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The jig is up (continued)

A labeling error is particularly insidious, Dilday points out, because it might never be uncovered by even a diligent defense attorney, who generally has to trust that the police label evidence correctly. If Cowans’s name was in fact placed on a card with someone else’s fingerprints — the ones that do match the one on the glass — then an independent examiner would confirm the erroneous match. And in fact, Dilday hired two examiners who both confirmed the Cowans match, because they never questioned whether the prints were really Cowans’s.

However the fingerprinting errors occurred, the entire chain of evidence was compromised from the beginning, says Simon Cole, assistant professor of criminology, law, and society at the University of California, Irvine, and author of Suspect Identities: A History of Fingerprinting and Criminal Identification (Harvard University Press, 2001). An essay by Cole about the Cowans case appeared in the February 23 National Law Journal. "You have to imagine a cop sitting down with the daughter and mother, taking their fingerprints, and somehow mixing up the names," he says. "I’ve never heard of that with a fingerprint card. It’s not even something you have to staple together — it’s one card with the print and name on it."

In fact, Cole says, fingerprint cards are among the least-likely types of evidence to be mislabeled — so if the BPD can get that wrong, it calls everything into question. That includes DNA samples, Cole says. "With DNA you have swabs on little squares of paper and vials of liquid, and then you make sticky labels. You attach the wrong sticky label to the vial, and you’ve contaminated the whole process."

For that reason, the fingerprint error in the Cowans case casts doubt on the reliability of nearly every piece of identification evidence handled by the BPD. "If this is correct, I think that every case they’ve ever examined should be re-examined," says veteran fingerprint and crime-scene-evidence expert Kenneth Moses, of San Francisco, about the claims made in the Suffolk DA’s disclosure document.

As a result of all this, the BPD is considering overhauling its entire Forensic Technology Division. Not only will the Identification Unit, which handles fingerprints, come under scrutiny; so too will the division’s crime lab, which examines DNA evidence, and ballistics unit. To that end, spokesperson Ford says, BPD detective-department superintendent Paul Joyce is assembling a committee "to revamp the protocols on all of the forensics" at the department. Ford confirms that Joyce’s committee is examining all three units, not just the identification unit where Cowans’s fingerprint was misidentified.

NO MATTER how well the BPD cleans up the division, however, its credibility in past cases could be shattered. "The general belief in the defense bar is that this is the tip of the iceberg, and that there are a lot of people incarcerated because of fingerprint experts that need to have their cases re-examined," says defense attorney Doolin. Others echo this sentiment.

For starters, as Dilday says, the Cowans case "calls into question every fingerprint analysis done by McLaughlin and LeBlanc," the two BPD fingerprint examiners who testified against Cowans. The DA’s office has already dug through its pending matters for print evidence examined by LeBlanc or McLaughlin, and sent it back for new analysis. DA spokesperson David Procopio says that about 15 such cases have been sent to the state police for re-evaluation.

One of these is the case of Terrence Brown, whose trial is upcoming. In August 2001, Brown and a friend allegedly tied up 20-year-old college students Karen Young and Roland Chow with duct tape, and shot them both in the head. A crucial piece of evidence was a fingerprint found on the tape, matched to Brown by McLaughlin. Roger Witkin, the attorney representing Brown, says that since the Cowans case came to light, the DA’s office has sent him two new independent analyses that it claims confirm the match.

More complicated, however, are old cases involving evidence analyzed by LeBlanc and McLaughlin — like that of Dionicio Delvalle, currently serving a life sentence for breaking into the Roxbury home of 87-year-old Maude Hinds and beating her to death in April 1991. Boston police found a bloody fingerprint on a window at the crime scene; nine years later, using computer fingerprint technology, LeBlanc matched the print to Delvalle.

Although it might seem prudent — indeed, only fair — to subject LeBlanc’s forensic work to a second reading in cases like Delvalle’s, the Suffolk DA’s Office has made clear that it is not reopening old convictions. "In terms of funding and staffing it would be impractical, in fact impossible, to do a broad review of cases," says Procopio.

Defense attorneys, however, can use newfound concerns about the BPD forensics division to request review of individual cases that were decided in part by fingerprint evidence. That might ultimately free more wrongly convicted souls, but it could also potentially negate convictions of the guilty. Delvalle’s attorney, for one, has not requested a review, but Procopio says that five others have already made evidentiary challenges based on fingerprint IDs. Who knows how many others could be preparing to do so in the future?

If the problem is already unwieldy, it could explode if the DA’s disclosure document is correct and the Cowans case involves the mislabeling of fingerprints. Such a finding could throw into doubt more than the competence of the two faulty forensic analysts in that particular case; it also raises questions about the entire forensics unit.

OF ALL THE evidentiary challenges filed in the wake of the Cowans case, the most important might be that of Terry Patterson. Patterson was convicted in 1998 of the 1993 murder of Detective John Mulligan, in Roslindale. In 2000, the conviction was overturned because Patterson’s attorney had a conflict in the case, according to the Supreme Judicial Court’s ruling. The DA is trying him again, and Patterson’s attorney, John Cunha, is now arguing that the fingerprint evidence against his client should be ruled inadmissible in light of the Cowans case. The SJC has scheduled a hearing on Cunha’s motion.

If Patterson wins his challenge, which is the first to be brought in the aftermath of the Cowans debacle, it could become much harder for prosecutors to use fingerprints as evidence. And more challenges are sure to follow. "People are going to take a hard look at cases," says Steve Hrones, a Boston defense attorney. "Before, fingerprints were just a matter of interpretation. Nobody had really looked at chain of custody" — in other words, how the prints were labeled and handled.

Even if prosecutors can get fingerprints into trials, and even after they perform new evaluations, the question of trust will likely remain. "You’d have to start telling juries that fingerprint experts make mistakes," says Jennifer Mnookin, a visiting professor at Harvard Law School. Skeptical juries will likely become even more skeptical. More terrible crimes will go unpunished. And the public trust, carefully courted since the Charles Stuart debacle, may be slipping away 15 years later.

David S. Bernstein can be reached at dbernstein[a]phx.com

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Issue Date: May 14 - 20, 2004
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