Page 107 of The 1 Lawyer

It was time to get back on my feet. “Objection, Your Honor!”

Judge Ostrov-Ronai looked at me with poorly disguised loathing. I’d been on my feet a lot in the past two days. “Grounds, Mr. Penney?”

“The question is improper because hair microscopy is a faulty science. Scientists have shown that it is completely unreliable!”

Gordon-James looked daggers at me. “Again? Really? Your Honor—”

The judge said, “That will be grounds for argument, Mr. Penney. It goes to the weight of the evidence. Overruled.”

Under ordinary circumstances, I would have sat down and shut up. The threat of removal from court was dire. But I had a valid point, and I needed to make it. “No, Your Honor! There’s nothing to argue about! Hair microscopy isn’t science and therefore doesn’t merit an expert opinion. Are you aware that three defendants—three, Judge—were recently exonerated in Washington, DC, after the FBI hair-microscopy evidence used at trial was later proved to be wrong?”

Gordon-James pounded his fist on the counsel table. “He’s making speeches again, Judge!”

I stepped into the space between my counsel table and the witness stand. “The jurors have the right to hear this information so they can view this witness’s testimony in the proper light. I request leave to voir-dire this witness, Your Honor.”

The judge squeezed her eyes shut like she was fighting a headache. After a moment, she nodded. “Proceed.”

I didn’t waste any time, just sailed right in. “Mr. Stein, you testified under oath that you’ve undergone FBI training for hair analysis and hair microscopy, isn’t that true?”

The expert gave a bare nod. “It is.”

“But are you aware that the FBI and the U.S. Department of Justice have admitted that for decades, every FBI expert gave flawed testimony about hair comparison in criminal cases? That’s true, isn’t it? The DOJ and the FBI have gone on record, haven’t they?”

“I can’t speak for the DOJ or the FBI. I work for the state crime lab.”

I laughed at him. “I see. Will you admit that microscopic hair comparison analysis has become extremely controversial in the criminal justice community?”

He was miffed. I was happy to see it; I wanted to shake him up. After a pause, he said, “There is a division of opinion on the issue.”

“All right, now we’re making progress! So which side do you fall on? Let the jury know where you stand on this. Do you agree with the FBI, who, according to your testimony, trained you in this unscientific and imprecise discipline? Because the FBI is doing an internal review of thousands of hair-microscopy cases in which their lab improperly reported a match. And it’s been reported that the FBI, your source for your so-called expertise, overstated hair matches in more than ninety-five percent of those cases. Ninety-five percent, Mr. Stein! What’s your score? How many times did you get it wrong?”

There was a moment of silence. The witness looked confused. “What’s the question?”

Hell, even I didn’t remember. I turned to the judge. “Your Honor, I contest the witness’s expertise to give an opinion on this issue.”

“Overruled,” she said shortly.

It looked like I had lost that round, but I suspected that my objection had done some good because when I sat down, Gordon-James turned his back on the hair-microscopy witness and said, “No further questions.”

So the guy never got to state his opinion, which most certainly would have been that the hair from my head was a match to the hair found in Iris Caro’s bed. The point I’d made in court about hair analysis was true. The FBI had backed away from it. But privately, I had to wonder: Were there really strands of my hair on the pillow and sheets in the room where Iris died? Who had set me up? Who had come to my house, taken samples of my hair, and planted them in Iris’s bed? Daniel Caro? His old man, Hiram? Someone I’d sued or some cop who held a grudge? Could it even be Gordon-James himself?

Why choose me as the fall guy for the crime?

The DA had a new witness on the stand, another expert from the crime lab, the guy who did DNA testing. The DNA evidence wouldn’t be so easy to contest. No one at the FBI was hanging their head in shame over DNA evidence. It was still considered solid, incontrovertible.

Gordon-James pulled that plastic bag from the box again. My gut churned when I saw the bloody shoe the police had seized from my bedroom closet. As I watched him and his witness wave the flip-flop around, I wanted to grab it, stuff it back into the DA’s exhibit box, get it out of sight. After he’d laid the foundation, Gordon-James came around to the crucial question.

“Did you do a DNA profile on the blood found on the flip-flop, State’s exhibit number two?”

“I did.”

“How does the DNA profile on State’s exhibit two compare to the known sample of blood taken from the body of Iris Caro, which is marked as State’s exhibit ten?”

“There are no differences.”

Then he elaborated, of course. Explained that it was a match, that it was essentially impossible for the blood to have come from any other individual.

I couldn’t make my bloody shoe disappear, even if I grabbed it out of the witness’s hand and flushed it down the men’s room toilet. Couldn’t discredit the expert either. When Gordon-James held the exhibit up for the jury to see, I averted my eyes.

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