#161 Wrongful Conviction: Junk Science - Gunshot Residue Evidence

Alan's bike has a flat. He wants us to come help him fix it, and you're thinking again, his bike is always breaking down. It's always got some kind of problem. At first, you were a little jealous of Alan's red raz but that guy keeps getting flats. You pat the seat on your brown moped. It's pretty ugly, but at least it's faithful. You ask your dad if it's cool if you go over to Alan's grandmother's to get the bike.

He looks at his watch and says, well, it's pretty late, but hurry up, go get it and you can bring it back here to work on it. When you and Shanty get to Alan's, shanty heads inside to help Alan with the bike. Another flat. You say, when Alan comes out of his house. Don't even start, Alan says, tossing you a can of soda. You hang out for a bit, and then the three of you start walking Alan's bike

towards your house. You're teasing Alan about how often is moped as problems when a green sedan coming from the opposite direction stops right next to you. The man driving the car leans out the window and says, hey, you guys have any dope nah? Alan says, we don't mess with that ship. Yell at the guy, hey, man, get out of here, and the green car speeds off. You walk a bit further down the block, and then you

hear shots ring out. Oh shit. All three of you start frantically running down the street and don't look back. You don't stop running until you get back to your house. You look around, making sure no one's shooting at you, and then you catch your breath. You chante and Alan talk about the gunshots for a few minutes. It's not that out of the ordinary in this neighborhood, but still it's always scary as ship when it happens. The adrenaline finally wears off and you start working on Alan's bike.

There's a nail in the tread of the tire. You pull it out, plug the hole, and let the glue set. After pumping up the tire and giving it a few good pushes, Alan grabs his bike and begins to walk it back down the street towards his grandmother's house. Once Alan gets to his street, he sees the green car that stopped to ask for drugs, but now it's front end is just demolished. It's smashed into the side of a house a few doors down from his grandmother's. There's smoking, chaos,

and police just everywhere. Over the next few days, you expect to see Alan riding his red raz after all, the tire is fixed, but you don't see him around the neighborhood. A week passes, you knock on his door and his grandmother tells you that the man in the green car had been shot. The cops asked Alan to come to the police station to help with the investigation. She expected Alan to be home that same night, but he's being held in jail. She's afraid and confused, and

suddenly so are you. A few weeks later, you're in your backyard throwing a tennis ball against the side of your house. Worrying about Alan, wondering if he's okay. Out of the corner of your eye, you see some people walking towards you, and it's four police officers. At first you freeze, overcome with fear, and then you take off. He took Alan for no reason. What's going to stop them from grabbing you and doing the same thing. But you're fourteen years old. They're bigger than you, faster, and

there's more of them. They catch up, grab you and put you in handcuffs. Your first thought is I'm gonna disappear, just like Alan. You're putting an interrogation room. You tell the officers what happened that night, the night the guy in the green car got shot, how you and Allen told him to go away. But they don't want to hear the truth. They don't want to hear anything you're telling them. One of the detectives scoots his seat closer to you. We know Alan did this. His hands tested

positive for gunpowder residue. You know what that is, Son, We know he was involved. You're gonna tell us what Alan did. You're gonna tell us that Alan had the gun, that you saw that gun, and that what he did is he went up to that car that stopped and he talked to the guy in the car, and the next thing you knew was you heard gunshots and you saw Alan running. And I'm gonna tell you something you don't tell us exactly that here's what's going to happen.

You're going to get charged with murder. You got that. You know how much power these guys have. They already have Alan, who knows what they're gonna do to you. You're petrified. The walls feel like they're closing in on you. You figure, I should just tell these guys what they want to hear. Then my parents can help sort this out later. So you do what they say. You make up a story, one that sounds like what they want to hear, and they record it. You'll tell them anything

just to get out of that room. Before letting you go, the cops tell you you're gonna have to testify it Alan's trial. We'll see you. Then. A few weeks pass, and you're relieved when school starts again. Maybe this will distract you from thinking about Alan, from the feeling that it's your fault. He's still sitting in jail. The day of Alan's trial, you and Schante decide you're not going to show up. You're not going to testify against your friend,

lie again and dig a deeper hole for Alan. But the cops show up at your school and they bring you both to court. At Alan's trial, an officer takes the stand and says that he personally collected samples from Alan's hands. He swabbed the front and back of them with Q tips and then tested those Q tips to see if there was gunpowder residue present. The officer testifies the defendant's right hand tested positive for antimony and bari um,

two chemical elements that are present in gunpowder residue. There is no doubt in my mind that the defendants shot the gun that was used in this homicide. This is insane. You think you know and didn't have a gun. He was with you when those shots rang out. How can they just make this stuff up. When you're on the witness stand, you glance over at the jury. They're all sitting forward, staring right at you, through you. It seems. The prosecutors start asking all of these questions. Your answers

are all over the place. They barely make sense. You were told to tell lies, but It's hard to keep it all straight because none of what you're testifying to actually happened. But at seventeen years old, Alan is convicted of murder and sentenced to fifteen years to life in prison. The gunshot residue that the police and prosecutor's claim was found on Alan's hand is the only physical evidence linking

him to the crime. The story you just heard is based on the true events of Raymond Carl Alan Warren's trial. He was convicted of murder based on faulty gunshot residue evidence. The police also coursed as two friends, Shanta and Antonio, into giving false testimony saying that Alan committed the crime. Alan is now in his forties and he is still in prison. He's been there for over twenty five years, serving a sentence of fifteen to life for a murder

he did not commit. I'm Josh Dubin, civil rights and criminal defense attorney and innocence ambassador to the Innocence Project in New York. Today, on Wrongful Conviction Junk Science, we examine gunshot residue evidence. As listeners to the show, you've probably heard how coerce confessions are used to convict innocent people on another podcast in our feed, wrongful conviction and

false Confessions. Now, the coerse confessions of Shanta and Antonio were certainly factors in convicting Alan at his trial, but today our focus is on faulty forensic science and gunshot residue certainly has its issues that began almost a century ago when three dozen former Brooklyn Navy yard workers found themselves irreparably poisoned by the asbestos they used in the

construction of the battleships that won World War Two. Perry Whites and Arthur Luxembourg literally putting everything on the line to successfully represent them. Since then, they've championed the rights of over fifty thousand regular Americans injured through the negligence

and malfeasance of mainly large corporations. Their ability to level the playing field against seemingly insurmountable odds has led them to litigate against opponents as diverse as Big Pharma all the way to those responsible for rendering the water of Flint, Michigan undrinkable. Whites and Luxembourg ticket personally when there's a miscarriage of justice anywhere and there for they feel a

sense of responsibility to support Bronthol conviction podcasts. You can learn more about them by visiting whites lux dot com. That's w e I t z l u x dot com. In three, a group of American police officers from several departments gathered in a lab at the police headquarters in Mexico City. They were there to observe Teodoro Gonzalez demonstrate his new technique for testing gunpowder residue. The test became known by many names, the dermal nitrate tests, the glove tests,

but my favorite might be the paraffin gauntlet test. The officers watched his Gonzalez poured white hot liquid paraffin wax over the fingers, hands, and risks of his lab assistant. A glimmer of discomfort flashed across the assistant's eyes as the hot wax code at his skin. Next, Gonzalez delicately wrapped the layer of cotton around the assistance fingers and hands. Layer after layer of wax, then cotton were added until

gloves began to form while the paraffin cooled. Gonzalez explained that after a suspect fires a gun, the gunpowder residue becomes embedded deep in the pores of the skin. Even weeks after a gun is fired. The hot melted paraffin will open up the pores mixed with the oils and the skin and caused the pores to discharge the gunpowder residue trapped within them. Part of this experiment included Gonzalez's assistant firing a gun and then washing his hands prior

to them being wrapped. The American officers noted the advantage of this technique, suspects couldn't simply wash their hands and avoid detection. Gonzalez delicately peeled the gloves from the hand ends of his assistant and then took them over to the lab table and gently laid them down. He measured a small beaker of a chemical solution that contains sulfuric acid dropped by drop, he coated the interior of the

gloves with the mixture. Minutes later, dark blue specs the size of pinpoints began to form, and Gonzalez explained that these blue dots indicated the presence of dermal nitrates from gunpowder residue. The police officers hurdled around the paraffin gloves to see for themselves. After that, it took only a few years for the paraffin test to become widely used in police departments across the United States. Within three years of gonzalez demonstration, it was used as forensic evidence in

the murder trial of James L. Westwood in Pennsylvania. At his trial, the state called expert witnesses who testified the gunpowder residue was present on Westwood's hands, indicating that it was he who shot and killed his wife. But Westwood's defense attorney called his own expert witness, a chemist who had conducted his own study and found that thirteen different substances could also cause the blue dots to appear on

the paraffin gloves. He cited things like ordinary soot, certain brands of toothpaste, tobacco cigars, cigarette ashes, and different types of matches, but none of that evidence mattered for the jury. Westwood was convicted of the first degree murder of his wife and sentenced to life in prison. By seven A wider study concluded that rust, colored fingernail polish, and residue from evaporated urine, soap, and tap water would all test positive.

Contact with any of these objects would create blue dots to appear on the gloves and a paraffin test. The paraffin test is no longer being used today, and the signs behind testing gunshot residue has changed. By the time Allen was arrested in it's sixteen years old, officers used a new version of the test. It's called the atomic absorption test, but that test has many of the same reliability problems as the paraffin glove. None of the evidence that was used to convict Alan has withstood the test

of time. The test used to indicate that he had gunshot residue on his hands is no longer considered reliable. So joining us today is Joanna Sanchez and she's from the Wrongful Conviction Project at the Office of the Ohio Public Defender and we're super excited to have her today. She's currently representing Alan, whose story we talked about at

the beginning of this episode. Now, al A's full name is Raymond Carl Allan Warren, and Joanna might refer to him as either Alan or Raymond, but don't get confused, okay, because Raymond and Allan are the same person. So Joanna, it's great to have you here today, and I'd like you to start by telling us a little bit about Alan. What was he like as a sixteen year old living in Dayton, Ohio. Alan was, by all accounts, a normal teenager. He had a few brothers and he's very close with them.

He was close with his mother, very close to his grandmother, you know, had lots of friends in the neighborhood, would spend time with them. Alan loves working on cars, so that was something he's spent a lot of time doing, both fixing cars and painting them, playing basketball. And now you know, I've known him now for six years. He's a very engaging, caring person, very talkative, has strong relationships

with his family and friends. Still, Okay, so I want to get into the details of the crime a little bit. So police officers arrive on Allen Street the night when he had been fixing his moped and this green car had crashed into the side of a house and the driver is shot. So what what makes them even decide to go after Alan as a suspect in the first place.

So I think it's a matter of circumstance. The boys, they worked on their scooters for a period of time after they heard the gunshots, and then in order to go home, Alan had to essentially go through the crime scene because it happened on the street he was living on with his grandma's. So Alan that night told the police about this encounter with the victim, and the police asked him if he was willing to come down to

police station to give a statement. So he voluntarily went to the police station and also voluntarily submitted to a gunshot residue test. And the result of that gunshot residue test was that Alan tested negative on his left hand even though he's left handed, and the palm of his right hand, though, tested positive for two elements that are known to be in gunshot resdue And I honestly think once that gunshot residue test came back, they just became las or focused on Alan. So tell us a little

bit about that test. What exactly did gunshot residue testing entail at the time when Alan went down to that police station. So, gunshot residue testing, the idea behind it is that one of the person shoots a firearm, particles will be admitted that will land on their clothing or their hands or their face, and that those particles can then be tested. You can't see them, but they can be tested and tell the police something about whether the

person being tested might have shot a firearm. All gunshot residue testing is not a simple yes or no test. This is gunshot residue or it's not. What it's really testing for is the elements that are known to make up gunshot residue, so specific sickly, they test for three elements in most circumstances, and that's lead, barium, and antimony.

In Raymond's case, they actually only tested for two of those elements, and what they used was an atomic absorption test, which is now largely out of use, and that's because it has a high risk of producing false positives. So the reason the a test is unreliable is because it tests for elements that are also present in items that are completely unrelated to guns. So as a result, a person who's never touched or been near a gun put

falsely test positive. So Joanna, give us an example. What are some things that Alan might have touched that would make him test positive for gunshot residue. Brake linings are one example of an item that has the same elements as gunshot residue. And on the night of the shooting, as we know, Raymond, who frequently was working on cars, had contact with brake linings while he fixed his motorized scooter.

So the A A test as used in Raymond's case is problematic because we can't know if those two elements came from gunshot residue or if they came from brake linings or some other substance that has those same elements as gunshot residue. So you mentioned that the A A test, the atomic absorption test that was used on Allen, is not really considered anymore to be dependable, but they're still using gunshot residue as a form of evidence, just with

new tests. Has signs progressed in any significant way since the A test, gunshot residue testing generally has progressed somewhat.

The A test is no longer really in favor because of its limitations, and there was a switch over in the mid two thousand's to a test called S C M E D S, and that test was better and that it not only would tell an analyst whether those elements were present, but also could tell them the shape and size of the elements and sort of how they functioned together, whether they were fused, whether they were the shape of a sphere, all things that would be important

for distinguishing between gunshot residue and let's say another substance. And so in order for an analyst to have any confidence that something is actually gunshot residue, they'd need to do that sort of morphological analysis and also compare all of the elements in that gunshot residue example with all of the elements in other substances so that they can

actually eliminate other items. Okay, So that sounds like it does have the potential to be more accurate tests because you're able to look at the residue under a microscope and tell that the molecules actually come from a gun and can't be from anywhere else. But is this a perfect fix? Even if that's done properly, there's still a second issue with gunshot residue testing, and that's the reason why a scientific commune has really pulled back from this testing,

and that issue is contamination. So gunshot residue is incredibly transferable. It's very easy to pick it up by touching a surface that's contaminated with gunshot residue. So if I were to shoot a gun and shake your hand, you could very likely test positive for gunshot residue, and with that that creates just too big of a risk for environmental contamination.

And what it means is that, you know, people who touch the back of police cars, handcuffs, police officers, police stations, there's a good chance they could pick up gunshot residue from those surfaces, even though they themselves never touched a gun. And we know that happened in Raymond's case because he was transported to the police station in the back of a police car and then held in an interrogation room

for several hours before he was actually tested. If on the call before that police officer had taken somebody who shot a gun down to the police station, that person could have left gunshot residue there and then Alan gets in the car and picks it up. And there have been studies across the country that show that kind of thing occurs. So there is a study in Colorado where they tested I think forty police cars or excuse me, twenty six police cars, and they found gunshot residue particles

and fourteen of them. So this kind of transference is very common unfortunately, So in you know, in hearing this, I gotta tell you this is like, it's startling, it's scary, and you initially start to think, well, how many people might have been wrongfully convicted when the evidence in their case was just gunshot residue on their hands. Um, I mean you have to admit it's pretty compelling evidence for

people that don't know otherwise. And I mean when I mean for people that don't know otherwise, I'm talking about jurors. So with that in mind, how big of a role did faulty gunshot residue evidence playing Alan's case? The gunshot residue evidence here was critical in Allen's trial. The examiner when he testified, what he said was that this positive test means one of three things. Either Allan shot a gun, Alan was a victim of a shooting, or Alan handled ammunition.

But we know he wasn't a victim, and both of the other options still implicate him, whether he's shooting a gun or handling ammunition. What the examiner left out is the fourth possibility that this is contamination and the fifth possibility, which is that it's not gunshot residue at all. It could just be barrium and antimony on Alan's hands as a result of him having contact with brake linings earlier that night, and that is the entire scope of the

physical evidence in this trial. So it as a result of this gets gunshot residue evidence, Allan gets sentenced to fifteen years to life. He's only seventeen years old. I mean, what options did he have to seek recurs How would one go about proving that gunshot residue evidence is false. It's incredibly difficult for anybody who's incarcerated to collect the evidence or knowledge necessary to file a new trial motion

or raise a claim that they were wrongfully convicted. So part of that is he's locked inside, so he can't go out and conduct any sort of investigation. He lacks the funds, so he doesn't have the ability to hire an attorney or an investigator or an expert witness to go get this evidence. Alan was challenged and that he couldn't even get the records in his case, So if he wanted to write a motion for a few years, he did not even have a copy of his transcript

that would have helped him to do that. So there are so many barriers. He's a smart guy, but he's not an attorney. I mean, that's why we say people should have attorneys to litigate these complex issues is incredibly difficult, and it's all the more so for somebody who's a teenager and they're incarcerated. They don't have access to these things. And so he fought on his own for years and

years to try to challenge his conviction. That kind of changes, an evolution with gunshot residue was happening, but he didn't He did not really know that. He didn't have access to forensic science articles or expert witnesses, so he wasn't even aware that that was necessarily an issue in his case. And eventually in Shanta, Hunt gave a statement and said, I lied because I was scared. Alan was with us when we heard the shots, so he could not have

shot the victim. And in two thousand eight, Antonio gave a very similar statement saying, again, I was scared and this is a lie, and I did not come award for all these years because I was scared of perjury charges. Now the Innocence Project has become involved in Allen's case, and you and your co council are fighting to get Alan justice. But as our listeners know by now, as I'm sure you and I can agree, this problem is

so much bigger than Allen's case. What needs to happen, in your opinion, to make sure things like gunshot residue evidence stop being used to convict innocent people so that this doesn't happen again and again and again. I think police officers and lab examiners should be careful about when they do gunshot residue testing and only do it in the very optimal circumstances, if at all. I think there are some police officers who feel that it's just a piece of the puzzle and it's a helpful tool in

the investigation. But I think the risk with that is that it leads to tunnel vision. You know, wants to have that piece of evidence to become fixated on a suspect, and our our courts are judges, need to look at it critically as well. The court is the gatekeeper of expert testimony and forensic evidence that comes in, and what we're seeing is that some courts are limiting what can be said about gunshot rest of evidence, but they're still

allowing it in. And I think at some point we hit a breaking point where the risk of prejudice for this evidence outweighs the benefit of it because it is so unreliable in so many different aspects. That are we risking swaying the jury with evidence that really isn't reliable enough and shouldn't be presented at all. All Right, So that certainly addresses what people involved in the justice system can do. But what can everyday people do. We have a lot of our listeners asking us, you know, what

can I do to help? So please tell them things they can do to make sure that this kind of junk science stops being used and it gets out of our criminal justice system once and for all. I think the biggest thing is people sharing this information and sharing podcasts like this, sharing when somebody's exonerated based on forensic evidence that we now know has been discredited. Because the more people that know about this, I think the more

the system will improve. I think the impact of sharing this podcast and sharing his story is that more people hear about it, and then they take that knowledge with them when they vote, and they take that knowledge with them when they interact with public officials and ask them, how do you approach wrong for convictions? How do you approach forensic science? Are their laws in place that allow

for these convictions to be challenged appropriately. And I think having the knowledge that's gained from listening to a podcast like this equips people with the sort of the talking points and the ability to ask those questions of public officials. So tell us a little bit about where Allen is

now and what options are left for him. At this point, Alan had litigated emotion asking for a new trial, and we stepped into that litigation on his behalf in two thousand and fourteen, and it's kind of been up and down through the courts over several years. But earlier this year the Supreme Court of Ohio decided not to take his case. So where we're at is we continue to fight for him, and we believe strongly in his innocence and that he was wrongfully convicted, and so we're moving forward.

We're hoping to find new evidence or hoping that a new avenue of relief opens up that allows Alan to challenge his conviction and hopefully one day go home. Look, Joanna, I um, my heart sort of you know, aches for you and for Alan really because I have been there before. I know that when cases you know, don't work out, you know, on our initial first try or first fifteen tries and go the way we need them to go, because our clients are innocent, and we know they're innocent.

It can be so frustrating. What's your reaction when you have setbacks like this. I know that I've I've wept on my wife's shoulder before, I know that I have punched walls. I've had the spectrum of emotions. But you know, tell me a little bit about what it's like for you when you know you're faced with setbacks like this, and you know what it's like with Alan still sitting

in prison. I think the important thing we do is we kind of keep moving forward and keep thinking about our clients, keep thinking about Alan and what he's going through. And it's so important that we stay in the fight and continue to be a voice for those people. And I hope one day it's not this way. But I know for me, I look at all the two thousand plus exonerations that we know about, and I see that

those are never easy, right. They come after set back, and people have to try multiple different times, multiple different ways, And so I hope that at some point in time it doesn't have to be that way. But at least for now, I know that it's absolutely worth it to keep fighting for this person and to keep hoping that one day something we do works and somebody pays attention and that he gets the justice he's do. You know, I tell people all the time that these wrongful convictions

are super difficult. You have to fight tall odds, You have to keep on fighting forward in the face of constant rejection from appellate courts. And if you're not willing to deal with setbacks, if you can't pick yourself up and dust yourself off and keep charging up that steep slope, you're really in the wrong business. And it really does take a team effort. So the more you can share these stories, the better off we're all going to be, because there's power in numbers, and there's power in a

collective message. So I hope you will do just that. Please share our podcast and take action, whether it be writing your local judges as I often implore you all to do, or ensuring that when you vote, you were voting for those judges and the jurisdiction which you live that actually have the qualifications and the temperament to be open minded and thorough such that they won't blindly accept that legal precedent equates to reliability. Sometimes bad science remains

in our system of justice because it goes unchallenged. It's up to all of us to shine a bright light on these junk sciences and force a reckoning. Kay Next week, we'll explore the junk science of tool mark identification with science journalist Tim Ricorreth. Wrongful Conviction Jung Science is a production of Lava for Good Podcasts and association with Signal

Company Number One. Thanks to our executive producer Jason Flom and the team, it's Signal Company number One executive producer Kevin Wardis and senior producers Karen corn Haber and Brit Spangler. Our music was composed by j Ralph. You can follow me on Instagram at dubin dot. Josh followed the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction