October 30, 2023 • 38 mins
The notion that tools leave a unique mark on a surface is commonly presented to unsuspecting juries. But, it turns out that it's not necessarily the case at all.
Josh Dubin talks about Tool Mark Analysis with Tim Requarth, a freelance journalist who often writes about the intersection between science and criminal justice and a lecturer in science and writing at New York University.
Kate Judson, Executive Director of the Center for Integrity in Forensic Sciences, updates Josh Dubin's Wrongful Conviction: Junk Science.
Learn more and get involved.
“Forensic Science Put Jimmy Genrich in Prison for 24 Years. What if It Wasn’t Science” By Meehan Crist and Tim Requarth https://www.thenation.com/article/archive/the-crisis-of-american-forensics/https://cifsjustice.org/donate/https://opd.ohio.gov/law-library/innocence/wrongful-conviction-projectwww.wrongfulconvictionpodcast.com/junk-science
Wrongful Conviction: Junk Science is a production of Lava for Good™ Podcasts in association with Signal Co. No1.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
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. This episode is about tool
mark evidence, which includes the long used practice of matching
(00:23):
ammunition to specific firearms. For decades, ammunition matching has been
seen as a highly reliable way to link a suspect
to a crime scene, but the actual reliability of this
type of evidence is increasingly being questioned. Just recently, in
June of twenty twenty three, the Supreme Court of Maryland
(00:45):
ruled that ballistics matching may only be represented in court
by experts as consistent or inconsistent with the gun in question.
Like other courts in the past few years, they see
an issue with this type of evidence, something we'll explore
in more detail later in the episode. This ruling could
(01:09):
have huge consequences for wrongful conviction actions in Maryland and beyond.
While it doesn't automatically reopen cases, lawyers and wrongfully convicted
people can use it to petition courts for relief.
Speaker 2 (01:28):
It's Valentine's Day, nineteen ninety one. You don't usually observe
the greeting card holidays. You think they're kind of silly,
and besides, most of the time, you and your partner
are both busy working. You're always buried in your client's cases,
and your partner is often on call, running back and
forth to the hospital to treat patients. Your friends are
(01:51):
always remarking that you're the classic power couple, but sometimes
it seems like it's all power and not so much couple.
So this year, you make dinner, put out a tablecloth,
and even light a candle. At the end of dinner,
you do the dishes and your partner takes out the trash.
The TV is on low in the background, but something
(02:14):
makes your ears perk up. You glance over and see
the newswoman reporting from a parking lot not too far
away from your house. She says, an explosion went off
not long ago. A man was hit in his leg
by shrapnel that exploded off a pipe bomb. It detonated
thirty yards away from where the man was walking. Listening
(02:38):
to this, you slowly shake your head. It's not uncommon
in Grand Junction, Colorado, for people to mess around with explosives.
After all, it's a mining down and people know how
to use dynamite. The reporter says, the man that was
hit will probably be Okay, you hope this is just
some kids joke gone wrong. But then a few weeks
(02:59):
later there's another news report. A twelve year old girl
named Maria gets into a van with her parents to
go shopping, and as the family sets out for the mall,
a bomb hidden near one of the rear tires explodes.
Shrapnel is flung through the back of the van's seat
and into Maria's body. It wedges into her heart. Her
(03:22):
parents frantically pull her out of the car, but she
dies right there. Three months after that, husband and wife
Henry and Suzanne, finish dinner at a local restaurant. They
drive by a strange looking object. Henry slows the car
down and reaches out to see what it is. His
(03:44):
arms are blown off his body and he dies instantly.
After that third bomb goes off, everyone in Grand Junction
is extremely anxious. You check under your car every single
(04:07):
time before you get in, and you continue to follow
the news coverage as it unfolds. The police department declares
that out of thirty initial suspects for the bombs. They've
narrowed it down to just one person. They don't renounce
who it is, but a camera crew must have gotten
tipped off because they start following around a young man
with big glasses. Then you get a phone call from
(04:32):
a man who identifies himself as Jimmy. He tells you
he is the suspect in these bombing cases. His words
come quickly and in fragments of sentences, he sounds scared.
He says he hasn't done anything wrong, and he hasn't
been arrested yet, but with cameras following him, he thinks
(04:52):
it's a good idea to get an attorney. He asks,
will you help me. You take all of this in
and think to I really want to be involved defending
someone who might have done something so horrific. But then again,
what if he's actually innocent. Everyone deserves an opportunity to
(05:12):
defend themselves. Ultimately, you agree to take on his case.
Soon after you become Jimmy's attorney, he gets a knock
at his door. The police enter his house with a warrant.
They turn his place inside out, Detectives vacuum the couch
and carpet to see if they can pick up any gunpowder.
(05:33):
Nothing all they found or some everyday tools, some pliers,
wire strippers. The tools that are taken from Jimmy's house
are brought down to the police station and tested in
the forensics lab. When the results come back, police arrests
Jimmy and he gets charged with murder. Of all the
(05:55):
people to pin this on, you do understand why they're
targeting Jimmy. He's somewhat of a loaner, definitely an oddball.
He often goes on late night walks by himself. He
can be found sitting alone at bars and getting pretty drunk.
Prior to the trial, the prosecution discloses the evidence they
intend to use against Jimmy to prove their case, and
(06:18):
it looks pretty bad. You spend countless days pouring over
the main piece of evidence, the conclusion of a tool
mark examiner. The report of this examiner says that the
impressions taken from the tools they found in Jimmy's apartment
can be scientifically linked to the tool marks left on
all three of the bombs. In all your years as
(06:42):
a criminal defense attorney, you've never heard of this type
of forensic analysis. You didn't even know it existed, But
you studied science and undergrad before you decided to become
a lawyer, so you know how to analyze these scientific documents.
You dig up everything you can find on tools, evidence, data, statistics, studies, experiments.
(07:04):
You find nothing. How are you supposed to defend against this?
If someone has a standard set of needlenos pliers, aren't
they likely to match up with the impressions made by
other needlenose pliers. At trial, the jury is shown a
video by the prosecution. A tool mark expert walks the
jurors through it. He tells them each tool has unique
(07:28):
microscopic characteristics. You can see how the tools we found
in the defendant's home aligned perfectly with marks found on
fragments of the exploded bombs. The jury is mesmerized by
the videotape shown by the tool mark examiner after closing arguments,
when they begin their deliberations, the first note they send
(07:51):
out is a request to see that video. They view
it over and over and over again, and then the
bailiff informs you that the jury is done deliberating. Jimmy
is brought back into the courtroom from a holding cell.
You see the trepidation in his face as he takes
a seat, and you can actually hear him take a big,
(08:14):
nervous swallow. The jury files into the courtroom, and a
vein on your temple begins to pulsate in twitch. Jimmy
is convicted of multiple counts of murder. He is sentenced
to life in prison. The story you just heard is
(08:34):
based on the true events of the bombings in Grand Junction, Colorado,
in nineteen ninety one and the subsequent trial of Jimmy Genrich.
Jimmy has been in prison for more than twenty five years,
serving a life sentence. His latest appeal has been taken
up by the Innocence Project. I'm Josh Dubin, civil rights
(08:56):
and criminal defense attorney, an Innocent Ambassador Innocence Project in
New York. Today, on wrongful Conviction junk Science, we examined
tool mark analysis. It turns out the crime that popularized
tourl maark analysis was also committed on Valentine's Day over
ninety years ago.
Speaker 3 (09:22):
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and Arthur Luxembourg literally put everything on the line to
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(09:43):
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way to those responsible for rendering the water of Flint,
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(10:06):
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E I t Z lux dot com.
Speaker 2 (10:25):
You've all heard of the legendary mobster Al Capone. During
the Roaring twenties, he was the leader of the Chicago Mafia.
Anything corrupt or illegal. He controlled it, from bootlegging to speakeasies,
gambling to prostitution. Capone owned it all. But there was
(10:45):
one rival gang that Capone couldn't quite shake. The irishmafia
led by George bugs Moran. They were manufacturing and selling alcohol,
stepping on Capone's business. Now Capone he wasn't gonna have it.
He got hold of some police uniforms and on February fourteenth,
Valentine's Day, nineteen twenty nine, four of Capone's men, dressed
(11:10):
as police officers, went over to the garage where bugs
Moran's gang was producing and selling alcohol. Capone's crew took
the Irish mob by surprise. They started screaming with their
guns drawn, line up against the wall, hands where I
can see him. You're all under arrest. All seven of
the Irish gangsters lined up against the wall, hands on
(11:32):
their heads, while Capone's crew shot them all dead in
broad daylight. By the time the real police arrived, Capone's
gang was long gone. The cops had more than a
hunch about who was responsible for this, but they needed
the hard evidence to prove it, so they raided the
home of one of Capone's top guys, who went by
(11:54):
the name of Frank Killer Burke. They took his gun
and sent it off to what was one of the
first crime labs in the country. There, an examiner named
Calvin Goddard shot some test bullets out of the confiscated gun.
He put one of the test bullets and one of
the bullets found at the massacre under a special microscope
(12:15):
that allowed him to compare two images at once. This
examiner actually invented this technique of comparing bullets. He claimed
that no two revolvers leave the same mark, and that
by examining the grooves on the bullets, he claimed he
could identify the gun that shot them. According to Goddard,
(12:36):
the bullets of the confiscated gun indeed matched the bullets
found at the scene of the crime, but the police
couldn't do much with that evidence. They couldn't prove that
the owner of the gun, Frank Killer Burke, had been
at the scene of the crime, and so no one
was ever charged for what became known as the Valentine's
Day massacre. The analysis the invented is now known as
(13:01):
tool mark and firearm analysis. Forensic analysts that follow in
his footsteps believe that just as each gun leaves a
unique mark on every bullet that it shoots, each tool
leaves unique mark on the surface it's used on. But
no one had closely examined the false assumptions behind tool
mark identification. What was being presented to jury's was this
(13:23):
notion that a tool will leave a unique mark on
a surface. But it turns out that's not necessarily the case.
If two people own a similar wrench, for instance, both
wrenches will leave behind a similar mark, So matching a
mark to a tool owned by a suspect has very
limited value. Nevertheless, these experts were claiming that a tool
(13:46):
found at the home of a suspect was the precise
tool that was used, for example, to cut wires during
the construction of a bomb. This kind of flawed evidence
continued to be presented in courtrooms across the country to
link suspects to crimes, leading to several wrongful convictions, including
(14:06):
that of Jimmy Genrich in nineteen ninety two.
Speaker 4 (14:13):
It was just so obvious to me that this was
not you know, this was not a foundationally strong field,
and I was absolutely stunned because the consequences of this
stuff can't be higher. You know, people go to prison
for years, they're sentenced to death. I mean, essentially, for
(14:33):
this to be totally unproven science, I just absolutely could
not believe it.
Speaker 2 (14:39):
Today we're talking to Tim Riquarth. Tim's a freelance journalists
who often writes about the intersection between science and criminal justice.
He's also a lecturer in science and writing at NYU.
We're particularly excited to talk to him today because he
wrote about Jimmy Genrich's case for an article published by
The Nation. He and his co author extensively researched the case,
(15:03):
along with the tool mark evidence that was used to
convict Jimmy. Now, a lot of this episode is based
on this article that Tim wrote, So after listening to
this episode, if you want to learn more about tool
mark evidence in Jimmy's case, you can find the article
on our show notes. So, Tim, tell us about your background.
How did you get into writing about science?
Speaker 4 (15:26):
So, for undergraduate, I studied literature and writing, and it
wasn't until after I'd graduated. I happened to be living
across the street from a medical school in Chicago, and
at the same time, my father was suffering from dementia,
and the books and articles that I was reading on
dementia didn't quite satisfy me, and so I decided to
(15:48):
volunteer in a lab that studied dementia. And it was
at that point that I was first introduced to research,
and I was hooked. So I went back to school,
took all of the basic science classes that I hadn't
taken undergrad and eventually enrolled in a masters, And you know,
ten years later I found myself in probably with a
PhD in neuroscience. The sort of breadth of questions and
(16:12):
material that you could really dive into as a journalist
or a writer just felt so much more expansive than
what I could do as a scientist. And so I
sort of had the realization later on in my PhD
that research heavy, investigative type of pieces were a really
good fit for somebody who's trained in answering big questions.
Speaker 2 (16:34):
So before writing this story about tool mark evidence, what
did you know about any forensic science?
Speaker 4 (16:40):
Before that the first story I did about forensic science,
I didn't know a lot about it at the time. Then,
you know, anybody might from watching Law and Order or CSI.
We profiled the specific case and it involved to a
mark evidence, and we looked at all of the research
in the forensic journal. I mean, we went through and
(17:02):
found every single study and most of them were very
small sample sizes, very theoretical, or had all kinds of
methodological design problems, and I was absolutely stunned because this
is like a solved problem. We know how to do
strong empirical scientific studies to see if something works or not.
(17:25):
Like take a medical study, which if you want to
see if a drug has an effect, you randomly select
two groups of people and you assign one of them
to get the drug and another one to get a
placebo which has no effect. You blind both the people
so they don't know that they're getting the drug, and
you also blind the researchers so they don't know who
(17:45):
is getting the drug. You decide ahead of time what
analysis you're going to do, what outcomes you're going to
look for, and then you test those using rigorous hypothesis
testing and statistics to see what happens. And in forensics
sciences that just it doesn't exist. The practitioners doing them
are often not blinded, the sample sizes are very low,
(18:09):
there's conflicts of interest, so it's not following some of
the most basic tenets that you know would be reflexive
to your you know, typical scientist in a university.
Speaker 2 (18:23):
I mean most people, especially lay people on a jury,
hear the words forensic science and you know, they imagine
this very pristine process in which things are tested and retested,
because you know, we all think of the scientific method
that we learn about in the school, and it's kind
of startling to know that that's not actually the case.
(18:45):
So what you said really underscores what we've been saying
throughout this show and how big of a problem it
can be when jurors confuse what's really junk science presented
in courtrooms with trig additional science that's used to develop medicines.
For example. And I'm not sure that our listeners are
(19:07):
aware of this, but I want you to think about
this for a moment. In cases where people were later
proven to be innocent based on DNA, forty five percent
of those wrongful convictions are based on some misapplication of
forensic science.
Speaker 4 (19:25):
Imagine if this were the FDA, right Imagine if a
drug didn't work fifty percent of the time and had
horrible side effects, they wouldn't just say, well, you know,
we already approved it, so let's just leave it on
the market. That's not how it works in medicine, but
that is how it works in the law.
Speaker 2 (19:40):
So let's get into Jimmy's case. I want you to
tell us about the crime that led to his arrest
and the town that had happened, and why did they
even decide to zero in on Jimmy in the first place.
Speaker 4 (19:53):
Grand Junction is a sort of mining town of about
thirty thousand people at the time, and there is a
series of pipe bombs that went off in the town.
There were three of them, and one of them killed
a twelve year old girl. It was it was very tragic,
and they had they were seemingly random, and they had
no suspect, and so the Bureau of Alcohol, Tobacco and
(20:16):
Firearms was called in and they helped the local police
force do a bomb investigation to try to figure out
who this was. They had a list of, you know,
something like thirty suspects. There was this guy, Jimmy, who
was sort of a loner. Lived in a boarding house
near downtown in a twelve by twelve room. I think
he was a busboy in a restaurant, but was on
(20:38):
and off of jobs. His mother would bring him, you know,
meals in a cooler, and he was a little bit
you know, he had some problems with mental illness. There
was one event in particular that put him on the
police's radar, which was he walked into a bookstore one
day and asked them to order a copy of the
(20:58):
Anarchist Cookbook, which contains a diagram of a pipe bomb,
and the bookstore owners had called the police, and once
they sort of pieced all of this together, that put
him at the top of the suspect list. They then
rated his spoorting room and found some electronic parts, some
(21:19):
wire strippers and pliers that could conceivably have been used
to construct a bomb, and at that point they worked
to link him to the bomb. They didn't find any
other physical evidence, never found the Anarchist Cookbook. They painted
a picture of him as the kind of person who
would do this, But you have to have physical evidence
(21:40):
that links people to crimes in very the objective ways,
and they didn't have that in this case, other than
the tool mark analysis, which both the prosecutor and the
judge acknowledged in the trial transcript. They both acknowledged that
the entire case hinged on the tool mark analysis, and
if it were thrown out, there would be no case.
Speaker 2 (22:10):
So how did they claim to identify Jimmy's tools as
the tools that were used on these bombs?
Speaker 4 (22:18):
They look at these microscopic scratches or striations on the
bomb parts, and then they look at the suspects tools
and they make a mark on some other piece of
metal using a microscope. They compare the marks on the metal,
like their test marks, to the marks on the actual evidence,
and if those line up in the examiner's you know,
(22:41):
subjective judgment, they declare to match, and they say that
this was you know, the only tools that could have
made these marks, and therefore the owner of these tools
must have been the person who built the bombs. You know,
they use the word certainty, and that's very compelling to jurors,
but the truth is they don't know how certain it is.
These aren't exotic bomb making tools. They're three dollars pair
(23:04):
of pliers that you know, were sold at the local
hardware store. Perhaps so you could imagine that, you know,
a tool mark examiner could say something like, oh, it
was a really large pair of pliers versus a small one,
or you know, it's consistent or something like that, but
they don't say that they individualize it. They say that
this is an exact match. And this isn't really a
(23:24):
possible conclusion to come to because you'd either have to
a test every other tool in the world and see
if this indeed was a unique mark that was being made,
or you would have to know the kinds of variations
that we see in tools, Like how common is it
that two tools can look about the same but aren't
(23:47):
the same? Is it you know, two tools that are
made by the same brand. Is it two tools that
come off the same you know, lot in a factory.
So there's all of these things that you'd need to quantify,
And even if you did do that, you'd have to say,
you know, there's a one in one hundred chants that
this is a different tool. There's a one in two
hundred chance, right, something like that.
Speaker 2 (24:08):
Right, So you're saying that one issue is how many
tools can be said to match a mark left behind?
And we really don't know the answer to that. But
I guess another issue is the examiners doing the matching.
And the fact of the matter is that these examiners
never really have to prove whether or not they can
effectively match a tool to its mark. And there are
(24:31):
possible ways to test this, right, I mean, if a
lab wants to test how good someone is at this
kind of tool matching. They would send a tool mark
examiner some tools along with some wires or pieces of
metal with tool marks on them, and the examiners would
then be asked to match the correct tool to the marks,
(24:51):
and the lab would have all of the correct answers,
so they'd be able to tell how good these examiners
actually are. That kind of testing, which would show how
good these tool mark examiners are at their job, seems
like a simple thing to do.
Speaker 4 (25:08):
Right, right, The real test is how well do you
examiners actually do in reality? And you would say, you know,
tool mark examiners make a mistake one out of ten times,
one out of one hundred times, one out of a
thousand times. That's what you really want to know is
how often do they make a mistake?
Speaker 2 (25:26):
So why don't they actually do these tests?
Speaker 4 (25:29):
If that comes back and it's really, really, it's not
so good, Right, you make an error fifty percent of
the time or twenty five percent of the time, you're
out of a job. You know, what are these examiners
going to do if this becomes a technique that is
no longer a valid technique in court? And you know,
(25:49):
I think that it's easy to have this narrative that
you know, these are unscrupulous scientists who are manipulating data
in a bloodthirsty way to get conviction. And I think
that's a very cartoonish way to think about it. There
are certainly cases of misconduct, and there are cases of
bad motives, but in reality, these are people who really
(26:11):
believed that what they were doing is true.
Speaker 2 (26:15):
And you actually talked to the tool mark examiner in
Jimmy's case while you were researching your article. So what
impressions did you have after talking to someone that actually
specializes in this stuff.
Speaker 4 (26:30):
I guess the thing that struck me the most as
a scientist is that there was an extreme lack of humility.
There is an extreme lack of acknowledging that these could
not be as infallible as they thought. They have a
very strong interest in proving that these techniques are very powerful.
There's a very strong sense of justice. There's a very
(26:51):
strong sense of righteousness. The posture of the forensic scientists
and prosecutors they spoke to is it was a bit
defense of right. The venue for these is a court
of law, which is an adversarial system, and to admit
any kind of fallibility or weakness is to weaken the case,
and that's it's just so against the culture to do that.
Speaker 2 (27:14):
So in Jimmy's case, how does it all work? How
did the examiner present this tool mark evidence to the jury,
and how do you think they were able to convince
the jury that the results were correct? You know that
Jimmy's tools match the marks on those bombs.
Speaker 4 (27:30):
The presentation of the tool mark evidence was a video presentation,
and I believe it was the defense attorney that said
she thought it was one of the first in the nation. Again,
this was in the early nineties, so this was the
first sort of video presentation of this kind of evidence.
Because the way that they do this again is looking
under a microscope and they line up these little microscopic
(27:53):
markings from the evidence with their little test cuts. You know,
it looks very convincing. You pick a little part where
they do line up and you're like, Aha, that must
be it, and then you ignore all the parts where
they don't line up, you know, which is you know,
part of the problem. During deliberations, the jury asked to
watch that video, you know, I think dozens of times.
So it was it was a very convincing presentation.
Speaker 2 (28:14):
So in addition to tool mark examiners, you also talk
to some of the prosecutors who use this type of
analysis in their cases. What were their thoughts about using
this kind of evidence.
Speaker 4 (28:27):
The same cognitive dissonance that would exist for forensic examiners
also exist for prosecutors. It's a lot to face that
these tools that you've relied on for so many cases
may not be as accurate as you thought they are,
meaning some of the people that you convicted were maybe
not guilty, and that you shouldn't use them moving forward.
It's a really hard it's a really hard pill to swallow.
(28:51):
I think one of the things that I was most
stunned by when we were interviewing prosecutors was the way
in which they would rely on legal rulings as a
substitute for scientific evidence. So what I mean by that
is we would say, you know, look, we've looked at
all of the evidence and they have not validated this
in a scientifically rigorous way, And the prosecutors retort to
(29:16):
that would be, well, yes, but we've used them, and
we've convicted guilty people, and it's gotten lots of lots
of legal rulings in our favor. And so therefore it
must be true. And so it's a very circular kind
of reasoning. It's almost like an invasive species. You have
this thing that's made its way into the courtroom, and
it gets locked in there by precedents, and it's really
(29:37):
really hard to get it out. And so that's the
reason that this stuff stays in courts. You know, science evolves.
Even if you thought something was true thirty years ago
and you decide it's not true today, you update, you know,
you revise, and the courts just don't want to do that.
They want to keep things the same.
Speaker 2 (29:54):
You know, we often ask our guests to tell our
listeners what they can do to make sure this type
of evidence stops being presented to juries in our criminal
justice system. So what would you tell people a juror,
for instance, who has to make a decision about someone's
guilt or innocence when they are presented with forensic evidence.
Speaker 4 (30:17):
If I had any advice to adjur you know, it's
to realize that there have been major reports by scientific
bodies that have found deep, deep problems with these techniques.
As convincing as it sounds, they're only telling you a
partial picture. And yet the courts have been unable to
(30:42):
bar them from being used. If you have a justice
system where that ends justifies the means, right, it's not
going to function fairly. And so we should all be
concerned when somebody is convicted by dubious means, because even
if that person was guilty, somebody else isn't going to
(31:02):
be and they're going to get convicted by those dubious
methods as well. You know, it's easy to be pessimistic
and almost fatalistic about the state of forensics in the courtroom,
but there are some bright spots. You know, there are
some rulings that seem really enlightened on the part of
the judges who are acknowledging that maybe these things do
need to be revisited.
Speaker 2 (31:23):
And this is even true in regard to Jimmy's case.
The Innocence Project has picked up as appeal and are
trying to set a new kind of precedent.
Speaker 4 (31:32):
They are going to have an evidentiary hearing, which means
that they'll have some reevaluation of the quality of the
tool mark evidence. So in that sense, you know, it's
from a legal sense, it's it's progress. Whether you know
this will pan out for Jimmy, is you know that's
still up in the air at this point.
Speaker 2 (31:53):
So we often make a plea at the end of
every episode. Please write your local judges question the so
called science. Don't try to get out of jury service,
but rather serve as a conscienties, etc. And so on. Today,
I'm going to ask you to do something different, so
I'd like you to consider this. In the seventeen sixties,
(32:16):
an English judge named William Blackstone wrote an article entitled
Commentaries on the Laws of England. In it, he wrote
something extraordinary. It is better that ten guilty persons escape
than that one innocent suffer. This profound expression of humanity,
of the recognition that the sacrificing of one innocent person
(32:40):
should not be the cost of administering justice in any
civilized society, is at least to me, the personification of empathy.
This concept became known as Blackstone's ratio, and it's made
its way into the criminal justice system of virtually every
Western society. William Blackstone somehow realize that because accusing, convicting,
(33:04):
and condemning an innocent person to prison for a crime
they did not commit is the height of human suffering,
the most unimaginable nightmare that no man or woman should
have to bear. You've heard stories on this podcast about
terrible crimes and the junk signs that was used to
(33:24):
convict innocent men and women, and we mention their names
like Sante Tribble and Keith Allen Harwood and Jimmy Ginrich
and many others, But I think their suffering gets lost
in the shuffle. Wrongful convictions often get discussed in pop culture.
They certainly have a light shined on them, but we
(33:47):
often hear about them when the person that was wrongfully
convicted is getting out, when their nightmare is coming to
an end. We don't talk much about what they have
to endure in prison, everything from physical and sexual assaults,
the constant fear of losing their life, the unthinkable living conditions,
(34:08):
the isolation from family, friends, alienation from the world, advances
in technology, and even after they're exonerated, the pain never
really goes away. I once wrote an article about an
exonery named Walter Swift in Detroit, and I tried to
capture in it some of that suffering, and I really
(34:31):
don't think I can top it, so I'll just read
to you what I wrote. The sad reality is that
Walter has struggled terribly since his exoneration. He, as many
of the wrongfully incarcerated do, has battled substance abuse. He
has had a difficult time holding down jobs, and has
suffered from the type of profound psychological issues that are
(34:54):
the product of the inhumane confinement of an innocent man
to a cage for more than a quarter or century.
Be exonerated are often angry, paranoid, and suffer from debilitating depression.
I've done this work for quite some time, and it
still brings me to the edge of crying even to
(35:16):
think about it. And I still don't get it, and
I don't think I ever really will. Their suffering is
on a level that is not meant to be comprehended.
It is too raw to piercing, too much for the
mind to process. Hopefully these stories, our words will make
(35:42):
a difference. My hope is always to get people to
think about the presumption of innocence and its importance in
the same way William Blackstone did. So today I'm going
to ask you to do something a little different. I
ask that if you ever find yourself pick to serve
on a jury, whether you tried to get out of it,
(36:03):
or not that you really consider the consequences of your verdict.
Think about what condemning an innocent person actually means. Think
about the suffering of that individual. Try to even shut
your eyes and picture the tearing away from their life spouses, children, grandparents, aunts, uncles, friends,
(36:31):
the confinement, the fear, the loneliness, the slow bleed of time, months, years, decades,
the absolute obliteration of a life. Maybe then we'll all
realize that we better be sure, beyond all reasonable doubt,
(36:57):
that we are getting it right. It is better that
ten guilty people go free than have one innocent person suffer.
We know that listeners of this show have already heard
(37:18):
a lot about Chorus confessions through another show in our stream,
Wrongful Conviction, False Confessions. On our show next week, we're
going to take a deep dive into the psychology of
course confessions to show how and why officers' methods are
so effective in pulling a false confession out of an
innocent person. We'll explore the junk science of course confessions
(37:42):
with David Rudolph, civil rights lawyer and hosts of the
podcast Abuse of Power, 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, it's Signal Company number One executive producer
(38:02):
Kevin Wartis and senior producers Kara Kornhaber and 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
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. This episode is about tool
mark evidence, which includes the long used practice of matching
(00:23):
ammunition to specific firearms. For decades, ammunition matching has been
seen as a highly reliable way to link a suspect
to a crime scene, but the actual reliability of this
type of evidence is increasingly being questioned. Just recently, in
June of twenty twenty three, the Supreme Court of Maryland
(00:45):
ruled that ballistics matching may only be represented in court
by experts as consistent or inconsistent with the gun in question.
Like other courts in the past few years, they see
an issue with this type of evidence, something we'll explore
in more detail later in the episode. This ruling could
(01:09):
have huge consequences for wrongful conviction actions in Maryland and beyond.
While it doesn't automatically reopen cases, lawyers and wrongfully convicted
people can use it to petition courts for relief.
Speaker 2 (01:28):
It's Valentine's Day, nineteen ninety one. You don't usually observe
the greeting card holidays. You think they're kind of silly,
and besides, most of the time, you and your partner
are both busy working. You're always buried in your client's cases,
and your partner is often on call, running back and
forth to the hospital to treat patients. Your friends are
(01:51):
always remarking that you're the classic power couple, but sometimes
it seems like it's all power and not so much couple.
So this year, you make dinner, put out a tablecloth,
and even light a candle. At the end of dinner,
you do the dishes and your partner takes out the trash.
The TV is on low in the background, but something
(02:14):
makes your ears perk up. You glance over and see
the newswoman reporting from a parking lot not too far
away from your house. She says, an explosion went off
not long ago. A man was hit in his leg
by shrapnel that exploded off a pipe bomb. It detonated
thirty yards away from where the man was walking. Listening
(02:38):
to this, you slowly shake your head. It's not uncommon
in Grand Junction, Colorado, for people to mess around with explosives.
After all, it's a mining down and people know how
to use dynamite. The reporter says, the man that was
hit will probably be Okay, you hope this is just
some kids joke gone wrong. But then a few weeks
(02:59):
later there's another news report. A twelve year old girl
named Maria gets into a van with her parents to
go shopping, and as the family sets out for the mall,
a bomb hidden near one of the rear tires explodes.
Shrapnel is flung through the back of the van's seat
and into Maria's body. It wedges into her heart. Her
(03:22):
parents frantically pull her out of the car, but she
dies right there. Three months after that, husband and wife
Henry and Suzanne, finish dinner at a local restaurant. They
drive by a strange looking object. Henry slows the car
down and reaches out to see what it is. His
(03:44):
arms are blown off his body and he dies instantly.
After that third bomb goes off, everyone in Grand Junction
is extremely anxious. You check under your car every single
(04:07):
time before you get in, and you continue to follow
the news coverage as it unfolds. The police department declares
that out of thirty initial suspects for the bombs. They've
narrowed it down to just one person. They don't renounce
who it is, but a camera crew must have gotten
tipped off because they start following around a young man
with big glasses. Then you get a phone call from
(04:32):
a man who identifies himself as Jimmy. He tells you
he is the suspect in these bombing cases. His words
come quickly and in fragments of sentences, he sounds scared.
He says he hasn't done anything wrong, and he hasn't
been arrested yet, but with cameras following him, he thinks
(04:52):
it's a good idea to get an attorney. He asks,
will you help me. You take all of this in
and think to I really want to be involved defending
someone who might have done something so horrific. But then again,
what if he's actually innocent. Everyone deserves an opportunity to
(05:12):
defend themselves. Ultimately, you agree to take on his case.
Soon after you become Jimmy's attorney, he gets a knock
at his door. The police enter his house with a warrant.
They turn his place inside out, Detectives vacuum the couch
and carpet to see if they can pick up any gunpowder.
(05:33):
Nothing all they found or some everyday tools, some pliers,
wire strippers. The tools that are taken from Jimmy's house
are brought down to the police station and tested in
the forensics lab. When the results come back, police arrests
Jimmy and he gets charged with murder. Of all the
(05:55):
people to pin this on, you do understand why they're
targeting Jimmy. He's somewhat of a loaner, definitely an oddball.
He often goes on late night walks by himself. He
can be found sitting alone at bars and getting pretty drunk.
Prior to the trial, the prosecution discloses the evidence they
intend to use against Jimmy to prove their case, and
(06:18):
it looks pretty bad. You spend countless days pouring over
the main piece of evidence, the conclusion of a tool
mark examiner. The report of this examiner says that the
impressions taken from the tools they found in Jimmy's apartment
can be scientifically linked to the tool marks left on
all three of the bombs. In all your years as
(06:42):
a criminal defense attorney, you've never heard of this type
of forensic analysis. You didn't even know it existed, But
you studied science and undergrad before you decided to become
a lawyer, so you know how to analyze these scientific documents.
You dig up everything you can find on tools, evidence, data, statistics, studies, experiments.
(07:04):
You find nothing. How are you supposed to defend against this?
If someone has a standard set of needlenos pliers, aren't
they likely to match up with the impressions made by
other needlenose pliers. At trial, the jury is shown a
video by the prosecution. A tool mark expert walks the
jurors through it. He tells them each tool has unique
(07:28):
microscopic characteristics. You can see how the tools we found
in the defendant's home aligned perfectly with marks found on
fragments of the exploded bombs. The jury is mesmerized by
the videotape shown by the tool mark examiner after closing arguments,
when they begin their deliberations, the first note they send
(07:51):
out is a request to see that video. They view
it over and over and over again, and then the
bailiff informs you that the jury is done deliberating. Jimmy
is brought back into the courtroom from a holding cell.
You see the trepidation in his face as he takes
a seat, and you can actually hear him take a big,
(08:14):
nervous swallow. The jury files into the courtroom, and a
vein on your temple begins to pulsate in twitch. Jimmy
is convicted of multiple counts of murder. He is sentenced
to life in prison. The story you just heard is
(08:34):
based on the true events of the bombings in Grand Junction, Colorado,
in nineteen ninety one and the subsequent trial of Jimmy Genrich.
Jimmy has been in prison for more than twenty five years,
serving a life sentence. His latest appeal has been taken
up by the Innocence Project. I'm Josh Dubin, civil rights
(08:56):
and criminal defense attorney, an Innocent Ambassador Innocence Project in
New York. Today, on wrongful Conviction junk Science, we examined
tool mark analysis. It turns out the crime that popularized
tourl maark analysis was also committed on Valentine's Day over
ninety years ago.
Speaker 3 (09:22):
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 White
and Arthur Luxembourg literally put everything on the line to
successfully represent them. Since then, they've championed the rights of
over fifty thousand regular Americans injured through the negligence and
(09:43):
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 drinkable. Whites and Luxembourg ticket personally when there's a
miscarriage of justice anywhere, and therefore they feel a sense
(10:06):
of responsibility to support Bramfel conviction podcasts. You can learn
more about them by visiting Whiteeslux dot com. That's w
E I t Z lux dot com.
Speaker 2 (10:25):
You've all heard of the legendary mobster Al Capone. During
the Roaring twenties, he was the leader of the Chicago Mafia.
Anything corrupt or illegal. He controlled it, from bootlegging to speakeasies,
gambling to prostitution. Capone owned it all. But there was
(10:45):
one rival gang that Capone couldn't quite shake. The irishmafia
led by George bugs Moran. They were manufacturing and selling alcohol,
stepping on Capone's business. Now Capone he wasn't gonna have it.
He got hold of some police uniforms and on February fourteenth,
Valentine's Day, nineteen twenty nine, four of Capone's men, dressed
(11:10):
as police officers, went over to the garage where bugs
Moran's gang was producing and selling alcohol. Capone's crew took
the Irish mob by surprise. They started screaming with their
guns drawn, line up against the wall, hands where I
can see him. You're all under arrest. All seven of
the Irish gangsters lined up against the wall, hands on
(11:32):
their heads, while Capone's crew shot them all dead in
broad daylight. By the time the real police arrived, Capone's
gang was long gone. The cops had more than a
hunch about who was responsible for this, but they needed
the hard evidence to prove it, so they raided the
home of one of Capone's top guys, who went by
(11:54):
the name of Frank Killer Burke. They took his gun
and sent it off to what was one of the
first crime labs in the country. There, an examiner named
Calvin Goddard shot some test bullets out of the confiscated gun.
He put one of the test bullets and one of
the bullets found at the massacre under a special microscope
(12:15):
that allowed him to compare two images at once. This
examiner actually invented this technique of comparing bullets. He claimed
that no two revolvers leave the same mark, and that
by examining the grooves on the bullets, he claimed he
could identify the gun that shot them. According to Goddard,
(12:36):
the bullets of the confiscated gun indeed matched the bullets
found at the scene of the crime, but the police
couldn't do much with that evidence. They couldn't prove that
the owner of the gun, Frank Killer Burke, had been
at the scene of the crime, and so no one
was ever charged for what became known as the Valentine's
Day massacre. The analysis the invented is now known as
(13:01):
tool mark and firearm analysis. Forensic analysts that follow in
his footsteps believe that just as each gun leaves a
unique mark on every bullet that it shoots, each tool
leaves unique mark on the surface it's used on. But
no one had closely examined the false assumptions behind tool
mark identification. What was being presented to jury's was this
(13:23):
notion that a tool will leave a unique mark on
a surface. But it turns out that's not necessarily the case.
If two people own a similar wrench, for instance, both
wrenches will leave behind a similar mark, So matching a
mark to a tool owned by a suspect has very
limited value. Nevertheless, these experts were claiming that a tool
(13:46):
found at the home of a suspect was the precise
tool that was used, for example, to cut wires during
the construction of a bomb. This kind of flawed evidence
continued to be presented in courtrooms across the country to
link suspects to crimes, leading to several wrongful convictions, including
(14:06):
that of Jimmy Genrich in nineteen ninety two.
Speaker 4 (14:13):
It was just so obvious to me that this was
not you know, this was not a foundationally strong field,
and I was absolutely stunned because the consequences of this
stuff can't be higher. You know, people go to prison
for years, they're sentenced to death. I mean, essentially, for
(14:33):
this to be totally unproven science, I just absolutely could
not believe it.
Speaker 2 (14:39):
Today we're talking to Tim Riquarth. Tim's a freelance journalists
who often writes about the intersection between science and criminal justice.
He's also a lecturer in science and writing at NYU.
We're particularly excited to talk to him today because he
wrote about Jimmy Genrich's case for an article published by
The Nation. He and his co author extensively researched the case,
(15:03):
along with the tool mark evidence that was used to
convict Jimmy. Now, a lot of this episode is based
on this article that Tim wrote, So after listening to
this episode, if you want to learn more about tool
mark evidence in Jimmy's case, you can find the article
on our show notes. So, Tim, tell us about your background.
How did you get into writing about science?
Speaker 4 (15:26):
So, for undergraduate, I studied literature and writing, and it
wasn't until after I'd graduated. I happened to be living
across the street from a medical school in Chicago, and
at the same time, my father was suffering from dementia,
and the books and articles that I was reading on
dementia didn't quite satisfy me, and so I decided to
(15:48):
volunteer in a lab that studied dementia. And it was
at that point that I was first introduced to research,
and I was hooked. So I went back to school,
took all of the basic science classes that I hadn't
taken undergrad and eventually enrolled in a masters, And you know,
ten years later I found myself in probably with a
PhD in neuroscience. The sort of breadth of questions and
(16:12):
material that you could really dive into as a journalist
or a writer just felt so much more expansive than
what I could do as a scientist. And so I
sort of had the realization later on in my PhD
that research heavy, investigative type of pieces were a really
good fit for somebody who's trained in answering big questions.
Speaker 2 (16:34):
So before writing this story about tool mark evidence, what
did you know about any forensic science?
Speaker 4 (16:40):
Before that the first story I did about forensic science,
I didn't know a lot about it at the time. Then,
you know, anybody might from watching Law and Order or CSI.
We profiled the specific case and it involved to a
mark evidence, and we looked at all of the research
in the forensic journal. I mean, we went through and
(17:02):
found every single study and most of them were very
small sample sizes, very theoretical, or had all kinds of
methodological design problems, and I was absolutely stunned because this
is like a solved problem. We know how to do
strong empirical scientific studies to see if something works or not.
(17:25):
Like take a medical study, which if you want to
see if a drug has an effect, you randomly select
two groups of people and you assign one of them
to get the drug and another one to get a
placebo which has no effect. You blind both the people
so they don't know that they're getting the drug, and
you also blind the researchers so they don't know who
(17:45):
is getting the drug. You decide ahead of time what
analysis you're going to do, what outcomes you're going to
look for, and then you test those using rigorous hypothesis
testing and statistics to see what happens. And in forensics
sciences that just it doesn't exist. The practitioners doing them
are often not blinded, the sample sizes are very low,
(18:09):
there's conflicts of interest, so it's not following some of
the most basic tenets that you know would be reflexive
to your you know, typical scientist in a university.
Speaker 2 (18:23):
I mean most people, especially lay people on a jury,
hear the words forensic science and you know, they imagine
this very pristine process in which things are tested and retested,
because you know, we all think of the scientific method
that we learn about in the school, and it's kind
of startling to know that that's not actually the case.
(18:45):
So what you said really underscores what we've been saying
throughout this show and how big of a problem it
can be when jurors confuse what's really junk science presented
in courtrooms with trig additional science that's used to develop medicines.
For example. And I'm not sure that our listeners are
(19:07):
aware of this, but I want you to think about
this for a moment. In cases where people were later
proven to be innocent based on DNA, forty five percent
of those wrongful convictions are based on some misapplication of
forensic science.
Speaker 4 (19:25):
Imagine if this were the FDA, right Imagine if a
drug didn't work fifty percent of the time and had
horrible side effects, they wouldn't just say, well, you know,
we already approved it, so let's just leave it on
the market. That's not how it works in medicine, but
that is how it works in the law.
Speaker 2 (19:40):
So let's get into Jimmy's case. I want you to
tell us about the crime that led to his arrest
and the town that had happened, and why did they
even decide to zero in on Jimmy in the first place.
Speaker 4 (19:53):
Grand Junction is a sort of mining town of about
thirty thousand people at the time, and there is a
series of pipe bombs that went off in the town.
There were three of them, and one of them killed
a twelve year old girl. It was it was very tragic,
and they had they were seemingly random, and they had
no suspect, and so the Bureau of Alcohol, Tobacco and
(20:16):
Firearms was called in and they helped the local police
force do a bomb investigation to try to figure out
who this was. They had a list of, you know,
something like thirty suspects. There was this guy, Jimmy, who
was sort of a loner. Lived in a boarding house
near downtown in a twelve by twelve room. I think
he was a busboy in a restaurant, but was on
(20:38):
and off of jobs. His mother would bring him, you know,
meals in a cooler, and he was a little bit
you know, he had some problems with mental illness. There
was one event in particular that put him on the
police's radar, which was he walked into a bookstore one
day and asked them to order a copy of the
(20:58):
Anarchist Cookbook, which contains a diagram of a pipe bomb,
and the bookstore owners had called the police, and once
they sort of pieced all of this together, that put
him at the top of the suspect list. They then
rated his spoorting room and found some electronic parts, some
(21:19):
wire strippers and pliers that could conceivably have been used
to construct a bomb, and at that point they worked
to link him to the bomb. They didn't find any
other physical evidence, never found the Anarchist Cookbook. They painted
a picture of him as the kind of person who
would do this, But you have to have physical evidence
(21:40):
that links people to crimes in very the objective ways,
and they didn't have that in this case, other than
the tool mark analysis, which both the prosecutor and the
judge acknowledged in the trial transcript. They both acknowledged that
the entire case hinged on the tool mark analysis, and
if it were thrown out, there would be no case.
Speaker 2 (22:10):
So how did they claim to identify Jimmy's tools as
the tools that were used on these bombs?
Speaker 4 (22:18):
They look at these microscopic scratches or striations on the
bomb parts, and then they look at the suspects tools
and they make a mark on some other piece of
metal using a microscope. They compare the marks on the metal,
like their test marks, to the marks on the actual evidence,
and if those line up in the examiner's you know,
(22:41):
subjective judgment, they declare to match, and they say that
this was you know, the only tools that could have
made these marks, and therefore the owner of these tools
must have been the person who built the bombs. You know,
they use the word certainty, and that's very compelling to jurors,
but the truth is they don't know how certain it is.
These aren't exotic bomb making tools. They're three dollars pair
(23:04):
of pliers that you know, were sold at the local
hardware store. Perhaps so you could imagine that, you know,
a tool mark examiner could say something like, oh, it
was a really large pair of pliers versus a small one,
or you know, it's consistent or something like that, but
they don't say that they individualize it. They say that
this is an exact match. And this isn't really a
(23:24):
possible conclusion to come to because you'd either have to
a test every other tool in the world and see
if this indeed was a unique mark that was being made,
or you would have to know the kinds of variations
that we see in tools, Like how common is it
that two tools can look about the same but aren't
(23:47):
the same? Is it you know, two tools that are
made by the same brand. Is it two tools that
come off the same you know, lot in a factory.
So there's all of these things that you'd need to quantify,
And even if you did do that, you'd have to say,
you know, there's a one in one hundred chants that
this is a different tool. There's a one in two
hundred chance, right, something like that.
Speaker 2 (24:08):
Right, So you're saying that one issue is how many
tools can be said to match a mark left behind?
And we really don't know the answer to that. But
I guess another issue is the examiners doing the matching.
And the fact of the matter is that these examiners
never really have to prove whether or not they can
effectively match a tool to its mark. And there are
(24:31):
possible ways to test this, right, I mean, if a
lab wants to test how good someone is at this
kind of tool matching. They would send a tool mark
examiner some tools along with some wires or pieces of
metal with tool marks on them, and the examiners would
then be asked to match the correct tool to the marks,
(24:51):
and the lab would have all of the correct answers,
so they'd be able to tell how good these examiners
actually are. That kind of testing, which would show how
good these tool mark examiners are at their job, seems
like a simple thing to do.
Speaker 4 (25:08):
Right, right, The real test is how well do you
examiners actually do in reality? And you would say, you know,
tool mark examiners make a mistake one out of ten times,
one out of one hundred times, one out of a
thousand times. That's what you really want to know is
how often do they make a mistake?
Speaker 2 (25:26):
So why don't they actually do these tests?
Speaker 4 (25:29):
If that comes back and it's really, really, it's not
so good, Right, you make an error fifty percent of
the time or twenty five percent of the time, you're
out of a job. You know, what are these examiners
going to do if this becomes a technique that is
no longer a valid technique in court? And you know,
(25:49):
I think that it's easy to have this narrative that
you know, these are unscrupulous scientists who are manipulating data
in a bloodthirsty way to get conviction. And I think
that's a very cartoonish way to think about it. There
are certainly cases of misconduct, and there are cases of
bad motives, but in reality, these are people who really
(26:11):
believed that what they were doing is true.
Speaker 2 (26:15):
And you actually talked to the tool mark examiner in
Jimmy's case while you were researching your article. So what
impressions did you have after talking to someone that actually
specializes in this stuff.
Speaker 4 (26:30):
I guess the thing that struck me the most as
a scientist is that there was an extreme lack of humility.
There is an extreme lack of acknowledging that these could
not be as infallible as they thought. They have a
very strong interest in proving that these techniques are very powerful.
There's a very strong sense of justice. There's a very
(26:51):
strong sense of righteousness. The posture of the forensic scientists
and prosecutors they spoke to is it was a bit
defense of right. The venue for these is a court
of law, which is an adversarial system, and to admit
any kind of fallibility or weakness is to weaken the case,
and that's it's just so against the culture to do that.
Speaker 2 (27:14):
So in Jimmy's case, how does it all work? How
did the examiner present this tool mark evidence to the jury,
and how do you think they were able to convince
the jury that the results were correct? You know that
Jimmy's tools match the marks on those bombs.
Speaker 4 (27:30):
The presentation of the tool mark evidence was a video presentation,
and I believe it was the defense attorney that said
she thought it was one of the first in the nation. Again,
this was in the early nineties, so this was the
first sort of video presentation of this kind of evidence.
Because the way that they do this again is looking
under a microscope and they line up these little microscopic
(27:53):
markings from the evidence with their little test cuts. You know,
it looks very convincing. You pick a little part where
they do line up and you're like, Aha, that must
be it, and then you ignore all the parts where
they don't line up, you know, which is you know,
part of the problem. During deliberations, the jury asked to
watch that video, you know, I think dozens of times.
So it was it was a very convincing presentation.
Speaker 2 (28:14):
So in addition to tool mark examiners, you also talk
to some of the prosecutors who use this type of
analysis in their cases. What were their thoughts about using
this kind of evidence.
Speaker 4 (28:27):
The same cognitive dissonance that would exist for forensic examiners
also exist for prosecutors. It's a lot to face that
these tools that you've relied on for so many cases
may not be as accurate as you thought they are,
meaning some of the people that you convicted were maybe
not guilty, and that you shouldn't use them moving forward.
It's a really hard it's a really hard pill to swallow.
(28:51):
I think one of the things that I was most
stunned by when we were interviewing prosecutors was the way
in which they would rely on legal rulings as a
substitute for scientific evidence. So what I mean by that
is we would say, you know, look, we've looked at
all of the evidence and they have not validated this
in a scientifically rigorous way, And the prosecutors retort to
(29:16):
that would be, well, yes, but we've used them, and
we've convicted guilty people, and it's gotten lots of lots
of legal rulings in our favor. And so therefore it
must be true. And so it's a very circular kind
of reasoning. It's almost like an invasive species. You have
this thing that's made its way into the courtroom, and
it gets locked in there by precedents, and it's really
(29:37):
really hard to get it out. And so that's the
reason that this stuff stays in courts. You know, science evolves.
Even if you thought something was true thirty years ago
and you decide it's not true today, you update, you know,
you revise, and the courts just don't want to do that.
They want to keep things the same.
Speaker 2 (29:54):
You know, we often ask our guests to tell our
listeners what they can do to make sure this type
of evidence stops being presented to juries in our criminal
justice system. So what would you tell people a juror,
for instance, who has to make a decision about someone's
guilt or innocence when they are presented with forensic evidence.
Speaker 4 (30:17):
If I had any advice to adjur you know, it's
to realize that there have been major reports by scientific
bodies that have found deep, deep problems with these techniques.
As convincing as it sounds, they're only telling you a
partial picture. And yet the courts have been unable to
(30:42):
bar them from being used. If you have a justice
system where that ends justifies the means, right, it's not
going to function fairly. And so we should all be
concerned when somebody is convicted by dubious means, because even
if that person was guilty, somebody else isn't going to
(31:02):
be and they're going to get convicted by those dubious
methods as well. You know, it's easy to be pessimistic
and almost fatalistic about the state of forensics in the courtroom,
but there are some bright spots. You know, there are
some rulings that seem really enlightened on the part of
the judges who are acknowledging that maybe these things do
need to be revisited.
Speaker 2 (31:23):
And this is even true in regard to Jimmy's case.
The Innocence Project has picked up as appeal and are
trying to set a new kind of precedent.
Speaker 4 (31:32):
They are going to have an evidentiary hearing, which means
that they'll have some reevaluation of the quality of the
tool mark evidence. So in that sense, you know, it's
from a legal sense, it's it's progress. Whether you know
this will pan out for Jimmy, is you know that's
still up in the air at this point.
Speaker 2 (31:53):
So we often make a plea at the end of
every episode. Please write your local judges question the so
called science. Don't try to get out of jury service,
but rather serve as a conscienties, etc. And so on. Today,
I'm going to ask you to do something different, so
I'd like you to consider this. In the seventeen sixties,
(32:16):
an English judge named William Blackstone wrote an article entitled
Commentaries on the Laws of England. In it, he wrote
something extraordinary. It is better that ten guilty persons escape
than that one innocent suffer. This profound expression of humanity,
of the recognition that the sacrificing of one innocent person
(32:40):
should not be the cost of administering justice in any
civilized society, is at least to me, the personification of empathy.
This concept became known as Blackstone's ratio, and it's made
its way into the criminal justice system of virtually every
Western society. William Blackstone somehow realize that because accusing, convicting,
(33:04):
and condemning an innocent person to prison for a crime
they did not commit is the height of human suffering,
the most unimaginable nightmare that no man or woman should
have to bear. You've heard stories on this podcast about
terrible crimes and the junk signs that was used to
(33:24):
convict innocent men and women, and we mention their names
like Sante Tribble and Keith Allen Harwood and Jimmy Ginrich
and many others, But I think their suffering gets lost
in the shuffle. Wrongful convictions often get discussed in pop culture.
They certainly have a light shined on them, but we
(33:47):
often hear about them when the person that was wrongfully
convicted is getting out, when their nightmare is coming to
an end. We don't talk much about what they have
to endure in prison, everything from physical and sexual assaults,
the constant fear of losing their life, the unthinkable living conditions,
(34:08):
the isolation from family, friends, alienation from the world, advances
in technology, and even after they're exonerated, the pain never
really goes away. I once wrote an article about an
exonery named Walter Swift in Detroit, and I tried to
capture in it some of that suffering, and I really
(34:31):
don't think I can top it, so I'll just read
to you what I wrote. The sad reality is that
Walter has struggled terribly since his exoneration. He, as many
of the wrongfully incarcerated do, has battled substance abuse. He
has had a difficult time holding down jobs, and has
suffered from the type of profound psychological issues that are
(34:54):
the product of the inhumane confinement of an innocent man
to a cage for more than a quarter or century.
Be exonerated are often angry, paranoid, and suffer from debilitating depression.
I've done this work for quite some time, and it
still brings me to the edge of crying even to
(35:16):
think about it. And I still don't get it, and
I don't think I ever really will. Their suffering is
on a level that is not meant to be comprehended.
It is too raw to piercing, too much for the
mind to process. Hopefully these stories, our words will make
(35:42):
a difference. My hope is always to get people to
think about the presumption of innocence and its importance in
the same way William Blackstone did. So today I'm going
to ask you to do something a little different. I
ask that if you ever find yourself pick to serve
on a jury, whether you tried to get out of it,
(36:03):
or not that you really consider the consequences of your verdict.
Think about what condemning an innocent person actually means. Think
about the suffering of that individual. Try to even shut
your eyes and picture the tearing away from their life spouses, children, grandparents, aunts, uncles, friends,
(36:31):
the confinement, the fear, the loneliness, the slow bleed of time, months, years, decades,
the absolute obliteration of a life. Maybe then we'll all
realize that we better be sure, beyond all reasonable doubt,
(36:57):
that we are getting it right. It is better that
ten guilty people go free than have one innocent person suffer.
We know that listeners of this show have already heard
(37:18):
a lot about Chorus confessions through another show in our stream,
Wrongful Conviction, False Confessions. On our show next week, we're
going to take a deep dive into the psychology of
course confessions to show how and why officers' methods are
so effective in pulling a false confession out of an
innocent person. We'll explore the junk science of course confessions
(37:42):
with David Rudolph, civil rights lawyer and hosts of the
podcast Abuse of Power, 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, it's Signal Company number One executive producer
(38:02):
Kevin Wartis and senior producers Kara Kornhaber and 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
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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