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Transcript

#161 Wrongful Conviction: Junk Science - Gunshot Residue Evidence · Wrongful Conviction

• 0:01
  Speaker 1: It's Saturday night. You're in your front yard working on
• 0:04
  Speaker 1: your moped. Your dad is sitting on the picnic bench,
• 0:08
  Speaker 1: chatting with you as you install a new starter. You
• 0:11
  Speaker 1: and your friend Alan saved up all year so you
• 0:13
  Speaker 1: could each buy a bike. Neither one of them is
• 0:16
  Speaker 1: in great condition, but now that school is out you
• 0:20
  Speaker 1: have all summer to fix them up. After a little while,
• 0:23
  Speaker 1: your friend Schante arrives at your house and he says, hey,
• 0:26
  Speaker 1: Alan's bike has a flat. He wants us to come
• 0:29
  Speaker 1: help him fix it. And you're thinking again, his bike
• 0:33
  Speaker 1: is always breaking down. It's always got some kind of problem.
• 0:36
  Speaker 1: At first, you were a little jealous of Alan's red
• 0:39
  Speaker 1: raz but that guy keeps getting flats. You pat the
• 0:42
  Speaker 1: seat on your brown moped. It's pretty ugly, but at
• 0:46
  Speaker 1: least it's faithful. You ask your dad if it's cool
• 0:49
  Speaker 1: if you go over to Alan's grandmothers to get the bike.
• 0:52
  Speaker 1: He looks at his watch and says, well, it's pretty late,
• 0:56
  Speaker 1: but hurry up, go get it and you can bring
• 0:58
  Speaker 1: it back here to work on it. When you and
• 1:01
  Speaker 1: Schante get to Alan's, Chante heads inside to help Alan
• 1:04
  Speaker 1: with the bike. Another flat. You say, when Alan comes
• 1:08
  Speaker 1: out of his house. Don't even start, Alan says, tossing
• 1:12
  Speaker 1: you a can of soda. You hang out for a bit,
• 1:15
  Speaker 1: and then the three of you start walking Alan's bike
• 1:17
  Speaker 1: towards your house. You're teasing Alan about how often his
• 1:21
  Speaker 1: mopet has problems when a green sedan coming from the
• 1:24
  Speaker 1: opposite direction stops right next to you. The man driving
• 1:28
  Speaker 1: the car leans out the window and says, hey, you
• 1:31
  Speaker 1: guys have any dope?
• 1:33
  Speaker 2: Nah?
• 1:33
  Speaker 1: Alan says, we don't mess with that shit. Yell at
• 1:36
  Speaker 1: the guy, Hey, man, get out of here, and the
• 1:39
  Speaker 1: green car speeds off. You walk a bit further down
• 1:43
  Speaker 1: the block, and then you hear shots ring out. Oh shit.
• 1:48
  Speaker 1: All three of you start frantically running down the street
• 1:53
  Speaker 1: and don't look back. You don't stop running until you
• 2:06
  Speaker 1: get back to your house. You look around, making sure
• 2:10
  Speaker 1: no one's shooting at you, and then you catch your breath.
• 2:14
  Speaker 1: You Chante and Allen talk about the gunshots for a
• 2:16
  Speaker 1: few minutes. It's not that out of the ordinary in
• 2:19
  Speaker 1: this neighborhood, but still it's totally scariest shit when it happens.
• 2:24
  Speaker 1: The adrenaline finally wears off and you start working on
• 2:27
  Speaker 1: Alan's bike there's a nail in the tread of the tire.
• 2:31
  Speaker 1: You pull it out, plug the hole, and let the
• 2:34
  Speaker 1: glue set. After pumping up the tire and giving it
• 2:37
  Speaker 1: a few good pushes, Alan grabs his bike and begins
• 2:41
  Speaker 1: to walk it back down the street toward his grandmother's house.
• 2:45
  Speaker 1: Once Alan gets to his street, he sees the green
• 2:48
  Speaker 1: car that stopped to ask for drugs, but now its
• 2:51
  Speaker 1: front end is just demolished. It's smashed into the side
• 2:55
  Speaker 1: of a house a few doors down from his grandmother's.
• 2:58
  Speaker 1: There's smoke and chaos and police just everywhere. Over the
• 3:04
  Speaker 1: next few days, you expect to see Alan riding as
• 3:07
  Speaker 1: red raz after all, the tire is fixed, but you
• 3:10
  Speaker 1: don't see him around the neighborhood. A week passes, you
• 3:15
  Speaker 1: knock on his door and his grandmother tells you that
• 3:18
  Speaker 1: the man in the green car had been shot. The
• 3:21
  Speaker 1: cops asked Alan to come to the police station to
• 3:23
  Speaker 1: help with the investigation. She expected Alan to be home
• 3:27
  Speaker 1: that same night, but he's being held in jail. She's
• 3:31
  Speaker 1: afraid and confused, and suddenly so are you. A few
• 3:38
  Speaker 1: weeks later, you're in your backyard throwing a tennis ball
• 3:41
  Speaker 1: against the side of your house, worrying about Alan, wondering
• 3:45
  Speaker 1: if he's okay. Out of the corner of your eye,
• 3:48
  Speaker 1: you see some people walking towards you and it's four
• 3:51
  Speaker 1: police officers. At first you freeze, overcome with fear, and
• 3:57
  Speaker 1: then you take off. He took Alan for no reason.
• 4:01
  Speaker 1: What's going to stop them from grabbing you and doing
• 4:03
  Speaker 1: the same thing. But you're fourteen years old. They're bigger
• 4:08
  Speaker 1: than you, faster, and there's more of them. They catch up,
• 4:13
  Speaker 1: grab you and put you in handcuffs. Your first thought
• 4:16
  Speaker 1: is I'm going to disappear, just like Alan. You're putting
• 4:22
  Speaker 1: an interrogation room. You tell the officers what happened that night,
• 4:26
  Speaker 1: the night the guy in the green car got shot,
• 4:29
  Speaker 1: how you and Alan told him to go away. But
• 4:31
  Speaker 1: they don't want to hear the truth. They don't want
• 4:34
  Speaker 1: to hear anything you're telling them. One of the detectives, Scoots,
• 4:38
  Speaker 1: is seat closer to you. We know Alan did this.
• 4:43
  Speaker 1: His hands tested positive for gunpowder residue. You know what
• 4:46
  Speaker 1: that is, Son, We know he was involved. You're going
• 4:50
  Speaker 1: to tell us what Alan did. You're going to tell
• 4:53
  Speaker 1: us that Alan had the gun, that you saw that gun,
• 4:56
  Speaker 1: and that what he did is he went up to
• 4:58
  Speaker 1: that car that stopped and he talked to the guy
• 5:01
  Speaker 1: in the car, And the next thing you knew was
• 5:04
  Speaker 1: you heard gunshots and you saw Alan running. And I'm
• 5:08
  Speaker 1: gonna tell you something you don't tell us exactly that
• 5:12
  Speaker 1: here's what's gonna happen. You're gonna get charged with murder.
• 5:15
  Speaker 1: You got that. You know how much power these guys have.
• 5:19
  Speaker 1: They already have Alan, who knows what they're gonna do
• 5:22
  Speaker 1: to you. You're petrified. The walls feel like they're closing
• 5:27
  Speaker 1: in on you. You figure, I should just tell these
• 5:30
  Speaker 1: guys what they want to hear. Then my parents can
• 5:33
  Speaker 1: help sort this out later. So you do what they say.
• 5:38
  Speaker 1: You make up a story, one that sounds like what
• 5:41
  Speaker 1: they want to hear, and they record it. You'll tell
• 5:44
  Speaker 1: them anything just to get out of that room. Before
• 5:48
  Speaker 1: letting you go, the cops tell you you're gonna have
• 5:51
  Speaker 1: to testify at Alan's trial. We'll see you. Then. A
• 5:56
  Speaker 1: few weeks pass, and you're relieved when school starts again.
• 6:00
  Speaker 1: Maybe this will distract you from thinking about Alan, from
• 6:03
  Speaker 1: the feeling that it's your fault. He's still sitting in
• 6:06
  Speaker 1: jail the day of Allen's trial. You and Chante decide
• 6:10
  Speaker 1: you're not going to show up. You're not going to
• 6:12
  Speaker 1: testify against your friend, lie again and dig a deeper
• 6:16
  Speaker 1: hole for Allan. But the cops show up at your
• 6:19
  Speaker 1: school and they bring you both to court. At Alan's trial,
• 6:25
  Speaker 1: an officer takes the stand and says that he personally
• 6:28
  Speaker 1: collected samples from Allan's hands. He swabbed the front and
• 6:32
  Speaker 1: back of them with Q tips and then tested those
• 6:35
  Speaker 1: Q tips to see if there was gunpowder residue present.
• 6:38
  Speaker 1: The officer testifies the defendant's right hand tested positive for
• 6:43
  Speaker 1: antimony and bury him two chemical elements that are present
• 6:47
  Speaker 1: in gunpowder residue. There is no doubt in my mind
• 6:51
  Speaker 1: that the defendant shot the gun that was used in
• 6:54
  Speaker 1: this homicide. This is insane. You think you know Alan
• 7:00
  Speaker 1: and didn't have a gun. He was with you when
• 7:02
  Speaker 1: those shots rang out. How can they just make this
• 7:06
  Speaker 1: stuff up? When you're on the witness stand, you glance
• 7:12
  Speaker 1: over at the jury. They're all sitting forward, staring right
• 7:16
  Speaker 1: at you, through you. It seems. The prosecutors start asking
• 7:20
  Speaker 1: you all of these questions. Your answers are all over
• 7:24
  Speaker 1: the place. They barely make sense. You were told to
• 7:27
  Speaker 1: tell lies, but it's hard to keep it all straight
• 7:30
  Speaker 1: because none of what you're testifying to actually happened. But
• 7:35
  Speaker 1: at seventeen years old, Alan is convicted of murder and
• 7:40
  Speaker 1: sentenced to fifteen years to life in prison. The gunshot
• 7:44
  Speaker 1: residue that the police and prosecutors claim was found on
• 7:47
  Speaker 1: Alan's hand is the only physical evidence linking him to
• 7:51
  Speaker 1: the crime. The story you just heard is based on
• 7:58
  Speaker 1: the true events of Raymond Carl Alan Warren's trial. He
• 8:02
  Speaker 1: was convicted of murder based on faulty gunshot residue evidence.
• 8:07
  Speaker 1: The police also coorused his two friends, Chante and Antonio,
• 8:11
  Speaker 1: into giving false testimony, saying that Allan committed the crime.
• 8:16
  Speaker 1: Allan is now in his forties and he is still
• 8:19
  Speaker 1: in prison. He's been there for over twenty five years,
• 8:23
  Speaker 1: serving a sentence of fifteen to life for a murder
• 8:27
  Speaker 1: he did not commit. I'm Josh Dubin, civil rights and
• 8:34
  Speaker 1: criminal defense attorney and innocent ambassador to the Innocence Project
• 8:38
  Speaker 1: in New York. Today, on Wrongful Conviction Junk Science, we
• 8:42
  Speaker 1: examined gunshot residue evidence. As listeners to this show, you've
• 8:47
  Speaker 1: probably heard how coerse confessions are used to convict innocent
• 8:51
  Speaker 1: people on another podcast in our feed wrongful conviction, false Confessions. Now,
• 8:57
  Speaker 1: the coerse confessions of Shanta and Antonio were certainly factors
• 9:01
  Speaker 1: in convicting Allan at his trial, but today our focus
• 9:05
  Speaker 1: is on faulty forensic science and gunshot residue certainly has
• 9:09
  Speaker 1: its issues that began almost a century ago.
• 9:17
  Speaker 3: When three dozen former Brooklyn Navy yard workers found themselves
• 9:20
  Speaker 3: irreparably poisoned by the asbestos they used in the construction
• 9:24
  Speaker 3: of the battleships that won World War Two. Perry White
• 9:27
  Speaker 3: and Arthur Luxembourg literally put everything on the line to
• 9:30
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  Speaker 3: malfeasance of mainly large corporations. Their ability to level the
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  Speaker 3: Michigan undrinkable. Whites and Luxembourg take it personally when there's
• 9:57
  Speaker 3: a miscarriage of justice anywhere, and therefore they feel a
• 10:01
  Speaker 3: sense of responsibility to support Bramfel conviction podcasts. You can
• 10:04
  Speaker 3: learn more about them by visiting whiteslux dot com. That's
• 10:08
  Speaker 3: w e I t z l ux dot com.
• 10:19
  Speaker 1: In nineteen thirty three, a group of American police officers
• 10:23
  Speaker 1: from several departments gathered in a lab at the police
• 10:26
  Speaker 1: headquarters in Mexico City. They were there to observe Teodoro
• 10:30
  Speaker 1: Gonzalez demonstrate his new technique for testing gunpowder residue. The
• 10:35
  Speaker 1: test became known by many names, the dermal nitrate tests,
• 10:39
  Speaker 1: the glove tests, but my favorite might be the paraffin
• 10:43
  Speaker 1: gauntlet test. The officers watched as Gonzales poured white, hot
• 10:49
  Speaker 1: liquid paraffin wax over the fingers, hands, and wrists of
• 10:53
  Speaker 1: his lab assistant. A glimmer of discomfort flashed across the
• 10:57
  Speaker 1: assistant's eyes as the hot wax code his skin. Next,
• 11:02
  Speaker 1: Gonzales delicately wrapped the layer of cotton around the assistant's
• 11:06
  Speaker 1: fingers and hands. Layer after layer of wax, then cotton
• 11:10
  Speaker 1: were added until gloves began to form while the paraffin cooled.
• 11:16
  Speaker 1: Gonzales explained that after a suspect fires a gun, the
• 11:20
  Speaker 1: gunpowder residue becomes embedded deep in the pores of the skin.
• 11:25
  Speaker 1: Even weeks after a gun is fired. The hot melted
• 11:28
  Speaker 1: paraffin will open up the pores, mix with the oils
• 11:32
  Speaker 1: in the skin, and cause the pores to discharge the
• 11:35
  Speaker 1: gunpowder residue trapped within them. Part of this experiment included
• 11:41
  Speaker 1: Gonzalez's assistant firing a gun and then washing his hands
• 11:45
  Speaker 1: prior to them being wrapped. The American officers noted the
• 11:49
  Speaker 1: advantage of this technique, suspects couldn't simply wash their hands
• 11:54
  Speaker 1: and avoid detection. Gonzales delicately peeled the gloves from the
• 11:59
  Speaker 1: hands of his assistant and then took them over to
• 12:02
  Speaker 1: the lab table and gently laid them down. He measured
• 12:07
  Speaker 1: a small beaker of a chemical solution that contained sulfuric acid.
• 12:12
  Speaker 1: Drop by drop, he coated the interior of the gloves
• 12:15
  Speaker 1: with the mixture. Minutes later, dark blue specks the size
• 12:21
  Speaker 1: of pinpoints began to form, and Gonzales explained that these
• 12:25
  Speaker 1: blue dots indicated the presence of dermal nitrates from gunpowder residue.
• 12:32
  Speaker 1: The police officers huddled around the paraffin gloves to see
• 12:35
  Speaker 1: for themselves. After that, it took only a few years
• 12:39
  Speaker 1: for the paraffine test to become widely used in police
• 12:42
  Speaker 1: departments across the United States. Within three years of Gonzalez's demonstration,
• 12:49
  Speaker 1: it was used as forensic evidence in the murder trial
• 12:51
  Speaker 1: of James L. Westwood in Pennsylvania. At his trial, the
• 12:56
  Speaker 1: state called expert witnesses who testified the gunpowder rene was
• 13:00
  Speaker 1: present on Westwood's hands, indicating that it was he who
• 13:04
  Speaker 1: shot and killed his wife. But Westwood's defense attorney called
• 13:09
  Speaker 1: his own expert witnessed, a chemist who had conducted his
• 13:13
  Speaker 1: own study and found that thirteen different substances could also
• 13:18
  Speaker 1: cause the blue dots to appear on the paraffin gloves.
• 13:23
  Speaker 1: He cited things like ordinary soot, certain brands of toothpaste,
• 13:28
  Speaker 1: tobacco cigars, cigarette ashes, and different types of matches, but
• 13:33
  Speaker 1: none of that evidence mattered for the jury. Westwood was
• 13:37
  Speaker 1: convicted of the first degree murderer of his wife and
• 13:41
  Speaker 1: sentenced to life in prison. By nineteen sixty seven, a
• 13:46
  Speaker 1: wider study concluded that rust, colored fingernail polish, and residue
• 13:51
  Speaker 1: from evaporated urine, soap, and tapwater would all test positive.
• 13:56
  Speaker 1: Contact with any of these objects would create blue dots
• 14:00
  Speaker 1: to appear on the gloves in a paraffin test. The
• 14:04
  Speaker 1: paraffine test is no longer being used today, and the
• 14:07
  Speaker 1: signs behind testing gunshot residue has changed. By the time
• 14:12
  Speaker 1: Allan was arrested in nineteen ninety four, at sixteen years old,
• 14:16
  Speaker 1: officers used a new version of the test. It's called
• 14:19
  Speaker 1: the atomic absorption test, but that test has many of
• 14:23
  Speaker 1: the same reliability problems as the paraffin glove.
• 14:30
  Speaker 2: None of the evidence that was used to convict Alan
• 14:33
  Speaker 2: has withstood the test of time. The test used to
• 14:37
  Speaker 2: indicate that he had gunshot residue on his hands is
• 14:40
  Speaker 2: no longer considered reliable.
• 14:42
  Speaker 1: So joining us today is Joanna Sanchez and she's from
• 14:46
  Speaker 1: the Wrongful Conviction Project at the Office of the Ohio
• 14:49
  Speaker 1: Public Defender and we're super excited to have her today.
• 14:52
  Speaker 1: She's currently representing Alan, whose story we talked about at
• 14:56
  Speaker 1: the beginning of this episode. Now, Alan Allan's full name
• 15:01
  Speaker 1: is Raymond Carl Allan Warren, and Joanna might refer to
• 15:05
  Speaker 1: him as either Alan or Raymond, but don't get confused, okay,
• 15:08
  Speaker 1: because Raymond and Alan are the same person. So Joanna,
• 15:12
  Speaker 1: it's great to have you here today and I'd like
• 15:15
  Speaker 1: you to start by telling us a little bit about Alan.
• 15:18
  Speaker 1: What was he like as a sixteen year old living
• 15:21
  Speaker 1: in Dayton, Ohio.
• 15:22
  Speaker 2: Alan was, by all accounts, a normal teenager. He had
• 15:27
  Speaker 2: a few brothers and he's very close with them. He's
• 15:29
  Speaker 2: close with his mother, very close with his grandmother. You know,
• 15:33
  Speaker 2: had lots of friends in the neighborhood, would spend time
• 15:36
  Speaker 2: with them. Alan loves working on cars, so that was
• 15:40
  Speaker 2: something he spent a lot of time doing, both fixing
• 15:43
  Speaker 2: cars and painting them, playing basketball. And now you know,
• 15:50
  Speaker 2: I've known him now for six years. He's a very engaging,
• 15:53
  Speaker 2: caring person, very talkative, has strong relationships with his family
• 15:58
  Speaker 2: and friends.
• 15:58
  Speaker 1: Still, so I want to get into the details of
• 16:01
  Speaker 1: the crime a little bit. So police officers arrive on
• 16:05
  Speaker 1: Allen Street the night when he had been fixing his
• 16:08
  Speaker 1: moped and this green car had crashed into the side
• 16:11
  Speaker 1: of a house and the driver is shot. So what
• 16:14
  Speaker 1: makes them even decide to go after Allan as a
• 16:17
  Speaker 1: suspect in the first place?
• 16:20
  Speaker 2: So I think it's a matter of circumstance. The boys,
• 16:23
  Speaker 2: they worked on their scooters for a period of time
• 16:25
  Speaker 2: after they heard the gunshots, and then in order to
• 16:28
  Speaker 2: go home, Alan had to essentially go through the crime
• 16:30
  Speaker 2: scene because it happened on the street he was living
• 16:33
  Speaker 2: on with his grandma's. So Alan that night told the
• 16:37
  Speaker 2: police about this encounter with the victim, and the police
• 16:41
  Speaker 2: asked him if he was willing to come down to
• 16:42
  Speaker 2: the police station to give a statement. So he voluntarily
• 16:46
  Speaker 2: went to the police station and also voluntarily submitted to
• 16:51
  Speaker 2: a gunshot residue test. And the result of that gunshot
• 16:55
  Speaker 2: residue test was that Alan tested negative on his left
• 16:59
  Speaker 2: hand even though he's left handed, and the palm of
• 17:03
  Speaker 2: his right hand, though, tested positive for two elements that
• 17:06
  Speaker 2: are known to be in gunshot residue. And I honestly
• 17:09
  Speaker 2: think once that gunshot residue test came back, they just
• 17:13
  Speaker 2: became laser focused on Alan.
• 17:15
  Speaker 1: So tell us a little bit about that test. What
• 17:18
  Speaker 1: exactly did gunshot residue testing entail at the time when
• 17:22
  Speaker 1: Alan went down to that police station.
• 17:25
  Speaker 2: So, gunshot residue testing, the idea behind it is that
• 17:28
  Speaker 2: one a person shoots a firearm, particles will be admitted
• 17:32
  Speaker 2: that will land on their clothing, or their hands or
• 17:36
  Speaker 2: their face, and that those particles can then be tested.
• 17:40
  Speaker 2: You can't see them, but they can be tested and
• 17:42
  Speaker 2: tell the please something about whether the person being tested
• 17:45
  Speaker 2: might have shot a firearm. All gunshot residue testing is
• 17:49
  Speaker 2: not a simple yes or no test. This is gunshot
• 17:52
  Speaker 2: residue or it's not. What it's really testing for is
• 17:55
  Speaker 2: the elements that are known to make up gunshot residue.
• 17:59
  Speaker 2: So specific they test for three elements in most circumstances,
• 18:03
  Speaker 2: and that's lead, barium, and antimony. In Raymond's case, they
• 18:08
  Speaker 2: actually only tested for two of those elements, and what
• 18:12
  Speaker 2: they used was an atomic absorption test, which is now
• 18:15
  Speaker 2: largely out of use, and that's because it has a
• 18:18
  Speaker 2: high risk of producing false positives. So the reason the
• 18:22
  Speaker 2: AA test is unreliable is because it tests for elements
• 18:25
  Speaker 2: that are also present in items that are completely unrelated
• 18:29
  Speaker 2: to guns. So as a result, a person who's never
• 18:32
  Speaker 2: touched or been near a gun could falsely test positive.
• 18:36
  Speaker 1: So Joanna, give us an example. What are some things
• 18:39
  Speaker 1: that Alan might have touched that would make him test
• 18:42
  Speaker 1: positive for gunshot residue.
• 18:45
  Speaker 2: Brake linings are one example of an item that has
• 18:48
  Speaker 2: the same elements as gunshot residue, and on the night
• 18:52
  Speaker 2: of the shooting, as we know, Raymond, who frequently was
• 18:55
  Speaker 2: working on cars, had contact with brake linings while he
• 18:59
  Speaker 2: fixed his motorized scooter. So the AA test as used
• 19:03
  Speaker 2: in Raymond's case is problematic because we can't know if
• 19:08
  Speaker 2: those two elements came from gunshot residue or if they
• 19:11
  Speaker 2: came from brake linings or some other substance that has
• 19:15
  Speaker 2: those same elements as gunshot residue.
• 19:18
  Speaker 1: So you mentioned that the AA test, the atomic absorption
• 19:22
  Speaker 1: test that was used on Allen, is not really considered
• 19:26
  Speaker 1: any more to be dependable, but they're still using gunshot
• 19:31
  Speaker 1: residue as a form of evidence, just with new tests.
• 19:34
  Speaker 1: Has signs progressed in any significant way since the AA test.
• 19:39
  Speaker 2: Gunshot residue testing generally has progressed somewhat. The AA test
• 19:44
  Speaker 2: is no longer really in favor because of its limitations,
• 19:48
  Speaker 2: and there was a switch over in the mid two
• 19:51
  Speaker 2: thousands to a test called SEMEDS, and that test was
• 19:57
  Speaker 2: better in that it not only would tell an analyst
• 20:00
  Speaker 2: whether those elements were present, but also could tell them
• 20:04
  Speaker 2: the shape and size of the elements and sort of
• 20:06
  Speaker 2: how they function together, whether they were fused, whether they
• 20:09
  Speaker 2: were the shape of a sphere, all things that would
• 20:12
  Speaker 2: be important for distinguishing between gunshot residue and let's say
• 20:15
  Speaker 2: another substance. And so in order for an analyst to
• 20:19
  Speaker 2: have any confidence that something is actually gunshot resume, they'd
• 20:23
  Speaker 2: need to do that sort of morphological analysis and also
• 20:27
  Speaker 2: compare all of the elements in that gunshot resdue sample
• 20:31
  Speaker 2: with all of the elements in other substances so that
• 20:34
  Speaker 2: they can actually eliminate other items.
• 20:36
  Speaker 1: Okay, So that sounds like it does have the potential
• 20:39
  Speaker 1: to be a more accurate test because you're able to
• 20:42
  Speaker 1: look at the residue under a microscope and tell that
• 20:45
  Speaker 1: the molecules actually come from a gun and can't be
• 20:49
  Speaker 1: from anywhere else. But is this a perfect fix?
• 20:53
  Speaker 2: Even if that's done properly, there's still a second issue
• 20:56
  Speaker 2: with gunshot resdue testing, and that's the reason why the
• 21:00
  Speaker 2: scientific community has really pulled back from this testing, and
• 21:03
  Speaker 2: that issue is contamination. So gunshot residue is incredibly transferable.
• 21:09
  Speaker 2: It's very easy to pick it up by touching a
• 21:12
  Speaker 2: surface that's contaminated with gunshot residue. So if I were
• 21:16
  Speaker 2: to shoot a gun and shake your hand, you could
• 21:20
  Speaker 2: very likely test positive for gunshot residue and with that,
• 21:24
  Speaker 2: that creates just too big of a risk for environmental contamination.
• 21:28
  Speaker 3: And what it.
• 21:28
  Speaker 2: Means is that, you know, people who touch the back
• 21:31
  Speaker 2: of police cars, handcuffs, police officers, police stations, there's a
• 21:36
  Speaker 2: good chance they could pick up gunshot residue from those surfaces,
• 21:40
  Speaker 2: even though they themselves never touched a gun. And we
• 21:43
  Speaker 2: know that happened in Raymond's case because he was transported
• 21:46
  Speaker 2: to the police station in the back of a police
• 21:48
  Speaker 2: car and then held in an interrogation room for several
• 21:51
  Speaker 2: hours before he was actually tested. If on the call
• 21:54
  Speaker 2: before that police officer had taken somebody who shot a
• 21:57
  Speaker 2: gun down to the police station, that person could have
• 22:00
  Speaker 2: left gunshot resdue there and then Alan gets in the
• 22:03
  Speaker 2: car and picks it up. And there have been studies
• 22:06
  Speaker 2: across the country that show that kind of thing occurs.
• 22:09
  Speaker 2: So there is a study in Colorado where they tested
• 22:12
  Speaker 2: I think forty police cars excuse me, twenty six police
• 22:16
  Speaker 2: cars and they found gunshot residue particles and fourteen of them.
• 22:19
  Speaker 2: So this kind of transference is very common, unfortunately.
• 22:24
  Speaker 1: So and you know, in hearing this, I got to
• 22:27
  Speaker 1: tell you, this is like it's startling, it's scary. And
• 22:31
  Speaker 1: you initially start to think, well, how many people might
• 22:35
  Speaker 1: have been wrongfully convicted when the evidence in their case
• 22:39
  Speaker 1: was just gunshot residue on their hands. I mean, you
• 22:44
  Speaker 1: have to admit it's pretty compelling evidence for people that
• 22:47
  Speaker 1: don't know otherwise. And I mean what I mean for
• 22:49
  Speaker 1: people that don't know otherwise, I'm talking about jurors. So
• 22:53
  Speaker 1: with that in mind, how big of a role did
• 22:55
  Speaker 1: faulty gunshot residue evidence plane Allen's case?
• 23:00
  Speaker 2: The gunshot residue evidence here was critical in Alan's trial.
• 23:04
  Speaker 2: The examiner when he testified, what he said was that
• 23:07
  Speaker 2: this positive test means one of three things. Either Alan
• 23:11
  Speaker 2: shot a gun, Alan was a victim of a shooting,
• 23:14
  Speaker 2: or Alan handled ammunition. We we know he wasn't a victim,
• 23:18
  Speaker 2: and both of the other options still implicate him, whether
• 23:22
  Speaker 2: he's shooting a gun or handling ammunition. What the examiner
• 23:26
  Speaker 2: left out is the fourth possibility that this is contamination
• 23:30
  Speaker 2: and the fifth possibility, which is that it's not gunshot
• 23:33
  Speaker 2: residue at all. It could just be barium and antimony
• 23:36
  Speaker 2: on Alan's hands as a result of him having contact
• 23:40
  Speaker 2: with brake linings earlier that night, and that is the
• 23:44
  Speaker 2: entire scope of the physical evidence in this trial.
• 23:58
  Speaker 1: So as a result of this gives gunshot residue evidence,
• 24:02
  Speaker 1: Alan gets sentenced to fifteen years to life. He's only
• 24:05
  Speaker 1: seventeen years old. I mean, what options did he have
• 24:08
  Speaker 1: to seek recourse? How would one go about proving that
• 24:13
  Speaker 1: gunshot residue evidence is false.
• 24:17
  Speaker 2: It's incredibly difficult for anybody who's incarcerated to collect the
• 24:21
  Speaker 2: evidence or knowledge necessary to file a new trial motion
• 24:26
  Speaker 2: or raise a claim that they were wrongfully convicted. So
• 24:29
  Speaker 2: part of that is he's locked inside, so he can't
• 24:33
  Speaker 2: go out and conduct any sort of investigation. He lacks
• 24:36
  Speaker 2: the funds, so he doesn't have the ability to hire
• 24:40
  Speaker 2: an attorney or an investigator or an expert witness to
• 24:43
  Speaker 2: go get this evidence. Alan was challenged and that he
• 24:46
  Speaker 2: couldn't even get the records in his case. So if
• 24:49
  Speaker 2: he wanted to write a motion for a few years,
• 24:51
  Speaker 2: he did not even have a copy of his transcript
• 24:53
  Speaker 2: that would have helped him to do that. So there
• 24:55
  Speaker 2: are so many barriers. He's a smart guy, but he's
• 24:59
  Speaker 2: not an attorney. I mean, that's why we say people
• 25:01
  Speaker 2: should have attorneys to litigate these complex issues. Is incredibly difficult,
• 25:06
  Speaker 2: and it's all the more so for somebody who's a
• 25:09
  Speaker 2: teenager and they're incarcerated. They don't have access to these things.
• 25:14
  Speaker 2: And so he fought on his own for years and
• 25:18
  Speaker 2: years to try to challenge his conviction. The kind of
• 25:22
  Speaker 2: changes and evolution with gunshot residue was happening, but he
• 25:26
  Speaker 2: did not really know that. He didn't have access to
• 25:29
  Speaker 2: forensic science articles or expert witnesses, so he wasn't even
• 25:33
  Speaker 2: aware that that was necessarily an issue in his case.
• 25:37
  Speaker 2: And eventually, in nineteen ninety nine, Chantey Hunt gave a
• 25:41
  Speaker 2: statement and said, I lied because I was scared. Alan
• 25:46
  Speaker 2: was with us when we heard the shots, so he
• 25:48
  Speaker 2: could not have shot the victim. And in two thousand
• 25:52
  Speaker 2: and eight, Antonio gave a very similar statement saying, again,
• 25:56
  Speaker 2: I was scared, and this is a lie, and I
• 25:59
  Speaker 2: did not come for all these years because I was
• 26:01
  Speaker 2: scared of purgery charges.
• 26:03
  Speaker 1: Now the Innocence Project has become involved in Allen's case,
• 26:07
  Speaker 1: and you and your co counsel are fighting to get
• 26:10
  Speaker 1: Allan justice. But as our listeners know by now, as
• 26:14
  Speaker 1: I'm sure you and I can agree, this problem is
• 26:17
  Speaker 1: so much bigger than Alan's case, what needs to happen,
• 26:20
  Speaker 1: in your opinion, to make sure things like gunshot residue
• 26:23
  Speaker 1: evidence stop being used to convict innocent people so that
• 26:28
  Speaker 1: this doesn't happen again and again and again.
• 26:32
  Speaker 2: I think police officers and lab examiners should be careful
• 26:35
  Speaker 2: about when they do gunshot resdue testing and only do
• 26:39
  Speaker 2: it in the very optical circumstances, if at all. I
• 26:43
  Speaker 2: think there are some police officers who feel that it's
• 26:46
  Speaker 2: just a piece of the puzzle and it's a helpful
• 26:48
  Speaker 2: tool and the investigation. But I think the risk with
• 26:51
  Speaker 2: that is that it leads to tunnel vision. You know,
• 26:54
  Speaker 2: once you have that piece of evidence, you become fixated
• 26:57
  Speaker 2: on a suspect, and our courts, our judges, need to
• 27:00
  Speaker 2: look at it critically as well. The court is the
• 27:02
  Speaker 2: gatekeeper of expert testimony and forensic evidence that comes in,
• 27:08
  Speaker 2: and what we're seeing is that some courts are limiting
• 27:11
  Speaker 2: what can be said about gunshot rest of evidence, but
• 27:14
  Speaker 2: they're still allowing it in. And I think at some
• 27:16
  Speaker 2: point we hit a breaking point where the risk of
• 27:20
  Speaker 2: prejudice for this evidence outweighs the benefit of it because
• 27:24
  Speaker 2: it is so unreliable and so many different aspects that
• 27:29
  Speaker 2: are we risking swaying the jury with evidence that really
• 27:33
  Speaker 2: isn't reliable enough and shouldn't be presented at all all.
• 27:37
  Speaker 1: Right, So that certainly addresses what people involved in the
• 27:41
  Speaker 1: justice system can do, But what can every day people do.
• 27:45
  Speaker 1: We have a lot of our listeners asking us, you know,
• 27:49
  Speaker 1: what can I do to help? So please tell them
• 27:52
  Speaker 1: things they can do to make sure that this kind
• 27:55
  Speaker 1: of junk science stops being used and it gets out
• 27:59
  Speaker 1: of our criminal justice system once and for all.
• 28:03
  Speaker 2: I think the biggest thing is people sharing this information
• 28:07
  Speaker 2: and sharing podcasts like this, sharing when somebody is exonerated
• 28:12
  Speaker 2: based on forensic evidence that we now know has been discredited.
• 28:16
  Speaker 2: Is the more people that know about this, I think
• 28:18
  Speaker 2: the more the system will improve. I think the impact
• 28:21
  Speaker 2: of sharing this podcast and sharing his story is that
• 28:24
  Speaker 2: more people hear about it, and then they take that
• 28:27
  Speaker 2: knowledge with them when they vote, and they take that
• 28:30
  Speaker 2: knowledge with them when they interact with public officials and
• 28:34
  Speaker 2: ask them, how do you approach wrongful convictions? How do
• 28:37
  Speaker 2: you approach forensic science? Are their laws in place that
• 28:40
  Speaker 2: allow for these convictions to be challenged appropriately? And I
• 28:45
  Speaker 2: think having the knowledge that's gained from listening to a
• 28:49
  Speaker 2: podcast like this equips people with the sort of the
• 28:53
  Speaker 2: talking points and the ability to ask those questions of
• 28:56
  Speaker 2: public officials.
• 28:58
  Speaker 1: So tell us a little bit about where Ellen is
• 29:00
  Speaker 1: now and what options are left for him at this point.
• 29:04
  Speaker 2: Now, Alan had litigated emotion asking for a new trial,
• 29:08
  Speaker 2: and we stepped into that litigation on his behalf in
• 29:11
  Speaker 2: twenty fourteen, and it's kind of been up and down
• 29:15
  Speaker 2: through the courts over several years. But earlier this year
• 29:19
  Speaker 2: the Supreme Court of Ohio decided not to take his case.
• 29:23
  Speaker 2: So where we're at is we continue to fight for him,
• 29:26
  Speaker 2: and we believe strongly in his innocence and that he
• 29:29
  Speaker 2: was wrongfully convicted, and so we're moving forward. We're hoping
• 29:33
  Speaker 2: to find new evidence or hoping that a new avenue
• 29:37
  Speaker 2: of relief opens up that allows Alan to challenge his
• 29:41
  Speaker 2: conviction and hopefully one day go home.
• 29:45
  Speaker 1: Look, Joanna, I my heart sort of you know, aches
• 29:49
  Speaker 1: for you and for Alan really because I have been
• 29:52
  Speaker 1: there before. I know that when cases you know, don't
• 29:56
  Speaker 1: work out, you know on our initial first try or
• 29:59
  Speaker 1: first fifteen tries and go the way we need them
• 30:03
  Speaker 1: to go. Because our clients are innocent and we know
• 30:05
  Speaker 1: they're innocent. It can be so frustrating. What's your reaction
• 30:09
  Speaker 1: when you have setbacks like this. I know that I've
• 30:14
  Speaker 1: wept on my wife's shoulder before, I know that I
• 30:18
  Speaker 1: have punched walls. I've had the spectrum of emotions. But
• 30:22
  Speaker 1: you know, tell me a little bit about what it's
• 30:24
  Speaker 1: like for you when you know you're faced with setbacks
• 30:27
  Speaker 1: like this, and you know what it's like with Alan
• 30:30
  Speaker 1: still sitting in prison.
• 30:33
  Speaker 2: I think the important thing we do is we kind
• 30:36
  Speaker 2: of keep moving forward and keep thinking about our clients,
• 30:40
  Speaker 2: keep thinking about Alan and what he's going through, And
• 30:43
  Speaker 2: it's so important that we stay in the fight and
• 30:46
  Speaker 2: continue to be a voice for those people. And I
• 30:49
  Speaker 2: hope one day it's not this way. But I know
• 30:51
  Speaker 2: for me, I look at all the two thousand plus
• 30:54
  Speaker 2: exonerations that we know about, and I see that those
• 30:57
  Speaker 2: are never easy, right. They come after set back, and
• 31:01
  Speaker 2: people have to try multiple different times, multiple different ways.
• 31:04
  Speaker 2: And so I hope that at some point in time
• 31:06
  Speaker 2: it doesn't have to be that way. But at least
• 31:08
  Speaker 2: for now, I know that it's absolutely worth it to
• 31:11
  Speaker 2: keep fighting for this person and to keep hoping that
• 31:14
  Speaker 2: one day something we do works and somebody pays attention
• 31:18
  Speaker 2: and that he gets the justice he's do.
• 31:26
  Speaker 1: You know, I tell people all the time that these
• 31:29
  Speaker 1: wrongful convictions are super difficult. You have to fight tall odds,
• 31:35
  Speaker 1: You have to keep on fighting forward in the face
• 31:37
  Speaker 1: of constant rejection from appellate courts. And if you're not
• 31:42
  Speaker 1: willing to deal with setbacks, if you can't pick yourself
• 31:45
  Speaker 1: up and dust yourself off and keep charging up that
• 31:47
  Speaker 1: steep slope, you're really in the wrong business. And it
• 31:51
  Speaker 1: really does take a team effort. So the more you
• 31:55
  Speaker 1: can share these stories, the better off we're all going
• 31:58
  Speaker 1: to be, because there's power in numbers, and there's power
• 32:01
  Speaker 1: in a collective message. So I hope you will do
• 32:04
  Speaker 1: just that. Please share our podcast and take action, whether
• 32:09
  Speaker 1: it be writing your local judges as I often implore
• 32:13
  Speaker 1: you all to do, or ensuring that when you vote,
• 32:17
  Speaker 1: you are voting for those judges and the jurisdiction which
• 32:20
  Speaker 1: you live that actually have the qualifications and the temperament
• 32:25
  Speaker 1: to be open minded and thorough such that they won't
• 32:29
  Speaker 1: blindly accept that legal precedent equates to reliability. Sometimes bad
• 32:36
  Speaker 1: science remains in our system of justice because it goes unchallenged.
• 32:40
  Speaker 1: It's up to all of us to shine a bright
• 32:43
  Speaker 1: light on these junk sciences and force a reckoning. Next week,
• 32:56
  Speaker 1: we'll explore the junk science of tool mark identification with
• 33:00
  Speaker 1: science journalist Tim Recorth. Wrongful Conviction Junk Science is a
• 33:05
  Speaker 1: production of Lava for Good Podcasts and association with Signal
• 33:08
  Speaker 1: Company Number One. Thanks to our executive producer Jason Flamm
• 33:12
  Speaker 1: and the team at Signal Company Number One executive producer
• 33:16
  Speaker 1: Kevin Wortis and senior producers Karen Kornhaber and Britz Spangler.
• 33:21
  Speaker 1: Our music was composed by Jay Ralph. You can follow
• 33:24
  Speaker 1: me on Instagram at Dubin dot Josh. Follow the Wrongful
• 33:27
  Speaker 1: Conviction podcast on Facebook and on Instagram at Wrongful Conviction
• 33:32
  Speaker 1: and on Twitter at wrong Conviction