CLPEX Chat Board

Here's a twist on thought. I'll stir the pot and just watch it churn.

We have heard the idea from legal community, critics, and even from within our discipline, that we should consider treating single latent identifications in a different manner than multiple latent idents. As an example, the FBI Lab implemented additional QA procedures on some single latent ident cases. We have seen legal opinions where the validity of defendant identification in the case might not have been as questioned if there were multiple latent matches instead of only one.

Of course the premise from these communities (or from this perspective) is that the chances are much greater for the stars to align to cause an error to occur once than they are for that same star alignment to occur over and over. OK... Let's theoretically accept the premise, but turn the tables.

Guy is convicted on other evidence. Combination of circumstantial, primarily circumstantial, whatever... he is convicted. Beyond a reasonable doubt, the jury finds the facts compelling enough to convict, so he's in prison for 20 years.

Single latent print from a non-public area is matched to another convicted murderer who lived 2 blocks away from the murder scene 20 years ago when it occurred.

Is the latent print identification reliable and valid enough to justify retrying the first guy's case? how about reliable and valid enough to justify exhonoration? And most relevant to the thought experiment, how would those with, let's say "critical perspective" react if the prosecution challenged the fingerprint identification? Would inner turmoil eat them alive? Would they embrace and utilize latent print identification to it's fullest extent in this case if it were theirs?

I love a good pot stirrin' every now and agin'.

-K

Oh yeah... and if you want to read the ACTUAL story, indulge yourself. But don't hold your breath for comment from critics on what they'd do with this one. OK... so there were 2 idents. But what if there were only one? What if?
http://www.tampabay.com/news/courts/leo ... is/1092805

After reading the article, I wonder what if they had never identified the fingerprints? Would the innocent widower husband have rotted and died in jail? Probably. There would have never been a reversal and the loving husband of the murdered woman would have died in prison, officially “guilty” of his wife’s murder.

I had a burglary case one time. A window screen had been removed and a window pried open. The burglar was interrupted by the homeowner. She screamed, he ran. She immediately called police and hid in her bedroom. Police arrived within minutes and called the crime scene unit. I got a beautiful palm print off the window screen (clearly a “fresh print,” but, of course, I can’t conclusively say that). The white female victim described the burglar as a tall, skinny Black man in his early 20’s. The burglary investigator put together a photo lineup of the six tallest, skinniest young Black burglars in town. The victim picked one out, even though she only had a fleeting glance across a darkened room for a second or two. Call the suspect WH. Based on that “eyewitness identification,” WH was convicted in spite of the fact that the MO was not his normal MO and the area of town was demographically different from anywhere he had ever done a crime before. WH did not have a car and the burglary was miles from his stomping grounds. The palm print on the screen was clearly NOT made by WH. Nor was it made by the homeowner or her maintenance man. I testified for the defense, but the “eyewitness identification” ruled and WH served five years in the penitentiary for that burglary.

If I had been able to identify the palm print to another person who never had access to that window screen, would WH have been convicted? If I had identified another after he was sent to prison, would he have been freed on appeal? I wonder.

So, Pat. The widower is innocent? Factually? I wouldn't say that. Not even legally innocent at this point. There has been no reversal, only the order to conduct the hearing now underway. Way too little from a newspaper account that's very short of detail from the trial. Not much more really helpful from the linked Special Report. Innocent man in prison is a good story. Guilty man in prison isn't, and the information is filtered to suit. For instance, other multiple stabbing murders are used to imply that they were all done by the same guy. Are they still open? Known to have all been different actors? Don't know. Kind of a big thing to leave out of the story, if they were all open. I do, though, note Scott seems to think the location of his prints are important, since he lied about having any idea where they would have been found. But, again, he's going to be worried, whether he did it or not. And he believes he met the victim's husband. Some awareness or even slight connection to a person of home has often been what decided someone to target it.

The question at this point is not who killed Michelle, and it can't be known with absolute certainty from what's available there. Or from the trial, for that matter, as is the case with many convictions. But I've become extremely cautious about second guessing juries when I wasn't there to hear the witnesses, including father-in-law to whom God revealed the location of the body. Fortunately, the court doesn't have to decide who did it. And since the original prosecutor agrees he merits a new trial (while also believing he would be again convicted), he may get one at some point.

Kasey,
We're not likely to learn anything from this case about what happens if the state challenges the fingerprints. Reading the appellate opinion, it appears the state doesn't offer any contest as to the petitioner's facts. We really know little about prosecution approaches to fingerprints they want to challenge, largely, I think, because they're not much offered by defense. But they would have to be thinking about their arguments coming back to them later.

Kasey Wertheim wrote:
Is the latent print identification reliable and valid enough to justify retrying the first guy's case? how about reliable and valid enough to justify exhonoration? And most relevant to the thought experiment, how would those with, let's say "critical perspective" react if the prosecution challenged the fingerprint identification? Would inner turmoil eat them alive? Would they embrace and utilize latent print identification to it's fullest extent in this case if it were theirs?

Is the ID sufficient cause for a new trial and/or exoneration? Once the ID is reported, everything else is a matter of law. As such it depends on what the "other" evidence was that led to the conviction (I have not read the article). If the "other" evidence is very strong, a single mark from a publicly accessible area may not go very far. On the other hand, if the "other" evidence is weak, then a single mark from the crime scene may cast reasonable doubt on the guilt of the convicted offender. So the answer is Yes and No . . . but I would actually defer to the lawyers/judges on this one

Actually, Gerald is correct. The newspapers always sensationalize. They never report "the truth, the whole truth, and nothing but the truth." There may have been much evidence at the husband's trial that the newspaper neglected to include in the article. I'm backing off from this one.

But the example I cited is "the truth and nothing but the truth," but not the whole truth as I put it in the last post. The "rest of the story" is this: I confronted the victim after the trial and commented "I wonder whose print that was on your window screen." Her angry reply was, "Well, unless you can show me another n*gg*r that tall and skinny, I'm going to keep saying it was him." I immediately advised the prosecutor, whose response was, "Forget it, Pat. The verdict was guilty. That settles it."

The American criminal justice system is the best in the world -- I firmly believe that. But like fingerprints, it is not "Zero Error Rate."

For the defense it is complicated -- we don't normally have access to AFIS, for example. A defense expert could examine, or re-examine, original evidence and conclude that a print is clearly an exclusion, but it would be harder for the defense to get access to exemplars to go on to conclude it matches to someone else. The defense could ask that the State lab then try to make a match, but if the lab or prosecution isn't amenable, I'm told this is hard to accomplish. But assume we've gotten there, we've got a single latent to another named person who is a viable third party culprit.

The defense attorney's ethical obligation is to zealously defend the client within the bounds of the law. I'd say the ethical duty is likely to present relevant, material, admissible evidence to the post-conviction court and let the court make a determination. The burden of proof in post-conviction is quite high, so this is not an easy thing to do.

Take a different example -- let's say that 5-6 years ago, defense counsel had been actively challenging compartive bullet lead analysis, but at that point the NRC report hasn't come out, FBI is vigorously defending CBLA, and it is admissible in that state. Attorney has a case where the CBLA analysis favors the defense. Ethical duty would likely be to argue that the result is relevant, material, admissible, and leads to reasonable doubt. I could also see an attorney concluding that he or sher personally has such doubts about CBLA that they don't feel they can objectively evaluate the evidence or persuasively present it, and looks for successor or co-counsel to avoid a potential conflict of interests. The key here is that the evidence is, at that point, relevant to the case, material/imporant to the case, and admissible under current law.

Remember that the prosecutor's duty is different -- he or she is charged both with zealous representation within the bounds of the law and to "do justice". In theory, a prosecutor who had personal doubts about a single print ID or, in my example, CBLA evidence on the eve of the NRC report, might see an ethical duty not to present that evidence even if it is relevant, material, and admissible.

L.J.Steele wrote:The defense attorney's ethical obligation is to zealously defend the client within the bounds of the law. I'd say the ethical duty is likely to present relevant, material, admissible evidence to the post-conviction court and let the court make a determination. The burden of proof in post-conviction is quite high, so this is not an easy thing to do.

What's the correct term for the "entry level" burden in appeals? For instance, "reasonable suspicion" as a sort of threshold to investigate, "probably cause" to bring a prosecution, and reasonable doubt as a conviction threshold. What do you call the compelling evidence needed to get a review started. Not the standard for judging the ultimate appeal issue, the very high standard, but the standard for getting full access to the system in terms of attorney and expert money, the standard that the petitioner often has to meet using their own resources before any of that can be made available? I think that's one of the most interesting standards, and one that few outside the system understand, what it takes to get an appeal off the ground when physical evidence is at issue.

[quote="Gerald Clough] What's the correct term for the "entry level" burden in appeals?[/quote]

I was thinking of habaes and its counterparts when I was referring to post-conviction. An appeal is strictly limited to the evidence produced at trial and greatly limited by the challenges and objections made by trial counsel.

If, for example, I have an appeal with a key single latent match that raises yellow flags to me just looking at it, but trial counsel did not object to it and made no challenge, there's almost nothing I can do with it on the appeal. I can tell the client to go file a habeas. I might be able to convince the public defender's office to give me funds for an expert to check it out now, but any favorable report would have to go thru habeas as it would be new evidence.

Standards for habeas vary widely. Often the defendant gets the ball rolling with a pro se motion or petition depending on the state. States vary in how much the defendant has to show to get appointed counsel (by this point client is likely in jail and out of money). Once counsel is appointed, they have an ethical obligation to zealously represent the client, which includes doing a reasonable investigation including consulting with experts as needed or reading up on topics or law they don't know. If the attorney does an investigation and determines the case is legally frivolous (a term of art meaning “arguments that cannot conceivably persuade the court”. McCoy vs. Court Appeals Wisconsin, 86 U.S. 429, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988)), then he or she may be able to move to withdraw as appointed counsel. If the motion is granted, client can still proceed pro se. The burden for persuading the Court is quite high -- courts like finality.

[quote="Gerald Clough] What do you call the compelling evidence needed to get a review started. Not the standard for judging the ultimate appeal issue, the very high standard, but the standard for getting full access to the system in terms of attorney and expert money, the standard that the petitioner often has to meet using their own resources before any of that can be made available?[/quote]

This is complicated and varies state by state and between the state and federal courts.

When I refer to an appeal, I mean the direct appeal from the conviction or the direct appeal from the decision of the habeas court. So this is an appellate court reviewing the decision of the trial court to see if legal errors were made that are so serious that the trial court’s decision is unreliable. That’s automatic – file your notice of appeal in a timely manner and if you had an appointed attorney, or qualify for one, you get appointed counsel. Again, the appeal is limited to the trial record, so there’s normally no access to experts, discovery, etc.

When I referred to post-conviction, I was thinking of state and federal habeas and its counterparts. This varies wildly by jurisdiction and gets harder every year.

The convicted person usually needs to get the ball rolling with a pro se petition or motion. (If I see something really wrong in a CT case, I can send a memo with the file to the Habeas Unit alerting them to the case and suggesting they contact the client and a memo to the client strongly urging them to file the paperwork post-haste. One of habeas counsel’s jobs is to review my work to see if I missed something major in the appeal, so I see a conflict in my representing the client on habeas or too deeply involved in his paperwork – I don’t want the appearance that I’m discouraging the client from having the appellate work reviewed.) For CT the petition has to clearly show eligiblity for habeas relief (still in jail) and at least one issue that isn’t frivolous on its face. At that point, the habeas court appoints the Public Defender’s Habeas Unit which assigns the case to an attorney. That attorney then has various ethical duties about investigating the case (see above). In CT, the Public Defender pays for defense experts in habeas for appointed counsel, so one has to file a request for funds and justify it to the powers-that-be in the habeas office. There is not an unlimited pool of money, but I don’t know how those decisions are made.

In Mass, things are complex. If, in preparing the appeal, I see something that looks like an obvious habeas issue, I can stay the appeal and file a motion for new trial. Expert funds for indigent defendants need to be approved by the trial court, so I have to file motions and affidavits explaining why I want money and for whom. If it looks like something a client with means would reasonably spend money on, I’ll likely get funds. I’ve had requests for funds granted and requests for funds denied, often in amounts lower than what I asked for with the option to come back for more money later. In CT all habeas cases get an evidentiary hearing before a judge. In Mass, I need to file the Motion for New Trial, with supporting affidavits from experts, witnesses, etc., and prove to the court there is a meritorious issue worthy of the hearing – otherwise the motion can be denied on the papers. (This can be a problem if a witness doesn’t want to cooperate with my investigator and give a statement, particularly if trial counsel won’t do so (he or she does not have an ethical obligation to cooperate with post-conviction counsel, only to turn over their file on request by the client.) If there’s a hearing, the habeas petitioner (the incarcerated person) has the burden of persuading the court either that the client is factually innocent or that trial counsel’s work was constitutionally ineffective, in that it fell below the standards of a minimally competent attorney AND that the mistake was harmful in the case. If the trial court says “no”, then the habeas issues are folded into the direct appeal. It is also possible to file a motion for new trial after the appeal – if the appellate attorney sees an issue he or she is supposed to do it, if they don’t the client can file pro se – the case is then screened by the public defender’s counterpart to see if there’s a non-frivolous issue – if so, the screening attorney takes the case. If not, then counsel is not assigned and the case can proceed pro se.

Complicating all of this are various federal deadlines for filing the federal habeas and rules that any issues have to be fully litigated in the state courts before they can be presented to the federal courts.

Again, this is a VAST simplification of a very complicated, difficult process, by someone who mostly works in appeals and so deals with the habeas case after habeas counsel has made their determination about what to do, litigated it, and lost.