Innocence

by David Hosp

  “Objection,” Finn said again, though this time with less indignation. There was no point in playing the victim at this point.

  “Sustained,” Cavanaugh said. It was clear from his tone that he’d gotten Jackson’s point, though.

  Jackson continued, not letting the interruptions slow the pace of his questioning. “In any event, did you perform the tests in this case?”

  “We did.”

  “And what did you find?”

  “We found that Mr. Salazar’s DNA matched the DNA from the samples taken from underneath Officer Steele’s fingernails in all seven of the variable sites for which DNA could be isolated.”

  “In the jargon of your profession, Dr. Horowitz, does that constitute an exact match?”

  “It does,” Horowitz answered with some reluctance. Finn knew that he was trying to make clear that he wasn’t happy to be giving his testimony, but the effect was to demonstrate that his sympathies were with the defense, making the evidence all the more powerful for the prosecution.

  “Having come to this conclusion, did you run any additional tests to try to verify your results?”

  “We did. We ran a mitochondrial DNA comparison as well as a DNA site comparison—or STR test.”

  “Can you explain what that test is?”

  “Yes. This is a test that can be used on samples where, as here, there is some degradation in the DNA sample. It is not as conclusive as the STR tests that we initially ran, but it can be a good check on initial matches.”

  “And what was the result of this second test?”

  “It also came back as a match for Mr. Salazar’s DNA.”

  Jackson let that answer hang as he walked back to counsel table. He shifted his notes, but Finn could tell it was just for effect. Finally, Jackson looked back up at the witness. “Dr. Horowitz, based on these results, can you draw any conclusions regarding Mr. Salazar’s guilt or innocence in the attack on Officer Steele fifteen years ago?”

  “I can,” Horowitz answered. He looked up at the judge. “From these tests, I can conclude that Mr. Salazar was the man Officer Steele scratched on that night, and he was, therefore, the man who attacked and shot her.”

  z

  Finn stood up. Having recognized the possibility that he would be in this position, he’d spent the first half of a sleepless night trying to work through ways to attack Horowitz’s testimony if the DA’s office found out about the tests. In the end, he’d come up with little, and he’d spent the second half of the night hoping the man would not be called.

  “Mr. Finn?”

  It was Cavanaugh. He was glaring at Finn with a hostile expression. Only a hint of sympathy for his former student seemed to keep his anger from tipping into rage. “Were you aware of these test results?” the judge asked.

  Finn held his head up and met Cavanaugh’s eyes, but not without some substantial effort. “I was, Your Honor.”

  “When you answered my question before about why you had nothing in your briefs about the DNA testing, you chose your words carefully.”

  “I did, Your Honor.”

  “My father used to say that carefully chosen words were the tools of the devil.”

  “He sounds like a wise man, Your Honor.”

  “Just be warned from here on out, Mr. Finn. I will be looking over these transcripts very carefully. Don’t give me an excuse to refer you to the Board of Bar Overseers for disciplinary action.”

  “Yes, Your Honor. Thank you.”

  “You may proceed.”

  Finn took a deep breath. He approached Horowitz slowly, with his fingers locked together at his lips. “Dr. Horowitz, can you tell the court how you obtained the DNA samples that were taken from underneath Officer Steele’s fingernails?”

  “Mr. Dobson gave me the copy of the court’s order requiring the police and the DA’s office to provide the sample, as well as a letter of authorization as Mr. Salazar’s legal representative. I took those to police headquarters and obtained the samples from the chief technical inspector. I signed for the samples and took them back to the lab to run the tests.”

  “So you obtained the samples from the police department?”

  “Of course. Who else could I get them from?”

  “And this would be the same police department that falsified the original fingerprint evidence used to convict Mr. Salazar?”

  Jackson rose. “Objection.”

  “Overruled,” Cavanaugh answered without even hearing the grounds for the objection.

  Horowitz shrugged. “I wouldn’t know about that. All I know is what science tells me, and science tells me that the samples matched.”

  “But you don’t really know where the DNA given to you actually came from, do you?”

  “I’m not sure I understand the question.” Horowitz clearly didn’t like being challenged, and he was becoming defensive.

  “It’s possible, for example, that Mr. Salazar’s DNA was placed there a few weeks ago, after the court ordered the police department to turn over the rape kit, isn’t it?”

  Horowitz considered the question carefully. “No, actually,” he said after a moment. “That’s not possible.”

  “How can you say that?” Finn demanded. This was his only decent line of questioning, and he wasn’t going to let it die. “After they planted fingerprints fifteen years ago, after they committed perjury? How can you be sure that they didn’t plant this DNA evidence as well?”

  “Because I examined the samples myself,” Horowitz responded. “No matter what their motivations, they can’t change the laws of science. You see, when Officer Steele scratched the man who attacked her, the pressure and force of her hands drove the skin and blood into the crevices of her fingernails. When she was examined, her fingernails were clipped and placed in the rape kit. Over time, the skin and blood that were there fused to the cells of the fingernails themselves. So when we took the sample for testing, we actually pulled cellular material from two individuals—one was Officer Steele, one was Vincente Salazar. In both cases, the DNA and cellular composition showed clear deterioration consistent with the passage of a significant amount of time. It would have been impossible for this evidence to have been planted three weeks ago.”

  “It could have been planted fifteen years ago, though, right?” Finn was grasping now, and he was sure it showed, but he had no other angles.

  “Not really,” Horowitz said, his voice growing in confidence. “As I indicated, the skin and blood were impressed deep into the crevices of the fingernails. It would have been nearly impossible to achieve this if the evidence had been planted after the fingernails had been clipped.”

  “Nearly impossible?” Finn asked, emphasizing the modifier. It was weak, but it was all he had.

  “I suppose anything is impossible if you push a hypothetical to its illogical end,” Horowitz replied.

  Finn stood there looking at the witness. He was out of ammunition, and he didn’t feel like he’d even made a dent in Horowitz’s direct testimony.

  “Anything further, Mr. Finn?” Cavanaugh asked.

  “If I could have a moment to go over my notes, Your Honor?”

  “By all means. Be quick, though. My holiday cheer is running thin.”

  Finn walked back to counsel table. He had no notes there that would help him, but he needed to buy time to think. The case was slipping away from him. Notwithstanding the fact that he believed Salazar was guilty, the man was still Finn’s client, and once the battle was joined, the notion of losing was anathema to him. He was a lawyer, after all.

  Finn stood at the front of the courtroom, in front of counsel table, facing away from the judge, away from the witness stand, looking out toward the gallery. He could sense the crowd shifting in their seats, anticipating Salazar’s imminent return to prison. Finn knew that if he hadn’t convinced the crowd, he certainly hadn’t convinced Cavanaugh.

  As he looked out at those gathered in the courtroom, he caught sight of the Salazar family in the first row. Mrs. Sala
zar’s head was down, and she was counting off rosary beads in her lap. Rosita sat still and straight, like a porcelain doll, her sightless eyes motionless. Miguel Salazar’s face was drawn tight, and he stared straight at Finn. Finn looked back at him, feeling lost and helpless. He was struck by how much Miguel resembled his brother, and wondered what their lives might have been like if they hadn’t lived through such hardship.

  As he stared at Miguel, the shadow of a thought slipped across Finn’s mind. It was fleeting and undefined, but he felt the substance behind it. He looked down at his client. Vincente was staring at Finn, too, his features set in stone. As he looked at Vincente, the shadow began to gain definition, and Finn found it difficult to breathe. He looked back and forth between the two brothers.

  And then both brothers nodded. It was an identical movement, slight and subtle, too inconspicuous to notice unless, like Finn, you were focused on both at the same time. Finn felt the rush of revelation spread through him like a narcotic. He looked at both brothers, and confirmation was plain in their expressions.

  “Mr. Finn?” Cavanaugh said testily, trying to push the proceedings along toward their inevitable conclusion.

  “Yes, Your Honor,” Finn replied. His mind was churning, trying to recall the information he had read in his research on DNA evidence over the past week. He turned and faced the witness. “Dr. Horowitz, you indicated that you were able to establish a match for seven variable points of DNA identification with respect to the samples in question, is that right?”

  “That’s correct.”

  “Can you explain what that means?”

  “Sure. Although it’s somewhat complicated.” Horowitz looked at Finn as if to ask whether the lawyer really wanted him to continue.

  “I understand,” Finn said. “We’ll take our chances.”

  Horowitz gave him a tired look. “Well, as most people know, DNA is the basic code—chemical code, if you will—of life that determines everything about what an organism will be. DNA itself is fairly simple; it is made up of four proteins that are lined up in a very specific order in pairs on strands called chromosomes. These chromosomes are made up of literally millions and millions of these protein pairs, and the differences in the order of the proteins is what creates differences between animals and plants, or two different species, or two different individuals. Because DNA is what makes us all different, we all have different DNA—it is unique to us, and that is what makes it so useful in identifying individuals when they leave their DNA behind, as Mr. Salazar did when Officer Steele scratched him.”

  “Thank you, Doctor, but if you could confine yourself for the moment to explaining how DNA identification works in general, I would appreciate it,” Finn said. “We will get to Mr. Salazar’s specific case shortly.”

  Horowitz frowned at being rebuked, but continued. “What is sometimes difficult to grasp is that, although everyone’s DNA is different in some ways, on the whole, the DNA from two individuals is actually quite similar. When you consider the complexities involved in creating human beings, with hearts and lungs, and organs, and hands and legs—everything about the human body—the fact that we are all as similar as we are is really a marvel of chemical engineering. In that light, differences in height or eye color start to seem minor by comparison. Indeed, when you look at human DNA, over ninety-nine point nine percent of all human DNA is identical. You find differences only in a few limited, specific areas on DNA strands that are highly variable.

  These spots are known as points of identification, and the FBI has recognized fifteen such spots that are used in DNA testing. If the patterns of the proteins on these spots match in two different samples of DNA, then you know that you are looking at DNA from the same person.”

  Finn nodded; the tutorial was bringing back much of what he’d read over the preceding week. “Right,” he said. “There are fifteen such points of identification, correct?”

  “That’s correct.”

  “But you testified earlier that you were able to match only seven points of identification between Mr. Salazar’s DNA and that taken from underneath Officer Steele’s fingernails, correct?”

  “That’s true.”

  “Can you explain why you were unable to obtain a match for all fifteen sites?”

  “Yes. You see, the DNA sample we were working with from the victim was over a decade and a half old. We were also dealing with very small samples—pulled from a tiny amount of tissue that had fused to the fingernail itself. As a result, there was an inevitable amount of degradation and contamination of the DNA, and we were not able to obtain clean samples for all fifteen sites.”

  “So,” Finn said, “this is not a complete match.”

  Horowitz shook his head. “No, that’s where you’re wrong. You have to understand that these particular sites are highly variable between individuals, and they comprise thousands of protein pairs. The chances of someone else from the general population sharing the same patterns on seven sites is astronomical—in fact, the FBI requires a match at only five sites to establish an identification. This is an exact match by any scientific standard.”

  Finn was in dangerous waters, and he had to frame his questions carefully. “When you say that the odds of someone from the general population matching on seven points of identification are astronomical, how would you define ‘astronomical’ in these circumstances?”

  “I’m not sure, exactly,” Horowitz said. “Maybe one in a hundred million.”

  “And, Doctor, what are the odds that a sibling of Mr. Salazar’s could match his DNA on seven points of identification?”

  The question brought Horowitz up short, and it took him a moment to speak. “I don’t know offhand,” he said defensively.

  Finn pounced. “You don’t know offhand ?” he demanded in an agitated tone. “Doctor, you are giving testimony here today that could put an innocent man back into prison for the rest of his life, and you are telling this court that you don’t know what the odds are of this DNA matching someone other than the defendant offhand ?”

  “I didn’t mean it that way,” Horowitz sputtered. “Certainly, the odds would be greater, but I don’t know exactly how much greater.”

  “How much greater, Doctor?”

  “I just said, I don’t know exactly.”

  “How about one in a hundred?”

  Horowitz thought about it. “It’s possible.”

  “Could the odds be greater than that?” Finn pressed. “Say, maybe one in fifty?”

  “I don’t know.”

  “One in ten?”

  “No.”

  “How do you know that for sure? You just told the court that you don’t know what the odds are, and now you tell us that you do know? What has changed, Doctor? Did you somehow conduct research as you were sitting here on the stand giving testimony?”

  “No, of course not! It just seems too high.”

  Judging from the redness in Horowitz’s face, Finn was approaching the point at which the man would never work with him again. There was no turning back, though. “It seems too high? You are willing to send a man to jail because the odds seem too high?”

  “That’s not what I meant, either.”

  “The truth is, Doctor, that you were telling the truth the first time, right? You really have no idea, as you sit here, what the odds are that a sibling of Mr. Salazar’s could match on seven points of identification using the ASI test?”

  Horowitz drew his lips together tightly. “That’s correct.” His voice was low and barely audible, but it was enough.

  Finn turned and walked back to counsel table, making a note on a blank sheet of paper. “You ran a second test as well? A mitochondrial DNA test, Doctor?”

  “Yes.”

  “Can you tell the judge what the odds are that one of Mr. Salazar’s siblings would match his DNA using that test?”

  “I just ran that test as a double check,” Horowitz protested. “You know that.”

  “If you would, just answer the ques
tion, Doctor,” Finn said.

  “But—”

  “Answer the question, Doctor,” Cavanaugh instructed him. It was a good sign, Finn knew. At least he could be sure that the judge was fully engaged.

  “That test involves an analysis of maternal DNA that resides in the cells. As a result, all siblings would have the same mitochondrial DNA,” Horowitz explained.

  “So,” Finn said, “that sounds like the chance of a match between siblings is one hundred percent, no?”

  “That’s correct,” Horowitz admitted wearily.

  “Thank you, Doctor. Nothing further.” Finn walked around counsel table and sat down.

  “Redirect, Your Honor?” Jackson requested, standing. Cavanaugh nodded, and Jackson moved in. “Dr. Horowitz, are you certain beyond any reasonable doubt that the DNA you found under the fingernails of Officer Steele came from Vincente Salazar?” The ADA was going for broke. Finn knew he would try to rehabilitate his witness, but with this question, he was putting it all on the line, and he had no way of knowing how far Horowitz was willing to go out on a limb. Finn held his breath as the entire courtroom waited for the answer.

  “How do you define ‘reasonable’?” Horowitz asked, looking defeated. It might have been an attempt at humor, but Finn couldn’t have asked for a better response.

  “Please, Doctor,” Jackson said, visibly shaken. “If you could just answer the question?”

  “I don’t know. Could it have been a sibling? I suppose that’s possible. Beyond that, I’m sure it’s Vincente Salazar’s DNA.” Horowitz looked as though he just wanted to get off the stand and be done with his testimony.

  Jackson sat heavily. It was clearly not the answer he’d been looking for. “Thank you, Doctor.” To the judge, he said, “Nothing further, Your Honor.”

  Cavanaugh sat on the bench, looking down at Horowitz on the witness stand, gauging his demeanor. “Mr. Finn?” he asked. “Anything further?”

  “No, Your Honor, not for this witness. But I would ask your indulgence to call one witness of our own.”

  Cavanaugh looked over at Jackson, who looked like a puddle of defeat. “Mr. Jackson, do you have any additional witnesses for us today?”