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
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
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
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 Brandon Mayfield.
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,
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 an appeal.