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Terror-dactylography? Or someone who could make a jolly good living acting as an expert witness for the defence?
http://www.montereyherald.com/mld/montereyherald/news/nation/10026701.htm
Posted on Wed, Oct. 27, 2004
Fingerprint evidence not good science, scholar says
BY EDWARD HUMES
The Orange County Register
SANTA ANA, Calif. - (KRT) - Clarence Hiller's wife awoke with a start and shook him from sleep, sensing something amiss before she realized what it was: The room was too dark. The hallway light outside their daughter's room, the one they always left on at night, had gone out. And so the dutiful husband and father of four rose from bed to have a look, and to begin the last 30 seconds of his life.
Near the top of the stairs Hiller met an unexpected obstacle: the shadowy form of a man. The intruder lunged, and the two men, shoving and flailing, thudded down the stairs. At the landing, the stranger wrestled a pistol free and shot Hiller twice. Then the man who had merely wanted to put on the night-light died with his wife's screams still in the air, the burglar-turned-murderer pounding out the door and into the darkness.
The Chicago police soon arrived and pieced together what happened. The killer had climbed through the Hillers' kitchen window, entering quietly but leaving behind a key bit of evidence: On a freshly painted railing beneath the window, investigators found the vivid imprints of four fingers of someone's left hand embedded in the still-soft paint.
At 2:38 that morning, the police spotted Thomas Jennings, a paroled burglar, limping through the darkness not far from the Hiller home. They frisked him and found a revolver in his pocket. None of the Hillers got a good look at his face, but it made little difference. Four police experts agreed that, without doubt, Jennings' left hand had grabbed that wooden rail, a clean, simple, case-closing resolution - and a seminal moment in law-enforcement history.
For nearly a century, that fateful encounter on a staircase in 1910 has both empowered and haunted the justice system, as Clarence Hiller's killer became the first person in America to be arrested, convicted, sentenced to death, and hanged through the triumph of dactylography, the analysis of fingerprints.
So when Simon Cole, a social sciences professor at the University of California, Irvine, wages his lonely campaign to prove that the science of fingerprint analysis is missing a crucial element - namely, the science part - he isn't merely going up against the police, the FBI and pretty much every black robe in the land. Cole is taking on Clarence Hiller's ghost.
Hiller's case and the legal logic surrounding it ushered in a new era of modern law enforcement, making possible the millions of fingerprint comparisons and cases that followed, from those used in the Lindbergh kidnapping to the prosecution of the al-Qaida operative who planned the millennium bombing of LAX.
And this drives Cole absolutely crazy.
According to Cole - and a growing number of scientists, scholars and legal experts horrified at some recent, high-profile fingerprint blunders - the courts have gotten it wrong for the last 94 years. They have been wrong, Cole says, not because Jennings was innocent, but because he really was guilty - lending a lasting aura of invincibility to fingerprint analysis that it has neither earned nor deserved.
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Since Clarence Hiller's murder, the legal system has treated fingerprint comparisons as not simply invaluable, which they unquestionably are, but as essentially infallible - when they are anything but.
Just ask Brandon Mayfield, the Oregon lawyer who was arrested in May, jailed for two weeks and branded a terrorist. FBI experts mistakenly linked his fingerprint to the Madrid train bombing that killed 191 people in March - even though Mayfield has never been to Madrid. The fingerprints were later found by Spanish experts to match a foreign terrorist.
FBI officials have apologized for the error, but they have not yet explained it - which is no surprise to Cole, who has made UCI ground zero for challenging conventional wisdom about fingerprints.
"They can't explain it, because there is a fallacy at work here: the belief that, because all fingerprints are unique, therefore fingerprint evidence is inherently reliable," he says. "It makes sense at first blush, but think about it: No two faces are alike, yet eyewitness identification is difficult and problem-plagued.
"The real question is not whether all fingerprints are different, but how accurate are fingerprint examiners at matching the small, fragmentary prints you find at crime scenes. And the real answer is, we don't know. No one knows - because there has never been a scientific study to find out. They have never allowed it."
Rather grudgingly, and with many caveats, several leading fingerprint examiners concede that Cole is correct: There have been no formal scientific studies on the reliability of fingerprint examiners or the frequency of errors like Madrid.
"No, the science nerds have never actually studied it," says Pat Wertheim, a nationally prominent fingerprint examiner with the Arizona Department of Public Safety in Tucson. "But you can't ignore 79 years of empirical research."
Seventy-nine years is how long the FBI has been in the fingerprint business, and by "empirical research," Wertheim means the day-to-day use of fingerprint evidence by police agencies and its acceptance by the courts. Cole says this proves nothing but his own point: "Legal opinions are not scientific studies. Judges are notorious for being scientifically illiterate."
Long dismissed for his views, Cole's arguments have gained steam, if not legal impact, in the wake of the FBI's embarrassment over the Madrid case. Three top FBI fingerprint experts mistakenly matched Mayfield (who happens to be a convert to Islam) to a print found on bomb-making materials found in Madrid.
The errors were all the more humiliating because the FBI had in the last two years successfully headed off several legal challenges to fingerprint evidence by convincing federal judges that its procedures had never yielded such a mistake, and that Cole's concerns were of no consequence. Several wrongful convictions have also come to light involving fingerprint matches by local police.
Now the subject of fingerprint evidence's lack of scientific foundation has provoked an angry editorial in the respected journal Science, in which Donald Kennedy, formerly Stanford University president and Food and Drug Administration commissioner, called forensic science "an oxymoron." A number of prominent scientists and legal scholars have joined the fray.
Fingerprint examiners are so outraged and concerned by the growing legion of critics that they have sponsored symposia and professional newsletter article series, including one entitled "Defense Against the Dark Arts" (a reference to juvenile literary hero Harry Potter's battles against evil wizardry), in order to pass on strategies to use against Cole and the other critics in court.
FBI officials, on the other hand, have imposed an in-house gag order, declining to comment for this article or to permit interviews with their fingerprint experts - something that was routinely permitted in the past.
The stakes could not be higher in this debate: If Cole is correct, a strict interpretation of federal law could theoretically bar the use of fingerprint evidence pretty much everywhere until studies are performed to see how regularly fingerprint comparisons go wrong.
"Simon's been predicting something like Madrid would happen," says Cole's UCI colleague, William Thompson, who has fought similar battles over DNA fingerprinting. "He's been saying this was inevitable. Now, finally, people are beginning to listen."
The professors in the law, crime and psychology group at UCI's School of Social Ecology speak ruefully of the wars they've fought over their research on science and the justice system, which often defies the pronouncements of authorities.
With leading experts in eyewitness errors, recovered memory, the testimony of children and the phenomenon of false confessions, UCI's reputation as a center for research on criminal justice has drawn international attention.
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Cole's fingerprint war is only the latest in a trend begun by Thompson, widely regarded as one of the nation's leading legal experts on DNA and crime-lab errors; his work includes a takedown of the Los Angeles Police Department lab in the O.J. Simpson case, a scathing indictment of rampant errors in Houston's crime lab, and winning the freedom of an innocent Texas 16-year-old sentenced to 25 years for rape based on an erroneous DNA match.
"The technology works," Thompson says. "The problem is human error."
Now this same balance of technology and human judgment is in question with fingerprints. The 25-year history of DNA matching and the century-long saga of fingerprint evidence are remarkably similar: Both were introduced as triumphs of science, both were received as magic bullets for police and prosecutors to solve previously unsolvable crimes. But something happened with DNA evidence that has never occurred with fingerprints: successful legal challenges, which fueled reform and improvements.
After DNA technology was introduced in court cases in the late '80s, Thompson and other attorneys nationwide found many highly regarded scientific experts had uncovered errors and scientific uncertainties in the DNA matching methods used by police and the FBI.
Competing experts accused one another of malfeasance, harassment and scientific fraud. In those days, Thompson, who works as both an attorney and a consultant on DNA cases, was the target of personal attacks from some prosecutors, who labeled him and a colleague as "The Combine from Irvine." These DNA Wars peaked in the 1990s, when several jurisdictions in California briefly barred DNA evidence because of errors and misleading statistics.
In the end, the legal challenges on behalf of criminal defendants have achieved an unintended purpose: They have led to hundreds of government-backed scientific studies of DNA evidence, to improved procedures and training in police labs, and to more scientifically valid presentations of the meaning of DNA evidence in court.
Now most experts agree that the technology is sound, and defense lawyers rely on DNA evidence nearly as often as prosecutors. Most remaining challenges to DNA evidence, such as those in Houston, revolve not around the underlying science, but on shoddy lab work in individual cases, poor training of analysts and a lack of national standards for crime labs that have left some DNA testing operations virtual paragons while others, some government-run, others privately run, are considered virtual pariahs.
The same sort of skeptical inquiry and scientific rigor unleashed on DNA evidence, Cole and Thompson say, has never been applied to fingerprint matches. The distinction seems particularly clear in how differently the courts treat fingerprint analysts versus every other kind of forensic expert.
As powerful as DNA evidence can be, experts generally are not allowed to say that a particular defendant's DNA "matches" a DNA sample connected to a crime. They can say the samples are consistent. They can say that such DNA patterns occur only in a tiny portion of the human population, and that the defendant falls into that small group. But they cannot point the finger at a defendant and say, "That's his DNA."
The same is true of experts in hair, fiber, paint, blood spatter, bullet comparisons, arson and just about any other forensic comparison imaginable. These experts cannot pronounce a person guilty - that's the jury's job. The courts recognize that each one of these types of forensic evidence has to be interpreted through subjective human judgment.
Except, say Cole and Thompson, for fingerprint experts. They alone are allowed to say: The prints belong to the defendant. Not "consistent with" the defendants. Not just that they have similar loops and whorls. They can utter the words no other forensic expert can use: They match.
In other words, as Cole sees it, fingerprint experts are so exalted by the courts that they can, in many cases, pronounce guilt for a jury.
"I don't know about you," says Cole. "But I have a problem with that."
Cole wants to take a page from the defense lawyer's DNA playbook and use it to change the way fingerprint evidence is handled in court. Fingerprints would be subjected to the same scientifically rigorous examination used for all other forensic evidence - even if it is 94 years late.
Fingerprint experts have fought back, sometimes angrily, maintaining that their methods have been proven in the real world of criminal investigations, which they deem more important than strict scientific testing.
They accuse Cole of lacking credentials in fingerprint analysis (something he cheerfully concedes) and of a desire to sell books rather than see justice done (which he not-so-cheerfully denies). This last point is a reference to Cole's 2001 book on the history of fingerprint evidence, "Suspect Identities: A History of Fingerprinting and Criminal Identification." His critics in the forensic community are well-represented on the comments section at Amazon.com, where one reviewer even quoted an obscure legal opinion from a trial court in New York that rejected Cole's status as an expert witness and branded his assertions "junk science."
If there were a chalkboard tallying scores in this debate, Cole would be the underdog. He has convinced many scientists that there is cause for concern, but the courts have always sided with the fingerprint examiners. Now, the Madrid case put his critics on the defensive. The Fingerprint War, like the DNA War that preceded it, is suddenly in full swing.
Fingerprints, the prosaic stuff of every B-movie murder and rerun of "Barnaby Jones," represented a revolution when the handcuffs snapped onto Tom Jennings' wrists in 1910. The discovery that fingerprints could be read in a way that rendered people as unique as snowflakes did as much for crime detection as penicillin would do three decades later for health care.
The scientific reasoning, factual findings, even the wording of the legal opinion on the reliability of fingerprint evidence in the Jennings case have been quoted, paraphrased and depended upon ever since.
How the ancient Egyptians used Pharaoh's thumbprint as an official identifier. How contract signers and courts in India for decades relied upon fingerprints as binding identifications. How the system of fingerprint analysis invented by Sir Francis Galton, cousin to Charles Darwin, had a firm scientific basis and, by 1911, had been used by the British police in "thousands of cases without error."
"This method of identification is in such general and common use that the courts cannot refuse to take judicial cognizance of it," the Illinois Supreme Court boldly concluded in the Jennings case, reciting what seemed to be, even then, a long and solidly established history of dactylography. And in the years that followed, every state, federal and local court has agreed in untold millions of cases, embracing fingerprint comparisons as a kind of forensic Holy Grail that has withstood the test of time.
The problem is, none of the original reasoning, which has been relied upon by the courts ever since, holds water:
The ancient Egyptians didn't use fingerprints as identifiers, but as royal seals, no more relevant to the case than hieroglyphics.
The practice of using fingerprints on contracts in India was not based on science, but on superstition, undertaken on a whim by a British magistrate who felt his Indian subjects would fear their personal imprint on a document was more mystically binding than a mere signature.
As for Galton, he did invent a revolutionary method of analyzing the loops and whorls of fingerprints that is still in use today, though he conceived of it not as a crime-busting tool, but as a means of classifying the genetically superior among us. Galton, in his most-remembered work, was the father of eugenics, his theory of controlled breeding and noble birth that has been used over the years to justify such human travesties as forced sterilizations, pogroms, genocide and the Holocaust.
And as for those thousands of cases in Britain in which fingerprints were used without error prior to 1911? The truth is, Cole says, no one knew then if there were any errors. The police experts were simply taken at their word. "Just like today," Cole says.
"Fingerprint comparison may have withstood the test of time but that's the only test it has passed," Cole said. "Personally, I don't find the test of time very persuasive. The flat-Earth theory withstood the test of time for a few thousand years, but that didn't make it correct."
Although he is vilified alternately as ignorant, arrogant or maniacal on Web sites frequented by forensic analysts, Cole, 37, seems an unlikely character to be leading this charge. He is neither a laboratory scientist nor a lawyer. He describes himself instead as a social scientist and science historian, an easygoing and affable scholar who, these days, seems perpetually tired and disheveled - the sleepless look every father of a newborn baby (Cole's second) knows all too well.
"He has irritated a few folks," Wertheim says tactfully. "Professor Cole is a very sincere man, but misguided."
Cole's consuming interest in fingerprint evidence developed five years ago, the inadvertent consequence of a study he conducted at Rutgers University in New Jersey. He had been investigating why jurors, lawyers and judges found fingerprint examiners with only a few months of training so overwhelmingly credible, while DNA experts with far more impressive training were being picked apart on the stand. "I found that you just couldn't do that with fingerprint examiners," Cole recalls. "They were essentially unassailable."
At the time, Cole chalked this up to the clever way fingerprint images are used in court: The experts would show jurors blow-ups of the fingerprints and point out similarities between a crime-scene "latent" print and an inked fingerprint from a defendant. When these similarities proved hard for a layperson to perceive - as they often are - Cole found that fingerprint examiners were adept at explaining this away by asserting that only a trained expert could make such determinations.
"It was a Catch-22," Cole says. "Whether you see a similarity or not, the fingerprint examiner has an explanation for why it's a match."
Add to that decades of positive publicity Americans have received through television, film and books - dating back to Mark Twain's "Pudd'nhead Wilson" - that extolled the virtues of fingerprinting, and Cole found a ready explanation for why fingerprint analysts are esteemed above all other courtroom experts.
He might have left it at that but for a call he received a short time later from a public defender in Philadelphia, who was mounting the first serious legal challenge under a then-new federal rule for admitting scientific evidence in court, the Daubert Test.
Daubert v. Merrell Dow Pharmaceuticals had been a product-liability case in which the parents of two children born with serious birth defects sued the drug maker, blaming the defects on the anti-nausea drug Bendectin. In 1993, the Supreme Court helped resolve the case by crafting a new legal test for scientific evidence, tossing out old courtroom standards that considered only whether a scientific principle was generally accepted. The new Daubert Test required a more detailed judicial inquiry by trial judges, including an examination of likely error rates in any scientific procedure
The new standard, which applies to all federal courts and has been adopted by some states, applied to criminal cases as well as lawsuits, and soon uncovered wholesale mistakes and frauds by some crime labs, with most of the errors helpful to prosecutors. A serologist in West Virginia had falsified hundreds of tests to help sustain convictions. A pathologist had faked autopsy results in more than 20 death-penalty cases. Even the FBI was found to have a host of lab problems.
A side effect of this new rule was an opening to re-examine the reliability of fingerprint evidence.
To Cole's astonishment, once he agreed to join the case as an expert witness, he found virtually no scientific information to back up the claims of 100-percent accuracy of fingerprint examiners.
There were studies that purported to show everyone's fingerprints were unique, but nothing to prove a human fingerprint examiner's ability to match fingerprints or, more importantly, partial crime-scene fingerprints.
"That call changed my life," says Cole. "I've been at it ever since."
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The public defender who called Cole eventually lost his bid to throw out fingerprint evidence. But another federal judge in Philadelphia took on the issue a short time later, again using testimony from Cole and others, and reached the opposite conclusion. He found in a drug case against a man named Llera Plaza that the critics of fingerprint evidence were right, and that fingerprint examiners, while they should be allowed to testify, should be barred from claiming that a particular person absolutely matched a particular print. More scientific study was needed, U.S. District Judge Louis Pollack ruled in 2002, before the luster could be restored to fingerprint matching.
Fingerprint examiners nationwide were flabbergasted. If sustained on appeal, it could undo hundreds, if not thousands, of criminal cases, they feared. The FBI mounted a concerted effort at overturning the decision, bringing in a legion of experts to argue that, in 79 years, it had never made a false match, that fingerprint errors discussed by Cole and others had been made by police agencies other than the FBI, and that Pollack's decision would have disastrous consequences for public safety.
In a rare move three months later, Pollack overturned the ruling, saying he had been wrong in his initial decision and that the FBI could continue to make fingerprint identifications in court.
Cole moved to the UCI faculty a few months later and, since then, has testified in hearings in which the scientific reliability of fingerprint evidence has been questioned, all with the same result: The evidence was deemed admissible. Cole's arguments lost.
Yet the war continues, because fingerprint errors keep cropping up. Fingerprint examiners argue that errors cannot occur when proper methods are used. These methods include examining every fingerprint match for differences rather than similarities, then having multiple fingerprint examiners confirm every match.
"When a fingerprint examination is performed correctly, that is, following the accepted methodology, there are no misidentifications," according to Cindy Homer, a fingerprint expert for the state of Maine, who cautioned her colleagues in a Web posting to welcome criticism from Cole and others as an opportunity to stay sharp. "We don't know yet what actually went wrong with Mayfield. I can say because there were misidentifications, the fingerprint-analysis methodology was not followed correctly."
Cole takes issue with that position, which is nearly universal among fingerprint analysis, because it is unproven. Simply saying that whenever there is a mistake, it must be because procedures weren't followed is an argument, Cole says. But it is not proof.
Without a thorough study of error rates by fingerprint examiners who are following proper procedures, Cole says, there is no way to know what causes errors, or how common or uncommon they are. The few proficiency tests that fingerprint examiners have participated in have had mixed results: One 1995 battery of tests given to examiners nationwide found a one-in-five error rate. But instead of leading to a push for more such tests, Cole says, there has been little follow-up.
Several recent fingerprint blunders seem to bolster Cole's position. Richard Jackson of Upper Darby, Pa., was sentenced to life without parole and served two years before his lawyers convinced a judge that local police had mistakenly matched his fingerprints to the killer's. A re-examination exonerated him, but two of the three police experts who made the error and verified one another's erroneous matches are still doing fingerprint analysis.
In Boston, Stephan Cowans was released earlier this year after serving seven years in prison for shooting a police officer. He was convicted based on fingerprint evidence that had been reviewed by at least two police analysts. Later, DNA testing exonerated him. A re-examination of the fingerprint once again showed there was no match, despite the verification procedures.
The Cowans case was soon followed by the arrest of attorney Mayfield in connection with the Madrid bombing, after three senior FBI examiners, the most highly trained fingerprint experts in the country, mistakenly declared his prints a match to the bomb suspect's partial, blurred latent print.
The error was compounded when a nationally renowned fingerprint expert hired by the defense also found that Mayfield's prints matched the bomber's. The match, then, was verified four times - incorrectly.
The error might never have been detected at all if the bombing occurred in this country, Cole argues.
Only the additional work by the Spanish police revealed the mismatch.
He believes this case alone should shake the legal system's belief in fingerprint examiner infallibility.
"If the case had been entirely in the U.S., Mayfield would still be in jail," Cole says. "All the proper procedures would have been followed and verified, and an innocent man would be facing the death penalty."
The FBI has convened an international panel of experts to study and report on what went wrong in the Mayfield case, but has remained silent since issuing an apology.
"I don't understand what happened with that case - we are all waiting to hear," Homer says. "This case has left the fingerprint community scratching our collective heads."
Cole believes the problem can be explained this way: Fingerprint examiners, even top ones, can err when the pressure is great and the partial fingerprints are spotty, as they were in the Madrid case. Yet their findings are viewed as so persuasive and so overwhelming that even other fingerprint examiners are psychologically affected and tend to verify a declared match when they know other examiners they trust has found one.
On the other hand, Cole says, once doubts were raised by the Spanish authorities, other experts, went online, took a look at the Mayfield prints, decided they obviously did not match, and then expressed bewilderment that there had been any suspicion of Mayfield to begin with.
Surprisingly, Cole, Wertheim and Homer agree on more than they realize. All three say national standards and better training are crucial to curtail erroneous fingerprint matches - and are common in other countries. All say they would like to see more scientific studies, and all say there has been almost no funding available to conduct such inquiries.
Where they part company is what to do about it. Fingerprint examiners say they have to be allowed to continue testifying about absolute matches, and they feel the courts have ratified their position time and again. Research by forensic experts to answer Cole'sand others' criticisms is under way now, but it is hampered by a lack of research money, the examiners say.
Cole says a growing sentiment among scientists suggests fingerprint evidence should be viewed far more skeptically, and that it should be reined in if not blocked until proper studies are conducted. As with DNA evidence, court-imposed restrictions would quickly drive improvements, Cole says.
A comprehensive study of error rates would probably show a small but currently undetected number of mistaken matches are made each year.
But if that means one false imprisonment - or one wrongful death sentence - each year or every two years or even once every decade, the system needs to correct it, Cole says.
But it won't come easy, he adds - the war will continue for the foreseeable future.
"No judge wants to say that we admitted fingerprint matches for a hundred years without any scientific evidence to back it up," Cole says. "The egg on the face of the whole legal system would just be too great."
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© 2004, The Orange County Register (Santa Ana, Calif.).
http://www.montereyherald.com/mld/montereyherald/news/nation/10026701.htm
