Death Dance (29 page)

"That's absurd, your honor," I said, standing to address
McFarland. "It happens every day without police coercion. Thousands of
people all over the country volunteer to submit samples to exclude
themselves during investigations of violent crime, to help the police
in homicides or assaults involving family and friends, strangers
who—"

She motioned me to sit down. "You'll have an opportunity to
respond, Ms. Cooper."

"Thank you, judge. I envy you, on behalf of all my colleagues
at Legal Aid. At least one of us has the power to quiet my adversary
with the wave of a hand. May I go on?"

"Certainly, Mr. Abramson."

"There is absolutely no legal authority for the existence of
these records in the linkage database. Ms. Cooper's efforts to use Mr.
Carido's profile—which should have been expunged from that
computer system months ago—violates his Fourth Amendment
freedom from unreasonable search and seizure and his Fourteenth
Amendment right of bodily autonomy and informational privacy."

And clearly violates what Mike liked to call Ron Abramson's
Twenty-sixth Amendment right to be a pompous ass.

"I take it that Mr. Carido was a suspect in some investigation
or other several months back, is that right?"

"Yes, judge. But never charged."

"With murder," I said from my seat. "He's still a suspect in
an unsolved murder. We're not talking about a minor crime with a
statute of limitations. We're talking about a rape-homicide that's
still an open case."

McFarland gave me her sternest look. "You'll get your chance,
Alex. Mr. Abramson, were you Mr. Carido's lawyer in that matter?"

"No, ma'am. One of the young women I supervised was the
attorney of record."

"And did she make a motion to expunge Carido's profile from
the database?"

I shook my head in the negative while Abramson searched his
file.

"Did she?"

"I'm looking, your honor. I can't find any record of that. But
beyond that point, the legislature only authorizes disclosure of the
DNA match in the particular criminal proceeding for which the
biological sample was obtained. The prosecution wants to turn that
legal provision on its head and open the floodgates, keep all the
exclusionary samples and just test them whenever it strikes their
fancy."

Abramson was circling his arms in the air for emphasis now,
looking more like someone doing the backstroke than an attorney making
a argument in a court of law.

"So your concern here, if I understand you—"

"Is my client's privacy rights, Judge McFarland. Ramon
Carido's DNA profile contains an extraordinary amount of personal
information about him. It carries the entire physical component of his
being, and this unregulated and discretionary attempt to use it by Ms.
Cooper and the NYPD is completely improper and inappropriate."

"Are you done, Mr. Abramson?"

Ron did the obligatory one-hundred-eighty-degree scoping of
the courtroom before he sat down at counsel table, hoping that
some—one other than the three remaining-to-be-sentenced perps
had witnessed his Clarence Darrow moment. "Yes, your honor."

"I'll hear you on this, Ms. Cooper."

"Thank you. Just to make this clear at the outset, judge, Mr.
Carido voluntarily provided the DNA sample at issue here. At no point
in the earlier investigation did he assert any claim that the
preparation of the swab violated his constitutional rights."

Abramson stared at the mural behind McFarland's head.

"The use of a linkage database is an essential part of the
investigative process that begins when evidence is submitted by local
police for DNA analysis. In almost every matter in which the identity
of the perpetrator is unknown to witnesses or detectives, the attempt
to gather biological samples for comparison—and significantly
for exclusion—is as critical a step as trying to compare the
material to that of convicted offenders."

"How about the privacy issue?"

"Neither the police nor FBI nor prosecutors have access to the
linkage database. It's the tool the serologists use to try to match
evidence to unknown assailants. There's no dissemination of information
to law enforcement agencies unless or until there's a hit."

"Why don't you address Mr. Abramson's argument about Carido's
DNA profile? Is your point that once he gave his sample to the police,
it remains in the database indefinitely?"

"I don't have to go that far, judge. The matter in which
Carido gave a buccal swab is still an active and open investigation. He
hasn't been excluded as a suspect. The fact is that the homicide
investigation is the kind of case which will apparently not be resolved
by this kind of forensic analysis because of the condition of the
deceased's body, but there's no statute of limitations and the police
are still optimistic they'll find the killer."

The judge looked back and forth between us. I went on. "In
fact, I don't think Mr. Abramson can have it both ways. If he believes
that the original homicide is a closed case, then Legal Aid no longer
represents Ramon Carido. He's got no standing to make this motion."

"I'm telling the court we're going to be Carido's counsel
going forward for all purposes," Abramson said.

McFarland was focused on the facts of the homicide. "Well, if
you don't need Carido's DNA to prove that original crime, why shouldn't
I grant Mr. Abramson's request?"

"There has been no motion by Legal Aid to expunge Carido's
profile from the linkage database since the date it was entered.
They've had months to take that step and failed to do so. Now you've
got a confirmed match to a violent felony that he committed and the
police are supposed to pretend it never happened? We have identified a
predator who's clearly a danger to society and we have probable cause
to arrest Ramon Carido, with or without the cooperation of Mr.
Abramson."

"Have you got any law for me?" McFarland asked.

Abramson was back on his feet. "There's a Kings County case,
your honor. Carlos Rodriguez. I'll give you the cite."

The old Brooklyn decision wouldn't be binding on McFarland,
and she would welcome the chance to make new law. "That's entirely
distinguishable from the instant matter, judge," I said. "The victim
and offender were known to each other. The issue of his identity and
the DNA evidence were completely irrelevant to the investigation."

"Did it go up?" she asked, referring to the Court of Appeals
in Albany.

"No." Thankfully not, I almost added. The decision in the
Kings County case was such a bad one for the
prosecution—disallowing the use of the suspect's DNA
profile—that the prosecutors wisely had never appealed to the
higher court. "But there are two other matters which raise similar
issues that I'd like to submit to you."

"Hand them to the clerk, Ms. Cooper."

"I didn't have time to pull them before I came up here."

McFarland seemed annoyed. "You know the cases?"

"One is Waldemar—it's a Bronx decision. I can't
recall the name of the other one."

"Never mind. I'll find them."

I had been more anxious to cut Abramson off before he stopped
us from going after Carido than carefully marshaling the support for my
position to present to the judge when we got here. If I had given
McFarland the ammunition she needed to make an immediate ruling, it
might have gone in my favor at that point.

"I'm going to put this over for a week," McFarland said.

Abramson wasn't any happier than I was. This judge was never
equivocal, and I assumed the adjournment was so that she could write an
opinion on this still-evolving area of the law.

"In all fairness to my client, your honor, you're creating a
much more dangerous situation for him. If there's going to be a
manhunt, it always raises the possibility that the police will stage a
confrontation with—"

McFarland poked at her sternum with her forefinger. "
I'm
creating the dangerous situation? I hardly think so. Quite frankly, Mr.
Abramson, I'm going to deny the motion in regard to your client, and
I'm going to do that right now, from the bench. You can't expect the
police to put the genie back in the bottle, can you? Since there was
never an objection to the taking of a biological sample from Mr.
Carido, and since there was no request by your colleague to expunge
that profile from the database, I'm going to deny your motion and allow
the police to go forward with their investigation."

"Most respectfully, your honor, then why bother with the
adjournment?" he asked.

"Most respectfully, Mr. Abramson, I'd suggest you let me
finish my statement," McFarland said. "I think it's necessary to weigh
the harm that could be done by allowing Mr. Carido to remain at large.
Your complaint is about the propriety of his profile in the databank,
not about the validity of the DNA match, am I right?"

"Yes, but—"

"Balancing the potential harm to the public against that which
your client might suffer, I'd have to come down in favor of using the
biological evidence to charge him, sooner rather than later. He'll have
his day in court."

"And the adjournment?"

"The remedy you requested was rather extreme in this
particular case, don't you think? But you raise some important concerns
about how the linkage database is used flow, how it will be used in the
future, and about whether there is any appropriate mechanism in place
for expunging a sample if it doesn't belong there any longer. I'd like
to do some research on this, read the cases you've both mentioned.
Perhaps you'd each like to submit briefs in support of your positions?
That's why I'm giving you the weekend."

I wanted to brief the matter this weekend like I wanted to
empty Joe Berk's bedpan.

"And Miss Cooper," McFarland said, "I think what I'd like to
do is direct you to call the medical examiner's office. Tell the
serologists that there are to be no further disclosures of any matches
within the linkage database to anyone except known offenders for the
next week or ten days—either to your office or the
NYPD—until Ihand down my decision. Nothing divulged
concerning suspects who've been exonerated or from the so-called
voluntary samples."

"But, your honor," I said, starting to protest before
McFarland cut me off.

"Let's go off the record for a minute," she said, pointing to
the court reporter as she pushed up the large sleeve of her black robe
with the other hand. "Look, Alex, before you go crazy over this issue,
how many cases are we talking about?"

"In a week's time, citywide? Maybe thirty, maybe a hundred."

"That's submissions of evidence to the database, right?"

"Yes."

"And hits? You're probably lucky to get five from the linkage
database."

"You're right, judge. Some weeks two, some none. Five would be
a gift."

"So don't make a stink. Get Ramon Carido off the street for
the time being and let's slow this down so I can look at the bigger
picture."

"Give me two weeks, then, judge," Abramson said. "I want to
consult with the other supervisors. We'd like to submit papers on this."

Abramson and I were both trying to figure out what this meant
for him. McFarland was not a Solomonic judge—she rarely split
the baby. She wasn't afraid to take a firm position, no matter how
controversial, if she could ground it in the law. She was giving me a
go at Carido this afternoon, but she might be doing Abramson a favor in
the long run.

"We're back on the record. Miss Cooper, two weeks from today,
ten a.m.?"

"Yes, your honor."

Mercer walked me down the aisle and out of the courtroom.
"Where's she going on this? What do you think?"

"Call DCPI and get your press release out. I have no idea
where she'll wind up, but at least we can get this psycho off the
street now." The deputy commissioner of Public Information could issue
a release with a description of the attacker, and police could begin to
sweep the parks and homeless shelters for Ramon Carido. "And I'm going
to have to find someone from the Appeals Bureau to help me out with a
brief on this."

"Hey, Alex," Ron Abramson said, tugging at my elbow. "You free
after work for a drink?"

"Now that I don't have to pack my bags to go to Rikers, I
guess I've got time to kill. I just don't think I'm in the mood."

"Look, I had to do what I had to do. All my lawyers are
unsettled about these databank rules, and I figured this was a good
chance to get some guidelines. Got your attention, didn't I?"

"Another time, Ron."

Mercer pressed for the down elevator and Abramson headed
upstairs.

Laura got up from her desk and followed us into my office.
"Eric Ingels called you. Says it's urgent." She thrust the phone
message with his number into my hand.

I dialed and he answered himself. "Alex, I've got a problem
with Dr. Sengor."

I flopped onto my chair. "Like what?"

"Like he's not coming in. He won't surrender."

"That's just another factor for the judge to consider when I
ask for bail." I was too tired and frustrated to worry about the extra
day until his scheduled court appearance, pleased that the hospital was
keeping him on a short leash by requiring him to check in twice daily.

"He wants to talk to you."

"Who does?"

"My client. Dr. Sengor."

"Sengor wants to make a statement?" I shrugged my shoulders
and looked at Mercer, repeating Ingels's comments so Mercer could
understand what was going on.

"Not exactly. He swears he didn't commit a crime. He wants to
talk to you."

"You're going to let him?"

"I'd like to patch him in when he calls back. He's been
phoning every fifteen minutes or so, waiting for you to come back from
court."

"Is he home? We can just set it up from my end," I said.