Fresh as a teenage boy, Washburn all but hopped up and over to his place to begin his cross-examination. "Lieutenant Lochland, after Patrolman Scholler reacted to the news, what did he do next?" The decision to refer to Evan by his police rank with this witness was, of course, intentional.
"He kind of folded himself down to a sitting position, then lay back all the way."
"On the floor?"
"Yes."
"Was he resisting arrest?"
"No, sir. His eyes were closed. I rolled him over and put handcuffs on him and he still didn't wake up."
"So he was asleep, then?"
"Asleep, maybe, but also drunk. We tested him at the station and his blood alcohol was point two four."
"And what, Lieutenant, is the blood alcohol level at which a person is considered legally drunk in California?"
"Point oh eight."
"So Patrolman Scholler was at something like three times the legal limit for driving?"
"I don't know the math, but he certainly was very drunk."
"Incoherently drunk?"
Mills jumped all over the question. "Objection! Conclusion."
"Sustained."
Washburn took a short beat, came at it another way. "Did Evan respond immediately to your question about what had happened to him?"
"No."
"At his apartment, did he ever call you by name?"
"No."
"Was his speech slurred?"
"Yes."
"And did you have to repeat your questions before he answered?"
"Yes."
"Now, Lieutenant Lochland, he never said he killed Ron Nolan, did he?"
"No, he did not."
"The only thing he said was that he kicked Nolan's ass, correct?"
"Right."
"And to repeat that colorful phrase, Evan Scholler looked like he'd gotten his ass kicked as well, didn't he?"
"Yes. He was seriously beat up."
"Now he said something else," Washburn continued, "after he said he'd kicked Mr. Nolan's ass, didn't he?"
"He said, 'Goddamned right.'"
"Before he said that, you said that Ron Nolan was dead, correct? But you have no way of knowing whether he understood you when you said that, do you?"
"Well, no, not for sure."
"He was drunk, beat up, and more than a little incoherent, correct?"
"Yes."
"So to repeat my question, do you have any way of knowing whether he heard or understood you when you told him that Ron Nolan was dead?"
"He was pretty out of it. I can't honestly tell you that he understood anything that was going on."
"Did Patrolman Scholler say anything else while you were transporting him to the police station?"
"Nothing coherent. Just gibberish."
"Your Honor!" Now Mills was on her feet, truly enraged. "Sidebar, please."
Clearly, tempers all around were fairly raw by this time. Tollson gave the request a full thirty seconds before, muttering, he nodded and waved the two attorneys forward for their third sidebar of the afternoon.
When they got to the front, Tollson was waiting, pointing a finger at them as though he were a schoolteacher. "I'm getting more than a little tired of this bickering, Counselors. This is not the way we do a trial."
But Mills, fire in her eyes, came right back at him. "I'd prefer we didn't have these issues, either, but Mr. Washburn's conduct here is unconscionable! You just sustained my objection about the word
"In such a way that his answer was not conclusory as to my client's mental state, Your Honor. That was, I believe, the objection. Lieutenant Lochland is certainly qualified to call gibberish incoherent."
But Mills wasn't giving up. In a restrained voice, she said, "Your Honor. Obviously, if Defendant was incoherent, then his earlier words don't have nearly the same power."
Washburn had a great deal of experience in situations like this one. The temptation was to begin responding directly to your opponent, and this invariably infuriated judges. So he kept his eyes on Tollson, his voice modulated and relaxed. "That is, of course, more or less my intention in pursuing this line of questioning, Your Honor. The distinction between an incoherent epithet and an incriminating answer to a question, though perhaps too subtle for my opponent to grasp, is hugely significant."
"All right. That's enough of that, both of you. I'm going to allow the question and the answer to stand. Ms. Whelan-Miille, you, of course, may redirect." He pointed down at them once again. "I will not be entertaining any more sidebar requests today. This witness has been up here for nearly an hour, and two-thirds of that time we've been up here arguing about four or five words. It's got to stop. If you have objections, raise them in the usual way and I'll rule as best I can. But that's the end of this quibbling nonsense. Understood? Both of you?"
Washburn nodded genially. "Yes, Your Honor."
Mills stood flatfooted, apparently still too angry to talk.
Tollson brought his hard gaze to rest on her. "Counselor? Clear?"
At last she got the words out. "Yes, Your Honor."
