Latest / Wrongful Conviction / #163 Wrongful Conviction: Junk Science - Tool Mark Analysis

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

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Speaker 1: It's Valentine's Day, nineteen ninety one. You don't usually observe
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Speaker 1: the greeting card holidays. You think they're kind of silly,
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Speaker 1: and besides, most of the time, you and your partner
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Speaker 1: are both busy working. You're always buried in your client's cases,
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Speaker 1: and your partner is off and on call, running back
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Speaker 1: and forth to the hospital to treat patients. Your friends
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Speaker 1: are always remarking that you're the classic power couple, but
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Speaker 1: sometimes it seems like it's all power and not so
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Speaker 1: much couple. So this year, you make dinner, put out
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Speaker 1: a tablecloth, and even light a candle. At the end
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Speaker 1: of dinner, you do the dishes and your partner takes
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Speaker 1: out the trash. The TV is on low in the background,
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Speaker 1: but something makes your ears perk up. You glance over
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Speaker 1: and see the newswoman reporting from a parking lot not
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Speaker 1: too far away from your house. She says, an explosion
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Speaker 1: went off not long ago. A man was hit in
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Speaker 1: his leg by shrapnel that exploded off a pipe bomb.
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Speaker 1: It detonated thirty yards away from where the man was walking.
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Speaker 1: Listening to this, you slowly shake your head. It's not
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Speaker 1: uncommon in Grand Junction, Colorado, for people to mess around
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Speaker 1: with explosives. After all, it's a mining down and people
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Speaker 1: know how to use dynamite. The reporter says, the man
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Speaker 1: that was hit will probably be Okay. You hope this
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Speaker 1: is just some kids joke gone wrong. But then a
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Speaker 1: few weeks later there's another news report. A twelve year
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Speaker 1: old girl named Maria gets into a van with her
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Speaker 1: parents to go shopping, and as the family sets out
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Speaker 1: for the mall, a bomb hidden near one of the
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Speaker 1: rear tires explodes. Shrapnel is flung through the back of
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Speaker 1: the van's seat and into Maria's body. It wedges into
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Speaker 1: her heart. Her parents frantically pull her out of the car,
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Speaker 1: but she dies right there. Three months after that, husband
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Speaker 1: and wife Henry and Suzanne, finish dinner at a local restaurant.
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Speaker 1: They drive by a strange looking object. Henry slows the
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Speaker 1: car down and reaches out to see what it is.
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Speaker 1: His arms are blown off his body and he dies instantly.
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Speaker 1: After that third bomb goes off, everyone in Grand Junction
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Speaker 1: is extremely anxious. You check under your car every single
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Speaker 1: time before you get in, and you continue to follow
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Speaker 1: the news coverage as it unfolds. The police department declares
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Speaker 1: that out of thirty initial suspects for the bombs, they've
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Speaker 1: narrowed it down to just one person. They don't anounce
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Speaker 1: who it is, but a camera crew must have gotten
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Speaker 1: tipped off because they start following around a young man
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Speaker 1: with big glasses. Then you get a phone call from
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Speaker 1: a man who identifies himself as Jimmy. He tells you
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Speaker 1: he is the suspect in these bombing cases. His words
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Speaker 1: come quickly and in fragments of sentences, he sounds scared.
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Speaker 1: He says he hasn't done anything wrong, and he hasn't
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Speaker 1: been arrested yet, but with cameras following him, he thinks
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Speaker 1: it's a good idea to get an attorney, He asks,
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Speaker 1: will you help me? You take all of this in
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Speaker 1: and think, do I really want to be involved defending
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Speaker 1: someone who might have done something so horrific? But then again,
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Speaker 1: what if he's actually innocent? Everyone deserves an opportunity to
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Speaker 1: defend themselves. Ultimately, you agree to take on his case.
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Speaker 1: Soon after you become Jimmy's attorney, he gets a knock
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Speaker 1: at his door. The police enter his house with a warrant.
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Speaker 1: They turn his place inside out, detectives vacuum the couch
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Speaker 1: and carpet to see if they can pick up any gunpowder.
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Speaker 1: Nothing all they found or some everyday tools, some pliers,
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Speaker 1: wire strippers. The tools that are taken from Jimmy's house
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Speaker 1: are brought down to the police station and tested in
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Speaker 1: the forensics lab. When the results come back, police arrests
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Speaker 1: Jimmy and he gets charged with murder. Of all the
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Speaker 1: people to pin this on, you do understand why they're
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Speaker 1: targeting Jimmy. He's somewhat of a loaner, definitely an oddball.
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Speaker 1: He often goes on late night walks by himself. He
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Speaker 1: can be found sitting alone at bars and getting pretty drunk.
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Speaker 1: Prior to the trial, the prosecution discloses the evidence they
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Speaker 1: intend to use against Jimmy to prove their case, and
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Speaker 1: it looks pretty bad. You spend countless days pouring over
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Speaker 1: the main piece of evidence, the conclusion of a tool
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Speaker 1: mark examiner. The report of this examiner says that the
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Speaker 1: impressions taken from the tools they found in Jimmy's apartment
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Speaker 1: can be scientifically linked to the tool marks left on
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Speaker 1: all three of the bombs. In all your years as
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Speaker 1: a criminal defense attorney, you've never heard of this type
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Speaker 1: of forensic analysis. You didn't even know it existed, But
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Speaker 1: you studied science and undergrad before you decided to become
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Speaker 1: a lawyer, so you know how to analyze these scientific documents.
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Speaker 1: You dig up everything you can find on tool mark evidence, data, statistics, studies, experiments.
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Speaker 1: You find nothing. How are you supposed to defend against this?
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Speaker 1: If someone has a standard set of needlenosed pliers, aren't
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Speaker 1: they likely to match up with the impressions made by
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Speaker 1: other needlenos pliers. At trial, the jury has shown a
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Speaker 1: video by the prosecution. A tool mark expert walks the
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Speaker 1: jurors through it. He tells them each tool has un
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Speaker 1: unique microscopic characteristics. You can see how the tools we
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Speaker 1: found in the defendant's home align perfectly with marks found
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Speaker 1: on fragments of the exploded bombs. The jury is mesmerized
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Speaker 1: by the videotape shown by the tool mark examiner. After
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Speaker 1: closing arguments, when they begin their deliberations, the first note
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Speaker 1: they send out is a request to see that video.
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Speaker 1: They view it over and over and over again, and
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Speaker 1: then the bailiff informs you that the jury is done deliberating.
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Speaker 1: Jimmy is brought back into the courtroom from a holding cell.
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Speaker 1: You see the trepidation in his face as he takes
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Speaker 1: a seat, and you can actually hear him take a
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Speaker 1: big nervous swallow. The jury files into the courtroom, and
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Speaker 1: a vein on your temple begins to pulsate and twitch.
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Speaker 1: Jimmy is convicted of multiple counts of murder. He is
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Speaker 1: sentenced to life in prison. The story you just heard
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Speaker 1: is based on the true events of the bombings and
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Speaker 1: Grand Junction, Colorado in nineteen ninety one and the subsequent
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Speaker 1: trial of Jimmy Genrich. Jimmy has been in prison for
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Speaker 1: more than twenty five years, serving a life sentence. His
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Speaker 1: latest appeal has been taken up by the Innocence Project.
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Speaker 1: I'm Josh Dubin, civil rights and criminal defense attorney, an
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Speaker 1: innocence ambassador to the Innocence Project in New York. Today,
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Speaker 1: on Wrongful Conviction junk Science, we examined tool mark analysis.
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Speaker 1: It turns out that the crime that popularized tourl mark
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Speaker 1: analysis was also committed on Valentine's Day over ninety years ago.
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Speaker 2: When three dozen former Brooklyn Navy yard workers found themselves
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Speaker 2: irreparably poisoned by the asbestos they used in the construction
8:01
Speaker 2: of the battleships that won World War Two, Perry Whites
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Speaker 2: over fifty thousand regular Americans injured through the negligence and
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Speaker 2: malfeasance of mainly large corporations. Their ability to level the
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Speaker 2: way to those responsible for rendering the water of Flint,
8:30
Speaker 2: Michigan undrinkable. Whites and Luxembourg ticket personally when there's a
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Speaker 2: miscarriage of justice anywhere, and therefore they feel a sense
8:38
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Speaker 1: You've all heard of the legendary mobster Al Capone. During
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Speaker 1: the Roaring twenties, he was the leader of the Chicago Mafia.
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Speaker 1: Anything corrupt or illegal. He controlled it, from bootlegging to speakeasies,
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Speaker 1: gambling to prostitution. Capone owned it all. But there was
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Speaker 1: one rival gang that Capone couldn't quite shake the Irish
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Speaker 1: mafia led by George bugs Moran. They were manufacturing and
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Speaker 1: selling alcohol, stepping on Capone's business. Now Capone wasn't going
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Speaker 1: to have it. He got hold of some police uniforms
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Speaker 1: and on February fourteenth, Valentine's Day, nineteen twenty nine, four
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Speaker 1: of Capone's men, dressed as police officers, went over to
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Speaker 1: the garage where bugs Moran's gang was producing and selling alcohol.
9:48
Speaker 1: Capone's crew took the Irish mob by surprise. They started
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Speaker 1: screaming with their guns drawn, line up against the wall,
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Speaker 1: hands where I can see him. You're all under arrest.
9:59
Speaker 1: All seven of the Irish gangsters lined up against the wall,
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Speaker 1: hands on their heads, while Capone's crews shot them all
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Speaker 1: dead in broad daylight. By the time the real police arrived,
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Speaker 1: Capone's gang was long gone. The cops had more than
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Speaker 1: a hunch about who was responsible for this, but they
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Speaker 1: needed the hard evidence to prove it, so they raided
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Speaker 1: the home of one of Capone's top guys, who went
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Speaker 1: by the name of Frank Killer Burke. They took his
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Speaker 1: gun and sent it off to what was one of
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Speaker 1: the first crime labs in the country. There, an examiner
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Speaker 1: named Calvin Goddard shot some test bullets out of the
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Speaker 1: confiscated gun. He put one of the test bullets and
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Speaker 1: one of the bullets found at the massacre under a
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Speaker 1: special microscope that allowed him to compare two images at once.
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Speaker 1: This examiner actually invented this technique of comparing bullets. He
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Speaker 1: claimed that no two revolvers leave the same mark, and
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Speaker 1: that by examining the grooves on the bullets, he claimed
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Speaker 1: he could identify the gun that shot them. According to Goddard,
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Speaker 1: the bullets of the confiscated gun indeed matched the bullets
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Speaker 1: found at the scene of the crime, but the police
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Speaker 1: couldn't do much with that evidence. They couldn't prove that
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Speaker 1: the owner of the gun, Frank Killer Burke, had been
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Speaker 1: at the scene of the crime, and so no one
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Speaker 1: was ever charged for what became known as the Valentine's
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Speaker 1: Day massacre. The analysis that Calvin Goddard invented is now
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Speaker 1: known as tool mark and firearm analysis. Forensic analysts that
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Speaker 1: follow in his footsteps believed that just as each gun
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Speaker 1: leaves a unique mark on every bullet that it shoots,
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Speaker 1: each tool leaves unique mark on the surface it's used on,
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Speaker 1: but no one had closely examined the false assumptions behind
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Speaker 1: tool mark identification. What was being presented to jury's was
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Speaker 1: this notion that a tool will leave a unique mark
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Speaker 1: on a surface. But it turns out not necessarily the case.
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Speaker 1: If two people own a similar wrench, for instance, both
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Speaker 1: wrenches will leave behind a similar mark, so matching a
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Speaker 1: mark to a tool owned by a suspect has very
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Speaker 1: limited value. Nevertheless, these experts were claiming that a tool
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Speaker 1: found at the home of a suspect was the precise
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Speaker 1: tool that was used, for example, to cut wires during
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Speaker 1: the construction of a bomb. This kind of flawed evidence
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Speaker 1: continued to be presented in courtrooms across the country to
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Speaker 1: link suspects to crimes, leading to several wrongful convictions, including
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Speaker 1: that of Jimmy Genrich in nineteen ninety two.
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Speaker 3: It was just so obvious to me that this was
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Speaker 3: not you know, this was not a foundationally strong field,
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Speaker 3: and I was absolutely stunned because the consequences of this
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Speaker 3: stuff can't be higher. You know, people go to prison
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Speaker 3: for years, they're sentenced to death. I mean, essentially, for
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Speaker 3: this to be totally unproven science, I just absolutely could
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Speaker 3: not believe it.
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Speaker 1: Today, we're talking to Tim Requarth. Tim's a freelance journalists
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Speaker 1: who often writes about the intersection between science and criminal justice.
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Speaker 1: He's also a lecturer in science and writing at NYU.
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Speaker 1: We're particularly excited to talk to him today because he
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Speaker 1: wrote about Jimmy Genrich's case for an article published by
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Speaker 1: The Nation. He and his co author extensively researched the case,
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Speaker 1: along with the toolmark evidence that was used to convict Jimmy. Now,
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Speaker 1: a lot of this episode is based on this article
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Speaker 1: that Tim wrote, So after listening to this episode, if
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Speaker 1: you want to learn more about tool mark evidence in
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Speaker 1: Jimmy's case, you can find the article in our show notes. So, Tim,
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Speaker 1: tell us about your background. How did you get into
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Speaker 1: writing about science?
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Speaker 3: Except for undergraduate I studied literature and writing, and it
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Speaker 3: wasn't until after I'd graduated. I happened to be living
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Speaker 3: across the street from a medical school in Chicago, and
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Speaker 3: at the same time, my father was suffering from dementia,
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Speaker 3: and the books and articles that I was reading on
14:15
Speaker 3: dementia didn't quite satisfy me, and so I decided to
14:19
Speaker 3: volunteer in a lab that studied dementia. And it was
14:23
Speaker 3: at that point that I was first introduced to research,
14:25
Speaker 3: and I was hooked. So I went back to school,
14:28
Speaker 3: took all of the basic science classes that I hadn't
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Speaker 3: taken an undergrad, and eventually enrolled in a masters, And
14:35
Speaker 3: you know, ten years later, I found myself, probably with
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Speaker 3: a PhD in neuroscience. The sort of breadth of questions
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Speaker 3: and material that you could really dive into as a
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Speaker 3: journalist or a writer just felt so much more expansive
14:51
Speaker 3: than what I could do as a scientist. And so
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Speaker 3: I sort of had the realization later on in my
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Speaker 3: PhD that research heavy, investigative type of pieces were really
15:00
Speaker 3: good fit for somebody who's trained in answering big questions.
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Speaker 1: So before writing this story about tool mark evidence, what
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Speaker 1: did you know about any forensic science?
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Speaker 3: Before that the first story I did about forensic science,
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Speaker 3: I didn't know a lot about it at the time.
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Speaker 3: Then anybody might from watching Law and Order or CSI.
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Speaker 3: We profiled the specific case and it involved tool mark evidence,
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Speaker 3: and we looked at all of the research in the
15:29
Speaker 3: forensic journals. I mean, we went through and found every
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Speaker 3: single study, and most of them were very small sample sizes,
15:41
Speaker 3: very theoretical or had all kinds of methodological design problems.
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Speaker 3: And I was absolutely stunned because this is like a
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Speaker 3: solved problem, Like we know how to do strong empirical
15:53
Speaker 3: scientific studies to see if something works or not. Like
15:56
Speaker 3: take a medical study, which if you want to see
15:58
Speaker 3: if a drug has an effect, you randomly select two
16:02
Speaker 3: groups of people and you assign one of them to
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Speaker 3: get the drug and another one to get a placebo
16:08
Speaker 3: which has no effect. You blind both the people so
16:12
Speaker 3: they don't know that they're getting the drug, and you
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Speaker 3: also blind the researchers so they don't know who is
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Speaker 3: getting the drug. You decide ahead of time what analysis
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Speaker 3: you're going to do, what outcomes you're going to look for,
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Speaker 3: and then you test those using rigorous hypothesis testing and
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Speaker 3: statistics to see what happens. And in forensic sciences that
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Speaker 3: just it doesn't exist. The practitioners doing them are often
16:37
Speaker 3: not blinded, the sample sizes are very low, there's conflicts
16:42
Speaker 3: of interest, so it's not following some of the most
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Speaker 3: basic tenets that you would be reflexive to your typical
16:52
Speaker 3: scientists in the university.
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Speaker 1: I mean, most people, especially lay people on a jury
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Speaker 1: hear the words forensic science, and you know, they imagine
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Speaker 1: this very pristine process in which things are tested and retested,
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Speaker 1: because you know, we all think of the scientific method
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Speaker 1: that we learn about in school, and it's kind of
17:13
Speaker 1: startling to know that that's not actually the case. So
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Speaker 1: what you said really underscores what we've been saying throughout
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Speaker 1: the show and how big of a problem it can
17:23
Speaker 1: be when jurors confuse what's really junk science presented in
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Speaker 1: courtrooms with traditional science that's used to develop medicines, for example.
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Speaker 1: And I'm not sure that our listeners are aware of this,
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Speaker 1: but I want you to think about this for a moment.
17:42
Speaker 1: In cases where people were later proven to be innocent
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Speaker 1: based on DNA, forty five percent of those wrongful convictions
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Speaker 1: are based on some misapplication of forensic science.
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Speaker 3: Imagine if this were the FDA, right Imagine if a
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Speaker 3: drug didn't work fifty percent of the time and had
18:02
Speaker 3: horrible side effects, they wouldn't just say, well, you know,
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Speaker 3: we already approved it, so let's just leave it on
18:07
Speaker 3: the market. That's not how it works in medicine, but
18:09
Speaker 3: that is how it works in the law.
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Speaker 1: So let's get into Jimmy's case. I want you to
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Speaker 1: tell us about the crime that led to his arrest
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Speaker 1: and the town that had happened in. Why did they
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Speaker 1: even decide to zero in on Jimmy in the first place.
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Speaker 3: Grand Junction is a sort of mining town of about
18:27
Speaker 3: thirty thousand people at the time, and there was a
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Speaker 3: series of pipe bombs that went off in the town.
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Speaker 3: There were three of them, and one of them killed
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Speaker 3: a twelve year old girl. It was it was very tragic,
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Speaker 3: and they had they were seemingly random, and they had
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Speaker 3: no suspect, and so the Bureau of Alcohol, Tobacco on
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Speaker 3: Firearms was called in and they helped the local police
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Speaker 3: force do a bomb investigation to try to figure out
18:54
Speaker 3: who this was. They had a list of something like
18:57
Speaker 3: thirty suspects. There was this guy, Jimmy, who was sort
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Speaker 3: of a loner. Lived in a boarding house near downtown
19:04
Speaker 3: in a twelve by twelve room. I think he was
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Speaker 3: a busboy in a restaurant, but was on and off
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Speaker 3: of jobs. His mother would bring him, you know, meals
19:14
Speaker 3: in a cooler, and he was a little bit you know,
19:19
Speaker 3: he had some problems with mental illness. There was one
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Speaker 3: event in particular that put him on the police's radar,
19:26
Speaker 3: which was he walked into a bookstore one day and
19:28
Speaker 3: asked them to order a copy of the Anarchist Cookbook,
19:31
Speaker 3: which contains a diagram of a pipe bomb, and the
19:35
Speaker 3: bookstore owners had called the police, and once they sort
19:38
Speaker 3: of pieced all of this together, that put him at
19:41
Speaker 3: the top of the suspect list. They then raided his
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Speaker 3: boarding room and found some electronic parts, some wire strippers
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Speaker 3: and pliers that could conceivably have been used to construct
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Speaker 3: a bomb, and at that point they worked to link
19:59
Speaker 3: him to the bomb. They didn't find any other physical evidence,
20:03
Speaker 3: never found the Anarchist Cookbook. They painted a picture of
20:07
Speaker 3: him as the kind of person who would do this,
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Speaker 3: But you have to have physical evidence that links people
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Speaker 3: to crimes in very the objective ways, and they didn't
20:18
Speaker 3: have that in this case other than the tool mark analysis,
20:20
Speaker 3: which both the prosecutor and the judge acknowledged in the
20:23
Speaker 3: trial transcript. They both acknowledged that the entire case hinged
20:27
Speaker 3: on the tool mark analysis, and if it were thrown out,
20:30
Speaker 3: there would be no case.
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Speaker 1: So how did they claim to identify Jimmy's tools as
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Speaker 1: the tools that were used on these bombs?
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Speaker 3: They look at these microscopic scratches or striations on the
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Speaker 3: bomb parts, and then they look at the suspects tools
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Speaker 3: and they make a mark on some other piece of
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Speaker 3: metal using a microscope. They compare the marks on the metal,
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Speaker 3: like their test marks, to the marks on the actual evidence,
21:09
Speaker 3: and if those line up in the examiner's you know,
21:12
Speaker 3: subjective judgment, they declare to match, and they say that
21:16
Speaker 3: this was you know, the only tools that could have
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Speaker 3: made these marks, and therefore the owner of these tools
21:21
Speaker 3: must have been the person who built the bombs. You know,
21:23
Speaker 3: they use the word certainty, and that's very compelling to jurors,
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Speaker 3: but the truth is they don't know how certain it is.
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Speaker 3: These aren't exotic bomb making tools. They're three dollars pair
21:35
Speaker 3: of pliers that you know, were sold at the local
21:38
Speaker 3: hardware store. Perhaps so you could imagine that, you know,
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Speaker 3: a tool mark. Examiner could say something like, oh, it
21:44
Speaker 3: was a really large pair of pliers versus a small one,
21:47
Speaker 3: or you know, it's consistent or something like that, but
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Speaker 3: they don't say that they individualize it. They say that
21:52
Speaker 3: this is an exact match. And this isn't really a
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Speaker 3: possible conclusion to come to, because you'd either have to
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Speaker 3: a test every other tool in the world and see
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Speaker 3: if this indeed was a unique mark that was being made,
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Speaker 3: or you would have to know the kinds of variations
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Speaker 3: that we see in tools, like how common is it
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Speaker 3: that two tools can look about the same but aren't
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Speaker 3: the same? Is it you know, two tools that are
22:20
Speaker 3: made by the same brand. Is it two tools that
22:23
Speaker 3: come off the same you know, lot in a factory.
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Speaker 3: So there's all of these things that you'd need to quantify,
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Speaker 3: And even if you did do that, you'd have to say,
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Speaker 3: you know, there's a one in one hundred chants that
22:35
Speaker 3: this is a different tool. There's a one and two
22:37
Speaker 3: hundred chants, right, something like that.
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Speaker 1: Right, So you're saying that one issue is how many
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Speaker 1: tools can be said to match a mark left behind?
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Speaker 1: And we really don't know the answer to that. But
22:48
Speaker 1: I guess another issue is the examiners doing the matching.
22:52
Speaker 1: And the fact of the matter is that these examiners
22:56
Speaker 1: never really have to prove whether or not they can
22:59
Speaker 1: effectively match it tool to its mark. And there are
23:02
Speaker 1: possible ways to test this, right, I mean, if a
23:05
Speaker 1: lab wants to test how good someone is at this
23:08
Speaker 1: kind of tool matching, they would send a tool mark
23:11
Speaker 1: examiner some tools along with some wires or pieces of
23:15
Speaker 1: metal with tool marks on them, and the examiners would
23:19
Speaker 1: then be asked to match the correct tool to the marks,
23:22
Speaker 1: and the lab would have all of the correct answers,
23:26
Speaker 1: so they'd be able to tell how good these examiners
23:29
Speaker 1: actually are. That kind of testing, which would show how
23:34
Speaker 1: good these tool mark examiners are at their job, seems
23:38
Speaker 1: like a simple thing to do.
23:39
Speaker 3: Right, right, The real test is how well do you
23:43
Speaker 3: examiners actually do in reality? And you would say, you know,
23:47
Speaker 3: toolmark examiners make a mistake one out of ten times,
23:50
Speaker 3: one out of one hundred times, one out of a
23:52
Speaker 3: thousand times. That's what you really want to know is
23:55
Speaker 3: how often do they make a mistake?
23:57
Speaker 1: So why don't they actually do these tests?
24:00
Speaker 3: If that comes back and it's really, really, it's not
24:04
Speaker 3: so good, Right, you make an error fifty percent of
24:06
Speaker 3: the time or twenty five percent of the time, you're
24:10
Speaker 3: out of a job. You know, what are these examiners
24:13
Speaker 3: going to do if this becomes a technique that is
24:16
Speaker 3: no longer a valid technique in court? And you know,
24:20
Speaker 3: I think that it's easy to have this narrative that
24:23
Speaker 3: you know, these are unscrupulous scientists who are manipulating data
24:29
Speaker 3: in a bloodthirsty way to get convictions. And I think
24:32
Speaker 3: that's a very cartoonish way to think about it. There
24:35
Speaker 3: are certainly cases of misconduct, and there are cases of
24:39
Speaker 3: you know, bad motives, but in reality, these are people
24:42
Speaker 3: who really believed that what they were doing is true.
24:47
Speaker 1: And you actually talked to the tool mark examiner in
24:50
Speaker 1: Jimmy's case while you were researching your article. So what
24:55
Speaker 1: impressions did you have after talking to someone that actually
24:58
Speaker 1: specializes in this stuff.
25:01
Speaker 3: I guess the thing that struck me the most as
25:03
Speaker 3: a scientist is that there was an extreme lack of humility.
25:06
Speaker 3: There is an extreme lack of acknowledging that these could
25:10
Speaker 3: not be as infallible as they thought. They have a
25:15
Speaker 3: very strong interest in proving that these techniques are very powerful.
25:20
Speaker 3: There's a very strong sense of justice. There's a very
25:22
Speaker 3: strong sense of righteousness. The posture of the forensic scientists
25:27
Speaker 3: and prosecutors they spoke to is it was a bit defensive, right.
25:31
Speaker 3: The venue for these is a court of law, which
25:34
Speaker 3: is an adversarial system, and to admit any kind of
25:37
Speaker 3: fallibility or weakness is to weaken the case, and that's
25:42
Speaker 3: it's just so against the culture to do that.
25:45
Speaker 1: So in Jimmy's case, how does it all work? How
25:48
Speaker 1: did the examiner present this tool mark evidence to the
25:51
Speaker 1: jury and how do you think they were able to
25:54
Speaker 1: convince the jury that the results were correct? You know
25:57
Speaker 1: that Jimmy's tools match the mark on those bombs.
26:02
Speaker 3: The presentation of the tool mark evidence was a video presentation,
26:07
Speaker 3: and I believe it was the defense attorney that said
26:10
Speaker 3: she thought it was one of the first in the nation. Again,
26:12
Speaker 3: this was in the early nineties, so this was the
26:15
Speaker 3: first sort of video presentation of this kind of evidence.
26:18
Speaker 3: Because the way that they do this again is looking
26:20
Speaker 3: under a microscope and they line up these little microscopic
26:25
Speaker 3: markings from the evidence with their little test cuts. You know,
26:28
Speaker 3: it looks very convincing. You pick a little part where
26:30
Speaker 3: they do line up and you're like, Aha, that must
26:33
Speaker 3: be it, and then you ignore all the parts where
26:34
Speaker 3: they don't line up, you know, which is you know,
26:36
Speaker 3: part of the problem. During deliberations, the jury asked to
26:39
Speaker 3: watch that video, you know, I think dozens of times.
26:42
Speaker 3: So it was it was a very convincing presentation.
26:46
Speaker 1: So in addition to tool mark examiners, you also talk
26:49
Speaker 1: to some of the prosecutors who use this type of
26:52
Speaker 1: analysis in their cases. What were their thoughts about using
26:56
Speaker 1: this kind of evidence.
26:59
Speaker 3: The same cognitive sentence that would exist for forensic examiners
27:02
Speaker 3: also exist for prosecutors. It's a lot to face that
27:06
Speaker 3: these tools that you've relied on for so many cases
27:08
Speaker 3: may not be as accurate as you thought they are,
27:11
Speaker 3: meaning some of the people that you convicted were maybe
27:15
Speaker 3: not guilty, and that you shouldn't use them moving forward.
27:19
Speaker 3: It's a really hard it's a really hard pill to swallow.
27:23
Speaker 3: I think one of the things that I was most
27:25
Speaker 3: stunned by when we were interviewing prosecutors was the way
27:28
Speaker 3: in which they would rely on legal rulings as a
27:33
Speaker 3: substitute for scientific evidence. So what I mean by that
27:36
Speaker 3: is we would say, you know, look, we've looked at
27:39
Speaker 3: all of the evidence and they have not validated this
27:43
Speaker 3: in a scientifically rigorous way, And the prosecutors retort to
27:47
Speaker 3: that would be, well, yes, but we've used them, and
27:50
Speaker 3: we've convicted guilty people, and it's got lots of lots
27:53
Speaker 3: of legal rulings in our favor and so therefore it
27:56
Speaker 3: must be true. And so it's a very circular kind
27:59
Speaker 3: of reason. It's almost like an invasive species. You have
28:02
Speaker 3: this thing that's made its way into the courtroom, and
28:04
Speaker 3: it gets locked in there by precedents, and it's really
28:08
Speaker 3: really hard to get it out. And so that's the
28:11
Speaker 3: reason that this stuff stays in courts. You know, science evolves.
28:14
Speaker 3: Even if you thought something was true thirty years ago
28:17
Speaker 3: and you decide it's not true today, you update, you know,
28:20
Speaker 3: you revise, and the courts just don't want to do that.
28:24
Speaker 3: They want to keep things the same.
28:25
Speaker 1: You know, we often ask our guests to tell our
28:29
Speaker 1: listeners what they can do to make sure this type
28:32
Speaker 1: of evidence stops being presented to juries in our criminal
28:37
Speaker 1: justice system. So what would you tell people a juror,
28:41
Speaker 1: for instance, who has to make a decision about someone's
28:44
Speaker 1: guilt or innocence when they are presented with forensic evidence.
28:48
Speaker 3: If I had any advice to adjur you know, it's
28:51
Speaker 3: to realize that there have been major reports by scientific
28:57
Speaker 3: bodies that have found deep, deep problems with these techniques.
29:04
Speaker 3: As convincing as it sounds, they're only telling you a
29:07
Speaker 3: partial picture. And yet the courts have been unable to
29:13
Speaker 3: bar them from being used. If you have a justice
29:16
Speaker 3: system where that ends justifies the means, right, it's not
29:21
Speaker 3: going to function fairly. And so we should all be
29:24
Speaker 3: concerned when somebody is convicted by dubious means, because even
29:29
Speaker 3: if that person was guilty, somebody else isn't going to
29:33
Speaker 3: be and they're going to get convicted by those dubious
29:36
Speaker 3: methods as well. You know, it's easy to be pessimistic
29:40
Speaker 3: and almost fatalistic about the state of forensics in the courtroom,
29:44
Speaker 3: but there are some bright spots. You know, there are
29:45
Speaker 3: some rulings that seem really enlightened on the part of
29:49
Speaker 3: the judges who are acknowledging that maybe these things do
29:52
Speaker 3: need to be revisited.
29:54
Speaker 1: And this is even true in regard to Jimmy's case.
29:57
Speaker 1: The Innocence Project has picked up as appeal and are
30:01
Speaker 1: trying to set a new kind of precedent.
30:04
Speaker 3: They are going to have an evidentiary hearing, which means
30:07
Speaker 3: that they'll have some reevaluation of the quality of the
30:11
Speaker 3: tool mark evidence. So in that sense, you know, it's
30:14
Speaker 3: from a legal sense, it's progress. Whether you know this
30:18
Speaker 3: will pan out for Jimmy, is you know that's still
30:21
Speaker 3: up in the air at this point.
30:24
Speaker 1: So we often make a plea at the end of
30:27
Speaker 1: every episode. Please write your local judges question the so
30:32
Speaker 1: called science. Don't try to get out of jury service,
30:35
Speaker 1: but rather serve as a conscient interest, etc. And so on. Today,
30:41
Speaker 1: I'm going to ask you to do something different, so
30:43
Speaker 1: I'd like you to consider this. In the seventeen sixties,
30:48
Speaker 1: an English judge named William Blackstone wrote an article entitled
30:52
Speaker 1: Commentaries on the Laws of England. In it, he wrote
30:55
Speaker 1: something extraordinary. It is better that ten guilty persons escape
31:01
Speaker 1: than that one innocent suffer. This profound expression of humanity,
31:07
Speaker 1: of the recognition that the sacrificing of one innocent person
31:11
Speaker 1: should not be the cost of administering justice in any
31:15
Speaker 1: civilized society, is at least to me, the personification of empathy.
31:21
Speaker 1: This concept became known as Blackstone's ratio, and it's made
31:25
Speaker 1: its way into the criminal justice system of virtually every
31:28
Speaker 1: Western society. William Blackstone somehow realized that because accusing, convicting,
31:35
Speaker 1: and condemning an innocent person to prison for a crime
31:39
Speaker 1: they did not commit is the height of human suffering,
31:43
Speaker 1: the most unimaginable nightmare that no man or woman should
31:47
Speaker 1: have to bear. You've heard stories on this podcast about
31:52
Speaker 1: terrible crimes and the junk signs that was used to
31:55
Speaker 1: convict innocent men and women, and we mention their names
32:00
Speaker 1: like Sante Tribble and Keith Allen Harwood and Jimmy Genrich
32:04
Speaker 1: and many others, But I think their suffering gets lost
32:08
Speaker 1: in the shuffle. Wrongful convictions often get discussed in pop culture.
32:14
Speaker 1: They certainly have a light shined on them, but we
32:18
Speaker 1: often hear about them when the person that was wrongfully
32:21
Speaker 1: convicted is getting out, when their nightmare is coming to
32:24
Speaker 1: an end. We don't talk much about what they have
32:28
Speaker 1: to endure in prison, everything from physical and sexual assaults,
32:34
Speaker 1: the constant fear of losing their life, the unthinkable living conditions,
32:40
Speaker 1: the isolation from family, friends, alienation from the world, advances
32:45
Speaker 1: in technology, and even after they're exonerated, the pain never
32:50
Speaker 1: really goes away. I once wrote an article about an
32:55
Speaker 1: exonery named Walter Swift in Detroit, and I tried to
32:59
Speaker 1: capture in it some of that suffering, and I really
33:03
Speaker 1: don't think I can top it, so I'll just ret
33:05
Speaker 1: you what I wrote. The sad reality is that Walter
33:10
Speaker 1: has struggled terribly since his exoneration. He, as many of
33:14
Speaker 1: the wrongfully incarcerated to do, has battled substance abuse. He
33:19
Speaker 1: has had a difficult time holding down jobs, and has
33:22
Speaker 1: suffered from the type of profound psychological issues that are
33:25
Speaker 1: the product of the inhumane confinement of an innocent man
33:29
Speaker 1: to a cage for more than a quarter century, be
33:33
Speaker 1: exonerated or often angry, paranoid, and suffer from debilitating depression.
33:43
Speaker 1: I've done this work for quite some time, and it
33:45
Speaker 1: still brings me to the edge of crying even to
33:48
Speaker 1: think about it. And I still don't get it, and
33:52
Speaker 1: I don't think I ever really will. Their suffering is
33:57
Speaker 1: on a level that is not meant to be comprehended.
34:00
Speaker 1: It is too raw to piercing, too much for the
34:04
Speaker 1: mind to process. Hopefully these stories, our words will make
34:13
Speaker 1: a difference. My hope is always to get people to
34:18
Speaker 1: think about the presumption of innocence and its importance in
34:21
Speaker 1: the same way William Blackstone did. So today I'm going
34:26
Speaker 1: to ask you to do something a little different. I
34:29
Speaker 1: ask that if you ever find yourself picked to serve
34:32
Speaker 1: on a jury, whether you tried to get out of it,
34:35
Speaker 1: or not that you really consider the consequences of your verdict.
34:41
Speaker 1: Think about what condemning an innocent person actually means. Think
34:46
Speaker 1: about the suffering of that individual. Try to even shut
34:50
Speaker 1: your eyes and picture the tearing away from their life spouses, children, grandparents, aunts, uncles, friends,
35:02
Speaker 1: the confinement, the fear, the loneliness, the slow bleed of time, months, years, decades,
35:15
Speaker 1: the absolute obliteration of a life. Maybe then we'll all
35:22
Speaker 1: realize that we better be sure, beyond all reasonable doubt,
35:28
Speaker 1: that we are getting it right, that indeed it is
35:32
Speaker 1: better that ten guilty people go free than have one
35:36
Speaker 1: innocent person suffer. We know that listeners of this show
35:48
Speaker 1: have already heard a lot about Chorus confessions through another
35:51
Speaker 1: show in our stream, Wrongful Conviction, False Confessions. On our
35:56
Speaker 1: show next week, we're going to take a deep dive
35:59
Speaker 1: into the psychology of course confessions to show how and
36:03
Speaker 1: why officers' methods are so effective in pulling a false
36:07
Speaker 1: confession out of an innocent person. We'll explore the junk
36:12
Speaker 1: science of course confessions with David Rudolph, civil rights lawyer
36:16
Speaker 1: and host of the podcast Abuse of Power. Wrongful Conviction
36:22
Speaker 1: Junk Science is a production of Lava for Good Podcasts
36:25
Speaker 1: and association with Signal Company Number One. Thanks to our
36:28
Speaker 1: executive producer Jason Flamm and the team at Signal Company
36:32
Speaker 1: Number One executive producer Kevin Wartis and senior producers Kara
36:36
Speaker 1: Kornhaber and Brit Spangler. Our music was composed by Jay Ralph.
36:41
Speaker 1: You can follow me on Instagram at dubin Josh. Follow
36:45
Speaker 1: the Wrongful Conviction podcast on Facebook and on Instagram at
36:49
Speaker 1: Wrongful Conviction and on Twitter at wrong Conviction.
37:00
Speaker 2: Yeah.