Judge and Jury

by William Bernhardt

  He shrugged. “Whatever. You’re the boss.”

  “Wait,” Drake said, “let me get out my phone. I want to record that. Daniel Pike, showboat lawyer and control freak, says his female co-counsel is the boss.”

  Dan tried not to roll his eyes. “She’s lead counsel. I trust her instincts.”

  “Oh no,” Drake said, fumbling with his phone, “I’m not letting you walk it back. You said she was the boss.”

  Maria smiled. “He meant in bed.”

  That shut him up.

  Dan covered his smile. “You still haven’t made the offer.”

  Drake stumbled to find words. “It’s simple enough. We both walk away. No one takes anything, not on your claims or our counterclaims. No money, no admission of wrongdoing. We just stop the bleeding.”

  “I’m not bleeding,” Dan said. “Are you bleeding, Maria?”

  “Nope. I’m enjoying myself.”

  Drake frowned. “I’m talking about legal fees.”

  “I’m not paying any.”

  “You must provide your lawyer with some form of compensation.”

  Maria smiled again. “In bed.”

  Drake’s lips parted wordlessly.

  Sweeney had been sitting at counsel table acting as if he wasn’t paying attention, but at this point, he turned and addressed his lawyer. “I believe they rejected the offer, Drake. We gave them a chance to salvage themselves and they didn’t want it. So everything that happens from here on out is on their heads. Sit down.”

  Drake started to turn, but Dan stopped him. “Funny that you should be making this offer now, Sweeney.”

  Sweeney rose and approached. “A good citizen tried to resolve disputes. Not exacerbate them.”

  “But why now? And why this nonsense about legal fees? You know this isn’t costing me anything. You, on the other hand, are paying the most expensive law firm in town.” He paused, the wheels in his head turning. “Are your financial problems even greater than I imagined?”

  Drake extended a hand separating Dan and Sweeney. “I think we need to terminate this conversation.”

  “You initiated it, remember, Drake? I’m just finishing it. Why now? Is it money?” He snapped his fingers. “Or what is it you’re afraid we’ll learn?” Everything was clicking at once, and when his instincts kicked into high gear, he couldn’t think fast enough. “I’ve been wondering who rode with Fisher the night he was at the fatal shootout. His partner said he wasn’t there. So who was?” He paused, reading Sweeney’s face. “It was you, wasn’t it?”

  Drake stepped between them. “This conversation is over. Finished. Done.”

  “That’s what you’re worried will come out,” Dan continued. “You were there. I don’t know why, but you were. And a man you needed out of the way was shot. Dead. Subsequently, someone framed my father. I wonder why.”

  “Did you hear what I said?” Drake raised his voice. “This conversation is ended. Do I need to call a bailiff? I can already guarantee I’ll be filing charges with the Disciplinary Committee.”

  Dan took a step away, though he kept his eyes locked on Sweeney’s. “This is all starting to make sense. For the first time in a very long time.”

  * * *

  Sweeney’s defense team first called an expert witness. An unusual move, but Dan was sure they had some reason, probably to knock holes in the plaintiff’s case. For the defense in a civil suit, the whole case was a protracted game of Jenga. Keep pulling out the support blocks, one by one, until eventually the entire tower crashes to the ground.

  Dan knew Dr. Folsom because he had testified when Dan was accused of murder. Early sixties. Mandala pendant. Close-cropped hair. A bit slimmer than the last time he’d seen her.

  At the previous trial, Dr. Deanna Folsom had testified that DNA proved Dan had committed that murder in question, so he already held the woman in contempt before she had spoken a word. If that case had proven anything, not only to him but he hoped everyone else paying attention, it was that DNA was not nearly so conclusive as many people believed it to be.

  Folsom was a forensic scientist, a skin and scalp expert by training, but she had developed a knowledge of DNA evidence and the use of genealogical data to support it. She appeared regularly now in criminal cases, but Dan was willing to bet this was the first time she’d made an appearance in a civil case.

  Caldwell took the lead for the direct examination. In a few minutes, she established Dr. Folsom’s credentials, including that she had previously worked for an online genealogy site called FamilyTree. Folsom discussed several cases in which she had successfully teamed with forensic genealogists to create DNA profiles—including, she emphasized, some stemming from extremely old DNA samples. She then uploaded these profiles into various genealogy databases like CODIS until she found what she wanted. She traced the Y-chromosome DNA of the suspect’s sample to link it to relatives who might have voluntarily submitted genetic information while trying to get a more complete family background. Sometimes that produced results, she explained, but not always.

  “The huge breakthrough,” Folsom explained, was autosomal DNA testing. I first learned about this about two years ago.”

  Caldwell nodded as if she understood every word of this, but many of the jurors looked baffled. “Could you please explain what that is?”

  “Sure. But I can’t take credit. Dr. Colleen Fitzgerald did a lot of the pioneering work in this field. She opened it up for use by law enforcement. Autosomal DNA is inherited from both parents. It’s much more useful from a research standpoint than Y-chromosome DNA, so much so that we barely even use that any more. Autosomal DNA can find your relatives, cousins and cousins of cousins, along every branch of your family tree. If anyone related to you has submitted a sample to one of those genealogy services—we’re going to find you.”

  Caldwell nodded. “Using layman’s terms, can you please explain how this is done?”

  “It’s not a complicated as it sounds. We use the sample found at the scene of the crime. In this case, a skin flake on the murder weapon, which had been carefully preserved by the police all these years. We use that to create a comprehensive DNA profile. I uploaded that to a website called GEDMatch, then started my search.”

  “What is GEDMatch?”

  “It’s an open-source website that lets people upload their raw profiles. They usually get them from 23andMe or similar companies.”

  “I believe you indicated that you used autosomal DNA in the present case?”

  “Yes. I took the sample obtained when Officer Fisher was murdered. When Ethan Pike was tried for the crime, DNA evidence was in its infancy. We can do more with it now than they ever dreamed.”

  “Did you get a match?”

  “Almost immediately. The plaintiff, Daniel Pike, has a DNA sample on file. From when he was arrested not long ago on a charge of murder. No question about it. The person who pulled the trigger on Fisher was very closely related to the plaintiff.”

  Dan saw the jurors turning, looking at one another, nodding.

  “Did you do any other work on autosomal DNA relevant to this case, Dr. Folsom?”

  “Yes. I used a new technique called phenotyping.”

  “What is that exactly?”

  “It’s a process by which we can actually determine what a person looks or looked like based upon their DNA.”

  “That’s amazing.”

  “Agreed. But scientists have created composite images based upon DNA information that is so accurate it has led to the apprehension of many criminals.”

  “Accused,” Dan muttered under his breath.

  Folsom continued. “This process was created by a company called Parabon Nanolabs. I contacted them and asked them to run the sample obtained from the murder weapon that killed Fisher. They created some amazing composite images.”

  “May we see them?”

  “Of course.” Caldwell activated the television monitor behind the witness’s head. “This first image,” Folsom explained, “
is an actual photograph of Ethan Pike taken shortly before his arrest on murder charges. This was taken for the police department directory. As you can see, he’s in uniform.”

  An image appeared on the screen—thick brown hair, square jaw, slight smile. Gazing at the illuminated photo on the big screen, Dan was struck by how much it was like gazing into a mirror.

  “And now,” Folsom continued, “let me show you the composite image created from the autosomal DNA courtesy of Parabon.”

  A new image appeared, sharing the screen with the original photo.

  The similarity was uncanny. These could be photos of brothers. In fact, Dan mused, they could be photos of twins. They were not identical. But close enough to support a positive identification.

  “So you see,” Folsom said, “there’s no question about this. Yes, we aged the composite image to be the same age Ethan Pike was when the first photo was taken. But there’s no serious doubt here. That DNA sample on the gun came from Ethan Pike. The defendant’s father.”

  Caldwell smiled and sat down.

  Dan leaned close to Maria and whispered. “I’m not sure there’s any reason to cross.”

  “There is,” she said, pushing herself to her feet. “Though I may live to regret it.” She walked toward the witness stand and stood a few feet away, in full view of the judge and jury.

  “Dr. Folsom, did you obtain the permission of the people whose genetic material you surveyed?”

  Folsom titled her head slightly. “I’m not sure what you mean. I obtained permission from GEDMatch.”

  “I’m asking about all those people who submitted their genetic material. Kids who gave grandpa a kit for Father’s Day so he could read about his German-Russian ancestors and such. Do you think they ever imagined this information could be used against others? Like the other members of their family?”

  “If they committed a crime—”

  “So in your 1984 future, someone could be nabbed for trespassing because a remote relative submitted a DNA sample for completely different purposes.”

  “I don’t know that—”

  “These companies make it sound like this is all just good fun. A curiosity. They don’t inform customers that you and your associates are assembling a huge database and releasing their genetic makeup to the entire world. Including law enforcement.”

  “Objection,” Caldwell said. “This is not relevant.”

  “I think it is,” Maria responded. “This evidence raises huge privacy issues. And if it was collected in violation of the privacy protections inherent in the US Constitution, the evidence should be excluded.”

  “This is a smokescreen,” Caldwell said. “It’s obvious why the plaintiff wants to exclude this evidence. It proves beyond question that the plaintiff’s father is a murderer.”

  “Not true,” Maria shot back. “But I am concerned about the precedent we might be setting if the court allows this evidence. This is a case of first impression here in Pinellas County. The court’s ruling could have major ramifications. Imagine a world where anyone can upload your personal DNA profile to this GEDMatch database and that information can be accessed and used by anyone who wants to do so. For any reason they want to do so.”

  “I hear what you’re saying,” Judge Fernandez replied. “But I have to agree with the objection. This is terrifying, but not relevant.”

  Maria frowned and proceeded. “Dr. Folsom, you seem certain your evidence has proven who killed Officer Fisher.”

  “There’s not the slightest doubt in my mind.”

  “I heard you testify on a previous occasion. When my client was falsely accused. You recall that?”

  “Yes...”

  “I believe on that occasion you also testified that the DNA evidence proved with absolute certainty that my client had committed murder. Except, as you surely know by now—he didn’t.”

  “I heard there were some questions—”

  “The actual murderer admitted his guilt on the witness stand.”

  “But my DNA analysis was 100% correct,” Folsom said. “The problem was that the scalp flakes were planted at the crime scene.”

  “Indeed. And isn’t it just as possible that a skin flake was planted on the murder weapon in the case we’re discussing today?”

  “Objection,” Caldwell said. “This is ridiculous. And desperate. The Fisher murder occurred more than twenty years ago. How could the witness possibly know the answer to this question?”

  “I asked her if it was possible,” Maria clarified. “Based upon her expertise.”

  “Then I object because it calls for speculation.”

  “Dr. Folsom is an expert witness, as my esteemed colleague went into great detail to explain. As such, she’s entitled to offer an opinion based upon her expertise.”

  Judge Fitzgerald nodded. “I have to give this one to the plaintiff. The witness may respond.”

  Maria repeated the question. “Is it scientifically possible that the DNA evidence could have been planted on the gun?”

  “It’s...certainly possible. Though—”

  “And you would still get the same match and the same composite image. It just wouldn’t be an image of the murderer. It would be the image of an innocent man who was framed. Right?”

  “It’s...remotely possible.”

  “Possible and, as the judge says, terrifying. Since this could potentially happen in every case, every time a DNA sample matches someone who foolishly sent their genetic material to a public database, never dreaming it could be used against them or someone they love.” She closed her notebook. “No more questions.”

  Chapter 29

  Dan stared at the sockless man in the black Nirvana t-shirt that looked as if it hadn’t been washed in weeks. Possibly ever. He wore a tattered bandana across his forehead and both sneakers had holes at the toes. He stood before a three-foot stretch of concrete tunnel decorated with debris, mostly trash discarded by travelers and tourists whizzing overhead.

  It wasn’t much, but he called it home.

  Dan had deliberately dressed down for the occasion, wearing only an untucked Polo, jeans, and of course, his Air Jordans. He still felt overdressed.

  “I’m looking for someone,” Dan explained.

  “Haven’t seen him,” the man replied, not looking up. He appeared to be occupied with something, but Dan couldn’t tell what. Whittling, perhaps? His movements were so slow and deliberate it was hard to imagine he would ever finish anything. Perhaps that was the point. He had a lot of time on his hands.

  “It’s a woman, actually. Maybe a few years older than me.”

  “Haven’t seen her.”

  Dan frowned. “Look, I’m not a cop.”

  “You look like one.”

  “I’m not. I’m a lawyer.”

  The man almost smiled. “You gonna sue me for everything I’m worth?”

  At least he hadn’t lost his sense of humor. “I don’t want to cause anyone any harm. In fact, if I can find her, I think I could do her a lot of good.”

  “Like what? You chasin’ tail?”

  “What? No! Why would you even think that?”

  “Lot of guys do. They come down thinking, them homeless gals’ll be easy. They’ll do it for a buck, probably.”

  “I can assure you that’s not why I’m here.” In for a penny... “I’m looking for my...sister.”

  “Oh.” Nirvana Man put down his whittling stick. “One of them deals.”

  “What’s that?”

  “Chasing down the prodigal daughter. Gonna stick her in a home or something.”

  “Wouldn’t that be an improvement?”

  “In some cases, family is why people are here. What they’re running away from. Mix bad family and bad drug habit and...” He glanced over his shoulder. “You get what you’re looking at now.”

  When Garrett first gave him this location, he didn’t believe it. He’d read about people living in underground tunnels in Las Vegas, or even San Antonio—but here? These weren’t
really even tunnels. Underpasses. Flood channels, which were increasing unsafe places to be as the climate warmed unpredictably. For that matter, a heavy rainstorm could send water rushing through these tunnels at thirty miles an hour.

  Whether the channels flooded or not, these underground tunnels had to be the worst place anyone could live. This man was the fourteenth person he’d spoken to since he arrived, and the backstories he heard, the patterns he detected, were distressingly similar. Veterans. Addicts. Black sheep. He found a chain of dark passages that comprised a huge drainage network that had apparently been adopted by the homeless community. During the day, many of them travelled to the streets to beg for cash or table scraps, but this is where they slept. This is where they lived.

  There were dozens of them. He hadn’t counted, but he thought he’d seen close to a hundred so far tonight. More men than women, but both. What he found particularly distressing was how young many were. In their thirties, maybe. They couldn’t all be drug addicts—they couldn’t afford it, at least not any more. They couldn’t all be war vets. What caused this hideous phenomenon?

  He seen two social workers here too, a young husband-and-wife team in their twenties, trying their best to care for people who either couldn’t or didn’t want to care for themselves. They were distributing socks and sandwiches and armbands with an emergency contact phone number. Most took the socks, some took the sandwiches, and almost no one took the wristband.

  He’d seen a police officer too, which probably explained why many of the residents were skittish about talking to him. The cop was trying to get them to move out because a big rain was predicted, but few listened.

  “Some of these people just don’t want to leave,” the officer said. Maybe, but Dan suspected there was more to it than that. They didn’t know where else to go. They didn’t want to be dependent or beholden to others.

  He continued walking through the tunnels. A few minutes later, he heard someone trying to get his attention. “Psst. Mister?”