In a rare and controversial legal move, a Miami-Dade judge has curtailed fingerprint evidence in a criminal case — drawing alarm from prosecutors who vow to appeal.

Circuit Judge Milton Hirsch said in an order that he won’t allow a police fingerprint examiner to testify that he identified a conclusive “match” for a Miami man accused of two burglaries.

“We have become accustomed to, and accepting of, fingerprint testimony,” Hirsch wrote in a 17-page order issued. “Once upon a time, our forebears were accustomed to, and accepting of, the notion that the world was flat. That did not make it so.”     

U.S. courts have long allowed experts to testify to jurors that the accused person’s fingerprint is unique to only him or her.

Hirsch’s ruling does not bar prosecutors from introducing to a jury the visual fingerprint evidence against Radames Borrego, 41, who is accused of burglarizing a car and Miami Beach electronics store.

A prosecution expert can talk about “similarities” of Borrego’s fingerprint to matches found at the crime scenes. But Hirsch granted a defense request to bar the expert from saying that Borrego is “the one and only source of the print” or from using the words “match” or “identification.”

With a penchant for quoting Shakespeare in extensive orders, Hirsch has never been hesitant to wade into controversial legal waters.

Earlier this month, Hirsch from the bench criticized relatives of a murder victim after they publicly lashed out at him in a Spanish-language television interview.

“They showed gross disrespect for this court and the process,” Hirsch told prosecutors in allowing bond to a man accused of murder.

The State Attorney’s Office now is asking Hirsch to recuse himself from the case.

In September, the Third District Court of Appeals ruled that Hirsch “did not have jurisdiction” when he filled in for a fellow judge, then reversed that judge’s decision to keep a man accused of violating a restraining order behind bars.

And last year, when a Tampa federal judge ruled that Florida’s drug law was unconstitutional, Hirsch was the only local state judge to follow suit. He tossed out more than two dozen cases but Miami’s appeals court later reversed Hirsch’s decision.

Not all of Hirsch’s high-profile rulings have been for the defense.

Last year, he refused to grant self-defense immunity to a Florida International University student who fatally stabbed a football player during an on-campus brawl. Hirsch this month recused himself from the case after the defendant wrote a letter critical of him to the circuit’s criminal administrative judge.

Hirsch, the former president of the Florida Association of Criminal Defense Lawyers and a law school professor, is well-known in South Florida’s criminal justice community. He authored a book on Florida criminal trial procedure.

In 2004, he also wrote a novel:  The Shadow of Justice, which chronicles the adventures of a fictional Miami judge named Clark Addison. Hirsch was elected to the circuit bench, unopposed, in May 2010.

In his order on the Borrego case, Hirsch analyzes the origin of fingerprint science, from Shakespeare’s  The Second Part of King Henry to Mark Twain’s  Life on the Mississippi to the British pioneering of fingerprint evidence in 19th-century colonial India.

In his order, he says that “no one can articulate a principle of anatomy, biology, physiology, pursuant to which two persons  cannot have the same fingerprint.”

Attorney Tamara Lave, a University of Miami professor of criminal procedure, said that she believes Hirsch is right. The reason: experts such as those at the National Academy of Sciences — which authored a 2009 study on forensic evidence — say language describing an “absolute” fingerprint match is “unjustified.”

“What is unique is the joy in which he wrote his opinion. Most judges don’t go through the trouble of quoting Shakespeare and great works of American Literature,” Lave said.

But Hirsch’s reasoning flies in the face of decades of accepted science, said former Miami-Dade senior prosecutor Abe Laeser, who said the judge’s order “will surely find its demise with the first higher court that touches it.”

“What is unfair about fingerprint evidence? Pointing to a group of smudged loops and whorls has no meaning unless a jury can be told by the expert that these two prints were both made by the defendant,” Laeser said.

“Then they can be cross examined until dawn, about an error rate or any other premise. The defense can call a conflicting expert. Then the jury decides if it is proven beyond a reasonable doubt.”

The Miami-Dade State Attorney’s Office bristled because Hirsch issued his order Thursday before prosecutors could write their reply to Borrego’s defense request to restrict the testimony of the fingerprint expert.

The judge also refused to recuse himself from the case, even though prosecutors said he initially told them that he would step down because of his “pre-conceived opinions on the subject of fingerprints,” according to court documents.

Hirsch is not the first modern judge to question the testimony of fingerprint experts.

A decade ago, U.S. Judge Louis H. Pollak of Philadelphia barred FBI experts from testifying that three murder defendants’ prints were “to the exclusion of all other fingers in the world.” At the time, prosecutors said the ruling could undermine criminal cases across the country.

But after more hearings, Pollak reversed his own ruling.

“The admissibility of expert testimony on fingerprint identification is interesting as an academic issue,” said former U.S. Attorney David Resnicoff, who worked on the case. “But as a legal and a practical matter, it is rather straightforward. American and English courts have admitted fingerprint identification testimony for 100 years.”   

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Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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