No Way Out

“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 unmutate?”

“Of course not! That’s the problem!”

Wednesday, 2 September 2009 — 10:05

“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?”

Alex looked at Andi, inquiringly. She spoke.

“After we’ve called our next witness: Eugenia Vance.”

“Your Honor that’s another matter that I wanted to talk about,” said Sarah. “We were given no prior notice of this witness until after she was issued with an emergency subpoena.”

The judge looked hard at Andi.

“Yes she has a point there doesn’t she Miss Phoenix? You obtained this emergency subpoena via the Ventura County Superior Court, bypassing normal procedure and protocol.”

“Your Honor, I know that it’s customary to obtain a subpoena from the trial court, but in this case, time was of the essence. I knew that the witness might be reluctant to come so that meant we’d have to give at least the statutory five days notice or she’d file for a postponement. And we didn’t want any more delays in the proceedings. The case was due to resume on Monday and it was late at night last Wednesday when we realized that this witness had relevant testimony. I was in Ventura County at the time, as was the witness. Therefore I resorted to the expedient of obtaining the emergency subpoena from the Ventura court for Your Honor’s subsequent approval.”

“And what exactly is this relevant testimony that this witness is expected to give,” asked the judge.

“Well we don’t actually know that she will give it Your Honor. We were also planning on asking the Court for permission to treat Ms Vance as hostile.”

“It gets better and better,” Sarah muttered under her breath, almost breaking into laughter.

“Okay, well let’s assume for a moment,” said the judge, “that she does give the evidence that you’re hoping for. What evidence is that?”

“We believe that Ms Vance has been in contact with Bethel Newton, in violation of her promise not to do so.