Not so good news out of Florida

[Jessica Janisch]

http://www.orlandosentinel.com/news/loc ... -headlines

[Pat A. Wertheim]

Disturbing news, indeed. It is important to note that while the fingerprint examiner has allegedly made two erroneous identifications, it was another fingerprint examiner in her department who raised the red flag. Much to the credit of her department, the subsequent investigation was immediate and open, with defense attorneys in other cases she worked being notified. I would say things are working pretty good. I also posted on the newspaper's comment section regarding the article with similar thoughts.

[sharon cook]

I looked the examiner up and she is an active member of the IAI and a CLPE. We really need to know the facts on this case.

[mdavis]

Perhaps this has been exhaustively discussed on other occasions (I'm a recent member here), but I think all examiners should retain a safe level of conservatism in making idents. True, as we expand our experience with sheer numbers, we add to our mental databases as to what is and what is not a relatively "unique" characteristic, and how many of these level II and level III details make an ident.

But are we not seeing a tendency on the part of a very very few examiners to push the envelope just a bit too far, invoking the "eye of faith" that there are details there that others may not "see"? I recall one of my instructors many years ago stating that he could make idents that others could not. I still wonder, after all these years ......

We are caught between the absurdity of the NH v Langill mess of having perhaps a positive ident that is inadmissable due to a rogue judge's opinion of inadequate documentation, and on the other hand, over-confident examiners who make calls that should not be made. We are giving defense attorneys a rich feast of potentially damaging "reasonable doubt" that threatens the single most reliable source of forensic evidence in today's courtrooms.

Let's hope this is a fluke when the facts are in.

[Dark Side Guy]

We are giving defense attorneys a rich feast of potentially damaging "reasonable doubt" that threatens the single most reliable source of forensic evidence in today's courtrooms.

I guess I am the implied enemy in the sentence above. I spent 20 years working with the police, during which I caught five or six erroneous identifications from a total of two coworkers. Unfortunately, the department did not take any actions. One of them always referred to his mistakes as "clerical errors" and said he wrote down the wrong name or the wrong finger, or both, but he had really got the identification right. The department never looked into it further. The other guy explained it away as a "misplaced sense of priorities," and denied making erroneous identifications. Well, I caught those, but what about the errors one of them had made before I went to work there, or errors the other made after I left.

Should the defense be able to attack fingerprint evidence? Yes, they most certainly should! Shame on the defense attorney who throws in the towel just because a "fingerprint expert" says there is an identification. One has to wonder how many mistakes the woman in Florida made where "confirmation bias" led to a verification. Has she worked anywhere else where they did not require verification? Do you think that all police departments require verification? If you do, I have a bridge in Brooklyn I will sell you at a great discount for cash.

Since I have gone private, I have caught police "mistakes" or worse on several occasions, although in the vast majority of cases I simply confirm that what the police did was correct.

But, Mr. Davis, a "rich feast of reasonable doubt?" If that is what you think I have been given by this case in Florida, think again. Perhaps what is needed to starve the defense of this "rich feast" is more training for the police experts and better quality control before arrests are made. No really good expert who is good at both fingerprint work and testimony skills need fear anything from us "defense w****s."

[Michele]

Dark Side Guy,

This is off the topic but I'm curious.......how much defense work is really available?? Enough to make a living at it?

Just curious,

[mdavis]

I think we are both on the same page here. My frustration is not with those who require reasonable verification of an identification, rather with those agencies and persons who persist in trying to force unqualified and/or poorly trained employees to make identifications, with those who would take up the mantle of "examiner" without the burden of personal responsibility and ethics, and with those agencies who do not know or follow the ACE-V process. Clearly, the issue lies with each individual examiner or agency, not with the forensic community at large.

The latent print community has, for decades, done an incredible job of self-policing its own. Of the thousands of identifications made every working day, all but a very rare several a year are mis-idents as determined by cross-examination and/or additional conflicting evidence. Most of those would seem to come from only one or two "bad eggs" who have crossed the gray line at the edge of the envelope, perhaps becoming over-confident after a string of successes or number of years in the practice. Only a very small minority of latent print identifications, in my 14 year experience, are close to the edge. My final question to myself is "if this ident is sent to another legitimate examiner, is there any chance that it will be challenged based on inadequate detail?" If so, I then consider if it is worth risking my job in calling the ident. If not, it isn't called, or I get more than one additional verification from an outside 3rd party.

Bad examiners get fired. Fortunately, there are few if any bad agencies. Most of the problems seem to be be directly associated with the LE agency "needing" the ident. This is a strong argument for having latent print exams, and indeed most forensic work, done by 3rd party accredited labs.

Where we seem to be headed now (NH vs. Langill) is that the courts now don't seem to care if the ident is valid, rather that we institute more convoluted and progressively unworkable procedures to "assure" that idents are in fact accompanied by "contemporaneous notes" and "independent" verification. The intent is to eliminate potential bias, but the effect is to cripple a nearly flawless process practiced by ethical, professional examiners by turning it into a nightmare of undefined (by the court) requirements for note taking, and the equally impossible task of documenting "individual" verification.

What constitutes "contemporaneous notes?" A picture is worth 1,000 words, it has been said. A latent print must be worth at least that if one tries to document it's "A" in such a way that other examiners can follow the exact thought processes used in coming to the conclusion of "valuable" or not. I often make 5x7 scanned enlargements of my idents, or use an AFIS screen dump. I don't have time to write novels. A recent sexual abuse case consisted of 106 pages of porn drawings. Each page had an average of about 10 latents of potential value.

If I open a case, and follow the P&P manual based on SWGFAST guidelines, I will proceed down the ACE-V path. The verifier, in essense, turns my "V" into his/her ACE. But how does that 2nd examiner document independence? Does #1 refrain from marking any and all latents that pass the initial "A", seal the case back into the original packaging, make notes and then have examiner #2 repeat the process from scratch? But how is #1 to document the latents identified as passing "A" if they aren't identified as "L1, L2, etc." so #1 will know 2 years from now what the analysis was of which latent prints? And if #1 does mark them "L1, L2", then #1 has biased #2 who now knows that "L1 and L2" have been judged by #1 as "valuable". Or does #1 simply mark every latent print ridge, smudge and mark regardless of quality and pass the entire case along for a total re-exam.

How about AFIS searches and scoring? Is this not a bias in suggesting a potential ident? Would you argue that it is impossible to have a truly "independent" verification because latents were pre-marked or because AFIS suggested a match? Such restrictions would eliminate essentially all latent print evidence from courtrooms, would it not?

[Dark Side Guy]

Dear Ms Triplett: No, there is never enough defense work to make a living. And that's a real shame. Consider there are probably thousands of fingerprint examiners working for police in the US, but only a little more than a handful of defense experts. And in my experience, the number of cases we get called in on is pathetically small by comparison to the number of cases the police do. I will say this: without my other income, I would starve. All of my defense related income combined for the year (after expenses) pays for one nice (but not extravagant) vacation for me and my wife.

Dear Mr. Davis: I know the contempt police fingerprint examiners have for defense experts. Remember, I was a police examiner 20 years before I retired and started doing defense cases. I have never helped a defense attorney by providing him with trick questions, but I will coach him on the current valid issues. I do not think it is wrong for me to help a defense attorney make you jump through the appropriate hoops. In fact, I believe any qualified, articulate fingerprint examiner would have no trouble answering the questions I normally give a defense attorney. But on rare occasion when I do catch something wrong, then I feel it is my obligation to expose the incompetent or dishonest examiner. Most of the time, it never makes headlines, but is swept quietly under the rug at the local level.

You are right, training is the key. That, and ethics. I don't entirely agree with you that "there are few if any bad agencies." A few small and medium sized police agencies have top grade fingerprint examiners. But a lot of them have fingerprint examiners who lack the training and expertise to be really top of the grade. The examiners would like to be there, but many of those small and medium police departments (not ASCLD accredited laboratories or full-service crime laboratories) do not put that degree of emphasis on professionalism.

I would add that even in ASCLD accredited or other full-service crime laboratories, there is always the possibility of honest error or even collusion with investigators, even to the degree of perjury. The number of cases of either of those problems is exceedingly small. In fact, if I am not mistaken, this case in Florida falls into the category of honest error. And if I read the article correctly, the errors in Florida were caught inhouse, rather than by a defense expert.

I think it was foolish of the FBI for so many years to try and sell the science of fingerprint identification as 100% accurate. The Mayfield case put the lie to that argument. I am starting to agree with Dr. Simon Cole and others that maybe we should talk about error rate. Maybe we cannot calculate it, but maybe we should at least talk about it. It would be very small, but it is there, regardless. And you hit the nail on the head when you said it happens when somebody pushes the envelope. I suspect that is what happened in the Florida cases that started this discussion, and I believe that is what happened in the Mayfield case, the McKie case, and others that have made the headlines since I have been in the business.

I do think some defense attorneys overemphasize the possibility of error, or worse, they attack on silly grounds like, how do you know all fingerprints are unique? Have you compared all the fingerprints in the world? That is a stupid attack. But the real problem is not that a few defense attorneys overemphasize error or use dumb attacks. The real problem, in my opinion, is that most defense attorneys simply throw in the towel without questioning it at all when the police have a fingerprint identification.

[mdavis]

A defense attorney "knows" if his client is innocent or guilty.

I have no contempt for true defense experts. The problem is, seldom are the defense-paid experts, expert in the field of latent print identification. Too often they are college or university professors who have never made a latent print ID, never trained or certified as a latent print examiner. I suspect there is far more damage to public safety caused by false doubt cast by these pseudo-experts, all court accepted, providing their clients a free exit from jail, than by false idents. If you are truly unbiased (i.e. receive no payment from your clients), and truly honest, ethical and trained to competency, then no legitimate latent print examiner has anything to fear. Unfortunately, this is increasingly not often the case.

Courts are throwing out valid idents on technicalities, then accepting other comparison disciplines such as firearms, toolmarks. Even drug identification is a comparison discipline of sorts. They accept eye witness accounts and idents, yet they are notoriously unreliable.

[Angie]

I don't know the examiner involved in this case but I just read the article and before I passed judgement I'd want more information. She had been an examiner for that agency for 11 years. My first thought is could it just be a matter of a difference of opinion between the examiner and the examiner at FDLE about the clarity of the latent? If that's the case is it a bad ident? Or is the examiner who first made the ident. just a better examiner?????

[Pat A. Wertheim]

A defense attorney "knows" if his client is innocent or guilty. . . . . pseudo-experts, all court accepted, . . . . If you are truly unbiased (i.e. receive no payment from your clients), . . . . . Unfortunately, this is increasingly not often the case. . . . . . Courts are throwing out valid idents on technicalities, then accepting other comparison disciplines such as firearms, toolmarks. Even drug identification is a comparison discipline of sorts. They accept eye witness accounts and idents, yet they are notoriously unreliable.

I'm sorry, Mike, but as a guy who plays both sides of the fence, I have to jump in here and take issue with a few of the things you are saying.

1) "A defense attorney "knows" if his client is innocent or guilty." ---- No, Mike, in my work as a defense expert, many times a defense attorney does not really know if the defendant (client) is guilty. I do a case every month or two somewhere outside of Arizona, usually in the US, in which the attorney is truly confused. The client adamantly says one thing, and the police adamantly insist he is lying, and the defense attorney really does not know which is telling the truth. Most of us in police work for a few years have seen the stereotypical bullying detective who is very good at what he does because of his tenacity. But the tenacity that makes him a good detective works against him when he focuses on a suspect who is innocent but who, for whatever reason, "looks" guilty. We hear every few months of another long term felon who has been discovered innocent by one means or another. I think only in one or two cases (notably, Cowans in Boston) has erroneous fingerprint evidence been used to convict an innocent person. Usually, it is the victim's emotional eyewitness testimony used to convict in rape cases that proves wrong twenty or thirty years later when DNA is tested. But the point is that when a client insists convincingly that he is innocent, the defense attorney does not always "know" that his client is guilty.

2) "pseudo-experts, all court accepted" ---- in this series of sentences, you are referring to university and academic types who testify as experts when they are not true experts in fingerprint identification. Presumably, you are talking about Dr. Simon Cole, Mr. James Starrs, etc. The truth is that while these guys testify in Daubert hearings, they have never been accepted as fingerprint experts in a trial. There are completely different rules as to who may testify before a jury at trial, and who may be called to testify at a pre-trial evidentiary hearing. There have been efforts to get these guys before juries, but I seriously believe they have all failed.

3) "If you are truly unbiased (i.e. receive no payment from your clients)" ---- Come now, Mike, you claim to be unbiased but you receive payment from your client, the State (prosecution). In my case, I do over half of the defense cases "pro bono" (for free). But there is nothing wrong, nothing unethical, with a defense expert charging for his work, any more than it is unethical for you to cash a paycheck for testifying for the State. It is only problematic when the defense expert or the police expert "shades" his testimony for money.

4) "Unfortunately, this is increasingly not often the case. " ---- in the context of a police expert having nothing to fear. I would say that it is always the case that, if you are knowledgable, articulate, and tell the unvarnished truth, then you have nothing to fear. If you are well versed in the science, prepared for trial, and go there to explain the meaning of the evidence (both its strengths and its weaknesses) what in the world do you "have to fear?" Nothing, unless you are the one who is biased. I am unbiased, either as a prosecution witness or a defense witness, in the sense that if is of little meaning to me whether the verdict is guilty or not guilty. I am there to do my best to make sure the jury really does understand both the strengths and weaknesses of the fingerprint evidence so they can evaluate what it means and, hopefully, reach a true verdict. But they will hear a lot of testimony that I have no knowledge of and their verdict may not, on the surface, appear to agree with the fingerprint evidence. But I have to accept that the jurors are twelve honest people, doing their best to reach a correct verdict. Therefore, if I go well prepared and stick to the truth, what in the world do I have to fear?

5) "Courts are throwing out valid idents on technicalities, then accepting other comparison disciplines such as firearms, toolmarks. Even drug identification is a comparison discipline of sorts. They accept eye witness accounts and idents, yet they are notoriously unreliable." ----- Now, Mike, the first part of this is simply not true. In an earlier post, you referred to the judge in NH v Langill as a "rogue judge." I would agree with that. But besides Langill, in how many other cases have valid idents been thrown out on technicalities? Maybe you could say the Patterson case was one, but if you do say that, then you have to crack hard on the FBI for saying the latent prints were of no value for identification. So, besides Langill, how many other cases? And if you honestly believe that other disciplines such as firearms, toolmarks, drug identification, etc., and espeically eyewitness tesimony, are accepted without challenges and objections, then I'm afraid, my friend, you are seriously mistaken.

Before I myself started doing occasional defense cases, especially during the first fifteen or twenty years of my career, I saw defense experts as the "defense W#@%&s" that the guy from the dark side referred to. But now, having seen a few bullying cops go after innocent people and get them convicted (yes, even in at least one of my own personal defense cases, which I had to accept even though I disagreed with the verdict) I will staunchly protect the defense's right to hire a defense expert. Now, let me say that in my roughly 30 years as a testifying fingerprint expert, I have come up against unethical defense experts, too. Shame on them.

But I wish you would calm down and re-read some of "Dark Side Guy's" statements again. There is much truth in some of them. And then I wish in a calm moment, you would reread your own posts. There is bias in some of them.

[L.J.Steele]

A defense attorney "knows" if his client is innocent or guilty.

No, we often don't. One of the first things my ethics professor told me in law school was "your client will lie to you". Attorneys often have our own opinions about the client's story, but we often don't know for sure what happened.

I work in appeals. Every one of my clients has been convicted by a jury. I often have an opinion about the evidence in the case, but I don't know if the client is guilty or not unless he or she tells me. (To a great extent, factual guilt or innocence isn't relevant to the appeal -- the appellate court won't second guess the jury on witness credibility and I can't add new evidence -- most appeals are about whether the procedure was correctly followed.)

Courts are throwing out valid idents on technicalities, then accepting other comparison disciplines such as firearms, toolmarks. Even drug identification is a comparison discipline of sorts. They accept eye witness accounts and idents, yet they are notoriously unreliable.

And there are challenges ongoing in firearms and toolmark ID (see, FREX, last years' opinions from the Federal District Court of Mass in U.S. v. Green and U.S. v. Montiero). There are challenges to chemical analysis of drugs, blood, DNA, and pretty much any other forensic test one can name. Eyewitness ID is a huge issue -- there are ongoing legislative and judicial reform efforts and frequent challenges to ID procedures.

Fingerprints aren't alone -- there's a huge amount of skeptical review being focused on all the disciplines.

As to Langill, I assume that if the prosecutor were going to file an appeal of the trial court's order, the notice of appeal would be filed soon. Any news on if they have filed or if the prosecutor is going to try to comply with the judge's order? We know that whatever documentation was submitted didn't pass the trial court's muster -- we don't know yet what would be acceptable. For all we know it might be a reasonable threshhold.

[Pat A. Wertheim]

Thank you, Lisa, for your confirmation of a couple of my observations. In those areas, you are more authoritative than I am.

I might add that, as a "defense expert," I have developed a terrible bias, or prejudice, based on what the defendant may say. Now, right up front I tell the defense attorney I do not want any contact whatsoever with the client, unless it is to take a set of his inked fingerprints myself, and then I do not want to engage in any conversation with him (or her) at all.

The reason is this ----- I have learned through experience that many guilty clients ask questions, such as "Why would I want to break into that house? I don't want another conviction for burglary." "Why would I want to rape that woman? I already have a girlfriend?" "Why would I . . . ?" etc., or "Don't you think I'm smart enough to wear gloves if I were going to try and break into a safe?" In other words, they ask a million hypothetical or rhetorical questions but never deny the offense.

On the other hand, I have had a few clients who never ask questions, but they scream in anger that the DID NOT DO THE CRIME. The scream it over and over and over. They cry, they beg for help, and they deny, deny, deny -- but they never ask "Why would I do that?"

Recognizing that I develop a bias if the client talks to me, I first try to ensure that there is never direct communication between me and the client, but that all my dealings are with the attorney; and second, if the client does talk to me, I try very scrupulously to ignore what he says and focus strictly on the fingerprint evidence itself to form my scientific conclusion without interference from some form of "bias."

[mdavis]

Hi Pat,

Thanks for taking time to respond. Didn't plan on having the heavyweights attack my concerns. No anger here, just concern and some frustration at where I see this recent all-out assault on forensic labs because of a few bad cases. Let me try to relate to your numbers:

1) I intentionally put the word "knows" in quotes, not to emphasize it as an underline, but as a conditional opinion. I think this is a justifiable position (your experience to the contrary) for several reasons. First, attorneys are as adept at discerning lies as police officers. When a client claims innocence, a defense attorney must consider that possibility, but also realizes that the majority are not innocent. Pick your percentages. Second, a good defense attorney will carefully explain to a client that they must know the truth, that the truth is held in strictest confidence and not conveyed to the court, and that such information is critical in building the best defense possible. In other words, lie at your own expense. Third, defense is given all pertenent evidence in the case through discovery. Evidence in abundance points to truth. Finally, the percentages of guilty suspects, overzealous cops or not, are filtered through the prosecutor system. Most prosecutors are not willing to file on weak cases, and are especially concerned with not losing cases that could reflect on their record come voting time. Very few innocent cases reach the bench. There are exceptions, to be sure, just precious few.

2) I agree. You have separated true forensic experts from the philosophers. My concern is that decisions of valid idents are being overshadowed by semantics attacking the process, not the results.

3) We are all biased to some degree, of course. I work for an independent regional lab partly funded by state grant monies (soon to be discontinued) and by blanket contracts with submitting agencies. I have and do testify at the request of the defense. I testify only as to my findings, nothing more.

4) Agreed. The fear comes for the profession's ability to present valid forensic information at the looming expense of unreasonable procedural demands.

5) NH vs. Langill is the basis for my comment here, perhaps a bit strongly worded. I should have left the "s" from "court." But legal precedence is infectious. We have all seen the hassles (fortunately of no consequence yet aside from a lot of extra work) of the Daubert hearings. And some good things have come from that. But the fingerprint community has a fantastic record of self-policing its own in the past. The rate of error (which no one really "knows") is apparently extremely low or we'd all be in court for the remainder of our working days, or selling pencils on the street corner. You make my point about juries accepting eye witness accounts on rape cases which are overturned decades later by DNA, while a NH judge throws out what is probably a valid ident because of an issue with note taking and lack of proof of independent verification.

I haven't called legitimate examiners who testify for the defense dirty names. I've done so myself, usually when no latents of value were found. This is part of the process. I cannot think of a single legitimate examiner who has lost touch with what we do and how we do it as a valid process. We are becoming swamped with additional demands on our documentation, effectively increasing our backlogs, and confusing our processes by unthinking (and perhaps well-meaning) courts who are trying to fix what ain't broke. We can never totally eliminate all errors and prevent all unsuitable examiners from making bad idents, yet it seems someone is trying to do it for us with undefined demands for "contemporaneous notes" and "documented independent verification." Of all the links in the criminal justice chain from the crime to the bench, I'd like to think those of us in forensic labs continue to try to be the least biased and most objective.

Thanks again, Pat, for the comments. I remain calm but concerned.

[Pat A. Wertheim]

Hey, Mike

My first decade or two in the business, I got all panicy every time the defense community came up with a new way to attack fingerprint evidence. I can remember as if I were watching a video in my mind, some of the presenters at conferences from the very early 1980's doing presentations on new or novel attacks they had experienced in court and how they had handled those attacks. I remember rehearsing their lines to prepare for those attacks that worried me, only to breathe a big sigh of relief when nothing ever came of the attacks. But the 1990's, I wasn't so worried because I figure, heck, I know my stuff and neither the lawyers nor the juries scare me anymore. By the 2000's, it's "bring 'em on." Now there's nothing I love more than an aggressive attorney attacking me with everything he's got. I know my stuff and the more opportunity the attorney gives me to talk to the jury, the better they will understand the evidence. And for that matter, it doesn't matter which side I'm testifying on. I started to type, "which side I'm testifying for," but I changed that word -- I don't testify "for" either side. I testify "for" the truth, whichever side it happens to be on. For the truth, for the science, and to both the strengths and the weaknesses of the evidence.

But I'm off the track, I just realized. The point I was starting to make is that defense attorneys go through phases. A particular attack becomes a fad for a few months or a few years, even if they don't win a single case. Then an imaginative attorney will figure out a new attack and it becomes a fad. There's no sense developing a knee-jerk reaction to their fad attacks because the science is very, very strong. If you are calm and look at the jury when you answer questions, talking to them as you would to a dozen students who really want to learn and understand your little lecture, you will persevere and succeed.

The original Daubert attacks focused on permanence and uniqueness, and on ACE-V. We won every one of those cases for years. Then the Daubert attacks shifted to "error rate." So now they are shifting to "contemporaneous documentation" and "confirmation bias." I'll tell you what, we will win on those issues, too, because the truth of the matter is that fingerprint identification is still reliable -- moreso than any other type of evidence.

But because fingerprint examiners are human, there are occasional mistakes. And because judges are human, they do dumb things sometimes, too. I honestly believe the situation in NH v Langill will be reversed at the appelate level and the fingerprints will get in eventually. But I will say this --- out of the tens of thousands of judges in the US, do you honestly think we can win every single one of them with our logic? I don't think so! Sooner or later, you will come up against a judge who maybe spent years as a defense attorney and actually brainwashed himself or herself into believing their line of rhetoric. Do you really think other judges will be swayed by a bizarre decision like the one in NH? My gut feeling is that the vast majority of other judges looking at that decision are thinking, "That's crazy talk!"

And so, to get back to the situation in Florida. If past experience with publicized cases is any indication, Florida examiners especially but all of us to some degree will be hit with this case in court. So, when the defense attorney brings it up and asks you about it, you turn to the jury, look them in the eyes, and say, "Yes, I heard that somebody in Florida made a couple of mistakes in her career, but I haven't seen the prints in those cases and I really have no first hand knowledge about them. But I know that in this case, the prints I examined DO match and there's no mistake about that." Then you turn back to the defense attorney with a gentle, sincere smile that says silently, "Glad I could help clear that up. Got anything else bothering you today?"