Issue 309
October 22, 2004
v R. v. Thomas, Ontario Court of Appeal, October 13, 2004
Articles
v Forensics Under the Microscope by Flynn McRoberts, Steve Mills and Maurice Possley
v
Arson Myths Fuel Errors by Maurice Possley
* * * *
CASE COMMENT:
R. v. Thomas, Ontario Court of Appeal, October 13,
2004
In this decision Rosenberg J.A. for the Court holds the trial judge’s treatment of similar fact evidence, in relation to a number of complainants, to be in error and ordered a new trial held.
The appellant was charged with numerous sexual offences pertaining to fourteen different complainants in total. All the complaints involved pre-teen or teenage girls who became encountered the appellant either through his employment as a teacher or as an officer with the Sea Cadets. Ten of these complainants alleged sexual assault in the form of groping over clothes, hugging, and kissing. Four of the complainants advanced more serious sexual assault allegations, including acts of fellatio and rape.
At trial, the Crown successfully sought to have the testimony of the ten complainants considered as similar fact evidence in relation to the four complainants, and vice versa. The trial judge found that the acts alleged had a number of similarities and that the dissimilarities did not reduce the high probative value. Further, he found that the prejudicial effect of this evidence could be cured by instructions to the jury and thus did not outweigh its probative value.
The trial judge then refused the appellant’s motion to sever the counts involving the ten complainants from those relating to the four. The appellant was convicted on the majority of counts and appealed.
The Court of Appeal agreed that the similar fact evidence to be proferred had high probative value, especially given the timing of the alleged incidents, the number of incidents, and the similarity of detail. Further, the evidence of the four complainants was properly admissible as similar fact evidence in relation to the ten complainants. However, the Court held that to utilize the evidence of the four complainants who alleged fellatio and rape as similar fact evidence in relation to ten counts of behaviour such as groping, hugging and kissing, significant heightened the prejudicial effect:
The greater concern is with the prejudicial effect of the evidence of the four complainants. The trial judge found that the prejudicial effect was not much greater because ‘possibly more intrusive sexual acts, adds only in degree -- not kind”. At a high level of generality this is true. All the acts involved female students beginning when the y were 12 to 13 years of age. All of the acts involved some form of touching for a sexual purpose. All of the acts carried a high degree of moral repugnance in that the allegations concerned breach of trust by a teacher of a most serious kind. The breach of trust was significant whether the touching was groping of a sexual nature or full sexual intercourse.
However, it is necessary to look beyond the general nature of the acts. The acts involving the four complainants were ‘considerably more serious and revolting’ (R. v. D.(L.E.) (1989), 50 C.C.C. (3d) 142 (S.C.C.) at 159). These complainants told of sexual intercourse, fellatio and use of objects. These were most serious allegations and were of an entirely different magnitude than the groping described by most of the ten complainants. The trial judge erred in principle in characterizing these distinctions as ones merely of degree. These acts would arouse ‘sentiments of revulsion and condemnation’ that could prevent the fair trial with respect to the ten complainants. See R. v. D.(L.E.) at p. 162.
Since the evidence of the four complainants was not admissible against the appellant in respect of the ten complainants, the trial judge should have severed those counts.
[paras. 35-37]
Thus a new trial was ordered in relation to nine of the complainants (the tenth complainant’s allegations having resulted in an acquittal), and the appellant’s sentence in relation to the four complainants was accordingly reduced.
* * * *
ARTICLES:
FORENSICS
UNDER THE MICROSCOPE
Unproven
techniques sway courts, erode justice
By Flynn
McRoberts, Steve Mills and Maurice Possley, Tribune staff reporters. Tribune
researcher Judith Marriott contributed to this report
Settling into the witness chair of
a Kane County courtroom, Stephen McKasson tutored jurors in a murder trial on
the wonders of a rarely used divining tool: lip prints.
The Illinois State Police crime
lab examiner told them forensic science accepts that lips have unique creases
and he could match the prints found on duct tape at the crime scene to the
defendant, Lavelle Davis.
Davis was convicted and sentenced
to 45 years. The lip print, one juror in the 1997 trial recalled, "proved
that he had actually committed the crime."
There was just one problem: What
McKasson asserted about lip prints isn't true.
The story of how an unproven
forensic theory helped send a man to prison might seem like a legal curiosity
befitting an episode of "CSI: Crime Scene Investigation."
But a Tribune investigation of
forensics in the courtroom shows how Davis' conviction exemplifies the
questionable science, flawed analysis and shoddy lab practices that sometimes
undermine the quest for justice. Long considered unbiased and untainted, crime
labs and analysts are facing new scrutiny and tough questions about their
accuracy.
At the center of this upheaval is
the advent of DNA testing, which has injected a dose of truth serum into other
forensic tools. With its dramatic precision, DNA has helped reveal the shaky
scientific foundations of everything from fingerprinting to firearm
identification, from arson investigation to such exotic methods as bite-mark
comparison.
It is difficult, if not impossible, to quantify precisely how
many cases have been affected by faulty forensic testimony or poor analytical
work, partly because defense attorneys often haven't challenged forensic
evidence. Many lack the resources to do so, others assume the science is
unassailable, and some simply don't bother.
But the 200 DNA and Death Row
exoneration cases nationwide in the last 20 years offer one clue. More than a
quarter--55 cases with 66 defendants--involved forensic testing or testimony
that was flawed.
The Tribune investigation included
hundreds of interviews across the country, an examination of thousands of court
documents and an analysis of criminal cases that turned on forensic evidence.
Among the findings:
- Fingerprinting is so subjective
that the most experienced examiners can make egregious mistakes. This year, in
a stunning embarrassment, the FBI was forced to admit it wrongly linked an
Oregon lawyer to the Madrid terror bombing case because of an erroneous
fingerprint comparison.
- Prosecutors continue to rely on
experts who embrace debunked theories about arson. Among the hard-to-kill myths
is "crazed glass"--glass lined with a spider web of cracks--which was
thought to be evidence of an accelerant until researchers learned it could
occur when hot glass is sprayed with water, as in putting out a fire.
- Forensic dentists, who link
suspects to bite marks left on crime victims, continue to testify despite having
no accepted way to measure their rate of error or the benefit of peer review.
DNA testing has shown that even the field's leading practitioners have made
false bite-mark matches.
- Scandals at labs from Maryland
to Washington state have spotlighted analysts who have incorrectly assessed
evidence, hidden test results helpful to defendants and testified falsely in
court. The scandals underscore the often-ineffective standards governing crime
labs.
Analysts involved in faulty forensic
work typically have testified in hundreds of trials, just one indication of how
widespread the impact of bad science and bad scientists can be. The lab
scandals also have laid bare a more fundamental failure: Experts often express
certitude based on an unfounded confidence in their forensic specialty and
their ability to practice it.
"I have no problem with
forensic science. I have a problem with the impression that's being given that
those disciplines ... can make an absolute identification of someone, and
that's not the case," said Terrence Kiely, a DePaul University law
professor and author of "Forensic Evidence: Science and the Criminal
Law."
"It's the white
coat-and-resume problem," he added. "They're very, very believable people.
And sometimes the jurors will take [their testimony] as a `yes,' where the
science can only say it's a `maybe.'"
The explosive popularity of TV
shows such as "CSI" has led prosecutors and crime lab directors in
recent months to complain that juries and the public have unreasonable
confidence in what forensic analysts can do and how quickly they can do it.
An examination of forensic
science's role in the courts, however, suggests that a much broader problem is
the ease with which prosecutors have brought unproven forensic theories or
unchallenged forensic experts into the courtroom.
In doing so, they harness the
special sway such experts hold in court. Not even police officers are allowed
the kind of latitude granted them--the freedom to give their opinion, not
simply what they observed or heard.
Forensic experts and their
testimony are being questioned because of two distinct forces reconfiguring the
legal landscape.
In addition to the advent of DNA
testing, U.S. Supreme Court rulings have sought to impose greater scientific
rigor on forensic testimony.
In a defining 1993 decision,
Daubert vs. Merrell Dow Pharmaceuticals, the court demanded that such testimony
not simply meet the existing standard of "general acceptance" in its
field, but also address some of the hallmarks of scientific inquiry--testing,
peer review and rates of error.
That is precisely what has been
lacking in many forensic fields, some of which have scrambled to catch up since
the ruling while others continue to resist.
One facet of the problem is that
while those involved in forensic disciplines wear the white coat of science and
portray themselves as scientists, they often do not operate under the same
rules as those in other scientific pursuits.
Crime labs regulate themselves,
often operating without the scientific touchstones of experimentation and
validation.
Consequently, lab analysts have
been allowed to testify about such evidence as ear prints and examinations of
shoe insoles, though little or no research exists to support their claims that
these methods can identify matches.
Some respected figures in forensic
science say the failure to address such problems and impose tougher standards
is unacceptable.
"The stakes are too
high--life, liberty, destroying families," said Dr. Joseph Davis, the
chief Miami-Dade County medical examiner for four decades before he retired in
1996. "A person who is truly innocent is permanently disfigured or
destroyed."
Lip prints seal fate
The adversarial nature of
America's courts is supposed to insulate them from bogus testimony. Both sides
may offer their experts. The judge and jury determine what testimony is
reliable. And a just verdict is reached.
The safety valve malfunctions when
those qualified as experts make unsubstantiated assertions, defense attorneys
don't properly challenge those individuals, and judges and juries believe them.
Each of those failures was on
display in the case of Lavelle Davis' lips. Though the questions raised by the
use of lip print evidence don't prove his innocence, they cast doubt on the
fairness of his trial.
A week before Christmas 1993, Patrick "Pall
Mall" Ferguson was killed outside an Elgin apartment complex--felled by a
single shotgun blast at close range.
Davis' first trial ended in a
mistrial after a key eyewitness said she was backing off testimony she gave at
the earlier trial of a co-defendant. At Davis' second trial, the woman said she
was finally coming forward with the truth--that she saw him shoot Ferguson.
Even prosecutor Alice Tracy called
the woman "an admitted liar" during the February 1997 trial.
Faced with that credibility
problem, prosecutors pointed to physical evidence to corroborate their theory.
They believed investigators had found it in the grass not far from the scene of
the slaying: a roll of duct tape.
Tracy theorized how Davis' lip
print could have been left on the sticky side of the tape. "He might have
taken the duct tape to show one of the others what they were going to do with
it if Patrick Ferguson ... started to scream," she told the jurors.
McKasson, who worked at the state
crime lab in Carbondale, said he had examined lip prints in two other cases,
though he had been unable to match a suspect to those prints.
He had no such reservations in the
case of Davis, declaring the defendant's lips matched those found on the duct
tape.
McKasson explained his conclusion
by telling the court that lip prints were no different from any other form of
what is called "impression" evidence.
"It's just a matter of the side-by-side comparison of
impressions," he told the judge, who qualified him as an expert. "And
to that degree it wouldn't matter whether it was a fingerprint, an ear print or
a lip print."
Trying to buttress the credibility
of a method rarely seen in American courts, a print examiner from the state
police crime lab in Rockford, Leanne Gray, told the court that the FBI believes
lip prints are a positive form of identification.
She was mistaken. The FBI "to
this day hasn't validated lip print comparisons," said Ann Todd,
spokeswoman for the bureau's lab in Quantico, Va.
Gray and the Illinois State Police
declined to comment on the Davis case because his post-conviction petition
seeking a new trial is pending.
For some jurors in Davis' trial,
including Doris Gonzalez, the lip print evidence was convincing--much more than
the eyewitnesses and others called by both sides who she said "were not
very truthful people."
That made the lip print evidence crucial. "I mean, it was a
big breakthrough for determining his guilt," Gonzalez said.
Davis' attorney, Lee Bastianoni,
repeatedly challenged the methodology and qualifications of the two examiners
during cross-examination but did not hire an expert to counter them.
Bastianoni instead tried to do the
research himself. "I basically went to the library and read all the books
I could on fingerprints and the scientific method," he recalled.
The novelty of the lip print evidence apparently did not trouble
the Illinois Appellate Court, which affirmed Davis' conviction in a May 1999
ruling that illustrates how legal safeguards can fail to weed out questionable
theories.
The court turned aside the
challenge to the evidence, noting that the state experts had testified the FBI
considered lip prints a "means of positive identification," and they
"did not know of any dissent inside the forensic science community" challenging
that assertion.
Had Bastianoni called the likes of
Andre Moenssens, one of the deans of forensic science in the U.S., he would
have discovered that many of Gray and McKasson's claims were unfounded.
A law professor emeritus at the
University of Missouri-Kansas City and author of "Scientific Evidence in
Civil and Criminal Cases," Moenssens happened to read the Illinois
Appellate Court's decision.
He was so appalled that he wrote
to the appellate defender's office, and at the request of Davis' appellate
attorney, Kim Campbell, Moenssens agreed to file an affidavit for the
post-conviction petition.
"You can't rely on your own
cross-examination of the state's witnesses," said Campbell, now an
assistant state's attorney in Downstate McLean County. "You have to have
your own expert to say why this kind of science is unreliable. And there was
nobody saying that at his trial."
In his affidavit, Moenssens wrote
that "making the quantum leap ... to the ultimate notion of identifying an
individual by the visible imprint of his or her lips, is a journey fueled by
two elements: pure speculation and unadulterated conjecture."
The president of the American
Academy of Forensic Sciences, the nation's chief professional society for
forensic disciplines, was equally blunt in an interview.
"At this stage of the game,
you can put ear prints and lip prints and nose prints and elbow prints all in
the same category--unverified and unvalidated," said Ronald Singer, who
also is director of the Tarrant County medical examiner's crime lab in Ft.
Worth.
Since Davis' conviction, McKasson
has retired from the state crime lab and runs his own document examination
business. He gives frequent workshops around the country on how to be an
effective expert witness and has co-written a book on the subject.
When told of the doubts raised by
the FBI and others, McKasson repeated his defense of his work.
"It bothers me that the rest
of them are wimping out," he said. "They're just worried about being
attacked."
Pointing to the lip prints'
apparent similarities on a computer screen at his home near Carbondale,
McKasson added: "I still don't see what other choice I had, because there
it was--it looked good to me. These two impressions came from the same person.
There's no doubt in my mind."
Last week, a Kane County judge
granted Davis a Jan. 31 hearing to make the case for a new trial, based in part
on the questions about the lip-print evidence.
For Moenssens, the only thing as
disturbing as McKasson's testimony was the Appellate Court's affirmation of it.
"It doesn't say much for the courts' willingness to take the gatekeeper
role seriously when it comes to novel techniques," he said.
FBI's fingerprint fiasco
Though lip prints may never be
widely used or accepted, fingerprints have both a long history and the stamp of
approval in courts and in the public consciousness. Yet a century of their use
in solving crimes obscures a sobering reality: Despite claims that the
discipline is an infallible science, it is neither infallible nor a science.
No standards exist for what
portion of a fingerprint must be recovered before it is suitable for
comparison. At most crime scenes, the police usually find only a fraction of a
fingerprint, and that latent print, as it is called, frequently is smudged or
otherwise distorted, making it difficult to compare.
Just as troubling, no research
exists to say if people share fingerprint patterns--whether a few points of
similarity or many.
Theoretical problems are just one
issue. In 1995, one of the only independent proficiency tests of fingerprint
examiners in U.S. crime labs found that nearly a quarter reported false
positives, meaning they declared prints identical even though they were
not--the sort of mistakes that can lead to wrongful convictions or arrests.
A recent episode in the war on
terrorism underscored these shortcomings.
On May 6, federal prosecutors
strode into a courthouse in Portland, Ore., and claimed the FBI had made a
"100 percent positive identification" linking a local lawyer to a
fingerprint found on a bag connected to terrorist bombings in Madrid.
Within weeks, the same prosecutors
were forced to return to the courtroom and admit an international humiliation:
The fingerprint analysis that led to the arrest of Brandon Mayfield was wrong.
But the FBI didn't realize it
until Spanish authorities linked the fingerprint to an Algerian man, Ouhnane
Daoud.
Not just one but three FBI
analysts, all seasoned veterans, had made the same mistake. A fourth expert
independently appointed by the judge erred as well when he determined
Mayfield's prints were a match.
The Madrid fingerprint fiasco was
one of the highest-profile embarrassments in the century since fingerprinting
became one of the most trusted forensic tools, employed by police to catch
everyone from burglars and car thieves to rapists and murderers.
In most cases, prints recovered at
a crime scene are run through the FBI's massive databank of prints taken from
arrests around the country. After the databank spits out a pool of potential
matches, fingerprint examiners compare each of those with the crime-scene
print.
They look for points of similarity
among the circular ridges and lines that make up a fingerprint. Once a match is
made, a colleague double-checks the work.
The FBI has long claimed that
fingerprint identification is infallible. A top FBI fingerprint official has
testified to a "zero error rate."
But even top officials with the
leading fingerprint examiners' organization acknowledge that more research is
needed to bolster the scientific foundation of fingerprinting.
"The debate is not so much do
fingerprints work, but what is the science?" said Joseph Polski, chief
operations officer of the International Association for Identification.
Another concern: Standards for
determining how many points of comparison are needed to determine a match vary
among police departments across the country. The FBI has no minimum; it says it
relies on its analysts' experience and judgment to determine if fingerprints
match.
Those issues are at the heart of
the Mayfield case. The FBI said it found 15 points where the prints matched.
Kenneth Moses, the former San Francisco crime scene examiner the judge
consulted, testified he found 16 points. The Spanish police found eight and
said that wasn't enough to declare a match.
Initially, the FBI found the
print--lifted from a plastic bag containing detonator caps near the March 11
train bombings--of sufficient quality to compare and link Mayfield to the
attacks.
After its error was made public,
though, the government contended the image of the fingerprint it examined was
of "no value for identification purposes."
"That's particularly
difficult to understand since the Spanish police used it to identify Daoud, and
the FBI had used it to identify Mr. Mayfield," said Steven Wax, the
federal public defender in Portland who defended Mayfield.
One of the three FBI examiners
responsible for the Mayfield match acknowledged the blunder. "We just did
our job and made a mistake," John Massey said in an interview at his
Virginia home. "That's how I like to think of it--an honest mistake."
Massey said he knew another
examiner had already declared a match in the Mayfield case, but he said there
was no pressure on him to concur.
While the Department of Justice's
inspector general is reviewing the case, Massey said his faith in fingerprint
comparisons is unshaken.
"I'll preach fingerprints
till I die. They're infallible," Massey said. "I still consider
myself one of the best in the world."
Such confidence in the face of
error has many historical precedents in technical fields; physicians initially
preferred to rely on their instincts, balking at using instruments as simple as
a blood-pressure gauge that could be understood by laypeople.
Doctors didn't yield to the
adoption of such instruments until insurance companies demanded quantitative
measurements of patients' health, said Theodore Porter, a professor of the
history of science at UCLA.
The public's "trust in the
competence of practitioners and the implicit consensus within the field breaks
down when skeptical outsiders challenge it," Porter said.
Fingerprint examiners have
exhibited a similar resistance, saying their personal experience is proof
enough of their reliability. The lingering question: Will the Mayfield case
force them to embrace scientific validation?
Though it captured the most
attention, Mayfield's brief arrest was only the latest in a string of cases in
which fingerprinting was called into question.
The hunt to find who stabbed Alvin
Davis to death seemed simple at first. After all, investigators in the
working-class Philadelphia suburb of Upper Darby had found bloody fingerprints
on a window fan leaning against Davis' decomposing body in autumn 1997.
After two days of examination, examiner
Anthony Paparo said he had found at least 11 points of similarity between the
bloody prints on the fan and those of a friend of Davis, Riky Jackson. To be
certain, Paparo asked Upper Darby Police Supt. Vincent Ficchi, also a
fingerprint examiner, to double-check his work. Ficchi concurred.
Defense attorneys rarely challenge
fingerprint evidence. But Jackson's lawyer, Michael Malloy, dug deeper when he
realized the case rested on the fingerprints. There was no confession from
Jackson, no eyewitness.
A hairstylist who lived in
Philadelphia, Jackson said police had shown him the fingerprints and told him
they would convict him--maybe even put him on Death Row.
"They said, `See the
fingerprints here? They're yours,'" Jackson said in an interview. "I
told them, `There's no way they could be my fingerprints.'"
At trial, Paparo and two other
experts testified how they had matched the bloody fingerprints on the fan to
Jackson. Malloy got his own experts, two retired FBI agents, who testified the
prints did not match.
A jury convicted Jackson, and he
was sentenced to life. After his conviction, though, Malloy's experts filed a
complaint with the International Association for Identification about Paparo
and the two other experts who testified for prosecutors.
The complaint triggered a review
of the evidence by the FBI, which concluded that Paparo had erred.
Two days before Christmas 1999,
Jackson walked out of a Pennsylvania jail. Authorities have yet to link the
prints to anyone else.
To this day, Paparo denies
misreading the prints. "I'm not going to lock someone up just to clear a
case," he said, standing in front of the illuminated screen at the police
department where he made the comparison.
The most significant challenge to
fingerprinting came in 2002 in another Pennsylvania case, a drug conspiracy
with charges of multiple murders. Presiding over it was Judge Louis H. Pollak,
a former dean of Yale Law School respected by lawyers on both sides of the
aisle in Philadelphia.
In January 2002, Pollak issued a
stunning decision: that there was insufficient scientific basis for examiners
to declare fingerprint matches.
It was the first time a U.S. trial
judge had rejected fingerprint comparison evidence. Despite its long history of
acceptance, Pollak ruled, fingerprinting lacked the testing, peer review,
uniform standards and known error rates called for under the Supreme Court's
new Daubert standard.
Prosecutors asked Pollak to
reconsider his ruling, and for three days in February of that year he held
hearings that put fingerprinting to the test.
An FBI agent testified that
examiners scored well on the bureau's own proficiency tests. But a London
fingerprint consultant who had worked for years for Scotland Yard testified for
the defense that the tests were too easy. The prints were too clean, he said,
unlike what fingerprint examiners have to deal with at crime scenes.
The British expert, Allan Bayle,
said his officers, if given the same kind of proficiency tests, would
"fall about laughing."
After hearing both sides, Pollak
acknowledged the problems with the FBI's proficiency testing. But the judge
said he was convinced that examiners in Britain and the U.S. generally agreed
on the methods for analyzing prints and that the testimony of an FBI
fingerprint expert gave him "a substantially more rounded picture of the
procedure."
In the end, the judge who had called into question one of the bedrock
forensic sciences gave it a reprieve, agreeing that the FBI had never made a
mistake.
"I have found, on the record
before me, that there is no evidence that certified FBI fingerprint examiners
present erroneous identification testimony," Pollak wrote, before
concluding, "In short, I have changed my mind."
His ruling seemed to put the issue
to rest. Then, two years later, the FBI wrongly accused Mayfield in the Madrid
case.
Fighting unproven science
In the criminal justice system,
juries often decide a person's guilt. But judges have broad discretion over
what those jurors hear, including which forensic experts and what kind of forensic
evidence.
For decades, most judges screened
scientific testimony according to a 1923 federal decision. Frye vs. United
States said such testimony must be based on principles "sufficiently
established to have gained general acceptance in the particular field in which
it belongs."
In 1993, the U.S. Supreme Court
created the stricter Daubert standard, which held that trial judges also
"must ensure that any and all scientific testimony or evidence admitted is
not only relevant, but reliable."
But the Daubert standard applies
only to federal courts and the state court systems that choose to adopt it.
Some state courts, including Illinois, continue to use the Frye guidelines.
Even though judges rarely bar
forensic experts from testifying, the director of the Justice Department's
research arm argues that the bench is aggressive in its gatekeeper role.
"I have a lot more faith in
judges," said Sarah Hart, director of the National Institute of Justice.
"They can even hire their own experts to inform them. In this advocacy
system ... you can get a lot of information on this stuff."
But some jurists themselves say
judges are ill-prepared for this part of their job.
Haskell Pitluck, a retired McHenry
County judge and former president of the American Academy of Forensic Sciences,
described the problem facing many in the justice system.
"If lawyers could do science,
they'd be doctors," he said, noting that he is better versed in forensics
than many jurists, "and I don't feel qualified to make many of these
calls."
A national survey of 400 state
trial judges published in 2001 found that while nearly all jurists believed
their gatekeeping role was appropriate, only 4 percent had a clear
understanding of the key scientific concepts of probability and error rates.
Some forensic disciplines certify
experts in their fields, but that's no guarantee of quality.
"Too often, the lawyers don't
do their homework enough so they can properly cross-examine these people,"
Pitluck said. "They come in and say, `I'm an expert.' And some lawyers
simply roll over."
Every new forensic discipline has
been met with skepticism. Even DNA was not readily embraced when first used in
the 1980s to identify suspects, because it was largely untested in the
courtroom.
This underscores a central dilemma
of the justice system: how to distinguish promising forensic methods and their
practitioners from junk science and their charlatans.
One of the more bizarre crime-lab
tools has been championed for more than 15 years by a Dutch police officer, Cor
van der Lugt. He contended that when pressed upon a flat surface, a person's
ear leaves distinct marks that can later be matched through its unique shape,
size and contours.
Van der Lugt testified in the 1997
murder trial of David Wayne Kunze in Vancouver, Wash., that he had examined ear
prints in over 600 cases abroad.
The Dutch officer, according to court documents, said he thought it was
"probable" that Kunze had left his ear print when he pressed against
a bedroom door to listen before entering to kill the man sleeping inside. When
asked on the stand how certain he was, he said: "I'm 100 percent confident
of that opinion."
Michael Grubb, then the manager of
the Washington State Patrol Crime Laboratory in Seattle, stopped short of
declaring an exact match but testified at the trial that Kunze was "a
likely source."
Grubb, now director of the San
Diego crime lab, said the Kunze case is the only ear print case he had worked
on.
"I examined ear prints from
130 other individuals as part of the Kunze case," Grubb told the Tribune,
and "none of the other 130 ear prints were similar."
Kunze was convicted and sentenced
to life in prison.
In this instance, though, the
courts' checks-and-balances system worked. Kunze's conviction was overturned
after an appellate court ruled that the ear print evidence was not reliable
enough for such declarations of certainty. Prosecutors later dropped the
charges.
Distinguishing the forensic fringe
from the cutting edge can be difficult enough; keeping a debunked science from
re-entering the courts can be even tougher.
North Carolina anthropologist
Louise Robbins helped send more than a dozen defendants across the country to
prison or to Death Row with her self-proclaimed power to identify criminals
through shoe prints. On occasion she even said she could use the method to
determine a person's height, sex and race.
By the time Robbins died in 1987,
appeals courts had overturned many of the cases in which she had testified. And
the American Academy of Forensic Sciences, in a rare rebuke of one of its
members, concluded her courtroom work was not grounded in science.
But in a laboratory at the
headquarters of the Royal Canadian Mounted Police in Ottawa, the effort to
determine identity from feet and shoes is getting new life.
Sgt. Robert Kennedy, a veteran
fingerprint analyst, says he can tell who wore a shoe by comparing impressions
left on an insole with a person's foot.
Kennedy calls it "barefoot morphology."
Like Robbins, his work has helped prosecutors obtain convictions.
"I know there've been
questions about this. Louise Robbins was a real problem," Kennedy said in
an interview in his office. But "you don't want to just let an area of
forensic science go by the wayside. It's good evidence."
Unlike Robbins, Kennedy has tried
to base his work in science. Since the early 1990s, he has been visiting army
bases and other sites to build a database of footprints that now exceeds 10,000
sets.
In the 1998 trial of Jeffrey Jones
in South Carolina, Kennedy's work proved crucial to sending Jones to Death Row.
Police investigating a double
murder believed a boot that had left a bloody impression in the victims'
kitchen belonged to the killer. They matched the impression to a boot found in
a house that Jones shared with another man, James Brown, who admitted his role
in the killings. In exchange for a life sentence, Brown testified against
Jones.
No physical evidence linked Jones
to the crime, and he denied involvement. Though the boots were size 9 1/2 and
Jones wore between an 11 and 11 1/2, prosecutors said he was wearing them when
the murders were committed.
At the trial, South Carolina crime
lab analyst Steven Derrick, who had never before testified to such a
comparison, said he examined the boot insole and an impression from one of
Jones' feet.
Derrick concluded that the only
way someone else's foot could have made the impression on the boot insole would
be if the person had precisely the same foot characteristics--such as the shape
and the distance between toes.
Derrick also testified that he had
not made a comparison with the feet of Brown, who claimed the size 9 1/2 boots
were too big for him.
Kennedy vouched for Derrick's work
as well as the field of barefoot morphology, testifying that he talked Derrick
through the comparison process.
In 2001, the South Carolina
Supreme Court reined in such evidence, ruling there was insufficient science to
support it. The court ordered the state to either try Jones again or set him
free.
Even with the ruling, prosecutor
Dayton Riddle said he would use the insole evidence again when he takes Jones
back to trial.
"That's good science, despite
the fact it got reversed," Riddle said. "I think what happened there
is that I was a little bit ahead of the curve."
- - -
Forensic science: From bullets to
brain fingerprinting
TOXICOLOGY
The analysis of alcohol, drugs and
poisons in the body, as well as testing of seized evidence for the presence of
narcotics such as cocaine and heroin.
1836: Scottish chemist James Marsh
develops a test to detect arsenic after a jury in a murder trial had rejected
his testimony about the presence of the poison in the victim.
FINGERPRINTING
Matching fingerprints through the
individual characteristics said to make each person's unique.
1892: The modern system of
fingerprint identification begins to take shape with Sir Francis Galton, a
British anthropologist and cousin of Charles Darwin who asserts the uniqueness
of fingerprints.
FIREARM IDENTIFICATION
The process of matching bullets
found at crime scenes with bullets fired from a suspect's weapon.
1912: Victor Balthazard, a
professor of forensic medicine, asserts that machine tools used to make gun
barrels never leave exactly the same markings. After studying images of gun
barrels and bullets, Balthazard reasons that every gun barrel leaves a
signature set of etched grooves on each bullet fired through it.
TRACE EVIDENCE
Hair and fibers are examined to
connect a suspect to a crime scene or a victim.
1920: Edmond Locard, professor of
forensic medicine at France's University of Lyon, publishes a criminal science
volume that espouses the principle that "every contact leaves a trace."
ARSON INVESTIGATION
The examination of fire damage to
determine a fire's cause, origin and whether it was intentionally ignited.
1962: John A. Kennedy writes the
textbook "Fire and Arson Investigation," which puts forth some
theories that have since been debunked.
ODONTOLOGY
The examination of dental records
to determine a person's identity, such as in mass fatalities. Its more
controversial application, bite-mark comparisons, links suspects to bite wounds
on crime victims.
1968: Dr. Warren Harvey, an
odontologist, is the first to identify a suspect's bite marks, which led to the
conviction of a murder suspect in Scotland.
DNA TESTING
The comparison of an individual's
genetic profile with the genetic profile from evidence found at a crime scene.
1993: Kary Mullis wins a Nobel
Prize for polymerase chain reaction, a process that greatly reduces the time
required and amount of evidence needed to do DNA testing.
BRAIN FINGERPRINTING
Using a headband with sensors, the
technique measures brain waves. In theory, sensors detect when the guilty
recognize details of a crime. It's unclear if it is the next great forensic
tool or another chapter of junk science.
2001: After Dr. Lawrence Farwell,
a neuroscientist, develops brain fingerprinting, it is first presented in court
to an Iowa judge, who disregards it.
Sources: Forensic DNA Consulting,
Bruce Anderson's 1998 University of Arizona doctorate dissertation, National
Library of Medicine, McGraw-Hill Encyclopedia of Science & Technology,
Science Fair Projects Encyclopedia, Crime Library
Gentry Sleets, Chris Soprych and
Phil Geib/Chicago Tribune
- - -
The project team