Steve Ostrowski brings us the latest on the Daubert challenge currently being decided in Massachusetts.

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Daubert Challenge to Simultaneous Impressions in Massachusetts
by Steve Ostrowski

This past Wednesday morning (September 7, 2005) was another very important day in the legal life of the science of fingerprint identification.  The Massachusetts Supreme Judicial Court (SJC) heard oral arguments on the admissibility of simultaneous impressions as well as the science of fingerprints as a whole.  Many examiners from around the country tuned in as the proceedings were broadcast live through a website established and maintained by Suffolk University Law School.  Although the feed was intermittent and fitful, much was gained from the experience.

The debate is to determine whether fingerprint evidence should be admitted at the upcoming retrial of Terry L. Patterson.  Mr. Patterson was initially found guilty in the 1993 slaying of Boston Police Department Detective John J. Mulligan.  Reports state that Patterson and a friend (who was also convicted of homicide in a separate trial) shot Det. Mulligan five times in the face as he sat in his vehicle while on a paid work detail.  Five years ago, the SJC overturned Patterson's conviction based on a lawyer-defense witness issue. Patterson’s attorney, John H. Cunha, Jr., Esq., has been contesting the fingerprint evidence since 2002 and the issue has only gotten more intense on the heels of the exoneration of Stephen Cowens in 2004.

During the initial trial, prosecutors introduced a latent fingerprint developed on the window of the driver side door of Det. Mulligan's vehicle.  Boston Police Department Sergeant Robert Foilb determined that the “streaked” grouping of four adjacent prints was in fact simultaneous and he subsequently identified the print to Terry Patterson.  The defense claims that this method of identification in which the aggregate of detail from separate fingers is not a generally accepted, standard method for identification.

The simultaneous impression was analyzed by many different examiners during the past twelve years.  Besides the examiners at the Boston Police Department, four examiners at Massachusetts State Police Crime Scene Services (MSP-CSS) also looked at this impression and concurred.  These examiners included Sgt. Brian Winsor, Tr. Susan Ricci, Lt. Deborah Rebeiro and Cpt. George MacDougal.  In preparation of the upcoming Patterson retrial, Lt. Det. Kenneth Martin, also of MSP-CSS, looked at the impression and concurred with the findings.  Additionally, three examiners from Ron Smith and Associates (Ron Smith, Jamie Bush and Bob Garrett) also concurred with the simultaneous print identification.

For clarification purposes, there is a second latent impression in this case.  For anyone reading the amici briefs or additional accounts, there was a single latent fingerprint impression on the passenger side door of Det. Mulligan’s vehicle.  This impression was determined to be identifiable and the FBI excluded it as having been made by Terry Patterson.  There are no suspected erroneous identifications in the case.

The SJC consisted of a panel of six justices lead by Chief Justice Margaret H. Marshall.  As many of you recall from an earlier edition of The Weekly Detail, amicus briefs were requested by the SJC in this case.  Amicus briefs are ‘friend-of-the-court’ briefs that provide detailed information and legal citations for the justices to better understand the issue at hand.  The request of the SJC was:
 

ANNOUNCEMENT: The Justices are soliciting amicus briefs. This reservation and report seeks pretrial resolution of the issue whether the Commonwealth has met its burden under Commonwealth v. Lanigan, 419 Mass. 15 (1994) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), to establish the reliability of latent fingerprint individualization applying ACE-V methodology to simultaneous impressions.

 
There were a total of four amicus briefs submitted.  Two briefs supported the views of the defense and two briefs supported the views of the Commonwealth.  In the following paragraphs, I have tried to summarize the arguments made in each of the briefs without making a full critique of the arguments themselves.

The first of the defense’s amici briefs listed Mark Acree, Simon Cole, Stephen Fienberg, John Vokey, Sandy Zabell and others as supporting amici.  The brief describes Mark Acree as holding a M.S.F.S. degree, being a former FBI latent print examiner and current president of APEX Consulting, LLC.  This brief also credits Drs. Lyn Haber and Ralph Haber as scientists “trained in fingerprint comparison.”  The brief outlines views from the amici (scientific and legal “mainstream”) which included 15 law professors and scientists. The brief argues, among other things, that fingerprint analysis has no uniform standards for measuring sufficiency in points of comparison when effecting an individualization.  This brief was authored by David M. Siegel, Esq. (New England School of Law), Stanley Z. Fisher, Esq. (Boston University School of Law), and Daniel Givelber, Esq. (Northeastern University School of Law).

John Vanderkolk, Dr. Thomas Busey and others, along with myself, had an opportunity to review the Siegel brief and make comments to the Norfolk County District Attorney’s Office during the drafting of their own amicus brief.  As expected, I found this brief to contain many misconceptions, half-truths, out-of-context citations and blatant false statements.  The brief contains classic Daubert verbiage such as: 
 

1)      the reliability of fingerprint identification has not been established; 

2)      there are no studies showing the validity of identification through simultaneous impressions;

3)      there are no standards for the application of the ACE-V methodology beyond each examiner’s judgement (sufficiency / subjectivity); 

4)      examiners cannot agree among themselves as how to deal with a simultaneous impression (or any noncontiguous friction ridge skin impression);

5)      examiners who individualize simultaneous impressions are not following generally accepted protocols;

6)      latent print examiners claim to be infallible;

7)      examiners are merely technicians in a self-proclaimed “scientific” community absent of scientists;

8)      fingerprints are not as reliable as the well-tested DNA analysis with their population frequency studies.

The second defense amicus brief was submitted on behalf of the National Association of Criminal Defense Lawyers (NACDL), the Massachusetts Association of Criminal Defense Lawyers and the Committee for Public Counsel Services.   This brief was prepared by Lisa J. Steele, Esquire. 

A few days succeeding the oral arguments, I was able to obtain a copy of the NACDL amicus brief.  This document was very well compiled but, like the Siegel amicus brief, contained many assumptions, speculations, poor interpolations of scholarly “scientific” experiments involving students and lack of a true fundamental understanding of the comparison process.  The brief includes typical Daubert verbiage such as: 
 

1)      the amount of reported erroneous identifications is only the tip of the iceberg;

2)      the UK had a 16-point minimum standard which is not exercised in this country;

3)      “Fingerprint comparison has become a synonym for reliability;”

4)      all prints, including exemplars, are distorted and thus the identification process is inherently flawed due to the high level of subjectivity in distinguishing between dissimilarities and discrepancies (differences);

5)      confirmation bias exists and is “impossible to avoid” because the Evaluation and Verification phases of ACE-V is subjective and judgmental;

6)      blind verification is necessary in all cases in order for the ACE-V method to be admissible;

7)      “…the Court should consider whether, when a match involves allegedly simultaneous impressions, an adequate amount of comparison information is found on each impression.”

The NACDL brief also describes how the Commonwealth anticipates offering Kenneth Martin to testify to the theory of simultaneous impressions identification via the ACE-V methodology at the retrial of Terry Patterson.  The brief claims that Sgt. Foilb and Lt. Martin should not be permitted to testify because the testimony would be unreliable.  The NACDL amici believe their testimony is not reliable because the Commonwealth failed to introduce supporting testimony to the court in the following areas:
 

·         Martin’s qualifications with respect to fingerprint identifications;

·         the methodology Martin used to analyzed the latent and exemplar prints;

·         how Foilb and Martin avoided conformational bias;

·         how Foilb and Martin dealt with high-profile / high-pressure situations created by the homicide of a police officer;

·         the fact that Foilb and Martin did not use blind verification;

·         the fact that Foilb and Martin did not properly document their conclusion of simultaneity.

Two amicus briefs were submitted in support of the Commonwealth’s views.  One was prepared by the Norfolk County District Attorney’s Office and the other was submitted on behalf of the Secretary of Public Safety by the Attorney General’s Office.

The Norfolk County District Attorney’s Office brief was well put together.  It touched on the facts of the case at hand, the history of Daubert reliability challenges to fingerprints and clarified some of the misinterpretations in the defense’s briefs. The brief also focused on how a complete, successful analysis during the ACE-V process would establish a noncontiguous impression as one whole impression in which the aggregate of the detail can be used for comparison and identification purposes.

The second of the Commonwealth’s amicus briefs was submitted on behalf of the Secretary of Public Safety by the Attorney General’s Office.  I have not had to opportunity to review this brief and I am looking forward to receiving a copy in the near future.  I envision a particular holy grail of fingerprint reference material to have these briefs in the future for all to peruse.

During oral arguments, each side was allowed fifteen minutes to present their views and answer a litany of questioned posed by the SJC.  The proceedings were very well attended and the defense presented their argument first.  Atty. Cunha argued that there is not a scientific basis or a national standard in place to determine when a smudged fingerprint contains enough information to individualize a person to the exclusion of all others.

Atty. Cunha stated that there could be up to 150 or 175 points for comparison on the skin of a finger.  He argued that 6, 10 or 12 corresponding “matches” does not individualize a donor because no testing has been done.  He proclaimed that there are no standards when it comes to requiring a certain number of “matches” and that it is essentially left to the ‘I-know-it-when-I-see-it’ feeling of every examiner.

With regards to simultaneous impressions, not much was argued. Atty. Cunha conceded that even though the question at hand for the SJC to hear the case was based on the methodology of identifying simultaneous impressions, it was really based on the entire science itself, which is unsubstantiated.  Thus, in the middle of the proceeding, Cunha amended the question at hand to include the reliability of the entire science.

A humorous point came when Cunha was describing how there is a gut feeling that examiners get when comparing fingerprints.  He related it to a 1960’s television show where investigators develop a print and then they have their guy - - case closed.  His was cut short by Chief Justice Marshall and instructed to leave the anecdotes aside.

The defense is hoping the SJC rules that fingerprint evidence is inadmissible due to its unreliability and thus excludes it from the upcoming retrial of Mr. Patterson.  Apparently, the fingerprint evidence was the only physical evidence in the case.  If the SJC rule that fingerprints are indeed admissible, the defense hopes the court would take a more modest step and require juries be instructed that fingerprint evidence is not infallible.

Appellate attorney Donna Patalano, an A.D.A. from Suffolk County, represented the Commonwealth of Massachusetts.  She began by stating that Atty. David Meier, Suffolk County's chief attorney for homicide cases, was unable to be there because of a funeral.  Atty. Meier is the lead trial attorney for the Patterson case.

Much like the Norfolk County amicus brief, Atty. Patalano talked about the legal history of the science of fingerprints and how courts in all 50 states have accepted this type of evidence as reliable for almost a century.  She spoke about the general acceptance of the ACE-V methodology throughout the field of fingerprints, speaking specifically on the analysis phase.  Atty. Patalano explained how examiners could establish a noncontiguous impression as one whole impression in which the aggregate of detail can be used for comparison and identification purposes by often referring to FBI Special Agent Stephen Meagher’s testimony from the original Patterson trial.

Atty. Patalano was asked some very challenging questions from the SJC.  Questions pertaining to the training of new examiners and determining their competency and proficiency.  Questions pertaining to the sufficiency of friction ridge detail in latent impressions.  At one point, Justice Robert J. Cordy stated “How much similarity is enough?  That's what we're asking.''  Atty. Patalano did refer to the FBI’s 50K-50K study but the justices cut Patalano short because they did not want to hear about uniqueness and permanence.  Nor did they want to hear about cropped exemplar prints such as those in the 50K-50K study.  The SJC wanted specific information on latent impressions.  They wanted information regarding how many prints a trainee is required to examine and at what level of competency.  They wanted information on distortion and how examiners discern between dissimilarities and differences, including a threshold at which sufficiency in smudged latents is determined.  Atty. Patalano offered explanations of competency testing and CTS proficiency testing, but I felt it was unfair to pose such abstruse, technical questions on the intricacies of latent fingerprint identification to a lawyer not trained as an expert in the field.

In hindsight, perhaps the Commonwealth’s oral arguments should have focused more on competency and proficiency testing, practitioner error rate, administrative rules and actions governing examiners, established protocols and standards, certification, accreditation, etceteras.  But then again, the base argument was supposed to be solely on simultaneous impressions.

The SJC questioned both Cunha and Patalano intensely during their respective arguments.  There was no clear-cut winner at the conclusion of the proceedings.  I am confident that the justices will do their homework with the amici briefs and other materials provided them.  The court’s highly anticipated ruling will hopefully be ordered before the average wait time of 4-5 months as indicated by several recent rulings on the SJC website.

If you missed the webcast and wish you had not, do not fret.  Joan Kenney of the Public Information Office at the Massachusetts Supreme Judicial Court says that you will have that opportunity.  She confirmed that the SJC, in partnership with Suffolk University Law School, is archiving oral arguments, beginning with the September sitting this week. The archived proceedings will be available within four days following the proceeding at www.suffolk.edu/sjc. Therefore, by the time you are reading this edition of The Weekly Detail, the archived oral arguments should be available for viewing.  Just look for Commonwealth vs. Terry L. Patterson or search by docket number with SJC-09478.

Written by:

Stephen H. Ostrowski, MSFS, CLPE
Criminalist II
New Hampshire State Police Forensic Laboratory
33 Hazen Drive
Concord, New Hampshire  03305
ph. 603.271.3573
fax 603.271.1086
email:  sostrowski@safety.state.nh.us

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