Fingerprint Issue Won’t Tank Drug Conviction

     CHICAGO (CN) – The 7th Circuit affirmed the conviction of a man amid concerns that police tampered with evidence to plant his fingers on a bag of heroin.
     Clacy Watson Herrera was indicted in 2001 for participation in a Chicago-based drug ring that imported cocaine and heroin from Panama and Jamaica. The charged activity allegedly occurred between 1996 and 1999, but Herrera eluded U.S. authorities for years until he was finally extradited from Panama and brought to trial in 2010.
     Central to the government’s case, investigators had matched Herrera’s fingerprints to a package of heroin recovered from a drug currier’s rectum.
     But Chief U.S. District Judge James Holderman twice excluded the evidence, as well as expert testimony that the fingerprints belonged to Herrera.
     Initially, Holderman had found that the government produced the evidence after a discovery deadline. On appeal, the 7th Circuit ruled that there was no indication of bad faith by the government, and that exclusion was a disproportionate sanction for an innocent violation.
     But Holderman refused to include the evidence on remand. This time he expressed concern that the government could not demonstrate “chain of custody” over the evidence that would have prevented tampering.
     “The judge had excluded the exhibit and related testimony because he suspected, though on the most tenuous of grounds, that the government had tampered with the fingerprint evidence,” according to the 7th Circuit’s latest summary of the case.
     Specifically, Holderman noted that the bag had gained 20 grams of weight between May and September 2001, which he believed might have been attributable to federal officers pressing a piece of tape containing Herrera’s fingerprints to the drug packaging.
     Writing for a three-judge panel of the federal appeals court, Judge Richard Posner noted that Holderman attached no significance to a second change – the bag gained another 190 grams between September 2001 and the trial.
     “That suspicion grew into a conviction, for which there was no rational basis, that government lawyers had lied about the chain of custody,” Posner wrote for the 7th Circuit. “To no avail the government explained that the reason for the increase in weight was that the bag with the fingerprints, after being opened so that the presence and amount of the illegal drug contained in it could be verified, and later closed up again, had been weighed together with other bags. The reported weight was the weight of the package containing all the bags, and thus there were more bags in it. Obviously the package would not have gained 210 grams (20 + 190) – almost half a pound – from replacing a piece of the tape in which one of the bags was wrapped by a piece of tape containing the defendant’s fingerprints.”
     Still unconvinced, Holderman threatened to order a mistrial because he believed it bar future prosecution of Herrera on double jeopardy grounds.
     But the 7th Circuit ordered the evidence admitted, and had Holderman taken off the case, in July 2010. The appeal caused an 11-day hiatus in the trial.
     When the trial resumed, this time under U.S. District Judge Rebecca Pallmeyer, a jury convicted Herrera.
     Herrera’s case went before the 7th Circuit again as he challenged the sufficiency of fingerprint evidence and argued that Holderman’s recusal prejudiced the jury.
     The 7th Circuit summarily rejected both arguments Wednesday.
     “The defendant is therefore mounting a frontal assault on the use of fingerprint evidence in litigation, an attack the courts have frequently rebuffed,” Posner wrote.
     Matching latent fingerprints is akin to asking the opinion of an art expert on whether “an unsigned painting was painted by the known painter of another painting,” the decision states. But other forms of evidence, such as eyewitness testimony, are similarly subject to error.
     “Fingerprint experts such as the government’s witness in this case … who has been certified as a latent print examiner by the International Association for Identification, the foremost international fingerprint organization … receive extensive training; and errors in fingerprint matching by expert examiners appear to be very rare,” Posner wrote.
     “Of the first 194 prisoners in the United States exonerated by DNA evidence, none had been convicted on the basis of erroneous fingerprint matches, whereas 75 percent had been convicted on the basis of mistaken eyewitness identification.”
     The court also rejected Herrera’s claim that the jury could infer meaning from the removal from the case of Judge Holderman, who had appeared sympathetic to Herrera. Herrera said the jury realized Holderman had been “disciplined” for siding with him, and then convicted.
     Posner concluded, however, that “there is no history of which we’re aware of miscarriages of justice resulting because juries draw erroneous inferences from the replacement of a judge.”

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