Judge bars use of partial prints in murder trial

October 23, 2007

By Jennifer McMenamin, Baltimore Sun

A Baltimore County judge has ruled that fingerprint evidence, a mainstay of forensics for nearly a century, is not reliable enough to be used against a homicide defendant facing a possible death sentence - a finding that national experts described yesterday as unprecedented and potentially far-reaching.

Baltimore County Circuit Judge Susan M. Souder's order bars prosecutors from using at trial the partial fingerprints lifted from the Mercedes of a Security Square Mall merchant who was fatally shot last year during an attempted carjacking at the shopping center. Prosecutors say the fingerprints - as well as those found in a stolen Dodge Intrepid in which witnesses said the shooter fled the mall parking lot - link a 23-year-old Baltimore man to the killing.

In her ruling, Souder outlined the long history of fingerprinting as a crime-solving tool but says that such history "does not by itself support the decision to admit it." In explaining her reasoning in a 32-page decision, the judge leaned heavily on the case of an Oregon lawyer mistakenly linked through fingerprint analysis to the 2004 Madrid train bombings.

With defendant Bryan Keith Rose scheduled to go to trial today in Towson, prosecutors and defense attorneys in the capital case declined to comment yesterday on the judge's ruling.

But others who have researched the issue and litigated cases involving fingerprint evidence said the decision - if it stands up on appeal - could have implications that reach even beyond the use of fingerprint evidence in criminal courts.

"The repercussions are terrifically broad," said David L. Faigman, a professor at the University of California's Hastings College of the Law and an editor of Modern Scientific Evidence: The Law and Science of Expert Testimony.

"Fingerprints, before DNA, were always considered the gold standard of forensic science, and it's turning out that there's a lot more tin in that field than gold," he said. "The public needs to understand that. This judge is declaring, not to mix my metaphors, that the emperor has no clothes.

"There is a lot of forensic science that is considered second to fingerprinting," Faigman added, mentioning firearms and toolmark analysis, hair identification, bite pattern analysis and evidence used in arson investigations as examples. "If fingerprinting turns out to not be so good, people could start questioning that science as well."

The technology has come under scrutiny in recent years.

Stephan Cowans, a Boston man who spent six years in prison for the shooting of a police sergeant, was released in 2004 after the discovery that the fingerprint used to convict him was not his.

That same year, the FBI mistakenly linked Brandon Mayfield, an Oregon lawyer, to a fingerprint lifted off a plastic bag of explosive detonators found in Madrid after commuter train bombings there killed 191 people. Two weeks after Mayfield's arrest, Spanish investigators traced the fingerprint to an Algerian man.

The U.S. Justice Department issued a formal apology last year to Mayfield and awarded him $2 million.

Souder, the Baltimore County judge, referred repeatedly in her opinion to that case, as well as a March 2006 report from the Justice Department's internal investigators on the FBI's handling of the matter.

In the Mayfield case, three FBI fingerprint examiners and an independent court-appointed fingerprint analyst determined that the fingerprint on the bag of detonators belonged to the Oregon attorney.

"Up to that point, [the government] had maintained that if you have a competent examiner, the technique of fingerprinting can't produce a misidentification. Mayfield exposed that as a fallacy," said Robert Epstein, an assistant federal defender in Philadelphia who in 1998 was among the first lawyers to challenge the reliability of latent fingerprint identifications.

In the Baltimore County murder case, defense attorneys challenged the admissibility of fingerprint evidence that linked Rose to the killing Jan. 5, 2006, of Warren T. Fleming, the owner of a Cingular Wireless store at Security Square Mall.

Rose was arrested 13 days after the shooting after police received a call saying the "ringleader" of the attempted carjacking was a man called "Sticky," a nickname that was recognized as Rose's, according to court records.

At a pretrial hearing in May, prosecutors argued that fingerprint evidence has been accepted by the courts and relied upon for nearly 100 years. Defense attorneys countered that there is no similar history of subjecting the evidence to scientific review.

"The state is correct that fingerprint evidence has been used in criminal cases for almost a century," Souder, the judge, wrote in her decision. "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."

She criticized the common method of fingerprinting as overly subjective and lacking in standards. She discounted the proficiency tests that the state's expert witness testified about. And she characterized as "neither credible nor persuasive" testimony that fingerprinting is an infallible methodology.

Souder acknowledged that the crime lab technicians' conclusions that Rose's fingerprints match those found on the cars "appear to be the heart of the state's case."

Issued late Friday afternoon, the judge's decision has already attracted significant attention within the world of forensic sciences. The decision was included in yesterday's edition of The Detail, an e-mail newsletter distributed by fingerprint examiners.