Exclusion of prints could stir legal tests

Prosecutors lament potential impact of barring of evidence

Sun follow-up

October 24, 2007|By JENNIFER MCMENAMIN | JENNIFER MCMENAMIN,SUN REPORTER

As stunned Baltimore County prosecutors scrambled yesterday to salvage a murder case eviscerated by a judge's decision to exclude fingerprint evidence, the defense attorney who led the challenge predicted a flood of similar legal tests in other cases.

Patrick Kent, chief of the state public defender's forensics division, said the questions raised about the reliability of fingerprinting extend to other types of scientific evidence that have gone unchallenged by defense attorneys, prosecutors and judges.

"This is the beginning of the scrutiny," he said, speaking publicly for the first time about the judge's ruling. He added, "These issues will not go away. We will litigate these issues, because there are too many `forensic sciences' that have never been scrutinized and that lack a sufficient scientific basis."

Prosecutors, defense attorneys and law enforcement officials continued yesterday to assess the implications of Baltimore County Circuit Judge Susan M. Souder's ruling, which was described by national experts as unprecedented.

The state's top federal prosecutor expressed concern that the decision could swamp the federal court system with cases that otherwise would have been heard in state court.

A legal expert predicted that the ruling could prompt defense attorneys across the state to routinely challenge fingerprint evidence that had regularly been offered at trial without objection.

In addition, Baltimore County's top prosecutor said that the unexpected, last-minute ruling forced his office to ask that the trial be postponed in the case of Bryan Keith Rose.

The 23-year-old Baltimore man faces a possible death sentence if convicted in the fatal shooting of Warren T. Fleming, a Security Square Mall merchant who was killed in January 2006 during what police describe as an attempted carjacking at the shopping center.

"We intend to explore every avenue and look at every option to make sure that some kind of justice can happen for the Fleming family," Baltimore County State's Attorney Scott D. Shellenberger said.

Over the objections of Rose's defense lawyers, the request to postpone the murder trial was granted.

Judge John G. Turnbull II, the administrative judge of the county's Circuit Court bench, said he agreed to postpone the trial because Souder's ruling was issued late Friday afternoon - just four days before prosecutors and defense attorneys had been scheduled to begin picking a jury to hear the case against Rose.

Prosecutor Jason League told the administrative judge that Souder's decision "quite frankly stunned our office."

"This ruling virtually overturns 100 years of jurisprudence with respect to the admissibility of latent fingerprint evidence," he said in court.

League also told the administrative judge that prosecutors intend to file a motion asking Souder to reconsider her order and that police are trying find an uncooperative witness with whom the defendant allegedly discussed the killing but who has since disappeared.

Prosecutors had decided to go to trial without the witness. But League said they will need her to testify if they can't offer into evidence the partial fingerprints linked to the defendant that were taken from the Mercedes of the store owner who was killed and from the stolen Dodge Intrepid in which the shooter fled the mall parking lot.

While the legal challenge from Rose's attorneys did not attack the principle that no two people's fingerprints are exactly the same, the lawyers argued that the prints from two different fingers can be mistakenly judged as matching by a fingerprint examiner. That possibility, they noted, becomes even more likely when analysts are working with the partial, often-distorted and smudged latent fingerprints lifted from crime scenes.

In her 32-page decision, Souder characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible." The judge acknowledged the nearly-100-year history of fingerprinting as a crime-solving tool but concluded that such history "does not by itself support the decision to admit it."

Because Maryland law does not permit the prosecution or the defense to appeal judges' rulings on evidence that does not involve a defendant's constitutional rights, Souder's ruling cannot be appealed, lawyers in the case and legal experts said.

Maryland U.S. Attorney Rod J. Rosenstein said he found that to be "shocking."

"If fingerprint evidence cannot be used in murder cases in state courts in Maryland, my concern is that we're going to be overrun with these cases in federal court," he said.

Adding that the ability to use such evidence in criminal trials should be decided "on a system-wide basis," Rosenstein said, "It would be horrible to have a situation where evidence is admissible in some courtrooms but not in others. ... You really don't want a situation where whether a murderer gets away depends on what judge you happen to get."

Byron L. Warnken, a University of Baltimore School of Law professor, said he expects that the ruling will attract the attention of lawyers across the state.

"Every competent defense counsel in the state of Maryland in a case with fingerprint evidence is going to file a `me, too' motion," he said. "It doesn't have to be a death penalty case. It could be jaywalking."

Kent, the forensics division chief of the public defender's office, said the judge's decision will likely influence police departments, crime labs and criminal prosecutions well beyond Maryland's borders.

"It is a ruling that will reverberate throughout the country," he said. "And it should."

jennifer.mcmenamin@baltsun.com

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