Facial Profiling

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

"Dr. Vorder Bruegge," Swart asked, as he concluded his questioning, "in your opinion, is Dr. Bavarian's report reliable?"

"No," Vorder Bruegge said.

Swart repeated, "Is it reliable?"

"No," Vorder Bruegge said evenly. "It is not."

As the trial wound down, Safire chose to highlight the blurry surveillance video as one of several factors pointing to Heard's innocence. The biometric evidence, he asserted, was simply one more factor that should raise a reasonable doubt as to whether Heard had committed murder.

The prosecutors in the case, he told jurors in his closing argument, were "trying to scare you into making a mistake. Why? Because Mr. Heard's image is not in that video." Of the biometric analysis, he said, "Listen, you guys heard the scientific evidence. I don't quite get it myself, but all I can tell you is that was an attempt to try to make this case easier to decide."

During his own summation, Swart set to bashing Bavarian again. He also praised the testimony of Vorder Bruegge.

"A guy who used to work for NASA came in here, and he said [the video is] just too low-resolution," he said.

"He exposed Dr. Bavarian for what he is," he continued. "In the legal community, we have a term for what Dr. Bavarian tried to do. It's called junk science."

Charles Heard's jury deliberated for nine days. It was an improbably long period for a relatively uncomplicated murder case. Earlier this year, a San Francisco jury returned not-guilty verdicts in a five-month double-murder trial after a little more than a day.

As deliberations stretched on, it became clear that jurors were struggling with the issue that had been at the heart of the case from the beginning — the identity of Barrett's killer. The jury eventually asked the judge for guidance on the "felony murder doctrine," under which defendants can be convicted of a murder they did not personally commit, so long as they were participating in the crime that led to the killing.

The meaning of this communication was clear to those versed in criminal law. Despite the testimony of multiple eyewitnesses and the biometric analysis provided by Bavarian and countered by Vorder Bruegge, the jury couldn't settle the question of whether Heard had been the shooter.

Ultimately, jurors decided he had not been. But they still convicted him of first-degree murder.

On the morning of July 1, the jury announced that it had found Heard guilty under the felony murder rule — though he could not be identified as the shooter, the jurors believed he had participated in the attempted robbery that resulted in Barrett's death — and guilty of attempted robbery. It hung on a third charge, for firearm possession.

When the verdict was announced, a cheer went up from Barrett's family members, who had packed the gallery. Outside the court, his relatives were effusive, crying as they voiced their joy at the case's outcome.

"I'm really happy. Justice was served for my family, my granddaughters," said Laura Barrett, the victim's mother. "For them to shoot him in the back like that — Charles Heard ain't nothin' but a coward."

Nobody expressed any doubt as to whether prosecutors had charged the right man. To the contrary: Barrett's relatives said the streets had been abuzz with rumors that Heard had been the killer.

Exactly one week after finding him guilty of first-degree murder, Heard's jury hung on allegations that he was a gang member. A separate deliberation for these charges took place; if convicted, he could have faced a stiffer minimum prison sentence.

Nevertheless, the case was a clear victory for the D.A.'s office. Even without the gang charges, Heard faces a sentence of 26 years to life.

"The jury convicted a person that is a very violent person, and the community is a lot safer because of their actions," Swart told SF Weekly.

Safire said he would appeal the guilty verdicts. He plans to argue that the case's outcome was flawed because the jury both rejected the prosecution's theory that Heard was the shooter and found him guilty of murder.

"The defense prevailed, and lost anyway," he said. "You can't find as a jury that he shot the guy and didn't shoot the guy."

In the end, did the biometric evidence matter? Did the jury turn to the felony murder doctrine because Bavarian's techniques planted a seed of doubt as to whether Heard was the hooded man in the grainy videotape?

One juror who spoke to SF Weekly following the verdicts said the opposite was true. The juror, who did not want his name published, said that based on his own scientific background — a computer programmer by profession, he also majored in mathematics in college — he didn't find Bavarian credible, and had given more weight to Vorder Bruegge's countertestimony.

"We had two experts," he said. "One was believable and one wasn't. ... It was really a reach for what [Bavarian] was trying to do."

Without speaking to the other jurors, it's impossible to know how the biometric analysis may have influenced them. But it seems possible that Heard's case has opened the door to a controversial form of scientific evidence that could prove more consequential in the future, whether used to set people free or put them away.

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