“You know it is.”
Sam smiled broadly at Desmond. “Let’s continue. You were asked to test swabbings from other items found near the body—sticks and rocks and those kinds of things?”
“Yes.”
“And you were asked to test swabbings from the cap?”
“You know I was,” she said.
Sam smiled at her again. “And you were asked to compare those matters in all cases to my client?”
“Yes, as well as the other standards that were submitted.”
“Meaning other people’s DNA?”
“Correct.”
“Aside from the watch cap, you didn’t find my client’s DNA on any item you were asked to examine, did you?” Sam looked at the jury. They were still following.
“No.”
“So, the cap only—and you don’t begin to know when or how my client’s DNA was passed to the cap?”
“No,” Desmond admitted.
“And you can’t exclude a secondary or tertiary transfer?”
“No.”
“And in fact, regarding the hat, you found my client’s DNA only in a mixed DNA sample, true?”
“True.”
“And the major donor was Mr. Miles?”
“Yes.”
“And you said one other minor contributor was, you believe, my client.”
“Presumptively.”
Sam had one more question, but he wasn’t entirely sure of the answer he would get in response. He thought about it and then asked. “You said ‘contributors’ on direct—so were you able to determine the identity of the other minor donor or donors?” He assumed she had not, as there had been no disclosure. A name would certainly be exculpatory information his client had a right to know.
“Not to a degree of scientific certainty, no,” she said. “That’s why it’s not in my report.”
Sam was thinking. “So, there is another contributor,” he mused aloud. “Any idea who it might be?”
“Objection,” Cathy said. “She can’t be certain; that’s why it isn’t in her report.”
“Overruled,” Daniels said. “You can answer, if there is an answer.”
“I’ve got an idea,” Desmond said.
Sam had been hoping for a simple no, which would have given him a phantom to point at in closing. He considered moving to have Desmond’s answer struck because it wasn’t responsive. He stalled by looking through the papers on the podium in front of him while he considered his options. He decided he needed to follow up. “Who else do you think might have contributed to the mixture?” Sam asked at last.
“I cannot recall,” she said. “May I refer to my notes?”
“Would it help your recollection?” Sam asked.
“Yes,” Desmond said. “That’s why I asked.”
Sam smiled tightly, then looked at Daniels, who looked at the witness. “You may,” Daniels said. “Let Mr. Johnstone know when you are ready to answer.”
Desmond looked at her notes, then looked to Sam and nodded. He indicated she could answer.
“I believe the other minor contributor was a male by the name of Ronald Norquist.”
Sam tried not to let his surprise show. He now had a named alternate male contributor—albeit his partner’s son and his star witness—giving him the ability to inject at least some doubt in the jurors’ minds. He let the murmuring in the courtroom die down before he asked the follow-on question.
“Why didn’t you disclose the identity of Ronald Norquist in your report?”
“Because I cannot say he is the minor contributor with the requisite degree of scientific certainty. I can only say that there is some arithmetic probability based on scientific assumption,” she said. “But I have nowhere near the certainty I do with your client.” She sat back and folded her arms, awaiting his next question.
“Can you explain what you mean when you say you cannot say ‘with the requisite degree of scientific certainty?’” he asked.
“Certainly,” Desmond said, and turned to the jury. She delivered a lengthy response explaining the biological and mathematical probabilities undergirding the method of analyzing mixed DNA samples, giving Sam time to think and get a drink of water.
“But you cannot say how, where, or when that sample was transferred to that mixture either, can you?” Sam asked.
“No.”
“In fact, the old adage is, ‘Your DNA goes places you do not’—isn’t that right?”
“Correct.”
“Mr. Norquist, like Mr. Blair, might well have never been near that hat, yet we find his DNA on the hat—true?”
“Well, the probability that Mr. Blair’s DNA is on the hat is a lot higher than Mr. Norquist’s.”
“But only a degree of probability—true?”
Desmond sat quietly, thinking. “Right,” she said at last.
Paul was trying to get Sam’s attention. Davonte touched Sam’s sleeve and nodded toward Paul. “Your Honor,” Sam said. “May I have a moment?”
“You may,” Daniels said. He watched as Sam and Paul entered into a discussion. As it got increasingly heated, Daniels looked at his watch. “Ladies and gentlemen, let’s take ten. Bailiff?”
In chambers, Daniels was lighting a cigar and sneaking into his private bathroom for a couple of quick draws when Mary walked in. “Judge!”
“What is it, Mary?”
“You took your morning break early and didn’t tell me,” she scolded.
“I don’t have to clear it with you,” he said, puffing smoke and blowing it into the fan.
“Why did you break early?”
“To give Sam and Paul a chance to hash out a major issue,” he said.
“What’s going on?” Mary asked. She was straightening files on Daniels’s desk while he smoked.
“Sam’s questions just revealed the presence of DNA in a mixture found on the dead guy’s hat that belonged to a third party.”
“Sounds like good news for the defense,” she said.
“Ordinarily, it would be. You’d have an identified additional person of interest.” Daniels watched a smoke ring get sucked into the fan. “But the DNA in question could well belong to Paul’s son, Ronnie,” he said, turning to Mary.
“Oh my gosh!”
“Yeah,” Daniels said. “That’s what Paul is thinking right now.”
Paul and Sam were in a small conference room off the hallway to the side of the courtroom. “Paul, I had to chase that rabbit down the hole,” Sam said. “This is our best chance to create reasonable doubt.”
“No, Sam,” Paul said. “I can’t have Ronnie involved in this.”
“It’s too late. He knew Davonte and Miles; he worked with and was around both. His DNA is—”
“Might be!” Paul interrupted. “She didn’t report it because the evidence is so weak. That’s what she said.”
“Exactly, and the presence of Ronnie’s DNA—even the suspected presence of his DNA—is probably enough for us to raise reasonable doubt in the minds of the jurors.”
“You can’t use my son as a decoy.” Paul was up and pacing the small room.
“Look, all I’ve got to do is make clear to the jurors that if Ronnie’s DNA is there, then there’s another . . . person who, uh, is . . . of interest.”
“A suspect,” Paul said. “You want to paint Ronnie as a suspect!”
“Paul, our client is Davonte. If we highlight the likely presence of Ronnie’s DNA, we can create reasonable doubt. That is justice in this case.”
“Only if he’s innocent.”
“Not our call. I’ll ask her three or four questions to make clear that from the standpoint of DNA Ronnie is just as good a suspect as Davonte. Frankly, I think it is malpractice if I don’t continue this line of questioning.”
“You’re going to want to call Ronnie,” Paul said.
“We’re not there yet,” Sam said. “But I had him served with a subpoena.”
“Without asking me. You are going to call him!”
>
“I might,” Sam admitted. “The State’s case is weak. DNA is important in the minds of jurors—sometimes too important. We have an opportunity to show the jury that in Davonte’s case, the DNA is virtually worthless. We take away the DNA and they’ve got nothing.”
“You can’t put my son on the stand!”
“Paul, we put him on the stand, have him testify that he’s been around the victim, just like Davonte. He testifies that he doesn’t know how his DNA could have gotten on the hat. It’s like having Davonte testify without having to call him. The jury will hear and see Ronnie and infer that, ‘Hey, he was at the party, his DNA is on the hat, he didn’t get charged. And he owed Kaiden money, too.’ Ronnie—on paper—is just as viable a candidate as Davonte.”
“No, he is not! He is my son!”
“Paul.” Sam looked at his old friend closely. “What’s going on?”
“What do you mean?”
“Is there something you are not telling me?”
“Of course not!”
“Paul, I know Ronnie’s your son. But he is an adult and he didn’t have anything to do with the kid’s murder, so what in the hell is the problem?”
Paul sat staring at the tabletop, saying nothing. Sam stood, looked at his watch, and said, “Time.”
“Don’t do this, Sam,” Paul said. “For me.”
“Paul, you are asking me to ignore my ethics, to forego a perfectly legitimate—frankly, probably required—line of questioning, and to put our client’s life at risk. And I’m not sure why.”
“Because he’s my son,” Paul said. He got up and walked out, leaving Sam alone.
Moments later, when all had reassembled, Daniels looked down the bench at Paul and Sam. “Counsel, please continue.”
Sam stood and took a deep breath. He could feel all eyes upon him. “Thank you, Judge. Ms. Desmond, safe to say you don’t know how or when Mr. Norquist’s DNA was transferred to that hat?”
“That is true—I already said that. I don’t even know for sure it is his.”
“And similarly, you don’t know how or when my client’s DNA was transferred to that hat, either—do you?”
“I already said that, too.”
Cathy was on her feet, about to object. With a quick look at the jurors, Sam saw two nod their heads. He sat down. “No more questions, Your Honor.”
The next witness was the contracted medical examiner. Sam pulled a file from the banker’s box he had prepared and quickly reviewed his notes. He didn’t expect much to come of this testimony. Having gotten through Dr. Laws’s bona fides, Cathy began asking the pertinent questions.
“What is the medical examiner?”
“The medical examiner is the physician assigned to the coroner’s office. The coroner is an elected position and does not have to be a licensed physician,” Laws said. “The medical examiner heads the office that is in charge of investigating the two major types of death investigations: non-natural deaths—the accidents, suicides, and homicides that take place in a community every day—and sudden unexpected deaths—deaths where there was not a doctor in attendance who might be in a position to sign a death certificate. We investigate those cases.”
“Do you also perform autopsies?”
“I do.”
“How many autopsies have you performed?”
“Well over one hundred, I would think.”
“Let me take you back to November 21—were you employed as medical examiner on that date?”
“I was.”
“Did you perform an autopsy on an individual named Kaiden Miles?”
“I did.”
“Other than yourself, who was present during that autopsy?”
“I have an assistant who was present. I think Detective Polson was there as well for a time, but he may have left at some point. He wasn’t feeling well watching. The coroner may have stopped in. I’d have to look at my notes.”
“Now what did you first notice about the body of Kaiden Miles?” Cathy asked.
“Extensive bruising in the facial area. He had a black eye and a broken jaw. He had obviously been in some sort of physical altercation.”
“A fight?”
“That’s one possibility, yes.”
“But there are others?”
“Well, of course. He could simply have been the victim of a battery,” Laws said.
Cathy looked at the jurors and knew many were confused. “You are saying Kaiden might have been hit by someone, but not as part of a fight?”
“From a medical standpoint, it could have happened that way, yes.”
“Now based on your training and experience and your findings from the autopsy, do you have an opinion as to the cause of death of Kaiden Miles?” Cathy asked.
“I do.”
“And what is that opinion?”
“I believe the victim died as the result of hemorrhage following a depressed fracture of the back of the skull.”
“So he suffered a blow to the back of the head and died of blood loss?”
“Yes. You could say that.”
“Did you view any photographs from the crime scene?” she asked.
“Yes, and after reviewing the photographs, I feel like they supported my original opinion.”
“Did you have the opportunity to observe how the victim’s body was lying by the creek?”
“I did.”
“And did that help confirm your opinion that this was a homicide?”
“I’m not sure my viewing the body added much. The deceased could not have inflicted the wound at the back of his head upon himself. Death would have resulted in a short time—minutes at the most—from the infliction of this blow. Bleeding was sudden and massive. He would have lost consciousness within seconds.”
“Your Honor, those are the State’s questions,” Cathy said, and sat down.
Daniels pointedly looked at the clock, then at Sam. “Mr. Johnstone, cross-examination?” he asked, and looked at the clock again.
“Yes, Your Honor,” Sam said. “Just a few questions. Dr. Laws, as the result of the autopsy, were you able to determine a time of death?”
“No.”
“Could you give an approximate date?”
“Not really. The body had been exposed to the elements. The time of year, snowfall . . . I wouldn’t be comfortable beyond saying the man had been dead for ten days to two weeks,” he said.
“You testified the blow that killed him would have done so in short order—is that fair?”
“Yes. It was a grievous injury,” Laws said. “He would have lost consciousness almost instantly and would have died within minutes.”
“And you said he had wounds consistent with having been struck in the facial area,” Sam said.
“Yes.”
“Can you tell from your examination whether the wounds to the face and the blow to the back of the head occurred at the same time?”
Dr. Laws sat back and thought for a moment. “Based on my observation of bruising to the facial area, I believe those injuries were incurred initially,” Laws said. “The blow to the head came later.”
“How much later, can you tell?” Sam asked.
“Not with exactitude.”
“Weeks?”
“Oh, no. No signs of healing to the face.”
“Days?”
“I would think more likely minutes—perhaps up to an hour. The bruising had not yet really begun to spread. The bleeding under the skin was really just starting.”
“Was there a large loss of blood?” Sam asked. The question was vague, but Cathy didn’t object.
“Not initially—not from the black eye or jaw.”
“So, the victim was hit in the face at some point, and then whacked in the head at another?” Sam asked. He had a small opening here—one that accorded with what Davonte had been telling him and anyone else who would listen.
“I think that’s fair to say, yes.”
“By the same person or persons?”
&nbs
p; Cathy was on her feet, but the doctor had it figured out. “I think that is Detective Polson’s job.” Cathy sat back down. Sam could feel Paul’s eyes upon him.
“He’d have been able to walk after getting hit in the face?”
“Oh yes.”
“So he could have been hit in the face at one location, and then whacked in the back of the head in another?”
“Objection,” Cathy said.
“Overruled. You may answer, Doctor,” Daniels said.
“Could have,” Laws said.
“No more questions, Your Honor,” Sam said. As he walked back to his chair, his eyes briefly met Jeannie’s. He looked away.
“Any redirect?” Daniels asked Cathy.
“No, Judge.”
“Okay, folks,” Daniels said. He was anticipating the State would call Polson next. Thinking that examination would take a while, Daniels made a quick decision. “Let’s take our lunch break before the State’s next witness. As always, follow the bailiff’s directions, and do not talk about the case. Bailiff, please conduct the jury to the jury room.”
Ninety minutes later the parties had reconvened, and the jury was seated. Sam had spent the time reviewing the exhibits submitted by the State. Something was bothering him about the watch cap, but he couldn’t put his finger on it. He was looking at a photograph of the room shared by Miles and Ronnie when it began to dawn on him.
When everyone had reassembled, Daniels looked to Cathy. “Okay. Let’s proceed with the State’s case-in-chief. Ms. Schmidt, please call the State’s next witness.”
“Your Honor, the State calls Kenneth Polson,” she said. Sam and Paul exchanged a look, and Paul pushed a yellow legal pad toward Sam with the words “game time” scribbled on it. Sam shrugged and wrote back, “Not a lot we can do here.” Paul’s face clouded.
After swearing an oath, Punch took the stand. “Mr. Polson, please state your full legal name for the record,” Cathy directed.
“Kenneth Polson—but everyone calls me Punch, ma’am.”
Cathy ignored the temptation to ask why. She should have asked him earlier. “Never ask a question to which you do not already know the answer,” the old adage went. “Mr. Polson, are you employed?”
One and Done (Sam Johnstone Book 2) Page 24