“So if both Mr. Potter and Mr. Townsend were classified as type B-negative blood donors, all that means is that they each had only type B antigens on the surface of their red blood cells, and that neither had the so-called D antigen present, so they were negative as to the Rh factor?”
“That’s correct.”
It was a polished routine, like Abbott and Costello. Townsend was disclosed as a witness for the defense before the trial, as required in discovery. It was clear Coop and Nelson had been over this ground in preparation. There was no wasted effort.
“Now this A-B-O system, is it the only method for typing and classifying blood?”
“No. It’s the most common system of classification used by hospitals for purposes of transfusions and other medical procedures. But in answer to your question, there are more than a hundred other different blood factors that have been shown to exist. In theory at least, no two individuals, except for identical twins, can be expected to have the same combination of all blood factors.”
Cheetam’s face sagged with this thought. He had spent too much time trying PI cases and too little chasing deadbeat fathers on paternity raps to be familiar with the nuances of identification by blood.
“Doctor, can you describe and explain some of these other blood factors, as you call them?”
“Well, besides the A, B, and D antigens, there are other antigens in the blood that serve as markers or can be used to identify a specific individual, or at least exclude other individuals from consideration. These can be detected, though it’s difficult when you’re dealing with dried blood.”
“Such as the blood in the service elevator?”
“Right. In this case the easiest factors to isolate are enzymes-these are markers, proteins on the red blood cells that regulate many of the body’s chemical reactions.”
Apparently in this case, given the slap-dash nature of Cheetam’s defense, Coop didn’t think it was necessary to go to the expense and trouble of exotic screenings. DNA tests were on the cutting edge, but required sophisticated labs and expensive equipment. The blood would have had to go to a private lab.
“Were you able to isolate blood enzymes in this case?”
“Yes. In the case of the dried blood taken from the service elevator we were able to isolate an enzyme known as PGM. The PGM enzyme is not the same in every person and comes in three common variations. We call these PGM-1, PGM-2-1, and PGM-2. The dried bloodstain from the service elevator in this case was PGM-2, actually somewhat rare. About six percent of the population carry this variation of the enzyme.”
“Now tell us, doctor, were you able to isolate the PGM enzyme in the blood taken from Mr. Townsend?”
“Yes, it was PGM-1.”
“Then it did not match the blood found in the elevator?”
“No.”
“Can you tell us, doctor, whether the PGM enzyme found in the blood of the victim, Benjamin G. Potter, matched the blood from the service elevator?”
“Yes, it did.”
“Therefore, is it safe to say that the blood in the elevator belonged to the victim, Benjamin Potter?”
“I can’t say that with certainty, but I can say one thing with assurance. It did not belong to Reginald Townsend. The enzyme test excludes Mr. Townsend as a possible source of this blood. I can also say that since the PGM-2 enzyme is carried by only six percent of the population, and that since type B-negative blood is similarly rare, only twelve percent, there is a very high probability that this blood belonged to the victim.”
“No further questions, Your Honor.”
Now, instead of being merely mortally wounded, Cheetam’d had his ass blown clean out of the water, in full view of the court-the entire world. He had to do something to save face. He leaned over and looked at me, a frigid, vacant expression in his eyes-it was the first time I had seen it in him. It was the look of fear. He was so shaken that it took a second for the brain to engage the mouth.
“Can you take him on cross?” he said.
I sat there stunned, caught between the devil and the deep blue see—Cheetam who was fear-struck, and Talia who sat there staring at me expectantly, as if at this late hour I could save her from Nelson’s rolling juggernaut.
My hesitation caused him to bolt. Before I could lean over and say anything to him, Cheetam addressed the court.
“Your Honor, if the court pleases, cross-examination of Doctor Cooper will be handled by my associate, Mr. Madriani.” He pushed himself back from the table and refused to make eye contact with me, looking instead off in the general direction of the empty jury box.
I could feel fire out to the tips of my ears. If the place had been empty, I could easily have killed. Here I was, about to earn an ulcer in a battle over the insignificant, some blood in an elevator that was now central to our case only because Cheetam had failed to defend on a plausible theory. He had pursued the case as a suicide with the dogma of a chief inquisitor, but with none of the success.
I rose, my thoughts a shambles. In a mental buzz, I approached the witness box, my mind racing for some loose thread, something to take hold of. I scanned the few notes I had taken from Coop’s direct testimony. I was stalling for time.
Coop sat there looking at me, the familiar Southern smirk on his face. I knew that inside he was laughing at how I’d been sandbagged by Cheetam. He was having a good time, now that this was at my expense. I would never hear the end of this, I was sure.
“Doctor, these tests-these so-called enzyme tests”-I was waving my arms, flapping my note pad in the air for effect, as if I was referring to a bag of witch doctor’s bones. “Are these tests absolutely reliable? Have you ever known them to report a false result?”
“People can make mistakes in administering them, but the tests themselves are reliable.” The asinine smile returned to Coop’s face.
“Is it possible that a mistake might have been made in this case?”
He looked at me, a bit of soulful Southern charm, then shook his head slightly. “No.” Like “Try the next door, Charlie.” He knew I was dabbling in the dark. He was almost laughing. It might have been funny but for the stakes.
“Did you perform these tests yourself?”
“I did.”
I was chasing rainbows.
“Now doctor, you say in your testimony that there was a high probability that the blood in the elevator was that of Mr. Potter?”
“No, I said there was a very high probability that the blood in the elevator belonged to the victim.”
He was playing all the buzz words. I referred to Ben as “Mr. Potter”–a little sleight of hand to decriminalize Talia’s situation. He came right back–”the victim.”
“Excuse me, doctor, a very high probability. Now does that mean that there is a possibility that this blood could also belong to someone else?”
“There is that possibility, though it is remote.”
For a long moment there was a still silence in the court, punctuated only by a hacking cougher in the audience. I considered whether to ask the question–the one set up by Coop’s answer. I rechecked my notes, the quick calculation I had made while Nelson was getting the answers he wanted. It was a risk, but it was weighed against void on the other side, for I had no other line of inquiry.
“Just how remote is the possibility that this blood sample in the elevator could belong to someone else?”
Coop reached into the inside pocket of his coat and pulled out a small hand-held calculator. He looked at his notes, then punched a few buttons and looked up. “Fewer than eight people in one thousand will carry the combination of these two markers in their blood.”
To statisticians such odds may be remote. To a trial lawyer in trouble, these numbers opened all the avenues of opportunity I was likely to get.
I turned for a moment and looked out over the railing at the bar. Two hundred sets of eyes riveted on me. A couple of artists were in the jury box doing my profile. For an instant there was the sensation, a little stage
fright, the familiar flutter of fear as it rippled through my body, tinged by excitement. I turned back to Cooper to suppress it and reassembled my thoughts.
“That means that in an area such as this, with”—I made a face in estimation—“a million and a half people in the greater metropolitan area, there are what, almost twelve thousand people living in this area alone who could have dropped that blood in the elevator. Is that right?”
“Your figure,” said Coop.
“Is it right, doctor?”
“Objection, Your Honor. The doctor’s not a mathematician.” Nelson remained in his chair, but leaned toward the bench a little.
“Your Honor, it was Doctor Cooper who pulled the calculator from his pocket.”
Cooper smiled broadly and started to hand me the calculator. I stepped back, avoiding the thing like it was some truth machine.
“Sustained. The numbers will speak for themselves.”
Given what I had to start with, I’d done better than I had any right to expect, though my argument was more likely to confuse a jury than this judge. It ignored the facts that Townsend, Cheetam’s prime candidate for the blood, was not among the twelve thousand souls I’d fingered, and that Ben was.
It worked once so I trotted it out again, this dead horse that fed on numbers.
“Doctor. Do you have any idea how many people work in the building where Mr. Potter had his office?”
“No.”
“Would it surprise you if I told you there are nearly four thousand people who work in that building? That doesn’t count salesmen, vendors, repair people who come and go, deliverymen?”
I was dealing totally in the dark, testifying and pulling numbers from the air. I had no idea how many people work in the Emerald Tower.
Coop shook his head. “It wouldn’t surprise me,” he said.
“Then assuming a random distribution in the general population of these two so-called blood markers–the B-negative blood type and the enzyme factor–and using your figure of eight in one thousand, that means that of the four thousand people in that building at or around the time that Mr. Potter died, there were as many as thirty other people besides Ben Potter who worked there who might fit the blood characteristics or factors of the drop found in that elevator. Is that correct?”
My question ignored the obvious, that trendy secretaries in spiked heels and executives in thousand-dollar suits don’t generally travel in service elevators. Cheetam had left me no choice but to go boldly where no man had gone before–I was on a five-minute mission to evidentiary la-la land.
Coop made a face of concession.
“Am I right?”
“I haven’t made a precise statistical calculation.”
Thank God for little favors, I think.
Nelson was twitching in his chair, but so far had refrained from any objection.
“That might be close,” said Coop.
I had what I wanted, a tiny slice of shadow in the prosecutor’s bright light, some ray of doubt.
I could tell from his face that Coop now wished he’d done DNA. I considered pushing it just a little further. But I looked at him sitting there in the witness box, waiting, like an alligator submerged at the bank except for the eyes. Two blips on the surface. I’d taken it as far as I could. I thought better than to offer myself as a meal in a losing cause. Save it for the trial, I thought.
“That’s all for this witness.”
As I returned to the counsel table Cheetam was all over me. Cheap kudos and handshakes. Talia was more reserved, with a warm smile and eyes that knew the truth. Quibbling over blood in an elevator was not going to avoid an order binding her over for trial.
Now she is shaking. Time is drawing short and she senses mat a new horror is about to envelop her.
The bailiff saunters out of chambers with furtive looks behind him. He’s running interference for O’Shaunasy. She’s a dozen steps behind him with a sheaf of papers in her hand, Talia’s fate. She mounts the bench.
“Come to order. Remain seated, municipal court of Capitol County, department 17, is now in session, the Honorable Gail O’Shaunasy presiding.” The bailiff takes his place off to the side of the courtroom.
O’Shaunasy clears her throat and shuffles the papers until she has them in proper order. She looks directly at Talia before she speaks, men off to some broad undefined horizon beyond the bench.
“I have listened to all of the testimony presented here,” she says, “examined all physical and documentary evidence. I have considered it all very carefully before rendering this decision.
“The standard of evidence confronting this court is not that of guilt beyond a reasonable doubt, and no judgment of this court can determine guilt or innocence.
“The standard of proof here is that of probable cause. It is merely for this court to determine whether there is sufficient evidence to establish a reasonable belief that a crime has been committed and whether that evidence points to this defendant as the perpetrator.”
This is fodder for the tube, a vain effort to keep the story in perspective, to avoid the unavoidable, the mantle of guilt being laid on the accused before trial. A legion of jurors will later be asked if they’ve heard about this case, if they know anything about the defendant. Too many will say that they read or saw somewhere that Talia Potter was the woman who killed her husband. By tonight the nuances of evidence and standards of proof, the notion that Talia is entitled to a clear and unfettered presumption of innocence, will die on the lips of this judge, lost in an onslaught of headlines and thirty-second spots.
Now O’Shaunasy reserves her gaze for Talia.
“It is the judgment of this court that mere is ample evidence, albeit circumstantial, that probable cause exists to believe that Benjamin G. Potter died as a result of some criminal agency and that the defendant had ample opportunity and motive to commit that crime.
“On the charge of violation of penal code section 1murder in the first degree, mere is sufficient evidence to believe that the charged offense has been committed and that the defendant Talia Pearson Potter committed said offense.
“Further, I find that special circumstances exist as charged by the district attorney with regard to the commission of this crime and that she shall therefore be bound over for trial in the superior court on a charge of murder in the first degree with special circumstances.
“The filing of a formal criminal information is ordered within fifteen days. Arraignment is ordered at that time. The defendant is ordered into the custody of the sheriff, pending a hearing on modification of bail.”
It appears that Talia is no longer considered a minimal flight risk.
Cheetam is on his feet. “Your Honor, we can conceive of no possible reason why bail should be increased in this case. The defendant has appeared at every hearing, cooperated in every way with these proceedings.”
“That’s true,” O’Shaunasy concedes. “But your client is now bound over for trial on a capital charge of murder. The question of bail is one for the superior court. My order will stand. This court stands adjourned.”
Talia looks over at me, two tears cutting a furrow down each cheek.
“We’ll get you out.” Cheetam’s making promises as the matron moves in behind Talia to escort her to the steel door that leads to the holding cells below.
I lean over and speak into her ear. “I’ll see you first thing in the morning,” I say.
“Yes, first thing,” she says in a daze. I don’t think she’s heard me. I can’t tell if she comprehends any of this.
She is taken by one arm, assisted at the elbow from behind, and led from the courtroom. My last view is of her descending the steps to the lower bowels of the building, to the cold holding cells and the van that will transport her to the night of noises and horror that is the Capitol County Jail.
CHAPTER
20
AND so we meet in the lockup the next morning, through glass-encased tiny wire mesh, talking on a telephone, reading
each other’s minds. We are alone now, Talia and I, that is, if you believe the official policy of the sheriff’s department, which says they don’t tap in on lawyers and their clients.
Cheetam is now history, off to Houston or Dallas or some other damn place. His commitment to spring Talia from a cold cell was forgotten before he skipped down the courthouse steps. It died like every other hot flash of enthusiasm the man had, the victim of a more pressing agenda.
“I have a bail hearing set for this afternoon. I’ll try to hold the bail at $200,000,” I tell her.
She nods. “What if they won’t go along?”
“Then I’ll keep it as low as I can.”
“I can’t raise much more on the house,” she says.
“That house is worth at least a million and a half,” I tell her.
“But we owe on it. Our equity isn’t much.” She uses the plural pronoun as if Ben is waiting in the wings to pick up the pieces of her broken life. “There is the first mortgage, and Ben took a second out on it last year.”
“Did he need the money?”
“Things weren’t going too well at the firm,” she says.
This is the first I’m hearing of this.
“Ben was busy politicking for most of last year. His draw from the firm was way down. We needed some of the money to live on. The rest he said he needed to cover some business debts.”
This is like Talia, little details that seemed to slip through the cracks. She is filling me in now.
“What debts?”
She shrugs her shoulders. “Business,” she says, as if this covers the universe.
“Does your accountant have a current financial statement, something he can fax me fast, for the hearing this afternoon?”
“Yes,” she says. “I think so.” She gives me his name but can’t remember his number. I’ll have to get it from information.
“Bail’s always relative,” I tell her. “It turns on what the court thinks is necessary to compel your appearance. If you’re strapped, the magic figure may be lower.”
Compelling Evidence Page 21