David Kessler - No Way Out

“No need. I’ll probably be through here in fifteen or twenty.”

“I’ll ask for an adjournment.”

“There’s no need .”

“But I want to.”

She gritted her teeth, but felt a tinge of amusement at Alex’s reaction.

“Did anyone ever tell you, you’re very stubborn?”

“Only Mrs. Sedaka.”

“Melody?”

“No, my mother.”

Martine couldn’t help but smile at Alex’s reaction.

“Okay, you do whatever you must. Like I said, I’ll be here for at least the next half hour.”

“Let me see if I’ve understood this, Mr Sedaka. You want me to grant your request for an adjournment, so you can visit your girlfriend a few blocks away?”

Justice Wagner’s tone was condescending rather than indignant. But Alex was left in no doubt as to how she felt about what he realized might seem like a frivolous request.

“She’s not my girlfriend, Your Honor, just a professional friend. And she’s pretty badly shaken up.”

“But you said yourself that this was only an attempted rape and she hasn’t even been hospitalized.”

“Yes, but she must be in shock. It’ll probably hit her later.”

“And when it does, you can comfort her — this evening . But right now, we have a case to try.”

“Your Honor, if I’m forced to conduct my cross-examination while I’m thinking about this, it might affect my performance.”

“I hope you’re not going to try and make your client pay for your concern about your girlfriend — sorry, your ‘professional’ friend.”

“I’m not saying I’ll do anything less than my best. But my concern for Miss Yin is genuine and may affect my performance. And even if it doesn’t, my client might claim that it does. He might claim incompetent representation by counsel and use it as grounds for appeal.”

“Which would hurt your reputation.”

“And threaten to undermine the verdict.”

Sarah Jensen stepped in.

“Why can’t Ms Phoenix conduct the cross-examination?”

All eyes turned back to Alex.

“This is a very complex area of law and science, Your Honor, and my co-counsel may not be sufficiently well-versed in this area to-”

“Come off it, Mr Sedaka. Ms Phoenix is an experienced trial attorney. She has been a prosecutor in New York City as well as defense counsel. Unlike you, she’s worked the criminal courts from both sides and she’s more than capable of conducting a rigorous and thorough cross-examination of the witness.”

Alex found himself almost stuttering.

“Well… I don’t know. I mean my client might not agree to it.”

“Oh really?” sneered the judge. “A minute ago you were saying that your client wouldn’t want you to cross-examine because you were in emotional turmoil over what’s happened to your — to Miss Yin. Now your saying he desperately wants you.”

For once, Alex was lost for words.

“May I confer with my client, Your Honor?”

“Please do.”

Alex went over to Claymore and told him what had happened, prefixing his remarks by telling Claymore not to show any reaction on his face — an instruction with which Elias Claymore proved singularly incapable of complying. But worse than that, Claymore showed no sign of flexibility on this point.

“I don’t want her doing it! I want you to cross-examine.”

“But why? She’s a very good lawyer — and in some ways it’ll look better in the eyes of the jury if she does it.”

“She doesn’t understand the DNA science as well as you do. She’s too wrapped up in this computer business.”

“She can use my notes. It’s all there.”

“I don’t want it. Look, you pushed me into accepting her as second seat. And she did a good job on the Newton girl. But for this job, I don’t think she’s up to it. I’m the client and I ain’t taking any chances. I want you to cross-examine Alvarez.”

Alex could see from the look in Claymore’s eyes that he wasn’t going to give way. But he also noticed something else. Claymore was afraid — it was the DNA that frightened him more than anything else.

Seconds later, Alex was back at the judge’s bench.

“My client doesn’t agree, Your Honor. I’ll do the cross. But may I at least be excused after that?”

“Okay, we’ll adjourn for lunch when you’ve finished and we’ll cancel the afternoon session.”

“Thank you, Your Honor.”

On the way back to the defense table, Alex whispered to Andi.

“I don’t want Elias to hear this, but don’t be surprised if I race through the cross.”

“I understand,” Andi replied.

Seconds later, Andi and Sarah Jensen were seated at their respective tables. Alex remained standing.

“Proceed, Mr Sedaka.”

“Thank you, Your Honor.” He looked down at his notes, flicking through several pages, and then looked up to meet the eyes of Victor Alvarez.

“Dr. Alvarez, you told us in direct examination that the test you carried out looked at twenty two markers on the Y chromosome. Is that correct?”

“Yes.”

“But is it not a fact that the generally accepted profile for the Y-STR Haplotype uses only eleven of those markers?”

“Yes but the more markers you use, the more accurate the test.”

“But is it not a fact that with Y chromosome DNA, to determine the probability of a random match, you don’t multiply the odds of each sequence to calculate the overall probability, but rather look it up in a database according to a mathematical formula?”

“Yes. That’s why it’s only four thousand to one.”

“And is it not also a fact that many of those people actually in the reference database are profiled with only ten or eleven markers?”

“So many of the markers that you tested for are in fact irrelevant and might in fact produce a greater sense of certainty than is realistic?”

Alvarez nodded.

“Yes, that’s true. But in such cases, the markers are simply ignored. So it doesn’t affect the final result one way or the other. Again, that’s why I said one in four thousand.”

“And is it not also a fact that the markers are not independent ? In other words, men get all their DNA from their fathers so that fathers and sons and brothers — and even some cousins and second cousins — all have the same Y chromosome DNA?”

“Yes that’s true. But again, that’s why we use the database method and the mathematical formula that you referred to a moment ago. That’s why I said one in four thousand.”

Alex noticed that Alvarez had put his hand to his mouth when he answered, suggesting that he was if not lying then having to admit something that he didn’t want to admit or possibly that he was holding back part of the truth.

“And is it not also a fact that specific Y-STR haplotypes are more common in some ethnic groups than in others?”

“Yes.”

“So in other words, even if the probability of this particular haplotype in the population as a whole is one in four thousand, it’s somewhat more common in the African-American population.”

“Yes.”

“What is that probability?”

“About zero point two of one per cent.”

He put it this way to make it still seem rare. But Alex had other ideas.

“About zero point two? So you’re saying that one African-American man in five hundred has this same haplotype?”

“Yes, if you care to put it that way.”

Alex most certainly did care to put it that way. Alvarez was desperately trying to take the sting out of this point. But Alex was not going to let up.