In the early morning hours of December 16, 1994, an intruder entered the bedroom of 44-year-old James McCann and bludgeoned him to death with a blunt object in Vancouver, Washington. McCann’s 13-year-old son, Tyler, who was asleep in another bedroom, also was struck in the head, but he survived.
Tyler told police that he had been too afraid to look at the attacker, but he believed the man had a dark complexion and was possibly Puerto Rican. He said the man had dark or black hair, was 25 to 30 years old, and had a medium build and a deep voice. The man wore gloves, had a flashlight in his mouth, and was not wearing glasses, the boy said.
Drawers and cabinets were opened in the home, but none of the contents were removed or disturbed. However, a television, video recorder, stereo speakers, a portable CD player, McCann’s wallet and his truck were missing.
Police discovered what they believed was a partial latent ear print on the hallway-side surface of McCann’s bedroom door.
Almost immediately, police focused on 44-year-old David Kunze as a suspect, even though Kunze was much older, wore glasses and had reddish-blond hair, because four days prior to the attack Kunze’s ex-wife told him that she was going to marry McCann.
Kunze was interviewed on several occasions. He admitted he was upset by the news that his ex-wife (they had divorced seven months earlier) was going to marry McCann, but denied he committed the crime. With Kunze’s consent, police searched his truck, house, boat, storage locker and a safety deposit box, but found nothing connecting him to the crime, with the possible exception of a receipt for a flashlight.
Police took photographs of Kunze’s face and the sides of his head. In March 1995, Michael Grubb, a criminologist with the Washington State Police Crime Laboratory compared the latent print found on the door with photographs of Kunze’s ears and concluded the print left on the door “could have” been made by Kunze’s ear.
In September 1995, Grubb and George Millar, the fingerprint technician who had discovered the print on the bedroom door, met with Kunze and took exemplars of his ear prints. They put lotion on his ears and asked him to press his ear against a glass surface and then dusted with fingerprint power and used palm print tape to transfer the impression onto a plastic overlay. Kunze gave several exemplars, applying different pressure each time—light, medium and hard.
Millar and Grubb later admitted they took multiple exemplars because they were consciously trying to produce one that matched the print on the door.
Millar declined to make a comparison because he believed such a comparison was beyond the expertise of the crime lab’s latent print examination unit. Grubb, however, did a comparison and concluded that Kunze was a “likely source” for the ear print.
Kunze was arrested in May 1996 and indicted in June on charges of aggravated murder, assault, robbery, and kidnapping. After the defense challenged the admissibility of ear print evidence as scientifically invalid, the trial judge convened a hearing in December 1996 on the admissibility of ear print comparison evidence.
In addition to Grubb, who conceded he had never performed an ear print identification before, the prosecution called Cor Van der Lugt, a Dutch police officer who was a crime scene technician and who testified that he had examined ear prints in more than 600 cases abroad and that he was able to distinguish between ears to make identifications. He said it was “obvious that you choose the one print (from exemplars) that fits the found print the most.” Van der Lugt said he believed Kunze’s ear left the print on the door.
The defense called a dozen witnesses, including two former FBI fingerprint examiners, who testified that ear print identification had no scientific basis and had not been validated by any study. The judge, however, ruled the evidence could be admitted at trial because the method of comparison was based on principles and methods that were accepted in the scientific community.
Kunze went on trial in Clark County Circuit Court in June 1997. Grubb and Van der Lugt both testified. Grubb said that to a “reasonable degree of scientific certainty” that “Mr. Kunze’s left ear and cheek (were) the likely source of this impression at the scene.”
Van der Lugt said he was “100 per cent confident” the print on the door matched Kunze’s ear.
The prosecution also called Steve Lawrence, who was serving a 10-year prison term for child molestation. Lawrence testified that he shared a cell with Kunze while Kunze was awaiting trial and that Kunze admitted the murder of McCann during a conversation. The defense was barred by the trial judge from cross-examining Lawrence about another murder case in 1990 where Lawrence had claimed someone else confessed a murder to him while awaiting trial.
On July 15, 1997, Kunze was convicted of aggravated murder, robbery and burglary and acquitted of assault and kidnapping. He was sentenced to life in prison without parole.
Kunze hired a new attorney, John Henry Browne, who handled the appeal and challenged the ear print evidence. In November 1999, the Washington Court of Appeals reversed the convictions and ordered a new trial. The court held that ear print evidence was not scientifically accepted as a forensic discipline. The court disagreed with Grubb’s claim that ear print comparison was accepted in the scientific community. “We reject his premise that latent ear prints automatically have the same degree of acceptance and reliability as fingerprints, tool marks, ballistics, handwriting and other diverse forms of impression evidence,” the court said.
While preparing for the retrial of the case, Browne interviewed Lawrence under oath and discovered that Lawrence had received several hundred dollars in witness fees for his testimony, but the prosecution had failed to disclose the payments to the defense as required.
In May 2001, Kunze went on trial for a second time. Grubb was allowed to testify as to his comparison of Kunze’s ear to the latent print, but was not allowed to give an opinion on whether there was a match. Lawrence again testified that Kunze had confessed to him.
Browne called Dennis Hunter, one of the prosecutors at Kunze’s first trial to question him about the witness fees paid to Lawrence and to expose that the payments had not been disclosed prior to the first trial. During a spirited exchange, Hunter, in violation of a judicial order, said that Browne represented Kunze on appeal—thus revealing to the jury that Kunze had previously been convicted. The trial judge immediately declared a mistrial because of the improper comment and ordered another trial to begin almost immediately.
On May 9, 2001, the prosecution dismissed the case rather than begin selecting a jury for another trial and Kunze was released.
– Maurice Possley