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First they came for the socialists, and I did not speak out — because I was not a socialist. Then they came for the trade-unionists, and I did not speak out — because I was not a trade-unionist. Then they came for the Jews, and I did not speak out — because I was not a Jew. Then they came for me — and there was no one left to speak for me.
— Rev. Martin Niemoller, German anti-Nazi pastor.
Before the train bombing in Madrid on March 11 which killed 191 people and wounded 2,000 others, Brandon Mayfield was simply a lawyer going about his practice. After those bombings, as far as he knew, Brandon Mayfield was still simply a lawyer going about his practice.
Little did he know that the Department of Justice was using a copy of a fingerprint from the bombing scene to establish Mayfield’s suspected involvement in that terrorist act — despite the Spanish government’s repeated assertions that, based on the original fingerprint, Mayfield’s print matched on an insufficient number of points to be credible. Little did Mayfield know that on the basis of the FBI’s asserted “match,” it was searching surreptitiously his home and office. (In fact, the agents were inartful enough that Mayfield had suspected that people had been in his house.) Little did he know that while he was going about his practice and family life, the FBI was combining its questionable fingerprint match with evidence of his association with an Egyptian (his wife), a former client, a local mosque, a Muslim yellow page directory, and a phone call (content unknown) to a Saudi charity in order to establish that Mayfield be seized and held as a material witness in a Federal Grand Jury investigation of violations of Title 18, U.S. Code Sections 2332f (Bombing of Places of Public Use, Government Facilities, Public Transportation Systems and Infrastructure Facilities); 2339A (Providing Material Support to Terrorists), and 956 (Conspiracy to Kill and Injure Persons in a Foreign Country).
Brandon Mayfield was therefore surprised when the FBI arrested, handcuffed, and shackled him; jailed him among those accused of murder (and told by guards that he should watch his back); held him in solitary confinement; and ultimately sent him to a mental ward. Indefinitely. And for what crime? None. The Justice Department simply wanted to extract information from him, so it recklessly overstated his relation to terrorism, labeled him a material witness, and took him away for interrogation. Then they subjected him to an environment designed to enhance his cooperation.
Mayfield’s incarceration as a material witness was the result of two problematic practices, one evidentiary and the other discretionary. The evidentiary practice in question is the assessment of fingerprint matches to link certain persons to crimes. As Professor Jennifer Mnookin established in her recent Washington Post op-ed, “The Achilles’ Heel of Fingerprints,” (May 29, 2004):
(T)he science of fingerprints is surprisingly underdeveloped. We lack good evidence about how often our examiners make mistakes, nor is there a consensus about how to determine what counts as a match. Our current approach to fingerprint evidence, in which experts claim 100 percent confidence in any match, is dangerously flawed and risks causing miscarriages of justice….
Fingerprinting, unlike DNA evidence, currently lacks any valid statistical foundation.… The problem is accentuated when analyzing a partial print, as those recovered from crime scenes frequently are.…The growing size of computer fingerprint databases makes this issue still more acute.… The Mayfield misidentification also reveals the danger that extraneous knowledge might influence experts’ evaluations.
It’s not surprising, therefore, that the use of this specious evidentiary procedure allowed the Department of Justice to determine that among the several potential matches generated by the original fingerprint scan, it was this lawyer who happened to be associated with Arabs and Islam who had once represented a convicted terrorist in a child custody dispute whose fingerprint matched one found in Madrid.
In its zeal, the FBI ignored exhortations from the Spanish government — which possessed the original fingerprint — that the 8 match points on Mayfield’s fingerprint failed to connect his to that in their possession. Undeterred, FBI experts found that its copy of Mayfield’s fingerprint instead had in excess of 15 points of identification that matched the print in question. Convinced they had found their man, FBI officials concluded that the match was a “100 percent identification.” To erase any doubt, the FBI’s Supervisory Fingerprint Specialist Michael Wieners and Fingerprint Examiner John T.
Massey, a retired FBI fingerprint examiner with over 30 years of experience, verified this “100 percent identification.”
The FBI’s zeal waned, however, when the Spanish government conclusively attached the fingerprint in question to an Algerian man, whom it had in custody. It was only then that the FBI allowed that its match was anything less than a 100 percent. It was only then that the FBI was forced to acknowledge that its “100 percent” match was based on what the FBI admitted was a “substandard” fingerprint image - which was ultimately deemed “of no value for identification purposes” by the prosecutors who filed for Mayfield’s release — after weeks of unjustified detention.
But the damage to Mayfield had been done. The sanctity of his home, his practice, and his reputation had been violated. The FBI had been secretly searching his home, ultimately seizing his computers, modem, safe deposit key, nearly one-fourth of his client files, assorted papers, copies of the Koran and “Spanish documents” — later revealed to be his son’s Spanish homework. During his confinement, the government leaked that it had an “absolutely incontrovertible match” between Brandon Mayfield’s fingerprint and that found in Madrid. Meanwhile, because of a gag on the defense, neither Mayfield nor his attorneys could speak of the abundant evidence to refute that claim. The government’s actions against him, according to Mayfield, have left his practice in shambles.
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Do you think this could ever happen to you? Is it possible that the government could stumble across something fishy when performing a routine surveillance of your private business records, or of a conversation or e-mail exchange with a client? Could your local arm of the “Joint Terrorism Task Force” (a Department of Homeland Security creation that urges local law enforcement agencies to report, among others, those engaged in lawful protest and dissent) have deemed any of your clients — or perhaps you — as a potential terror threat? What if there’s yet another crime lab mistake, faulty fingerprint identification, misinterpreted intercepted conversation, or bogus lead that points to you? Would anyone in law enforcement or the prosecutor’s office perhaps be willing to proceed to have you checked out in the name of preventative national security?
It’s pitiful how quick the government is, under President George Bush and Attorney General John Ashcroft, to totally disregard basic American freedoms in the name of their misguided and counterproductive “War on Terror.” Given the circumstantial evidence and misleading leaks from the FBI, Brandon Mayfield should consider himself lucky to be free and cleared of any relation to the Madrid bombing. For there are many more like him — uncharged and innocent yet held against their will — who do not have a law degree, do not have people who can advocate for them, do not speak English, do not have loved ones who know their location, and/or may not even be U.S. citizens, who haven’t been so lucky. In the vast majority of cases, we will never know exactly how the rights of these hundreds and thousands were blatantly, willfully — and remorselessly — ignored by the Bush Administration.
The United States of America was built on the concept of individual freedom from government tyranny. President Bush calls himself a defender of freedom? The Founding Fathers must be rolling in their graves.
“The Criminal Justice System is Broken” has been the theme of my tenure as NACDL President. As criminal defense lawyers we’re confronted with this truth every day. I feel privileged to have been able to use this column to share my concerns, help you focus on the issues, and identify the means necessary to mend this broken system. I hope you’ve found these columns useful, and I hope the spirit with which I have written will stay with you throughout your lifetime.