Under Cover of the Night

by Diane Fanning

  He then described his work with Wesley Earnest’s prints. “The comparison is made by placing the latent print side by side with the inked print, using . . . a microscope as a magnifier and picking out points of similarity . . . And you move back and forth between the latent print and ink print looking for similar points of identification in both prints in a relative area on both prints and trying to find . . . a sufficient number of points to effect an identification.”

  “Did you find points of similarity?”

  “Yes, I did.”

  “Did that allow you, based upon your training and experience, to reach a conclusion as to the origin of the fingerprints on the front side of that note?”

  “Yes, it did.”

  Joey Sanzone made another of his many objections during this testimony, this time based on speculation. The judge overruled him.

  “Mr. Riding,” Nance said, “what was your conclusion regarding your analysis of the front side of the note?”

  “That the latent print on the front side of the note and the inked fingerprint card . . . [of] . . . the left thumb were made by one and the same person.”

  They went on to discuss the latent found on the back of the note, which Riding also identified as being from the left thumb of Wesley Earnest. Using an exhibit with enlarged photographs prepared for the trial, Riding then pointed out the similarities to the jury over many objections from the defense.

  Sanzone began the cross-examination by putting Riding’s training, certification, and proficiency testing under the microscope. “You didn’t use any sophisticated graphic program available on a computer to make your comparisons in this case?”

  “No. I didn’t have to. The print was good enough [ . . . ] to use the magnifying glass and naked eye.”

  “But my point is, you don’t have any training on those programs, is that correct?”

  “That’s correct.”

  Sanzone’s next questions contained a thinly veiled criticism of Riding for accepting what he received from the Bedford County Sheriff’s Office and not going outside of that to obtain other prints for comparison. Then he said, “When we talk about the print, you said that the left [ . . . ] thumb print was the one you identified both times.”

  “That’s correct.”

  “And are you familiar with the term reciprocating print? And by that I mean, if I put my thumb on my paper right here I use my other fingers to balance . . . or to complete my grip. Are these sometimes called reciprocating prints on the back of the paper?”

  “Yes, they are.”

  “Did you find any reciprocating prints for the first thumb print that you said was at the top . . . ?”

  “No, I did not.”

  Sanzone repeated the question for the other print and got the same answer. The defense attorney then directed him to marks on the paper that could have been from other fingers.

  Riding said, “Well, they could be but they’re not clear enough, but they also may not have had any friction detail or been of any value for comparison purposes.”

  “Can you tell me for the first print or the second print when those prints were made?”

  “No, I cannot. There’s no scientific way to tell when the print was left.”

  “Did you receive any latent prints, any partial prints, any smudged prints, any possible prints from the alarm pad in Jocelyn Earnest’s home?”

  “No. I did not receive those.”

  Sanzone asked Riding the same question about the thermostat and the light switch and got a negative response to both. Then he said, “Would you agree with me that oftentimes a surface such as a plastic surface . . . on an alarm pad, a doorknob, a thermostat, a light switch . . . can often be good places to find fingerprints?”

  “Yes, they can be.”

  After establishing that the prints recovered from the note were partials, Sanzone asked, “And by your identification [ . . . ] here, you’re passing judgment on the unknown area of the full print, aren’t you? Aren’t you passing judgment there?”

  “No, I’m not.”

  “Aren’t you saying that if you had this partial print, if you could see the whole thing, it would match the full print?”

  “I don’t need the full print to make an identification.”

  “Oh, I understand, but what I’m asking is, when you say that this interior part matches, aren’t you also saying that if you could see the outside here you believe that matches?”

  “Yes, I do.”

  “And you have never seen, don’t know, can’t know what this outside portion of the partial print looks like actually, can you? No way to look at it by looking at the partial print.”

  “No, I can’t.”

  “If there is one point of dissimilarity in this unknown portion that we’ve talked about between the known print and the partial print—if it had been extended out there would be no match; isn’t that true?”

  “But the print has already been proven from the partial latent.”

  Sanzone complained the answer was not responsive but the judge urged him to continue. Sanzone said, “You said the print has already been proven to your satisfaction, is that what you’re saying?”

  “Through the science, it’s been proven.”

  “Well, now, let’s talk about the science [ . . . ] When you start examining fingerprints you know whose fingerprints you’re . . . seeing, don’t you?”

  “Most of the time, yes.”

  “This isn’t a blind study. It’s not something where you’re submitted a set of prints and you don’t know who they belong to and you’re submitted a second set of prints and you don’t know who they belong it; isn’t that true?”

  “That’s correct.”

  “You look at each set individually. Wesley Earnest’s name was written on one card and Jocelyn Earnest’s was written on another, isn’t that right?”

  “Yes.”

  “Do you know what ‘expectation bias’ is?”

  “No. Can you explain it to me?” Riding retorted sharply.

  An objection from the prosecution prevented Sanzone from doing just that. He asked the witness about the points of similarity in one of the prints. Riding testified that there were sixteen.

  The defense led the questioning through the points of similarity, questioning every decision. Riding repeatedly insisted that the size differences were irrelevant because that would vary with the pressure applied and the size has no bearing on the ability to match one ridge to another.

  “And in this case, from a percentage point of view you had . . . 20 percent of the possible points of similarities in the lowest number of a full fingerprint. You would agree with that, wouldn’t you?” Sanzone asked, referring to how a whole print could have up to seventy-five points.

  “Yes, but the print can be identified with as little as seven or eight points.”

  “According to your system?”

  “Yes.”

  “Now, do you have a particular document that you can rely on to say how many people in this room have fifteen points of similarity in their thumb print?”

  “No, I cannot, but in my forty years of experience, the most . . . points of similarity that I have noticed in the millions of prints that I have looked at, the most I’ve been able to find that were similar was five . . . maybe six points of similarity.”

  “. . . You’re aware of other people finding points of similarity between two people up to fifteen points?”

  “Objection, Your Honor,” Krantz said. “Assuming facts, not in evidence, Your Honor. He’s testifying.”

  From there, the questioning went in fits and starts as the prosecution objected, the lawyers argued, and the judge got exasperated and ended up sending the jury out of the courtroom. After more back-and-forth with the attorneys, Updike ruled that the question was improper and would not be asked in front of
the jury. Sanzone used his remaining questions to inform the jury that although there have been massive changes in technology since the 1960s, there have been no fundamental alterations to the way law enforcement performs fingerprint identification.

  • • •

  Andrew Johnson, another forensic scientist who worked with the Commonwealth of Virginia assigned to the Western Laboratory in Roanoke for seventeen years, followed Riding. Johnson specialized in fingerprint analysis as well as impression analysis—such as shoe prints, tire treads, other impression evidence. His extensive training came from a variety of sources including the FBI and Royal Canadian Mounted Police.

  After going through the long list of trainings, teaching experiences, and honors that qualified him as an expert, he answered questions about measurements. He explained that because people apply variable pressure and that changes the flatness and width of the fingerprint, that any documentation of width and height of ridges or patterns would be meaningless.

  Nance took Johnson through a long discourse on the biology and history of fingerprint identification. Then the witness testified to his examination and confirmation of the print identification made by Riding.

  Joey Sanzone made a major issue over the fact that Johnson did not bring his notes to the courtroom. Prosecutor Krantz objected to the innuendo that the defense was raising, leaving the impression that the Commonwealth had something to hide. The judge clarified the situation as well as he could to the jurors, but likely many were left with some concern over what had not been revealed.

  On redirect, Johnson explained that he’d also found fifteen to sixteen points of similarity to Wesley Earnest’s prints on the suicide note. At a later date, he examined the prints again using an uncropped photo and found two additional points of identity.

  With Johnson’s testimony, the prosecution closed its case. In traditional response, the defense made a motion to strike the Commonwealth’s evidence. “Judge . . . in support thereof, I say that there’s no evidence that anybody physically saw my client at the scene. There’s evidence that the gun had been possessed and ownership had been claimed within a will by Ms. Jocelyn Earnest. There’s evidence also in this case, Judge, that no one can establish the timing of the fingerprint.” Sanzone cited a Virginia Supreme Court case that ruled “that the mere existence of a fingerprint at a crime scene is not enough to make a sufficiency argument . . . And for all those reasons, we would submit that the case is not proper at this point to go forward.”

  “Viewing the evidence in the light most favorable to the Commonwealth as required at this stage, the motion is denied,” Judge Updike said. “The court feels this is a circumstantial case and there is circumstantial evidence other than fingerprint. Denied. Objections duly noted and preserved.”

  The Commonwealth’s case was made. It was now up to the defense team of Joey and Blair Sanzone to present testimony to free Wesley Earnest. If they failed to do so, the high school administrator could spend the rest of his life behind bars.

  THIRTY-EIGHT

  On November 17, 2010, defense attorney Joey Sanzone called his first witness, Susan Cropp, a forensic mitochondrial DNA examiner for the FBI with a bachelor’s in biology from Ohio State, master’s in zoology from Ohio State, and PhD in Population and Evolutionary Biology from Washington University in St. Louis. The judge qualified her as an expert in DNA analysis.

  She explained that mitochondrial DNA is related to maternal inheritance; it is not unique to an individual because all maternal relatives would have the same sequence. She testified that current databases have identified 5,071 different mitochondrial DNA types. In other words, there are that many known matrilineal genetic lines in the world.

  She performed a mitochondrial DNA analysis on six hairs submitted by Bedford County. She compared them to seven reference points: Joyce Young, Maysa Munsey, Shameka Wright, and several male acquaintances known to have been in Jocelyn’s home in the past, Leon Hill, Keith Whitted, Wesley Brian Earnest, and Charlie Carol Boyd III. No match with any of those individuals.

  On cross, the Commonwealth simply established that in addition to DNA analysis, the FBI lab also relied on fingerprint analysis to counter the defense claim that the science in that field was inaccurate.

  After a break, Joey Sanzone called Dr. Jennifer Mnookin to the stand. Krantz immediately objected to her testimony. The jury was sent out and the voir dire examination began.

  In his introduction of the witness, Sanzone said that Dr. Mnookin was an expert in fingerprint identification, its history, and its use. The Commonwealth stated that they had no objection to the defense laying out her background for the record but that their objection was that she was not a fingerprint examiner, and thus not an expert in the field. Because of that, they argued, she should not be allowed to render any opinion regarding the analysis done on the fingerprints.

  Outside of the presence of the jury, the judge wanted to hear about her qualifications and testimony before making a decision. The defense walked him through her impressive credentials, a social science degree from Harvard, a law degree from Yale, and a PhD in history and the social study of science and technology from MIT. She was currently working as a professor of evidence at UCLA’s law school and served on various national and statewide organizations.

  “Have you published articles relating to fingerprint identification?” Joey Sanzone asked.

  “Yes. I have published around half a dozen or so academic articles on various aspects of the adequacy of the research foundation and scientific basis for latent fingerprint identification [in] peer-reviewed academic journals.”

  Sanzone spoke of her national affiliations and asked, “The National Institute of Justice is what type of organization?”

  “It is a research arm of the Department of Justice essentially, and it funds research into the criminal justice system. I along with some co-investigators applied for a set of competitive grants and [ . . . ] I’m the primary investigator [ . . . ] Our study is endeavoring to develop some objective measures of difficulty for latent print comparison. And then we are hoping to be able to determine some useful information about error rates as a function of difficulty.”

  “Are you aware of the method for fingerprint evaluation in this case that was talked about, the ACEV method?”

  “Yes, I am not a fingerprint examiner, but I do—”

  Krantz interrupted, “Your Honor, I know he needs to make out the record and the Court’s ruled, but that’s the exact issue right there.”

  The judge allowed Mnookin to explain that although it was out of her expertise to “make a statement about whether or not two prints did or did not match,” she expounded on her study of other methodologies. Updike asked for a response to the interview from the prosecution. Krantz said, “At the end of the day, she’s a law professor. There can be but one judge in this courtroom. And nothing that she offered overturns . . . the underlying reliability of fingerprints. And I’m not sure what she’d be testifying to. And as she very candidly stated . . . she is not a fingerprint examiner. She would not be rendering an opinion on whether any particular fingerprints matched. She is not a scientist.” He argued that the law clearly stated, “‘Being an expert in one field does not qualify one to speak as an expert in another field even if the field is closely related,’” and said, “I have no questions about her knowledge base and the usefulness of the endeavors she’s engaged in, but I paid careful attention to what she said . . . They’re hoping to develop, trying to create, would like to try to develop. So even with her stated research, it’s tenuous at this point.”

  Judge Updike agreed, ruling that in his opinion, such testimony “requires someone who qualifies as an expert in the field of fingerprint analysis . . . Though this witness quite obviously is an expert in many fields, extremely well educated, extremely intelligent, I’m certain, but the issue of whether she’s qualified to offer evidence that I feel is of the natur
e requiring expertise in the field of fingerprint analysis, it is my ruling that she is not.”

  • • •

  The next witness, Rodney Wolforth of the Virginia Department of Forensic Science, possessed expert qualifications in his stated field of DNA analysis: a bachelor of science degree in biology and a master’s degree in forensic chemistry from the University of Pittsburgh along with working experience since 1976 with the Michigan Crime Lab and as the unit supervisor in the forensic biology section here in Virginia. Adding to his background was his stint as a visiting scientist at Quantico where he worked on the short tandem repeat project, which was the type of analysis he did now.

  After receiving the swabs of the sample from the sink, Wolforth testified that he’d compared that unknown to samples from Jocelyn Earnest’s family and friends, as well as from law enforcement known or suspected to have been in the house. None were a match. He did determine that the blood came from a male, but nothing more than that.

  The profile of that sample was now a permanent record entered into the Combined DNA Index System, which is the federal, state, and local DNA database, and could still be matched on any sample that came through in the future, but as of that day in the trial, no matches had been found.

  Krantz conducted the cross-examination with an attitude, as if he were offended by the existence of an employee of the Commonwealth as a witness for the defense. “I’m assuming at some point in time, after DNA analysis began being used in the forensic sciences labs in Virginia, including Roanoke, they shut down all the other parts of the lab; is that correct? I mean, there’s no longer a toxicology lab since we have DNA?”