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."
"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."