Without Fear or Favor

by Robert K. Tanenbaum

  “When might a few skin cells come into play?”

  “Well, believe it or not, we human beings are constantly shedding our skin, sort of like snakes only not in large, contiguous pieces. Indeed, the average human being sloughs off about a million skin cells every day. Although some of the genetic coding in those dead cells is damaged and worthless from a testing point of view, most carry the DNA profile of the individual. So when someone takes off an article of clothing, skin cells go with it, or if someone touches something, particularly something like clothing, they leave behind those skin cells.”

  “Is that what is meant by ‘touch DNA’?”

  “Yes, in a lay sense.”

  “Is testing for touch DNA accurate and a scientifically accepted technique?”

  “Absolutely. Of course, great care must be taken for the proper collection, retention, and forwarding of such material, but if all of that is done, it is very precise and accepted in courtrooms all over the world.”

  As he questioned the scientist, Karp looked from time to time at the faces of the jurors, noting their fascinated expressions. Modern jurors had been exposed to a lot of television crime shows, some better than others, and they expected these “CSI moments.” In this case, he was happy to be able to provide them.

  “Dr. Offendahl, have there been instances in the past in which individuals have either by accident, negligence, or deception rendered an inaccurate or misleading report on a particular DNA test they conducted?”

  Offendahl frowned and nodded. “Unfortunately, yes. Just like in any other sort of police work, some individuals may be careless or even purposefully misleading about a test result for one reason or another.”

  “Is this common?”

  Offendahl shook his head. “No, not at all. There are literally hundreds of thousands of DNA profiles conducted every year, and those are just the ones tested for law enforcement purposes. Obviously, millions have been completed since the science began to be used. And while there have been some high-profile instances of unqualified or even malicious individuals falsifying results, they are a tiny minority. They are quickly found out, and safeguards have been instituted, especially following these high-profile cases.”

  “Dr. Offendahl, you testified that you have conducted thousands of DNA profiles and testified under oath more than six hundred times regarding tests you’ve conducted,” Karp said. “Has there been a single instance in which your work was found to be incorrect, or where you were successfully challenged for being inaccurate?”

  “Not once,” Offendahl replied.

  Karp pointed to the exhibits Offendahl held in his hands. “Would you please describe for the jurors the reports I asked you to examine a few minutes ago?”

  “Of course. They are both reports regarding touch DNA profiles taken from the shirt of the deceased, Officer Tony Cippio. One profile was conducted by the New York Police Department crime laboratory, and the other I conducted myself at the Armed Services Laboratory.”

  “How would you describe the results of the reports?”

  “They are virtually identical, with some very minor discrepancies that can be attributed to the relative strength of the genetic sample,” Offendahl said.

  “And what might cause such a discrepancy?”

  Offendahl pursed his lips and shrugged slightly. “Oh, for instance if you had a smear of blood, there might be more blood on one end of the smear than the other, so the relative strength of the genetic sample might vary. In these two instances, the discrepancies are so small as to be inconsequential.”

  “So by comparison, the results are similar enough to fall within the scientifically acceptable range of certainty?”

  “Absolutely. Both laboratories examined the same genetic material.”

  “And was genetic material located on Tony Cippio’s shirt?”

  “Yes, as expected, there was material—blood, skin cells—matching the deceased’s DNA.”

  “Any other material?”

  Offendahl glanced at the reports and nodded. “Yes, that of five humans and one canine. Apparently Officer Cippio had a dog or at least petted one enough to have dog saliva and hair at several locations on the shirt.”

  Karp smiled and used the opportunity to remind the jurors of Vince Cippio’s remarks about his son’s penchant for picking up strays. “He did, indeed, named Wink . . . Were you able to identify the human DNA?”

  Again, Offendahl referred to the reports. “Yes, as you would expect, four of the human profiles belonged to people close to the deceased: his wife, his two children, and his partner, Officer Eddie Evans.”

  “And the fifth?” Karp asked, walking over toward the defense table.

  “The fifth was unknown,” Offendahl said. “However, I entered the DNA profile into the FBI’s DNA database, otherwise known as CODIS, for Combined DNA Index System, and I got a hit.”

  “A hit?”

  “A match,” Offendahl explained, “for a DNA sample for an individual who had lived in the San Francisco Bay Area of California.”

  Karp nodded. He had to tread carefully at this point because the rules of evidence prevented the prosecutor from referring to the defendant’s prior criminal history in front of the jury unless the defendant took the stand.

  “Do you know the identity of the individual who matched the DNA profile taken from Officer Tony Cippio’s shirt?”

  “I do.” Offendahl nodded toward the defense table. “The defendant, Anthony Johnson.”

  “And did the New York Police Department profile agree with your conclusion?”

  “Yes, as I said, they were for all intents and purposes identical. The NYPD profile was also a match for the defendant, Anthony Johnson.”

  Karp looked at Johnson, who rolled his eyes as if the entire testimony was boring him. “To what degree of scientific certainty is the touch DNA profile from both reports a match for the defendant?”

  “There is a one-in-one-billion chance that two people could have that same DNA profile. In other words, beyond any and all doubt, the DNA taken from the shirt is a match for Anthony Johnson.”

  Karp looked at Kershner. “Your Honor, I ask that Assistant District Attorney Kenny Katz be allowed to play a part in another demonstration for the court, as well as your permission for the witness to step down from the stand.”

  “Go ahead.”

  Nodding to his co-counsel, Karp waited for Katz to reach the well of the court before turning back to Offendahl, who was now in front of the witness stand. “Dr. Offendahl, on what part of Officer Cippio’s shirt was the DNA profile for the defendant located?”

  “The top right shoulder and back area.”

  Karp nodded at Katz, who turned around with his back toward the two other men. “If Officer Cippio was shot . . . BANG . . . and fell forward onto his stomach”—as Karp spoke, Katz lay down—“can you demonstrate where on Cippio’s shirt the defendant’s DNA would be located?”

  Offendahl stepped over Katz and reached down and across with his left hand, and grabbed Katz by his right shoulder. Without saying anything, Karp looked back at the jurors. Their eyes told him everything he needed to know. They had seen this before, when Tyrone Greene acted it out. He turned back to the scientist.

  “Thank you, Dr. Offendahl. You may return to the witness stand. No further questions.”

  Nash rose to her feet but remained behind the defense table. “I only have a few questions, Dr. Offendahl,” she said. “Of all those times you’ve testified under oath, how many times have you testified for law enforcement as opposed to how many times for the defense?”

  “I’ve never counted.”

  “What about a percentage?” Nash insisted. “What percentage of the time do you testify for the prosecution compared to the defense?”

  Offendahl shook his head. “Criminal case DNA testing is only a small part of what I do, but most requests for testing certainly come from the law enforcement side. But I don’t really consider myself testifying ‘for’ or ‘aga
inst’ either side. I’m a scientist; I conduct research, apply the scientific method, examine the data, and reach a conclusion. Whatever that conclusion is—whether it’s helpful to the prosecution or to the defense—I don’t skew it for one side or the other.”

  “Nevertheless, you work for the government.”

  “I work for the government in many capacities. As I explained to Her Honor when we were discussing my bona fides, most of my work is with the identification of human remains, including our missing war dead or mass casualty victims, such as with the attacks on the World Trade Center on nine/eleven.”

  “And when you do work on criminal cases, it is mostly at the request of law enforcement?”

  Offendahl sighed. “Yes, mostly.”

  Nash smiled. “No further questions.”

  “No redirect,” Karp said. He knew that Nash was saving her attacks on the DNA evidence for when she called her own expert witness. But Offendahl was rock solid, a scientist who approached his work objectively and who had without fear or favor tendered his conclusion, which had corroborated that of the NYPD lab. He thought back to his decision to ask Jaxon to get a second opinion; he’d known even then that there was a good chance the defense would try to argue it was all a frame and the police couldn’t be trusted. He wasn’t worried about Nash’s expert; he had a surprise waiting for her then, too.

  In the days that followed, more pieces snapped together seamlessly. Karp called Assistant Medical Examiner Gail Manning to testify about the horrendous damage done by two .45 caliber cop-killer bullets. And how the killer had fired the first from nearly point-blank range into the victim’s back and then stood over the dying man and fired down into his head.

  Then he called an NYPD ballistics expert, Don Spicer, who began by testifying that the two bullets used to kill Cippio were .45 caliber. However, he said that both bullets, actually fragments of bullets, were too damaged for him to declare with “scientific certainty” that they’d been fired from the revolver taken from the defendant in San Francisco. He was able to say only that they were “consistent” with bullets he’d test-fired from the revolver.

  Spicer also testified that the fragments were of the same make and type as four bullets given to him for testing by the District Attorney’s Office. Even more damaging was his testimony about chamber marks on the two empty cartridge cases also found in the gun.

  “Chamber marks are nearly microscopic striations, or scratches, on the outside of a cartridge when it is loaded or removed from the chamber,” Spicer said. “Roughness in a chamber—invisible to the naked eye—causes these striations. Most chamber marks occur after a cartridge has been fired because the case expands under pressure against the walls of the chamber. Then, when the cartridge is pulled out of the chamber, the sides are scratched.”

  Spicer explained that just as every barrel of a gun is slightly different, causing “land and groove marks” on a bullet as it passes through, the striations are unique as well. He’d examined the spent cartridges under a microscope and noted on blowup photographs the unique markings on each. He then test-fired six similar bullets from the revolver and examined each of the spent cartridges. Two of them left “identical” marks to the previous spent cartridges. It was damning evidence.

  Then, as his brother, Tyrone, had before him, Maurice Greene identified the defendant as the revolutionary he’d known as Nat X and testified that he’d picked him out of a photo lineup from his bed in Bellevue Hospital and then a standing lineup at the DAO. He talked about the meetings he’d attended with his childhood friends, DeShawn Lakes and Ricky Watts, in which Johnson talked about casting off the yoke of white oppression and forming a separate black nation by “taking up arms against the oppressor class and their servants, the police.”

  Then DeShawn Lakes took the stand and identified the defendant as Nat X and corroborated what Maurice had said about the meeting. But he added the scene outside the tenement building with his best friend, Ricky Watts, when Nat X let them hold the big silver gun—yes, one that looked just like the revolver in the evidence bag. “He said it was a ‘cop killer,’ loaded with bullets that would go through a Kevlar vest ‘like it was butter.’ ”

  DeShawn testified about the day he and Ricky met up with Big George Parker and the defendant Johnson, aka Nat X, who asked them if they were ready to “strike a blow for your people . . . be heroes of the revolution? Or are you going to be house niggers?”

  He’d been ready to go through with it, too, such was the romantic persuasiveness of Nat X. But then his father, Reverend Jonas Lakes, intercepted them and saved him from himself.

  Reverend Lakes took the stand as well. He, too, had gone down to the DAO after Johnson was extradited from California and picked him out of the lineup as the man he’d seen in the company of his son and Ricky Watts.

  “I should have stopped Ricky,” he cried on the stand. “I should have picked that boy up and made him get in the car.” But instead, he’d driven off in one direction while Watts was marched to his doom in another. “I will never forgive myself for that,” he said, then looked at Johnson and added, “And God might, but I won’t forgive you, either.”

  As each witness climbed onto the stand and added his piece, Nash was unable to stop the onslaught. Oh, she did her best to claim it was all part of the frame. Black teenagers frightened of the police, coached to say whatever the district attorney wanted. But each witness was placing a damning evidentiary tile in the mosaic that ultimately would depict the defendant guilty beyond all doubt.

  Meanwhile, Karp enjoyed watching the smug and defiant visage of the defendant gradually evaporate until he took on the look of a caged rat waiting for the footfalls of his executioner. But there was more.

  The testimony of Manning, Spicer, the teens, and Reverend Lakes had taken the rest of the day and part of the next. Then Karp called Judy Pardo, the cop-turned–drug addicted prostitute, seeking this one last shot at redemption. She was the one who could connect the murder of a police officer to the attempted murder of another. Karp had been looking forward to it.

  21

  JUDY PARDO CAST AN APPRAISING look at herself in the small mirror that hung from the back of the door to her tiny room at the East Village Women’s Shelter. She was dressed in an olive green sweater and a knee-length gray skirt—hand-me-downs given to her by the staff but in nice condition and certainly better than the rags she’d been wearing when she arrived eight months earlier.

  Girl, you’ve put on a few pounds, she thought. Then again, you were too skinny—guess that’s what a heroin habit and eating out of Dumpsters will do for you.

  However, it wasn’t the clothes she wore, the weight gain, or even the haircut Marlene Ciampi had treated her to for her day in court that jumped out from the mirror. It was her soft chocolate eyes. Surrounded by lines from the hard life she’d lived, they were bright and clear. For so long whenever she’d bothered to glance in a mirror, they’d been clouded by drugs and the pain and humiliation common in a person whose self-respect was absent. It was good to recognize the person she once was staring back at her.

  She owed it to Marlene, who’d brought her to the shelter, and to the staff, who’d stuck by her, even when she’d relapsed. Some of them formerly drug addicts themselves, they understood like no one else could the insatiable craving that heroin created. They also knew that it wasn’t just the physical addiction she fought but also the underlying psychological issues that left her vulnerable to the drug’s siren call.

  Pardo took a deep breath and let it out slowly. She was afraid. Afraid of appearing as a witness at the murder trial of a man who seemed to have a lot of angry, violent supporters. And that didn’t take into account that a street person who lived among drug dealers, pimps, gang members, and all other manner of criminal sociopaths had to be careful about being seen as a “snitch.” Someone who was going to break the code of the streets and “rat” for the prosecution in one case couldn’t be trusted not to do it again to one of them. The sayi
ng “The only good rat is a dead rat” didn’t refer to the rodents who shared the streets and alleys with them.

  The threat had lessened somewhat when she heard that David Grale had put the word out that anyone who harmed her would have to answer to him. For all of their bravado and savagery, there weren’t many who wanted to cross the King of the Mole People. It didn’t mean that someone wouldn’t try, especially as she’d been warned that a “bounty” had been put on her head, presumably by Anthony Johnson’s supporters. But so far no one had tried to collect.

  However, it wasn’t the potential for violence that frightened her the most. She had been living on the streets so long that it was simply an accepted fact that her life could end at any moment, even if she never came forward as a witness. She’d been robbed at the point of guns and knives, raped and beaten unconscious, and that didn’t take into account the possibility of freezing to death, overdosing on drugs, or dying of starvation or disease.

  No, what she feared more than violence or the other dangers of life on the street was the humiliation she would have to endure when she took the stand. She’d be laid open for the jurors, the spectators, the media, and, through them, all the world to see. Her face, her life story, her fall from grace would appear on the front pages of newspapers and on the evening news.

  “Once a whore, always a whore.” That’s what the television reporter Pete Vansand had said to her a few days earlier when he ambushed her and Marlene in the elevator outside the district attorney’s office. She forced herself to watch Vansand’s report that night, listened to his sneering remarks about the “police officer–turned-prostitute.” Of course, he left out her retort that it took one to know one; he, after all, was in charge of the public perception and wasn’t going to be fair about it. She watched as a way to prepare herself for what she knew was coming, only it was going to be worse, much worse.

  Vansand wasn’t the only journalist who had attached himself like a leech to her sordid story. All the New York newspapers and television stations, even the national news, had picked up on it and apparently had no compunction that a lot of what they reported was inaccurate. They’d even located her family—her aging parents, her sister and brother—in New Jersey and harassed them for interviews, which they’d refused, and made them virtual prisoners in their homes. At least until the trial was over.