Latest / Wrongful Conviction / #147 Wrongful Conviction: Junk Science - Bloodstain Pattern Evidence

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#147 Wrongful Conviction: Junk Science - Bloodstain Pattern Evidence · Wrongful Conviction

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Speaker 1: It's five pm, and you call your spouse. You say,
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Speaker 1: don't wait up, I'm gonna be working late. I love you,
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Speaker 1: I'll see when I get home. You've been married for
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Speaker 1: seven years and you have a good relationship. You bick
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Speaker 1: her from time to time. It's not perfect, but what
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Speaker 1: marriage is. You get home around eleven o'clock at night
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Speaker 1: and the front door is open, which is strange. It's
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Speaker 1: always locked when you come home late from work. You
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Speaker 1: walk in, toss your keys on the kitchen table, and
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Speaker 1: call out for your spouse. No response. You walk through
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Speaker 1: the living room towards your bedroom and you notice that
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Speaker 1: the lamp has been knocked over, the power cord has
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Speaker 1: been pulled from its socket. You walk down the hall
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Speaker 1: and shove your bedroom door open, and you're greeted by
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Speaker 1: a scene that is so horrific your mind can barely
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Speaker 1: comprehend what your eyes are taking in. There's blood everywhere.
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Speaker 1: It's on the carpet, the bed, on the wall, above
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Speaker 1: the dresser. Your spouse is on the floor, mouth open.
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Speaker 1: There's a large pool of blood coming from their head.
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Speaker 1: It's dark and thick, and as you move closer you
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Speaker 1: see that it's still pooling. The blood is still flowing
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Speaker 1: from somewhere. At this point, your body has gone into
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Speaker 1: some state of shock. You're drifting between consciousness and some paralyzing,
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Speaker 1: dreamlike state. You manage to call nine one one. You plead,
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Speaker 1: you scream, you cry for them to come right away.
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Speaker 1: You reach down and touch your spouse. You feel for
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Speaker 1: a pulse. You put your ear to their chest. There's
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Speaker 1: no movement, there's no sign of life. You lean down
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Speaker 1: and try to give them CPR. You don't even know
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Speaker 1: how long you've been doing it. You lose sense of time,
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Speaker 1: but eventually you hear sirens. They're blaring, and all of
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Speaker 1: a sudden, there's chaos. The room is filled with people.
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Speaker 1: A paramedic puts a hand on your shoulder and says,
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Speaker 1: let us start working here, and pulls you into another room.
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Speaker 1: Then they tell you what you already know but don't
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Speaker 1: want to admit. Your spouse is dead. You're not crying,
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Speaker 1: You're heaving, trying to catch your breath. The police try
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Speaker 1: to console you. They tell you they're sorry, but that
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Speaker 1: you have to try to calm down. They need to
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Speaker 1: figure out what happened, and they need your help. You're
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Speaker 1: in no state to drive, you're put into the back
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Speaker 1: of a police car. When you get to the police station,
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Speaker 1: a detective comes in with a sweatshirt and sweatpants, and
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Speaker 1: he says, take off your clothes and put these on.
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Speaker 1: You're somewhat relieved to get out of your clothes, which
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Speaker 1: are soaked with your spouse's blood. A different detective comes
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Speaker 1: in and she asks you how you got blood on
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Speaker 1: the backside of your pants. Where were you standing when
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Speaker 1: you got blood on the cuff of your shirt, on
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Speaker 1: your sock. You don't know the answer to these questions.
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Speaker 1: It was all such a blur. Over the next several weeks,
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Speaker 1: you're asked to come down to the police station over
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Speaker 1: and over again. The detective's questions become more aggressive, and
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Speaker 1: it's becoming quite obvious that they suspect you did this.
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Speaker 1: You were eventually charged with the first degree murder of
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Speaker 1: your spouse. At your trial, the prosecution calls to the
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Speaker 1: stand a blood stained pattern analyst. That expert gets on
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Speaker 1: the stand and tells the jury that the story of
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Speaker 1: the murder of your spouse is soaked into the blood
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Speaker 1: of the clothes you were wearing when the night the
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Speaker 1: crime was committed. The blood stain pattern analyst walks into
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Speaker 1: jury through each and every stain on your clothing. Droplet
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Speaker 1: by droplet, you see that stain. The defendant swung the
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Speaker 1: weapon at a ninety degree angle twice right into the
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Speaker 1: victim's head, which created the splatter pattern you see here
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Speaker 1: on his shirt, high velocity projected spatter. They tell the
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Speaker 1: jury no other explanation for it. They say that the
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Speaker 1: stain on your sock was dropped from your bloody hand
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Speaker 1: as you held the murder weapon. They never tell the
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Speaker 1: jury what the murder weapon actually was, and they never
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Speaker 1: recovered that object. They just tell the jury that you
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Speaker 1: must have gotten rid of it right before you stage
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Speaker 1: the nine to one one call. The expert says that
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Speaker 1: they've examined the blood drops, the stains, the puddles, the pools,
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Speaker 1: and they're able to reconstruct precisely how you committed this murder,
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Speaker 1: the angle at which you swung the weapon, the force
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Speaker 1: with which you inflicted the blows, and where your spouse
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Speaker 1: was standing when they were beaten to death. The stains
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Speaker 1: proved that you did not perform CPR. You did not
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Speaker 1: check for a pulse, because if you had, there would
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Speaker 1: not be this spray pattern. That's projected onto your shirt.
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Speaker 1: These stains all indicate that you committed this murder. You
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Speaker 1: glance over at the jury. Most are taking rigorous notes.
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Speaker 1: One is so taken, so wrapped that he stopped taking
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Speaker 1: notes altogether and just sits staring at the expert, covering
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Speaker 1: his mouth with his hand. You look over at your
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Speaker 1: defense attorney and think, how in the world is this happening.
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Speaker 1: I'm Josh dubin civil rights and criminal defense attorney and
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Speaker 1: Innocent Ambassadors in the Innocence Project in New York. Today
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Speaker 1: on wrongful conviction junk science, We're going to explore bloodstained
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Speaker 1: pattern evidence. Like other forms of junk science used in
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Speaker 1: criminal trials, bloodstained pattern evidence falsely claims that it can
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Speaker 1: identify the culprit of violent crimes. But blood stained pattern
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Speaker 1: evidence has no grounding in any verifiable science. So how
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Speaker 1: did this kind of junk science become admissible? It turns
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Speaker 1: out that blood stained pattern analysis was born in the
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Speaker 1: basement of one man's home in a small town named Corning,
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Speaker 1: New York. When I think of Herbert MacDonnell, I wonder
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Speaker 1: what his neighbors must have thought of him. I imagine
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Speaker 1: one of his curious neighbors startled by the sound she's
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Speaker 1: hearing from next door, tiptoeing over to his red house.
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Speaker 1: I imagine the neighbor crawling on her hands and knees
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Speaker 1: to peer into Herb's basement through a small window that
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Speaker 1: peeks out from underground. She finds herself going over there
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Speaker 1: day after day, half horrified, half intrigued by what she sees.
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Speaker 1: One day, she sees Herb aiming a gun at a dog.
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Speaker 1: He pulls the trigger, then walks over to examine the
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Speaker 1: blood sprayed onto the wall. Another day, Herb isn't alone.
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Speaker 1: There are some young women in lab coats in the basement.
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Speaker 1: They dip their hair into a thick red substance, then
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Speaker 1: they swing their heads around to make Jackson Pollock esque
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Speaker 1: splatters onto the paper covered walls. The next week, the
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Speaker 1: neighbor sees what appear to be dead bodies, and she's
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Speaker 1: got to be mistaken, But then she sees HERB take
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Speaker 1: aim shoot the lifeless body and blood slowly oozes onto
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Speaker 1: the basement floor. Herbert McDonnell actually used these techniques in
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Speaker 1: his basement, giving birth to the forensic science a bloodstained
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Speaker 1: pattern analysis. Herb was a chemist who worked for Corning Glassworks,
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Speaker 1: which makes corning wear casserole dishes. But his passion was
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Speaker 1: crime scenes, and so he doubled as a forensic professor
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Speaker 1: at a local community college. For Herb, every crime scene,
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Speaker 1: and particularly the blood stains left behind, told a story.
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Speaker 1: Not only did he believe the blood stains provide clues,
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Speaker 1: he took it much further than that. He believed that
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Speaker 1: he could re engineer the choreography of the crime just
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Speaker 1: from analyzing the blood stains. Herb styled himself as a
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Speaker 1: sort of modern day Sherlock Holmes. He even posed for
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Speaker 1: the cover of one of his books and the trademark
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Speaker 1: deer Stalker Hat and a Pipe. In nineteen seventy three,
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Speaker 1: Herbs started an unaccredited school right out of his basement.
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Speaker 1: He named it the Blood Stain Evidence Institute. It took
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Speaker 1: twelve years for Herb to get his moment to shine.
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Speaker 1: In January nineteen eighty five, four people were found dead
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Speaker 1: in their home. Twenty one year old Reginald Lewis was
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Speaker 1: accused of shooting his older brother, his younger thirteen years brother,
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Speaker 1: and his parents. Reginald's father was discovered on fire in
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Speaker 1: a hallway, having been shot and strangled. Before being set ablaze.
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Speaker 1: The Sherlock Holmes of Corney to New York. Herb MacDonald
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Speaker 1: testified as an expert witness in this case. He claimed
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Speaker 1: that dozens of tiny specks of blood on Reginald's clothing
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Speaker 1: placed him at the scene of the crime. Reginald Lewis
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Speaker 1: was convicted and sentenced to four ninety nine year sentences.
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Speaker 1: Herb's recognition continued to grow. In nineteen ninety five, even
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Speaker 1: testified for the defense of the oj Simpson trial. But
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Speaker 1: bloodstained pattern analysis was never proven to be a reliable
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Speaker 1: scientific method, and yet it continued to be admitted in
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Speaker 1: case after case after case, spreading its tentacles into the
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Speaker 1: criminal justice system in our country.
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Speaker 2: This is an entirely interpretive form of forensics. This involves
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Speaker 2: somebody viewing a pattern and then stating that, with their training,
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Speaker 2: that they are able to tell you how that pattern
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Speaker 2: was created, what the trajectory was of the blood, where
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Speaker 2: the wound was, where the bullet or knife was in
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Speaker 2: the room, and therefore who was wielding it and how,
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Speaker 2: which is a pretty incredible claim if you think about it.
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Speaker 1: Joining us today is Pamela Koloff, and Pam's a senior
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Speaker 1: reporter at Pro Publica and a staff writer from New
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Speaker 1: York magazine. So, Pam, when you really look into these
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Speaker 1: forensic sciences and see how they originated, I have to
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Speaker 1: say that in all of my work and researching various
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Speaker 1: disciplines of forensic science, blood spatter analysis has easily the
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Speaker 1: craziest story of them all. And you've researched this intensely.
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Speaker 1: I want you to tell us more about her. MacDonell,
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Speaker 1: the so called grandfather of blood spatter analysis.
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Speaker 2: His belief was, and what he sort of told generations
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Speaker 2: of police officers was that yes, bloodstain pattern analysis was
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Speaker 2: based on highly complex trigonometry and fluid dynamics, but that
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Speaker 2: they could master the skills to this in as little
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Speaker 2: as a forty hour class. And he began to teach
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Speaker 2: these classes all over America at local police departments and
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Speaker 2: did so for decades and in turn turned police officers
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Speaker 2: with no training in physics or high level of mathematics
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Speaker 2: into quote unquote experts.
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Speaker 1: So he turns these people with no training in physics
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Speaker 1: or mathematics into experts. You don't have any training in
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Speaker 1: physics or mathematics, and you took the class and became
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Speaker 1: an expert right.
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Speaker 2: I went to Yukon, Oklahoma, where the police department was
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Speaker 2: offering a week long class. I took it with about
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Speaker 2: twenty law enforcement officers, and I was stunned at what
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Speaker 2: I saw. We were sort of rubber stamped through just
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Speaker 2: the most basic basic concepts of bloodstained pattern analysis, and
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Speaker 2: we would have to identify stains according to this taxonomy
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Speaker 2: that the discipline has these particular kinds of spatters and
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Speaker 2: drips and spurts and swipes and smears. They have all
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Speaker 2: these different names for things. The final day of the
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Speaker 2: course where our instructor set up these sort of mock
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Speaker 2: crime scenes and he used blood to on sort of
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Speaker 2: like butcher paper to show us what bloodstains would look
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Speaker 2: like at a crime scene. And then our job, and
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Speaker 2: this is part of our final grade, was to come
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Speaker 2: in and just by looking at that no other clues,
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Speaker 2: no other context clues, use that to say what had
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Speaker 2: happened at the crime scene, and then to learn how
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Speaker 2: to say it on the stand in a way that
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Speaker 2: sounded like a scientist and like someone with scientific certainty.
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Speaker 2: And that to me was extremely disturbing.
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Speaker 1: Aside from what you witness in the class, tell me
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Speaker 1: like what is one thing that stood out to you
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Speaker 1: as something that seemed off about you know, what he
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Speaker 1: did or what he had.
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Speaker 2: Students do I know of several students who have shot
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Speaker 2: cadavers and controlled situations to look at the way that
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Speaker 2: blood moves. Now, think about the way that blood operates
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Speaker 2: within a cadaver versus a living person with a beating heart.
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Speaker 2: I mean, there's so many things about that that don't
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Speaker 2: make sense.
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Speaker 1: Right, So with a dead body or cadaver, it should
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Speaker 1: be common sense. There's no more blood flown through the veins, right,
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Speaker 1: the person isn't moving anymore, and there's a different viscosity
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Speaker 1: or thickness to the blood when someone is dead. So
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Speaker 1: all of this makes a difference in first how the
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Speaker 1: blood travels once the body is hit with an object,
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Speaker 1: whether it be a bullet or a bat, and then
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Speaker 1: the blood will also look different once it lands, doesn't
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Speaker 1: It all come down to there are a lot of
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Speaker 1: different ways that blood can get on a surface, and
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Speaker 1: you can't say definitively which way it happened.
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Speaker 2: That's exactly right, that's exactly right. The surface that blood
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Speaker 2: falls onto makes a tremendous difference in what you can
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Speaker 2: tell if you had a white all linoleum or marb room,
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Speaker 2: like a very controlled atmosphere like that, you might be
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Speaker 2: able to make some determinations about some things possibly, But
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Speaker 2: in real life, in a real crime scene, you usually
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Speaker 2: have blood falling onto porous things, carpet, clothing, things where
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Speaker 2: it becomes increasingly difficult to tell the angle that blood
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Speaker 2: fell onto those services at because they're so diffused when
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Speaker 2: they land on that material.
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Speaker 1: Yeah, I mean, there are some cases where blood spatter
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Speaker 1: analysts have been on video trying to recreate a stain
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Speaker 1: pattern from a crime and it takes them ten or
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Speaker 1: fifteen tries to get the stain to look similar to
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Speaker 1: how it looks at the crime scene or on the
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Speaker 1: close of the accuse. I mean, I saw one video
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Speaker 1: where they finally get it right right, They get it
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Speaker 1: to look like it did at the crime scene, after
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Speaker 1: try after try after try, and they start cheering and
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Speaker 1: high fiving. So if it's so hard to tell how
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Speaker 1: a blood stain got where it did, then what kinds
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Speaker 1: of consequences will that have for someone that's been accused
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Speaker 1: of a violent crime.
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Speaker 2: A common example I've seen this many times is there's
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Speaker 2: a spouse who commits suicide, who shoots themselves, and the
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Speaker 2: other spouse discovers the person who is shot, rushes over
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Speaker 2: to the person, cradles them, tries to give them first aid,
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Speaker 2: and in the process gets blood on them. And what
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Speaker 2: I saw again and again is if someone who's injured
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Speaker 2: expels blood from their mouth or their nose onto another
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Speaker 2: person's clothing, right they're coughing, they're struggling to breathe, that
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Speaker 2: pattern of blood looks very similar to the kind of
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Speaker 2: atomized blood that sprays when someone shot. And then an
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Speaker 2: analyst for the state will be brought in and we'll
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Speaker 2: give this very convoluted logic as to why that happened
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Speaker 2: during the commission of the crime. And then there becomes
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Speaker 2: this divergence of opinion of did the victim hold the
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Speaker 2: gun and fire this upon him or herself or was
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Speaker 2: it the spouse who fired the gun? And the claim
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Speaker 2: is that by looking at the way that the blood
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Speaker 2: is distributed at the crime scene, you know one hundred
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Speaker 2: percent what the answer to that is.
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Speaker 1: All right, Pam, you wrote a two part story entitled
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Speaker 1: Blood Will Tell And by the way, to our listeners,
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Speaker 1: if you haven't read about this case, you absolutely should.
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Speaker 1: We'll link to the article in our show notes. It
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Speaker 1: is a fascinating, fascinating piece that Pam wrote for Pro
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Speaker 1: Publica and again it's entitled blood will Tell the Joe
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Speaker 1: Brian Story, and it tells the story of various ways
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Speaker 1: bloodstained pattern analysis can go off the rails. And I
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Speaker 1: want to say that it has a happy ending, but
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Speaker 1: it's a tragedy really right. I mean, you have a
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Speaker 1: man that was loved by everybody. He's a high school principal.
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Speaker 1: He spent thirty three years in prison for the murder
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Speaker 1: of his wife, and you know your story. Pam was
18:35
Speaker 1: like the driving force, if not the critical driving force
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Speaker 1: behind getting him out of prison. So please tell us
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Speaker 1: about the Joe Brian case.
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Speaker 2: Joe Brian was a beloved high school principal in a
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Speaker 2: little Texas town called Clifton, Texas. And in nineteen eighty five,
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Speaker 2: when he was by all accounts out of town one
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Speaker 2: hundred and twenty miles away in Austin at an education conference,
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Speaker 2: his wife was shot and killed in their home and
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Speaker 2: this was initially investigated as a robbery gone wrong. And
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Speaker 2: about a week after the murder, a flashlight was discovered
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Speaker 2: in the trunk of Joe's car that had tiny, tiny
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Speaker 2: specks of blood on it, and there was no blood
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Speaker 2: found in the car or anything like that. And who
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Speaker 2: this blood belonged to, whether it was even human blood,
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Speaker 2: all of this was unknown. But the state took this
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Speaker 2: and they brought in a bloodstained pattern analyst, a local
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Speaker 2: cop who'd had forty hours of training, and he, through
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Speaker 2: his testimony, connected that flashlight and the spatter pattern on
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Speaker 2: the flashlight to the crime scene. He said this could
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Speaker 2: only have happened at the crime scene, and his theory
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Speaker 2: of the case was that Joe had held the flashlight
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Speaker 2: in one hand a gun in the other. He'd shot
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Speaker 2: his wife, Mickey. The blood had gotten onto the splashlight,
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Speaker 2: and this was proof that he was guilty of murder.
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Speaker 2: How this man, who would have been bloodied, how did
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Speaker 2: he drive off in this car that was absolutely pristine,
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Speaker 2: was explained away by the expert, who said things like,
20:29
Speaker 2: after he killed her, he completely changed his clothes and
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Speaker 2: he changed his shoes, and that's why the interior of
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Speaker 2: the car was clean. But he made this error and
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Speaker 2: put this in the truck and that was enough. I mean,
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Speaker 2: this is a man. There was no motive no physical evidence,
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Speaker 2: he was many counties away, he was in a different
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Speaker 2: place the night of the crime, but that expert testimony
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Speaker 2: from that cop was enough to get a murder conviction
21:00
Speaker 2: life sentence.
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Speaker 1: I mean, it's so difficult to listen to this, and
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Speaker 1: I wish I could say that I'm sitting here, you know, shocked,
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Speaker 1: and was able to tell you what. I've never heard
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Speaker 1: of a case like that before, where you know, the
21:15
Speaker 1: accused is actually in a different town altogether. But unfortunately
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Speaker 1: I've heard this before. This happens to many defendants or
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Speaker 1: people that are accused of crimes they didn't commit. Was
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Speaker 1: Joe ever exonerated?
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Speaker 2: So Joe was not exonerated, He was parolled and the
21:34
Speaker 2: state of his case. He had an evidentiary hearing in
21:39
Speaker 2: twenty nineteen with some really really compelling testimony that suggested
21:46
Speaker 2: not only his innocence but a possible other perpetrator. In Texas,
21:51
Speaker 2: we have something called a junk science writ which is
21:54
Speaker 2: fairly unusual, but it allows somebody to take bad evidence,
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Speaker 2: junk science that's been allowed into their case and to
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Speaker 2: try to get the courts to take a second look
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Speaker 2: at their case because of that. And so he's been
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Speaker 2: parolled and is still fighting to prove his innocence. Joe
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Speaker 2: turns eighty later this year. He's had congestive heart failure
22:22
Speaker 2: for numerous years. His health is not good, and the
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Speaker 2: Texas Board of Pardons and Paroles finally decided to release
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Speaker 2: him in March, and he is now at home with
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Speaker 2: his brother. He's got an ankle monitor for a couple
22:38
Speaker 2: more months, and then he'll go back to life as
22:42
Speaker 2: much as it can be normal after thirty three years
22:45
Speaker 2: behind bars.
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Speaker 1: I mean a lot of people always say they hear
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Speaker 1: about this work of helping the wrongfully incarcerated, but they
22:55
Speaker 1: hear about it when it's too late, you know, after
22:57
Speaker 1: they have lost decades and decades of their lives. Oftentimes
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Speaker 1: their lives have been utterly destroyed. I mean, you know,
23:05
Speaker 1: you read the stories about them getting out, but take
23:08
Speaker 1: it from me, having worked with scores of exoneries, not
23:14
Speaker 1: only my clients, but some of the innocence projects other clients,
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Speaker 1: they're just never the same. The psychological damage of being
23:23
Speaker 1: you know, confined to this narrow space, and all of
23:26
Speaker 1: the horrors of prison that you hear about that happen
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Speaker 1: to these people, and then on top of it being
23:32
Speaker 1: in there for something you didn't do. I mean, there
23:34
Speaker 1: have been studies about how it inflicts even more psychological
23:39
Speaker 1: damage on people to be in there for something that
23:41
Speaker 1: you didn't do, and the lost years just can't be replaced.
23:46
Speaker 1: No amount of money is going to make that pain
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Speaker 1: go away, no matter how much compensation they get. And
23:53
Speaker 1: yet these wrongful convictions just continue being propelled by junk science.
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Speaker 1: It's just astounding.
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Speaker 2: I was flabbergasted when working on this story and trying
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Speaker 2: to find, well, where where is the research that backs
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Speaker 2: up all these claims that people are making on the stand,
24:13
Speaker 2: Where's the academic work that's been done, where is the anything.
24:20
Speaker 2: This is a discipline that when you look at sort
24:24
Speaker 2: of the fundamentals of how do you prove reliability, no
24:29
Speaker 2: one can quote an error rate, There are no markers
24:33
Speaker 2: that show that this is something that holds up under
24:36
Speaker 2: any kind of scrutiny. And so this idea that we
24:41
Speaker 2: can not just look at blood as a clue as
24:46
Speaker 2: we would at many, many, many things in a crime
24:48
Speaker 2: scene to help us figure out what happened, but as
24:52
Speaker 2: something in which you can entirely independent even of any
24:56
Speaker 2: other evidence, reconstruct the crime itself quickly leads you into
25:01
Speaker 2: wrongful conviction territory.
25:15
Speaker 1: I want our listeners to be rest assured that we're
25:18
Speaker 1: not just throwing around this term junk science haphazardly. Just
25:24
Speaker 1: to be crystal clear, there has been extensive research on
25:29
Speaker 1: the effectiveness and the accuracy of bloodstained pattern analysis, and
25:34
Speaker 1: this will become somewhat of a drum beat in our series.
25:38
Speaker 1: We're going to continue to go back to this study
25:40
Speaker 1: that was done in two thousand and nine by the
25:42
Speaker 1: National Academy of Sciences, and they issued a report after
25:47
Speaker 1: examining various disciplines of forensic science that are used in
25:51
Speaker 1: courtrooms across the country, everything from fingerprints to footwear impressions,
25:56
Speaker 1: to bite marks and of course bloodstains right PAM.
26:00
Speaker 2: The National Academy of Science is actually made up of
26:03
Speaker 2: scientists who publish peer reviewed work and who were involved
26:10
Speaker 2: in research with real scientific integrity, and they set the
26:16
Speaker 2: bar very, very high, and they have long been extremely
26:21
Speaker 2: critical of bloodstained pattern analysis and really cautioning courts to
26:29
Speaker 2: not consider this a science with the sort of accuracy
26:34
Speaker 2: as for example, some DNA testing or toxicology, where you
26:40
Speaker 2: really you have numbers and certainty to work.
26:43
Speaker 1: With, so outside of DNA, the NAS study was really
26:49
Speaker 1: critical of all of these other disciplines of forensic science.
26:53
Speaker 1: And what it's said about blood spatter analysis is this quote,
26:57
Speaker 1: the capable analysts must possess an understanding of applied mathematics, physics,
27:03
Speaker 1: fluid transfer, wound pathology, and that this blood spatter analysis
27:08
Speaker 1: is more subjective than substantive. So this report should have
27:13
Speaker 1: been a bombshell in the forensic science community, and it
27:16
Speaker 1: really should have changed our court system. I mean, why
27:18
Speaker 1: do you think it is that you have some of
27:21
Speaker 1: the leading scientists in the country so critically rebuking all
27:26
Speaker 1: of these forensic disciplines, but courts don't seem to pay
27:29
Speaker 1: any attention to it.
27:31
Speaker 2: Judges are looking backward at precedent, and science is supposed
27:37
Speaker 2: to be looking forward each year we understand through scientific
27:43
Speaker 2: inquiry things like forensic science and its accuracy better and
27:47
Speaker 2: better and better. But the courts never looked at that.
27:50
Speaker 2: They just kept looking back blood stand pattern analysis, like
27:54
Speaker 2: so many of the disciplines that are identified in that
27:57
Speaker 2: report as being problematic, we're so so deeply entrenched in
28:03
Speaker 2: crime labs and across the country. You had experts in
28:07
Speaker 2: crime labs that were under local police departments where this
28:11
Speaker 2: was just this was the way it was done, So
28:14
Speaker 2: there was no effort on the part of law enforcement
28:17
Speaker 2: to change that. And for prosecutors, there was no incentive
28:21
Speaker 2: because a good bloodstained pattern analyst on the stand who's
28:25
Speaker 2: a phenomenal witness really connects with the jury and makes
28:30
Speaker 2: things sound very simple. That's gold that can make your case,
28:35
Speaker 2: and that can take a circumstantial case and move it
28:38
Speaker 2: from gray to black and white.
28:41
Speaker 1: So, like you said, many judges rule on a case
28:44
Speaker 1: based on precedent, and the President provides essentially the license
28:49
Speaker 1: for judges to accept bloodstain spatter analysis as evidence. But
28:54
Speaker 1: there was at least one judge who did pay attention
28:57
Speaker 1: to this study, and that was a federal judge that
28:59
Speaker 1: I know very well in Boston named Nancy Gertner. Nancy
29:04
Speaker 1: and I are actually co authors on a textbook together.
29:07
Speaker 1: I'll give a nice plug ear for the law of
29:09
Speaker 1: jurys in case anybody is aching to read a legal textbook.
29:13
Speaker 1: But tell us about what Judge Nancy Gertner did.
29:17
Speaker 2: I mean, she was and really sadly remains sort of
29:22
Speaker 2: a lone voice in the wilderness. She came out swinging
29:28
Speaker 2: and said that judges had to take a more active
29:32
Speaker 2: stand in being gatekeepers to this kind of evidence, and
29:37
Speaker 2: that they could not be letting junk science into the courtroom.
29:41
Speaker 2: And if we're going to continue to see some of
29:44
Speaker 2: the disciplines that the NAS report has identified as unreliable
29:50
Speaker 2: in our courtrooms, I want to hold admissibility hearings before
29:54
Speaker 2: we ever get to trial to decide whether we should
29:57
Speaker 2: allow this in. And that shouldn't have been a revolutionary idea,
30:02
Speaker 2: but it really was. And she was an outlier in
30:06
Speaker 2: this and got a lot of pushback from prosecutors about that.
30:12
Speaker 1: I mean, it's really shocking that she got pushback not
30:16
Speaker 1: just from prosecutors, but also from her colleagues or fellow judges.
30:22
Speaker 2: She is a hero, and I think that her insistence
30:26
Speaker 2: on something as basic as fairness being controversial is really disturbing.
30:37
Speaker 1: Life doesn't always imitate art, especially when it comes to bloodstains.
30:42
Speaker 1: It's important to remember that shows like Dexter and CSI
30:45
Speaker 1: or just entertainment, it isn't real life, and many of
30:49
Speaker 1: the techniques that we think are science are far from it.
30:54
Speaker 1: You might be listening to this wondering what you can
30:56
Speaker 1: do to make sure that junk signs like bloodstain pattern
30:59
Speaker 1: analysis stop being admitted into courts. In our show notes,
31:03
Speaker 1: we're attaching a link to the National Academy of Sciences
31:06
Speaker 1: report that we spoke about in this episode. Send it
31:09
Speaker 1: to your local criminal court judges. Give them something to
31:13
Speaker 1: think twice about before admitting this evidence in their courtroom.
31:18
Speaker 1: Something else you can always do is make sure that
31:20
Speaker 1: when you get called to jury service, you don't try
31:23
Speaker 1: to get out of it. You do it, and do
31:25
Speaker 1: it as a conscientious juror. When I pick a jury
31:29
Speaker 1: in a criminal case, one question I always ask is
31:32
Speaker 1: how many of you believe that my client must have
31:34
Speaker 1: done something wrong because they've been arrested and accused of
31:38
Speaker 1: a crime. More than half the hands in the room
31:41
Speaker 1: always go up. Remember these principles, let the presumption of
31:45
Speaker 1: innocence only work if we breathe life into them. Someone
31:50
Speaker 1: that is accused of a crime ought to be considered
31:53
Speaker 1: innocent all the way through the trial, all the way
31:57
Speaker 1: through your deliberations. They are wrapped in a cloak of innocence,
32:01
Speaker 1: like a warm blanket. It can never be torn from
32:05
Speaker 1: them unless the prosecution overcomes the highest burden in our
32:09
Speaker 1: justice system, which is proved beyond a reasonable doubt, you
32:13
Speaker 1: give the benefit of the doubt to the accused. Unfortunately,
32:19
Speaker 1: as I've seen time and time again, the presumption of
32:22
Speaker 1: innocence in this country is not a given. It is
32:25
Speaker 1: an ideal that we talk about, but we don't live
32:27
Speaker 1: up to. But by uncovering the lack of credibility of
32:31
Speaker 1: junk signs and our courts, we hope to get one
32:34
Speaker 1: step closer. Next week, we'll explore the junk Signs of
32:44
Speaker 1: Arson with Innocence Project co founder and famed civil rights
32:48
Speaker 1: and criminal defense attorney Barry Shk. Wrongful Conviction Junk Science
32:54
Speaker 1: is a production of Lava for Good Podcasts and association
32:57
Speaker 1: with Signal Company Number One. Thanks to our exactecutive producer
33:00
Speaker 1: Jason Flamm and the team at Signal Company Number one
33:04
Speaker 1: executive producer Kevin Wartis and senior producers Kerkornaber and Brit Spangler.
33:09
Speaker 1: Our music was composed by Jay Ralph. You can follow
33:13
Speaker 1: me on Instagram at Dubin dot Josh. Follow the Wrongful
33:16
Speaker 1: Conviction podcast on Facebook and on Instagram at Wrongful Conviction
33:21
Speaker 1: and on Twitter at wrong Conviction