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Contesting Fingerprints A Weapon For Defense Bar

By John Cunningham

Overturning a criminal conviction based on fingerprint evidence and eyewitness testimony may seem like an insurmountable challenge, but a recent case demonstrates that use of DNA testing carefully negotiated with the prosecution can clear a client who is wrongly accused.

In a high-profile case that concluded on Feb. 2, prosecutors agreed to vacate the conviction of Stephan Cowans based upon DNA test results that showed he was not the person who left his fingerprints on a glass at the scene of a violent shooting incident.

Robert N. Feldman of Boston, co-counsel for the defendant, said that "the credibility of fingerprint evidence is now in play" after the first case of DNA evidence contradicting fingerprint testimony at trial.

He was part of a defense team that crafted an agreement with prosecutors to preserve and test DNA evidence found at the crime scene with the help of stipulated experts acceptable to both parties.

Stephen P. Maidman of Springfield, the team member originally appointed to pursue a direct appeal for the defendant, said that he pursued his client's release since early 1999. After Maidman's direct appeal failed on several counts, he turned his attention to procedural avenues for preserving evidence and modern technology necessary to support a motion for new trial, but he needed resources that solo practitioners can't provide on their own.

A law school classmate led him to the New England Innocence Project, which offers free technical and legal support for practitioners representing defendants accused of any crime who might be exonerated by DNA testing.

Joseph F. Savage Jr. of Boston, a white-collar criminal defense lawyer who heads the project, said that "we offer free help, we have a nationwide network of resources and we want practitioners to call us."

Savage, who said that Daubert motions are already attacking the "science" of fingerprinting, can be contacted at Testa, Hurwitz & Thibeault headquarters for the project.

He noted that the Cowans case is already being cited by local lawyers challenging fingerprints in other cases, although the prosecution may now be viewing the prints as a "mistake."

The Suffolk County District Attorney's Office could not be reached for comment prior to deadline.

Mistaken Identity

On May 30, 1997, Gregory D. Gallagher, a Boston police officer, noticed a black male acting suspiciously in a Jamaica Plain neighborhood.

The man fled as Gallagher approached him and a foot race ensued.

When Gallagher cornered the man in the back yard of 7 School St., they began wrestling and the unknown man grabbed the officer's gun, firing shots at him and at a witness in the house.

The assailant left his baseball cap behind and hid inside a nearby home owned by Bonnie Lacy at 29 School St.

While there, he spoke with Lacy and her children, drank water from a glass mug and removed his sweatshirt before fleeing again.

The man escaped, but police gathered his cap and sweatshirt together with the mug.

When officers combed the neighborhood for information, some people pointed to Stephan Cowans as a person who might have clues about the incident or the man involved.

Cowans, who had a prior criminal record, then became a suspect after questioning. He was identified as the assailant by Gallagher and the shooting witness, Benjamin Pitre, but not by any members of the Lacy family.

At trial in June 1998, two officers from the police department's identification unit testified that it was Cowans' fingerprint on the mug.

DNA evidence was not introduced, but a jury still convicted Cowans on several charges, including assault with intent to murder.

On January 8, 1999, the Committee for Public Counsel Services appointed Maidman to represent Cowans on a direct appeal.

Maidman was successful in overturning a criminal count of home invasion, but could not vacate the other counts in Cowans' conviction without pursuing additional evidence and a motion for new trial.

Four years after the appeal, that motion succeeded when DNA testing finally revealed that the baseball cap, sweatshirt and glass all contained matching DNA samples that were different from Cowans' genetic material.

Fingerprints And DNA

Maidman said he learned that "there is no real science of fingerprinting," and he suggested to practitioners that they get a defense expert to attack any faults in analysis by experts for the state.

In fact, according to Feldman, a 1995 study by the International Association of Identification showed that some fingerprint "experts" around the world could be fooled by similar samples.

He noted that 22 percent of experts identified the similar prints as a "match" using the FBI method of finding eight points of comparison.

But Maidman cautioned lawyers about using DNA as a "knee-jerk" reaction, saying that "DNA evidence can exonerate your client or kill him if the tests come back with a problem."

Aliza B. Kaplan of New York and formerly of Boston, was co-counsel on the motion for new trial and affirmed that DNA testing must be carefully used.

Kaplan noted that some labs do better work than others, stating that some are particularly good at dealing with chain-of-custody issues and avoiding mix-ups in samples.

That was apparently one of the concerns raised by the commonwealth and it presented a key roadblock for the defense team.

Feldman, who does a lot of negotiation in civil litigation, said it was important that both sides reach an agreement on who did the testing and how the samples would be preserved.

The team agreed to use the lab Orchid Cellmark in Maryland; Feldman speculated that the prosecution agreed because it was a lab the state had used previously.

The fact that it was an out-of-state lab also provided some comfort to the defense, according to Kaplan, who suggested that local labs might have problems opposing a prosecution.

The defense lawyers also suggested that practitioners concerned about a client's innocence should file a motion to preserve and access evidence as soon as possible.

"Over time, these things have a way of getting lost in storage or destroyed by accident," said Maidman.

He added that there is "no constitutional right to prove your innocence after a conviction," and even "no right of access to the evidence that can prove your innocence."

In fact, according to Maidman, a defendant can get access to and money for DNA testing only if a judge approves in his discretion.

Feldman agreed. "Unfortunately, there no clear procedural path for access to DNA in Massachusetts," he said.

Feldman said it can take months or even years to get access to such evidence in this state in part because there is no specific rule dealing with DNA as there is in some other states.

Once the evidence was secured and the prosecution agreed to negotiate on a lab for testing, the selection of laboratory expertise was critical.

Feldman said the chosen lab was very expensive but employed state-of-the-art techniques to remove and analyze swabs of DNA from items that were several years old.

"There were some experts who said we could never get DNA from there, and I was not confident myself but the technology has come a long way," he elaborated. "With current replication and testing methods, you can get results from 100 [tissue] cells where it used to take 100,000 or more."

Kaplan, who left private practice for the national office of the Innocence Project during this case, urged practitioners to take advantage of her group's donated resources because they include both technical and legal support from scientists, professors, criminal defense veterans and others.

"We have reviewed hundreds of cases and can look for mistakes in how lineups were done, how photo arrays were presented and even how confessions were obtained by improper methods," she explained.

Other Problems

Maidman said the case also demonstrates important lessons about more traditional criminal law problems.

He asserted that the typical local practitioner is essential to any defense team to deal with the facts and the procedural nuances of a case, and pointed to issues raised in the Cowans matter.

The first thing he noticed after meeting with Cowans was that he had a lot to say about his innocence.

"Probably 80 percent of defendants plead guilty, so you have to listen when a client insists he is innocent," said Maidman.

After spending hours with Cowans in his prison cell and talking several times with an alibi witness who did not appear at trial, Maidman was convinced that Cowans was innocent.

He even used off-the-shelf mapping software to map out the timing of movements by Cowans and the alibi witness to show that their stories made sense.

But the most disturbing piece of evidence was probably the refusal of Lacy family members to identify Cowans while two witnesses who were not African-American saw it differently.

Feldman said this just illustrates what social scientists have been arguing for some time - that eyewitness identification is very powerful for juries even though witnesses get it wrong all the time.

"Cross-racial identifications have been shown to be particularly unreliable," he noted.

In fact, according to Feldman, Cowans is a light-skinned, 5-foot-8-inch man of more than average weight for his size, but the Lacy family described a man who was "tall, skinny and dark-skinned."

Kaplan said such mistakes can be honest ones, but are all too common.

"We have worked on 142 exonerations nationwide, and 75 percent were based on eyewitness misidentification - a huge amount involving cross-racial identifications," she noted.

Once the team became convinced of Cowans' innocence, it still had to be careful about how it framed the motion for new trial.

Maidman pointed out that "Massachusetts gives you just one shot at a new trial, so you have to put all your issues in one basket."

But the team had practical and tactical reasons for moving forward with the motion quickly without watering down the plea of innocence with alternate theories.

So it reached an agreement with the prosecution that allowed the motion to go forward without waiving any grounds for new trial left out of the motion.

By focusing the court and the prosecution on the strongest evidence - the DNA - the defense team was ultimately successful.
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