DNA Evidence Proves Ear ID Wrong
R. v. Mark Dallagher (U.K.)
A LATE NEWS FLASH !!!
See our related story at: Another Ear Print Conviction Reversed!
After the murder conviction of Mark Dallagher was reversed by the British criminal appeals court – a conviction that had been based largely on a latent ear print which Crown experts identified as having been made by defendant – the case was scheduled to be retried within two months. The major issue on appeal had been the admissibility of the ear print evidence, strongly supported by the Crown, but urged to be unreliable by the defense. The retrial commenced in June of 2003, but after ten days the trial was abandoned. New discoveries compelled the prosecution to give additional scrutiny to the ear identification evidence. The presentation of additional evidence of guilt was, however, not forthcoming, and, on January 20, 2004, Dallagher walked out of Old Bailey a free man. See the BBC story titled " ‘Earprint’ man cleared of killing," last visited On-line, Jan. 29, 2004, at:
http://news.bbc.co.uk/1/hi/england/west_yorkshire/3420841.stm
The BBC reported that the prosecution offered no evidence when the retrial was scheduled to commence, and Mr. Dallagher was formally found not guilty. Judge Sir Stephen Mitchell told the former defendant that "this most unfortunate saga at long last comes to an end." The judge said he hoped Dallagher would continue to live peacefully in Essex, where he had been living since his release on bail when the re-trial was halted in 2003. After spending seven years in prison on a life sentence, Dallagher was a free man again.
Counsel for Dallagher had discovered recently that the initial comparison of Dallagher’s known ear print with the marks left at the crime scene by Dutch ear print examiner Cornelis Van der Lugt had led to the latter’s conclusion that the two impressions were ‘DEFINITELY NOT" (underlined twice in the examiner’s report) made by Mark Dallagher. Despite this earlier report, the Crown’s "expert" in ear identifications would testify at the trial in 1998 and during the post-appeal evidence depositions and hearings in 2002, that defendant had been positively identified by an ear comparison. The discovery of this earlier report fundamentally damaged the Crown’s case.
Identification Disputed by DNA
But there was an even more bizarre twist in the Dallagher saga. A low copy DNA analysis of the latent ear mark previously said to be Dallagher’s found that the DNA in the latent print definitely could not have come from Mark Dallagher. No wonder the prosecution threw in the towel!
James Sturman, QC, one of Dallagher’s attorneys on appeal, was quoted by The Guardian as stating outside Old Bailey that Dallagher was the victim of "a grotesque miscarriage of justice." He added, "This is another example of the dangers of police following science too closely." As he walked out of court, Dallagher suggested that "the police should now properly investigate the murder of Dorothy Wood so that her family can finally have justice."
Mark Dallagher had, from the start, maintained that he was innocent – no great surprise here! He also asserted, however, that he was handicapped by an ankle injury at the time the murder was to have occurred, and had offered an uncorroborated alibi defense as well. Though the ear print identification was the primary cause of his conviction in 1998, there was also evidence of an unnamed jailhouse snitch to whom Dallagher had supposedly confessed, a confession which the defendant also strongly denied making. Snitch testimony has long been known to be extremely unreliable. It has been used by prosecutors in the trial of many persons who were convicted but later exonerated by DNA.
If we accept the superiority of DNA analysis over most other forensic methods of individualization – and certainly all forensic scientists would concede such superiority over the frequently maligned ear print comparison method – then police let the guilty murderer/burglar get away for seven years while an innocent person languished in prison. As far as we know, that guilty person is still free! At the time of Dallagher’s release, one contemporaneous news account stated that the new DNA evidence obtained by the West Yorkshire police implicates a different suspect.
Does this mark an end for ear print comparisons offered as evidence of guilt? Probably not! But hopefully it will result in some serious efforts at scientific research in the premises of ear individuality, and the transferability of such uniqueness, if it should be found to exist, to latent ear impression comparisons. Pristine ear measurements, or carefully recorded ear photographs, discern many details that are nevertheless easily distorted when the soft and highly flexible ear skin is impressed against a smooth surface to produce a frequently blurred and partial two-dimensional image of an essentially three-dimensional, malleable portion of the human skin. By the "proper" application of different degrees of pressure in taking ear impressions, one may likely produce partial latent ear images of different persons that are indistinguishable and appear to provide a sought-after "match."
The expert evidence presented by scientists testifying for the defense at the appeal hearings in 2002 agreed that ear print examinations could be a useful police investigative tool, and could be used to positively eliminate an individual, but ought not to be used as evidence that the defendant was the perpetrator of a crime. Perhaps this case will spur on the additional research that every expert in this case, whether offered by the Crown or the defense, agreed was essential for the proper evaluation of its potential.
Andre A. Moenssens
Douglas Stripp Professor of Law Emeritus
University of Missouri at Kansas City
