Innocence (43 page)

“That’s correct.”

“Can you explain what that means?”

“Sure. Although it’s somewhat complicated.” Horowitz looked at Finn as if to ask whether the lawyer really wanted him to continue.

“I understand,” Finn said. “We’ll take our chances.”

Horowitz gave him a tired look. “Well, as most people know, DNA is the basic code—chemical code, if you will—of life that determines everything about what an organism will be. DNA itself is fairly simple; it is made up of four proteins that are lined up in a very specific order in pairs on strands called chromosomes. These chromosomes are made up of literally millions and millions of these protein pairs, and the differences in the order of the proteins is what creates differences between animals and plants, or two different species, or two different individuals. Because DNA is what makes us all different, we all have different DNA—it is unique to us, and that is what makes it so useful in identifying individuals when they leave their DNA behind, as Mr. Salazar did when Officer Steele scratched him.”

“Thank you, Doctor, but if you could confine yourself for the moment to explaining how DNA identification works in general, I would appreciate it,” Finn said. “We will get to Mr. Salazar’s specific case shortly.”

Horowitz frowned at being rebuked, but continued. “What is sometimes difficult to grasp is that, although everyone’s DNA is different in some ways, on the whole, the DNA from two individuals is actually quite similar. When you consider the complexities involved in creating human beings, with hearts and lungs, and organs, and hands and legs—everything about the human body—the fact that we are all as similar as we are is really a marvel of chemical engineering. In that light, differences in height or eye color start to seem minor by comparison. Indeed, when you look at human DNA, over ninety-nine point nine percent of all human DNA is identical. You find differences only in a few limited, specific areas on DNA strands that are highly variable.

These spots are known as points of identification, and the FBI has recognized fifteen such spots that are used in DNA testing. If the patterns of the proteins on these spots match in two different samples of DNA, then you know that you are looking at DNA from the same person.”

Finn nodded; the tutorial was bringing back much of what he’d read over the preceding week. “Right,” he said. “There are fifteen such points of identification, correct?”

“That’s correct.”

“But you testified earlier that you were able to match only seven points of identification between Mr. Salazar’s DNA and that taken from underneath Officer Steele’s fingernails, correct?”

“That’s true.”

“Can you explain why you were unable to obtain a match for all fifteen sites?”

“Yes. You see, the DNA sample we were working with from the victim was over a decade and a half old. We were also dealing with very small samples—pulled from a tiny amount of tissue that had fused to the fingernail itself. As a result, there was an inevitable amount of degradation and contamination of the DNA, and we were not able to obtain clean samples for all fifteen sites.”

“So,” Finn said, “this is not a complete match.”

Horowitz shook his head. “No, that’s where you’re wrong. You have to understand that these particular sites are highly variable between individuals, and they comprise thousands of protein pairs. The chances of someone else from the general population sharing the same patterns on seven sites is astronomical—in fact, the FBI requires a match at only five sites to establish an identification. This is an exact match by any scientific standard.”

Finn was in dangerous waters, and he had to frame his questions carefully. “When you say that the odds of someone from the general population matching on seven points of identification are astronomical, how would you define ‘astronomical’ in these circumstances?”

“I’m not sure, exactly,” Horowitz said. “Maybe one in a hundred million.”

“And, Doctor, what are the odds that a sibling of Mr. Salazar’s could match his DNA on seven points of identification?”

The question brought Horowitz up short, and it took him a moment to speak. “I don’t know offhand,” he said defensively.

Finn pounced. “You don’t know
offhand
?” he demanded in an agitated tone. “Doctor, you are giving testimony here today that could put an innocent man back into prison for the rest of his life, and you are telling this court that you don’t know what the odds are of this DNA matching someone other than the defendant
offhand
?”

“I didn’t mean it that way,” Horowitz sputtered. “Certainly, the odds would be greater, but I don’t know exactly how much greater.”

“How much greater, Doctor?”

“I just said, I don’t know exactly.”

“How about one in a hundred?”

Horowitz thought about it. “It’s possible.”

“Could the odds be greater than that?” Finn pressed. “Say, maybe one in fifty?”

“I don’t know.”

“One in ten?”

“No.”

“How do you know that for sure? You just told the court that you don’t know what the odds are, and now you tell us that you do know? What has changed, Doctor? Did you somehow conduct research as you were sitting here on the stand giving testimony?”

“No, of course not! It just seems too high.”

Judging from the redness in Horowitz’s face, Finn was approaching the point at which the man would never work with him again. There was no turning back, though. “It
seems
too high? You are willing to send a man to jail because the odds
seem
too high?”

“That’s not what I meant, either.”

“The truth is, Doctor, that you were telling the truth the first time, right? You really have no idea, as you sit here, what the odds are that a sibling of Mr. Salazar’s could match on seven points of identification using the ASI test?”

Horowitz drew his lips together tightly. “That’s correct.” His voice was low and barely audible, but it was enough.

Finn turned and walked back to counsel table, making a note on a blank sheet of paper. “You ran a second test as well? A mitochondrial DNA test, Doctor?”

“Yes.”

“Can you tell the judge what the odds are that one of Mr. Salazar’s siblings would match his DNA using that test?”

“I just ran that test as a double check,” Horowitz protested. “You know that.”

“If you would, just answer the question, Doctor,” Finn said.

“But—”

“Answer the question, Doctor,” Cavanaugh instructed him. It was a good sign, Finn knew. At least he could be sure that the judge was fully engaged.

“That test involves an analysis of maternal DNA that resides in the cells. As a result, all siblings would have the same mitochondrial DNA,” Horowitz explained.

“So,” Finn said, “that sounds like the chance of a match between siblings is one hundred percent, no?”

“That’s correct,” Horowitz admitted wearily.

“Thank you, Doctor. Nothing further.” Finn walked around counsel table and sat down.

“Redirect, Your Honor?” Jackson requested, standing. Cavanaugh nodded, and Jackson moved in. “Dr. Horowitz, are you certain beyond any reasonable doubt that the DNA you found under the fingernails of Officer Steele came from Vincente Salazar?” The ADA was going for broke. Finn knew he would try to rehabilitate his witness, but with this question, he was putting it all on the line, and he had no way of knowing how far Horowitz was willing to go out on a limb. Finn held his breath as the entire courtroom waited for the answer.

“How do you define ‘reasonable’?” Horowitz asked, looking defeated. It might have been an attempt at humor, but Finn couldn’t have asked for a better response.

“Please, Doctor,” Jackson said, visibly shaken. “If you could just answer the question?”

“I don’t know. Could it have been a sibling? I suppose that’s possible. Beyond that, I’m sure it’s Vincente Salazar’s DNA.” Horowitz looked as though he just wanted to get off the stand and be done with his testimony.

Jackson sat heavily. It was clearly not the answer he’d been looking for. “Thank you, Doctor.” To the judge, he said, “Nothing further, Your Honor.”

Cavanaugh sat on the bench, looking down at Horowitz on the witness stand, gauging his demeanor. “Mr. Finn?” he asked. “Anything further?”

“No, Your Honor, not for this witness. But I would ask your indulgence to call one witness of our own.”

Cavanaugh looked over at Jackson, who looked like a puddle of defeat. “Mr. Jackson, do you have any additional witnesses for us today?”

“No.”

“You may proceed, Mr. Finn.”

“Thank you, Your Honor.” Finn got back to his feet. “I would like to call Miguel Salazar.”

Chapter Forty-fou
r

Vincente couldn’t watch his brother walking through the swinging gates at the front of the courtroom and making his way to the witness stand. Nor could Vincente turn around to face the rest of his family. His chest felt tight, and he found it difficult to breathe.

It was the right decision, he told himself. Fifteen years was enough; his brother had agreed. Miguel knew full well what he was doing, and yet after a lifetime spent protecting his family, Vincente could feel the guilt nestling into his stomach. He looked down at the table in front of him.
Just a little while longer
, he told himself. Then this would all be over.

z

Finn was violating one of the cardinal rules of trial law: You never put a witness on the stand when you don’t know what he is going to say. In this case, Finn had no choice. He had to take the risk.

Miguel took the stand and was sworn in by the bailiff. He sat there quietly, looking at Finn, inscrutable. Finn couldn’t tell whether the man regarded him as an enemy or as some kind of coconspirator, but he was about to find out.

“Would you please state your name for the record?”

“Miguel Paulo Salazar.”

“Mr. Salazar, are you related to the defendant in this case, Vincente Salazar?”

“I am. He is my brother.”

“Did the two of you grow up together?” Finn asked.

“In some respects, yes,” Miguel responded. “He is more than ten years older than I am, but we were close. In some ways, he has been more of a father to me than a brother.”

“Did you come to this country with your brother in 1991?”

“Yes. We had to come here. Otherwise, the death squads would have killed our entire family.” Miguel’s face betrayed no emotion.

“How old were you at the time?”

“Sixteen.”

“Were you living with your brother at the time of his arrest, after Officer Steele was attacked?”

“I was.”

“Did you know at the time that she was investigating your brother? That she was trying to have your family deported, and that you would be sent back to El Salvador?”

Miguel said nothing. He just kept staring back at Finn, and Finn could feel his heart pounding out a slow, anticipatory beat. Then Miguel’s gaze shifted, and he looked at his brother sitting behind Finn. The two of them regarded each other across the courtroom.

“Mr. Salazar?” Cavanaugh prodded Miguel.

Miguel looked up at the judge. “I’m sorry, Your Honor.” He turned back to Finn. “What was the question again?”

“Did you know that Officer Steele was trying to have your brother deported?”

Miguel Salazar took a deep breath. “On the advice of counsel, I decline to answer that question, and I assert my rights under the Fifth Amendment.”

A gasp could be heard throughout the courtroom, and it quickly morphed into a buzz, then into a loud rumble. Cavanaugh pounded his gavel on the bench in front of him to regain order, and Jackson leaped to his feet. “Objection! Your Honor, this is obviously some sort of a cheap stunt dreamed up by defense counsel! You can’t possibly allow them to get away with this.”

Cavanaugh glared at Finn. “Counselor, are you telling me that you are representing both of the Salazar brothers? Because the defense you appear to be pursuing would put you in a direct conflict of interest—one so severe that disciplinary action would undoubtedly be called for.”

“I do not represent Miguel Salazar, Your Honor. In fact, I wasn’t aware that he was represented by anyone. This is all news to me.”

Cavanaugh leaned over the witness box. “Mr. Salazar, who advised you to refuse to answer questions?”

A voice came from the gallery. “Your Honor, I represent Mr. Salazar.” Finn turned to see Joe Cocca standing behind the balustrade. “Joseph Cocca, Your Honor. May I approach?”

The judge looked over at Cocca. “If you can provide some answers, by all means.”

Cocca stepped through the swinging gate and stood between counsel tables, caught in a no-man’s-land between the prosecution and the defense. “Your Honor, I can tell you that I have been retained by Dr. Miguel Salazar, and I have given him legal advice regarding certain of his rights. I can also tell you that I have not spoken with Mr. Finn about this matter; nor, to my knowledge, has my client.”

Cavanaugh frowned, his nose rippling as though it had been assaulted by a foul stench.

“I still object, Your Honor,” Jackson said, rising to his feet, his jowls shaking with indignation. “This is clearly a ploy to confuse the issues in this case.”

“Mr. Jackson, sit down. The issues in this case have become confused only because your office put witnesses on the stand fifteen years ago

who perjured themselves in order to assure a conviction. You should remember that when you start to feel holier than thou.”

Jackson sat down, and Cavanaugh went back to scrutinizing Finn and Cocca. “Mr. Finn, do I have your word of honor that you have not spoken to anyone about Dr. Salazar’s testimony prior to now?”

“My word of honor,” Finn said.

Cavanaugh put his head in his hands, rubbing his eyes in consternation. Then he looked up. “You may continue with your examination, Mr. Finn,” he said.

Jackson stood tentatively. “Your Honor?”

“What?” Cavanaugh snapped. “Mr. Salazar has the constitutional right to have his counsel ask questions, and Dr. Salazar has the constitutional right not to answer them. What, exactly, would you have me do?”