Without Fear or Favor

by Robert K. Tanenbaum

  It didn’t help when Karp wrapped up the People’s case with Clay Fulton. Providing a final overview from New York to San Francisco, the detective particularly seemed to enjoy talking about his ruse to get Johnson out of Moto Juku’s apartment.

  “We were worried about the two young women in case he tried to shoot it out if we kicked in the door,” he said. “So I got one of the San Francisco PD guys to get some forty-five-caliber dummy bullets used for training purposes. I then removed the four live cartridges and two empty shells from the chamber and bagged them for evidence.”

  “So how did you get the defendant to come out of the apartment?” Karp asked.

  “I pretended to be breaking into his car. And as planned, Mr. Sakamoto pointed this out, which caused the suspect Johnson to exit the building and confront me.”

  “Did you then identify yourself as a police officer?”

  “He sort of recognized me from a television newscast, but yes, I identified myself as a police officer and told him that he was under arrest.”

  “And did he come along peacefully?”

  “Well, no,” Fulton replied, playing his role to the hilt. “He pointed the gun at me and pulled the trigger.”

  “Did he know at that time that the gun was loaded with dummy bullets?”

  “No, I’m sure he thought it was loaded with the real thing.”

  “So he tried to shoot you?”

  “That’s about the size of it.”

  “No further questions.”

  Nash rose tiredly from her seat but stayed behind the defense table. She asked a few perfunctory questions to remind the jurors that it was Moto Juku who attempted to retrieve the gun from the pawnshop.

  “When Mr. Johnson approached you, as you were breaking into his car, did he believe that you were a criminal?”

  “I believe he did. At least until I identified myself.”

  “Did you show him a badge at that time?”

  “I didn’t really have the opportunity,” Fulton replied, “before he pointed the gun at my head and pulled the trigger.”

  “Because he thought you were a criminal. No further questions, Your Honor.”

  That brought the People’s case as well to an end.

  After admonishing the jurors not to discuss the case or view media coverage, Kershner released them until the next morning. When they’d left, she asked the lawyers if there was anything else that needed to be done.

  “Your Honor, the defense moves to have the case dismissed,” Nash said. “The People have failed to show enough evidence that taken in a light most favorable to the defendant, which is the law, would prove him guilty beyond a reasonable doubt.”

  “Denied,” Kershner said, shaking her head. “I’ll see you all in the morning, and Ms. Nash, be prepared to call your witnesses if you intend to present a defense.”

  Now morning had arrived, and Nash, who’d today chosen a powder blue pantsuit, called Dr. Cleve Schofield, her DNA expert, to the stand to repudiate the testimony of Dr. Offendahl.

  After being qualified as an expert witness, Schofield, the director of the GenTest Laboratory in Park Hill, Maryland, began by testifying about several national scandals involving DNA laboratories that had either falsified results or rendered unqualified opinions in criminal cases.

  “And did these major scandals literally result in the imprisonment of potentially thousands of innocent men and women?” Nash asked in seeming outrage.

  “Yes, they did,” answered Schofield, who looked somewhat like a nearsighted owl with his round face and eyes magnified by circular eyeglasses.

  “These were certainly times when technology was used to violate the due process rights of those thousands of individuals, am I correct?”

  “You are correct.”

  “And isn’t it true that on a seemingly daily basis we hear about some new case in which DNA was misused to frame an innocent person?”

  “I don’t know about frame, or daily basis, though I suppose it happens,” Schofield said. “But certainly it is an imperfect science, or, rather, the science is good but sometimes performed by imperfect scientists.”

  “Imperfect scientists or, perhaps, scientists who are given tainted evidence to work with?”

  “Yes, that’s a possibility, too.”

  Nash approached the witness stand with her head down as if in deep thought. She looked up. “Dr. Schofield, you just mentioned that there are limitations to DNA testing, or at least human variables. Would you say that so-called touch DNA is relatively new?”

  “The entire science is fairly new. DNA testing only started in the mid-eighties and became generally accepted in the late nineties. And our ability to develop accurate profiles for touch DNA has only come about in the past few years.”

  Turning to face the jurors, Nash asked, “What are some of the ways DNA evidence might be rendered inaccurate or falsified?”

  “Well, if improperly gathered, stored, and disseminated, it can be contaminated, either by other DNA—such as someone carelessly handling the sample—or by exposure to some other material or chemical. A DNA sample can also deteriorate on its own, such as over time or if exposed to sunlight. There are a number of ways a sample can be rendered inaccurate or falsified.”

  Nash moved over to stand in front of the prosecution table. “And would it be possible for someone to purposely contaminate an object—such as the shirt from Officer Tony Cippio that you were asked to test—with the defendant’s DNA?”

  “Yes, it would be possible if, say, someone transferred some DNA content taken from the defendant, even a few skin cells or drops of blood, and planted it on the shirt.”

  “When did you test the shirt?” Nash asked.

  “About a month ago,” Schofield said.

  “A month . . . so approximately seven months after Officer Cippio was shot?”

  “Yes, I believe that’s correct.”

  “Are you aware of the findings of the prosecution’s DNA expert, Dr. Offendahl?”

  “Yes, I’ve reviewed them.”

  “Is there anything about those findings that, perhaps, raised a red flag?”

  Schofield hemmed and hawed a little bit before clearing his throat and answering. “Well, if someone leaned over the victim in order to turn him over, I might have expected there to be more touch DNA than just skin cells.”

  “Such as?”

  “Such as skin cells over a wider area or maybe a drop of sweat. I understand it was a warm evening.”

  “Given these variables and . . . possibilities, is it possible that Dr. Offendahl’s conclusions were incorrect, even fraudulent?”

  Again, Schofield seemed uncomfortable with the question, but he answered anyway. “Yes, it’s possible.”

  “And this has happened in thousands of cases throughout the United States?”

  “Yes, that’s true.”

  Nash looked at the jury and raised an eyebrow. “No further questions.”

  Karp rose from his seat. “Good morning, Dr. Schofield. Let’s begin with these ‘thousands of cases’ in which DNA results were allegedly falsified or the scientist was not qualified to render conclusions.”

  “Okay,” Schofield said, and took a drink from a glass of water he poured for himself.

  “Is it true that in spite of the number of cases, the erroneous or false conclusions were caused by a couple of individuals, as opposed to thousands of DNA scientists rendering thousands of false or inaccurate results?”

  “That’s true. In one instance, it was someone who lied and claimed to have the credentials when she was hired, and in the other case, it was a misguided individual who believed that she was helping the police convict guilty defendants.”

  “Simply, these cases of inaccurate or falsified reports are singular instances caused by an individual, not a widespread condemnation of DNA profile testing or the laboratories that conduct this testing.”

  “That’s, uh, true.”

  “And is it also true that these ‘scan
dals’ cited by defense counsel resulted in more stringent guidelines both for law enforcement agencies that submit material for testing and the laboratories themselves?”

  “That’s very true. Laboratories have to be certified and are regularly subjected to inspection.”

  “And as the director of a laboratory that tests DNA profiles for criminal cases, would you say that it is common or uncommon for honest mistakes to be made?”

  “Uncommon.”

  “How uncommon?”

  “Very.”

  “And would you say that instances of some individual falsifying results is common or uncommon?”

  “Very uncommon. Especially with the amount of double checking that goes on now.”

  Karp picked up a sheet of paper from the prosecution desk. “Doctor, are you familiar with Dr. Offendahl’s work?”

  Schofield nodded emphatically. “Yes, of course.”

  “And what is his reputation in the field of DNA profiling, in particular touch DNA profiling?”

  “He’s one of the leading, if not the leading authority in the field,” Schofield said. “I guess you’d say he’s the godfather of touch DNA testing.”

  Karp glanced over at Nash, who was frowning. She didn’t look far enough, he thought, and now she’s going to pay. “Doctor, is your lab certified to render results for law enforcement agencies throughout the nation?”

  Schofield smiled. “Yes, I like to think we’re one of the best.”

  Handing him the sheet of paper, Karp asked, “Do you recognize this document?”

  Schofield studied it for a moment. “Yes, it’s, uh, our certification.”

  “And whose name is signed on the bottom of the document?”

  “It’s, um, signed by Dr. Offendahl.”

  “So he certified your laboratory?”

  “Yes.”

  “Are we to understand from your testimony that you are challenging the conclusions reached by the man who certified your laboratory?”

  Schofield grimaced. “I don’t know that ‘challenging’ is the right word. I would call it more of a slight professional difference of opinion.”

  “Slight? How slight?”

  “Well, I, uh, agree that the touch DNA found on the victim’s shirt was a match to the defendant,” Schofield said. “I guess we might differ on what I said was my surprise that if the incident occurred as it was described to me, there wasn’t more DNA material present from the defendant.”

  “A drop of sweat or more skin cells?”

  “Yes.”

  “So it’s not the conclusion but the sample size you question?”

  “Yes.”

  “But isn’t that precisely the same kind of issue as finding a partial fingerprint as opposed to a complete fingerprint?”

  “What do you mean?”

  “Well, a partial so-called latent fingerprint left at the scene still means the defendant touched the object. Correct?”

  “Yes.”

  “But because of various circumstances, such as weather or time, it goes from a full to a partial fingerprint. But that doesn’t mean the defendant didn’t touch the object. Correct?”

  “I see what you’re saying. Yes, you’re correct.”

  “So the sample size of the specimen is only relevant in respect to whether there’s enough to create a DNA profile?”

  “Yes, that would be true.”

  “Dr. Schofield, you agreed to a lot of ‘possible’ scenarios put forward by the defense,” Karp said. “What would you say is the probability that Dr. Offendahl’s conclusions are wrong?”

  Schofield looked at Nash, who was turning red. He shrugged. “Slim to none.”

  “Your Honor, I offer into evidence the certification of Dr. Schofield’s laboratory signed by Dr. Offendahl, authorizing Dr. Schofield’s laboratory to engage in these analyses.”

  “So received.”

  “No further questions.”

  Kershner looked at the defense table. “Ms. Nash?”

  “Nothing further, Your Honor.”

  “Very well. Call your next witness.”

  Nash stood back up. “We call Morton Feldinghaus.”

  When the defense witness, a fashionably dressed young white man with a shock of curly black hair and dark-framed hipster glasses, entered, Karp felt a wave of resentment pass through him. In a way, he held Feldinghaus, or more accurately the people he worked for as well as the complicit press, responsible for the deaths of Tony Cippio and even Ricky Watts.

  A “policy wonk,” Feldinghaus was a senior analyst at the U.S. Department of Justice. He frequently appeared on news programs and was quoted in newspapers propagating the narrative that unjustified police shootings of young black men were “epidemic,” a word he’d used just the Sunday before on one of the morning talk shows. He was a favorite of the Black Justice Now movement and progressives with a willing ear in the White House.

  However, Feldinghaus only went where his masters told him to go. The fact that he was appearing on behalf of Anthony Johnson was proof of how important the radical ideologues considered this trial. Not so much for any altruistic feelings for the defendant but for the propaganda opportunities of his arrest and trial.

  “Their agenda is why we’re here,” Karp had said to Katz that morning when they met in his office before heading to the courtroom. “That’s the money, that’s the political will, for the ambushes, the cold-blooded executions, and the biased, bought-and-paid-for media that either ignores the truth—that law enforcement is under siege, not the other way around—or makes it appear that the murder of police officers is unfortunate but somehow understandable.”

  He’s just a mouthpiece for the cowardly, disingenuous wizards behind the curtain, Karp thought as Feldinghaus, smarmy and self-assured, took his seat on the witness stand like he’d been invited onto a game show. He smiled at the jurors and then the gallery and finally at Nash, who blushed and smiled back.

  Feldinghaus was well prepared with his statistics and spiel; after all, he’d given this dog and pony show a hundred times in the past year. Nash hardly had to prompt him as he made his case that law enforcement was carrying on a war against young black men.

  “The statistics don’t lie,” Feldinghaus said, looking earnestly at the jury, especially the two young females and the black jurors. “Whites are sixty-two percent of the population and blacks make up just thirteen percent. And yet . . . and yet . . . twenty-six percent of the victims in fatal police shootings last year were black, and almost all black males. That’s twice as many as their total makeup of the population would account for . . . unless the police are racially motivated to kill black men.”

  Feldinghaus leaned forward as if the conversation was between just him and the jurors. “And did you know that more unarmed black men are killed by police than unarmed white men, who outnumber them fivefold . . . that’s five times more than can be explained by anything except institutionalized racism in the law enforcement community?”

  On and on he went, repeating himself for emphasis as he quoted from different studies and reports until at last he finished and shook his head. “Racism is a sad historical fact in our culture and perpetuated by our institutions, especially the police. It hurts me to say this as a member of the Justice Department, but the police are the front line for people who want to keep black males in line.”

  It took Nash a moment to realize that Feldinghaus had finished his speech as she leaned against the jury rail captivated. When she did, she blushed like she’d been caught peeping in bathroom windows.

  “Thank you for that, Mr. Feldinghaus,” she gushed. “One last question. Given that sort of institutionalized oppression, would it surprise you that three police officers have been indicted for murder and the attempted murder of black activists in New York? In fact, one of the officers has pleaded guilty and will be testifying against his fellow conspirators.”

  “No, it doesn’t surprise me at all,” Feldinghaus said. “These activists are a threat to the p
ower structure. There would be a perceived need to silence them by any means possible.”

  “Would it then surprise you,” Nash added, “that the defense in this case maintains that my client, Anthony Johnson, has been framed by the New York Police Department and the New York District Attorney’s Office in an effort to silence him?”

  Feldinghaus shook his head sadly. “I’m afraid that wouldn’t surprise me at all. In fact, the DOJ is seriously considering launching an investigation into the NYPD. It could expand from that to include other agencies.”

  “Thank you, Mr. Feldinghaus. No further questions.”

  “Mr. Karp?”

  “Thank you, Your Honor.” Carrying his ubiquitous yellow pad, Karp stood in front of the witness stand, looking down at Feldinghaus, who smirked up at him.

  “Mr. Feldinghaus, you began your testimony by telling the jurors that statistics don’t lie.” Karp’s voice was even but firm. “Is that correct?”

  “It is.”

  “But statistics can be manipulated and twisted, can’t they, Mr. Feldinghaus? And they can be taken out of context, isn’t that correct?”

  Feldinghaus scoffed. “I’m not quite sure what you mean. I’m sort of a math guy, and to me, numbers are numbers.”

  “Really? All right, let’s look at some of those numbers. I believe you noted that blacks make up thirteen percent of the population but are victims in twenty-six percent of fatal police shootings?”

  “That’s correct.”

  “And that the victims in fifty percent of fatal police shootings are white?”

  “Yes, compared to being sixty-two percent of the population.”

  “But isn’t it also true that there’s more criminal violence in minority communities than in white communities and therefore police are more likely to encounter a disproportionately higher number of armed and violent offenders in the minority community?”

  “That depends on the composition and behavioral disposition of members of the community.”