Latest / Wrongful Conviction / #398 Wrongful Conviction: Junk Science - Fingerprint Evidence

Transcript

#398 Wrongful Conviction: Junk Science - Fingerprint Evidence · Wrongful Conviction

0:02
Speaker 1: Hey, folks, Kate Judson here. I'm a lawyer and the
0:05
Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
0:10
Speaker 1: We're back with another episode of Junk Science, a series
0:14
Speaker 1: we first released in twenty twenty, but these stories are
0:17
Speaker 1: just as relevant as ever. The episode you're about to
0:20
Speaker 1: hear is about fingerprint evidence, a type of evidence we've
0:24
Speaker 1: been taught to believe is super reliable through things like
0:27
Speaker 1: TV crime dramas. But like all the forensics we explore
0:30
Speaker 1: in this series, the truth is more complicated than that.
0:34
Speaker 1: One of the biggest issues is that of close non matches, which,
0:38
Speaker 1: as it sounds, is when two prints are very similar
0:42
Speaker 1: to each other but in fact did not come from
0:44
Speaker 1: the same person. A twenty twenty article by J. Kohler
0:50
Speaker 1: of Northwestern University reported that there was up to a
0:53
Speaker 1: twenty eight percent air rate of false positives for close
0:56
Speaker 1: non matches, not exactly a foolproof way to pre of
1:00
Speaker 1: guilt or innocence, and definitely not beyond a reasonable doubt.
1:10
Speaker 2: It's Friday night. You hop in the shower, then put
1:13
Speaker 2: on your favorite blue button down shirt. You look at
1:17
Speaker 2: yourself in the mirror and hype yourself up a bit.
1:20
Speaker 2: You're forty years old, but you've taken good care of
1:23
Speaker 2: yourself over the years and still look pretty damn good.
1:28
Speaker 2: You head out, and when you get to the club,
1:30
Speaker 2: you see your friend Alvin standing outside on the corner
1:33
Speaker 2: waiting for you. You smile because Alvin's always a good time.
1:37
Speaker 2: He might be the only person who can keep up
1:39
Speaker 2: with you when you dance all night. You both head
1:43
Speaker 2: inside and grab a drink, catch up a little bit,
1:46
Speaker 2: and then hit the dance floor. The place is all
1:50
Speaker 2: bass and flashing lights. Neither one of you stops moving
1:54
Speaker 2: until they turn off the music, and the DJ tells
1:56
Speaker 2: everyone it's closing time. Time to get at it. When
2:01
Speaker 2: you get outside the club, you say goodbye to Alvin
2:03
Speaker 2: because you have to get up early in the morning.
2:05
Speaker 2: You're not going to go back to his place tonight.
2:09
Speaker 2: You give Alvin a call the next weekend, but there's
2:11
Speaker 2: no answer. You don't think much of it because Alvin
2:16
Speaker 2: sometimes just doesn't answer his phone. He's the kind of
2:19
Speaker 2: guy that does his own thing. But then a few
2:23
Speaker 2: days later you get a call from another friend. He
2:27
Speaker 2: tells you he passed by Alvin's house and there were
2:30
Speaker 2: police officers surrounding it. They said that Alvin had been murdered.
2:37
Speaker 2: You hang up and immediately head to the police station.
2:40
Speaker 2: You want to help figure out who did this. You
2:44
Speaker 2: meet with detectives and you find out that Alvin was
2:47
Speaker 2: murdered on the night you went dancing with him, but
2:50
Speaker 2: he wasn't discovered until nine days later. His landlord found
2:55
Speaker 2: him on the floor of his apartment. And you hear
2:58
Speaker 2: all this, and you're just immediately as if you had
3:02
Speaker 2: stayed at his house that night, maybe you could have
3:04
Speaker 2: protected him. You tell the police everything you can remember
3:08
Speaker 2: about that night. You want to do anything you can
3:12
Speaker 2: to help them find out who did this to your friend.
3:18
Speaker 2: The police call you in four times over the next
3:21
Speaker 2: two weeks as they investigate Alvin's murder. One day, they
3:25
Speaker 2: tell you they're taking fingerprints of everyone who had been
3:28
Speaker 2: around Alvin in the days preceding his death. They tell
3:32
Speaker 2: you that by allowing them to take your prints, it'll
3:34
Speaker 2: help them figure out who committed the murder. Part of
3:37
Speaker 2: you feels like you're in an episode of some detective show.
3:41
Speaker 2: When they press the tips of your fingers and the
3:43
Speaker 2: palms of your hands on a cold inkpad, then roll
3:47
Speaker 2: the tips of your fingers one by one on a
3:49
Speaker 2: piece of paper. You've seen this process what seems like
3:52
Speaker 2: hundreds of times before on TV and in the movies,
3:56
Speaker 2: but you've never actually done it yourself. You have no record.
4:00
Speaker 2: I've never been fingerprinted before. Not long after that, the
4:04
Speaker 2: police call you into the station one more time, but
4:07
Speaker 2: something has shifted. They bring you into an interrogation room.
4:14
Speaker 2: The first thing they do is show you a polaroid
4:18
Speaker 2: of Alvin's body. You immediately feel fluid bubble into your
4:23
Speaker 2: esophagus and you quickly scan the room for a garbage can.
4:27
Speaker 2: Your mind quickly computes shit. If ipwke in front of
4:30
Speaker 2: these cops, they'll think I did this. You manage to
4:34
Speaker 2: swallow the vomit and there's a sharp burn in your throat.
4:39
Speaker 2: Then they show you another picture and Alvin is flat
4:42
Speaker 2: on his back. There's blood everywhere, on his clothes, the
4:47
Speaker 2: carpet next to him. You can't even see his face.
4:50
Speaker 2: Whoever did this put Alvin's big white box fan over
4:53
Speaker 2: his head and shoulders so you can't see the top
4:56
Speaker 2: portion of his body. You used to make fun of
4:59
Speaker 2: Alvin for that fan, and you were always telling him
5:01
Speaker 2: just to invest in a damn ac unit already the
5:05
Speaker 2: whole thing seems so surreal. And now the officers are
5:09
Speaker 2: pointing at the fan in the picture and they say,
5:12
Speaker 2: you see those bloody smudges on the fan. Those are
5:15
Speaker 2: fingerprints and the prince we took from you the other day.
5:19
Speaker 2: We've collected over a dozen fingerprints of people who were
5:23
Speaker 2: in Alvin's apartment before he was murdered, and only yours
5:27
Speaker 2: matched the prints on that fan. There were no signs
5:30
Speaker 2: of break in at his apartment, but you didn't have
5:33
Speaker 2: to break in, did you. Alvin let you in after
5:36
Speaker 2: your night out together. Then you got in an argument
5:39
Speaker 2: with him, You got jealous that he was dancing with
5:42
Speaker 2: other men, and you stabbed him to death, didn't you.
5:46
Speaker 2: You stare at the officer and disbelieve.
5:48
Speaker 3: No.
5:48
Speaker 2: You say, what are you talking about? Why would I
5:51
Speaker 2: come here willingly to help you guys out if I
5:54
Speaker 2: had anything to do with this. They don't listen to
5:58
Speaker 2: a word you say. They put handcuffs on you and
6:01
Speaker 2: put you in custody. At your trial, the prosecution calls
6:10
Speaker 2: a fingerprint expert to the stand. He says, before we're
6:14
Speaker 2: even born as fetuses in the womb, human beings develop
6:18
Speaker 2: ridges on their fingers and hands. In addition to those ridges,
6:22
Speaker 2: we have glands that secrete oils, so that when we
6:26
Speaker 2: touch objects the worlds loops and swirl pattern of those
6:30
Speaker 2: ridges are left behind. Fingerprint analysis has been around for
6:35
Speaker 2: over one hundred years, and we know that each of
6:38
Speaker 2: our fingerprints are unique. The fingerprints were covered from this
6:42
Speaker 2: crime scene were visible to the naked eye because they
6:46
Speaker 2: were left as impressions in the victim's blood. I analyze
6:50
Speaker 2: these prints and compare them to defining characteristics of the
6:54
Speaker 2: defendants prints. The bloody prints found near the victim's body
6:59
Speaker 2: clearly belong to the defendant. I am one hundred percent
7:02
Speaker 2: certain about this. The prosecution calls two more fingerprint experts
7:07
Speaker 2: to the stand and they all agree these are your prints.
7:13
Speaker 2: But your attorney calls two witnesses to the stan fingerprint
7:17
Speaker 2: experts that claim it isn't even close. There's no way
7:20
Speaker 2: these prints belong to you. The jury isn't phased by
7:24
Speaker 2: the conflicting opinions of the expert witnesses. They are convinced
7:28
Speaker 2: by the impassioned story that the prosecutor laid out. They
7:32
Speaker 2: convict you of first degree murder and abuse of a corpse.
7:37
Speaker 2: Your sentenced to life without parole. There are shouting in
7:42
Speaker 2: the courtroom as you're escorted out by cops with your
7:44
Speaker 2: hands cuffed tightly behind your back. You can't understand why
7:49
Speaker 2: this is happening, What is going on? Those are not
7:53
Speaker 2: your fingerprints. You feel totally and completely helpless. But lucky
8:00
Speaker 2: for you, this isn't the end. The fingerprint experts that
8:04
Speaker 2: testified in your defense call this conviction a gross miscarriage
8:08
Speaker 2: of justice. They demand that the evidence be reevaluated. A
8:13
Speaker 2: panel of experts do just that and find that the
8:17
Speaker 2: prosecution's evaluation was clearly wrong. The prints at the crime
8:21
Speaker 2: scene clearly do not match your fingerprints. One of the
8:26
Speaker 2: experts for the prosecution admits he made a mistake. You're
8:30
Speaker 2: afforded a new trial and you are found not guilty.
8:34
Speaker 2: But this process takes two agonizing years, and after serving
8:39
Speaker 2: that amount of time in prison for a crime you
8:42
Speaker 2: never committed, the murder of your friend, you're released. The
8:50
Speaker 2: story you just heard is based on the true story
8:52
Speaker 2: of Richard Jackson, who was wrongfully convicted and sentenced to
8:56
Speaker 2: life without parole for the murderer of his friend Alvin
8:59
Speaker 2: Davis nineteen ninety eight. While fingerprint analysis has been proven
9:04
Speaker 2: to be purely subjective, it still holds a firm place
9:08
Speaker 2: in the public imagination and therefore enjures minds as reliable science.
9:16
Speaker 2: I'm Josh Dubin, civil rights and criminal defense attorney, an
9:19
Speaker 2: Innocent ambassador to the Innocence Project in New York. Today,
9:24
Speaker 2: on Wrongful Conviction Junk Science, we examined fingerprint evidence contrary
9:30
Speaker 2: to what pop culture has ingrained in the American conscience.
9:34
Speaker 2: Matching known prints of a suspect the prince left at
9:37
Speaker 2: the scene of a crime is not an exact science.
9:41
Speaker 2: It is entirely subjective up to the eye of the examiner.
9:46
Speaker 2: So how did fingerprints become so widely accepted and thought
9:50
Speaker 2: of as the gold standard as full proof evidence. It
9:54
Speaker 2: turns out that the first time fingerprints were admitted into
9:57
Speaker 2: evidence was almost one hundred and ten years ago, and
10:01
Speaker 2: the methods used to match prints to individuals hasn't changed
10:05
Speaker 2: much since.
10:11
Speaker 3: The Pacers Foundation is a proud supporter of this episode
10:14
Speaker 3: of wrongful conviction, with Jason Flahm and of the Last
10:17
Speaker 3: Mile organization, which provides business and tech training to help
10:21
Speaker 3: incarcerated individuals successfully and permanently re enter the workforce. The
10:26
Speaker 3: Pacers Foundation is committed to improving the lives of Hoosiers
10:30
Speaker 3: across Indiana, supporting organizations dedicated primarily to helping young people
10:35
Speaker 3: and students. For more information on the work of the
10:38
Speaker 3: Pacers Foundation or the Last Mile Program, visit Pacersfoundation dot
10:42
Speaker 3: org or the Lastmile dot org.
10:53
Speaker 2: As Clarence Hiller painted the railing outside his home in
10:57
Speaker 2: the early evening of September eighteenth, nineteen, he couldn't stop
11:01
Speaker 2: looking over his shoulder. It seemed like the entire South
11:04
Speaker 2: side of Chicago was on edge. There had been a
11:07
Speaker 2: number of robberies in the area, and everyone was worried
11:10
Speaker 2: that they could be the next victim, and so in
11:14
Speaker 2: the middle of that night, when Clarence heard the screams
11:17
Speaker 2: of his wife and daughter, he was prepared to launch
11:20
Speaker 2: into action. He confronted the stranger in his house, and
11:23
Speaker 2: as Clarence tried to force the man out, both the
11:26
Speaker 2: robber and Clarence fell down the stairs. Three shots were fired,
11:31
Speaker 2: The intruder fled, and his neighbors came outside and their
11:34
Speaker 2: slippers and robes to see what had happened. They found
11:37
Speaker 2: Clarence bleeding just outside his front door with his daughter
11:40
Speaker 2: standing over him. The police were called and a suspect,
11:44
Speaker 2: Thomas Jennings, was found just eight blocks away. His coat
11:48
Speaker 2: was torn and bloody, and he was carrying a revolver.
11:52
Speaker 2: Thomas Jennings was ultimately convicted, but this wasn't the only
11:55
Speaker 2: evidence used in his prosecution. When Thomas Jennings climbed it
11:59
Speaker 2: to the Hiller's home that night, he grabbed onto the
12:02
Speaker 2: railing that Clearance was painting the night before, leaving a
12:05
Speaker 2: fingerprint behind in a semi wet coat of paint. The
12:09
Speaker 2: prosecution cut off the piece of the rail with the
12:12
Speaker 2: fingerprint that Jennings left behind. At his murder trial, jennings
12:16
Speaker 2: defense attorney argued that this new forensic method of lifting
12:20
Speaker 2: and comparing fingerprints couldn't be trusted. There were no tests
12:23
Speaker 2: that could prove that it was reliable. But then the
12:26
Speaker 2: prosecutor got in front of the jury and pressed his
12:29
Speaker 2: finger onto a piece of paper. He then demonstrated how
12:33
Speaker 2: he was able to lift his own print off of it.
12:35
Speaker 2: By proving that he could collect the evidence, he was
12:38
Speaker 2: able to convince the jury that it was also possible
12:41
Speaker 2: to accurately analyze and match it to a suspect. The
12:46
Speaker 2: judge ruled that fingerprint testimony was admissible, and Jennings was convicted.
12:51
Speaker 2: The precedent of admitting fingerprints has been upheld again and again,
12:55
Speaker 2: despite the fact that numerous men and women have been
12:58
Speaker 2: falsely identified through fingerprint evidence. For example, on March eleventh,
13:03
Speaker 2: two thousand and four, there were a series of explosions
13:06
Speaker 2: in Madrid during rush hour. Ten bombs went off, all
13:09
Speaker 2: within two minutes of each other. One hundred and ninety
13:12
Speaker 2: three people died and almost two thousand were injured. Upon investigation,
13:17
Speaker 2: Spanish authorities found a fingerprint on one of the plastic
13:20
Speaker 2: bags that contained a detonator. They photographed it, then reached
13:25
Speaker 2: out to countries around the world to help find the
13:27
Speaker 2: culprits of the attack. The US authorities ran the print
13:31
Speaker 2: through a database of fingerprints, Twenty possible matches appeared. One
13:35
Speaker 2: of them was Brandon Mayfield. But Brandon Mayfield hadn't left
13:39
Speaker 2: the country in ten years. He didn't even have a
13:42
Speaker 2: valid passport. FBI analysts had no idea how Mayfield would
13:46
Speaker 2: have been able to fly to Spain and back completely undetected,
13:49
Speaker 2: and yet they pursued him as a suspect. It turns
13:53
Speaker 2: out that Brandon had converted to Islam after marrying his
13:56
Speaker 2: Egyptian wife, and so American authorities must have seen him
14:00
Speaker 2: as a convenient suspect just a few years after nine
14:03
Speaker 2: to eleven. In fact, despite evidence that showed that it
14:07
Speaker 2: was extremely unlikely that Brandon left the prince on that bag,
14:11
Speaker 2: three different FBI agents testified that the prince found in
14:14
Speaker 2: Spain matched Mayfields. They said that it matched with one
14:18
Speaker 2: hundred percent certainty. They arrested Mayfield, and while he sat
14:22
Speaker 2: in jail, the FBI tried to convince the Spanish authorities
14:26
Speaker 2: that these prints were Mayfields, but the Spanish police didn't
14:29
Speaker 2: see what the FBI saw. The prince didn't seem to
14:32
Speaker 2: match it all, from their perspective, a far cry from
14:35
Speaker 2: a match with one hundred percent certainty. They said that
14:38
Speaker 2: when they compared Mayfield's prince to the ones on the bag,
14:42
Speaker 2: it was quote conclusively negative. They eventually did find a
14:47
Speaker 2: match for the fingerprints and apprehended the man who left
14:51
Speaker 2: them behind during the attack. The FBI admitted that they
14:54
Speaker 2: made a mistake in pursuing Mayfield and let him walk free.
14:58
Speaker 2: Mayfield is now probably the best known case of mistaken fingerprints,
15:03
Speaker 2: but he certainly isn't the only one.
15:08
Speaker 4: And we probably can guess if the Spanish police hadn't
15:11
Speaker 4: been involved, or if they didn't have DNA. If you
15:14
Speaker 4: can imagine this case in the United States, mister Mayfield
15:16
Speaker 4: would have been convicted. How would his defense lawyer have
15:21
Speaker 4: attacked three FBI agents with all of this experience, who
15:25
Speaker 4: claimed with one hundred percent certainty that this print belonged
15:28
Speaker 4: to mister Mayfield. But here's the point here. You could
15:33
Speaker 4: assume that three fingerprint examiners with decades of experience who
15:38
Speaker 4: were certified, followed the process and they were all wrong.
15:44
Speaker 2: Joining us today is Mary Moriarty, the chief public Defender
15:49
Speaker 2: of Hennepin County in Minnesota, and I'm really excited to
15:52
Speaker 2: have her as a guest. She is a staunch defender
15:56
Speaker 2: of the rights of the accused, and an outspoken one
15:59
Speaker 2: at that, and we need more public defenders like that
16:02
Speaker 2: in our country. She has worked to challenge the admission
16:05
Speaker 2: of fingerprints. So, Mary, tell us a little bit about
16:08
Speaker 2: how you first became interested in fingerprints.
16:11
Speaker 4: So it goes back to when I was a child. Actually,
16:15
Speaker 4: if you notice, my last name is Moriarty and I
16:18
Speaker 4: had a particular interest in Sherlock Holmes, and I got
16:23
Speaker 4: for Christmas one year the Hardy Boys book that talked
16:27
Speaker 4: about how to collect evidence, and one of the things
16:31
Speaker 4: I had in there was a recipe for fingerprint powder,
16:35
Speaker 4: and so I would go take my parents' glasses, wineglasses,
16:40
Speaker 4: that kind of thing, and I would dust them for prints.
16:42
Speaker 4: I would put tape over it, and I would lift
16:44
Speaker 4: the print. But I never really thought, well, what do
16:47
Speaker 4: you do after that? It was just an interesting exercise
16:50
Speaker 4: in taking items that I knew my parents had touched
16:54
Speaker 4: and actually trying to lift the prints from them.
16:58
Speaker 2: Well, I think I was like screw and around with
17:00
Speaker 2: a Rubik's cube and playing with Gi Joe figures. So
17:03
Speaker 2: this makes me feel a little bit insecure about what
17:06
Speaker 2: I was doing as a kid. But it certainly sounds
17:09
Speaker 2: like you were headed towards a career involving forensics in
17:13
Speaker 2: the law.
17:13
Speaker 4: For a while, my father was actually a public defender,
17:17
Speaker 4: and some of my dad's clients were actually my classmates,
17:21
Speaker 4: and I got to know them as individuals. There's an
17:26
Speaker 4: attempt to otherwise people who become public defender clients, and
17:31
Speaker 4: the age old question that public defenders get asked, is
17:34
Speaker 4: how can you represent those people? And it's very easy
17:37
Speaker 4: because those people are our brothers, our dads, our sisters,
17:42
Speaker 4: our cousins. And you look at what those clients have
17:45
Speaker 4: been through, and so many of them have a history
17:48
Speaker 4: of trauma, you can understand why they find themselves in
17:52
Speaker 4: these particular situations. And I think growing up my parents
17:56
Speaker 4: fostered a really strong sense of justice in my life.
18:00
Speaker 4: In every situation, they would sit me down and say,
18:04
Speaker 4: you know, what is the right thing to do here?
18:06
Speaker 4: So fast forward when I went to law school. Once
18:10
Speaker 4: I finally made that decision, I knew that there was
18:13
Speaker 4: only one thing that I wanted to be, and that
18:15
Speaker 4: was a public defender. I wanted to be in a
18:17
Speaker 4: courtroom representing the same people that I got to know
18:21
Speaker 4: through my father's practice.
18:33
Speaker 2: All right, so you became an attorney and got a
18:36
Speaker 2: chance to right some of the wrongs that you saw
18:38
Speaker 2: of the system. But what were your thoughts about fingerprints
18:42
Speaker 2: when you first started out?
18:44
Speaker 4: I have to acknowledge. So I've been a public defender
18:47
Speaker 4: for thirty years, and I certainly had fingerprint cases, and
18:50
Speaker 4: I also accepted without questioning that they were based on
18:55
Speaker 4: science and that an expert could actually testify that a
19:00
Speaker 4: single finger made this print from the crime scene. And
19:05
Speaker 4: fingerprints have been accepted as evidence in courts for over
19:09
Speaker 4: one hundred years, and people assume that it's reliable.
19:14
Speaker 2: So this is something that always fascinated me. I don't
19:17
Speaker 2: even know when it was that I began to believe this,
19:19
Speaker 2: but even I had come to the belief that fingerprints
19:24
Speaker 2: were sort of the gold standard, And that seems to
19:26
Speaker 2: be sort of a consistent, you know, collective thought in
19:30
Speaker 2: the American psyche that fingerprints are regarded as being just
19:34
Speaker 2: really reliable. Why do you think that is?
19:36
Speaker 4: They're in popular culture. We've all grown up being given
19:40
Speaker 4: a certain perspective on what fingerprints are. When I started
19:44
Speaker 4: getting an interest in fingerprints, I would say to people
19:47
Speaker 4: outside the legal system, my friends, I would say, you know,
19:50
Speaker 4: when you think about how a fingerprint from a crime
19:54
Speaker 4: scene is compared to the known print of somebody, what
19:57
Speaker 4: does that look like in your mind? We'll always say, well,
20:02
Speaker 4: I envision the crime scene print on a screen right
20:06
Speaker 4: next to the known fingerprint, and then I see a
20:09
Speaker 4: computer merging them and bells going off, going ding ding ding.
20:13
Speaker 4: It matches, and that makes sense. It makes sense that
20:16
Speaker 4: people would think that. When I tell people that that's
20:19
Speaker 4: not at all what happens, they are shocked. Lay people
20:23
Speaker 4: hear that there are these databases, and they tend to
20:25
Speaker 4: think that everybody's fingerprints are in it. And so I
20:28
Speaker 4: think what people believe is that, Okay, you get a
20:33
Speaker 4: fingerprint off a gun and you put it in a
20:36
Speaker 4: database and the computer comes up with the match and
20:39
Speaker 4: that's it. So that's not true at all. So of
20:43
Speaker 4: course we're all entrenched in popular culture. We've been told
20:47
Speaker 4: for many, many years fingerprints are fantastic, and you know,
20:51
Speaker 4: why would anybody take the time to actually look to
20:55
Speaker 4: see what they do?
20:58
Speaker 2: So tell us a little bit about what they actually do.
21:01
Speaker 2: Practically speaking, how does it actually work? What af fingerprint
21:04
Speaker 2: examiners look at.
21:06
Speaker 4: The way fingerprint examiners actually look at fingerprints is through
21:11
Speaker 4: what they call a methodology called ACEV. So it's a
21:16
Speaker 4: c slash V, which is analysis, comparison, evaluation and verification.
21:24
Speaker 4: So here's a description of what they actually do. Let's
21:27
Speaker 4: say a person is shot with a gun. They will
21:33
Speaker 4: lift and by lift, I mean they'll look for a
21:36
Speaker 4: fingerprint on that gun, and then they will try to
21:40
Speaker 4: remove that fingerprint so that they can compare it. So
21:43
Speaker 4: the A part is analysis. They are supposed to look
21:48
Speaker 4: at that fingerprint to see whether there is enough detail
21:53
Speaker 4: in it to go any further. People have seen these
21:56
Speaker 4: pictures of somebody rolling their finger over ad of ink,
22:01
Speaker 4: and that's how you get the print. That's not what happens.
22:04
Speaker 4: When people touch objects. You get a fragment, and sometimes
22:08
Speaker 4: it's smeared, and sometimes there's dust on it, sometimes there's oil.
22:12
Speaker 4: There are a lot of different factors. And so here's
22:15
Speaker 4: the deal. It's not that you're comparing a fully rolled
22:19
Speaker 4: fingerprint to a fully rolled fingerprint. You are first looking
22:22
Speaker 4: at a fragment of the print, and it is totally
22:26
Speaker 4: within the subjectivity, the subjective discretion of a fingerprint analysis
22:31
Speaker 4: or examiner to decide whether there is enough information on
22:36
Speaker 4: that print to even go ahead and compare it. So
22:40
Speaker 4: just think about.
22:40
Speaker 2: That, right, that's kind of scary because it's up to
22:45
Speaker 2: the judgment call of one analyst on that particular day,
22:49
Speaker 2: and I'm quite sure that another analyst looking at the
22:53
Speaker 2: same portion of a print might come up with the
22:56
Speaker 2: opposite conclusion. So it turns out that the A in
23:01
Speaker 2: ACV the very first step is problematic and pretty flawed.
23:05
Speaker 2: So the next letter is the C for comparison, where
23:08
Speaker 2: you're taking a print left at a crime scene and
23:11
Speaker 2: comparing it to a suspects print. So tell us a
23:14
Speaker 2: little bit about what that process.
23:16
Speaker 4: Entails, Mary, So once you make the decision to go forward,
23:22
Speaker 4: then you are onto the C or comparison, and you're
23:26
Speaker 4: comparing the fully rolled print to the fragment of a print. So, Josh,
23:32
Speaker 4: you might look and compare those two fingerprints and say,
23:35
Speaker 4: you know, I see enough here. I see twelve points
23:38
Speaker 4: of comparison. That's enough for me to say that this
23:42
Speaker 4: is the same person. I might look at it and say, oh,
23:48
Speaker 4: I see five points of comparison. I think that's enough
23:51
Speaker 4: to declare that it's a match. So, once again, it
23:55
Speaker 4: is completely subjective.
23:58
Speaker 2: Right, and saying, well, sometimes we think ten points that
24:03
Speaker 2: look the same between a rolled print and a fragment
24:06
Speaker 2: of a print are enough similarities to declare match, and
24:10
Speaker 2: sometimes we think five is enough, And that just doesn't
24:13
Speaker 2: seem scientific, it doesn't seem very reliable. And so, Mary,
24:17
Speaker 2: something we've been addressing a lot on this podcast is
24:21
Speaker 2: the two thousand and nine NAS report. Tell us a
24:24
Speaker 2: little bit about what the NAS report said about fingerprints.
24:29
Speaker 4: The National Academy of Science is the most prestigious scientific
24:33
Speaker 4: body in the United States and they advise Congress on
24:39
Speaker 4: issues of science, medicine, pretty much anything you can think
24:43
Speaker 4: of when it comes to sciences, and the National Academy
24:47
Speaker 4: of Science was asked to examine the comparative forensic sciences.
24:53
Speaker 4: It was a groundbreaking report and it was very in depth.
24:58
Speaker 4: They took testimony, the elicited research, and it rocked the
25:03
Speaker 4: forensic science community. One of the things that you realize
25:07
Speaker 4: when you look at the report, if you are a scientist,
25:09
Speaker 4: you know that there are certain tenets of science, like
25:12
Speaker 4: you have to be able to replicate the process. When
25:16
Speaker 4: a scientist does an experiment, they document what they do.
25:21
Speaker 4: And the National Academy of Science was very clear that
25:24
Speaker 4: fingerprint examiners, as well as any other comparative forensic examiners,
25:28
Speaker 4: do not provide documentation. And I found this to be true.
25:32
Speaker 4: You would order, you would ask for a fingerprint examiner's file,
25:36
Speaker 4: and you wouldn't really see many notes. You wouldn't know
25:40
Speaker 4: what they were actually looking at. You might have a
25:43
Speaker 4: picture of a fingerprint with some circles on it, but
25:46
Speaker 4: you wouldn't know what they were looking at, so there
25:48
Speaker 4: was no way to replicate the process that they actually used.
25:52
Speaker 4: There was no basis for saying that it came from
25:56
Speaker 4: the same source. And most of the people who did fingerprints,
26:00
Speaker 4: and probably still do in some places, are not scientists.
26:03
Speaker 4: They are not recruited because of their scientific background. They
26:06
Speaker 4: are often police officers who were apprenticed into this position
26:10
Speaker 4: because the police officer who examined the print was going
26:13
Speaker 4: to retire. And then there's the evaluation where you're actually
26:18
Speaker 4: making the decision about whether this comes from the same source,
26:22
Speaker 4: and there's a lot of controversy there. Fingerprint examiners used
26:26
Speaker 4: to come in and say that they had one hundred
26:29
Speaker 4: percent certainty, they were one hundred percent certain that this
26:33
Speaker 4: print from the crime scene came from this particular client,
26:38
Speaker 4: and there was no basis for that. In fact, that's
26:40
Speaker 4: not even allowed anymore. And why is there no basis
26:44
Speaker 4: for it? You would have to have population statistics, right,
26:48
Speaker 4: I mean, that's what DNA has, That's why they come
26:51
Speaker 4: up with these numbers. It's one in a million that
26:53
Speaker 4: it came from this person. There are no population statistics
26:57
Speaker 4: regarding fingerprints.
27:10
Speaker 2: Okay, so we're seeing that there are a lot of
27:12
Speaker 2: flaws with both analyzing and comparing prints, the A and
27:15
Speaker 2: the C and ACE that neither of these steps are
27:18
Speaker 2: actually rooted in the scientific methods. And now we're onto E, right, ACE.
27:24
Speaker 2: So the E is evaluation where they decide if it's
27:28
Speaker 2: a match or not. And so it seems that if
27:30
Speaker 2: analyzing and comparing the prints aren't scientifically proven to work,
27:35
Speaker 2: the evaluation of those prints and deciding whether or not
27:38
Speaker 2: it's a match can't be done to any degree of
27:40
Speaker 2: certainty either. That just seems like common sense. So this
27:45
Speaker 2: is purely subjective. But there's one last letter in these
27:49
Speaker 2: steps that examiners follow, and that's the V for verification. Right,
27:54
Speaker 2: it's ACE V. And I'm already skeptical because the first
27:58
Speaker 2: three steps of the process or flawed, So how could
28:00
Speaker 2: the results be verified?
28:03
Speaker 4: Imagine this, A fingerprint examiner would decide that this fragment
28:08
Speaker 4: of a print came from this particular person, and then
28:11
Speaker 4: they would hand it off to another fingerprint examiner for verification.
28:16
Speaker 4: But the issue was it was never blind. So, Josh,
28:19
Speaker 4: let's say you and I were fingerprint examiners in the
28:22
Speaker 4: same office and I would make a decision about a print,
28:25
Speaker 4: and then I would ask you to verify what I
28:28
Speaker 4: had done. And the problem with that is you already
28:31
Speaker 4: knew what I had done. It wasn't blind. In science,
28:35
Speaker 4: they do blind verification, so that the person who's actually
28:39
Speaker 4: attempting to verify or replicate what the first person did
28:44
Speaker 4: it doesn't know what the result was actually, So the
28:47
Speaker 4: fact that the verification wasn't blind led to what people
28:52
Speaker 4: call confirmation bias, which is a huge problem.
28:55
Speaker 2: All right. So, once the NAS basically said that the
28:59
Speaker 2: ACV process is really a recipe for wrongful convictions, this
29:03
Speaker 2: should have been an explosion in the criminal justice system
29:07
Speaker 2: in the courts, and it just wasn't. And that's, I guess,
29:10
Speaker 2: a different issue altogether. We have to keep pushing in
29:13
Speaker 2: that regard. But you are still trying to push and
29:17
Speaker 2: challenge the admissibility of fingerprints in the criminal justice system.
29:21
Speaker 2: And I have to tell you, it just seems like
29:24
Speaker 2: it must be so difficult, Mary, because this is not
29:28
Speaker 2: like any kind of scientific analysis. But it just feels
29:33
Speaker 2: to me that everyone believes fingerprint evidence works. It's so
29:38
Speaker 2: ingrained in pop culture, and just like the intrinsic belief
29:43
Speaker 2: that people have that we've grown up with. So tell
29:46
Speaker 2: me what are some of the problems you've run into
29:50
Speaker 2: when trying to call and question this so called science.
29:55
Speaker 4: When you're in court litigating this, you're absolutely right. That
29:58
Speaker 4: is one of the things you hear from prosecutors and
30:01
Speaker 4: you hear from judges. Of course, this is reliable. It's
30:04
Speaker 4: been coming into court for decades and decades, and nobody
30:07
Speaker 4: has ever challenged it before. So that is a big
30:10
Speaker 4: hurdle to get over, much more so than other things
30:15
Speaker 4: like bite marks, blood spatter and that sort of thing.
30:17
Speaker 4: The court system always lags behind science, and it was
30:22
Speaker 4: an uphill climb to convince judges and prosecutors that there
30:27
Speaker 4: were problems with fingerprints, or if you could convince them
30:31
Speaker 4: that there were problems, you certainly couldn't convince them that
30:34
Speaker 4: they should exclude that evidence. In fact, judges and I
30:38
Speaker 4: heard this quite a bit, it's like, well, you know,
30:40
Speaker 4: let's just let the jury decide. But then you get
30:42
Speaker 4: back to the problem of jurors thinking that fingerprints are
30:47
Speaker 4: you know, they've been with us forever. They're embedded in
30:49
Speaker 4: popular culture, and you have to get over all of
30:52
Speaker 4: that history to convince durers that there are indeed issues. Essentially,
30:57
Speaker 4: the presumption is that prints are are infallible. In a
31:02
Speaker 4: case where your client is supposed to be presumed innocent
31:05
Speaker 4: and the prosecution or the government has to prove their
31:08
Speaker 4: case beyond reasonable doubt, a significant piece of evidence is
31:12
Speaker 4: presumed to be infallible, and you have a lot of
31:15
Speaker 4: work to do to try to educate them that that's
31:18
Speaker 4: not the case.
31:19
Speaker 2: Right, because it turns out that judges are really no
31:22
Speaker 2: different than jurors. I mean, in some instances they're more sophisticated,
31:26
Speaker 2: not always. They certainly have less time and frankly sometimes
31:32
Speaker 2: less patience, but they're sort of not immune to the
31:36
Speaker 2: impact of pop culture and precedent. But look, some people
31:40
Speaker 2: may be listening to this and thinking, I don't have
31:43
Speaker 2: a law degree, but I want to help. I want
31:44
Speaker 2: to do something about this. So do you have any
31:47
Speaker 2: ideas for what our listeners can do to help I do?
31:52
Speaker 4: And I wanted to go back, just for a moment
31:54
Speaker 4: to talk about precedent because where I went in my
31:58
Speaker 4: mind are our core saying that actual innocence of a
32:02
Speaker 4: client on death row doesn't matter because procedure was followed.
32:07
Speaker 4: So that should alert your listeners how how much courts
32:12
Speaker 4: adhere to precedent and our deferential to previous findings to
32:18
Speaker 4: the point where they would authorize that somebody received the
32:22
Speaker 4: death penalty because the process was followed. Anyone in the
32:26
Speaker 4: public wants the law enforcement, the system to get things right,
32:32
Speaker 4: and the only way we can get things right is
32:35
Speaker 4: if we understand the limitations of these forensic sciences. So
32:39
Speaker 4: people can be writing letters, calling their prosecutors, their policymakers,
32:44
Speaker 4: county commissioners, city council members. What are you doing to
32:48
Speaker 4: make sure that police officers, that crime lab examiners understand
32:54
Speaker 4: this information? And that would be really helpful because people
32:58
Speaker 4: really do listen more or to constituents and people in
33:02
Speaker 4: the public than they do potentially defense lawyers.
33:07
Speaker 2: You know, I've said this before, and I really do
33:10
Speaker 2: think it bears repeating. Pressure breaks pipes. What you all
33:15
Speaker 2: can do, as listeners of this podcast is take action.
33:20
Speaker 2: You're on here because you want to learn something, but
33:23
Speaker 2: you also want to do something about it. The way
33:26
Speaker 2: that we stop this junk signs from making it into
33:29
Speaker 2: our courts is to shine a bright light on it.
33:33
Speaker 2: Google the NAS report that we've continually talked about during
33:36
Speaker 2: this season. That report details how so many of these
33:41
Speaker 2: disciplines of forensic science, including fingerprints, are really problematic. The
33:46
Speaker 2: problem is judges don't know about it. Find out who
33:51
Speaker 2: your local criminal court judges are and send them the
33:54
Speaker 2: NAS report. Highlight the section on fingerprint analysis and send
33:58
Speaker 2: to your local criminal court judges. It's only by educating
34:03
Speaker 2: our judges and speaking truth to power that we can
34:06
Speaker 2: really make change happen. And if you don't think that
34:09
Speaker 2: your voice matters, just take a look around the country
34:12
Speaker 2: right now. It's the collective voice that is causing change
34:16
Speaker 2: to happen, and we can do it one step at
34:19
Speaker 2: a time in our criminal justice system. Thank you for
34:30
Speaker 2: listening to Wrongful Conviction Junk Science. We're going to be
34:33
Speaker 2: taking a little break, but our next episode will be
34:36
Speaker 2: out on October seventh. In the meantime, we will be
34:40
Speaker 2: keeping a critical and close eye on our criminal justice system.
34:44
Speaker 2: We would love to hear how you're doing that along
34:47
Speaker 2: with us, So please leave us a comment and let
34:49
Speaker 2: us know what you've been up to, and stay on
34:51
Speaker 2: the Wrongful Conviction podcast feed as Jason Flamm will continue
34:55
Speaker 2: to release episodes between now and October seventh. Wrongful Conviction
35:02
Speaker 2: Junk Science is a production of Lava for Good Podcasts
35:05
Speaker 2: and association with Signal Company Number One. Thanks to our
35:09
Speaker 2: executive producer Jason Flamm and the team at Signal Company
35:12
Speaker 2: Number One executive producer Kevin Wardis and senior producers Karakornhaber
35:17
Speaker 2: and Britz Spangler. Our music was composed by Jay Ralph.
35:21
Speaker 2: You can follow me on Instagram at dubin Josh, follow
35:25
Speaker 2: the Wrongful Conviction podcast on Facebook and on Instagram at
35:29
Speaker 2: Wrongful Conviction and on Twitter at wrong Conviction