October 7, 2020 • 33 mins
Josh Dubin explores Gunshot Residue Evidence with Joanna Sanchez from the Wrongful Conviction Project at the Office of the Ohio Public Defender.
Of all the many faulty forensic sciences, Gunshot Residue certainly has some truly startling and scary issues that began almost a century ago.
Learn more and get involved.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
It's Saturday night. You're in your front yard working on
your moped. Your dad is sitting on the picnic bench
chatting with you as you install a new starter. You
and your friend Alan saved up all year so you
could eat buy a bike. Neither one of them is
in great condition, but now that school is out you
have all summer to fix them up. After a little while,
(00:23):
your friend Shanta arrives at your house and he says, hey,
Alan's bike has a flat. He wants us to come
help him fix it, and you're thinking again, his bike
is always breaking down. It's always got some kind of problem.
At first, you were a little jealous of Alan's red
raz but that guy keeps getting flats. You pat the
seat on your brown moped. It's pretty ugly, but at
(00:46):
least it's faithful. You ask your dad if it's cool
if you go over to Alan's grandmother's to get the bike.
He looks at his watch and says, well, it's pretty late,
but hurry up, go get it and you can bring
it back here to work on it. When you and
Shanty get to Alan's, shanty heads inside to help Alan
with the bike. Another flat. You say, when Alan comes
(01:08):
out of his house. Don't even start, Alan says, tossing
you a can of soda. You hang out for a bit,
and then the three of you start walking Alan's bike
towards your house. You're teasing Alan about how often is
moped as problems when a green sedan coming from the
opposite direction stops right next to you. The man driving
(01:28):
the car leans out the window and says, hey, you
guys have any dope nah? Alan says, we don't mess
with that ship. Yell at the guy, hey, man, get
out of here, and the green car speeds off. You
walk a bit further down the block, and then you
hear shots ring out. Oh shit. All three of you
(01:49):
start frantically running down the street and don't look back.
You don't stop running until you get back to your house.
You look around, making sure no one's shooting at you,
(02:12):
and then you catch your breath. You chante and Alan
talk about the gunshots for a few minutes. It's not
that out of the ordinary in this neighborhood, but still
it's always scary as ship when it happens. The adrenaline
finally wears off and you start working on Alan's bike.
There's a nail in the tread of the tire. You
(02:32):
pull it out, plug the hole, and let the glue set.
After pumping up the tire and giving it a few
good pushes, Alan grabs his bike and begins to walk
it back down the street towards his grandmother's house. Once
Alan gets to his street, he sees the green car
that stopped to ask for drugs, but now it's front
end is just demolished. It's smashed into the side of
(02:55):
a house a few doors down from his grandmother's. There's smoking, chaos,
and police just everywhere. Over the next few days, you
expect to see Alan riding his red raz after all,
the tire is fixed, but you don't see him around
the neighborhood. A week passes, you knock on his door
(03:16):
and his grandmother tells you that the man in the
green car had been shot. The cops asked Alan to
come to the police station to help with the investigation.
She expected Alan to be home that same night, but
he's being held in jail. She's afraid and confused, and
suddenly so are you. A few weeks later, you're in
(03:38):
your backyard throwing a tennis ball against the side of
your house. Worrying about Alan, wondering if he's okay. Out
of the corner of your eye, you see some people
walking towards you, and it's four police officers. At first
you freeze, overcome with fear, and then you take off.
(04:00):
He took Alan for no reason. What's going to stop
them from grabbing you and doing the same thing. But
you're fourteen years old. They're bigger than you, faster, and
there's more of them. They catch up, grab you and
put you in handcuffs. Your first thought is I'm gonna disappear,
just like Alan. You're putting an interrogation room. You tell
(04:24):
the officers what happened that night, the night the guy
in the green car got shot, how you and Allen
told him to go away. But they don't want to
hear the truth. They don't want to hear anything you're
telling them. One of the detectives scoots his seat closer
to you. We know Alan did this. His hands tested
positive for gunpowder residue. You know what that is, Son,
(04:47):
We know he was involved. You're gonna tell us what
Alan did. You're gonna tell us that Alan had the gun,
that you saw that gun, and that what he did
is he went up to that car that stopped and
he talked to the guy in the car, and the
next thing you knew was you heard gunshots and you
saw Alan running. And I'm gonna tell you something you
(05:10):
don't tell us exactly that here's what's going to happen.
You're going to get charged with murder. You got that.
You know how much power these guys have. They already
have Alan, who knows what they're gonna do to you.
You're petrified. The walls feel like they're closing in on you.
You figure, I should just tell these guys what they
(05:31):
want to hear. Then my parents can help sort this
out later. So you do what they say. You make
up a story, one that sounds like what they want
to hear, and they record it. You'll tell them anything
just to get out of that room. Before letting you go,
the cops tell you you're gonna have to testify it
(05:52):
Alan's trial. We'll see you. Then. A few weeks pass,
and you're relieved when school starts again. Maybe this will
distract you from thinking about Alan, from the feeling that
it's your fault. He's still sitting in jail. The day
of Alan's trial, you and Schante decide you're not going
to show up. You're not going to testify against your friend,
(06:14):
lie again and dig a deeper hole for Alan. But
the cops show up at your school and they bring
you both to court. At Alan's trial, an officer takes
the stand and says that he personally collected samples from
Alan's hands. He swabbed the front and back of them
with Q tips and then tested those Q tips to
(06:36):
see if there was gunpowder residue present. The officer testifies
the defendant's right hand tested positive for antimony and bari um,
two chemical elements that are present in gunpowder residue. There
is no doubt in my mind that the defendants shot
the gun that was used in this homicide. This is insane.
(06:58):
You think you know and didn't have a gun. He
was with you when those shots rang out. How can
they just make this stuff up. When you're on the
witness stand, you glance over at the jury. They're all
sitting forward, staring right at you, through you. It seems.
(07:19):
The prosecutors start asking all of these questions. Your answers
are all over the place. They barely make sense. You
were told to tell lies, but It's hard to keep
it all straight because none of what you're testifying to
actually happened. But at seventeen years old, Alan is convicted
of murder and sentenced to fifteen years to life in prison.
(07:44):
The gunshot residue that the police and prosecutor's claim was
found on Alan's hand is the only physical evidence linking
him to the crime. The story you just heard is
based on the true events of Raymond Carl Alan Warren's trial.
He was convicted of murder based on faulty gunshot residue evidence.
(08:07):
The police also coursed as two friends, Shanta and Antonio,
into giving false testimony saying that Alan committed the crime.
Alan is now in his forties and he is still
in prison. He's been there for over twenty five years,
serving a sentence of fifteen to life for a murder
(08:27):
he did not commit. I'm Josh Dubin, civil rights and
criminal defense attorney and innocence ambassador to the Innocence Project
in New York. Today, on Wrongful Conviction Junk Science, we
examine gunshot residue evidence. As listeners to the show, you've
probably heard how coerce confessions are used to convict innocent
(08:51):
people on another podcast in our feed, wrongful conviction and
false Confessions. Now, the coerse confessions of Shanta and Antonio
were certainly factors in convicting Alan at his trial, but
today our focus is on faulty forensic science and gunshot
residue certainly has its issues that began almost a century
(09:12):
ago when three dozen former Brooklyn Navy yard workers found
themselves irreparably poisoned by the asbestos they used in the
construction of the battleships that won World War Two. Perry
Whites and Arthur Luxembourg literally putting everything on the line
to successfully represent them. Since then, they've championed the rights
(09:34):
of over fifty thousand regular Americans injured through the negligence
and malfeasance of mainly large corporations. Their ability to level
the playing field against seemingly insurmountable odds has led them
to litigate against opponents as diverse as Big Pharma all
the way to those responsible for rendering the water of Flint,
Michigan undrinkable. Whites and Luxembourg ticket personally when there's a
(09:57):
miscarriage of justice anywhere and there for they feel a
sense of responsibility to support Bronthol conviction podcasts. You can
learn more about them by visiting whites lux dot com.
That's w e I t z l u x dot com.
(10:19):
In three, a group of American police officers from several
departments gathered in a lab at the police headquarters in
Mexico City. They were there to observe Teodoro Gonzalez demonstrate
his new technique for testing gunpowder residue. The test became
known by many names, the dermal nitrate tests, the glove tests,
(10:40):
but my favorite might be the paraffin gauntlet test. The
officers watched his Gonzalez poured white hot liquid paraffin wax
over the fingers, hands, and risks of his lab assistant.
A glimmer of discomfort flashed across the assistant's eyes as
the hot wax code at his skin. Next, Gonzalez delicately
(11:03):
wrapped the layer of cotton around the assistance fingers and hands.
Layer after layer of wax, then cotton were added until
gloves began to form while the paraffin cooled. Gonzalez explained
that after a suspect fires a gun, the gunpowder residue
becomes embedded deep in the pores of the skin. Even
(11:25):
weeks after a gun is fired. The hot melted paraffin
will open up the pores mixed with the oils and
the skin and caused the pores to discharge the gunpowder
residue trapped within them. Part of this experiment included Gonzalez's
assistant firing a gun and then washing his hands prior
(11:46):
to them being wrapped. The American officers noted the advantage
of this technique, suspects couldn't simply wash their hands and
avoid detection. Gonzalez delicately peeled the gloves from the hand
ends of his assistant and then took them over to
the lab table and gently laid them down. He measured
(12:07):
a small beaker of a chemical solution that contains sulfuric
acid dropped by drop, he coated the interior of the
gloves with the mixture. Minutes later, dark blue specs the
size of pinpoints began to form, and Gonzalez explained that
these blue dots indicated the presence of dermal nitrates from
(12:29):
gunpowder residue. The police officers hurdled around the paraffin gloves
to see for themselves. After that, it took only a
few years for the paraffin test to become widely used
in police departments across the United States. Within three years
of gonzalez demonstration, it was used as forensic evidence in
(12:51):
the murder trial of James L. Westwood in Pennsylvania. At
his trial, the state called expert witnesses who testified the
gunpowder residue was present on Westwood's hands, indicating that it
was he who shot and killed his wife. But Westwood's
defense attorney called his own expert witness, a chemist who
(13:12):
had conducted his own study and found that thirteen different
substances could also cause the blue dots to appear on
the paraffin gloves. He cited things like ordinary soot, certain
brands of toothpaste, tobacco cigars, cigarette ashes, and different types
of matches, but none of that evidence mattered for the jury.
(13:36):
Westwood was convicted of the first degree murder of his
wife and sentenced to life in prison. By seven A
wider study concluded that rust, colored fingernail polish, and residue
from evaporated urine, soap, and tap water would all test positive.
(13:56):
Contact with any of these objects would create blue dots
to appear on the gloves and a paraffin test. The
paraffin test is no longer being used today, and the
signs behind testing gunshot residue has changed. By the time
Allen was arrested in it's sixteen years old, officers used
(14:17):
a new version of the test. It's called the atomic
absorption test, but that test has many of the same
reliability problems as the paraffin glove. None of the evidence
that was used to convict Alan has withstood the test
of time. The test used to indicate that he had
(14:38):
gunshot residue on his hands is no longer considered reliable.
So joining us today is Joanna Sanchez and she's from
the Wrongful Conviction Project at the Office of the Ohio
Public Defender and we're super excited to have her today.
She's currently representing Alan, whose story we talked about at
the beginning of this episode. Now, al A's full name
(15:01):
is Raymond Carl Allan Warren, and Joanna might refer to
him as either Alan or Raymond, but don't get confused, okay,
because Raymond and Allan are the same person. So Joanna,
it's great to have you here today, and I'd like
you to start by telling us a little bit about Alan.
What was he like as a sixteen year old living
in Dayton, Ohio. Alan was, by all accounts, a normal teenager.
(15:26):
He had a few brothers and he's very close with them.
He was close with his mother, very close to his grandmother,
you know, had lots of friends in the neighborhood, would
spend time with them. Alan loves working on cars, so
that was something he's spent a lot of time doing,
both fixing cars and painting them, playing basketball. And now
(15:49):
you know, I've known him now for six years. He's
a very engaging, caring person, very talkative, has strong relationships
with his family and friends. Still, Okay, so I want
to get into the details of the crime a little bit.
So police officers arrive on Allen Street the night when
he had been fixing his moped and this green car
had crashed into the side of a house and the
(16:12):
driver is shot. So what what makes them even decide
to go after Alan as a suspect in the first place.
So I think it's a matter of circumstance. The boys,
they worked on their scooters for a period of time
after they heard the gunshots, and then in order to
go home, Alan had to essentially go through the crime
scene because it happened on the street he was living
(16:33):
on with his grandma's. So Alan that night told the
police about this encounter with the victim, and the police
asked him if he was willing to come down to
police station to give a statement. So he voluntarily went
to the police station and also voluntarily submitted to a
gunshot residue test. And the result of that gunshot residue
(16:56):
test was that Alan tested negative on his left hand
even though he's left handed, and the palm of his
right hand, though, tested positive for two elements that are
known to be in gunshot resdue And I honestly think
once that gunshot residue test came back, they just became
las or focused on Alan. So tell us a little
(17:16):
bit about that test. What exactly did gunshot residue testing
entail at the time when Alan went down to that
police station. So, gunshot residue testing, the idea behind it
is that one of the person shoots a firearm, particles
will be admitted that will land on their clothing or
their hands or their face, and that those particles can
(17:38):
then be tested. You can't see them, but they can
be tested and tell the police something about whether the
person being tested might have shot a firearm. All gunshot
residue testing is not a simple yes or no test.
This is gunshot residue or it's not. What it's really
testing for is the elements that are known to make
up gunshot residue, so specific sickly, they test for three
(18:01):
elements in most circumstances, and that's lead, barium, and antimony.
In Raymond's case, they actually only tested for two of
those elements, and what they used was an atomic absorption test,
which is now largely out of use, and that's because
it has a high risk of producing false positives. So
the reason the a test is unreliable is because it
(18:24):
tests for elements that are also present in items that
are completely unrelated to guns. So as a result, a
person who's never touched or been near a gun put
falsely test positive. So Joanna, give us an example. What
are some things that Alan might have touched that would
make him test positive for gunshot residue. Brake linings are
(18:46):
one example of an item that has the same elements
as gunshot residue. And on the night of the shooting,
as we know, Raymond, who frequently was working on cars,
had contact with brake linings while he fixed his motorized scooter.
So the A A test as used in Raymond's case
is problematic because we can't know if those two elements
(19:09):
came from gunshot residue or if they came from brake
linings or some other substance that has those same elements
as gunshot residue. So you mentioned that the A A test,
the atomic absorption test that was used on Allen, is
not really considered anymore to be dependable, but they're still
(19:30):
using gunshot residue as a form of evidence, just with
new tests. Has signs progressed in any significant way since
the A test, gunshot residue testing generally has progressed somewhat.
The A test is no longer really in favor because
of its limitations, and there was a switch over in
(19:50):
the mid two thousand's to a test called S C
M E D S, and that test was better and
that it not only would tell an analyst whether those
elements were present, but also could tell them the shape
and size of the elements and sort of how they
functioned together, whether they were fused, whether they were the
shape of a sphere, all things that would be important
(20:12):
for distinguishing between gunshot residue and let's say another substance.
And so in order for an analyst to have any
confidence that something is actually gunshot residue, they'd need to
do that sort of morphological analysis and also compare all
of the elements in that gunshot residue example with all
of the elements in other substances so that they can
(20:34):
actually eliminate other items. Okay, So that sounds like it
does have the potential to be more accurate tests because
you're able to look at the residue under a microscope
and tell that the molecules actually come from a gun
and can't be from anywhere else. But is this a
perfect fix? Even if that's done properly, there's still a
(20:55):
second issue with gunshot residue testing, and that's the reason
why a scientific commune has really pulled back from this testing,
and that issue is contamination. So gunshot residue is incredibly transferable.
It's very easy to pick it up by touching a
surface that's contaminated with gunshot residue. So if I were
(21:16):
to shoot a gun and shake your hand, you could
very likely test positive for gunshot residue, and with that
that creates just too big of a risk for environmental contamination.
And what it means is that, you know, people who
touch the back of police cars, handcuffs, police officers, police stations,
there's a good chance they could pick up gunshot residue
(21:38):
from those surfaces, even though they themselves never touched a gun.
And we know that happened in Raymond's case because he
was transported to the police station in the back of
a police car and then held in an interrogation room
for several hours before he was actually tested. If on
the call before that police officer had taken somebody who
shot a gun down to the police station, that person
(22:00):
could have left gunshot residue there and then Alan gets
in the car and picks it up. And there have
been studies across the country that show that kind of
thing occurs. So there is a study in Colorado where
they tested I think forty police cars or excuse me,
twenty six police cars, and they found gunshot residue particles
and fourteen of them. So this kind of transference is
(22:22):
very common unfortunately, So in you know, in hearing this,
I gotta tell you this is like, it's startling, it's scary,
and you initially start to think, well, how many people
might have been wrongfully convicted when the evidence in their
case was just gunshot residue on their hands. Um, I
(22:43):
mean you have to admit it's pretty compelling evidence for
people that don't know otherwise. And I mean when I
mean for people that don't know otherwise, I'm talking about jurors.
So with that in mind, how big of a role
did faulty gunshot residue evidence playing Alan's case? The gunshot
residue evidence here was critical in Allen's trial. The examiner
(23:05):
when he testified, what he said was that this positive
test means one of three things. Either Allan shot a gun,
Alan was a victim of a shooting, or Alan handled ammunition.
But we know he wasn't a victim, and both of
the other options still implicate him, whether he's shooting a
gun or handling ammunition. What the examiner left out is
(23:27):
the fourth possibility that this is contamination and the fifth possibility,
which is that it's not gunshot residue at all. It
could just be barrium and antimony on Alan's hands as
a result of him having contact with brake linings earlier
that night, and that is the entire scope of the
physical evidence in this trial. So it as a result
(23:59):
of this gets gunshot residue evidence, Allan gets sentenced to
fifteen years to life. He's only seventeen years old. I mean,
what options did he have to seek recurs How would
one go about proving that gunshot residue evidence is false.
It's incredibly difficult for anybody who's incarcerated to collect the
(24:21):
evidence or knowledge necessary to file a new trial motion
or raise a claim that they were wrongfully convicted. So
part of that is he's locked inside, so he can't
go out and conduct any sort of investigation. He lacks
the funds, so he doesn't have the ability to hire
an attorney or an investigator or an expert witness to
(24:43):
go get this evidence. Alan was challenged and that he
couldn't even get the records in his case, So if
he wanted to write a motion for a few years,
he did not even have a copy of his transcript
that would have helped him to do that. So there
are so many barriers. He's a smart guy, but he's
not an attorney. I mean, that's why we say people
should have attorneys to litigate these complex issues is incredibly difficult,
(25:06):
and it's all the more so for somebody who's a
teenager and they're incarcerated. They don't have access to these things.
And so he fought on his own for years and
years to try to challenge his conviction. That kind of changes,
an evolution with gunshot residue was happening, but he didn't
He did not really know that. He didn't have access
(25:29):
to forensic science articles or expert witnesses, so he wasn't
even aware that that was necessarily an issue in his case.
And eventually in Shanta, Hunt gave a statement and said,
I lied because I was scared. Alan was with us
when we heard the shots, so he could not have
shot the victim. And in two thousand eight, Antonio gave
(25:53):
a very similar statement saying, again, I was scared and
this is a lie, and I did not come award
for all these years because I was scared of perjury charges.
Now the Innocence Project has become involved in Allen's case,
and you and your co council are fighting to get
Alan justice. But as our listeners know by now, as
(26:14):
I'm sure you and I can agree, this problem is
so much bigger than Allen's case. What needs to happen,
in your opinion, to make sure things like gunshot residue
evidence stop being used to convict innocent people so that
this doesn't happen again and again and again. I think
police officers and lab examiners should be careful about when
(26:36):
they do gunshot residue testing and only do it in
the very optimal circumstances, if at all. I think there
are some police officers who feel that it's just a
piece of the puzzle and it's a helpful tool in
the investigation. But I think the risk with that is
that it leads to tunnel vision. You know, wants to
have that piece of evidence to become fixated on a suspect,
(26:58):
and our our courts are judges, need to look at
it critically as well. The court is the gatekeeper of
expert testimony and forensic evidence that comes in, and what
we're seeing is that some courts are limiting what can
be said about gunshot rest of evidence, but they're still
allowing it in. And I think at some point we
hit a breaking point where the risk of prejudice for
(27:21):
this evidence outweighs the benefit of it because it is
so unreliable in so many different aspects. That are we
risking swaying the jury with evidence that really isn't reliable
enough and shouldn't be presented at all. All Right, So
that certainly addresses what people involved in the justice system
(27:42):
can do. But what can everyday people do. We have
a lot of our listeners asking us, you know, what
can I do to help? So please tell them things
they can do to make sure that this kind of
junk science stops being used and it gets out of
our criminal justice system once and for all. I think
(28:03):
the biggest thing is people sharing this information and sharing
podcasts like this, sharing when somebody's exonerated based on forensic
evidence that we now know has been discredited. Because the
more people that know about this, I think the more
the system will improve. I think the impact of sharing
this podcast and sharing his story is that more people
(28:25):
hear about it, and then they take that knowledge with
them when they vote, and they take that knowledge with
them when they interact with public officials and ask them,
how do you approach wrong for convictions? How do you
approach forensic science? Are their laws in place that allow
for these convictions to be challenged appropriately. And I think
(28:46):
having the knowledge that's gained from listening to a podcast
like this equips people with the sort of the talking
points and the ability to ask those questions of public officials.
So tell us a little bit about where Allen is
now and what options are left for him. At this point,
Alan had litigated emotion asking for a new trial, and
(29:09):
we stepped into that litigation on his behalf in two
thousand and fourteen, and it's kind of been up and
down through the courts over several years. But earlier this
year the Supreme Court of Ohio decided not to take
his case. So where we're at is we continue to
fight for him, and we believe strongly in his innocence
(29:29):
and that he was wrongfully convicted, and so we're moving forward.
We're hoping to find new evidence or hoping that a
new avenue of relief opens up that allows Alan to
challenge his conviction and hopefully one day go home. Look, Joanna,
I um, my heart sort of you know, aches for
(29:49):
you and for Alan really because I have been there before.
I know that when cases you know, don't work out,
you know, on our initial first try or first fifteen
tries and go the way we need them to go,
because our clients are innocent, and we know they're innocent.
It can be so frustrating. What's your reaction when you
(30:10):
have setbacks like this. I know that I've I've wept
on my wife's shoulder before, I know that I have
punched walls. I've had the spectrum of emotions. But you know,
tell me a little bit about what it's like for
you when you know you're faced with setbacks like this,
and you know what it's like with Alan still sitting
(30:31):
in prison. I think the important thing we do is
we kind of keep moving forward and keep thinking about
our clients, keep thinking about Alan and what he's going through.
And it's so important that we stay in the fight
and continue to be a voice for those people. And
I hope one day it's not this way. But I
know for me, I look at all the two thousand
(30:54):
plus exonerations that we know about, and I see that
those are never easy, right. They come after set back,
and people have to try multiple different times, multiple different ways,
And so I hope that at some point in time
it doesn't have to be that way. But at least
for now, I know that it's absolutely worth it to
keep fighting for this person and to keep hoping that
(31:14):
one day something we do works and somebody pays attention
and that he gets the justice he's do. You know,
I tell people all the time that these wrongful convictions
are super difficult. You have to fight tall odds, You
(31:35):
have to keep on fighting forward in the face of
constant rejection from appellate courts. And if you're not willing
to deal with setbacks, if you can't pick yourself up
and dust yourself off and keep charging up that steep slope,
you're really in the wrong business. And it really does
take a team effort. So the more you can share
(31:55):
these stories, the better off we're all going to be,
because there's power in numbers, and there's power in a
collective message. So I hope you will do just that.
Please share our podcast and take action, whether it be
writing your local judges as I often implore you all
to do, or ensuring that when you vote, you were
(32:17):
voting for those judges and the jurisdiction which you live
that actually have the qualifications and the temperament to be
open minded and thorough such that they won't blindly accept
that legal precedent equates to reliability. Sometimes bad science remains
in our system of justice because it goes unchallenged. It's
(32:40):
up to all of us to shine a bright light
on these junk sciences and force a reckoning. Kay Next week,
we'll explore the junk science of tool mark identification with
science journalist Tim Ricorreth. Wrongful Conviction Jung Science is a
(33:05):
production of Lava for Good Podcasts and association with Signal
Company Number One. Thanks to our executive producer Jason Flom
and the team, it's Signal Company number One executive producer
Kevin Wardis and senior producers Karen corn Haber and Brit Spangler.
Our music was composed by j Ralph. You can follow
me on Instagram at dubin dot. Josh followed the Wrongful
(33:27):
Conviction podcast on Facebook and on Instagram at Wrongful Conviction
and on Twitter at wrong Conviction
It's Saturday night. You're in your front yard working on
your moped. Your dad is sitting on the picnic bench
chatting with you as you install a new starter. You
and your friend Alan saved up all year so you
could eat buy a bike. Neither one of them is
in great condition, but now that school is out you
have all summer to fix them up. After a little while,
(00:23):
your friend Shanta arrives at your house and he says, hey,
Alan's bike has a flat. He wants us to come
help him fix it, and you're thinking again, his bike
is always breaking down. It's always got some kind of problem.
At first, you were a little jealous of Alan's red
raz but that guy keeps getting flats. You pat the
seat on your brown moped. It's pretty ugly, but at
(00:46):
least it's faithful. You ask your dad if it's cool
if you go over to Alan's grandmother's to get the bike.
He looks at his watch and says, well, it's pretty late,
but hurry up, go get it and you can bring
it back here to work on it. When you and
Shanty get to Alan's, shanty heads inside to help Alan
with the bike. Another flat. You say, when Alan comes
(01:08):
out of his house. Don't even start, Alan says, tossing
you a can of soda. You hang out for a bit,
and then the three of you start walking Alan's bike
towards your house. You're teasing Alan about how often is
moped as problems when a green sedan coming from the
opposite direction stops right next to you. The man driving
(01:28):
the car leans out the window and says, hey, you
guys have any dope nah? Alan says, we don't mess
with that ship. Yell at the guy, hey, man, get
out of here, and the green car speeds off. You
walk a bit further down the block, and then you
hear shots ring out. Oh shit. All three of you
(01:49):
start frantically running down the street and don't look back.
You don't stop running until you get back to your house.
You look around, making sure no one's shooting at you,
(02:12):
and then you catch your breath. You chante and Alan
talk about the gunshots for a few minutes. It's not
that out of the ordinary in this neighborhood, but still
it's always scary as ship when it happens. The adrenaline
finally wears off and you start working on Alan's bike.
There's a nail in the tread of the tire. You
(02:32):
pull it out, plug the hole, and let the glue set.
After pumping up the tire and giving it a few
good pushes, Alan grabs his bike and begins to walk
it back down the street towards his grandmother's house. Once
Alan gets to his street, he sees the green car
that stopped to ask for drugs, but now it's front
end is just demolished. It's smashed into the side of
(02:55):
a house a few doors down from his grandmother's. There's smoking, chaos,
and police just everywhere. Over the next few days, you
expect to see Alan riding his red raz after all,
the tire is fixed, but you don't see him around
the neighborhood. A week passes, you knock on his door
(03:16):
and his grandmother tells you that the man in the
green car had been shot. The cops asked Alan to
come to the police station to help with the investigation.
She expected Alan to be home that same night, but
he's being held in jail. She's afraid and confused, and
suddenly so are you. A few weeks later, you're in
(03:38):
your backyard throwing a tennis ball against the side of
your house. Worrying about Alan, wondering if he's okay. Out
of the corner of your eye, you see some people
walking towards you, and it's four police officers. At first
you freeze, overcome with fear, and then you take off.
(04:00):
He took Alan for no reason. What's going to stop
them from grabbing you and doing the same thing. But
you're fourteen years old. They're bigger than you, faster, and
there's more of them. They catch up, grab you and
put you in handcuffs. Your first thought is I'm gonna disappear,
just like Alan. You're putting an interrogation room. You tell
(04:24):
the officers what happened that night, the night the guy
in the green car got shot, how you and Allen
told him to go away. But they don't want to
hear the truth. They don't want to hear anything you're
telling them. One of the detectives scoots his seat closer
to you. We know Alan did this. His hands tested
positive for gunpowder residue. You know what that is, Son,
(04:47):
We know he was involved. You're gonna tell us what
Alan did. You're gonna tell us that Alan had the gun,
that you saw that gun, and that what he did
is he went up to that car that stopped and
he talked to the guy in the car, and the
next thing you knew was you heard gunshots and you
saw Alan running. And I'm gonna tell you something you
(05:10):
don't tell us exactly that here's what's going to happen.
You're going to get charged with murder. You got that.
You know how much power these guys have. They already
have Alan, who knows what they're gonna do to you.
You're petrified. The walls feel like they're closing in on you.
You figure, I should just tell these guys what they
(05:31):
want to hear. Then my parents can help sort this
out later. So you do what they say. You make
up a story, one that sounds like what they want
to hear, and they record it. You'll tell them anything
just to get out of that room. Before letting you go,
the cops tell you you're gonna have to testify it
(05:52):
Alan's trial. We'll see you. Then. A few weeks pass,
and you're relieved when school starts again. Maybe this will
distract you from thinking about Alan, from the feeling that
it's your fault. He's still sitting in jail. The day
of Alan's trial, you and Schante decide you're not going
to show up. You're not going to testify against your friend,
(06:14):
lie again and dig a deeper hole for Alan. But
the cops show up at your school and they bring
you both to court. At Alan's trial, an officer takes
the stand and says that he personally collected samples from
Alan's hands. He swabbed the front and back of them
with Q tips and then tested those Q tips to
(06:36):
see if there was gunpowder residue present. The officer testifies
the defendant's right hand tested positive for antimony and bari um,
two chemical elements that are present in gunpowder residue. There
is no doubt in my mind that the defendants shot
the gun that was used in this homicide. This is insane.
(06:58):
You think you know and didn't have a gun. He
was with you when those shots rang out. How can
they just make this stuff up. When you're on the
witness stand, you glance over at the jury. They're all
sitting forward, staring right at you, through you. It seems.
(07:19):
The prosecutors start asking all of these questions. Your answers
are all over the place. They barely make sense. You
were told to tell lies, but It's hard to keep
it all straight because none of what you're testifying to
actually happened. But at seventeen years old, Alan is convicted
of murder and sentenced to fifteen years to life in prison.
(07:44):
The gunshot residue that the police and prosecutor's claim was
found on Alan's hand is the only physical evidence linking
him to the crime. The story you just heard is
based on the true events of Raymond Carl Alan Warren's trial.
He was convicted of murder based on faulty gunshot residue evidence.
(08:07):
The police also coursed as two friends, Shanta and Antonio,
into giving false testimony saying that Alan committed the crime.
Alan is now in his forties and he is still
in prison. He's been there for over twenty five years,
serving a sentence of fifteen to life for a murder
(08:27):
he did not commit. I'm Josh Dubin, civil rights and
criminal defense attorney and innocence ambassador to the Innocence Project
in New York. Today, on Wrongful Conviction Junk Science, we
examine gunshot residue evidence. As listeners to the show, you've
probably heard how coerce confessions are used to convict innocent
(08:51):
people on another podcast in our feed, wrongful conviction and
false Confessions. Now, the coerse confessions of Shanta and Antonio
were certainly factors in convicting Alan at his trial, but
today our focus is on faulty forensic science and gunshot
residue certainly has its issues that began almost a century
(09:12):
ago when three dozen former Brooklyn Navy yard workers found
themselves irreparably poisoned by the asbestos they used in the
construction of the battleships that won World War Two. Perry
Whites and Arthur Luxembourg literally putting everything on the line
to successfully represent them. Since then, they've championed the rights
(09:34):
of over fifty thousand regular Americans injured through the negligence
and malfeasance of mainly large corporations. Their ability to level
the playing field against seemingly insurmountable odds has led them
to litigate against opponents as diverse as Big Pharma all
the way to those responsible for rendering the water of Flint,
Michigan undrinkable. Whites and Luxembourg ticket personally when there's a
(09:57):
miscarriage of justice anywhere and there for they feel a
sense of responsibility to support Bronthol conviction podcasts. You can
learn more about them by visiting whites lux dot com.
That's w e I t z l u x dot com.
(10:19):
In three, a group of American police officers from several
departments gathered in a lab at the police headquarters in
Mexico City. They were there to observe Teodoro Gonzalez demonstrate
his new technique for testing gunpowder residue. The test became
known by many names, the dermal nitrate tests, the glove tests,
(10:40):
but my favorite might be the paraffin gauntlet test. The
officers watched his Gonzalez poured white hot liquid paraffin wax
over the fingers, hands, and risks of his lab assistant.
A glimmer of discomfort flashed across the assistant's eyes as
the hot wax code at his skin. Next, Gonzalez delicately
(11:03):
wrapped the layer of cotton around the assistance fingers and hands.
Layer after layer of wax, then cotton were added until
gloves began to form while the paraffin cooled. Gonzalez explained
that after a suspect fires a gun, the gunpowder residue
becomes embedded deep in the pores of the skin. Even
(11:25):
weeks after a gun is fired. The hot melted paraffin
will open up the pores mixed with the oils and
the skin and caused the pores to discharge the gunpowder
residue trapped within them. Part of this experiment included Gonzalez's
assistant firing a gun and then washing his hands prior
(11:46):
to them being wrapped. The American officers noted the advantage
of this technique, suspects couldn't simply wash their hands and
avoid detection. Gonzalez delicately peeled the gloves from the hand
ends of his assistant and then took them over to
the lab table and gently laid them down. He measured
(12:07):
a small beaker of a chemical solution that contains sulfuric
acid dropped by drop, he coated the interior of the
gloves with the mixture. Minutes later, dark blue specs the
size of pinpoints began to form, and Gonzalez explained that
these blue dots indicated the presence of dermal nitrates from
(12:29):
gunpowder residue. The police officers hurdled around the paraffin gloves
to see for themselves. After that, it took only a
few years for the paraffin test to become widely used
in police departments across the United States. Within three years
of gonzalez demonstration, it was used as forensic evidence in
(12:51):
the murder trial of James L. Westwood in Pennsylvania. At
his trial, the state called expert witnesses who testified the
gunpowder residue was present on Westwood's hands, indicating that it
was he who shot and killed his wife. But Westwood's
defense attorney called his own expert witness, a chemist who
(13:12):
had conducted his own study and found that thirteen different
substances could also cause the blue dots to appear on
the paraffin gloves. He cited things like ordinary soot, certain
brands of toothpaste, tobacco cigars, cigarette ashes, and different types
of matches, but none of that evidence mattered for the jury.
(13:36):
Westwood was convicted of the first degree murder of his
wife and sentenced to life in prison. By seven A
wider study concluded that rust, colored fingernail polish, and residue
from evaporated urine, soap, and tap water would all test positive.
(13:56):
Contact with any of these objects would create blue dots
to appear on the gloves and a paraffin test. The
paraffin test is no longer being used today, and the
signs behind testing gunshot residue has changed. By the time
Allen was arrested in it's sixteen years old, officers used
(14:17):
a new version of the test. It's called the atomic
absorption test, but that test has many of the same
reliability problems as the paraffin glove. None of the evidence
that was used to convict Alan has withstood the test
of time. The test used to indicate that he had
(14:38):
gunshot residue on his hands is no longer considered reliable.
So joining us today is Joanna Sanchez and she's from
the Wrongful Conviction Project at the Office of the Ohio
Public Defender and we're super excited to have her today.
She's currently representing Alan, whose story we talked about at
the beginning of this episode. Now, al A's full name
(15:01):
is Raymond Carl Allan Warren, and Joanna might refer to
him as either Alan or Raymond, but don't get confused, okay,
because Raymond and Allan are the same person. So Joanna,
it's great to have you here today, and I'd like
you to start by telling us a little bit about Alan.
What was he like as a sixteen year old living
in Dayton, Ohio. Alan was, by all accounts, a normal teenager.
(15:26):
He had a few brothers and he's very close with them.
He was close with his mother, very close to his grandmother,
you know, had lots of friends in the neighborhood, would
spend time with them. Alan loves working on cars, so
that was something he's spent a lot of time doing,
both fixing cars and painting them, playing basketball. And now
(15:49):
you know, I've known him now for six years. He's
a very engaging, caring person, very talkative, has strong relationships
with his family and friends. Still, Okay, so I want
to get into the details of the crime a little bit.
So police officers arrive on Allen Street the night when
he had been fixing his moped and this green car
had crashed into the side of a house and the
(16:12):
driver is shot. So what what makes them even decide
to go after Alan as a suspect in the first place.
So I think it's a matter of circumstance. The boys,
they worked on their scooters for a period of time
after they heard the gunshots, and then in order to
go home, Alan had to essentially go through the crime
scene because it happened on the street he was living
(16:33):
on with his grandma's. So Alan that night told the
police about this encounter with the victim, and the police
asked him if he was willing to come down to
police station to give a statement. So he voluntarily went
to the police station and also voluntarily submitted to a
gunshot residue test. And the result of that gunshot residue
(16:56):
test was that Alan tested negative on his left hand
even though he's left handed, and the palm of his
right hand, though, tested positive for two elements that are
known to be in gunshot resdue And I honestly think
once that gunshot residue test came back, they just became
las or focused on Alan. So tell us a little
(17:16):
bit about that test. What exactly did gunshot residue testing
entail at the time when Alan went down to that
police station. So, gunshot residue testing, the idea behind it
is that one of the person shoots a firearm, particles
will be admitted that will land on their clothing or
their hands or their face, and that those particles can
(17:38):
then be tested. You can't see them, but they can
be tested and tell the police something about whether the
person being tested might have shot a firearm. All gunshot
residue testing is not a simple yes or no test.
This is gunshot residue or it's not. What it's really
testing for is the elements that are known to make
up gunshot residue, so specific sickly, they test for three
(18:01):
elements in most circumstances, and that's lead, barium, and antimony.
In Raymond's case, they actually only tested for two of
those elements, and what they used was an atomic absorption test,
which is now largely out of use, and that's because
it has a high risk of producing false positives. So
the reason the a test is unreliable is because it
(18:24):
tests for elements that are also present in items that
are completely unrelated to guns. So as a result, a
person who's never touched or been near a gun put
falsely test positive. So Joanna, give us an example. What
are some things that Alan might have touched that would
make him test positive for gunshot residue. Brake linings are
(18:46):
one example of an item that has the same elements
as gunshot residue. And on the night of the shooting,
as we know, Raymond, who frequently was working on cars,
had contact with brake linings while he fixed his motorized scooter.
So the A A test as used in Raymond's case
is problematic because we can't know if those two elements
(19:09):
came from gunshot residue or if they came from brake
linings or some other substance that has those same elements
as gunshot residue. So you mentioned that the A A test,
the atomic absorption test that was used on Allen, is
not really considered anymore to be dependable, but they're still
(19:30):
using gunshot residue as a form of evidence, just with
new tests. Has signs progressed in any significant way since
the A test, gunshot residue testing generally has progressed somewhat.
The A test is no longer really in favor because
of its limitations, and there was a switch over in
(19:50):
the mid two thousand's to a test called S C
M E D S, and that test was better and
that it not only would tell an analyst whether those
elements were present, but also could tell them the shape
and size of the elements and sort of how they
functioned together, whether they were fused, whether they were the
shape of a sphere, all things that would be important
(20:12):
for distinguishing between gunshot residue and let's say another substance.
And so in order for an analyst to have any
confidence that something is actually gunshot residue, they'd need to
do that sort of morphological analysis and also compare all
of the elements in that gunshot residue example with all
of the elements in other substances so that they can
(20:34):
actually eliminate other items. Okay, So that sounds like it
does have the potential to be more accurate tests because
you're able to look at the residue under a microscope
and tell that the molecules actually come from a gun
and can't be from anywhere else. But is this a
perfect fix? Even if that's done properly, there's still a
(20:55):
second issue with gunshot residue testing, and that's the reason
why a scientific commune has really pulled back from this testing,
and that issue is contamination. So gunshot residue is incredibly transferable.
It's very easy to pick it up by touching a
surface that's contaminated with gunshot residue. So if I were
(21:16):
to shoot a gun and shake your hand, you could
very likely test positive for gunshot residue, and with that
that creates just too big of a risk for environmental contamination.
And what it means is that, you know, people who
touch the back of police cars, handcuffs, police officers, police stations,
there's a good chance they could pick up gunshot residue
(21:38):
from those surfaces, even though they themselves never touched a gun.
And we know that happened in Raymond's case because he
was transported to the police station in the back of
a police car and then held in an interrogation room
for several hours before he was actually tested. If on
the call before that police officer had taken somebody who
shot a gun down to the police station, that person
(22:00):
could have left gunshot residue there and then Alan gets
in the car and picks it up. And there have
been studies across the country that show that kind of
thing occurs. So there is a study in Colorado where
they tested I think forty police cars or excuse me,
twenty six police cars, and they found gunshot residue particles
and fourteen of them. So this kind of transference is
(22:22):
very common unfortunately, So in you know, in hearing this,
I gotta tell you this is like, it's startling, it's scary,
and you initially start to think, well, how many people
might have been wrongfully convicted when the evidence in their
case was just gunshot residue on their hands. Um, I
(22:43):
mean you have to admit it's pretty compelling evidence for
people that don't know otherwise. And I mean when I
mean for people that don't know otherwise, I'm talking about jurors.
So with that in mind, how big of a role
did faulty gunshot residue evidence playing Alan's case? The gunshot
residue evidence here was critical in Allen's trial. The examiner
(23:05):
when he testified, what he said was that this positive
test means one of three things. Either Allan shot a gun,
Alan was a victim of a shooting, or Alan handled ammunition.
But we know he wasn't a victim, and both of
the other options still implicate him, whether he's shooting a
gun or handling ammunition. What the examiner left out is
(23:27):
the fourth possibility that this is contamination and the fifth possibility,
which is that it's not gunshot residue at all. It
could just be barrium and antimony on Alan's hands as
a result of him having contact with brake linings earlier
that night, and that is the entire scope of the
physical evidence in this trial. So it as a result
(23:59):
of this gets gunshot residue evidence, Allan gets sentenced to
fifteen years to life. He's only seventeen years old. I mean,
what options did he have to seek recurs How would
one go about proving that gunshot residue evidence is false.
It's incredibly difficult for anybody who's incarcerated to collect the
(24:21):
evidence or knowledge necessary to file a new trial motion
or raise a claim that they were wrongfully convicted. So
part of that is he's locked inside, so he can't
go out and conduct any sort of investigation. He lacks
the funds, so he doesn't have the ability to hire
an attorney or an investigator or an expert witness to
(24:43):
go get this evidence. Alan was challenged and that he
couldn't even get the records in his case, So if
he wanted to write a motion for a few years,
he did not even have a copy of his transcript
that would have helped him to do that. So there
are so many barriers. He's a smart guy, but he's
not an attorney. I mean, that's why we say people
should have attorneys to litigate these complex issues is incredibly difficult,
(25:06):
and it's all the more so for somebody who's a
teenager and they're incarcerated. They don't have access to these things.
And so he fought on his own for years and
years to try to challenge his conviction. That kind of changes,
an evolution with gunshot residue was happening, but he didn't
He did not really know that. He didn't have access
(25:29):
to forensic science articles or expert witnesses, so he wasn't
even aware that that was necessarily an issue in his case.
And eventually in Shanta, Hunt gave a statement and said,
I lied because I was scared. Alan was with us
when we heard the shots, so he could not have
shot the victim. And in two thousand eight, Antonio gave
(25:53):
a very similar statement saying, again, I was scared and
this is a lie, and I did not come award
for all these years because I was scared of perjury charges.
Now the Innocence Project has become involved in Allen's case,
and you and your co council are fighting to get
Alan justice. But as our listeners know by now, as
(26:14):
I'm sure you and I can agree, this problem is
so much bigger than Allen's case. What needs to happen,
in your opinion, to make sure things like gunshot residue
evidence stop being used to convict innocent people so that
this doesn't happen again and again and again. I think
police officers and lab examiners should be careful about when
(26:36):
they do gunshot residue testing and only do it in
the very optimal circumstances, if at all. I think there
are some police officers who feel that it's just a
piece of the puzzle and it's a helpful tool in
the investigation. But I think the risk with that is
that it leads to tunnel vision. You know, wants to
have that piece of evidence to become fixated on a suspect,
(26:58):
and our our courts are judges, need to look at
it critically as well. The court is the gatekeeper of
expert testimony and forensic evidence that comes in, and what
we're seeing is that some courts are limiting what can
be said about gunshot rest of evidence, but they're still
allowing it in. And I think at some point we
hit a breaking point where the risk of prejudice for
(27:21):
this evidence outweighs the benefit of it because it is
so unreliable in so many different aspects. That are we
risking swaying the jury with evidence that really isn't reliable
enough and shouldn't be presented at all. All Right, So
that certainly addresses what people involved in the justice system
(27:42):
can do. But what can everyday people do. We have
a lot of our listeners asking us, you know, what
can I do to help? So please tell them things
they can do to make sure that this kind of
junk science stops being used and it gets out of
our criminal justice system once and for all. I think
(28:03):
the biggest thing is people sharing this information and sharing
podcasts like this, sharing when somebody's exonerated based on forensic
evidence that we now know has been discredited. Because the
more people that know about this, I think the more
the system will improve. I think the impact of sharing
this podcast and sharing his story is that more people
(28:25):
hear about it, and then they take that knowledge with
them when they vote, and they take that knowledge with
them when they interact with public officials and ask them,
how do you approach wrong for convictions? How do you
approach forensic science? Are their laws in place that allow
for these convictions to be challenged appropriately. And I think
(28:46):
having the knowledge that's gained from listening to a podcast
like this equips people with the sort of the talking
points and the ability to ask those questions of public officials.
So tell us a little bit about where Allen is
now and what options are left for him. At this point,
Alan had litigated emotion asking for a new trial, and
(29:09):
we stepped into that litigation on his behalf in two
thousand and fourteen, and it's kind of been up and
down through the courts over several years. But earlier this
year the Supreme Court of Ohio decided not to take
his case. So where we're at is we continue to
fight for him, and we believe strongly in his innocence
(29:29):
and that he was wrongfully convicted, and so we're moving forward.
We're hoping to find new evidence or hoping that a
new avenue of relief opens up that allows Alan to
challenge his conviction and hopefully one day go home. Look, Joanna,
I um, my heart sort of you know, aches for
(29:49):
you and for Alan really because I have been there before.
I know that when cases you know, don't work out,
you know, on our initial first try or first fifteen
tries and go the way we need them to go,
because our clients are innocent, and we know they're innocent.
It can be so frustrating. What's your reaction when you
(30:10):
have setbacks like this. I know that I've I've wept
on my wife's shoulder before, I know that I have
punched walls. I've had the spectrum of emotions. But you know,
tell me a little bit about what it's like for
you when you know you're faced with setbacks like this,
and you know what it's like with Alan still sitting
(30:31):
in prison. I think the important thing we do is
we kind of keep moving forward and keep thinking about
our clients, keep thinking about Alan and what he's going through.
And it's so important that we stay in the fight
and continue to be a voice for those people. And
I hope one day it's not this way. But I
know for me, I look at all the two thousand
(30:54):
plus exonerations that we know about, and I see that
those are never easy, right. They come after set back,
and people have to try multiple different times, multiple different ways,
And so I hope that at some point in time
it doesn't have to be that way. But at least
for now, I know that it's absolutely worth it to
keep fighting for this person and to keep hoping that
(31:14):
one day something we do works and somebody pays attention
and that he gets the justice he's do. You know,
I tell people all the time that these wrongful convictions
are super difficult. You have to fight tall odds, You
(31:35):
have to keep on fighting forward in the face of
constant rejection from appellate courts. And if you're not willing
to deal with setbacks, if you can't pick yourself up
and dust yourself off and keep charging up that steep slope,
you're really in the wrong business. And it really does
take a team effort. So the more you can share
(31:55):
these stories, the better off we're all going to be,
because there's power in numbers, and there's power in a
collective message. So I hope you will do just that.
Please share our podcast and take action, whether it be
writing your local judges as I often implore you all
to do, or ensuring that when you vote, you were
(32:17):
voting for those judges and the jurisdiction which you live
that actually have the qualifications and the temperament to be
open minded and thorough such that they won't blindly accept
that legal precedent equates to reliability. Sometimes bad science remains
in our system of justice because it goes unchallenged. It's
(32:40):
up to all of us to shine a bright light
on these junk sciences and force a reckoning. Kay Next week,
we'll explore the junk science of tool mark identification with
science journalist Tim Ricorreth. Wrongful Conviction Jung Science is a
(33:05):
production of Lava for Good Podcasts and association with Signal
Company Number One. Thanks to our executive producer Jason Flom
and the team, it's Signal Company number One executive producer
Kevin Wardis and senior producers Karen corn Haber and Brit Spangler.
Our music was composed by j Ralph. You can follow
me on Instagram at dubin dot. Josh followed the Wrongful
(33:27):
Conviction podcast on Facebook and on Instagram at Wrongful Conviction
and on Twitter at wrong Conviction
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