Ed. Note: Chris Halkides has been kind enough to try to make us lawyers smarter by dumbing down science enough that we have a small chance of understanding how it’s being used to wrongfully convict and, in some cases, execute defendants. Chris graduated from the University of Wisconsin-Madison with a Ph.D. in biochemistry, and teaches biochemistry, organic chemistry, and forensic chemistry at the University of North Carolina, Wilmington.
From the perspective of the defense, excluding the defendant does not require that the person who made the fingermark (an unintentionally made impression) be identified. However, when they point to an alternate suspect, they gain value as evidence. The location or medium in which fingermarks are made occasionally give probative value, for example when a medium such as blood localizes the time period in which the fingermark was made. There are over 160 million fingerprints (deliberately made impressions) in the Integrated Automated Fingerprint Identification System (IAFIS). Therefore, an automated searching system, followed by manual checking, is used to identify the source of fingermarks.
The Marquette Four were youths tried and convicted as adults of a double murder in Chicago that occurred in 1995. The main evidence against them were their false confessions, and their exoneration took more than twenty years. The police collected 23 fingermarks and four palm marks, nine of which came from the front and back sides of stickers from stolen cars associated with the crime. Prints from the back (adhesive) sides must have been made after the stickers were removed, thought to be after the murder and subsequent theft of the car. The existence of the prints and the fact that they were not matched to the defendants was not revealed to the defense. When the fingermarks were subjected to automated searching a second time many years later, five of the donors were identified, one of whom was one of the two victims.
Adam Braseel was convicted of the murder of Malcolm Burrows, despite not being the source of any fingerprints in Mr. Burrows’ car. In early 2016, Braseel was released because of an improper photo lineup, but he was returned to prison about nine months later. In 2017 the Tennessee Bureau of Investigation upgraded its fingerprint identification system. Unidentified latent prints from the car were chosen at random to test the new system, and the search returned the prints of ten individuals. An agent who checked them determined that they were made by Kermit Bryson, a violent individual and suspected killer who, like Braseel, had red hair. An agent later testified that these latent prints were fragile pieces of evidence, which undermined the state’s theory that Bryson made the prints at some time prior to the murder.
More than a year after this, the state informed Braseel’s attorney. The state offered a series of plea deals to crimes of decreasing severity. Tennessee dropped the murder charge against Braseel in 2019, and he was fully exonerated in 2021. It is unclear why previous searches did not retrieve Bryson’s prints. Tennessee later adopted a law governing postconviction petitioning for fingerprint analysis, becoming one of only a handful of states which have this provision.
Chester Weger was convicted of an infamous triple murder that occurred in 1960 at the popular Starved Rock State Park in Illinois. The three victims were the wives of executives in Chicago. Three items of clothing had a total of eight bloody fingermarks. The authorities obtained the fingerprints of up to five hundred people who worked at the park or lived in the area. The prints were not made by the victims, and it is probable that they were not made by Weger, inasmuch as fingermarks was not part of the case against him. The central plank against him was a confession that Weger said was coerced. Yet the fingerprints had to be made during the crime or in the period of time immediately afterward, prior to drying of the blood. Whether or not Weger’s attorneys made this point during his trial is unclear, but a jury ignored a bloody palm mark in the Timothy Bridges case.
Although some hair and fiber evidence and some cigarette butts were preserved from this high-profile crime, the fingermarks were not. He was released after serving sixty years, and his lawyers successfully argued for DNA testing of eight of the remaining items of evidence; the results of these tests may soon be forthcoming.
Each of these cases illustrates at least one problem for the defense regarding fingermark analysis. In the Marquette Four case, the true perpetrator’s prints were apparently not in the AFIS data base during the first search, and the data base was not usable for some of the marks. Braseel did not have a legal means to compel testing. Illinois is one of a few states that provides for forensic testing beyond DNA, which was critical for the Marquette Four and could have worked in Weger’s favor if the fingermarks had been preserved in some way. Other casework also demonstrates that fingermarks may be misidentified and that latent fingermarks are not always noted in reports.
Simon Cole and Barry Scheck wrote,
Crime-scene marks whose source is not identified are typically stored in an unidentified latent file (“ULF”) in AFIS. When a new set of prints (say, from an arrestee) is entered into the system, they are automatically searched against the ULF…What is less known, however, is that these routine ULF searches require a relatively high match score threshold to trigger a review by a human latent print analyst, presumably to avoid wasting human resources on false alarms… Different results may be expected if the agency chooses to relaunch the search of the unidentified mark. In a relaunched search, without the high match score threshold, the analyst may find candidate sources that otherwise would have gone overlooked. Some, but by no means all, agencies annually relaunch searches of unidentified marks.
A much needed reform is for all states to adopt fingerprint database search laws analogous to those for DNA databases.
For further reading
“Fingerprints and Miscarriages of Justice: ‘Other’ Types of Error and A Post-Conviction Right to Database Searching” Simon A. Cole and Barry Scheck Albany Law Review 81.3 2017-2018 807-850.
“Unmaking a Murderer,” Jake Malooley, Chicago Magazine 14 December 2021.
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