Death Angel

THREE

Judge Marvin Heller took his place on the bench at exactly 9:45 Friday morning. He ran his courtroom with an efficiency unique to the inhabitants of the Depression-era Criminal Court building that towered over Centre Street, shadowing the companion quarters that had been acquired fifty years ago to handle Manhattan’s ever-growing docket of cases-now more than one hundred thousand a year.

I slipped into one of the seats in the last row of benches shortly after ten A.M., knowing that Heller had at least ten cases on the calendar he would call before mine.

I opened the Redweld and studied the notes I had made last night on a legal pad. I’d left the homicide team in Central Park to get on with their work and taken the subway downtown from 59th Street, at the south end of the Park, to Canal Street.

The morning train ride to Canal was, for me, like sitting in the middle of the biggest lineup any cops could stage. If I managed to grab a seat-and I much preferred that to the chance of being pressed against by a familiar frotteur, for whom New York’s subway system was such a natural playground-it was easy to observe that most of the riders headed for the same stop were either lawyers or perps. The latter outweighed the former in number, and many of the recidivists who were frequent fliers in the system were as recognizable to me as my colleagues from the DA’s office or defense bar.

I was far more comfortable in any criminal courtroom than on public transportation. The captain in charge of Judge Heller’s court part bellowed out the name of the next defendant to appear: “Francisco Pintaro. People against Francisco Pintaro. Step into the well, please.”

The young prosecutor made her way to the front of the room as her adversary walked with his client to the counsel table.

“Scoot over, Alex.”

I looked up to see Eric Segal, who represented the accused rapist in my case, motioning to me to make room for him to sit beside me.

“What’s up? Ready to drop the charges against my guy?”

“Not quite there yet. I hate to do that when they’re guilty, Eric.”

“How about a deal? Sweeten the pot a tad and maybe I’ll tell him to take it,” Segal said with a smile, lifting my right hand to peek at the notes I had made. He’d been a supervisor at Legal Aid for years, a good lawyer with a sharp sense of humor and a relentless style of cross-examination.

“No deal for Willie B. I’m hoping his parole officer on this case hasn’t even been born yet.”

“Tough talk for a weak case, Alex,” he said, tracing the shorthand I used to make my points. “Hieroglyphics. That’s all you’ve got on your pad, a bunch of hieroglyphics. You think you’re going to whip my ass with those sorry points?”

Heller banged his gavel against his desktop and scanned the gallery for offenders, most of them farther up front than Eric and I.

“No talking in my courtroom. No talking unless you’re addressing me, do you understand? And you, Mr. Pintaro, go to the restroom and pull up your pants so that the belt encircles your waist. I am not the least bit interested in seeing your butt cheeks every time you turn to your lawyer. 2:15 P.M. for a second call on this case. Show some respect for this court, Mr. Pintaro, or you’ll be held in contempt.”

The captain called the next case, and people waiting on the hard wooden benches shuffled positions. Segal’s client, Willie Buskins, was across the aisle, two rows ahead of us. When he spotted me, he began a stare-down-his typical attempt at unnerving me-narrowing his eyes and glaring at me in what he thought was his fiercest pose.

I glared back at him while I whispered to Segal. “Willie’s not a candidate for a pass, Eric. He might as well have RECIDIVIST branded on his forehead.”

Segal pointed his finger at Buskins and then waved it in a circle. Reluctantly, his client unlocked his eyes from mine and faced the front of the room.

“Don’t you believe in reform, Alex? Willie’s changed his ways. You going to ruin my whole summer with a trial?”

“Just half your summer. Heller will move this one along like a high-speed train.”

Marvin Heller adjourned the parties in front of him for another month, and the captain announced our case.

“Meet at Forlini’s at 6:30?” Segal said, rising to his feet and stepping back to let me out of the row. His wife had left him several months ago, and after making his way through half the young bunnies at Legal Aid, he reset his sights on the DA’s office. “Cocktails on me.”

“Rain check, Eric. I’m flying up to the Vineyard for the weekend.”

I walked forward toward the waist-high wooden gate that separated the spectators from the well of the courtroom. Usually a court officer manned it to admit the lawyers when an unjailed defendant was present, but Heller had ordered one of the men into his chambers to refresh his water pitcher.

I stepped toward it and got ready to push it open, but Willie Buskins spun around and grabbed the gate with his left hand-a courtesy to me. As I passed in front of him, his back to the judge, he lowered his head and spoke the word “bitch,” almost in my ear. The motley assemblage of thieves and assailants in the front rows heard Willie as clearly as I had and found the label much more amusing than I did. Marvin Heller would have had the officers walk Buskins back into the holding pen had he been aware of his remark.

“State your appearances for the record.”

“Alexandra Cooper, for the People.”

“Eric Segal, Legal Aid Society, for Mr. Willie Buskins.”

“Be seated, both of you,” Heller said. “I assume you two settled this matter during your little tête-à-tête in the back row, while I was trying to conduct business?”

Segal spoke over my apology to the court. “Always working for my clients, Your Honor. Rumor has it that Ms. Cooper actually has a chink in that armor she wears in court. I was just trying to find it before she tried to razzle-dazzle you with the law.”

“I’m more easily razzled than dazzled, Mr. Segal. Is there anything to discuss?” the judge asked. Marvin Heller was about sixty years old, with thinning gray hair, wire-rimmed glasses worn low on his nose, and black robes that he carried with great dignity. “Or are we here to pick a date for trial?”

Eric Segal stood up. He smoothed his neon-striped tie inside his navy-blue suit jacket and then placed his hand on Buskins’s shoulder. “I understand Ms. Cooper, whose case is hanging by a shoestring, plans to introduce some new forensic technique, Your Honor. I’d like to oppose that testimony before we open to a jury, sir. I’d like to request a Frye hearing.”

Heller squinted and looked back at the notes he regularly kept in an oversized leather-bound ledger. “I thought this matter involved some sort of DNA identification of Mr. Buskins’s, whose profile is well-known in the databank of convicted offenders.”

Buskins grunted and started mumbling under his breath. He was thirty-six years old with a rap sheet that stretched back to his teens, and was recently released from prison after serving nine years for the rape of a neighbor in the Taft housing project.

“It is a DNA identification, Judge,” Segal said, “but-”

“That battle’s been over for almost a quarter of a century, Mr. Segal. What date suits you for trial?”

The Frye standard evolved from a 1923 Supreme Court opinion that limited the admissibility of scientific evidence to methods that have been generally accepted as reliable in the professional community, beyond what the justices called a “twilight zone” between experimental stages and well-recognized principles. The lawyers in my own office had fought and won that groundbreaking struggle to use DNA technology in 1989, opening the way for genetic profiling, which continues to revolutionize criminal justice to this day.

“May I be heard, Your Honor?” I asked. Eric Segal took his seat as I rose to my feet. He leaned over to Willie Buskins, probably urging him to keep his mouth shut.

“Something new, Ms. Cooper?”

“Actually, yes, sir. I’m planning to elicit testimony from a biologist at OCME,” I said, referring to the Office of Chief Medical Examiner, “about a new technique called the Forensic Statistical Tool, or FST.”

Heller squinted at me over his glasses, trying to write at the same time. “Another acronym, of course. Soon there’ll be nothing left to the law but acronyms, DNA swabs, and every man’s right to claim an exoneration the moment after he’s convicted. We can just set up computers or lottery machines to make all the decisions. Judges will be irrelevant, won’t they?”

Segal was quick to cut in. “There are those who say-mostly on the DA’s side, Your Honor-that that day has already come and gone.”

“Save the humor for your mates, Mr. Segal,” the judge said. “Exactly what have you got, Ms. Cooper?”

“I’d prefer not to tip my hand in its entirety right now.”

“Then a hypothetical. Can you give me that?”

“Certainly.” As I began to speak, Willie Buskins turned his chair away from me and put his left elbow on the counsel table, resting his head on his arm. “Suppose the perpetrator of a crime is alleged to have used a knife to subdue his victim, Your Honor-although that’s not the claim here. And suppose a knife was recovered near the crime scene and analyzed at the lab.”

“So far I’m with you.”

“When tested for DNA, the knife handle yielded a mixture of DNA.”

“A mixture?”

“Yes, judge. Suggesting that not surprisingly, over time, the DNA of several individuals was deposited on the knife. Until recently, it had been impossible to determine whether the DNA of a specific person was part of that mixture because the sample amounts of skin cells scraped off the knife were so very small.”

Heller was listening attentively. He liked the challenge of finding precedents and writing opinions that would lead to a new body of law.

“What has changed this possibility, Ms. Cooper?”

“The work of two forensic biologists at our own lab, Your Honor. Scientists named Caragine and Mitchell, who will testify at the trial.”

“Only if they pass muster at a Frye,” Segal interjected.

These two young women would blow Willie Buskins out of the water, I was convinced, having spent hours with them in their offices, trying to understand their painstaking work. The scientists in the 290-million-dollar lab that opened in Manhattan in 2007-the largest government forensics lab in the country-had analyzed more than forty-three thousand items for DNA results in the last year alone. The work of that department had been cutting-edge since its inception, and now had taken another dramatic leap forward thanks to Caragine and Mitchell.

“What’s the FST, Ms. Cooper?” Heller asked.

“It’s an algorithm for a software program-”

“Judge, how can you let a jury hear this kind of evidence?” Segal said, flinging his arms to both sides. “I don’t even know how to explain to my client what an algorithm is.”

“On your feet when you’re addressing me, Mr. Segal. And it seems to me that should Mr. Buskins decide to wake up and join us at these proceedings, I’d be happy to tell him that the scientists’ fancy word is simply a procedure for solving a problem in a finite number of steps.”

Heller lifted the gavel and slammed it down with such force that it sounded like a cannon had been fired in the courtroom. Buskins still didn’t pick up his head until Eric Segal poked him in the ribs.

“Go on, Ms. Cooper.”

“This new program can analyze a DNA mixture-it has analyzed the evidence submitted in Mr. Buskins’s case-and determine the probability that it includes the defendant’s profile.”

“So you’re talking statistical probabilities here?”

“Yes, sir. A year ago, before FST was developed, the lab comparison would have yielded no result. The People could not have gone forward with a prosecution. Now we can deliver a likelihood-”

Segal pushed back and stood up. “You can’t convict someone on a likelihood, Your Honor.”

“Let her finish.”

“A likelihood that Mr. Buskins’s DNA is in the mixture recovered-when compared to the DNA of random people. If it were a low value in the mixture, then we might not be able to establish the defendant as the source, whereas a higher value could certainly include him as a donor.”

Willie Buskins hadn’t used a knife to threaten the fourteen-year-old girl who was the victim of the rape behind Taft Houses. He had wrapped one of his powerful arms around her neck to drag her off her bicycle, using the pink two-wheeler with purple tasseled handlebars to make his escape, leaving her curled up behind the garbage Dumpster in which he’d dropped her clothing. Although he had not ejaculated during the attack-leaving none of the more traditional DNA source of a rape suspect in seminal fluid-he had left trace evidence on the handlebar of the child’s bike. On the right side, there was a low likelihood of Buskins’s DNA in the mixture, but the left one suggested that he was the donor of the skin cells-985,000 times more likely to be so than the DNA of four random people tested in comparison.

Buskins had been granted bail, despite his criminal history and my loud objections, because the fourteen-year-old-who had been snatched from behind, after dark-had been unable to be certain of her identification of the attacker.

“Look, Judge, even if you believe in this voodoo, it’s not generally accepted by the scientific community. It’s only used at the New York City lab.”

“Is that true, Ms. Cooper?”

“Not at this point, Your Honor. OCME has conducted more than half a million test runs in the last two years, and now the protocol has been approved by the New York State Commission on Forensic Science, so it has in fact gained use in labs across the country.”

When Willie Buskins muttered, “Bullshit,” I knew it was exactly what Eric Segal would have liked to say to the judge, too. Fortunately, Heller hadn’t heard the thug.

“All right. Let’s mark this for hearing and trial on the Monday following the July 4th holiday, shall we? Will you both be available?”

“Yes, sir,” I said, and Segal nodded in agreement.

I waited until he escorted his client out of the courtroom before I made my way down the aisle and into the long corridor on the thirteenth floor.

Before I reached the elevator bank that led to the interior entrance to the New York County District Attorney’s Office, the men’s room door opened. Willie Buskins must have been waiting for me in there, stepping forward boldly to walk almost at my side as I passed by.

I picked up my pace and turned to the row of elevators, headed for the first open door, not caring whether it was going up or down.

“Just seein’ how fast I could make you move, Ms. Cooper,” Buskins said, holding the heavy doors open while I pressed the button to close them, laughing so hard that the gold jackets on his two front teeth-the ones his victim had described-were exposed to me. “Don’t you play dirty with me at that trial. I’ve had mines, Ms. Cooper. Mess with me and I’ll see that you get yours.”