Betrayal

wouldn't have been a big deal.'

'Whoa up,' Felice said. 'You better be ready. Washburn's gonna light up on that one.'

'I know. But I'm allowed to argue, and I want the jury to hear it.'

'The judge won't let it in.'

'No, probably not. But I'll talk fast and get as much of it in as I can before they shut me down.'

'So long as you know.'

'I know. Okay, moving on.' Mills consulted her notes briefly. 'So let's get down to what actually happened, what the undisputed evidence proves happened. Arming himself with brass knuckles, and admitting to Tara Wheatley that he was going to quote put an end to this unquote, Defendant drove to Mr. Nolan's house and attacked him. A fight ensued, and both men were injured. Three days later, a gun bearing Defendant's fingerprints was found on the bed in Mr. Nolan's bedroom, near to where Mr. Nolan lay on the floor with a fatal gunshot wound to the head from the same caliber weapon.

'Exactly what happened on the night of that fight? The only person in this courtroom who could tell us that claims that he has no memory of that time. No memory at all. And this in spite of his own doctor's testimony that blackouts last no more than ten minutes. That leaves a lot of conscious time for which Defendant has no explanation, and no memory. The evidence you've heard, and from his own witness, does not support his testimony.

'So with a lack of absolute certainty, we are left with the task of asking ourselves what is the most reasonable explanation for the facts in evidence. Is it more reasonable to assume that Defendant finished his fight with Mr. Nolan and then, inebriated and with a concussion, drove himself to his apartment, where he continued to drink for the next two days, while some unidentified third party, for some inexplicable reason-'

'Maybe unexplained.'

'-for some unexplained reason, entered Mr. Nolan's home, beat him with a fireplace poker, and then shot him?

'Or is it more reasonable to assume that, armed with his set of brass knuckles, Defendant got the better of Mr. Nolan in their fight and, when he had finished that exercise, simply shot him in the head with a handgun he found at the scene? Then, ladies and gentlemen, and only then, after he had murdered Mr. Nolan in cold blood, did he drive himself home and proceed to drink himself into an alcoholic stupor.' Mills stopped, locked eyes with Felice, and shook her head. 'I hate this guy,' she said.

'It's not coming across,' her paralegal answered. 'It's very clean and objective. I buy it completely.'

'Not too short?'

'Not for me.'

Mills glanced up at the wall clock. 'Almost showtime. Imagine if I actually pull off beating Washburn.'

'Don't get ahead of yourself. Just take it a sentence at a time.' Felice stood up and gave her boss a quick hug. 'You feel ready?'

'As I'll ever be.'

'Okay,' Felice said. 'Go get 'em.'

29

By late Friday afternoon, the tension was thick in the jury room. Ryan Cannoe, the foreman, had just counted the fifteenth ballot and the vote-from an original of eight to four to convict-now stood at eleven to one.

'Maggie,' he said to Mrs. Ellersby, 'we've got another forty-five minutes and then we're going to have to come back after a very long weekend. Now, I'm not trying to coerce any kind of a different vote from you, but if you're sure you won't budge, and you're never going to budge, maybe we should just send out the word that we're hung and leave it at that.'

This brought a burst of invective from several of the other jurors. 'After all the time we've put in on this!' 'No way!' 'That's bullshit!' 'The guy's guilty as sin and we all know it.'

'Maybe we don't all know it,' Ellersby replied. The day-in fact, the whole jury experience-had been its own trial for her, especially since this morning when the last two defections from her camp had crossed over, leaving her as the lone vote to acquit.

'So that's your final decision, Maggie?' Cannoe asked again. 'You really don't think he did it?'

'Not exactly that,' she said. 'I think he might have done it, as I've said all along. I just can't be sure in my heart that it's first-degree murder. If he went there to beat Nolan up and he died by mistake, that's second- degree.'

Cannoe kept his patience. 'Except he didn't die from the beating.'

'No. I know that. Things got out of hand.'

Juror #2, Sue Whitson, a woman of Ellersby's age who'd been an early voter for acquittal, now joined the argument. 'Maggie, I'd be with you except that in the end, he put the gun up to the man's head and shot him. How do you explain that except to say that at some time, Mr. Scholler decided to kill him? And that's murder one.'

'The point,' Cannoe added, 'is that you believe Scholler did it, don't you? Never mind all the legal distinctions. He pulled the trigger, right?'

Ellersby sighed and whispered, 'I don't see how he didn't, but I don't know if they proved he did.'

'It's not absolute proof, Maggie,' Sue said. 'It's proof beyond a reasonable doubt. And they've done that.'

'You admit it yourself,' Cannoe said. 'You just said you don't see how he didn't do it.'

'I know.'

'Well, then…'

'Well, then, I just keep coming back to what Mr. Washburn said in his closing statement. That they could have come up with any number of other defenses that seemed to make more sense. Self-defense, for example, or heat of passion, or simply saying no, he didn't do it. But instead they went with the truth, which he admitted was maybe harder to believe…'

Sue reached out and put a hand on Maggie's arm. She spoke with a surprising gentleness. 'Maybe because it wasn't, in fact, true, Maggie. Maybe Washburn's just playing on our gullibility, figuring we'll want to believe that this young man, Evan, who'd had such a terrible time in Iraq, that somehow his injuries there are to blame for the fact that he can't say he didn't kill Nolan. If it wasn't for all the Iraq stuff, would you have any doubt about what really happened? Would his story have made any sense at all? That's what I finally came to see. It just doesn't. I wish it did, but it doesn't.'

'He came to beat him up,' Cannoe said, 'and wound up staying to kill him. If that's not what you see, Maggie, and you don't think you can ever say otherwise, I'll call for the bailiff and tell him we're hung. You want me to do that?'

Ellersby looked around the table at all of her intelligent, well-meaning fellow citizens. None of them cold- blooded, none out for vengeance. All of them had given nearly a month out of their lives to see that justice was done, that the system worked. And for her part, she knew that she had been irrationally swayed by the power of Washburn's simple argument in closing that he was too smart and too experienced to ever allow a ridiculous defense like Evan's 'I don't remember' to be the centerpiece of his case, except that it was the truth.

That's why they had gone with that defense, because it was the truth.

And Maggie Ellersby's mind's eye could picture Evan passed out in his apartment, not from alcohol, but from his brain injury-not in a blackout but in a true state of unconsciousness, knocked out from the beating he'd taken.

But there was no evidence that that was what had happened. None at all. And what if Washburn, as another one of her colleagues on the jury had pointed out early on, was nothing more than a man who was paid to tell lies on behalf of his clients? That's what all lawyers were, right? She flashed on the O. J. Simpson case, the Dan White 'Twinkie Defense' case in San Francisco. If she was the lone holdout, and her vote to acquit wasn't based on any evidence she could name, how would she be able to explain herself to her husband and her friends?

How could she live with herself?

'Maggie?' Sue softly queezed her arm again.