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The lawyer for Terry L. Patterson said the discrediting of evidence that had led to the conviction of Stephan Cowans shows that fingerprint analysis, long considered the gold standard for identifying criminals, is inherently unreliable. Cowans was convicted of wounding another Boston officer in an unrelated 1997 shooting.
"The Cowans case illustrates that forensic fingerprint identification is the emperor with no clothes," said John H. Cunha Jr. His argument appears to be the first attempt by a defense lawyer to use Cowans's wrongful conviction to derail another Suffolk County criminal case.
The Boston Police Department, which processed prints in both cases, isn't the problem, Cunha said. "The entire methodology is nonsense," he said.
Arguments against the reliability of fingerprinting are being made more frequently by defense lawyers across the country. Fingerprinting enjoyed an impeccable reputation as a crimefighting tool for most of the last century, but its scientific underpinnings have recently been questioned.
Cunha has requested fingerprint and DNA evidence from the Cowans case to bolster his motion to suppress fingerprint evidence against Patterson, one of two men convicted in the notorious 1993 slaying of Detective John J. Mulligan, who was shot five times in the face as he sat in his car in the parking lot of a Roslindale shopping center. Patterson's conviction was overturned by the Supreme Judicial Court three years ago because of an error by his trial lawyer. Since then, Patterson, 30, has been held without bail at the Nashua Street Jail.
Suffolk Assistant District Attorney David E. Meier responded in court documents that he would supply the evidence and that he welcomed a hearing on the admissibility of fingerprints, both in the Patterson case and in general. Meier, who represented the district attorney's office when Cowans was freed last month, plans to personally retry the Patterson case.
Other documents filed by Meier in the Patterson case show that the Boston police fingerprint examiner who identified Patterson's prints on the Ford Explorer in which Mulligan was shot was not one of two examiners who misidentified a thumbprint found in the Cowans case.
No hearing on the request to suppress the evidence has been set.
Cowans walked out of Suffolk Superior Court a free man on Jan. 23 after serving 6 1/2 years in prison for a crime he always insisted he did not commit. He had been found guilty in 1998 of shooting Sergeant Gregory Gallagher in the buttocks in a Roxbury backyard, but recent DNA analysis determined that clothing discarded by the gunman was worn by someone else.
Meier had initially said he would retry Cowans using "compelling" fingerprint evidence, but reversed himself two days later after a new analysis determined that a thumbprint on a glass mug was not Cowans's.
Hours after Cowans's release, Boston's acting police commissioner, James M. Hussey, said his department had asked the International Association for Identification, the world's largest and oldest forensic group, and the FBI to help it form an outside investigative team to review Boston police procedures for analyzing fingerprints.
Defense lawyers and prosecutors immediately predicted that the botched fingerprint analysis would lead to challenges of other criminal convictions in cases involving Boston police and fingerprint evidence.
Patterson and Sean K. Ellis, friends from Dorchester, were tried separately on charges of killing Mulligan as he worked a late-night paid detail outside a Walgreens drug store on Sept. 26, 1993. Ellis was tried three times before a Suffolk Superior Court jury convicted him of first-degree murder.
Patterson was also found guilty of first-degree murder after a jury deliberated for three hours, but the SJC overturned the conviction in December 2000, ruling that Patterson's lawyer should have removed herself from the case and testified as a defense witness when it was clear she had information that disputed police testimony.
Cunha has been challenging the fingerprint evidence in the Patterson case since October 2002, when he first filed a motion asking that fingerprint evidence used in the original trial not be admitted when he is retried.
Sergeant Robert Foilb testified at the original trial that three latent fingerprints recovered on the driver's side window of Mulligan's car belonged to Patterson. But Foilb reached that conclusion, Cunha said, by adding up matching so-called "ridge characteristics" from three fingers -- six on one, two on another, and five on the third -- a method Cunha this week called "crazy."
"You cannot make an identification of somebody from a limited number of comparison points, particularly when they're fingerprints like you find in [criminal] cases," Cunha said. "They're partial, they're smudged, they're distorted."
If Cunha's hearing is granted, he evidently intends to put fingerprint evidence on trial. He contends that juries erroneously believe that such evidence is infallible because it has been portrayed that way in movies, television shows, and elsewhere.
Fingerprint evidence has come under increasing attack in recent years. In January 2002, US District Court Judge Louis H. Pollak of Philadelphia stunned the legal community when he ruled that fingerprint evidence does not meet the standards of scientific scrutiny established by the US Supreme Court and said fingerprint examiners could not testify that a suspect's fingerprints match those found at a crime scene. Two months later, however, Pollak, a former dean of Yale Law School, reversed himself, saying, "I have changed my mind."
Simon A. Cole, the author of "Suspect Identities: A History of Fingerprinting and Criminal Identification," agreed with Cunha that some people have an inflated view of the reliability of fingerprint evidence. One of the problems, he said, is that law enforcement officials have never concurred on how many points of comparison must match before one can confidently say that a particular print belongs to an individual.
However, Cole disputed Cunha's assertion that fingerprint evidence is simply
too flawed to be useful.
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