“Was this record sufficient to make a comparison?”
“It was. I obtained the dental records of the defendant, which the police had already subpoenaed. Watch what happens when I now lay his teeth on top of the enhanced bite mark.” Grayson overlaid yet another transparency, bearing another row of teeth, precisely on top of the other. As was almost immediately apparent, it was virtually identical.
“Dr. Grayson,” Granny asked, “in your opinion, does this constitute a match?”
“It most certainly does.”
“Then let me ask you the most important question. Would you say, based upon your extensive medical knowledge and analysis, that this bite mark was made by the defendant George Zakin?”
“Indeed and without a doubt.”
“Thank you, Doctor. I have no more questions.”
Chapter 48
Ben strode to the podium cautiously, planning his approach. He would have to be careful with Grayson. He would love nothing more than to take the good dentist down a peg or two. But he knew it wouldn’t be easy; if nothing else, Grayson was a very smart man and a very experienced witness.
“Dr. Grayson, you mentioned that you have a private dental practice.”
“That’s correct.” He seemed perfectly at ease, more than willing to answer Ben’s little questions.
“But you don’t actually spend much time filling cavities these days, do you?”
“I’m not sure what you mean.”
“You spend most of your time now as a professional witness, don’t you?”
“Objection to the phrase,” Granny said. “It’s offensive.”
“I’ll rephrase,” Ben said, feeling gracious. “You spend most of your time testifying, right?”
“Well … I haven’t really kept time records on myself.”
“How many times have you testified in the last two years?”
“I don’t know exactly.”
“Well, I do.” Ben glanced down at the research Jones had faxed him that morning. “Twenty-seven times in the last two years. Does that sound about right?”
“I suppose so.”
“And every time for the prosecution.”
Grayson appeared nonplussed. “In my experience, defendants rarely want their teeth traced.”
That got him a brief titter from the jury box. Ben ignored it. “How much do you make when you’re hired to work on a case?” It varies.
“You don’t have a standard rate?” Ben glanced again at his notes. “Because I thought-”
“I get two hundred and fifty dollars an hour,” Grayson said. Ben noticed a few jurors reacting to that bit of information. “Sometimes I work at a discount, when there’s good cause involved.”
How noble. “The fact is, you’ve become so popular in the last few years as a witness for the prosecution that you don’t have to fill cavities anymore, right?”
“Yes.”
“You’ve developed a reputation as the man who can see what no one else can see.”
“I have been fortunate enough to participate in many successful prosecutions.”
“And prosecutors are always on the lookout for someone willing to say anything-if the price is right. Aren’t they?”
“Your honor!” Granny leaped to her feet. “That is grossly offensive.”
Ben cut off Pickens with a ready apology. “I’m sorry, your honor. I withdraw the question.” Might as well, he thought. The point is made. And he had a lot more ground to cover; he couldn’t afford to have Pickens go ballistic this early in the game.
“Dr. Grayson, would it be fair to say that your entire testimony hinges on the reliability of your blue-light special-that is, your infrared viewing technique?”
“I suppose.”
“Without this special technique, you’ll admit that it would be impossible to trace this bite mark back to my client-or to anyone else for that matter.”
“That’s true. That’s why I was called in.”
“Well then, since your entire testimony depends on the reliability of this procedure, let’s talk about it. Is there any precedent for this at all?”
“Of course. Scientists have been experimenting for years with the use of blue light to enhance visual acuity.”
“But no one else does what you’re doing.”
“It is a well-established scientific fact that skin fluoresces under a blue light.”
“Excuse me, Doctor. Normal skin fluoresces under a blue light. Damaged skin doesn’t. Right?”
Grayson tilted his head. “It seems you’re better informed than I realized, Mr. Kincaid.”
“Well, I try.”
“It is true that damaged skin doesn’t fluoresce.”
“And the bite wound you examined was extremely damaged, wasn’t it?”
“I was just mentioning that by way of example. My technique does not rely on skin fluorescence.”
“What does it rely on?”
“Well … of course, that’s very complicated.”
“Is there a book I could read on the subject? Some kind of documentation? ’Cause I have to tell you, I’ve looked, and I didn’t find any.”
“I … I have not published my research.”
“Because you want to keep this cash cow to yourself?”
Granny rocketed up. “Your honor!”
Pickens’s teeth were tightly clenched. “Mr. Kincaid, I will not put up with this abusive conduct in my courtroom!”
“Sorry, sorry. I’m just trying to determine why this pioneering scientific research has not been published.”
“I submitted it for publication,” Grayson said. “Three different medical journals. They all declined to publish.”
“Because they all thought it was a lot of hooey, right?” Ben looked up quickly. “That’s a scientific technical term, your honor.”
Pickens grunted his reply.
Grayson made a small coughing noise. “I attribute their hesitance more to professional jealousy.”
“Professional jealousy?”
“You have to understand-there still tends to be a bit of the ivory tower in the scientific community. Research is supposed to be pure; if it becomes profitable, then it’s tainted. Or so some believe. And as you pointed out yourself, my research has become quite profitable.”
Ben nodded. “I see. Is that why you were drummed out of the American Academy of Forensic Sciences?”
Grayson squirmed slightly. “As a matter of fact, it is.”
Ben glanced at his notes. “The stated reason for your expulsion was that you were, quote, ‘failing to follow generally accepted scientific techniques’ and ‘affirming scientific opinions that could not be verified or reproduced.’ ”
“I’m sure they said something like that. Nonetheless, my technique works, and they just can’t stand that.”
“But it’s true that you don’t follow generally accepted scientific techniques.”
“I disagree.”
“Then show me your documentation. Prove to me that this blue-light business works.”
“I don’t know what you want.”
“I want proof. Can you show me a picture of what you saw?”
“No. Photography doesn’t work under infrared light.”
“Did you ask an impartial third person to view the bite under the blue light?”
“No.”
“In fact, no one else has been able to see any of the things that you claim to see under the light, right?”
“I can’t speak for other people.”
“In the world of science, a new technique cannot be accepted until the procedure can be documented. Until the results can be reproduced by other researchers. Correct?”
“I can’t be blamed for the unwillingness of others to accept what is perfectly apparent to me. I know what I see.”
“The world is full of people who know what they saw. Like ghosts. Or UFOs. But that doesn’t prove they exist, does it?”
“Of course not.”
“My
legal assistant sees angels. My sister sees auras, though mostly only when she’s had too much to drink.”
“Objection!” Granny barked. “This is ridiculous.”
“I agree,” Ben said, “but you’re the one who put the man on the stand. He might as well be using voodoo or alchemy to see those bite marks. Whatever it is he’s doing, it has nothing to do with science.”
“Mr. Kincaid,” the judge said, “I will not permit this ranting-”
“I’m not ranting,” Ben said, “I’m making a motion. I move that this witness’s entire testimony be struck and that the jury be instructed to disregard.”
Granny ran up to the bench. “On what grounds?”
“On grounds that this so-called scientific evidence doesn’t hold water.”
“All we have to do is show that it is based on generally accepted scientific principles,” Granny argued. “I think we’ve done that.”
“I agree,” Judge Pickens said.
“You’re both wrong,” Ben said. “That isn’t the test anymore. The Supreme Court ruled in Daubert v. Merrill Dow Pharmaceuticals that it wasn’t enough. They held that forensic results must be validated scientifically. I’ve been spending the whole cross trying to find some scientific validity for what this voodoo doctor does, and I still haven’t found it.”
“That’s just your opinion,” Granny said. “He explained his scientific process.”
“I agree,” the judge said.
“If you’d read the case, you’d know that he’s required to prove that this testimony is based upon good grounds, and that his technique can be and has been tested, meaning peer review and publication. He should document his error rates and control techniques.”
Pickens looked down from the bench. “As a matter of fact, Kincaid, I have read the case, and I happen to know for a fact that the Court suggested those items as guidelines-not as a mandatory checklist. The ultimate decision is left to the discretion of the trial judge. And I find his testimony perfectly valid.”
“He admits himself he can’t show us any proof!”
“I’ve ruled,” Pickens said. “Your motion is denied. Either ask some more questions or sit down. Personally, I’d prefer the latter.”
Ben marched back to the podium. Pickens’s ruling was, of course, no big surprise. But he hoped the jury was getting the picture. Regardless of what the judge said, they were always free to disregard any evidence they didn’t find credible.
“Dr. Grayson, has anyone else endorsed or supported your findings?”
“Not as such. Although many scientists are experimenting with blue light.”
“But you’re the only one who runs around claiming to see things no one else can see with it?”
“I pioneered the technique, yes.”
“You’re a pioneer with no followers, right?”
Grayson sighed heavily. Was Ben finally managing to raise a few prickles on his tough hide? He hoped so. “I am confident that time and science will prove me right.”
“Well, the Woltz case sure didn’t, did it?”
Grayson looked up abruptly. His lips parted. “I-excuse me?”
“Three years ago, you testified in a prosecution for forcible rape against a man named Jackie Woltz, right?”
“That’s … correct.”
“That one didn’t turn out so well, did it?”
Grayson frowned. He seemed to be having more trouble choosing his words than he had before. “The prosecution was unsuccessful. The defendant was released.”
“There’s a bit more to it than that, isn’t there?” Ben peered down at the detailed court records Jones had sent him. “You identified Woltz as the rapist, based on yet another bite mark no one but you could see. Unfortunately for you, the hair and fingerprint evidence didn’t match Mr. Woltz. And the DNA analysis positively eliminated him as a suspect.”
Grayson drew up his chin. “I still stand by my findings.”
“You’re telling this jury that the fingerprints and DNA and hair-all the established forensic techniques-were wrong, but your totally undocumented technique was right?”
“I found that Mr. Woltz caused the bite wound. It’s possible that someone else committed the rape.”
“But that wasn’t your testimony. You took the stand and said Woltz must have been the rapist. Indeed, and beyond a doubt, right? Weren’t those your exact words?”
Grayson hesitated.
“Weren’t they? If you’re having memory problems, I’ve got a transcript right here.”
“That’s not necessary.” His lips drew together like he’d been sucking a lemon. “That’s what I said.”
“And you were wrong.”
“The jury disagreed with me.”
“Everyone disagreed with you! Except maybe the desperate prosecutor who hired you!”
“I say again,” Grayson repeated through clenched teeth. “I believe time and science will prove me right.”
Ben folded his notebook. He should probably quit; he’d done about as much damage as he could. But he couldn’t resist trying one more … possibility. “Dr. Grayson, did you ever give any consideration to insect bites?”
Grayson blinked. “Insect bites?”
“We know the corpse was found in the forest. We know there are animals and insects in the forest. I believe the coroner testified that the corpse was infested by insects before he arrived. Could this so-called bite mark have been made by insects?”
“I have found clear traces of molars, incisors-”
“But only under the blue light.”
“There was a clear pattern-”
“What pattern?” Ben walked up to the last chart and removed the transparencies. “Look at this!” he said to Grayson, but really to the jury. “There’s no pattern here. Just some random nibbling. It could be anything.”
Grayson pointed toward the easel. “But look at the transparency!”
“The image on the transparency was drawn by you after you received my client’s dental records. Correct?”
“It’s true that I drew the chart. I had to. Photography doesn’t work.”
“So this isn’t evidence of any sort, much less proof. You can’t even prove this bite mark came from a human being.”
“If you’ll recall, even the coroner knew the victim had been bitten-”
“I’ve read the coroner’s report, Doctor, and I listened to his testimony earlier. He said there was a bite mark. He never said it was a human bite mark. Because he couldn’t prove it. And when all is said and done, you can’t either.” He turned away before Grayson had a chance to stammer out a response. “I have nothing more for this witness.”
Chapter 49
That evening, back at his office, Ben thumbed through his address book for the phone number for Tulsa Police Headquarters-Central Division. It seemed late for anyone to be at the office, but then again, he was. Ben punched in the number and waited. No one picked up the phone until the seventh ring.
“Homicide. Morelli here.”
“Mike, is that you?”
“It’s me, kemo sabe,” said the voice on the other end of the phone.
“What are you doing at the office?”
“Working, natch. I don’t have a life, remember? So how’s everything in the Great Northwest?”
“Not so great.” Ben leaned back in the rickety wooden chair behind the tiny desk in his office. “I’m in the middle of trying a murder case.”
“So I hear. Let me guess. All the evidence points to your client, the odds are hopelessly stacked against you, but you think he’s innocent and you’re determined to prove it.”
“How did you figure that out?”
There was a knowing chuckle on the other end of the phone. “Just a lucky guess.”
“Look, Mike, I called for a reason.”
“You need my help.”
Ben stared at the receiver. “What are you, the psychic hot line?”
More chuckles. “I just know you’re not one to call
to ask about my health.”
“Well, you’re right. I’m having problems. I think there’s a major drug dealer in this town, a big brick wall called Alberto Vincenzo. I think he’s a very likely suspect for the murder my client has been charged with. And I think the prosecutor knows it, so she’s suppressing all the evidence she has about him. Apparently the DEA has the goods on this character, too, but I’ve been calling the regional office in Seattle and I can’t get them to send me anything or give me an appointment. I can’t even get them to return my phone calls.”
“So why are you calling me?”
Ben made a coughing noise. “Well, you are in the law enforcement community. I thought perhaps …”
“Ben, I’m just a cop. A lowly homicide detective in Tulsa, in the faraway state of Oklahoma. And you’re thinking I might have connections in the federal DEA office in Seattle? You’re delusional!”
“Well, I don’t know. I thought maybe you might know someone who knew someone who knew someone else.”
“This is really a stretch, Ben.”
“That’s what I said when you married my sister. But you did it anyway.”
“Don’t remind me.” Ben listened patiently through several seconds of thoughtful silence. “Look. No promises. I’ll do the best I can, okay?”
“That’s all I can ask.”
“And hey-take care of yourself out there. I get worried when you get into these messes and I’m not around to bail you out.”
“Your concern is touching.”
“Yeah, well, just try not to engage in hand-to-hand combat with any serial killers, okay?”
“I’ll do my best.”
After he finished talking with Mike, Ben pored over his notes for the next day of trial, not to mention an extremely interesting report he’d received from Loving, just back from Oregon. Around nine, Christina poked her head through the door. “Is this the cramped but classy office of Ben Kincaid, a.k.a. Ben the Giant-Slayer?”
Ben rolled his eyes. “Hello, Christina. Where ya been?”
“Procuring a little well-deserved liquid refreshment.” As she stepped across the threshold, Ben saw she was cradling a large bottle of champagne and two flutes. She set down the glasses and began twisting off the wire cap.
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