Mike and I zigzagged our way through the hapless gaggle of criminals-some arguing with their public defenders, others waiting with family members or friends-who filled the fifteenth-floor corridor of the criminal courthouse.
“Somebody’s got Battaglia wound up about Barr, or knows something about her attacker,” I said.
“So when we finish here, I’ll drive you to her apartment.”
“I just called Mercer. He’ll meet us there, too.”
He pulled on the large brass handle of the door in the middle of the hallway, holding it back so that we both could enter Part 53 of the Supreme Court of New York County, Criminal Term.
Harlan Moffett was on the bench, his back to the courtroom, seemingly engrossed in the New York Law Journal. Mattie Prinzer, the first woman to head the OCME crime lab, was seated alone in the front row. Only the staff was present-no spectators-and a well-dressed man who appeared to be younger than I, sitting at the defense table, the one farther from the empty jury box.
The court clerk saw us enter and signaled to the reporter, then got the judge’s attention. “We have the prosecutor, Your Honor. Shall we bring the prisoner in?”
Moffett spun in his chair and folded the newspaper. “Good to see you, Ms. Cooper. Detective, thanks for making yourself available on such short notice. Say hello to your adversary, here. What’s your name again, son?”
“Eli Fine.” He got to his feet and extended his hand to shake mine after I entered the well and dropped my files on the table.
“You have a chance to meet your client yet?” Moffett was in his seventies, close to mandatory retirement. His once-thick white hair had thinned and faded to a dull gray, but the garnet pinky ring he sported still sparkled as he twisted it while he talked.
“I spent a couple of hours with him at Rikers yesterday, after I flew in.”
“Let’s have Jamal Griggs,” the judge said, motioning to the court officer in charge. “How long you been out of school, Eli?”
“Six years, sir.”
“I’ve been a judge for more than thirty.” Moffett had been around long enough to know most of the New York bar that practiced in this forum. The courthouse regulars were used to his schmoozing and put up with his clumsy attempts at humor in hopes he would rule in their favor. The judge didn’t bother to clean up his act for strangers.
Fine was biting his lip. “Judge, would you mind if we-?”
The court reporter had worked with Moffett often enough to know to keep her fingers away from the keyboard until the judge signaled that he wanted to go on the record.
“Take off your sunglasses, Mr. Fine. That’s what I mind. We’re not in Malibu. You admitted in New York?”
“Yes, sir. I graduated from New York Law School. Took the bar both here and California.”
“Long as we’re legal, son.”
The door to the holding pen opened and an officer led Jamal Griggs into the room. He smiled when he saw his lawyer, and waited for his hands to be uncuffed before taking the seat beside him.
Fine was whispering something to Griggs when Moffett interrupted him. “What brings you to town today?”
“Ms. Cooper and her team have been conducting an investigation, and-”
“We’ve got a habit here, son. We stand up when we address the court,” Moffett said, turning the motion papers over to read the name of Fine’s law firm. “Stein, Schlurman, and Fine. Ever try a murder case, son?”
Eli Fine slowly rose to his feet. “Entertainment law, sir. It’s our specialty.”
“Entertainment lawyers? That’s an oxymoron,” Moffett said, resting his elbows on the bench and tapping his fingertips together. “Ms. Cooper’s had-what is it, dear? Six, seven trials to verdict in front of me. You’re not careful, she could take you to the cleaners. What’s your motion?”
The young lawyer looked at the reporter. “Are we on the record?”
Moffett rapped the gavel to regain Fine’s attention. “When I tell you we are. Give me a sense of what you want.”
“As you know, Judge, my client is incarcerated for an armed robbery. Despite Ms. Cooper’s best efforts to connect Jamal to the unsolved homicide of Kayesha Avon, his genetic profile did not match the evidence in the case,” Fine said, reading from notes that I expected had been prepared for him by a defense attorney familiar with the language of a criminal law practitioner. “Now she’s come before this court on an absurd fishing expedition, having applied for an out-of-state search warrant to get into the California database. I’m here to oppose that application.”
“Come all this way to try to stop Ms. Cooper? I’m impressed, son.” Moffett rubbed the hem of his sleeve over the garnet stone in his ring, admiring the polishing job when he finished. “Now, what’s in that databank that’s so damn important to the People of the State of New York?”
“Nothing worth invading the privacy of any citizens of California, sir. The attorney general has taken a strict position on protecting the integrity of the state’s database.”
“What are you after, Alexandra?”
I was on my feet, ready with my arguments. “We’d like to do a familial search, Your Honor.”
Moffett cupped his hand to his ear. “A what?”
“A familial search, Judge. It’s a new forensic technique, and we’d like to use it in this matter. The warrant requests the DNA profile of Jamal’s brother, Wesley Griggs, which we believe is in the crime scene evidence database of California.”
“Wesley’s a convicted felon out there?”
“No,” I said. That would make our task simpler. His profile would probably be in the FBI’s CODIS files if that were the case. “We understand he was present at a drug-related shooting, and that genetic material of his was recovered and processed. He’s not in the convicted offender files, but we have reason to believe he’s in the evidence databank.”
“Why go through all this red tape?” Moffett said. “You asked the AG nicely for it?”
“Yes, Your Honor. But Mr. Fine is right. California is among the toughest jurisdictions on kinship searches. They simply don’t allow them at this point, although there is precedent in several other states. There haven’t been many cases on point. I’ve submitted documents to you and have a copy for counsel,” I said, passing a memo and stack of scientific treatises to the court officer to give to Eli Fine.
“So you want to make some law here, hon, is that it?” Moffett said, shuffling papers around on his blotter. “Eli, did you brief this for me?”
“No, sir. I figured you’d take oral argument.”
“From the land of the hip-shooters, young man,” Moffett said, swiveling in his chair and pointing to the elaborate portrait of Lady Justice, standing beneath the flag, with the words E Pluribus Unum at her feet. “You know how that translates, Mr. Griggs?”
Jamal leaned forward and squinted at the Latin inscription, then shook his head.
Harlan Moffett stood and adjusted the belt on his trousers before wagging a finger at the defendant. “ E Pluribus Unum. Always hire local counsel, Mr. Griggs.”
“Judge, I really object to that kind of comment in front of my client,” Fine said.
“Move for a change of venue if it suits you. You got some nice racetracks in California. I’d like to hold these proceedings somewhere near Santa Anita myself,” Moffett said, taking his seat. He liked the ponies more than he enjoyed writing decisions, since he had an unusually high percentage of reversals by the Court of Appeals. “Maybe I’d better take some testimony.”
He pointed at the reporter and made a few comments about the nature of the hearing, then asked me to call my witness. I signaled for Mattie to go out to the witness room to wait for her turn to testify, and I called Mike’s name into the record.
Mike Chapman walked to the stand and placed his hand on the Bible that the court officer held out to him. I walked him through his education at Fordham College, where he majored in military history, through his years on the job and early successes that vaulted him to the prestigious homicide squad, and brought him to the current re-investigation of Kayesha Avon’s death.
“Did you respond to the scene of the crime, Detective?”
“Yes, ma’am, I did.”
“At what location?”
Mike stated the address. “On the rooftop of her apartment building, in the projects at Taft Houses in East Harlem.”
I let him describe the heartbreaking sight of the college student’s body, after she was abducted from the elevator in her own building on her way home from class.
“Were you present the following day, eight years ago, at Ms. Avon’s autopsy?”
“Yes, I was.”
“What findings were made by the pathologist?”
“There were six stab wounds in Kayesha’s neck and chest, one of which pierced her heart.”
“Was there any blood evidence found at the scene?”
“No. No, there was not.”
“Any fingerprints?”
“None.”
“Any seminal fluid?” I continued.
“Yes. There was semen in her vaginal vault, and also on her right thigh. She appeared to have been sexually assaulted before she was killed.”
“Was a genetic profile developed by a forensic biologist at the Office of the Chief Medical Examiner?”
“Yes, ma’am.”
“Can you tell us what efforts were made at that time to find a match to that DNA sample?”
“As Your Honor knows,” Mike said, “back then, we were in the infancy of databanking. We ran the crime scene samples against the entries-many thousand fewer than there are today-and had the lab make comparisons to specific suspects we developed through the tip hotline.”
“Was a match ever declared?” I asked.
“Nope. Not even close.”
“What else did you do?”
“Every six months, I asked Dr. Prinzer at OCME to run the evidence against the convicted offender databank, which has been growing steadily, Judge. Kept going back, hoping to get lucky.”
Mike had been haunted by the brutality of Kayesha Avon’s death. He had refused to give up the investigation to the more recently formed cold-case squad, determined to find the young girl’s killer himself, with the help of this revolutionary scientific technique.
“Was Jamal Griggs’s DNA profile among the samples submitted during the last seven and a half years, Detective?” I asked.
“No, ma’am.”
“Is it correct that Jamal Griggs had a homicide conviction?”
“Yes, he did. But because he had been a juvenile offender at the time of the murder, his DNA was not included in the databank.”
“Do you know the facts of that case?”
“Yeah. I do.” Mike paused and stared directly at Griggs. “Jamal was fourteen years old. He had dropped out of school to sell drugs with his big brother, Wesley.”
Eli Fine pushed his chair back but seemed uncertain about whether he should be objecting to this line of questioning.
“The girl he killed was sixteen,” Mike went on. “Jamal stabbed her in the back when she made the mistake of accidentally busting up a drug sale by knocking on the wrong door.”
“Did there come a time when you asked Dr. Prinzer for a comparison to be made to Mr. Griggs’s DNA?”
Mike shifted in his seat and ran his fingers through his hair. “Yeah, about three months ago, just after his robbery conviction.”
“Would you tell the court what result you were given?”
“Objection, Your Honor.”
“On your feet, Mr. Fine,” Moffett said. “That’s the only way I can overrule you. What grounds?”
“Hearsay.”
“You’re not offering this for the truth of it, are you, Alex? Dr. Prinzer’s going to testify, too, isn’t she?” Moffett asked, without waiting for my answers. “Overruled. It’s just a hearing, young man. You got no jury. Save your energy for cross-examination.”
Fine sat down and scribbled furiously on his legal pad while Mike answered the question. “There was no hit, Ms. Cooper, but Dr. Prinzer told me she had a partial match.”
I finished questioning Mike, establishing that every other means of identifying the perpetrator in Kayesha’s homicide had been unsuccessful. Moffett needed to understand that a kinship search was our only alternative. Fine went nowhere with his brief cross-examination, and Mike stepped down from the stand.
“The People call Dr. Mathilde Prinzer,” I said. She would take the scientific piece of the testimony forward.
It took more than fifteen minutes to list her credentials and establish her unique expertise in this still-evolving field of forensic science. If this case of first impression was to stand up to appellate scrutiny, I wanted the full effect of this brilliant scientist’s body of work.
In addition to her daily routine with the five city prosecutors’ offices and the NYPD, Mattie had been among the OCME heroes of 9/11, working doggedly with her colleagues to identify victims from thousands of tiny fragments of human tissue.
I ran her through a primer of DNA testing, more familiar to Moffett than to Fine, who had a puzzled look on his face throughout the entire direct.
“When you compare a suspect’s DNA profile to a crime scene evidence sample, Doctor, what are the possible outcomes?”
“Traditionally, Ms. Cooper, we have had three results. A match can be declared if you have thirteen loci in common-that is, thirteen places on the chromosome at which the gene for a particular trait resides,” Prinzer said, speaking slowly and looking at Fine as she spoke. “A suspect can also definitively be excluded if genetic differences are observed. The third option has been a finding of ‘inconclusive’ if we don’t have enough information to make a positive determination.”
“Has the scientific community recently accepted a fourth category?”
“Yes. We have begun to develop indirect genetic kinship analyses, using the DNA of biological relatives, in humanitarian mass disasters and for missing person identifications, situations in which we have only small samples of genetic material. We try to compare those to DNA from surviving relatives. In those instances, we’re usually working with partial matches.”
“Can you explain to the court the meaning of the term ‘partial match’?”
Moffett moved his chair closer to Prinzer.
“Certainly. When we look at the thirteen loci needed to declare a match, there are two physical traits charted at every one of them. You see them as peaks on the Avon case lab report Ms. Cooper provided to you,” she said, as Moffett and Fine tried to find the corresponding page. “These peaks-or alleles, as we call them-come in pairs, one from the mother and one from the father.”
Moffett nodded as he listened.
“In a partial match, at each of the thirteen critical loci, the profiles being compared have at least one allele in common.”
“You could see that on this paper?” the judge asked, bending over the bench and holding out his report to Mattie.
“Oh, yes, Your Honor.” She held the report and pointed to a pair of peaks. “Look right there. In our business, those graphics really stand out.”
“And what do they tell you?” I asked.
“In the case of Kayesha Avon, we’ve got high-stringency matches to Jamal Griggs at eleven of the thirteen loci on his sample. So I know I’m not looking at the DNA of the person who contributed the crime scene sample, but in all likelihood I’m staring at the genetic profile of someone closely related to him. Probably Jamal’s full sibling.”
Probably Wesley the Weasel.
“Has the partial-match technique been used to solve any crimes, to your knowledge?”
“Familial searches have been used with great success in the United Kingdom and Wales,” Prinzer said, citing the cases of child predator Jeffrey Gafoor, serial murderer Joseph Kappen, and James Lloyd, the notorious shoe fetish rapist of Rotherham. “In this country, in 2005, the process exonerated a North Carolina man who’d been incarcerated for eighteen years and identified the killer who’d left his DNA on cigarette butts at the crime scene.”
“Does the FBI provide information on partial matches, Dr. Prinzer?”
“Not as of this time, Ms. Cooper. My colleagues and I are required to submit a request for the release of the information sought, along with the statistical analysis used to conclude that there may be a potential familial relationship between the suspected perpetrator and the offender.”
“Have you prepared the statistical analysis in the matter of Kayesha Avon?”
“Yes, I have. To begin with, Justice Department figures confirm that fifty-one percent of prison inmates in this country have at least one close relative who has also been incarcerated,” she said. “And in this case, the donor of the crime scene semen shares twenty of the twenty-six alleles with Jamal Griggs.”
“Can you tell us what that means, Dr. Prinzer, with a reasonable degree of scientific certainty?”
“Yes, I can. It means that we’re looking for Jamal’s biological brother. For his full sibling-same mother, same father. I believe that’s whose semen was in Kayesha Avon’s vaginal vault.”
I concluded my questioning and watched as Eli Fine wrangled with Mattie Prinzer. Prosecutors and members of the criminal defense bar took courses in DNA advances every six months to keep current with the technology. The Weasel must have thought his high-priced mouthpiece could bluff his way through opposing the search warrant application, but Fine was in over his head.
Moffett watched Fine struggle for half an hour. Finally the judge stood up and twisted his ring as he began to talk. “Let me help you out here, son.”
“Judge, I’m perfectly capable of-”
“Sit down, Mr. Fine. I’ve got some questions of my own.”
Moffett waited until the young man took his seat next to Griggs. “So, Doc, the FBI releases only perfect matches, am I right?”
“Yes, you are.”
“But in New York -you’re satisfied these partial matches are useful?”
“We’re one of the few states that generates them, along with Virginia and Florida. Many more allow law enforcement agencies from other jurisdictions to go into their databases if probable cause is established. We believe kinship searches have an enormous potential to solve crimes, to increase database hits by more than twenty percent all over the country.”
“Let me ask you this, Doctor. You know how many brothers Jamal Griggs has?”
I tried to keep a poker face. Moffett was a sleeper, sometimes coming alive mid-trial to hit on the one question that either the assistant DA or defense counsel had overlooked. He’d just handed Fine a gift.
Mattie Prinzer turned her head to the judge. “I have absolutely no idea.”
“Step down, Doctor. You know the answer to that, Alexandra?”
“No, sir.”
“This Wesley character, is he the only one?”
“I don’t believe so, Your Honor.”
Moffett snapped his fingers at the court officer nearest the side door of the courtroom. “Get me Chapman.”
In less than a minute, Mike walked back into the room.
“You’re still under oath, Detective. Have you ever met Mama and Papa Griggs, Chapman?”
“Mrs. Griggs is dead, Your Honor. I have spent some time with Jamal’s father, Tyrone.”
“And how many little Griggses did they produce?”
“Six children, sir. They have six grown sons.”
Eli Fine had one of the biggest shit-eating grins I had ever seen spread across his face.
“Where are they, Chapman, the other four?” Moffett was waving his arm in large circles, swinging the sleeve of his robe as he did.
“Tyrone Junior lives right here in Manhattan. The other three don’t check in at home very often.”
“How many of the Griggses’ sons have rap sheets?”
“Two that I know of, sir,” Mike said. “Just Jamal, and then Wesley took a few misdemeanor collars for drugs, before he moved his operation to the coast. None of those were designated for databank entry.”
“Let me make it clear, Your Honor,” I said. “We’d be more than pleased to take a swab from each one of Jamal’s brothers. We happen to know where Wesley is, and we know he has a history of criminal behavior.”
Harlan Moffett snapped his fingers again and pointed at the court reporter. “Take a break, Shirley.”
The portly middle-aged woman clasped her hands over her stomach.
“You believe in this stuff, Chapman?” Moffett asked. “These familial searches?”
Mike smiled at the judge. “I do.”
“You understand what she’s talking about, with these peaks and alleles and locusts?” Moffett said, aiming his pinky ring at Mattie Prinzer.
“Loci, Your Honor. Soft c. Couldn’t be easier,” Mike said, grinning at Jamal Griggs. “It all comes down to a simple rule of law: Don’t do the crime if your brother’s doing time.”
“Hear that, Jamal?” the judge asked before turning to Eli Fine. “And your objection to Ms. Cooper’s request?”
“Ms. Cooper’s plan is a violation of the Fourth Amendment rights of every single citizen whose DNA is in the California database. It’s an impermissible invasion of privacy, an unreasonable search and seizure.”
Someone in Fine’s office had prepped him to regurgitate the key legal buzzwords for his argument.
“Convicted felons give up lots of rights. Who’s your client, here? Jamal Griggs or Wesley?”
“Ms. Cooper’s made her application in the matter of Kayesha Avon. I’m opposing it on behalf of Jamal Griggs, who has been exonerated in this investigation. People who just happen to be related to criminals haven’t given up their own privacy rights. It’s genetic surveillance, Your Honor. It violates the Constitution.”
“So you’re protecting all the nuts and fruits in California, are you? And you, Alexandra?”
“Suppose Detective Chapman and I were working on a vehicular homicide case, a hit-and-run accident with an eyewitness who saw the whole thing. She tells us the make and model of the car and remembers the first three numbers of a six-digit tag. She gives us a partial plate.”
“Yeah?”
“Would you expect Chapman to just shrug his shoulders and back off from the investigation, or would you expect him to go to the DMV and search it for all the plates-every single one in existence-that include the numbers he was given?”
“We’re not talking about license plates, Your Honor,” Fine said. “We’re talking about human DNA. African Americans and Latinos make up a disproportionate amount of the database entries in every state, because of their representation in the criminal justice system. This-this wild-goose chase targets minorities and indigents.”
“You’re not disputing that the science works, then, are you?”
“I’m not conceding a thing. It’s an outrage that Ms. Cooper thinks she can go through every name in the database.”
“There are no names in there, Judge,” I said. “The forensic biologists can’t see any individual’s name in a database-every entry has a numerical designation. If there is in fact a match between the samples, then the techs have to call the state’s CODIS administrator to get the person’s name. The identity protections are all in place.”
Harlan Moffett stroked his chin again. “You got any plans to invite Wesley home for Thanksgiving, Jamal? Make it easy for me?”
Jamal Griggs stared Moffett down.
“Tell you what, Mr. Fine. I’ll take the matter under consideration. I’ll have a decision on this by early next week.”
“I assumed you’d rule on this from the bench, Your Honor. I’ve got to go back to California in the morning.”
“The State’s waited eight years to figure this out. So they’ll wait a few more days. You will, too. Tell Wesley to behave himself this weekend.”
Jamal Griggs cocked his head at his lawyer and slammed his open hand on the table.
“I told you, Mr. Griggs, E Pluribus Unum. Mr. Fine can’t be here, I’ll appoint one of the Baxter Street boys to represent you,” Moffett said, referring to the court-appointed lawyers who hung out in street-front offices across from the Tombs. “Suit yourself, Mr. Fine. It’s in your client’s best interest-well, it might be-if you show up for him.”
The Weasel was paying good money to keep our noses out of the California database, and Jamal was clearly not interested in disappointing him.