CLPEX Chat Board

mdavis wrote:It is indeed frustrating that judges and juries seldom have the background to evaluate scientific evidence. As a forensic scientist (chemist by education), I am not allowed to sit on a jury because of my relationship to law enforcement. Yet I would suggest that I would be a far better judge of scientific evidence than a retired carpenter or bus driver or housewife. So what we have wrought are juries, hand picked by attorneys for their emotional bias potential, not for their individual qualifications as deciders of fact vs. fiction.

We could certainly do more with judicial education, but don't underestimate your chances of serving on a jury. A few years back, I got called to serve on a jury in a criminal case. I expected the prosecutor to strike me based on the jury questionaire which clearly noted that I was an attorney working in criminal defense. Prosecutor didn't ask any questions and didn't strike, even tho I know he had challenges left. It was one of the more educational experiences I've ever had and I'm thankful that the prosecutor didn't reflexively challenge.

Fortunately, I work mostly in appeals and haven't had to pick a jury. I think I'd be concerned about someone who worked in law enforcement or a crime lab for a criminal case involving forensics, but whether I'd move to strike would depend on how the prospective person answered questions about potential bias. In a civil case, on the other hand, having a technical person there can be very useful _if_ they can set aside their training and listen to the testimony rather than becoming a juryroom expert based on a limited subset of what the experts saw.

mdavis wrote:The sheer volume of available data, huge AFIS databases with tens of millions of entries, and a century of success and accuracy should put the validity of fingerprint individualization beyond much doubt.

I don't think anyone is arguing against uniqueness of prints in the abstract, or against the ability to individualize in the abstract. The question has to do with being able to accurately discern uniqueness and to individualize with often poor quality latents of sometimes very small portions of the entire print.

Certainly there are issues about malfeasance, fabrication/fraud/forgery, and other affirmative misdeeds. That's also not usually the problem. The question for most attorneys is whether a good-faith error has been made and, whether the procedures in place are sufficient to prevent good faith errors.

mdavis wrote:then the defense should legitimately request a disinterested (unpaid if possible since payment introduces bias) 3rd party evaluation.

A court-appointed expert missed the Mayfield mis-ID. The newspapers say that two defense experts missed the Cowans mis-ID. If you look thru Cole's list of twenty-ish mis-ID cases, there were defense experts in several who didn't spot the mid-ID. We don't have statistics on how often third-party evaluations work, but I've been looking for instances and found darned few. (Anyone have better figures.) As I recall from Pat W's forgery/fabrication/fraud talk, darned few of those cases were caught by defense experts.

Sadly, I don't think this is a viable method of preventing wrongful convictions. I think the solution is going to have to be preventing the mis-ID in the first place.

Those that review and oppose a published scientific declaration or conclusion are typically scientists that operate WITHIN THAT DISCIPLINE. As was the case with bullet lead analysis. I believe it was a retired FBI Firearms Examiner that set out to further research bullet lead analysis and consequently came to the conclusion that the science was flawed and that 100% identifications were inaccurate. The only opponents to latent prints that I'm aware of are individuals that make their living doing something other than examining latent prints, i.e. professors, attorneys, or someone with an underlying agenda. That's not to say that there aren't improvements that can be made in our profession but if fingerprints/latent prints is considered unreliable and based on 'shaky science' then why aren't there more active or retired latent print examiners out there screaming 'foul' or publishing articles that reveal the scientific shortcomings of this discipline..... I contend that it's because they don't exist. David Stoney is the only 'scientist' with latent print experience on the 'Defense Team' list and I remember hearing that he testified in the Mitchell case to having made latent print identifications. It just seems to me that if there was such a problem with latent prints as a comparative science that there would be more LATENT PRINT scientists saying so. If the science is to be questioned then who better to question it than those who practice it?

At the risk of repeating one of my comments elsewhere on another thread, I feel that computerized searches are largely responsible for errors from, especially, older examiners. Here's why:

Before computer databases, the only prints routinely searched were local hard-copy databases in file cabinets. The possibility of finding a very close non-match was extremely low, hence the possibility of a bad ident was also extremely low. Today, the databases are enormous (40 million is it in the FBI IAFIS?...I forget), and the computer search algorithms are getting better at very close approximations every day. This raises the bar for extreme care in making idents on less than optimal latent prints. What was probably a "good guess" a decade ago is now fraught with danger as the candidate list generated is very, very close.

I recall one of my instructors, many years ago, at the FBI academy saying that he could make idents then that he couldn't see years before. That raised a red flag for me that I've never forgotten. We must all be keenly aware of "the eye of faith" that might convince us that what we think we see is really there. As experience is gained, self-confidence rises. But it is that self-confidence that often causes an over-confident examiner to make a call that shouldn't be made, and an underling-verifier to rubber stamp the decision.

I believe that identifications can be made with virtually 100% accuracy, as long as an examiner stays away from that gray area of smoke and mirrors that push us off the cliff. One bad ident anywhere in the world undermines arguably the best and most reliable form of forensic evidence in the courtroom. We are muddying up our own water when we don't back off and stay safe.

*********

"This is not a court of justice, young man, this is a court of law!" - Oliver Wendell Holmes

While I do agree with much of what you say here, I believe that it is important to stress that ultimately we must, as professionals, be true to ourselves and the disclipline. When we take it upon ourselves to verify anothers work, regardless of how long they have been in the field, we need to be aware of our own abilities and limitations. We must always take responsiblity for our own actions, and it is in this that we will take great strides in keeping those waters mud-free!


Connie

There is no argument that experience and training gives you advantages in making idents. I, too, have made some idents that I couldn't have made many years ago, but I fear that years of increasing self-confidence can lead to errors such as the Mayfield case and others. A word to the wise .... and a warning to recognize the increasing potential for error the closer you get to the leading edge.

Kathleen Birnbaum wrote:When a judge, or anyone for that matter, denies the reliabity of fingerprints found at a scene, it always makes me wonder what they will say when a crime is committed against their own person or property. Will they be the first to refuse to have the investigators process the scene for prints or refuse to want to use that evidence in court identifying their assailant or burglar. I would be hard pressed to think they would still feel the same about how reliable those print are.

Simon Cole backtracked on a similar question during the debate with Pat Wertheim. It appeared to be an uncomfortable moment for Mr. Cole....and rightly so.

Kathleen Birnbaum wrote:When a judge, or anyone for that matter, denies the reliabity of fingerprints found at a scene, it always makes me wonder what they will say when a crime is committed against their own person or property. Will they be the first to refuse to have the investigators process the scene for prints or refuse to want to use that evidence in court identifying their assailant or burglar. I would be hard pressed to think they would still feel the same about how reliable those print are.

Red wrote:[Simon Cole backtracked on a similar question during the debate with Pat Wertheim. It appeared to be an uncomfortable moment for Mr. Cole....and rightly so.

I've had the question put to me, and I'll repeat my response. Of course the investigators can process the scene. Be glad to cooperate with them. Assuming I were privy to the forensic evidence used by the prosecutor (a big _assumption_), my feelings about the case would depend on the quality of the forensic evidence.

If there's a nice, clear latent that Helen Keller could make an ID from -- I'd have no qualms about the prosecution proceeding on just that evidence. If the only evidence was a single badly smuged latent processed by someone privy to other information about the case at the time of the ID and verified in a non-blind manner, I'd be much more concerned and expressing those concerns to the prosecutor. (There are some big limits on the victim's ability to influence the prosecutor's case, but if I thought there was a potential screw-up, I'd be using what influence I had to get it done right.)

A few years back I was at a presentation by Jennifer Thompson, a sexual assault victim who identified a man as her assailant and discovered, a decade or so later, that she had made a good-faith error. The wrong guy had gone to jail, leaving the true culprit out there to rape more victims.

See http://www.pbs.org/wgbh/pages/frontline/shows/dna/

Listening to Thompson talk about her feelings at having participated in a wrongful conviction was a very painful experience. I would hope that, in the same situation, I would be concerned about making sure the police got the right bad guy.

I've never taken the position that fingerprint ID doesn't work or should be completely excluded from the courtroom. I think that my colleagues in the defense bar need to be more alert to possible issues and to make appropriate challenges in those more difficult cases.

L. J. Steele said:

If there's a nice, clear latent that Helen Keller could make an ID from -- I'd have no qualms about the prosecution proceeding on just that evidence. If the only evidence was a single badly smuged latent processed by someone privy to other information about the case at the time of the ID and verified in a non-blind manner, I'd be much more concerned and expressing those concerns to the prosecutor.

I have heard or read the above quote from you on at least one previous occasion.

What qualifies you to determine the value of a latent print?? You may look at a latent impression and see a smudge, and I may see clearly enough detail to identify/individualize that print to someone to the exclusion of anyone else. That, my dear, is based on hundreds or thousands of hours of training, thousands upon thousands of comparisons and years of experience. New examiners tell me that one of the most difficult things to learn in latent print training is what makes a latent impression a latent impression of value.

Bill wrote:What qualifies you to determine the value of a latent print?? You may look at a latent impression and see a smudge, and I may see clearly enough detail to identify/individualize that print to someone to the exclusion of anyone else. That, my dear, is based on hundreds or thousands of hours of training, thousands upon thousands of comparisons and years of experience. New examiners tell me that one of the most difficult things to learn in latent print training is what makes a latent impression a latent impression of value.

Qualified -- nothing. That's why I picked that phrase -- something that a layman (the Helen Keller quip) would see as clear and distinct -- I'd have no qualms about proceeding. Yes, there's a huge midrange between a very clear print and, say, the Mayfield print -- and that's the area you're talking about. As the crime victim, I wouldn't expect to have access to the state's expert to ask questions about something that wasn't so clear and get that sense of whether it is an easy or hard ID. It would be an uncomfortable place to be.

I think your question is more about defense counsel's qualifications. As I said at the Maryland IAI meeting, it would be my job as defense counsel to make decisions about the quality of forensic evidence and whether I'm going to try to talk directly with the prosecution expert or whether I'm going to ask for funds for a defense expert. And that decision would be based on a layman's view of the evidence (be it fingerprints, firearms ID, DNA, blood spatter, etc.), some gut impressions about whether the evidence makes sense, the centrality of the forensic evidence to the case, the client's story, and the likely theory of the case. Sadly, unless we had a system of having forensic experts review every defense case, there's no way around having defense counsel as the person deciding what to investigate further.

Listening to Thompson talk about her feelings at having participated in a wrongful conviction was a very painful experience. I would hope that, in the same situation, I would be concerned about making sure the police got the right bad guy.

And don't we all. It tends to be forgotten that there are hundreds of latent print examiners who would consider a bad ident to be very painful and an end to his/her career, either by choice or necessity. Most of us weigh every individualization with the consequences in mind. Unfortunately, when one in thousands becomes known to the media, it is hyped to death, and we continue to close the door after the horse is gone by increasing documentation demands and slowing workflow.

On Feb. 19th Judge Souder declined to reconsider her decision that ruled fingerprint evidence to be unreliable.

A federal prosecutor is reviewing the case for possible federal prosecution.

http://www.baltimoresun.com/news/local/ ... 5736.story

http://www.baltimoresun.com/news/local/ ... 4126.story

City man federally indicted in 2006 fatal shooting at mall
U.S. attorney's office takes up prosecution in death of merchant
By Brent Jones | Sun reporter
8:57 PM EDT, April 1, 2008
A federal grand jury indicted a 23-year-old man Tuesday in the January 2006 fatal shooting of a Security Square Mall merchant, a rare single-murder case for federal prosecutors, who took over after a state judge excluded fingerprint evidence.

That evidence, state prosecutors have said, ties Brian Keith Rose of Baltimore to the death of Warren T. Fleming, 31, owner of a Cingular Wireless store at the Baltimore County mall. Rose was arrested 13 days after the shooting, which police said occurred during a carjacking in the mall parking lot.

Rose was indicted on two counts of attempted carjacking resulting in death and discharging a firearm during a crime of violence. He could get life in prison without parole if convicted. Prosecutors said a decision on whether to seek the death penalty will be made in coming months by the U.S. attorney general.

Maryland U.S. Attorney Rod J. Rosenstein said that because of the expense of murder trials, such cases are rarely pursued at a federal level. His office was swayed by Baltimore County State's Attorney Scott D. Shellenberger's request for assistance.
State prosecutors said they linked Rose to the Jan. 5 shooting through partial fingerprints lifted from the victim's Mercedes and a stolen Dodge Intrepid that they said the shooter used to drive away from the parking lot.

Baltimore County Circuit Judge Susan M. Souder ruled that fingerprint evidence, which has been used in courtrooms across the country for nearly 100 years, was not reliable enough for a capital murder case. In her ruling, the judge characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible."

Rosenstein and Shellenberger announced the indictment at a joint news conference. Rosenstein said he could not speak about the specifics of the case.

Shellenberger said reliable evidence would be excluded if the trial remained with the state.

"We were in a situation where evidence was being excluded that we felt the Fleming family had a right to make sure it got presented," Shellenberger said. "The only place is in federal court."

Rose's former defense attorneys were angered by federal prosecutors' decision to pursue the case.

Paul DeWolfe, now head of the Montgomery County public defender's office, said the federal involvement undermines the judge's decision.

"We hope the federal authorities will respect decisions by state court judges," DeWolfe said. "We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."

Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, said "The federal indictment is a slap in the face of every state court judge ruling based on the law."

Rosenstein defended the process. He later appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can.

"Judges make mistakes. Judges sometimes disagree," Rosenstein said. "And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

Kent said no mistake was made in this case and that his former client was ready to go to trial in November before state prosecutors delayed the case.

Rose will have new lawyers in the federal trial.

"Ultimately, the issue of fingerprint admissibility will not go away," Kent said. "The fact that the state has fled to the federal court does not change the fact that fingerprints simply are not admissible, have never been validated and have no place in a courtroom, be it at state or federal level."

Federal prosecutors said the U.S. attorney general's office will decide in six to eight months whether to seek the death penalty. Rose's trial is expected to begin in late 2009.

brent.jones@baltsun.com

This part was interesting:

"We hope the federal authorities will respect decisions by state court judges," DeWolfe said. "We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."

Did I miss something. Are not some cases appealed to higher courts of the state and then perhaps appealed to the U.S. Supreme Court. Is not the Supreme Court a federal authority? Perhaps these Defense Attorneys do not consider that federal authorities.

Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, said "The federal indictment is a slap in the face of every state court judge ruling based on the law."

Do not prosecutors appeal decisions to higher courts on ocassions like defenders do. Does that mean when a prosecutor appeals to a higher authiority it is a slap in the face but when a defender does it, it is OK.

Rosenstein defended the process. He later appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can.

Now that is a reasonable statement. The law at that time would not let him appeal. He believed the decision was wrong. Should he not try to appeal it in some fashion or just give up on his OATH.

"Judges make mistakes. Judges sometimes disagree," Rosenstein said. "And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

Another reasonable statement. Did not a different Maryland State Judge rule a few weeks later to admit fingerprint evidence. One judge does not and one judge does. Time to go to a higher legal authority. Is that not what the legal system is about or am I living in a dream world.

"Ultimately, the issue of fingerprint admissibility will not go away," Kent said. "The fact that the state has fled to the federal court does not change the fact that fingerprints simply are not admissible, have never been validated and have no place in a courtroom, be it at state or federal level."

That is not a reasonable statement. I suppose if he had his wish even inked fingerprints used in the punishment phase of a trial would not be admitted. What about one of those Helen Keller prints that Ms Steele talked about---NOT ADMISSIBLE. What about when you have 10 latent prints all Helen Keller types identified to the suspect---NOT ADMISSIBLE.

It is amazing to me that people who call for truth, honesty, and justice do not consider playing by the same rules. There use to be a name for it. I think it was called grand standing.

Did not Thumper say in the movie Bambi

"If you cannot speak the truth to the media then say nothing at all" or something like that.

Charles Parker wrote:This part was interesting:

"We hope the federal authorities will respect decisions by state court judges," DeWolfe said. "We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."

Did I miss something. Are not some cases appealed to higher courts of the state and then perhaps appealed to the U.S. Supreme Court. Is not the Supreme Court a federal authority? Perhaps these Defense Attorneys do not consider that federal authorities.

That's just strange.

Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, said "The federal indictment is a slap in the face of every state court judge ruling based on the law."

Do not prosecutors appeal decisions to higher courts on ocassions like defenders do. Does that mean when a prosecutor appeals to a higher authiority it is a slap in the face but when a defender does it, it is OK.

Not really an appeal. Just a prosecution of an entirely different law, albeit for the same criminal act. I wonder would he publicly object to the federal civil rights prosecutions of Klansmen for the murders of those working to register voters.

"Judges make mistakes. Judges sometimes disagree," Rosenstein said. "And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

Another reasonable statement. Did not a different Maryland State Judge rule a few weeks later to admit fingerprint evidence. One judge does not and one judge does. Time to go to a higher legal authority. Is that not what the legal system is about or am I living in a dream world.

It's not you who's dreaming. I mentioned in another topic decisions on admissibility of expert witnesses to testify about the nature of eyewitness evidence. Decisions are all over the map, from state to state and among the federal circuits. Consistency is nice, but getting there is part of the legal sausage-making in which SCOTUS is head chef.

And I am at a loss as to how to reconcile the statement that judges make mistakes but there must be consistency. Of course, he means that all the other courts mistakenly admitted fingerprint evidence.

"Ultimately, the issue of fingerprint admissibility will not go away," Kent said. "The fact that the state has fled to the federal court does not change the fact that fingerprints simply are not admissible, have never been validated and have no place in a courtroom, be it at state or federal level."

That is not a reasonable statement. I suppose if he had his wish even inked fingerprints used in the punishment phase of a trial would not be admitted. What about one of those Helen Keller prints that Ms Steele talked about---NOT ADMISSIBLE. What about when you have 10 latent prints all Helen Keller types identified to the suspect---NOT ADMISSIBLE.

Shocking lack of respect for the thousands of courts that thought otherwise.

It is amazing to me that people who call for truth, honesty, and justice do not consider playing by the same rules. There use to be a name for it. I think it was called grand standing.

Since you live in the country, as do I, you know folks there have another word for it.


From my view, the real judicial absurdity is the court's position that there are different standards for evidence in a capital case and evidence in other cases. It's always been my view that, if you can't get a right deal in small cases, you can't expect it in large cases.