Betrayal

injuries?'

'Of course. Any knock to the head can cause severe injuries, or even death. And from examining Mr. Scholler's head, I found evidence-bruises and broken skin-of several such blows. He also had a new concussion.'

'Were these injuries enough to make a person pass out?'

'Certainly.'

'At the time they were inflicted?'

'It could be then.'

'Could it also be later?'

'Yes.'

'Thank you.' Washburn risked another quick look at the jurors. Everyone was still with him. 'Now, Doctor,' he continued, 'in a case like this one, where there had been previous traumatic brain injury within the past year, might the ramifications of a beating such as the one endured by Mr. Scholler be more serious than in someone without that history?'

'There's no might about it.'

'So the symptoms of this kind of beating would be more serious than they would be to someone who hadn't had the earlier trauma?'

'Well, not to say that a single beating couldn't be severe enough to cause significant damage, and even death. But certainly the history of recent trauma would exacerbate any symptoms from the beating.'

'And why is that?'

'Because the brain is an extremely complicated and slow-healing organ.' Bromley-bless him, Washburn thought-turned to address his remarks directly to the jury. 'It's common, in fact it's the norm, for a TBI to cause neurological and physical problems forever. Other scenarios, particularly if they involve bleeding and clotting, can take two to four years to clear up entirely. And even then, there may be scarring and other complications.'

'What about blackouts?'

'Yes, of course, blackouts too. Although typically, medical professionals don't refer to them as blackouts. It's not a very specific term.'

'Is there a specific medical term, Doctor?'

'Well, there is syncope'-he pronounced it sin-co-pee-'which is more or less simple fainting. Then there are seizures, both epileptic and psychogenic, that is, nonepileptic. And finally there are alcoholic blackouts, where you have anterograde amnesia during or following a drinking binge. All of these would probably be called some sort of blackout by a lay person, and all of them might be affected by TBI.'

'And what happens during any of these blackouts?'

'Either one or both of two things: temporary loss of either consciousness or memory.'

'And how long can a blackout last?'

'Well, again, that depends. In some sense, lay people might call a coma a blackout, and they've been known to last a decade or more. Most, like fainting or epileptic seizures, last no more than ten minutes.'

And suddenly, with this answer from Dr. Bromley, Washburn felt a sickening hollowness in his stomach so acute that he thought for a moment that he might have a period of syncope himself. He had known of the weakness of this blackout information, of course, for the better part of the year, and had gone over it again with Bromley over the past weekend, intent on getting this medical evidence into the record.

Struggling to get to his next point, all at once he saw this testimony now for what it was, and it was smoke. He could sense that it wasn't going to work. His idea had been to establish that Evan's loss of consciousness was a possible, and even common, result of his TBI, tying everything neatly back to Iraq, and the good soldier sympathy vote from Mrs. Ellersby. After the beating Evan had taken on that night, Washburn had assumed that he'd be able to supply at least a colorable argument that Evan's coming testimony held water.

And now, with a great and terrible clarity, he could see it just wasn't going to fly. The fact that Evan might have blacked out at some point was no proof that he actually had spent any or all of that time in an unconscious state. In fact, given his blood alcohol level at the time of his arrest, it was indisputable that he'd had at least flashes of consciousness during that time when he'd drunk himself into oblivion. Washburn's thought that he could slip this past the jury or that it would get lost in a wave of sympathy was just wishful thinking. He had believed it might work because he needed it to work to have any hope of winning this case.

Washburn still had Bromley's testimony about much of what Evan had been through because of his traumatic brain injury. He might go on to suffer effects from that for the remainder of his life. A few of the jurors initially might still give Evan the benefit of the doubt because they took pity on his situation. But Bromley's testimony offered nothing at all in the way of proof that Evan had been incompetent or unable to commit the murder of Ron Nolan. And eventually, this simple fact was very likely to convict his client. He'd been deluding himself to think otherwise.

He walked to his table and took a sip of water. Turning, he came back to his place in the center of the courtroom. Still, he hesitated.

'Mr. Washburn,' Tollson asked with some concern, 'is everything all right? Would you like to take a recess?'

'No, Your Honor. Thank you.' Then he executed his trademark bow, thanked Bromley, and turned him over to Mills.

The prosecutor got up and advanced to her place with an enthusiasm that told Washburn that she hadn't missed the issue. And indeed, her first question honed in on it. 'Doctor, with regard to these blackouts you were discussing. You said they usually lasted a few minutes, is that right?'

'Normally, yes, although it can vary.'

'So you said. So your testimony is that a blackout can last for a few days, is that right?'

'Well, again, the terminology of blackout isn't precise. If we're talking about fainting or a seizure, I'd say no. They don't last more than ten minutes usually. True unconsciousness, however, can of course extend indefinitely, though I would hesitate to call that a blackout.'

'So is there any way that you can assure the jury that Defendant in fact suffered any kind of blackout at all on the night of the beating?'

'No, I can't say that.'

Mills threw a plainly gloating look over to the jury, then came back to Bromley. 'Thank you, Doctor. That's all.'

'Was it just me,' Evan asked, 'or did not that go very well?'

They were in the holding area behind the courtroom again, for the recess. In a gesture that Washburn took to be one of sympathy, the bailiff had delivered paper cups filled with fresh, hot coffee for both him and his client. Normally, this wasn't allowed since a suspect with a cup of hot coffee was a suspect who could attack people with it, but today for some reason-the change in the weather? the pathetic Bromley testimony?-the bailiff had offered and both men had jumped at the chance.

Washburn, of course, downplayed the problem. Shrugging, he said, 'Between Onofrio and Bromley we got in a whole lot of what you've been through. Somebody on that jury is going to care, you watch.' He sipped at the brew. The bravado he'd put in his answer wasn't just to buff up his own self-image. Evan was going on the stand next, and Washburn needed him to project both relaxation and confidence while he was up there. He was going to get to tell his story at last and, more importantly, sell it to the jury.

But it wasn't much of a story, and both men seemed to understand that.

'Don't take this badly.' Unruffled, collected, Washburn leaned back against the wall and crossed one leg over the other. 'I still think we've got a decent shot, but I also think the Court would look favorably on an offer to plead.'

Evan turned his head and fixed Washburn with a glare. 'We've been through that.'

'Yes, we have. And now you're going to tell the jury that you didn't kill Nolan.'

'That's right.'

'Any idea who did? Because I don't have one.'

'It wasn't me.'