number sixteen sixteen twenty one canaan good morning mr sutherland thanksgiving day two thousand and two she was sentenced to fifty five here she lost eight years of her life because of the dishonest testimony of the defendant and his chest and misrepresented disqualifications was one of the defendant's arguments that this was not clearly a suppression issue because they failed to ask the right questions or he may have been ambiguous or misunderstood but brady requires  discover and disclose any information about an expert witness you could possibly use in order to impeach that person and if you do i would really the evidence that would be shown is material to an issue of trial and must be shown that the prosecutor or the police officer pressed the evidence and failed to provide the six called the tory or rebuttal impeachment or if there is a reasonable probability that the evidence had been disclosed the defense result of the trial would have been different then you imagine how simple it would have been for mr chapman to say i've never had any real training i'm never going to class  not certified and in fact we know best the reason that he made the mistakes because when he's confronted with this except at the end and the hearing for post conviction relief of p c r he admits that the reason he is now  changing his mind is because of his training and when you have a look at the testimony in our brief from that we extract from the record one hundred twenty two with prosecutor mr specter says there's no doubt that he had to understand i was asking about  and laying the foundation for his training and experience wasn't specific to his level of experience examining latent fingerprints it was in eneral how many how many fingerprint cases handled under the in the on a case of burnout writing fingerprint examination is a very complex process and it doesn't just require you know reading a book it requires extensive training and in the burnet case a person deposing chapman and asking questions is just qualifications and experience or by bringing in your own next birds i mean well let's just say there's a lot broken in the criminal justice system in elkhart county and one of the things that was extatic list was that in the post conviction relief hearing judge shoemaker specifically found i don't think it's binding on this court but it should be some given some way suppression issue of not being discovered judge was honor says it is a question of fact since there are some just kind of disputes about what was on what was said question it's actually resolved in favor of the what i'm concerned about the driver is that if judge was honest opinion is allowed to stand it would mean that eminent criminal expert witness criminal prosecution expert witness would able to be excused from radio liability simply by stating that the question was not specifically asked or put another way if he doesn't specifically outcome and we have some other cases which have started their brief where the person's background includes you know what the case where the the laboratory technician had a reputation for fabricating evidence that should have come in and that was found to be brady testimony brady information that was suppressed what we're saying is that the the prosecutor first cell found this to be deceitful she called it dishonest and we called that and liberates furthermore one of the most telling the case in the department and he prohibited from doing any work consulting work with running counter they did need to consult the brady case law they didn't want somebody with line they knew and somebody was not representing their bats well and that's what we have here it took it took the investigators nine months to get the material to mr chapman and they said because this the state india crime i was probably going to be take too long that's nine months i never heard of them taking nine months and they certainly produce it much quicker when the prosecutor asked for immediately during the process of the p c arcs and they recessed i think thirty days and came back and i had the information furthermore it was over two years between the time that he had the information and the time it went to trial let's let his fire to change was there a case agent in this case was there some police officer who wrecked it is a prosecutor was presented with this person she said in her deposition that she had some experience with him in the past i don't know what that was but there is no evidence on the record he offered none and she gave none where he was an expert and latent fingerprints and w prosecutor decided this whole thing was deceitful when she was deposed in our one nine hundred eighty three litigation through the dash it's taken a long time to get the truth sometimes just took a long time for her maybe to realize that expert with latent prints of law enforcement agencies have any particular standards that one must measure up to before one qualifies as an expert there are a number of institutes which require certain things to be done to be certified that involves both training background probably is not just the record indicate to us the difference between this individual's this chapman's qualifications and the standards of these  various in a professional group changed to she with regard to kathleen right burnham yes with regard to the state police i don't think there's anything in the record they simply return to can the report that this is not a match and mr lumpkin something and he offered the opinion that he looked at it he could say that it was a man but he couldn't necessarily say it was not a match now my clerk told me not to do this i'm going to do it any so can you imagine how shocked and dismayed it won't be some on the record and this record miss cannon yes when she consistently refuse to admit to any of the crimes refused to admit to being in the room and then the only evidence they had to put her in that room was the fingerprint there was no what a forensics the room was ransacked ransacked there were stuff poured over the body nothing forensically produced any evidence suggested she was injured or the other coke co defendant mr andy roy so if you look at all the evidence this lady has never even had a parking ticket she's not that big and for her to be accused of this is just preposterous and yet the only evidence the state could produce after almost two and a half years of after the crime was to show that there was this little pinky finger that matched and as soon as mr chapman was confronted with this information in the p c r he says i guess you're right i'm going to change my mind but that doesn't take away the brady violation the court overturned the case not because of the brady violation but because cases and i only had one hundred that would be a slight variation but what he says i am an expert he asked he's asked by the prosecutor would you give me your expert opinion you can't be an expert if he doesn't have a training sufficient to allow him to testify as an expert as to the identification of the late fingerprint in this case yes absolutely i k m y so in indiana the courts have set the seven zero two bar for experts talking about latent fingerprints or pathing or prints i'm relatively low in the burnett case that mr sutherland referred to the court said you really only need one of the pieces that rule seven zero two of the indiana rules of evidence calls for which that's similar to the federal rule of evidence texturally as it begins and it's talking about having either knowledge skill experience training or education and they're the court of appeal said the practical experience as a crime scene manager by itself was enough for the officer to comment testify about latent print comparisons dennis chapman worked for the f b i back in the one nine hundred seventy s he went to the f b i his twelve week identification school and i was with the f b i for two and a half years for the two years after going through the school he then examine compared fingerprints on a regular basis those were passed and fingerprints not latent fingerprints but the difference between pattern and later finger princes had a fingerprint you can see without doing anything to reveal it in a latent print is hidden until you do with other friends but then some are those that you can use for comparison the national deletions to use qualification to be able to compare fingerprints on cards till next to each other considered to be the qualification to or expound on matching of latent fingerprints i can speak to indiana your honor and the tell me nationally nationally yes and i would say that for me it's sufficient i would say that from the standpoint the international association for identifications that develop the certification for latent print examiners to be certified in examining latent prints and i itself is sad that you do not need the certification the test to testify about latent prints and that's consistent with indiana too for you know they should you don't need an apparently indianness little you got to do is be a crime scene case manager according to your brother that's correct that's big difference  he had done far more than that he had his time with the f b i and then when he came in the one thousand nine hundred to the elkhart county sheriff's department he went through the aisle indiana law enforcement academy training to be a patrol officer he then dusted and did field work for late t fingerprints on a regular basis during that afterwards in the late ninety's he became a property crime detective for the sheriff's department and he was asked informally at that time by other members of the department to start doing some comparisons and after that period he went in august of two thousand to the indiana and a great a crime scene school graduated from that and came back as a crime lab technician for the sheriff's department at that point he was continuing to examine course on this particular subject there was one lecture and latent prints related to the crime scene investigation aspect of it he once he came back as a crime lab technician would actually analyze latent fingerprints and had fingerprints more for patterns but latent two for the sheriff's department itself and for outside agencies both for the goshen city police department and the city police department he estimates  time he was asked to do the latent print examination for the lot for the helen sailor murder case in elkhart city police sent him a series of suspect branson and also prince lifted from the scene dennis chapman estimates that he had done thirteen weeks that the person that testified and i bet your prints case a different kinds of experience but the f b i training was actually it's your weak program dennis chapman does better in this under any formulation of the qualification you would need in indiana to testify under indiana rule of evidence that you really can't speak to the national scene as to whether or not in let's say the state of illinois to the wisconsin would somebody like this be permitted to testify in a major matches the federal rule about an ins and it's my understanding from days of law school i guess that lots of different states are using the same or similar rules for that role of evidence about permitting an expert to testify this case is not a case where an expert has something negative in his past or present that's going on that he isn't one of the most disturbing things here i think is the fact that on the stand when asked  was guarded and really did inflate his experience he did not distinguish between matching cards on one hand and dealing with latent fingerprints on another and i wasn't really  would call forthright testimony was may not have been perjury but it was in force when you're on it with respect we disagree dennis chapman was asked at trial over five pages of testimony he's introduced on page six twelve i believe of the trial transcript and then after that testifies for five pages about his experiences in training in response to questions from the prosecutor the prosecutor actually when she's going back through his history of work and experience in training when she gets to the f b i time that he worked at she said this is she makes a statement to the effect that this is what i was wanting to get this is patent print experience there's no reason the dentist chapman would think that he was being asked to do something else to tell about something else and he answered all of the questions that he was asked honestly at the end of this portion there's an exchange where the prosecutor then asked him this is this a come up in the prior i'm portion of this or laurie m and the prosecutor then asks at the bottom of page six seventeen of the trial transcript and in the lab as a full time detective technician is it one of your responsibilities to examine as well as compare fingerprints answer yes it is question based on your experience have you been able to make fingerprint comparisons in the past several years answer yes i have question any idea how many comparisons you've made answer not off the top of my head i'm sorry the answer is not right off the top of my head several maybe one hundred or so he has not been asked at all up to this point in time anything about latent prints he's asked about latent prints for the first time on the next page when the prosecutors finished asking him about his qualifications and in this particular geisha what does the record show did anybody place any information in the record in this case as to the disparity between this gentleman's know they're not in the record in the sense that there would be a disparity i'd say the opposite is true from the record that dennis chapman you can see from the way the indiana courts have interpreted and seven o two as it applies to latent print  she says let's talk a little bit about thing your friends do you also have training and experience and attempting to recover latent prints from a crime scene answer yes question is that part of the responsibilities of the sheriff's department answer yes it is and those answers which are also on and they go on and talk more about latent prints and eventually about dennis chapman's analysis in this case this case though as framed as a case about qualifications and there is nothing that prevents chapman she could through a counsel if she wanted to cross examine him or introduce her own expert all of those avenues were available to or dennis chapman answered questions honestly at trial and the prosecutor said what he said a trial is consistent with what he told me before trial and there's nothing more that was needed there's no reason for law nick cannon to assume that he had any experience he didn't testify about when when you ask somebody what experience do you have and they tell you the reason they're telling you both on the record detective chapman is telling the jury on the record both what experience and training he had and implicitly what he did not have if he did not list something that the the criminal defendant her counsel thought was important that would be the point in time that they could raise whatever challenge they wanted to or needed to to his testimony we do not agree with that underlying assumption that chapman was on qualify him and we do not agree that a lack of even if there was a real lack of experience or training by an expert could be considered radio evidence we're not sure in a case like and what the rule would be the prosecutor speaks to the experts ahead of time to decide whether to use the expert the prosecutor asks the expert questions about what experience the expert has the expert tells the pro the experts not most of the time not a lawyer themselves and they may not have read a rule seven or two but they answer the prosecutor's questions honestly what more does the constitution require the experts do is the expert required to try to talk the prosecutor out situation a brady duty to disclose the distinction between his level of experience with peyton prince and his level of experience with latent prints that's the argument and that's i think how the district court here understood the argument and decided on the case and qualified immunity grounds that there's not that sort of a specific rule brady of course it's very general duty of disclosure and it's a fact bound analysis and if that's the rule that is being argued for here it's certainly not clearly established and granted qualified immunity and that's ground and as i understand your argument that information even if it had been disclosed wasn't material because it wouldn't have disqualified him from giving testimony as an expert under indiana law that's correct your honor so i mean we have a chip we have a suppression issue here and materiality issue and it's all viewed through the lens of the qualified immunity analysis which hasn't been addressed yet but i think it needs to be yes your honor with respect to qualified immunity on one level our position is the constitution wasn't violated by detective chapman even if this happened today there was nothing clearly established in two thousand and five that would be any different that would change the situation any detective chapman miss can and she's she cited in a briefing at different times the new some versus mccabe case out of this court the only thing that case has in common with this one with respect is the word fingerprint that case is about officers who know that there is something that shows that the prints at a scene of a crime do not match the criminal defendant they need to disclose that we understand that there's nothing about newsome that speaks to the qualifications of an expert witness right that case is about a light this case is about a mistake and as i see the distinction and the mistake that's being attributed to a gap and this expert witnesses level of experience not that he had no experience but that he had inadequate experience and and there seems to be a lot of hindsight bias at work here based on what we know now which is that it was a mistaken fingerprint match but we have to set that hindsight bias aside to evaluate what his duty was at the time of trial yes your honor and on that note what detective chapman did when he was confronted with kathleen bright her mom's record the expert in the p c r proceeding for lana cannon is exactly what we want officers who have testified about their opinion in a case to do he looked at the report he looked at his own analysis and he decided to his own analysis and then and correct he told the prosecutor that he testified to that in court in the p c r proceedings which led to the situation here and so for these want to choose thirteen one hundred or a thousand it was asked during the deposition but these are definition do you think this was a lie or a mistake and he says probably a mistake which leaves the alternative it might be from my brief chap was directly asked how many latent prints he had compared he answered that he had done over a thousand when chapman was asked at the peace your hearing whether this stated that he had done over a thousand latent fingerprints  a lie or a misunderstanding of the question is respond it was probably a misunderstanding that if the person has trouble with the english language or he doesn't it's just amazing how he flips back and forth and remember that judge fingerprints well wasn't that what he was call to do to be an expert like in fingerprints note three and struggles on his opinion so if this opinion is allowed to stand you're going to see all these police officers call by the prosecution who i don't have to volunteer their expertise and all of a sudden the other side doesn't want to take the risk of examining them out of fear it might fall through their credibility or get a better way to them then they're going to be able to say well you don't have the right questions so i don't have to give it up and we think that that's the wrong precedent for this circuit to support it is not necessary that we can't challenge with impeachment evidence at a qualified expert that's recently want to be shown evidence if you want to tell the truth and he wasn't disqualified to take the defense position then we could still ask him about how good of a expert he really is we had no basis for doing that or at least a public defender did so and we believe that if you look at all the evidence that there he deliberately misrepresented himself the prosecutor mr becker said if that's what he was talking about he was being dishonest and we cited that in our brief we quote her if she thinks he's dishonest it's not just in any big us misunderstanding he is deliberately misleading her and the jury thank you very much all right thank you very much thanks to both sides and case will be taken under its ties thank you very much