Hey, folks, Kate Judson here, I'm a lawyer and the executive director of the Center for Integrity and Forensic Sciences. We're back with another episode of Junk Science, a series we first released in twenty twenty, but these stories are just as relevant as ever. The episode you're about to listen to is about bloodstain evidence, the inexact art of figuring out where the source of blood came from and
how it got there. The key phrase here is art, because it is far from being a science, and that is something that is true of a lot of the so called forensic sciences. Bloodstain patter analysis, in particular, is so open to interpretation and guesswork that oftentimes the same evidence can be analyzed a dozen times by a dozen people and they'll reach a dozen different conclusions. And that
simply is not reliable science. In twenty twenty two, Jane Derodic of San Diego, California, was exonerated of the two two thousand and one murder of her husband. The original analyst of the evidence, a man named Charles Merritt, claimed to be an expert in this type of forensics, but his abilities and his findings were called into question in twenty twenty one, an expert who reviewed Merritt's work remarked on his lack of basic blood stain knowledge, which was
apparent in his report and testimony. In fact, some of the bloodstains that Merit attributed to the murder victim were not blood at all, while other stains were not human blood, having been caused long before by the family's dogs. This case and the one you'll hear in the episode are just two examples of bad forensic analysis and should lead us all to question the reliability of this forensic art.
It's five PM and you call your spouse. You say, don't wait up, I'm going to be working late. I love you, I'll see you when I get home. You've been married for seven years and you have a good relationship. You bicker from time to time. It's not perfect, but what marriage is. You get home around eleven o'clock at night and the front door is open, which is strange. It's always locked when you come home late from work. You walk in, toss your keys on the kitchen table,
and call out for your spouse. No response. You walk through the living room towards your bedroom and you notice that the lamp has been knocked over. The power cord has been pulled from its socket. You walk down the hall and shove your bedroom door open, and you're greeted by a scene that is so horrific your mind can barely comprehend what your eyes are taking in. There's blood everywhere. It's on the carpet, the bed, on the wall, above the dresser. Your spouse is on the floor, mouth open.
There's a large pool of blood coming from their head. It's dark and thick, and as you move closer you see that it's still pooling. The blood is still flowing from somewhere. At this point, your body has gone into some state of shock. You're drifting between consciousness and some paralyzing dreamlike state. You manage to call nine one one. You plead, you scream, You cry for them to come right away. You reach down and touch your spouse. You feel for a pulse. You put your ear to their chest.
There's no movement, there's no sign of life. You lean down and try to give them CPR. You don't even know how long you've been doing it. You lose sense of time, but eventually you hear sirens there blaring, and all of a sudden, chaos the room is filled with people. A paramedic puts a hand on your shoulder and says, let us start working here, and pulls you into another room. Then they tell you what you already know but don't want to admit. Your spouse is dead. You're not crying,
You're heaving, trying to catch your breath. The police try to console you. They tell you they're sorry, but that you have to try to calm down. They need to figure out what happened and they need your help. You're in no state to drive. You're put into the back of a police car. When you get to the police station, a detective comes in with a sweatshirt and sweatpants, and he says, take off your clothes and put these on. You're somewhat relieved to get out of your clothes, which
are soaked with your spouse's blood. A different detective comes in and she asks you how you got blood on the back side of your pants. Where were you standing when you got blood on the cuff of your shirt on your sock. You don't know the answer to these questions. It was all such a blur. Over the next several weeks, you're asked to come down to the police station. Over and over again. The detective's questions become more aggressive, and it's becoming quite obvious that they suspect you did this.
You were eventually charged with the first degree murder of your spouse. At your trial, the prosecution calls to the stand a blood stain pattern analyst. That expert gets on the stand and tells the jury that the story of the murder of your spouse is soaked into the blood of the clothes you were wearing when the night the crime was committed. The blood stain pattern analyst walks the jury through each and every stain on your clothing, droplet
by droplet, you see that stain. The defendant swung the weapon at a ninety degree angle twice right into the victim's head, which created the splatter pattern you see here on his shirt high velocity projected spatter. They tell the jury no other explanation for it. They say that the stain on your sock was dropped from your bloody hand as you held the murder weapon. They never tell the jury what the murder weapon actually was, and they never
recovered that object. They just tell the jury that you must have gotten rid of it right before you stage the nine to one one call. The expert says that they've examined the blood drops, the stains, the puddles, the pools, and they're able to reconstruct precisely how you committed this murder, the angle at which you swung the weapon, the force with which you inflicted the blows, and where your spouse was standing when they were beaten to death. The stains
proved that you did not perform CPR. You did not check for a pulse, because if you had, there would not be this bray pattern that's projected onto your shirt. These stains all indicate that you committed this murder. You glance over at the jury. Most are taking rigorous notes. One is so taken so wrapped that he stopped taking notes altogether and just sits staring at the expert, covering
his mouth with his hand. You look over at your defense attorney and think, how in the world is this happening. I'm Josh Dubin civil rights and criminal defense attorney and Innocent Ambassadors to the Innocence Project in New York today on wrongful conviction junk science. We're going to explore blood stained pattern evidence. Like other forms of junk science used in criminal trials. Blood stained pattern evidence falsely claims that
it can identify the culprit of violent crimes. But blood stained pattern evidence has no grounding in any verifiable science. So how did this kind of junk science become admissible? It turns out that blood stained pattern analysis was born in the basement of one man's home in a small town named Corning, New York. When I think of Herbert MacDonell, I wonder what his neighbors must have thought of him.
I imagine one of his curious neighbors, startled by the sound she's hearing from next door, tiptoeing over to his red house. I imagine the neighbor crawling on her hands and knees to peer into Herb's basement through a small window that peeks out from underground. She finds herself going over there day after day, half horrified, half intrigued by what she sees. One day, she sees Herb aiming a gun at a dog, pulls the trigger, then walks over
to examine the blood sprayed onto the wall. Another day, Herb isn't alone. There are some young women in lab coats in the basement. They dip their hair into a thick red substance. Then they swing their heads around to make Jackson Pollock esque splatters onto the paper covered walls. The next week, the neighbor sees what appear to be dead bodies and she's got to be mistaken, But then she sees HERB take aim shoot the lifeless body, and
blood slowly oozes onto the basement floor. Herbert McDonnell actually used these techniques in his basement, giving birth to the forensic science a bloodstained pattern analysis. Herb was a chemist who worked for Corning Glassworks, which makes Corning wear casserole dishes, but his passion was crime scenes, and so he doubled as a forensic professor at a local community college. For Herb, every crime scene, and particularly the blood stains left behind,
told a story. Not only did he believe the bloodstains provide clues, he took it much further than that. He believed that he could re engineer the choreography of the crime just from analyzing the blood stains. Herb styled himself as a sort of modern day Sherlock Holmes. He even posed for the cover of one of his books and the trademark deer stalker hat and a pipe In nineteen seventy three, Herb started an unaccredited school right out of
his basement. He named it the Blood Stain Evidence Institute. It took twelve years for Herb to get his moment to shine. In January nineteen eighty five, four people were found dead in their home. Twenty one year old Reginald Lewis was accused of shooting his older brother, his younger thirteen year old brother, and his parents. Reginald's father was discovered on fire in a hallway, having been shot and strangled before being set ablaze. The Sherlock Holmes of Corney
to New York. Her MacDonald testified as an expert witness in this case. He claimed that dozens of tiny specks of blood on Reginald's clothing placed him at the scene of the crime. Reginald Lewis was convicted and sentenced to four ninety nine year sentences. Herb's recognition continued to grow. In nineteen ninety five, even testified for the defense at
the oj Simpson trial. But bloodstained pattern analysis was never proven to be a reliable scientific method, and yet it continued to be admitted in case after case after case, spreading its tentacles into the criminal justice system in our country.
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 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.
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 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.
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 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.
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.
I went to Yukon, Oklahoma, where the police department was offering a week long class. I took it with about twenty law enforcement officers, and I was stunned at what I saw. We were sort of rubber stamped through just the most basic basic concepts of blood stain pattern analysis, and we would have to identify stains according to this taxonomy that the discipline has these particular kinds of spatters and drips and spurts and swipes and smears. They have
all these different names for things. The final day of the course where our instructor set up these sort of mock crime scenes, and he used blood to on sort of like butcher paper to show us what blood stains
would look like at a crime scene. And then our and this is part of our final grade, was to come in and just by looking at that, no other clues, 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.
Aside from what you witness in the class. Tell me, like, what is one thing that stood out to you as something that seemed off about you know, what he did or what he had students do.
I know of several students who have shot cadavers and controlled situations to look at the way that blood moves. Now, think about the way that blood operates within a cadaver versus a living person with a beating heart. I mean, there's so many things about that that don't make sense.
Right, So with a dead body or cadaver, it should be common sense. There's no more blood flown through the veins, right, the person isn't moving anymore, and there's a different viscosity
or thickness to the blood once someone is dead. So all of this makes a difference in first how the blood travels once the body is hit with an object, 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.
That's exactly right, that's exactly right. The surface that blood falls onto makes a tremendous difference in what you can tell.
If you had a white all linoleum or marble room, like a very controlled atmosphere like that, you might be able to make some determinations about some things possibly, But 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.
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 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.
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,
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 atomized blood that sprays when someone's shot. And then an analyst for the state will be brought in and will give this very convoluted life as to why that happened
during the commission of the crime. And then there becomes this divergence of opinion of did the victim hold the 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.
All right, Pam, you wrote a two part story entitled Blood Will Tell. And by the way, to our listeners, if you haven't read about this case, you absolutely should. Will link to the article in our show notes. It is a fascinating, fascinating piece that Pam wrote for Pro Publica. And again it's entitled Blood will Tell the Joe Brian Story and it tells the story of various ways bloodstained pattern analysis can go off the rails. And I want to say that it has a happy ending, but it's
a tragedy really right. I mean, you have a man that was loved by everybody. He's a high school principal, he spent thirty three years in prison for the murder of his wife. And you know your story, pain was like the driving force, if not the critical driving force behind getting him out of prison, So please tell us about the Joe Brian case.
Joe Brian was a beloved high school principal in a little Texas town called Clifton, Texas. And in nineteen eighty five, when he was by all accounts out of town one hundred and twenty miles away in Austin at an educational conference, his wife was shot and killed in their home and 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
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 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 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 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 place the night of the crime, but that expert testimony from that cop was enough to get a murder conviction in a life sentence.
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 people that are accused of crimes they didn't commit. Was Joe ever exonerated?
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, 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 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 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.
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 it from me, having worked with scores of exoneries, not only my clients, but some of the innocence projects other clients,
they're just never the same. The psychological damage of being confined to this narrow space and all of the horrors of prison that you hear about that happen to these people, 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 yet these wrongful convictions just continue being propelled by junk science. It's just astounding, exactly.
I was flabbergasted when working on this story and trying to find, well, where where is the research that backs up all these claims that people are making on the stand. Where's the academic work that's been done. Where is anything. This is a discipline that when you look at sort 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 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.
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.
We're going to continue to go back to this study that was done in two thousand and nine by the National Academy of Sciences, and they issued a report after examining various disciplines of forensic science that are used in courtrooms across the country, everything from fingerprints to footwear impressions, to bitemarks and of course bloodstains.
Right PAM, the National Academy of Science is actually made up of scientists who publish pure reviewed were and who were involved in research with real scientific integrity, and they set the bar very, very high, and they have long been extremely critical of bloodstained pattern analysis and really cautioning courts to not consider this a science with the sort of accuracy as for example, some DNA testing or toxicology, where you really you have numbers and certainty to work with.
So outside of DNA, the NAS study was really critical of all of these other disciplines of forensic science. And what it's said about blood spatter analysis is this quote A capable analysts must possess an understanding of applied mathematics, physics, fluid transfer, wound pathology, and that this blood spatter a now is more subjective than substantive. So this report should have been a bombshell in the forensic science community and
it really should have changed our court system. I mean, why do you think it is that you have some of the leading scientists in the country so critically rebuking all of these forensic disciplines, but courts don't seem to pay any attention to it.
Judges are looking backward at precedent, and science is supposed to be looking forward each year. We understand through scientific inquiry things like forensic science and its accuracy better and better and better. But the courts never looked at that.
They just kept looking back. Bloodstain pattern analysis, like so many of the disciplines that are identified in that report as being problematic, we're so deeply entrenched in crime labs and across the country you had experts in labs that were under local police departments where this was just this was the way it was done. So there was no effort on the part of law enforcement to change that.
And for prosecutors there was no incentive because a good bloodstained pattern analyst on the stand who's a phenomenal witness, really connects with the jury and makes things sound very simple. That's gold that can make your case, and that can take a circumstantial case and move it from gray to black and white.
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 and I are actually co authors on a textbook together. I'll give a nice plug year for the law of jurys in case anybody is aching to read a legal textbook.
But tell us about what Judge Nancy Gerdner did.
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. And if we are going to continue to see some of the disciplines that the NAS report has identified as unreliable in our courtrooms, I want to hold admissibility hearings before we ever get to trial to decide whether we
should allow this in. And that shouldn't have been a revolutionary idea, but it really was. And she was an outlier in this and got a lot of pushback from prosecutors about that.
I mean, it's really shocking that she got pushedback, not just from prosecutors, but also from her colleagues or fellow judges.
She's a hero, and I think that her insistence on something as basic as fairness being controversial is really disturbing.
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 analysis stops being admitted into courts. In our show notes, we're attaching a link to the National Academy of Sciences
report that we spoke about in this episode. Send it to your local criminal court judges. Give them something to think twice about before admitting this evidence in their courtroom. Something else you can always do is make sure that 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 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, like a warm blanket. It can never be torn from them unless the prosecution overcomes the highest burden in our justice system, which has proved beyond a reasonable doubt. You give the benefit of the doubt to the accused. Unfortunately, as I've seen time and time again, the presumption of 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 Arson with Innocence Project co founder and famed civil rights and criminal defense attorney Barry Sheck. Wrongful Conviction Junk Science is a production of Lava for Good Podcasts and association
with Signal Company Number One. Thanks to our executive producer Jason Flahm and the team at Signal Company Number One executive producer Kevin Wardis and senior producers Karen Cornaber and Brit Spangler. Our music was composed by Jay Ralph. You can follow me on Instagram at dubin Josh. Follow the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction