September 9, 2020 • 34 mins
Josh Dubin discusses Fingerprint Evidence with Mary Moriarty, Chief Public Defender of Hennepin County in Minnesota
Contrary to what pop culture has ingrained in the American conscience, matching known fingerprints of a suspect to prints left at the scene of a crime is not an exact science. It’s entirely subjective.
So how did fingerprints become so widely accepted and thought of as the gold standard, as fool proof evidence?
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It's Friday night. You hop in the shower, then put
on your favorite blue button down shirt. You look at
yourself in the mirror and hype yourself up a bit.
You're forty years old, but you've taken good care of
yourself over the years and still look pretty damn good.
You head out and when you get to the club,
(00:21):
you see your friend Alvin standing outside on the corner
waiting for you. You smile because Alvin is always a
good time. He might be the only person who can
keep up with you when you dance all night. You
both head inside and grab a drink, catch up a
little bit, and then hit the dance floor. The place
is all base and flashing lights. Neither one of you
(00:44):
stops moving until they turn off the music and the
DJ tells everyone it's closing time. Time to get out
of here. When you get outside the club, you say
goodbye to Alvin because you have to get up early
in the morning. You're not going to go back to
his place tonight. You give Alvin a call the next weekend,
but there's no answer. You don't think much of it
(01:05):
because Alvin sometimes just doesn't answer his phone. He's the
kind of guy that does his own thing. But then
a few days later, you get a call from another friend.
He tells you he passed by Alvin's house and there
were police officers surrounding it. They said that Alvin had
(01:26):
been murdered. You hang up in immediately head to the
police station. You want to help figure out who did this.
You meet with detectives and you find out that Alvin
was murdered on the night you went dancing with him,
but he wasn't discovered until nine days later. His landlord
(01:46):
found him on the floor of his apartment, and you
hear all this, and you're just immediately nauseous. If you
had stayed at his house that night, maybe you could
have protected him. You tell the police everything you can
remember out that night. You want to do anything you
can to help them find out who did this to
your friend. The police call you in four times over
(02:11):
the next two weeks as they investigate Alvin's murder. One day,
they tell you they're taking fingerprints of everyone who had
been around Alvin in the days preceding his death. They
tell you that by allowing them to take your prints,
it will help them figure out who committed the murder.
Part of you feels like you're in an episode of
some detective show when they pressed the tips of your
(02:33):
fingers and the palms of your hands on a cold
ink pad, then roll the tips of your fingers one
by one on a piece of paper. You've seen this
process what seems like hundreds of times before on TV
and in the movies, but you've never actually done it yourself.
You have no record. You've never been fingerprinted before. Not
(02:53):
long after that, the police call you into the station
one more time, but something has shifted. They bring you
into an interrogation room. The first thing they do is
show you a polaroid of Alvin's body. You immediately feel
fluid bubble into your esophagus, and you quickly scanned the
(03:16):
room for a garbage can. Your mind quickly computes, ship,
if I puke in front of these cops, they'll think
I did this. You managed to swallow the vomit, and
there's a sharp burn in your throat. Then they show
you another picture and Alvin is flat on his back.
There's blood everywhere, on his clothes, the carpet next to him.
(03:39):
You can't even see his face. Whoever did this put
Alvin's big white box fan over his head. And shoulders,
so you can't see the top portion of his body.
He used to make fun of Alvin for that fan.
You were always telling him just to invest in a
damn ac unit. Already, the whole thing seems so surreal.
And now the office sirs are pointing at the fan
(04:01):
in the picture and they say, you see those bloody
smudges on the fan, Those are fingerprints, and the prints
we took from you the other day. We've collected over
a dozen fingerprints of people who were in Alvin's apartment
before he was murdered, and only yours matched the prints
on that fan. There were no signs of break in
(04:22):
at his apartment, but you didn't have to break in,
did you. Alvin let you in after your night out together.
Then you got in an argument with him. You got
jealous that he was dancing with other men, and you
stabbed him to death, didn't you. You stare at the
officer and disbelieve. No. You say, what are you talking about?
Why would I come here willingly to help you guys
(04:44):
out if I had anything to do with this. They
don't listen to a word you say. They put handcuffs
on you and put you in custody at your trial,
the execution calls a fingerprint expert to the stand. He says,
before we're even born as fetuses in the womb, human
(05:08):
beings developed ridges on their fingers and hands. In addition
to those ridges, we have glands that secrete oils, so
that when we touch objects, the whorls, loops, and swirl
pattern of those ridges are left behind. Fingerprint analysis has
been around for over a hundred years, and we know
that each of our fingerprints are unique. The fingerprints were
(05:32):
covered from this crime scene were visible to the naked
eye because they were left as impressions in the victim's blood.
I analyze these prints and compared them to defining characteristics
of the defendants prints. The bloody prints found near the
victim's body clearly belonged to the defendant. I am certain
(05:54):
about this. The prosecution calls two more fingerprint experts to
the stand, and they all agree these are your prints.
But your attorney calls two witnesses to the stand, fingerprint
experts that claim it isn't even close. There's no way
these prints belong to you. The jury isn't phazed by
(06:15):
the conflicting opinions of the expert witnesses. They are convinced
by the impassioned story that the prosecutor laid out. They
convict you of first degree murder and abuse of a corpse.
Your sentenced to life without parole. They're shouting in the
courtroom as you're escorted out by cops with your hands
(06:36):
coughed tightly behind your back. You can't understand why this
is happening. What is going on? Those are not your fingerprints.
You feel totally and completely helpless, But lucky for you,
this isn't the end. The fingerprint experts that testified in
(06:56):
your defense called this conviction a gross miscarriage of justice.
They demand that the evidence be reevaluated. A panel of
experts to just that and find that the prosecution's evaluation
was clearly wrong. The prints at the crime scene clearly
do not match your fingerprints. One of the experts for
(07:17):
the prosecution admits he made a mistake. You're afforded a
new trial and you are found not guilty. But this
process takes two agonizing years, and after serving that amount
of time in prison for a crime you never committed,
the murder of your friend, you're released. The story you
(07:41):
just heard is based on the true story of Richard Jackson,
who was wrongfully convicted and sentenced to life without parole
for the murder of his friend Alvin Davis. While fingerprint
analysis has been proven to be purely subjective, it still
holds a firm place in the public imagination and therefore
(08:01):
endures minds as reliable science. I'm Josh Dubin, civil rights
and criminal defense attorney, an innocence ambassador to the Innocence
Project in New York. Today, on Wrongful Conviction Junk Science,
we examined fingerprint evidence. Contrary to what pop culture has
(08:22):
ingrained in the American conscience. Matching known prints of a
suspect the prince left at the scene of a crime
is not an exact science. It is entirely subjective up
to the eye of the examiner. So how did fingerprints
become so widely accepted and thought of as the gold
standard as full proof evidence. It turns out that the
(08:46):
first time fingerprints were admitted into evidence was almost a
hundred and ten years ago, and the methods used to
match prints to individuals hasn't changed much since. The Pacers
Foundation is a proud supporter of this episode and of
the Last Mile organization which provides business and tech training
(09:09):
to help incarcerated individuals successfully and permanently re enter the workforce.
The Pacers Foundation is committed to improving the lives of
Hoosiers across Indiana, supporting organizations dedicated primarily to helping young
people and students. For more information on the work of
the Pacers Foundation or the Last Mile Program, visit Pacers
(09:29):
Foundation dot org or the Last Mile dot org. As
Clarence Hiller painted the railing outside his home in the
early evening of September eighteenth, nineteen, he couldn't stop looking
over his shoulder. It seemed like the entire South Side
(09:50):
of Chicago was on edge. There had been a number
of robberies in the area, and everyone was worried that
they could be the next victim, and so in the
middle of that night, when Clarence heard the screams of
his wife and daughter, he was prepared to launch into action.
He confronted the stranger in his house, and as Clarence
tried to force the man out, both the robber and
(10:12):
Clarence fell down the stairs. Three shots were fired, the
intruder fled in. His neighbors came outside and their slippers
and rows to see what had happened. They found Clarence
bleeding just outside his front door with his daughter standing
over him. The police were called and a suspect, Thomas Jennings,
was found just eight blocks away. His coat was torn
(10:35):
and bloody and he was carrying a revolver. Thomas Jennings
was ultimately convicted, but this wasn't the only evidence used
in his prosecution. When Thomas Jennings climbed into the Hiller's
home that night, he grabbed onto the railing that Clarence
was painting the night before, leaving a fingerprint behind in
a semi wet coat of paint. The prosecution cut off
(10:56):
the piece of the rail with the fingerprint that Jennings
left behind. At his murder trial, jennings defense attorney argued
that this new forensic method of lifting and comparing fingerprints
couldn't be trusted. There were no tests that could prove
that it was reliable. But then the prosecutor got in
front of the jury and pressed his finger onto a
piece of paper. He then demonstrated how he was able
(11:19):
to lift his own print off of it. By proving
that he could collect the evidence, he was able to
convince the jury that it was also possible to accurately
analyze and match it to a suspect. The judge ruled
that fingerprint testimony was admissible, and Jennings was convicted. The
precedent of admitting fingerprints has been upheld again and again,
(11:41):
despite the fact that numerous men and women have been
falsely identified through fingerprint evidence. For example, on March eleventh,
two thousand and four, there were a series of explosions
in Madrid during rush hour. Ten bombs went off, all
within two minutes of each other. A hundred and ninety
three people died in almost two thousand were injured. Upon investigations,
(12:03):
Spanish authorities found a fingerprint on one of the plastic
bags that contained a detonator. They photographed it, then reached
out the countries around the world to help find the
culprits of the attack. The U S authorities ran the
print through a database of fingerprints. Twenty possible matches appeared.
One of them was Brandon Mayfield, but Brandon Mayfield hadn't
(12:24):
left the country in ten years. He didn't even have
a valid passport. FBI analysts had no idea how Mayfield
would have been able to fly to Spain and back
completely undetected, and yet they pursued him as a suspect.
It turns out that Brandon had converted to Islam after
marrying his Egyptian wife, and so American authorities must have
(12:45):
seen him as a convenient suspect just a few years
after nine eleven. In fact, despite evidence that showed that
it was extremely unlikely that Brandon had left the prints
on that bag, three different FBI agents testified that the
prince found in Spain matched Mayfields. They said that it
matched with one certainty. They arrested Mayfield, and while he
(13:07):
sat in jail, the FBI tried to convince the Spanish
authorities that these prints were Mayfields, but the Spanish police
didn't see what the FBI saw. The prince didn't seem
to match at all from their perspective, a far cry
from a match with a certainty. They said that when
they compared Mayfield's prints to the ones on the bag,
it was quote conclusively negative. They eventually did find a
(13:33):
match for the fingerprints and apprehended the man who left
them behind during the attack. The FBI admitted that they
made a mistake in pursuing Mayfield and let him walk free.
Mayfield is now probably the best known case of mistaken fingerprints,
but he certainly isn't the only one. And we probably
(13:55):
can guess if the Spanish police hadn't been involved, or
if they didn't have d n A. If you can
imagine this case in the United States, Mr Mayfield would
have been convicted. How would his defense lawyer have attacked
three FBI agents with all of this experience, who claimed
with a certainty that this print belonged to Mr Mayfield.
(14:15):
But here's the point here. You could assume that three
fingerprint examiners with decades of experience who were certified, followed
the process and they were all wrong. Joining us today
is Mary Moriarty, the chief public Defender of Hennepin County
in Minnesota, and I'm really excited to have her as
(14:38):
a guest. She is a staunch defender of the rights
of the accused and an outspoken wanted that and we
need more public defenders like that in our country. She
has worked to challenge the admission of fingerprints. So, Mary,
tell us a little bit about how you first became
interested in fingerprints. So it goes back to when I
(15:00):
as a child. Actually, if you noticed my last name
is Moriarty, and I had a particular interest in Sherlock Holmes,
and I got for Christmas one year the Hardy Boys
book that talked about how to collect evidence, and one
of the things they had in there was a recipe
for fingerprint powder, and so I would go take my
(15:23):
parents glasses, wine glasses, that kind of thing, and I
would dust them for prints. I would put tape over
it and I would lift the print. But I never
really thought, well, what do you do after that? It
was just an interesting exercise in taking items that I
knew my parents had touched and actually trying to lift
the prints from them. Well, I think I was like
(15:45):
screwing around with a Rubik's cube and playing with g
I Joe figure. So this makes me a little bit
insecure about what I was doing as a kid, But
it certainly sounds like you were headed towards a career
involving forensics and the law. For a while. My father
was actually a public defender, and some of my dad's
clients were actually my classmates, and I I got to
(16:08):
know them as individuals. There's an attempt to other rise
people who become public defender clients and and you know,
the age old question that public defenders get asked is
how can you represent those people? And it's very easy
because those people are our brothers, our dads, are sisters,
are cousins. And you look at what those clients have
(16:31):
been through, and so many of them have a history
of trauma, you can understand why they find themselves in
these particular situations. And I think growing up my parents
fostered a really strong sense of justice in my life
in in in every situation, they would sit me down
and say, you know what, what is the right thing
(16:51):
to do here? So fast forward when I went to
law school. Once I finally made that decision, I knew
that there was only one thing that I wanted to
be and that was a public defender. I wanted to
be in a courtroom representing the same people that I
got to know through my father's practice. All Right, so
(17:20):
you became an attorney and got a chance to write
some of the wrongs that you solved the system. But
what were your thoughts about fingerprints when you first started out?
I have to acknowledge. So I've been a public defender
for thirty years, and I certainly had fingerprint cases and
I also accepted without questioning that they were based on
(17:40):
science and that an expert could actually testify that a
single finger made this print from the crime scene. And
fingerprints have been accepted as evidence in courts for over
one years, and people assume that it's reliable. So this
is something that always fascinated me. I don't even know
(18:03):
when it was that I began to believe this, but
even I had come to the belief that fingerprints were
sort of the gold standard, and that seems to be
sort of a consistent, you know, collective thought in the
American psyche that fingerprints are regarded as being just really reliable.
Why do you think that is? They're in popular culture.
(18:24):
We've all grown up being given a certain perspective on
what fingerprints are. When I started getting an interest in fingerprints,
I would say to people outside the legal system, my friends,
I would say, you know, when you think about how
a fingerprint from a crime scene is compared to the
known print of somebody, what does that look like in
(18:44):
your mind? And they will always say, well, I envision
the crime scene print on a screen right next to
the known fingerprint, and then I see a computer merging them,
and bells going off, going ding ding ding. It matches,
and that makes sense. It makes sense that people would
think that. When I tell people that that's not at
(19:05):
all what happens, they are shocked. Lay people here that
there are these databases and they tend to think that
everybody's fingerprints are in it. And so I think what
people believe is that, Okay, you get a fingerprint off
a gun and you put it in a database and
the computer comes up with the match and that's it.
(19:26):
So that's not true at all. So of course we're
we're all entrenched in popular culture. We've been told for many,
many years fingerprints are fantastic. And you know, why would
anybody um take the time to actually look to see
what they do? So tell us a little bit about
what they actually do. Practically speaking, how does it actually work?
(19:49):
What a fingerprint examiners look at. The way fingerprint examiners
actually look at fingerprints is through what they call a
methodology called ace V. So it's a C E slash
V which is analysis, comparison, evaluation and verification. So here's
(20:11):
a description of what they actually do. Let's say a
person is shot with a gun. They will lift and
by lift I mean they'll look for a fingerprint on
that gun, and then they will try to remove that
fingerprint so that they can compare it. So the a
part is analysis. They are supposed to look at that
(20:34):
fingerprint to see whether there is enough detail in it
to go any further. People have seen these pictures of
somebody rolling their finger over a pad of ink, and
that's how you get the print. That's not what happens.
When people touch objects. You get a fragment, and sometimes
(20:54):
it's smeared, and sometimes there's dust on it, sometimes there's oil,
there's there are a lot of different fact and so
here's the deal. It's not that you're comparing a fully
rolled fingerprint to a fully rolled fingerprint. You are first
looking at a fragment of the print, and it is
totally within the subjectivity, the subjective discretion of a fingerprint
(21:16):
analysis or examiner to decide whether there is enough information
on that print to even go ahead and compare it.
So just think about that, right, That's kind of scary
because it's up to the judgment call of one analyst
on that particular day, and I'm quite sure that another
(21:37):
analyst looking at the same portion of a print might
come up with the opposite conclusion. So it turns out
that the A in a c V, the very first
step um is problematic and pretty flawed. So the next
letter is the C for comparison, where you're taking a
print left at a crime scene and comparing it to
(21:58):
a suspect's print. So tell us a little bit about
what that process entails, Mary, So once you make the
decision to go forward, then you are onto the sea
or comparison, and you're comparing the fully rolled print to
the fragment of a print. So, Josh, you might look
and compare those two fingerprints and say, you know, I
(22:22):
see enough here. I see twelve points of comparison. That's
enough for me to say that this is the same person.
I might look at it and say, oh, I see
five points of comparison. I think that's enough to declare
that it's a match. So once again, it is completely subjective, right,
(22:44):
and and saying, well, sometimes we think ten points that
look the same between a rolled print and a fragment
of a print are enough similarities to declare match, and
sometimes we think five is enough. And that just doesn't
seem scientific, seemed very reliable, And so Mary, something we've
been addressing a lot on this podcast is the two
(23:07):
thousand nine n a S Report. Tell us a little
bit about what the n AS report said about fingerprints.
The National Academy of Science is the most prestigious scientific
body in the United States and they advise Congress on
issues of science, medicine, pretty much anything you can think
(23:29):
of when it comes to sciences, and the National Academy
of Science was asked to examine the comparative forensic sciences.
It was a groundbreaking report and it was very in depth.
They took testimony, they solicited research, and it rocked the
forensic science community. One of the things that you realize
(23:52):
when you look at the report, if you are a scientist,
you know that there are certain tenets of science, like
you have to be able to replicate the process. When
a scientist does an experiment, they document what they do.
And the National Academy of Science was very clear that
fingerprint examiners, as well as any other comparative forensic examiners,
(24:14):
do not provide documentation. And I found this to be true.
You would order, you would ask for a fingerprint examiner's file,
and you wouldn't really see many notes. You wouldn't know
what they were actually looking at. You might have a
picture of a fingerprint with some circles on it, but
you wouldn't know what they were looking at, so you
there was no way to replicate the process that they
(24:37):
actually used. There was no basis for saying that it
came from the same source. And most of the people
who did fingerprints um and probably still do in some places,
are not scientists. They are not recruited because of their
scientific background. They are often police officers who were apprenticed
into this position because the police officer who examined the
(24:58):
print was going to retire. And then there's the evaluation
where you're actually making the decision about whether this comes
from the same source, and there's a lot of controversy there.
Fingerprint examiners used to come in and say that they
had certainty, they were a certain that this print from
(25:20):
the crime scene came from this particular client, and there
was no basis for that. In fact, that's not even
allowed anymore. And why is there no basis for it?
You would have to have population statistics, right, I mean,
that's what DNA has, That's why they come up with
these numbers. It's one in a million that it came
from this person. There are no population statistics regarding fingerprints. Okay,
(25:56):
so we're seeing that there are a lot of flaws
with both analyzing and comparing prints, the A and the
C and ACE that neither of these steps are actually
rooted in the scientific methods. And now we're onto E, right,
A C E. So the E is evaluation where they
decide if it's a match or not. And so it
seems that if analyzing and comparing the brinds aren't scientifically
(26:19):
proven to work, the evaluation of those prints and deciding
whether or not it's a match can't be done to
any degree of certainty either. That just seems like common sense.
So this is purely subjective. Um. But there's one last
letter in these steps that examiners follow, and that's the
V for verification. Right, it's ACE V. And I'm already
(26:42):
skeptical because the first three steps of the process are flawed,
So how could the results be verified? Imagine this, A
fingerprint examiner would decide that this fragment of a print
came from this particular person, and then they would hand
it off to another fingerprint examiner for verification. But the
issue was it was never blind. So, Josh, let's say
(27:05):
you and I were fingerprint examiners in the same office,
and I would make a decision about a print, and
then I would ask you to verify what I had done.
And the problem with that is you already knew what
I had done. It wasn't blind. In science, they do
blind verifications, so that the person who's actually attempting to
(27:26):
verify or replicate what the first person did it doesn't
know what the result was actually, So the fact that
the verification wasn't blind led to what people call confirmation bias,
which is a huge problem. Alright. So once the n
AS basically said that the ace V process is really
(27:46):
a recipe for wrongful convictions, this should have been an
explosion in the criminal justice system in the courts, and
it just wasn't. And that's, I guess, a different issue altogether.
We have to keep pushing in that are But you
are still trying to push and challenge the admissibility of
fingerprints in the criminal justice system, and I have to
(28:08):
tell you, it just seems like it must be so difficult, Mary,
because this is not like any kind of scientific analysis.
But it just feels to me that everyone believes fingerprint
evidence works. Um, it's so ingrained in pop culture and
and just like the intrinsic belief that people have that
(28:30):
we've grown up with. So tell me, what are some
of the problems you've run into when trying to call
in question this so called science when you're in court
litigating this. You're absolutely right, that is one of the
things you hear from prosecutors and you hear from judges.
Of course, this is reliable. It's been coming into court
(28:51):
for decades and decades, and nobody has ever challenged it before.
So that is a big hurdle to get over, much
more so than other things like bite marks, blood spatter
and that sort of thing. The court system always lags
behind science, and it was an uphill climb to convince
judges and prosecutors that there were problems with fingerprints, or
(29:15):
if you could convince them that there were problems, you
certainly couldn't convince them that they should exclude that evidence.
In fact, judges and I heard this quite a bit,
it's like, well, you know, let's just let the jury decide.
But then you get back to the problem of jurors
thinking that fingerprints are you know, they've been with us forever.
They're embedded in popular culture, and you have to get
(29:37):
over all of that history to convince jurors that there
are indeed issues. Essentially, the presumption is that prints are
are infallible. In a case where your client is supposed
to be presumed innocent and the prosecution or the government
has to prove their case beyond a reasonable doubt, a
significant piece of evidence is presumed to be infallible, and
(30:00):
you have a lot of work to do to try
to educate them that that's not the case, right, Because
it turns out the judges are really no different than jurors.
I mean, in some instances they're more sophisticated, not always, um,
they certainly have less time and frankly sometimes less patients,
and but they're sort of not immune to, you know,
(30:22):
the impact of pop culture and precedent. But look, some
people may be listening to this and thinking, I don't
have a law degree, but I want to help I
want to do something about this. So do you have
any ideas for what our listeners can do to help
I do? And I wanted to go back, just for
a moment um to talk about precedent because where I
(30:43):
went in my mind, are are courts saying that actual
innocence of a client on death row doesn't matter because
procedure was followed. So that should alert your listeners. How um,
how much courts adhere to press it and are deferential
to previous findings to the point where they would authorize
(31:07):
that somebody received the death penalty because the process was followed.
Anyone in the public wants the law enforcement, the system
to get things right. And the only way we can
get things right is if we understand the limitations of
these forensic sciences. So people can be writing letters, calling
(31:27):
their prosecutors, their policymakers, county commissioners, city council members. What
are you doing to make sure that police officers um
that crime lab examiners understand this information? And that would
be really helpful because people really do listen more to
constituents and people in the public than they do potentially
(31:50):
defense lawyers. You know, I've said this before, and I
really do think it bears repeating. Pressure breaks pipes. What
you all can do, as listeners of this podcast is
take action. You're on here because you want to learn something,
but you also want to do something about it. The
(32:11):
way that we stop this junk signs from making it
into our courts is to shine a bright light on it.
Google the n a S Report that we've continually talked
about during this season. That report details how so many
of these disciplines of forensic science, including fingerprints, are really problematic.
(32:32):
The problem is judges don't know about it. Find out
who your local criminal court judges are and send them
the n AS Report. Highlight the section on fingerprint analysis
and send to your local criminal court judges. It's only
by educating our judges and speaking truth to power that
we can really make change happen. And if you don't
(32:54):
think that your voice matters, just take a look around
the country right now. It's the collect the voice that
is causing change to happen, and we can do it
one step at a time in our criminal justice system.
(33:15):
Thank you for listening to wrongful conviction junk Science. We're
gonna be taking a little break, but our next episode
will be out on October seven. In the meantime, we
will be keeping a critical and close eye on our
criminal justice system. We would love to hear how you're
doing that along with us, so please leave us a
comment and let us know what you've been up to
(33:36):
and stay on the Wrongful Conviction podcast feed as Jason
Flam will continue to release episodes between now and October seven.
Wrongful Conviction Junk Science is a production of Lava for
Good Podcasts in association with Signal Company Number One. Thanks
to our executive producer Jason Flom and the team, it's
(33:57):
Signal Company number One executive user Kevin Wardas and senior
producers Kara Cornaber and Brit Spangler. Our music was composed
by j Ralph. You can follow me on Instagram at
dubin dot Josh. Follow the Wrongful Conviction podcast on Facebook
and on Instagram at Wrongful Conviction and on Twitter at
(34:17):
wrong Conviction
It's Friday night. You hop in the shower, then put
on your favorite blue button down shirt. You look at
yourself in the mirror and hype yourself up a bit.
You're forty years old, but you've taken good care of
yourself over the years and still look pretty damn good.
You head out and when you get to the club,
(00:21):
you see your friend Alvin standing outside on the corner
waiting for you. You smile because Alvin is always a
good time. He might be the only person who can
keep up with you when you dance all night. You
both head inside and grab a drink, catch up a
little bit, and then hit the dance floor. The place
is all base and flashing lights. Neither one of you
(00:44):
stops moving until they turn off the music and the
DJ tells everyone it's closing time. Time to get out
of here. When you get outside the club, you say
goodbye to Alvin because you have to get up early
in the morning. You're not going to go back to
his place tonight. You give Alvin a call the next weekend,
but there's no answer. You don't think much of it
(01:05):
because Alvin sometimes just doesn't answer his phone. He's the
kind of guy that does his own thing. But then
a few days later, you get a call from another friend.
He tells you he passed by Alvin's house and there
were police officers surrounding it. They said that Alvin had
(01:26):
been murdered. You hang up in immediately head to the
police station. You want to help figure out who did this.
You meet with detectives and you find out that Alvin
was murdered on the night you went dancing with him,
but he wasn't discovered until nine days later. His landlord
(01:46):
found him on the floor of his apartment, and you
hear all this, and you're just immediately nauseous. If you
had stayed at his house that night, maybe you could
have protected him. You tell the police everything you can
remember out that night. You want to do anything you
can to help them find out who did this to
your friend. The police call you in four times over
(02:11):
the next two weeks as they investigate Alvin's murder. One day,
they tell you they're taking fingerprints of everyone who had
been around Alvin in the days preceding his death. They
tell you that by allowing them to take your prints,
it will help them figure out who committed the murder.
Part of you feels like you're in an episode of
some detective show when they pressed the tips of your
(02:33):
fingers and the palms of your hands on a cold
ink pad, then roll the tips of your fingers one
by one on a piece of paper. You've seen this
process what seems like hundreds of times before on TV
and in the movies, but you've never actually done it yourself.
You have no record. You've never been fingerprinted before. Not
(02:53):
long after that, the police call you into the station
one more time, but something has shifted. They bring you
into an interrogation room. The first thing they do is
show you a polaroid of Alvin's body. You immediately feel
fluid bubble into your esophagus, and you quickly scanned the
(03:16):
room for a garbage can. Your mind quickly computes, ship,
if I puke in front of these cops, they'll think
I did this. You managed to swallow the vomit, and
there's a sharp burn in your throat. Then they show
you another picture and Alvin is flat on his back.
There's blood everywhere, on his clothes, the carpet next to him.
(03:39):
You can't even see his face. Whoever did this put
Alvin's big white box fan over his head. And shoulders,
so you can't see the top portion of his body.
He used to make fun of Alvin for that fan.
You were always telling him just to invest in a
damn ac unit. Already, the whole thing seems so surreal.
And now the office sirs are pointing at the fan
(04:01):
in the picture and they say, you see those bloody
smudges on the fan, Those are fingerprints, and the prints
we took from you the other day. We've collected over
a dozen fingerprints of people who were in Alvin's apartment
before he was murdered, and only yours matched the prints
on that fan. There were no signs of break in
(04:22):
at his apartment, but you didn't have to break in,
did you. Alvin let you in after your night out together.
Then you got in an argument with him. You got
jealous that he was dancing with other men, and you
stabbed him to death, didn't you. You stare at the
officer and disbelieve. No. You say, what are you talking about?
Why would I come here willingly to help you guys
(04:44):
out if I had anything to do with this. They
don't listen to a word you say. They put handcuffs
on you and put you in custody at your trial,
the execution calls a fingerprint expert to the stand. He says,
before we're even born as fetuses in the womb, human
(05:08):
beings developed ridges on their fingers and hands. In addition
to those ridges, we have glands that secrete oils, so
that when we touch objects, the whorls, loops, and swirl
pattern of those ridges are left behind. Fingerprint analysis has
been around for over a hundred years, and we know
that each of our fingerprints are unique. The fingerprints were
(05:32):
covered from this crime scene were visible to the naked
eye because they were left as impressions in the victim's blood.
I analyze these prints and compared them to defining characteristics
of the defendants prints. The bloody prints found near the
victim's body clearly belonged to the defendant. I am certain
(05:54):
about this. The prosecution calls two more fingerprint experts to
the stand, and they all agree these are your prints.
But your attorney calls two witnesses to the stand, fingerprint
experts that claim it isn't even close. There's no way
these prints belong to you. The jury isn't phazed by
(06:15):
the conflicting opinions of the expert witnesses. They are convinced
by the impassioned story that the prosecutor laid out. They
convict you of first degree murder and abuse of a corpse.
Your sentenced to life without parole. They're shouting in the
courtroom as you're escorted out by cops with your hands
(06:36):
coughed tightly behind your back. You can't understand why this
is happening. What is going on? Those are not your fingerprints.
You feel totally and completely helpless, But lucky for you,
this isn't the end. The fingerprint experts that testified in
(06:56):
your defense called this conviction a gross miscarriage of justice.
They demand that the evidence be reevaluated. A panel of
experts to just that and find that the prosecution's evaluation
was clearly wrong. The prints at the crime scene clearly
do not match your fingerprints. One of the experts for
(07:17):
the prosecution admits he made a mistake. You're afforded a
new trial and you are found not guilty. But this
process takes two agonizing years, and after serving that amount
of time in prison for a crime you never committed,
the murder of your friend, you're released. The story you
(07:41):
just heard is based on the true story of Richard Jackson,
who was wrongfully convicted and sentenced to life without parole
for the murder of his friend Alvin Davis. While fingerprint
analysis has been proven to be purely subjective, it still
holds a firm place in the public imagination and therefore
(08:01):
endures minds as reliable science. I'm Josh Dubin, civil rights
and criminal defense attorney, an innocence ambassador to the Innocence
Project in New York. Today, on Wrongful Conviction Junk Science,
we examined fingerprint evidence. Contrary to what pop culture has
(08:22):
ingrained in the American conscience. Matching known prints of a
suspect the prince left at the scene of a crime
is not an exact science. It is entirely subjective up
to the eye of the examiner. So how did fingerprints
become so widely accepted and thought of as the gold
standard as full proof evidence. It turns out that the
(08:46):
first time fingerprints were admitted into evidence was almost a
hundred and ten years ago, and the methods used to
match prints to individuals hasn't changed much since. The Pacers
Foundation is a proud supporter of this episode and of
the Last Mile organization which provides business and tech training
(09:09):
to help incarcerated individuals successfully and permanently re enter the workforce.
The Pacers Foundation is committed to improving the lives of
Hoosiers across Indiana, supporting organizations dedicated primarily to helping young
people and students. For more information on the work of
the Pacers Foundation or the Last Mile Program, visit Pacers
(09:29):
Foundation dot org or the Last Mile dot org. As
Clarence Hiller painted the railing outside his home in the
early evening of September eighteenth, nineteen, he couldn't stop looking
over his shoulder. It seemed like the entire South Side
(09:50):
of Chicago was on edge. There had been a number
of robberies in the area, and everyone was worried that
they could be the next victim, and so in the
middle of that night, when Clarence heard the screams of
his wife and daughter, he was prepared to launch into action.
He confronted the stranger in his house, and as Clarence
tried to force the man out, both the robber and
(10:12):
Clarence fell down the stairs. Three shots were fired, the
intruder fled in. His neighbors came outside and their slippers
and rows to see what had happened. They found Clarence
bleeding just outside his front door with his daughter standing
over him. The police were called and a suspect, Thomas Jennings,
was found just eight blocks away. His coat was torn
(10:35):
and bloody and he was carrying a revolver. Thomas Jennings
was ultimately convicted, but this wasn't the only evidence used
in his prosecution. When Thomas Jennings climbed into the Hiller's
home that night, he grabbed onto the railing that Clarence
was painting the night before, leaving a fingerprint behind in
a semi wet coat of paint. The prosecution cut off
(10:56):
the piece of the rail with the fingerprint that Jennings
left behind. At his murder trial, jennings defense attorney argued
that this new forensic method of lifting and comparing fingerprints
couldn't be trusted. There were no tests that could prove
that it was reliable. But then the prosecutor got in
front of the jury and pressed his finger onto a
piece of paper. He then demonstrated how he was able
(11:19):
to lift his own print off of it. By proving
that he could collect the evidence, he was able to
convince the jury that it was also possible to accurately
analyze and match it to a suspect. The judge ruled
that fingerprint testimony was admissible, and Jennings was convicted. The
precedent of admitting fingerprints has been upheld again and again,
(11:41):
despite the fact that numerous men and women have been
falsely identified through fingerprint evidence. For example, on March eleventh,
two thousand and four, there were a series of explosions
in Madrid during rush hour. Ten bombs went off, all
within two minutes of each other. A hundred and ninety
three people died in almost two thousand were injured. Upon investigations,
(12:03):
Spanish authorities found a fingerprint on one of the plastic
bags that contained a detonator. They photographed it, then reached
out the countries around the world to help find the
culprits of the attack. The U S authorities ran the
print through a database of fingerprints. Twenty possible matches appeared.
One of them was Brandon Mayfield, but Brandon Mayfield hadn't
(12:24):
left the country in ten years. He didn't even have
a valid passport. FBI analysts had no idea how Mayfield
would have been able to fly to Spain and back
completely undetected, and yet they pursued him as a suspect.
It turns out that Brandon had converted to Islam after
marrying his Egyptian wife, and so American authorities must have
(12:45):
seen him as a convenient suspect just a few years
after nine eleven. In fact, despite evidence that showed that
it was extremely unlikely that Brandon had left the prints
on that bag, three different FBI agents testified that the
prince found in Spain matched Mayfields. They said that it
matched with one certainty. They arrested Mayfield, and while he
(13:07):
sat in jail, the FBI tried to convince the Spanish
authorities that these prints were Mayfields, but the Spanish police
didn't see what the FBI saw. The prince didn't seem
to match at all from their perspective, a far cry
from a match with a certainty. They said that when
they compared Mayfield's prints to the ones on the bag,
it was quote conclusively negative. They eventually did find a
(13:33):
match for the fingerprints and apprehended the man who left
them behind during the attack. The FBI admitted that they
made a mistake in pursuing Mayfield and let him walk free.
Mayfield is now probably the best known case of mistaken fingerprints,
but he certainly isn't the only one. And we probably
(13:55):
can guess if the Spanish police hadn't been involved, or
if they didn't have d n A. If you can
imagine this case in the United States, Mr Mayfield would
have been convicted. How would his defense lawyer have attacked
three FBI agents with all of this experience, who claimed
with a certainty that this print belonged to Mr Mayfield.
(14:15):
But here's the point here. You could assume that three
fingerprint examiners with decades of experience who were certified, followed
the process and they were all wrong. Joining us today
is Mary Moriarty, the chief public Defender of Hennepin County
in Minnesota, and I'm really excited to have her as
(14:38):
a guest. She is a staunch defender of the rights
of the accused and an outspoken wanted that and we
need more public defenders like that in our country. She
has worked to challenge the admission of fingerprints. So, Mary,
tell us a little bit about how you first became
interested in fingerprints. So it goes back to when I
(15:00):
as a child. Actually, if you noticed my last name
is Moriarty, and I had a particular interest in Sherlock Holmes,
and I got for Christmas one year the Hardy Boys
book that talked about how to collect evidence, and one
of the things they had in there was a recipe
for fingerprint powder, and so I would go take my
(15:23):
parents glasses, wine glasses, that kind of thing, and I
would dust them for prints. I would put tape over
it and I would lift the print. But I never
really thought, well, what do you do after that? It
was just an interesting exercise in taking items that I
knew my parents had touched and actually trying to lift
the prints from them. Well, I think I was like
(15:45):
screwing around with a Rubik's cube and playing with g
I Joe figure. So this makes me a little bit
insecure about what I was doing as a kid, But
it certainly sounds like you were headed towards a career
involving forensics and the law. For a while. My father
was actually a public defender, and some of my dad's
clients were actually my classmates, and I I got to
(16:08):
know them as individuals. There's an attempt to other rise
people who become public defender clients and and you know,
the age old question that public defenders get asked is
how can you represent those people? And it's very easy
because those people are our brothers, our dads, are sisters,
are cousins. And you look at what those clients have
(16:31):
been through, and so many of them have a history
of trauma, you can understand why they find themselves in
these particular situations. And I think growing up my parents
fostered a really strong sense of justice in my life
in in in every situation, they would sit me down
and say, you know what, what is the right thing
(16:51):
to do here? So fast forward when I went to
law school. Once I finally made that decision, I knew
that there was only one thing that I wanted to
be and that was a public defender. I wanted to
be in a courtroom representing the same people that I
got to know through my father's practice. All Right, so
(17:20):
you became an attorney and got a chance to write
some of the wrongs that you solved the system. But
what were your thoughts about fingerprints when you first started out?
I have to acknowledge. So I've been a public defender
for thirty years, and I certainly had fingerprint cases and
I also accepted without questioning that they were based on
(17:40):
science and that an expert could actually testify that a
single finger made this print from the crime scene. And
fingerprints have been accepted as evidence in courts for over
one years, and people assume that it's reliable. So this
is something that always fascinated me. I don't even know
(18:03):
when it was that I began to believe this, but
even I had come to the belief that fingerprints were
sort of the gold standard, and that seems to be
sort of a consistent, you know, collective thought in the
American psyche that fingerprints are regarded as being just really reliable.
Why do you think that is? They're in popular culture.
(18:24):
We've all grown up being given a certain perspective on
what fingerprints are. When I started getting an interest in fingerprints,
I would say to people outside the legal system, my friends,
I would say, you know, when you think about how
a fingerprint from a crime scene is compared to the
known print of somebody, what does that look like in
(18:44):
your mind? And they will always say, well, I envision
the crime scene print on a screen right next to
the known fingerprint, and then I see a computer merging them,
and bells going off, going ding ding ding. It matches,
and that makes sense. It makes sense that people would
think that. When I tell people that that's not at
(19:05):
all what happens, they are shocked. Lay people here that
there are these databases and they tend to think that
everybody's fingerprints are in it. And so I think what
people believe is that, Okay, you get a fingerprint off
a gun and you put it in a database and
the computer comes up with the match and that's it.
(19:26):
So that's not true at all. So of course we're
we're all entrenched in popular culture. We've been told for many,
many years fingerprints are fantastic. And you know, why would
anybody um take the time to actually look to see
what they do? So tell us a little bit about
what they actually do. Practically speaking, how does it actually work?
(19:49):
What a fingerprint examiners look at. The way fingerprint examiners
actually look at fingerprints is through what they call a
methodology called ace V. So it's a C E slash
V which is analysis, comparison, evaluation and verification. So here's
(20:11):
a description of what they actually do. Let's say a
person is shot with a gun. They will lift and
by lift I mean they'll look for a fingerprint on
that gun, and then they will try to remove that
fingerprint so that they can compare it. So the a
part is analysis. They are supposed to look at that
(20:34):
fingerprint to see whether there is enough detail in it
to go any further. People have seen these pictures of
somebody rolling their finger over a pad of ink, and
that's how you get the print. That's not what happens.
When people touch objects. You get a fragment, and sometimes
(20:54):
it's smeared, and sometimes there's dust on it, sometimes there's oil,
there's there are a lot of different fact and so
here's the deal. It's not that you're comparing a fully
rolled fingerprint to a fully rolled fingerprint. You are first
looking at a fragment of the print, and it is
totally within the subjectivity, the subjective discretion of a fingerprint
(21:16):
analysis or examiner to decide whether there is enough information
on that print to even go ahead and compare it.
So just think about that, right, That's kind of scary
because it's up to the judgment call of one analyst
on that particular day, and I'm quite sure that another
(21:37):
analyst looking at the same portion of a print might
come up with the opposite conclusion. So it turns out
that the A in a c V, the very first
step um is problematic and pretty flawed. So the next
letter is the C for comparison, where you're taking a
print left at a crime scene and comparing it to
(21:58):
a suspect's print. So tell us a little bit about
what that process entails, Mary, So once you make the
decision to go forward, then you are onto the sea
or comparison, and you're comparing the fully rolled print to
the fragment of a print. So, Josh, you might look
and compare those two fingerprints and say, you know, I
(22:22):
see enough here. I see twelve points of comparison. That's
enough for me to say that this is the same person.
I might look at it and say, oh, I see
five points of comparison. I think that's enough to declare
that it's a match. So once again, it is completely subjective, right,
(22:44):
and and saying, well, sometimes we think ten points that
look the same between a rolled print and a fragment
of a print are enough similarities to declare match, and
sometimes we think five is enough. And that just doesn't
seem scientific, seemed very reliable, And so Mary, something we've
been addressing a lot on this podcast is the two
(23:07):
thousand nine n a S Report. Tell us a little
bit about what the n AS report said about fingerprints.
The National Academy of Science is the most prestigious scientific
body in the United States and they advise Congress on
issues of science, medicine, pretty much anything you can think
(23:29):
of when it comes to sciences, and the National Academy
of Science was asked to examine the comparative forensic sciences.
It was a groundbreaking report and it was very in depth.
They took testimony, they solicited research, and it rocked the
forensic science community. One of the things that you realize
(23:52):
when you look at the report, if you are a scientist,
you know that there are certain tenets of science, like
you have to be able to replicate the process. When
a scientist does an experiment, they document what they do.
And the National Academy of Science was very clear that
fingerprint examiners, as well as any other comparative forensic examiners,
(24:14):
do not provide documentation. And I found this to be true.
You would order, you would ask for a fingerprint examiner's file,
and you wouldn't really see many notes. You wouldn't know
what they were actually looking at. You might have a
picture of a fingerprint with some circles on it, but
you wouldn't know what they were looking at, so you
there was no way to replicate the process that they
(24:37):
actually used. There was no basis for saying that it
came from the same source. And most of the people
who did fingerprints um and probably still do in some places,
are not scientists. They are not recruited because of their
scientific background. They are often police officers who were apprenticed
into this position because the police officer who examined the
(24:58):
print was going to retire. And then there's the evaluation
where you're actually making the decision about whether this comes
from the same source, and there's a lot of controversy there.
Fingerprint examiners used to come in and say that they
had certainty, they were a certain that this print from
(25:20):
the crime scene came from this particular client, and there
was no basis for that. In fact, that's not even
allowed anymore. And why is there no basis for it?
You would have to have population statistics, right, I mean,
that's what DNA has, That's why they come up with
these numbers. It's one in a million that it came
from this person. There are no population statistics regarding fingerprints. Okay,
(25:56):
so we're seeing that there are a lot of flaws
with both analyzing and comparing prints, the A and the
C and ACE that neither of these steps are actually
rooted in the scientific methods. And now we're onto E, right,
A C E. So the E is evaluation where they
decide if it's a match or not. And so it
seems that if analyzing and comparing the brinds aren't scientifically
(26:19):
proven to work, the evaluation of those prints and deciding
whether or not it's a match can't be done to
any degree of certainty either. That just seems like common sense.
So this is purely subjective. Um. But there's one last
letter in these steps that examiners follow, and that's the
V for verification. Right, it's ACE V. And I'm already
(26:42):
skeptical because the first three steps of the process are flawed,
So how could the results be verified? Imagine this, A
fingerprint examiner would decide that this fragment of a print
came from this particular person, and then they would hand
it off to another fingerprint examiner for verification. But the
issue was it was never blind. So, Josh, let's say
(27:05):
you and I were fingerprint examiners in the same office,
and I would make a decision about a print, and
then I would ask you to verify what I had done.
And the problem with that is you already knew what
I had done. It wasn't blind. In science, they do
blind verifications, so that the person who's actually attempting to
(27:26):
verify or replicate what the first person did it doesn't
know what the result was actually, So the fact that
the verification wasn't blind led to what people call confirmation bias,
which is a huge problem. Alright. So once the n
AS basically said that the ace V process is really
(27:46):
a recipe for wrongful convictions, this should have been an
explosion in the criminal justice system in the courts, and
it just wasn't. And that's, I guess, a different issue altogether.
We have to keep pushing in that are But you
are still trying to push and challenge the admissibility of
fingerprints in the criminal justice system, and I have to
(28:08):
tell you, it just seems like it must be so difficult, Mary,
because this is not like any kind of scientific analysis.
But it just feels to me that everyone believes fingerprint
evidence works. Um, it's so ingrained in pop culture and
and just like the intrinsic belief that people have that
(28:30):
we've grown up with. So tell me, what are some
of the problems you've run into when trying to call
in question this so called science when you're in court
litigating this. You're absolutely right, that is one of the
things you hear from prosecutors and you hear from judges.
Of course, this is reliable. It's been coming into court
(28:51):
for decades and decades, and nobody has ever challenged it before.
So that is a big hurdle to get over, much
more so than other things like bite marks, blood spatter
and that sort of thing. The court system always lags
behind science, and it was an uphill climb to convince
judges and prosecutors that there were problems with fingerprints, or
(29:15):
if you could convince them that there were problems, you
certainly couldn't convince them that they should exclude that evidence.
In fact, judges and I heard this quite a bit,
it's like, well, you know, let's just let the jury decide.
But then you get back to the problem of jurors
thinking that fingerprints are you know, they've been with us forever.
They're embedded in popular culture, and you have to get
(29:37):
over all of that history to convince jurors that there
are indeed issues. Essentially, the presumption is that prints are
are infallible. In a case where your client is supposed
to be presumed innocent and the prosecution or the government
has to prove their case beyond a reasonable doubt, a
significant piece of evidence is presumed to be infallible, and
(30:00):
you have a lot of work to do to try
to educate them that that's not the case, right, Because
it turns out the judges are really no different than jurors.
I mean, in some instances they're more sophisticated, not always, um,
they certainly have less time and frankly sometimes less patients,
and but they're sort of not immune to, you know,
(30:22):
the impact of pop culture and precedent. But look, some
people may be listening to this and thinking, I don't
have a law degree, but I want to help I
want to do something about this. So do you have
any ideas for what our listeners can do to help
I do? And I wanted to go back, just for
a moment um to talk about precedent because where I
(30:43):
went in my mind, are are courts saying that actual
innocence of a client on death row doesn't matter because
procedure was followed. So that should alert your listeners. How um,
how much courts adhere to press it and are deferential
to previous findings to the point where they would authorize
(31:07):
that somebody received the death penalty because the process was followed.
Anyone in the public wants the law enforcement, the system
to get things right. And the only way we can
get things right is if we understand the limitations of
these forensic sciences. So people can be writing letters, calling
(31:27):
their prosecutors, their policymakers, county commissioners, city council members. What
are you doing to make sure that police officers um
that crime lab examiners understand this information? And that would
be really helpful because people really do listen more to
constituents and people in the public than they do potentially
(31:50):
defense lawyers. You know, I've said this before, and I
really do think it bears repeating. Pressure breaks pipes. What
you all can do, as listeners of this podcast is
take action. You're on here because you want to learn something,
but you also want to do something about it. The
(32:11):
way that we stop this junk signs from making it
into our courts is to shine a bright light on it.
Google the n a S Report that we've continually talked
about during this season. That report details how so many
of these disciplines of forensic science, including fingerprints, are really problematic.
(32:32):
The problem is judges don't know about it. Find out
who your local criminal court judges are and send them
the n AS Report. Highlight the section on fingerprint analysis
and send to your local criminal court judges. It's only
by educating our judges and speaking truth to power that
we can really make change happen. And if you don't
(32:54):
think that your voice matters, just take a look around
the country right now. It's the collect the voice that
is causing change to happen, and we can do it
one step at a time in our criminal justice system.
(33:15):
Thank you for listening to wrongful conviction junk Science. We're
gonna be taking a little break, but our next episode
will be out on October seven. In the meantime, we
will be keeping a critical and close eye on our
criminal justice system. We would love to hear how you're
doing that along with us, so please leave us a
comment and let us know what you've been up to
(33:36):
and stay on the Wrongful Conviction podcast feed as Jason
Flam will continue to release episodes between now and October seven.
Wrongful Conviction Junk Science is a production of Lava for
Good Podcasts in association with Signal Company Number One. Thanks
to our executive producer Jason Flom and the team, it's
(33:57):
Signal Company number One executive user Kevin Wardas and senior
producers Kara Cornaber and Brit Spangler. Our music was composed
by j Ralph. You can follow me on Instagram at
dubin dot Josh. Follow the Wrongful Conviction podcast on Facebook
and on Instagram at Wrongful Conviction and on Twitter at
(34:17):
wrong Conviction
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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