‘I’m going to allow it,’ says Woodruff. He motions me to sit down.
As I do, I turn, and catch Dana out of the corner of one eye through the slot in the door. She is tracking on Angelo on the stand, and from her expression, she senses what I do. Cassidy would not be calling this witness unless he was going to do some major damage to our theory of the case.
We are at a severe disadvantage here and Morgan knows it. The child and its mother had been buried before our case for the defense had sprouted a theory. It would have required an order to exhume the bodies for us to perform any similar DNA testing. Harry and I had discussed this option at an early stage. But considering the fact that Jack had his tubes cut and was presumably firing blanks from his cannon of conception, we saw no purpose. The child had to belong to someone else.
Cassidy nibbles around the edges for a while, a few preliminary questions to Angelo and then pops the one we are all waiting for. Was he able as a result of these tests to exclude Jack Vega from the population of men who could have fathered this child?
‘No,’ says Angelo. ‘Not only could we not exclude him,’ he says, ‘but using a single-locus probe, in which specific shared genetic factors were analyzed between the dead fetus and Mr. Vega, I would say there is a very high probability that paternity does exist.’
‘How high?’ says Morgan.
‘Based on the probes, he cannot be excluded from the class of potential paternity, and in this case the likelihood of paternity based on multiple DNA probes is more than ninety-nine percent, to be specific ninety-nine point four percent.’
I sit stunned at the table. What Angelo is telling the jury is that as a matter of scientific certainty, Jack is the father of this unborn child. The look of disbelief must register on my face, for when I glance over, several of the jurors are studying me as to effect, an ether of discontent sending over the panel. Several of the women are looking at me, wondering how, in the face of this evidence, I could scandalize a victim whose lips were sealed by death. There is an undercurrent of murmuring in the courtroom, and Woodruff slaps his gavel.
There is no need to manufacture a high point in her case. Cassidy has gone for the underbelly of our own, and ripped it out.
‘Nothing more of this witness,’ she says.
As I rise I feel like I am supported by limbs of jelly. I struggle to keep the stunned expression of anger off my face. But deep down I have the sense that this is manufactured evidence — something hatched at a midnight meeting, when at a weak moment Cassidy saw their case evaporating. It is scientific evidence we cannot test as to its accuracy or veracity.
‘Doctor, there’s no chance of error in your tests?’ I say. A feeble first strike.
‘No.’ No hesitation. Not ‘I wouldn’t think so,’ but an absolute, emphatic no from Angelo.
His hairless dome shimmers under the bright glare of the courtroom lights. The look of enigma is in his eyes. We both know that unless I can shake him on this, the motive for my theory of defense is gone. On the eve of our case, I will be left with nothing to talk about, already committed to a scenario of the crime that Angelo, in ten minutes, has completely destroyed. Without some shadowy lover in Melanie’s bed, why would Jack murder the mother of his own child? Even the most cold-hearted would not commit multiple murder for the purpose of propping up sympathy on sentencing in another, lesser criminal case. Even Jack could calculate the odds on this and find it a loser.
‘Surely there must be some margin of error,’ I tell him, ‘as to the percentage or probability?’ I say.
‘This is not like some political survey,’ he tells me, ‘but science. There is no margin of error, plus or minus,’ he says. ‘The percentage of probability as to paternity turns on the fact that there are degrees of relatedness between individuals. This would range from no possibility, as where the subject is excluded by blood type, for example, to a very low probability, to a point of near or virtual certainty,’ he says.
He smiles, waiting for me to ask, but I do not, where along this continuum our particular case falls. He would only gore me with his pike one more time.
‘It’s very interesting that you’ve reduced none of this to writing,’ I say. ‘Surely there must be working papers?’ I say. ‘Your notes?’
He smiles a little concession. ‘I can produce my working notes,’ he says. ‘They’re not with me at the moment.’
‘Of course not,’ I say. ‘I would like to see them.’
‘No problem. I’ll send them to your office.’
I can examine these and call him again in my case-in-chief, but Angelo knows I am grasping at straws. Any working papers would be written in chicken scratches that only another physician could decipher, and would be crafted in such general and vague terms that the procedures used in testing could be fleshed out only by resort to Angelo’s own testimony. I could spend five grand on a scientific circle-jerk and end right back where I started.
Of course we could run our own tests. Exhume the bodies and do our own DNA, but there is no time and Angelo knows this. Our case opens on Monday. DNA analysis at most labs takes a minimum of six weeks.
I am getting angry. It is written in my eyes.
‘Dr. Angelo, are you familiar with the medical records pertaining to Mr. Vega’s vasectomy twelve years ago?’
‘I’ve read them,’ he says.
‘Well, then, perhaps you can enlighten the court on how it’s possible for a man who’s undergone a vasectomy for the express purpose of sterilization to father a child?’
‘It happens all the time,’ he says.
‘Excuse me?’
‘Obviously you’re not aware, but there’s a considerable potential for failure with regard to this procedure. Lawsuits filed all the time,’ he says, ‘by couples surprised at becoming new parents after the man has undergone a vasectomy.’
‘Now you’re going to tell us that ninety-nine-point-four percent of these procedures fail. Is that right, doctor?’
‘No, actually it’s about five percent.’
‘Pretty rare,’ I’d say. ‘Not exactly an odds-on bet,’ I tell him. ‘I suppose some witch doctor performed this procedure on Mr. Vega, using a dull stone scalpel?’
‘No. It’s called recanalization,’ he says. ‘The vas deferens, the excretory duct for sperm from the testicles, is normally severed as part of the vasectomy. The ends are tied off. Failure rates often depend on how much is removed and how the occlusion is performed, the tying-off,’ he says. ‘If the occlusion fails, the ends of the duct can grow back together and rejoin.’
‘Did you surgically examine Mr. Vega to determine that this is what occurred?’
‘No,’ he says. ‘But the techniques used by the physician in his case are no longer considered to be medically on the cutting edge. Please excuse the pun,’ he says.
A few jurors actually smile at this. Angelo has made a joke. He is mocking me. Unless I can turn this around I should sit down now. But I have dug the hole deeper, damaged our case more by these specifics. The compulsion to fill in just a little, some concession from the witness, some seeming high ground that I can end it on, if only for the illusion that we have gained something by all of this. Like the compulsive gambler, I am driven to win back just a little of my losses, some equivocation that I can build on later, that I can argue to the jury on close.
It is a high-stakes gambit, but I sense that even the most medically disinclined in this courtroom have a singular burning question at this moment. If I passed out a hundred cards for suggested queries, all would come back with this at the top of the list. I could leave it and sit down, but the jury will wonder why. Against this I balance the first rule of the courtroom: never ask unless you know. Still, I can hear it murmured in their collective minds. It is overpowering, a single interrogatory in the desperate hope that he says no.
‘Dr. Angelo, did you perform a sperm count on Mr. Vega?’