Authors: David Kessler
“I actually have a copy of your worksheet here.”
Alex handed two copies to the clerk who handed one to the judge and one to Johnson. The prosecution didn’t need a copy as it was they who had given a copy to the defense. Johnson took it, his hands shaking.
“Now could you look at the lines above the line in which you amplified the evidence sample from the Bethel Newton case.”
“Yes.”
“What did you do?”
“I returned a back-up copy of the Elias Claymore reference sample to cold storage.”
“And could you look at the line immediately before that.”
“Yes.”
The voice was weak to the point of bordering on non-existence.
“Could you tell us what you did then?”
Johnson hesitated for a long-time.
“I signed out a back-up reference sample of Elias Claymore.”
On his chair, next to Andi, Claymore leaned forward, sensing a glimmer of hope in his fragile defense.
“And what was the time gap between these two actions?”
Steven Johnson looked down at the worksheets, but Alex sensed that he knew the answer to this question already.
“Four minutes?”
“And what was the
purpose
of taking out Mr Claymore’s back-up reference sample and then putting it back four minutes later?”
Johnson started crying.
“I contaminated on the evidence sample!”
Bridget Riley and Detective Nadis had finished at the Alta Bates hospital and written up their reports at the police station. Now she was being driven over to San Francisco International Airport by Detective Nadis when a call came through on Nadis’s cell phone. He listened mostly, prompting occasionally with grunt or an “uh-huh.” When he had finished, it was hard to disguise the miserable look on his face.
“You look like you’ve just been tagged by the Grim Reaper,” she said, trying to put a humorous spin on it.
“That’s what I feel like,” Nadis replied.
“Why what is it?”
“We’ve just had the DNA report on the comparison between Louis Manning’s reference sample and the Bethel Newton evidence sample.”
“And?”
“It’s a match.”
Bridget felt a stab of shock.
“But it also matched Claymore.”
Nadis’s face screwed up.
“It’s Y-chromosome DNA. That’s not as accurate as regular autosomal DNA. They said on the TV that one in five hundred African-Americans is likely to have this same DNA. And the defense pointed out that there are something like thirty seven thousand or more blacks with that profile.”
“So Claymore can say it was Manning,” Bridget said. “And Manning will say it was Claymore. And they’ll end up
both
getting off.”
“Unless we get some other evidence.”
Bridget raised her eyebrows.
“We’ve
got
other evidence. And it points to Claymore.”
“But that smart-ass defense lawyer is poking holes in the evidence.”
“And now we’ve got to disclose this to him.”
She looked glum. Nadis tried to take it philosophically.
“Well you know what they say: ‘Shit happens!’”
As Alex took in what Johnson had just said, the boy himself just stood there sobbing covering his face with his hands.
“Would you like a few minutes to compose yourself?” asked Justice Wagner.
Johnson shook his head and struggled to continue.
“Why did you contaminate it?” asked Alex.
“What?”
It was almost like he didn’t remember where he was.
“The sample – the nail clipping sample?”
“I didn’t do it deliberately.”
“But when I asked you about taking out the reference samples, you said that you did it to contaminate the evidence sample.”
“No it wasn’t like that! I didn’t take out the reference samples to contaminate the evidence sample. I’d
already
contaminated it.”
“How?”
“I just sneezed.”
There was laughter in the courtroom. Justice Wagner silenced it with a steely-eyed stare.
“You sneezed.” Alex echoed. He wasn’t trying to sound incredulous, especially as he didn’t want to disrupt the flow that he had got Johnson talking. He just didn’t quite manage to keep the surprise out of his voice.
“I felt it happening, but I just couldn’t stop myself.”
“But weren’t you supposed to be wearing a mask, in order to prevent just that sort of thing?”
Johnson looked helpless, even though he had already exposed himself and could hardly say anything to make it worse.
“I was supposed to… and I was going to. I’d just thrown away the old one and was about to put on a new one. But… like you said, we’re working under so much pressure… I just forgot.”
Alex knew that this wasn’t everything however. This was going to be painful but he had to press on.
“So what happened when you sneezed? Did it blew the sample off the table? Did it blow it onto the floor?”
Alex knew that he was being rather cruel here. He was hinting at “On top of Spaghetti” Tom Glazer’s parody of “On top of Old Smokey.”
“No, but I knew it had been contaminated.”
“So what did you do?”
Johnson looked terrified.
“What do you mean?”
“You said that you checked out the back-up reference samples
after
you contaminated the evidence sample.
Why?
”
“Because I wanted to create a new one.”
A gasp went through the courtroom
“A new sample?” asked Alex.
“Yes.”
“And
did
you create one?”
“Yes,” Johnson answered, his timid voice barely audible.
“
How
?”
“Using the reference sample the suspect. I took a small quantity and ran it for 34 cycles in the Thermal Cycler for PCR.”
“But didn’t anyone see you?”
“No one was watching me. Everyone was doing there own thing. Like I said, we were all working under pressure.”
“But afterwards? Didn’t they see that it wasn’t a nail clipping with congealed blood?
“It was a destructive test. Afterwards there’d’ve been nothing left.”
“And it was this
fake
evidence sample that was then separated and detected and matched to the defendant?”
“Objection, Your Honor,” said Sarah Jensen, rising swiftly to her feet. “The question is compound and calls for a conclusion of the witness. This witness didn’t do any of those other tasks, and unless he actually
saw
them being done, he isn’t qualified to say that they were. And given that he has already stated that the lab was busy, I think we can safely rule out that possibility.”
Alex knew that he had them on the ropes now. That was why Sarah was objecting on such petty, technical grounds – because he had them beaten.
“Would you like to rephrase that question, Mr Sedaka?”
“Yes, certainly. Mr. Johnson, was it this
fake
sample that you signed off on?”
“Yes,” he choked, the tears flowing profusely now.
“No further questions.”
He sat down looking solemn. Andi was smiling, but trying not to. Of all the reactions, Claymore’s was the strangest. He was looking at Andi with a blank, neutral look on his face.
“Any redirect?”
“No Your Honor,” said Sarah Jensen, uncomfortably.
Ellen Wagner, looked at the Steven Johnson as he sobbed uncontrollably into his hands.
“The witness is excused. I will not issue a bench warrant for the arrest of this witness at this time. However, I am sure that the DA will look into this matter and take the necessary action in due course.”
Steven Johnson left the stand, his body shaking as he sobbed. Alex rose, keeping his face neutral.
“Side bar Your Honor,” said Alex.
“You may approach.”
Alex, Andi and Sarah Jensen approached the bench.
“Your Honor,” said Alex, “in view of the fact this evidence isn’t merely tainted but downright fake, I think that an uncontested motion for dismissal with prejudice would be in order.”
The judge turned to the Prosecutor, expectantly.
“Any objection?”
“Your Honor, this evidence may be tainted,” she replied half-heartedly, “but we have a reliable back-up system in place.”
Gene Vance was watching the trial at the rape crisis center. She had returned to LA, explaining Andi that she was needed here and couldn’t take any more time off. But her mind wasn’t really on the job.
A strange sensation of confusion wafted over her as she tried to take in what she had just seen. One moment the case against Elias Claymore looked rock solid. The next moment it was on the verge of collapse. Gene didn’t know much about law in general but she knew about rape law in particular and there was no way the prosecution case could survive the shocking revelation that had just emerged in court.
No matter what the strength of the victim testimony, it was the DNA that incontrovertibly linked the rape to Claymore. Without that, Bethel’s contradictory accounts of the assailant’s age would make it impossible to convict him.
But now it was all starting to unravel.
Gene could only guess at what they were talking about at the sidebar. The microphones were switched off for that. But she assumed that there was some technical quibbling about whether the charges could be dropped without prejudice so that they could conduct a retrial without the tainted evidence. Not that they would. But it would be a face-saving formula for the prosecutor. She could leave the courtroom still projecting that they could prosecute Claymore again. The DA would announce that they were dropping the charges later. If the judge required that the charges be dismissed
with
prejudice, then it would be a crushing humiliation for Sarah Jensen and she would take the rap, because the DA’s office needed a scapegoat.
Gene felt sorry for her. But she felt even more sorry for Bethel. Bethel wanted some semblance of justice. Now she was getting nothing. She would be leaving the court empty-handed.
That wasn’t right.
Gene picked up the phone and called a number.
“What do you mean?” asked Justice Wagner, leaning forward.
“We had three nail clipping samples, two from the index and middle finger of Miss Newton’s
left
had and one from the thumb of her right. These samples were all stored separately, so as to ensure that if they had to be tested destructively, some portion of the sample would be preserved. Therefore although the sample that was used in this test was lost, there were in fact two other samples available for testing purposes and these two samples are still in storage at the Ventura lab. I suggest that the Court grant a continuance so that we can process and test one of these samples.”
Alex was getting increasingly irritated, as he sensed victory slipping away.
“Your Honor, if this is so then why did this witness create a fake sample. Why did he simply not check out one of the spare samples?”
“I think the answer is obvious,” said Justice Wagner. “He didn’t want to admit his own mistake. Also he may not have known about the other samples. He only knew what he was told. Maybe they gave him just the one evidence sample and told him to test it with no other instructions. At any rate, the other samples exist, so they
can
be tested.”
“Your Honor even if this is so, in view of the behavior of this employee of the lab and the failure of the lab to stop him or even detect his misconduct, my client has legitimate grounds for concern over the reliability of any future testing procedures done by this lab until the matter can be thoroughly investigated. Moreover because of the evidence on record already, I would submit that this jury is tainted by that false evidence.”
“You could always move a mist-trial
without
prejudice, Mr. Sedaka. That way we could start again with a new jury.”
Alex hesitated. He was about to launch into another objection, on the grounds that this would enable prosecution witnesses to avoid the pitfalls that they had fallen into the first time around. But then he realized that it might have the opposite effect. Alvarez could only answer according to the science and whatever the new tests showed, he would have to testify accordingly. But Albert Carter and Bethel Newton herself might be reluctant to testify at all – after the humiliation they been put through on cross-examination.
“I’m ready to accept that, Your Honor.”
But now Sarah Jensen was panicking.
“Your Honor, that would be extremely disruptive and would cause considerable distress to several prosecution witnesses who are clearly emotionally fragile and who have been testifying in good faith.”
Ellen Wagner thought for a moment.
“At this stage we don’t know what the results of the tests will be. There seems to be no point in anticipating the results. If the new tests exclude the defendant then the matter will be decided for us. If not then I’ll hear legal arguments as to how to proceed at that stage. In the meantime, how long will the tests take?”
Justice Wagner had turned to Sarah Jensen when she asked this.
“We’ll be using Y-STR again so four or five days should be enough.”
The judge turned to Alex.
“In the event that the new tests fail to exclude the defendant will the defense be ready with legal arguments by Monday morning?”
“Yes Your Honor.”
“Ms Jensen?”
“Yes Your Honor.”
“All right, this case is adjourned until Monday morning.”
Andi hadn’t told Gene about the adjournment. Instead she decided to do what Gene had done at the weekend and surprise her lover – in this case, with an unexpected mid-week visit. Of course Gene might catch a TV news report in which they’d mention that the court wasn’t due to reconvene until Thursday. But she was unlikely to make anything of it. And if she did, she’d phone and ask Andi if she was planning on coming home.
It would be nice to surprise her.
She decided, when she arrived at the airport in the early afternoon to go home while Gene was at work and have a hot dinner waiting for her in the oven, to be served on their best china on a lace tablecloth, complete with candlelight and wine. It was a long time since they had done anything romantic.