Gate-Keeping Long After The Horse Has Left

A truly remarkable thing happened in Maryland.   Judge Susan Souder agreed to take a look at a long-time scientific sacred cow of law enforcement and found it wanting. 

As noted by my virtual next-door neighbor, Mark Bennett, the wheels started rolling in the aftermath of the  Brandon Mayfield disaster, resulting in an investigation by the FBI’s Office of the Inspector General.  It found its way to Judge Souder’s bench in a capital murder case, Maryland v. Bryan Rose.  In a long and deliberate opinion, Judge Souder deconstructed fingerprint identification ridge by oily ridge.

What makes this so remarkable is that law-enforcement, prosecutors and courts have relied on fingerprints for 100 years.  This “science” has become so well established in our system, and the mind of the public, that it was beyond doubt.  The notion of challenging fingerprinting at Frye hearing borders on ludicrous.  And yet, it happened.

Had Spanish law enforcement authorities not eschewed the FBI’s determination that Brandon Mayfield, lawyer, honorably discharged American war veteran, Muslim, was a terrorist bomber, the sequence of events would never have happened.  Never.  But they did, thankfully.

Judges are charged with the function of being the “gate-keeper” of reliable evidence at trial.  Most people think that the jury is left to distinguish good allegations of fact from bad, but there is a primary function that must first happen before evidence is presented to the jury.  It’s purpose is to prevent junk that smells like fact from being introduced at trial, and then letting a jury decide whether to accept it.  Trials are not well-suited for these sort of determinations, as they are tangential to the main issue and invariably exceed a jury’s ability to distinguish commonly-accepted but entirely erroneously “fact” from establishable fact.

The problem is that most judges do not take their gate-keeper function seriously.  It has happened to me, many times, and has no doubt happened to every other lawyer who actually tries cases.  We raise, argue, implore judges to open their minds to the possibility that some piece of evidence, whether scientific or otherwise, is nothing more than worthless junk that will be given undue weight by a jury because it comports with “common wisdom” or “common sense.” 

Why are judges so reluctant to even consider such a challenge?  Initially, judges are generally stingy with their time.  While they generally couldn’t care less how much of our time is wasted, they consider their time very precious and will not spend it on a hearing that they deem, in advance, futile. 

Further, they recognize that the evidence involved is usually critical to the prosecution, and a negative outcome for the prosecution means that the defendant walks.  It’s not that judges are so result-oriented that this outcome would break their hearts (though that is true with unfortunate frequency), but that they do not want to be personally responsible for this outcome.  In other words, if the jury acquits, fine.  But they aren’t going to put their butt on the line to toss the case.  Doing such a thing is bad for business when you’re a judge, and dependent on the largess of government for advancement.

So Judge Susan Souder took a huge personal risk in her Bryan Rose decision.  Her profile was raised enormously, but she had no idea whether she would be excoriated for letting a murderer go, or revered for her detailed and deliberate dissection of the ACE-V methodology of fingerprint identification.  Would she make her reputation, or kill it? 

Why would a judge take such a huge risk?  The simple answer is because that’s her job.  It a judge lacks the fortitude to make tough decisions, then she has no business wearing a robe.  But, of course, the simple answer rarely suffices.  Had it not been for the fortuitous FBI screw-up in the Brandon Mayfield case, there would have been no crack to wedge in a Frye hearing, and no government-created evidence to bolster the defense’s position. 

Had the defense retained an expert to perform the same analysis of ACE-V that appeared in the OIG report, would it have been sufficient?  Not likely.  Not likely to have been sufficient to even get a hearing, no less prevail at the hearing.  The fact that the primary analysis of fault of the ACE-V method came from the government itself was critical to getting the judge to take her gate-keeping function seriously.  It also helped that this was a capital murder case, as Judge Souder expressly noted up front that “Death is Different.” 

What does this mean for the rest of us?  The message seems quite clear.  For the mundane prosecution of a non-capital case, whether it be drugs, rape or even murder, the likelihood that the court will follow the well-trodden path remains strong.  Without extrinsic evidence that comes from a source that the court cannot easily ignore, common wisdom will trump deliberate wisdom every time.  While the Bryan Rose decision was a huge victory over junk science, the confluence of events that gave rise to it doesn’t happen too often. 

We may argue that this decision should open the eyes of judges across the nation to the idea that current scientific thought is often determined later to be nothing more than voodoo, and that they should give real consideration to the scientific methodology that is used daily to prove facts before allowing the jury to be told that guilt has been proven to a scientific certainty. 

But this would require a depth of thought, understanding and healthy skepticism that is missing in most courtrooms.  And would be highly unlikely to enhance the careers of most judges.  It’s wonderful that Judge Susan Souder took the chance for Bryan Rose.  It’s unlikely that it will happen again any time soon.

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