David Kessler - No Way Out

“The thing is,” said Alvarez, “I haven’t been able to get through to Nick Sinclair or Sarah Jensen on their cell phones. And I don’t want to leave a message with the Alameda D.A. ‘cause that might dump ‘em in the shithouse.”

“They’re probably crossing the Bay Bridge. I know Nick Sinclair lives in San Francisco and I think Sarah Jensen may be staying there. She’s been driving in with him.”

“Well, if I don’t manage to get through to them, you’d better tell them.”

“But surely it doesn’t make any difference if the results are the same.”

“Well that’s just it. You see there are some additional results.”

“ What do you mean ‘additional’?” Bridget replied.

“We had one more nail sample — a third sample… from the other hand.”

“But how does that help? You said the computer guy managed to recover the original evidence sample file from the second test. Why would a third sample make any difference?”

“ ‘Cause this time we ran a mitochondrial DNA test on it.”

“And you’ve got the result?”

She could hardly contain her excitement.

“That’s what I’ve been trying to tell you. It excludes Claymore but nearly matches Louis Manning.”

“ Nearly matches? What does that mean, like a sibling? A cousin?”

“Hold your horses lady! Let me explain. Okay you know that siblings and cousins who are related by the maternal line have identical mitochondrial DNA sequences in these regions.”

“I know that.”

“But two maternally unrelated people have about ten differences on average.”

“Yes but you said it nearly matches — what does that mean?”

“Well if the samples differ in two or more places they’re not related. If the samples are identical , then it means they’re related. And if there’s a difference at only one location, then it’s inconclusive.”

“And is that what we’ve got in this case? One difference?”

“No that’s the funny thing. What we’ve got in this case is two differences.”

“But you said that counts as an exclusion.”

“Well officially yes. But it’s actually quite surprising too find a difference of only two. Like I said, normally if they’re unrelated you’d expect to find about ten differences.”

“So what the heck does it mean?”

“Well there is one complicating factor that we always have to consider.”

“Surprise me,” said Bridget, realizing that Alvarez was enjoying this game of I-know-something that-you-don’t-know.

“Mutation.”

“Mutation?”

“Mitochondrial DNA mutates as the cells grow and divide.”

“Yes I know what mutation is but what’s the bottom line? Are you saying it could be from Manning — and the two differences are due to mutation?”

“I wish it were that simple Bridget. The problem is that we can tell which sample is the mutated one and which is the one from before the mutation.”

“You can tell?”

“Yes.”

“So what’s the problem? I mean that’s good isn’t it? It be more of a problem if we couldn’t tell?”

“The problem is that the mutation is in the evidence sample, not Manning’s reference sample.”

“So?”

“You don’t get it do you? Okay let me spell it out to you. The evidence sample is older than the reference sample that we just took from Manning. But that means that older DNA has a mutation and the newer reference sample doesn’t have it.”

“But that makes no sense,” said Bridget. “Can mitochondrial DNA un mutate?”

“Of course not! That’s the problem!”

“I want to know why you subpoenaed her?”

Alex and Andi were on their way into the judge’s chambers, hanging back and keeping their distance from Sarah Jensen and Nick Sinclair.

“Not this time Alex. You twisted my arm enough before, now you’re going to have to defer to my judgment and trust me.”

“At least tell me what she’s going to say.”

“I don’t know yet.”

“Well tell me what you’re calling her to say… what you’re hoping she’ll say.”

“That’s another way of asking the same question.”

“I could decide not to let you call her. I’m still lead counsel in this case.”

“Then you’ll be blowing our best chance to clear our client.” She stopped, forcing him to do likewise and looked him in the eyes. “Your call Alex.”

Alex Sedaka looked at Andi Phoenix and saw a different woman to the one he had been working with these past few weeks. Here was a woman who was poised and self-assured. There was no trace of fear in her eyes this time, nor even a trace of doubt. This was a woman who knew that she was standing on rock-solid ground.

But it was the word our that tipped the scales. She had said “out best chance” and “our client.” That meant she was fully committed to the cause.

Alex shrugged his shoulders and smiled, a silent acknowledgement that she was in the ascendancy and a tacit sign of consent to her request.

The judge was already waiting for them in her chambers. They sat down in front of her, looking at Sarah and Sinclair, who looked uncomfortable.

“This in camera hearing is now in session,” said Justice Wagner. “All right, now I assume Mr. Sedaka that you have now had time to read the arrest report and record of Louis Manning.”

“Yes Your Honor.”

He had read it through from start to finish, amazed at what it revealed. Not only did Louis Manning look like Bethel’s original description and the FaceID image of the of the rapist, but he was also caught driving Claymore’s stolen car — thus proving what Claymore had said all along about his car being stolen. But the question Alex asked himself was how could he introduce it, without also introducing the results of the new tests that tended to incriminate Claymore too?

“And have you decided whether you wish to go for a mistrial without prejudice or to proceed with the case.”

“We’d like to proceed, Your Honor.”

Ellen Wagner turned to the Sarah Jensen and Nick Sinclair.

“And the People?”

Nick shrugged his shoulders. Sarah spoke.

“We’re only prepared to proceed if we can make the results of the new tests available.”

The judge turned to Alex.

“Any decision on that Mr Sedaka?”

“Not yet Your Honor.” The judge looked surprised. “We don’t yet know if we need to. Until we know, we can hardly be expected to decide.”

“But the prosecution has to decide whether they want a mistrial or to go on. How can they decide on their position if they don’t know your decision on this point?”

“I can understand their dilemma, but as a matter of law we have the right to decide whether or not to use a particular piece of admissible evidence at any time during our presentation of our case. Disclosure applies to what might be submitted in evidence, not what will be. Even the prosecution’s disclosure doesn’t oblige them to call a witness of present any particular evidence. The prosecution knows that this evidence exists and is admissible. That means it might be presented by the defense. We’re not obliged to notify them ahead of time what we intend to do, only what we may do. They’ll have to make their decision on that basis.”

“And when will you know if you’re going to introduce the test results?”