Latest / Wrongful Conviction / #402 Wrongful Conviction: Junk Science - Tool Mark Analysis

Transcript

#402 Wrongful Conviction: Junk Science - Tool Mark Analysis · Wrongful Conviction

0:01
Speaker 1: Hey folks, Kate Judson here. I'm a lawyer and the
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Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
0:09
Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty, but these stories are
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Speaker 1: just as relevant as ever. This episode is about tool
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Speaker 1: mark evidence, which includes the long used practice of matching
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Speaker 1: ammunition to specific firearms. For decades, ammunition matching has been
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Speaker 1: seen as a highly reliable way to link a suspect
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Speaker 1: to a crime scene, but the actual reliability of this
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Speaker 1: type of evidence is increasingly being questioned. Just recently, in
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Speaker 1: June of twenty twenty three, the Supreme Court of Maryland
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Speaker 1: ruled that ballistics matching may only be represented in court
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Speaker 1: by experts as consistent or inconsistent with the gun in question.
1:00
Speaker 1: Like other courts in the past few years, they see
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Speaker 1: an issue with this type of evidence, something we'll explore
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Speaker 1: in more detail later in the episode. This ruling could
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Speaker 1: have huge consequences for wrongful conviction actions in Maryland and beyond.
1:15
Speaker 1: While it doesn't automatically reopen cases, lawyers and wrongfully convicted
1:19
Speaker 1: people can use it to petition courts for relief.
1:28
Speaker 2: It's Valentine's Day, nineteen ninety one. You don't usually observe
1:33
Speaker 2: the greeting card holidays. You think they're kind of silly,
1:37
Speaker 2: and besides, most of the time, you and your partner
1:40
Speaker 2: are both busy working. You're always buried in your client's cases,
1:45
Speaker 2: and your partner is often on call, running back and
1:48
Speaker 2: forth to the hospital to treat patients. Your friends are
1:51
Speaker 2: always remarking that you're the classic power couple, but sometimes
1:55
Speaker 2: it seems like it's all power and not so much couple.
2:00
Speaker 2: So this year, you make dinner, put out a tablecloth,
2:04
Speaker 2: and even light a candle. At the end of dinner,
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Speaker 2: you do the dishes and your partner takes out the trash.
2:11
Speaker 2: The TV is on low in the background, but something
2:14
Speaker 2: makes your ears perk up. You glance over and see
2:18
Speaker 2: the newswoman reporting from a parking lot not too far
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Speaker 2: away from your house. She says, an explosion went off
2:26
Speaker 2: not long ago. A man was hit in his leg
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Speaker 2: by shrapnel that exploded off a pipe bomb. It detonated
2:33
Speaker 2: thirty yards away from where the man was walking. Listening
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Speaker 2: to this, you slowly shake your head. It's not uncommon
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Speaker 2: in Grand Junction, Colorado, for people to mess around with explosives.
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Speaker 2: After all, it's a mining down and people know how
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Speaker 2: to use dynamite. The reporter says, the man that was
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Speaker 2: hit will probably be Okay, you hope this is just
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Speaker 2: some kids joke gone wrong. But then a few weeks
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Speaker 2: later there's another news report. A twelve year old girl
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Speaker 2: named Maria gets into a van with her parents to
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Speaker 2: go shopping, and as the family sets out for the mall,
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Speaker 2: a bomb hidden near one of the rear tires explodes.
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Speaker 2: Shrapnel is flung through the back of the van's seat
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Speaker 2: and into Maria's body. It wedges into her heart. Her
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Speaker 2: parents frantically pull her out of the car, but she
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Speaker 2: dies right there. Three months after that, husband and wife
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Speaker 2: Henry and Suzanne, finish dinner at a local restaurant. They
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Speaker 2: drive by a strange looking object. Henry slows the car
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Speaker 2: down and reaches out to see what it is. His
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Speaker 2: arms are blown off his body and he dies instantly.
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Speaker 2: After that third bomb goes off, everyone in Grand Junction
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Speaker 2: is extremely anxious. You check under your car every single
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Speaker 2: time before you get in, and you continue to follow
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Speaker 2: the news coverage as it unfolds. The police department declares
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Speaker 2: that out of thirty initial suspects for the bombs. They've
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Speaker 2: narrowed it down to just one person. They don't renounce
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Speaker 2: who it is, but a camera crew must have gotten
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Speaker 2: tipped off because they start following around a young man
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Speaker 2: with big glasses. Then you get a phone call from
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Speaker 2: a man who identifies himself as Jimmy. He tells you
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Speaker 2: he is the suspect in these bombing cases. His words
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Speaker 2: come quickly and in fragments of sentences, he sounds scared.
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Speaker 2: He says he hasn't done anything wrong, and he hasn't
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Speaker 2: been arrested yet, but with cameras following him, he thinks
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Speaker 2: it's a good idea to get an attorney. He asks,
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Speaker 2: will you help me. You take all of this in
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Speaker 2: and think to I really want to be involved defending
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Speaker 2: someone who might have done something so horrific. But then again,
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Speaker 2: what if he's actually innocent. Everyone deserves an opportunity to
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Speaker 2: defend themselves. Ultimately, you agree to take on his case.
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Speaker 2: Soon after you become Jimmy's attorney, he gets a knock
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Speaker 2: at his door. The police enter his house with a warrant.
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Speaker 2: They turn his place inside out, Detectives vacuum the couch
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Speaker 2: and carpet to see if they can pick up any gunpowder.
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Speaker 2: Nothing all they found or some everyday tools, some pliers,
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Speaker 2: wire strippers. The tools that are taken from Jimmy's house
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Speaker 2: are brought down to the police station and tested in
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Speaker 2: the forensics lab. When the results come back, police arrests
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Speaker 2: Jimmy and he gets charged with murder. Of all the
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Speaker 2: people to pin this on, you do understand why they're
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Speaker 2: targeting Jimmy. He's somewhat of a loaner, definitely an oddball.
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Speaker 2: He often goes on late night walks by himself. He
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Speaker 2: can be found sitting alone at bars and getting pretty drunk.
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Speaker 2: Prior to the trial, the prosecution discloses the evidence they
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Speaker 2: intend to use against Jimmy to prove their case, and
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Speaker 2: it looks pretty bad. You spend countless days pouring over
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Speaker 2: the main piece of evidence, the conclusion of a tool
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Speaker 2: mark examiner. The report of this examiner says that the
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Speaker 2: impressions taken from the tools they found in Jimmy's apartment
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Speaker 2: can be scientifically linked to the tool marks left on
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Speaker 2: all three of the bombs. In all your years as
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Speaker 2: a criminal defense attorney, you've never heard of this type
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Speaker 2: of forensic analysis. You didn't even know it existed, But
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Speaker 2: you studied science and undergrad before you decided to become
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Speaker 2: a lawyer, so you know how to analyze these scientific documents.
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Speaker 2: You dig up everything you can find on tools, evidence, data, statistics, studies, experiments.
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Speaker 2: You find nothing. How are you supposed to defend against this?
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Speaker 2: If someone has a standard set of needlenos pliers, aren't
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Speaker 2: they likely to match up with the impressions made by
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Speaker 2: other needlenose pliers. At trial, the jury is shown a
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Speaker 2: video by the prosecution. A tool mark expert walks the
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Speaker 2: jurors through it. He tells them each tool has unique
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Speaker 2: microscopic characteristics. You can see how the tools we found
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Speaker 2: in the defendant's home aligned perfectly with marks found on
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Speaker 2: fragments of the exploded bombs. The jury is mesmerized by
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Speaker 2: the videotape shown by the tool mark examiner after closing arguments,
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Speaker 2: when they begin their deliberations, the first note they send
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Speaker 2: out is a request to see that video. They view
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Speaker 2: it over and over and over again, and then the
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Speaker 2: bailiff informs you that the jury is done deliberating. Jimmy
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Speaker 2: is brought back into the courtroom from a holding cell.
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Speaker 2: You see the trepidation in his face as he takes
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Speaker 2: a seat, and you can actually hear him take a big,
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Speaker 2: nervous swallow. The jury files into the courtroom, and a
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Speaker 2: vein on your temple begins to pulsate in twitch. Jimmy
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Speaker 2: is convicted of multiple counts of murder. He is sentenced
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Speaker 2: to life in prison. The story you just heard is
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Speaker 2: based on the true events of the bombings in Grand Junction, Colorado,
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Speaker 2: in nineteen ninety one and the subsequent trial of Jimmy Genrich.
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Speaker 2: Jimmy has been in prison for more than twenty five years,
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Speaker 2: serving a life sentence. His latest appeal has been taken
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Speaker 2: up by the Innocence Project. I'm Josh Dubin, civil rights
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Speaker 2: and criminal defense attorney, an Innocent Ambassador Innocence Project in
9:01
Speaker 2: New York. Today, on wrongful Conviction junk Science, we examined
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Speaker 2: tool mark analysis. It turns out the crime that popularized
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Speaker 2: tourl maark analysis was also committed on Valentine's Day over
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Speaker 2: ninety years ago.
9:22
Speaker 3: When three dozen former Brooklyn Navy yard workers found themselves
9:26
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9:29
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9:59
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10:03
Speaker 3: miscarriage of justice anywhere, and therefore they feel a sense
10:06
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10:14
Speaker 3: E I t Z lux dot com.
10:25
Speaker 2: You've all heard of the legendary mobster Al Capone. During
10:30
Speaker 2: the Roaring twenties, he was the leader of the Chicago Mafia.
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Speaker 2: Anything corrupt or illegal. He controlled it, from bootlegging to speakeasies,
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Speaker 2: gambling to prostitution. Capone owned it all. But there was
10:45
Speaker 2: one rival gang that Capone couldn't quite shake. The irishmafia
10:50
Speaker 2: led by George bugs Moran. They were manufacturing and selling alcohol,
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Speaker 2: stepping on Capone's business. Now Capone he wasn't gonna have it.
11:01
Speaker 2: He got hold of some police uniforms and on February fourteenth,
11:05
Speaker 2: Valentine's Day, nineteen twenty nine, four of Capone's men, dressed
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Speaker 2: as police officers, went over to the garage where bugs
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Speaker 2: Moran's gang was producing and selling alcohol. Capone's crew took
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Speaker 2: the Irish mob by surprise. They started screaming with their
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Speaker 2: guns drawn, line up against the wall, hands where I
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Speaker 2: can see him. You're all under arrest. All seven of
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Speaker 2: the Irish gangsters lined up against the wall, hands on
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Speaker 2: their heads, while Capone's crew shot them all dead in
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Speaker 2: broad daylight. By the time the real police arrived, Capone's
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Speaker 2: gang was long gone. The cops had more than a
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Speaker 2: hunch about who was responsible for this, but they needed
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Speaker 2: the hard evidence to prove it, so they raided the
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Speaker 2: home of one of Capone's top guys, who went by
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Speaker 2: the name of Frank Killer Burke. They took his gun
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Speaker 2: and sent it off to what was one of the
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Speaker 2: first crime labs in the country. There, an examiner named
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Speaker 2: Calvin Goddard shot some test bullets out of the confiscated gun.
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Speaker 2: He put one of the test bullets and one of
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Speaker 2: the bullets found at the massacre under a special microscope
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Speaker 2: that allowed him to compare two images at once. This
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Speaker 2: examiner actually invented this technique of comparing bullets. He claimed
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Speaker 2: that no two revolvers leave the same mark, and that
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Speaker 2: by examining the grooves on the bullets, he claimed he
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Speaker 2: could identify the gun that shot them. According to Goddard,
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Speaker 2: the bullets of the confiscated gun indeed matched the bullets
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Speaker 2: found at the scene of the crime, but the police
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Speaker 2: couldn't do much with that evidence. They couldn't prove that
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Speaker 2: the owner of the gun, Frank Killer Burke, had been
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Speaker 2: at the scene of the crime, and so no one
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Speaker 2: was ever charged for what became known as the Valentine's
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Speaker 2: Day massacre. The analysis the invented is now known as
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Speaker 2: tool mark and firearm analysis. Forensic analysts that follow in
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Speaker 2: his footsteps believe that just as each gun leaves a
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Speaker 2: unique mark on every bullet that it shoots, each tool
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Speaker 2: leaves unique mark on the surface it's used on. But
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Speaker 2: no one had closely examined the false assumptions behind tool
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Speaker 2: mark identification. What was being presented to jury's was this
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Speaker 2: notion that a tool will leave a unique mark on
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Speaker 2: a surface. But it turns out that's not necessarily the case.
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Speaker 2: If two people own a similar wrench, for instance, both
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Speaker 2: wrenches will leave behind a similar mark, So matching a
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Speaker 2: mark to a tool owned by a suspect has very
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Speaker 2: limited value. Nevertheless, these experts were claiming that a tool
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Speaker 2: found at the home of a suspect was the precise
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Speaker 2: tool that was used, for example, to cut wires during
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Speaker 2: the construction of a bomb. This kind of flawed evidence
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Speaker 2: continued to be presented in courtrooms across the country to
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Speaker 2: link suspects to crimes, leading to several wrongful convictions, including
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Speaker 2: that of Jimmy Genrich in nineteen ninety two.
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Speaker 4: It was just so obvious to me that this was
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Speaker 4: not you know, this was not a foundationally strong field,
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Speaker 4: and I was absolutely stunned because the consequences of this
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Speaker 4: stuff can't be higher. You know, people go to prison
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Speaker 4: for years, they're sentenced to death. I mean, essentially, for
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Speaker 4: this to be totally unproven science, I just absolutely could
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Speaker 4: not believe it.
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Speaker 2: Today we're talking to Tim Riquarth. Tim's a freelance journalists
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Speaker 2: who often writes about the intersection between science and criminal justice.
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Speaker 2: He's also a lecturer in science and writing at NYU.
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Speaker 2: We're particularly excited to talk to him today because he
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Speaker 2: wrote about Jimmy Genrich's case for an article published by
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Speaker 2: The Nation. He and his co author extensively researched the case,
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Speaker 2: along with the tool mark evidence that was used to
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Speaker 2: convict Jimmy. Now, a lot of this episode is based
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Speaker 2: on this article that Tim wrote, So after listening to
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Speaker 2: this episode, if you want to learn more about tool
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Speaker 2: mark evidence in Jimmy's case, you can find the article
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Speaker 2: on our show notes. So, Tim, tell us about your background.
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Speaker 2: How did you get into writing about science?
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Speaker 4: So, for undergraduate, I studied literature and writing, and it
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Speaker 4: wasn't until after I'd graduated. I happened to be living
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Speaker 4: across the street from a medical school in Chicago, and
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Speaker 4: at the same time, my father was suffering from dementia,
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Speaker 4: and the books and articles that I was reading on
15:44
Speaker 4: dementia didn't quite satisfy me, and so I decided to
15:48
Speaker 4: volunteer in a lab that studied dementia. And it was
15:51
Speaker 4: at that point that I was first introduced to research,
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Speaker 4: and I was hooked. So I went back to school,
15:56
Speaker 4: took all of the basic science classes that I hadn't
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Speaker 4: taken undergrad and eventually enrolled in a masters, And you know,
16:03
Speaker 4: ten years later I found myself in probably with a
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Speaker 4: PhD in neuroscience. The sort of breadth of questions and
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Speaker 4: material that you could really dive into as a journalist
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Speaker 4: or a writer just felt so much more expansive than
16:19
Speaker 4: what I could do as a scientist. And so I
16:22
Speaker 4: sort of had the realization later on in my PhD
16:24
Speaker 4: that research heavy, investigative type of pieces were a really
16:28
Speaker 4: good fit for somebody who's trained in answering big questions.
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Speaker 2: So before writing this story about tool mark evidence, what
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Speaker 2: did you know about any forensic science?
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Speaker 4: Before that the first story I did about forensic science,
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Speaker 4: I didn't know a lot about it at the time. Then,
16:48
Speaker 4: you know, anybody might from watching Law and Order or CSI.
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Speaker 4: We profiled the specific case and it involved to a
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Speaker 4: mark evidence, and we looked at all of the research
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Speaker 4: in the forensic journal. I mean, we went through and
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Speaker 4: found every single study and most of them were very
17:08
Speaker 4: small sample sizes, very theoretical, or had all kinds of
17:12
Speaker 4: methodological design problems, and I was absolutely stunned because this
17:17
Speaker 4: is like a solved problem. Like we know how to
17:19
Speaker 4: do strong empirical scientific studies to see if something works
17:24
Speaker 4: or not. Like take a medical study, which if you
17:26
Speaker 4: want to see if a drug has an effect, you
17:29
Speaker 4: randomly select two groups of people and you assign one
17:34
Speaker 4: of them to get the drug and another one to
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Speaker 4: get a placebo which has no effect. You blind both
17:40
Speaker 4: the people so they don't know that they're getting the drug,
17:43
Speaker 4: and you also blind the researchers so they don't know
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Speaker 4: who is getting the drug. You decide ahead of time
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Speaker 4: what analysis you're going to do, what outcomes you're going
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Speaker 4: to look for, and then you test those using rigorous
17:56
Speaker 4: hypothesis testing and statistics to see what happens. And in
17:59
Speaker 4: forensics sciences that just it doesn't exist. The practitioners doing
18:05
Speaker 4: them are often not blinded, the sample sizes are very low,
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Speaker 4: there's conflicts of interest, so it's not following some of
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Speaker 4: the most basic tenets that you know would be reflexive
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Speaker 4: to your you know, typical scientist in a university.
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Speaker 2: I mean most people, especially lay people on a jury,
18:26
Speaker 2: hear the words forensic science, and you know, they imagine
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Speaker 2: this very pristine process in which things are tested and retested,
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Speaker 2: because you know, we all think of the scientific method
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Speaker 2: that we learn about in school, and it's kind of
18:42
Speaker 2: startling to know that that's not actually the case. So
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Speaker 2: what you said really underscores what we've been saying throughout
18:49
Speaker 2: this show and how big of a problem it can
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Speaker 2: be when jurors confuse what's really junk science presented in
18:57
Speaker 2: courtrooms with trig additional science that's used to develop medicines.
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Speaker 2: For example. And I'm not sure that our listeners are
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Speaker 2: aware of this, but I want you to think about
19:09
Speaker 2: this for a moment. In cases where people were later
19:13
Speaker 2: proven to be innocent based on DNA, forty five percent
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Speaker 2: of those wrongful convictions are based on some misapplication of
19:23
Speaker 2: forensic science.
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Speaker 4: Imagine if this were the FDA, right Imagine if a
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Speaker 4: drug didn't work fifty percent of the time and had
19:30
Speaker 4: horrible side effects, they wouldn't just say, well, you know,
19:33
Speaker 4: we already approved it, so let's just leave it on
19:35
Speaker 4: the market. That's not how it works in medicine, but
19:38
Speaker 4: that is how it works in the law.
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Speaker 2: So let's get into Jimmy's case. I want you to
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Speaker 2: tell us about the crime that led to his arrest
19:46
Speaker 2: and the town that had happened, and why did they
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Speaker 2: even decide to zero in on Jimmy in the first place.
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Speaker 4: Grand Junction is a sort of mining town of about
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Speaker 4: thirty thousand people at the time, and there is a
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Speaker 4: series of pipe bombs that went off in the town.
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Speaker 4: There were three of them, and one of them killed
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Speaker 4: a twelve year old girl. It was it was very tragic,
20:08
Speaker 4: and they had they were seemingly random, and they had
20:11
Speaker 4: no suspect, and so the Bureau of Alcohol, Tobacco and
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Speaker 4: Firearms was called in and they helped the local police
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Speaker 4: force do a bomb investigation to try to figure out
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Speaker 4: who this was. They had a list of, you know,
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Speaker 4: something like thirty suspects. There was this guy, Jimmy, who
20:28
Speaker 4: was sort of a loner. Lived in a boarding house
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Speaker 4: near downtown in a twelve by twelve room. I think
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Speaker 4: he was a busboy in a restaurant, but was on
20:38
Speaker 4: and off of jobs. His mother would bring him, you know,
20:42
Speaker 4: meals in a cooler, and he was a little bit
20:47
Speaker 4: you know, he had some problems with mental illness. There
20:51
Speaker 4: was one event in particular that put him on the
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Speaker 4: police's radar, which was he walked into a bookstore one
20:56
Speaker 4: day and asked them to order a copy of the
20:58
Speaker 4: Anarchist Cookbook, which contains a diagram of a pipe bomb,
21:03
Speaker 4: and the bookstore owners had called the police, and once
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Speaker 4: they sort of pieced all of this together, that put
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Speaker 4: him at the top of the suspect list. They then
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Speaker 4: rated his sporting room and found some electronic parts, some
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Speaker 4: wire strippers and pliers that could conceivably have been used
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Speaker 4: to construct a bomb, and at that point they worked
21:28
Speaker 4: to link him to the bomb. They didn't find any
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Speaker 4: other physical evidence, never found the Anarchist Cookbook. They painted
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Speaker 4: a picture of him as the kind of person who
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Speaker 4: would do this, But you have to have physical evidence
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Speaker 4: that links people to crimes in very the objective ways,
21:46
Speaker 4: and they didn't have that in this case, other than
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Speaker 4: the tool mark analysis, which both the prosecutor and the
21:51
Speaker 4: judge acknowledged in the trial transcript. They both acknowledged that
21:54
Speaker 4: the entire case hinged on the tool mark analysis, and
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Speaker 4: if it were thrown out, there would be no case.
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Speaker 2: So how did they claim to identify Jimmy's tools as
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Speaker 2: the tools that were used on these bombs?
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Speaker 4: They look at these microscopic scratches or striations on the
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Speaker 4: bomb parts, and then they look at the suspects tools
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Speaker 4: and they make a mark on some other piece of
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Speaker 4: metal using a microscope. They compare the marks on the metal,
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Speaker 4: like their test marks, to the marks on the actual evidence,
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Speaker 4: and if those line up in the examiner's you know,
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Speaker 4: subjective judgment, they declare to match, and they say that
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Speaker 4: this was you know, the only tools that could have
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Speaker 4: made these marks, and therefore the owner of these tools
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Speaker 4: must have been the person who built the bombs. You know,
22:52
Speaker 4: they use the word certainty, and that's very compelling to jurors,
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Speaker 4: but the truth is they don't know how certain it is.
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Speaker 4: These aren't exotic bomb making tools. They're three dollars pair
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Speaker 4: of pliers that you know, were sold at the local
23:06
Speaker 4: hardware store. Perhaps so you could imagine that, you know,
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Speaker 4: a tool mark. Examiner could say something like, oh, it
23:13
Speaker 4: was a really large pair of pliers versus a small one,
23:16
Speaker 4: or you know, it's consistent or something like that, but
23:18
Speaker 4: they don't say that they individualize it. They say that
23:21
Speaker 4: this is an exact match. And this isn't really a
23:24
Speaker 4: possible conclusion to come to because you'd either have to
23:28
Speaker 4: a test every other tool in the world and see
23:32
Speaker 4: if this indeed was a unique mark that was being made,
23:36
Speaker 4: or you would have to know the kinds of variations
23:39
Speaker 4: that we see in tools, Like how common is it
23:43
Speaker 4: that two tools can look about the same but aren't
23:47
Speaker 4: the same? Is it you know, two tools that are
23:49
Speaker 4: made by the same brand. Is it two tools that
23:51
Speaker 4: come off the same you know, lot in a factory.
23:55
Speaker 4: So there's all of these things that you'd need to quantify,
23:58
Speaker 4: And even if you did do that, you'd have to say,
24:01
Speaker 4: you know, there's a one in one hundred chants that
24:04
Speaker 4: this is a different tool. There's a one in two
24:06
Speaker 4: hundred chance, right, something like that.
24:08
Speaker 2: Right, So you're saying that one issue is how many
24:12
Speaker 2: tools can be said to match a mark left behind?
24:15
Speaker 2: And we really don't know the answer to that. But
24:17
Speaker 2: I guess another issue is the examiners doing the matching.
24:21
Speaker 2: And the fact of the matter is that these examiners
24:25
Speaker 2: never really have to prove whether or not they can
24:27
Speaker 2: effectively match a tool to its mark. And there are
24:31
Speaker 2: possible ways to test this, right, I mean, if a
24:34
Speaker 2: lab wants to test how good someone is at this
24:36
Speaker 2: kind of tool matching, they would send a tool mark
24:39
Speaker 2: examiner some tools along with some wires or pieces of
24:44
Speaker 2: metal with tool marks on them, and the examiners would
24:48
Speaker 2: then be asked to match the correct tool to the marks,
24:51
Speaker 2: and the lab would have all of the correct answers,
24:55
Speaker 2: so they'd be able to tell how good these examiners
24:58
Speaker 2: actually are. That kind of testing, which would show how
25:02
Speaker 2: good these tool mark examiners are at their job, seems
25:07
Speaker 2: like a simple thing to do.
25:08
Speaker 4: Right, right, The real test is how well do you
25:12
Speaker 4: examiners actually do in reality? And you would say, you know,
25:16
Speaker 4: tool mark examiners make a mistake one out of ten times,
25:19
Speaker 4: one out of one hundred times, one out of a
25:21
Speaker 4: thousand times. That's what you really want to know is
25:24
Speaker 4: how often do they make a mistake?
25:26
Speaker 2: So why don't they actually do these tests?
25:29
Speaker 4: If that comes back and it's really, really, it's not
25:33
Speaker 4: so good, Right, you make an error fifty percent of
25:35
Speaker 4: the time or twenty five percent of the time, you're
25:38
Speaker 4: out of a job. You know, what are these examiners
25:41
Speaker 4: going to do if this becomes a technique that is
25:45
Speaker 4: no longer a valid technique in court? And you know,
25:49
Speaker 4: I think that it's easy to have this narrative that
25:52
Speaker 4: you know, these are unscrupulous scientists who are manipulating data
25:57
Speaker 4: in a bloodthirsty way to get conviction. And I think
26:01
Speaker 4: that's a very cartoonish way to think about it. There
26:04
Speaker 4: are certainly cases of misconduct, and there are cases of
26:08
Speaker 4: bad motives, but in reality, these are people who really
26:11
Speaker 4: believed that what they were doing is true.
26:15
Speaker 2: And you actually talked to the tool mark examiner in
26:18
Speaker 2: Jimmy's case while you were researching your article. So what
26:23
Speaker 2: impressions did you have after talking to someone that actually
26:27
Speaker 2: specializes in this stuff.
26:30
Speaker 4: I guess the thing that struck me the most as
26:31
Speaker 4: a scientist is that there was an extreme lack of humility.
26:35
Speaker 4: There is an extreme lack of acknowledging that these could
26:39
Speaker 4: not be as infallible as they thought. They have a
26:44
Speaker 4: very strong interest in proving that these techniques are very powerful.
26:49
Speaker 4: There's a very strong sense of justice. There's a very
26:51
Speaker 4: strong sense of righteousness. The posture of the forensic scientists
26:56
Speaker 4: and prosecutors they spoke to is it was a bit
26:59
Speaker 4: defense of right. The venue for these is a court
27:02
Speaker 4: of law, which is an adversarial system, and to admit
27:05
Speaker 4: any kind of fallibility or weakness is to weaken the case,
27:09
Speaker 4: and that's it's just so against the culture to do that.
27:14
Speaker 2: So in Jimmy's case, how does it all work? How
27:16
Speaker 2: did the examiner present this tool mark evidence to the jury,
27:20
Speaker 2: and how do you think they were able to convince
27:23
Speaker 2: the jury that the results were correct? You know that
27:27
Speaker 2: Jimmy's tools match the marks on those bombs.
27:30
Speaker 4: The presentation of the tool mark evidence was a video presentation,
27:35
Speaker 4: and I believe it was the defense attorney that said
27:38
Speaker 4: she thought it was one of the first in the nation. Again,
27:41
Speaker 4: this was in the early nineties, so this was the
27:44
Speaker 4: first sort of video presentation of this kind of evidence.
27:46
Speaker 4: Because the way that they do this again is looking
27:48
Speaker 4: under a microscope and they line up these little microscopic
27:53
Speaker 4: markings from the evidence with their little test cuts. You know,
27:56
Speaker 4: it looks very convincing. You pick a little part where
27:59
Speaker 4: they do line up and you're like, Aha, that must
28:02
Speaker 4: be it, and then you ignore all the parts where
28:03
Speaker 4: they don't line up, you know, which is you know,
28:05
Speaker 4: part of the problem. During deliberations, the jury asked to
28:08
Speaker 4: watch that video, you know, I think dozens of times.
28:11
Speaker 4: So it was it was a very convincing presentation.
28:14
Speaker 2: So in addition to tool mark examiners, you also talk
28:18
Speaker 2: to some of the prosecutors who use this type of
28:21
Speaker 2: analysis in their cases. What were their thoughts about using
28:25
Speaker 2: this kind of evidence.
28:27
Speaker 4: The same cognitive dissonance that would exist for forensic examiners
28:31
Speaker 4: also exist for prosecutors. It's a lot to face that
28:34
Speaker 4: these tools that you've relied on for so many cases
28:37
Speaker 4: may not be as accurate as you thought they are,
28:40
Speaker 4: meaning some of the people that you convicted were maybe
28:43
Speaker 4: not guilty, and that you shouldn't use them moving forward.
28:47
Speaker 4: It's a really hard it's a really hard pill to swallow.
28:51
Speaker 4: I think one of the things that I was most
28:53
Speaker 4: stunned by when we were interviewing prosecutors was the way
28:57
Speaker 4: in which they would rely on legal rulings as a
29:01
Speaker 4: substitute for scientific evidence. So what I mean by that
29:05
Speaker 4: is we would say, you know, look, we've looked at
29:08
Speaker 4: all of the evidence and they have not validated this
29:11
Speaker 4: in a scientifically rigorous way, And the prosecutors retort to
29:16
Speaker 4: that would be, well, yes, but we've used them, and
29:19
Speaker 4: we've convicted guilty people, and it's gotten lots of lots
29:22
Speaker 4: of legal rulings in our favor. And so therefore it
29:25
Speaker 4: must be true. And so it's a very circular kind
29:28
Speaker 4: of reasoning. It's almost like an invasive species. You have
29:31
Speaker 4: this thing that's made its way into the courtroom, and
29:33
Speaker 4: it gets locked in there by precedents, and it's really
29:37
Speaker 4: really hard to get it out. And so that's the
29:40
Speaker 4: reason that this stuff stays in courts. You know, science evolves.
29:43
Speaker 4: Even if you thought something was true thirty years ago
29:46
Speaker 4: and you decide it's not true today, you update, you know,
29:49
Speaker 4: you revise, and the courts just don't want to do that.
29:52
Speaker 4: They want to keep things the same.
29:54
Speaker 2: You know, we often ask our guests to tell our
29:57
Speaker 2: listeners what they can do to make sure this type
30:01
Speaker 2: of evidence stops being presented to juries in our criminal
30:05
Speaker 2: justice system. So what would you tell people a juror,
30:10
Speaker 2: for instance, who has to make a decision about someone's
30:13
Speaker 2: guilt or innocence when they are presented with forensic evidence.
30:17
Speaker 4: If I had any advice to adjur you know, it's
30:20
Speaker 4: to realize that there have been major reports by scientific
30:25
Speaker 4: bodies that have found deep, deep problems with these techniques.
30:32
Speaker 4: As convincing as it sounds, they're only telling you a
30:36
Speaker 4: partial picture. And yet the courts have been unable to
30:42
Speaker 4: bar them from being used. If you have a justice
30:45
Speaker 4: system where that ends justifies the means, right, it's not
30:50
Speaker 4: going to function fairly. And so we should all be
30:53
Speaker 4: concerned when somebody is convicted by dubious means, because even
30:58
Speaker 4: if that person was guilty, somebody else isn't going to
31:02
Speaker 4: be and they're going to get convicted by those dubious
31:05
Speaker 4: methods as well. You know, it's easy to be pessimistic
31:09
Speaker 4: and almost fatalistic about the state of forensics in the courtroom,
31:12
Speaker 4: but there are some bright spots. You know, there are
31:14
Speaker 4: some rulings that seem really enlightened on the part of
31:18
Speaker 4: the judges who are acknowledging that maybe these things do
31:21
Speaker 4: need to be revisited.
31:23
Speaker 2: And this is even true in regard to Jimmy's case.
31:26
Speaker 2: The Innocence Project has picked up as appeal and are
31:29
Speaker 2: trying to set a new kind of precedent.
31:32
Speaker 4: They are going to have an evidentiary hearing, which means
31:35
Speaker 4: that they'll have some reevaluation of the quality of the
31:40
Speaker 4: tool mark evidence. So in that sense, you know, it's
31:43
Speaker 4: from a legal sense, it's it's progress. Whether you know
31:46
Speaker 4: this will pan out for Jimmy, is you know that's
31:50
Speaker 4: still up in the air at this point.
31:53
Speaker 2: So we often make a plea at the end of
31:56
Speaker 2: every episode. Please write your local judges question the so
32:00
Speaker 2: called science. Don't try to get out of jury service,
32:04
Speaker 2: but rather serve as a conscientist, etc. And so on. Today,
32:09
Speaker 2: I'm going to ask you to do something different, so
32:12
Speaker 2: I'd like you to consider this. In the seventeen sixties,
32:16
Speaker 2: an English judge named William Blackstone wrote an article entitled
32:20
Speaker 2: Commentaries on the Laws of England. In it, he wrote
32:24
Speaker 2: something extraordinary. It is better that ten guilty persons escape
32:30
Speaker 2: than that one innocent suffer. This profound expression of humanity,
32:36
Speaker 2: of the recognition that the sacrificing of one innocent person
32:40
Speaker 2: should not be the cost of administering justice in any
32:43
Speaker 2: civilized society, is at least to me, the personification of empathy.
32:50
Speaker 2: This concept became known as Blackstone's ratio, and it's made
32:54
Speaker 2: its way into the criminal justice system of virtually every
32:57
Speaker 2: Western society. William Blackstone somehow realize that because accusing, convicting,
33:04
Speaker 2: and condemning an innocent person to prison for a crime
33:08
Speaker 2: they did not commit is the height of human suffering,
33:12
Speaker 2: the most unimaginable nightmare that no man or woman should
33:16
Speaker 2: have to bear. You've heard stories on this podcast about
33:21
Speaker 2: terrible crimes and the junk signs that was used to
33:24
Speaker 2: convict innocent men and women, and we mention their names
33:29
Speaker 2: like Sante Tribble and Keith Allen Harwood and Jimmy Ginrich
33:33
Speaker 2: and many others, But I think their suffering gets lost
33:37
Speaker 2: in the shuffle. Wrongful convictions often get discussed in pop culture.
33:43
Speaker 2: They certainly have a light shined on them, but we
33:47
Speaker 2: often hear about them when the person that was wrongfully
33:49
Speaker 2: convicted is getting out, when their nightmare is coming to
33:53
Speaker 2: an end. We don't talk much about what they have
33:57
Speaker 2: to endure in prison, everything from physical and sexual assaults,
34:03
Speaker 2: the constant fear of losing their life, the unthinkable living conditions,
34:08
Speaker 2: the isolation from family, friends, alienation from the world, advances
34:14
Speaker 2: in technology, and even after they're exonerated, the pain never
34:19
Speaker 2: really goes away. I once wrote an article about an
34:23
Speaker 2: exonery named Walter Swift in Detroit, and I tried to
34:28
Speaker 2: capture in it some of that suffering, and I really
34:31
Speaker 2: don't think I can top it, so I'll just read
34:33
Speaker 2: to you what I wrote. The sad reality is that
34:38
Speaker 2: Walter has struggled terribly since his exoneration. He, as many
34:43
Speaker 2: of the wrongfully incarcerated do, has battled substance abuse. He
34:47
Speaker 2: has had a difficult time holding down jobs, and has
34:50
Speaker 2: suffered from the type of profound psychological issues that are
34:54
Speaker 2: the product of the inhumane confinement of an innocent man
34:57
Speaker 2: to a cage for more than a quarter or century,
35:02
Speaker 2: be exonerated or often angry, paranoid, and suffer from debilitating depression.
35:11
Speaker 2: I've done this work for quite some time, and it
35:14
Speaker 2: still brings me to the edge of crying even to
35:16
Speaker 2: think about it. And I still don't get it, and
35:21
Speaker 2: I don't think I ever really will. Their suffering is
35:26
Speaker 2: on a level that is not meant to be comprehended.
35:28
Speaker 2: It is too raw to piercing, too much for the
35:33
Speaker 2: mind to process. Hopefully these stories, our words will make
35:42
Speaker 2: a difference. My hope is always to get people to
35:46
Speaker 2: think about the presumption of innocence and its importance in
35:50
Speaker 2: the same way William Blackstone did. So today I'm going
35:54
Speaker 2: to ask you to do something a little different. I
35:58
Speaker 2: ask that if you ever find yourself pick to serve
36:01
Speaker 2: on a jury, whether you tried to get out of it,
36:03
Speaker 2: or not that you really consider the consequences of your verdict.
36:10
Speaker 2: Think about what condemning an innocent person actually means. Think
36:15
Speaker 2: about the suffering of that individual. Try to even shut
36:19
Speaker 2: your eyes and picture the tearing away from their life spouses, children, grandparents, aunts, uncles, friends,
36:31
Speaker 2: the confinement, the fear, the loneliness, the slow bleed of time, months, years, decades,
36:44
Speaker 2: the absolute obliteration of a life. Maybe then we'll all
36:51
Speaker 2: realize that we better be sure, beyond all reasonable doubt,
36:57
Speaker 2: that we are getting it right. It is better that
37:01
Speaker 2: ten guilty people go free than have one innocent person suffer.
37:15
Speaker 2: We know that listeners of this show have already heard
37:18
Speaker 2: a lot about Chorus confessions through another show in our stream,
37:21
Speaker 2: Wrongful Conviction, False Confessions. On our show next week, we're
37:26
Speaker 2: going to take a deep dive into the psychology of
37:29
Speaker 2: course confessions to show how and why officers' methods are
37:34
Speaker 2: so effective in pulling a false confession out of an
37:37
Speaker 2: innocent person. We'll explore the junk science of course confessions
37:42
Speaker 2: with David Rudolph, civil rights lawyer and hosts of the podcast.
37:46
Speaker 5: Abuse of Power, Wrongful Conviction, Junk Science is a production
37:52
Speaker 5: of Lava for Good Podcasts and association with Signal Company
37:55
Speaker 5: Number One. Thanks to our executive producer Jason Flahm and
37:59
Speaker 5: the team, it's Signal Company number One executive producer Kevin
38:03
Speaker 5: Wartis and senior producers Kara Kornhaber and Brit Spangler.
38:07
Speaker 2: Our music was composed by Jay Ralph. You can follow
38:10
Speaker 2: me on Instagram at dubin Josh. Follow the Wrongful Conviction
38:15
Speaker 2: podcast on Facebook and on Instagram at Wrongful Conviction and
38:19
Speaker 2: on Twitter at wrong Conviction