Defending Jacob(107)

“The government mentioned the phrase ‘The absence of evidence is not evidence of absence.’ Do you remember that?”

“Yes.”

“Isn’t it also true that the absence of evidence is precisely that: an absence of evidence?”

“Yes.”

Jonathan showed a wry smile to the jury. “In this case, we have a fairly substantial absence of evidence, don’t we? There is no blood evidence against the defendant?”

“No.”

“Genetic evidence? DNA?”

“No.”

“Hairs?”

“No.”

“Fibers?”

“No.”

“Anything at all that puts the defendant at the scene besides that fingerprint?”

“No.”

“Handprints? Fingerprints? Shoe prints? All missing?”

“That’s true.”

“Well! Now, that’s what I call an absence of evidence!”

The jury laughed. Jacob and I laughed, more with relief than anything else. Logiudice jumped up to object and the objection was sustained, but it hardly mattered.

“And the fingerprint that was found, Jacob’s fingerprint on the victim’s sweatshirt. Isn’t it true that fingerprint evidence has one huge limitation: you can’t tell when the print was put there?”

“That’s true, except for the inference to be drawn from the fact the blood was still wet when the defendant’s finger touched it.”

“Yes, the wet blood. Exactly. May I pose a hypothetical to you, Ms. Rakowski? Let’s suppose, hypothetically, that the defendant, Jacob, came upon the victim, his friend and classmate, lying on the ground in the park as he, Jacob, walked to school. Suppose, again for our hypothetical, suppose it was only minutes after the attack. And suppose finally that he held the victim by his sweatshirt in an attempt to help him or to be sure he was okay. Wouldn’t that be perfectly consistent with finding the fingerprint where you did?”

“Yes.”

“And finally, with regard to the knife we heard about, the—what was it?—the Spyderco Civilian. Isn’t it true that there are many knives that could have created those wounds?”

“Yes. I presume so.”

“Because all you have to judge by is the characteristics of those wounds, the size and shape, the depth of penetration, and so on, isn’t that right?”

“Yes.”

“And all you know, therefore, is that the murder weapon seemed to have a jagged edge and a blade of a certain size, isn’t that right?”

“Yes.”

“Did you make any effort to determine how many knives out there fit that description?”

“No. I was asked by the DA only to determine whether that particular knife was consistent with the victim’s wounds. I was not given any other knives to compare.”

“Well, that’s putting the rabbit into the hat, then, isn’t it?”

“Objection.”

“Sustained.”

“The investigators made no effort to determine how many knives could have made those wounds?”

“I was not asked about other models, no.”

“Do you have any idea, roughly? How many knives would leave a wound about two inches wide and penetrate three or four inches?”

“I don’t know. I would be speculating.”

“A thousand? Come on, it must be at least that many.”

“I couldn’t say. It would be a large number. You have to remember, a small knife can create an opening larger than the blade itself, because the attacker can use it to slice the wound open. A scalpel is quite small but obviously it can create a very large incision. So when we talk about the size of the wound relative to the blade, what we’re talking about is the maximum size of the blade, the outer limit, because obviously the blade cannot be larger than the opening it was inserted into, at least if we’re talking about a penetration wound as we are here. Below that limit, the size of the wound alone cannot tell you precisely how big the knife was. So I can’t answer your question.”

Jonathan cocked his head. He was not buying it. “Five hundred?”

“I don’t know.”

“One hundred?”

“It’s possible.”

“Ah, it’s possible. So our chances are one in a hundred?”

“Objection.”

“Sustained.”

“Why were the investigators interested in that particular knife, Ms. Rakowski, the Spyderco Civilian? Why did they ask you to compare that model with the wounds?”

“Because it was mentioned in an account of the murder that the defendant wrote—”

“According to Derek Yoo.”

“Correct. And the same witness apparently saw a similar knife in the defendant’s possession.”

“Derek Yoo again?”

“I believe so.”

“So the only thing connecting that knife to Jacob is this one mixed-up boy, Derek Yoo?”

She did not answer. Logiudice objected too quickly. It did not matter.

“Nothing further, Your Honor.”





33 | Father O’Leary


The case was becoming a close thing, it seemed to me, but I still felt optimistic. Logiudice was hoping to draw an inside straight—to assemble a winning combination out of a messy hand of deuce-three-five-six. He had no choice, really. He had crap cards. No ace, no piece of evidence so damning it required the jury to convict. His last hope was a cohort of witnesses culled from Jacob’s classmates. I could not imagine any of the McCormick kids commanding that much respect from the jury.