CLPEX Chat Board

While the case discussed in this post has been displayed under a different thread, I received a request from an interested party yesterday to post it on its own thread so that a more salient discussion might take place. Replies are encouraged.

The following news story appears at http://www.etruth.com/article/20121003/NEWS05/710039945

The Elkhart Truth
Attorney re-evaluated evidence in Elkhart murder case

By: Sharon Hernandez
shernandez@etruth.com

ELKHART — When Cara Wieneke, Lana Canen’s attorney in the Indiana Court of Appeals, heard her client maintain her innocence through and through, she thought about looking into evidence used in her trial again.

“When I reviewed the transcript I realized the fingerprints were an important part of the trial,” she said. “And so I thought maybe I’ll have them tested by an independent examiner, one that was certified.”

She sent the fingerprints to Kathleen Bright-Birnbaum, an examiner at Arizona-based Desert Forensics, who sent back results showing the prints did not match.

After showing the findings to the prosecutor’s office, the officer who performed the initial analysis, Dennis Chapman, looked through the results and confirmed he had made a mistake.

Now Canen, who was sentenced to 55 years in prison in 2005, may have another chance to defend herself. The prosecutor’s office requested the Elkhart County Circuit Court to set aside the 2005 conviction and to have her murder charge reinstated.

Canen was arrested Sept. 3, 2004, almost two years after the murder of Helen Sailor, 94, at the Waterfall High Rise apartments, Elkhart.

It was reported initially that her fingerprints matched the ones on a bottle of pills inside Sailor’s apartment.

Elkhart County Prosecutor Curtis Hill Jr. stated in a written statement it is “reasonable to believe that the jury relied upon Detective Chapman’s testimony in considering the evidence against her.”

Wieneke said Canen always maintained her innocence, which led her to look into the fingerprints.

“I think a lot of people think that many clients claim their innocence but there really aren’t that many that do, and so when she continued to maintain her innocence throughout and even when I met with her, it made me think maybe there’s something there.”

Elkhart County Sheriff Brad Rogers said Chapman will be disciplined for his error.

Wieneke said Judge Terry Shewmaker has 90 days to make a decision on whether to vacate her conviction and reinstate her charge. If her conviction is vacated she will be transported to Elkhart County to be presented at circuit court.

It was my subjective, unscientific observation during the years I worked a few defense cases that a guilty client asks questions, such as "Why would I steal that car? I didn't need a car. Besides, don't you think I would steal a better car than that?" In those cases, I always found the police evidence to be correct.

Whereas, in a case where the client does not ask dumb rhetorical questions, but instead screams over and over, "I did not do it. I'm innocent. I did not commit this crime," the fingerprint evidence might actually be found to be flawed.

The information I have been given in this case is that the detective is not a full time fingerprint examiner, but rather a police investigator who had some fingerprint training twenty or thirty years ago. He admitted doing only a "level 1" comparison (I am not even sure he uses the term the same way most latent print examiners use the term). Apparently, he only looks at a very few fingerprints a year and his work is never verified. I believe the evidence was originally sent to the state lab for examination, but because of high backlog and an anticipated delay in getting results, it was quickly called back to the investigating agency where this detective could do an immediate comparison in this high profile murder case. It has all the appearances of a "perfect storm" scenario.

I give credit of both the prosecutor and the detective who made the erroneous ident. Once they received and reviewed the report of the defense expert, Ms Kathleen Bright-Birnbaum, the detective immediately revisited the comparison and realized his mistake. He immediately informed the prosecutor, who immediately informed the court. They both deserve credit for standing up and admitting the mistake, then joining the defense in requesting the conviction be overturned. There was apparently never even the thought of trying to hide the mistake or sweep it under the carpet or even to try and rationalize what happened. Their honesty is to be highly commended.

It is important to note that the error was discovered by a CLPE working for the defense. In other words, the system worked in this case because it was utilized by the defense attorney reviewing the case for appeal. It was another fingerprint examiner who enabled justice to catch up with the injustice, not a non-expert fingerprint critic.

Obviously the SCRO wasn't involved. Yep, I'm feeling a little snarky today.

Hi PCC

Interestingly, I have been in communication with an examiner at SCRO this year who I believe to be disenchanted with his organization. 'Nuff said about that.

In my earlier post, I should have closed by saying, "Three things should be noted:

First, the erronoues identification occurred because a non-certified latent print examiner who does not follow any of the SWGFAST standards made an identification without following ACE-V.

Second, the erroneous identification stood up in court because the first defense attorney did not use due dillegence in defending the client. We, as professional examiners who do adhere to the standards and who do follow ACE-V, have nothing to fear from a competent and honest defense expert. If the first defense attorney had retained an independent expert of high standards, this whole thing could have been avoided.

And third, it is important to note that the error was discovered by a CLPE working for the defense. In other words, the system worked in this case because it was utilized by the defense attorney reviewing the case for appeal. It was another fingerprint examiner who enabled justice to catch up with the injustice, not a non-expert fingerprint critic.

First, the erronoues identification occurred because a non-certified latent print examiner who does not follow any of the SWGFAST standards made an identification without following ACE-V.

From the information you have provided, the Detective was not a latent print examiner. Whether they were certified or not is somewhat relevant in this instance. They were not an examiner, should not have undertaken any comparison in this case and hopefully not in any further cases.

Pat, I am not sure if I am reading into this too much - were you inferring only certified examiners should follow standards and undertake comparison tasks? If so, then the certification process and exam may well need to be revamped.

Additionally, it may be viewed as a sad indictment of the state lad that had such a backlog (homicides?), that they could not review the previous comparison.

Graham F wrote:Pat, I am not sure if I am reading into this too much - were you inferring only certified examiners should follow standards and undertake comparison tasks? If so, then the certification process and exam may well need to be revamped.

Additionally, it may be viewed as a sad indictment of the state lad that had such a backlog (homicides?), that they could not review the previous comparison.

Good catch, Graham. I should have said "competent" instead of certified. There are plenty of competent latent print examiners out there who, for one reason or another, are not certified.

I would argue that while the detective in this case was not a competent latent print examiner, by mere virtue of the fact that he was looking at latent prints, proclaiming identifications, and testifying in court, he was, de facto, a latent print examiner. Grossly incompetent, perhaps, but still an acknowledged LPE by his department, by the prosecutor, and by the judge. Also, I might add, by the first defense attorney who did not bother to seek independent advice on the latent print evidence.

As for backlog, we all do what we can individually, but if the state legislature does not commit the funds to the state lab to meet the needs, then backlogs can accrue through no fault of the hard working scientists who are trying to keep up with the load. I do not know all of the particulars, but I have worked in such a lab and can understand why even a high profile murder case may sit for several weeks. If the local agency and prosecutor want it done NOW, not two weeks from now, and call it back, I would not judge that to be the state lab's fault.

From my first post in this thread:

Pat wrote: . . . . .
It was my subjective, unscientific observation during the years I worked a few defense cases that a guilty client asks questions, such as "Why would I steal that car? I didn't need a car. Besides, don't you think I would steal a better car than that?" In those cases, I always found the police evidence to be correct.

Whereas, in a case where the client does not ask dumb rhetorical questions, but instead screams over and over, "I did not do it. I'm innocent. I did not commit this crime," the fingerprint evidence might actually be found to be flawed.
. . . . .

In an unrelated case, Jerry Sandusky's taped comments playing on the news today are a perfect example of the type statement made by a guilty person -- a rambling conglomeration of rationalization, blame-shifting, self-justification, and allegations of a massive conspiracy against him. His few feeble denials in the whole pathetic statement were conditional -- "In my own heart, I know I did not commit blah blah blah," "I have only had sex with my wife (hinges on his narrow definition of having sex)," etc., etc., etc.

No screaming denials or angry protestations of innocence, only rhetorical questions and twisted rationalizations.

Classic. Just classic.

Regarding Sandusky, I thought it interesting that he said he wife was his only "sexual partner." Since a child can hardly be construed as a "partner" in the sense of an equal, consenting partner, his statement about his wife could be literally true and at the same time misleading. Not that anyone's likely to be fooled.

Or it may be that he uses the strict definition of a female organ penetrated by a male organ. Everything else is just "tickle games," as he told one of his victims. Since many of the male adults who end up in prison were abused as children, I imagine some of them will be eager to show their appreciation playing "tickle games" with him at every opportunity in the next 30 years. I almost feel sorry for him. Almost, but not quite.

He... "did not have sexual relations with that..." child... We've never heard that line before, right?

Excellent Idea!!! A write-in candidate as alternative for those of us who find none attractive among the formal nominees.

On the other hand, folks, the Amanda Knox case should be a cautionary tale about drawing inferences from human behavior. The Italian PD focused on Knox precisely because they found her reaction to her housemate's murder to be unusual.

People react to stuff in lots of different ways. I'm not a psychologist. I don't keep statistics on who reacted how and what turned up in the evidence. My clients tell me lots of things in many different ways -- and for each of them I say, I wasn't there. I don't know what happened. My job on appeal is to see if you got a fair trial. I have opinions about the strength of various cases, but the DNA exonerations are an ongoing reminder to me to be humble about those opinions -- in far too many of those cases the exonerated defendant's own attorney felt the defendant was guilty and pressured him or her into a plea or didn't fight the case very hard.

In summary, an erroneous ident led to Lana Canen's conviction for murder. A local detective with minimal training in fingerprints made the ident and testified to it.

An appellate defense attorney assigned the case eight years after conviction hired an independent expert, Kathleen Bright-Birnbaum, CLPE, to review the evidence. The independent expert discovered the error and excluded Canen as the source of the print. After reviewing Ms Bright-Birnbaum's report, the detective who made the original error concurred with her. The prosecutor and detective joined the defense in moving to overturn the conviction.

If this case pops up as an impeachment of the science of fingerprints in a case when you are testifying, the important facts to note are these:
1. The detective who testified to the identification at Lana Canen's trial was NOT a qualified or competent latent print examiner. He had only minimal training over twenty years earlier.
2. He did not follow ACE-V nor any SWGFAST standards.
3. He has apparently never been proficiency tested.
4. There was no verification of the identification prior to the trial.
5. The original defense attorney did not retain an independent examiner to review the identification nor execute a competent line of cross examination.
6. The judge allowed the detective to qualify as an "expert."
7. The error was caught by a latent print examiner trained to competency who used ACE-V and complied with SWGFAST standards. Ms Bright-Birnbaum has 30 years in the field, is a CLPE, and in retirement does business as Desert Forensics. See http://www.desertforensics.com .

There may be other reasons your identifications are more reliable. For example, you may be a CLPE, or you may work in an accredited lab where there is tech review, admin review, external audit, etc. You should be prepared to explain all of the reasons that led up to the "perfect storm" in the Lana Canen conviction do not apply to your specific case when you testify.

http://www.abc57.com/news/local/Murder- ... 21701.html

Murder conviction overturned, Canen released

By Judi Lykowski
Story Created: Nov 2, 2012 at 5:18 PM EDT
Story Updated: Nov 2, 2012 at 10:15 PM EDT

ELKHART, Ind. An Elkhart woman convicted of murder is free from prison after serving close to eight years for the crime. Today she was released after a review of the evidence in August releaved there was no evidence she was ever at the crime scene.

Lana Canen, 53, was convicted of killing 94-year-old Helen Sailor at the Waterfall high rise apartments on Thanksgiving of 2002.

Prosecutors originally said Canen's fingerprints were found on the victim's pill bottle. She was convicted and sentenced to 55 years in prison.

"All of our family has known she's innocent from the start so we have just been waiting for this,” said Sandra Brinson, Lana’s mother.

Brinson has been waiting eight years while her daughter was held in a Rockville prison.

"As of this moment Ms. Canen has been released from custody and is no longer charged with murder in Elkhart County,” said Curtis Hill, Elkhart County prosecutor.

A prescription bottle is what put her away but now that same bottle and fingerprint is clearing her.

“The fingerprint testimony and the fingerprint exam was the central part that placed Canen at the scene and was supporting the theory of the prosecution of the case,” said Hill.

Canen's attorney, Cara Weineke, hired an expert fingerprint analyst to compare the print found on the pill bottle in the murder victim’s room to Canen's and they did not match. Det. Dennis Chapman, the investigator form Elkhart County Sheriff's Department who did the initial examination of the fingerprints acknowledged the prints didn't match after running another comparision.

“When Detective Chapman reviewed the information that was supplied by counsel for Miss Canen he was able to determine that information was better that his information and he had been wrong,” said Hill.

During Canen's jury trial in 2005, Detective Chapman is the officer who testified that the fingerprint belonged to Canen.

“This case is very unusual. Certainly we do not take this action on many situations and we hope to not have to take this type of action,” said Hill.

“There will be no trial or nothing else. It’s over finally. I'm just glad it's over I can get some rest now," said Brinson.

Curtis Hill stressed having expert witnesses is a critical part of his prosecution team. He specified in this case Elkhart City Police used detective Chapman with the sheriff's department to do the fingerprint work because he has training in the field.

Brinson said her daughter is making her way back to Elkhart where she will live at her Elkhart home until she gets her feet back on the ground.

Andrew Royer is serving a 55 year sentence in his involvement of the murder of Sailor on November 29th, 2002. Hill said The 94 year old was strangled to death and today's developments has nothing to do with his case.

In defense of the detective who made the original identification, I have utmost respect for his ethics that led him to immediately renounce his earlier identification and take the side of the defense as soon as he recognized his mistake. I wonder how many people in his position would have tried to sweep it under the carpet or deny it altogether. We are confronted by other cases in which errors are vehemently denied by entire latent print sections and police departments, even when the errors are proven to the courts.

The original prosecutor is also to be commended for joining in the motion to overturn the conviction as soon as he was advised of the mistake by the detective. The appellate attorney is also to be commended for due diligence in seeking an outside expert, rather than just accepting the original trial transcript as proof of the identification. I also understand that the prosecutor complimented the defense expert, Kathleen Bright-Birnbaum, and she may have the opportunity to teach some classes in the area.

I suspect Lana Canen will come out of the mess in the end with due compensation.