EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, April 2, 2008

The Myth Of Fingerprints, Take 3: Federal Grand Jury Indicts Brian Keith Rose

I have written twice before (here and here) about the state murder trial of Brian Keith Rose, in which Judge Susan Souder became the first Maryland judge to find fingerprint evidence inadmissible because there are doubts about its reliability.  So, what happened to Rose's case, in which he is accused of murdering the owner of a Cingular Wireless store at a Baltimore County mall?  The state prosecutors handed it over to federal prosecutors, and yesterday, a federal grand jury indicted Rose on two counts of attempted carjacking resulting in death and discharging a firearm during a crime of violence. Rose could get life in prison without parole if convicted, and federal prosecutors may seek the death penalty.  It's rare that this type of single murder case is brought in federal court based upon the expense of murder trials, but the feds took over based upon Souder's ruling.

That decision has prompted criticism by Paul DeWolfe, head of the Montgomery County public defender's office, who said the federal involvement undermines Judge Souder's decision.  DeWolfe stated, "We hope the federal authorities will respect decisions by state court judges....We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other."  Meanwhile, Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, contended that "[t]he federal indictment is a slap in the face of every state court judge ruling based on the law."

Conversely, Maryland U.S. Attorney Rod J. Rosenstein defended the process. He also appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can.  According to Rothstein, "Judges make mistakes. Judges sometimes disagree....And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."

I think that both sides are correct in parts.  As far as I am aware, in most states, state prosecutors can appeal evidentiary rulings, and Maryland appears to be in the minority of states in proscribing such appeals.  I think the majority rule makes sense and allows for appellate review of frequently difficult evidentiary issues.  I also agree with the public defenders that state prosecutors unhappy with state judge evidentiary rulings should not be able to punt their cases to the feds in the hopes of more favorable evidentiary rulings.  Of course, I can understand why the state prosecutors in the Rose case did so because they could not appeal Judge Souder's ruling.  So, it seems that the best solution would be to allow Maryland state prosecutors to appeal evidentiary rulings but not punt cases to the feds.  Unfortunately, I don't see either change happening any time soon.



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