by Lee Goodman
I feel the chill. Sitting there in the courtroom imagining all this, knowing how it ends, I ache to steer it differently.
Gregory doesn’t keep the witness long. He just wanted to lay the foundation. But on cross-examination, Monica Brill has other ideas. “Remind us how many years ago the events you described took place,” she says.
“About eight years ago,” the detective says.
“And why is it just coming to trial now?”
“Objection.”
“Sustained.”
Monica keeps working on this, and by the time the detective leaves the witness box, he has told us he believed for years that it was Daryl Devaney who killed Kyle Runion, not Henry Tatlock, whom he’d never heard of until a month ago.
Gregory’s second witness is Kyle’s mother. She gives a wrenching testimony. Many in the courtroom, including jurors, are unable to hold back tears. When Gregory finishes with the witness, Monica stands up and says, “Mrs. Runion, I’m so very sorry for your loss. I have no questions, Your Honor.” She dabs her eyes with a tissue and sits down.
Gregory calls John Farquar, the DNA expert from the state crime lab. He’s the one who headed up analysis of the samples once they were retrieved from the FBI. Explaining DNA to laypeople can be tricky, but this guy is good. First Gregory runs him through his credentials: PhD in molecular genetics, fellow of the American College of Medical Genetics, diplomate in forensic biology, author of fifty-seven peer-reviewed articles in genetics and forensic science. Et cetera. Farquar’s credentials are bulletproof. Now Gregory leads him through the most basic explanation of genetic analysis. From my perspective as a trial lawyer, watching these two in direct examination is like watching an Olympic couples figure-skating team. Gregory feeds him just the right question at just the right time for Farquar to respond with a lucid explanation that uses enough jargon to give the jurors the thrill of feeling on the inside without ever going over their heads.
MR. NATIONS: So what I hear you saying, Doctor, is that we can ignore the entire molecular structure of the DNA except for these “base pairs,” as you call them.
DR. FARQUAR: Correct.
MR. NATIONS: And there are four bases that make up these base pairs, represented by the letters C, G, T, and A?
DR. FARQUAR: Right. It helps me to think about Morse code. With only two symbols, dot and dash, the early telegraph operators could transmit twenty-six letters and ten numerals, and from there they could spell out all the works of literature ever created. Now consider that in the human genome, there are four symbols instead of two. And there are three billion base pairs. That is how we can have the staggering diversity in humanity. You know, Mr. Nations, people often ask me whether the scientific structure of DNA supports a creationist or an evolutionary view of life. And I always answer, “Both.” It is equally miraculous whether you believe it originates with the good Lord Himself, or through endless millennia of trial and error.
Gregory asks about the DNA recovered from the Runion remains. Dr. Farquar says they were good samples, and the degradation due to weather and exposure was minimal. Gregory asks about the probability that the DNA of someone not responsible for the semen and hair at the crime scene would match the sample.
“I think you’re asking about what we call the RMP, or the random match probability,” Farquar says. “This is the probability that a person selected at random, and whose racial heritage matches the perpetrator, will have the same DNA profile. In this instance, the RMP is about one in one hundred and fifty billion.”
MR. NATIONS: Okay, Doctor, so after you’ve isolated a subject’s DNA from the evidence and performed the “electrophoresis,” as you’ve called it, how then do you find out whose DNA it is?
DR. FARQUAR: Well, we have a database of—
“Objection,” Monica says. She isn’t loud or emphatic. She doesn’t bother getting to her feet. Her objection was anticipated.
Judge Ballard has the jury removed, and then he says, “I’ll meet with counsel in my chambers.”
“All rise,” the clerk says.
“Wait,” Henry says. It is the first sound I’ve heard from him since his outburst at the arraignment, and his voice has startling authority.
“Mr. Tatlock?” the judge says.
“I want to be present for the conference in chambers,” he says.
Monica is clearly surprised, but I can see she’s ready to make sure he gets his way.
The judge hesitates. The request is unusual, and superior court judges aren’t in the habit of inviting murdering pedophiles into the inner sanctum of their jurisprudential brain vault. It will require chaining Henry again and leading him like livestock into the judge’s private office, which, with its dark wood and profusion of bookshelves and elegant carpet, resembles the library of an English lord (I’m guessing) more than a prisoner’s holding cell. Still, it could be argued that Henry has a right to be present while Gregory and Monica argue over how much the jury gets to hear about why Henry Tatlock’s DNA profile happens to be in a database of convicted violent offenders. “Mr. Tatlock,” the judge says, “it’s just a chambers conference, off the record. It would be out of the ordinary for—”
Henry interrupts: “Isn’t the persecution of an assistant U.S. attorney itself out of the ordinary?”
“I think the word you’re after, Mr. Tatlock,” the judge says, “is ‘prosecution.’ ”
“You use your word, I’ll use mine,” Henry answers. His voice is sharp and angry, which probably isn’t the best way to speak to the guy who has such power over your life or death. This infuriates me, and I think, How dare he? How dare he feel entitled to his petulance? If I hated him a moment ago, now I hate him a hundredfold. Until now I held on to the idea that the Henry whom Lydia was in love with, the one who was my colleague, friend, and perhaps protégé, was a Jekyll and Hyde—that there was a man of integrity tragically shackled to a monster he couldn’t control. I could have had compassion for that Henry. I wouldn’t want him free in society, I wouldn’t want him to escape the consequences of his crimes, but the idea of him would have been easier for me to live with into the future. If there were, in fact, a good Henry, then he could join Lydia and Kyle Runion and (to a lesser extent) Tina, Barn, Lizzy, and me as a victim of that monster who shared his body. I could grieve for him and someday forgive myself for being so blind to the enemy in our midst. But now he has shown us that there are not two Henrys. There is only one: Henry the murderer. And like all the other sociopaths and psychopaths, he dares to feel indignant. He dares to flip this case on its head and imply it is we who do an injustice to him by removing his rotten, stinking existence from our midst.
In the lines of Monica’s face, I can see that she is furious with him. She would probably walk away right now if she could.
Judge Ballard stares at Henry a few moments, deliberating, I assume, whether to vent his own outrage at this smug prick of a defendant. He doesn’t. “Well, vocabulary aside, Mr. Tatlock, I’ll honor your request. We’ll stand in recess while the bailiff clears the courtroom. We’ll have our conference right here.”
It is a judicious decision. Spectators and court personnel are shooed out, leaving only the judge, lawyers, and bailiffs.
Henry points at me and says, “What about him?”
It is the first time our eyes have met since I hurried Tina and Barn away from him moments before the FBI took him down as he pulled the two canoes up onto the sand. I don’t know what he sees in my face right now, whether I’m as transparent as he, but the look I get from him is one of sheer, unadulterated abhorrence.
CHAPTER 42
It is a windowless courtroom with five rows of benches for the spectators. The jury box, witness box, and judge’s bench are all made of maple, the carpet is tan, and the lighting is subdued and recessed. I can hear the sound system crackle.
“We’re off the record,” the judge says, “so please spare me any speeches. Here’s the issue: I’ve already ruled that Mr. Tatlock’s juveni
le record, which has been expunged according to law, is not admissible at trial. So we need to resolve how the prosecution should make reference to Henry Tatlock’s DNA being present in the database of violent offenders. My own preference is that we make no reference to a database at all. The prosecution witness merely testifies that the crime scene DNA matches Mr. Tatlock’s DNA. Period. Paragraph. Does that work for you, Mr. Nations?”
“No, Judge,” Gregory says. “It waters down the authority of the science and undermines the very conclusions of Dr. Farquar’s findings, and therefore it egregiously—”
“Counselor,” the judge interrupts, “did you hear me a moment ago when I said no speeches?”
“Yes, Judge, it’s just that—”
“It’s just that you’re still trying to get the defendant’s expunged juvenile conviction before this jury, and I’m telling you, counselor, that ship has sailed. Now, Ms. Brill, what do you have to say?”
Monica stands up. “I have—”
“Sit down,” the judge says, “we’re just chatting here.”
Monica sits. “Sure, fine,” she says. “I have no objection to your proposal, except for one thing.”
“And that would be?”
“I’m moving to have any reference to my client’s DNA, and thus the identification of him as a suspect in this case, excluded from trial as violative of the Fourth Amendment to the U.S. constitution and—”
“Oh, Christ,” Gregory says.
“And your grounds, Ms. Brill?” the judge asks.
“Under the law, once Henry’s juvenile record was expunged, his DNA should have been removed from the CODIS database of violent offenders. This provision was implied by law and expressly stated in his plea agreement on that conviction.”
Gregory is on his feet: “Your Honor, that’s—”
“Sit down, Mr. Nations.”
Gregory sits but rants about the ridiculousness of the motion. He is enraged. I sit there trying to mentally pick out the flaws in Monica’s argument. I can’t find one. If Monica is right—if, under the law, Henry’s DNA profile shouldn’t even be in that database, then the state’s whole case against Henry is faulty. He would go free, in which case I’m sure he’d move away where nobody knows him, becoming more cunning and insidious as he perpetrates a hideous career of murder and abasement against the children of whatever country and continent he chooses.
I’m on my feet. “It’s bullshit!” I yell.
Monica, Gregory, and Henry all swivel in their seats. I hear the gavel smack the bench, and I see the judge’s pinched smile. “Mr. Davis,” he says placidly, “maybe you missed it when I told everyone to stay seated. So sit down and shut up. Okay?”
I sit. I’m breathing hard, and I feel how red my face is—with fury, not embarrassment. I collect myself a moment, then I say, “I’m sorry, Your Honor.”
“No, don’t speak. Nod for yes. Shake for no. Can you keep your ass in the chair and your piehole shut?”
I nod.
“Excellent,” he says. “Now, let me tell you all what’s going to happen here. First I’m going to call the clerk and court reporter back in, and Ms. Brill is going to put her motion to suppress DNA evidence on the record. Then Mr. Nations is going to oppose the motion on the record. Then I’m going to deny the motion, and this trial will resume. Mr. Nations and his witnesses will say that the defendant’s DNA was found at the crime scene, blah blah blah, Henry Tatlock’s juvenile offense will not be referred to, and the jury will draw their own conclusions. Understood?”
We all nod, except for Henry, who shows no sign of having heard any of it.
Trial resumes. Farquar returns to the witness box.
MR. NATIONS: Tell me how closely the DNA sample taken directly from the defendant matched the DNA recovered from among the victim’s remains.
DR. FARQUAR: It matched perfectly.
MR. NATIONS: So you’re saying there is a probability of approximately one hundred fifty billion to one that it is this defendant’s DNA.
DR. FARQUAR: Correct.
Gregory finishes with Farquar. Monica stands. “Just to be clear, Dr. Farquar, how did you obtain these DNA samples you tested?”
“They were given to me by—”
“They were given to you?”
“Yes, by—”
“So you didn’t recover them yourself?”
“No, the way this works is—”
“That’s okay, Doctor, no need to go into all that. But tell me, to the best of your understanding, the hairs and semen stains that you have linked to Mr. Tatlock, these were collected from items recovered at Kyle Runion’s burial site. Is that right?”
DR. FARQUAR: Yes.
MS. BRILL: And is it scientifically possible, Doctor, that the semen you attribute to Henry Tatlock could have been found someplace else and, I don’t know, maybe rehydrated or something and introduced into the evidence you tested?
DR. FARQUAR: Well, that’s kind of far-fetched.
MS. BRILL: I’m sorry, Doctor, I thought you were a scientist.
DR. FARQUAR: I am a scientist.
MS. BRILL: Then please give me an answer based in science and not your opinion of whether someone wants my client to appear guilty of something he didn’t do.
Farquar and Monica glower at each other. He isn’t used to being slapped down like that. He looks to Gregory for help but doesn’t get any.
DR. FARQUAR: Well . . .
MS. BRILL: It’s a simple question, Doctor. Could the sheet and underclothes you tested have been contaminated, intentionally or not, with Henry Tatlock’s DNA after they were removed from the crime scene?
DR. FARQUAR: Yes. It’s possible.
MS. BRILL: Is it also possible that semen stains from, let’s say, Mr. Tatlock’s own underclothes or bedsheets could have been rehydrated and introduced as the source of DNA found among Kyle Runion’s remains?
DR. FARQUAR: Yes, technically, I suppose.
MS. BRILL: Correct me if I’m wrong: You were given evidence to test for DNA, but whether that DNA has anything to do with the crime is not your bailiwick. You rely on others for that. Correct?
DR. FARQUAR: But standard procedure—
MS. BRILL: Standard procedure, Doctor, involves actions you never see undertaken by people you never meet. Is that correct?
DR. FARQUAR: Well, technically, but—
MS. BRILL: That’s fine, Doctor. We all understand you tested Mr. Tatlock’s DNA and found it to be Mr. Tatlock’s DNA. I have nothing further.
Monica has something in mind. There are only a few ways to defend against DNA evidence. Either you argue that the laboratory made an error (usually a losing strategy) or that the defendant, despite astronomical odds against it, happens to have the same DNA profile as the perpetrator (always a losing strategy), or you make a case that someplace in the process, the evidence was somehow contaminated with DNA from an innocent party. Monica is obviously basing her defense on this third scenario.
CHAPTER 43
Morning. Gregory Nations plans to call several witnesses to establish chain of custody for the evidence. This is what Monica was harassing the poor scientist about yesterday. From the overgrown field where Arthur Cunningham found Kyle’s body, crime scene techs collected the evidence, transported it to the evidence room at headquarters, and logged it in. According to protocol, there should be a record of every time it was moved or handled.
This isn’t usually an issue at trial, but since it looks like Monica is planning to attack the chain of custody, Gregory wants to call a witness or two who can head her off. They’ll testify that, according to records, the evidence spent about five and a half years in the state evidence room without being disturbed. It was then transported by agents to the FBI for their wide-ranging investigation into abductions with MOs similar to the one in Kyle Runion’s case. The Bureau’s intended investigation was never pursued, and the evidence languished another couple of years. After Judge Matsuko granted Tina’s petition for production of e
vidence in the Daryl Devaney case, it was retrieved from the Bureau by detectives and submitted for analysis at the state crime lab. Every step has been documented.
I don’t go to court for this chain-of-custody stuff. Instead, I go to another meeting about the Subsurface probe over at the Bureau. I get there just as the meeting is starting. Isler seems to be running things today. “We still haven’t figured out where that five million went,” he says.
“What five million?” I ask.
My question makes them all uncomfortable. Nobody wants to point out that I’ve been AWOL for the past week or two. I found updates from Isler and Upton on my desk when I got back from San Francisco, but I haven’t read them yet.
Upton steps into the silence. “When you were gone, boss, Special Agent Isler updated us on the forensic accounting of both Subsurface’s books and Bud Billman’s personal finances. Between the two, there’s about five point two million unaccounted for.”
“Lots of money,” I say. “Are there any hints where it might be?”
“I was getting to that,” Isler says. “From the raw numbers, just looking at the books, no, nothing points anywhere. So I thought we should kick it around. Come up with some theories.”
“Great idea. Let’s have theories,” I say in a stupid attempt to sound on the ball. Because not only have I been out of town and not reading my messages, but even at this moment I’m way more focused on Henry’s trial than on Subsurface. I’m trying to appear present while the cogs and gears labor to bring me back.