Innocence (7 page)

Chapter Si
x

Wednesday, December 12, 2007

The Honorable John B. Cavanaugh, at seventy-eight, suffered from a bad back and swollen joints in his knees that made it difficult for him to sit for extended periods of time. His condition had made his already prickly disposition nearly lethal on the bench, and whatever patience he’d had as a younger man was long used up. His thin six-footfour-inch frame had always been imposing, and the slight stoop in his shoulders accentuated the impression that he was continually looking down on the lawyers who appeared before him—an impression that was usually closer to reality than not.

At the moment he was directing his condescension toward Finn and Dobson as they sat at counsel table before him. It made Finn question whether his decision to take Salazar on as a client had been hasty.

“Gentlemen,” Cavanaugh said slowly, looking back and forth between Finn and Dobson on the one hand and Assistant District Attorney Albert Jackson on the other. Finn knew Jackson well from various criminal matters he’d handled, and liked him. He stood nearly six feet tall but was pushing three hundred pounds. Finn had often wondered whether his parents had been aware of Cosby’s cartoon when they’d chosen his name. Jackson bore the inevitable ribbing well, though, and he was one of the better attorneys in the DA’s office.

Cavanaugh cleared his throat before continuing. “I’ve read the briefs, but I’m willing to hear argument. Mr. Finn, it’s your motion; would you care to lead us into the abyss?”

“Thank you, Your Honor,” Finn said, getting to his feet. “As you are aware, we are here today seeking an order requiring the district attorney’s office to turn over skin and blood samples taken from underneath Officer Madeline Steele’s fingernails on the evening she was attacked. We are confident that DNA testing of these samples will definitively show that our client was not the person who attacked Officer Steele.”

“Really, Mr. Finn? You’re confident?” Cavanaugh leaned forward in his chair. “On what is this confidence based? It is my understanding that the evidence at trial included positive identifications, both through the eyewitness testimony of the victim and through fingerprint comparisons. What is it that magically gives you this confidence?”

“Well, Your Honor, the fact that the DA’s office is resisting this motion, for one thing. After all, if Mr. Salazar is actually guilty, the evidence in question should only prove his guilt. Why, then, should the DA’s office oppose this motion so vehemently? In addition, Mr. Salazar has an alibi. At the time of the attack, Mr. Salazar, who was a medical doctor in his own country, was providing medical attention to a woman up the street from his residence. The witness who can confirm that alibi is now willing to come forward and testify. As a result, it is impossible that Mr. Salazar was the individual who attacked Officer Steele. The district attorney’s office is in possession of evidence that could affirmatively establish the guilt or innocence of our client. In the interests of justice, it’s hard to find a reason for this evidence to be withheld.”

Cavanaugh considered this. “Mr. Jackson?”

Albert Jackson stood up. “Yes, Your Honor. What Mr. Finn fails to recognize is that Mr. Salazar has already been given a fair trial and a fair opportunity to demonstrate his innocence. Our refusal to open the door to additional evidence at this time is hardly reflective of any fear that the wrong man is in jail. Indeed, Mr. Salazar’s guilt has already been definitively established by a jury of twelve. A central and necessary principle of our criminal justice system is the finality of a jury’s decision. If we abandon our reliance on that principle, the system would become paralyzed and collapse.”

Cavanaugh sat upright in his chair, his back pain evident. He looked down at Finn. “I have to say, Mr. Finn, that having read the papers, I’m inclined to agree with the prosecution. I see nothing out of the ordinary about this case, and if I were to allow your client a second bite at the apple, how could I deny that same opportunity to every defendant to come into my courtroom with a similar request?”

“First, Your Honor, this case isn’t the same as every other case. There is a witness who is willing to come forward now and corroborate Mr. Salazar’s alibi.”

“Where was this witness fifteen years ago, when Mr. Salazar was on trial? I assume that the defendant was aware of the identity of his own alibi witness at that time, correct?”

“Yes, Your Honor, but at the time the witness was afraid to come forward. She was in the country illegally then, and she was afraid of being deported. Since the trial, she has earned her citizenship, and she is no longer afraid to testify.”

“Mr. Finn,” Cavanaugh said, shaking his head. “The same claim could probably be manufactured by any defendant currently behind bars. It still seems to me that I would be setting a precedent that would allow an opportunity for every person in jail who claims that DNA evidence could exonerate them.”

“And what would be so bad about that?” Finn asked abruptly. He hadn’t planned to join the confrontation on this level, but the words just came out of his mouth, and he could feel the judge’s look harden at the challenge to his authority. Finn was tempted to back off, but he figured he had nothing to lose. “If innocent people are in jail, don’t we have a responsibility to identify them? We’re not asking the state to pay one dime for these tests—tests that were not even admissible in courts in Massachusetts at the time of Mr. Salazar’s conviction. DNA testing has been used to identify hundreds of wrongly convicted—innocent— people in the past few years. I see no reason why the state would resist the opportunity to make sure that every person in its custody is actually guilty, particularly when it comes at no cost to itself.”

“Mr. Jackson?” Cavanaugh invited.

“No cost to itself?” Jackson scoffed. “The district attorney’s office must respond to each of these frivolous motions. This hearing alone is costing the state thousands of dollars in my time and yours, Your Honor.”

“Mr. Jackson has a point,” Cavanaugh said to Finn. “Besides, your client was convicted on the basis of eyewitness testimony and fingerprint evidence. How do you explain that?”

“First, Your Honor, as to the state’s ‘cost,’ the only cost that Mr. Jackson and his bosses in the district attorney’s office are really worried about is the cost of a civil lawsuit if it turns out that Mr. Salazar was wrongly convicted. As to the other evidence used to convict Mr. Salazar, eyewitness testimony has repeatedly been shown to be the least reliable evidence available to the prosecution. We’re also asking for the fingerprint evidence to be released to us so we can reexamine that as well. But as you well know, fingerprint analysis is far from an exact science. DNA evidence, on the other hand, is ninety-nine percent conclusive.”

“Your Honor!” Jackson protested. “They’re now looking to try their entire case over?”

“The histrionics are unnecessary, Mr. Jackson,” Cavanaugh quipped. “I can see what’s going on here.” He looked at Finn again. “You still haven’t given me a reason to think that this fishing expedition of yours is worth anyone’s time. I just don’t see the justification.”

“Your Honor, we have no record that the defense was told the DNA material was available at the time of trial. We found out only recently; that alone should justify this exercise.”

Cavanaugh’s eyes narrowed. “Are you suggesting that potentially exculpatory evidence was withheld by the prosecution, Mr. Finn? Because you realize what a serious charge that is.”

“I do, Your Honor.” Finn was going for broke. “Let me be clear, we are not alleging any misconduct at this time. But the DNA evidence comes from under the victim’s fingernails. When Officer Steele was attacked, she fought back valiantly and apparently scratched her assailant quite badly. Blood and skin were collected from under her fingernails. That fact was never disclosed to the defense and could have constituted exculpatory evidence. Mr. Salazar could arguably be entitled to a new trial on that basis alone. We’re not looking for that. We’re looking only to have the DNA in the scrapings tested.”

“It wasn’t exculpatory, Your Honor,” Jackson fired back. “When the district attorney discovered that this material had not been disclosed, it was tested. It matched Mr. Salazar’s blood type.”

“O positive, Your Honor,” Finn argued. “The most common blood type there is. In any event, the DA’s office didn’t run any DNA testing at the time.”

“This is outrageous,” Jackson protested. “DNA evidence wasn’t even admissible at the time of trial, as Mr. Finn has already indicated. And the evidence from the skin and blood from under Officer Steele’s fingernails was never presented as part of the prosecution’s case!”

“Exactly,” Finn retorted. “Whoever attacked Officer Steele would have had visible scratches, and there was no mention of any such scratches on Mr. Salazar at the time he was arrested. Had the defense known about the skin and blood under Officer Steele’s fingernails, that discrepancy could have been brought out by the defense at trial.”

“Maybe the police never looked for scratches,” Jackson offered.

It was a mistake. Jackson had created an opening that might give Finn a chance. Both Finn and Cavanaugh looked at him with their eyebrows raised. “Your Honor,” Finn continued in a reasonable tone, “can you imagine anything more preposterous? One of their own officers is attacked and shot, and the police fail to use every bit of evidence that could bring her assailant to justice? If the investigation was indeed run that sloppily, that’s reason to question the verdict right there. There are too many questions. All we’re looking for are answers, and the DNA evidence in the prosecution’s possession can provide those answers.”

Cavanaugh was silent on the bench.

“Your Honor,” Jackson began, but Cavanaugh held up a hand to cut him off.

“Be quiet, Mr. Jackson. Unless you feel you can provide an adequate justification for why the police never dealt with the scratches at trial.” Jackson shut his mouth. Cavanaugh leaned back uncomfortably in his large black leather chair, looking first up at the high courtroom ceiling and then down at Finn. “Congratulations, Mr. Finn, you’ve piqued my curiosity. I’m going to give you your DNA sample.”

“Your Honor!” Jackson objected.

“Simmer down, Mr. Jackson. I’ve got good news for you, too.” He addressed Finn. “I’m concerned about the viability of this evidence. It may very well be too old or too spoiled to be of any value. I’m not willing to suggest that the Commonwealth is responsible for keeping all the evidence from all of its cases pristine indefinitely. As a result, while I’ll allow you access to whatever there is, I am in no way saying that I will or will not order a new trial based solely on the results of DNA testing.” He leaned over and looked closely at Finn. “How long will the DNA testing take?”

Finn had no idea. He looked over at Dobson.

“The testing itself takes a day or two, but there’s a backlog in getting the tests run. Two weeks if it’s rushed, Your Honor,” Dobson said.

“Very well. Gentlemen, it appears that you have two weeks.” The judge looked at his calendar. “I’m scheduling a hearing for Monday, December twenty-fourth. Christmas Eve. By then I expect that you’ll have some reasonable answers for me. One of you will have quite a Christmas present.” He looked at Finn again. “I want to make sure I’m being clear, though, Mr. Finn. DNA testing alone is not going to cut it in my courtroom. Until you offer me some explanation as to why your client’s fingerprints were on Officer Steele’s gun, and why the eyewitness testimony implicated Mr. Salazar, your client will stay in jail.”

Chapter Seve
n

Finn and Dobson stood in the hallway outside the courtroom, wait

ing for the elevator. Neither would look at the other.

“At least we got the DNA evidence,” Dobson said.

“Yeah,” Finn said. “A Pyrrhic victory is better than none at all, I suppose.”

“You never know. We’ve got two weeks to see what we can find.”

Finn gave the younger lawyer an incredulous look. “You’re kidding, right? Look, Dobson, you seem like a pretty good guy, and I’m sure you’re excited to be out here ‘fighting for justice’ or whatever it is you think we’re doing. But you really need to get a grip on the reality of our situation.”

“Which is?”

“Which is that we just lost, and there’s virtually no chance that Salazar’s getting out of jail. Did you hear what Cavanaugh said?” Finn threw his thumb over his shoulder back toward the courtroom. “He said that even if the DNA evidence comes back and doesn’t match Salazar, he’s still not going to order a new trial. Unless we get Officer Steele to recant her testimony, and we come up with a reasonable theory as to why Salazar’s fingerprints were on Steele’s gun, your boy’s gonna die behind bars. And guess what? Neither of those things is going to hap

pen.”

“So what? You just give up now?”

“Did you have a better plan?”

“You better believe it. We start our own investigation. We go over everything in that file, and we see what we come up with. We’ve got two weeks, and if we spend enough time on this, who knows what we’ll come up with.”

“I do, Mark. We’ll come up with nothing. And in the meantime, my bills will pile up so high, I’ll probably have to shut down my office. You see, I don’t have a large law firm that’s willing to pay me for a few weeks and write off my time to good intentions. I’ve got to work to eat, and that means for paying clients. Not to mention the fact that—and I don’t say this lightly—he’s probably guilty anyway.”

Dobson looked thrown. “Who is?”

“Salazar.” Finn could see that he’d wounded Dobson with the mere suggestion. “I’m sorry to be the one to break this to you, and believe me, there’s a big part of me that would like to believe the guy, but the reality is he probably did it.” Finn reached over and jammed his thumb repeatedly into the elevator button.

Dobson stared at Finn in disbelief. “Why did you even bother showing up today, then?” he asked. “Why get involved at all?”