by Adam Mitzner
“But his ex-wife corroborated that he visited Mr. Sommers’s office from time to time, didn’t she?”
“She did.”
“So even though you were suspicious of Mr. Fiske being in Mr. Sommers’s office, she wasn’t.”
“I can’t speak to her motivations regarding what she told me.”
Gabriel thought for a quick second about adding that Jessica Sommers might have lied to keep her son’s father out of jail but decided there was no need. Miller hadn’t landed any punches.
The lawyer still hadn’t done any damage five minutes later when he informed the judge that he had no further questions. Salvesen obviously also concluded that Gabriel had emerged unscathed because he declined to conduct any redirect. Gabriel left the witness stand and reclaimed his seat beside Asra in the gallery.
Judge Martin said, “Any further witnesses, Mr. Salvesen?”
“No, Your Honor.”
She turned to Miller. “For the defendant?”
“No witnesses, Your Honor.”
“Very well. I’m going to issue my ruling, then.”
Gabriel knew that the fact that the judge was ruling from the bench meant she had already decided the issue before she even took the bench. Judges would often write out their ruling beforehand, and it was only if something came up unexpectedly during the hearing that they’d reserve judgment and issue a written order later.
Sure enough, Judge Martin put on her reading glasses.
“In this matter, the People request a DNA sample from Wayne Fiske. The legal standard that applies when a biological DNA sample is obtained by court order is well established and designed to reflect the United States Supreme Court’s directive that an individual has a privacy interest to his or her bodily fluids. See Maryland v. King, 569 U.S. 435, 446 (2012). A court order allowing the government to procure evidence from a person’s body constitutes a search and seizure under the Fourth Amendment of the United States Constitution. Such court order may be issued if the three-prong standard of Abe A. is met. Matter of Abe A., 56 N.Y. 2d 288.”
The court reporter asked the judge to repeat the citation to the case she had referenced, to which the judge replied that she’d go one better and allow the court reporter to review her notes when the order was fully read into the record.
With that, she continued: “This well-established test decided by the New York State Court of Appeals held a court may order a suspect to provide a sample for DNA profiling, provided the People establish: (1) probable cause to believe the suspect has committed the crime; (2) that relevant material evidence will be found; and (3) the method used to secure it is safe and reliable. The Court of Appeals also stated that the worth of the evidence to the case must also outweigh the intrusion to the individual.
“It is the ruling of this court that the People have satisfied all of the prongs required by the Court of Appeals. First, I am convinced that there is sufficient probable cause that Wayne Fiske committed the crime for which he has been charged. Second, I further believe that the DNA test will lead to the discovery of material evidence. To wit, his blood at the crime scene. Third, there has been no showing by the defendant that there is any risk to him if he were compelled to provide DNA evidence. And finally, I hold that the stated worth of this evidence outweighs the intrusion to Mr. Fiske. Nonetheless, to ensure Mr. Fiske’s safety through the DNA retrieval process, I order that the DNA be procured through a licensed medical professional. That is the order of the court.”
Wayne was immediately brought back into the witness room. He waited in handcuffs for a nurse to arrive. Once she did, the police unlocked the shackles but then reapplied the right one to the chair leg.
The entire process lasted only a few minutes. The nurse put the rubber band around his bicep and told him to make a fist. Then she stuck the needle in his arm and drew two vials of blood. When she was done, she even put a Band-Aid over the puncture.
24
It was an old cop adage to claim that you’d seen it all. After a couple of decades on the force, Gabriel thought he’d earned the right to apply it to his own experiences. He’d seen a man who beheaded his wife with a samurai sword. A woman who poisoned her husband by sprinkling crystals from a dishwasher pod on his breakfast cereal. A man who slaughtered his brother and two cousins while they ate Thanksgiving dinner because, according to the murderer, the Detroit Lions failed to cover the spread.
But a child murdering a parent was a first for him. Even if it was a stepparent.
Gabriel knew it happened, of course. The Menendez brothers sprang to mind. Lizzie Borden. Oedipus, although he didn’t count because he wasn’t real, and besides, in the play he didn’t realize it was his father.
Owen Fiske knew, however. For some reason, he had decided to go to his stepfather’s place of business after school, and however it happened, his stepfather’s head hit the coffee table, and Owen fled the scene while James Sommers lay dead.
That was the only conclusion Gabriel could reach after the DNA test showed that Wayne Fiske was only a partial match. Their killer still had to be a DNA-linked member of the Fiske family, and Owen was the only possible relative left.
It also explained why Jessica Sommers and Wayne Fiske had done a complete one-eighty, going from full cooperation to refusing to talk to the police at all. They had closed ranks to protect their son.
“Damn,” was Asra’s reaction upon hearing the news.
Gabriel understood that his partner’s disappointment wasn’t solely because she preferred to send a full-grown man to jail rather than a teenager with cancer, although that might have had something to do with it. More likely, however, Asra was mainly reacting to the fact that it would be much harder to secure a conviction of Owen Fiske based on the DNA match alone.
Gabriel believed Wayne Fiske would have been convicted in a heartbeat if the DNA had matched. After all, his fingerprints were at the scene, he needed James Sommers to be dead so his wife could collect the insurance money to save his son, and he undoubtedly hated the man.
But making a case against Owen Fiske was a tougher sell, even if they could prove that the boy had left his DNA at the scene. The motive, of course, still fit. It was equally logical to assume that a seventeen-year-old would commit murder to pay for his own lifesaving cancer treatment as it was to imagine his mother or father doing it to save him.
But it still took something of a suspension of disbelief to come to terms with a child killing a parent, even if it was for self-preservation. Added to that, the physical evidence linking Owen to the crime was equivocal, as opposed to when it came to his father. For example, there could have been any number of reasons for Owen to have visited his stepfather at work. And Gabriel knew that a smart defense attorney would come up with some innocuous reason for why Owen had left his blood at the scene that didn’t have anything to do with him punching his stepfather in the jaw.
Beyond that, because Gabriel hadn’t considered Owen a suspect, they had no idea where he had been at the time of the murder. They’d never gotten his statement, or even examined his hands. That was on Gabriel . . . A seventeen-year-old boy should have registered as a possible murderer, even if he was white, sick, and a good student.
“I should have thought to question him,” Gabriel said.
“It never occurred to me either. Or Tomlinson,” Asra said. “Why don’t we take a run at him now? Worst thing that happens is he declines.”
Gabriel knew that was a nonstarter. Even if Owen agreed to provide a DNA sample, they’d need parental permission. Same thing even to ask him for an alibi. There was no way that they’d get anything voluntarily at this point. Jessica Sommers and Wayne Fiske had shut it all down even when they knew their DNA wouldn’t be a match; now, they’d be twice as adamant when it came to protecting their son.
“No. We missed the window. We’ll need a warrant.”
An hour later, Gabriel was cooling his heels in the hallway outside the chambers of the Honorable Margaret Martin. Alex Mille
r sat beside him.
The request for a warrant was usually done ex parte, a Latin term that literally meant “without the other part.” Yet Joe Salvesen had said that the other part—Alex Miller—should be notified so as not to upset the judge. Salvesen then added that he had complete confidence that Gabriel could handle the matter on his own, so there was no need for him to trek to Judge Martin’s courtroom.
It likely didn’t matter who was sitting outside the chambers because no one would say a word, or even be granted entry inside. The process was for the application to be submitted to the judge’s law secretary, who then brought the papers to the judge. A few minutes later, the clerk would be back in the hallway and would hand the warrant to Gabriel, at which time he’d flip to the last page to see if the judge had signed it.
This time, however, when the clerk returned to the hallway, she was empty-handed. “The judge wants to see you both,” the clerk said.
The moment Gabriel and Miller stepped inside her chambers, Judge Martin said, “Lieutenant, didn’t we just go through this exercise not even a week ago?”
“That was for the father. Mr. Wayne Fiske. This is for his son, Owen Fiske,” Gabriel said.
“I know that. The name is on the warrant. What I’m saying is, didn’t you tell me just a few days ago that you had probable cause that it was the father who had left the blood at the crime scene? That’s why the man was arrested, after all. And it was on the basis of that representation that I issued the prior warrant.”
Gabriel figured that this tongue-lashing was likely the reason Salvesen had made himself scarce. With no other option, he apologized, even though he had done nothing wrong. That was what you did with judges when they were angry and you wanted something from them.
Miller took full advantage of having the upper hand. “That’s precisely why this warrant should not be issued, Your Honor.”
“I’ll get to you in a moment, Mr. Miller,” Judge Martin snapped. “Right now I want to hear from Lieutenant Velasquez about the sudden change in direction.”
“We knew the DNA was left by someone related to Howard Fiske,” Gabriel said. “We came to that conclusion, as Your Honor will recall, because a search of a private genealogy database revealed that the blood was a match for someone in the Fiske family. We got the results back of Wayne Fiske’s DNA this morning, and he’s only a partial match. That means that someone else in his family left blood at the crime scene. Wayne Fiske has no siblings or parents and only one son. The pending warrant seeks to allow us to do a DNA test on the son.”
“How old is he? The son.”
“Seventeen.”
“And he’s very sick,” Miller said. “Leukemia.”
“Mr. Miller, do you represent the son too?”
The question seemed to catch Miller off guard. “I guess I do.”
“Guess again, Mr. Miller. It seems to me you have a conflict. If I understand Lieutenant Velasquez here, he’s looking for evidence that might exonerate your client, Wayne Fiske. That suggests to me that you should not be the person arguing that the police not be allowed to obtain that evidence from Owen Fiske. Does his mother want to hire a lawyer for her son, or should I appoint one for him?”
Miller said, “I think she’ll want to pick the attorney.”
“Very well, then. She has until Wednesday morning. Because at that time, I want to see everyone—you, the ADA, and counsel for Owen Fiske—in my courtroom and we’ll thrash this out.”
Jessica understood the logic of what Alex Miller was telling her. He had just returned from the judge’s chambers, had explained what was going to happen on Wednesday morning, and told her that they needed to find a lawyer to represent Owen between now and then.
Needless to say, she didn’t know another criminal defense lawyer, but Alex had that covered too. He recommended a friend of his named Lisa Kaplan.
“She’s very good,” Alex said. “A former ADA.”
After Miller left, Jessica explained the situation to Owen. Just like he behaved in every interaction they’d had since his father’s arrest, Owen took the news that the DA now wanted his DNA without any show of emotion. Almost as if it involved someone else.
“Your lawyer’s job will be to fight the subpoena,” Jessica explained. “If she’s successful, they won’t get to take your blood at all.”
“Why don’t I just give them my blood and get it over with?” Owen said. “It’ll get Dad out of jail.”
“Trust me, this is the right thing to do,” she said. “Dad agrees.”
“Okay,” Owen said, not sounding too convinced.
Jessica had no such mixed emotions. She would walk on broken glass that was on fire to protect her son. Even for the murder of her husband.
She wondered what James would think about what she was doing. She thought she knew the answer. He’d understand. Of everyone, James would understand.
If it had been up to him, Owen would have simply complied with the DNA request. He’d said as much to his mother, but she wouldn’t listen.
That was the problem right there: no one ever listened. Everyone was making decisions about what they thought was in his best interest, paying at most lip service to his thoughts and desires.
25
Judge Martin couldn’t hide a smile. “It’s like déjà vu,” she said.
Wayne sat at the defense table with Alex Miller at his side. Like before, he was in prison garb. Unlike the last time, Jessica was in the gallery. Also different this time was that Lisa Kaplan sat at the end of the table.
Wayne didn’t smile at the judge’s quip. To his mind, there was nothing amusing about what was about to unfold.
Salvesen came to his feet. “The DNA test that the court ordered Wayne Fiske to undertake came back as only a partial match,” he said. “That means that the person who left blood at the crime scene is a blood relative to Mr. Fiske, but not Mr. Fiske. We are here today to seek an order to compel Mr. Fiske’s only child, Owen Fiske, to provide DNA. We believe that Owen Fiske will be a match.”
“Believe or hope, Mr. Salvesen?”
“More than hope. The police can’t be faulted for assuming that the family member who matched the DNA was Wayne Fiske, not his teenage son.”
“Tell that to Mr. Fiske, who has been in prison while all this was sorted out. On that point, why haven’t the charges against Mr. Fiske been dismissed?”
“We’re not yet prepared to do that,” Salvesen said. “His fingerprints at the scene suggest that he might have acted in concert with his son in this crime.”
Miller came to his feet. “I request that the court dismiss the indictment against Wayne Fiske. There simply is not enough evidence to satisfy probable cause for the arrest. In fact, all they have is that the man’s fingerprints were found at the crime scene, but that is easily explained by the fact that Mr. Fiske often met his son at Mr. Sommers’s office. There is absolutely no other evidence linking him to the crime. None.”
“That’s not true,” Salvesen said, now also standing. “He has a strong motive and no alibi.”
Miller was right on cue. “The police don’t know where I was at the time of the murder either. Is there probable cause to arrest me if I had once been in Mr. Sommers’s studio? Because it’s pretty much the same case they have against Mr. Fiske.”
“Careful what you wish for, Mr. Miller,” Judge Martin said with a grin, “but I get your point.”
Wayne could barely breathe. Alex had told him that he thought the judge would likely dismiss the charges, but he cautioned it was a close call.
“Mr. Salvesen, let me ask you this: Is it now the People’s position that the blood at the crime scene was left by Owen Fiske, and not his father?”
“Yes.”
“But you think that father and son might have conspired together to commit this crime?”
“That is a strong possibility.”
“What evidence of this conspiracy do you have?”
“As I stated, there’s motive, there’
s lack of cooperation, there’s lack of an alibi, there are the fingerprints, and there is the DNA, which we believe will prove a match to Owen Fiske.”
“All that tells me is that Mr. Fiske is exercising his constitutional rights and had at one time been in the office of his ex-wife’s husband. I see nothing to support the idea of a conspiracy between the son and the father. The initial arrest warrant was premised on the claim that Mr. Wayne Fiske’s DNA would match the blood at the crime scene. We all now know that is not the case. Therefore, the People have not met the probable-cause standard for an indictment against Wayne Fiske. The indictment is dismissed.”
The air came back into Wayne’s lungs. He was being set free. The only problem was that now his son was the one in harm’s way.
The judge ordered a recess after her ruling, providing time for Wayne to change out of the prison jumpsuit and into the business suit that Jessica had brought for him. Away from watchful eyes, Jessica embraced her ex-husband.
“You ready for round two?” Miller asked.
“No,” Jessica said.
“I understand,” Miller said. “There’s a better shot this time to defeat the warrant than there was before. Owen’s illness provides a hook that wasn’t present when they wanted to get DNA from Wayne. And Lisa will go all out in the cross. So keep the faith just a little while longer.”
When court resumed, Salvesen wasted no time calling Gabriel back to the stand. Just like when they sought Wayne Fiske’s DNA, the prosecutor had decided he was going to let Gabriel do the heavy lifting, which once again suited Gabriel just fine.
The other players had rearranged, however. Whereas before Alex Miller and Wayne Fiske sat at the defense table, their seats were now occupied by Jessica Sommers and Lisa Kaplan. Miller and Fiske were in the gallery.
“Lieutenant Velasquez, please tell Judge Martin the result of the DNA test you administered on Wayne Fiske?”
“It was a partial match.”
“What does that mean?”
