Judge asked to revisit print ruling

Decision to bar evidence in death penalty case called `radical departure' from precedent

October 30, 2007|By Jennifer McMenamin | Jennifer McMenamin,Sun reporter

Likening the court ruling to barring testimony about X-rays because doctors sometimes misread them, Baltimore County prosecutors asked a Circuit Court judge yesterday to reconsider her precedent-shattering decision that fingerprint evidence is too unreliable to be offered in a death penalty trial.

Prosecutors said that the judge erred in tossing out the evidence and in her reliance on parts of the federal government's report on the misidentification of an Oregon lawyer through fingerprints that the FBI said linked him to the 2004 Madrid train bombings.

Noting that federal investigators attributed the misidentification in that case to mistakes made in the fingerprint examination process, prosecutors wrote, "Countless doctors have misread X-rays, yet these errors would never be seen as a reason to prevent doctors from testifying about broken bones in court."

The legal filing came 10 days after Judge Susan M. Souder ruled that prosecutors could not offer at trial fingerprints that they say links a 23-year-old Baltimore man to the fatal shooting of a Security Square Mall merchant last year.

Scrambling to salvage the murder case against Bryan Keith Rose, prosecutors successfully sought to have the death penalty trial - scheduled to begin last week - postponed. With a new trial date in April, they filed a request asking Souder to reconsider.

They characterized the decision as a "stunning and radical departure" from not only 100 years of legal precedent but also many recent decisions in state and federal appeals courts.

"In short," prosecutors Jason G. League and Lisa F. Dever wrote, "this court stands alone in American jurisprudence in ruling that fingerprint identification evidence is not reliable enough to be admitted" in court during a trial.

Attorneys for Rose said yesterday that prosecutors have inaccurately represented the testimony and legal arguments offered during hearings on the issue.

"There simply is no acceptance of fingerprint evidence by the scientific community," said Patrick Kent, chief of the Maryland public defender's forensics division and the attorney who led Rose's challenge. "In fact, it is the absolute lack of even the most basic and rudimentary research that mandates the exclusion of fingerprints."

In her decision, Souder characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible." She acknowledged the 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."

Prosecutors countered yesterday that the legal test requires only that the judge determine whether such evidence is generally accepted in the scientific community.

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

In an interview yesterday evening, Baltimore County State's Attorney Scott D. Shellenberger said that jurors hearing a trial - rather than judges acting as gatekeepers - should determine whether such forensic evidence is reliable.

"It doesn't have to be 100 percent accurate to come in the courtroom," he said. "If everything had to be 100 percent accurate, we'd have to close the courthouse doors tomorrow."

jennifer.mcmenamin@ baltsun.com

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