The top federal prosecutor for Maryland said yesterday he is reviewing a Baltimore County death penalty case hindered by a judge's decision to exclude fingerprint evidence that state prosecutors say tied the defendant to the fatal shooting of a Security Square Mall merchant two years ago during an attempted carjacking.
"We're evaluating it for possible federal prosecution," U.S. Attorney Rod J. Rosenstein said.
Tuesday, more than three months after Baltimore County Circuit Judge Susan M. Souder ruled that fingerprint evidence - a mainstay of forensics for nearly a century - is not reliable enough to be used in a capital murder case, she denied prosecutors' request to reconsider that decision.
The ruling leaves Baltimore County prosecutors without any avenue to appeal Souder's ruling and with few options as they try to proceed with the murder case against Bryan K. Rose, 23, of Baltimore.
"We're re-evaluating the case and reviewing our options," Baltimore County State's Attorney Scott D. Shellenberger said. "Certainly, when we go to court, we'd like to have all of our evidence. We would like to have our fingerprint evidence before the jury."
The interest of federal prosecutors sets up the possibility that the capital case could be transferred from Baltimore County - where no judge or jury has imposed a death sentence within the past decade that has not been overturned by the appellate courts - to federal court, where Maryland juries have imposed two death sentences within the same period that have not been overturned.
Under federal law, if a person is killed during the commission of a federal crime - such as an attempted carjacking or a firearms offense - the case becomes eligible for the death penalty.
In addition, federal rules allow evidence that does not always get admitted at trial in state court.
Last year, for example, an Annapolis man was convicted and sentenced to life in prison in federal court four years after an Anne Arundel County judge tossed out the then-teenager's statement to police - evidence that formed the crux of the state's case.
The state charges against Leeander Jerome Blake were dropped but a federal grand jury indicted him in 2006 on murder and carjacking charges. During the trial in federal court, jurors heard Blake's confession to police.
Shellenberger, the top prosecutor in Baltimore County, declined to comment on the possibility of prosecuting the Rose case in federal court.
Defense attorneys in the case, Patrick Kent and Paul DeWolfe, also declined to comment on the issue.
In the Baltimore County murder case, defense attorneys challenged the admissibility of fingerprint evidence that linked Rose to the killing Jan. 5, 2006, of Warren T. Fleming, the owner of a Cingular Wireless store at Security Square Mall.
Rose was arrested 13 days after the shooting when police received a call saying the "ringleader" of the attempted carjacking was a man called "Sticky," a nickname that was recognized as Rose's, according to court records.
Prosecutors say they linked Rose to the crime through partial fingerprints lifted from the victim's Mercedes and from the stolen Dodge Intrepid in which the shooter fled the mall parking lot.
At a pretrial hearing in May, prosecutors argued that fingerprint evidence has been accepted by the courts and relied upon for nearly 100 years. Defense attorneys countered that there is no history of subjecting the evidence to scientific review.
In her 32-page decision, Souder characterized fingerprinting as "a subjective, untested, unverifiable identification procedure that purports to be infallible." The judge acknowledged the nearly-100-year history of fingerprinting as a crime-solving tool but concluded that such history "does not by itself support the decision to admit it."
Baltimore County prosecutors were stunned by the ruling, which national experts characterized as unprecedented.
The trial - scheduled to begin just days after Souder issued her ruling on the fingerprint evidence - was postponed as prosecutors scrambled to regroup and police began looking for an uncooperative witness with whom the defendant allegedly discussed the killing but who had since disappeared. Prosecutors had decided to go to trial without the witness, but said they would need her to testify if they weren't allowed to use the fingerprint evidence in court.
Defense attorneys said they were not surprised that Souder decided not to reconsider her ruling.
"Judge Souder's original ruling was well-reasoned, based on the law and simply reflects that fingerprint identification remains untested and unverifiable, such that the law demands that it be precluded from the courtroom," said Kent, one of Rose's attorneys and chief of the state public defender's forensics division. "The denial of the reconsideration motion simply reaffirms that fact."jennifer.mcmenamin@ baltsun.com