John Lescroart - Betrayal

"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."

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…"