August 10, 2020 • 33 mins
Josh Dubin, civil rights and criminal defense attorney, and Innocence Ambassador to the Innocence Project in New York explores bloodstain pattern evidence with Pamela Colloff, senior reporter at ProPublica and staff writer at The New York Times Magazine.
Bloodstain pattern experts falsely claim that they can identify the culprit of violent crimes by examining the shape and distribution of bloodstains from a crime scene. But, bloodstain pattern evidence has no grounding in any verifiable science. So how did this kind of junk science become admissible?
Learn more and get involved.
Pamela Coloff’s two part story on the Joe Bryan case Blood Will Tell - ProPublica
Part 1 https://features.propublica.org/blood-spatter/mickey-bryan-murder-blood-spatter-forensic-evidence/
Part 2 https://features.propublica.org/blood-spatter/joe-bryan-conviction-blood-spatter-forensic-evidence/
National Academy of Sciences: Strengthening Forensic Science in the United States: A Path Forward https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf
https://www.wrongfulconvictionpodcast.com/junk-science
Wrongful Conviction: Junk Science is a production of Lava for Good™ Podcasts in association with Signal Co No1.
See omnystudio.com/listener for privacy information.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It's five pm, and you call your spouse. You say,
don't wait up, I'm gonna be working late. I love you,
I'll see when I get home. You've been married for
seven years and you have a good relationship. You bicker
from time to time. It's not perfect, but what marriage is.
You get home around eleven o'clock at night and the
(00:20):
front door is open, which is strange. It's always locked
when you come home late from work. You walk in,
toss your keys on the kitchen table, and call out
for your spouse. No response. You walk through the living
room towards your bedroom and you notice that the lamp
has been knocked over. The power cord has been pulled
(00:42):
from its socket. You walk down the hall and shove
your bedroom door open, and you're greeted by a scene
that is so horrific your mind can barely comprehend what
your eyes are taking in. There's blood everywhere. It's on
(01:02):
the carpet, the bed, on the wall, above the dresser.
Your spouse is on the floor, mouth open. There's a
large pool of blood coming from their head. It's dark
and thick, and as you move closer you see that
it's still pulling. The blood is still flowing from somewhere.
(01:27):
At this point, your body has gone into some state
of shock. You're drifting between consciousness and some paralyzing, dreamlike state.
You managed to call nine one one. You plead, you scream,
You cry for them to come right away. You reach
down and touch your spouse. You feel for a pulse.
(01:49):
You put your ear to their chest. There's no movement,
there's no sign of life. You lean down and try
to give them CPR. You don't even know how long
you've been doing it. You lose sense of time, but
eventually you hear sirens. They're blaring, and all of a sudden,
there's chaos. The room is filled with people. A paramedic
(02:12):
puts a hand on your shoulder and says, let us
start working here, and pulls you into another room. Then
they tell you what you already know but don't want
to admit. Your spouse is dead. You're not crying, You're heaving,
trying to catch your breath. The police try to console you.
(02:34):
They tell you they're sorry, but that you have to
try to calm down. They need to figure out what happened,
and they need your help. You're in no state to drive.
You're put into the back of a police car. When
you get to the police station, a detective comes in
with a sweatshirt and sweatpants, and he says, take off
(02:55):
your clothes and put these on. You're somewhat relieved to
get out of your clothes, which are soaked with your
spouse's blood. A different detective comes in and she asked
you how you got blood on the back side of
your pants. Where were you standing when you got blood
on the cuff of your shirt, on your sock. You
don't know the answer to these questions. It was all
(03:16):
such a blur. Over the next several weeks, you're asked
to come down to the police station over and over again.
The detective's questions become more aggressive, and it's becoming quite
obvious that they suspect you did this. You were eventually
charged with the first degree murder of your spouse. At
(03:40):
your trial, the prosecution calls to the stand a blood
stained pattern analysts. That expert gets on the stand and
tells the jury that the story of the murder of
your spouse is soaked into the blood of the clothes
you were wearing on the night the crime was committed.
The blood stained patterned analyst walks the jury through each
(04:01):
and every stain on your clothing, droplet by droplet, you
see that stain. The defendants swung the weapon at a
ninety degree angle twice right into the victim's head, which
created the splatter pattern you see here on his shirt.
High velocity projected spatter. They tell the jury no other
(04:21):
explanation for it. They say that the stain on your
sock was dropped from your bloody hand as you held
the murder weapon. They never tell the jury what the
murder weapon actually was, and they never recovered that object.
They just tell the jury that you must have gotten
rid of it right before you stage the nine one
one call. The expert says that they've examined the blood drops,
(04:43):
the stains, the puddles, the pools, and they're able to
reconstruct precisely how you committed this murder, the angle at
which you swung the weapon, the force with which you
inflicted the blows, and where your spouse was standing when
they were beaten to death. The stains proved that you
did not perform CPR. You did not check for a pulse,
(05:05):
because if you had, there would not be this spray
pattern that's projected onto your shirt. These stains all indicate
that you committed this murder. You glance over at the jury.
Most are taking rigorous notes. One is so taken, so
wrapped that he stopped taking notes altogether and just sits
(05:25):
staring at the expert, covering his mouth with his hand.
You look over at your defense attorney and think, how
in the world is this happening. I'm Josh dubin civil
rights and criminal defense attorney and innocence ambassadors in the
(05:47):
Innocence Project in New York. Today, on wrongful conviction junk science,
We're going to explore blood stained pattern evidence. Like other
forms of junk signs used in criminal trials, blood stained
pattern evidence falsely claims that it can identify the culprit
of violent crimes. But blood stained pattern evidence has no
(06:08):
grounding and any verifiable science. So how did this kind
of junk science become admissible? It turns out that blood
stained pattern analysis was born in the basement of one
man's home in a small town named Corning, New York.
(06:34):
When I think of Herbert McDonald, I wonder what his
neighbors must have thought of him. I imagine one of
his curious neighbors startled by the sound she's hearing from
next door, tiptoeing over to his red house. I imagine
the neighbor crawling on her hands and knees to pear
into herbs basement through a small window that peeks out
from underground. She finds herself going over there day after day,
(06:58):
half horrified, half intrigued by what she sees. One day,
she sees her aiming a gun at a dog. He
pulls the trigger, then walks over to examine the blood
sprayed onto the wall. Another day, Herb isn't alone. There
are some young women in lab coats in the basement.
(07:19):
They dip their hair into a thick red substance. Then
they swing their heads around to make Jackson Pollock asque
splatters onto the paper covered walls. The next week, the
neighbor sees what appear to be dead bodies, and she's
got to be mistaken, But then she sees her take
aim shoot the lifeless body and blood slowly oozes onto
(07:42):
the basement floor. Herbert McDonald actually used these techniques in
his basement, giving birth to the forensic science of blood
stained pattern analysis. Herb was a chemist who worked for
Corning glass Works, which makes corning wear of casserole dishes.
But his passion was crime scenes, and so he doubled
(08:04):
as a forensic professor at a local community college. For Herb,
every crime scene, and particularly the blood stains left behind,
told a story. Not only did he believe that blood
stains provide clues, he took a much further than that.
He believed that he could re engineer the choreography of
the crime just from analyzing the blood stains. Herb styled
(08:27):
himself as a sort of modern day Sherlock Holmes. He
even posed for the cover of one of his books
and the trademark Dear Stalker Hat and a Pipe. In
nineteen seventy three, Herbs started an unaccredited school right out
of his basement. He named it the Blood Stain Evidence Institute.
It took twelve years for Herb to get his moment
(08:49):
to shine. In January nineteen eighty five, four people were
found dead in their home. Twenty one year old Reginald
Lewis was accused of shooting his older brother, his younger
thirteen year year old brother, and his parents. Reginald's father
was discovered on fire in a hallway, having been shot
and strangled before being set ablaze the Sherlock Holmes of
(09:10):
Corny to York. Herb McDonald testified as an expert witness
in this case. He claimed that dozens of tiny specks
of blood on Reginald's clothing placed him at the scene
of the crime. Reginald Lewis was convicted and sentenced to
four years sentences. Herb's recognition continued to grow, even testified
(09:31):
for the defense at the O. J. Simpson trial. But
blood stained patterned analysis was never proven to be a
reliable scientific method, and yet it continued to be admitted
in case after case after case, spreading its tentacles into
the criminal justice system in our country. This is a
(09:56):
entirely interpretive form of forensics. This involves somebody viewing a
pattern and then stating that, with their training, that they
are able to tell you how that pattern was created,
what the trajectory was of the blood, where the wound was,
(10:20):
where the bullet or knife was in the room, and
therefore who was wielding it and how, which is a
pretty incredible claim if you think about it. Joining us
today is Pamela colof And Pam's a senior reporter at
Pro Publica and a staff writer from New York Magazine. So, Pam,
(10:43):
when you really look into these forensic sciences and see
how they originated, I have to say that in all
of my work and researching various disciplines of forensic science,
blood spatter analysis has easily the craziest story of them all.
And you've researched this intensely. Um, I want you to
(11:06):
tell us more about her McDonald, the so called grandfather
of blood spatter analysis. His belief was, and what he
sort of told generations of police officers was that yes,
bloodstained pattern analysis was based on highly complex trigonometry and
(11:27):
fluid dynamics, but that they could master the skills to
this and as little as a forty hour class. And
he began to teach these classes all over America at
local police departments and did so for decades and in
turn turned police officers with no training in physics or
(11:52):
high level of mathematics into quote unquote experts. So he
turns these people with no training in physics or mathematics
into experts. You don't have any training in physics or mathematics,
and you took the class and became an expert. Right.
I went to Yukon, Oklahoma, where the police department was
(12:14):
offering a week long class. I took it with about
twenty law enforcement officers, and I was stunned at at
what I saw. We were sort of rubber stamped through
just the most basic basic concepts of blood stained pattern analysis,
and we would have to identify stains according to this
(12:36):
taxonomy that the discipline has these particular kinds of spatters
and drips and spurts and swipes and smears. They have
all these different names for things. The final day of
the course where our instructor set up these sort of
mock crime scenes and he used blood too on sort
(13:00):
of like butcher paper to um show us what blood
stains would look like at a crime scene. And then
our job, and this is part of our final grade,
was to come in and just by looking at that
no other clues, no other context clues, use that to
say what had happened at the crime scene, and and
(13:24):
then to learn how to say it on the stand
in a way that sounded like a scientist and like
someone with scientific certainty. And and that to me was
extremely disturbing. Aside from what you witness in the class,
tell me, like, what is one thing that stood out
to you as something that seemed off about, you know,
(13:45):
what he did or what he had students do. I
know of several students who have shot cadavers and controlled
situations to look at the way that blood moves. Now,
think about the way that blood operates within a cadaver
versus a living person with a beating heart. I mean,
(14:07):
there's so many things about that that don't make sense, right,
So with a dead body or cadaver, it should be
common sense. There's no more blood flown through the veins, right,
the person isn't moving anymore, and there's a different viscosity
or thickness to the blood when someone is dead. So
all of this makes a difference in first how the
(14:28):
blood travels once the body is hit with an object,
whether it be a bullet or a bat, and then
the blood will also look different once it lands, doesn't
It all come down to there are a lot of
different ways that blood can get on a surface, and
you can't say definitively which way it happened. That's exactly right,
that's exactly right. The surface that blood falls onto makes
(14:52):
a tremendous difference in what you can tell if you
had a white all linoleum or marb bowl room, like
a very controlled atmosphere like that, you might be able
to make some determinations about some things possibly, But in
real life, in a real crime scene usually have blood
(15:14):
falling onto porous things, carpet, clothing, things where it becomes
increasingly difficult to tell the angle that blood fell onto
those surfaces at because they're so diffused when they land
on that material. Yeah, I mean, there are some cases
where blood spatter analysts have been on video trying to
(15:36):
recreate a stain pattern from a crime and it takes
them ten or fifteen tries to get the stain to
look similar to how it looks at the crime scene
or on the close of the accused. I mean, I
saw one video where they finally get it right right,
They get it to look like it did at the
crime scene, after try after try after try, and they
start cheering and high fiving. So if it's so hard
(15:59):
to tell how a blood stain got where it did,
then what kinds of consequences will that have for someone
that's been accused of a violent crime. A common example
I've seen this many times is there's a spouse who
commits suicide, who uh, shoots themselves, and the other spouse
(16:24):
discovers the person who is shot, rushes over to the person,
cradles them, tries to give them first aid, and in
the process gets blood on them. And what I saw
again and again is if someone who's injured expels blood
from their mouth or their nose onto another person's clothing,
(16:46):
right they're coughing, they're they're struggling to breathe, that pattern
of blood looks very similar to the kind of atomized
blood that sprays when someone shot Hut. And then an
analyst for the state will be brought in and we'll
give this very convoluted logic as to why that happened
(17:11):
during the commission of the crime. And then there becomes
this divergence of opinion of did the victim hold the
gun and fire this upon him or herself or was
it the spouse who fired the gun? And the claim
is that by looking at the way that the blood
is distributed at the crime scene, you know what the
(17:33):
answer to that is. All right, Pam, you wrote a
two part story entitled Blood Will Tell And by the way,
to our listeners, if you haven't read about this case,
(17:55):
you absolutely should. Will link to the article in our
show notes. It is a fascinating, fascinating piece that Pam
wrote for Pro Publica and again it's entitled blood will
tell the Joe Brian Story, and it tells the story
of various ways blood stained patterned analysis can go off
(18:15):
the rails. And I want to say that it has
a happy ending, but it's a tragedy really right. I mean,
you have a man that was loved by everybody, he's
a high school principal. He spent thirty three years in
prison for the murder of his wife, and you know
your story. Pam was like the driving force, if not
(18:37):
the critical driving force behind getting him out of prison.
So please tell us about the Joe Briant case. Joe
Brian was a beloved high school principal in a little
Texas town called Clifton, Texas, and in when he was
by all accounts, out of town a hundred and twenty
(18:58):
miles away in Austin and an education old conference, his
wife was shot and killed in their home and this
was initially investigated as a robbery gone wrong. And about
a week after the murder, a flashlight was discovered in
(19:18):
the trunk of Joe's car that had tiny, tiny specks
of blood on it, and there was no blood found
in the car or anything like that. And who this
blood belonged to, whether it was even human blood, all
of this was was unknown. But the state took this
(19:40):
and they brought in a blood stained pattern analyst, a
local cop who had had forty hours of training, and he,
through his testimony, connected that flashlight and the spatter pattern
on the flashlight to the crime scene. He said this
could only have happened at the crime scene, and his
(20:02):
theory of the case was that Joe had held the
flashlight in one hand a gun and the other he
had shot his wife, Mickey. The blood had gotten onto
the flashlight and this was proof that he was guilty
of murder. How this man, who would have been bloodied,
how did he drive off in this car that was
(20:24):
absolutely pristine was explained away by the expert, who said
things like, after he killed her, he completely changed his
clothes and he changed his shoes, and that's why the
interior of the car was clean. But he made this
error and put this in the truck, and that was enough.
I mean, this is a man. There was no motive,
(20:46):
no physical evidence. He was many counties away he was
in a different place the night of the crime, but
that expert testimony from that cop was enough to get
a murder conviction and life sentence. I mean, it's so
difficult to listen to this, and I wish I could
say that I'm I'm sitting here, you know, shocked, and
(21:09):
and was able to tell you what. I've never heard
of a case like that before, where you know, the
accused is actually in a different town altogether. But unfortunately
I've heard this before. UM, this happens to many defendants
or or people that are accused of crimes they didn't commit.
Was Joe ever exonerated? So Joe was not exonerated, He
(21:32):
was paroled and the state of his case. Uh, he
had an evidentiary hearing in twenty nineteen with some really
really compelling testimony that suggested not only his innocence but
a possible other perpetrator. In Texas, we have something called
a junk science writ which is fairly unusual, but it
(21:56):
allows somebody to take bad evidence, junk science that's been
allowed into their case and uh to try to get
the courts to take a second look at their case
because of that. And so he's been paroled and is
still fighting to prove his innocence. Joe turns eighty later
(22:19):
this year. He's had congestive heart failure for numerous years.
His health is not good, and the Texas Sport of
Pardons and Pearls finally decided to release him in in
March and Um he is now at home with his brother.
He's got an ankle monitor for a couple more months
and then he'll go back to life as much as
(22:42):
it can be normal after thirty three years behind bars.
I mean a lot of people always say they hear
about this, you know, work of helping the wrongfully incarcerated,
but they hear about it when it's too late, you know,
after they have lost decades and decades of their lives.
Oftentimes their lives have been utterly destroyed. I mean, you know,
(23:05):
you read the stories about them getting out, but take
it from me, having worked with UM scores of axonorees,
not only my clients, but some of the innocence projects
other clients, they're just never the same. UM. The psychological
damage of being you know, confined to this narrow space,
(23:25):
and all of the horrors of prison that you hear
about that happened to these people, and then on top
of it, being in there for something you didn't do.
I mean, there have been studies about how it inflicts
even more psychological damage on people to be in there
for something that you didn't do, and the lost years
just can't be replaced. No amount of money is going
(23:47):
to make that pain go away, no matter how much
compensation they get. And yet these wrongful convictions just continue
being propelled by junk science. It's just astounding, ex actly
I was. I was flabbergasted when working on the story
and trying to find, well, where where is the research
(24:09):
that backs up all these claims that people are making
on the stand, Where is the academic work that's been done,
Where is the anything? This is a discipline that when
when you look at sort of the fundamentals of how
do you prove reliability? Uh, no one can quote an
(24:30):
error rate, There are no markers that show that this
is something that holds up under any kind of scrutiny.
And so this idea that we can not just look
at blood as a clue as we would at many, many,
many things in a crime scene to help us figure
out what happened, but as something in which you can
(24:54):
entirely independent, even if any other evidence reconstruct the crime
itself quickly leads you into wrongful conviction territory. I want
(25:15):
our listeners to be rest assured that we're not just
throwing around this term junk science haphazardly. Just to be
crystal clear, there has been extensive research on the effectiveness
and the accuracy of blood stained pattern analysis. And this
will become somewhat of a drumbeat in our series. We're
(25:38):
going to continue to go back to this study that
was done in two thousand nine by the National Academy
of Sciences, and they issued a report after examining various
disciplines of forensic science that are used in courtrooms across
the country, everything from fingerprints to footwear impressions, to bite
marks and of course blood stains. Right PAM. The National
(26:00):
Academy of Science is actually made up of scientists who
published pure reviewed work and who were involved in research
with real scientific integrity, and they set the bar very
very high, and they have long been extremely critical of
(26:22):
blood stained pattern analysis and really caution in courts to
not consider this a science with the sort of accuracy
as for example, some DNA testing um or toxicology where
you really have you have numbers and certainty to work with.
(26:44):
So outside of d n A, the n A S
study was really critical of all of these other disciplines
of forensic science. And what it's said about blood spatter
analysis is this quote, the capable analysts must possess an
understanding of applied mathematics, physics, fluid transfer, wound pathology, and
(27:06):
that this blood spatter analysis is more subjective than substantive.
So this report should have been a bombshell in the
forensic science community, and it really should have changed our
court system. I mean, why do you think it is
that you have some of the leading scientists in the
country so critically rebuking all of these forensic disciplines, but
(27:28):
courts don't seem to pay any attention to it. Judges
are looking backward at precedent, and science is supposed to
be looking forward each year. We understand through scientific inquiry
things like forensic science and its accuracy better and better
and better. But the courts never looked at that. They
(27:50):
just kept looking back blood saying pattern analysis, like so
many of the disciplines that are identified in that report,
is being problematic. We're so deeply entrenched in crime labs,
and across the country you had experts in crime labs
that were under local police departments where this was just
(28:12):
this was the way it was done. So there was
no effort on the part of law enforcement to change that.
And for prosecutors, there was no incentive because a good
blood stained pattern analyst on the stand who's a phenomenal
witness really connects with the jury and makes things sound
very simple. Um, that's gold that can make your case,
(28:35):
and that can take a circumstantial case and move it
from gray to black and white. So, like you said,
many judges rule on a case based on precedent, and
the precedent provides essentially the license for judges to accept
bloodstains spatter analysis as evidence. But there was at least
(28:55):
one judge who did pay attention to this study, and
that was a federal judge that I very well in
Boston named Nancy Gartner. Um, Nancy and I are actually
co authors on a textbook together. I'll give a nice
plug gear for the law of juries and case anybody
is aching to read a legal textbook. But tell us
about what Judge Nancy Gartner did. I mean, she was
(29:19):
and and really sadly remained sort of a lone voice
in the in the wilderness, she came out swinging and
said that judges had to take a more active stand
in being gatekeepers to this kind of evidence, and that
they could not be letting junk science into the courtroom.
(29:41):
And if we're going to continue to see some of
the disciplines that the n AS report has identified as
unreliable in our courtrooms, I want to hold admissibility hearings
before we ever get to trial to decide whether we
should allow this in. And that shouldn't have been a
revolutionary idea, but it really was. And she was an
(30:05):
outlier in this and got a lot of pushback from
from prosecutors about that. I mean, it's really shocking that
she got pushed back, not just from prosecutors but also
from you know, her colleagues or fellow judges. She's a hero,
and I think that her insistence on something is basic
(30:27):
as fairness being controversial is really disturbing. Life doesn't always
imitate art, especially when it comes to blood stains. It's
important to remember that shows like Dexter and c s
I are just entertainment. It isn't real life. And many
(30:49):
of the techniques that we think our science are far
from it. You might be listening to this wondering what
you can do to make sure that junk signs like
blood stained patterned analysis stop is being admitted into courts.
In our show, notes were attaching a link to the
National Academy of Sciences report that we spoke about in
this episode. Send it to your local criminal court judges.
(31:12):
Give them something to think twice about before admitting this
evidence in their courtroom. Something else you can always do
is make sure that when you get called to jury service,
you don't try to get out of it. You do it,
and do it as a conscientious juror. When I pick
a jury in a criminal case, one question I always
ask is how many of you believe that my client
(31:34):
must have done something wrong because they've been arrested and
accused of a crime. More than half the hands in
the room always go up. Remember these principles, let the
presumption of innocence only work if we breathe life into them.
Someone that is accused of a crime ought to be
considered innocent all the way through the trial, all the
(31:57):
way through your deliberations. They are wrapped in a cloak
of innocence Like a warm blanket, it can never be
torn from them unless the prosecution overcomes the highest burden
in our justice system, which has proved beyond a reasonable doubt.
You give the benefit of the doubt to the accused. Unfortunately,
(32:18):
as I've seen time and time again, the presumption of
innocence in this country is not a given. It is
an ideal that we talk about but we don't live
up to. But by uncovering the lack of credibility of
junk signs and our courts, we hope to get one
step closer. Next week, we'll explore the junk signs of
(32:44):
Arson with Innocence Project co founder and famed civil rights
and criminal defense attorney Barry Scheck. Wrongful Conviction Junk Science
is a production of Lava for Good Podcasts in association
with Signal Company Number One. Thanks to our exact get
A producer Jason Flom and the team, it's Signal Company
number One executive producer Kevin Wardis and senior producers Karen
(33:07):
korn Haber and Brit Spangler. Our music was composed by
Jay Ralph. You can follow me on Instagram at dubin
dot Josh followed the Wrongful Conviction podcast on Facebook and
on Instagram at Wrongful Conviction and on Twitter at wrong Conviction.
It's five pm, and you call your spouse. You say,
don't wait up, I'm gonna be working late. I love you,
I'll see when I get home. You've been married for
seven years and you have a good relationship. You bicker
from time to time. It's not perfect, but what marriage is.
You get home around eleven o'clock at night and the
(00:20):
front door is open, which is strange. It's always locked
when you come home late from work. You walk in,
toss your keys on the kitchen table, and call out
for your spouse. No response. You walk through the living
room towards your bedroom and you notice that the lamp
has been knocked over. The power cord has been pulled
(00:42):
from its socket. You walk down the hall and shove
your bedroom door open, and you're greeted by a scene
that is so horrific your mind can barely comprehend what
your eyes are taking in. There's blood everywhere. It's on
(01:02):
the carpet, the bed, on the wall, above the dresser.
Your spouse is on the floor, mouth open. There's a
large pool of blood coming from their head. It's dark
and thick, and as you move closer you see that
it's still pulling. The blood is still flowing from somewhere.
(01:27):
At this point, your body has gone into some state
of shock. You're drifting between consciousness and some paralyzing, dreamlike state.
You managed to call nine one one. You plead, you scream,
You cry for them to come right away. You reach
down and touch your spouse. You feel for a pulse.
(01:49):
You put your ear to their chest. There's no movement,
there's no sign of life. You lean down and try
to give them CPR. You don't even know how long
you've been doing it. You lose sense of time, but
eventually you hear sirens. They're blaring, and all of a sudden,
there's chaos. The room is filled with people. A paramedic
(02:12):
puts a hand on your shoulder and says, let us
start working here, and pulls you into another room. Then
they tell you what you already know but don't want
to admit. Your spouse is dead. You're not crying, You're heaving,
trying to catch your breath. The police try to console you.
(02:34):
They tell you they're sorry, but that you have to
try to calm down. They need to figure out what happened,
and they need your help. You're in no state to drive.
You're put into the back of a police car. When
you get to the police station, a detective comes in
with a sweatshirt and sweatpants, and he says, take off
(02:55):
your clothes and put these on. You're somewhat relieved to
get out of your clothes, which are soaked with your
spouse's blood. A different detective comes in and she asked
you how you got blood on the back side of
your pants. Where were you standing when you got blood
on the cuff of your shirt, on your sock. You
don't know the answer to these questions. It was all
(03:16):
such a blur. Over the next several weeks, you're asked
to come down to the police station over and over again.
The detective's questions become more aggressive, and it's becoming quite
obvious that they suspect you did this. You were eventually
charged with the first degree murder of your spouse. At
(03:40):
your trial, the prosecution calls to the stand a blood
stained pattern analysts. That expert gets on the stand and
tells the jury that the story of the murder of
your spouse is soaked into the blood of the clothes
you were wearing on the night the crime was committed.
The blood stained patterned analyst walks the jury through each
(04:01):
and every stain on your clothing, droplet by droplet, you
see that stain. The defendants swung the weapon at a
ninety degree angle twice right into the victim's head, which
created the splatter pattern you see here on his shirt.
High velocity projected spatter. They tell the jury no other
(04:21):
explanation for it. They say that the stain on your
sock was dropped from your bloody hand as you held
the murder weapon. They never tell the jury what the
murder weapon actually was, and they never recovered that object.
They just tell the jury that you must have gotten
rid of it right before you stage the nine one
one call. The expert says that they've examined the blood drops,
(04:43):
the stains, the puddles, the pools, and they're able to
reconstruct precisely how you committed this murder, the angle at
which you swung the weapon, the force with which you
inflicted the blows, and where your spouse was standing when
they were beaten to death. The stains proved that you
did not perform CPR. You did not check for a pulse,
(05:05):
because if you had, there would not be this spray
pattern that's projected onto your shirt. These stains all indicate
that you committed this murder. You glance over at the jury.
Most are taking rigorous notes. One is so taken, so
wrapped that he stopped taking notes altogether and just sits
(05:25):
staring at the expert, covering his mouth with his hand.
You look over at your defense attorney and think, how
in the world is this happening. I'm Josh dubin civil
rights and criminal defense attorney and innocence ambassadors in the
(05:47):
Innocence Project in New York. Today, on wrongful conviction junk science,
We're going to explore blood stained pattern evidence. Like other
forms of junk signs used in criminal trials, blood stained
pattern evidence falsely claims that it can identify the culprit
of violent crimes. But blood stained pattern evidence has no
(06:08):
grounding and any verifiable science. So how did this kind
of junk science become admissible? It turns out that blood
stained pattern analysis was born in the basement of one
man's home in a small town named Corning, New York.
(06:34):
When I think of Herbert McDonald, I wonder what his
neighbors must have thought of him. I imagine one of
his curious neighbors startled by the sound she's hearing from
next door, tiptoeing over to his red house. I imagine
the neighbor crawling on her hands and knees to pear
into herbs basement through a small window that peeks out
from underground. She finds herself going over there day after day,
(06:58):
half horrified, half intrigued by what she sees. One day,
she sees her aiming a gun at a dog. He
pulls the trigger, then walks over to examine the blood
sprayed onto the wall. Another day, Herb isn't alone. There
are some young women in lab coats in the basement.
(07:19):
They dip their hair into a thick red substance. Then
they swing their heads around to make Jackson Pollock asque
splatters onto the paper covered walls. The next week, the
neighbor sees what appear to be dead bodies, and she's
got to be mistaken, But then she sees her take
aim shoot the lifeless body and blood slowly oozes onto
(07:42):
the basement floor. Herbert McDonald actually used these techniques in
his basement, giving birth to the forensic science of blood
stained pattern analysis. Herb was a chemist who worked for
Corning glass Works, which makes corning wear of casserole dishes.
But his passion was crime scenes, and so he doubled
(08:04):
as a forensic professor at a local community college. For Herb,
every crime scene, and particularly the blood stains left behind,
told a story. Not only did he believe that blood
stains provide clues, he took a much further than that.
He believed that he could re engineer the choreography of
the crime just from analyzing the blood stains. Herb styled
(08:27):
himself as a sort of modern day Sherlock Holmes. He
even posed for the cover of one of his books
and the trademark Dear Stalker Hat and a Pipe. In
nineteen seventy three, Herbs started an unaccredited school right out
of his basement. He named it the Blood Stain Evidence Institute.
It took twelve years for Herb to get his moment
(08:49):
to shine. In January nineteen eighty five, four people were
found dead in their home. Twenty one year old Reginald
Lewis was accused of shooting his older brother, his younger
thirteen year year old brother, and his parents. Reginald's father
was discovered on fire in a hallway, having been shot
and strangled before being set ablaze the Sherlock Holmes of
(09:10):
Corny to York. Herb McDonald testified as an expert witness
in this case. He claimed that dozens of tiny specks
of blood on Reginald's clothing placed him at the scene
of the crime. Reginald Lewis was convicted and sentenced to
four years sentences. Herb's recognition continued to grow, even testified
(09:31):
for the defense at the O. J. Simpson trial. But
blood stained patterned analysis was never proven to be a
reliable scientific method, and yet it continued to be admitted
in case after case after case, spreading its tentacles into
the criminal justice system in our country. This is a
(09:56):
entirely interpretive form of forensics. This involves somebody viewing a
pattern and then stating that, with their training, that they
are able to tell you how that pattern was created,
what the trajectory was of the blood, where the wound was,
(10:20):
where the bullet or knife was in the room, and
therefore who was wielding it and how, which is a
pretty incredible claim if you think about it. Joining us
today is Pamela colof And Pam's a senior reporter at
Pro Publica and a staff writer from New York Magazine. So, Pam,
(10:43):
when you really look into these forensic sciences and see
how they originated, I have to say that in all
of my work and researching various disciplines of forensic science,
blood spatter analysis has easily the craziest story of them all.
And you've researched this intensely. Um, I want you to
(11:06):
tell us more about her McDonald, the so called grandfather
of blood spatter analysis. His belief was, and what he
sort of told generations of police officers was that yes,
bloodstained pattern analysis was based on highly complex trigonometry and
(11:27):
fluid dynamics, but that they could master the skills to
this and as little as a forty hour class. And
he began to teach these classes all over America at
local police departments and did so for decades and in
turn turned police officers with no training in physics or
(11:52):
high level of mathematics into quote unquote experts. So he
turns these people with no training in physics or mathematics
into experts. You don't have any training in physics or mathematics,
and you took the class and became an expert. Right.
I went to Yukon, Oklahoma, where the police department was
(12:14):
offering a week long class. I took it with about
twenty law enforcement officers, and I was stunned at at
what I saw. We were sort of rubber stamped through
just the most basic basic concepts of blood stained pattern analysis,
and we would have to identify stains according to this
(12:36):
taxonomy that the discipline has these particular kinds of spatters
and drips and spurts and swipes and smears. They have
all these different names for things. The final day of
the course where our instructor set up these sort of
mock crime scenes and he used blood too on sort
(13:00):
of like butcher paper to um show us what blood
stains would look like at a crime scene. And then
our job, and this is part of our final grade,
was to come in and just by looking at that
no other clues, no other context clues, use that to
say what had happened at the crime scene, and and
(13:24):
then to learn how to say it on the stand
in a way that sounded like a scientist and like
someone with scientific certainty. And and that to me was
extremely disturbing. Aside from what you witness in the class,
tell me, like, what is one thing that stood out
to you as something that seemed off about, you know,
(13:45):
what he did or what he had students do. I
know of several students who have shot cadavers and controlled
situations to look at the way that blood moves. Now,
think about the way that blood operates within a cadaver
versus a living person with a beating heart. I mean,
(14:07):
there's so many things about that that don't make sense, right,
So with a dead body or cadaver, it should be
common sense. There's no more blood flown through the veins, right,
the person isn't moving anymore, and there's a different viscosity
or thickness to the blood when someone is dead. So
all of this makes a difference in first how the
(14:28):
blood travels once the body is hit with an object,
whether it be a bullet or a bat, and then
the blood will also look different once it lands, doesn't
It all come down to there are a lot of
different ways that blood can get on a surface, and
you can't say definitively which way it happened. That's exactly right,
that's exactly right. The surface that blood falls onto makes
(14:52):
a tremendous difference in what you can tell if you
had a white all linoleum or marb bowl room, like
a very controlled atmosphere like that, you might be able
to make some determinations about some things possibly, But in
real life, in a real crime scene usually have blood
(15:14):
falling onto porous things, carpet, clothing, things where it becomes
increasingly difficult to tell the angle that blood fell onto
those surfaces at because they're so diffused when they land
on that material. Yeah, I mean, there are some cases
where blood spatter analysts have been on video trying to
(15:36):
recreate a stain pattern from a crime and it takes
them ten or fifteen tries to get the stain to
look similar to how it looks at the crime scene
or on the close of the accused. I mean, I
saw one video where they finally get it right right,
They get it to look like it did at the
crime scene, after try after try after try, and they
start cheering and high fiving. So if it's so hard
(15:59):
to tell how a blood stain got where it did,
then what kinds of consequences will that have for someone
that's been accused of a violent crime. A common example
I've seen this many times is there's a spouse who
commits suicide, who uh, shoots themselves, and the other spouse
(16:24):
discovers the person who is shot, rushes over to the person,
cradles them, tries to give them first aid, and in
the process gets blood on them. And what I saw
again and again is if someone who's injured expels blood
from their mouth or their nose onto another person's clothing,
(16:46):
right they're coughing, they're they're struggling to breathe, that pattern
of blood looks very similar to the kind of atomized
blood that sprays when someone shot Hut. And then an
analyst for the state will be brought in and we'll
give this very convoluted logic as to why that happened
(17:11):
during the commission of the crime. And then there becomes
this divergence of opinion of did the victim hold the
gun and fire this upon him or herself or was
it the spouse who fired the gun? And the claim
is that by looking at the way that the blood
is distributed at the crime scene, you know what the
(17:33):
answer to that is. All right, Pam, you wrote a
two part story entitled Blood Will Tell And by the way,
to our listeners, if you haven't read about this case,
(17:55):
you absolutely should. Will link to the article in our
show notes. It is a fascinating, fascinating piece that Pam
wrote for Pro Publica and again it's entitled blood will
tell the Joe Brian Story, and it tells the story
of various ways blood stained patterned analysis can go off
(18:15):
the rails. And I want to say that it has
a happy ending, but it's a tragedy really right. I mean,
you have a man that was loved by everybody, he's
a high school principal. He spent thirty three years in
prison for the murder of his wife, and you know
your story. Pam was like the driving force, if not
(18:37):
the critical driving force behind getting him out of prison.
So please tell us about the Joe Briant case. Joe
Brian was a beloved high school principal in a little
Texas town called Clifton, Texas, and in when he was
by all accounts, out of town a hundred and twenty
(18:58):
miles away in Austin and an education old conference, his
wife was shot and killed in their home and this
was initially investigated as a robbery gone wrong. And about
a week after the murder, a flashlight was discovered in
(19:18):
the trunk of Joe's car that had tiny, tiny specks
of blood on it, and there was no blood found
in the car or anything like that. And who this
blood belonged to, whether it was even human blood, all
of this was was unknown. But the state took this
(19:40):
and they brought in a blood stained pattern analyst, a
local cop who had had forty hours of training, and he,
through his testimony, connected that flashlight and the spatter pattern
on the flashlight to the crime scene. He said this
could only have happened at the crime scene, and his
(20:02):
theory of the case was that Joe had held the
flashlight in one hand a gun and the other he
had shot his wife, Mickey. The blood had gotten onto
the flashlight and this was proof that he was guilty
of murder. How this man, who would have been bloodied,
how did he drive off in this car that was
(20:24):
absolutely pristine was explained away by the expert, who said
things like, after he killed her, he completely changed his
clothes and he changed his shoes, and that's why the
interior of the car was clean. But he made this
error and put this in the truck, and that was enough.
I mean, this is a man. There was no motive,
(20:46):
no physical evidence. He was many counties away he was
in a different place the night of the crime, but
that expert testimony from that cop was enough to get
a murder conviction and life sentence. I mean, it's so
difficult to listen to this, and I wish I could
say that I'm I'm sitting here, you know, shocked, and
(21:09):
and was able to tell you what. I've never heard
of a case like that before, where you know, the
accused is actually in a different town altogether. But unfortunately
I've heard this before. UM, this happens to many defendants
or or people that are accused of crimes they didn't commit.
Was Joe ever exonerated? So Joe was not exonerated, He
(21:32):
was paroled and the state of his case. Uh, he
had an evidentiary hearing in twenty nineteen with some really
really compelling testimony that suggested not only his innocence but
a possible other perpetrator. In Texas, we have something called
a junk science writ which is fairly unusual, but it
(21:56):
allows somebody to take bad evidence, junk science that's been
allowed into their case and uh to try to get
the courts to take a second look at their case
because of that. And so he's been paroled and is
still fighting to prove his innocence. Joe turns eighty later
(22:19):
this year. He's had congestive heart failure for numerous years.
His health is not good, and the Texas Sport of
Pardons and Pearls finally decided to release him in in
March and Um he is now at home with his brother.
He's got an ankle monitor for a couple more months
and then he'll go back to life as much as
(22:42):
it can be normal after thirty three years behind bars.
I mean a lot of people always say they hear
about this, you know, work of helping the wrongfully incarcerated,
but they hear about it when it's too late, you know,
after they have lost decades and decades of their lives.
Oftentimes their lives have been utterly destroyed. I mean, you know,
(23:05):
you read the stories about them getting out, but take
it from me, having worked with UM scores of axonorees,
not only my clients, but some of the innocence projects
other clients, they're just never the same. UM. The psychological
damage of being you know, confined to this narrow space,
(23:25):
and all of the horrors of prison that you hear
about that happened to these people, and then on top
of it, being in there for something you didn't do.
I mean, there have been studies about how it inflicts
even more psychological damage on people to be in there
for something that you didn't do, and the lost years
just can't be replaced. No amount of money is going
(23:47):
to make that pain go away, no matter how much
compensation they get. And yet these wrongful convictions just continue
being propelled by junk science. It's just astounding, ex actly
I was. I was flabbergasted when working on the story
and trying to find, well, where where is the research
(24:09):
that backs up all these claims that people are making
on the stand, Where is the academic work that's been done,
Where is the anything? This is a discipline that when
when you look at sort of the fundamentals of how
do you prove reliability? Uh, no one can quote an
(24:30):
error rate, There are no markers that show that this
is something that holds up under any kind of scrutiny.
And so this idea that we can not just look
at blood as a clue as we would at many, many,
many things in a crime scene to help us figure
out what happened, but as something in which you can
(24:54):
entirely independent, even if any other evidence reconstruct the crime
itself quickly leads you into wrongful conviction territory. I want
(25:15):
our listeners to be rest assured that we're not just
throwing around this term junk science haphazardly. Just to be
crystal clear, there has been extensive research on the effectiveness
and the accuracy of blood stained pattern analysis. And this
will become somewhat of a drumbeat in our series. We're
(25:38):
going to continue to go back to this study that
was done in two thousand nine by the National Academy
of Sciences, and they issued a report after examining various
disciplines of forensic science that are used in courtrooms across
the country, everything from fingerprints to footwear impressions, to bite
marks and of course blood stains. Right PAM. The National
(26:00):
Academy of Science is actually made up of scientists who
published pure reviewed work and who were involved in research
with real scientific integrity, and they set the bar very
very high, and they have long been extremely critical of
(26:22):
blood stained pattern analysis and really caution in courts to
not consider this a science with the sort of accuracy
as for example, some DNA testing um or toxicology where
you really have you have numbers and certainty to work with.
(26:44):
So outside of d n A, the n A S
study was really critical of all of these other disciplines
of forensic science. And what it's said about blood spatter
analysis is this quote, the capable analysts must possess an
understanding of applied mathematics, physics, fluid transfer, wound pathology, and
(27:06):
that this blood spatter analysis is more subjective than substantive.
So this report should have been a bombshell in the
forensic science community, and it really should have changed our
court system. I mean, why do you think it is
that you have some of the leading scientists in the
country so critically rebuking all of these forensic disciplines, but
(27:28):
courts don't seem to pay any attention to it. Judges
are looking backward at precedent, and science is supposed to
be looking forward each year. We understand through scientific inquiry
things like forensic science and its accuracy better and better
and better. But the courts never looked at that. They
(27:50):
just kept looking back blood saying pattern analysis, like so
many of the disciplines that are identified in that report,
is being problematic. We're so deeply entrenched in crime labs,
and across the country you had experts in crime labs
that were under local police departments where this was just
(28:12):
this was the way it was done. So there was
no effort on the part of law enforcement to change that.
And for prosecutors, there was no incentive because a good
blood stained pattern analyst on the stand who's a phenomenal
witness really connects with the jury and makes things sound
very simple. Um, that's gold that can make your case,
(28:35):
and that can take a circumstantial case and move it
from gray to black and white. So, like you said,
many judges rule on a case based on precedent, and
the precedent provides essentially the license for judges to accept
bloodstains spatter analysis as evidence. But there was at least
(28:55):
one judge who did pay attention to this study, and
that was a federal judge that I very well in
Boston named Nancy Gartner. Um, Nancy and I are actually
co authors on a textbook together. I'll give a nice
plug gear for the law of juries and case anybody
is aching to read a legal textbook. But tell us
about what Judge Nancy Gartner did. I mean, she was
(29:19):
and and really sadly remained sort of a lone voice
in the in the wilderness, she came out swinging and
said that judges had to take a more active stand
in being gatekeepers to this kind of evidence, and that
they could not be letting junk science into the courtroom.
(29:41):
And if we're going to continue to see some of
the disciplines that the n AS report has identified as
unreliable in our courtrooms, I want to hold admissibility hearings
before we ever get to trial to decide whether we
should allow this in. And that shouldn't have been a
revolutionary idea, but it really was. And she was an
(30:05):
outlier in this and got a lot of pushback from
from prosecutors about that. I mean, it's really shocking that
she got pushed back, not just from prosecutors but also
from you know, her colleagues or fellow judges. She's a hero,
and I think that her insistence on something is basic
(30:27):
as fairness being controversial is really disturbing. Life doesn't always
imitate art, especially when it comes to blood stains. It's
important to remember that shows like Dexter and c s
I are just entertainment. It isn't real life. And many
(30:49):
of the techniques that we think our science are far
from it. You might be listening to this wondering what
you can do to make sure that junk signs like
blood stained patterned analysis stop is being admitted into courts.
In our show, notes were attaching a link to the
National Academy of Sciences report that we spoke about in
this episode. Send it to your local criminal court judges.
(31:12):
Give them something to think twice about before admitting this
evidence in their courtroom. Something else you can always do
is make sure that when you get called to jury service,
you don't try to get out of it. You do it,
and do it as a conscientious juror. When I pick
a jury in a criminal case, one question I always
ask is how many of you believe that my client
(31:34):
must have done something wrong because they've been arrested and
accused of a crime. More than half the hands in
the room always go up. Remember these principles, let the
presumption of innocence only work if we breathe life into them.
Someone that is accused of a crime ought to be
considered innocent all the way through the trial, all the
(31:57):
way through your deliberations. They are wrapped in a cloak
of innocence Like a warm blanket, it can never be
torn from them unless the prosecution overcomes the highest burden
in our justice system, which has proved beyond a reasonable doubt.
You give the benefit of the doubt to the accused. Unfortunately,
(32:18):
as I've seen time and time again, the presumption of
innocence in this country is not a given. It is
an ideal that we talk about but we don't live
up to. But by uncovering the lack of credibility of
junk signs and our courts, we hope to get one
step closer. Next week, we'll explore the junk signs of
(32:44):
Arson with Innocence Project co founder and famed civil rights
and criminal defense attorney Barry Scheck. Wrongful Conviction Junk Science
is a production of Lava for Good Podcasts in association
with Signal Company Number One. Thanks to our exact get
A producer Jason Flom and the team, it's Signal Company
number One executive producer Kevin Wardis and senior producers Karen
(33:07):
korn Haber and Brit Spangler. Our music was composed by
Jay Ralph. You can follow me on Instagram at dubin
dot Josh followed the Wrongful Conviction podcast on Facebook and
on Instagram at Wrongful Conviction and on Twitter at wrong Conviction.
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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