Innocent Man Freed After 24
Years in Prison
In
a hearing in
the Terry
Harrington
murder case,
Pottawattamie
County, Iowa
District Court
Judge Tim
O'Grady ruled
that Brain
Fingerprinting
testing is
admissible in
court. Dr.
Farwell
conducted a
Brain
Fingerprinting
test on Terry
Harrington,
who was
serving a life
sentence in
Iowa for a
1977 murder.
The test
showed that
the record
stored in
Harrington's
brain did not
match the
crime scene
and did match
the alibi.
Harrington
filed a
petition for a
new trial
based on newly
discovered
evidence,
including the
Brain
Fingerprinting
test. The Iowa
Supreme Court
reversed his
murder
conviction and
ordered a new
trial. The
Iowa Supreme
Court left
undisturbed
the law of the
case
establishing
the
admissibility
of the Brain
Fingerprinting
evidence.
The Harrington
case is
described in
this Harrington
Case Summary.
In a Brain
Fingerprinting
test, words,
pictures or
sounds
describing
salient
features of a
crime are
presented by a
computer,
along with
other,
irrelevant
information,
that would be
equally
plausible for
an innocent
subject. Items
are chosen
that would be
known only to
the
perpetrator
and to
investigators,
but not to the
public or to
an innocent
suspect. The
subject is
told which
features he
will see
(e.g., the
murder
weapon), but
is not told
which item is
correct (e. g,
gun, knife, or
baseball bat).
When a subject
recognizes
something as
significant in
the current
context, the
brain emits a
specific brain
response. If
the record of
the crime is
stored in the
subject's
brain, this
response
appears when
the subject
recognizes the
correct,
relevant
items. If not,
then the
response is
absent. A
computerized
mathematical
analysis of
the data
determines
whether or not
the subject
has knowledge
of the salient
details of the
crime.
Just as a
personal
computer emits
a
characteristic
sound whenever
its central
processing
unit is
transferring
information to
or from or the
hard drive,
the human
brain emits a
characteristic
electrical
brain wave
response,
known as a
P300 and a
P300-P300-MERMER
(memory and
encoding
related
multifaceted
electroencephalographic
response),
whenever the
subject
responds to a
known
stimulus. The
P300
electrical
brain wave
response, one
aspect of the
larger
P300-MERMER
response
discovered and
patented by
Dr. Farwell,
is widely
known and
accepted in
the scientific
community.
There have
been hundreds
of studies
conducted and
articles
published on
it over the
past
thirty-plus
years. The
P300-MERMER, a
longer and
more complex
response than
the P300,
comprises a
P300 response,
which is
electrical
events
occurring 300
to 800
milliseconds
after the
stimulus, and
additional
data occurring
more than 800
milliseconds
after the
stimulus.
While a P300
shows only a
peak
electrical
response, a
P300-MERMER
has both a
peak and a
valley.
In order to be
admissible
under the
prevailing
Daubert
standard, the
science
utilized in a
technology is
evaluated
based on the
following four
criteria: (The
Iowa courts
are not bound
by the Daubert
criteria used
in the federal
courts, but
they do use
them when
determining
the
admissibility
of novel
scientific
evidence.)
1. Has the
science been
tested?
Has the
science been
peer reviewed
and published?
Is the science
accurate and
are there
standards for
its
application?
Is the science
well accepted
in the
scientific
community?
The judge
ruled that
Brain
Fingerprinting
testing met
all four of
the legal
requirements
for being
admitted as
valid
scientific
evidence. The
ruling stated:
"The test is
based on a
'P300
effect.'… "The
P300 effect
has been
studied by
psycho-physiologists…The
P300 effect
has been
recognized for
nearly twenty
years. The
P300 effect
has been
subject to
testing and
peer review in
the scientific
community. The
consensus in
the community
of
psycho-physiologists
is that the
P300 effect is
valid…."
The judge also
ruled that
"The evidence
resulting from
Harrington's
'brain
fingerprinting'
test… is newly
discovered"
and "material
to the issues
in the case,"
and thus meets
the standard
for being
considered in
a petition for
a new trial.
The Brain
Fingerprinting
test on
Harrington
showed that
the record
stored in his
brain did not
match the
crime, and did
match his
alibi. This is
similar a
finding that
Harrington's
fingerprints
or DNA did not
match the
fingerprints
or DNA at the
crime scene,
and did match
those at the
scene of the
alibi.
Dr. Farwell
conducted two
different
analyses of
the data on
Harrington.
Both yielded
the same
conclusion. He
performed the
test and the
analyses in
strict
accordance
with the P300
science that
has been
extensively
researched and
is well
accepted in
the scientific
community. In
another
analysis, Dr.
Farwell used
more
state-of-the-art
techniques,
including the
P300-MERMER,
which, though
arguably more
accurate, do
not yet have
the same level
of acceptance
as the P300.
After
obtaining the
results of the
Brain
Fingerprinting
test, Dr.
Farwell
located the
only alleged
witness to the
crime, Kevin
Hughes. When
Dr. Farwell
confronted him
with the Brain
Fingerprinting
test results
exonerating
Harrington,
Hughes
admitted that
he had lied at
Harrington's
trial. He
stated under
oath that he
had made up
the story
about
Harrington
committing the
crime to avoid
being
prosecuted
himself.
Harrington’s
attorney used
Hughes'
recantation
along with
Brain
Fingerprinting
test findings
as evidence in
his
post-conviction
petition for a
new trial.
The Harrington
case was about
as difficult a
case as could
be envisioned
for the Brain
Fingerprinting
system. The
day after the
crime, the
perpetrator
knows all
about the
crime and an
innocent
suspect knows
nothing.
Scientists
could have
readily
constructed a
Brain
Fingerprinting
test to
distinguish
between the
two, if the
technique had
been invented
at the time.
Later, in his
trial,
Harrington was
exposed to
extensive
information
about the
crime. This
made it
difficult
after the
trial to
produce
salient
features of
the crime that
he would know
only if he had
committed the
crime.
Twenty-three
years after
the crime was
committed,
through
examination of
court
documents,
police
reports,
witness
interviews,
crime-scene
photos and an
investigation
of crime scene
itself, Dr.
Farwell was
able to
structure a
Brain
Fingerprinting
test that
tested
Harrington's
brain for
evidence of
salient
features of
the crime,
features that
he claimed not
to know
because he was
not there. The
test showed
that
Harrington's
brain in fact
did not
contain a
record of
these salient
features of
the crime. A
second test
conducted by
Dr. Farwell
showed that
Harrington's
brain did
contain the
details of his
alibi.
As with other
scientific
evidence,
Brain
Fingerprinting
testing does
not prove
guilt or
innocence per
se. It
provides
information
about what is
stored in the
suspect's
brain. A judge
or jury can
utilize this
information in
making the
legal
determination
of guilt or
innocence. The
weight of the
Brain
Fingerprinting
test evidence
will be
evaluated
along with
other evidence
by a higher
court in their
consideration
of
Harrington's
appeal. If a
higher court
finds that
this and other
evidence
probably would
have changed
the result of
the original
trial if it
had been known
at the time,
then
Harrington
will be
granted a new
trial.
"I believe the
court’s
admission of
Brain
Fingerprinting
test results
into evidence
is a landmark
in forensic
science," said
Dr. Farwell.
"Innocent
persons have a
new technology
to aid in
their
exoneration,
and law
enforcement
has a new
weapon with
which to
convict
perpetrators.
In the future
we can use
this
technology to
find out the
truth early in
a case. This
will save
innocent
suspects from
a traumatic
investigation
and trial, and
potentially
from false
conviction and
punishment. By
allowing law
enforcement to
focus on the
actual
perpetrators,
it will also
save time and
money in law
enforcement.”
"I believe
that in time
we will be
able to
virtually
eliminate
false
convictions
through Brain
Fingerprinting
tests and
other
scientific
technologies
such as DNA
and
fingerprints.
This new
scientific
technology
will also
allow us to
significantly
increase the
number of
actual
criminals
brought to
justice."
Hundreds of
scientific
studies on
this
technology
from dozens of
laboratories
have been
published in
the
peer-reviewed
scientific
literature.
Dr. Farwell
has applied
the technique
not only in
rigorous
laboratory
studies but
also in over
100 real-life
cases. Dr.
Farwell and
then FBI
scientist Dr.
Drew
Richardson
used the Brain
Fingerprinting
system to
detect with
100% accuracy
which people
in a group
were FBI
agents and
which were not
by measuring
brain
responses to
items only an
FBI agent
would
recognize.
Brain
Fingerprinting
testing was
also 100%
accurate in
three studies
Dr. Farwell
conducted for
a US
intelligence
agency and for
the US Navy.
The Brain
Fingerprinting
system tests
for knowledge
of salient
features of a
crime stored
in the brain.
Scientists
know that we
don't remember
everything,
but we do
remember
significant
features of
major events —
like
committing a
serious crime.
By
scientifically
determining
what is stored
in a suspect's
brain, Brain
Fingerprinting
testing
provides
evidence that
can be used by
judges and
juries in
making a
determination
as to whether
the suspect
committed the
crime or not.