"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?"