the Global War on Terrorism Expeditionary Medal, the Meritorious Service Medal, and the Bronze Star. Mills, learning about the extraordinary life of Ron Nolan as she had investigated his death, had wondered more than once why she hadn't had the good fortune to have met him in her real life before he'd been murdered. She hadn't quite fallen in love with his memory, but she felt a fascination bordering on infatuation that she couldn't deny, and if she could avenge his senseless death in any way, she would consider it her privilege and duty.
Which brought her to her suspect.
She stole a glance over to where Evan Scholler stood. To her, he was the definition of scumbag, and it still galled her to see him in the courtroom now all cleaned up, with a dress shirt and tie and nice jacket. But she was convinced that by the time she was done, the jury would see beyond the facade that Washburn was so adept at creating, beyond the injured war veteran with the pretty and supportive girlfriend and the loyal parents, to the alcoholic and Vicodin addict whose incompetent leadership had led his squad of San Mateo County boys into their fatal ambush in Iraq.
As she waited for the judge to enter the courtroom, her heart was beating hard in anticipation. She was particularly keen to face some of the issues that were to be adjudicated before jury selection was to begin, the most important of which was going to be up first today. Mills had prepared a 402 motion requesting a foundational hearing to determine the admissibility of evidence related to post-traumatic stress disorder.
From the outset, it had been clear that Everett Washburn intended to use PTSD as an integral part of his defense of Evan Scholler. After all, the young man had endured exactly the kind of severe personal trauma during wartime that had produced volumes of literature on the subject. He'd also exhibited, to a host of witnesses over a substantial period of time, some, if not all, of the classic symptoms of PTSD.
So for a while early on, Mills had let herself get lulled into a grudging acceptance that PTSD, with its expert-witness madness, media appeal, and the emotional overtones it created, particularly in the context of the increasingly unpopular war, was going to be part of the trial.
And then one day it came to her that Washburn couldn't have it both ways. Either he could argue that Scholler had killed Ron Nolan but that PTSD was an extenuating circumstance or even a defense; or he could maintain that Scholler hadn't killed Ron Nolan at all, in which case he wouldn't, strictly speaking, need any other defense. If Scholler didn't do it, then it wasn't PTSD or self-defense or anything at all that had made him do it. So, believing that she had logic on her side-not that it always mattered-Mills had written her 402 motion. She wanted a full-blown hearing on the issue and was prepared to argue heatedly for it.
'All rise. Hear ye! Hear ye! The Superior Court, State of California, in and for the County of San Mateo, is now in session, Judge Theodore Tollson presiding.'
Now she stood up and brought her eyes forward. Tollson had ascended to the bench. The clerk said, 'You may be seated.' After fifteen months, interviews filling thirty-seven binders, twelve pretrial written motions, three boyfriends, and the hint that the proper outcome would garner a six-figure book-deal offer, they were about to get on the boards at last.
Tollson glared down from the bench to both attorneys' tables, back over the small bullpen partition, and across the packed gallery. He looked in no way amiable. He straightened his back and pushed his glasses up to the ridge of his nose. 'Mr. Washburn,' he began. 'Ms. Miille. Are you ready to begin?'
Both intoned, 'Yes, Your Honor.'
'All right, then, before we get down to it, let's spend a few moments in my chambers.' And with that, he was up again, off the bench, and through the side door. To Mills, there was an absurd quality to the judge's formal entrance minutes before, followed by his near-immediate retreat back to his private office, but it was far from the only absurd moment she'd spent in and around courtrooms.
By the time she'd gathered her papers, Everett Washburn had come over to her table and, like the cultured gentleman that he was, waited for her to come around. She almost expected him to hold out his arm as a courtier might, for her to take it. But he merely bowed and let her precede him across the courtroom and to the back door, where the bailiff was waiting.
In Tollson's chambers, a faded green-and-gold pennant from the University of San Francisco took pride of place on the wall behind the large oak desk. A trophy case held more than a dozen ancient baseball and football trophies. A golf bag sat up against the bookshelf wall. A credenza sported a dozen or more framed photos of family members. Someone had arranged his diplomas, honors, and ceremonial pictures in a large rectangular pattern that covered the last empty wall.
The bailiff stayed until they were seated, then disappeared, leaving only the two lawyers and the judge. Tollson, in his robe and glasses behind his desk, nevertheless was his casual, out-of-the-courtroom self as he began. 'So, I take it you two haven't reached a last-minute settlement, Mr. Washburn?'
The old lawyer sat back with his legs crossed-bemused, tolerant, good-natured. 'That's correct, Your Honor.'
'So what are we looking at for time?'
The question was asked of both of them, but Mills spoke up first. 'The People's case, Your Honor, maybe four weeks, depending on cross. I've never worked with Mr. Washburn before, so I don't know how long he takes. I'll let him give you the estimate for the defense. I don't know about rebuttal.' She paused, decided to hedge her estimate. 'A lot will depend,' she said, 'on what you let in.'
'We'll be getting to that here,' Tollson said. 'Jury selection?'
'Probably a couple of weeks, Your Honor. I would suggest a week of hardship, based on the length.' She was suggesting that they first screen prospective jurors to see who could be with them, basically without pay, for what looked like a couple of months. The idea was that it was wise to eliminate the vast majority of prospective jurors whose employers would not pay for that length of jury service, or who could not otherwise handle the commitment. Only those who survived the initial screening would undergo the more complex and time-consuming questioning that would decide who would sit on the jury.
She went on, 'So we've got twenty peremptory challenges each, and some hot-button issues such as the Iraq War and maybe some psych stuff, depending on your rulings. We use questionnaires, we should get our hardships done in three days or so, and the regular jury picked a couple days after that, give or take.'
Tollson nodded. 'Mr. Washburn? Sound about right to you?'
'Pretty close,' he intoned. 'I agree we should hardship first, and have the jury fill out questionnaires.' He reached into his inside pocket and extracted a handful of paper, folded the long way. 'And I just happen to have a proposed questionnaire for this case with me.' Handing a copy to Mills and the judge, he added, 'I'll need about a week for the defense, Your Honor.'
Tollson, perusing the questionnaire, didn't look up, but said, 'Motions?'
This time Washburn went first. 'Limit the use of autopsy photos, Your Honor. They don't need a bunch of gory photos to prove this guy is dead.'
'Your Honor,' Mills said. 'This
Washburn shot back, 'Too many autopsy photos might unduly prejudice the jury.'
Tollson held up a hand. 'Show me the photos you want to have admitted. I'll let you know which ones you can use before we start jury selection. Anything else?'
This was the moment. Mills produced copies of her 402 motion for Washburn and Tollson and said, 'Mr. Washburn has discovered some stuff on PTSD, Your Honor, and has expert witnesses on his list. We would like a full-blown hearing on what you're going to admit before we get near a jury.'
She wanted the judge to require Washburn to call his witnesses outside of the presence of the jury and have them testify under oath. Then the two sides could argue over whether such testimony was admissible, and the Court could rule on it. If the evidence was admitted, the same witnesses would have to give exactly the same testimony later in front of the jury.
If the Court refused to hold the hearing, testimony got heard for the first time with the jury present. In this case, if the Court then ruled that the testimony should not have been admitted, the only remedy was to instruct the jury to pretend they had never heard it. Popularly known as 'unringing the bell,' this was a notoriously ineffective way to deal with the problem.
