FiFty Fifty

Chapter Fourty - One

EDDIE
I counted down from ten, silently.
My gaze never broke from Shandler. And his eyes never left mine.
He'd already made a big mistake. He'd been suckered into a fight with me.
Now the jury didn't matter to Shandler. There would be no more eye contact with the jury, no more careful explanations, nods and gestures. He was locked in on me. Where I wanted him to be. Easier to get him riled up and get his mouth moving faster than his brain.
'There have been a huge number of convictions overturned due to unreliable expert testimony from hair-fiber analysts, isn't that true, Professor?'
'I wouldn't know. None of my cases have been challenged, Counselor.'
'Until the current administration shut down the investigation, the FBI were reviewing three thousand convictions in which their hair-fiber analysts testified. In almost two thousand of the cases they managed to review before they were shut down, they found flaws in the hair-fiber analysis and testimony in ninety percent of those cases. Would you agree that hair-fiber analysis as a whole is fundamentally flawed?'
'No. Like I said, I have never had one my cases successfully appealed.'
'It was the FBI's hair-fiber analysts that provided your initial training, isn't that correct?'
Shandler shuffled around in his seat, leaned forward and said, 'Yes, my initial training. And I say again, I stand behind every single test and analysis I have provided. Not one has been challenged successfully.'
'Just so we're clear, you're saying you stand by every hair analysis opinion you've ever given?'
This time he turned to the jury, said, 'Yes. I stand by every single one.'
'You are aware of the concept of confirmation bias?'
'I am familiar with the concept. I am never biased in my approach.'
'Just so the jury understands, confirmation bias occurs when an expert is
given a low number of samples to compare – say two to three. You are looking for similarities in those samples, aren't you?'
'And differences.'
'There's no hair-fiber database, is there?'
 
'No.'
'So when you're asked if a hair fiber matches a suspect, you're only comparing two samples, you're not looking at hair samples from the general population.'
'Correct. But if they don't match, I say so. When they do match characteristics, then I am happy to confirm this.'
I took a moment. Let Shandler get a little more comfortable. I wanted him to think he was making a comeback.
'In hair-fiber analysis, it's possible that two hairs, from the same person's scalp, won't share the same morphological characteristics, isn't it?'
'It's possible. It's not likely.'
'But it is possible. In that scenario, by looking at the hairs through a microscope you might think they came from two different people? So you can't with certainty match two hairs that belong to the same person?'
'Like I said, that's rare but possible.'
I turned to the judge, 'Your Honor, I'd like to admit the defense hair analysis report in those envelopes. If one could be handed to the witness, please?'
Dreyer was quick to object. He spat out his case to the judge while his assistant opened the envelope I'd given them.
'Your Honor, if the defense has obtained its own expert witness report, then we should have been on notice so that our expert witness had some time to consider it. This is an ambush.'
'Mr. Flynn. I take this objection very seriously. Who is your hair-fiber expert?'
'His name is Professor Barry Shandler,' I said.
The court fell silent apart from the tearing of envelopes. I interrupted to state my case before Dreyer could recover.
'I'm not ambushing this witness, because the report in the envelope was prepared and written by this witness. He can't be ambushed with his own report. The findings in this report do not relate to his analysis for the prosecution – this is a separate matter that goes to credibility.'
Judge Stone flicked through the report, as did the DA and Shandler.
'I'll allow this to proceed. I can't rule out a report from the District Attorney's own witness, however much I think it is irrelevant,' said Stone.
'I'll allow the witness, and the jury to read the report. It's short. Only two pages.'
One of the envelopes held the jury copies. They were quickly distributed and the jury began to read. Once everyone had finished reading, I saw the confusion on their faces.

'Professor Shandler, in this report, commissioned by Harper Investigations, you examined two hair-fiber samples. A sample labeled F1, and CD, correct?'
It took a moment for Shandler to answer. He was looking around nervously, as if he was liable to be swallowed up in a trap at any moment.
'I carried out the analysis.'
'And your findings were that the samples were a probable match?'
'Yes.'
'And your testimony today is that the hair fiber from the victim's wound is a
probable match for my client?' 'Yes.'
'And you've already confirmed to the jury, earlier, that you stand by the accuracy of all of your reports?'
'Yes.'
I hit send on the text.
'The report that you prepared for Harper Investigations, just six weeks ago,
confirms the probable match of samples F1 and CD. I can tell you that the hair sample F1 came from me. It's my hair. Does that change your opinion?'
'No, not at all. The sample CD must've come from you too,' he said. 'Actually, no. This is CD.' I stood back, pointed to the rear doors of the court and Harry walked in. Shandler put his hands on the armrests of the chair, and levered himself up so he could see over the heads of the crowd in the public seating area. When he saw Harry, he sat back down, with a smug grin on his face.
'That cannot be possible. With respect, microscopic analysis would show a clear differentiation between Caucasian hair and African American hair in many respects. The sample CD did not come from this gentleman,' he said, pointing at Harry.
Harry reached the end of the aisle, and stood in the well of the court in open view of the witness stand, the judge and jury. He'd heard what Shandler had just said, and couldn't keep the smile off his face.
'You're correct, Professor Shandler. Sample CD did not come from Mr. Ford. Sample CD came from him.'
Shandler's mouth opened as I pointed to Clarence Darrow, who sat beside his master, and licked his chops with a long tongue before eyeing Shandler and letting out a sharp bark.
'You stand by your analysis in every case, Professor. Yet you can't tell the difference between my hair and the hair from this dog's belly. Would you like to change your testimony now?'
'This is outrageous!' yelled Shandler, getting to his feet, shaking a finger at me. He was shouting, swearing. I felt sure if I was closer he would've hit me. The crowd burst into laughter, the jury looked at Shandler like he'd just grown
another head, and Judge Stone started to bang his fist on his notebook.
'Get that animal out of here,' shouted Stone.
Harry took the final word – 'Which one, Your Honor? Clarence or Professor
Shandler?'