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A Carroll County judge last week heard what is apparently Georgia’s first state court challenge to the long-standing use of fingerprint identification. Lawyers and witnesses for defendant Jeffrey V. McGee, facing the death penalty for allegedly killing a Villa Rica, Ga., police officer, acknowledge that no two individuals’ fingerprints are alike. What they did dispute is calling fingerprint analysis a science, and presenting it to a jury as such. The process of comparing latent prints recovered from crime scenes to known fingerprints isn’t a scientific determination, a criminologist testified. “It’s a subjective judgment made by a person with training, background and skills,” said David A. Stoney, who heads the McCrone Research Institute in Chicago, a private group that provides training in microscopic analysis. But the head of the FBI’s latent print unit, Stephen B. Meagher, said Stoney was oversimplifying matters. Fingerprint analysis, he said, is “a qualitative and quantitative process, not a simplistic counting.” And, he added, it is widely accepted around the country and the world as a reliable identification technique. McGee’s lawyers B. Michael Mears and Kenneth E. Krontz want Carroll County Superior Court Judge Aubrey Duffey to exclude fingerprint evidence in the case — specifically, a print that police claim is McGee’s. The print was lifted from the police car of slain officer Robbie Bishop. Bishop was found shot to death in his patrol car on Jan. 20, 1999, alongside I-20. A warning ticket that Bishop had written to McGee was the last ticket the officer wrote, police said. If Duffey doesn’t exclude the fingerprint evidence, the defense lawyers want him at least to allow them to call expert witnesses to dispute the reliability of fingerprint analysis. The Carroll County prosecutors handling the case — District Attorney Peter J. Skandalakis and Assistant District Attorneys Anne C. Allen and Jeffery W. Hunt — contend there’s no merit to the challenge. CHALLENGES IN FEDERAL COURT At last week’s hearing, which lasted about 12 hours, Allen asked Duffey to take judicial notice of recent decisions by three federal trial judges, who had heard some of the same witnesses and who eventually rejected the challenge to fingerprint evidence. The most recent decision came less than a month ago, when a judge in the Southern District of Indiana, U.S. District Judge David F. Hamilton, upheld the admissibility of the evidence. Earlier this year, a judge in Fort Lauderdale, Fla., did the same. Chief U.S. Magistrate Judge Lurana S. Snow, in an April 7 order, found that while Stoney had “offered valuable comments on the limitations and subjective aspects of fingerprint identification,” those criticisms could apply equally to other large categories of scientific and technical testimony. “At a minimum,” Snow wrote, “it would be necessary to eliminate the defense of insanity, since virtually all psychiatric opinions are subjective, in whole or in part.” U.S. v. Alteme, 99-8131-CR-Ferguson (S. Dist. Fla. April 7, 2000). Fingerprint analysis didn’t have to be a science, she continued, to be admissible. She wrote that she found it to be reliable and relevant. She did, however, add that the defense could call witnesses to dispute the government’s fingerprint experts and to testify about the difficulties of making identifications. PRINT RECOVERY SCRUTINIZED In the Oct. 27 McGee hearing, the defense lawyers called to the stand two GBI agents who were involved in recovering and analyzing the print from Bishop’s car. The two did not testify about the particulars of the case, but about their work methods and standards. Crime scene specialist Lanny Cox testified that, when working a crime scene, he didn’t follow any particular industry standards to recover latent prints and that no one looked over his shoulder to see if he followed proper procedure. “Not one process is right [for recovering prints from] every surface,” Cox told Mears. How did he know if he had looked in enough places to recover all possible and relevant latent prints? Mears asked. “It’s just your call on the scene as to how far you go,” Cox replied. He acknowledged that he had no scientific training, but told Mears that collecting latent prints wasn’t “rocket science.” Print examiner Louis A. Cuenet, also with the GBI, testified that he knew of no national standard that determined how many matching points of comparison or minutiae were needed to make an identification. Generally, he said, eight is sufficient to declare an absolute identification. “There is no probable or likely,” Cuenet said. “It is or it is not.” How did he know when to stop looking for points of comparison? Mears asked. “It depends on how high you want to count,” the witness said. Mears then called a chemistry professor who teaches the history, philosophy and ethics of science, to talk about science and the scientific method. Jeffrey D. Kovac testified that “all measurements have errors and all investigations have loose ends.” Scientists, Kovac said, must be honest about what they claim to know and to what degree of certainty they know it. Standardization of methods and procedures is essential to science, Kovac said, as is peer review and verifiability. Stoney followed up on Kovac’s testimony by telling the court that those very elements — standardization, peer review and verifiability — are lacking in fingerprint analysis. Fingerprint examiners have no national standard that sets out how many points of comparison, or minutiae, are needed to declare two prints a match. “Nobody knows how much is enough,” Stoney testified. An examiner simply finds more and more and “then everybody agrees that’s plenty. We get convinced,” he said. Stoney said he had no trouble with the analysis process, but added that it simply wasn’t a scientific determination. “What’s missing here is the standard and the testability of the standard.” On cross examination, he admitted that he has conducted fingerprint analysis. And he declined to call fingerprint identification an unreliable process. “Are you saying throw out 100 years of testimony?” asked Allen. “I think that would be preposterous,” Stoney said. The FBI’s Meagher was the state’s sole witness. He testified that he has analyzed fingerprints for 28 years and has done millions of comparisons. He disputed the defense’s claim that there was no scientific method to the field. Examiners, he said, were guided by a process known as ACEV — analysis, comparison, evaluation and verification. Meagher cited a survey he had conducted involving fingerprint repositories in all 50 states, Canada and Great Britain. Although five states, including Georgia, did not respond, he said the results showed that 69.9 million prints were archived and that, in 1998 alone, 8.9 million searches for matches were conducted. None of the respondents reported ever finding two individuals with identical prints. With the survey, Meagher sent out a test of sorts: a set of prints with the individual’s name withheld. He requested that the agencies search their records and attempt to identify the individual. As expected, he said, Pennsylvania correctly identified the individual because he had an arrest record there.

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