Misjudged

by James Chandler

  “And what exactly does a fingerprint examiner do?”

  “I examine fingerprints at crime scenes as well as those that are recorded at the jail or are in our database for comparison with each other.”

  “And how is that accomplished?”

  “Well, fingerprint identification has been around since the 1920s,” Pleasance began. “It’s a biometric process using the impressions made by the ridge formations or patterns found on the fingertips.” Warming to his subject, Pleasance continued. “As you may know, no two persons have the same arrangement of ridge patterns, but what you may not know is that the patterns remain unchanged throughout life. For these reasons, fingerprints offer an infallible means of personal identification. Other personal characteristics may change, but fingerprints do not.”

  “So, how do you actually go about making the comparison?”

  “Well, one way is that fingerprints can be recorded on a standard fingerprint card or can be recorded digitally and transmitted electronically to the FBI for storage in their database and later comparison. The FBI keeps a database of fingerprints,” he added. “By comparing fingerprints at the scene of a crime with the fingerprints of a crime suspect, we can show absolute proof of the suspect’s identity. Another way, of course, is to compare the fingerprint found at a crime scene with the fingerprint of a suspect. I can do that right here in Custer.”

  “And in November of last year, were you asked to identify fingerprints having to do with the homicide of a woman named Emily Smith?”

  “Yes.”

  “By whom?”

  “I think Detective Polson was the one doing the asking, but it might have been one of his assistants who made the actual request.”

  “And what were you asked to do?”

  “I was asked to do two primary things. First, identify, if possible, the persons who made all the identifiable fingerprints at the scene.”

  “Let me stop you there. Did you collect any fingerprints at the scene?”

  “Many of them, yes. Crime technicians got the others.”

  “Okay. So, you obtain or receive prints and then you attempt to identify them using a database of stored prints?”

  “Usually.”

  “And what else were you asked to do?”

  “I was asked to look at the prints found on certain items of evidence and tell the law enforcement officers whose prints they were, if possible.”

  “How would you be able to figure that out?”

  “We can compare what we have with AFIS, er, the Integrated Automated Fingerprint Identification System. It’s a national database of everyone who has had their fingerprints registered.”

  “And who is that?”

  “Well, all suspected criminals get fingerprinted. Military personnel, law enforcement types, some government employees and contractors, and others working sensitive positions.”

  “So the match is done with a computer?”

  “Initially, and then in a case like this I would personally verify. Or, like I said, I could compare fingerprints at the scene with known prints, like the decedent’s.”

  “And did you perform both tasks?”

  “For the most part, er, well, yes. I mean, there were some prints I could not identify.”

  “Why not?”

  “Well, some prints weren’t identifiable. Just smeared or otherwise unrecoverable. For others, we couldn’t match because you must have a known source. If the person who left the print has never had their information put in the database, then there’s nothing to compare it with, so unless you have a second set of prints left by a suspect to compare your specimen to, you’re out of luck.”

  Ann then had the witness give an extended lecture on the difference between patent prints, latent prints, and the collection techniques for each. By the time that was done, it was time for a recess. Punch walked quickly into the parking lot and dialed Pleasance’s number.

  “Members of the jury, you’ll recall that at the time we took the lunch recess, Ms. Fulks was inquiring of Mr. Pleasance,” Daniels said, settling onto the bench. “Ms. Fulks, please continue. Mr. Pleasance, I remind you that you are still under oath.”

  Ann rose and stepped to the podium. “Mr. Pleasance, you were able to identify a number of fingerprints found in the decedent’s home—is that right?”

  “Yes, it is.”

  “How many sets were you able to identify?”

  “Well, we know there were at least six sets of prints in the home.”

  “So, you identified six sets of prints?”

  “No, we identified five. One set remains unidentified.”

  “So, one set of prints has never been identified?”

  “Yes.”

  “Is that all?”

  “Well, there were any number of prints that for whatever reason we couldn’t recover. Like I said, in some cases they were smudged, in others the source material was not conducive to our lifting a print.”

  “So you can’t be sure how many people had actually been in the house?” Ann asked, trying to take the sting out of any points Sam might make.

  “That’s right.”

  “Did you examine the prints on what’s been deemed the murder weapon?”

  “Yes.”

  “How many sets of prints were on that weapon?”

  “Two.”

  “Were you able to identify those prints?”

  “One set, yes.”

  “Whose prints did you identify on the weapon?”

  “The defendant’s.” All eyes were on Tommy, who sat rigid, just as Sam had coached. Sam was thinking about a question Ann had not asked.

  “And the other set remains unidentified?”

  “Yes.”

  Ann then inquired into each location where Tommy’s fingerprints had been located. It was damning stuff, on its face. At last, she concluded, “Your witness, counsel,” and turned to Sam, who remained seated, obviously thinking.

  “Mr. Johnstone, are you with us?” Daniels asked.

  “Yes, Judge,” Sam allowed while scribbling on a yellow pad.

  “Well, do you have any questions for this witness or not?”

  “Just a few, Your Honor,” Sam said, still seated and apparently lost in thought.

  “Well, get on with it!” Daniels said, drawing an approving nod from Juror 465.

  “Thank you, sir.” Sam rose and moved quickly to the podium to begin his questioning. “You can’t be sure how many sets of prints you and your people actually located in the home?”

  “No.”

  “So, it could be that dozens of people have visited the decedent’s home?”

  “Could be.”

  “And it’s not your job to eliminate them as suspects, is it?”

  “I just look at fingerprints.”

  “You said that fingerprint identification is ‘infallible’—was that your testimony?”

  “Well, yes.”

  “Strong word. But there can be mistakes—isn’t that true?”

  “Well, of course. People make mistakes.”

  “Can you tell the jury what a ‘false positive’ is as it relates to fingerprints?”

  “A false positive occurs when two prints that are not alike are mistakenly deemed to be a match.”

  “What’s a ‘false negative?’”

  “A false negative occurs when two matching fingerprints are mistakenly identified as not matching,” Pleasance said. He wasn’t enjoying having to admit the possibility of mistakes. Sam decided to change the subject. “So, six separate and identifiable sets of prints in the home?”

  “Yes.”

  “The decedent?”

  “Of course.”

  “The defendant.”

  “Yes. Lots of them,” Pleasance added gratuitously.

  “The decedent’s mother?”

  “Yes.”

  “Her housekeeper?”

  “Yes.”

  “And an unidentified set?”

  “Yes.”

 
; “That leaves one more set, does it not?”

  “Yes.”

  “A set you’ve identified?” Sam asked, looking at Ann. Detective Polson had testified to four sets having been identified during the preliminary hearing. He’d gotten nothing from the prosecution since.

  “Yes,” Pleasance admitted.

  “The identity of the donor of that set has not been disclosed to the defense, has it?”

  “Your Honor, the State objects,” Ann said. “This witness is not responsible for discovery by the State.”

  “Mr. Johnstone?”

  “I’m just trying to figure out what Mr. Pleasance knows, Judge.”

  “I’ll allow it,” Daniels said.

  “Not my job,” Pleasance said, taking his clue from Ann. “I don’t know what you’ve been told, sir.”

  “Do you know who left the fifth set of prints?”

  “Yes.”

  Sam was conflicted. The Golden Rule for trial lawyers is never to ask a question to which you do not already know the answer. Under the rules, the prosecution should have disclosed the donor’s identity as part of the discovery process. The fact they hadn’t done so was confusing; the only options that occurred to Sam were that Ann was either violating the rules or hadn’t been told whose prints they were yet. Tommy’s prints had already been placed at the scene. It couldn’t get any worse. He had to ask.

  “Whose were they?”

  Pleasance looked at Ann, who gazed down at her yellow legal pad. Then he glanced at Punch before returning his attention to Sam. “It was a single print, on a vase of flowers,” he said. “It belonged to one Jonathon Howard.”

  Punch watched silently as the courtroom predictably went into an uproar. He heard Sam asking for a mistrial, saw Daniels pounding the gavel to restore order, and stood with everyone else as the jury was sent to the jury room. He listened as Daniels ordered a brief recess, after which he would hear Sam’s motion for a mistrial. Punch sat back down heavily after the judge departed. Spectators, courtroom personnel, and attorneys alike chattered nervously, filling the ensuing silence.

  Sam and Tommy had their heads together, Sam obviously filling Tommy in on the meaning of Judge Howard’s prints. Ann was huddled with Rebecca, the two of them trying to get ready for the coming argument. Punch felt Ann should have the upper hand, because she’d obviously known the information would come out at some point.

  He got up and excused himself. “I’m going to stretch.”

  “Don’t go far, Detective,” Ann said through clenched teeth. “We might need your testimony.”

  Daniels was pouring himself two fingers of scotch when Mary entered his chambers to check on him. The break had come much earlier than she anticipated, and she didn’t have his afternoon tea prepared. Seeing the glass in front of Daniels, she scolded him. “Goodness, Judge. You cannot be drinking during a trial.”

  “Not now, Mary.”

  “What is going on?”

  “The shit has hit the fan,” Daniels said. “I’m going to have to grant Sam Johnstone’s motion for a mistrial. Damn it! We don’t have the time or money for another trial! That’s what’s going on. Get me my book of court rules. It’s on my bench.”

  “I’ll do that, sir,” Mary said. “But first, you finish that drink and brush your teeth.”

  “We’re back on the record,” Daniels said, moments later. “Mr. Johnstone, do you have a motion to make?”

  “Yes.” Sam rose from his chair. “The defendant moves for a mistrial. As you know, sir, under both Brady v. United States and Wyoming law, the prosecution has a duty to disclose exculpatory information in its possession. Here, the State had knowledge for some time that a fingerprint belonging to the very judge who signed the arrest warrant and presided over the preliminary hearing was discovered in the home of the deceased. That’s a failure to provide discovery and a staggering conflict of interest, and we ask the court to grant a mistrial.”

  “Ms. Fulks?” Daniels looked to Ann for the State’s response.

  Ann stood, looking drawn. “Your Honor, the information was not disclosed. The State admits that. But the information wasn’t exculpatory to begin with, and we didn’t have access to it ourselves until after the preliminary hearing, so we couldn’t have disclosed it prior. There is no evidence as to how that fingerprint got on the vase, and the defendant hasn’t shown—or even asserted—that he was prejudiced by not having the information. Therefore, we’d ask the court to deny the defendant’s motion.”

  “Mr. Johnstone?” Daniels was looking steadily at Sam. “What is the defendant’s response? More specifically, what prejudice do you believe has been sustained by the defendant?”

  “Your Honor,” Sam began. “I can’t begin to answer that question, because I don’t know what I don’t know. I know nothing about the print—when and where it was found, by whom, etc.”

  “You could inquire, couldn’t you? I’d certainly allow you to re-call any witnesses with relevant information.”

  “But I couldn’t begin to know whose information might be relevant! I don’t know who found what, where, or the like.”

  “But you could ask, could you not?”

  “If you would afford me some leeway, I could make a stab at it, Judge. But clearly my client is at a tactical disadvantage here.”

  Punch, who was next to testify, was fully prepared for the judge to declare a mistrial. He couldn’t help but think of the colossal waste of resources the trial had been—and all because Ann had disregarded her duty.

  Daniels looked at Johnstone for a long time, clearly on the verge of granting the motion. “Let’s take a recess; I want to think this over and do some quick legal research. We’ll reconvene after lunch,” he said, then stood and left the courtroom.

  “Sam—” Tommy began.

  “Not here,” Sam said. “I’ll talk to you in the holding cell. Be right there.”

  The courthouse holding cell was small, cramped, and bare, and Sam could smell the stale sweat on Tommy as soon as he entered.

  “Sam, I still don’t understand,” Tommy said.

  “The State failed to alert us to some information they had. Apparently, Judge Howard’s fingerprint was found on a vase in Emily’s house.”

  “When?”

  “What do you mean?”

  “When was the print found?”

  “I’m not sure. That’s part of the problem.”

  “Was it before or after we saw him?”

  “Well, from what Ann said, it sounds like the State didn’t know until after the preliminary hearing—if she’s telling the truth.”

  “So, what’s that mean?”

  “Well, I think the presence of the print is exculpatory—it means Judge Howard might have been in the house at some point. They were supposed to tell us that. And Judge Howard shouldn’t have signed the warrant for your arrest or heard the preliminary hearing because he had a conflict. I’ve asked for a mistrial—”

  “Why?”

  “Because the prosecution didn’t turn over what they had!”

  “And if we get a new trial, what then?”

  “Well, we’d basically start all over. Only this time I’d have all of the information—”

  “When?”

  “Well, I don’t know. I suppose it would probably be a few months—”

  “Months? No way, Sam. I’ve been locked in a cage for months already.”

  “But it’s your right!”

  “I don’t give a damn. Even before the preliminary hearing, you said that I needed to be prepared to get bound over—that everyone gets bound over, right?”

  “Well, yeah.”

  “And so I got bound over, right?” Tommy was up and pacing the room now.

  “Yes.”

  “So, what difference did it make who the judge was?”

  “That’s not the point.”

  “Sam, that is the point—to everyone except lawyers!”

  Sam sat back in his chair. “Tommy, the prosecution has to fol
low the rules!”

  “Screw the rules, Sam! I don’t want another trial. I want to get this over with one way or another.”

  “Tommy, maybe with a new jury—”

  “Let me ask you something,” Tommy began, pacing more furiously. “The jury knows now that Judge Howard was in her house before she died, right?”

  “Well, presumably. They know his print was there.”

  “So, this jury already knows what you’d tell them in any new trial, right?”

  “Well, yeah,” Sam allowed. “But Tommy, I think with this new evidence up front we could do a deal—”

  “I’ve told you, Sam: no deals. I didn’t kill her.” Tommy sat down and looked at him. “This jury knows that print was there. They have to know the prosecution was trying to screw me, right?”

  Sam sat quietly, looking at the yellow pad on the table.

  “I want to go on with the trial,” Tommy said. “Tell the judge you take back your motion, or whatever you call it. I don’t care whether that judge was banging her like a drum.”

  “I’m advising against it.”

  “Got it, Sam. Now, what do you need from me? Need me to sign something to cover your ass?”

  43

  In the courtroom, waiting for Daniels to be seated, Ann felt sick to her stomach. All of her preparation, all of her work, going down the drain because Howard had apparently been pumping Emily and Punch didn’t figure it out until it was too late. No doubt she would take the fall for this. Rebecca would assign another attorney to the re-trial. She took a long pull from the water cup on the table and set it down carefully, her hands shaking.

  “Please be seated, ladies and gentlemen,” Daniels began. “We are back on the record in State v. Olsen. The court has heard the argument of counsel and . . . Mr. Johnstone, do you wish to be recognized?”

  “Yes, Your Honor,” Sam said, already on his feet.

  “Well, what is it? I’m trying to make a record before I announce the court’s decision, sir.”

  “Your Honor, the defendant moves to withdraw the motion for mistrial.”