Although he had red hair and didn't otherwise fit the general description of the killer, the police suspected David Wayne Kunze, the 45-year-old ex-husband of the woman James McCann was about to marry. When Kunze learned of the upcoming marriage four days before the murder he was upset. This led investigators to suspect Kunze attacked the victims out of jealousy and rage. The intruder had stolen McCann's television set, VCR, stereo speakers and wallet, an aspect of the case detectives explained away by theorizing that Kunze took these things to throw investigators off his trail. Convinced that the scene had been staged to look like a burglary, the police made no effort to identify a homicidal intruder through the missing property. David Kunze consented to a search of his truck, boat, storage locker and safety deposit box. Detectives found nothing in those places that connected him to the McCann home invasion and murder.
Three months passed without further developments in the investigation. Then Michael Grubb, a criminalist with the Washington State Crime Lab, compared the partial ear-print latent with photographs of Kunze's left ear and concluded that it "could have been made by David Kunze." Six months later, on September 21, 1995, Kunze voluntarily agreed to have fingerprint examiner George Miller and Michael Grubb take seven exemplar prints of his left ear. The criminalists applied hand lotion to the suspect's ear, then placed panes of glass against it using various degrees of pressure. Following that procedure, the criminalists dusted the glass with fingerprint powder then lifted the prints with transparent tape.
Michael Grubb compared the seven exemplars with the crime scene ear latent and concluded that "David Kunze is the likely source for the ear-print and cheek-print that were lifted from the outside of the bedroom door at the homicide scene." George Miller, the crime lab fingerprint analyst, declined to offer an opinion regarding the identification of the crime scene ear latent. He said he identified fingerprints, not earmarks. In June 1996, a year and a half after the murder, and eight months after Michael Grubb identified the crime scene ear-print, the Clark County prosecutor charged David Kunze with aggravated murder, assault, robbery and burglary.
In a pretrial motion to exclude the ear-print identification, Kunze's attorney petitioned the judge for a so-called Frye hearing. In 1923, a U. S. District Court in Washington D. C. held that lie detection technology had not been accepted in the general scientific community as a legitimate science. As a result, lie detection results did not constitute admissible evidence. This ruling became known as the "general acceptance test." To determine if latent ear-print identification was an accepted function within the forensic science community, the prosecutor and defense attorney in the Kunze case offered expert witnesses on both sides of the issue in a Frye hearing held in December 1996. This would be the most thorough, in-depth judicial/scientific review of ear-print identification in legal and criminalistic history.
On the issue of latent ear-print identification as a legitimate forensic science, the prosecution presented three advocates against the defense's twelve witnesses, who, in varying degrees, were not enthusiastic about this form of pattern analysis. Michael Grubb, the manager of the Washington State Crime Lab in Seattle who had identified the crime scene ear-print as probably Kunze's, testified that comparing an earmark to a known ear print was not unlike other forms of impression identification. A criminalist who specialized in bullet-striation and tool-mark identification, Grubb said that if you can analyze patterns made by tires, shoes, fingers, gun barrels, and tools, you can render an opinion on the source of an earmark.
The next prosecution witness, Alfred V. Iannarelli, said he had studied the evidence in the McCann murder case and was certain that the crime scene earmark was an "exact" match to Kunze's left ear. Iannarelli had never worked in a crime lab, had not been to college and had testified only once as an expert witness. He had been a deputy sheriff with the Alameda County Sheriff's Office and the chief of campus security at California State University at Hayward. From 1948 to 1962, Iannarelli had photographed 7,000 ears and from this database concluded that no two ears are the same. He had also devised an ear classification system based upon twelve "anthropometric measurements," a system featured in his 1964 book, The Iannarelli System of Ear Identification. In 1989, Iannarelli self-published a second edition of this text, titled Ear Identification which included a section on latent earmark analysis. He was unable, however, to cite any ear-print studies other than his own, which explained why his books didn't contain bibliographies.
In ear-print identification, it became clear there were no texts other than Iannarelli's, no community of experts, no section within any crime lab that specialized in this kind of work and no professional organizations or certifying bodies. Besides Mr. Iannarelli, there was one other analyst devoted solely to this form of identification. If anyone could claim to be an internationally known ear-print expert, it was a police officer from Amsterdam named Cornelius Van der Lugt. It was therefore not surprising that Van der Lugt had examined the McCann murder scene evidence and was the third prosecution expert at the Frye hearing. Van der Lugt had become interested in the ear-print identification field after reading Iannarelli's books in the early 1990s, and had since analyzed ear-print evidence in 200 cases in the Netherlands, United Kingdom, and several countries in Western Europe. He had testified as an expert in six trials, all of which were in Holland where judges, not juries, determined a defendant's guilt or innocence.
According to Cornelius Van der Lugt, many suspects, when presented with his expert ear-print analysis, confessed and pleaded guilty. In one case, a suspect admitted putting his ear to the door, but denied breaking in to the structure. Van der Lugt never worked in a crime laboratory, attended college, or received any kind of formal training in science. He was certain, however, that David Kunze was the source of the McCann murder latent ear-print. As part of his Frye testimony, Van der Lugt praised the work done by Michael Grubb and George Miller in obtaining the seven ear-print exemplars, noting how they had varied the amount of pressure against the ear until the known and crime scene prints looked alike. When asked if ear-print identification, as a forensic science, was accepted around the world, Van der Lugt said that it was.
While the Kunze prosecution could not have put on a stronger case for ear-print identification, it was arguably not enough to meet the Frye standards. In other words, at least in theory, Kunze's defense attorney could not win the Frye debate without mounting an anti-ear-print case. Leaving nothing to chance, the defense hit back with a dozen impressive witnesses, leading off with Dr. Ellis Kerley, a physical anthropologist and former president of the American Academy of Forensic Sciences and the American Board of Forensic Anthropology. Dr. Kerley said it was reasonable to assume that no two ears were the same, but he wasn't sure this uniqueness would always reveal itself in a crime scene earmark. He didn't consider Iannarelli's books works of science, and didn't approve of Van der Lugt's technique of getting an exemplar to match a crime scene latent by varying the pressure against the suspect's ear. "We don't do that in science...because we're not trying to make them look alike," he said. In Dr. Kerley's opinion, ear-print identification had not achieved general acceptance in the forensic science community.
Andre Moenssens, a law professor at the University of Missouri at Kansas City, the author of articles and law school texts on forensic science, and a former fingerprint expert in Belgium, testified that the "forensic sciences...do not recognize, as a separate discipline, the identification of ear impressions. There are people in the forensic science community, the broader forensic science community, who feel that it can be done. But if we are talking about a general acceptance by scientists, there is no such general acceptance....To my knowledge, there has been no investigation in the possible rate of error that comparisons between known and unknown ear samples might produce."
Following the Frye testimony of ten other recognized forensic scientists who did not consider latent ear-print identification a true science, the judge ruled that ear-print identification had in fact gained general acceptance in the scientific community. The decision was stunning in that it was so out of sync with the weight of the expert testimony. It was certainly bad news for David Kunze because the prosecution had no case without the ear-print evidence.
The case went to trial on June 25, 1997. The prosecutor chose not to put Alfred Iannarelli on the stand, but the jury heard the testimony of state criminalist Michael Grubb, and the ear-print guru Cornelius Van der Lugt. The prosecution ear-print analysts were followed to the stand by a jailhouse informant who claimed that Kunze had confessed to him while in custody. The prosecution rested its case without identifying the murder weapon, connecting the defendant to the crime scene through DNA or fingerprints, or linking him to any of the items taken from house.
For some reason, the Kunze defense attorney did not call upon the testimony of Dr. Ellis Kerley, Professor Andre Moenssens, or any of the other anti-ear-print Frye witnesses. As a result, the jury found David Kunze guilty of aggravated murder, burglary and robbery. The judge sentenced him to life without parole.
David Kunze appealed his conviction, and in 1999, a three-judge panel ruled that "the trial court erred by allowing Michael Grubb and Cornelius Van der Lugt to testify that Kunze was the likely or probable source of the ear latent, and that a new trial was therefore required. The appellate court instructed the prosecutor in the second trial not to prejudice the defense by referring to the first trial and the resulting conviction. The appellate judges didn't want the second jury to know that Kunze had been found guilty on the strength of ear-print identification.
In March 2001, ten days into the second trial, the prosecutor made reference to the earlier conviction. The presiding judge had no choice but to declare a mistrial. The prosecutor, after several jurors announced that had the case gone to them, they would have acquitted the defendant, announced that a third trial would not be scheduled.