by Adam Mitzner
He was frankly surprised that no one else knew that. Apparently, neither his parents nor the NYPD were as devoted to googling “AML allogeneic hematopoietic cells transplantation” as he was. If they had been, they would have learned that in these types of transplants, the donor cells mix with the host’s cells to create two separate sets of DNA.
Which was why, although the blood that Owen spilled when he punched James in the mouth was 100 percent his, it did not match the DNA in the blood sample the NYPD had taken from him following the stem cell transplant.
After his mother confronted him about what James’s crazy stalker of an ex-wife told her at the funeral—that she’d seen Owen entering and leaving James’s office at the time of the murder—he’d lied straight to his mother’s face. Given all the lies his parents had told him over the past few years, Owen didn’t feel too guilty about returning the favor. Besides, what choice did he have? He wasn’t about to confess to what had actually happened. He couldn’t. Sometimes not even to himself.
“Haley’s lying,” he’d said. “You know that’s what she does, Mom. She tries to get you all worked up by telling you whatever she thinks is what you’re most afraid about.”
He told his father the same thing a few days later. “I was hanging with friends after school, Dad, and then I came straight to your house.”
His father had believed him. He could be counted on to accept whatever Owen said, without fail. If Owen had tried to peddle his old man a story that Martians had come to earth and shape-shifted into his body, and that’s whom Haley had seen enter James’s office, his father would have accepted it, no questions asked.
His mother, however, was not so gullible. She said she believed him, but Owen knew otherwise. She could always see through him.
His lie held up for a while. In fact, he thought it might carry the day. He hadn’t considered that the police would be able to trace the DNA to him.
The day after his father was arrested—before his father had even provided his own DNA sample to the police—his mother had come to the hospital and told Owen that she had something important to discuss. He knew before she said a word that the jig was up.
Nevertheless, when she explained that DNA found at the crime scene matched his father’s family, Owen initially held tight to his lie.
“What does that mean?” he had said.
His mother looked at him with disappointment.
“Your father didn’t kill James,” she said. “But someone who shares DNA with him did. I think you know what that means.”
Jessica would never forget the second time she confronted Owen about his role in James’s murder. The first time was after the funeral, when he flat-out denied Haley’s claim that he had been inside James’s office on the day he was killed. She wasn’t sure what to believe then, but even the remote possibility that Haley was telling the truth and Owen was lying was enough for her to change her tack with the police and convince Wayne to do likewise.
She was content to let Owen’s denial stand unchallenged until the police obtained her son’s DNA. But once they had, she needed for Owen to tell her the truth before the science left no doubt that her son had been lying to her.
Yet when she confronted him, Owen didn’t initially react. She had just accused him of murdering his stepfather, and he remained silent.
His refusal to admit what he’d done overwhelmed her, and she began to cry. But now was not the time for her to break down. She needed to get the truth. To understand what had happened to lead her son to kill her husband.
Jessica steadied herself and told Owen that nothing he said would stop her and Wayne from loving him, and from doing everything they could to keep him out of jail. But she thought that the least he could do was tell her what happened. She hoped that by her tone, he realized that she expected to hear the truth.
This time, Owen got the message. After taking a moment to collect himself, he began to explain.
“I heard James talking to that Allison lady on his phone that morning,” he said, speaking softly but deliberately, as if he’d fully thought through the sequence of events he was describing. “He said he was meeting her at four that day, and it sounded like they weren’t just friends or whatever. He said he loved her. So, after school, I went to his office. I was just going to tell him to stop it. I swear to God. That’s all I was going to do. Just make him stop cheating on you. But when I got there, the lady was leaving. I passed her at the door, and I was sure it was her because, you know, she was short-haired and skinny, the way that guy who called you said. When I went inside, James was in the shower. I could tell that he’d just finished having sex with her. The sheets were all smelly . . .”
Owen was crying now. Sobbing between words. Jessica didn’t attempt to console him. She didn’t want to do anything that would stop his confession.
“I was so angry . . . It felt like every bad thing that had ever happened to me—getting sick, you and Dad getting divorced, everything—just built up in me all at once. I started yelling at him, cursing at him, actually. He kept saying I didn’t understand, but I kept screaming at him that I did understand. That I had seen this all happen before, and I wasn’t going to let him do this to you. To us. Not again.
“I was going to leave. I actually started running for the door. He followed me out into the living room and grabbed me.”
“Was that when you hit him?” she asked, knowing there could be only one answer coming.
“I don’t even remember it. I must have, but . . .”
Owen shut his eyes and stopped for a long moment.
“The next thing I remember was that blood was pouring out of him. I pulled him away from the table, like that would help, and . . .”
Owen stopped. Jessica didn’t say anything in case there was more he wanted to say.
The sobbing consumed him now. Fighting every motherly instinct she possessed, she prodded him for more. “Then what did you do?”
“I knew he was dead. I just knew. I swear, if I thought I could have saved him, I would have called 911. But there was nothing I could have done, so I ran out of there. I went to the park. I don’t know why. Just somewhere to be by myself. I sat there for . . . I’m not sure how long. I remember it was cold out, but I didn’t feel cold. No one else was in the park. When it started getting dark, I went to Dad’s.”
He looked like he wanted to be held. Her seventeen-year-old son, who had rebuffed virtually all physical intimacy from her for the past few years, wanted to hug his mommy. And in yet another of life’s great ironies, it was the last thing Jessica wanted in that moment.
“Owen, you could not be more wrong,” she finally said. “About everything you just said. James was not having an affair. The woman you saw, the woman who called James that morning, Allison? She was an FBI agent. She was investigating James, not sleeping with him. The sheets smelled the way they did because I was with James the day before. Remember? After we had the doctor’s appointment? You went to lunch with Dad, but I didn’t go because I said I was meeting James.”
Owen’s eyes were as big as saucers. Jessica had spent a lifetime trying to protect her son. Now she watched as the magnitude of his mistake began to take hold.
“James died for nothing,” she said evenly. “He was the love of my life, and he died for no reason at all.”
29
Gabriel was sitting in Captain Tomlinson’s office with Asra. They were joined by ADA Joe Salvesen, who had called the meeting. The purpose was to tell them that he wasn’t going to indict Owen Fiske.
After Salvesen had walked them through all the difficulties in the case, Gabriel said, “It doesn’t matter that the DNA isn’t a match. We know the blood at the scene came from the boy.”
“I know you do,” Salvesen said. “And if we took this case to trial, we could put on a medical expert to explain how the boy’s DNA changed because of the treatment. But juries hear ‘match’ or ‘no match.’ And once they hear ‘no match,’ the reasons don’t matter. H
e’s not a match to the DNA at the crime scene. That’s the reality.”
“But he’s the only one who possibly could be,” Asra said. “We know that it came from a blood relative of Howard Fiske. And we know it’s not Wayne Fiske. That leaves only Owen. And we know the reason why the DNA doesn’t match. That’s virtually the same as a match.”
“Let’s not drink our own Kool-Aid here,” Salvesen said. “At each step, the defense is going to have a field day. All the DNA evidence stands or falls on the fact that Howard Fiske is a blood relative to the person who left blood at the crime scene. But that may not even be right.”
Gabriel was a bit surprised at how much better prepared Salvesen was for this meeting than he had been for court. But it made sense that the ADA would spend his time getting out of work rather than creating it for himself. It would probably be another decade before Salvesen pulled a murder case against someone with a privately retained lawyer who would fight him at every turn, so he was working hard to secure a future of nine-to-five workdays going up against public defenders that would likely carry him to retirement.
“That’s what the website told us,” Asra said.
“Oh, the infallible website,” Salvesen said. “Can you imagine what it’s going to be like to have a representative of a genealogy website on the stand explaining their process? You think they’re going to say they never make mistakes? Acknowledging even one mistake is reasonable doubt, right there.”
“C’mon, Joe,” Gabriel said. “Do you really think they’ll claim they made a mistake that just happened to give a false positive of some guy in Oregon who just happens to be related to the stepson of a murder victim?”
“Okay, okay. Let’s assume for the sake of argument that we convince the jury beyond any reasonable doubt that the blood at the crime scene was left by Owen Fiske. Where does that leave us? Now we have evidence that the man’s stepson was in his place of business. No surprise there. You have evidence that he left some blood. That he scraped a knuckle. He’s a teenager. When my boy was Owen’s age, he was bleeding everywhere all the time. A regular Chuck Wepner.”
“Who?” Asra asked.
“He was a boxer in the seventies,” Salvesen said. “The Bayonne Bleeder, they called him. Knocked down Ali. But my point is that the defense will say he could have had a bloody nose that morning when he visited his stepfather before school. Or even after school, before the FBI agent brought James Sommers back to his office. So the blood doesn’t really move the needle that much. It’s not like the murderer had to leave blood at all. In fact, it’s perfectly possible that the murderer didn’t leave his own blood at the scene.”
“The ME will say he did,” Asra argued. “And the scratch on Owen’s hand is exactly where Erica Thompson said it’d be if he’d punched James Sommers in the jaw.”
“The scratches could be from anything. And could have occurred days before or after the murder. On top of which, I spoke with the ME. The best she can say is that the killer might have cut his hand with the punch. That’s not did. In fact, to a jury true to the reasonable-doubt standard, it’s probably didn’t.”
Gabriel caught Asra’s eye. He had little doubt that she was thinking exactly what he was at this point—that Joe Salvesen’s picture should be next to the word coward in the dictionary.
“And let’s not forget that even if everything broke our way at trial, a conviction is going to be difficult because of the crazy ex-wife,” Salvesen continued. “The trial will be all about Haley Sommers. And she’s about as unsympathetic to a jury as a witness could possibly be. She’s a goddamn investment banker turned stalker. She had a restraining order out against her. She crashed their anniversary party. Just think about that for a second. The defense will call fifty witnesses to testify to the fact that this crazy lady snuck into James Sommers’s home—even though she was legally prohibited from doing so—for the sole purpose of calling him out in front of his friends. Who does that? Not only that, but they’ll also be able to place her at the crime scene. Or at least in the restaurant next door. She has no business being there. And she’s there a lot. And then there’s the voice mail. That’s the nail in the coffin. You heard what it sounded like when it was just read it in court. At trial, they’ll play the recording for the jury. Over and over again. They’ll have Haley go through what she was thinking when she left it, ask her to explain why she chose each and every word. You ever hear someone try to explain to a jury that they’re not crazy when they’ve left a paper trail that only a psycho could create? It’s not pretty, believe me. So, when all is said and done, with the evidence you have, our absolute best-case scenario is to give the jury a choice between convicting a kid with cancer or a woman who acts like Fatal Attraction’s batshit sister.”
It was all too clear to Gabriel by now that nothing he or Asra said, or even the pressure from their captain, would cause Salvesen to grow a pair. And certainly not following a long balls-free career that had served the ADA just fine.
That night, for the first time in nearly two weeks, Gabriel came home before dinner. He hadn’t called to alert Ella, wanting to see the surprise on her face when he walked through the door.
He wasn’t disappointed.
Ella literally ran to the front door to greet him. After a long embrace, she asked, “Did you go over the wall to escape?”
He laughed. “No, the case is over.”
“Congratulations,” she said, clearly assuming that it had ended with an arrest.
“No. Like you’d say, we came in second.”
“Salvesen too scared to take on Alex Miller?”
“That was the subtext. What he actually said was that we should wait for the boy to confess or for his parents to turn on him.”
“Yeah, those are some sound prosecutorial tactics,” she said with a laugh. Then: “You okay?”
“Hard to lose sleep over not putting a teenager with leukemia in jail for something that probably was more of an accident than a premeditated crime. Especially when there’s no family demanding justice.”
“So maybe you came in first, after all.”
Gabriel made his way to Annie’s crib. She was staring up at him, chewing on a rubber pretzel she held in her hand. When she caught sight of her father, Gabriel could have sworn his daughter smiled.
“Sure did,” he said.
Alex Miller told Wayne that no arrest would be forthcoming. “Of course, that could change,” the lawyer said. “New evidence could be found, or a new DA comes in and he or she decides to go for it. But usually that doesn’t happen. If they don’t think they have a strong enough case to take to trial now, time rarely improves the situation.”
“What if Haley tells them what she saw?” Wayne asked.
This had always been Wayne’s fear. There was an eyewitness, after all. She had seen Owen enter James’s building, then flee the crime scene with blood on his hands.
The cops still didn’t know about that. And for all Wayne knew, James’s death hadn’t soothed Haley’s desire to ruin Jessica’s life. If anything, it might have exacerbated it.
“I really don’t see that making much of a difference at this point,” Alex said. “Don’t get me wrong—it would not be a positive development, but the police would still be left in the same spot. At trial, it’ll be a choice between her or Owen. Most people are much more apt to believe that a woman who has threatened her ex-husband is a murderer ahead of a teenage stepson. Especially a sick one. Besides, Haley Sommers strikes me as pretty smart and having a heightened self-preservation instinct. The status quo suits her just fine. And I suspect now, with James gone, her thirst for revenge has probably lessened. I don’t see anything in it for her to reach out to the police.”
Wayne knew that it was unseemly for him to be so pleased at the prospect that his son was getting away with murder. Even if that someone was James Sommers. And even if Owen never intended for James to die, as Jessica had explained was the case based on Owen’s confession to her.
Never
theless, what he’d always told Owen was true—the love a parent feels for a child is unconditional. With his treatment seemingly a success, Owen had a long life ahead of him now, and the last thing Wayne wanted was for his son to spend a moment of it behind bars.
He also couldn’t deny that he was happy that James was gone. He would have preferred that Jessica left James, rather than the man dying, but what Wayne really wanted was a chance to get his family back. How that opportunity came about was far less important.
He’d have to proceed slowly with Jessica. She was still grieving, after all. But he knew how much she feared being alone, and she wasn’t getting any younger. She’d come back to him in the end. He knew she would.
When Jessica told Owen that the police had effectively closed the case, her son displayed no emotion whatsoever. He barely reacted to the news at all.
“This makes your father and me very happy,” she told him. “It should make you happy too, Owen.”
“Why?” he said in a defiant voice.
“Because it means you’re going to get to live your life. Go to college. Get a job. Get married, if you want. Have a family of your own someday. I know that you’re going to have to live with what happened for the rest of your life, but there’s no reason that you have to suffer for the next . . . seventy years.”
“But shouldn’t I? Suffer, I mean. What I did was the worst thing that someone could do to someone else. I deserve to suffer.”
Jessica thought about how many times over the past four years she’d feared this day would never come. Now that she’d finally get to see Owen graduate from high school, her pride in his accomplishment was inseparable from her guilt.
It had been less than three months since Alex Miller had told her that he thought Owen was out of criminal jeopardy. Ironically enough, Owen’s escape from prosecution reminded her of his medical status—how Dr. Cammerman had told her that Owen’s cancer was “in remission,” but that he couldn’t guarantee that would always be the case.
