“An aquamarine Mercedes.”
“Just like the victim described. No further questions.”
Sarah Jensen sat. Andi stood up to salvage as much as she could on redirect.
“Just a couple of questions to clear up some things. Mr Claymore your car was stolen on the third of June?”
“That’s correct.”
“And at that time, Bethel Newton wasn’t even in the State of California.”
“So I understand.”
Alex sat down smiling. Claymore looked at him tensely, then at Andi.
“Re-cross?”
Sarah Jensen stood up again.
“When did you report your car stolen, Mr Claymore?”
“I…” he trailed off. “I told the cops about it when I was arrested in connection with this case. I intended to report it before that but–”
“I’m not interested in what you intended Mr Claymore, only what you did. No further questions.”
The judge looked over at the clock above the main entrance.
“In view of the hour, I think we’ll adjourn for lunch. The court will reconvene at two-thirty.”
“All rise!”
Everyone stood. The judge left through the door beside her bench. Alex and Andi started gathering up their papers as Claymore walked up to them from the witness stand, a member of the sheriff’s department standing nearby just in case he got any funny ideas. He was looking at Andi, and the look was gentle, almost embarrassed.
“I just want to thank both of you for what you’ve done for me.”
He was looking, not at Alex Sedaka, but at Andi. She nodded, embarrassed.
“I have to go,” she said uncomfortably. “I’ll meet you back here at two-thirty.”
Wednesday, 26 August 2009 – 14:45
“So Mr. Johnson,” said Alex, “you amplified the sample in the thermal cycler?”
“Yes,” said the nervous eighteen-year-old boy on the witness stand. He was thin, but not tall and could easily have been two or three years younger than his age.
Alex had called Elias Claymore first in accordance with the general rule that the defendant should be called first, if he was to testify at all. Some jurisdictions required it, in order that the defendant should be in the same position as other witnesses subject to the rule of the court – i.e. not able to hear testimony already given by witnesses for the same side. But even if it had not been required, Alex realized that Andi was right about the jury having to hear from Claymore to make them more sympathetic to his cause. She had done a creditable job, despite Claynore’s early slip-up and Sarah Jensen skillful cross-examination.
But now Alex was planning to unleash both barrels and expose a vulnerability that he thought he had discovered in the People’s case.
He had obtained the judge’s permission to treat Steven Johnson as a hostile witness. This did not mean that he could bully or badger the witness – indeed it would have been counter-productive to do so – only that he could ask the witness leading questions directly. Thus many of his questions sounded like statements.
“Does Dr Alvarez keep a close eye on you when you work?”
“What do you mean?” asked Johnson nervously.
“Well you’re only eighteen. And you’re not a scientist, just a lab technician. Doesn’t he have to keep a close eye on you to make sure you don’t make mistakes?”
“Not at all. As a matter of fact he lets me work unsupervised.”
“Isn’t that a bit risky? I mean wouldn’t it lead to a certain amount of jealousy and conflict and interfere with good working practices?”
“Why should it lead to jealousy?” asked Johnson, sounding confused.
“Well if he lets you work unsupervised, while he keeps such a close eye on the others–”
“He doesn’t keep a close eye on the others.”
“Oh you mean all the lab assistants work unsupervised.”
Johnson suddenly realized that he had said too much,
“No. I mean... not all the time.”
“Oh I see, you mean some days he says ‘today I’m going let you all work unsupervised’ and other days he says ‘today I’m going keep a close eye on you.’ Is that right?”
“No, it’s not like that?”
“Then what is it like?”
“It depends on... the circumstances.”
“You mean on the workload?”
“Yes.”
“So when the lab’s not busy he keeps a close eye on you?”
“Yes.”
“And when it’s busy he doesn’t.”
“Yes – I mean no!” He had already realized that he had gone too far, and he knew that there was no way of covering his tracks completely. But with every answer he gave, he seemed to be digging himself in deeper. “I mean he always keeps an eye on us, but not as close as when it’s less busy.”
“But not on you.”
“I don’t understand.”
“He doesn’t keep a close eye on you at all. Is that right?”
“No. He keeps a close eye on me too.”
“But you said he lets you work unsupervised.”
“Yes, but not completely unsupervised.”
“What do you mean not completely unsupervised? Isn’t that like being a little bit pregnant?”
“I mean, he doesn’t stand looking over my shoulder but he he’d notice if I make a mis–”
“Yes Mr. Johnson?”
“If I made a mistake.”
Alex asked his next question, quietly but firmly.
“And did you make a mistake?”
“No.”
But he was squirming when he said it. The mere fact that the lawyer asked the question, and looked at him with those piercing eyes, was enough to make him squirm. He could have been innocent and had nothing to hide, but those piercing eyes would still have made him squirm.
“Were you busy that day?”
Johnson looked over at Sarah Jensen. Alex half turned and looked back and forth between the two, emphasizing Johnson’s helplessness and rubbing the jury’s collective nose in the fact that Johnson was seeking help from the prosecutor.
“The witness will answer the question,” the judge said firmly.
“We were fairly busy.”
The word “fairly” was a desperate attempt to straddle the fence – and Alex knew it. He could see right through Johnson’s attempts to stick to the safe middle ground. With “fairly busy” the witness knew that he could go either way, depending on the thrust of the next question.
“So busy that Dr Alvarez had to let you work unsupervised?
Johnson could evade no longer.
“I guess.”
“Why were you busy?”
“I don’t understand.”
He was genuinely confused, and thought he had made another blunder.
“It’s a simple enough question. Why were you busy?”
“Because... I guess... because we had a lot of work to do.”
“And not enough people to do it.”
“I guess.”
“In other words, the reason you were busy is because there wasn’t a big enough staff to handle the work load?
“Yes,” replied Johnson.
“And so, if you had a lot of work to do at the lab and not enough people to do it, you would have been under pressure to get a lot of work done in a short amount of time.”
“Yes,” Johnson admitted, his voice now weak.
Sarah Jensen rose to her feet.
“Your Honor, perhaps Defense Council is being vague and repetitious.”
“Mr Sedaka?”
“I was establishing foundation, Your Honor.”
“Well let’s say that you’ve established it. Perhaps you can now cut to the chase.”
Sarah Jensen sat.
“Mr Johnson, let me ask me this: under the circumstances that you described, did you forget to do things you were supposed to do?”
“Like what?”
“Like being
careful to avoid mishandling the sample.”
“Objection Your Honor. Lacking in specificity.”
“Rephrase Mr Sedaka.”
Alex looked down at the worksheets before him.
“Before you amplified the evidence sample, what did you do?”
“I… don’t remember. I mean I’d have to check my worksheet.”
“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!”
Wednesday, 26 August 2009 – 14:50
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!’”
Wednesday, 26 August 2009 – 14:55
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.”
Wednesday, 26 August 2009 – 15:00
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.
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