August 10, 2020 • 33 mins
Josh Dubin, civil rights and criminal defense attorney, and Innocence Ambassador to the Innocence Project in New York explores bloodstain pattern evidence with Pamela Colloff, senior reporter at ProPublica and staff writer at The New York Times Magazine.
Bloodstain pattern experts falsely claim that they can identify the culprit of violent crimes by examining the shape and distribution of bloodstains from a crime scene. But, bloodstain pattern evidence has no grounding in any verifiable science. So how did this kind of junk science become admissible?
Learn more and get involved.
Pamela Coloff’s two part story on the Joe Bryan case Blood Will Tell - ProPublica
Part 1 https://features.propublica.org/blood-spatter/mickey-bryan-murder-blood-spatter-forensic-evidence/
Part 2 https://features.propublica.org/blood-spatter/joe-bryan-conviction-blood-spatter-forensic-evidence/
National Academy of Sciences: Strengthening Forensic Science in the United States: A Path Forward https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf
https://www.wrongfulconvictionpodcast.com/junk-science
Wrongful Conviction: Junk Science is a production of Lava for Good™ Podcasts in association with Signal Co. No1.
We have worked hard to ensure that all facts reported in this show are accurate. The views and opinions expressed by the individuals featured in this show are their own and do not necessarily reflect those of Lava for Good.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It's five pm, and you call your spouse. You say,
don't wait up, I'm gonna be working late. I love you,
I'll see when I get home. You've been married for
seven years and you have a good relationship. You bick
her 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. It's
(00:24):
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 hall
(00:47):
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.
(01:14):
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,
(01:34):
dreamlike state. You manage to call nine one one. You plead,
you scream, you cry for them to come right away.
You reach down and touch your spouse. You feel for
a pulse. You put your ear to their chest. There's
no movement, there's no sign of life. You lean down
(01:57):
and try to give them CPR. You don't even know
how long you've been doing it. You lose sense of time,
but eventually you hear sirens. They're blaring, and all of
a sudden, there's chaos. The room is filled with people.
A paramedic puts a hand on your shoulder and says,
let us start working here, and pulls you into another room.
(02:19):
Then they tell you what you already know but don't
want to admit. Your spouse is dead. You're not crying,
You're heaving, trying to catch your breath. The police try
to console you. 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
(02:43):
in no state to drive, you're put into the back
of a police car. When you get to the police station,
a detective comes in with a sweatshirt and sweatpants, and
he says, take off 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
(03:03):
in and she asks you how you got blood on
the backside of your pants. Where were you standing when
you got blood on the cuff of your shirt, on
your sock. You don't know the answer to these questions.
It was all 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
(03:28):
it's becoming quite obvious that they suspect you did this.
You were eventually charged with the first degree murder of
your spouse. At your trial, the prosecution calls to the
stand a blood stained pattern analyst. That expert gets on
the stand and tells the jury that the story of
(03:49):
the murder of your spouse is soaked into the blood
of the clothes you were wearing when the night the
crime was committed. The blood stain pattern analyst walks into
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
(04:12):
victim's head, which created the splatter pattern you see here
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
(04:32):
recovered that object. They just tell the jury that you
must have gotten rid of it right before you stage
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
(04:54):
with which you inflicted the blows, and where your spouse
was standing when they were beaten to death. The stains
proved that you did not perform CPR. You did not
check for a pulse, because if you had, there would
not be this spray pattern. That's projected onto your shirt.
These stains all indicate that you committed this murder. You
(05:15):
glance over at the jury. Most are taking rigorous notes.
One is so taken, so wrapped that he stopped taking
notes altogether and just sits 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.
(05:42):
I'm Josh dubin civil rights and criminal defense attorney and
Innocent Ambassadors in the Innocence Project in New York. Today
on wrongful conviction junk science, We're going to explore bloodstained
pattern evidence. Like other forms of junk science used in
criminal trials, bloodstained pattern evidence falsely claims that it can
(06:03):
identify the culprit of violent crimes. But blood 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,
(06:25):
New York. When I think of Herbert MacDonnell, 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.
(06:47):
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 over there
day after day, half horrified, half intrigued by what she sees.
One day, she sees Herb aiming a gun at a dog.
(07:07):
He pulls the trigger, then walks over to examine the
blood sprayed onto the wall. Another day, Herb isn't alone.
There are some young women in lab coats in the basement.
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
(07:31):
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 blood slowly oozes onto
the basement floor. Herbert McDonnell actually used these techniques in
his basement, giving birth to the forensic science a bloodstained
(07:51):
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 as a forensic professor
at a local community college. For Herb, every crime scene,
and particularly the blood stains left behind, told a story.
(08:15):
Not only did he believe the blood stains 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 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,
(08:38):
Herbs started an unaccredited school right out of his basement.
He named it the Blood Stain Evidence Institute. It took
twelve years for Herb to get his moment 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 years brother,
(09:00):
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 to New York. Herb 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
(09:22):
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 of 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
(09:46):
criminal justice system in our country.
Speaker 2 (09:53):
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
(10:13):
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 1 (10:34):
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
(10:54):
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 2 (11:14):
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
(11:38):
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 1 (11:56):
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 2 (12:10):
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 bloodstained pattern analysis, and
(12:33):
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 mock
(12:54):
crime scenes and he used blood to on sort of
like butcher paper to show us what bloodstains would look
like at a crime scene. And then our job, and
this is part of our final grade, was to come
in and just by looking at that no other clues,
(13:16):
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 1 (13:37):
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.
Speaker 2 (13:47):
Students do I know of several students who have shot
cadavers and controlled situations to look at the way that
blood moves. Now, think about the way that blood operates
within a cadaver versus a living person with a beating heart.
I mean, there's so many things about that that don't
(14:09):
make sense.
Speaker 1 (14:10):
Right, So with a dead body or cadaver, it should
be common sense. There's no more blood flown through the veins, right,
the person isn't moving anymore, and there's a different viscosity
or thickness to the blood when someone is dead. So
all of this makes a difference in first how the
blood travels once the body is hit with an object,
(14:31):
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 2 (14:45):
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 marb room,
like a very controlled atmosphere like that, you might be
able to make some determinations about some things possibly, But
(15:10):
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 1 (15:30):
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
(15:51):
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 2 (16:09):
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,
(16:32):
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
(16:55):
atomized blood that sprays when someone shot. And then an
analyst for the state will be brought in and we'll
give this very convoluted logic 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
(17:18):
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 1 (17:45):
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.
We'll link to the article in our show notes. It
is a fascinating, fascinating piece that Pam wrote for Pro
Publica and again it's entitled blood will Tell the Joe
(18:08):
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.
He spent thirty three years in prison for the murder
(18:31):
of his wife, and you know your story. Pam 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 2 (18:44):
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 education conference,
his wife was shot and killed in their home and
(19:06):
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
(19:26):
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
(19:49):
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
(20:09):
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,
(20:29):
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
(20:51):
place the night of the crime, but that expert testimony
from that cop was enough to get a murder conviction
life sentence.
Speaker 1 (21:01):
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
(21:23):
people that are accused of crimes they didn't commit. Was
Joe ever exonerated?
Speaker 2 (21:29):
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,
(21:51):
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
(22:13):
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
(22:35):
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 1 (22:46):
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
(23:08):
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
you know, confined to this narrow space, and all of
the horrors of prison that you hear about that happen
(23:29):
to these people, and then on top of it being
in there for something you didn't do. I mean, there
have been studies about how it inflicts even more psychological
damage on people to be in there for something that
you didn't do, and the lost years just can't be replaced.
No amount of money is going to make that pain
go away, no matter how much compensation they get. And
(23:53):
yet these wrongful convictions just continue being propelled by junk science.
It's just astounding.
Speaker 2 (24:01):
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 the anything.
This is a discipline that when you look at sort
(24:24):
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
(24:46):
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 1 (25:15):
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.
(25:38):
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 bite marks and of course bloodstains right PAM.
Speaker 2 (26:00):
The National Academy of Science is actually made up of
scientists who publish peer reviewed work and who were involved
in research with real scientific integrity, and they set the
bar very, very high, and they have long been extremely
(26:21):
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.
Speaker 1 (26:43):
With, 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,
the capable analysts must possess an understanding of applied mathematics, physics,
fluid transfer, wound pathology, and that this blood spatter analysis
(27:08):
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 pay
(27:29):
any attention to it.
Speaker 2 (27:31):
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 blood stand pattern analysis, like
(27:54):
so many of the disciplines that are identified in that
report as being problematic, we're so so deeply entrenched in
crime labs and across the country. You had experts in
crime labs that were under local police departments where this
was just this was the way it was done, So
(28:14):
there was no 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,
(28:35):
and that can take a circumstantial case and move it
from gray to black and white.
Speaker 1 (28:41):
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
(29:04):
and I are actually co authors on a textbook together.
I'll give a nice plug ear for the law of
jurys in case anybody is aching to read a legal textbook.
But tell us about what Judge Nancy Gertner did.
Speaker 2 (29:17):
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.
(29:41):
And if we're 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,
(30:02):
but it really was. And she was an outlier in
this and got a lot of pushback from prosecutors about that.
Speaker 1 (30:12):
I mean, it's really shocking that she got pushback not
just from prosecutors, but also from her colleagues or fellow judges.
Speaker 2 (30:22):
She is a hero, and I think that her insistence
on something as basic as fairness being controversial is really disturbing.
Speaker 1 (30:37):
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
(30:59):
analysis stop 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
(31:20):
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
(31:41):
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,
(32:01):
like a warm blanket. It can never be torn from
them unless the prosecution overcomes the highest burden in our
justice system, which is 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
(32:22):
innocence in this country is not a given. It is
an ideal that we talk about, but we don't live
up to. But by uncovering the lack of credibility of
junk signs and our courts, we hope to get one
step closer. Next week, we'll explore the junk Signs of
(32:44):
Arson with Innocence Project co founder and famed civil rights
and criminal defense attorney Barry Shk. Wrongful Conviction Junk Science
is a production of Lava for Good Podcasts and association
with Signal Company Number One. Thanks to our exactecutive producer
Jason Flamm and the team at Signal Company Number one
executive producer Kevin Wartis and senior producers Kerkornaber and Brit Spangler.
(33:09):
Our music was composed by Jay Ralph. You can follow
me on Instagram at Dubin dot Josh. Follow the Wrongful
Conviction podcast on Facebook and on Instagram at Wrongful Conviction
and on Twitter at wrong Conviction
It's five pm, and you call your spouse. You say,
don't wait up, I'm gonna be working late. I love you,
I'll see when I get home. You've been married for
seven years and you have a good relationship. You bick
her 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. It's
(00:24):
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 hall
(00:47):
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.
(01:14):
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,
(01:34):
dreamlike state. You manage to call nine one one. You plead,
you scream, you cry for them to come right away.
You reach down and touch your spouse. You feel for
a pulse. You put your ear to their chest. There's
no movement, there's no sign of life. You lean down
(01:57):
and try to give them CPR. You don't even know
how long you've been doing it. You lose sense of time,
but eventually you hear sirens. They're blaring, and all of
a sudden, there's chaos. The room is filled with people.
A paramedic puts a hand on your shoulder and says,
let us start working here, and pulls you into another room.
(02:19):
Then they tell you what you already know but don't
want to admit. Your spouse is dead. You're not crying,
You're heaving, trying to catch your breath. The police try
to console you. 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
(02:43):
in no state to drive, you're put into the back
of a police car. When you get to the police station,
a detective comes in with a sweatshirt and sweatpants, and
he says, take off 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
(03:03):
in and she asks you how you got blood on
the backside of your pants. Where were you standing when
you got blood on the cuff of your shirt, on
your sock. You don't know the answer to these questions.
It was all 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
(03:28):
it's becoming quite obvious that they suspect you did this.
You were eventually charged with the first degree murder of
your spouse. At your trial, the prosecution calls to the
stand a blood stained pattern analyst. That expert gets on
the stand and tells the jury that the story of
(03:49):
the murder of your spouse is soaked into the blood
of the clothes you were wearing when the night the
crime was committed. The blood stain pattern analyst walks into
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
(04:12):
victim's head, which created the splatter pattern you see here
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
(04:32):
recovered that object. They just tell the jury that you
must have gotten rid of it right before you stage
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
(04:54):
with which you inflicted the blows, and where your spouse
was standing when they were beaten to death. The stains
proved that you did not perform CPR. You did not
check for a pulse, because if you had, there would
not be this spray pattern. That's projected onto your shirt.
These stains all indicate that you committed this murder. You
(05:15):
glance over at the jury. Most are taking rigorous notes.
One is so taken, so wrapped that he stopped taking
notes altogether and just sits 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.
(05:42):
I'm Josh dubin civil rights and criminal defense attorney and
Innocent Ambassadors in the Innocence Project in New York. Today
on wrongful conviction junk science, We're going to explore bloodstained
pattern evidence. Like other forms of junk science used in
criminal trials, bloodstained pattern evidence falsely claims that it can
(06:03):
identify the culprit of violent crimes. But blood 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,
(06:25):
New York. When I think of Herbert MacDonnell, 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.
(06:47):
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 over there
day after day, half horrified, half intrigued by what she sees.
One day, she sees Herb aiming a gun at a dog.
(07:07):
He pulls the trigger, then walks over to examine the
blood sprayed onto the wall. Another day, Herb isn't alone.
There are some young women in lab coats in the basement.
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
(07:31):
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 blood slowly oozes onto
the basement floor. Herbert McDonnell actually used these techniques in
his basement, giving birth to the forensic science a bloodstained
(07:51):
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 as a forensic professor
at a local community college. For Herb, every crime scene,
and particularly the blood stains left behind, told a story.
(08:15):
Not only did he believe the blood stains 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 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,
(08:38):
Herbs started an unaccredited school right out of his basement.
He named it the Blood Stain Evidence Institute. It took
twelve years for Herb to get his moment 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 years brother,
(09:00):
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 to New York. Herb 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
(09:22):
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 of 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
(09:46):
criminal justice system in our country.
Speaker 2 (09:53):
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
(10:13):
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 1 (10:34):
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
(10:54):
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 2 (11:14):
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
(11:38):
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 1 (11:56):
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 2 (12:10):
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 bloodstained pattern analysis, and
(12:33):
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 mock
(12:54):
crime scenes and he used blood to on sort of
like butcher paper to show us what bloodstains would look
like at a crime scene. And then our job, and
this is part of our final grade, was to come
in and just by looking at that no other clues,
(13:16):
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 1 (13:37):
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.
Speaker 2 (13:47):
Students do I know of several students who have shot
cadavers and controlled situations to look at the way that
blood moves. Now, think about the way that blood operates
within a cadaver versus a living person with a beating heart.
I mean, there's so many things about that that don't
(14:09):
make sense.
Speaker 1 (14:10):
Right, So with a dead body or cadaver, it should
be common sense. There's no more blood flown through the veins, right,
the person isn't moving anymore, and there's a different viscosity
or thickness to the blood when someone is dead. So
all of this makes a difference in first how the
blood travels once the body is hit with an object,
(14:31):
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 2 (14:45):
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 marb room,
like a very controlled atmosphere like that, you might be
able to make some determinations about some things possibly, But
(15:10):
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 1 (15:30):
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
(15:51):
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 2 (16:09):
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,
(16:32):
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
(16:55):
atomized blood that sprays when someone shot. And then an
analyst for the state will be brought in and we'll
give this very convoluted logic 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
(17:18):
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 1 (17:45):
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.
We'll link to the article in our show notes. It
is a fascinating, fascinating piece that Pam wrote for Pro
Publica and again it's entitled blood will Tell the Joe
(18:08):
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.
He spent thirty three years in prison for the murder
(18:31):
of his wife, and you know your story. Pam 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 2 (18:44):
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 education conference,
his wife was shot and killed in their home and
(19:06):
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
(19:26):
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
(19:49):
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
(20:09):
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,
(20:29):
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
(20:51):
place the night of the crime, but that expert testimony
from that cop was enough to get a murder conviction
life sentence.
Speaker 1 (21:01):
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
(21:23):
people that are accused of crimes they didn't commit. Was
Joe ever exonerated?
Speaker 2 (21:29):
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,
(21:51):
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
(22:13):
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
(22:35):
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 1 (22:46):
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
(23:08):
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
you know, confined to this narrow space, and all of
the horrors of prison that you hear about that happen
(23:29):
to these people, and then on top of it being
in there for something you didn't do. I mean, there
have been studies about how it inflicts even more psychological
damage on people to be in there for something that
you didn't do, and the lost years just can't be replaced.
No amount of money is going to make that pain
go away, no matter how much compensation they get. And
(23:53):
yet these wrongful convictions just continue being propelled by junk science.
It's just astounding.
Speaker 2 (24:01):
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 the anything.
This is a discipline that when you look at sort
(24:24):
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
(24:46):
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 1 (25:15):
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.
(25:38):
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 bite marks and of course bloodstains right PAM.
Speaker 2 (26:00):
The National Academy of Science is actually made up of
scientists who publish peer reviewed work and who were involved
in research with real scientific integrity, and they set the
bar very, very high, and they have long been extremely
(26:21):
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.
Speaker 1 (26:43):
With, 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,
the capable analysts must possess an understanding of applied mathematics, physics,
fluid transfer, wound pathology, and that this blood spatter analysis
(27:08):
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 pay
(27:29):
any attention to it.
Speaker 2 (27:31):
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 blood stand pattern analysis, like
(27:54):
so many of the disciplines that are identified in that
report as being problematic, we're so so deeply entrenched in
crime labs and across the country. You had experts in
crime labs that were under local police departments where this
was just this was the way it was done, So
(28:14):
there was no 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,
(28:35):
and that can take a circumstantial case and move it
from gray to black and white.
Speaker 1 (28:41):
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
(29:04):
and I are actually co authors on a textbook together.
I'll give a nice plug ear for the law of
jurys in case anybody is aching to read a legal textbook.
But tell us about what Judge Nancy Gertner did.
Speaker 2 (29:17):
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.
(29:41):
And if we're 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,
(30:02):
but it really was. And she was an outlier in
this and got a lot of pushback from prosecutors about that.
Speaker 1 (30:12):
I mean, it's really shocking that she got pushback not
just from prosecutors, but also from her colleagues or fellow judges.
Speaker 2 (30:22):
She is a hero, and I think that her insistence
on something as basic as fairness being controversial is really disturbing.
Speaker 1 (30:37):
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
(30:59):
analysis stop 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
(31:20):
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
(31:41):
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,
(32:01):
like a warm blanket. It can never be torn from
them unless the prosecution overcomes the highest burden in our
justice system, which is 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
(32:22):
innocence in this country is not a given. It is
an ideal that we talk about, but we don't live
up to. But by uncovering the lack of credibility of
junk signs and our courts, we hope to get one
step closer. Next week, we'll explore the junk Signs of
(32:44):
Arson with Innocence Project co founder and famed civil rights
and criminal defense attorney Barry Shk. Wrongful Conviction Junk Science
is a production of Lava for Good Podcasts and association
with Signal Company Number One. Thanks to our exactecutive producer
Jason Flamm and the team at Signal Company Number one
executive producer Kevin Wartis and senior producers Kerkornaber and Brit Spangler.
(33:09):
Our music was composed by Jay Ralph. You can follow
me on Instagram at Dubin dot 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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