Naked Justice

by William Bernhardt

  “There was also the skin beneath his wife’s fingernails—”

  “Yes, but you conducted only the PCR test on the skin samples, right?”

  “That’s true. There wasn’t enough material for a RFLP.”

  Ben’s eyes raced through his notes. Thank goodness, Jones’s pretrial research had made him something of a DNA expert himself. Otherwise, an effective cross would be impossible. Unless the lawyer educates himself, there is no hope of a successful cross. That’s why scientific experts were so often able to bamboozle lawyers. “And the chances of a match between samples from two different people are much greater on the PCR test, aren’t they?”

  “It’s still about four thousand to one.”

  “Is that all?” Ben tried to sound incredulous. “Then you could have a false positive.”

  “It is theoretically possible. But highly unlikely.”

  “Four thousand to one doesn’t sound impossible to me, Doctor. And you haven’t even accounted for statistical skewering due to subpopulations, have you?

  Regan tugged at his tie. “Well, no.”

  “Certain subpopulations will have DNA that is more similar than others, thus increasing the chances of a match. True?”

  “That’s true.”

  “If you consider the genetic differences of the entire world, you can get long statistical odds. But if you limit your comparison to certain sub-populations, the chance of a false positive is much greater, right?”

  Regan took a deep breath. “That’s true. But there’s no evidence—”

  “One example of such a subpopulation would be the black race, wouldn’t it?”

  “Yes.”

  All eyes darted to Wallace Barrett.

  “Another would be members of the same family.”

  “That’s also true.”

  “Among these groups, the chances of a false DNA match are much greater, correct?”

  “I can’t deny it.”

  Ben smiled. “We appreciate your honesty.” He walked back to counsel table and retrieved an exhibit Christina had found for him a few days before, careful to keep it hidden from the witness. “Dr. Regan, would you say your business has been a success?”

  He folded his hands across his lap. “I like to think so.”

  “Get a lot of business?”

  “Yes, our clients seem to be very pleased with our work—regardless of the result,” he added hastily.

  “I’m sure. Just how much business do you have?”

  “We’re now processing over six hundred samples a month.”

  “Six hundred a month! By a staff of how many?”

  Regan was a bit slower to answer this time. He was beginning to realize where this was going. “There are ten of us in the lab.”

  “Wow,” Ben murmured. “Ten people handling six hundred samples every twenty or so working days. Must get very hectic.”

  “Nothing we can’t handle.”

  “Confusing, too. All those different samples flying about.”

  “I assure you our labeling protocols are very reliable.”

  “Still, Doctor, with all those different samples rushing through the lab— some mistakes must occur.”

  Regan ruffled a bit. “Not that I’m aware of.”

  Ben looked at him sternly. “Doctor, isn’t it a fact of forensic life that every lab has an error rate?”

  “Most government-affiliated forensic labs handle a much higher volume of samples. At our lab, we can pick and choose what to handle. We don’t let ourselves get swamped. Each sample is handled individually and is read by two different analysts for confirmation.”

  “Still, Doctor—”

  “I assure you, counsel, we are quite careful.”

  “Perhaps so, Doctor—but you’re not perfect, are you?”

  “I beg your pardon?”

  Not really a fair question, but it would get him where he wanted to go. “My mother always told me that no one was perfect, but I don’t know, maybe she was wrong. Are you perfect, Doctor?”

  He gazed at Ben wearily. “No, I would not say that I was perfect. Although—”

  “You do occasionally make mistakes.”

  “I suppose. But even if I erred in the lab, the confirmation procedure—”

  “No confirmation procedure is flawless, is it, Doctor?”

  He stuttered a bit. “I suppose I could conceive of a situation—”

  “And every lab has an error rate, right?”

  “If indeed we have an error rate, it would be negligible. Barely worth mentioning.”

  “But you did mention it, didn’t you, Doctor?” Ben held up his exhibit, a magazine-size color brochure. “This is the Cellmark annual report, isn’t it?”

  Regan’s eyes widened. “It … seems to be.”

  “Being a publicly held corporation, you have to file these things, don’t you?”

  “I’m … not really sure of the legalities.”

  “You’d be committing a securities violation if you didn’t, right?”

  “Right.”

  “And the SEC demands scrupulous honesty in these things, doesn’t it?”

  He folded his arms. “I’m sure you know more about that than I do.”

  “Well, Doctor, according to this report, your lab has an error rate of about two percent. Right?”

  “If that’s what it says, then that’s what it says.”

  “Well, that’s what it says. Is it true?”

  There was a long pause before Regan finally answered. “I suppose it must be.”

  “Thank you. Now, as this report points out, two percent is quite low, and you should be commended for your high standards of excellence. But the fact remains—two percent is two percent. Right?”

  Regan pursed his lips. “Yes, two percent is two percent. I can’t argue with that.”

  “So it is in fact possible that your lab made an error when analyzing the Barrett DNA samples, right?”

  “It is theoretically possible.”

  “Because, in fact, no one is perfect. Not even DNA analysts.”

  “That’s correct, counsel. No one is perfect.”

  Ben beamed. “Well, my mother will be pleased to learn that she was right after all. So, Doctor, if we may, let’s summarize what we’ve learned. First of all, despite what the prosecution would have this jury believe, DNA analysis is not a perfect science, at least not yet, is it?”

  “N-no, it isn’t perfect.”

  “What’s more, the chances of making a false identification using DNA analysis are in fact much greater than you first suggested, right?”

  “Arguably.”

  “And besides which, none of these results are valid if the samples provided are tainted or handled improperly.”

  “That’s certainly true.”

  “Thank you, sir.” He closed his notebook. “I have no more questions.”

  Chapter 53

  THREE FOR THREE, BEN kept muttering to himself on his way back to his table. Three witnesses up, three witnesses down, and each time he thought he’d managed to do a reasonably effective job of undermining their testimony on cross. True, he couldn’t totally undo what they had to say—some of that forensic testimony was still keenly damning. But he had managed to do what every defense attorney hopes to do during the prosecution’s case. Sow the seeds of reasonable doubt.

  The next witness up to bat was the medical examiner, Dr. Hikaru Koregai. Ben had crossed him several times before, so he knew what to expect. Koregai was gruff, self-important, and most of all, a team player. He was on the prosecution’s side, and he never forgot that.

  Koregai took the stand in his usual dignified, deliberate manner. Ben thought he detected some uncertainty in his gait, a barely visible trembling in his step. He had heard that Koregai was having some heart problems.

  After the introductions and the credentials—Koregai’s thousands of autopsies, his numerous articles for medical journals—were out of the way, Bullock asked the witness about the present
case. “Did you perform the autopsies on the Barrett family members?”

  “Yes.” As always, Koregai’s answers were crisp and direct. “I performed the autopsies on the mother, Caroline Barrett, as well as her two small children, Alysha and Annabelle Barrett.”

  Ben saw several members of the jury wincing. It was gruesome just to think about autopsies being performed on those two tiny, beautiful girls. He hoped to God Bullock wouldn’t be dragging out any pictures.

  “Let’s begin with the children,” Bullock said. His expression was grim and humorless, as befitted the topic at hand. “Based on your examinations, can you identify the cause of death?”

  Koregai nodded. “Both children died as a result of an attack by a sharp instrument, probably a knife.”

  “And what was the cause of Caroline Barrett’s death?”

  “She was also injured by wounds inflicted by a sharp instrument, probably a knife, and probably the same knife that killed her daughters. But she suffered numerous wounds, over twenty by my count.”

  There was an audible gasp from the jury box and the gallery.

  “The worst was a slash that proceeded halfway across her throat. At one point, this slash was so deep it touched her spinal column. There was also a gash four and a half by two and a half inches running from left to right on the side of her face.”

  “Was that … all?”

  “No. There were numerous wounds on the right side of her face and several punctures at the back of her head. It was as if the assailant had been trying to eliminate her face. To erase her existence.”

  “Any other wounds, Doctor?”

  “Yes. She also suffered several slashes to her hands. The wounds went vertically down her palms”—he held up his hands to demonstrate—“suggesting that she was trying to defend herself.”

  “But not very effectively.”

  “No,” Koregai echoed. “Flesh is a poor defense against a knife.”

  “I assume then that these wounds were the cause of Caroline Barrett’s death?”

  Koregai concurred. “No single one of these blows would necessarily have been fatal, not even the one to the throat. But the cumulative effect of the massive hemorrhaging was deadly.”

  “Would that have been a sudden death, Doctor?”

  “No,” he replied solemnly. “It would have been a slow death. Slow and painful.”

  Several jurors lowered their eyes or clutched their stomachs. In his own emotionless way, Koregai was painting a picture more horrifying than the crime-scene photographs.

  “Can you tell us the time of death, Doctor?”

  “I cannot say with absolute certainty—” He glanced quickly at Ben. Experience had taught him not to presume to know things he really couldn’t prove. “I can narrow the time of death to between four and six o’clock on the afternoon of March 11.”

  “I think that’s good enough,” Bullock said, reminding the jury in his own way that Barrett’s neighbor saw him racing out of the house just before six. “Thank you for your help. I have nothing more.”

  Ben approached the podium in a quiet, almost reverent manner. He would have to be respectful and serious with this witness. There was no way he could seriously impeach any of Koregai’s conclusions. His best shot was to hammer on all the things Koregai didn’t say.

  “Dr. Koregai, I’m surprised you weren’t able to identify the time of death more accurately. Why is that?”

  “Unfortunately, in this instance, the forensic indicators necessary to ascertain the time of death with a greater degree of accuracy were not available.”

  What goobledygook, Ben thought. He’s hiding something. “Dr. Koregai, didn’t you preserve the contents of the victims’ stomachs?”

  “Uh … no.”

  “No?” Ben was genuinely surprised. “If you had, wouldn’t you have been able to more narrowly nail down the time of death?”

  “It is … possible, yes.”

  “Well then, why didn’t you?”

  “At the time, that was believed to be an unnecessary procedure.”

  “Because the police had already decided who they thought did it. And since they knew when he left the house, and weren’t planning to consider any other suspects, there was no reason to preserve the contents of the stomach.”

  “I wouldn’t put it that way,” Koregai said, but his discomfort was clearly growing. “However, it is true that the prevailing feeling at the time was that there was no need to take extraordinary investigative measures, as the case was already considered to be solved.”

  “In other words, they already had someone to pin it on, and they didn’t want a bunch of extraneous evidence messing up their case.”

  “Objection!” Bullock said with a decided air of contempt.

  “Sustained.” Judge Hart removed her glasses and stared at Ben sternly. “Counsel, I’ve already warned you about these kinds of remarks. Do it again and you’ll be in contempt of court.”

  “Sorry, your honor.” Ben glanced down at his notes. “I also noticed, Doctor, that you did not identify a murder weapon.”

  Koregai bowed his head slightly. “Since no murder weapon has been discovered, it would be impossible for me to identify it as the actual weapon used.”

  “So in fact you cannot say with certainty what the cause of death was.”

  “I can say that the cause of death was a thin instrument with a single sharp cutting edge. That description could fit innumerable knives or, for that matter, other sharp instruments. Every home has knives in it. Why must I point to the specific one that was used?”

  “And besides, knowing the specific murder weapon might eliminate suspects, including the one on trial, which is exactly what the prosecution doesn’t want.”

  Judge Hart didn’t wait for an objection. “Mr. Kincaid!”

  “I’m sorry, your honor. But it’s frustrating to see time and time again that the prosecution and police failed to follow up leads or even to investigate possible alternatives because they were so determined to put one man behind bars.”

  “Counsel, this is cross-examination, not closing argument. Either ask your questions or sit down!”

  “Right, right.” Ben pulled out his copy of Koregai’s autopsy report. “Speaking of not pursuing possibilities, you didn’t perform a rape test on Caroline Barrett, did you?”

  Koregai looked up suddenly. “What?”

  “Isn’t it standard procedure in cases of murder involving women to perform a rape test?”

  Koregai looked slightly puzzled. “But there was clear evidence of sexual congress.”

  Ben was caught totally flat-footed. His eyes widened. “There—there was?”

  “Indeed. Whether it was a forcible assault I cannot say, because of the great amount of damage resulting from wounds inflicted after the sexual contact. But the witness had engaged in sexual intercourse prior to her death.”

  “How soon?”

  “That is impossible for me to say with precision. Within twenty-four hours.”

  “But she—” Ben struggled to get a grip. He knew what everyone would assume from this. That she must’ve been with her husband. “But you don’t know who her partner was?”

  “No. I found no traces of semen or other trace evidence from which I might make an identification.”

  “And I suppose you did nothing to follow up this lead, either.”

  “Actually, I did.” Ben suddenly felt a cold clutching at his heart. What had Bullock told him so many times? If you don’t know the answer, don’t ask the question. “I performed a pregnancy test.”

  Ben’s brain was racing. The case seemed to be spiraling out of his reach. “And—the result?”

  “Caroline Barrett was pregnant.”

  The reaction in the courtroom was like none before. First, there was a harsh, almost unnatural silence, followed by a sudden eruption so loud Judge Hart was forced to resort to the gavel.

  “Order! Order!” Reporters jumped out of their seats and raced for the back. Al
l three cameras zoomed in for closeups.

  “She was pregnant?” Ben repeated. “You mean from—”

  “No, not from the recent incidence of sexual activity. The embryo was almost two months old.”

  Ben knew he shouldn’t, but he couldn’t help himself. His eyes twisted round to look at Wallace Barrett, just as every other eye in the courtroom did. As it happened, Barrett seemed just as stunned as everyone else. His lips parted; his eyes went wide, then blank. His lips moved slightly, but no sound came out.

  Pregnant?

  “She was carrying a child,” Koregai stated flatly. “A boy.”

  Barrett’s head dropped to the table. Judge Hart continued pounding her gavel. The courtroom was in an uproar.

  “Your honor,” Bullock shouted above the hubbub, “this is a truly startling development.” So he said, but Ben noted he didn’t seem all that startled. “The State moves for an immediate amendment of the indictment. The defendant should be tried for four murders, not just three.”

  Judge Hart continued pounding her gavel. “Counsel, you know perfectly well you cannot alter the charges in midtrial. If you want to try the fourth murder, you’ll have to file another indictment.”

  Bullock nodded, acquiescing. He turned just enough to face the cameras, giving them a silent look of grim sadness, followed by steely resolve.

  Ben felt a cold shiver running up and down his spine. An unborn baby. Murdered. This changed everything. Everything. The worst crime of the century just got worse still.

  “Do you have any more questions, counsel?” Judge Hart asked.

  “No, your honor. I guess not.” Ben hated to leave his cross on this abysmal note, but he had no idea what to ask next. He simply had no idea.

  He took his seat beside Wallace Barrett. “How’re you doing, man?”

  Barrett turned his head to the side, just enough for Ben and every juror in the box to see his tear-streaked face. “She never told me, Ben,” he said, barely in a whisper. “A boy. I always wanted a boy.”

  Tears streamed out of his eyes; his face returned to the makeshift privacy of his hands.

  Ben felt a hollowness in his heart that was almost unbearable. He knew Barrett must feel horrible; his agony was almost palpable. But at the same time, he knew that the jury, depending on which way they were leaning, could see an entirely different motivation for the scene at the defense table.