I phoned Mike on my cell as I paced the corridor outside Judge McFarland's courtroom, walking among the drug dealers and predators who were waiting for their afternoon calendar calls in the six felony parts lining the long corridor.
"You keeping busy?" he said to me.
"Next time I tell you that the thing I like most about my job is that no two days are the same, or that it's never dull, or that it isn't like the movies because time and all other new cases don't stand still for the prosecutor even though the big murder investigation she asked for has dropped into her lap, promise me you'll smack me."
"My pleasure. Where are you?" Mike asked.
"About to start a hearing that I hadn't exactly factored into my day. And you?"
"At the Met. The guys on the task force are tearing through the employee interviews. They're breaking down into categories-workers with ironclad alibis who never left the stage or were in the company of two or more other witnesses throughout the entire show, and a second group that needs a harder once-over; they're loners and oddballs or guys who didn't sign in or out Friday night. Third are the ones who make themselves potential witnesses-saw somebody they didn't know in a hallway or stairwell, think they spotted Galinova getting on the elevator with another person."
"How big is your pool of possible suspects?"
"We can rule out almost three hundred workmen. Solid guys, all professionals at what they do. They're of no interest to us. Gives us another hundred to monkey with. The lieutenant wants me to do the callbacks. Go at the weirdos a little harder than the first crew."
"Anything new on the forensics?"
"That glove we were talking about-they've been retesting the pre-limary because of the two different profiles I told you about, from skin cells inside and out." The scientific technology had advanced to the point that with ordinary handling, cells would slough off and leave a genetic profile on almost any item of clothing that came in contact with skin. "The one on the outer palm doesn't match the one on the interior. Thaler gave this assignment to Dr. Bauman to work on, so he's got us swabbing all the first responders-cops and detectives."
"That'll add a few days," I said.
"Yeah, we've got to start by eliminating the first cop who picked up all the items. And every third-grader and boss who came along after that probably handled them. The DNA could come from the killer, of course, but it could also have been left there by anyone who held on to the gloves recently."
I was trying to resign myself to the long timeline dictated by the laboratory work that needed to be done.
"Ten years ago, the first time you used DNA, how long till you got a result?" Mike asked.
"Two months, maybe three."
"Yeah? Well, my first homicide had a six-month turnaround before we had even a preliminary profile, and you still had to fight the court to introduce it into evidence as a valid scientific result. Remember those days? Now we're impatient if we can't get a hit in forty-eight hours. We'll get it done, Coop. Mercer around?"
"Sitting in the courtroom, waiting for the fireworks to start. We're up here on that case of his from the weekend, in Riverside Park. I'll explain later."
"Maybe we can meet up for dinner. Tell Mercer to bring the pooch that bit that asshole-I'd like to buy him a cocktail."
Ron Abramson turned the corner from the elevator bank and held open the door for me. "You want to settle this the easy way, before we go in?"
"Sure. You give us Mr. Carido and we'll talk deals."
"Not happening. I was hoping you'd see the error of your ways. I guess you've got no weekend plans, Alex. The Women's House of Detention can be a rough place to visit," he said, smiling at me as we continued on to talk to the court clerk.
"Three hots and a cot, Ron. I've got very simple needs."
He wagged a finger at me. "No minibar. You'll be sorry."
Colleen McFarland frowned when she saw us walk into the courtroom together. She looked at the remaining case names on her calendar and all seemed to be accounted for. "New business, Ms. Cooper, Mr. Abramson?"
Ron pushed through into the well and let the swinging wooden gate slam back against my lower body. "Yes, your honor. I've got an application to make. It's a matter of first impression and I'd like a ruling before Ms. Cooper rushes ahead and winds up with some bad law."
"Okay, let's add it to the calendar, shall we?" McFarland said, rising from the large armchair on the bench and directing the court reporter to take down the proceedings. "Have you got a docket number?"
"No. There's no case yet, your honor, and that's the way I'd like to keep it. It's in regard to a Legal Aid Society client named Ramon Carido."
"Who's going to start here? One of you want to give me some facts?"
Ron pointed to me and allowed me to describe the details of the attack, the subsequent investigation, and the serologist's cold hit.
"What's your problem with Ms. Cooper's plan?" McFarland was smart and thoughtful, an attractive woman with wavy red hair and ice blue eyes that looked like they could cut through steel as easily as legal bullshit. Ron wouldn't have chosen to bring this issue before her without confidence in his position because she wouldn't hesitate to use her acumen to put him in line. And despite my friendship with her, she would be just as likely to rule against me and make no apologies for the decision the next time we went to Forlini's for lunch.
"There are two different databases involved, judge. May I distinguish for you?"
"I think I'm familiar with them, Mr. Abramson, but I'll let you make your record."
"The New York City Generalized DNA Index System is a forensic DNA database authorized under Article 49B of the New York State Executive Law. The legislature strictly limited the circumstances under which the State is entitled to collect, to preserve, and to disclose an individual's DNA records. It limits the genetic profiles to be maintained in the database only to people who have been convicted of specifically designated felony crimes."
"That's the convicted offender database, then?"
"Yes, judge. But that's not where Ms. Cooper alleges the match to my client was made. He's not a convicted offender. His profile isn't in that pool."
"Tell me about that."
"The medical examiner's office maintains another DNA system."
McFarland was taking notes. "What's that one called?"
"It's the linkage database, your honor. It's what you might refer to as a 'usual suspect' or 'suspect elimination' base. It's got everything from arrestees who've never been convicted of anything to bystanders at a crime scene who get caught up in a sweep."
"By that you mean that biological samples are submitted to this second bank during investigations-by some lawful authorization, either by court order or voluntarily or-"
"Nobody gives DNA voluntarily," Ron said dismissively. "There's always an element of coercion when the police ask a person to give them a sample of their blood or saliva. Nobody wants to give their DNA to the government."
"That's absurd, your honor," I said, standing to address McFarland. "It happens every day without police coercion. Thousands of people all over the country volunteer to submit samples to exclude themselves during investigations of violent crime, to help the police in homicides or assaults involving family and friends, strangers who-"
She motioned me to sit down. "You'll have an opportunity to respond, Ms. Cooper."
"Thank you, judge. I envy you, on behalf of all my colleagues at Legal Aid. At least one of us has the power to quiet my adversary with the wave of a hand. May I go on?"
"Certainly, Mr. Abramson."
"There is absolutely no legal authority for the existence of these records in the linkage database. Ms. Cooper's efforts to use Mr. Carido's profile-which should have been expunged from that computer system months ago-violates his Fourth Amendment freedom from unreasonable search and seizure and his Fourteenth Amendment right of bodily autonomy and informational privacy."
And clearly violates what Mike liked to call Ron Abramson's Twenty-sixth Amendment right to be a pompous ass.
"I take it that Mr. Carido was a suspect in some investigation or other several months back, is that right?"
"Yes, judge. But never charged."
"With murder," I said from my seat. "He's still a suspect in an unsolved murder. We're not talking about a minor crime with a statute of limitations. We're talking about a rape-homicide that's still an open case."
McFarland gave me her sternest look. "You'll get your chance, Alex. Mr. Abramson, were you Mr. Carido's lawyer in that matter?"
"No, ma'am. One of the young women I supervised was the attorney of record."
"And did she make a motion to expunge Carido's profile from the database?"
I shook my head in the negative while Abramson searched his file.
"Did she?"
"I'm looking, your honor. I can't find any record of that. But beyond that point, the legislature only authorizes disclosure of the DNA match in the particular criminal proceeding for which the biological sample was obtained. The prosecution wants to turn that legal provision on its head and open the floodgates, keep all the exclusionary samples and just test them whenever it strikes their fancy."
Abramson was circling his arms in the air for emphasis now, looking more like someone doing the backstroke than an attorney making a argument in a court of law.
"So your concern here, if I understand you-"
"Is my client's privacy rights, Judge McFarland. Ramon Carido's DNA profile contains an extraordinary amount of personal information about him. It carries the entire physical component of his being, and this unregulated and discretionary attempt to use it by Ms. Cooper and the NYPD is completely improper and inappropriate."
"Are you done, Mr. Abramson?"
Ron did the obligatory one-hundred-eighty-degree scoping of the courtroom before he sat down at counsel table, hoping that some-one other than the three remaining-to-be-sentenced perps had witnessed his Clarence Darrow moment. "Yes, your honor."
"I'll hear you on this, Ms. Cooper."
"Thank you. Just to make this clear at the outset, judge, Mr. Carido voluntarily provided the DNA sample at issue here. At no point in the earlier investigation did he assert any claim that the preparation of the swab violated his constitutional rights."
Abramson stared at the mural behind McFarland's head.
"The use of a linkage database is an essential part of the investigative process that begins when evidence is submitted by local police for DNA analysis. In almost every matter in which the identity of the perpetrator is unknown to witnesses or detectives, the attempt to gather biological samples for comparison-and significantly for exclusion-is as critical a step as trying to compare the material to that of convicted offenders."
"How about the privacy issue?"
"Neither the police nor FBI nor prosecutors have access to the linkage database. It's the tool the serologists use to try to match evidence to unknown assailants. There's no dissemination of information to law enforcement agencies unless or until there's a hit."
"Why don't you address Mr. Abramson's argument about Carido's DNA profile? Is your point that once he gave his sample to the police, it remains in the database indefinitely?"
"I don't have to go that far, judge. The matter in which Carido gave a buccal swab is still an active and open investigation. He hasn't been excluded as a suspect. The fact is that the homicide investigation is the kind of case which will apparently not be resolved by this kind of forensic analysis because of the condition of the deceased's body, but there's no statute of limitations and the police are still optimistic they'll find the killer."
The judge looked back and forth between us. I went on. "In fact, I don't think Mr. Abramson can have it both ways. If he believes that the original homicide is a closed case, then Legal Aid no longer represents Ramon Carido. He's got no standing to make this motion."
"I'm telling the court we're going to be Carido's counsel going forward for all purposes," Abramson said.
McFarland was focused on the facts of the homicide. "Well, if you don't need Carido's DNA to prove that original crime, why shouldn't I grant Mr. Abramson's request?"
"There has been no motion by Legal Aid to expunge Carido's profile from the linkage database since the date it was entered. They've had months to take that step and failed to do so. Now you've got a confirmed match to a violent felony that he committed and the police are supposed to pretend it never happened? We have identified a predator who's clearly a danger to society and we have probable cause to arrest Ramon Carido, with or without the cooperation of Mr. Abramson."
"Have you got any law for me?" McFarland asked.
Abramson was back on his feet. "There's a Kings County case, your honor. Carlos Rodriguez. I'll give you the cite."
The old Brooklyn decision wouldn't be binding on McFarland, and she would welcome the chance to make new law. "That's entirely distinguishable from the instant matter, judge," I said. "The victim and offender were known to each other. The issue of his identity and the DNA evidence were completely irrelevant to the investigation."
"Did it go up?" she asked, referring to the Court of Appeals in Albany.
"No." Thankfully not, I almost added. The decision in the Kings County case was such a bad one for the prosecution-disallowing the use of the suspect's DNA profile-that the prosecutors wisely had never appealed to the higher court. "But there are two other matters which raise similar issues that I'd like to submit to you."
"Hand them to the clerk, Ms. Cooper."
"I didn't have time to pull them before I came up here."
McFarland seemed annoyed. "You know the cases?"
"One is Waldemar-it's a Bronx decision. I can't recall the name of the other one."
"Never mind. I'll find them."
I had been more anxious to cut Abramson off before he stopped us from going after Carido than carefully marshaling the support for my position to present to the judge when we got here. If I had given McFarland the ammunition she needed to make an immediate ruling, it might have gone in my favor at that point.
"I'm going to put this over for a week," McFarland said.
Abramson wasn't any happier than I was. This judge was never equivocal, and I assumed the adjournment was so that she could write an opinion on this still-evolving area of the law.
"In all fairness to my client, your honor, you're creating a much more dangerous situation for him. If there's going to be a manhunt, it always raises the possibility that the police will stage a confrontation with-"
McFarland poked at her sternum with her forefinger. "I'm creating the dangerous situation? I hardly think so. Quite frankly, Mr. Abramson, I'm going to deny the motion in regard to your client, and I'm going to do that right now, from the bench. You can't expect the police to put the genie back in the bottle, can you? Since there was never an objection to the taking of a biological sample from Mr. Carido, and since there was no request by your colleague to expunge that profile from the database, I'm going to deny your motion and allow the police to go forward with their investigation."
"Most respectfully, your honor, then why bother with the adjournment?" he asked.
"Most respectfully, Mr. Abramson, I'd suggest you let me finish my statement," McFarland said. "I think it's necessary to weigh the harm that could be done by allowing Mr. Carido to remain at large. Your complaint is about the propriety of his profile in the databank, not about the validity of the DNA match, am I right?"
"Yes, but-"
"Balancing the potential harm to the public against that which your client might suffer, I'd have to come down in favor of using the biological evidence to charge him, sooner rather than later. He'll have his day in court."
"And the adjournment?"
"The remedy you requested was rather extreme in this particular case, don't you think? But you raise some important concerns about how the linkage database is used flow, how it will be used in the future, and about whether there is any appropriate mechanism in place for expunging a sample if it doesn't belong there any longer. I'd like to do some research on this, read the cases you've both mentioned. Perhaps you'd each like to submit briefs in support of your positions? That's why I'm giving you the weekend."
I wanted to brief the matter this weekend like I wanted to empty Joe Berk's bedpan.
"And Miss Cooper," McFarland said, "I think what I'd like to do is direct you to call the medical examiner's office. Tell the serologists that there are to be no further disclosures of any matches within the linkage database to anyone except known offenders for the next week or ten days-either to your office or the NYPD-until Ihand down my decision. Nothing divulged concerning suspects who've been exonerated or from the so-called voluntary samples."
"But, your honor," I said, starting to protest before McFarland cut me off.
"Let's go off the record for a minute," she said, pointing to the court reporter as she pushed up the large sleeve of her black robe with the other hand. "Look, Alex, before you go crazy over this issue, how many cases are we talking about?"
"In a week's time, citywide? Maybe thirty, maybe a hundred."
"That's submissions of evidence to the database, right?"
"Yes."
"And hits? You're probably lucky to get five from the linkage database."
"You're right, judge. Some weeks two, some none. Five would be a gift."
"So don't make a stink. Get Ramon Carido off the street for the time being and let's slow this down so I can look at the bigger picture."
"Give me two weeks, then, judge," Abramson said. "I want to consult with the other supervisors. We'd like to submit papers on this."
Abramson and I were both trying to figure out what this meant for him. McFarland was not a Solomonic judge-she rarely split the baby. She wasn't afraid to take a firm position, no matter how controversial, if she could ground it in the law. She was giving me a go at Carido this afternoon, but she might be doing Abramson a favor in the long run.
"We're back on the record. Miss Cooper, two weeks from today, ten a.m.?"
"Yes, your honor."
Mercer walked me down the aisle and out of the courtroom. "Where's she going on this? What do you think?"
"Call DCPI and get your press release out. I have no idea where she'll wind up, but at least we can get this psycho off the street now." The deputy commissioner of Public Information could issue a release with a description of the attacker, and police could begin to sweep the parks and homeless shelters for Ramon Carido. "And I'm going to have to find someone from the Appeals Bureau to help me out with a brief on this."
"Hey, Alex," Ron Abramson said, tugging at my elbow. "You free after work for a drink?"
"Now that I don't have to pack my bags to go to Rikers, I guess I've got time to kill. I just don't think I'm in the mood."
"Look, I had to do what I had to do. All my lawyers are unsettled about these databank rules, and I figured this was a good chance to get some guidelines. Got your attention, didn't I?"
"Another time, Ron."
Mercer pressed for the down elevator and Abramson headed upstairs.
Laura got up from her desk and followed us into my office. "Eric Ingels called you. Says it's urgent." She thrust the phone message with his number into my hand.
I dialed and he answered himself. "Alex, I've got a problem with Dr. Sengor."
I flopped onto my chair. "Like what?"
"Like he's not coming in. He won't surrender."
"That's just another factor for the judge to consider when I ask for bail." I was too tired and frustrated to worry about the extra day until his scheduled court appearance, pleased that the hospital was keeping him on a short leash by requiring him to check in twice daily.
"He wants to talk to you."
"Who does?"
"My client. Dr. Sengor."
"Sengor wants to make a statement?" I shrugged my shoulders and looked at Mercer, repeating Ingels's comments so Mercer could understand what was going on.
"Not exactly. He swears he didn't commit a crime. He wants to talk to you."
"You're going to let him?"
"I'd like to patch him in when he calls back. He's been phoning every fifteen minutes or so, waiting for you to come back from court."
"Is he home? We can just set it up from my end," I said.
"No, he tells me he's not. The apartment was hospital housing. He claims they don't want him living there during his suspension."
"Fine. I'll be at my desk. Have him call my secretary on the hour. She'll hook you in on a conference line."
I hung up and put Mercer to work. "Let's get TARU on this. How fast can they set up a triangulated phone call?"
The Technical Assistance Resource Unit was the NYPD's small crew of wizards who used state-of-the-art equipment to do everything from video surveillance to wiretaps and intercepts.
"Five minutes, with a bit of luck. I'll get that going if you give me Ingels's number. When Sengor dials in, you check caller ID and I'll run with that, too. And get someone from the DA's Squad down here to hook a recorder onto your phone. You'll want a tape of whatever he says."
I called the squad commander, whose office was directly above mine, and then stepped out of the way five minutes later so that Vito Taurino, a detective I had worked with often over the years, could attach a device to the telephone receiver that fed a minirecorder. As long as one party to a conversation consents for a call to be recorded, the law in New York allowed me to surreptitiously tape the incoming call.
I dated and timed the header of the recording, sent Laura down the hall so that Mercer could use her console to stay in touch with TARU, and settled in to wait for the phone to ring. While Sengor and I spoke, detectives would be trying to identify his location by reading signals from cell satellite towers. If he stayed on the phone for ninety seconds, they would know the very street corner on which he stood.
"They're ready for you," Mercer said. "You're good to go."
"Give me a heads-up when TARU tells you they've made him."
Laura buzzed me from down the hall to tell me that Sengor had called on my line, and that she had patched Eric Ingels into the call.
"Dr. Sengor wants to talk to you, Alex. Doctor? Can you hear me? Ms. Cooper's on the line.**
The connection was bad. The crackling noise of the static made it hard to hear Sengor when he said hello to me. There was no need to recite Miranda warnings. The doctor wasn't in custody and his attorney had requested the opportunity for him to talk.
"You're making a very big mistake, Ms. Cooper. I did not rape these women," he said, barking each word into the receiver for emphasis. "You have ruined my life, I want you to know that."
I wasn't the one slipping mickeys into the drinks of unsuspecting women and then having sex with them while they were unconscious, but that never stopped a perp from blaming me for his problems. "Doctor, is there-"
"I have lost my job, I've lost my home, I've lost my girlfriend, for what? What did I do? For what crime? You can't put my name in the newspaper just for your own career, for your own ambitions. It's my life you're ruining."
"Eric, if your client is calling just to harangue me about the case, there's absolutely no point to this conversation."
"Hold on, Alex, hold on. Selim? Can you hear me? Explain to Ms. Cooper what you told me, explain how the girls were doing drugs before you got home," Eric said. "He wants to tell you what really happened."
I looked at the second hand on my watch as Mercer stood in the doorway, holding the cell phone while he waited for results from the TARU detectives. I mouthed a question to him. "How much longer?"
"They're not getting a signal. Be patient."
"Miss Cooper? Are you listening to me? You know what would happen to my family in Turkey if this is public? Terrible disgrace. Disgrace to my mother, to my father-who is also a doctor. And what? Because of the word of these two silly girls? I'm asking you as a professional to drop this case. I've withdrawn from the hospital, no one was hurt, and if you don't prosecute, I'll be able to keep my license to practice medicine."
Sengor hit the right button. A license to an endless supply of drugs to experiment on his victims. It wasn't a gift I was prepared to put in his hands. He rambled on and on, while I looked to Mercer for word of any results. We were going on four minutes and TARU had come up blank.
"Talk to your lawyer, Dr. Sengor. There's no reason to go on with this conversation. You can explain whatever you'd like to the judge and jury."
The call was terminated after six minutes and I hung up the receiver. Mercer was still on the cell phone, tryingto get an explanation from the tech team.
"Did they have the right number?" I asked, checking the 212 area code and seven digits that I had taken down from caller ID against the ones on Mercer's pad. "How come this works on TV and in the movies, but when I need it, the system fails?"
"They had everything right. They were scrambling like crazy trying to find the cell tower. The only problem is that your boy Sengor was calling from out of the zone-that's why TARU couldn't pinpoint his whereabouts."
"What zone? What do you mean, 'the zone'?"
"Sengor's calling from his father's home, Alex, in the old country. Bet you didn't know the area code in Ankara, Turkey, is also 212."