"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."
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."