Dancing Naked in the Mind Field (6 page)

As it turned out, the most dangerous thing in my lab was associated with Our Lady of Safety. One afternoon a man who thought he was her boyfriend kicked open my door and started threatening me. That was the only time in my life that I worried about my safety in a laboratory.

W
INNING THE
N
OBEL
Prize for PCR put me and my surfboard on the front page of nearly every newspaper in the world. By the time nightfall had swept once around the planet, a conservative estimate placed 328,716 small caged birds directly above my picture, flicking little greenish droplets rancid with uric acid.

That number is based on a world population in 1993 of 5,506,000,000 and estimates by Mr. Jamie Yorck, a noted bird expert from San Francisco, that one sixty-seventh of all human beings own caged small birds; and all of them of necessity buy some newspaper, which they replace daily in the cage, unless they are pigs, again according to Mr. Yorck. The average size of that newspaper might be twenty-five pages on weekdays, and my image spanned about one-tenth of a page. Thus, 328,716 birds were directly above me. Add the further indignity of chicks, kitties, puppies, wrapped fish entrails, and the unknown dark fluids deep in tropical dumpsters. It gave me the creeps.

Speaking of birds, I bet you didn’t know that birds and primates, but not kitties, puppies, or other mammals, secrete uric acid as the final metabolic product of DNA. Uric acid secretion is something primates have uniquely in common with
birds. Among the primates, humans are the only whistlers. Birds whistle. I think this suggests an avian connection, and isn’t it true that we have learned to fly? Maybe again. How come we’re not descended from the birds? Perhaps, if the hulking, upright, bipedal dodo had not been extinguished so quickly in the seventeenth century by the arrival on Mauritius of European fools with firearms, there may have been more scholarly debate on the missing link status of the dodo. DNA evidence as advanced by PCR in the latter part of this century made our avian ancestry less likely. On the contrary, it supported our very close connection to the apes. In 1995, in Los Angeles, California, our collective behavior in the O. J. Simpson trial was not helpful in refuting that connection. If we hadn’t been already, then there we made apes of ourselves.

The Nobel Prize splattered me a bit, birds and all that. But if the O.J. trial did also, then there, at least, I was not alone.

Among the evidence found at the murder scene were several drops of blood not from the victims. Presumably from the killer. DNA tests conducted by the prosecution indicated they belonged to Mr. Simpson. It placed him at the murder scene. It was the most incriminating evidence against him. The defense lawyers knew that if they couldn’t raise doubts about that, O.J. was in trouble.

Mr. Simpson hired a number of lawyers, including Robert Shapiro, Johnnie Cochran, and F. Lee Bailey. Because of the DNA evidence, they brought in Barry Scheck, Peter Neufeld, and Bob Blasier.

It didn’t surprise me when I got a call from them. Barry and Peter wanted to come down to La Jolla.

In the American judicial system, you don’t come into a trial
as a neutral observer for the court. You have to be on one side or the other. You can’t just be an expert. You have to be for somebody. It’s called an advocacy system, and it’s a little weird. You swear to tell “the truth, the whole truth, and nothing but the truth, so help you God.”

“So, help me, God. Do I tell the truth differently depending on which side I’m on?”

“Sorry, pal, can’t help you there. You want to talk about sin, I can do that. You want to talk about the law, get a lawyer, or talk to the other guy.”

You work on it in the wee hours when you have to get up and testify. You get to know the system and you discover that the “whole truth and nothing but the truth,” regardless of the poetic flow of the oath, is not what they are expecting. And they do have their reasons. You can especially forget about the “whole” business. Only selected parts of the truth are of interest. And only certain parts are required. What is required is determined by a dusty web of law and precedent stretching back to England, and then by the daily pleadings of the lawyers, and then by the learned rulings and whims of the judge, and always waiting just offstage, the sudden and unpredictable turn of the cards.

If you are a lawyer, you have started pondering these things in school, and as your career advances, they seem more and more reasonable. Advocacy is at the root of this. It is a very large and very loaded word. It is our system of justice. We don’t trust our system and we need an advocate of our own. And if we can afford it, we need a damn good one. Maybe several. If he’s been on Larry King, so much the better.

I had previously testified in murder trials for the defense,
and I’d felt that my role there was to make sure the PCR-DNA work had been done fairly and correctly. I was not there to be on someone’s side. I found in almost every case that the testing protocols did not stand up under careful scrutiny and that the errors were neither inconsequential nor insubstantial. Was I falling under the spell of advocacy? I don’t know. I think I was being objective.

Technical testimony by an expert witness, ironically enough, isn’t. It’s very much a matter of style, not content. You can’t talk to a jury about the technical details of your specialty and make any sense. The jury won’t know what you’re talking about, and that is precisely why you were hired.

So what you say is much less important than how you say it. It’s like when you get off the beaten trail in Mexico—you can’t speak Spanish and they can’t speak English—but you don’t start acting like an asshole if you want some help. You act helpless. And they help you. You make your points with your hands and your eyes, and the tone of your voice.

Cross-examination sometimes comes down to the opposing lawyer forcing you to give a simple answer to a complicated question that you would rather answer with a yes or a no followed by a long qualification and some mitigating circumstances. The cross-examiner will hold you against your will to a simple answer. He’ll keep asking the question over and over. Your counsel will keep objecting. The jury sees you struggling. Sometimes the objections will be sustained, finally one of them will be overruled and you will have to answer. If you say “Yes, but” followed by a long explanation, chances are your explanation will be stricken from the record. It looks as if you’re trying to squirm out of something.

I have mixed feelings about expert witnessing in a murder trial.

Barry and Peter came by La Jolla, and I liked them right away. They were not super-cool-plenty-slick lawyers in it exclusively for the money. They were law professors from New York and had been using DNA evidence to get innocent people off death row. They told me that the newly developed DNA tests introduced into reopened trials established the innocence of one out of four convicted but unconfessed murderers. One out of four? I was surprised.

If you find DNA in intimate association with a crime, for instance, in the underwear of a rape-murder victim, and it’s not the victim’s and it’s not the suspect’s, and there is no DNA present from the suspect, then you’ve very likely got the wrong man. On the other hand, just finding DNA at the scene of a crime that resembles a suspect’s DNA in every way you have examined it could mean many things. If you find the first two numbers of a social security number you can prove it’s not mine if it doesn’t match, but you can’t prove it is mine if it does. You need the whole thing to do that. DNA evidence as obtained by forensic labs is only the first two numbers. It has its limitations.

Like just about everyone else, I was curious about the Simpson case. Barry and Peter said the DNA work had been totally botched, and after they showed me some details of their analysis, I could see they had a case. Not only had things been botched, but the honesty of the detectives, Lang and Fuhrman for two, was not at all clear. That wasn’t really my job.

I got involved and I looked closely at all the details.

The Los Angeles police didn’t know how to run a lab and
probably shouldn’t be expected to know any time soon. The very idea that a lab is run by one of the advocates in an adversarial contest is itself a little fishy. LAPD labs had some of the right tools but by no means all the right tools. People had been hired to follow the written instructions on the boxes of DNA investigation kits available from various manufacturers, but the people were young and they didn’t know the chaff from the wheat, or their ass from a hole in the ground. They were fresh out of college.

After looking at facts, I decided most of the DNA evidence should be thrown out on first principles. I’m referring to principles of science that had been clearly established by the end of the seventeenth century. Nothing fancy. I agreed to demonstrate to a jury why I thought that.

Once I had said yes, I started watching the trial, and once I started watching, I got hooked. Me and the entire AARP and everybody who was unemployed at the time or only had to work at night. The mothers of everybody I dated after that loved me. I could talk about the case. Sadly, the daughter had to work. It was the most incredible soap opera ever. Did it get awards? It certainly spawned a bunch of lawyer shows.

I knew all of Marcia Clark’s outfits. I noticed when she bought something new, and I was horrified when she changed her hairstyle. I figured that when I was finally up there I would probably have lunch with her, the way professionals do, and tell her, casually, just between us, that I thought the hair change was distressing for the jury’s sense of continuity.

When I finally ran into her, we were walking in opposite directions on the aisle that separated the accused from the injured side of the courtroom. I smiled at her. I felt as if I knew
her. She saw me. She wasn’t familiar with my wardrobe, but she had already been talking about me on TV, and she had seen pictures. She knew me. And she knew that I had just arrived in town to work on her case. We were both being paid. I expected at least a weak smile.

She looked straight ahead, right past me. Precisely straight. Not a single degree off line of 180 degrees from the direction of her rear end. I was deflated. She was like that the whole time I was there. Day after day I watched this princess of the county unable to feel even the first degree of noblesse oblige. Oh well, it was Los Angeles. Darden was equally unapproachable. I think he must have modeled his behavior on hers.

When you get the hang of it, science, like everything else people do for a living, is pretty straightforward. You are in the business of solving puzzles. The way to approach a puzzle is to think about it for a while, look at all the facts you can find out about it, and then take a guess. Propose a solution. The next step is to try your best to disprove your solution. Show that the pieces don’t fit together in the way that you have proposed. If you can do that, then propose another solution. And then do the same thing. Reality is a tricky little puzzle. Sometimes a few pieces will fit together but they don’t really belong together. Some solutions will seem to be right for a time, but then they fail. The one that accounts for all the relevant facts and cannot be disproven—all the pieces fit together without squeezing them too hard, and new pieces fit together on top of them—is probably right. It’s as close to being right as your ability to know the initial facts. You can claim that your solution is tentatively true awaiting further study. Or look at the picture on the box.

The crime lab is supposed to help figure out whether the pieces fit together. It isn’t supposed to make sure that they do. When the experiments conducted in the crime lab come out black and white, it’s easy, but often it doesn’t happen that way. If the results of testing are not quite clear, forensic scientists have to rely on a large number of observations that are maybe yes—but quite possibly no—and then a new dimension comes into the process. Self-delusion.

It is here that people have to be very careful not to get personally involved in the act of deciding between alternative solutions to a puzzle. Their salary, for example, should not hang in the balance.

The way good scientists deal with the possibility that they may be swayed one way or the other in their evaluation of fuzzy observations is to intentionally keep themselves totally in the dark about the meaning of the observations they’re making. This is known as doing a blind study. If, for instance, you want to sell a new drug and you work for a drug company, the FDA requires that you do a blind study. They don’t trust you. And neither should you.

In the Simpson case it would have been prudent from the very beginning if O.J.’s blood had been stored locked away in a coded vial without his name on it. To make things convincing, several other samples of blood should have been taken from presumed innocent people, coded and similarly stored. The DNA structure of all of these samples should have been compared with that of the blood found at the crime scene. When all the testing was done, then and only then should we have opened the envelope.

The courtroom is hushed. The coded labels on the tubes are
revealed. The lawyers and the judge at the side bar open the envelope. If it had been agreed that the blood on the walkway came from the person whose blood was numbered LAPD004, and that just happened to be the tube containing the blood of Marcia Clark, everybody would have giggled and the DNA evidence would have been dismissed. If, on the other hand, tube number LAPD004 was Mr. Simpson’s, the case for the prosecution would have been immeasurably strengthened. The way they did it was like a one-man line-up

This is the kind of thing I would have addressed had I been called to testify. Another thing that would have been reasonable for the LAPD to have done, and something that should always be done in DNA cases, is very simple and obvious. Just to keep things fair, blood samples should be taken in the presence of an advocate for the accused. Some easily measured and impossible-to-remove chemical—they are called tagants in the chemical business—should be added to the sample. It could be blue food coloring from the convenience store across the street, or better yet, it could be a DNA tracer made specifically for this purpose. Companies sell them for less than a hundred bucks. They are impossible to remove without removing the DNA. That way, if questions about the chain of custody of a DNA sample come up, the questions can easily be resolved. When it was suggested that Simpson had been framed, that blood found on the gate at the murder scene had actually come from a test tube of Simpson’s blood that Inspector Lang “had kept in an envelope on the back seat of his car for several hours,” a tagant would have made it easy to refute that. Instead, we were treated to interminable hours of testimony from both sides about the presence of a chemical called EDTA, which proved nothing and which nobody understood.