Tragic (23 page)

“Starting with People’s Exhibit Fourteen in evidence, would you please tell the jury what each depicts?”

Fulton held up the first photograph and showed it to the jury. “This shows three small flags attached to wire stakes that have been stuck in the ground. Each flag represents the place where a cigarette butt was located.” He put that photograph down and picked up the other. “People’s Exhibit Fifteen in evidence shows two more stakes indicating where two more butts were located, a little closer to the curb.”

“I see,” Karp said, “and why would these cigarette butts interest you?”

“Several reasons,” Fulton said. “One was to corroborate Mrs. Carlotta’s account of what she saw in regard to the parked car and its occupants. We also knew from talking to Nicoli Lopez that William Miller’s car had smelled like cigarette smoke after the nights of December second, the night the defendants drove to New Rochelle, and December fifth, the night of the murder. But according to Miss Lopez, neither Miller nor the defendant Frank DiMarzo smoked. We were trying to establish the identity of a third man, a man with a Russian accent, who may have been with the other two. We hoped that there might be traces of DNA left on the butts to help identify him.”

“Your Honor, with the court’s permission, may Detective Fulton step down and help us view the diagram, People’s Exhibit Two in evidence?” Karp asked.

“Yes, he may,” Judge See replied.

Walking over to the easel with the detective, Karp said, “Detective Fulton, do you see on the diagram where the cigarette butts were located?”

“Yes.”

“Please indicate.”

“Right where the letter ‘B’ is already marked on the exhibit. That’s the approximate area where I located the cigarette butts contained in People’s Eighteen, and the location of the stakes in the photographs in People’s Exhibits Fourteen and Fifteen.”

Walking back to the prosecution table again, Karp held up a plastic bag and its contents. “Detective, can you identify People’s Exhibit Twenty-Four for the jury, please?”

“Yes, it’s a beer bottle.”

“And did you collect this beer bottle?”

“I did.”

“Please indicate on the diagram, People’s Two in evidence, where you retrieved this beer bottle, People’s Exhibit Twenty-Four?

“Right here in this area,” Fulton said, pointing. “Right on the hedge area there.”

“Would you please write the letters ‘BB’ for ‘beer bottle’ on the diagram?”

“Was there a reason for you to be looking for evidence by the hedge?” Karp asked.

“Mrs. Carlotta indicated that when she and her husband passed the parked car, one of the men was outside standing near the hedge.”

“Was there anything else you noted at that spot?”

“Yes, there was an area beneath the hedge that contained snow left over from the previous week’s snowfall in the area,” Fulton replied. “And I noted a spot that was yellowish in color.”

“Did you happen to collect a sample of the yellowish snow?”

“I did.”

As Karp walked over to the prosecution table, Guma handed him three envelopes, which Karp took over to Fulton. “The record should reflect that I’ve given the witness People’s Exhibit Nineteen marked for identification, can you identify it and its contents?”

Fulton opened the envelope matter-of-factly and looked up and nodded. “Yes, it is an envelope containing a single Belomorkanal cigarette butt I collected from the lawn of the Carlotta residence.”

Karp held out his hand for the envelope and exchanged it for
the other two. “Can you identify People’s Exhibits Twenty-One and Twenty-Two?”

Fulton looked at the envelopes carefully, then glanced inside them and appeared to be counting.

“Would you please describe the contents?” Karp asked.

“The first, with my initials and date, contains three cigarette butts,” Fulton replied. “The other contains nine cigarette butts.”

“Where did you locate the cigarette butts, and describe the circumstances that led to your finding them?”

Fulton turned to look at the jury. “Following my trip to New Rochelle, where I took custody of the evidence from Marlene . . . Mrs. Ciampi . . . I returned to Hell’s Kitchen. I was thinking about the witness statements that the robbers jumped out of the alley. I thought if one or more of them were heavy smokers, they might have left cigarette butts behind in or around the alley that could be matched to those found near the Carlotta residence.”

“Tell us what, if anything, you found.”

“Well, I located twelve cigarette butts near the entrance to the alley and collected all of them in that first envelope,” Fulton said.

“Were you able to determine the brands?”

“Three were Belomorkanal, and the other nine were different brands,” Fulton said.

Karp now walked quickly over to the prosecution table, where Guma had one last envelope waiting. “And do you recognize this envelope and its contents? People’s Exhibit Twenty-Three?”

Fulton checked out the proffered envelope. “Yes. It contains a cigarette butt found on the floor behind the front seat of the car registered to William ‘Gnat’ Miller.”

“What brand is it?”

“Belomorkanal.”

“Have you seen the car?”

“Yes.”

“Please describe it for us?”

“It’s a Delta 88, four-door sedan, a little banged up. It appears
to have been green, but the paint is pretty faded. . . . There’s a lot of gray primer on it.”

“Where was the primer located on the Delta 88 sedan?”

“On a large area of the trunk.”

“Did you record the license plate number of that car?”

“I have it written down here on my notepad,” Fulton replied. “FPB eight-one-nine-six . . . registered to William Miller at a Brooklyn address.”

“Thank you. Now, returning to the evidence you collected—the cigarette butts, beer bottle, and yellowish snow—what was done with these items?”

“I sent them to the Jack Swanburg’s Baker Street Irregulars office for DNA testing.”

“Your Honor, no more questions,” Karp said.

“Detective Fulton, would you please return to the witness stand?” Judge See asked. “Would the defense like to question the witness?”

“Indeed, Your Honor,” Conrad Clooney announced as he rose from his seat and walked over to the witness stand. “Detective,” he began with a knowing smile, “if I understand your testimony, you got a call from Marlene Ciampi saying she’d located evidence at the Carlotta residence.”

“That’s correct.”

“And this evidence pointed to three young men, two of whom are seated here as defendants.”

“Eventually, yes,” Fulton agreed.

“But this was the first the police had heard about three young men visiting the Carlotta residence?”

“Not exactly,” Fulton said.

“What do you mean, not exactly?” Clooney said with a scowl.

“The day after the shooting, Mahlon Gorman, the attorney for the deceased, Vince Carlotta, paid a visit to the District Attorney’s Office and—”

Clooney interrupted. “But suddenly Mrs. Carlotta remembered the visit?”

Karp jumped up. “Your Honor, Mr. Clooney just clipped Detective Fulton’s answer. Mr. Clooney opened the door and needs to let Detective Fulton finish his answer.”

Emotionally, Clooney argued, “This is a profound setup. A conspiracy of lies. It’s entirely inadmissible.”

Judge See frowned. “That’s quite enough, Mr. Clooney. First of all, I’ve already advised you, you must be more careful about asking questions to which you may get surprise answers. And secondly, while I’m presiding, I will decide the admissibility of evidence. Is that clear, Mr. Clooney?”

Red-faced and humiliated, Clooney didn’t answer and just stood looking down at his shoes. Judge See waited patiently before finally saying, “I will interpret your silence and failure to respond as acceptance of my ruling. The witness may finish his answer.”

“As I said, the day after the shooting, Mr. Carlotta’s attorney, Mahlon Gorman, came to the District Attorney’s Office and told us about the three men who visited the Carlotta residence in New Rochelle.”

“But suddenly Mrs. Carlotta remembered the visit, and Marlene Ciampi happened to find all these items that are now being used to convict the defendants?” Clooney demanded incredulously.

“No, not suddenly. She said she never forgot that visit, because it was unusual and she feared for her husband’s safety.”

“I ask that answer be stricken as not responsive,” Clooney said.

“Mr. Clooney, there you go again, your objection is overruled,” Judge See said.

Infuriated, Clooney snapped at Fulton. “And then you,” he said, raising his voice as he paced over to stand in front of the jurors, “returned to the scene of the crime in Hell’s Kitchen and, wouldn’t you know it, found more cigarette butts of the same brand.”

“Among others, yes.”

“Don’t you find that just a little coincidental?”

“No,” the detective replied. “It actually makes sense if one of the defendants was a heavy smoker.”

“Didn’t you go to the scene of the crime on the night it happened?” Clooney asked.

“Yes.”

“Then you’d know if the crime scene technicians, officers, and detectives at the scene did a thorough job of looking for evidence?”

“I would and they did,” Fulton replied. “But they weren’t looking for cigarette butts. New York City’s alleys, sidewalks, and gutters are filled with cigarette butts.”

“Or maybe these particular cigarette butts weren’t there until later?” Clooney retorted. “Doesn’t it seem just a little odd that the police miss the evidence at the Carlotta residence and then again in that alley until Marlene Ciampi, the wife of the district attorney, comes into the picture?”

“Sometimes it’s the little things that initially slip through the cracks that are important later when someone asks the right questions,” Fulton countered, obviously making an effort to keep his temper.

“And sometimes evidence gets manufactured,” Clooney retorted.

“Maybe in grade B or C movies, but not here on my watch,” Fulton replied while glaring at Clooney.

“T
HE
P
EOPLE CALL
J
ACK
S
WANBURG
.”

The door in the side of the courtroom leading to the witness waiting rooms opened and a man who looked like Santa Claus on vacation walked in. He was wearing green suspenders over a bright yellow shirt that barely covered his prodigious belly; his nose was red and poked out of a full white beard though the rest of his head was bald.

The former forensic pathologist from Denver, Colorado, was the founder of the Baker Street Irregulars, a group of scientists who volunteered their expertise to help solve crimes. They were particularly noted for using sciences such as geophysics, botany, and archeology for locating clandestine graves, but they also offered a wide range of forensic abilities, including a laboratory for chemical analysis and DNA testing. Taking their name from the home of fictional detective extraordinaire Sherlock Holmes, of whom they were avid fans, they had worked with Karp in the past, and he had found them to be excellent scientific sleuths and wonderful expert witnesses on the stand.

Among them, Jack Swanburg was his favorite. A pathologist by profession, he was probably the most well-rounded of the group and could expertly comment on many areas of forensic sciences, including DNA testing.

After swearing to tell the truth, Swanburg sat down in the witness chair and smiled benignly at the jurors, most of whom could not help but smile back. But his face turned serious as Karp asked him to list his credentials, education, and courtroom experience, after which the defense had little choice but to accept him as an expert witness.

After discussing the details of how the prosecution evidence was transported and examined at the Baker Street lab in Colorado, Karp moved on to the findings. “Dr. Swanburg, I ask you to turn your attention to People’s Exhibit Twenty-Four, which contains a beer bottle. I note that it has a gray stopper on it, please explain.”

“It’s a rubber stopper designed for wine bottles. There is a small slit in the top that allows a plunger to create a vacuum inside the bottle while preventing leaks as well as, in this case, preventing any changes to the contents that might occur with continued contact with the air.”

“Did you have the opportunity to examine the contents of the bottle?” Karp asked.

“Yes,” Swanburg said, pulling out a small pair of reading glasses to look at the papers he’d brought with him to the stand. “I understood that the contents were partly frozen when the bottle was collected, but they arrived in my office in liquid form.”

“Could you identify the contents?”

“Of course,” Swanburg replied. “As expected with a beer bottle, there was evidence of malt, hops, yeast, and, of course, alcohol. However, this material was greatly overshadowed by the residue of
Nicotiana tabacum,
or tobacco, as well as human saliva.”

“As a result of your analysis, what conclusions were you able to reach?” Karp asked.

“Well, that someone was masticating tobacco and spitting the residue into the bottle,” Swanburg said. “A rather nasty habit that can lead to gum, mouth, and throat cancers.”

“And was it possible for you to determine whose saliva was contained in the bottle?”

“Indeed, through DNA testing,” Swanburg answered, looking at the jurors.

“You can test saliva for DNA?” Karp asked, as if it was the first time he’d heard of it.

“Sure,” Swanburg replied. “Any body fluid or secretion with nucleated cells—that is, any cell with a nucleus—contains DNA that can be analyzed. Even tears and ear wax have nucleated cells.”

Like a kindly old professor lecturing his favorite students, Swanburg spoke earnestly but with a smile as he explained. “Forensic saliva DNA testing has been used since the early 1980s to match suspects to evidence left behind at a crime scene. It’s now used more often than comparing DNA from blood samples, and in fact, seventy-four percent of DNA in saliva comes from white blood cells.”

“And were you able to match the DNA in this bottle to a person?” Karp asked.

“Yes.” Swanburg nodded. “We were given DNA samples taken from several people involved in this case, and the saliva matched one of those.” He referred back to his papers. “A William Miller.”