Vol. 8, Nos. 52
Covering Cases Published in the Advance Sheets through December 24, 2001

Highlights of this Issue:

Supreme Court Case :

Challenge to the Use of Fingerprint Evidence Upheld:

New Test for Determining When Substitution of Counsel is Required:

U.S.S.G. and Sentencing Issues:

Bail Hearings Required for Aliens Facing Deportation - Another View:

No Immunity for Former New Jersey Attorney General in Racial Profiling Case:

Don't forget to visit the "Apprendi Watch" section of the Member's section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to and summaries of more than 400 published lower-court Apprendi.

United States v. Plaza, Crim. No. 98-362-10 (E.D.Pa. 01/07/2002) (Judge Pollak)

It is hard to tell where this 49-page decision will lead, or what impact it will have on future cases, but it certainly has stirred up a furor. Some legal commentators called it a "groundbreaking" or a "blockbuster" opinion. The New York Times, in a feature article, described the decision as the "first time" that a Federal judge has ruled that "fingerprint evidence, a virtually unassailable prosecutorial tool for 90 years, does not meet the standards set for scientific testimony and that experts in the field cannot testify that a suspect's prints definitely match those found as a crime scene."

What makes the decision even more intriguing is that is was written by the highly-respected Judge Pollack, a former dean of both Yale University and University of Pennsylvania law schools. The decision comes after a number of years of growing attacks on the validity of fingerprint evidence. (See, e.g., "Suspect Identities: A History of Fingerprinting and Criminal Identification", by Simon Cole, Harvard University Press: May, 2001).

The decision also comes after a series of concerted efforts by a number of defense lawyers to hold fingerprint analysis to the scientific standards established by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Court presented four "general observations," which are commonly referred to as the "Daubert factors": (1) whether the technique "can be (and has been) tested," (2) whether the technique has been "subjected to peer review and publication," (3) "the known or potential rate of error . . . and the existence and maintenance of standards controlling the technique's operation," and (4) whether the technique is "generally accepted" as reliable in the relevant "scientific community."

The decision in this case involves three defendants who were charged with operating a multimillion-dollar drug ring linked to four murders. In response to a defense motion to preclude the introduction of fingerprint identification evidence, Judge Pollak ruled that the Government's fingerprint experts could not tell the jury that two fingerprints are a "match," because the science upon which such testimony depends does not meet the Daubert standards in several respects. While Judge Pollak did take "judicial notice" of the fact that fingerprints themselves are both "unique" and "permanent," he observed that fingerprint experts don't actually examine the finger. They compare a "rolled" print taken at the police station with a partial smudge (or "latent" print) taken at the crime scene. What Judge Pollak found significant was that there is no universal agreement on how many similarities must exist before a "match" can be declared - making the analysis highly subjective.

For example, he noted that fingerprint examiners often look for "points" (referred to as "Galton points") on the ridges that the latent prints and the rolled prints have in common. In some states and in some foreign jurisdictions, fingerprint experts must find a minimum number of Galton points before they can declare a match with certainty. England employs a 16-point minimum and Australia employs a 12-point minimum. In the late 1940's, the FBI switched from relying on a mandatory minimum number of points to no minimum number. The absence of any standards in making the comparisons led Judge Pollak to conclude that the techniques used to match prints is both subjective and scientifically unreliable.

Judge Pollak also noted that fingerprint "experts" tend to be "skilled professionals who have learned their craft on the job and without any concomitant advanced academic training." As a result, he concluded, "it would thus be a misnomer to call fingerprint examiners a scientific community' in the Daubert sense."

Judge Pollak stopped short of tossing out all fingerprint testimony, saying that such a ruling would be "unwarrantably heavy-handed." Thus he ruled that experts on both sides can testify how the prints were obtained and the similarities and differences between them - but his decision was a major victory for the defense in this case. While the decision is not binding on any other court, it is likely to generate challenges in other jurisdictions - and because of its detailed and scholarly study of fingerprint evidence, we expect that this decision will guide many lawyers and courts for a long time.

Kim v. Ziglar, No. 99-17373 (9th Cir. 1/09/2002) (Judge Wm. Fletcher)

In the second such ruling in the past three weeks, a panel from the Ninth Circuit held that a convicted felon awaiting a deportation hearing is entitled to a bail hearing. In December, 2001 a panel from the Third Circuit issued a similar ruling. (See, Patel v. Zemski, No. 01-2398 (3rd Cir. 12/19/01) (P&J 12/10/01)). The petitioners in both cases were represented by Judy Rabinovitz, the senior staff counsel for the American Civil Liberties Union.

In the instant case, the panel also ruled that a key provision of the immigration laws, namely, 8 U.S.C. § 1226(c), which denies bail to aliens awaiting deportation, is constitutionally invalid "as applied to lawful permanent resident aliens." It continued that "[a]s a lawful permanent resident, Kim is entitled to the individualized determination and fair proceedings guaranteed by the Due Process Clause of the Fifth Amendment."

The petitioner in this case, a native of Korea, came to the United States in 1984, and he became a lawful resident two years later. In 1997, at the age of 18, he was convicted of burglary; and the next year he was convicted of petty theft and sentenced to three days in prison. The day after his release from state prison, he was detained by the INS on the grounds that his criminal record made him deportable, triggering his mandatory detention under § 1226(c), which in commonly referred to as INA § 236(c).

Kim then filed a petition for a writ of habeas corpus and, after some six months in detention, the district court (Judge Illston of the N.D.Cal.) held that the mandatory detention provisions of INA § 236(c) were unconstitutional; and Kim was immediately released on $5,000 bail.

Although the Ninth Circuit somewhat narrowed the scope of Judge Illston's ruling by limiting it to lawful permanent residents, it pointedly stated that "[w]e must remember that our nation's armor' includes our Constitution, the central text of our civic faith. It is the foundation of everything that makes our country's system of laws and freedoms worth defending." Significantly, the panel also stated that "[w]e are reluctant to uphold civil detention impinging on fundamental liberty interests, based on a government policy the need for which the implementing agency itself has questioned."

White v. Williams, No. 99-CV-2240 (D.N.J. 1/09/2002) (Judge Pisano)

In a significant victory for black motorists suing over alleged "racial profiling" by New Jersey state troopers, District Judge Pisano ruled that former New Jersey Attorney General Peter Veniero - who now sits on the New Jersey Supreme Court - can be held personally liable for monetary damages in a civil rights suit on the grounds that he allegedly knew of the illegal practice but did nothing to stop it.

A number of studies have shown that African-Americans were 4.85 times more likely to be stopped on the New Jersey Turnpike than non-African-Americans. The plaintiffs sued a number of defendants, and alleged, inter alia, that Veneiro had concealed the existence of racial profiling by the state troopers until April, 1999, despite learning of its existence through a lawsuit filed shortly after he became the Attorney-General in 1996.

The Court's ruling was on a motion for summary judgment filed on behalf of Veneiro; and the case still has a long way to go before any damages are assessed. However, what is particularly significant is the plaintiffs' use of a variety of claims - some of which are rarely used. For example, the plaintiffs sued under four separate provisions of the Civil Rights Act: 42 U.S.C. §§ 1981, 1983, 1985(3) and 1986.

Section 1983 (Civil Action for Deprivation of Rights) is the familiar and most commonly used provision for most civil rights suits. Here, though, the plaintiffs also sued under § 1981 (Equal Rights Under the Law); § 1985(3) (Conspiracy to Interfere with Civil Rights - Depriving a Person of Rights or Privileges); and § 1986 (the companion to § 1985(3) which provides for a cause of action "against persons who, knowing that a violation of § 1985(3) is about to be committed and possessing the power to prevent its occurrence, fail to take action to frustrate its execution.").

Judge Pisano found that the plaintiffs had failed to meet the burden of proof required under § 1981 because they had only presented "conclusory allegations of generalized discriminatory intent" and not that Veneiro had acted with "discriminatory intent" as required for claims under that provision. But he also concluded that the plaintiffs had presented sufficient evidence to proceed with their claims under §§ 1983, 1985 and 1986.

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