Validity of earprint evidence questioned
Judge hears arguments on whether suspect�s earprint should be part of trial
(The following story is a combination of three articles which appeared in the Clark County Washington newspaper, The Columbian, during the week of December 1 thru 6, 1996. Thanks to distant SCAFO member Al Johnson, retired--Gardena P.D. for the submission.)
by BRUCE WESTFALL
Columbian staff writer
Prosecutors and a defense attorney collided Monday in what is expected to be a week of legal sparring over an earprint.
At issue is whether the partial print found at the home of murdered Vancouver resident James W. McCann can be used to bolster the case against defendant David Wayne Kunze.
The evidence hearing was expected to continue through Friday. Kunze's three--week trial is scheduled to begin Jan. 27.
On Monday, Superior Court Judge Robert Harris heard from four witnesses, two of whom spent considerable time talking about the human ear and the mark it makes when pressed against a smooth surface.
Investigators recovered the relatively fresh print from McCann's bedroom door just after the crime was discovered in December 1994.
Authorities speculate that the murderer placed an ear to the door to find out if McCann, 45, was asleep before beating him to death.
A state forensics expert testified Monday that Kunze was the �likely� source of the earprint. Michael Grubb, manager of the Washington State Patrol Crime Laboratory in Seattle, said Kunze's earprint is the only one of 130 he examined that appears to match the print at the crime scene.
Grubb said he examined 25 to 30 earprints of people who might have been in McCann's Vancouver home and another 100 prints taken at random from other individuals.
Grubb acknowledged that earprint identifications are unusual in crime--scene work.
He said it was the first time he had examined such evidence in his 20--year career.
Defense attorney Steven Thayer hopes to cast doubt on the earprint evidence by suggesting its tie to his client is neither clear nor scientific.
If he succeeds, Harris would toss the earprint, the only piece of physical evidence that ties Kunze to the bludgeoning death of McCann and the beating of McCann's teen--age son Dec. 15 or 16, 1994.
Toward that end, Thayer spent a sometimes contentious 90 minutes Monday questioning Grubb on earprint techniques, pointing out differences between the crime scene print and his client's.
He elicited testimony from Grubb that it was possible that two people could produce the same earprint, though Grubb added, �It would be very unlikely.�
By contrast, deputy prosecutors Dennis Hunter and Jeannie Bryant hope to convince Harris that the earprint testimony is legitimate and should be heard by a jury next month.
During this week's hearing, prosecutors plan to call about a dozen witnesses, including Alfred Iannarelli, a self--styled earprint expert who told judges Harris Monday afternoon he has done earprint work for the FBI and CIA.
Iannarelli, a Navy veteran and a one--time campus police chief for two California Universities, said he defined earprint characteristics in a 1964 book after 14 years of research.
His study of �earology,� as he called it, includes cataloging of several thousand pictures of ears and the observation of �millions� of others.
He said the FBI uses his identification techniques as does the federal Immigration and Naturalization Service.
Iannarelli claims human ears are distinctive. Asked by prosecutor Hunter if he had ever seen two people with the same earprint, he replied, �I never have. Not even close.�
Kunze, 46, an Orchards resident who is being held in Clark County Jail, is charged with aggravated murder, burglary and robbery in the death of McCann.
He is also charged with assault and kidnapping for beating Tyler McCann and binding the teen with rope and duct tape.
Authorities claim the motive was jealousy. McCann and Kunze's ex--wife were planning to get married.
Prosecutors bring in Dutch crime expert to talk about earprints
(Thursday, Dec. 5, 1996 story)
Clark County prosecutors have brought in a European earprint expert in their murder case against a Vancouver man.
Dutch crime--scene specialist Cor van der Lugt took the stand Wednesday in an unusual week--long hearing. He said he has examined an estimated 600 earprints.
At stake is whether a judge will admit earprint comparisons that allegedly peg 46--year--old David Wayne Kunze as the likely killer of another Vancouver man in 1994.
Clark County deputy prosecutors Dennis Hunter and Jeannie Bryant have called about a dozen witnesses from far flung locations to testify about the reliability of earprint evidence.
Authorities say Kunze left his earprint on the bedroom door of James W. McCann, who was bludgeoned to death in his home two years ago.
But defense attorney Steven Thayer is arguing that, unlike fingerprints or DNA, earprint comparisons aren't scientific and should be excluded in Kunze's trial next month.
Evidence experts form the FBI and police agencies in Florida, Ohio and Illinois have all testified that while earprints are occasionally key evidence in a criminal case, there is limited knowledge about them in the United States.
Not true in Europe, however, said van der Lugt, a Dutch police inspector flown in by county prosecutors this week to testify.
Van der Lugt told Clark County Superior Court Judge Robert Harris that earprint identifications is an emerging science in Europe with a growing body of knowledge that includes his own involvement in 600 earprint cases.
Van der Lugt said forensics experts in Germany and Britain also recognize the burgeoning field.
Van der Lugt's testimony is important to prosecutors because it attempts to establish a scientific basis by which ears can be compared. To be admitted at trial, the evidence must be �generally accepted� in forensic science.
Experts say earprints are most common in �stealth� crimes where a burglar, robber or murderer listens at a window or door for the sound of the victim.
In the Kunze case, authorities believe the defendant put his ear to McCann's bedroom door just before going in and beating a sleeping McCann to death Dec. 15 or 16, 1994.
Police found no physical evidence at McCann's Vancouver home except for the ear impression.
Kunze is charged with murder, robbery, kidnapping, assault and burglary for entering the home, beating James McCann to death and assaulting McCann's teen--age son, Tyler.
The assailant tied up McCann's body and bound Tyler McCann with rope and duct tape. The youth was discovered the next morning on the front porch, still struggling to free himself. Tyler McCann was unable to identify the attacker.
Kunze was arrested last May based on comparisons by two evidence experts who concluded Kunze was the likely source of the earprint.
Though 17 months passed between the murder--assault and Kunze's arrest, court documents submitted by prosecutors say Kunze was labeled by sheriff's deputies as the one and only suspect from the beginning.
Investigators claim the crimes were staged to look like a robbery or burglary to conceal the true motive for the killing: Kunze's jealousy. His ex--wife, Diane, and James McCann were planning to be married.
Defense attorney Thayer is calling his own witnesses to debunk any claims that earprint comparisons are legitimate science.
The judge was expected to rule this afternoon or Friday whether earprint evidence will be allowed in the three--week trial, which is schedule to start Jan. 27.
Judge Harris allows evidence of earprint for trial
(Friday, Dec. 6, 1996 story)
A Clark County judge refused Friday to bar evidence suggesting that the earprint of a murder defendant was found in the victim's Vancouver home.
After a week of testimony from high--powered evidence experts, Judge Robert Harris said a jury would be allowed to hear about the ear mark in the murder case of David Wayne Kunze. Harris said the earprint is similar to blood type, hair and shoeprint evidence that have long been used in criminal cases.
The ruling allows prosecutors to go to trial next month brandishing their most important piece of physical evidence.
Kunze, 46, is charged with aggravated murder, robbery, burglary, assault and kidnapping in the 1994 murder of James W. McCann and the beating of McCann's teen--age son, Tyler.
The only physical evidence tying Kunze to McCann's Vancouver home is an earprint on McCann's bedroom door. Investigators believe the murderer listened at he door to find out if McCann was asleep.
Two specialists--�an evidence expert and self--styled ear examiner --�have declared that Kunze is the likely source of the print.
Kunze's defense attorney, Steven Thayer, mounted a furious legal battle to keep it out of Kunze's three--week trial, scheduled to start Jan.27.
Thayer argued that a comparison of earprints is unscientific and would unfairly prejudice a jury against his client.
�It's just not fair,� Thayer told the judge. He noted that earprint evidence has never been used in an American jury trial.
Deputy prosecutors Dennis Hunter and Jeannie Bryant called a dozen evidence experts from all over the U.S. and one from The Netherlands to testify that ear identification can be reliably done.
The judge agreed, to a point. Harris said the ear evidence could be used to narrow the number of potential suspects in the case, and even point to Kunze as the likely source; but not as a positive identification of the defendant.
Thus, jurors will see the crime--scene earprint and a series of prints taken from Kunze's ear.
Authorities allege that Kunze was �distraught and despondent� that his ex--wife was planning to marry James McCann.
He hired a private detective to identify McCann, investigators say. He cruised McCann's neighborhood the week of the murder and even tried to shine a flashlight in McCann's home, according to court documents filed in the case.
A crime--scene profiler described the killer as someone who had �very directed anger� at the victim. McCann was beaten to death as he slept. The right side of his skull was broken into 26 pieces.
Kunze has consistently denied that he had anything to do with McCann's murder.
(Editor--�Thanks, Al, for this unusual �identification case�. Please send something with the outcome of the trial. While this case deals with �earprints� instead of our usual fingerprints, it points out the need for all crime scene personnel to carefully evaluate the �prints� as they are developed. In many instances other types of developed prints can be beneficial. Just because they are not friction skin prints --��the most useful and common evidence recovered from crime scenes�--�does not mean that the less often observed earprints or lip--prints aren't of significant value when discovered. Alfred Iannarelli, long--time Cal. Div. I.A.I. member, has presented this topic of earprints to C.S.D.I.A.I. members for many years. )
This article was reprinted in �THE PRINT�
Volume 13(2) March 1997, pp 8-10
and has been obtained from the online library provided by the
Southern California Association of Fingerprint Officers