Naked Justice

Chapter 52

BEN PLANNED HIS CROSS as he walked to the podium. Obviously he would have to attack the methodology and the purported certainty of these DNA techniques, but there was another point to make that was probably even more important. Throughout the direct examination, Bullock had treated Dr. Regan like a member of his staff, like a police lab tech, which of course he wasn’t, by a long shot. That was something that needed to be set straight right off the bat.

“Good afternoon, Dr. Regan,” Ben said.

Regan looked at him warily. Was this a trick question? “Afternoon.”

“Dr. Regan, how much has the State paid you to testify today?”

There was a stir in the courtroom. Ben was pleased to find that Bullock was not the only one who had the ability to do that.

“I… I haven’t been paid for my testimony,” Regan protested.

“But you have been paid.”

“Ye-es.”

“And you are testifying.”

“Ye-es … but I—or rather, my firm was paid for its scientific expertise and professional services.”

“Which include providing a jury-and-camera-friendly witness to testify in court.”

“Objection!” Bullock said.

“Sustained.” Judge Hart looked at Ben sternly. “Counsel, restrict yourself to the relevant matters at hand.”

“Yes, your honor.” He looked back at Dr. Regan. “You’re not a member of the police force or the district attorney’s office, right?”

“That’s correct.”

“You wouldn’t be here, except that they needed a DNA expert, so they paid you to be their expert.”

“Counsel, these scientific procedures are very expensive. The bills have to be paid.”

“I understand that. But when a witness is being paid to testify, I think the jury has a right to know it, don’t you?”

Regan began to get his dander up. “For the last time, I was not paid to testify. We receive a flat fee up front. That fee does not change, regardless of what our findings are.”

Ben continued to push. “So you think the prosecutor’s office would be happy to pay you thousands of dollars even if you couldn’t help their case.”

It was the classic one question too many, as Ben immediately recognized just as soon as it was too late to take it back. “In fact, our DNA analysis more often excludes suspects than it positively identifies them. DNA is a brilliant tool for eliminating suspects. Numerous people in the past few years have been released, even after conviction, when DNA evidence proved they could not have committed the crime.”

Swell, Ben thought. That’s what he gets for talking faster than he could think. “Let’s talk about these purported matches, sir. Are you saying that you examined every single chemical unit of the DNA found at the crime scene and found that they matched every single chemical unit of the DNA taken from Wallace Barrett?”

“No, of course not.”

“No?” Ben turned toward the jury box. “But you told these jurors that they were a perfect match.”

“Matching here is a term of art. You have to understand—a human DNA molecule contains over three billion chemical units. Even if we had the scientific capability of examining every one of those—which we don’t—it would take forever. Instead, we scan a representative sample. If there are no deviations in those samples, we call it a match.”

“Even though it may not be.”

Regan’s face flushed with irritation. “It is a match, counsel. Given the impossibility of examining every single chemical unit.”

Ben continued to push. “But it’s still possible that some of the other chemical units—the ones you did not scrutinize—might not match.”

“It is theoretically possible, yes, but the odds against that happening are astronomical.”

“How astronomical?”

“It’s ridiculous to even contemplate these numbers. The odds of an RFLP DNA match between samples from two different people are one in ten million.”

“Ah, another oddsmaker. The prosecutor should be Jimmy the Greek.” Ben glanced at his notes. “Of course, you only conducted the RFLP test on the blood. The presence of Barrett’s blood doesn’t necessarily make him the murderer.”

“There was also the skin beneath his wife’s fingernails—”

“Yes, but you conducted only the PCR test on the skin samples, right?”

“That’s true. There wasn’t enough material for a RFLP.”

Ben’s eyes raced through his notes. Thank goodness, Jones’s pretrial research had made him something of a DNA expert himself. Otherwise, an effective cross would be impossible. Unless the lawyer educates himself, there is no hope of a successful cross. That’s why scientific experts were so often able to bamboozle lawyers. “And the chances of a match between samples from two different people are much greater on the PCR test, aren’t they?”

“It’s still about four thousand to one.”

“Is that all?” Ben tried to sound incredulous. “Then you could have a false positive.”

“It is theoretically possible. But highly unlikely.”

“Four thousand to one doesn’t sound impossible to me, Doctor. And you haven’t even accounted for statistical skewering due to subpopulations, have you?

Regan tugged at his tie. “Well, no.”

“Certain subpopulations will have DNA that is more similar than others, thus increasing the chances of a match. True?”

“That’s true.”

“If you consider the genetic differences of the entire world, you can get long statistical odds. But if you limit your comparison to certain sub-populations, the chance of a false positive is much greater, right?”

Regan took a deep breath. “That’s true. But there’s no evidence—”

“One example of such a subpopulation would be the black race, wouldn’t it?”

“Yes.”

All eyes darted to Wallace Barrett.

“Another would be members of the same family.”

“That’s also true.”

“Among these groups, the chances of a false DNA match are much greater, correct?”

“I can’t deny it.”

Ben smiled. “We appreciate your honesty.” He walked back to counsel table and retrieved an exhibit Christina had found for him a few days before, careful to keep it hidden from the witness. “Dr. Regan, would you say your business has been a success?”

He folded his hands across his lap. “I like to think so.”

“Get a lot of business?”

“Yes, our clients seem to be very pleased with our work—regardless of the result,” he added hastily.

“I’m sure. Just how much business do you have?”

“We’re now processing over six hundred samples a month.”

“Six hundred a month! By a staff of how many?”

Regan was a bit slower to answer this time. He was beginning to realize where this was going. “There are ten of us in the lab.”

“Wow,” Ben murmured. “Ten people handling six hundred samples every twenty or so working days. Must get very hectic.”

“Nothing we can’t handle.”

“Confusing, too. All those different samples flying about.”

“I assure you our labeling protocols are very reliable.”

“Still, Doctor, with all those different samples rushing through the lab— some mistakes must occur.”

Regan ruffled a bit. “Not that I’m aware of.”

Ben looked at him sternly. “Doctor, isn’t it a fact of forensic life that every lab has an error rate?”

“Most government-affiliated forensic labs handle a much higher volume of samples. At our lab, we can pick and choose what to handle. We don’t let ourselves get swamped. Each sample is handled individually and is read by two different analysts for confirmation.”

“Still, Doctor—”

“I assure you, counsel, we are quite careful.”

“Perhaps so, Doctor—but you’re not perfect, are you?”

“I beg your pardon?”

Not really a fair question, but it would get him where he wanted to go. “My mother always told me that no one was perfect, but I don’t know, maybe she was wrong. Are you perfect, Doctor?”

He gazed at Ben wearily. “No, I would not say that I was perfect. Although—”

“You do occasionally make mistakes.”

“I suppose. But even if I erred in the lab, the confirmation procedure—”

“No confirmation procedure is flawless, is it, Doctor?”

He stuttered a bit. “I suppose I could conceive of a situation—”

“And every lab has an error rate, right?”

“If indeed we have an error rate, it would be negligible. Barely worth mentioning.”

“But you did mention it, didn’t you, Doctor?” Ben held up his exhibit, a magazine-size color brochure. “This is the Cellmark annual report, isn’t it?”

Regan’s eyes widened. “It … seems to be.”

“Being a publicly held corporation, you have to file these things, don’t you?”

“I’m … not really sure of the legalities.”

“You’d be committing a securities violation if you didn’t, right?”

“Right.”

“And the SEC demands scrupulous honesty in these things, doesn’t it?”

He folded his arms. “I’m sure you know more about that than I do.”

“Well, Doctor, according to this report, your lab has an error rate of about two percent. Right?”

“If that’s what it says, then that’s what it says.”

“Well, that’s what it says. Is it true?”

There was a long pause before Regan finally answered. “I suppose it must be.”

“Thank you. Now, as this report points out, two percent is quite low, and you should be commended for your high standards of excellence. But the fact remains—two percent is two percent. Right?”

Regan pursed his lips. “Yes, two percent is two percent. I can’t argue with that.”

“So it is in fact possible that your lab made an error when analyzing the Barrett DNA samples, right?”

“It is theoretically possible.”

“Because, in fact, no one is perfect. Not even DNA analysts.”

“That’s correct, counsel. No one is perfect.”

Ben beamed. “Well, my mother will be pleased to learn that she was right after all. So, Doctor, if we may, let’s summarize what we’ve learned. First of all, despite what the prosecution would have this jury believe, DNA analysis is not a perfect science, at least not yet, is it?”

“N-no, it isn’t perfect.”

“What’s more, the chances of making a false identification using DNA analysis are in fact much greater than you first suggested, right?”

“Arguably.”

“And besides which, none of these results are valid if the samples provided are tainted or handled improperly.”

“That’s certainly true.”

“Thank you, sir.” He closed his notebook. “I have no more questions.”