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Many are to blame for Maryland Judge's Decision
November 8, 2007 by Crime Lab Report

It's a simple story about a judge who asked the right questions and didn't get the right answers. Nobody should be shocked by the outcome.

In a recent decision that sent panic throughout the forensic science community, Baltimore County Circuit Court Judge Susan Souder ruled that forensic fingerprint identification was "a subjective, untested, unverifiable identification procedure." As a result, the state was precluded from admitting the testimony of a forensic scientist who identified a suspect's fingerprints on two vehicles associated with the murder of a local store merchant. The defendant, Bryan Rose, could face the death-penalty if convicted.

Prosecutor Jason League said in court that the ruling "virtually overturns 100 years of jurisprudence with respect to the admissibility of latent fingerprint evidence."

But in her 32-page decision, Judge Souder issued a stern reminder that judges in previous Maryland cases, where fingerprint identifications were judged admissible, "were not presented with proof of erroneous identifications which refute the infallibility claimed by the State’s expert."

In the case against Bryan Rose, defense attorneys, without objection from the state, introduced a 220 page review of the FBI's highly publicized misidentification of a Muslim lawyer, Brandon Mayfield, in the investigation of the 2004 Madrid train bombing that killed 191 people. Mayfield, who was living in Oregon, was arrested by the FBI even after Spanish investigators disagreed with the fingerprint match.

Faced with compelling evidence of a significant error in a major terrorism case, Judge Souder was understandably suspicious of testimony offered by an FBI expert who claimed that the comparison of fingerprints has no potential for error. The methodology, he testified, "is infallible".

Crime Lab Report respectfully disagrees with Judge Souder's decision, but acknowledges the awkward position in which she was placed by the state's fingerprint expert. We further sympathize with Judge Souder for the blame she will receive from critics throughout the country, including forensic scientists who might be wise to tone-down their rhetoric.

Historically, forensic scientists have openly argued that the self-correcting mechanisms of our adversarial system of justice are what should be relied upon to weed out junk science and unreliable experts. In fact, during the early years of forensic science accreditation, stubborn voices from within the profession argued that accreditation was an unnecessary and intrusive process that should be reserved for the courtroom, since judges and trial lawyers are ultimately responsible for evaluating the reliability of evidence.

Now, when the same adversarial system of justice that forensic scientists have sworn allegiance to suddenly drops the hammer on scientific testimony that conflicts with known facts, forensic scientists ought to give careful consideration to ways in which their methods and court presentations can better help the judges and juries who are expecting a higher level of professionalism and credibility.

Whether or not Judge Souder's controversial decision was reasonable, the profession of forensic science has a long way to go. Serious questions remain on the minds of genuinely concerned judges and lawyers who are confused about the potential for errors in many common forensic practices. While they have good reason to be very confident in the quality produced by most crime laboratories, the continued evolution of the forensic science will hopefully be allowed to erode these doubts with the development of improved standards and new research.

In the meantime, the show must go on.

Fortunately, the calculation of error rates has never been a prerequisite of science despite what some outspoken critics of forensic science often preach.

Science is a journey, not a destination. It is a process for systematically gathering information, making observations, and using the information gained to draw conclusions or make predictions about the natural world. Research can, in many instances, help to establish error rates that will help stakeholders better understand the limitations of certain methods and techniques. But the absence of known error rates is not a justification to dismiss an entire science. The scientific method deserves more respect.

So why did the FBI botch such an important fingerprint analysis in a major terrorism case?

The answer is simple, FBI experts, like all scientists, are human beings. In the Mayfield case, they allowed themselves to become distracted by circumstances that were unrelated to the analytical work at hand. This was reported in painstaking detail by a panel of experts assigned to investigate the error.

Overwhelmingly, the misidentification of Brandon Mayfield was attributed to cultural and environmental influences associated with, among other things, "the inherent pressure of such a high profile case." With the FBI's primary focus having shifted from law enforcement to anti-terrorism activities, we have learned that the urgencies and political dynamics associated with homeland-security requires them to employ appropriate quality assurance measures to prevent similar errors from occurring in the future.

For Baltimore County, the damage had been done. While Brandon Mayfield was never actually convicted of a crime, an entire science was unfairly convicted for the errors of the FBI. No justice was served by this and it could have been avoided with a better understanding of science and the real factors that contribute to errors in crime laboratories.

Baltimore Sun reporter Chris Emery demonstrated another common misconception when he drew an inappropriate comparison between fingerprint identification and DNA testing. "DNA experts," he wrote, "typically present evidence to judges and juries noting the statistical probability of a match between two DNA samples. Fingerprint examiners, however, use a binary, all-or-nothing approach."

Statistics are often very comforting to those who naively perceive numbers to be immune from human subjectivity.

Here are the facts. DNA probabilities are not error rates. They are an expression of the likelihood that particular genetic profiles will occur within segments of the human population. Like fingerprints, the exact error rate for DNA testing is miniscule but not quantified. A DNA expert can present the most impressive statistics in court, but they won't help a judge determine if a test tube was accidentally switched or a mixture was misinterpreted from an electropherogram. Only by assessing the qualifications of the expert and the quality-assurance checks applied to the analysis can the potential for error be fully appreciated in court.

Crime Lab Report believes, however, that forensic scientists often create more problems than they solve primarily because of their own ignorance in these matters. The Maryland fingerprint decision was evidence of that.

The proposition that any scientist, method, or conclusion is infallible should be rejected on the spot. Even though scientists rarely have any reason to believe that a mistake was made, or that a mistake went undetected by the laboratory's quality assurance system, the potential for error must be acknowledged. While this may alarm some scientists, they have no reason to worry if they make good on their ethical and professional obligation to understand how errors occur and explain how those risks are mitigated. By understanding how errors happen and admitting that they are statistically possible, scientists are in a much better position to prevent them.

The expectation, however, that scientists recognize the potential for error in their work should not embolden those critics who have a disturbingly warped understanding of science. If errors were truly rampant among crime laboratories across the United States, defense attorneys would seek second opinions as often as possible. But they don't.

That's because second opinions are more likely to validate the results of the original experts assigned to these cases. It's much safer to simply attack the "science" because there is no risk of collateral damage.

Patrick Kent, chief of the Forensics Division at the Maryland Public Defender's Office, was quoted by Sun reporter Jennifer McMenamin as saying that "it is the absolute lack of even the most basic and rudimentary research that mandates the exclusion of fingerprints."

Ms. McMenamin would likely have ignored this sophomoric attack if she knew two important facts.

First, the amount of field-research that has been conducted in the science

- continued on the right

Quotes in the News - From Maryland

11/1/2007: Jane Loving, Maryland Defense Attorney
"I think Judge Souder made some wonderful points. But [Judge Cavanaugh] had her opinion in front of him, and he just doesn't buy it."

11/1/2007: Patrick Cavanaugh, Baltimore Circuit Judge
"I don't know that we have to have a hearing. In this case, a jury is going to be the trier of the facts."

10/30/2007: Prosecutors in the Maryland v. Rose Case
"Countless doctors have misread X-rays, yet these errors would never be seen as a reason to prevent doctors from testifying about broken bones in court."

"It does not matter one whit that there is a significant, boisterous, determined and persistent dispute among criminal defense counsel and like-minded judges about fingerprint evidence."

10/30/2007: Prosecutors Jason League and Lisa Dever
"This court stands alone in American jurisprudence in ruling that fingerprint identification evidence is not reliable enough to be admitted."

10/23/2007: Scott Shellenberger, Baltimore County State's Attorney
"It doesn't have to be 100 percent accurate to come into the courtroom. If everything had to be 100 percent accurate, we'd have to close the courtroom doors tomorrow."

10/26/2007: Robert Epstein, Assistant Federal Public Defender, PA
"They have never done any real studies or any scientific testing to figure [out the limitations of fingerprint evidence."

"They dramatically oversell their opinion. The claim of 100 percent certainty is absurd. There is no recognition of how blurry the lines are between [an identification or not], the amount of gray area there is in making these decisions."

10/23/2007: Patrick Kent, Chief of the Baltimore County Public Defenders Forensics Division
"It is our hope that not just public defenders but the entire defense bar will utilize this way to more effectively litigate forensic evidence."

"Your child would fail his elementary school science fair if he brought in fingerprints."

10/23/2007: Scott Shellenberger, Baltimore County State's Attorney
"We intend to explore every avenue and look at every option to make sure that some kind of justice can happen for the [victim's] family."

10/23/2007: David Faigman, Prof. at U-Cal's Hastings College of Law
"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. This judge is declaring....that the emperor has no clothes."

What's happening elsewhere

Michigan
November 2, 2007
Two crime labs are scheduled to close next year. One is located in Marquette and the other in Sterling Heights, a suburb of Detroit. Police officials have openly criticized the decision. No funding was provided for these labs in the 2008 budget. A coalition of federal and state prosecutors are urging Governor Jennifer Granholm to not approve the closures.

California
November 5, 2007
Governor Arnold Schwarzenegger vetoed a series of recommendations issued by the California Commission on the Fair Administration of Justice. The law would have required corroboration of statements made by jailhouse snitches, videotaped interrogations in violent crime cases, and line-ups administered by officers who are unaware of the primary suspect's identify. The commission has also addressed several issues pertaining to forensic science, which were not a part of the bill sent to the governor.

California
November 2, 2007
The Santa Clara County Bar Association plans to host a rare joint session of local defense attorneys and prosecutors to discuss the quality of forensic evidence. The meeting comes after an internal investigation into complaints from the Innocence Project who claimed that a scientist issued erroneous results that lead to the wrongful conviction of a robbery suspect. The scientist was cleared by the district attorney as having committed no scientific error, which troubled critics who believe the matter deserves more scrutiny.

Houston
November 2, 2007
A former Houston PD Crime Lab employee came forward with allegations of cheating in routine proficiency tests. KHOU television reporter Jeremy Desel interviewed the woman who said "I decided to preserve my integrity over my career. That's basically it. I refuse to work for people with no ethical standards." An investigation is ongoing and the individuals who were accused of cheating were not quoted in the articles reviewed by Crime Lab Report.

Montana
October 27, 2007
The Montana legislature approved a large funding increase to allow the state crime lab to increase wages. Following a full shutdown of the DNA lab, Director Bill Unger urged the legislature to help. They did so with an $150,000 funding increase and an additional $188,000 resulting from an exception to a state money-saving rule.

Maryland Fingerprint Ruling (continued)

of fingerprint identification is overwhelming and well-documented. Studies and experiments conducted over the course of a century repeatedly fail to falsify the basic principles of the science. Numerous textbooks and peer-reviewed literature have been authored and reviewed by the relevant scientific community. Quality assurance practices continue to improve as national and international accreditation standards shape how analyses are conducted and checked for accuracy.

Second, Mr. Kent suggests that a sufficient degree of research would miraculously pacify his antagonism towards fingerprints. Even if it is possible for researchers to establish error rates for the various forensic disciplines, it wouldn't matter anyway. Defense lawyers would simply argue that the research was flawed or incomplete.

Crime Lab Report is certain that Kent and his colleagues are not interested in being pacified. It is their job to be adversaries. No amount of research will ever change that.

Latent Fingerprint Identification is a sound and reliable science in need of more competent representation when it comes under serious attack. We hope forensic science professionals in all disciplines will allow themselves to be motivated by Judge Souder's ruling and develop more effective strategies for presenting themselves and their methods in court.

Crime Lab Report urges Judge Souder to reconsider her position in the Bryan Rose case, but only after issuing a strong repudiation of expert witnesses who fail to accurately present the merits and limitations of their science.

We believe Judge Souder has an opportunity to reverse a misinformed decision and bring the Bryan Rose case to a fair and reasonable conclusion.

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