A Past That Breathes

by Noel Obiora

  “Were you able to conduct tests on the donor material you found to determine if it belonged to the defendant?”

  “Yes, we did DNA tests, but found it did not belong to the defendant.”

  “Isn’t it fair then, sir, to say that whomever this semen belonged to must have had something to do with her death?”

  “That would be completely conjecture ma’am. I only rely on established facts, not conjecture in my work.”

  “Thank you, sir, no further questions,” Amy said and walked back to her seat.

  Kenneth and Cassandra had agreed that it would be easier on Helen Silberberg and appeal more to the jurors if Cassandra handled much of the evidence of sexual activity. Cassandra stood up to examine Dr. Kio.

  “Do you agree sir, that the evidence shows the sexual activity occurred on the same day the victim was killed?” Cassandra asked.

  “Yes,” Dr. Kio answered.

  “What facts did you use to establish that the sexual activity occurred on the same day as the death of the victim?”

  “You identify genetic material because it has spermatozoa. Donor spermatozoa from a healthy adult male will contain two hundred million to four hundred million sperms per milliliter. Upon secretion, over time, it degrades both in quantity and quality, the weakest sperms die, some tails break-off, some dehydrate, and so on. These changes in quantity and quality can be measured against a graph to determine how much time has passed since secretion.”

  “Can you tell the specific time when the sexual activity took place?”

  “No.”

  “There was more semen on the bed, was there not?”

  “Yes.”

  “Did your tests confirm whether the semen on the victim and the semen on the bed belong to the same person?”

  “I did not perform the tests on the semen found on the bed, that’s the job of the police criminalist. But I compared the results of the tests on the semen from the body with the results of the tests on the semen on the bed and found that they were different donors.”

  “Neither of whom was the defendant, Paul Jackson?”

  “Yes.”

  “So, theoretically, there were two donors of genetic material, both of whom were male, but neither of whom was the defendant?”

  “Yes.”

  “And both men, neither of whom was the defendant, were involved in some sort of sexual activity with Ms. Silberberg in her bedroom.”

  “Objection,” Amy shouted.

  “State your objection, counsel,” Judge Barney said.

  “There was no testimony that both semen had anything to do with Ms. Silberberg. Her friend was staying in the apartment, not her.”

  “Sustained,” Judge Barney said, and added: “Rephrase counsel.”

  “Dr. Kio, as far as we know, there was evidence of sexual activity involving two men at the scene of the crime, none of whom was Mr. Jackson. Is that correct?” Cassandra asked.

  “Yes, and likely another woman.”

  “How did you come to the conclusion that there was another woman, doctor?”

  “There was only a trace of one semen in the victim, which suggests that the semen on the bed may have had a different partner.”

  “Dr. Kio, isn’t that speculation?”

  “Objection,” Amy said calmly, standing up. “Argumentative,” she added when she was fully standing.

  “Sustained,” Judge Barney said.

  “There were also condoms in the bin at the scene, is that correct?”

  “Yes.”

  “And did the donor semen in the condoms match the DNA of the donor semen in the victim or that on the bed?”

  “The bed.”

  “That would explain why the semen found on the bed has a different DNA than that found in the victim, would it not? Because it was deposited in a condom, right?”

  “Yes. Or suggest the victim was not involved in the activity that took place on the bed.”

  “But it is also possible that both men shared the same partner, is it not?”

  “That is purely speculation, and I don’t speculate in my work.”

  “Even when you can reduce the speculation by a process of elimination?” Cassandra persisted.

  “I’m not following you.”

  “Well, speaking theoretically, you can’t be in your office at the same time you are here testifying, so it must be one or the other, right?” Cassandra asked.

  “Right,” Dr. Kio said.

  “So, if we know you are here, even in theory, we can eliminate the other places you could possibly be at this time, is that correct?” Cassandra asked.

  “Yes,” Dr. Kio answered.

  “But we can’t eliminate the possibility that the men your tests have placed in Ms. Silberberg’s bedroom were involved with Ms. Silberberg on the same occasion, can we?”

  “You should be ashamed of yourself, lady!” Helen Silberberg suddenly yelled, jumping up from her chair.

  “Order,” Judge Barney shouted, his voice resonating. The bailiff was quickly on his feet and hurried toward Ms. Silberberg, whom Amy’s paralegal had already started dragging away from the courtroom.

  “You are the whore! Not my daughter! Shame on you.”

  “Order before this court,” Judge Barney yelled again. The bailiff had reached Helen Silberberg and the paralegal helping her out of the courtroom. She continued to struggle and was crying hysterically by the time they got her to the door, almost as if from the strain of the manner in which she was being dragged out of the courtroom and her disappointment at her ineffectual struggle.

  “I hope someone does the same to you,” she shouted before the bailiff managed to close the double doors to the courtroom. All eyes were on Helen as she accused Cassandra of maligning her daughter. Amy was glad Alana had decided not to return to court. If she thought Conrad was bullied, what would she have said of this character assassination?

  “Counsel, approach,” Judge Barney ordered after Helen Silberberg was taken out of the courtroom. Amy, Cassandra, and Kenneth stood up to approach the judge. All the attorneys huddled next to the judge on the right side of his bench. The witness stand and the jurors were to the judge’s left. “Ms. Wilson, I will not have Ms. Silberberg in my courtroom anymore. It is obvious that the strain of this trial is too much for her to bear. And I don’t see what benefit comes from it.”

  “Your Honor, I sincerely apologize for her outburst, I take full responsibility for it as I had failed to warn her of how graphic the examination might turn out to be, given that I took Dr. Kio out of order from what I had planned. I was hoping to prepare her for the nature of this examination during the lunch break because I anticipated that my other witnesses would take at least that long on the stand. We only asked Dr. Kio to be present this morning because of your request.”

  “I do hold you responsible, but that doesn’t change my ruling. She will remain outside this courtroom for the duration of the trial.” Judge Barney then turned his attention to Cassandra and Kenneth. “Does the defense have any motions they would like to make concerning this incident?”

  “No, your Honor,” Cassandra replied. “We accept the circumstances as they are.”

  “You may return to your seats.”

  The parties returned to their seats. At this time, Dr. Kio was sitting with his fingers interlaced and placed in front of him on the edge of the stand, his half-smile evidently unperturbed. All the jurors’ eyes were on Cassandra as she walked back to the counsel table. Rather than continue standing as she was before the outburst, she sat down, deliberately going over her notes.

  “Ladies and gentlemen of the jury, you must disregard the outburst of the woman you have just seen shouting at the defense attorney. If counsel was out of line for even one second in her examination of Dr. Kio, you can bet that I would have called her to order; and that goe
s for the prosecutor as well.” Judge Barney pointed his gavel toward Amy as he said prosecutor. “Now, if such outbursts as you have just heard were allowed to sway the jurors in every trial, then all a party would need to do is plant people in court who would yell and act hysterically every time an attorney elicits emotional testimony, and our system of justice would turn into a farce. So, I urge you. No, I command you, to forget that outburst and concentrate only on the testimony of the witness before you and my ruling as we go forward. I trust and understand that you can do so. Thank you. You may proceed, counsel.”

  Cassandra stood up again and straightened her dress. She looked directly at the jurors as she picked up her notepad.

  “Dr. Kio, I believe my last question to you was whether, as you sit here today, you have established and supported facts that both men whose semen was found on the victim and on her bed, respectively, were not involved with her at the same time on the same bed.”

  “Not conclusively, no, I cannot.”

  Cassandra was about to proceed on another line of examination when the judge tried to clarify Dr. Kio’s last answer.

  “Doctor, when you say not conclusively, is there any evidence at the scene of the crime to suggest there was another woman?”

  “Yes, your Honor. There was genetic material in the form of blood we believe belonged to a woman, but we could not conclusively say it was the victim’s or another woman’s,” Dr. Kio answered.

  Judge Barney did not follow up on Dr. Kios answer. Cassandra seemed glad to do so.

  “When you say ‘we,’ who are you referring to?”

  “The criminalists who worked on the case and me. We shared our tests.”

  “Why were you unable to conclusively say that the blood on the condom belonged to the victim?”

  “This begins to go into the primary area of the criminalist, whom I believe will be testifying as well,” Dr. Kio said looking at Amy as he concluded his statement. Amy nodded.

  “Did you look at the tests and discuss the conclusions with the criminalist?” Judge Barney asked Dr. Kio.

  “Your Honor, I would receive their tests but have no need to discuss my conclusions with them as our jurisdictions are different. I have jurisdiction over the body, and they have jurisdiction over the rest of the scene, that would include the condom in the bin and any traces of blood found on it.”

  “You may answer the question,” Judge Barney said.

  “Well, again, we had a very small sample to work with, as usual. We were able to determine it was blood by spraying a chemical on the stain, which makes blood glow in the dark under ultraviolet light. But the amount of genetic material on the condom, coupled with possible contamination from the bin, made DNA sampling inconclusive as to whether it was the victim’s or another woman’s.”

  Amy took a deep breath and rubbed her forehead, drawing Gonzalez’s attention. Their eyes met, and he mouthed, “don’t worry.” Amy forced a smile at him. Then she shuffled and reshuffled the papers in front of her.

  “Dr. Kio, how long after the body was discovered did you conduct your examination?”

  “Three days.”

  “Would you have determined the cause of death by just looking at the scene of the crime before conducting your examination?”

  Dr. Kio was quiet for a what seemed like a long period.

  “No, not in this case.”

  “And in performing that examination, you would have to open up the cranium of the victim, would you not?”

  “Yes, to rule out the likelihood that an allergic reaction caused the asphyxia.”

  “So, you would not jump to the conclusion that physical force was used?”

  “Objection,” Amy said.

  “Rephrase your question, counsel,” Judge Barney said.

  “Dr. Kio, are you capable of ruling out suffocation due to an allergic reaction without opening up the victim’s cranium?”

  “No, I am not, but—”

  “Thank you, doctor, you have answered my question,” Cassandra said.

  “Objection, your Honor. The doctor has not finished his answer,” Amy said.

  “Sustained. You may finish what you were saying, doctor.”

  “I was going to say that the police operate on a different set of evidence in addition to the evidence I use in my examination and may well be in a better position to conclude that there was nothing present that would cause the victim an allergic reaction in her own bathroom. The police make the manner of death determination and I make the cause of death determination. When the manner of death points to homicide by a particular suspect, the police can make an arrest while awaiting the cause of death determination.”

  “Thank you doctor. I have nothing further,” Cassandra said.

  “Any redirect?”

  “Yes, your Honor,” Amy said and stood up.

  “Dr. Kio, let me ask the last question counsel asked you a different way. Are you able to conclude that the cause of death was strangulation without opening up the body?” Amy asked.

  “Yes.”

  “How?”

  “There is a thin strip of tissue inside the middle of the upper and lower lips called the frenulum…” He showed Amy pictures from his autopsy, which Amy marked and introduced into evidence before he continued. “When the frenulum is broken, it is often due to smothering or an attempt to smother the victim. One could also examine the eyes for ruptured capillaries, petechiae of the eyes. These are pinpoint hemorrhages in the whites of the eye caused by the pressure in the head building up higher and higher during strangulation until the blood vessels start to rupture, and the weakest blood vessels rupture first. Some of these are in the whites of the eye. In the event of strangulation, blood pressure in the head increases causing those ruptures in the eyes.”

  “Were those all present in this case on the victim?” Amy asked.

  “Yes, they were.”

  “Thank you, doctor,” Amy said. “I have nothing further for this witness.”

  Judge Barney turned his head toward Cassandra.

  “Nothing further from us,” Cassandra said.

  “The witness is excused,” Judge Barney said, and waited for Dr. Kio to leave the courtroom. “We stand in recess.”

  Cassandra and Amy looked at each other after the judge left the courtroom and looked away at the same time.

  •••

  Amy next called Officer Fritz to the stand. She had wanted to call Officer Tse to elaborate on the evidence collected in Goldie’s room but changed her mind after the defense did well with Dr. Kio on those objects. He testified that he was one of the officers who arrested Paul Jackson at his house. He said Paul Jackson spoke freely to them and allowed them to search his house and his car. Paul claimed he was at the club until very late on the night Goldie was murdered, after which he returned to his house and never left again until the officers arrived. An express package had been delivered at his house that morning, but he had not been available to sign for it.

  Paul’s bank records also showed an automated teller machine withdrawal at 12:04 a.m. the morning of the incident. The location of the ATM was about two miles east from Goldie’s apartment, on Wilshire Boulevard, but it would not have been Paul Jackson’s route from the club to his house. The officers retrieved surveillance camera photographs from the bank, which showed he made the withdrawal himself.

  Officer Fritz then introduced pictures taken from the ATM surveillance camera with the time and date on the pictures. When the officers found the boots Paul wore earlier that day, he started crying and said he wanted to speak to his attorney.

  “Up until that time, he spoke freely?” Amy asked.

  “Yes, ma’am,” Fritz said.

  “And he gave you permission to search his house?”

  “Yes, ma’am.”

  “You said you found the boots he wore. Wer
en’t they lying there in his wardrobe with all his other shoes?”

  “No, they were hidden in a guest bedroom.”

  “Objection to the characterization that they were hidden. The officer is speculating about the defendant’s intent,” Kenneth said.

  “Overruled,” Judge Barney said.

  “Did Mr. Jackson say exactly when he came home the night before?” Amy asked.

  “He said twelve midnight, or so.”

  “Even though you had surveillance camera footage showing him on Wilshire Boulevard at 12:04 a.m.?” Amy asked.

  “We didn’t have that information when we were talking to him. After we spoke to him, we continued our investigation and found that he was at Wilshire when he said he was in his house,” Officer Fritz explained.

  This concluded Amy’s examination. When Kenneth got up for Fritz’s examination, Cassandra had suggested he should not do anything with the ATM record, believing Amy had gone over it too quickly, and any further inquiry by Kenneth’s examination would turn a “fleeting anecdote into a moment of history.” Kenneth agreed.

  “Officer Fritz, when you and other officers left the defendant’s house on the night the body was discovered, you placed him under arrest for the crime, did you not?” Kenneth asked.

  “Yes, we did.”

  “Based on the evidence as you described earlier?”

  “And the evidence we collected at the victim’s house. We were afraid he was already hiding evidence.”

  “Then, the following day you got a subpoena to search his office, his house, and all his belongings?”

  “Yes sir, it was basic investigative procedure. First, he gave us permission to search his house, then when we found the shoe, he demanded we leave, and asked for an attorney.”

  “What was the connection between the office and the crime?”

  “Possible location where evidence might be hidden.”

  “Was that also the reason why the first police report you prepared did not mention Mr. Jackson’s office, which is located in his nightclub, but the typewritten report mentioned that Footsie was going to be at the club?”