Injustice (32 page)

“We're off the record,” the judge says, “so please spare me any speeches. Here's the issue: I've already ruled that Mr. Tatlock's juvenile record, which has been expunged according to law, is not admissible at trial. So we need to resolve how the prosecution should make reference to Henry Tatlock's DNA being present in the database of violent offenders. My own preference is that we make no reference to a database at all. The prosecution witness merely testifies that the crime scene DNA matches Mr. Tatlock's DNA. Period. Paragraph. Does that work for you, Mr. Nations?”

“No, Judge,” Gregory says. “It waters down the authority of the science and undermines the very conclusions of Dr. Farquar's findings, and therefore it egregiously—”

“Counselor,” the judge interrupts, “did you hear me a moment ago when I said no speeches?”

“Yes, Judge, it's just that—”

“It's just that you're still trying to get the defendant's expunged juvenile conviction before this jury, and I'm telling you, counselor, that ship has sailed. Now, Ms. Brill, what do you have to say?”

Monica stands up. “I have—”

“Sit down,” the judge says, “we're just chatting here.”

Monica sits. “Sure, fine,” she says. “I have no objection to your proposal, except for one thing.”

“And that would be?”

“I'm moving to have any reference to my client's DNA, and thus
the identification of him as a suspect in this case, excluded from trial as violative of the Fourth Amendment to the U.S. constitution and—”

“Oh, Christ,” Gregory says.

“And your grounds, Ms. Brill?” the judge asks.

“Under the law, once Henry's juvenile record was expunged, his DNA should have been removed from the CODIS database of violent offenders. This provision was implied by law and expressly stated in his plea agreement on that conviction.”

Gregory is on his feet: “Your Honor, that's—”

“Sit down, Mr. Nations.”

Gregory sits but rants about the ridiculousness of the motion. He is enraged. I sit there trying to mentally pick out the flaws in Monica's argument. I can't find one. If Monica is right—if, under the law, Henry's DNA profile shouldn't even be in that database, then the state's whole case against Henry is faulty. He would go free, in which case I'm sure he'd move away where nobody knows him, becoming more cunning and insidious as he perpetrates a hideous career of murder and abasement against the children of whatever country and continent he chooses.

I'm on my feet. “It's bullshit!” I yell.

Monica, Gregory, and Henry all swivel in their seats. I hear the gavel smack the bench, and I see the judge's pinched smile. “Mr. Davis,” he says placidly, “maybe you missed it when I told everyone to stay seated. So sit down and shut up. Okay?”

I sit. I'm breathing hard, and I feel how red my face is—with fury, not embarrassment. I collect myself a moment, then I say, “I'm sorry, Your Honor.”

“No, don't speak. Nod for yes. Shake for no. Can you keep your ass in the chair and your piehole shut?”

I nod.

“Excellent,” he says. “Now, let me tell you all what's going to happen here. First I'm going to call the clerk and court reporter back in, and Ms. Brill is going to put her motion to suppress DNA evidence on the record. Then Mr. Nations is going to oppose the motion on the record. Then I'm going to deny the motion, and this trial will
resume. Mr. Nations and his witnesses will say that the defendant's DNA was found at the crime scene, blah blah blah, Henry Tatlock's juvenile offense will not be referred to, and the jury will draw their own conclusions. Understood?”

We all nod, except for Henry, who shows no sign of having heard any of it.

Trial resumes. Farquar returns to the witness box.

MR. NATIONS:
Tell me how closely the DNA sample taken directly from the defendant matched the DNA recovered from among the victim's remains.

DR. FARQUAR:
It matched perfectly.

MR. NATIONS:
So you're saying there is a probability of approximately one hundred fifty billion to one that it is this defendant's DNA.

DR. FARQUAR:
Correct.

Gregory finishes with Farquar. Monica stands. “Just to be clear, Dr. Farquar, how did you obtain these DNA samples you tested?”

“They were given to me by—”

“They were given to you?”

“Yes, by—”

“So you didn't recover them yourself?”

“No, the way this works is—”

“That's okay, Doctor, no need to go into all that. But tell me, to the best of your understanding, the hairs and semen stains that you have linked to Mr. Tatlock, these were collected from items recovered at Kyle Runion's burial site. Is that right?”

DR. FARQUAR:
Yes.

MS. BRILL:
And is it scientifically possible, Doctor, that the semen you attribute to Henry Tatlock could have been found someplace else and, I don't know, maybe rehydrated or something and introduced into the evidence you tested?

DR. FARQUAR:
Well, that's kind of far-fetched.

MS. BRILL:
I'm sorry, Doctor, I thought you were a scientist.

DR. FARQUAR:
I am a scientist.

MS. BRILL:
Then please give me an answer based in science and not your opinion of whether someone wants my client to appear guilty of something he didn't do.

Farquar and Monica glower at each other. He isn't used to being slapped down like that. He looks to Gregory for help but doesn't get any.

DR. FARQUAR:
Well . . .

MS. BRILL:
It's a simple question, Doctor. Could the sheet and underclothes you tested have been contaminated, intentionally or not, with Henry Tatlock's DNA after they were removed from the crime scene?

DR. FARQUAR:
Yes. It's possible.

MS. BRILL:
Is it also possible that semen stains from, let's say, Mr. Tatlock's own underclothes or bedsheets could have been rehydrated and introduced as the source of DNA found among Kyle Runion's remains?

DR. FARQUAR:
Yes, technically, I suppose.

MS. BRILL:
Correct me if I'm wrong: You were given evidence to test for DNA, but whether that DNA has anything to do with the crime is not your bailiwick. You rely on others for that. Correct?

DR. FARQUAR:
But standard procedure—

MS. BRILL:
Standard procedure, Doctor, involves actions you never see undertaken by people you never meet. Is that correct?

DR. FARQUAR:
Well, technically, but—

MS. BRILL:
That's fine, Doctor. We all understand you tested Mr. Tatlock's DNA and found it to be Mr. Tatlock's DNA. I have nothing further.

Monica has something in mind. There are only a few ways to defend against DNA evidence. Either you argue that the laboratory made an error (usually a losing strategy) or that the defendant, despite astronomical odds against it, happens to have the same DNA profile as the perpetrator (always a losing strategy), or you make a case that someplace in the process, the evidence was somehow contaminated with DNA from an innocent party. Monica is obviously basing her defense on this third scenario.

M
orning. Gregory Nations plans to call several witnesses to establish chain of custody for the evidence. This is what Monica was harassing the poor scientist about yesterday. From the overgrown field where Arthur Cunningham found Kyle's body, crime scene techs collected the evidence, transported it to the evidence room at headquarters, and logged it in. According to protocol, there should be a record of every time it was moved or handled.

This isn't usually an issue at trial, but since it looks like Monica is planning to attack the chain of custody, Gregory wants to call a witness or two who can head her off. They'll testify that, according to records, the evidence spent about five and a half years in the state evidence room without being disturbed. It was then transported by agents to the FBI for their wide-ranging investigation into abductions with MOs similar to the one in Kyle Runion's case. The Bureau's intended investigation was never pursued, and the evidence languished another couple of years. After Judge Matsuko granted Tina's petition for production of evidence in the Daryl Devaney case, it was retrieved from the Bureau by detectives and submitted for analysis at the state crime lab. Every step has been documented.

I don't go to court for this chain-of-custody stuff. Instead, I go to another meeting about the Subsurface probe over at the Bureau. I get there just as the meeting is starting. Isler seems to be running things today. “We still haven't figured out where that five million went,” he says.

“What five million?” I ask.

My question makes them all uncomfortable. Nobody wants to point out that I've been AWOL for the past week or two. I found
updates from Isler and Upton on my desk when I got back from San Francisco, but I haven't read them yet.

Upton steps into the silence. “When you were gone, boss, Special Agent Isler updated us on the forensic accounting of both Subsurface's books and Bud Billman's personal finances. Between the two, there's about five point two million unaccounted for.”

“Lots of money,” I say. “Are there any hints where it might be?”

“I was getting to that,” Isler says. “From the raw numbers, just looking at the books, no, nothing points anywhere. So I thought we should kick it around. Come up with some theories.”

“Great idea. Let's have theories,” I say in a stupid attempt to sound on the ball. Because not only have I been out of town and not reading my messages, but even at this moment I'm way more focused on Henry's trial than on Subsurface. I'm trying to appear present while the cogs and gears labor to bring me back.

“Yeah, well,” Isler says.

I tip back in my chair and stare up through the skylight. Nice day. Puffy clouds, blue sky.

“. . . Jimmy Mailing,” Chip says, “and if he—”

“Excuse me,” I say. “What about Mailing?”

“I think it's a no-brainer,” Chip says. “Mailing was Subsurface's fixer. Mailing knew where the bodies were buried. He probably buried a lot of them himself. Then Mailing gets killed. Now we discover Subsurface and/or Billman diverted five million to who knows where. So do we think maybe Mailing knew a little too much?”

“Yes,” Isler says. “Either he knew too much, or maybe there was an ownership dispute over the five mil.”

“Have we looked through Mailing's finances?” I ask.

Again, this brings things to a momentary halt. Maybe they talked about this while I was admiring the sky.

Upton to the rescue again: “Isler and his guys did a quick look after he was murdered, but they're planning another look with combs of a finer tooth.”

“Superb idea,” I say, trying to use energy and enthusiasm to give the impression I'm engaged and up to speed. I feel ridiculous, and
I resolve to go back to my office, read all the messages and reports piled up there, and try to reenter the loop with more momentum.

We adjourn. I walk back to my office alone. Finally, when I'm out in the open air with my legs moving, the idea of Subsurface catches wind in my mind again. I remember Voss, the Subsurface VP for governmental relations, telling the grand jury that the proposed tax legislation would cost the industry hundreds of millions. I know that Subsurface, Inc., lives or dies on the financial well-being of the whole industry, and while the piddly bribes paid to Calvin Dunbar and his ilk were easily folded into the accounting of a business the size of Subsurface, five point two mil kind of sticks out.

Obviously, somebody over at Subsurface was paying somebody to do something. And the two guys most likely to have been involved, Billman and Mailing, are dead.

My Volvo wagon is in the shop. It keeps overheating, and the mechanic I spoke with on the phone made the armchair diagnosis of a blown head gasket. So I'm sans Volvo for the next week or two. Kenny had a Toyota pickup that rides high off the ground and has shiny chrome bumpers and knobby tires. Flora and I offered to sell it for him when he went to prison, but he declined. I think it represents something to him: the promise of getting out and picking up his life where he left it. So I parked it out behind Flora's garage, and we keep it under a tarp. Flora, Lizzy, and I use it anytime we need a truck, and we deposit a few bucks into an account for Kenny each time we take it out.

Chip picks me up at my office after work. “How was Frisco?” he asks as we weave through town toward the highway.

“I think it was great,” I say. “But I've been back three days, and with this trial and the Subsurface thing, who can remember that long ago?”

“That's like me,” he says. “I've got a good memory, it just doesn't last very long.”