by Rick Acker
After spending five minutes on highlights from Weiss’s résumé, Nate said, “Dr. Weiss, did you review results of the DNA testing in this case?”
“Yes.”
“Does the sample taken from Brandon Ames match the sample from the crime scene?”
“No.”
“The state’s criminalist, Janet Harkin, sat in that same chair yesterday and said that they do match,” Nate said. “Why do you disagree?”
“Because that’s not what the test results showed—which Ms. Harkin basically admitted in her report.” He turned and spoke directly to the jurors, as if they were students. “She found that the two samples only matched across nine out of thirteen loci. If the samples don’t match across all thirteen loci, they don’t match. Period. She speculated about reasons why the alleles at the other four loci didn’t match. She came up with some plausible theories, but a plausible theory isn’t the same thing as a match.”
“Did she cite any evidence to support those theories?” Nate asked.
“No, she hypothesized that maybe the DNA under Mr. Thomas’s fingernails was contaminated by DNA from another person, but she didn’t mention any facts indicating that it actually happened. It’s possible, but there’s no way to tell whether it’s probable.”
“I asked her about a study titled ‘Subjectivity and Bias in Forensic DNA Mixture Interpretation.’ She hadn’t heard of it. Have you?”
Weiss nodded and spoke to the jurors. “Yes, it’s fairly well known. As I recall, the authors sent DNA samples from a real case to seventeen different labs and asked for a comparison. Only one lab found a match—and yet the defendant in the case was convicted because the DNA examiner found a match beyond a reasonable doubt.”
“Did you find the study to be credible?”
“Sadly, yes,” Weiss said. “The findings were consistent with what I’ve seen both in DNA analysis and in science more generally. When scientists know there’s a quote-unquote right answer, that tends to be the one they give—even if the data doesn’t really support it.”
“Do you have an opinion as to whether that occurred in this case?”
“Yes, I think it did,” Weiss said. “I believe that the same thing happened here that happened in the study: the DNA examiner knew that the police had arrested a suspect and had other evidence implicating him, so the examiner was biased in favor of finding a match despite the fact that the DNA samples did not actually match.”
“You mentioned ‘other evidence implicating the suspect.’ What other evidence implicated Brandon Ames?”
“Yes. His profile in the Cal-DNA database matched the profile from the crime-scene DNA. And it matched perfectly—thirteen for thirteen. Ms. Harkin knew that when she compared the crime-scene profile to the profile developed from the sample taken from Brandon after he was arrested. She also would have known that the murder weapon had been found near Brandon’s apartment. I believe that she quite naturally expected the post-arrest sample taken from Brandon to match the crime-scene sample. When it didn’t . . . Well, my opinion is that she fudged her analysis. She found a match where there really wasn’t one.”
“I see,” Nate said. “If that database profile had been altered to match the profile of the crime-scene DNA, would that have affected her conclusions?”
“I believe it would have, yes.”
“If someone had access to the CODIS and Cal-DNA databases and ran one hundred random DNA profiles through them, would they find any nine-locus matches to those hundred profiles?” Nate asked.
“Almost certainly.”
“How many?”
“It’s impossible to tell without actually performing that experiment and running a hundred profiles through the databases, but my rough estimate is that you’d find at least ten nine-locus matches.”
Nate turned to the judge. “No further questions.”
“Any cross-examination?” the judge asked Brown.
“Yes, Your Honor.” The assistant DA stepped to the lectern as Nate sat down.
“Dr. Weiss, speaking of potential sources of bias, are you being paid to testify here today?”
“Yes.”
“How much?”
“A hundred dollars an hour, which is about one-tenth of my usual speaking or consulting fee.”
“Are you giving a special rate because Mr. Daniels has represented your company in the past?”
Weiss chuckled and shook his head. “He never gives us a discount, so I wouldn’t give him one.” Two jurors smiled at that, and Elrond made a noise that was halfway between a snort and a laugh. “No, the reason is that once I saw the DNA evidence, it was clear to me that Brandon Ames was innocent. I wanted to testify, but Mr. Daniels wasn’t sure he’d be able to convince the court to hire me, so he might have to pay me out of his own pocket. I wanted to make sure I’d be affordable.”
“Dr. Weiss, are you familiar with the FBI’s statistical analyses of the probabilities of random matches between DNA profiles?” Brown asked, wisely deciding to switch topics.
“Yes.”
“And would you agree that those analyses are typically relied on by experts in the field of forensic DNA analysis?”
“No, at least not the ones who understand statistics.”
Brown looked surprised. “Why is that?”
Nate suppressed a smile. Asking an open-ended question on cross-examination was almost always a mistake—especially if you didn’t know the answer. And it was even worse if your opponent had laid a trap for you, which Nate had.
And Weiss promptly made Brown pay for his error. “There are two main reasons. First, the FBI refuses to allow independent experts to test its analyses, making it impossible to determine whether they’re accurate. Second, there have been incidents indicating that those statistics are wrong. For example, a DNA examiner in Arizona found over a dozen random nine-locus matches in Arizona’s database, which contained under a hundred thousand profiles. The CODIS and Cal-DNA databases contain over fifteen million. They probably contain thousands of random nine-locus matches like the partial match between Brandon’s DNA and the crime-scene DNA—though we can’t know, of course, because the FBI won’t let us check.”
Brown stood silent for a moment, wearing a deer-in-the-headlights look. Nate had expected him to walk into the statistical issue at some point during his cross-examination, but he hadn’t expected it to go quite that well.
“Well, would you, ah, agree that the chances of a random nine-locus match are still pretty low?” Brown asked.
“Yes, though I don’t think this was a random match.”
Brown did the smart thing and didn’t follow up with another open-ended question, asking why Weiss didn’t think it was a random match. Instead, he asked, “Would you agree that the odds against a random nine-locus match are over a billion to one?”
“Very likely—though again, it’s impossible to test.”
Nate winced inside. Weiss was in professorial mode now and wasn’t paying attention to what his answers might do to the case.
Brown looked relieved. “Are the odds over ten billion to one?”
Weiss shrugged. “Possibly. Once again, it’s impossible to know because the FBI won’t allow independent access to their database.”
“No further questions,” Brown said and sat down.
“Any redirect, Mr. Daniels?” the judge asked.
Nate rose and moved to the lectern, trying to think of a way to contain the damage. “Very briefly, Your Honor. Dr. Weiss, you were just discussing the chances of two DNA profiles randomly matching across nine loci. Does that tell us anything about whether Brandon’s DNA profile matches the profile of the DNA from the crime scene?”
“No.”
“And what are the odds that Brandon’s profile matches the crime-scene profile?”
“Zero. They don’t match.”
“Thank you. No further questions.”
CHAPTER 89
Jessica ate dinner at Nate’s kitchen table, as she had for
most of the past two weeks. After court ended for the day, they would come back to his apartment, talk over the day’s events, and plan for the next day. She usually had a to-do list by the time they were done—documents to copy for use as exhibits, an article on DNA evidence Nate remembered reading, and so on. He would then retreat to his home office while she got started on her projects. Around seven o’clock, she’d get dinner for them.
She now knew by heart the takeout menus of the Indian restaurant two buildings to the north and the Chinese place a block and a half to the west. She was heartily sick of both.
For a change of pace, she had gone grocery shopping tonight and made a Cobb salad with the minimalist equipment in Nate’s kitchen. He had looked up briefly when she came in with the bag of ingredients and mumbled his thanks before looking back down at the stack of documents in front of him.
Nate sat across from her while they ate, though he wasn’t really there. After giving her a perfunctory compliment on the food, he hadn’t once acknowledged her presence. He ate mechanically and kept his eyes on his MacBook, which sat next to his plate. He occasionally muttered to himself or typed for a few seconds.
Jessica looked at Nate, sitting there with his mind elsewhere. His handsome face was pale and drawn, and little fatigue lines creased his brow and the corners of his eyes and mouth. But his eyes were bright with energy. He was burning himself out, she realized. And he was doing it for her and Brandon.
Nate stirred and said, “By the way, the Department of Justice still hasn’t decided whether to accept our offer, so we’ll need to have a backup plan for the Lan Long part of our case. I’ve managed to persuade Jade to testify.”
“Jade’s going to testify personally? How did you get her to do that?”
“I agreed that I would owe her a favor,” Nate said, not quite looking her in the eye. “It would be problematic for me to compensate her for testifying, so we didn’t get more specific than that I wouldn’t do anything illegal or unethical.”
“I see,” Jessica said, wondering what to make of Nate’s news.
“I suspect she’s doing something that will result in her needing a lawyer, and she wants that lawyer to be me,” he elaborated. “But that’s just a guess.”
“That’s fine,” she said quickly, reflexively crossing her arms as she spoke. “What happens between you and Jade is none of my business, of course.”
As soon as the words were out of her mouth, she knew that wasn’t quite the right thing to say or the right way to say it. She hadn’t meant to sound disapproving or cold. It was just that talking about him and Jade made her uncomfortable and a little nervous.
“Good.” Nate jerked his head in a short, quick nod. “Great. She’ll be coming over tomorrow evening for a prep session. I didn’t want you to be surprised. Speaking of which, I should go work on an outline for her testimony.” He closed his laptop and stood. “Thank you for a delicious dinner, Jessica.”
“You’re very welcome,” she said. She knew she should say more. But before she could find the words, he was gone—vanished back into his home office, the door closing behind him.
A moment later, the strains of classical music came from behind the door. He played it to help himself focus. This time, it was something stormy. It sounded like Beethoven, though she didn’t know his music well enough to be sure.
She slowly stood and cleaned up the dishes. Her stomach felt like she had just eaten a meal of cold gravel.
CHAPTER 90
Courtrooms made Kevin nervous. They were places where people with black robes or uniforms and guns enforced rules that made little sense to Kevin—and which he knew he had broken on more than one occasion. He had read stories about people who were in court for one thing getting arrested for something completely different—so whenever he set foot in a court building, he always had a fear in the back of his mind that someone would tap on his shoulder and inform him that he was under arrest for something. Even after he won his cases against his professor and Fortuna—which collectively brought him approximately $19,453,622 net of legal fees—he still thought of courts as vaguely threatening places.
But here he was, sitting in the gallery of Judge Oswald Whittaker’s courtroom. Uncle Javon was in back by the door, watching everyone who came in. Just in case.
Kevin was in the courtroom because the database expert was testifying today. Kevin had originally wanted to do the testifying himself, but Nate had explained that the other lawyer would ask a lot of uninformed and misleading questions, and whoever was testifying would have to answer them patiently—and that could go on for hours. Kevin agreed that he might not be the best person to do that.
But Kevin did want to see the witness testify. He was a guy named Harold Stichtman, and he would be relying on Kevin’s work for his testimony. Kevin was sure he would mess it up.
Stichtman claimed to be a computer-security consultant, and Kevin grudgingly admitted that he had an impressive résumé. And when they had met at Nate’s apartment last night, Stichtman had seemed to know what he was talking about. They had gone over Kevin’s work thoroughly. Then Kevin had shown him how to hack into the CODIS and Cal-DNA databases. After that, he showed Stichtman the metadata proving that Brandon’s profile had been altered. Stichtman asked intelligent questions and seemed to understand Kevin’s answers. Still, he was a corporate guy, and Kevin had yet to meet a corporate guy who really understood hacking.
Stichtman took the witness stand as soon as court came into session. Nate went first, asking a series of questions about how the CODIS and Cal-DNA databases were structured, what happened in the OPM hack, how spear phishing worked, and so on. It was all painfully basic stuff to Kevin, and he probably would have gotten bored or impatient if he were testifying, but Stichtman kept his composure and acted like he was happy to answer all of Nate’s questions.
Nate then moved on to questions about the alteration of Brandon’s profile and Lan Long’s connection to the Chinese military unit behind the OPM hack. Stichtman’s answers were generally accurate, but he omitted a lot of key details. At first, this bothered Kevin. Stichtman had seemed to understand everything yesterday, so why was he leaving parts out now? Had he forgotten it all in the last thirteen and a half hours? Then Kevin realized that the parts Stichtman was leaving out were the parts that would make it possible to identify Kevin. The hairs on the back of his neck prickled, and he wished he had decided to stay home today.
After two hours and ten minutes, Nate finished his questioning, and the enemy lawyer took his place. To Kevin’s surprise, he didn’t bother addressing the obvious—to Kevin, at least—technical gaps in Stichtman’s testimony. Instead, he only seemed interested in irrelevant stuff. Kevin’s attention began to wander.
“Mr. Stichtman, did you personally access the Cal-DNA database to view Mr. Ames’s DNA profile?”
“No.”
“Why not?”
“That wasn’t necessary. I observed the database access and spoke with the person who performed it.”
“Who was that person?”
Suddenly Kevin paid very close attention. “I was never given the person’s name.”
Kevin had noticed that Nate hadn’t introduced him and Stichtman last night or engaged in the useless small talk that typically accompanied such meetings. At the time, Kevin had thought Nate and Stichtman were being refreshingly efficient. Now he realized that they had been protecting him.
“What did the person look like?”
Nate stood. “Objection, this individual’s appearance is completely irrelevant to whether Brandon’s DNA profile was altered.”
“Sustained,” the judge said.
“Your Honor, it would appear that criminal hacking has taken place,” the enemy lawyer said. “I request permission to conduct at least a brief inquiry while we have a witness on the stand. We can do so outside the presence of the jury.”
“Your Honor, if Mr. Brown wants to conduct an investigation into something he thinks a witness may hav
e done, that may be his prerogative,” Nate said. “But it is not his prerogative to do so in the middle of my case.”
The judge nodded. “I agree. Move on, Counsel.”
The enemy attorney said, “Is it possible that the database access that you witnessed was faked?”
“I have no reason to believe it was,” Stichtman said.
“That’s not what I asked. Is it possible that it was faked?”
“I don’t know,” Stichtman said with a shrug. “Maybe.”
“No further questions.”
CHAPTER 91
Cole heard Billy’s familiar knock at the door. “Come on in,” he said, swiveling away from his monitor. “So, what’s the news from the Ames trial?” he asked as Billy entered.
“I just finished reading—well, skimming—the rough transcript for today,” Billy said as he flopped down into one of Cole’s guest chairs. “It sounds like the Alameda DA’s Office would like to arrest Kevin Fang for hacking into the Cal-DNA database—if they can figure out who he is. Maybe we should tell them. That guy should be in jail.”
“You’re not the only one who thinks that,” Cole said. “There’s still a debate going on at Main Justice about whether to make a deal or indict him. And every time Nate Daniels dangles some tidbit that Fang found, the debate starts all over again.”
“He hasn’t found anything since that Los Reyes–Lan Long connection, has he?” Billy asked.
Cole shook his head. “We’re getting off topic. Al Francini is going to want a full report on what happened in court today. Anything else?”
“Not today, but Jade Li is testifying tomorrow,” Billy said. “Daniels told the judge and the prosecution after they let the jury go for the day.”