CLPEX Chat Board

From a recent Connecticut Appellate Court case (not one of mine):

Taylor v. Commissioner, __ Conn. App. ___ (2015). Available at:
http://scholar.google.com/scholar_case? ... s_ylo=2015

This is a drug deal gone bad murder case from 1993. Police found the [petitioner's] fingerprints on the exterior and interior of the truck." Defendant was tried, convicted, and his conviction affirmed. He's now in state habeas court alleging ineffective assistance of trial counsel. One of his claims is that "Specifically, the petitioner claims that [his attorney] should have challenged the admissibility of Zercie's [CT state police fingerprint expert] opinion that the petitioner was the last individual to touch the victim's truck, and sought a disclosure of the summary of Zercie's opinion and a basis for Zercie's opinion. "

"Zercie testified at the criminal trial that a set of fingerprints belonging to the petitioner was located on or near the victim's truck's door frame and that, on the basis of his review of the fingerprints, the petitioner was the last person to touch the door frame. At the habeas trial, [Counsel] testified that he consulted with a fingerprint expert prior to the criminal trial, who concluded that the fingerprints belonged to the petitioner. [Counsel] testified that he decided not to call the fingerprint expert as a witness because Simon believed his testimony would have undermined the petitioner's defense.

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The petitioner argued before the habeas court that Simon should have challenged Zercie's conclusions that the petitioner's fingerprints were located on the victim's truck and that the petitioner was the last person to touch the victim's truck. At the habeas trial, the petitioner, through an offer of proof, offered the testimony of Simon Cole, a teacher and researcher in the field of sociology of forensic science, to indicate that [Counsel] could have introduced evidence to challenge the validity of Zercie's opinions. The court rejected Cole's proffered testimony regarding the reliability of fingerprint identification in 1997, the year of the petitioner's criminal trial, as irrelevant, but the court accepted into evidence four articles, predating 1997, that discussed whether the age of fingerprints could be reliably determined. The petitioner also called [Another Attorney], an attorney, as a legal expert who testified that he agreed with [Counsel]'s decision not to challenge the fingerprint evidence, calling the fingerprint evidence a "red herring." Kaatz testified that he would have argued instead that the last person to touch the truck was not necessarily the suspect, and he further would have asked Zercie on crossexamination whether someone could have touched the truck without leaving a print.

The habeas court concluded that [Counsel] did not render ineffective assistance of counsel for his handling of Zercie's testimony. Regarding Zercie's testimony about the presence of the petitioner's fingerprints on the truck, the court credited [Counsel]'s testimony that he had consulted with a fingerprint expert and, as a matter of trial strategy, relied on the consultation as a reason not to challenge Zercie's conclusion that the petitioner's fingerprints were found on the victim's truck. The court further supported its conclusion on the basis of [Another Attorney]' testimony that he agreed with [Counsel]s decision not to challenge Zercie's conclusion concerning the presence of the petitioner's fingerprints. * * * The court also rejected the four articles submitted into evidence by the petitioner concerning the reliability of determining the age of fingerprints, finding them inapplicable because Zercie did not testify to the age of the fingerprints found on the victim's truck but rather to the relative time placement between the various fingerprints on the truck. Even if the articles were relevant, the court further found that the petitioner submitted no evidence indicating that a trial attorney practicing in 1997 would have been aware of the articles."

The Appellate Court doesn't reach part of the issue on procedural grounds. As to the "aging" testimony -- we agree with the court that the four articles submitted by the petitioner at the habeas trial would not have been effective in impeaching Zercie's opinion. As the court correctly found, all four articles discussed the determination of the age of fingerprints, which is inapposite to Zercie's opinion that the petitioner was the last person to leave fingerprints on the truck. Even if those articles were on point, we also agree with the court that the petitioner produced no evidence indicating that it was reasonable for [Counsel] in 1997 to find such evidence and introduce it to impeach Zercie."

So what do you guys think --- can someone testify that the print must have been left by the last person who touched the surface? Should counsel have been aware that this was improper testimony?

I had similar testimony in State v. Camacho, 282 Conn. 328 (2007) -- another state police fingerprint expert testified that my guy had to have been the last person to leave the building because his was the clearest print on the storm door -- a high traffic surface. I haven't seen it since -- was this something commonly done in the 1990s?

can someone testify that the print must have been left by the last person who touched the surface? Should counsel have been aware that this was improper testimony?

Well counselor It appears you have already made up you mind that it was improper testimony.

I don't know the circumstances of the case and I don't see the transcript of testimony, so it is impossible to say what is "improper" .

I do think the distinction between age of a latent and when a surface was touched is an important one. Was that distinction missed by Mister Cole in 1997.

I don't think there is enough here to start a debate twenty years later about what was proper in 1993

I agree with Bill on what is considered ‘improper’ without knowing the full circumstances surrounding the statement. Latent examiners are asked many times about circumstances involving the placement of a latent which is separate from the identification to a specific individual. Ken Zercie is a fine examiner and very competent and professional. I would be surprised if he would make any statement just to bolster his testimony. He could have had very genuine reasons to state the individual was the last one to touch a particular surface. Counsel may have been wise not to seek that reason to avoid damaging testimony. What is the saying for witness examination, “Do not ask a question without knowing the answer”? There could have been very solid circumstantial observations to support the conclusion and ones that counsel did not want expressed.

Ernie Hamm wrote:Ken Zercie is a fine examiner and very competent and professional.

I met Mr. Zercie a time or two over the years and have no reason to disagree with your character assessment. However, if the name had been left out of the article, or if it had been the name of a disgraced CLPE whose certification had been revoked, I wonder if Bill's and Ernie's comments would have been the same.

How can a latent print examiner, based only on an examination of the latent prints on a vehicle, make the claim that the donor of a particular latent had to have been the last person to touch the vehicle?

Struggle as I might, I can envision no reasonable way in which that statement could be made, with the possible exception of a vehicle coming out of a car wash on a closed circuit surviellance system and a suspect being caught by the camera touching the vehicle, then without interruption, the crime scene technician arriving and developing the latent print in the exact location the suspect was seen on film touching the vehicle with nobody else enterring the picture between deposition and development of the print.

This has nothing to do with who testified. The point is that we don't have enough information to debate whether the testimony was "improper".

Your scenario is far fetched (as I'm sure you intended) but there could be other factors that would indicate sequence of touching. We don't know the case particulars and don't have the testimony, although I'm sure the appeal court had them.

I think the challenge to this case was made on the wrong issue "age of a latent" Attorneys make tactical errors all the time. Its refreshing to me that the court identified that as such. And as Ernie pointed out, we don't know what the defense had in mind when they chose their strategy for the original trial.

Let me rephrase my question --can someone testify that the print must have been left by the last person who touched the surface? Should counsel have been aware that this testimony should have been examined more carefully? I don't have transcript -- what is in the opinion is all I know -- but it sounds like reasonable experienced examiners can differ on this subject.

L.J.Steele wrote:can someone testify that the print must have been left by the last person who touched the surface?

In 40 years of latent print work, I would have to give an unequivocal "NO!" as an answer, except in the admittedly far fetched hypothetical I postulated.

Bill Schade wrote:there could be other factors that would indicate sequence of touching.

Very respectfully, Bill, please enlighten me. How can we say nobody, including persons with dry skin or wearing gloves, could have touched the vehicle somewhere else after the defendant touched the vehicle?

I don't think I am being picky, but I honestly believe that to testify that a particular latent print necessarily had to have been made by the very last person to touch a vehicle is overextending.

Of course, we don't have the transcript. Maybe that is a misinterpretation of Mr. Zercie's original testimony. Or maybe it was an inference made to include the entire vehicle when the latent in question was actually the most recent touch of, say, the button on the exterior door handle.

I do have to believe the original defense attorney recognized the questionable nature of the testimony, if indeed that was the actual testimony. But I also have to believe the original defense attorney had some other strategy for winning the case, which failed.

Like Lisa, Bill, and Ernie, I really don't know. And I, too, would be interested in the original transcript. But bottom line, something appears to be curiously wrong if we accept as facts the court's statements in Lisa's original post.

My apologies, and I post here to correct myself. Shame on me for not catching this distinction before my last post:

L.J.Steele wrote:"Zercie testified at the criminal trial that a set of fingerprints belonging to the petitioner was located on or near the victim's truck's door frame and that, on the basis of his review of the fingerprints, the petitioner was the last person to touch the door frame.

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The petitioner argued before the habeas court that Simon should have challenged Zercie's conclusions that the petitioner's fingerprints were located on the victim's truck and that the petitioner was the last person to touch the victim's truck.

Mr. Zercie said defendant was the last person to touch the door frame. The court mis-quoted him to have said the defendant was the last person to have touched the truck.

With that distinction, Bill and Ernie have stronger ground to question criticism of Mr. Zercie's allegation. My apologies, Gentlemen.

Still, I cannot imagine circumstances under which a latent print examiner could rule out someone else having touched the door frame at a distance of a few inches or more from the defendant's prints.