[News] FBI and the Myth of Fingerprints
News at freedomarchives.org
Tue Feb 21 08:48:48 EST 2006
<http://www.counterpunch.org>www.counterpunch.org February 20, 2006
The FBI and the Myth of Fingerprints
A "100 Per Cent Certainty"
By ALEXANDER COCKBURN
and JEFFREY ST. CLAIR
Few law enforcement institutions have been so thoroughly discredited
in recent years as the FBI's forensic lab. In 1997 the Bureau's
inspector general of the time issued a devastating report,
stigmatizing one instance after another of mishandled and
contaminated evidence, inept technicians, and outright fabrication.
The IG concluded that there were "serious and credible allegations of
incompetence" and perjured courtroom testimony.
CounterPunch's view is that taken as a whole, forensic evidence as
used by prosecutors is inherently untrustworthy. For example, for
years many people went to prison on the basis of the claims of a
North Carolina anthropologist, Louise Robbins. She helped send people
to prison or to Death Row with her self-proclaimed power to identify
criminals through shoe prints. As an excellent recent Chicago Tribune
series on forensic humbug recalled, on occasion she even said she
could use the method to determine a person's height, sex and race.
Robbins died in 1987, her memory compromised by the conclusion of
many Appeals Courts that her methodology was bosh. There have been
similarly hollow claims for lip prints and ear prints, all of (added
"of") them invoked by their supporters as "100 per cent reliable" and
believed by juries too easily impressed by passionate invocations to
100 per cent reliable scientific data.
Of course the apex forensic hero of prosecutors, long promoted as the
bottom line in reliability--at least until the arrival of DNA
matching--has been the fingerprint.
Fingerprints entered the arsenal of police and prosecutors in the
late nineteenth century, touted as "scientific" in the manner of
other fashionable methods of that time in the identification of
supposed criminals, such as phrenology. A prime salesman was Francis
Galton, Charles Darwin's cousin and a founding huckster for the bogus
"science " of eugenics. Actually fingerprints, at least in modern
times, found their original use in the efforts of a British colonial
administrator to intimidate his Indian laborers (whose faces he could
not distinguish) from turning up more than once to get paid. He'd
make a great show of scrutinizing the fingerprints he insisted they
daub on his ledger book. Then, as now, the use of the so-called
"unique fingerprint" has been histrionic , not scientific. In 1995,
so the Chicago Tribune series discovered, " one of the only
independent proficiency tests of fingerprint examiners in U.S. crime
labs found that nearly a quarter reported false positives, meaning
they declared prints identical even though they were not--the sort of
mistakes that can lead to wrongful convictions or arrests."
Decade after decade people have been sent to prison for years or
dispatched to the death cell, solely on the basis of a single, even a
partial print. So great is the resonance of the phrase "a perfect
match" that defense lawyers throw in the towel, as judge and jury
listen to the assured conclusions of the FBI's analysts who virtually
monopolize the fingerprint industry in the U.S.A. Overseas, in
London's Scotland Yard for example, the same mesmerizing "certainty"
held sway, and still does. In the U.S.A., part of the mystique stems
from the "one discrepancy rule" which has supposedly governed the
FBI's fingerprint analysis. The rule says that identifications are
subject to a standard of "100 per cent certainty" where a single
difference in appearance is supposed to preclude identification.
The 1997 lab scandals threw a shadow over the FBI's forensic
procedures as a whole and the criminal defense bar began to raise
protests against prosecutorial use of latent fingerprint
identification evidence, as produced by FBI procedures. In 2002 Judge
Louis Pollak, in a case in Pennsylvania, initially ruled that the
FBI's fingerprint matching criteria fell below new standards of
forensic reliability (the Daubert standards) stipulated by the U.S.
Supreme Court. Ultimately he was persuaded that the FBI's fingerprint
lab had never made a mistake. In 2004, in U.S. v. Mitchell, the Third
Circuit Court of Appeals upheld these same procedures.
Now at last, in 2006, the FBI's current inspector general, Glenn
Fine, has grudgingly administered what should properly be regarded as
the deathblow to fingerprint evidence as used by the FBI and indeed
by law enforcement generally.
The case reviewed by Inspector General Fine, at the request of U.S.
Rep John Conyers and U.S. Senator Russell Feingold, concerns the
false arrest by the FBI of Brandon Mayfield, a lawyer from Beaverton, Oregon.
On March 11, 2004, several bombs exploded in Madrid's subway system
with 191 killed and 1,460 injured. Shortly thereafter the Spanish
police discovered a blue plastic bag filled with detonators in a van
parked near the Acala de Heres train station in Madrid, whence all of
the trains involved in the bombing had originated on the fatal day.
The Spanish police were able to lift a number of latent prints off
the bag. On March 17 they transmitted digital images of these
fingerprints to the FBI's crime lab in Virginia. The lab ran the
images through its prized IAFIS, otherwise known as the integrated,
automated, fingerprint identification system, containing a database
of some 20 million fingerprints.
The IAFIS computer spat out twenty "candidate prints", with the
warning that these 20 candidates were "close non-match". Then the FBI
examiners went to work with their magnifying glasses, assessing
ridges and forks between the sample of 20 and the images from Spain.
In a trice the doubts of the IAFIS computer were thrust aside, and
senior fingerprint examiner Terry Green determined that he had found
"a 100 per cent match" with one of the Spanish prints of the
fourth-ranked print in the IAFIS batch of 20 close non-matches. Green
said this fourth ranked print came from the left index finger of
Brandon Mayfield. Mayfield's prints were in the FBI's master file,
not because he had been arrested or charged with any crime, but
because he was a former U.S. Army lieutenant.
Green submitted his conclusions to two other FBI examiners who duly
confirmed his conclusions. But as the inspector general later noted,
these examiners were not directed to inspect a set of prints without
knowing that a match had already asserted by one of their colleagues.
They were simple given the pair of supposedly matched prints and
asked to confirm the finding. (These two examiners later refused to
talk to the FBI's inspector general.)
The FBI lost no time in alerting the U.S. Prosecutor's office in
Portland, which began surveillance of Mayfield with a request to the
secret FISA court which issued a warrant for Mayfield's phone to be
tapped on the grounds, laid out in the Patriot Act, that he was a
terrorist, and therefore by definition a foreign agent.
Surreptitious tapping and surveillance of Mayfield began. On April 2,
2004, the FBI sent a letter to the Spanish police informing them that
they had a big break in the case, with a positive identification of
the print on the bag of detonators.
Ten days later the forensic science division of the Spanish national
police sent the FBI its own analysis. It held that the purported
match of Mayfield's print was "conclusively negative". (The inspector
general refers to this as the "negativo Report".)
The next day, April 14, the U.S. Prosecutor in Portland became aware
of the fact that the Spanish authorities were vigorously disputing
the match with Mayfield's left forefinger. But by now the Prosecutor
and his team were scenting blood. Through covert surveillance they
had learned that Mayfield was married to an Egyptian woman, had
recently converted to Islam, was a regular attendee at the Bailal
mosque in Portland, and had as one of his clients in a child custody
dispute an American Muslim called Jeffrey Battle. Battle, a black
man, had just been convicted of trying to go to Afghanistan to fight
for the Taliban.
Armed, so they thought, with this arsenal of compromising detail, the
U.S. Prosecutor and the FBI had no patience with the pettifogging
negativism of the Spanish police. So confident were the Americans of
the guilt of their prey that they never went back to take another
look at the supposedly matching prints. Instead, on April 21, they
flew a member of the FBI's latent print unit to Spain for on-the-spot
refutation of the impertinent Madrid constabulary.
The Inspector General's report makes it clear that the FBI man
returned from Spain with a false account of his reception, alleging
that the Spanish fingerprint team had bowed to his superior analytic
skills. The head of the Spanish team, Pedro Luis Melida-Weda, insists
that his team remained entirely unconvinced. "At no time did we give
our approval. We refused to validate the FBI's conclusions. We kept
working on the identification."
By now either the U.S. Attorney's office or, more likely, the FBI was
leaking to the press news of the pursuit of a U.S. suspect in the
Madrid bombing. But they knew that the actual evidence they had on
Mayfield was virtually non-existent, aside from the fingerprint. On
May 6, the U.S. Prosecutor in Portland told U.S. District Court Judge
Robert Jones that the Spanish police had ultimately accepted the
FBI's match, that Mayfield, alerted by the stories in the press about
an unnamed suspect, might start destroying evidence, and that,
therefore, they wanted to seize Mayfield, using the now favored
charge du jour of the war on terror, claiming him to be a "material
witness". Judge Jones okayed an arrest warrant.
Mayfield had no idea that the FBI had been tapping his phones and
secretly rummaging through his office. The first time he became aware
that he was a citizen under suspicion was on the afternoon of May 6.
On that day eight FBI agents showed up at his law office, seized him,
cuffed his hands behind his back, ridiculed his protestations. As
they approached the door, Mayfield implored them to take the
handcuffs off, saying he didn't want his clients or staff to see him
in this condition. The FBI agents said derisively, "Don't worry about
it. The media is right behind us."
Mayfield ended up with two federal public defenders, Steven Wax and
Christopher Schatz. Like many such, these two were dedicated to their
interest of their client, tireless and resourceful. Their first
concern was to get Mayfield out on the Multnomah federal detention
center in downtown Portland. Though jailed under an alias chosen for
him by the U.S. Prosecutor, the feds had immediately leaked this
alias--Randy Barker--to The Oregonian newspaper, and a guard at the
jail had promptly roughed up Mayfield.
The two public defenders went before Judge Jones and asked that as a
material witness he be kept under house arrest, there being scant
apparent evidence against him. Judge Jones finally compelled the U.S.
Prosecutor to say what evidence he had against Mayfield. A
fingerprint, said the U.S. Prosecutor, withholding from the court the
fact that this fingerprint was highly controversial and had been
explicitly disqualified by the Spanish police.
The federal defenders questioned the imprisonment of their client,
faced penalties of the utmost gravity, on the basis of a fingerprint.
Judge Jones allowed as how he had sent people to prison for life on
the basis of a single fingerprint. Mayfield's attorneys asked to see
a copy of the allegedly matched fingerprints and have them evaluated
by their own expert witness. Knowing he was on thin ice the U.S.
Prosecutor refused, claiming it was an issue of national security.
Under pressure from Judge Jones, himself pressured by the assiduous
federal defenders, the U.S. Prosecutor finally agreed he would give
the prints to an independent evaluator selected by Judge Jones.
The prints were given to Kenneth R. Moses of San Francisco, an SFPD
veteran who runs a company called Forensic Identification Services
which, among other things, proclaims its skills in "computer
enhancement of fingerprints". It was "quite difficult", Moses said,
because of "blurring and some blotting out", but yes, the FBI had it
right, and there was "100 per cent certainty" that one of the prints
on the blue bag in Madrid derived from the left index finger of
Moses transmitted this confident opinion by phone to Judge Jones on
the morning of May 19. Immediately following Moses' assertion, the
U.S. attorney stepped forward to confide to Judge Jones dismaying
news from Madrid from the Spanish police that very morning. The news
"cast some doubt on the identification". This information, he added,
"was classified or potentially classified".
The prosecutors then huddled with the judge in his chambers. After 20
minutes, Judge Jones stormed back out and announced that the
prosecutors needed to tell the defense lawyers what they had just
told him. The prosecutor duly informed the courtroom that the Spanish
police had identified the fingerprint as belonging to the right
middle finger of Ouhnane Daoud, an Algerian national living in Spain.
Daoud was under arrest as a suspect in the bombing. Judge Jones
ordered Mayfield to be freed. The U.S. prosecutor said he should be
placed under electronic monitoring, a request which the judge turned down.
Four days later, on May 24, the warrant for his detention was dismissed.
The FBI sent two of their senor fingerprint analysts to Spain on a
mission to salvage the Bureau from humiliation. The two analysts did
their best, returning with the claim that the fingerprint sent to the
FBI by the Spanish police was of "no value for identification
purposes", a claim which the inspector general later shot down by
pointing that only a few weeks thereafter the FBI's latent
fingerprint unit concurred with the Spanish national police lab's
determination that the print on the bag matched the right middle
finger of Ouhnane Daoud.
The FBI lab fought an increasingly desperate rearguard battle,
eventually claiming that it had been the victim of an excessive
reliance on technology. The inspector general points out that the
only investigator in the FBI's lab to emerge with any credit is in
fact the IAFIS computer that had stated clearly, "close, no match".
The inspector general writes the bottom line on the "science" of
fingerprint matching. He gets the FBI's top examiner to admit that if
Mayfield had "been like the Maytag repair man" and not a Muslim
convert married to an Egyptian, "the laboratory might have revisited
the identification with more skepticism."
And Daoud's fingerprint match? We don't know, but if he was convicted
on the basis of fingerprints alone, we would say there is grounds for
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