by Rick Acker
Nate’s cross-examination of each witness was always the same. He asked only two questions: Did the witness know of any evidence indicating that Brandon had a motive to kill Linc Thomas? And did the witness know of any evidence indicating that Brandon and Linc had any contact prior to the murder? After eliciting a pair of nos, Nate would sit down.
The end result was that the non-DNA portion of the prosecution’s case took almost twice as long as they had anticipated and left the jurors yawning and looking confused. Nate also caught several jurors rolling their eyes or otherwise expressing exasperation at the prosecution. The judge and Brown blamed Nate, of course, and accused him of being “unhelpful” and “uncooperative.” But that happened outside the presence of the jury, so it didn’t bother Nate much. His job wasn’t to be helpful or cooperative; it was to get a not-guilty verdict.
Reaching a deal with the FBI and DOJ would go a long way toward getting that not-guilty verdict, of course. Unfortunately, they were still dragging their feet, despite daily calls from Nate. Al Francini hinted that Kevin’s revelations had set off a round of bureaucratic infighting in DC, which had effectively paralyzed their decision-making process. He sounded frustrated, but there was only so much he could do to push the process forward. And there was only so much Nate could do to slow things down to give Al time to wrest a decision from his chain of command.
The prosecution finally got to their DNA expert, Janet Harkin, on the afternoon of the third and final day of their case. At first, she stuck to the same script she had used during the preliminary investigation. She began by going over her résumé in cursory fashion. Then she gave an explanation of DNA that could have been lifted verbatim from a high-school biology class. After that, she described the process by which her lab tested DNA, including Brandon’s.
And then Brown made his first move to counter Nate’s theory of the case. “Ms. Harkin, in determining whether two DNA profiles match, does your lab rely on DNA profiles obtained from the CODIS or Cal-DNA databases?” he asked.
“No,” she said. “We obtain an independent DNA sample from the accused individual and compare that to the DNA found at the crime scene.”
“I see. If someone were to hack into those databases and change a suspect’s profile so that it matched DNA found at a crime scene, would that have any impact on the results of your DNA analysis?”
She shook her head firmly. “No, not at all.”
“And why is that?”
“Because the database profiles are only used to get an arrest warrant,” Harkin said. “Once the police arrest someone, they get a DNA sample. We test that DNA sample and create a profile from it. Then we compare that profile—not the one from the database—to the profile from the crime-scene DNA.”
“You already testified that you created a profile from a DNA sample taken from Mr. Ames after his arrest. Did you compare that profile to the profile you created from the crime-scene DNA?”
“Yes.”
“And what did you find?”
“That the two samples matched.”
“Now, when you say they matched, do you mean they were exactly and precisely the same?”
“No, I mean they were very similar—so similar that it’s extremely likely that they came from the same person. DNA profiles aren’t always exactly and precisely the same, even when we know for certain that they came from the same person.”
“Why is that?”
“There can be several reasons. For example, the testing doesn’t identify alleles with absolute precision. They’ll be very, very close in two samples from the same individual, but it’s not unusual for two samples to show one or two alleles in slightly different positions. It’s like taking two photographs of the same person on the same day. The two pictures will often be a little different, but it’s still obvious that it’s the same person. Another possible reason for two samples not to match is that one of the samples was degraded or contaminated by DNA from another source. There are other possibilities as well, but those are the most likely ones in this case.”
“Thank you. So, when you say that Mr. Ames’s profile matched the profile from the crime-scene DNA, how close were they?”
“The alleles at nine out of thirteen loci matched perfectly. Two of the others were very close—the sort of small difference that you sometimes see from sample to sample—and the alleles at two loci didn’t match.”
“Do you know why the alleles at those last two loci didn’t match?”
“I don’t,” she conceded. “As I said, there are several possible reasons. I think contamination from another person’s DNA is most likely. If Mr. Thomas accidentally scratched someone earlier in the day, some of that person’s DNA could still have been under his nails.”
“You mean like if he and someone else both went for the last donut at a work meeting and the other person was a little faster?” Brown asked, drawing a chuckle from one of the jurors.
“Exactly—anything that would result in his nails moving across another person’s skin,” Harkin said.
“What are the odds that, just by coincidence, two DNA samples would match perfectly across nine out of thirteen loci?”
“The odds of a random match in that scenario are approximately one in one hundred thirteen billion, according to the FBI’s statistical analyses.”
“Are those analyses typically relied on by criminalists in determining the odds of a random match?”
“Yes, we always rely on them.”
“Thank you. No further questions.”
“Any cross-examination?” Judge Whittaker asked Nate.
Nate stood up, thinking rapidly. Brown had done an excellent job with Harkin. She had been succinct and clear, and the jury seemed to like her. Brown had also raised several of the points Nate intended to make on cross-examination and successfully neutralized them. For example, it wouldn’t be particularly effective for him to now ask a series of pointed questions demonstrating that in fact Brandon’s DNA didn’t match the crime-scene DNA across all thirteen loci—and was completely different at two. Likewise for the questions he had planned on the hacking of the CODIS and Cal-DNA databases. So what could he do?
He looked at the clock. It was half past four. “Yes, Your Honor. Could we have a brief recess while I organize my notes?”
The judge’s thin lips twisted into a frown. “You know we break at five o’clock, Counsel.”
“Yes, Your Honor. However, this is an important witness, and she is testifying on a very technical topic. If the court would prefer that we break now and begin her cross-exam tomorrow, that would be fine.”
The judge shook his head. “No, Counsel. If you have questions for this witness, ask them now. As I understand it, she’ll be in another courtroom tomorrow morning.”
That was Nate’s understanding as well—and now it was the jurors’ too. Having communicated to them that he was being forced into a rushed and truncated cross-examination, he was ready to go.
He sighed. “Very well, I’ll make the most of the limited time I’ll have with Ms. Harkin.” He turned to her and smiled. “Hello, Ms. Harkin.”
She smiled back cautiously. “Hello.”
“You speculated that Linc Thomas might have gotten someone else’s DNA under his fingernails by, for example, reaching for a donut at the same time, correct?”
“Yes.”
“Have you ever scratched someone badly enough to get blood under your fingernails while reaching for a pastry?”
“No.”
“Other than the allegedly mixed DNA under Mr. Thomas’s nails, are you aware of any evidence that on October twenty-five, he scratched someone badly enough to draw blood?”
“No.”
Switching gears, he asked, “How long have you worked at the Alameda County Criminalistics Lab?”
“Eight years.”
“And how many times have you testified in court?”
“About thirty.”
“How many of those were for the Alameda DA’s
Office?”
“Most of them. I’ve testified for the San Francisco DA and Santa Clara DA a couple of times.”
“Would you say you’re on good terms with the attorneys in the Alameda DA’s Office?”
“I suppose so,” she said. “They’re good lawyers and I respect their work.”
“Would it be fair to say that you like them and wouldn’t want to let them down?”
“Yes, I guess so. But that doesn’t mean I would give dishonest testimony.”
“No, of course not. You just wouldn’t want to let them down, as you said. Are you familiar with a study conducted a few years ago in which seventeen different DNA examiners received two DNA samples and were asked whether they matched? Twelve said no, four said the results were inconclusive, and only one said yes. The two samples came from an actual case, and the DNA examiner who testified in that case found they matched. Do you recall that study?”
“No.”
“It was called ‘Subjectivity and Bias in Forensic DNA Mixture Interpretation,’ and it dealt with contaminated DNA just like—”
“Objection,” said Brown, getting to his feet. “She said that she wasn’t familiar with the study, so it’s inappropriate to cross-examine her on it.”
The judge nodded. “Sustained.”
Nate had made his point, so there was no reason to press the issue. “No further questions.”
“Nothing further,” Brown said.
The judge nodded and turned to Harkin. “You may step down.”
As she was leaving the witness box, the judge looked at Brown. “Do you have any further witnesses?”
“No, Your Honor. The prosecution rests.”
CHAPTER 86
“Aaaaagh! Stupid! Stupid! Stupid!” Kevin yelled. “I can’t believe this!”
A second later, a middle-aged man wearing body armor appeared in the doorway to Kevin’s room, an AR-15 at the ready. His eyes quickly surveyed the area and he lowered his gun. “Is everything okay?” he asked.
“No,” Kevin said, jabbing an angry finger at one of his monitors. “They blocked the port I’d been using. They must’ve realized I’d hacked them again. I don’t know how they caught me, but they did. Now I’m going to have to start all over.” He pulled up the activity log of the program he had been running to see whether he could figure out when his access had been cut off.
“Oh. Is this a computer thing?”
Kevin nodded without turning around.
“Try not to yell like that unless you’re being attacked—physically attacked. Okay?”
“Yes, Uncle Javon,” Kevin said. He appreciated having his father’s old Special Forces buddies around to provide security, but they were awfully jumpy.
Kevin barely heard the sound of the door closing behind him. His mind was already moving back into cyberspace. It was annoying to have his access to Col. Lee’s Google Home device cut off. And as he investigated, he discovered that every single Web-connected device owned by a known Lan Long affiliate had also recently either had effective security software added or been taken offline completely. He wasn’t quite sure how they had spotted his intrusion, but they clearly had.
That wasn’t a shock. He had been playing a cat-and-mouse game of hack and counterhack with Lan Long ever since the attack on his house. They had managed to get into one of his email accounts, but he had generally kept the upper hand. Still, they were good—surprisingly so. That bothered him for reasons that went beyond personal pride, though he couldn’t quite put his finger on why.
Not too long ago, he thought he saw the whole pattern. He understood what Lan Long had done to Brandon Ames, how they had done it, and why. Now he wasn’t so sure.
He was missing something. Something important.
CHAPTER 87
Nate closed his eyes and leaned back in his chair. It had been a very long day, and it came after more than two weeks of very long days. He was physically and mentally exhausted, and all he wanted to do was crawl into bed and sleep until noon.
But that wasn’t possible, of course. He had to be in court at half past eight tomorrow, and he had a lot to do before then. Including making a call that he had hoped not to make.
Al Francini still hadn’t gotten him an answer. Nate couldn’t wait any longer. He was putting on his case starting tomorrow morning. He had run out of time. And he had only one option left.
Well, no use putting off the inevitable. He pulled out his phone and dialed.
Jade picked up after the second ring. “Hello, Nate. I’m surprised to hear from you.”
“Good evening, Jade. Is this a convenient time to talk?”
“Yes. I’m free this evening. Is that what you wanted to talk about?”
He suspected that she was trying to knock him off balance, but his face went hot nonetheless. “No, I thought I made clear some time ago that I had . . . been wrong to do what I did with you.”
“Yes, which is why I was surprised that you called. I can’t imagine what else we have to talk about.”
“I think you can,” he said. “I need your help with the Ames case. I need someone with firsthand knowledge of Lan Long to testify about them.”
“I spoke to Jessica about that. The answer is no. I’m not putting another young woman’s life at risk.”
“Would you be willing to testify?”
She laughed.
“I can subpoena you, but I’d prefer that you testify voluntarily.”
She stopped laughing. “If you subpoena me, you won’t like my testimony,” she said, an edge in her voice.
“I know. That’s why I’d prefer that you give it voluntarily. It would be the smart thing to do.”
“I’m sure it would be smart for you,” she said drily.
“And you.”
“Really? Why is that?”
He rubbed his eyes. “Let’s not play games, Jade. You haven’t been helping us out of the goodness of your heart. Someone is paying you—someone who knows about the history between you and me and thinks it will give you influence over me.”
She said nothing.
“That someone wants to take down Lan Long—or at least permanently destroy their US operation,” he continued. “And they think tying Lan Long to Linc Thomas’s murder could make that happen. They may well be right. If you help me win this case, the police will keep looking for Linc Thomas’s murderer. That will lead them to Lan Long.”
“It hasn’t so far,” she retorted. “They have known about Lan Long for years and done nothing.”
“I am working to change that,” he said. “The first step will be winning this trial.”
“Why?” she asked, sounding genuinely curious. “Why are you still trying to win this case, even after they tried to kill you? It can’t be the money.”
“Actually, I’m handling this case for free. Jessica is an old friend and the widow of my best friend. I’ve known Brandon since he was born. They’re good people, Jade. They need your help.”
“Never help anyone for free, even good people.”
“You’re already being paid. You basically admitted that.”
“No one is paying me to testify. That is an added risk, and I’m not being compensated for it.”
He sighed. “I can’t pay you to testify, Jade. That would be illegal.”
She was silent for a moment. “Maybe not, but you can owe me a favor.”
CHAPTER 88
The first day of the defense’s case was uneventful. Brown had agreed that the phone-company records regarding the location of Brandon’s phone on October 25 could be admitted into evidence without a witness testifying to their accuracy. Thus, they were simply handed to the jury with a brief and neutral written statement explaining what they were and how to read them.
Nate’s first witness was Monica Lee, Brandon’s former girlfriend. Her testimony went exactly as Nate expected: She testified unequivocally that Brandon was in her apartment between ten and midnight on the night of October 25. She also said that she didn�
�t see any scratches on Brandon after that. She was credible and friendly, and she made a good impression on the jury. The prosecution’s cross-examination was limited to pointing out that she used to date Brandon and still cared about him, so she wasn’t a neutral witness. Brown also brought up her conviction for using a fake ID. He tried to rattle Monica by aggressively questioning her honesty, but that seemed to annoy a couple of jurors. During a break, Nate thought he heard Elrond Strange muttering something about cops picking on nice girls.
Nate then put on two of Monica’s roommates, both of whom testified that they saw Nate at the apartment at various points between ten and midnight. Again, the cross was cursory—pointing out that the witnesses liked Brandon and that they hadn’t been with him continuously during the time when the murder could have been committed.
At the end of the day, Nate felt confident that he had scored points—but not enough to overcome the deficit he faced. This case was going to come down to which DNA expert the jury believed, and both sides knew it.
Nate was glad he had decided not to use Sofia’s usual expert, Hy Byrd. Hy was competent, but simply being competent wasn’t going to win this case. Nate had called in a few favors and managed to persuade the chief geneticist at a former client to testify. His name was Henry Weiss, and he had a doctorate from Duke and three patents to his name, including one for a new and more detailed test that could be used in forensic DNA analysis. More importantly, he was an adjunct professor at Stanford and had received several awards for his teaching.
Nate started the day with Weiss, figuring that it was best to put him on the stand while the jurors were fresh and alert. He also didn’t put on any background information about what DNA was, how it was tested, and so on. The prosecution had done a decent job of that through Janet Harkin, and Nate wanted to get to the key parts of Weiss’s testimony before the jurors’ eyes had a chance to start glazing.