Database Search Helps Erroneously Convicted Man

[GrayMatter]

Below is a link to the New York Times article about the erroneous conviction of Archie Williams. This is an unusual case for the Innocence Project because it was fingerprints that lead to his exoneration. From 1999 onward Mr. William's had been asking in post-conviction motions for the unidentified bloody latent prints to be run in the AFIS database. Prosecutors successfully fought his motion. Finally, last week the forensic report was released and a serial rapist was identified as the source of the latent print.

https://www.nytimes.com/2019/03/21/us/f ... liams.html

Should we expand access to AFIS databases to qualified experts that aren't working directly for law enforcement?

The prints were originally run through IAFIS technology and no match was found. If his 1999 motion for another search had been successful the results may have been the same as in the original trial. It is also possible another examiner might have used different features and the correct candidate would have made the list.

If you haven't seen it, Simon Cole and Barry Sheck have a paper that compiles all of the latent print involvement in erroneous convictions titled, Fingerprints and Miscarriages of Justice: 'Other' Types of Error and Post-Conviction Right to Database Searching. I have a copy if anyone is interested.

[Dr. Borracho]

Should we expand access to AFIS databases to qualified experts that aren't working directly for law enforcement?

Answer this questions: Are we police partisans working to guarantee convictions, or are we impartial scientists working to ensure that the courts access all the evidence for both sides?

Of course, defense attorneys can always hire their own experts. There are more than enough out there. But there are no suitable AFIS databases that are not owned by law enforcement agencies. Even if there were, most defendants have no resources to pay expert fees and courts have very limited budgets for such examinations. So, if we are unbiased, do we then accept submissions and AFIS requests from defense attorneys, just as we do from the police officers? While there would be legitimate defense submissions, we could anticipate an avalanche of trivial requests as defense attorneys were grasping at straws.

No answers, only questions. But if Lady Justice is truly blind, there should be some mechanism for a destitute defendant to obtain appropriate examination or reexamination of scientific evidence, including AFIS searches of unidentified latent prints.

[anwilson]

But if Lady Justice is truly blind, there should be some mechanism for a destitute defendant to obtain appropriate examination or reexamination of scientific evidence, including AFIS searches of unidentified latent prints.

Yes! Yes! Yes! It would be so great to have mechanisms in place that better assist defense attorneys. I feel as public servants our role is to assist in whatever capacity we can. At our agency (and I know a lot of others), we have no problems doing work for the defense or providing training for defense attorneys on what we do but a systemic mechanism would be so helpful to citizens.

[Dr. Borracho]

It would be so great to have mechanisms in place that better assist defense attorneys.

Perhaps something to the effect that a defense expert reviewing latent print evidence could request and observe additional AFIS searches conducted at the request of a defense attorney, if that defense expert were now or in the past either AFIS certified or CLPE. That should prevent 1) Conflict with rules governing AFIS, because the defense expert would only be an observer, and 2) totally unqualified people from being allowed into an AFIS operation.

What else should an agency policy contain to enable reasonable AFIS searches at the request of a defense attorney, while still ensuring that the agency retained control of AFIS and no overriding AFIS rules were violated?

[josher89]

Excuse my ignorance on this. Does it take a court order to re-examine evidence (I guess I'm thinking after conviction)? It seems like it does and in order for the court to make that order, the evidence would need to be compelling.

In the case of fingerprints, this isn't something that usually takes ages to do, especially given that the prints in this case had already been searched. I know we have a policy in place that we don't re-examine evidence unless there is a compelling reason to do so. I would think that a potential exoneration would be compelling enough but before I would re-run something, I would want some mechanism in place that would prevent anyone from making that request and us being required to do it. I can see local thieves doing this all of the time just to clog up the system.

In any event, it is slightly ironic that the Innocence Project is so quick to use fingerprints to exonerate someone yet also uses fingerprint errors as a platform to say that they aren't reliable enough to use for convictions. Not saying they are right or wrong.

[g.]

Does it take a court order to re-examine evidence (I guess I'm thinking after conviction)? It seems like it does and in order for the court to make that order, the evidence would need to be compelling.

So this is something I have a bit of experience with, especially since now my main casework tends to be from defense.

The answer is "depends".

Often times, yes a court order is going to be necessary. The local labs are unwilling or in some instances, unable (due to insane workloads) to re-visit a case at defense's request and do additional examinations. The kinds of exams that are often requested are: 1) run additional un-searched latent prints through AFIS (like the case associated with this thread); 2) run latents through NGI, etc. that could not be previously run in old cases since they were palms or the agency did not have access to a federal database; 3) process additional items of evidence that defense would like processed in the case.

My experience has been mostly "we are not going to do that; our "client" is the submitting police officer"; you need to get a Court Order. In some cases, we have written affidavits to the Court requesting that they have the local lab run certain lps in AFIS. We have a had a handful of successes.

In one case, the local examiner was simply just willing to do it for the attorney (post-conviction). But these labs tend to be un-accredited labs without a policy on accepting evidence requests from defense. Accredited labs will generally have a policy on who they can accept evidence from, and that almost always, in publicly funded labs, means a "police officer" who is serving a prosecutor.

I agree with the other comments. I have personally found that working defense cases to have made me a better forensic scientist. I'd love to see a system where defense attorney orgs get X number of vouchers and can use them in specific cases that have been vetted where truly, additional exams could answer critical defense questions. My ONLY caveat (and defense attorneys HATE when I say this) is that if they use a publicly funded crime lab, they should then have to disclose the results. That's the risk that is taken, but then they are getting access to the same (unlimited) resources that the prosecution has.

Just my thoughts,

g.

[josher89]

Thanks for the explanation. I would be happy to do those types of requests as long as I was assured that there was a legitimate reason to do so. So many times we've received hand-written subpoenas from inmates requesting the most unnecessary things and I wouldn't want to see us be required to do additional testing without a reason.

I like your caveat; disclose the results.

Just throwing this out for discussion purposes. Do you think labs would have the support of their parent organization knowing that a potential re-work of cases could upend their prosecutorial case? I think the attorneys would be supportive of it but what about the cops that made the arrest?

[NRivera]

g., are you aware of any jurisdiction that requires a court order for re-examination of evidence post-conviction by statute and not just agency policy?

[Bill Schade]

I know of a case that was reviewed by the defense (Public Defender himself was present,very unusual) and after reviewing what they came to see his request was that an open print be run through AFIS. Seemed like a reasonable request and it was done which resulted in an identification.

Only requirement of the Law Enforcement COC was that the investigator be given the information and a chance to investigate this new wrinkle prior to giving it to the attorneys.

Turns out the identification was to someone with legitimate access and was therefore of no consequence to the court proceedings.

A reasonable request, a reasonable response and everyone was satisfied.

You would hope that we could always work something out this way.

[g.]

Bert,

are you aware of any jurisdiction that requires a court order for re-examination of evidence post-conviction by statute and not just agency policy?

Good question, and based on my limited experience, the answer is "no". I don't know that any labs either actually REQUIRE the court order, but what I meant earlier is that some WON'T until they are faced with a court order. My experiences have often been: 1) defense makes the request and it seems reasonable. Perhaps they already hired an expert to review the latents and even can recommend which ones need to be run. 2) The State attorneys (post conviction or not) are usually the first hurdle and say "No. We won't do this because we won't engage in a fishing expedition for the defense. 3) Lab backs the play and says "yeah sorry, our hands are tied. We need the request to come from Law Enforcement [even though we may have a backdoor exception clause "at the discretion of the Director" or similar]. 4) Court order comes and then the scientists in the middle have no problem doing it, if reasonable.

Bill, your example was great when everyone is reasonable it seems an appropriate use of this tool. I like the idea of the investigator being notified too since it is their case. It goes along with my, "these results should be disclosed to both sides" caveat.

I will have to poke Lisa Steele and see what she says. She deals exclusively with post conviction. She may have some insight.

g.