No Way Out

“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.

“Well let’s try it another way then. Instead of a percentage, let’s look at it as a number. How many African-American males in the United States would you expect to match this profile?”

Alvarez looked uncomfortable and appeared to be thinking about how to phrase his answer.

“About 37,000.”

The spectators gasped. The jury, to their credit, held their breath silently, although some did lean forward keenly. Alex knew that he had them.

“Let me let me be clear that I’ve understood this correctly. You are telling this jury that from a scientific point of view anyone of those 37,000 African-Americans could have been the source of the DNA was found in these nail clippings?”

Alex had phrased the question cleverly. Of course, Alvarez could say that the real question should be what was the likelihood that a man who was identified by the victim, who had a prior record of interracial rape — a rape committed by someone driving a car that matched his car that he claimed had been stolen two days before the rape but hadn’t bothered to report — was innocent. But it was not for him to say that. That was an argument for the prosecutor to make out in her closing. He was here not to present arguments but to answer questions. And he could only answer within the scope of his field. And his field was DNA science.

Alex had asked from a scientific point of view and it was from a scientific point of view that Alvarez had to answer. He could try to embellish it or emphasize that his portion of the evidence was indeed only one small portion of the evidence. But the more he quibbled, the weaker and less significant and convincing his evidence would sound.

And because he was an expert, he knew that his duty was to answer truthfully without taking sides.

“Yes,” said Alvarez finally, swallowing awkwardly.

Thursday, 20 August 2009 — 12:50