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

0:01
Speaker 1: Hey, folks, Kate Judson here, I'm a lawyer and the
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Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
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Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty, but these stories are
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Speaker 1: just as relevant as ever. The episode you're about to
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Speaker 1: listen to is about bloodstain evidence, the inexact art of
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Speaker 1: figuring out where the source of blood came from and
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Speaker 1: how it got there. The key phrase here is art,
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Speaker 1: because it is far from being a science, and that
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Speaker 1: is something that is true of a lot of the
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Speaker 1: so called forensic sciences. Bloodstain patter analysis, in particular, is
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Speaker 1: so open to interpretation and guesswork that oftentimes the same
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Speaker 1: evidence can be analyzed a dozen times by a dozen
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Speaker 1: people and they'll reach a dozen different conclusions. And that
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Speaker 1: simply is not reliable science. In twenty twenty two, Jane
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Speaker 1: Derodic of San Diego, California, was exonerated of the two
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Speaker 1: two thousand and one murder of her husband. The original
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Speaker 1: analyst of the evidence, a man named Charles Merritt, claimed
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Speaker 1: to be an expert in this type of forensics, but
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Speaker 1: his abilities and his findings were called into question in
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Speaker 1: twenty twenty one, an expert who reviewed Merritt's work remarked
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Speaker 1: on his lack of basic blood stain knowledge, which was
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Speaker 1: apparent in his report and testimony. In fact, some of
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Speaker 1: the bloodstains that Merit attributed to the murder victim were
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Speaker 1: not blood at all, while other stains were not human blood,
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Speaker 1: having been caused long before by the family's dogs. This
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Speaker 1: case and the one you'll hear in the episode are
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Speaker 1: just two examples of bad forensic analysis and should lead
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Speaker 1: us all to question the reliability of this forensic art.
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Speaker 2: It's five PM and you call your spouse. You say,
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Speaker 2: don't wait up, I'm going to be working late. I
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Speaker 2: love you, I'll see you when I get home. You've
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Speaker 2: been married for seven years and you have a good relationship.
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Speaker 2: You bicker from time to time. It's not perfect, but
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Speaker 2: what marriage is. You get home around eleven o'clock at
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Speaker 2: night and the front door is open, which is strange.
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Speaker 2: It's always locked when you come home late from work.
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Speaker 2: You walk in, toss your keys on the kitchen table,
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Speaker 2: and call out for your spouse. No response. You walk
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Speaker 2: through the living room towards your bedroom and you notice
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Speaker 2: that the lamp has been knocked over. The power cord
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Speaker 2: has been pulled from its socket. You walk down the
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Speaker 2: hall and shove your bedroom door open, and you're greeted
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Speaker 2: by a scene that is so horrific your mind can
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Speaker 2: barely comprehend what your eyes are taking in. There's blood everywhere.
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Speaker 2: It's on the carpet, the bed, on the wall, above
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Speaker 2: the dresser. Your spouse is on the floor, mouth open.
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Speaker 2: There's a large pool of blood coming from their head.
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Speaker 2: It's dark and thick, and as you move closer you
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Speaker 2: see that it's still pooling. The blood is still flowing
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Speaker 2: from somewhere. At this point, your body has gone into
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Speaker 2: some state of shock. You're drifting between consciousness and some
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Speaker 2: paralyzing dreamlike state. You manage to call nine one one.
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Speaker 2: You plead, you scream, You cry for them to come
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Speaker 2: right away. You reach down and touch your spouse. You
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Speaker 2: feel for a pulse. You put your ear to their chest.
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Speaker 2: There's no movement, there's no sign of life. You lean
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Speaker 2: down and try to give them CPR. You don't even
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Speaker 2: know how long you've been doing it. You lose sense
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Speaker 2: of time, but eventually you hear sirens there blaring, and
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Speaker 2: all of a sudden, chaos the room is filled with people.
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Speaker 2: A paramedic puts a hand on your shoulder and says,
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Speaker 2: let us start working here, and pulls you into another room.
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Speaker 2: Then they tell you what you already know but don't
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Speaker 2: want to admit. Your spouse is dead. You're not crying,
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Speaker 2: You're heaving, trying to catch your breath. The police try
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Speaker 2: to console you. They tell you they're sorry, but that
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Speaker 2: you have to try to calm down. They need to
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Speaker 2: figure out what happened and they need your help. You're
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Speaker 2: in no state to drive. You're put into the back
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Speaker 2: of a police car. When you get to the police station,
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Speaker 2: a detective comes in with a sweatshirt and sweatpants, and
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Speaker 2: he says, take off your clothes and put these on.
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Speaker 2: You're somewhat relieved to get out of your clothes, which
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Speaker 2: are soaked with your spouse's blood. A different detective comes
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Speaker 2: in and she asks you how you got blood on
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Speaker 2: the back side of your pants. Where were you standing
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Speaker 2: when you got blood on the cuff of your shirt
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Speaker 2: on your sock. You don't know the answer to these questions.
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Speaker 2: It was all such a blur. Over the next several weeks,
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Speaker 2: you're asked to come down to the police station. Over
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Speaker 2: and over again. The detective's questions become more aggressive, and
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Speaker 2: it's becoming quite obvious that they suspect you did this.
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Speaker 2: You were eventually charged with the first degree murder of
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Speaker 2: your spouse. At your trial, the prosecution calls to the
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Speaker 2: stand a blood stain pattern analyst. That expert gets on
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Speaker 2: the stand and tells the jury that the story of
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Speaker 2: the murder of your spouse is soaked into the blood
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Speaker 2: of the clothes you were wearing when the night the
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Speaker 2: crime was committed. The blood stain pattern analyst walks the
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Speaker 2: jury through each and every stain on your clothing, droplet
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Speaker 2: by droplet, you see that stain. The defendant swung the
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Speaker 2: weapon at a ninety degree angle twice right into the
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Speaker 2: victim's head, which created the splatter pattern you see here
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Speaker 2: on his shirt high velocity projected spatter. They tell the
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Speaker 2: jury no other explanation for it. They say that the
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Speaker 2: stain on your sock was dropped from your bloody hand
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Speaker 2: as you held the murder weapon. They never tell the
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Speaker 2: jury what the murder weapon actually was, and they never
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Speaker 2: recovered that object. They just tell the jury that you
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Speaker 2: must have gotten rid of it right before you stage
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Speaker 2: the nine to one one call. The expert says that
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Speaker 2: they've examined the blood drops, the stains, the puddles, the pools,
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Speaker 2: and they're able to reconstruct precisely how you committed this murder,
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Speaker 2: the angle at which you swung the weapon, the force
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Speaker 2: with which you inflicted the blows, and where your spouse
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Speaker 2: was standing when they were beaten to death. The stains
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Speaker 2: proved that you did not perform CPR. You did not
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Speaker 2: check for a pulse, because if you had, there would
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Speaker 2: not be this bray pattern that's projected onto your shirt.
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Speaker 2: These stains all indicate that you committed this murder. You
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Speaker 2: glance over at the jury. Most are taking rigorous notes.
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Speaker 2: One is so taken so wrapped that he stopped taking
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Speaker 2: notes altogether and just sits staring at the expert, covering
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Speaker 2: his mouth with his hand. You look over at your
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Speaker 2: defense attorney and think, how in the world is this happening.
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Speaker 2: I'm Josh Dubin civil rights and criminal defense attorney and
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Speaker 2: Innocent Ambassadors to the Innocence Project in New York today
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Speaker 2: on wrongful conviction junk science. We're going to explore blood
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Speaker 2: stained pattern evidence. Like other forms of junk science used
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Speaker 2: in criminal trials. Blood stained pattern evidence falsely claims that
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Speaker 2: it can identify the culprit of violent crimes. But blood
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Speaker 2: stained pattern evidence has no grounding in any verifiable science.
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Speaker 2: So how did this kind of junk science become admissible?
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Speaker 2: It turns out that blood stain pattern analysis was born
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Speaker 2: in the basement of one man's home in a small
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Speaker 2: town named Corning, New York. When I think of Herbert MacDonell,
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Speaker 2: I wonder what his neighbors must have thought of him.
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Speaker 2: I imagine one of his curious neighbors, startled by the
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Speaker 2: sound she's hearing from next door, tiptoeing over to his
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Speaker 2: red house. I imagine the neighbor crawling on her hands
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Speaker 2: and knees to peer into Herb's basement through a small
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Speaker 2: window that peeks out from underground. She finds herself going
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Speaker 2: over there day after day, half horrified, half intrigued by
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Speaker 2: what she sees. One day, she sees Herb aiming a
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Speaker 2: gun at a dog, pulls the trigger, then walks over
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Speaker 2: to examine the blood sprayed onto the wall. Another day,
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Speaker 2: Herb isn't alone. There are some young women in lab
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Speaker 2: coats in the basement. They dip their hair into a
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Speaker 2: thick red substance. Then they swing their heads around to
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Speaker 2: make Jackson Pollock esque splatters onto the paper covered walls.
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Speaker 2: The next week, the neighbor sees what appear to be
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Speaker 2: dead bodies and she's got to be mistaken, But then
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Speaker 2: she sees Herb take aim shoot the lifeless body, and
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Speaker 2: blood slowly oozes onto the basement floor. Herbert McDonnell actually
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Speaker 2: used these techniques in his basement, giving birth to the
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Speaker 2: forensic science a bloodstained pattern analysis. Herb was a chemist
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Speaker 2: who worked for Corning Glassworks, which makes Corning wear casserole dishes,
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Speaker 2: but his passion was crime scenes, and so he doubled
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Speaker 2: as a forensic professor at a local community college. For Herb,
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Speaker 2: every crime scene, and particularly the blood stains left behind,
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Speaker 2: told a story. Not only did he believe the bloodstains
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Speaker 2: provide clues, he took it much further than that. He
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Speaker 2: believed that he could re engineer the choreography of the
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Speaker 2: crime just from analyzing the blood stains. Herb styled himself
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Speaker 2: as a sort of modern day Sherlock Holmes. He even
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Speaker 2: posed for the cover of one of his books and
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Speaker 2: the trademark deer Stalker hat and a pipe. In nineteen
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Speaker 2: seventy three, Herb started an unaccredited school right out of
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Speaker 2: his basement. He named it the Blood Stain Evidence Institute.
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Speaker 2: It took twelve years for Herb to get his moment
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Speaker 2: to shine. In January nineteen eighty five, four people were
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Speaker 2: found dead in their home. Twenty one year old Reginald
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Speaker 2: Lewis was accused of shooting his older brother, his younger
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Speaker 2: thirteen year old brother, and his parents. Reginald's father was
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Speaker 2: discovered on fire in a hallway, having been shot and
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Speaker 2: strangled before being set ablaze. The Sherlock Holmes of Corney
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Speaker 2: to New York her MacDonald testified as an expert witness
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Speaker 2: in this case. He claimed that dozens of tiny specks
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Speaker 2: of blood on Reginald's clothing placed him at the scene
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Speaker 2: of the crime. Reginald Lewis was convicted and sentenced to
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Speaker 2: four ninety nine year sentences. Herb's recognition continued to grow.
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Speaker 2: In nineteen ninety five, even testified for the defense at
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Speaker 2: the oj Simpson trial. But bloodstained pattern analysis was never
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Speaker 2: proven to be a reliable scientific method, and yet it
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Speaker 2: continued to be admitted in case after case after case,
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Speaker 2: spreading its tentacles into the criminal justice system in our country.
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Speaker 3: This is an entirely interpretive form of forensics. This involves
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Speaker 3: somebody viewing a pattern and then stating that with their training,
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Speaker 3: that they are able to tell you how that pattern
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Speaker 3: was created, what the trajectory was of the blood, where
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Speaker 3: the wound was, where the bullet or knife was in
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Speaker 3: the room, and therefore who was wielding it and how,
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Speaker 3: which is a pretty incredible claim if you think about it.
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Speaker 2: Joining us today is Pamela Koloff. And Pam's a senior
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Speaker 2: reporter at Pro Publica and a staff writer from New
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Speaker 2: York Magazine. So, Pam, when you really look into these
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Speaker 2: forensic sciences and see how they originated, I have to
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Speaker 2: say that in all of my work and researching various
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Speaker 2: disciplines of forensic science, blood spatter analysis has easily the
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Speaker 2: craziest story of them all. And you've researched this intensely.
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Speaker 2: I want you to tell us more about her. MacDonell,
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Speaker 2: the so called grandfather of blood spatter analysis.
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Speaker 3: His belief was, and what he sort of told generations
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Speaker 3: of police officers was that yes, bloodstain pattern analysis was
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Speaker 3: based on highly complex trigonometry and fluid dynamics, but that
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Speaker 3: they could master the skills to this in as little
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Speaker 3: as a forty hour class. And he began to teach
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Speaker 3: these classes all over America at local police departments and
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Speaker 3: did so for decades, and in turn turned police officers
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Speaker 3: with no training in physics or high level of mathematics
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Speaker 3: into quote unquote experts.
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Speaker 2: So he turns these people with no training in physics
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Speaker 2: or mathematics into experts. You don't have any training in
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Speaker 2: physics or mathematics, and you took the class and became
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Speaker 2: an expert. Right.
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Speaker 3: I went to Yukon, Oklahoma, where the police department was
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Speaker 3: offering a week long class. I took it with about
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Speaker 3: twenty law enforcement officers, and I was stunned at what
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Speaker 3: I saw. We were sort of rubber stamped through just
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Speaker 3: the most basic basic concepts of blood stain pattern analysis,
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Speaker 3: and we would have to identify stains according to this
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Speaker 3: taxonomy that the discipline has these particular kinds of spatters
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Speaker 3: and drips and spurts and swipes and smears. They have
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Speaker 3: all these different names for things. The final day of
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Speaker 3: the course where our instructor set up these sort of
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Speaker 3: mock crime scenes, and he used blood to on sort
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Speaker 3: of like butcher paper to show us what blood stains
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Speaker 3: would look like at a crime scene. And then our
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Speaker 3: and this is part of our final grade, was to
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Speaker 3: come in and just by looking at that, no other clues,
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Speaker 3: no other context clues, use that to say what had
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Speaker 3: happened at the crime scene, and then to learn how
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Speaker 3: to say it on the stand in a way that
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Speaker 3: sounded like a scientist and like someone with scientific certainty.
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Speaker 3: And that to me was extremely disturbing.
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Speaker 2: Aside from what you witness in the class. Tell me, like,
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Speaker 2: what is one thing that stood out to you as
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Speaker 2: something that seemed off about you know, what he did
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Speaker 2: or what he had students do.
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Speaker 3: I know of several students who have shot cadavers and
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Speaker 3: controlled situations to look at the way that blood moves. Now,
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Speaker 3: think about the way that blood operates within a cadaver
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Speaker 3: versus a living person with a beating heart. I mean,
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Speaker 3: there's so many things about that that don't make sense.
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Speaker 2: Right, So with a dead body or cadaver, it should
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Speaker 2: be common sense. There's no more blood flown through the veins, right,
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Speaker 2: the person isn't moving anymore, and there's a different viscosity
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Speaker 2: or thickness to the blood when someone is dead. So
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Speaker 2: all of this makes a difference in first how the
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Speaker 2: blood travels once the body is hit with an object,
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Speaker 2: whether it be a bullet or a bat, and then
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Speaker 2: the blood will also look different once it lands, doesn't
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Speaker 2: It all come down to there are a lot of
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Speaker 2: different ways that blood can get on a surface, and
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Speaker 2: you can't say definitively which way it happened.
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Speaker 3: That's exactly right, that's exactly right. The surface that blood
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Speaker 3: falls onto makes a tremendous difference in what you can tell.
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Speaker 3: If you had a white all linoleum or marble room,
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Speaker 3: like a very controlled atmosphere like that, you might be
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Speaker 3: able to make some determinations about some things possibly, But
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Speaker 3: in real life, in a real crime scene, you usually
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Speaker 3: have blood falling onto porous things, carpet, clothing, things where
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Speaker 3: it becomes increasingly difficult to tell the angle that blood
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Speaker 3: fell onto those services at because they're so diffused when
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Speaker 3: they land on that material.
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Speaker 2: Yeah, I mean, there are some cases where blood spatter
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Speaker 2: analysts have been on video trying to recreate a stain
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Speaker 2: pattern from a crime and it takes them ten or
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Speaker 2: fifteen tries to get the stain to look similar to
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Speaker 2: how it looks at the crime scene or on the
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Speaker 2: close of the accuse. I mean, I saw one video
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Speaker 2: where they finally get it right right, They get it
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Speaker 2: to look like it did at the crime scene, after
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Speaker 2: try after try after try, and they start cheering and
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Speaker 2: high fiving. So if it's so hard to tell how
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Speaker 2: a blood stain got where it did, then what kinds
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Speaker 2: of consequences will that have for someone that's been accused
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Speaker 2: of a violent crime.
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Speaker 3: A common example I've seen this many times is there's
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Speaker 3: a spouse who commits suicide, who shoots themselves, and the
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Speaker 3: other spouse discovers the person who is shot, rushes over
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Speaker 3: to the person, cradles them, tries to give them first aid,
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Speaker 3: and in the process gets blood on them. And what
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Speaker 3: I saw again and again is if someone who's injured
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Speaker 3: expels blood from their mouth or their nose onto another
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Speaker 3: person's clothing right they're coughing, they're struggling to breathe, that
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Speaker 3: pattern of blood looks very similar to the kind of
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Speaker 3: atomized blood that sprays when someone's shot. And then an
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Speaker 3: analyst for the state will be brought in and will
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Speaker 3: give this very convoluted life as to why that happened
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Speaker 3: during the commission of the crime. And then there becomes
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Speaker 3: this divergence of opinion of did the victim hold the
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Speaker 3: gun and fire this upon him or herself or was
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Speaker 3: it the spouse who fired the gun? And the claim
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Speaker 3: is that by looking at the way that the blood
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Speaker 3: is distributed at the crime scene, you know one hundred
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Speaker 3: percent what the answer to that is.
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Speaker 2: All right, Pam, you wrote a two part story entitled
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Speaker 2: Blood Will Tell. And by the way, to our listeners,
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Speaker 2: if you haven't read about this case, you absolutely should.
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Speaker 2: Will link to the article in our show notes. It
19:52
Speaker 2: is a fascinating, fascinating piece that Pam wrote for Pro Publica.
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Speaker 2: And again it's entitled Blood will Tell the Joe Brian
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Speaker 2: Story and it tells the story of various ways bloodstained
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Speaker 2: pattern analysis can go off the rails. And I want
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Speaker 2: to say that it has a happy ending, but it's
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Speaker 2: a tragedy really right. I mean, you have a man
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Speaker 2: that was loved by everybody. He's a high school principal,
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Speaker 2: he spent thirty three years in prison for the murder
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Speaker 2: of his wife. And you know your story, pain was
20:27
Speaker 2: like the driving force, if not the critical driving force
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Speaker 2: behind getting him out of prison, So please tell us
20:34
Speaker 2: about the Joe Brian case.
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Speaker 3: Joe Brian was a beloved high school principal in a
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Speaker 3: little Texas town called Clifton, Texas. And in nineteen eighty five,
20:46
Speaker 3: when he was by all accounts out of town one
20:49
Speaker 3: hundred and twenty miles away in Austin at an educational conference,
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Speaker 3: his wife was shot and killed in their home and
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Speaker 3: this was initially investigated as a robbery gone wrong. And
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Speaker 3: about a week after the murder, a flashlight was discovered
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Speaker 3: in the trunk of Joe's car that had tiny, tiny
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Speaker 3: specks of blood on it. And there was no blood
21:18
Speaker 3: found in the car or anything like that. And who
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Speaker 3: this blood belonged to, whether it was even human blood,
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Speaker 3: all of this was unknown, but the state took this
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Speaker 3: and they brought in a bloodstained pattern analyst, a local
21:35
Speaker 3: cop who'd had forty hours of training, and he, through
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Speaker 3: his testimony, connected that flashlight and the spatter pattern on
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Speaker 3: the flashlight to the crime scene. He said this could
21:50
Speaker 3: only have happened at the crime scene, and his theory
21:54
Speaker 3: of the case was that Joe had held the flashlight
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Speaker 3: in one hand a gun in the other. He'd shot
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Speaker 3: his wife, Mickey. The blood had gotten onto the splashlight,
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Speaker 3: and this was proof that he was guilty of murder.
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Speaker 3: How this man, who would have been bloodied, how did
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Speaker 3: he drive off in this car that was absolutely pristine
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Speaker 3: was explained away by the expert who said things like
22:21
Speaker 3: after he killed her, he completely changed his clothes and
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Speaker 3: he changed his shoes, and that's why the interior of
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Speaker 3: the car was clean. But he made this error and
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Speaker 3: put this in the truck, and that was enough. I mean,
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Speaker 3: this is a man there was no motive, no physical evidence.
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Speaker 3: He was many counties away, he was in a different
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Speaker 3: place the night of the crime, but that expert testimony
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Speaker 3: from that cop was enough to get a murder conviction
22:51
Speaker 3: in a life sentence.
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Speaker 2: I mean, it's so difficult to listen to this, and
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Speaker 2: I wish I could say that I'm sitting here, you know, shocked,
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Speaker 2: and was able to tell you what. I've never heard
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Speaker 2: of a case like that before, where you know, the
23:07
Speaker 2: accused is actually in a different town altogether. But unfortunately
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Speaker 2: I've heard this before. This happens to many defendants or
23:15
Speaker 2: people that are accused of crimes they didn't commit. Was
23:19
Speaker 2: Joe ever exonerated?
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Speaker 3: So Joe was not exonerated, he was parolled, and the
23:26
Speaker 3: state of his case. He had an evidentiary hearing in
23:31
Speaker 3: twenty nineteen with some really really compelling testimony that suggested
23:38
Speaker 3: not only his innocence but a possible other perpetrator. In Texas,
23:43
Speaker 3: we have something called a junk science writ which is
23:46
Speaker 3: fairly unusual, but it allows somebody to take bad evidence,
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Speaker 3: junk science that's been allowed into their case, and to
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Speaker 3: try to get the courts to take a second look
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Speaker 3: at their case because of that. And so he's been
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Speaker 3: parolled and is still fighting to prove his innocence. Joe
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Speaker 3: turns eighty later this year. He's had congestive heart failure
24:14
Speaker 3: for numerous years. His health is not good, and the
24:17
Speaker 3: Texas Board of Pardons and Paroles finally decided to release
24:21
Speaker 3: him in March, and he is now at home with
24:27
Speaker 3: his brother. He's got an ankle monitor for a couple
24:30
Speaker 3: more months and then he'll go back to life as
24:34
Speaker 3: much as it can be normal after thirty three years
24:37
Speaker 3: behind bars.
24:38
Speaker 2: I mean a lot of people always say they hear
24:41
Speaker 2: about this work of helping the wrongfully incarcerated, but they
24:47
Speaker 2: hear about it when it's too late, you know, after
24:49
Speaker 2: they have lost decades and decades of their lives. Oftentimes
24:53
Speaker 2: their lives have been utterly destroyed. I mean, you know,
24:57
Speaker 2: you read the stories about them getting out, but take
25:00
Speaker 2: it from me, having worked with scores of exoneries, not
25:06
Speaker 2: only my clients, but some of the innocence projects other clients,
25:10
Speaker 2: they're just never the same. The psychological damage of being
25:15
Speaker 2: confined to this narrow space and all of the horrors
25:18
Speaker 2: of prison that you hear about that happen to these people,
25:21
Speaker 2: and then on top of it, being in there for
25:25
Speaker 2: something you didn't do. I mean, there have been studies
25:27
Speaker 2: about how it inflicts even more psychological damage on people
25:32
Speaker 2: to be in there for something that you didn't do,
25:35
Speaker 2: and the lost years just can't be replaced. No amount
25:39
Speaker 2: of money is going to make that pain go away,
25:41
Speaker 2: no matter how much compensation they get. And yet these
25:45
Speaker 2: wrongful convictions just continue being propelled by junk science. It's
25:49
Speaker 2: just astounding, exactly.
25:53
Speaker 3: I was flabbergasted when working on this story and trying
25:57
Speaker 3: to find, well, where where is the research that backs
26:02
Speaker 3: up all these claims that people are making on the stand.
26:05
Speaker 3: Where's the academic work that's been done. Where is anything.
26:12
Speaker 3: This is a discipline that when you look at sort
26:16
Speaker 3: of the fundamentals of how do you prove reliability, no
26:21
Speaker 3: one can quote an error rate. There are no markers
26:25
Speaker 3: that show that this is something that holds up under
26:28
Speaker 3: any kind of scrutiny. And so this idea that we
26:33
Speaker 3: can not just look at blood as a clue as
26:38
Speaker 3: we would at many, many, many things in a crime
26:40
Speaker 3: scene to help us figure out what happened, but as
26:44
Speaker 3: something in which you can entirely, independent even of any
26:48
Speaker 3: other evidence, reconstruct the crime itself, quickly leads you into
26:53
Speaker 3: wrongful conviction territory.
27:07
Speaker 2: I want our listeners to be rest assured that we're
27:10
Speaker 2: not just throwing around this term junk science haphazardly. Just
27:16
Speaker 2: to be crystal clear, there has been extensive research on
27:21
Speaker 2: the effectiveness and the accuracy of bloodstained pattern analysis. And
27:26
Speaker 2: this will become somewhat of a drum beat in our series.
27:30
Speaker 2: We're going to continue to go back to this study
27:32
Speaker 2: that was done in two thousand and nine by the
27:34
Speaker 2: National Academy of Sciences, and they issued a report after
27:39
Speaker 2: examining various disciplines of forensic science that are used in
27:43
Speaker 2: courtrooms across the country, everything from fingerprints to footwear impressions,
27:48
Speaker 2: to bitemarks and of course bloodstains.
27:50
Speaker 3: Right PAM, the National Academy of Science is actually made
27:54
Speaker 3: up of scientists who publish pure reviewed were and who
28:01
Speaker 3: were involved in research with real scientific integrity, and they
28:08
Speaker 3: set the bar very, very high, and they have long
28:12
Speaker 3: been extremely critical of bloodstained pattern analysis and really cautioning
28:19
Speaker 3: courts to not consider this a science with the sort
28:24
Speaker 3: of accuracy as for example, some DNA testing or toxicology,
28:31
Speaker 3: where you really you have numbers and certainty to work with.
28:36
Speaker 2: So outside of DNA, the NAS study was really critical
28:42
Speaker 2: of all of these other disciplines of forensic science. And
28:46
Speaker 2: what it's said about blood spatter analysis is this quote
28:49
Speaker 2: A capable analysts must possess an understanding of applied mathematics, physics,
28:55
Speaker 2: fluid transfer, wound pathology, and that this blood spatter a
28:59
Speaker 2: now is more subjective than substantive. So this report should
29:05
Speaker 2: have been a bombshell in the forensic science community and
29:08
Speaker 2: it really should have changed our court system. I mean,
29:10
Speaker 2: why do you think it is that you have some
29:13
Speaker 2: of the leading scientists in the country so critically rebuking
29:17
Speaker 2: all of these forensic disciplines, but courts don't seem to
29:21
Speaker 2: pay any attention to it.
29:23
Speaker 3: Judges are looking backward at precedent, and science is supposed
29:29
Speaker 3: to be looking forward each year. We understand through scientific
29:35
Speaker 3: inquiry things like forensic science and its accuracy better and
29:39
Speaker 3: better and better. But the courts never looked at that.
29:42
Speaker 3: They just kept looking back. Bloodstain pattern analysis, like so
29:46
Speaker 3: many of the disciplines that are identified in that report
29:49
Speaker 3: as being problematic, we're so deeply entrenched in crime labs
29:56
Speaker 3: and across the country you had experts in labs that
30:00
Speaker 3: were under local police departments where this was just this
30:05
Speaker 3: was the way it was done. So there was no
30:07
Speaker 3: effort on the part of law enforcement to change that.
30:10
Speaker 3: And for prosecutors there was no incentive because a good
30:14
Speaker 3: bloodstained pattern analyst on the stand who's a phenomenal witness,
30:20
Speaker 3: really connects with the jury and makes things sound very simple.
30:24
Speaker 3: That's gold that can make your case, and that can
30:27
Speaker 3: take a circumstantial case and move it from gray to
30:32
Speaker 3: black and white.
30:33
Speaker 2: So, like you said, many judges rule on a case
30:36
Speaker 2: based on precedent, and the President provides essentially the license
30:41
Speaker 2: for judges to accept bloodstain spatter analysis as evidence. But
30:46
Speaker 2: there was at least one judge who did pay attention
30:49
Speaker 2: to this study, and that was a federal judge that
30:51
Speaker 2: I know very well in Boston named Nancy Gertner. Nancy
30:56
Speaker 2: and I are actually co authors on a textbook together.
30:59
Speaker 2: I'll give a nice plug year for the law of
31:01
Speaker 2: jurys in case anybody is aching to read a legal textbook.
31:05
Speaker 2: But tell us about what Judge Nancy Gerdner did.
31:09
Speaker 3: I mean, she was and really sadly remains, sort of
31:14
Speaker 3: a lone voice in the wilderness. She came out swinging
31:20
Speaker 3: and said that judges had to take a more active
31:24
Speaker 3: stand in being gatekeepers to this kind of evidence, and
31:29
Speaker 3: that they could not be letting junk science into the courtroom.
31:33
Speaker 3: And if we are going to continue to see some
31:36
Speaker 3: of the disciplines that the NAS report has identified as
31:40
Speaker 3: unreliable in our courtrooms, I want to hold admissibility hearings
31:46
Speaker 3: before we ever get to trial to decide whether we
31:48
Speaker 3: should allow this in. And that shouldn't have been a
31:52
Speaker 3: revolutionary idea, but it really was. And she was an
31:57
Speaker 3: outlier in this and got a lot of pushback from
32:02
Speaker 3: prosecutors about that.
32:04
Speaker 2: I mean, it's really shocking that she got pushedback, not
32:08
Speaker 2: just from prosecutors, but also from her colleagues or fellow judges.
32:14
Speaker 3: She's a hero, and I think that her insistence on
32:18
Speaker 3: something as basic as fairness being controversial is really disturbing.
32:29
Speaker 2: Life doesn't always imitate art, especially when it comes to bloodstains.
32:34
Speaker 2: It's important to remember that shows like Dexter and CSI,
32:37
Speaker 2: or Just Entertainment it isn't real life, and many of
32:41
Speaker 2: the techniques that we think are science are far from it.
32:46
Speaker 2: You might be listening to this wondering what you can
32:48
Speaker 2: do to make sure that junk signs like bloodstain pattern
32:51
Speaker 2: analysis stops being admitted into courts. In our show notes,
32:55
Speaker 2: we're attaching a link to the National Academy of Sciences
32:58
Speaker 2: report that we spoke about in this episode. Send it
33:01
Speaker 2: to your local criminal court judges. Give them something to
33:05
Speaker 2: think twice about before admitting this evidence in their courtroom.
33:10
Speaker 2: Something else you can always do is make sure that
33:12
Speaker 2: when you get called to jury service, you don't try
33:15
Speaker 2: to get out of it. You do it, and do
33:17
Speaker 2: it as a conscientious juror. When I pick a jury
33:21
Speaker 2: in a criminal case, one question I always ask is
33:24
Speaker 2: how many of you believe that my client must have
33:26
Speaker 2: done something wrong because they've been arrested and accused of
33:30
Speaker 2: a crime, more than half the hands in the room
33:33
Speaker 2: always go up. Remember these principles. Let the presumption of
33:38
Speaker 2: innocence only work if we breathe life into them. Someone
33:42
Speaker 2: that is accused of a crime ought to be considered
33:45
Speaker 2: innocent all the way through the trial, all the way
33:49
Speaker 2: through your deliberations. They are wrapped in a cloak of innocence,
33:53
Speaker 2: like a warm blanket. It can never be torn from
33:57
Speaker 2: them unless the prosecution overcomes the highest burden in our
34:01
Speaker 2: justice system, which has proved beyond a reasonable doubt. You
34:05
Speaker 2: give the benefit of the doubt to the accused. Unfortunately,
34:11
Speaker 2: as I've seen time and time again, the presumption of
34:14
Speaker 2: innocence in this country is not a given. It is
34:17
Speaker 2: an ideal that we talk about, but we don't live
34:19
Speaker 2: up to. But by uncovering the lack of credibility of
34:23
Speaker 2: junk signs and our courts, we hope to get one
34:26
Speaker 2: step closer. Next week, we'll explore the junk signs of
34:36
Speaker 2: Arson with Innocence Project co founder and famed civil rights
34:40
Speaker 2: and criminal defense attorney Barry Sheck. Wrongful Conviction Junk Science
34:46
Speaker 2: is a production of Lava for Good Podcasts and association
34:49
Speaker 2: with Signal Company Number One. Thanks to our executive producer
34:52
Speaker 2: Jason Flahm and the team at Signal Company Number One
34:56
Speaker 2: executive producer Kevin Wardis and senior producers Karen Cornaber and
35:00
Speaker 2: Brit Spangler. Our music was composed by Jay Ralph. You
35:04
Speaker 2: can follow me on Instagram at dubin Josh. Follow the
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Speaker 2: Conviction and on Twitter at wrong Conviction