Michael Baden - Skeleton justice

"In short," Olivo finally opined, "the gap between the upper right lateral incisor and the adjoining canine tooth, also called a cuspid, along with the snagglelike characteristics of that canine tooth, establishes within a reasonable degree of medical scientific certainty that the impression in the apple is consistent with the bite dentition of Travis Heaton." He demonstrated his testimony with digital pictures of the subject apple.

Olivo sat back in the witness chair and folded his hands over his paunch. Manny smiled. How nice to see a witness so confident and comfortable.

She rose and walked toward the witness stand. Today's hairstyle, red mane caught back in a tortoiseshell clip, left the strand of pearls at her neck and the simple pearl studs in her ears exposed. She looked younger than her nearly thirty years, and too demure to cause trouble for a respected scientist.

Pompous old fart.

"Good morning, Dr. Olivo." She beamed at him. "Thank you for that fascinating information."

He nodded. "I've been at this a long time." He left the "Not like you, girlie," unsaid.

"Tell me: Were you present at the crime scene after the explosion?"

"No, of course not." I'm too important for that, you stupid twit.

Manny smiled. Maybe the government's witness was so well rehearsed he would know the chain of custody of the oh-so-important piece of forensic evidence he wanted to use to damn her client to hell.

"So, who collected the apple?" she continued. "Was it the FBI's crime scene technicians?"

"No."

"Perhaps it was the CSI team from the Hoboken Police Department?"

"No."

"Then it must have been a tristate terrorist response unit?"

"Uh, no."

"So, who did pick up the apple, Dr. Olivo?"

"Uhm, I believe it was a police detective who returned to the scene later to look for it."

"And what did he do with it? Did he put it in a brown paper bag so that moisture wouldn't collect and bacteria wouldn't grow on it?"

Olivo shifted in his seat and straightened his triclub tie. "No, it was in a plastic Baggie when I got it."

"I see. Do you know what the temperature was on the night in question, Doctor?"

"I don't know the exact temperature," he snapped.

Manny walked back to the defense table and accepted a sheet of paper from Kenneth. "National Weather Service records show that at one a.m. on May seventeenth, the temperature at the monitoring station in Hoboken, New Jersey, was seventy-five degrees. Pretty warm for May, huh?"

"Yes." Olivo stared straight ahead.

"Did you examine the evidence that night, sir?"

"No."

"When did you get the evidence?"

"Let me look at my notes." As the page flipped, the doctor grabbed for the small plastic cup of water nearby.

Manny pretended not to notice how he gulped it down. She was making him squirm.

"The day after the bombing. I received the specimen at my office in Manhattan at one-forty-three in the afternoon."

"The apple had been refrigerated during the period of time since its collection, had it, Doctor?" Manny asked.

He hesitated.

Come on, give it up, Mr Know-It-All expert witness. I already know the answer, or I wouldn't have asked the question.

"No."

Manny could tell he thought he knew where she was headed, but Lisnek looked impatient. She smiled at him in passing and returned to stand in front of the witness. "You know, Dr. Olivo, my Italian immigrant grandma grew up during the Depression and she hated to waste food. When I was a little girl, it would drive her crazy when I took a few bites out of an apple and then couldn't finish it. You know what she'd do? She'd wrap it up in plastic and put it on the counter and try to get me to eat it the next day. I never would. You know why?"

Lisnek jumped up. "Objection. We'll be here all day if we have to listen to Ms. Manfreda's reminiscences about her family heritage, Your Honor."

But Judge Freeman was grinning. "Tell us why you wouldn't eat it, counselor."

"Because by the next day, a bitten apple wrapped in plastic in a warm kitchen was all brown and mushy. Decay had set in. Yes, decay had completely broken down the exposed surface of the apple." Manny whipped around to take possession of something from Kenneth, keeping her back to everyone in the well of the courtroom. Murmurs began to rumble from the spectator pews. Manny turned to Olivo with the flare of a Miss Universe contestant whipping around a bathing-suit pareu on the turn toward the judges to show off her wares.

She held up an apple-a discolored, drying, decayed, smelly brownish red apple. "Let me represent to you that this is a Delicious apple, sir."

"Objection! Objection," bellowed Lisnek.

She ignored him. Judge Freeman was laughing too hard to rule on the objection.

"How can you say with scientific certainty that the bite marks in that apple were those of my client when the apple had been rotting away for over twelve hours under improper storage conditions?"

"Overruled," came the belated decision from the bench, allowing Manny to officially proceed. She looked over at Lisnek. He really needed to get shirts with collars that weren't so tight. His head looked like it was about to pop off his neck.

Olivo sputtered and offered some qualified justification, buttressed with technical jargon. "Scientific certainty only means it is more likely than not."

Ah, the dirty little secret of experts reared its head. Their opinion was nothing more than a game of chance.

"Are you telling this courtroom that your opinion, one that would incarcerate my eighteen-year-old client without bail, disrupt his schooling, prevent his graduation, and-"

"Objection," Lisnek again bellowed, his voice echoing through the courtroom doors and reverberating into the hall.

The recovered Judge Freeman turned to her. "Okay, enough with the sob story, Ms. Manfreda. Get on with the question."

"-is based on a mere possibility about a degraded apple?"

Manny continued to hammer him, rebutting his claims about the reliability of bite-mark evidence with quotes from articles on forensic odontology, and the language in recent court decisions where bite-mark testimony had wrongfully imprisoned innocent people.

Before she concluded her inquisition, she made a few final thrusts.

"Did you bring the apple with you today?"

"No."

"Did the prosecutor tell you to leave it in the city?"

"No."

Manny smelled something wrong, and it wasn't just her one piece of forbidden fruit. This ordinarily talkative expert had become a one-word-answer witness.

"Where is your apple now?"

"It's been discarded. Once we documented the impressions with photographs, there was no reason to keep it any longer."

A hush came over the journalists listening to the proceeding. She thought she heard Mrs. Heaton gasp. Her client reached out and grabbed Manny's hand.

"Your Honor, I move the whole case be thrown out also. The assistant U.S. attorney has specifically withheld this material fact from the court. Spoliation of evidence, Your Honor, is cause for dismissal."

Lisnek tried to respond. Judge Freeman interrupted the proceedings. "There is no need to deal with that issue today."

Lisnek preened. His smugness was short-lived.

Judge Freeman had listened to it all attentively, but it was clear that in the end he was most impressed with the unintended scientific study of Granny Manfreda. "Your rotten apple is out as evidence, Mr. Lisnek. I'll issue my written opinion next week. What else do you have?"

"We have an eyewitness who saw Mr. Heaton place the bomb, sir." Lisnek spoke in a firm, steady voice, but Manny noticed him gripping his government-issued pen until his knuckles turned white.

Manny took a deep breath as Mr. Park Sung Ho was sworn in. The cross-examination of Dr. Olivo had gone very well, but she wasn't out of the woods yet.