John Lescroart - Betrayal

"He didn't mention any personal conflicts?"

"No. If I recall, the meeting lasted under the hour. We didn't get too close."

"But he was going ahead with the appeal?"

"Of course. That's why we were talking at all."

"He didn't seem nervous or overly concerned with his safety?"

"Why would he be? The bad guy was already in jail." Shaking her head as if to clear away that thought, she went on. "I hate the appeals process, you know that. They ought to give our side an appeals process if we lose a case-try the scumbags again until we get 'em and put 'em away."

"Yeah, that's Mills," Washburn said. "She's a bit of a zealot, but she's also only the second person in thirty years to whip me in court, so she's got my respect." Hardy had thought it was late enough in the day that there would be a good chance he'd find Washburn at the Broadway Tobacconists, and he was right.

Now they sat in a cloud of cigar smoke in the back of the unpretentious little store. Except for Greta, the female proprietor, they had the place to themselves, a situation-Washburn assured him-that would change in the next hour, when his acolytes and his girlfriend would appear from their various offices to drink "from the vast fount of my knowledge."

Not entirely sure Washburn was poking fun at himself, Hardy said, "Well, whatever time you and I get together here, it's on the clock."

"Goes without saying." Washburn savored his smoke, drawing on it, exhaling another plume. He twirled the cigar around between his lips, then dipped the unlit end into a small glass of amber liquid which, from the bottle next to it, was Armagnac. "Sure you won't join me?"

"Thanks, but then I'd just want a little nip of your nectar, and I'm going to be driving."

"Probably wise. So how can I help you today?"

"Well, this is odd, but it came to me when I was trying to get to Mills. I didn't even see a draft of Charlie Bowen's appeal brief in the file, so I'm assuming he hadn't gotten to it. I'd also been assuming that he was going to go with the PTSD. But now I'm wondering if he'd mentioned anything about that to you."

"What?"

"What he was basing his appeal on. Especially if it wasn't PTSD."

Washburn sat back, drew on his cigar, held the smoke. "Actually," he said, "you raise a good point." Another pause while he dipped the cigar again in the Armagnac. "You know, he seemed to think that it might be more fruitful to attack the competency of the local constabulary as well as the FBI."

"How's that?"

"Well, the Khalil murders." Turning the cigar between his lips, Washburn sat back, pensive. "I mean, here you had two murders intimately connected with the Scholler case-there was no question of that-and a blatant assumption that Evan had committed them with the frag grenades and so on. But the DA never charged him with those murders. You see the issue?"

Hardy saw it plainly, and it struck him as unusually powerful. "So the police and the FBI never questioned anyone else?"

"And, on one hand," Washburn added, "why would they? They had a suspect they could convict, and may as well send him down for one murder as for three, without the risk of losing on the other two."

"You mean they never questioned anyone else about the Khalil murders?"

"I assume they must have, a few people anyway. But certainly not everyone they could have." He took in a huge lungful of the pungent air. "You're forgetting, though, and I wonder if Mr. Bowen did as well, that you can't base your appeal on evidence that isn't discussed in the record. The Court doesn't know anything that the court reporter hasn't taken down."

"I'm not forgetting that," Hardy said, "but then who killed the Khalils?"

"Well, if you believe Evan, Ron Nolan did."

"Did you believe Evan?"

Washburn seemed to be considering it for the first time in a long while. "You know, now that you mention it, yes, I think I do. Evan just didn't smuggle small arms and grenades out of Iraq as souvenirs. He was only over there a matter of weeks. In the brief time he had there, he couldn't have both found a source for these things and arranged to find a way to send them home. Especially when you consider he was airlifted out of there unconscious and with no warning. I'd be surprised if he got out with his own socks, much less all this hardware." He studied his cigar's lengthy ash. "No," he repeated, "it beggars belief. That just didn't happen."

"So where did that stuff in Nolan's closet come from?"

"It must have been from Nolan himself, wouldn't you think? He could move about a lot more freely, and he had both more time and a lot more contacts than Evan ever did."

Hardy sat back in his chair, his elbow on the armrest, his hand resting over his mouth, in deep thought. "Okay," he said in a faraway voice, "let's go with Nolan killing the Khalils for a minute. I don't want to jump too far ahead of ourselves here. Can we take that as fact?"

After a small hesitation, Washburn nodded. "I do."

"All right, then, here's the million-dollar question. Why did he do it?"

"I don't know."

"Was there any speculation you heard?"

Washburn shook his head, now troubled by this as well. "Somehow that just never became part of the discussion, did it?" Asking himself. He turned to face Hardy. "Even when everyone was taking it for granted that Evan had killed them, I don't remember anyone stopping to examine the why of it too closely." He drew on his smoke. "I think there was more or less an assumption that it was something that had happened in Iraq that we would never find out about. Maybe it was something personal or maybe he just hated Iraqis in general for what they had done to him. And at the same time he could frame Nolan for the murders and eliminate his rival for Tara. It was a great opportunity to kill two birds with one stone if you happened to be a psychopath, which some people thought Evan was."

"But nobody asked the hard questions?"

"Apparently not."

"Even though the FBI was all over this thing?" It wasn't really a question. "Does that strike you as the FBI we all know and love?"

Clearly, Washburn, too, had caught the bug. His eyes were alight with possibility. "If Nolan did in fact kill the Khalils," he said contemplatively, "then certainly anyone in the Khalil family-Iraq being the tribal culture that it is-would have had not just a motive but an obligation to kill him."

Hardy, low-watt electricity running through him, leaned forward, elbows on his knees. "What do you think are the odds that the FBI never talked to any of the Khalils?"

"Zero. And yet now that you mention it, all the interviews we got were from the Redwood City police. And it was a pretty perfunctory job."

"So you're telling me the FBI would have relied on the locals to talk to witnesses in a potential terrorism case? I don't think so."

Washburn nodded and nodded. "Son of a bitch," he said, unmistakable glee in his voice. "You're talking Brady ."

Hardy, his mouth set, tried to keep his elation low-key. "You're damn right I am."

The reference was to what was commonly called a Brady violation. In Brady v. Maryland, the Supreme Court held that a defendant had a right to any evidence that was in the possession of the prosecution that might cast doubt on his guilt, whether or not it was eventually to be used at trial. The prosecution was absolutely required to turn over any background, testimony, evidence, interviews-anything-that could exculpate a defendant. If the prosecution withheld any of this discovery, and the withheld material was reasonably likely to undermine confidence in a guilty verdict, then these were grounds to reverse a conviction. Of course, evidence of such a violation was never found in the court's records. The whole point was that the prosecution had withheld the evidence and the defense didn't find out about it until sometime after the trial.