was when it was fired.”
“It may have been fired several days or even weeks before, isn’t that right?”
“I would say only days, because of the condition of the blood at the time I tested it. It was not degraded.”
“Could it have been one week?”
“That’s possible.”
“So, if Eric Richess had fired the gun, say, at a firing range, and some of the webbing of his hand got caught in the slide, that would be consistent with your test results?”
“That’s all speculation, but yes. Consistent.”
The hard part was over, as far as I was concerned. The blood could have come from Eric on the range, and I was prepared to call Christa the tattooed range lady—which suddenly sounded like a song sung by Groucho Marx.
There was still a little more fun to be had, however.
112
“DOCTOR, ARE YOU familiar with an error known as the ‘prosecutor’s fallacy’?”
I didn’t have to look at Radavich to know he was tense and irritable, like a businessman with a morning hangover waiting in a long line at Starbucks.
Jenks said, “I’m not sure I know what you’re talking about.”
“It’s a term from a paper by Thompson and Schumann, titled ‘Interpretation of Statistical Evidence in Criminal Trials.’ Have you read that paper?”
“Not to my recollection.”
“I’ll give you the definition and ask if you agree.” I looked at the copy in my hand and read. “ ‘The prosecutor’s fallacy occurs when the prosecutor elicits testimony that confuses source probability with random match probability.’ Do you agree with that?”
Before he could answer Radavich was objecting and asking for a sidebar.
When we got to the bench Radavich said, “I want to know the basis for this questioning.”
Judge Hughes looked at me and waited.
“This is from a Ninth Circuit opinion, Your Honor,” I said, handing him the copy. “I’m quoting the very language of the decision.”
Hughes scanned it for a full two minutes, then said, “Frankly, I’m not sure I understand what they’re saying.”
“I’ll be frank, too,” I said. “I’m not sure I understand it, either. But that doesn’t matter. I’m not the expert. Jenks is. And I’m asking him questions he, as an expert, should be able to answer.”
Hughes raised his eyebrows. “He’s got a point there, Mr. Radavich.”
“I want to study this case before any further questioning,” Radavich said.
“I’m sorry,” the judge said. “I’m going to give Mr. Buchanan the benefit of his legal research. You can look at the case later and decide what you want to do.”
113
I COULD HAVE kissed Judge Hughes then. A big one, right on his dome.
I settled for going back to Jenks. I had the court reporter read back my last question.
Jenks thought about it. “There is a difference, yes, between source probability and random match probability.”
I read, “ ‘Put another way, a prosecutor errs when he presents statistical evidence to suggest that the DNA evidence indicates the likelihood of the defendant’s guilt rather than the odds of the evidence having been found in a randomly selected sample.’ ” I looked at Jenks. “Would you agree with that?”
“Yes.”
“And would you also agree with the old saying that there are lies, damned lies, and statistics?”
He chuckled. “No, I would not agree with that.”
“I thought you wouldn’t,” I said with as much indignation as I could muster, and sat down.
Then Radavich knocked the socks off all of us. “The prosecution rests,” he said.
114
“ARE YOU READY to proceed, Mr. Buchanan?” Judge Hughes said.
“I wonder if we might recess until after lunch,” I said.
“Is that necessary?”
“Mr. Radavich surprised us all, Your Honor. I was sure he would take all morning.” Radavich knew I thought that, too. He had sandbagged. Wanted to throw me off, like a little hip to the body as I’m driving to the hoop. He succeeded.
Hughes looked at the clock. “Then let’s be back here at one-thirty. I want to get as much in as possible. Court will be in recess.”
As the deputy came for Eric, he said, “What just happened?”
“The prosecutor’s done. He’s going with the expert testimony.”
“What do we have?”
A wing and a prayer, I thought.
“Me,” I said.
115
I TOLD SISTER Mary to keep trying to get Nick, and to lay as much Catholic guilt on him as possible. I don’t think she appreciated that.
I had Christa Cody, the shooting range woman, on call. I phoned her and asked if she could come down now, and go on at one-thirty. She was as anxious as an American Idol contestant.
Which was not good. The last thing you want out of a witness is acting. During the