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Facial Profiling 

Will face-recognition technology get an accused killer off the hook?

Wednesday, Jul 14 2010

Page 2 of 5

Prosecutors and police had a different story. They argued that Heard was a member of the Central Divis Playas gang in the Western Addition, and that he specialized in jewelry robberies. Barrett, they said, was Heard's latest victim.

The trial was an odd one from the start. The attorneys presented a distinct contrast in styles. Safire is short and bald, with a neatly trimmed goatee. He sports fancy ties and matching kerchiefs inside the courtroom, and a Panama hat outside.

His adversary, Swart, is tall and shambling. He has blond hair and boyish features that are often set in a scowl of irritation. Despite his stature, he resembles a sullen teenager shoved into a lawyer's suit.

In October, in what turned into a carnival-esque preliminary hearing, the D.A.'s office flew its star witness to San Francisco from Texas to identify Heard in the courtroom. Francis Smith had been in San Francisco in November 2008 on a business trip, and was partying with co-workers in North Beach when she saw Barrett shot.

Frustrated that his client was not allowed to take part in a line-up, Safire arranged for seven young men — all, like Heard, black and wearing gold "grills" across their front teeth — to stand in the back of the courtroom and stare at the witness at the precise moment she was asked to identify the shooter. Smith was not fazed by the gambit, and calmly picked out Heard where he sat at the defense table.

Swart was another story. He sprung out of his chair, shouting that "out-and-out intimidation of a witness" had taken place, and ordered the seven gold-toothed agitators arrested. They were cuffed and led away in a scrum of police officers and sheriff's deputies, the corridors of the Hall of Justice echoing with shouted curses while Safire looked on, shaking his head.

"It was a circus," Tina Heard, Charles' mother, recalled of her son's months in the courtroom.

A part-time cosmetologist who lives in Tracy and commutes to work on the graveyard shift at the Guittard Chocolate Company in Burlingame, she believes her son was having the book thrown at him because some SFPD officers had mistakenly decided that he was a hardened gangster. "They're so determined to put my son away that they will accept anything, and go to any extremes," she said in an interview.

As it turned out, the prosecution couldn't find too many extremes to go to. Aside from Smith's testimony — the linchpin of Swart's case — much of the evidence against Heard was circumstantial.

Cellphone records showed that Heard might have made several calls from the neighborhood where Barrett was shot soon after the killing, although one of the calls was to his mother, arguably not a gang member's likeliest confidant in the aftermath of a murder. An FBI wiretap caught Heard bragging about his habit of robbing people's bling ("When they put on some jewelry, they no longer my niggas," he explained in one recording), but no specific mention of the Barrett robbery.

The case had other weaknesses. Heard never actually stole the Bamm-Bamm pendant: The necklace was removed from Barrett's body at the scene of the crime by an unconnected bystander and returned to the victim's family. Swart argued that the killing had been an act of bravado to prevent the alleged gang member from "losing face" with the rest of his Central Divis Playas after Barrett resisted the theft.

The defense also had its own eyewitnesses — two of them — who claimed to have seen the shooter and said it wasn't Heard. One of them, David Stribble, a co-worker of Smith's, gave particularly compelling testimony. When asked whether Heard was the man he had seen shoot Barrett, he replied, "Not even close."

The trial of Charles Heard was, in other words, what criminal lawyers call an "identity case." The defendant's guilt or innocence rested on jurors' willingness to believe various statements about what the killer of Richard Barrett looked like.

It was into this setting that there walked a beguiling, self-described expert who claimed he could settle the question using a little-known branch of science.

From the get-go, Ben Bavarian made no secret of his eagerness to participate in a San Francisco criminal proceeding that, outside of its potential ripeness for his profession's techniques, had absolutely nothing to do with him.

"I think this is going to be the first time that we use the fundamentals of digital facial attributes in a court case," he said in an interview during his first trip to San Francisco last month for a hearing on whether his testimony should be admitted in Heard's murder trial. "It's going to be a very important case — a historical case."

Bavarian is managing director of Newport Beach–based firm AFIS and Biometrics Consulting, a private consultancy that develops biometric identification systems. He holds a Ph.D. in electrical and computer engineering from Ohio State University, and — with his amber complexion, coiffed dark hair, and hooded gaze — exhibits a distinct Southern California gloss. His clients have included the Department of Homeland Security and the Netherlands national police.

Safire had enlisted Bavarian to analyze business surveillance videos of two young black men fleeing the site of Barrett's murder. The prosecution and defense agreed that one of these unidentified men was the shooter. They wore clothes matching those described by witnesses, and one can be seen in the footage holding an object that resembles a handgun.

Swart chose not to use the videos for identification purposes, asserting that they were too blurry. Yet they were a mainstay of Safire's case. Relying on Bavarian's techniques, the defense lawyer hoped to demonstrate that neither of the men captured on tape was Charles Heard.

The prosecution, for its part, argued forcefully against Bavarian being allowed any-where near a jury.

"At this point, it cannot be established that biometrics has been generally accepted in the relevant scientific community," Swart said in a motion. "Just as importantly, there are no prior published Court of Appeal opinions in California that establish the general scientific acceptance of this science."

About The Author

Peter Jamison


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