After brief testimony from a clerk at the Chesapeake Campground, noting that it was Wesley Earnest’s mother who rented him the space for a trailer on December 26, 2007, the next witness was the store manager for Kramer Tire in Chesapeake, Rick Keuhne. His qualifications as a tire expert were accepted by the court. He told the jury about his January 10, 2008, transaction with the person calling himself Tom Dunbar.
At the sound of that answer, Joey Sanzone asked to approach the bench and the jury and witness were sent out. He and the judge had a lengthy discussion about the vacating of the first verdict and the standing of the motions filed for that trial and this one. It all boiled down to an objection by the defense that the tire evidence was irrelevant and unduly prejudicial.
“The court feels that this is probative as far as circumstantial evidence . . . and that probative impact is not overcome or overwhelmed by prejudicial impact,” Judge Updike ruled.
When testimony resumed, Rick Keuhne related the circumstances of the sale and his inability to find anything wrong with the man’s tires.
“Mr. Keuhne, are you familiar with emergency tire repair substances such as Fix-a-Flat?” Nance asked.
“. . . Fix-a-Flat is nasty stuff that individuals put in their tire if there happens to be a hole . . .”
“When a tire is changed is the evidence of the use of Fix-a-Flat apparent?”
“Very apparent . . . If anyone has kids and watches Nickelodeon when you see the green slime that’s what Fix-A-Flat looks like inside of a tire. It not only gets inside the tire and completely coats it and also does the same thing to the rim. And tire changers hate it because it takes an additional . . . ten to twenty minutes to clean the rim to get the Fix-A-Flat off.”
“. . . Did you observe any evidence of the tires that were driven in on this vehicle having Fix-A-Flat or a similar substance in them?”
“No, sir.”
On cross, Sanzone attempted to undermine Rick’s standing as an expert witness. Then he raised questions about the validity of the receipt since it had not been signed by the customer. Rick said that was not unusual when a customer pays cash, since the store only required a signature on charge purchases. Sanzone came close to badgering the witness over a small point, whether the document presented was a work order or an invoice. Then, the defense cast aspersions on his inspection. “You never looked at the rims of the vehicle after the tires . . .”
“Yes, I did. Yes, sir, I did,” Rick insisted, clarifying that while he did not inspect the insides of the tires, he had checked out the outsides.
“Were you inside your showroom ringing up these sales?”
“When?” Rick asked.
“On the day these tires were sold. You don’t ring up tires from outside in the shop, do you?”
“I . . . did the original work order inside . . . the showroom. I then carried the ticket out into the shop, and then I went back out to the store. The only customer I really had at that time that evening was Mr. Dunbar.”
• • •
Investigator Gary Babb was recalled as the final witness of the day to testify about the false address on the Kramer Tire work order. He told the jury that there was no Silver Spoon Drive in Roanoke; in fact, no road by that name anywhere in Virginia.
As for the zip code, 24131, the closest number that he could find was 24121, which is the zip code for the lake house. The phone number given had area code, 304, that he said was a West Virginia area code—the area code where Wesley’s mother and stepfather lived.
• • •
The seventh day of the proceedings, November 17, 2010, began with more legal huddling. Joey Sanzone requested that his proposed fingerprint expert, Jennifer Mnookin, be allowed to be present during the Commonwealth’s testimony on fingerprints. Wes Nance objected primarily because Mnookin was not an expert in the purported field, but a law professor who taught and researched evidentiary issues, but when pressed by the judge, Nance relented.
The prosecution case continued with Kenneth L. Riding, a retired employee from the Department of Forensic Science at the State Crime Lab in Roanoke, where he’d worked for ten years as a forensic scientist specializing in latent prints. Prior to that job, he was a latent print examiner for Arlington County Police Department in northern Virginia and spent five and a half years examining prints at the FBI in D.C. He testified that throughout his forty-one-year career, he had examined around 4 or 5 million prints, and had testified about 310 times. He was accepted as an expert by the court.
First, Riding explained his methodology. “The fiction ridges . . . have what are known as Galton’s details . . . These characteristics consist of bifurcations where a . . . single ridge will work into two ridges. They are known as ending ridges, dots and enclosures or islands where a ridge will bifurcate and come back together forming an enclosure.”
“And in doing fingerprint comparison and this differentiation is there a methodology that you use?”
“Yes, there is,” Riding said. “It is called ACEV, which is an acronym for the process used in [ . . . ] doing fingerprint identifications and comparisons. It stands for analysis, comparison, evaluation, and verification.”
Riding testified that he did not find any fingerprints of value on the shell casing or the murder weapon; however, although there were no visible prints on the alleged suicide note, his luck changed when he used a chemical called ninhydrin to process it. “The chemical reacts to the amino acids that are given off by the fingers,” he said. “Two latent fingerprints were developed on the suicide note.”
“And where were those fingerprints in proximity to the paper and the printing on the paper?”
“One was on the front and one was on the back of the paper.”
“Once you develop those latent fingerprints do you document that in some form or fashion?”
“The note is actually sent to the forensic photographer there at the state lab.”
Nance presented an exhibit to Riding. “Do you recognize that?”
“It appears to be enlargements of the fingerprints that were developed on the suicide note.” Riding then demonstrated the manner that the note could be held to leave the prints where they were: one as if the paper were pinched from the top, the other as if the note had been grabbed on the side.
“Sir, once those two latent prints were developed, what do you then do with it?”
“I eventually compared them against some elimination fingerprints, which were submitted to the lab.” He then explained that he’d had to obtain Jocelyn Earnest’s fingerprints by going to the morgue and getting them himself. Then, he said, “It is a matter of looking at the latent print and picking out points of similarity or characteristics in there and comparing them with the fingerprints of Jocelyn Earnest [ . . . ] The latent prints developed on the note were not identified as Jocelyn Earnest’s.” He testified that he also got a negative result when he compared the unknown prints to Maysa Munsey, Marcy Shepherd, and Dora Farrah, another of Jocelyn’s co-workers known to have been in Jocelyn’s house in 2007.
He then described his work with Wesley Earnest’s prints. “The comparison is made by placing the latent print side by side with the inked print, using . . . a microscope as a magnifier and picking out points of similarity . . . And you move back and forth between the latent print and ink print looking for similar points of identification in both prints in a relative area on both prints and trying to find . . . a sufficient number of points to effect an identification.”
“Did you find points of similarity?”
“Yes, I did.”
“Did that allow you, based upon your training and experience, to reach a conclusion as to the origin of the fingerprints on the front side of that note?”
“Yes, it did.”
Joey Sanzone made another of his many objections during this testimony, this time based on speculation. The judge overruled him.
“Mr. Riding,” Nance said, “what was your conclusion regarding your analysis of the front side of the note?”
“That the latent print on the front side of the note and the inked fingerprint card . . . [of] . . . the left thumb were made by one and the same person.”
They went on to discuss the latent found on the back of the note, which Riding also identified as being from the left thumb of Wesley Earnest. Using an exhibit with enlarged photographs prepared for the trial, Riding then pointed out the similarities to the jury over many objections from the defense.
Sanzone began the cross-examination by putting Riding’s training, certification, and proficiency testing under the microscope. “You didn’t use any sophisticated graphic program available on a computer to make your comparisons in this case?”
“No. I didn’t have to. The print was good enough [ . . . ] to use the magnifying glass and naked eye.”
“But my point is, you don’t have any training on those programs, is that correct?”
“That’s correct.”
Sanzone’s next questions contained a thinly veiled criticism of Riding for accepting what he received from the Bedford County Sheriff’s Office and not going outside of that to obtain other prints for comparison. Then he said, “When we talk about the print, you said that the left [ . . . ] thumb print was the one you identified both times.”
“That’s correct.”
“And are you familiar with the term reciprocating print? And by that I mean, if I put my thumb on my paper right here I use my other fingers to balance . . . or to complete my grip. Are these sometimes called reciprocating prints on the back of the paper?”
“Yes, they are.”
“Did you find any reciprocating prints for the first thumb print that you said was at the top . . . ?”
“No, I did not.”
Sanzone repeated the question for the other print and got the same answer. The defense attorney then directed him to marks on the paper that could have been from other fingers.
Riding said, “Well, they could be but they’re not clear enough, but they also may not have had any friction detail or been of any value for comparison purposes.”
“Can you tell me for the first print or the second print when those prints were made?”
“No, I cannot. There’s no scientific way to tell when the print was left.”
“Did you receive any latent prints, any partial prints, any smudged prints, any possible prints from the alarm pad in Jocelyn Earnest’s home?”
“No. I did not receive those.”
Sanzone asked Riding the same question about the thermostat and the light switch and got a negative response to both. Then he said, “Would you agree with me that oftentimes a surface such as a plastic surface . . . on an alarm pad, a doorknob, a thermostat, a light switch . . . can often be good places to find fingerprints?”
“Yes, they can be.”
After establishing that the prints recovered from the note were partials, Sanzone asked, “And by your identification [ . . . ] here, you’re passing judgment on the unknown area of the full print, aren’t you? Aren’t you passing judgment there?”
“No, I’m not.”
“Aren’t you saying that if you had this partial print, if you could see the whole thing, it would match the full print?”
“I don’t need the full print to make an identification.”
“Oh, I understand, but what I’m asking is, when you say that this interior part matches, aren’t you also saying that if you could see the outside here you believe that matches?”
“Yes, I do.”
“And you have never seen, don’t know, can’t know what this outside portion of the partial print looks like actually, can you? No way to look at it by looking at the partial print.”
“No, I can’t.”
“If there is one point of dissimilarity in this unknown portion that we’ve talked about between the known print and the partial print—if it had been extended out there would be no match; isn’t that true?”
“But the print has already been proven from the partial latent.”
Sanzone complained the answer was not responsive but the judge urged him to continue. Sanzone said, “You said the print has already been proven to your satisfaction, is that what you’re saying?”
“Through the science, it’s been proven.”
“Well, now, let’s talk about the science [ . . . ] When you start examining fingerprints you know whose fingerprints you’re . . . seeing, don’t you?”
“Most of the time, yes.”
“This isn’t a blind study. It’s not something where you’re submitted a set of prints and you don’t know who they belong to and you’re submitted a second set of prints and you don’t know who they belong it; isn’t that true?”
“That’s correct.”
“You look at each set individually. Wesley Earnest’s name was written on one card and Jocelyn Earnest’s was written on another, isn’t that right?”
“Yes.”
“Do you know what ‘expectation bias’ is?”
“No. Can you explain it to me?” Riding retorted sharply.
An objection from the prosecution prevented Sanzone from doing just that. He asked the witness about the points of similarity in one of the prints. Riding testified that there were sixteen.
The defense led the questioning through the points of similarity, questioning every decision. Riding repeatedly insisted that the size differences were irrelevant because that would vary with the pressure applied and the size has no bearing on the ability to match one ridge to another.
“And in this case, from a percentage point of view you had . . . 20 percent of the possible points of similarities in the lowest number of a full fingerprint. You would agree with that, wouldn’t you?” Sanzone asked, referring to how a whole print could have up to seventy-five points.
“Yes, but the print can be identified with as little as seven or eight points.”
“According to your system?”
“Yes.”
“Now, do you have a particular document that you can rely on to say how many people in this room have fifteen points of similarity in their thumb print?”
“No, I cannot, but in my forty years of experience, the most . . . points of similarity that I have noticed in the millions of prints that I have looked at, the most I’ve been able to find that were similar was five . . . maybe six points of similarity.”
“. . . You’re aware of other people finding points of similarity between two people up to fifteen points?”
“Objection, Your Honor,” Krantz said. “Assuming facts, not in evidence, Your Honor. He’s testifying.”
From there, the questioning went in fits and starts as the prosecution objected, the lawyers argued, and the judge got exasperated and ended up sending the jury out of the courtroom. After more back-and-forth with the attorneys, Updike ruled that the question was improper and would not be asked in front of the jury. Sanzone used his remaining questions to inform the jury that although there have been massive changes in technology since the 1960s, there have been no fundamental alterations to the way law enforcement performs fingerprint identification.
• • •
Andrew Johnson, another forensic scientist who worked with the Commonwealth of Virginia assigned to the Western Laboratory in Roanoke for seventeen years, followed Riding. Johnson specialized in fingerprint analysis as well as impression analysis—such as shoe prints, tire treads, other impression evidence. His extensive training came from a variety of sources including the FBI and Royal Canadian Mounted Police.
After going through the long list of trainings, teaching experiences, and honors that qualified him as an expert, he answered questions about measurements. He explained that because people apply variable pressure and that changes the flatness and width of the fingerprint, that any documentation of width and height of ridges or patterns would be meaningless.
Nance took Johnson through a long discourse on the biology and history of fingerprint identification. Then the witness testified to his examination and confirmation of the print identification made by Riding.
Joey Sanzone made a major issue over the fact that Johnson did not bring his notes to the courtroom. Prosecutor Krantz objected to the innuendo that the defense was raising, leaving the impression that the Commonwealth had something to hide. The judge clarified the situation as well as he could to the jurors, but likely many were left with some concern over what had not been revealed.
On redirect, Johnson explained that he’d also found fifteen to sixteen points of similarity to Wesley Earnest’s prints on the suicide note. At a later date, he examined the prints again using an uncropped photo and found two additional points of identity.
With Johnson’s testimony, the prosecution closed its case. In traditional response, the defense made a motion to strike the Commonwealth’s evidence. “Judge . . . in support thereof, I say that there’s no evidence that anybody physically saw my client at the scene. There’s evidence that the gun had been possessed and ownership had been claimed within a will by Ms. Jocelyn Earnest. There’s evidence also in this case, Judge, that no one can establish the timing of the fingerprint.” Sanzone cited a Virginia Supreme Court case that ruled “that the mere existence of a fingerprint at a crime scene is not enough to make a sufficiency argument . . . And for all those reasons, we would submit that the case is not proper at this point to go forward.”
“Viewing the evidence in the light most favorable to the Commonwealth as required at this stage, the motion is denied,” Judge Updike said. “The court feels this is a circumstantial case and there is circumstantial evidence other than fingerprint. Denied. Objections duly noted and preserved.”
The Commonwealth’s case was made. It was now up to the defense team of Joey and Blair Sanzone to present testimony to free Wesley Earnest. If they failed to do so, the high school administrator could spend the rest of his life behind bars.