Brandon Mayfield Settles Suit

By TChris, Section Civil Liberties
Posted on Thu Nov 30, 2006 at 08:12:51 AM EST
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The government claimed a fingerprint linked Brandon Mayfield to a terrorist attack in Spain. That claim was false, as Spain said all along. "Sneak-and-peek" warrants, issued pursuant to the Patriot Act, were used to search for evidence against the innocent Mayfield. When no supporting evidence was found, Mayfield was arrested and detained as a material witness.

Mayfield sued the government. The suit has been settled for $2 million together with a rare apology for the government's misbehavior. The settlement does not bar Mayfield from moving forward with a challenge to the Patriot Act.

Mayfield's case called attention to the myth that fingerprints are an infallible method of identification:

Michael Cherry, president of Cherry Biometrics, an identification-technology company, said misidentification problems could grow worse as the U.S. and other governments add more fingerprints to their databases.
"I really believe there are a lot more Mayfields out there," Cherry said. "We just don't know about these cases because the Spanish police don't always get to oversee them. We simply don't have an identification standard that fits with today's times."

In a report on the Mayfield case in January, the Office of the Inspector General, the Justice Department's internal watchdog, said FBI experts had overlooked "important differences" between Mayfield's prints and those of the Algerian man, and had essentially ignored information from Spanish police that pointed to the other suspect.

"We believe that the FBI laboratory's overconfidence in the skill and superiority of its examiners prevented it from taking the [Spanish report] as seriously as it should have," Inspector General Glenn A. Fine said in a summary of that report.

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Brandon Mayfield Settles Suit | 12 comments (12 topical)

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Mayfield and wife Mona (4.00 / 1) (#8)
by Peaches on Thu Nov 30, 2006 at 02:55:20 PM EST

on Democracy Now earlier today.

...that's the standard, that you only arrest if somebody is suspicious of a crime, and you have to have probable cause that a crime has been committed. You can't arrest or search somebody's place or arrest somebody without that standard. And that's been the standard for 200 years, since the inception of our Constitution and amendment with our Bill of Rights.
And that standard is slowly being eroded, and it has been since 1978, with the passage of the FISA Act, which allowed warrants to be issued if there was -- if the primary purpose was to gather foreign intelligence. And so, little by little, there's been a whittling away at that standard-bearer and protection of our freedom and privacy... I was being held as a material witness. The FISA Act of 1978, it allowed the federal government to basically spy on us if the primary purpose was to gather foreign intelligence, if they could say the suspect was tied to foreign agents, if it was for a foreign intelligence-gathering purpose. PATRIOT Act of 2001 amended that standard, and now they can spy on us if the significant purpose is for intelligence gathering. It's no longer primary, it's no longer foreign purpose.
So virtually for anything they want, they don't have to have the standard of probable cause that a crime has been committed to get a search warrant for an arrest, or for a search or an arrest. But FISA also undermines that probable cause -- not FISA, the Material Witness Statute of 1984. That's the statute under which I was arrested, and it's the statute that Ashcroft and company have used to further abuse our time-honored rights, because this administration is using the material witness not as a tool for securing somebody's testimony, they're using it to lock up individuals that they suspect of terror or committing a crime. And it's a misuse of the prosecutorial process.

Irony seems to be the word of the day (none / 0) (#1)
by aw on Thu Nov 30, 2006 at 08:39:02 AM EST

"We just don't know about these cases because the Spanish police don't always get to oversee them.

Heh.

American hubris apparently knows... (none / 0) (#2)
by Bill Arnett on Thu Nov 30, 2006 at 11:21:36 AM EST

...no bounds. They practically destroyed this attorney's life and feel no remorse whatever.

I wonder how many of his client's files were copied and turned over to still yet unknown parties?

Mornin', aw, everybody.

: Hi, Bill (none / 0) (#3)
by aw on Thu Nov 30, 2006 at 11:31:52 AM EST

Mayfield (none / 0) (#4)
by MoPD on Thu Nov 30, 2006 at 12:24:30 PM EST

Several fingerprint examiners I have talked to since this all came to light have told me they wouldn't have made this identification. Therefore, in my mind two million is a joke. Try 10 million.

the only positive method of (none / 0) (#5)
by cpinva on Thu Nov 30, 2006 at 01:28:32 PM EST

identification is DNA. all the others rely too much on human judgement.

a caveat: since humans, by definition, are fallible, and are directly involved in the processing of DNA evidence, there will, absolutely, be a case of false-positive DNA identification.

with luck, the good thing out of this is that the FBI gains a little much needed humility. it's great if you're very good at what you do, and the FBI lab is. unfortunately, when you decide you're perfect, you become dangerous.

And, also, where does Mayfield go... (none / 0) (#6)
by Bill Arnett on Thu Nov 30, 2006 at 01:34:11 PM EST

...to get his good name back?


: That's one thing he needn't worry about (none / 0) (#7)
by Jim Strain on Thu Nov 30, 2006 at 02:05:15 PM EST

The public understands that the Bush anti-terror machine is about as reliable as a Ouija board or a Magic 8-Ball. Mayfield's reputation has done nothing but soar.
. . . jim strain in san diego.

DNA isn't positive either (none / 0) (#9)
by Sailor on Thu Nov 30, 2006 at 03:21:30 PM EST

DNA can be used positively to exclude, but not enough markers are used to make inclusion positive.


The FBI's media relations planning (none / 0) (#10)
by sysprog on Thu Nov 30, 2006 at 09:26:37 PM EST

Beth Anne Steele emailed :
http://www.kgw.com/news/pdf/MayfieldEmail.pdf

From: STEELE, ELIZABETH A. (PD) (FBI)
Sent: Wednesday, May 05, 2004 9:16 AM
To: *BLACKED OUT* (LA) (FBI)
Subject: LA Times

*BLACKED OUT* ,

I left you a voice mail this morning, but I figured this was a more secure way to leave the details for you.

There is a man living in the Portland area who has been tied to the Madrid bombings by a fingerprint found at the scene. His name is Brandon Mayfield, Muslim convert and attorney.

Earlier this week, an LA Times reporter in the Paris Bureau called the Legat in Spain, Ed Sanchez, to ask about information the reporter had heard that there was an American tied to the Madrid bombings. At that time, we don't think he had the name or location or the fact that the evidence is a fingerprint.

The problem is there is not enough evidence to arrest him on a criminal charge. There is a plan to arrest him as a material witness if and when he gets outed by the media.

Neither the National Press Office nor the Portland Division has received any media calls as of this morning, and *BLACKED OUT* thought is that, at some point; LA may receive a call from the Times trying to nail this down. If you do receive this call, we would ask that you confirm nothing and try to get out of them how much they have and whether or not publication is imminent. The powers that be are trying to hold off as long as possible on any arrest, but they want to make sure an arrest happens before anything hits the media.

To complicate things, the Legat just notified Portland that he received an inquiry from a Spanish publication about the same thing, and it had the details about the evidence that it said it planned to publish "soon".

Thanks for your help,
Beth Anne Steele / FBI Portland
(503) xxx-xxxx

* * * * *

From: *BLACKED OUT* (LA) (FBI)
Sent: Wednesday, May 05, 2004 10:12 AM
To: STEELE, ELIZABETH A. (PD) (FBI)
Subject: RE: LA Times

Beth Anne,
No problem. No, I haven't received any inquiries but will play dumb and glean what I can if I do. I'll let you know immediately should I get a call. By the way, are you going to Quantico in June?
Take care, *BLACKED OUT*

I'm less astounded by what the FBI was planning and more astounded that Beth Anne Steele documented the plan in an email message, which she refers to as "more secure" than voice mail. Eh? What kind of security training could have given her the crazy idea that email is secure? I wonder what has happened lately to her FBI career?

: Gerry Spence's Reaction To FBI Email (none / 0) (#11)
by sysprog on Thu Nov 30, 2006 at 09:35:01 PM EST

The AP reported :
http://www.kgw.com/news-local/stories/ kgw_071305_news_mayfield_fbi.a2ccad5b.html
Wednesday, July 13, 2005
...The more troubling issue, said attorney Gerry Spence, who is representing Mayfield in his lawsuit against the government, is the admission that there was not enough evidence to arrest him in the first place.

"The e-mail says that there wasn't enough evidence to arrest him on a criminal charge. I don't know if that makes your hair stand on end or what," Spence said in a telephone interview.

"Here the government is saying we don't have any grounds to hold him criminally, but if the media outs him then we are going to hold him as a material witness. It becomes a race to see if the government could arrest Mr. Mayfield before some member of the press outed him," Spence said...

...Michael Greenberger, a former U.S. Justice Department official who now heads the University of Maryland's Center for Health and Homeland Security, said: "This e-mail corroborates what is already widely known -- that when the Justice Department does not have probable cause to make a criminal arrest, but they have a suspicion that someone is involved in terrorist activities, one tactic is to arrest them as a material witness."

Such use of the material witness law "raises constitutional problems," he said, because the person can be held for long periods of time without access to legal protections that come with a normal arrest -- the right to a bail hearing, for instance.

Last month, two advocacy groups contended that the Bush administration has misused the material witness law to detain at least 70 terrorism suspects since the Sept. 11 attacks.

Only 28 of the suspects were eventually charged with a crime, according to the American Civil Liberties Union and Human Rights Watch, and most of those charges were not related to terrorism.

The government has apologized to 13 people for their detention under the law, including Mayfield.

Leahy's Bill S.1739 (none / 0) (#12)
by sysprog on Thu Nov 30, 2006 at 11:05:46 PM EST

U.S. Senator Patrick J. Leahy sponsored :
http://thomas.loc.gov/cgi-bin/query/z?c109:S.1739:

S.1739
to amend the material witness statute
September 21, 2005

...LIMIT- The total period of detention under this subparagraph may not exceed--
`(I) 30 days, where the testimony of the witness is sought in a criminal case; or
`(II) 10 days, where the testimony of the witness is sought in a grand jury proceeding.

...`(e) Report-
`(1) IN GENERAL- Notwithstanding any other provision of law, the Attorney General shall provide to the Committees on the Judiciary of the Senate and the House of Representatives an annual report regarding the use of this section by the United States Government during the preceding 1-year period.

...(b) Amendment to Federal Rules of Civil Procedure- Rule 46(h) of the Federal Rules of Criminal Procedure is amended to read as follows: `(h) Supervising Detention Pending Trial- To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.'.