The Fingerprint That Lied
Justice vs. William DePalma

by Paul Morantz

“Unfortunately the law of inertia often governs the investigation and prosecution of a criminal case. Once law enforcement officers and prosecutors feel they have the right man, their own conviction too often becomes a matter of faith very difficult to shake. And that faith in their righteousness can be blinding. It can be passed on to wavering witnesses and juries waiting to trust their government. It can be used to excuse trickery and deceit in the name of a greater cause. And it can cause grave injustice.”

John Van De Kamp
Federal Public Defender
Los Angeles

 
On November 16, 1967, a man with a pistol and a brown bag held up a Crocker-Citizens Bank branch in Whittier, California. One hour later, a mile away, William DePalma, 30, a family man, was beginning his first day as a door-to-door salesman of children's books, when a police officer stopped him. DePalma fit the description of the bank robber—five feet, nine inches tall, 180 pounds, dark hair, dark suit and tie. After searching DePalma and his car, the officer let him go and filed a report.
 
The incident unsettled DePalma enough to make him give up door-to-door sales and return to his previous job as a catering-truck driver. Eventually, the matter faded in his mind—though it did get a big laugh at the family's Thanksgiving dinner that year.
 
On November 28, 1967, 12 days after the Crocker robbery, a man with a similar description and method operandus—gun and bag—held up the Mercury Savings and Loan in Buena Park, California.
 
The same day, Whittier Detective Sergeant Joe Plummer checked to see if William DePalma had a criminal record. He had several arrests for juvenile mischief and a 1961 bookmaking conviction—the latter the result of watching a bar for a friend who happened to be a bookie. It was enough to make DePalma a prime suspect.
 
Plummer, by threatening arrest for noncompliance, got DePalma down to his station. When he arrived, unshaven and in a T-shirt, Plummer took a Polaroid snapshot of him. No one at the Crocker Bank recognized the photo, so it and a 1957 fingerprint card on DePalma were sent along to Buena Park Investigation Officer, Detective Sergeant Patrick Black. One of two teller witnesses at the Mercury Bank, Ernestine Cazares, passed over DePalma's photo, but the second teller, Sharon Godwin, picked it out. Later that day, Sergeant James D. Bakken, head of the Buena Park crime lab, reported that a fingerprint lifted from the bank counter by Officer Darrel Cate was identical to the left index fingerprint on DePalma's 1957 fingerprint card.
 
On December 12, 1967, a Sunday, DePalma was standing in front of his house in a green-lawned neighborhood, hosing the soapsuds off his catering truck, when Detective Sergeants Plummer and Black drove up, got out, approached him, and arrested him for a bank robbery he had never heard of. As his wife and three young daughters watched from the living room window, he was handcuffed and driven off.
 
 
Thirteen witnesses testified at the trial of the US vs. DePalma on February 13, 1968, that DePalma was in the City of Commerce, 15 miles from the Mercury Savings and Loan office, at the time of the robbery—serving them lunch from his truck. But it wasn't enough.
 
The defense could have been stronger. DePalma's attorney, Morris Lavine, a 70-year-old court veteran, chose not to ask for a continuance of the trial in other to produce a key witness, DePalma's employer, Donald Blackmore, who was in a yacht race in Acapulco at the time. Blackmore could have testified he was with DePalma on his route stop in the City of Commerce 20 minutes before the robbery. He could remember the date, as the other witnesses did, for it was DePalma's second day back on the job, the week following Thanksgiving. Lavine also chose not to put DePalma on the stand so that he could deny ever having been in the Mercury Bank—a statement Lavine felt would probably incriminate DePalma more m light of the fingerprint. By keeping DePalma silent, Lavine could argue DePalma's fingerprint must have been left some other day. The decision was not without reason, but as a result the jury never heard DePalma deny his guilt or explain how he became a suspect.
 
The federal judge, Charles Carr (whose dictatorial control of the courtroom has been labeled on other occasions, in US appellate decisions, as “petty tyranny”), did not help the defense any either. Lavine put the 13 defense witnesses on, one after another, late in the afternoon; halfway through, Carr, in front of the jury, asked, “How many more have you got out there, counsel?” Lavine became apologetic and rushed the witnesses through by 4:30 p.m.
 
The prosecution did the most harm, of course. Both Mercury tellers, Cazares and Godwin, identified DePalma as the culprit. Sergeant Bakken, who had made the “fingerprint discovery,” and an FBI agent, George Edward Goodreau, swore that the fingerprint lifted from the counter by Cate was DePalma's, and compared it with prints of DePalma's taken after his arrest.
 
The testimony of Cazares and Godwin was tainted. Six years later, both witnesses confirmed to this writer that before they testified, FBI agent Goodreau had shown them courtroom displays indicating DePalma's fingerprint was on the counter and reassured them, saying, “Don't worry about your testimony; we've got the right man.” So if either teller had had a doubt that DePalma was the robber, Goodreau had removed it.
 
The US Attorney, Robert Browning, in an admitted ploy to get the last word in, placed his chief witness, FBI agent Goodreau, on the stand as a rebuttal witness to the defense testimony, instead of as part of the People's opening case. (The opening case is supposed to establish guilt before defense testimony challenges it. Thus, the jury's last memory would be of a man with 27 years of fingerprint expertise pointing out similarities between the print allegedly lifted from the counter and DePalma's left index fingerprint. Carr raised hell with Browning for the maneuver, but allowed the testimony, not as rebuttal, but as a reopening of the People's case. Lavine waived a mistrial on the error, thus eliminating this as a possible avenue of appeal.
 
DePalma's witnesses, Browning told the jury, were victims of the “power of suggestion”: they could not possibly remember who served them on a given day. But Browning misstated the evidence in his closing argument. He stated that Cazares had testified that the robber held the gun with his right hand and returned it to his right pocket implying that has left hand was free. The alleged DePalma print was taken from the portion of the counter opposite the left hand of the man facing it, yet supposedly matched the left index finger. Neither Lavine nor Carr caught the error. Cazares had in fact said that the gun was held in the left hand and put in the left pocket. To his credit Browning wasn’t out to convict an innocent man. He just believed DePalma guilty. Consequently, he didn't want to lose—and he didn’t.
 
After the verdict, Carr said, “The press reports [it] when we give probation. They ought to report that I am going to give this man 15 years. It might deter bank robbers.”
 
“At the trial I felt it would be OK,” DePalma recalled later. “I didn't do it. When Cazares said it was me, it was like being hit with a sledgehammer. When Godwin got up I got angry. I had never seen her in my life and she was taking like she couldn't be mistaken. So sure, I got hot. But I knew screaming and hollering wouldn't do any good. After the verdict I felt railroaded. My mother started crying and the judge ordered the bailiff to remove her. I felt like saying. ‘Judge, that's my mother and if anyone takes her out, I'II escort her.’ At home I kept up hope, though. I thought, ‘This is a beautiful country. It has to turn out all right.’”
 
 
John Bond is a 53-year-old, blond, blue-eyed defense investigator, who keeps fit with mile runs and surfing. A former New Jersey cop, he came West almost 20 years ago, and became the first investigator hired by the Orange County Public Defenders Office, a good job for a man who saw himself as more social worker than cop.
 
In 1969, Bond opened up a private office in Santa Ana. One of his first clients, whom he took on without a fee, was a man convicted, sentenced, at liberty only by virtue of appeal bonds, but still insisting innocence—William DePalma.
 
Bond agreed to take the case, even though DePalma was broke from trial and appeal expenses, under one condition: that DePalma pass a lie-detector test giver by a polygraph expert of Bond's choosing. He did.
 
And so Bond faced the seeming contradiction: If DePalma had never been in the Mercury Savings and Loan office, how did his fingerprint get in there? He concluded he couldn't solve the riddle unless he first found the real bank robber.
 
After hours of searching through clippings in newspaper morgues, Bond found descriptions of over 100 bank robberies with a similar method operandus. And he found one Robert Eads, a bank-heist vet who got nabbed when a novice partner he had taken on accidentally set off a smoke bomb in a getaway car. Eads, he discovered, had confessed to 25 bank robberies—including the Crocker-Citizens job in Whittier that first made DePalma a suspect. Bond took a photo of Eads to the Mercury tellers but they still insisted DePalma was the man. So Bond returned to the newspaper morgues.
 
Knowing that Eads, not DePalma, had done the Crocker robbery spurred Bond on. He sought to examine what DePalma's trial lawyer never had—the Buena Park police reports. Under federal law, unlike California state law, prosecutors do not have to unveil their entire investigation to defense attorneys. Reports of witnesses interviewed and their statements can be withheld. Buena Park refused to cooperate with Bond, but he located the necessary reports in the clerk's office of the Fullerton Municipal Court—where DePalma had been originally arraigned before it was discovered that the Mercury Bank was federally insured, giving the federal court jurisdiction. Through these reports, Bond learned that Cazares had failed at first to pick out DePalma's picture from a group of photos. Another witness, Mary Ghan, who worked across the street from the Mercury Bank, had reported seeing a man in clothing similar to that described by the two tellers walk towards the bank just before the robbery. She reported that the man wore sunglasses and appeared to be Oriental. Both Cazares and Godwin claimed the suspect was Mexican. At the trial Godwin said she had thought the suspect was Italian. DePalma is Russian-Italian.
 
But Bond failed to turn up one item that would eventually prove to be of more than casual interest. It appeared in a local Buena Park newspaper shortly after DePalma's trial. Buena Park's police chief boasted in print that in the month-and-a-half since one Sergeant James D. Bakken had become their crime lab head, the lab had made as many fingerprint identifications as it had in all of the preceding three years.
 
 
On April 16, 1970, James Alexander Graham and Harold Joseph Hicks were apprehended attempting an armed robbery of a market in Buena Park. Officer David Nelsen dusted a rifle found at the scent for prints. Not finding any, he wiped it clean and gave it to Sergeant Bakken. Later Bakken claimed he found both suspects' prints on the rifle. At the preliminary hearing Nelsen told Detective Sergeant Black, again the investigating officer, that he would not testify to lifting prints. He would not commit perjury. Later the point became moot as the defendants pleaded guilty—a case of “No harm, no foul.” But, outraged, Nelsen quit the Buena Park department and joined another city's force. There Bond contacted him, and learned about Bakken.


Meanwhile, it was time to try for a new trial. DePalma had to pay Lavine another $1500 for the motion, bringing the attorney’s total fee on the case to $13,000. But Bond thought Lavine was uninterested and actively dodging him. When Lavin inquired into what property DePalma's father owned, DePalma fired him. Lavine, however, would not return the last check for $1500.
 
Joe Ball, another 70-year-old trial vet took over. Like Bond, he took it free: “pro bono”—in the public's interest. On November 30, 1970, he requested a new trial. He presented Mary Ghan to Judge Carr and she told him that DePalma was not the man she had seen; he also presented Donald Blackmore and other evidence developed by Bond. Ernestine Cazares admitted once passing over DePalma's photo and later in a note, wrote, “I’ve been thinking about this over and over and I just can't be sure in my mind he was the man …”
 
Ball attacked the fingerprint with an affidavit of an expert, William Harper. Fingerprints are formed by dusting until prints, left by oil in fingers, appear. Then they are lifted with a wide strip of Scotch tape and sealed on clear acetate. Harper said the lift in question looked odd, for, in addition to DePalma's print, there was only one other print—a darker, unidentifiable one—on the acetate; this was unusually light traffic for a supposedly well-traveled bank counter. (No check could be made of the counter itself, as it had long before been dismantled, when the Mercury Savings and Loan relocated.)
 
Carr denied the new trial. “I read the chances fingerprints being duplicated are one out of millions,” he said.
 
Although he was present at the hearing, Nelsen never took the stand. Ball didn't think Carr would listen to rumors about Bakken in other cases. But a month later, Bond wrote to Carr, telling him Nelsen's story of Bakken's so-called discovery of prints on the rifle in the Graham-Hicks case. Bond advised Carr that Nelsen and several Buena Park officers would meet with him at his convenience. Carr did not respond. Bond then took Nelsen’s story to the local FBI agent in Orange County, Jim Conway, but he, too, refused to act, saying it was in the court's hands, not his.
 
 
On August 5, 1971, DePalma, his last appeal lost, was picked up at work and taken by car, handcuffed to two other prisoners, on a three-day trip to MacNeil Island Penitentiary in Steilacoom, Washington, to begin what would be the most agonizing part of his seven-year ordeal. During his stay, two old cons taught DePalma how to survive. The lesson was simple: keep your mouth shut and mind your own business. Occasionally, he would see floors bloodstained from an altercation and he once got a glimpse of a prisoner who had hanged himself in his cell. One prisoner jumped him on the grounds, and another threatened his life. Back home, his family went on welfare.
 
DePalma made a close friend in prison, a man who worked with him in the furniture shop. DePalma knew him only by a nickname at first, but ironically he turned out to have a real name that DePalma was familiar with—Robert Eads. Advised of DePalma's plight, Eads became apologetic. But he also stated that he did not commit the Mercury Bank job.
 
In October of 1971, DePalma was denied parole and told he could apply again in two years.
 
“When I arrived, I looked up at the penitentiary.” DePalma recalls. “It looked like something out of a horror movie. The boat ride over was sickening, like the boat was going into the water, down, down, down . . . Once inside, the gate slams shut and you know you've had it. I was scared. A lost soul. I thought of the movies on TV—homosexuals, guards beating prisoners, everything. The cells always stunk. A man would take crap right in front of you . . . The food was garbage—made eating out of my truck like eating at a God damned restaurant. Spaghetti one day, spaghetti soup the next . . . All that’s talked about is crime. The place is a university of crime.”
 
Meanwhile Bonds sense of justice was tearing. He hit the morgues again, determined to find the bank robber.
 
 
Bond joined the recently formed Federal Public Defenders Office in Los Angeles with the proviso that he could still work the DePalma case. In September of 1972 that office was officially appointed to represent DePalma and the case was assigned to Tom Pollack, a young, dark-haired and moustached NYU law graduate who had left O'Melveny & Myers, perhaps Los Angeles' largest law firm, to become a public defender.
 
Pollack decided that the fingerprint had to be attacked. Reading the trial transcript, he noted that Officer Cate had testified that the prints on the bank counter had been photographed before being lifted—a normal procedure to preserve evidence in case prints are damaged in lifting, and a way of showing exact print location. Immediately Bond searched for the photos. Buena Park reported that they were not on file—which was unusual since evidence is normally kept, in the event that an appellate court orders a new trial. Neither the US Attorney's office nor the FBI had the photos. Washington sent, instead, seven photos of fingerprints Cate had lifted at the Mercury Bank. Each photo was of two lifts. Pollack didn't know it yet, but in these photos was crucial evidence.
 
Bond, meanwhile, reexamined Bakken's trial testimony, particularly his claim that he had formerly headed the Crime lab for the Lincoln County Sheriff's Department in Minnesota. Bond telephoned Lincoln County and the sheriff there broke our laughing. He had only three deputies, had never heard of Bakken, and wouldn't know what to do with a crime lab if he had one, he said. And he had been sheriff since 1954. In the transcript Bakken also stated he had taken criminology courses through the University of Minnesota extension. The school had never heard of him.
 
Bond started thinking about the dark fingerprint above DePalma's on the otherwise clear lift. It made sense to him that if someone had forged DePalma's print, that person would probably put at least one other print on the lift to make it look as though it was taken from a publicly used counter. Maybe, Bond hypothesized, the culprit was stupid enough to use his own finger to make the second print. He took a photo of the lift to Ron Linegar, also of the Buena Park Crime Lab, for a fingerprint comparison. His hunch turned out right. The dark fingerprint belonged to James D. Bakken.
 
On this evidence, after six years, the Buena Park Police Department decided to listen to Bond and launch its own investigation into Bakken.
 
 
William DePalma was surprised in the prison visitors' room. He hardly recognized the man whom he hadn't seen for two-and-a-half years—John Bond. His eyes slowly opened like Rip Van Winkle awakening from a long sleep, as Bond spoke of his discoveries. “Tell me again,” DePalma repeated numbly. “Tell me again.”
 
The news got even better. In November of 1973, DePalma was granted a parole unexpectedly and set to be released December 18. It is rare for a person serving a 15-year sentence to be paroled after only two-and-a-half years. DePalma had desperately been trying to convince prison authorities of his innocence but always met with the reply, “That's what they all say.” He even asked for sodium Pentothal—“truth serum” —but was refused. Finally a prison official informed him that their job was only to see that he served his sentence, that the courts determined guilt. But DePalma became a model prisoner, a community leader, a man some “hacks” (guards) thought didn't belong. A psychologist, Dr. Eric Thompson, befriended DePalma and eventually came to believe in his innocence. He spoke for DePalma at his 1973 parole review. At DePalma's interview, a parole board member said, “So you're an innocent man. You're the first I’ve met up here.”
 
 
On November 14, 1973, an Orange County grand jury indicted James D. Bakken for perjury and falsifying evidence in the 1970 marijuana possession case of John D. Snyder. Specifically, Bakken had placed Snyder's fingerprint on a clear plastic bag full of pot. It was one of six cases in which Buena Park's internal affairs department found evidence of misconduct by Bakken.
 
 
When Orange County Crime Lab criminologist Larry Ragle, a man who boasts that his lab is “middle of the road” (i.e., not prosecution-oriented), was asked if he could detect a manufactured fingerprint he responded, “I'd have to have a look at it.”
 
Ragle put DePalma's print and the darker Bakken print from the lift under a microscope and found that, visually, their makeup was totally dissimilar. This meant that different dusting powders had been used. After several tests failed to show what compound had made the DePalma print, Ragle decided to look at Xerox toner powder—which can be lifted from a Xerox copy with tape just as fingerprint powder is lifted from an object. Ragle lifted powder from a Xerox copy and under the microscope found it to be visually the same as DePalma's print. Photo blowups confirmed it.
 
But what did that prove? Bakken could have accidentally touched the bank counter and for some reason Cate may have put fingerprint powder on his print and toner powder on DePalma's. Cate could no longer say what he did. In 1971 he attempted to arrest a child molestation suspect and was shot to death. But Ragle located the key. He placed the lift (since Scotch tape is transparent) over DePalma's 1957 fingerprint card—the one that Sergeant Plummer had sent Sergeant Black in 1967—and DePalma's print matched perfectly with the left index fingerprint on the card. They were exact duplicates. Also, some small specks on the tape, previously unidentifiable, fit exactly over ridges in the fingerprint on the left index finger on the card, indicating that if DePalma's latent print was lifted from a Xerox copy of the card, the Scotch tape inadvertently lifted a few particles from the adjacent fingerprint at the same time. The duplication was confirmed with 11 by 14 positive-negative blowups of the latent print and card. Other tests indicated that the chances of such duplication were about the same as the chances of two people having identical fingerprints. And so Ragle made his report: DePalma's latent print was a Xerox copy of his 1957 fingerprint.
 
On November 21, 1973, Pollack and his boss, John Van DeKamp, went to the US Attorney's office to present Ragle's finding and ask the government to agree to DePalma’s release from prison pending a hearing for a new trial, as there was really no reason why he should have to remain there until his December 18 parole date. But Darrel MacIntyre, who took over the prosecution of DePalma's case after Robert Browning went into private practice, and his boss, William Keller, opposed the request.
 
Keller let it be known that most deputies in his office had no faith in John Bond. When Cazares' letter of doubt about her identification came up, MacIntyre responded that her husband had asserted that Bond had intimidated her, by saying, “How does it feel to know you've helped send an innocent man away for 15 years?” The government's position was: If DePalma got a new trial he would probably be reconvicted, on the basis of two eyewitnesses, and under those circumstances, Carr might not reimpose sentence if DePalma only had 27 more days to serve. Keller thought: DePalma was getting off lightly with so little time as it was, and he wanted DePalma to do every day of it. Xerox or no Xerox.
 
 
On December 18, 1973, DePalma came home, greeted at the airport by family and tears, like a POW returned.
 
“When my plane landed,” he remembers, “no bands played but it was still beautiful. Everyone cried. When I came into my house it finally hit me it was all over . . . The first time I visited Pollack, his office was having a Christmas parry and I stood in the hallway when MacIntyre walks up to me friendly-like. He didn't recognize me. I remembered him from a day during my trial when, in an elevator, he said, ‘Hey DePalma, why don't you plead guilty and get it over with. You know you're guilty.’ This day when I told him who I was you could just see his eyes, got all screwed up, but Bond came over and separated us.”
 
 
The investigation continued. Robert Wagner, a co-worker of Ragle's, looked at the seven photos of Cate's lifts the FBI had sent to Pollack. He noticed that the upper lifts in two photos were identical. Positive-negative blowups of each verified the match. When overlayed, even the air bubbles in the tape coincided. This meant the card was photographed, then the lower lift removed from the acetate, and a new lift placed on it and rephotographed. One of the lower lifts contained DePalma's and Bakken's prints. That both photos were sent to Washington can only be described as a culprit's bungle.
 
DePalma's print was then sent to the Aerospace Lab in Inglewood and placed in an ion microscope mass analyzer. Tests indicated that titanium, aluminum, and iron, three elements in fingerprint powder, were present in Bakken's print but not in DePalma's. An electron microscope then produced photos at 1000X magnification, clearly distinguishing Xerox toner powder from fingerprint dust.
 
Because MacIntyre charged that Bond had intimidated Cazares into changing her testimony, Bond went to her residence and taped an interview. Both Cazares and Godwin, still working at banks, had moved to Northern California. Cazares' husband denied making the statement MacIntyre had credited him with. Ernestine herself said Bond had only told her that DePalma had passed a lie-detector test and when she repeated that to MacIntyre the prosecutor replied, “He said that just to get you confused.”
 
“I saw this move at TV—‘Cry Rape’—where three women identified a man and it turned out to be a look-alike,” she told Bond. “I'm very sensitive. I go to church every Sunday and pray that if I made a mistake he will get help, but I thought he was the right person.” Bond also interviewed Godwin. She said she hadn't given the matter much thought.
 
 
Under federal law, newly discovered evidence will not support a motion for a new trial unless offered within two years after the trial. Past that time it is necessary to seek a presidential pardon or show a Constitutional infirmity in the trial itself. Pollack tried the latter. He filed for a new trial claiming false evidence was admitted at the old one violating DePalma's Fifth Amendment right not to be deprived of liberty without “due process of law.” MacIntyre opposed, his brief correctly citing case law which says that to violate the Fifth Amendment the prosecution must know the evidence is false when it is offered. MacIntyre claimed the United States did not know. Pollack refiled with a novel argument logical enough to win: The 14th Amendment applied the Fifth Amendment to “states.” Bakken was a state official, acted in that capacity, and he knew his testimony was false when given.
 
There was never a ruling. On February 11, 1974, DePalma again went to court. Bakken was there, having been personally served by Bond, who had seated himself next to him. The hunter and the hunted. MacIntyre conceded the motion since a letter from the FBI said that DePalma's print “appeared” to be toner powder, not fingerprint powder, although they couldn't be sure because of the “limited quantity present.”
 
Pollack still wanted his witnesses to testify anyway—to show Judge Carr and the world that DePalma was indeed framed. He asked Carr to hear the evidence and then review a motion made at the original trial for acquittal. He reasoned that if Carr had known the fingerprint was no good to begin with he would have granted the acquittal—and since that knowledge was barred by fraud, the motion should still be considered open to rule upon. But MacIntyre countered by moving that the indictment be dismissed. It surprised Pollack. Earlier, MacIntyre had said he would need Washington's approval to dismiss. Now it seemed he just didn't want the evidence heard.
 
But Pollack did. As MacIntyre would only admit a doubt as to the fingerprint’s authenticity, Pollack asked Carr to listen to his oral summation of what his witnesses would have testified. Carr agreed to listen but would not look at any of the photos. Before leaving the bench, Carr, his head low, said, “Nobody ever said the system was perfect. That's for the stargazers.”
 
DePalma was free and shaking hands. But not Bond. The investigator had already left, thinking of another client he also took on in 1967, Antonia Thomas—a Filipina immigrant incarcerated at Frontera State Prison, convicted of poisoning her infant son. For Bond she passed both lie-detector and hypnosis tests. He is sure he knows who the murderer is and he has turned over his investigation reports to the district attorney's office which has not acted yet. Another lifetime's work. But Bond vows, “By God, someday, somehow, I'm going to exonerate her.”
 
 
Paul Morantz is a Los Angeles attorney and free lance writer who has contributed to Rolling Stone and West among other publications.