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

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