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On 9 Sep 03, in the Maris Courtroom on the 19th floor of the Federal Court Building in Philadelphia, the Honorable Judges Maryanne Trump Barry (Chief Judge), Edward R. Becker and Morton I. Greenberg of the Third Circuit, US Court of Appeals, listened to appellate arguments from Attorneys Robert Epstein (Appellant - representing Byron Mitchell) and Assistant US Attorney Robert Zauzmer. The presentations and exchanges with the judges lasted nearly twice the scheduled 50 minutes (25 minutes per attorney) allotted for the hearing. In the gallery were retired AUSA Paul Sarmousakis, FBI Lab Supervisory Fingerprint Specialist Stephen Meagher, FBI Lab Attorney Laura Blumenfeld, US Army Special Agent Ed German and US District Court Judge Louis H. Pollack. The judges, through their questions to Rob Epstein, appeared to telegraph that they in no way agreed with Epstein's assertion that latent fingerprint identification does not meet Daubert criteria for admissibility. Judge Becker at one point admonished Epstein that he would do well to skip that (inadmissibility of fingerprint evidence) point and move on to other points (such as a judicial notice issue, a Brady issue and the exclusion of certain witnesses). This author’s opinion is that the 9 Sep 03 hearing was the death knell for Rob Epstein’s hopes of winning the Daubert issue on fingerprints in US v. Mitchell. After the Appellate Court issues its ruling, Epstein will petition for a writ of Certiorari to the US Supreme Court… and I give it zero chance of being entertained based on Daubert issues over the admissibility of fingerprint identification testimony. --Ed German |
