“Objection,” Ben said.
The judge nodded. “Sustained. Mr. Kincaid, why don’t you take your motion up with the trial court judge?”
“A provisional ruling would be very helpful, your honor. We only have three weeks. I’d like to know what we’re going to be up against.”
Hawkins sighed. Ben knew he hated to make any ruling that was remotely difficult or controversial, but it seemed there was no escaping it. “Very well, counsel. Proceed.”
“Thank you, your honor. My first motion concerns some blood traces taken at the scene of the crime that I would like kept out of the trial.”
“Wouldn’t he, though?” Bullock said softly, but not so softly that everyone in the courtroom couldn’t hear it.
“The blood traces in question were found inside Mr. Barrett’s home, near the front door. According to the prosecution’s exhibit list—and I phrase it this way because I still have not been permitted to examine the evidence myself—the blood traces outlined a footprint—shoe print, actually—pointing toward the door. The print corresponds roughly to the size of Mr. Barrett’s foot.”
“Meaning?” Judge Barrett asked.
“Meaning the man killed his family, tracked the blood on the floor, and fled,” Bullock said.
“Let me thank the prosecutor for demonstrating the great prejudice which this misleading bit of evidence could create if it were admitted into evidence,” Ben said, not missing a beat. “In fact, the print proves nothing of the sort, but if the court allows it into evidence, Mr. Bullock will undoubtedly twist and contort reality to reach some such unwarranted conclusion.”
Judge Hawkins frowned. “And can you please explain to me why this print doesn’t tell us exactly what it appears to tell us?”
“Certainly, your honor.” Ben opened the folder that contained the product of several days of Loving’s hard work, tracking people down and getting their words on paper. “I’ve filed a number of motions pertaining to the manner in which the crime scene was preserved, or rather, wasn’t preserved. I’ve submitted nine different affadavits”—he pulled them out and passed them to the bailiff—“which are certified and on file. These are from neighbors, journalists, and even members of the police force. What becomes immediately apparent is that the crime scene was contaminated and not preserved because the police believed—wrongfully—that they had already apprehended the culprit.”
Hawkins began drumming his fingers. “Get to the point, counsel.”
“Your honor, I have identified over twenty-five people who were permitted entry to the crime scene before it was sealed.”
Hawkins snatched the list from the bailiff. “Twenty-five?”
“That’s right, twenty-five. They are identified by name. Your honor, the crime scene was irremediably tainted. This fact demands the expulsion of all blood samples found on the premises, if not all evidence from the crime scene.”
Judge Hawkins said nothing but his conservative brow was decidedly furrowed.
“With so many people tromping through the house,” Ben continued, “we have no way of knowing who left that bloody footprint behind.”
“Well …”
“No one could have gained entrance to the home without walking through that entryway. It could have been anyone. Since the evidence is not probative, and since the flaws in its reliability were created by the state’s own incompetence, I move that the evidence be excluded.”
“Your honor, may I be heard?” Bullock scurried toward the bench. “If the evidence is subject to multiple interpretations, counsel may explore that on cross-examination.”
“If the evidence is more prejudicial than probative, it should be excluded,” Ben rejoined. “That’s what the evidence code says. I’m only asking that the court apply the law of the state.”
Bullock ignored him and spoke directly to the judge. “There may have been people in the home that morning. Frankly, your honor, I don’t know. That is startling new information—which, I might add, Mr. Kincaid did not bother to share with me in advance. I can assure you I will fully investigate these charges before trial. But the blood must have come from Barrett.”
“He’s assuming Barrett was guilty,” Ben said. “That’s a false assumption.”
“Wrong,” Bullock said. “Blood remains viscous enough to be smeared or tracked or dripped for only an hour, maybe two. After that, it coagulates and dries. It had to be Barrett.”
“You’re still assuming his guilt.”
“I’m pointing out that the blood traces were left before your purported swarm of people descended. Given that we know Barrett was at the crime scene at the time of the murders, I think it’s a probative indicator of guilt.”
The judge nodded. “I tend to agree, Mr. Prosecutor. The motion will be overruled. Counsel is of course free to use cross-examination to try to impeach the evidence as best he can.” He turned to Ben. “Was there something else?”
“Yes.” Ben returned to the podium for his other folder. “I also have objections to the use of purported DNA evidence by the prosecution.”
Hawkins rubbed his hands against his face. “Great. Here we go.”
“Your honor, as you know, there is still some question whether the Supreme Court of this state has found that DNA fingerprinting meets the Frey standard of reliability sufficient to allow it to be used in our courts.”
“This is a nonexistent issue,” Bullock insisted. “Everyone uses DNA nowadays. The only reason we haven’t used it here more often is that we didn’t have the proper laboratory facilities.”
“They still don’t,” Ben said. “They’ve hired it out to a third party.”
Bullock shifted uncomfortably. “It’s a reliable firm, your honor. Cellmark Laboratories. They’re experts in the field. They’re preparing our exhibits.”
“For a fee,” Ben interjected.
“The use of paid experts is hardly a novel development,” Bullock said. “Defense lawyers do it all the time.”
“Paid experts, yes,” Ben said. “Paid evidence, no. This is entirely different. This is a firm that basically goes around to prosecutors saying, ‘Pay us money and we’ll create some pseudoscientific evidence no one else understands and get you a conviction.’ ”
“Balderdash,” Bullock grunted. “Much ado about nothing. So long as the evidence is probative, who cares where it comes from?”
“I do.” Ben leaned closer to the bench. “Your honor, the U.S. Court of Appeals was disturbed when the Von Bulow family in effect hired a private homicide investigator. It suggests that someone is being prosecuted only because his enemies are wealthy.”
“So?” Bullock said. “We’re not asking anyone to foot the DNA bill. This is entirely different.”
“This is exactly the same. Only the motivation is different. Here, extra money is being spent and extraordinary efforts are being made because the eyes of the world are upon us. The law should be the same for everyone. It shouldn’t get worse because you’re rich and famous and the prosecutor is afraid of screwing up on national television.”
“Your honor, this is offensive in the extreme.” Bullock was wearing what Ben recognized as his disgusted-with-opposing-counsel expression. “Mr. Kincaid is clearly desperate to find some footing in a case where the evidence is overwhelmingly against him. But to resort to this slanderous hyperbole is truly outrageous. I will not hear anyone casting aspersions on my department. We work solely in the interests of the community.”
“I know,” Ben said. “You just work a lot harder when the minicams are running.”
Hawkins sat up straight. “I find this philosophical debate very stimulating, but we’re getting rather far afield from Mr. Kincaid’s motion. Grounds for keeping the DNA evidence out of the trial would only arise if the evidence was unreliable or did not conform to current scientific standards of trustworthiness. Neither can be proven until the evidence has actually been produced.”