“But you can’t eliminate the possibility.”

“I suppose it is remotely possible. Remotely.”

Ben turned a page in his notes. “Let’s move on to your so-called identification. Dr. Valero, let’s be honest with the jury. Hair identification isn’t what you would call an exact science, is it?”

“I don’t know what you mean.”

“Well, it isn’t the same as fingerprints or DNA, right?”

Valero appeared puzzled and mildly miffed. “Again, I’m unsure…”

“If you match fingerprints, that’s a positive identification. But hair analysis is a good deal more… squishy, isn’t it?”

“Not in my opinion.”

“Isn’t it true that hair characteristics are not uniform?”

“There are occasionally some variances.”

Ben lowered his chin. “Dr. Valero. Let’s talk turkey. Isn’t it true that two hairs pulled from the same head still might not match one another?”

Valero squirmed slightly. “It is possible. Especially among older subjects.”

“Like Father Beale, who is fifty-seven. Isn’t it also true that some people have so-called featureless hair that is very hard to distinguish?”

“Yes, but the defendant is not one of them. His hair had many identifying characteristics.”

“Such as?”

“You want a list?”

“That would be dandy.”

“Well… that could take some time.”

“I’m not going anywhere, Doctor. I think we’re all interested to hear what you say. Because to me, and to most people, a hair pretty much looks like a hair.”

Valero cleared his throat. “Well… the hair found on the victim was Caucasian.”

“Okay. That narrows the suspect pool down to half a billion people or so.”

“And there is color, of course.”

“You’re telling me you identified this hair as coming from Father Beale based upon the color?”

Beads of sweat glistened on Valero’s forehead. “As I recall, there was also a distinctive curl.”

“Excuse me, Doctor. Did you say curl?”

“Yes.”

Ben cranked his voice up. “Are you telling me you identified my client as a killer, that you publicly accused him of murder, based on a curl?”

“That wasn’t the only…”

“What percentage of the population has this so-called distinctive curl?”

“I couldn’t really say.”

“Because there’s no reliable library of information on curls, right? Because no objective expert would ever suggest that a shaft of hair could be traced back to its source by its curl!”

“There was also the color.”

Ben didn’t let up. “So you’re saying you made this brilliant ID based upon the gray color and the curl. Tell me, doctor-how many people have gray hair with a little curl in it? Couple hundred million or so?”

“I couldn’t say…”

“Because you don’t care, right? You just took two flimsy similarities and turned them into a positive ID.”

“I only said that the hairs were consistent.”

“When you get right down to it, you didn’t say much of anything, did you?”

Canelli rose out of his chair. “I object, your honor. This is becoming abusive.”

“I agree,” Ben replied. “But the abuse is being perpetrated by the prosecution. They’re trying to buttress their weak case with junk science.”

“That is not true!”

Judge Pitcock glared at them. “Both of you, approach. And don’t say another word until you’re up here.”

At the bench, Ben lowered his voice, parked his righteous indignation, and continued the argument. “Your honor, this hair evidence is flimsier than Kleenex. This does not meet the standard set forth by the U.S. Supreme Court in Daubert versus Merrill Dow Pharmaceuticals.”

“I’ve already briefed this,” Canelli said wearily.

“Right,” Ben continued, “but how could we possibly evaluate your arguments until we heard how weak your evidence really was? Your honor, the Supreme Court left it to trial judges to act as gatekeepers, barring entry to junk science. If we allow baloney like this in the courtroom, how can we expect jurors to distinguish between real science like fingerprints and this sort of bogus poppycock? This whole line of testimony should be excluded.”

“I am concerned about the reliability of this evidence,” Pitcock said, fingering his lower lip.

Excellent! Ben thought silently. And I didn’t even have to whine about the sanctity of the family.

“But I’m not prepared to exclude it altogether.”

“Your honor,” Ben said, “this is a lot of hooey!”

“Which you’re doing a rather good job of pointing out on cross-examination. Tenuous as it is, I think it does meet the Daubert standard, and you can and will point out any failings in methodology during your cross. Let’s continue, gentlemen.”

Close, but no cigar. Ben returned to the podium and relaunched his attack. “Dr. Valero, isn’t it true that even amongst so-called ‘hair experts,’ there is no consensus on the criteria for making comparisons such as the one you just made under oath to this jury?”

Valero’s expression grew more pensive. “It seems you’ve done your homework, Mr. Kincaid.”

“I try. So what about it?”

“There… is some dispute about methodology and matching criteria.”

“In fact, despite several efforts, no one has ever been able to set up a national data bank for hairs-like the ones existing for fingerprints and DNA-because there’s no agreement on the criteria.”

“I’m afraid that’s also true.”

“And therefore it’s impossible for you to say with any reliability whether a characteristic in a hair is common or rare, right?”

“I have been examining hair for fourteen years. I’ve examined hundreds of thousands-”

“And you still haven’t seen one one-millionth of one percent of all the hairs in this country. Which means you have a grossly low statistical base for drawing any conclusions.”

“That’s your opinion, not mine.”

“Are you familiar with a proficiency testing program conducted by the U.S. Law Enforcement Assistance Administration on hair analysis a few years ago?”

Valero pursed his lips. “Yes.”

“That’s good,” Ben said, opening a folder, “because I happen to have a copy of their report right here. In a controlled and monitored experiment, they sent hair samples to a variety of labs and experts. The error rates on five different samples ranged from fifty to sixty-eight percent. That’s an error rate of more than half.”

“True.”

“In other words, the prosecution would be better off just flipping a coin than getting one of you so-called hair experts to deliver your expert opinion.”

Canelli jumped up. “Your honor, I’m offended by that remark.”

“You know what offends me?” Ben shot back. “I’m offended by the fact that the prosecution knows this evidence is unreliable, but they try to get it in anyway because they assume the jury won’t be bright enough to see it for the junk it is!”

“This is not the time for speechifying, Mr. Kincaid,” Judge Pitcock said. “Did you have any more questions?”

“No,” Ben said, snapping his folder shut. “I’m done with this witness.”

Back at counsel table, Ben consulted with his client. “So, did I get my point across?”

“Oh, yeah,” Father Beale said. “I think you buried him.”

“Like, seriously buried?”

“Like Vesuvius to Pompeii, buried.”

Ben settled into his seat. “Well, he made me mad.”

Beale nodded. “I can only hope every other prosecution witness makes you mad, too.”