not been fired after its last cleaning. But we have no way to tell when it had last been cleaned."
Mills, in a rhythm, kept it going. "Was the gun loaded?"
"Yes. There was a full magazine and a round in the chamber."
Mills knew she had covered a lot of ground with Riggio, who was in many ways the ideal witness, an uninflected, just-the-facts-ma'am kind of presence. But she still had a ways to go. "Special Agent Riggio, how did you discover that Mr. Nolan had been killed?"
Spinoza and Riggio ate up the whole morning, and court didn't resume until nearly two o'clock in the afternoon.
Washburn, who'd remained silent throughout the lengthy direct, showed little of the enthusiasm he'd displayed the day before as he slowly rose from his chair and advanced to make his cross. "Special Agent Riggio," he began sonorously, "you've testified that in the immediate aftermath of the Khalils' shootings, you interviewed several family members. What did you talk to them about?"
"We had the usual preliminary interviews following this kind of event."
"And what are these interviews comprised of?"
"Developing knowledge of the relationships between the family members and the deceased, as well as business, personal, political, or any other issues that might throw light on the investigation of the crime."
"How many of these interviews did you have?"
Mills spoke from behind him. "Objection. Relevance."
"Sustained."
Washburn couldn't entirely camouflage a disappointed grimace. "The Khalils have widespread business interests, do they not?"
Again: "Objection. Irrelevant."
This time Washburn replied. "Not at all, Your Honor. The People, while never charging Mr. Scholler with the murder of the Khalils, are attempting to insinuate without proof that he was somehow involved in their deaths. I'm wondering if Special Agent Riggio had interviewed anyone among Mr. Khalil's vast business interests who had any connection to Mr. Scholler."
"All right. Overruled. You may answer that question."
To Riggio, it was all the same. Unruffled, she nodded. "Yes, the Khalils had widespread business interests."
"Just here in this country?"
"No. Overseas as well."
"In Iraq?"
"According to the children, yes."
"But you didn't check that information yourself?"
"We were beginning to verify all the information we'd gathered when Mr. Nolan was murdered."
"So," Washburn said, "the answer is no, you didn't check the information about the Khalils' business interests in Iraq, isn't that so?"
"Your Honor!" Mills tried again. "Relevance?"
Washburn said, "It'll be clear in a second, Your Honor."
"All right, but it had better be. Overruled."
"Special Agent Riggio, Mr. Nolan worked for an American security contractor firm in Iraq, did he not? Allstrong Security."
Now Mills was on her feet. "Your Honor, please! We've discussed this before. This fishing expedition is going nowhere and the only purpose to eliciting this hearsay is to suggest a connection between Mr. Nolan and the Khalils, which is unsupported by any evidence."
Washburn knew he could probably get away with at least one outburst per trial. He figured this was as good a time as any, and whirled around on Mills. "There's a whole lot more evidence of Nolan's involvement with the Khalils' murders than of my client's. You just don't want the jury to hear anything that doesn't fit your theory."
Bam! Bam! Bam!
"Mr. Washburn!" Tollson exploded. "Both of you. Enough. Any more of this and somebody's going to get a contempt charge. You're to address your remarks to the bench and not to one another." Tollson stared them down, giving equal time to both. Then, glancing at the wall clock, he said, "I'm calling a ten-minute recess so everyone can cool off."
When Washburn resumed, his was once again the voice of sweet reason. He produced a stack of documents received from the FBI and gave them to Riggio on the stand. "Special Agent Riggio. Using these business records, di
d you have an opportunity to investigate the fragmentation grenades that you discovered in Mr. Nolan's apartment?"
"Yes."
"And what did you discover?"
"These particular grenades were produced in late two thousand two-if you want the stocking and serial numbers, I've got them, but-"
"That won't be necessary. Go ahead."
"And they were shipped to Iraq in the early weeks after the invasion."
"Do you know if they were delivered to Mr. Scholler's patrol?"
"No."
"No, you don't know, or no, they weren't?"
"They were delivered as part of a consignment to Allstrong Security in Iraq."
"Is there any evidence that Mr. Scholler at any time had possession of these grenades, or shipped them back, by whatever means, to the United States?"
"No."
"Special Agent Riggio, have you any witnesses that reported seeing these grenades in Mr. Scholler's possession at any time?"
"No."
Even though he'd gotten the right answer on the last several questions, Washburn knew it wasn't much. But it was probably all he was going to get. He smiled at the witness. "Thank you," he said. "No further questions."
26
By the following tuesday afternoon, the weather had turned. A violent early-season storm toppled trees and flooded many of the low-lying streets around the courthouse, playing enough havoc with the morning's traffic patterns that court couldn't be called into session until nearly eleven o'clock, and then only to adjourn almost immediately for an early lunch.
In the previous two trial days, Washburn hadn't had much to say to the witnesses Mills called. The other FBI agent, Jacob Freed, provided pretty much the same testimony as his partner, Marcia Riggio. Washburn hammered a bit at the provenance of the frag grenades again, at the lack of real investigation into the lives and motives of possible other suspects in both the Khalil and Nolan murders after they'd identified Evan as their main person of interest. But he knew that he'd inflicted little if any damage to the prosecution's case-the fact, and Washburn hated to admit it, was that the FBI and Spinoza had coordinated very well, and had fashioned an evidentiary chain that was pretty damn compelling. In the end, Washburn just wanted to get Freed off the stand as quickly as possible, although he still took the better part of half a day.
Likewise, David Saldar, the locksmith, came to the stand and, by far the most nervous and uncomfortable witness to date, gave his testimony without any surprises. He was talking about an unarguable point in any event-Evan Scholler had done exactly what Saldar was saying he'd done. He'd lied to a friend, he'd used the police uniform to buttress his credibility, he'd let himself into a home that was not his. It wasn't exactly a high-water mark for the defense, but Washburn couldn't do anything about that either.
Mills's final witness, who'd taken up most of yesterday's-Monday's-time, had been Tara. In spite of clearly conveying to the jury that she was involved with Evan, she not only reaffirmed the fact that Nolan had told her he was concerned and worried about Evan's break-in, but she also provided the crucial testimony of the overt threat to Nolan's life that Evan had made at the Old Town Traven.
Coming from a woman who so obviously did not want to hurt the defendant, Tara's testimony seemed to resonate with the jury in an especially powerful way. And Washburn, try as he might, couldn't get a handle on what he could cross-examine her about-that she hadn't believed Nolan's assertion about Evan planting the weapons in his house? That Evan hadn't really meant what he'd said about killing his rival? Neither of those opinions would be admissible, since that's all they would have been-the opinions of a woman, the jury would feel, who would certainly lie if lying would help her lover's defense.
Now the prosecution had rested and Washburn would get his chance to present an affirmative defense. But in the absence of a client who could even deny that he'd committed the crime, in the absence of an alternative suspect, and with the plethora of motive and opportunity weighing in against Evan, he knew that this might be the legal challenge of his entire career. He didn't have much, and what he did have was dubious at best.
The first order of business was to try to get the jury, to the extent it was going to be possible at all, into Evan's camp. Reminding himself that he only needed one juror, he settled on a woman in the back row named Maggie Ellersby, who was about the same age, and pretty much had the same suburban-housewife look, as Evan's mother, Eileen. More than that, during jury selection she'd revealed that she had two sons of her own; that she was opposed to the war in Iraq, although she supported the troops there. She might have a liberal streak, which in turn might extend to perceiving Evan as some kind of a victim of something, and hence not completely culpable. Beyond that, she had been married to the same man for thirty years, and so might in her heart be rooting for Tara and Evan to put this problem behind them and have a life together. All of this, of course, was extremely nebulous, but it gave Washburn hope to have a "litmus juror" to whom he could target his defense.
"Your Honor," Washburn said as a fresh squall of rain tattooed the courtroom's windows, "the defense calls Anthony Onofrio."
"Mr. Onofrio, you knew the defendant, Evan Scholler, in Iraq, did you not?"
Washburn wanted Onofrio for a variety of reasons, not the least of which because he exuded such an appealing "regular guy" quality. This was an inherently friendly man who worked with his crew on California's roads. He had some, but not too much, education. Good-looking in a casual way, he might be able to bring Mrs. Ellersby, for example, along in his regard for Evan Scholler.
"Yes, I did. He was my squadron leader."
Over the next hour, Washburn led Onofrio over the same ground they'd covered during the PTSD hearing before jury selection. Mills objected to the same things she'd objected to at that time-that Onofrio wasn't even in the U.S. at the time of the murder and therefore his testimony couldn't possibly be relevant-but Washburn argued again that Onofrio's testimony was foundational to Evan's head injuries, which so far hadn't even made it into the record. Even without mention of PTSD, those head injuries were certainly relevant to his blackouts, and these, in turn, Washburn argued, and Tollson agreed, could be a core issue for the defense.
The gallery grew hushed as Onofrio began describing the firefight at Masbah, concluding with the observation, "…we could have gotten out, but two of our men had already been hit, and Evan wasn't going to leave without them."
"So what did he do?"
"He led a couple of the other guys up to the first Humvee and pulled out the driver of that vehicle, then carried him back to our car. Then they went back for the gunner."
"And was Lieutenant Scholler under fire at this time?"
"A lot of fire, sir. It was pretty hot, coming from all over."
"All right." Having established Evan's bravery as well as his concern for his men, Washburn let Onofrio get to the end of the Masbah story without further interruption. Washburn was happy to see that Mrs. Ellersby needed to dab at her eyes with a Kleenex several times during the recitation. When Onofrio finished, Evan bleeding profusely from the head and surrounded by his dead comrades, several other jurors were having similar reactions.
Washburn stood still for several seconds, moved as the jurors had been by the story. Then he turned the witness over to the prosecution.
The last time Mills had cross-examined Onofrio, during the 402 hearing on PTSD, she'd hit pay dirt with questions regarding Evan's alcohol use in the war zone. Accordingly, she wasted no time broaching the topic again as soon as she was in front of the witness.
"Mr. Onofrio, did you personally witness Defendant drinking alcohol in Iraq?"
But this time, Washburn was ready for her. "Objection. Irrelevant."
"Sustained."
Mills was halfway back to repeating her question when she stopped herself in almost a double-take fashion. "Your Honor," she said, "with respect, Mr. Washburn made a similar objection during our four-oh-two hearing in this matter, and
at that time you overruled him."
Tollson removed his glasses, leaned over the bench. "Yes, I did, Counselor. At that time, the question of Defendant's alcohol use, or not, was germane to the issues involved in that hearing. Here, unless you can show me that Defendant's alcohol use, or not, in Iraq in some way refutes Mr. Onofrio's testimony, or relates directly to the crime with which Defendant is charged, I'm not going to allow it. It's irrelevant, as Mr. Washburn has noted."
Mills stood flatfooted, then walked back to her table, checked her binder, turned a page or two of it, and looked back up. "All right, then." Determined not to let the jury see she'd been caught off balance, Mills smiled through clenched teeth. "Well, then, thank you, Your Honor," she said. "I'll tie this up and we'll come back to it later."
Denied his use of PTSD, Washburn's best hope was still some kind of a medical defense. If the jury didn't buy the fact that Evan had suffered a severe and extended blackout, then he was left with no defense whatsoever, except that he was lying. So, to that end, over the past weekend Washburn had spent several hours going over his next witness's testimony. He could only hope that it was going to be enough.
"Dr. Bromley," he began. "What kind of doctor are you?"
"I'm a neurologist at Stanford Medical Center and at the Palo Alto Veterans Center."
"A brain doctor, is that right?"
In his mid-fifties, though he looked ten years younger, Bromley dressed impeccably. With a strong jaw, a prominent nose, fathomless eyes, and a short, well-kept Afro, he exuded a steely confidence. Now he allowed a breath of a smile to grace his features as he nodded. "That's the lay term, yes."
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