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The justice Department took 13 months to review as many as 80 criminal prosecutions with potentially questionable fingerprint analysis involving one examiner at the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF), frustrating defense lawyers in the West who say they were not told about the potential problems. Although the ATF completed its own internal review and sent results to the U.S. Department of Justice in August 2004, the DOJ undertook its own case-by-case review and did not finish until September 2005, according to the Justice Department. This came at a critical time in 2004, when the scientific reliability of fingerprint analysis in general was under intense scrutiny following a 3d U.S. Circuit Court of Appeals ruling in April 2004 in a capital case. In May 2004, the FBI apologized to Oregon lawyer Brandon Mayfield for linking him by a mistaken fingerprint to the 2004 terror bombing in Madrid, Spain. And Boston’s Stephan Cowans was freed in 2004 after six years in prison for shooting a police officer when it was learned a fingerprint was wrongly identified as his. DOJ spokesman Drew Wade insisted that the internal review of ATF cases “had nothing to do” with the scrutiny of the scientific underpinnings of fingerprint analysis during that period. He characterized the DOJ review as “an intense deliberative process” and not a delay. Wade asserted that although the review of the ATF cases was not complete for 13 months, individual prosecutors were informed of the results, case by case, as reviews were completed in their districts. This could not be independently confirmed by The National Law Journal. Neither the ATF nor the Justice Department would release a list of cases or identify the districts affected, saying only that there were 14 affected districts in states west of Texas. Nor would Wade describe the DOJ’s recommendations for handling of the cases in its 2005 memo to U.S. attorney’s offices. “I don’t think we can get into details of that, it is part of the deliberative process,” he said. The ATF review covered an estimated 80 cases over a five- to six-year period, roughly 1997 to 2003, according to Marty McKee, ATF spokeswoman in San Francisco. The insufficient analysis was discovered in a routine ATF quality review of five of Klasey’s cases in 2003, which prompted the wider review, according to McKee. Due diligence absent The 2003 ATF internal review found no misidentifications or wrongly identified prints, only that an experienced examiner named Darrell Klasey did not process evidence with “due care and diligence,” leaving some areas unexamined, such as under gun grips, or failing to process latent fingerprints that other ATF examiners deemed identifiable, according to a letter from San Francisco prosecutors to the federal public defender in January 2006 concerning a 1998 gun prosecution, U.S. v. Windom, No. CR98-305MMC. “It’s disappointing we were not informed earlier. We would have liked to know this while he was serving his sentence,” said Steve Kalar, a federal public defender representing Randy Windom, who completed his four-year sentence after conviction on a charge of felon in possession of a gun. The theory of Windom’s defense was that the gun was found in a high crime area and did not belong to Windom. No fingerprints were found on the gun, but Klasey testified that a lack of fingerprints did not exclude Windom’s potential possession, according to Kalar. “If there was another print on the gun, that goes to guilt and it would have been important to raise at trial,” he said. Kalar said that his office has identified three other San Francisco cases in which Klasey testified but the defense received no notice from prosecutors. Calls to public defenders in districts covering Oregon, California, Idaho and Montana did not turn up anyone who had heard about the Klasey fingerprint issues, although each said that they planned to investigate their case records. In recent years, the reliability of fingerprint analysis has come in for criticism in law reviews and press accounts as too subjective, with varying standards for what constitutes an exact match and a lack of scientific testing of results. The issue has intensified since the U.S. Supreme Court’s Daubert decision, which requires greater scrutiny of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Robert Epstein, a federal public defender in Philadelphia who challenged the scientific reliability of fingerprint analysis in the 3d Circuit case, U.S. v. Mitchell, 365 F.3d 215 (2004), said the shortcomings of the ATF examiner “further demonstrates the need for scientific testing that will assess the accuracy of fingerprint analysis, develop objective standards for examiners and provide for better training.” Steve Wax, a Portland, Ore., public defender who represented Mayfield, said that he did not know about the ATF cases. He added that if the 3d Circuit’s Mitchell opinion in April 2004, which allowed an FBI agent to vouch for a fingerprint identification, had come up three months later-after the FBI apology in the Mayfield case-”there might have been a different outcome.” He said, “[The Daubert challenge] needs to be pursued again.” Kalar said that some defendants who pleaded guilty or went to trial without full knowledge of the fingerprint review problems in the ATF cases might have habeas claims. He acknowledged that there might be only a few successful claims out of the 80 cases, “but for those involved it is important.” McKee said that for active cases in 2003, the ATF brought in a second examiner to redo Klasey’s work and to testify in the cases. Completed trials or cases ending in guilty pleas were dealt with next. Klasey, an experienced examiner, voluntarily moved out of a fingerprint analysis job, according to McKee. Klasey declined to comment on his situation.

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