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Maryland judge rubs out fingerprint evidence.

A ruling in a capital murder case questions one of the most time-honored ways of figuring out whodunit.

In a Baltimore County, Maryland, courtroom, a state circuit court judge ruled that testimony about latent fingerprint evidence was not admissible because the state could not prove that it had "a reliable factual foundation." In granting the defense motion to exclude the testimony, Judge Susan Souder likened unquestioning confidence in fingerprint evidence to some people's stubborn belief in a flat Earth. (State v. Rose, No. K06-0545 (Md., Baltimore Co. Cir. Oct. 19, 2007).)

On the morning of January 5, 2006, Warren Fleming was shot to death outside a store he owned in Baltimore's Security Square Mall. Witnesses said they saw two men struggle with Fleming and then flee in a stolen car but could not identify them. When police officers recovered the car, abandoned at a subway stop, they lifted fingerprints from it and sent them to the crime lab along with the names of possible suspects. The lab technicians identified the prints as belonging to Bryan Rose. Rose was arrested and charged with Fleming's murder.

The question before Souder centered on the method the technicians used, known as ACE-V (analysis, comparison, evaluation, and verification)--the most common method of identifying latent fingerprints. The defense questioned whether ACE-V was scientifically valid under the "general acceptance" standard set forth in Frye v. United States. (293 F. 1013 (D.C. Cir. 1923).) In Maryland, the standard is called Frye-Reed after the case in which the state adopted Frye. (Reed v. State, 391 A.2d 364 (Md. 1978).)

Souder wrote that the method did not meet that standard, concluding that "the proof presented by the state ... showed that it was more likely so, than not so, that ACE-V is the type of procedure Frye was intended to banish, that is, a subjective, untested, unverifiable identification procedure that purports to be infallible."

The state argued that fingerprint evidence has been accepted in courtroom testimony for over 100 years and that most courts have rejected attempts to have fingerprint evidence dismissed.

But Patrick Kent, chief attorney for the forensics division of the Maryland public defender's office, who argued the defense motion, said that was all the more reason the evidence should be challenged. "Historical acceptance is not judicial acceptance," Kent said. "There has been no meaningful litigation over this discipline for over 100 years."

Souder agreed with that view. "The state is correct that fingerprint evidence has been used in criminal cases for almost a century," she wrote. "While that fact is worthy of consideration, it does not prove reliability. For many centuries, perhaps for millennia, humans thought that the earth was flat.... Indeed, there is still a Flat Earth Society for people who cling to the idea the earth is not an orb. But science has proved that the earth is not flat; and it is the type of fact of which a court can take judicial notice."

Fingerprint evidence is so widely accepted by courts and in popular culture that it seems--and its proponents say it is--infallible. But that view has been challenged by skeptical researchers and by high-profile embarrassments: In 2004, Brandon Mayfield, a Portland, Oregon, lawyer, was arrested for the terrorist bombings on a Madrid train when the FBI concluded that his fingerprints matched those found at the crime scene. When Spanish investigators questioned the match and found a likelier suspect, Mayfield was released.

He was luckier than Stephan Cowan, a Massachusetts man who was convicted in 1997 of shooting a police officer and spent six years in prison before chance circumstances revealed that the fingerprint evidence used against him was mistaken and he was innocent.

"Most times you find out an innocent person was convicted, it's because of bad forensic evidence: eyewitness testimony, voice recognition, and fingerprint evidence," said Kent.

After the Mayfield foul-up, the FBI's Office of the Inspector General (OIG) launched an internal investigation into its fingerprint methodology. In her decision, Souder referred in detail to the OIG report, which concluded that the ACE-V produced inconsistent results.

She also cited skeptical scientific reviews of fingerprint evidence, including the work of University of California-Irvine criminologist Simon Cole, who has documented dozens of convictions based on faulty fingerprint evidence.

Souder also had harsh words for the state's expert witness, FBI fingerprints expert Stephen Meagher. "Mr. Meagher incredibly testified that there is no error rate in ACE-V as it is an infallible methodology," Souder wrote. "Mr. Meagher was neither credible nor persuasive in this regard. Without impartial testing, however, whether or not the methodology is infallible is unknown."

And contrary to Meagher's testimony, she added, "where tests have attempted to imitate actual conditions, error rates by fingerprint examiners have been alarmingly high."

Souder's ruling raised eyebrows among defense lawyers and prosecutors across the state.

"This will turn a lot of cases on their heads," predicted Byron Warnken, a professor at the University of Baltimore School of Law. Warnken agreed that some of the protocols for ACE-V identification are "sloppy" but added that Souder erred when "she made herself the fact-finder."

"The complaints about latent fingerprinting--no standards, no independent verification, no blind review--are legitimate," Warnken said. "The problem is, these are questions that go to the weight of the evidence, not the admissibility of it. The proper way to handle this is to let the evidence in, and then let the defense minimize the weight that the jury gives to this evidence."

But Brian DeWolfe, Kent's cocounsel in the Rose hearing, said, "The judge considered that, but concluded that under Frye-Reed there has to be scientific validity before evidence can come before a fact-finder."

The judge was assuming her proper role as a "gatekeeper," said DeWolfe, who is district public defender for Montgomery County, Maryland. "Saying you have to leave it to the jury to make the determination flies in the face of the careful scrutiny that courts are required to give under Frye-Reed."

Kent said it was high time a judge realized the fallibility of this long-accepted evidence. "Anyone who wants to imbue a certain type of evidence with the power and the persuasiveness of science," he said, "must also abide by the rules of science."
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Author:Sileo, Carmel
Date:Feb 1, 2008
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