news article: no new trial despite fingerprint error

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OrlandoSentinel.com
Ax murderer will not get a new trial, judge says
John Buzia was convicted of bludgeoning a 71-year-old Oviedo man to death
Rene Stutzman - Sentinel Staff Writer
4:02 PM EDT, October 5, 2009
SANFORD

A local judge has ruled that convicted ax-murderer and death row inmate John Buzia does not deserve a new trial or sentence.

Buzia, 48, was convicted of attacking 71-year-old Charles Kersch at his home near Oviedo May 14, 2000. Kersch had just pulled into his garage and stepped out of his car when he was bludgeoned with the broad side of an ax.

Earlier that afternoon, Buzia had attacked Kersch's wife, Thea, with an ax, leaving her unconscious in a back bedroom, she told jurors.

In 2003, a Seminole County jury found Buzia guilty and recommended the death penalty. Circuit Judge Kenneth Lester Jr., in an order signed Wednesday, refused to throw out Buzia's conviction and sentence.

Buzia's appellate lawyers alleged that his trial attorneys – public defenders – had made several errors.

One involved a fingerprint match that wasn't really a match. Discredited former Seminole County Sheriff's Office fingerprint expert Donna Birks told jurors that a print at the crime scene matched Buzia.

However, a defense print expert and experts at the Florida Department of Law Enforcement later re-examined the print and concluded it could not be matched to Buzia or anyone else.

Birks was fired in 2007 after an investigation that determined she had made similar bad calls in seven other cases and that other department employees had made two other print identification errors.

Even so, the legal challenges that followed have failed to produce a single overturned conviction.

In the Buzia case, Lester wrote that even though Birks got the print wrong, Buzia's lawyers couldn't have known that. She had a good reputation at the time, Lester wrote, so failing to challenge her print ID was not a bad decision.

There was a great deal of other evidence of Buzia's guilt, Lester wrote.

Among them: Thea Kirsch told jurors that Buzia, a former handyman for the couple, had attacked her that day with an ax.

Lester's ruling comes more than a year after hel held an eight-day hearing on Buzia's motion for a new trial.
Copyright © 2009, Orlando Sentinel

orlandosentinel.com/news/local/breakingnews/orl-bk-ax-murderer-100509,0,4117480.story

[Gerald Clough]

The quote from the judge suggests the run at a new trial was made on an ineffective assistance of counsel claim, not a claim of actual innocence. In this sort of thing, the trial defense counsel commonly testifies to their reasoning in their conduct of the case. The obvious answer here would have been, as the judge said, that they had no way of knowing she was wrong. One could argue they should have sought their own expert, but I suspect their focus was on trying to save his life in the face of a massive prosecution case and made a good run at it.

In the one other case I can quickly find involving Birks' errors, a defendant named Aguire-Jarquin, two government experts testified that they disagreed with Birks' conclusion. But the case was still overwhelming. Bloody knife from the restaurant where he worked, bloody clothes on his roof, victim DNA, lived next door, lame admission to entering the house and finding them dead, etc.