Episode Transcript
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Speaker 1 (00:01):
Hey, folks, Kate Judson here, I'm a lawyer and the
executive director of the Center for Integrity and Forensic Sciences.
We're back with another episode of Junk Science, a series
we first released in twenty twenty, but these stories are
just as relevant as ever. The episode you're about to
listen to is about bloodstain evidence, the inexact art of
(00:23):
figuring out where the source of blood came from and
how it got there. The key phrase here is art,
because it is far from being a science, and that
is something that is true of a lot of the
so called forensic sciences. Bloodstain patter analysis, in particular, is
so open to interpretation and guesswork that oftentimes the same
(00:44):
evidence can be analyzed a dozen times by a dozen
people and they'll reach a dozen different conclusions. And that
simply is not reliable science. In twenty twenty two, Jane
Derodic of San Diego, California, was exonerated of the two
two thousand and one murder of her husband. The original
analyst of the evidence, a man named Charles Merritt, claimed
(01:06):
to be an expert in this type of forensics, but
his abilities and his findings were called into question in
twenty twenty one, an expert who reviewed Merritt's work remarked
on his lack of basic blood stain knowledge, which was
apparent in his report and testimony. In fact, some of
the bloodstains that Merit attributed to the murder victim were
(01:27):
not blood at all, while other stains were not human blood,
having been caused long before by the family's dogs. This
case and the one you'll hear in the episode are
just two examples of bad forensic analysis and should lead
us all to question the reliability of this forensic art.
Speaker 2 (01:52):
It's five PM and you call your spouse. You say,
don't wait up, I'm going to be working late. I
love you, I'll see you 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 front door is open, which is strange.
(02:15):
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 from its socket. You walk down the
(02:38):
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 the carpet, the bed, on the wall, above
the dresser. Your spouse is on the floor, mouth open.
(03:06):
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 pooling. The blood is still flowing
from somewhere. At this point, your body has gone into
some state of shock. You're drifting between consciousness and some
paralyzing dreamlike state. You manage to call nine one one.
(03:31):
You plead, you scream, You cry for them to come
right away. You reach down and touch your spouse. You
feel for a pulse. 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
(03:53):
of time, but eventually you hear sirens there blaring, and
all of a sudden, chaos the room is filled with people.
A paramedic 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,
(04:20):
You're heaving, trying to catch your breath. The police try
to console you. 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,
(04:41):
a detective comes in with a sweatshirt and sweatpants, and
he says, take off 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 asks 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
(05:04):
on your sock. You don't know the answer to these questions.
It was all 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.
(05:26):
You were eventually charged with the first degree murder of
your spouse. At your trial, the prosecution calls to the
stand a blood stain pattern analyst. 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 when the night the
(05:47):
crime was committed. The blood stain pattern analyst walks the
jury through each and every stain on your clothing, droplet
by droplet, you see that stain. The defendant swung the
weapon at a ninety degree angle twice right into the
victim's head, which created the splatter pattern you see here
(06:08):
on his shirt high velocity projected spatter. They tell the
jury no other 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
(06:30):
the nine to one one call. The expert says that
they've examined the blood drops, 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
(06:52):
proved that you did not perform CPR. You did not
check for a pulse, because if you had, there would
not be this bray 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
(07:16):
notes altogether and just sits 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
(07:38):
Innocent Ambassadors to the 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 science used
in criminal trials. Blood stained pattern evidence falsely claims that
it can identify the culprit of violent crimes. But blood
(07:58):
stained pattern evidence has no grounding in 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. When I think of Herbert MacDonell,
(08:28):
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 peer into Herb's basement through a small
window that peeks out from underground. She finds herself going
(08:48):
over there day after day, half horrified, half intrigued by
what she sees. One day, she sees Herb aiming a
gun at a dog, 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
(09:09):
coats in the basement. They dip their hair into a
thick red substance. Then they swing their heads around to
make Jackson Pollock esque 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 HERB take aim shoot the lifeless body, and
(09:32):
blood slowly oozes onto the basement floor. Herbert McDonnell actually
used these techniques in his basement, giving birth to the
forensic science a bloodstained pattern analysis. Herb was a chemist
who worked for Corning Glassworks, which makes Corning wear casserole dishes,
but his passion was crime scenes, and so he doubled
(09:56):
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 the bloodstains
provide clues, he took it much further than that. He
believed that he could re engineer the choreography of the
crime just from analyzing the blood stains. Herb styled himself
(10:19):
as a sort of modern day Sherlock Holmes. He even
posed for the cover of one of his books and
the trademark deer stalker hat and a pipe In nineteen
seventy three, Herb 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
(10:41):
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 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 Corney
(11:03):
to New York. Her MacDonald 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 ninety nine year sentences. Herb's recognition continued to grow.
In nineteen ninety five, even testified for the defense at
(11:24):
the oj Simpson trial. But bloodstained pattern 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.
Speaker 3 (11:45):
This is an 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
(12:05):
was created, what the trajectory was of the blood, where
the wound was, 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.
Speaker 2 (12:26):
Joining us today is Pamela Koloff. And Pam's a senior
reporter at Pro Publica and a staff writer from New
York Magazine. So, Pam, 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
(12:47):
disciplines of forensic science, blood spatter analysis has easily the
craziest story of them all. And you've researched this intensely.
I want you to tell us more about her. MacDonell,
the so called grandfather of blood spatter analysis.
Speaker 3 (13:06):
His belief was, and what he sort of told generations
of police officers was that yes, bloodstain pattern analysis was
based on highly complex trigonometry and fluid dynamics, but that
they could master the skills to this in as little
as a forty hour class. And he began to teach
(13:30):
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 high level of mathematics
into quote unquote experts.
Speaker 2 (13:48):
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.
Speaker 3 (14:02):
I went to Yukon, Oklahoma, where the police department was
offering a week long class. I took it with about
twenty law enforcement officers, and I was stunned at what
I saw. We were sort of rubber stamped through just
the most basic basic concepts of blood stain pattern analysis,
(14:25):
and we would have to identify stains according to this
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
(14:45):
mock crime scenes, and he used blood to on sort
of like butcher paper to show us what blood stains
would look like at a crime scene. And then our
and this is part of our final grade, was to
come in and just by looking at that, no other clues,
(15:08):
no other context clues, use that to say what had
happened at the crime scene, and 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 that to me was extremely disturbing.
Speaker 2 (15:29):
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, what he did
or what he had students do.
Speaker 3 (15:40):
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,
there's so many things about that that don't make sense.
Speaker 2 (16:02):
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 once someone is dead. So
all of this makes a difference in first how the
blood travels once the body is hit with an object,
(16:23):
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.
Speaker 3 (16:37):
That's exactly right, that's exactly right. The surface that blood
falls onto makes a tremendous difference in what you can tell.
If you had a white all linoleum or marble room,
like a very controlled atmosphere like that, you might be
able to make some determinations about some things possibly, But
(17:02):
in real life, in a real crime scene, you usually
have blood falling onto porous things, carpet, clothing, things where
it becomes increasingly difficult to tell the angle that blood
fell onto those services at because they're so diffused when
they land on that material.
Speaker 2 (17:22):
Yeah, I mean, there are some cases where blood spatter
analysts have been on video trying to 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 accuse. I mean, I saw one video
where they finally get it right right, They get it
(17:43):
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 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.
Speaker 3 (18:01):
A common example I've seen this many times is there's
a spouse who commits suicide, who shoots themselves, and the
other spouse discovers the person who is shot, rushes over
to the person, cradles them, tries to give them first aid,
(18:24):
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 right they're coughing, they're struggling to breathe, that
pattern of blood looks very similar to the kind of
(18:47):
atomized blood that sprays when someone's shot. And then an
analyst for the state will be brought in and will
give this very convoluted life as to why that happened
during the commission of the crime. And then there becomes
this divergence of opinion of did the victim hold the
(19:11):
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 one hundred
percent what the answer to that is.
Speaker 2 (19:37):
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, you absolutely should.
Will link to the article in our show notes. It
is a fascinating, fascinating piece that Pam wrote for Pro Publica.
(19:58):
And again it's entitled Blood will Tell the Joe Brian
Story and it tells the story of various ways bloodstained
pattern analysis can go off 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,
(20:18):
he spent thirty three years in prison for the murder
of his wife. And you know your story, pain was
like the driving force, if not the critical driving force
behind getting him out of prison, So please tell us
about the Joe Brian case.
Speaker 3 (20:36):
Joe Brian was a beloved high school principal in a
little Texas town called Clifton, Texas. And in nineteen eighty five,
when he was by all accounts out of town one
hundred and twenty miles away in Austin at an educational conference,
his wife was shot and killed in their home and
(20:58):
this was initially investigated as a robbery gone wrong. And
about a week after the murder, a flashlight was discovered
in the trunk of Joe's car that had tiny, tiny
specks of blood on it. And there was no blood
(21:18):
found in the car or anything like that. And who
this blood belonged to, whether it was even human blood,
all of this was unknown, but the state took this
and they brought in a bloodstained pattern analyst, a local
cop who'd had forty hours of training, and he, through
(21:41):
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 theory
of the case was that Joe had held the flashlight
in one hand a gun in the other. He'd shot
(22:01):
his wife, Mickey. The blood had gotten onto the splashlight,
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 absolutely pristine
was explained away by the expert who said things like
(22:21):
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, no physical evidence.
He was many counties away, he was in a different
(22:43):
place the night of the crime, but that expert testimony
from that cop was enough to get a murder conviction
in a life sentence.
Speaker 2 (22:53):
I mean, it's so difficult to listen to this, and
I wish I could say that I'm sitting here, you know, shocked,
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. This happens to many defendants or
(23:15):
people that are accused of crimes they didn't commit. Was
Joe ever exonerated?
Speaker 3 (23:21):
So Joe was not exonerated, he was parolled, and the
state of his case. 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,
(23:43):
we have something called a junk science writ which is
fairly unusual, but it allows somebody to take bad evidence,
junk science that's been allowed into their case, and to
try to get the courts to take a second look
at their case because of that. And so he's been
(24:05):
parolled and is still fighting to prove his innocence. Joe
turns eighty later this year. He's had congestive heart failure
for numerous years. His health is not good, and the
Texas Board of Pardons and Paroles finally decided to release
him in March, and he is now at home with
(24:27):
his brother. He's got an ankle monitor for a couple
more months and then he'll go back to life as
much as it can be normal after thirty three years
behind bars.
Speaker 2 (24:38):
I mean a lot of people always say they hear
about this 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,
you read the stories about them getting out, but take
(25:00):
it from me, having worked with scores of exoneries, not
only my clients, but some of the innocence projects other clients,
they're just never the same. The psychological damage of being
confined to this narrow space and all of the horrors
of prison that you hear about that happen to these people,
(25:21):
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 to make that pain go away,
(25:41):
no matter how much compensation they get. And yet these
wrongful convictions just continue being propelled by junk science. It's
just astounding, exactly.
Speaker 3 (25:53):
I was flabbergasted when working on this story and trying
to find, well, where where is the research that backs
up all these claims that people are making on the stand.
Where's the academic work that's been done. Where is anything.
This is a discipline that when you look at sort
(26:16):
of the fundamentals of how do you prove reliability, no
one can quote an 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
(26:38):
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 entirely, independent even of any
other evidence, reconstruct the crime itself, quickly leads you into
wrongful conviction territory.
Speaker 2 (27:07):
I want 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 bloodstained pattern analysis. And
this will become somewhat of a drum beat in our series.
(27:30):
We're going to continue to go back to this study
that was done in two thousand and 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 bitemarks and of course bloodstains.
Speaker 3 (27:50):
Right PAM, the National Academy of Science is actually made
up of scientists who publish pure reviewed were and who
were involved in research with real scientific integrity, and they
set the bar very, very high, and they have long
(28:12):
been extremely critical of bloodstained pattern analysis and really cautioning
courts to not consider this a science with the sort
of accuracy as for example, some DNA testing or toxicology,
where you really you have numbers and certainty to work with.
Speaker 2 (28:36):
So outside of DNA, the NAS 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
A capable analysts must possess an understanding of applied mathematics, physics,
fluid transfer, wound pathology, and that this blood spatter a
(28:59):
now 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 courts don't seem to
(29:21):
pay any attention to it.
Speaker 3 (29:23):
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 just kept looking back. Bloodstain pattern analysis, like so
(29:46):
many of the disciplines that are identified in that report
as being problematic, we're so deeply entrenched in crime labs
and across the country you had experts in labs that
were under local police departments where this was just this
was the way it was done. So there was no
(30:07):
effort on the part of law enforcement to change that.
And for prosecutors there was no incentive because a good
bloodstained pattern analyst on the stand who's a phenomenal witness,
really connects with the jury and makes things sound very simple.
That's gold that can make your case, and that can
(30:27):
take a circumstantial case and move it from gray to
black and white.
Speaker 2 (30:33):
So, like you said, many judges rule on a case
based on precedent, and the President provides essentially the license
for judges to accept bloodstain spatter analysis as evidence. But
there was at least one judge who did pay attention
to this study, and that was a federal judge that
I know very well in Boston named Nancy Gertner. Nancy
(30:56):
and I are actually co authors on a textbook together.
I'll give a nice plug year for the law of
jurys in case anybody is aching to read a legal textbook.
But tell us about what Judge Nancy Gerdner did.
Speaker 3 (31:09):
I mean, she was and really sadly remains, sort of
a lone voice 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.
(31:33):
And if we are going to continue to see some
of the disciplines that the NAS 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
(31:57):
outlier in this and got a lot of pushback from
prosecutors about that.
Speaker 2 (32:04):
I mean, it's really shocking that she got pushedback, not
just from prosecutors, but also from her colleagues or fellow judges.
Speaker 3 (32:14):
She's a hero, and I think that her insistence on
something as basic as fairness being controversial is really disturbing.
Speaker 2 (32:29):
Life doesn't always imitate art, especially when it comes to bloodstains.
It's important to remember that shows like Dexter and CSI,
or Just Entertainment it isn't real life, and many of
the techniques that we think are science are far from it.
You might be listening to this wondering what you can
do to make sure that junk signs like bloodstain pattern
(32:51):
analysis stops being admitted into courts. In our show notes,
we're 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. Give them something to
think twice about before admitting this evidence in their courtroom.
Something else you can always do is make sure that
(33:12):
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 must have
done something wrong because they've been arrested and accused of
a crime, more than half the hands in the room
(33:33):
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 way
through your deliberations. They are wrapped in a cloak of innocence,
(33:53):
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,
as I've seen time and time again, the presumption of
(34:14):
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
(34:36):
Arson with Innocence Project co founder and famed civil rights
and criminal defense attorney Barry Sheck. Wrongful Conviction Junk Science
is a production of Lava for Good Podcasts and association
with Signal Company Number One. Thanks to our executive producer
Jason Flahm and the team at Signal Company Number One
executive producer Kevin Wardis and senior producers Karen Cornaber and
(35:00):
Brit Spangler. Our music was composed by Jay Ralph. You
can follow me on Instagram at dubin Josh. Follow the
Wrongful Conviction podcast on Facebook and on Instagram at Wrongful
Conviction and on Twitter at wrong Conviction