Creating a More Rational, Fair and Just U.S. Criminal Justice System

Among the reforms proposed to make the U.S. criminal justice system more rational, fair and just is to try to reduce the prevalence of plea bargaining and consequently increase the percentage of jury trials. By one estimate, more than 95 percent of felony convictions in metropolitan areas are the result of guilty pleas. (26) With the ability to threaten long sentences for sometimes minor crimes, prosecutors become something like extortion artists.

One cannot talk intelligently about the tremendous increase in the U.S. prison population without bringing illegal drugs into consideration. In 1980 there were 10,449 drug offenders behind bars and in 2003 that number had increased to 413,772. (27) The percentage of drug arrests targeting possession was 82.5 percent as of 2009 and 17.5 percent targeted distribution. (28) The shares of possession arrests are for: marijuana – 51 percent; heroin and cocaine – 26 percent; prescription drugs and inhalents – 19 percent; and meth and other synthetic drugs – 4 percent. (29) A great deal of money could have been saved in court and imprisonment costs by adoption of the 1972 report by the National Commmission on Marijuana and Drug Abuse, recommending that marijuana for personal use be decriminalized. 

Eyewitness misidentifications were previously identified as being the single greatest cause of wrongful imprisonments. A number of reforms were listed to reduce misidentifications of suspects; however, there are a number of other prosecutorial evidentiary procedures and conduct that have contributed to many innocent men and women (including children) spending large chunks of their lives in prison or even being executed.

Snitch, or jailhouse, testimony is widely used but it has proven to be highly unreliable. The uncorroborated testimony of jailhouse snitches should never be used to convict someone of a crime, because snitches will make up stories to get a respite from confinement, and/or get some other amelioration in their punishment.

Hairs found at crime scenes have been used to help convict persons on trial. Yet, absent sufficient recoverable DNA to definitely connect a person on trial for a crime, the most that can be said is that the hair evidence is “similar to” that of the person on trial. “Matching” is one of the most over-used words in criminal trials, when the most that can be said is that the evidence submitted is “similar to.”

Even ballistics evidence, whereby markings on a bullet found at a crime scene, were matched to a particular firearm, has come under serious question. Mass-produced firearms produce markings on fired bullets which are very similar and recovered bullets are rarely in pristine condition after passing through, or lodging in, the body of a human being. The creditability of ballistic matching received a tremendous jolt when none of the 19 bullets recovered at Ruby Ridge could be matched with any firearm used by Randy Weaver or anyone with him on that bloody day of violence.

Fingerprint evidence, once thought to be the gold standard of evidentiary material, has come under question in the past two decades, triggered most dramatically by the case of the Portland, Oregon attorney, whose fingerprints were positively identified as being on a document related to providing support to al Qaeda. The attorney then received an apology after it was definitively proven that the fingerprints were not his.

More damaging to the cause of fingerprint infallibility was the test conducted in 1995 of 156 fingerprint examiners by the Collaborative Testing Services. This was a proficiency test sponsored by their professional body, the International Association for Identification. Only 44 percent (68) of those tested identified all seven latent fingerprints correctly. Some 56 percent (88) got at least one wrong and four percent (6) failed to identify any. In all, incorrect identifications made up 22 percent of the total attempted. That is, out of every 1,000 identifications, 220 would be incorrect. Even if the six examiners who got all identifications wrong were removed from the sample, the error rate of all the rest would still be slightly under 20 percent. 

We now know, if we didn’t before, that fingerprint examiners disagree on the number of points of comparison necessary to make a positive identification and some examiners consider their work to be more of an art than a science.

I received my own education in fingerprint fallibility when I served on an investigative team formed to determine if Bill Heirens committed the three murders to which he confessed. The three murders were of two women and six-year-old Suzanne Degnan, committed on the north side of Chicago in the mid-1940s.

There was no evidence at all linking Heirens to the murder of Josephine Ross; however, fingerprints supposedly linked him to the murders of Frances Brown and Suzanne Degnan. The Chicago Police Department’s (CPD) top fingerprint examiner, Sergeant Lafferty, identified a fingerprint of Bill Heirens on the front of the ransom note found on Suzanne Degnan’s bedroom floor — most of the note was written on one side of the paper but there was one sentence on the other side of the note. 

In the Frances Brown case, the CPD found a blood-smeared print on the doorjamb of her bathroom — she was killed in her bed and dragged to the tub in the bathroom. Astonishingly enough, Sergeant Lafferty told the Chicago Sun on June 28, 1946 that Heirens’ prints did not match the doorjamb print and he was cleared of that murder, but on July 13 he reversed his finding.

Our investigative team submitted copies of the Degnan and Brown prints to Steven Schachte, a fingerprint examiner with 17 years experience on the Indianapolis, Indiana police force. On the Degnan note Schachte reached the conclusion that Heirens’ print was on the note but it was on the back, not the front! It is hard to come to any other conclusion than that the Chicago police clumsily planted the print on the wrong side of the note.

Steven Schachte had two surprises when he examined the Brown print copy. The copy print was clean: it didn’t have the blood smears between the ridges. The CPD had variously described the print as “bloody,” “smeared,” or “blurred.” The other surprise was that he could see side ridges. Side ridges are indicative of a “rolled” print produced by law enforcement and not a print created when someone touches something.

Bill Heirens’ biographer, Dolores Kennedy, spoke with a veteran Chicago police officer as to whether or not he knew of any instances in which the CPD had falsified a fingerprint. She was very surprised when the officer answered, “It happens all the time.” Now we don’t know if the officer had personally falsified a fingerprint, had concrete personal knowledge of such falsification, or was exaggerating the frequency of such falsification, if done at all. If, however, the CPD had ever falsified fingerprints, there would have been tremendous motivation for falsely pinning the murders on Bill Heirens, as the killing, dismemberment and placing Suzanne Degnan’s body parts in sewer openings was one of the most sensational murders in Chicago history. Dolores Kennedy has counted over 150 times in which Heirens’ name had appeared in a headline of one or the other of Chicago’s five major-circulation newspapers. Furthermore, apprehension and detainment of Bill Heirens closely follwed the outbreak of a major scandal affecting the CPD. Solving the Degnan murder and diverting attention from the scandal would have taken a lot of heat off the CPD.

What I learned about the likely planting of two fingerprints by the CPD, it prompted me to try to find out if fingerprint falsification was an extremely rare occurrance. I soon learned that a New York State police officer named David Harding was known for his success in finding incriminating fingerprints at crime scenes. The officer became so well-known, in fact, that he was interviewed for a position with the CIA. The most notorious case he was involved with, was his finding of a fingerprint on a gas can found at the scene of an arson-related murder. Th fingerprint had not been found in the initial dusting of the can.

Harding later admitted to fingerprint falsification in seven cases. His partner, supervisor and three other state troopers had fabricated fingerprints in 40 cases. A Georgia police officer admitted to faking fingerprints in 29 cases. ABC News found dozens of print fabrications in seven states.

The great crime of evidence falsification has even affected what many consider to be nation’s premier crime laboratory, the FBI’s crime lab. The whistleblower was Dr. Frederic Whitehurst, a PH.D chemist who worked for eight years in the FBI lab as an explosives analyst. Whitehurst became disturbed by the unscientific nature of much of the work he observed; a pro-prosecution bias; and the inability of lab management to investigate itself and correct problems.

Eventually, Whitehurst was able to convince the Inspector General of the Justice Department to conduct an investigation. The Inspector General’s 517-page report revealed a troubled operation in which FBI examiners had given flawed, inaccurate and over-stated testimony under oath in court; had altered the lab reports of examiners to give them a pro-prosecution slant; and had failed to document tests and examinations from which they drew incriminating conclusions, thus ensuring that their work could never be properly checked. FBI lab management had failed to check examination and lab reports; had overseen a woefully inadequate record retention system; and had not only failed to investigate serious and credible allegations of incompetence but had covered them up.

Fabrication of evidence is not confined to the FBI, as there have been a number of instances in which lab technicians had altered lab results, usually to create a pro-prosecution bias. The most notorious of this upper tier of the rogues gallery of evil evidence falsifiers is probably state trooper Fred Zain. While working at the West Virginia State Police crime laboratory, Zain falsified test results in as many as 134 cases from 1979 to 1989.

Cleaning up this mess of reliance on unreliable evidence and contemptuous fabrication of evidence is a task that makes Hercules’ 12 labors look like a picnic.

                                    Footnotes

(26) O’Donnell

(27) Kevin Drum, “The Patriot’s Guide to Legalization,” Mother Jones, July/August 2009.

(28) Ibid.

(29) Ibid.

 

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