Appeal from judgment of conviction for bank robbery, entered in the United States District Court for the Eastern District of New York, Mark A. Costantino, J., claiming improper denial of defense request for appointment of fingerprint expert.
Feinberg, Gurfein and Van Graafeiland, Circuit Judges.
This case presents the important issue of the proper standard for appointment of a defense expert under the Criminal Justice Act of 1964, 78 Stat. 552 (1964), as amended, 18 U.S.C. § 3006A (1970). David Durant appeals from a judgment of conviction for armed bank robbery, 18 U.S.C. § 2113(d), entered in the United States District Court for the Eastern District of New York after a jury trial before Mark A. Costantino, J. The only claim on appeal is that the district court's failure to grant a defense request for appointment of a fingerprint expert was error. We hold that it was, and remand for a new trial.
Because Durant does not argue that the evidence was insufficient, we may summarize the facts only briefly. On October 10, 1975, three masked men with loaded guns robbed a branch of the Chase Manhattan Bank. One remained near the entrance of the bank, one went to the officers' section, and the third vaulted the teller's counter and took about $3,250. On October 21, the grand jury indicted appellant, his brother-in-law, Michael Reed, and a third person.*fn1 Reed pleaded guilty in November, and the court appointed counsel for Durant, an indigent, under 18 U.S.C. § 3006A. At a pre-trial proceeding on January 13, 1976, Durant's counsel advised the court that the Government apparently planned to use fingerprints in its case and asked for appointment of a defense expert to examine the prints. The prosecutor objected, as follows:
We have an expert, he's employed by the FBI. I think it is ludicrous that the Government should pay for a second expert . . . . He could cross-examine our expert.
The judge denied the request, advising defense counsel to cross-examine the government expert to ascertain discrepancies.
At the trial three weeks later, two accomplices identified Durant as one of the robbers, but their credibility was open to sharp attack. One was co-defendant Reed, who faced a possible 20-year sentence on his guilty plea and had not yet been sentenced.*fn2 On cross-examination, Reed also admitted various falsehoods. The other accomplice was one Ronald Freeman, in whose apartment the robbers met to divide up the stolen money. Freeman had agreed to cooperate with the Government after an FBI agent told him that he would be charged as an accomplice and could get up to 20 years in prison. Freeman was not indicted. Freeman also faced a charge of violating probation that had been imposed on a conviction for armed theft.
Fingerprint evidence was thus very important at the trial. The Government first offered the testimony of the agent who had lifted a partial latent fingerprint from the top of the glass partition where one of the robbers had vaulted the counter. Then, fingerprint expert John C. Saunders, employed by the FBI, testified that a comparison of this latent print with the known thumb print of appellant showed that the two prints were from the same finger. Saunders said that there were 14 points of identity between the two prints and that seven points of identity were enough to make a positive identification. Defense counsel attempted to challenge this testimony by cross-examination, as the judge had directed him to do. Saunders admitted without qualification that he had seen as many as 55 points of identity in comparing fingerprints in other instances, but maintained that he and the FBI did not have a rule requiring any specific number of points. Saunders also admitted that "You need an expert" to identify points of identity. He also said it was not possible for him to make a mistake and that he did not know how long the print was on the window. On redirect, Saunders testified that the print was less than a week old. Copies of the comparison prints were submitted to the jury, but only nine points of identity were marked.
In his first summation, the prosecutor strongly emphasized the fingerprint evidence, mentioning it no less than eight times. This was understandable, in view of the vulnerability of the testimony of accomplices worried about future sentence disposition and anxious to cooperate with the Government. In reply, defense counsel contended that Saunders was psychologically predisposed to his findings because he was an FBI agent and because the only prints sent to him were appellant's and Reed's. Counsel argued that Saunders' statement that he never made a mistake should not be taken literally. In rebuttal, the prosecutor again stressed the fingerprint evidence:
The defense would have you believe that this testimony concerning the fingerprint is not conclusive when a man of eighteen and a half years of experience, who's been doing this for half his life, this is his job, he sits there and he analyzes fingerprints, he told you millions of fingerprints, and you think this man is going to put his reputation as a professional on the line, traveling from Washington to New York, he's going to get on the stand and he's going to identify a fingerprint as positive? He doesn't say maybe. He doesn't even say seventy-five per cent. He says this is a positive identification. This fingerprint is the same as the fingerprint on Durant's card. The same. And he says, "All I need is seven points." You have a hundred points, you can have fifty points, you have twelve points. We have fourteen in this case. And I made a nice little diagram, if you want to use it, and he put nine points on.
Now, if there were twenty-seven points, you'd have a tough time putting the numbers in. These are the ones that might have been visible on the diagram. But he says fourteen ...