allow his gaze to drift to Paul, but there was no doubt where D.B. was placing the blame. It was part of this life that you often took a pasting for stuff you’d never wanted anybody to do.
“It seemed fairly accurate,” Mo said. “I could not identify any of the latent prints accumulated in 1982 in Ms. Kronon’s bedroom as being from Senator Gianis. There were a few about which I could not reach any conclusion without also seeing Cass Gianis’s prints, which I’ve suggested to both sides they might want to obtain. But the senator was otherwise excluded on any identifiable print from the scene.”
There was a little riffle from the spectators and the journalists’ row.
“Well,” said the judge, “I’m going to place your report in the court file, so it’s available to everyone else who may not have seen a copy in advance.” Du Bois was laying it on thick.
“Judge, I would just like to say-”
“No need, Mr. Horgan. We all know how this goes. It might be your side, it might be your opponents, it might be someone else whose agenda none of us understands. So I make no assumptions. And even though this was designated as a report to the court, I realize in retrospect that I didn’t explicitly advise the parties against premature disclosure. But let me be clear now. There will be a full investigation of any similar incident in the future. Understood?”
At the podium, Ray nodded several times, virtually bowing, his whole stout upper body canting from the waist like a knight’s before the throne.
“Judge,” said Tooley, “we’ll cooperate in any inquiry you want to make right now.”
“All right,” said Du Bois, ignoring Mel. Like many other people in this courthouse, the judge didn’t seem to hold Tooley in high regard. “So the pending matter is Mr. Kronon’s request to enforce his subpoenas to obtain the blood standards and the other evidence that remains in the hands of the state police, with the express intention that defendant Kronon can attempt to do DNA identification on the blood and any other genetic evidence from the crime scene. In addition, Mr. Kronon asks me to order Senator Gianis to provide a DNA sample by way of an oral swab.”
The judge looked briefly at a folder he had with him, then webbed his hands to address the courtroom.
“I’ve given this a great deal of thought. We know from Dr. Yavem that the DNA results are very, very likely to be inconclusive. And the fingerprint report of Dr. Dickerman reinforces that estimate. I agree with Mr. Horgan that at some point a chance of success that ends up getting measured in basis points makes a test burdensome and oppressive. But that’s not really the problem here. The question I have been wrestling with is whether inconclusive results could be relevant in any way to this proceeding.
“Now, in pondering this, I need to remember that this is Senator Gianis’s case. He sued Mr. Kronon, and in this lawsuit, like any other, it’s the plaintiff’s burden to prove that it’s more likely than not that what Mr. Kronon said on several occasions-namely, that Mr. Gianis was involved in the murder of Dita Kronon-is false, and, further, that in saying that, Mr. Kronon acted with reckless disregard for the truth. If we put the standard of proof in mathematical terms, it’s Mr. Gianis’s burden to prove that as a jury weighs the evidence, 51 percent goes his way.
“It’s also important to reflect on the meaning of the results Dr. Yavem might report. Yavem says that there is no better than a one in one hundred chance that he will get a positive result for either twin. Yet Dr. Yavem’s inconclusive finding won’t be a determination that the DNA present could come from anyone in the world. A result like that would be truly irrelevant. But when Yavem says his test is inconclusive, he is very likely to mean that the DNA might be Senator Gianis’s or it might be his twin’s. Talking only about that result, he’ll be saying it’s 50 percent either way.”
Sitting at the plaintiff’s table, studying Du Bois, he suddenly knew where this was going. He felt the alarm, like sudden nerve damage, rocket to his toes.
“So in trying to prove that 51 percent of the evidence shows Mr. Kronon’s accusations are false, by definition a 50 percent chance that the DNA is the senator’s
“Now, as a citizen, I will say that I have some strong personal views about the underlying events. But my opinions have no place in this courtroom. I can only follow the law. And following the law carefully, I conclude that the DNA test is relevant to this proceeding. So I will authorize a subpoena to the state police and to the Greenwood County police for any genetic materials they have retained, especially all blood evidence, and I will allow Dr. Yavem to test those materials. And I will order Senator Gianis to produce a DNA specimen by way of oral swab to Dr. Yavem. Mr. Horgan, will you retain your own expert?”
Standing at the podium, Ray seemed unable to move. His suit jacket, buttoned to address the judge, strained over the full contours of his torso, and shock had straightened him up.
“I’m sorry, Your Honor. I’ll advise the court shortly, but with no criticism of your ruling intended, I hope you understand that I was not expecting to be crossing this bridge today.”
Du Bois nodded. He seemed faintly pleased that he’d been a step ahead of everyone.
The judge said, “I’ll give you three days to retain your own expert, and I’ll stay production until then. That will be the order of the court. Gentlemen, I’d like to see a full discovery schedule in a week. That will be all.”
Du Bois again declared a recess to give the courtroom time to clear. When the judge rose, Lands once again glanced toward the plaintiff’s table. In listening, he’d gradually realized that Du Bois was right. If he’d thought about this as precisely as D.B. had, if he hadn’t looked at this with the rosy view of a partisan, he would have understood that what he’d realized to start-that the DNA test was a trap that ninety-nine times in a hundred would serve Hal’s ends-also dictated the legal and evidentiary conclusion. He stood up and caught the judge’s eye and nodded slightly, out of respect.
Crully and Horgan and he went straight across the hall to the attorney room to figure out what Paul was going to say to the media in the rotunda downstairs. There were a few beaten wooden chairs in here and one worn oak desk like the ones his teachers sat behind when he was in grade school.
“Can we appeal?” Crully asked. “I don’t like the optics, but I just want to know all the options.”
Ray was shaking his head. “Waste of time. We could file a mandamus, but no appellate court will supervise a discovery motion. They’ll dismiss our petition out of hand and we’ll look worse.”
“I think we make the best of it, now,” Crully said. “Say there will be no ID of Paul. Say it’s a technical ruling. Emphasize the print report. Does that sound right, Chief?”
He had always been the more temperamental twin. His brother smoldered, but he occasionally felt anger fill his veins like lava. He struggled now for self-control. You chose this life, you walked a tightrope with only gumption and a parasol, the chasm chanting its siren song below. But there was no point in daring when the only outcome was bad.
“Nothing is right,” he said to Crully. “This whole lawsuit is a fourteen-car collision. I listened to the two of you, and now I’m getting my keister tattooed on a weekly basis.”
Horgan muttered, “Paul.”
“No,” he said. “That sounds like I’m blaming. And I’m not. You both gave me your best advice. And I made the decision. But I’ve been in enough courtrooms to know once you file, you lose all control. I should have laughed it off and called Hal a right-wing goof.”
Ray lifted one shoulder. In retrospect, Paul might be right.
“So what comes next?” he asked Ray. “A dep, right? Hal will depose me for three days.”
“We can set limits,” said Ray. “Maybe even put it off until the election.”
“No, we can’t. Because it’ll be the same logic as giving fingerprints. Or DNA. I can’t hide. I’ve got to look forthcoming. And they’ll want to depose my brother next. They’ve already got some old dick hunting around for Cass with a subpoena. Maybe they’ll want to question Sofia after that.”
“They won’t get Sofia,” said Ray softly. But that was no more than a confession about Cass.
“We’re going to dismiss this lawsuit today,” he said.
Crully sat back with his nasty little eyes narrowed.
“Fuck that,” he said. “I already told you what I’ll have to do.”
“Frankly, Mark, it’s probably time for a change anyway. You’ve set up a great organization. You’re a great field marshal. But you’ve swung and missed on a couple of big things. Leaking that report was not smart. Du Bois, you know, he’d probably have done the same thing. Probably. But it was the wrong time to piss him off.”
