#163 Wrongful Conviction: Junk Science - Tool Mark Analysis

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 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 hitting his leg by

shrapnel that exploded off a pipe bomb. It detonated thirty yards away from where the man was walking. Listening 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 town 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 kid's joke gone wrong. But then a few weeks 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 seat and into Maria's body. It wedges into her heart. Her parents frantically pull her out of the car, but she dies right there. Three months after that, husband and wife Henry and Suzanne, finished general 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 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 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 announce 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 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 it's a good

idea to get an attorney. He asks, will you help me? You take all of this in and think, do I really want to be involved offending someone who might have done something so horrific? But then again, what if he's actually innocent? Everyone deserves an opportunity to 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 nothing all they found, or some everyday tools suppliers, wire strippers. The tools that are taken from Jimmy's house are brought down to the police station and tested in the forensics lab, and the results come back. Police arrest Jimmy and he gets charged with murder. Of all the people to open

this on, you do understand why they're targeting Jimmy. He's somewhat of a loner, 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 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 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 tool mark evidence, data, statistics, studies, experiments. You find nothing. How are you supposed to defend against this? If someone has a standard set of needle nose players, aren't they likely to match up with the impressions made by other needle nose players. At trial, the jury has shown a video by the prosecution. A tool mark expert walks the jurors through it. He tells them each tool

has you nique 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 out his request to see that video. They view it over and over and over again, and then the bailiff informs you that the jury has done deliberating.

Jimmy is brought back into the courtroom from a holding cell. You see the trepidation in his face as he takes his seat, and you can actually hear him take a big nervous swallow. The jury files into the courtroom, and a vein on your temple begins to pulsatean twitch. Jimmy is convicted of multiple counts of murder. He is sentenced to life in prison. The story you just heard is based on the true events of the bombings and Grand Junction,

Colorado and the subsequent trial of Jimmy Genrich. Jimmy has been imprisoned 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 and criminal defense attorney, an innocence ambassador to the Innocence Project in New York. Today, on wrongful Conviction junk Science, we examine

tool mark analysis. It turns out the crime that popularized tool mark analysis was also committed on Valentine's Day over ninety years 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 therefore they feel a sense of responsibility to support bronqul 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. 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 one rival gang that Capone couldn't quite shake, the Irish Mafia led by George bugs Moran. They were manufacturing and selling alcohol, stepping on Capone's business. Now Capone wasn't gonna

have it. He got ahold of some police uniforms, and on February fourteenth, Valentine's Day, four of Capone's men, dressed 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 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 rated the home of one of Compone's top guys, who went by

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. They're 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 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 cleaned, he could identify the gun that shot them. According to Goddard, the bullets of the confiscated gun indeed match the bullets found at the scene of the crime, but the police

couldn't do much with that evidence. They could improve 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 that Calvin Goddard invented is now

known as tool mark and firearm analysis. Forensic analysts had 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 that's used on. But no one had closely examined the false assumptions behind to a mark identification. What was being presented to juries was this notion that a tool will leave a unique mark on a surface. But it turns out that 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 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 that of Jimmy gin rich In. 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

for years there, their sentenced to death. I mean, essentially for this to be totally unproven science, I just absolutely could not believe it. Today we're talking to Tim Riquarth. Tim is a freelance journalist who often writes about the intersection between science and criminal justice. He's also a lecturer in science and writing at n y U. 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, 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? Except for undergraduate I studied literature and writing,

and it wasn't until after I had graduated UM. 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 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 in undergrad and eventually rolled in a masters. And you know, ten years later I found myself and probably with a PhD in neuroscience. The sort of breadth of questions and 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 as a scientist. And so I sort of had the realization later on in my PhD that research, heavy, investigative type of pieces where really good fit for somebody who's trained in answering big questions. So before writing this story about tool mark evidence, what did you know about any forensic signs? 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 cs I. We profiled the specific case and it involved tool mark evidence, and we looked at all of the research in the forensic journals. I mean, we went through and 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. Like we know how to do strong empirical scientific studies to see if something works or not. 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 is getting the drug. You decide ahead of time what analysis you're gonna 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 forensic sciences that just it doesn't exist. The practitioners doing them are often not blinded, the sample sizes are very low, there's conflicts of interest, so it it's not following some of the most basic tenants that you know would be reflexive to your typical scientists in the university, I mean most people, especially lay people on a jury.

Here 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 school, and it's kind of

startling to know that that's not actually the case. So what you said really underscores what we've been saying throughout the show and how big of a problem it can be when jurors confuse what's really junk science presented in courtrooms with traditional science that's used to develop medicines, for example. And I'm not sure that our listeners are aware of this, but I want you to think about this for a

for a moment. In cases where people were later proven to be innocent based on DNA, um, of those wrongful convictions are based on some misapplication of forensic science. Imagine if this were the f d A right. Imagine if a drug didn't work fifty at a 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. 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 went on Jimmy in the first place. Grand Junction is a sort of mining town of about thirty thousand people at the time, and there was 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 no suspect, And so the Bureau of Alcohol, Tobacco and Firearms was called in and they helped the local police force to 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 in a boarding house near downtown, in a twelve by twelve room.

I think he was a bus boy in a restaurant, but was on and off of jobs. His mother would bring him, you know, meals in a in a cooler, and he was a little bit um. You know, he had some problems with 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 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 boarding room and found some electronic parts, some 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, and they didn't find any other physical evidence, never found an Anarchist cookbook. They painted a picture of him as the kind of person who would do this. But you have to have physical evidence that links people to crimes in you know, 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. So how do they claim to identify Jimmy's tools as the tools that were used on these bombs? 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 there test marks, to the marks on the actual evidence, and if those line up in the examiner's you know, subjective judgment, they declared a 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. Their three dollar pair of pliers that you know, we're 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 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 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, a lot in a

in a factory. So there's all of these things that you need to quantify, And even if you did do that, you'd have to say, you know, there's a one in a hundred chance that this is a different tool. There's a one in two d chance, right, something like that. 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 possible ways to test this, right, I mean, if a lab wants to test how good someone is that this kind of tool matching, they would send a tool mark examiner some tools along with some wires or pieces of metal tool marks on them, and the examiners would then be asked to match the correct tool to the marks, 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 aren't. Their job seems like a simple thing to do, right, right, The real test is how well do you examiners actually do in reality? Um, And you would say, you know, tool mark examiners make a mistake one out of ten times, one out of a hundred times, one out of a thousand times. That's what you really want to know is how often do they make a mistake? So why don't they actually do these tests?

If that comes back and it's really, really, it's not so good, right, you make an error of the time or at 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, 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 convictions. And I think that's a very cartoonish way to think

about it. There are certainly cases of misconduct, and there are cases of uh, you know, bad motives, but in reality, these are people who really believed that that what they were doing is true. And you actually talked to the too 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. I guess the thing that struck me the most as a scientist

is that there was an extreme lack of humility. There's an extreme lack of acknowledging that these could not be as infallible as as they thought. They have a very strong interest improving that these techniques are very powerful. There's a very strong sense of justice. There's a very strong sense of righteousness. The posture of the forensic scientists and and prosecutors they spoke to is it was a bit defensive, 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. 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

that Jimmy's tools match the more on those bombs. 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 in the early nineties, so there 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 markings from the evidence with their little test cuts. You know, it looks really convincing. You pick a little part where they do line up and you're like, ah, 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. So in addition to tool mark examiners, you also talked to some of the prosecutors who used this type of analysis in their cases. What were their thoughts about using this kind of evidence. The same cognitive sentence that would

exist for forensic examiners also exists 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 um, and that you shouldn't use them moving forward. It's a really hard it's

a really hard pill to swallow. 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 like, they have not validated this in a scientifically rigorous way, and the prosecutors retort to 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 read sitting. 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 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. 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, um a juror, for instance, who has to make a decision about someone's guilt or innocence when they are presented with forensic evidence. If I had any advice to adjure, you know, it's it's to realize that there have been major reports by scientific bodies that

have found 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 bar them from being used. If you have a justice system where the ends justifies the means, right, uh, it's 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 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. And this is even true with regard to Jimmy's case. Uh, the Innocence Project has picked up as appeal and are trying to set a new kind of precedent. 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 for Jimmy, is you know that's still up in the air at this point. 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 conscientist juror, et cetera, 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, 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 person and escape than that one innocent suffer. This profound expression of humanity, of the recognition that the sacrificing of one innocent person 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 virtually every Western society. William Blackstone somehow realized that because accusing, convicting, 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 convict innocent men and women, and we mentioned their names like Sante Tribble and Keith Allan Harwood and Jimmy gin Rich and many others. But I think they're suffering gets lost in the shoffle. Wrongful convictions often get discussed in

pop culture. They certainly have a light shined on them, but we 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, constant fear of losing their life, the unthinkable living conditions, 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 exonrere named Walter Swift in Detroit, and I tried to capture are in it some of that suffering, and I really 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 to 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 the product of the inhumane confinement of an innocent man to a cage for more than a quarter 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 think about it. And I still don't get it, and

I don't think I ever really will. They're 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 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 asked that if you ever find yourself picked to serve on a jury, whether you try to get out of it 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, uncle's friends, 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, that we are getting it right, that indeed it is better that ten guilty people go free than have one

innocent person suffer. We know the listeners of this show have already heard a lot about course 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 psycho bology of course confessions to show how and why officers methods are so effective and pulling a false confession out of an innocent person. We'll explore the junk science of course confessions 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 in 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 Kara Cornaber and Brit Spangler. Our music was composed by j Ralph. You can follow me on Instagram at duban Dot.

Josh followed the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction