Innocence

by David Hosp

  “Okay, but all we’ve really got here is the opinion of one guy on the stand. That’s something, at least.”

  Smith laughed derisively. “That might be something in another case. It’s nothing here.”

  “Why?”

  “Because. You’ll never find another credible expert who’s going to disagree with the fact that these two particular prints match. We’re talking about nineteen points. There’s no place in the world where that’s not considered a conclusive match. You’re never going to find anyone to say different—for any fee.”

  Finn considered his next question carefully. “Not even you?”

  “Sorry, my friend,” Smith said. “I value my reputation more than any single fee, no matter how high. Hell, you don’t even pay as well as some of the bigger firms I work with. If I didn’t like you in the first place, I probably wouldn’t take your calls anymore.”

  Finn blew out a long breath. “This guy’s innocent, Smitty,” he said. “Innocent. You know what that means?”

  “Sure. It means he got fucked somehow—if you’re right. He’s not the first, and he sure as hell won’t be the last. It’s a simple matter of odds. There are more than two million people in prison in this country. You lock up two million people, and you’re gonna get it wrong a few times.”

  “And you can live with that?” Finn demanded.

  “Hell yes. And I’m sure as shit not going to get myself locked up in there with them by getting myself caught up in a perjury count. I don’t care how much I like you.”

  “I know,” Finn said. “You’re right.” He thought for a long moment. “Is there any way we can attack the match? Anything you can give me?”

  “If I was up there, I could buy you a beer. I’m not, though, so . . .”

  “Nothing? No suggestions?”

  Smith considered the question. “Okay. Let’s assume you’re right and this guy really is innocent. That would mean someone fucked up the evidence, either accidentally or otherwise. So the logical question is: Who could have done that?”

  “Cops,” Finn answered without a thought.

  “Makes the most sense,” Smith agreed. “Cops have the best opportunity to frame someone. But why Salazar?”

  “I don’t know,” Finn admitted. “But then I don’t really care why. I just want my guy out. Salazar was sent up for shooting a cop. Maybe they just wanted to make sure that someone did the time.”

  “Could be,” Smitty said halfheartedly. “It’s never good for the boys in blue if a cop gets shot and everyone thinks someone got away with it. Sometimes it’s better for the cops if they arrest someone—anyone— rather than let it go officially unsolved.”

  “So,” Finn pushed the thought along, “let’s assume for the moment that the cops did this deliberately. How would they go about it? And more importantly, how do we prove it?”

  “Interesting question,” Smith said. “The easiest way would be to lie on the stand. Claim that two prints matched when they didn’t. That didn’t happen here. Like I told you, these prints definitely match.”

  “Okay,” Finn conceded. “So how else could they do it?”

  “They could lie about whose prints they were comparing.”

  “I don’t understand.”

  “I mean, they’ve got the set of prints from the gun, a set of prints from Salazar, and a set of prints from the real perp. They switch the names on the prints belonging to Salazar and the perp. Then they’re telling the truth that the prints match, but they’re lying about whose prints they are.”

  “Could they do that and get away with it?”

  “Why not?”

  “I don’t know. Wouldn’t someone notice that the prints weren’t Salazar’s?”

  “How? It’s not like anyone recognizes their fingerprints by sight. I could flash anyone’s prints up on a screen and tell you they’re yours, and you’d have no way of knowing. Hell, the reality is that a jury will usually believe any so-called fingerprint expert no matter what the prints look like.”

  “It’s just a little disturbing that it could be that easy to frame someone and get away with it.” Finn forced himself to get beyond his disbelief. “Okay, let’s assume that’s what happened here. How do we prove it?”

  “That’s easy,” Smith said. “Just send me a fresh set of Salazar’s prints—ones you know for a fact are actually his. If they don’t match up

  with the two sets I’ve got here, then bingo: We know someone pulled a switch.”

  It would be difficult, but Finn would find a way to get it done quickly. “Okay. Now let’s assume that’s not what happened. Are there any other ways someone could have done this to set Salazar up?”

  “Sure,” Smith said. “They could’ve planted Salazar’s prints on the gun.”

  “How would they do that?”

  “They just get something with a clear print from your boy—a glass or something that holds the finger’s acids well—cover the print with tape so the adhesive picks up the print, pull the tape off, and put it on the gun. The tape transfers the oils that make up the fingerprint to the new surface—in this case, the gun. Take off the tape, and you’ve got yourself some fake evidence good enough to send someone away nine times out of ten.”

  “Can it be detected?”

  “Depends on how well it was done. Sometimes you can leave some of the adhesive on the gun as well. It doesn’t prove that the print was planted, but unless there’s some other logical explanation, it certainly raises doubt.”

  “Doubt’s all I’m looking for.”

  “Don’t get your hopes up too high, Finn. After fifteen years, the likelihood that you’d find something is pretty slim. It’s worth a try, but I wouldn’t bank on it. Can you get ahold of the gun?”

  “I don’t know. Salazar’s defense had a right to examine it when he was tried, but now that he’s been convicted, I get only what the district attorney or the court gives me. They won’t give it up without a fight.”

  “I sure wouldn’t,” Smith said.

  “I’ll try to figure something out. Can you think of any other way someone could have messed with the evidence?”

  “Not offhand, but I’ll give it some thought.”

  “Would you?” Finn asked. “I’d really appreciate it.”

  “No, you’ll really pay for it. You may work for free for this guy. I don’t.”

  “Fair enough. Send me your bill, and I’ll take care of it.”

  “I like the sound of that,” Smith said. “And send me a fresh set of Salazar’s prints when you get a chance. I’ll compare them with the prints I’ve got down here.”

  “Will do. And, Smitty?”

  “Yeah?”

  “Thanks.”

  z

  Finn spent much of the rest of the morning on the Internet, learning more about the process of fingerprint identification. It was helpful to have Smitty guiding him through through the morass, but there was no substitute for independent research. Besides, Smitty relied on the perception of fingerprint analysis as a firm science for his livelihood, and Finn had some reason to question his objectivity on the subject. The expert’s description of the subjective nature of the process had surprised Finn, and he was anxious to learn more.

  What he discovered shocked him. He’d always assumed that fingerprint analysis was an objective science: Either the prints matched or they didn’t. But in reality, whether two sets of prints matched was often more a matter of opinion than fact, and there were numerous recent examples of misidentifications. In 2004 an Oregon man had been arrested based on a match of his fingerprints with those of prints found on items tied to the terrorist bombing of a Madrid train that had killed dozens of people. Two FBI fingerprint experts had confirmed that the prints were a clear match, and the man had spent six weeks in prison as they investigated him to shore up their case. Ultimately, it was determined that the prints, while similar, did not match, and the man was released. The clear error had led several courts to examine whether fingerprint mat
ches were based on sufficiently reliable science to be admitted as evidence in prosecutions. While no court had yet barred the practice, the confidence in the science had been shaken.

  Finn was lost in his research when the phone rang. He let Lissa answer it.

  “Law offices of Scott Finn,” he heard her say. “He is, can I tell him who’s calling?” There was a pause. Then she looked across the room at him. “It’s your client,” she said.

  “What client?”

  “Salazar. Who the fuck do you think?”

  “On the phone?”

  “No, under my desk. Of course on the phone. Pick up.”

  He pushed the button on his extension and picked up the receiver. “Vincente?”

  “Mr. Finn, I’m sorry to disturb you.”

  “No problem. I just wasn’t expecting your call.” Finn looked at his watch. Eleven thirty. “Aren’t you in lockdown? I thought lunch wasn’t until noon.”

  “I’m in the infirmary,” Salazar replied.

  “Right. I forgot you work there.”

  “Normally, yes. At the moment, though, I’m technically a patient. I was calling to warn you: You’re in danger.”

  The man’s tone made Finn’s toes go cold. He wasn’t hysterical or melodramatic; his voice was calm and even. “What happened?” Finn asked.

  “I was attacked,” Salazar answered. “They tried to kill me.”

  “Who?”

  “Whoever’s behind this.”

  “Wait,” Finn said. “Start from the beginning.”

  Salazar explained what had happened that morning in the infirmary, highlighting some of the more graphic and disturbing aspects to drive home the seriousness of the situation.

  “Are you all right?” Finn asked once Salazar had finished.

  “I have a cut on my head,” he replied. “The doctors here have closed the wound, and other than that, I am fine. For now.”

  “Can they get to you again?” Finn asked.

  “Hard to say. The doctors will keep me here in the infirmary for as long as they can, for ‘observation.’ That can’t last forever, though. The prison officials won’t let it; they will get suspicious. Besides, if this morning is any indication, I am not completely safe even in here. Once I’m back in the general population, I will have to be particularly careful.”

  “What can I do?” Finn asked.

  “Nothing,” Salazar said. Then, after a moment: “Get me out of this place. That’s all you can do.”

  “I’m working on it.”

  “I know.” The man’s voice was raspy and distant, and Finn could tell he was exhausted. “I have papers in my cell,” he said. “Notes, a diary, things like that. If anything happens to me, I want you to make sure my daughter gets them.”

  “Nothing’s going to happen to you.”

  “Of course. I know they are coming now, and that gives me somewhat of an advantage. I will be expecting them. I will be waiting for them. But if . . .”

  “I’ll make sure she gets them.”

  “The first thing they do when a prisoner is killed in here is clean out his cell. They need to make space for more bodies. They throw everything out, so you’ll have to act fast and make it clear that you know the papers are there. They are the only thing I have that I can leave to Rosita. Promise me you’ll save them for her.”

  “I promise,” Finn said. “We’re going to get you out.”

  “You seem confident,” Salazar said. He sounded anything but. “Is there any word on the DNA tests yet?”

  “None,” Finn admitted.

  “And the fingerprint and eyewitness identifications?”

  Finn wasn’t sure what to say. “We’re still chasing down some leads,” he lied. “I’m going to send someone up there today to take your fingerprints again, okay?”

  “Why?”

  “It’s just a hunch, but do it.”

  “I will.”

  “We’re going to get you out,” Finn said again, but there was less conviction in his voice this time.

  “Thank you,” Salazar said.

  Finn struggled for something else to say. “Is there anything else I can do?” he asked.

  “Yes,” Salazar replied. “You can be very careful. Whoever is behind this has already killed Mark Dobson. Now they have tried to have me killed. They will not hesitate to come after anyone who is helping me. You are in danger.”

  “I can take care of myself.”

  “I hope so,” Salazar said. “I truly hope so.”

  Chapter Twenty-four

  “You sure this is the way you want to handle this?”

  Finn glared at Kozlowski as they drove the short distance from Charlestown to downtown Boston. “I’m sure,” he said. “Full-frontal assault. Try to shake them and see what falls out of the trees.”

  Kozlowski grunted. “Cops usually don’t shake. Not without some serious pushing, anyway. And it doesn’t feel like we’ve got a hell of a lot to push with.”

  “You want me to pull over and you can get out?”

  “That’d be a good way to get you killed. Send you into a police station by yourself to start throwing accusations around. You think we got a chilly reception from Maddy Steele? She was the fuckin’ welcome wagon compared to the reaction you’re likely to get here.”

  “We don’t have any options. They tried to kill him.”

  “Who tried to kill him?”

  “I guess that’s the sixty-four-thousand-dollar question, isn’t it?”

  “And you act like you’ve got the answer all worked out. Maybe it’s not the real question. Maybe the real question is why even our own fingerprint expert says Salazar’s prints are on the gun. You seem unwilling to consider the possibility that the man actually did what he got himself convicted of.”

  Finn shook his head. “After my talk with Smitty, I did some research on my own. He said there were no real consistent standards for fingerprint identification. Turns out that was the understatement of the year. In England, examiners are required to find at least sixteen points of similarity to declare a match between two sets of prints. Here in the States, some identifications are made with as little as six. Plus, there’s no official standard for what constitutes enough ‘similarity’ to have a point match. The so-called experts aren’t required to pass any tests to prove they know what they’re doing, and lots of them have never even had any formal training other than being on the job for six months. Seems like it’s far more opinion than science.”

  Kozlowski shrugged. “Let’s assume that’s all true. So what?”

  “So what?”

  “Yeah, so what?”

  Finn sat in silence, clenching and unclenching his jaw. “Do you realize that there have never been any studies done to determine exactly how accurate fingerprint identification is? No studies. No tests. Nothing that even remotely qualifies as science. Anytime anyone has suggested that might be a good idea, the law enforcement community bands together to fight it tooth and nail. You know why?”

  “Maybe because it would waste a bunch of taxpayer money to test a method of identification that has proved reliable for over a hundred years?” Kozlowski suggested.

  “No. Because they know any studies testing the accuracy of fingerprint evidence might just show that it’s bad science. And then what would you do with all the people who’ve been convicted based on it?”

  “Again, even assuming everything you say is true—and I’m guessing at least half of it is nothing more than bleeding-heart-liberal bullshit— so what? Smitty said he had a nineteen-point match on these particular prints. And he’s on our side. So even if there are times when people screw up or stretch their identifications, this isn’t one of those times.”

  “We’ll see,” Finn grumbled.

  “Shit, you’ve got a fingerprint match positively confirmed by our own expert, as well as an eyewitness identification, and you still can’t bring yourself to allow for the possibility that the man’s guilty. That’s fucked up.”

  �
��Great. You’re going to throw the eyewitness identification at me now? They actually have done studies on the accuracy of eyewitness testimony. Do you know what they found? They found that people get it wrong much of the time. Even with a good, solid look at someone, people who ‘positively’ identify someone in a lineup are often wrong. Does it matter? No. You put a victim on the stand, or an eyewitness, and have him point at the defendant during a trial and say, ‘That’s him; that’s the man,’ and a jury buys it every single time.”

  “I hear you, but what’s the alternative? You take away fingerprint analysis and eyewitness testimony, and how are you going to prosecute anybody? How are you going to prevent or punish crime at all?”

  “Have you ever heard the expression that it’s better to let ten guilty men go free than put one innocent man in jail? That’s one of the fundamental principles our system was based on. That’s why we require guilt beyond a reasonable doubt.”

  “Fine,” Kozlowski agreed. “Let ten guilty men go free to protect one innocent man. How about one hundred? Is it better that a hundred guilty bastards go free than one innocent man goes to jail? How about a thousand? Or ten thousand? How many killers and rapists and child molesters are you willing to let out on the streets to protect that one innocent man?”

  “You’re taking it to its illogical extreme.”

  “No, you are. You want to wipe away the basic tools that allow us to be reasonably sure that we’ve got the right guy.”

  Finn pulled into the parking lot across the street from the station house for Division B-2, where the latent fingerprint unit was located. He whipped the car into a spot and turned off the engine. “I don’t know,” he said, unbuckling his seat belt. “What I do know is that someone tried to kill our client this morning. I know that the last lawyer who represented him was hacked to pieces. That says to me that something is very fucked up here, and it all comes back to the fingerprint evidence. I need to know that you’re on board with what we’re doing here.”

  “I am. But you also need to know that things aren’t always the way they seem.”

  Finn opened the door, and a blast of cold air filled the little car. “Trust me,” he said. “No one knows that better than I do.”