This article is reprinted from the April-June 1999 issue of The Sleuth – the official publication of the Illinois Division – International Association for Identification
DAVID L. GRIEVE
Latent Prints Coordinator
Illinois State Police
Southern Illinois Forensic Science Center
In 1991, Bryan C. Mitchell was charged and tried in the US District Court in Philadelphia, Pennsylvania, for violating federal armed robbery statutes. The government contended that Mitchell was the driver of the getaway car used to flee the scene of an armored car company robbery which had been conducted by two other men wielding shotguns. Although Mitchell was not seen armed and did not take part in the actual robbery, the government produced strong evidence against him as an accomplice, evidence which included two latent print identifications. One latent had been recovered from the exterior side of the driver’s door of the escape vehicle and the second from the car’s gear shift lever.
During the trial, the jury was informed that Mitchell and the two armed robbers drove only about a mile from the scene in the first car, then they transferred to a second vehicle. When the first vehicle was located, police discovered a note on the dash which listed an unknown license number. When this number was checked, the registration of the tag was listed to Bryan Mitchell. Investigators speculated that an anonymous witness had observed the transfer and had noted the license number of that second vehicle. This presumed witness was never located.
When the events of the crime were introduced, including the discovery of the anonymous note, the defense objected to the introduction of the recovered note as hearsay evidence. The trial judge over–ruled this objection, stating he considered the note to be outside the normal restriction placed on hearsay, and the jury was informed of its existence. Fingerprint Specialist Duane Johnson of the FBI testified to the fingerprint identifications. The jury convicted Bryan Mitchell and he was sentenced to federal prison. The other two men who were involved in the robbery were never tried. One was subsequently killed in a shootout with police, and the second man died in prison serving a sentence for an unrelated crime.
Mitchell’s conviction was appealed on the basis that disclosure of the note to the jury had been improper. The Ninth District Court of Appeals agreed the anonymous note was, indeed, hearsay which did not fall into any admissible category, and that the trial judge had erred in admitting this item into evidence. The appellate court therefore reversed Mitchell’s original conviction and ordered a new trial. Even without the note, the government’s case was still substantial.
The retrial of Bryan Mitchell was scheduled to begin on November 2, 1998, again in Philadelphia, but on October 27,1998, attorneys for Mitchell filed a motion requesting that a Daubert hearing be conducted on the finger–print evidence. Accompanying the motion for a Daubert hearing was a statement from Professor James E. Starrs, George Washington University, Washington, DC, in which Starrs stated that he was head of the GWU forensic science program and, as such, he declared that there existed no conclusive documentation to the claim of fingerprint uniqueness and individuality. Starrs further stated that, as a result, he did not believe fingerprints were unique. The trial judge agreed to the defense motion for a Daubert hearing and a date for the hearing was set for December 28, 1998. In early December, the Assistant US Attorney assigned to the case, Paul Sarmousakis, who had also prosecuted Mitchell at the 1991 trial, requested a continuance and his request was granted. A new date for the Daubert hearing was set for April 28, 1999; however, the government had to file a written response to the court by April 19, 1999.
AUSA Sarmousakis contacted the FBI for assistance, and Unit Chief Stephen Meagher of the FBI’s Latent Section was assigned the task of assisting Sarmousakis in the preparation of the government’s response. Meagher, in turn, solicited input from the Scientific Working Group on Friction Ridge Analysis, Study and Technology, formerly called TWGFAST, and during the SWGFAST meeting in mid–February, 1999, the matter was discussed. Even though the assertion of Professor Starrs was rather vague and, at that time, he had been listed as the only witness for the defense, the group outlined an extensive and aggressive response which not only addressed the key criteria of Daubert, but presented an overview of fingerprint science which encompassed the theoretical basis as well as its practical application. The working group then selected potential witnesses based upon the topics that appeared likely to be presented. This outline was forwarded to AUSA Sarmousakis for his consideration. He responded favorably, and arrangements were made for all parties to meet at the earliest possible convenience.
On March 9 and 10, 1999, the potential witnesses met with AUSA Sarmousakis at the Hoover building in Washington, DC, for a strategy session and hearing preparations. The potential witnesses included the following: David R. Ashbaugh, RCMP; David L. Grieve, ISP; Robert J. Hazen, retired FBI; Pat A. Wertheim, Forensic Identification Training Seminars; Kenneth R. Moses, retired San Francisco PD; Edward R. German, US Army Criminal Investigation Laboratory; Kenneth O. Smith, US Postal Inspection Service; Carey L. Chapman, US Secret Service; and Stephen Meagher from the FBI. In addition, the session was attended by Laura Blumenfeld of the FBI’s legal office and Lynne Herold, a PhD biologist from the Los Angeles County Sheriff’s Department. Joining AUSA Sarmousakis were FBI SA Daniel Murphy, who had been the original case agent in the 1991 investigation, and Ed Gallant, the SA now assigned to the case for the retrial.
The meeting began with a general discussion about all aspects of Daubert criteria and the type of response necessary to meet the Daubert requirements. Laura Blumenfeld was particularly helpful in this area since she had previously worked on responses to several Daubert challenges of DNA analysis. Four key elements were defined, and the group devoted the remainder of two exhaustive days to the preparations for this task. (Interestingly, the meeting was interrupted about noon with the announcement that snow had been falling all morning, and the federal government had shut down. The group continued working although nearly all other FBI employees were sent home. There was a strange eeriness to conducting a meeting in a mammoth building that is nearly unoccupied. Fortunately, the lights and heat were left on.)
The first assignment was delineating the validity of fingerprint individuality which would refute the assertion of Starrs. This foundation would be critical since it would reply to the core of Starr’s testimony and be the key factor in a favorable ruling from the court. The group recommended that the proper response would focus upon fingerprint individuality as a manifestation of biological variation and rely upon statistical demonstration as a verification of this inherent biological uniqueness. Dr. Lynne Herold contributed greatly to the biological aspects, and various literature references were selected to substantiate this element. Dr. Bruce Budowle of the FBI’s DNA unit was selected to provide basic biological variation background, and this would be augmented by the research of Cummins, Midlo and Hale. Also included were published examples of studies dealing with the fingerprints of monozygotic twins.
The second topic was the methodology used in fingerprint analysis to substantiate the procedure as having a recognizable and valid scientific application. The main thrust of this element is based upon David Ashbaugh’s new book, currently in preparation for publication, which expands upon his concepts of “ridgeology” and addresses the steps employed during qualitative and quantitative analysis. In essence, this describes the identification process as analysis, comparison, evaluation and verification, even though not all examiners may articulate the various steps in exactly that manner. Ashbaugh was selected as a definite witness to offer his explanations to the court, and he will provide an important international aspect to the presentation.
The third area concerned validation of fingerprint individuality confirmed by the wide–spread use of AFIS. Meagher had already begun a survey of all AFIS users in the US, and was expanding the survey internationally. The final area was the supporting documentation. SWGFAST members had already provided Meagher with a formidable list or copies of literature references along with extensive examples of practical application. The FBI’s graphic arts unit would prepare both photographic and drawing displays. This supporting documentation is extensive and embraces over 100 years of scientific study.
The results of the two day session produced the eventual written response provided by the government in this matter, which was presented to the court on March 29, 1999. The full text of this document is available on the internet at http://onin.com/fp and can be downloaded in its entirety. The content of the response is an excellent reference document, and well worth obtaining as a reference.
In a Daubert hearing, the usual exclusionary rule of a trial is not applied to hearing witnesses. Although the final list of actual witnesses will not be determined until the full extent of the defense’s final motion are known, all remaining participants of the strategy meeting who are involved in fingerprints remain listed as potential witnesses. AUSA Sarmousakis will decide later who he will use in the actual proceedings based upon further actions on the part of the defense or issues which arise during the hearing. Regardless of the defense’s next move, most of these participants will be present to observe the proceedings, including the testimony of Starrs, and any of these may be called in rebuttal. AUSA Sarmousakis will also rely upon at least one individual to sit at the prosecution table to take notes during Starr’s testimony, to identify any incorrect or misleading statements made, and to provide possible cross examination questions.
After receiving the government’s response, the defense has requested a continuance, which has been granted. The scheduled April 28, 1999, court appearance will be used to establish a new date for the delayed hearing, and since the government’s response was extensive and thorough, an extended period is anticipated.
While this challenge to the validity of fingerprints under the Daubert criteria is limited to how fingerprints may be admitted in federal courts, there is an obvious concern by all as to the outcome. Even those states which continue to use the Frye criteria would likely see an increased number of challenges to latent print identifications in the event of an adverse rule, and such a ruling would undoubtedly diminish the certainty of fingerprint identification for some prospective jurors. Therefore, the goal of this Daubert hearing in the US v. Mitchell is to create the definitive legal precedent in support of fingerprint individuality as a means to prevent future frivolous actions. A subsequent clarification of Daubert application by the US Supreme Court in Kumho v. Carmichael weakens the defense’s challenge somewhat, but the prosecution still continues to pursue this matter seriously and vigorously. Of greater concern, perhaps, is the potential domino effect. If the court determines that fingerprints analysis is not a science, other types of forensic examinations will surely follow. The entire criminal justice community has a large stake in the success of this hearing.
(Editor–—The hearing was continued, and then held July 7 — 13, 1999. The court’s ruling is expected by the end of August. This case is likely to be the most significant fingerprint case since Jennings in 1911. The SCAFO seminar in September will feature three internationally recognized experts from the prosecution’s all star team. Come hear about the case, but more importantly, learn how the “experts of experts” present fingerprint testimony.)