"You've got to keep your strength up." Washburn grabbed the pickle and took a bite of it. After he finally swallowed, he sipped from his bottled water and cleared his throat. "But we need to talk about what we do if he doesn't allow it."
"You mean Tollson?"
A nod. "And the PTSD. We get that, we're going to have the jury on our side. They're going to see what happened in Iraq, what you've been through…it's decent odds they don't convict. On the other hand, this morning I was hoping Ted would rule to let the PTSD in without a hearing, but he didn't do that. Which means he's thinking about it, maybe he thinks it's bogus."
"Why would he think that? He lost a foot himself."
"Yeah. But remember, whatever else happened to him, he didn't get any PTSD from it. Which means, maybe, that to him it's just a bunch of mumbo-jumbo from weak-ass lesser beings. Or shyster lawyers like me."
"Is this supposed to cheer me up?"
Washburn shrugged, took another monstrous bite of his sandwich. "Just running down the possibilities. Look," he went on, "don't get down about this. Half the world's on our side."
"Which means half isn't."
"But we don't need half. We just need one out of twelve. So get over it. The fact is you're a wounded veteran who's the victim of an extremely-now-unpopular war. The more we get the war in as a villain, the more we got Nolan as a victim of the war himself. Without the war, nobody would have been killed. Your guys in Iraq, Nolan, nobody. Plus we got our big surprise when you testify, which will sway some hearts and minds, since it brings it all around and gives them an alternative theory to think about. But all that's counting on the PTSD, without which it's a different ball game." Taking another drink of water, Washburn swished it around. "So the question is, Tollson doesn't let it in, we might want to talk about a plea."
Evan closed his eyes for a second, then shook his head. "No way."
"Wait. Before you-"
"Everett, listen. Mills's last offer was forty to life. I can't do forty."
Washburn looked at his client. He'd been here with other clients more times than he cared to remember, but it never got easy. Tollson's ruling to hold a hearing on the PTSD evidence was unexpected and perhaps ultimately disastrous. Washburn had truly believed that his argument in chambers, casually though he had phrased it, would carry the day and that Tollson would allow the PTSD evidence at the trial.
But now, possibly, that wasn't to be the case.
Washburn wasn't giving up. It wasn't in his nature to do that. But he had to get it through to Evan that they might, after all, lose. "I'm sure I could get Doug Falbrock to drop the gun," he said. Any use of a gun in the commission of a murder in California added an automatic twenty-five years to the sentence. "Plea to a second. Get them down to, say, twelve to life."
Evan was sitting back, arms crossed. "Wasn't it you who said the immortal words 'Anything to life equals life'?"
"I was being glib," he said. "You'd be a model prisoner, out in the minimum."
"Still," Evan said, "twelve years."
Washburn unfolded his hands, took his last bite of sandwich. "I'm just saying"-he chewed a couple of times-"I'm just saying you might want to think about it."
WASHBURN'S PLAN TO GET the war into the trial at every opportunity was behind his decision to call Anthony Onofrio as his next witness. Onofrio had come home six months ago and had immediately contacted Washburn's office asking if and how he could help with Evan's defense. As an older veteran, a father of three who'd left his Caltrans job and home in Half Moon Bay to do his duty, as well as the lone military survivor besides Evan in the Baghdad firefight, he was in a unique position to recount the traumatic event that was at the heart of this hearing.
But no sooner had the clerk sworn in the thick-necked, friendly looking workman than Mills stood to object. "Your Honor, the last witness has already testified and established to the People's satisfaction that Mr. Scholler suffers from post-traumatic stress disorder. We are willing to concede that point, though we still contend that it's irrelevant. The People fail to see what probative value, if any, this witness can bring to these proceedings. He wasn't even here in the United States during the time of the murder and his testimony can have no bearing on the defendant's guilt or innocence."
Judge Tollson leaned back in his chair on the bench, his eyes nearly closed. He inclined his head a quarter of an inch. "Mr. Washburn?"
"Your Honor, this witness is foundational. There can be no post-traumatic stress without an original trauma, and Mr. Onofrio was an eyewitness to the trauma that Mr. Scholler experienced and to the effects of which Dr. Overton just testified. We did not simply hire a rent-a-shrink to come in here and invent a condition following an event which never took place. Without the event, there can be no condition."
