On March 7, 2006, the Clerk of the Circuit Court of Kane County, Illinois, released the order of Judge Timothy Q. Sheldon, reversing the conviction of Lavelle L. Davis, and remanding the case for a new trial. Lavelle Davis had been convicted of murdering Patrick Ferguson in Elgin, Illinois, in February, 1997. The main evidence against him consisted of a purported “lip print” photographed from a roll of duct tape found near the scene of the crime; it was the only physical evidence used by the State to connect Lavelle Davis to the crime. The conviction was later upheld on May 12, 1999, by the intermediate appellate court of Illinois. See the related story at:
Lip Print Identification Anyone? (On People v. Davis - Ill.)
On November 9, 2005, the Circuit Court of Kane County held a hearing on Mr. Davis' petition for post conviction relief. As grounds for relief, petitioner claimed that his constitutional rights to due process, a fair trial, and effective assistance of counsel under the Fifth. Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of the Illinois Constitution were violated. According to the Court's Order, Mr. Davis cited four specific examples of such violations.
1. Trial counsel failed to investigate and properly prepare the case for trial. Defense counsel engaged in little or no pretrial investigation and ignored Lavelle Davis' attempts to communicate with him regarding potential witnesses and defenses. Trial counsel also failed to provide defendant with discovery materials received from the State. In general, defense counsel's ill health and high blood pressure rendered him incapable of properly representing at trial a defendant charged with first degree murder and facing the death penalty.
2. Trial counsel also failed to attack the use of a purported “lip print” even though it was the only physical evidence used by the State to connect Lavelle Davis to this crime and this was the first known case in which such evidence was being used. Counsel failed to request a pretrial hearing to attack the use of such evidence, and failed to conduct even a simple investigation which would have led to the finding of experts who believe “lip print” evidence to be “junk science” and unreliable as sole evidence of guilt in a court of law.
3. Trial counsel also failed to investigate Lavelle Davis' alibi defense. The murder occurred in Elgin on December 18, 1993, at approximately 5:00 p.m. Lavelle Davis was in the City of Chicago on that date and time. Trial counsel failed to contact and present at trial witnesses whose names and addresses were supplied to him by Lavelle Davis.
4. Trial counsel failed to impeach the State's main witness with materials available to him before trial. Two letters which would have been pivotal in the cross-examination of the chief prosecution witness were not used by trial counsel, who stated in a post-trial motion that he did not see these letters and would have used them. In the letters, the prosecution's chief witness admitted to lying about the facts of the case because she was scared and did not want to go to jail. Defense counsel further failed to impeach that same principal prosecution witness with a deal she had previously made with the State to testify in accordance with her statements to the police in exchange for a dismissal of a felony charge she had pending against her.
At the Kane County post conviction hearing on November 9, 2005, Lavelle Davis court-appointed counsel called several witnesses.
The first witness was Professor Andre Moenssens, a fingerprint expert whose curriculum vitae with his extensive qualifications in the forensic sciences was received as an exhibit. Moenssens testified as to the accuracy and reliability of fingerprint identification and its acceptance in the forensic community and in state and federal courts. Professor Moenssens testified that, inasmuch he had stated in his fourth edition of the treatise Scientific Evidence in Civil and Criminal Cases he had written that lip print identification was not recognized as an accepted science, upon learning of the Davis appeal which affirmed defendant's conviction he began to further review and study lip print identification and found no scientific studies that have established the accuracy and reliability of lip print identification. He testified that the forensic science community has not accepted a methodology appropriate to perform lip print identifications and that, to his knowledge, there are no appellate decisions anywhere in the world accepting lip print identification as accurate or reliable.
Moenssens took issue with the qualifications of a State document examiner and a State fingerprint examiner to conduct lip print examinations, as well as with their conclusions testifying at the Davis trial that lip print identifications based on creases were similar to fingerprint identifications based on friction ridge details. He stated that the prosecution's trial experts lacked any basis for their opinions that their lip match was based on a reasonable degree of scientific certainty. Moenssens also stressed that there were no current and satisfactory peer reviewed publications beyond some occasional literature articles suggesting all lips contained unique and different detail that could be compared. He asserted there was no accepted comparison methodology in a professional forensic science discipline; there were no training programs for lip print examiners; there existed no databases containing a significant number of lip prints that had been studied by scientists; nor was there any certification program for lip print examiners.
He specifically contradicted the testimony of one of the State's expert witnesses on lip prints who had testified at trial that lip print comparison is generally accepted as a reliable means of scientific comparison and that the FBI Laboratory considers it to be a positive form of identification.
Counsel for LaVelle Davis introduced as an exhibit a letter from a Unit Chief in the latent fingerprint unit of the Forensic Analysis Section of the Federal Bureau of Investigation that stated: “The FBI Laboratory has not conducted any validation studies of lip print identification and has determined that it will not perform lip print analysis.”
Michael Sinke was also called as an expert witness at the hearing on the post-conviction petition. He is a forensic examiner specializing in latent print identification with 25 years of experience in the Michigan State Police, of which he spent 21 years in the forensic science division of that department. He has compared hundreds of thousands of individual fingerprint and palm print comparisons to latent prints, and has also qualified some 250 times as an expert witnesses in state and federal courts related to latent print identifications. Mr. Sinke testified that he was unable to say that the questioned lip print and the known lip print were made by the same individual to any degree of scientific certainty. His conclusion was that the prints could not be matched and he found notable discrepancies between the known and the crime scene impressions.
Mr. Sinke also disputed that an examination of the ridges on fingerprints is conducted in the same manner as that of creases on lips, as the State's experts had maintained at trial; Sinke stated the two types of markings were totally different. He also opined that the skills of the state's document examiner, who had testified to qualifying as a fingerprint examiner, would have diminished because he was not current in his fingerprint comparison analysis and had been largely occupied in supervisory capacities.
Sinke specifically evaluated Mr. Davis' known lip print with the questioned lip print and identified several discrepancies that were of great concern to him. He concluded, to a reasonable degree of forensic certainty, that “there was no way you could say” that the questioned lip print and the known lip print came from the same individual.
The defense counsel at trial, Attorney Lebert B. Bastiononi, because of ioll health, testified by videotape deposition. He didn't have his file on Mr. Davis anymore, having gotten rid of it. He practices law out of his house as a sole practitioner, with his wife acting as his secretary, although she had a full-time job elsewhere. He has voice mail to answer his telephone calls, suffers from Parkinson's Disease, had a heart attack in 1983, had a pacemaked implanted, and has had three angioplasties and three stints implanted. He takes nine to twelve pills daily and is considering retirement.
Mr. Bastiononi remembered that he was under doctor's care for severe stress and significantly elevated blood pressure while he represented Davis; he remembers missing court dates on the Davis case because he was sick or at another courtroom. He testified that the lip print evidence was the only physical evidence that linked Davis to the crime; that he attempted to keep the evidence out; and that he felt the outcome of the trial would have been different had the lip print evidence been excluded.
He also stated that he told the trial court on February 9, 1995, that “now that the state has a conclusive match (lip print), so that is going to require me to get an expert,” but failed to follow through. He testified that he inquired from a few sources about finding an expert witness, but didn't find anyone and was also told by the defendant's family they didn't have any money to hire an expert. He never attempted to determine how much it would cost to hire an expert witness, and couldn't remember if he had ever consulted with the petitioner about an expert. He also never did anything to establish Davis' indigency with the trial court, or if the court would pay for an expert, though he opined that at the time of the Davis trial there was a reasonable good faith argument that lip print evidence was not a valid and reliable means of identification.
The last witness at the hearing was Professor Jeffrey Urdangen of the Northwestern University School of Law, an experienced former trial lawyer, whom the court recognized as an expert in the field of criminal defense representation and the Supreme Court rulings on effective representation by counsel.
Professor Urdangen found that Attorney Bastiononi did not meet the prevailing norms of professional competence in his efforts on behalf of petitioner, and was especially deficient in his handling of the admissibility and treatment of lip print evidence. Bastiononi's deficiences concerned his lack of a search for defense experts, challenging or rebutting other ambiguous, conflicting or uncertain prosecution witness testimony; and in more than a dozen of different ways failing to act as a competent trial attorney in a major criminal case, not the least of which was the failure to call the alibi witnesses, which left the lip print testimony totally unrebutted, amounted to a denial of the right to effective representation under the constitution.
In the court's order reversing the conviction and remanding the case, Judge Sheldon not only cited and relied on the various items discussed above, but stressed that the eyewitness's testimony was contradicted and suspect, and that the eyewitness had admitted he lied to the police and was unable to identify Davis as a suspect. Another state's witness's testimony at trial was, in the words of the judge's order, “wrought with contradictions and lies and inconsistencies.” The defendant was never linked to any of the items of physical evidence found at the crime scene, such as the shot gun, the shot gun shell, the nylons, a hair, and work gloves. He concluded that the trial attorney's performance fell well below an objective standard of effective assistance of counsel as mandated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).
After going through the long list of counsel deficiencies, the judge stressed that the State had centered its entire case around the lip print identification evidence, and that the prosecutor “made at least 16 detailed references to the lip print evidence in its closing argument, characterizing it as unbiased and scientific corroboration of petitioner's guilt.” The judge opined that if the testimony presented at the post conviction hearing had been presented before the trial court, the lip print evidence would likely not have been admitted.
It is not known at this time whether the State of Illinois will seek to appeal Judge Sheldon's order.
