'Why would he think that? He lost a foot himself.'
'Yeah. But remember, whatever else happened to him, he didn't get any PTSD from it. Which means, maybe, that to him it's just a bunch of mumbo-jumbo from weak-ass lesser beings. Or shyster lawyers like me.'
'Is this supposed to cheer me up?'
Washburn shrugged, took another monstrous bite of his sandwich. 'Just running down the possibilities. Look,' he went on, 'don't get down about this. Half the world's on our side.'
'Which means half isn't.'
'But we don't need half. We just need one out of twelve. So get over it. The fact is you're a wounded veteran who's the victim of an extremely-now-unpopular war. The more we get the war in as a villain, the more we got Nolan as a victim of the war himself. Without the war, nobody would have been killed. Your guys in Iraq, Nolan, nobody. Plus we got our big surprise when you testify, which will sway some hearts and minds, since it brings it all around and gives them an alternative theory to think about. But all that's counting on the PTSD, without which it's a different ball game.' Taking another drink of water, Washburn swished it around. 'So the question is, Tollson doesn't let it in, we might want to talk about a plea.'
Evan closed his eyes for a second, then shook his head. 'No way.'
'Wait. Before you-'
'Everett, listen. Mills's last offer was forty to life. I can't do forty.'
Washburn looked at his client. He'd been here with other clients more times than he cared to remember, but it never got easy. Tollson's ruling to hold a hearing on the PTSD evidence was unexpected and perhaps ultimately disastrous. Washburn had truly believed that his argument in chambers, casually though he had phrased it, would carry the day and that Tollson would allow the PTSD evidence at the trial.
But now, possibly, that wasn't to be the case.
Washburn wasn't giving up. It wasn't in his nature to do that. But he had to get it through to Evan that they might, after all, lose. 'I'm sure I could get Doug Falbrock to drop the gun,' he said. Any use of a gun in the commission of a murder in California added an automatic twenty-five years to the sentence. 'Plea to a second. Get them down to, say, twelve to life.'
Evan was sitting back, arms crossed. 'Wasn't it you who said the immortal words 'Anything to life equals life'?'
'I was being glib,' he said. 'You'd be a model prisoner, out in the minimum.'
'Still,' Evan said, 'twelve years.'
Washburn unfolded his hands, took his last bite of sandwich. 'I'm just saying'-he chewed a couple of times-'I'm just saying you might want to think about it.'
21
Washburn's plan to get the war into the trial at every opportunity was behind his decision to call Anthony Onofrio as his next witness. Onofrio had come home six months ago and had immediately contacted Washburn's office asking if and how he could help with Evan's defense. As an older veteran, a father of three who'd left his Caltrans job and home in Half Moon Bay to do his duty, as well as the lone military survivor besides Evan in the Baghdad firefight, he was in a unique position to recount the traumatic event that was at the heart of this hearing.
But no sooner had the clerk sworn in the thick-necked, friendly looking workman than Mills stood to object. 'Your Honor, the last witness has already testified and established to the People's satisfaction that Mr. Scholler suffers from post-traumatic stress disorder. We are willing to concede that point, though we still contend that it's irrelevant. The People fail to see what probative value, if any, this witness can bring to these proceedings. He wasn't even here in the United States during the time of the murder and his testimony can have no bearing on the defendant's guilt or innocence.'
Judge Tollson leaned back in his chair on the bench, his eyes nearly closed. He inclined his head a quarter of an inch. 'Mr. Washburn?'
'Your Honor, this witness is foundational. There can be no post-traumatic stress without an original trauma, and Mr. Onofrio was an eyewitness to the trauma that Mr. Scholler experienced and to the effects of which Dr. Overton just testified. We did not simply hire a rent-a-shrink to come in here and invent a condition following an event which never took place. Without the event, there can be no condition.'
For a long moment, and against all reason, since he was basically correct, Washburn lived with the agonizing possibility that Tollson was going to dismiss his witness and call an end to his entire line of questioning.
He also had time to reflect that Mills's objection made little sense. In theory, by granting this hearing without the presence of a jury, Tollson had provided her with a bonus-she'd get to see all of his evidence before he could present it at trial. She should want to hear everybody he brought in so she'd, in effect, have two chances to take them apart-now and when the jury had been impaneled.
But then, he realized, she was probably running mostly on nerves and adrenaline herself. And the fact remained that if Tollson did side with her and preclude Onofrio from testifying, the same objection and rationale might get some traction regarding calling his following witnesses as well, and that would truly be problematic.
Tollson ended the suspense. 'Ms. Whelan-Miille,' he said, 'this is a hearing. That means we get to hear what people have to say before we get to trial. Mr. Washburn is right. This witness's proposed testimony is foundational to the question of trauma. The objection is overruled. Mr. Washburn, you may proceed.'
Trying to hide his sigh of relief from the Court, Washburn leaned his head forward, the merest hint of a bow. 'Thank you, Your Honor.' He turned to the witness. 'Now, Mr. Onofrio, can you please tell the Court about your relation to Mr. Scholler?'
'Until he was wounded, he was my squadron leader in Iraq in the summer of two thousand three.'
Over the next few minutes, Washburn walked Onofrio through the makeup of the squadron and its general duties as a military convoy unit, then came back to the main thrust. 'Mr. Onofrio, you've said that Mr. Scholler was your squadron leader until he was wounded. Would you please tell us how that came about?'
'Sure. We were escorting Ron Nolan to a meeting with-'
'Excuse me,' Washburn said. 'You were escorting the same Ron Nolan who is the victim in this case?'
'Yes.'
'He was with you in Iraq, was he?'
'He came and he went, but basically, yes. He was working for Allstrong Security, which was handling the Baghdad Airport and doing other work over there. It was one of our regular jobs driving him where he needed to go.'
'All right, so he was with your convoy on the day the Mr. Scholler was hit?'
'Yes, he was.' Onofrio sat back in the witness chair and basically told it as he remembered it. The tension on the city's streets, Nolan firing on the purported suicide car, the discovery of what it had really been and who had been in it, the rock-throwing and then the sustained attack from the surrounding buildings and rooftops. 'Just after it all started, though, the actual rifle firing and the first RPG, we had a chance where maybe we could have gotten out, but the lieutenant wouldn't give the order to pull out until we'd gotten the men who'd already been hit into one of our vehicles.'
'He wasn't going to leave anyone behind?' This was important information, carefully rehearsed. Washburn wanted it to be clear in the jury's mind, when it came to it, that Evan was in grave danger, in the thick of it, and had acted nobly.
'No, sir. So he ran up to the lead car, which was still smoking, and tried to get out the guys who'd been hit.'
'He did this while you were under heavy fire?'
'Yes, sir. But then the second car took a hit and a couple of the other guys went down, so it was obvious there wasn't going to be any chance for any of us to get out if we didn't move pretty quick. So Nolan kept firing through the roof and had me drive up to where Evan was pinned down. He still wanted to try to carry some of the guys out if he could get to them, but an RPG went off somewhere behind us and next time I looked over, he was down.'
