Betrayal (29 page)

A
T EIGHT-THIRTY THE NEXT MORNING,
Mary Patricia Whelan-Miille sat on the corner of her desk in her small office. Behind her, outside the window, the freak storm was into its second day and showing no signs of clearing. In the parking lot just outside, the cold and heavy rain slanted nearly horizontal in gusting sheets. In front of Mills, her secretary, Felice Brinkley, sat with a notepad on a folding chair that she’d set up by the door.

Felice was a no-nonsense woman who wore minimal makeup and had let her hair go almost completely gray. Mills thought she’d done this as a defense against being hit on by guys—with her finely pored skin, sculpted cheeks, and a hooded, sensuous cast to her eyes, and even with the gray hair and lack of fuss, she was a strikingly attractive woman. The curvaceous figure didn’t hurt either.

Thirty-six years old, she was the mother of two boys and a girl, all under twelve. Mills also believed that Felice was among the smartest people she’d ever met and constantly tried to persuade her to take the LSATs and become a lawyer herself, but Felice would have none of it—perhaps in itself, Mills had to admit, a testament to her intelligence. The way it was now, Felice was explaining for the fiftieth time, she could come in early, work her regular hours, skip lunch, and be home just about in time to be there for the kids when they got home from school. Her husband, John, worked a swing shift in maintenance for the city for the pay differential, so one of them was always there for the kids. “That’s just our priority.”

“But with the extra money, and there’d be a lot more of it, John wouldn’t have to work at all if you got in with a high-ticket firm, which you would,” Mills replied.

“Sure. But I’d have to work twenty-hour days. And how would that make him feel, not working? He wants to work. Or if I made more money than him? I don’t necessarily think that’s a recipe for a happy marriage.”

“But it’s okay for him to make more money than you?”

“He doesn’t.”

“But if he did, that would be okay?”

“Sure. But it would also be okay if I made more than him, if that’s just the way our lives work out. But why should I go for a new job that I wouldn’t like as much and would keep me away from my kids just for the money?”

“Because money is what makes you safe, Felice.” She held up an admonitory finger. “Okay, and I know you don’t want to think about this, but what if he leaves you?”

“Who, John?” She laughed. “John is never going to leave me.”

“How can you be sure of that? He’s a man, isn’t he?”

Felice had heard all of this before, and found it mildly amusing. Her poor, sad, driven boss who worked impossible hours and was never in a stable relationship trying to tell Felice how to have a more secure and happy life—there was something inherently funny, if also somewhat pathetic, about the situation. “All men don’t leave,” Felice said. “Both the kids’ grandfathers are still around, for example, and married to the grandmothers. It happens. In fact, in both of our families, John’s and mine, it’s kind of a tradition.” She brushed her hair back from her forehead, opened the notepad on her lap, snapped her ballpoint a couple of times, checked her watch. “Now, how about you show me this closing argument?”

Suddenly wide-eyed, bushwhacked by the time, Mills boosted herself off her desk. “Oh, God, is it really eight-thirty already? We’ve got to…”

Felice raised her hand. “You’ve got to just calm down, MP, and tell the story. That’s all you’ve got to do. Slow and easy.”

“You’re right.” Mills blew a strand of her hair away from her mouth. “You’re right.”

“Yes, I am.” Felice clicked her pen again. “Okay, hit it.”

“L
ADIES AND GENTLEMEN
of the jury.” Mills held her legal pad with her notes as a prop, although she knew pretty much exactly what she was going to say. “At the beginning of this trial, I told you that the evidence would prove to you beyond a reasonable doubt that Defendant killed Ron Nolan with premeditation and malice aforethought. I’d like to take a last few minutes of your time now to talk about the law and explain how the evidence has done exactly that.”

For the next forty-five minutes, she focused on the elements of murder to help the jury wade through the verbose and sometimes arcane instructions that the judge would give them at the end of the case. Then she got to the core of the argument.

“So now I’ve explained what murder is. We’ve talked a little about what the legal definition of premeditation is, and I hope my comments have helped you understand what precisely the law requires be proved before the defendant may be found guilty. Now I’d like to talk to you about the evidence, the specifics of the testimony in this case, the exhibits, the reasonable inferences to be drawn from that testimony and from those exhibits that show the defendant’s conduct meets the definition of first-degree murder.

“And what is that evidence? First, Mr. Nolan and Defendant were rivals for the attention of the same woman, Tara Wheatley. The defense would have you believe that on the night of Defendant’s attack on Mr. Nolan—one that he freely admits, by the way—Ms. Wheatley, after a six-month relationship with Mr. Nolan, decided to suddenly change her allegiance and affections in favor of Defendant, and that because of this shift, Defendant no longer had a motive to want to kill Mr. Nolan. I submit to you that this is simply untrue.”

“Wait a minute,” Felice said. “Not ‘untrue.’ Be more earthy. Why not, ‘Does this make any sense to you?’”

Mills nodded. “Better.” She made a note, then resumed her pacing and her argument. “The defense is telling you that a man who lost his girlfriend to another man, who believes that that man lied and cheated and betrayed him, who knows that the man has enjoyed an intimate relationship with the defendant’s girlfriend while he was laid up in the hospital, is suddenly told by the girlfriend that she intends to come back to him, and now everything is okay. No bitterness. No animosity. No hate. That’s what the defense is selling. I hope you’re not buying.

“First of all, because your common sense tells you that’s nonsense. Blood feuds don’t end in a minute. Long-held hates don’t vanish overnight, and the defendant must have known that Ms. Wheatley, who had already changed her mind once, could just as easily change it again tomorrow and prefer Nolan to him. But more to the point, all the evidence shows that as a simple fact, the defendant still did hate Ron Nolan.

“After he talked to Tara, he armed himself with a deadly weapon—and as you’ve heard from the evidence, those brass knuckles are a deadly weapon—and he went to Ron Nolan’s place for the express purpose of beating him. Does that sound to you like someone who had given up hard feelings, someone who had forgiven his enemy, someone who did not still want revenge and to inflict pain? Of course not. That’s just nonsense.” She stopped by the window. “Is that enough on that?”

Felice nodded. “I think so. You don’t want to beat it to death. Just move along.”

Pacing again, Mills continued. “While I’m discussing motive, let me just say that motive alone is not…”

“No,” Felice said. “The weight of motive evidence will be in the jury instructions. You don’t have to go there.”

With a nod, Mills started in again. “The defense would also have you believe that the second equally compelling motive—that Defendant wanted to stop Mr. Nolan from producing more evidence to connect him to the Khalil slayings—was moot because Mr. Nolan had already produced such evidence. This is a spurious argument.” She stopped. “Is
spurious
okay?”

Felice considered for a second. “Maybe a little fancy.”

“How about
specious
?”

“Maybe a lot fancy.” The paralegal rolled her eyes. “How about going for the blue-collar vote and using
phony
.”

“Fake.”

“False.”

Mills snapped her fingers. “That’s it.
False.
” She went back to her formal voice. “This is a false argument because first, Defendant may well have believed that Mr. Nolan had more evidence. But more to the point, none of what Mr. Nolan had told the FBI about the Khalil evidence could be used against Mr. Scholler if Mr. Nolan was dead. If there’s one thing you’ve learned in this trial, it’s that we need to produce live witnesses to give testimony. I suggest to you that the defendant had an even greater motive to kill Mr. Nolan once it was clear that Nolan had turned him in and was prepared to cooperate as a witness against him.

“If the defendant did kill the Khalils, adding one more murder to the list to protect him from being caught 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.”

B
Y LATE
F
RIDAY 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.

“Do you want me to call the bailiff?” Cannoe asked.

Ellersby looked up to the ceiling, said a quick prayer for Evan Scholler’s soul, and brought her eyes back down to the table. “No,” she said. “I think we need to do one more ballot.”