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 hostile 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?"