'Yeah.'
'You can't do that.'
'No, I don't think I can.'
'You don't remember anything about those four days?'
'Tara, we've been over that a thousand times.'
'Well, maybe the thousand and first…'
He shook his head. 'It's not going to happen. I remember going to Ron's after I left you. I remember hitting him and him hitting me back, both of us getting into it. Then nothing until I woke up in jail. I'm sorry. I'm just so sorry, but there's nothing there. It's like I disappeared into those damn bottles.'
Tara bit down on her lip. 'You can't plead that you did it, Evan. We can't let ourselves accept we're going to get beaten here.'
'That's what I was thinking too. But if we do-get beaten, I mean-then I'm going to be in prison for a lot longer than twelve years.'
'I'd wait, Evan. I really would.'
'I could never ask you to.'
She was rubbing her hand back and forth over her forehead. 'God God God.'
'I don't think He's listening,' Evan said.
Over the next two and a half very tedious days of technical testimony, Everett Washburn called two psychologists who had administered batteries of tests to Evan over the previous several months. Personality tests, neuropsych tests, intelligence tests, perception tests, concentration tests, memory tests. Both agreed with Dr. Overton that Evan clearly suffered from symptoms that were consistent with PTSD. Washburn called several members of the Redwood City Police Department who had worked with Evan and who had specific recollections of times when he'd exhibited PTSD symptoms in their presence-particularly inappropriate laughter and speech aphasia-an overlong pause in the stream of his conversation. Lieutenant Lochland described his irrational anger and some of the complaints he'd fielded about Evan related to the defendant's work in the DARE program.
Now it was Friday, the lunch recess was over, as was the PTSD hearing, and Judge Tollson had both attorneys back in his chambers. In contrast to his usual out-of-courtroom affability-perhaps worn down by the gravity of the issues, perhaps chastened by the enormity of the decision he had to make-today the judge sat all the way back in his chair, his arms crossed over the robe at his chest. Still and expressionless, he waited until both Washburn and Mills had taken their seats and the court reporter set up her machine.
Finally, he looked over, got a nod from her, and cleared his throat. 'Mr. Washburn,' he said, 'for the record, have you called all your witnesses related to the PTSD evidence that you're seeking to place before the jury?'
'Yes, Your Honor.'
'Ms. Miille, do the People have any evidence they wish to offer on this issue?'
'No, Your Honor.'
'All right. And before I make my ruling on the People's four oh two motion, do you have any comments that you'd like to make?'
'Just what I said at the beginning, Your Honor. That my witnesses proved beyond a doubt that Mr. Scholler suffers from PTSD and this in turn supports his claim that he can't remember anything about this period.'
Tollson turned to the prosecutor. 'Ms. Whelan-Miille? Comment?'
'After hearing all the evidence, Your Honor, the People still believe the entire issue of PTSD is irrelevant and highly prejudicial to this case. The defendant's position here is that he didn't commit the murder. So he's not arguing a quarrel with the victim, or heat of passion, or even self-defense. The only possible result of allowing this PTSD evidence will be to create sympathy for the defendant with the jury.'
Tollson sat still for another few seconds, then came forward and rested his arms on his desk, his hands clasped in front of him. 'Mr. Washburn, I substantially agree with Ms. Whelan-Miille. I've given this matter long and hard thought in terms of weighing prejudice against probative value. And my ruling is that I'm not going to allow this PTSD evidence.'
Washburn, staggered by the ruling, brought his hands up to both sides of his face, then rested them on the side of his chair while he got control of his emotion. 'Your Honor,' he said, 'with all respect, this evidence needs to be admitted.'
'For your purposes, perhaps, but not as a matter of law, Counselor. It's inadmissible because it has no relevance to the evidence related to Mr. Nolan's murder. Beyond that, it has the strong possibility of wasting a lot of time and confusing the jury. If I let in your expert testimony on psychological issues, the jury is necessarily going to have to hear about a lot of hearsay which would not otherwise be admissible, would not be subject to cross- examination, and would be likely to prejudice the prosecution by exciting sympathy for the defense and a dislike of the victim. When you balance that against the entirely speculative argument that the defendant
'Your Honor.' Washburn uncrossed his legs and moved to the front of his chair. Normally unflappable, the old barrister had broken a sweat over a flush during the judge's monologue. He wiped at his neck with the handkerchief from his jacket pocket. Looking over at the court reporter, he sighed in pure frustration. 'Of course, this guts the defense, Your Honor, and I hope the Court will keep an open mind toward reconsideration as the case comes in.'
'Of course, Counsel.' Tollson at his most brusque. 'This Court's open-mindedness is legendary.'
22
'Ladies and gentlemen of the jury.' Today-a Wednesday, two weeks after the PTSD ruling-Mills wore a subdued blue suit over a white blouse, no jewelry, low black pumps. Jurors knew she had a government salary and she was expected to dress in a 'lawyerlike, ladylike' fashion. Her presentation was supposed to be professional. Any sign of flamboyance might be taken for disrespect, or even arrogance. Representing the People of the State of California before this jury of seven men and five women, she wanted nothing to call any undue attention to herself. Neither aggressive nor hostile, she was to be the plainspoken voice of truth and reason, recounting the prosecution's case.
Starting in the middle of the courtroom, Mills walked a short course up to the foreman's position, along the front row of the jury panel, and then, after a quick stop at her desk to turn the page in her binder and check her notes, back to where she'd begun. She did this as a kind of timing device to slow herself down; she also believed in making eye contact with each and every member of the jury. The message was clear-she was leveling with them, person to person, looking them right in the eye and telling them the unblinking truth.
'Good morning. As you know from the questions you answered during your selection as members of this jury, we'll be here for the better part of a couple of weeks hearing the evidence that proves that this defendant'-here she turned and pointed to Evan-'murdered a man named Ron Nolan. The defendant hated Ron Nolan. There's no doubt about it. He thought Ron Nolan had stolen his girlfriend. He hated him for being a business success in Iraq, where Defendant had been injured while serving in the Army. He blamed Ron Nolan for the injuries he'd received, injuries that actually occurred because Defendant, after a long night of drinking, led his men into an ambush in Iraq. Evan Scholler hated Ron Nolan.
'He made no secret of it. He told his parents, he told his girlfriend. He hinted as much to some of the police officers with whom he worked. He stalked Ron Nolan by illegally using police information to keep track of his whereabouts. He broke into Ron Nolan's house and tried to frame him for the killing of two Iraqi citizens murdered in the United States.
'Finally, the evidence will show that Defendant carefully planned and premeditated this murder. Several days before his attack on Mr. Nolan, Defendant,
