West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In May 2004, the Federal Bureau of Investigation (FBI) arrested Brandon Mayfield, a lawyer, as a material witness in an investigation of terrorist attacks on commuter trains in Madrid, Spain.  The FBI Laboratory maintained that Mayfield's fingerprint was found on a bag of detonators in Madrid that was connected to the attacks.  Two weeks after Mayfield was arrested, the Spanish National Police advised the FBI that it had identified another individual named Ouhnane Daoud as the source of the fingerprint.  After the FBI examined Daoud's fingerprints, it realized that it had made a mistake and released Mayfield from custody.

         Following this misidentification of Mayfield, the Office of the Inspector General (OIG) investigated the causes of the misidentification and issued its written conclusions.  The OIG identified the following six primary causes of error:

          1.  Although Mayfield and Daoud did not have identical fingerprints, they did, nevertheless, have very similar-looking prints;

          2.  After the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators, "the FBI examiners began to 'find' additional features in [the fingerprint on the bag] that were not really there, but rather were suggested to the examiners by features in the Mayfield prints.  As a result of this process, murky or ambiguous details in [the fingerprint on the bag] were erroneously identified as points of similarity with Mayfield's prints."

          3.  The FBI fingerprint examiners "apparently misinterpreted distortions in [the fingerprint on the bag] as real features corresponding to [extremely tiny details] seen in Mayfield's known fingerprints."  Thus, whereas error #1 had to do with comparatively large fingerprint details, error #3 had to do with extremely tiny details.

          4.  FBI fingerprint examiners are taught to adhere to the "one discrepancy rule" according to which "a single difference in appearance between [an unknown] print and a known fingerprint must preclude an identification unless the examiner has a valid explanation for the difference."  In Mayfield's case, the examiners failed to adhere to this rule when they accepted an "extraordinary set of coincidences" and "cumulatively required too many rationalizations to support an identification with the requisite certainty."

          5.  As noted in error #2 above, the FBI found as many as 10 points of unusual similarity between Mayfield's fingerprint and the fingerprint located on the bag of detonators.   "However, the limited clarity of [the fingerprint on the bag] prevented the examiners from making an accurate determination of the type of many of these points (that is, whether they were ending ridges or bifurcations)."

          6.  Although the Spanish National Police advised the FBI on April 13, 2004 that the fingerprint on the bag of detonators did not match Mayfield's prints, the FBI nevertheless arrested Mayfield more than three weeks later on May 6, 2004.  In what is certainly an understatement, the OIG concluded that "the FBI Laboratory's overconfidence in the skill and superiority of its examiners prevented it from taking the [April 13 report] as seriously as it should have."  According to the OIG, what the FBI should have done was:

• Determine precisely why the Spanish National Police examiners believed that Mayfield's fingerprints did not match the print on the bag before arresting him; and

• Have a new FBI examiner examine the fingerprint on the bag in order to verify whether or not it was Mayfield's.

           In reviewing the OIG's report, the two things that stand out to me the most are:

• The fact that the six errors discussed in this article were committed by not just one person but by four people including:  a fingerprint examiner with the FBI Latent Print Unit, a second FBI Latent Print Unit examiner, a Unit Chief in the FBI Latent Print Unit, and an independent expert appointed by the judge to review the FBI's fingerprint identification.

• The fact that the FBI arrested Mayfield, searched his home and office, and took items from those two locations three weeks after being told by the Spanish National Police that Mayfield's fingerprints did not match the print on the bag of detonators.

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          The following article appeared in the New York Times earlier this week:

          In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

          Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.

          The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

          Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

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The television show "60 Minutes" recently presented a very interesting segment on eyewitness testimony and false memory.  Contained in this article are three video segments and a PDF printed version of the story's text.

Eyewitness Testimony, Part 1:

Watch CBS Videos Online

Eyewitness Testimony, Part 2:

Watch CBS Videos Online

Exclusive, The Bunny Effect:

Watch CBS Videos Online

Here is a PDF capture of of the story's text.

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The following story appears in the Palm Beach Post newspaper.  Although it originates in South Florida, the story could happen anywhere.

DNA TESTING ON TRIAL

By Susan Spencer-Wendel

Palm Beach Post Staff Writer

Sunday, December 23, 2007

WEST PALM BEACH — Exonerations using DNA evidence have topped 200 cases now, corroding confidence in the American criminal justice system.

Men and women imprisoned for crimes they did not commit, many of those sexual batteries. He-said-she-said cases debunked by science decades later.

Some men exonerated when they were set to be executed. Most men released from prison with a bag of belongings, some robbed of half their lives.

For every person who walks out the steel door comes a wave of prisoners insisting they, too, have DNA evidence that they want tested - post-conviction claims, they are called.

It's a trend so disturbing, Florida legislators recently passed a law requiring that all criminal defendants taking plea deals be asked beforehand if there exists any biological evidence that may exonerate them. It's the state's way of heading off a defendant's post-conviction claim before he even utters "guilty."

It's a way to spare the courts more cases and victims more agony.

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Just this last week, still another story appeared in the news about a man who was a victim of mistaken identification.  That mistake resulted in his being wrongfully incarcerated in a Florida prison for almost 14 years.  The story appeared in the Sun-Sentinel on October 29, 2007 and is reprinted here in its entirety:

When a bad ID by an eyewitness can land an innocent man in prison for almost 14 years, it's time to kick-start change, says Broward Public Defender Howard Finkelstein.

Trying to remove bias from what he says can be misleading police-lineup procedures, Finkelstein sent a letter last week to Broward law enforcement officials suggesting reforms. This action brings Broward in line with a growing national movement to prevent mistaken witness identification.

The DNA exoneration last month of Larry Bostic, 50, of Fort Lauderdale, prompted Finkelstein's Oct. 23 letter.

A Broward judge tossed Bostic's prison sentence -- 13 days shy of its completion -- after DNA tests showed he was not the man who raped a Fort Lauderdale woman in 1988.

Bostic's accuser recently told an investigator she never saw her rapist. She picked Bostic out of a photo lineup, she said, because she had seen him in the neighborhood in the days before the attack.

Simple extra precautions could keep this from happening again, Finkelstein said.

"These procedures will impact the human cost of misidentification," he said. "This isn't about pointing the finger at law enforcement. This is about making sure the methodology and the systems we employ are designed so innocent people don't get ensnared in our system."

Bostic is the 208th person nationwide to be cleared of a wrongful conviction by DNA, according to the Innocence Project, a New York-based legal advocacy group. Mistaken identification is the common thread in 75 percent of those cases, the group said.

Most of Finkelstein's proposed changes spring from the work of Gary Wells, a psychology professor at Iowa State University who has studied the reliability of eyewitness identification for three decades.

One of the greatest fallacies about it is its reliability, Wells said. "It's highly persuasive," he said, "but it's more persuasive than it is reliable."

In Broward County, witnesses look at photo lineups in groups of six, often referred to as a six-pack. A suspect's mug shot is included with mugs of five other people who look similar.

Finkelstein is asking for witnesses to look at mug shots one at a time.

"When they're handed individual pictures, they're concentrating on the picture in front of them and the image that they have in their mind, as opposed to trying to compare and contrast ... and trying to decide who looks most like the person, in their mind," said Broward Assistant Public Defender H. Dohn Williams, who researched the topic with Finkelstein.

Finkelstein is also asking that witnesses be told, before viewing a lineup, that the suspect may not be included.

Otherwise, according to Wells, the expert, witnesses feel pressured to decide on one person and home in on the person who looks most like the perpetrator, rather than relying on true recognition. "I call that a relative judgment," he said. "Because what they're doing is deciding who looks most like the perpetrator relative to the other lineup members."

Broward Sheriff Al Lamberti and Fort Lauderdale Police Chief Bruce Roberts each received the letter and were reviewing it, their spokesmen said Friday.

"If we had concerns about the procedure, we would have changed the procedure," said Elliot Cohen, spokesman for the Broward Sheriff's Office. "But new ideas and new proposals are always worth looking at, and we'll take it in that spirit."

A year ago, the Broward State Attorney's Office initiated discussions with the Sheriff's Office about modifying its live lineup procedures.

Brian Cavanagh, supervising prosecutor in the homicide unit, advocates allowing witnesses to explain their certainty or uncertainty.

The current live lineup procedure is problematic, he said, because it's an "all-or-nothing" approach where witnesses must identify someone with certainty.

"Not everybody gets as clear a view as we would like them to get," he said. "Maybe they get a partial glimpse or a profile. Well, partial identification is better than none, especially in conjunction with other evidence. Life is not an all-or-nothing proposition."

Sixteen states considered legislation this year to prevent mistaken witness identification. Most recently, North Carolina lawmakers, in the wake of the Duke University lacrosse case, set procedures that law enforcement must follow when conducting a lineup.

Police there had used a flawed photo lineup to indict three players accused of sexually assaulting a woman at a team party in March 2006. They had included only Duke lacrosse players in the lineup they showed the alleged victim. In April, the North Carolina Attorney General's Office dropped all charges against the three players.

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