T  H  E      D  E  T  A  I  L

Monday, September 15, 2003

Good morning via the "Detail," a weekly e-mail newsletter that greets latent print examiners around the globe every Monday morning. The purpose of the Detail is to help keep you informed of the current state of affairs in the latent print community, to provide an avenue to circulate original fingerprint-related articles, and to announce important events as they happen in our field.

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Michelle Snyder writes: I am desperately searching for articles concerning the percentage of latent prints of value that come from crime scene evidence. During my internship years ago, an examiner mentioned to me that the percentage was very small----about 5%. I recently asked for the article that mentions this, but he can't recall where he had read that. Is anyone familiar with where I can locate this information? I have tried numerous internet searches, as well as, searching the JFI. I was hoping that this might sound vaguely familiar and that someone might point me in the right direction. I would greatly appreciate any help in this matter. Thank you.
Sincerely,
Michelle L. Snyder
Forensic Scientist
Ohio Bureau of Criminal Identification and Investigation

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Last week, Glenn Langenburg and I introduced the Babler page in the CLPEX.com REFERENCE GRAIL (link on the left side of the home page).  This week, we receive a report of the Mitchell appeal hearing based on comments of two attendees of the hearing in Pennsylvania.

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Last Tuesday, September 9, 2003, Justices Becker, Greenburg, and Berry had half a dozen cases on the docket in the United States Court of Appeals for the Third Circuit in Philadelphia, Pennsylvania. One of those cases was Appeal number 02-2859, the United States of America v. Byron Mitchell.

The documents before the judges that day were standard for most appeals. Defense attorney Robert Epstein was allowed to submit one motion for appeal, to which the prosecution could respond in writing. The defense got one more written response to the Government's response, and the appeal hearing was set.

The hearing itself was very structured, just like any appellate hearing. Each attorney received 25 minutes to cover their arguments, and the defending attorney could receive another block of time for rebuttal if granted by the court, but it had to be specifically defined and strictly adhered to. The proceedings were witnessed by several interested parties in the courtroom, including Judge Pollak from the Llera-Plaza trial.

Before the court were five issues appealed by Epstein.

I. The district court erred in allowing the government to present expert witness testimony from two latent fingerprint examiners since the examiners failed to satisfy any of the admissibility criteria of Daubert and the district court failed to make any alternative findings of reliability.

II. The district court erred in precluding the defense from calling three expert critics of fingerprint analysis who would have testified, as they did at the Daubert hearing, that latent fingerprint analysis is not a science, that there has never been any testing to assess its reliability and that there are no standards to govern its application.

III. The district court erred by taking judicial notice that small areas of fingerprints are unique since the government failed to demonstrate that this fact is beyond reasonable dispute.

IV. The government violated it Brady obligations by suppressing a National Institute of Justice Solicitation for fingerprint validation studies which admits that basic validation studies are needed to determine 1) whether fingerprints are truly unique and 2) whether fingerprint analysis is sufficiently reliable to meet judicial requirements for admissibility.

V. The district court erred in admitting the prior consistent statements of key cooperating witness Kim Chester because Chester's prior statements were not made prior to her charged fabrication and motive to falsify.

The attorney's did not get to argue uninterrupted; the hearing was very interactive. The judges asked questions, made comments, etc. In fact, Epstein had proceeded only about 5 minutes into his first arguments when Judge Becker, one of the original justices in the actual Daubert vs. Merrill Dow case, started asking question after question. A few minutes later, Epstein was advised that he was attempting to hold fingerprints to a higher standard than what the Daubert decision required, and he would be well advised to spend his time arguing other issues.

As if that door being closed was not enough, Epstein continued to take heat on the other issues also involving questions and comments from the judges. By the time Bob Zauzmer, the Government's attorney, took the floor, the hearing was well over schedule.

Zauzmer didn't spend much time on Daubert issues; by then it was fairly clear where the judges stood on that issue. During technical discussions, Zauzmer articulated very well the three levels of fingerprint detail. Arguments regarding the NIJ solicitation focused on the fact that Epstein was relying on the testimony of only 1 witness, when there were 6 other very credible witnesses that all testified to the contrary. Zauzmer spent most of his time arguing the issue of excluding the three defense experts.

The position taken by Zauzmer was that the defense failed in their responsibility; Joiner said the defense had the option to call Starrs, Stoney and Cole to give testimony regarding the identification, but they chose not to. If there were any one of the five issues on appeal that was not as clear, this would probably be the issue that would be revisited. However, even if error is found on this point, the predominant feeling of two of the observers I spoke with was that any error found would be considered harmless, and a new trial will not be ordered.

During the 5 minute rebuttal that Epstein was provided, Zauzner found instructions Judge Joiner had given the jury basically relating that they did not have to accept his judicial notice as fact. Zauzner was allowed the unusual privilege of presenting this argument in an additional rebuttal, and therefore was the last to speak at the Mitchell appeal.

The best short description of the proceedings I heard was that it was a "slam dunk" for the appellate attorney. We will probably have a decision within a few months.


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FUNNY FINGERPRINT FINDS

From the News-Sentinel, Fort Wayne, Indiana, 9/5/03:
News-Sentinel, Fort Wayne, Indiana 9/5/2003

DNA test kits a safeguard for children
Police say DNA can be critical in cases of missing children.

"In the past, parents were given cards and told to fingerprint their children and save the cards in case of an emergency. But fingerprints can change with age."

"Fingerprints have not become obsolete, but it is pretty close to it," said Sgt. Rick Reed with the state police. "The most effective and inexpensive way now is through DNA."

Submitted by Tom Pitzen, fingerprint examiner with the Fort Wayne Indiana Police Department, and editor of "Lab and Scene", the newsletter for members of the Indiana IAI.  "Thanks for looking, and have a great week!"

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Until next Monday morning, don't work too hard or too little.

Have a GREAT week!