The Guardians(46)

Rosenberg is on his feet. “Sure does, Judge. It’s right here on the table and we would like to return it to Mr. Falwright, or whoever has the evidence file these days. My client didn’t tamper with or steal anything. He simply borrowed one of the pubic hairs. He was forced to, Your Honor, because Mr. Falwright refuses to do DNA testing.”

“Let me see it,” she says.

Rosenberg picks up a small plastic bag and hands it to her. Without opening it, she looks, strains, finally sees something, and puts it down. She frowns and shakes her head and says to Falwright, “You gotta be kidding.”

Chad stumbles to his feet and begins stuttering. He’s been the DA here for twenty years, and for his entire career he’s had the protection of a like-minded right-winger with little sympathy for those accused of crimes. Leon Raney was his predecessor in the DA’s office. Suddenly, Chad is forced to play on a level field and he does not know the rules.

“This is a serious matter, Your Honor,” he wails with fake indignation. “The defendant, Mr. Post, admits he stole the evidence from the files, files that are protected, files that are sacrosanct.” Chad loves big words and often tries to impress juries with them, but, reading the trial transcript, he often gets them wrong.

She replies, “Well, if I read the record correctly, the pubic hair in question was gone for over a year before you or anyone else realized it was missing, and it came to your attention only when Mr. Post told you about it.”

“We can’t guard all of the old files, Your Honor—”

She raises a hand and cuts him off. “Mr. Rosenberg, do you have a motion?”

“Yes ma’am. I move to dismiss this charge against Mr. Post.”

“So ordered,” she says immediately.

Chad’s mouth falls open and he manages to grunt before falling, loudly, into his chair. She glares at him with a look that frightens me, and I’ve just been cleared.

She picks up another stack of papers and says, “Now, Mr. Rosenberg, I have before me your petition for post-conviction relief filed two months ago on behalf of Duke Russell. Since I am the presiding judge, and will be for an unknown period of time, I am inclined to proceed with this petition. Are you prepared to do so?”

Rosenberg and I are on the verge of some serious laughter. “Yes ma’am,” he replies at full throttle.

Chad has turned pale and is once again struggling to get to his feet. “Mr. Falwright?” she asks.

“No way, Judge. Come on. The State has not even filed a response. How can we proceed?”

“You’ll proceed if I tell you to proceed. The State has had two months to respond, so what’s taking so long? These delays are unfair and unconscionable. Have a seat, please.” She nods at Rosenberg and both lawyers sit down. Everyone takes a deep breath.

She clears her throat and says, “At issue here is a simple request by the defense to DNA test all seven pubic hairs taken from the crime scene. The defense is willing to bear the expense of the testing. DNA is now used every day to both include and exclude suspects and defendants. Yet, as I understand it, the State, through your office, Mr. Falwright, is refusing to allow testing. Why? What are you afraid of? If the testing excludes Duke Russell, then we’re looking at a wrongful conviction. If it nails Mr. Russell, you will have plenty of ammunition to argue he received a fair trial. I’ve read the file, Mr. Falwright, all fourteen hundred pages of the trial transcript and everything else. The conviction of Mr. Russell was based on bite-mark and hair analysis, both of which have been proven, time and again, to be wildly unreliable. I have doubts about this conviction, Mr. Falwright, and I’m ordering DNA testing for all seven hairs.”

“I’ll appeal that order,” Chad says without bothering to stand.

“I’m sorry. Are you trying to address the court?”

Chad stands again and says, “I will appeal such an order.”

“Of course you will. Why are you so opposed to DNA testing, Mr. Falwright?”

Rosenberg and I exchange looks of sheer disbelief, with no small amount of humor thrown in. In our business, we rarely have the upper hand and almost never see a judge peel skin off a prosecutor. Our astonishment is hard to conceal.

Chad, still standing, manages to say, “It’s just not necessary, Your Honor. Duke Russell was convicted in a fair trial by fair-minded jurors in this very courtroom. We’re just wasting time.”

“I’m not wasting time, Mr. Falwright. But I believe you are. You’re stalling and trying to avoid the inevitable. This tampering charge is further proof of that. I’ve ordered the testing, and if you appeal my order you will only waste more time. I suggest you cooperate and let’s get it done.”

She glares at Chad with a withering look that rattles him. When he can’t think of anything to say, she wraps up the hearing with “I want all seven pubic hairs on this desk within the hour. It would be awfully convenient for them to simply disappear.”

“Judge, please,” Chad tries to protest. She raps the gavel and says, “Court’s adjourned.”

Chad, of course, does not cooperate. He waits until the last possible moment to appeal her order, and the issue is sent to the state supreme court where it could languish for a year or so. Up there the Supremes have no deadline forcing them to rule on such matters and they are notoriously slow, especially in post-conviction relief cases. Years ago they affirmed Duke’s conviction after his trial and set a date for his execution, then they denied his first effort at relief. Most appellate judges, state and federal, despise these cases because they drag on for decades. And once they decide that a defendant is guilty, they rarely change their minds, regardless of new evidence.