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[00:00:00]

It's 5:00 p.m. 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 11 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.

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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.

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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 pulling. The blood is still flowing from somewhere.

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At this point, your body has gone into some state of shock. You're drifting between consciousness and some paralyzing, dreamlike state. You managed 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.

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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. 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.

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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, somewhat relieved to get out of your clothes, which are soaked with your spouse's blood.

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A different detective comes 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 detectives questions become more aggressive and it's becoming quite obvious that they suspect you did this.

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You were eventually charged with the first degree murder of your spouse. At your trial, the prosecution calls to the stand a bloodstain 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 on the night the crime was committed.

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The bloodstain pattern, analysts walk the jury through each and every stain on your clothing, droplet by droplet, you see that stain? The defendant swung the weapon at a 90 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.

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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 staged the nine 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.

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The stains prove that you did not perform CPR. You did not check for a pulse, because if you had the would not be this spray 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 rapt that he stopped taking notes altogether and just sits staring at the expert covering his mouth with his hand.

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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 innocence ambassador to the Innocence Project in New York today on wrongful conviction, junk science. We're going to explore bloodstain pattern evidence. Like other forms of junk science used in criminal trials, bloodstain pattern evidence falsely claims that it can identify the culprit of violent crimes. But bloodstain pattern evidence has no grounding any verifiable science.

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So how did this kind of junk science become admissible? It turns out that bloodstain pattern analysis was born in the basement of one man's home in a small town named Corning, New York. If you'd like to help support us as we continue to tell these stories of triumph over tragedy, unequal justice and actual innocence each week, you can do it now with the purchase of a I mean, it's really nice. Trust me, you can get a brand new wrongful conviction podcast, T-shirt, coffee mug or reusable water bottle.

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Go to wrongful conviction podcast dotcom. That's wrongful conviction podcast dotcom and click on store.

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When I think of Herbert McDonnell, 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, the 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 her aiming a gun at a dog.

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He pulls the trigger, then walks over to examine the blood sprayed onto the wall another day.

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Herb isn't alone. There are some young women in lab coats in the basement.

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They dip their hair into a thick red substance. Then they swing their heads around to make Jackson Pollock ask splatters onto the paper cover walls.

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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 McDonnel actually used these techniques in his basement, giving birth to the forensic science of bloodstain pattern analysis. Herb was a chemist who worked for Corning Glassworks, which makes Corning work casserole dishes, but his passion was crime scenes and so he doubled as a forensic professor at a local community college.

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For Herb, every crime scene, and particularly the bloodstains left behind told a story, not only did he believe the bloodstains provide clues, he took a much further than that.

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He believed that he could reengineer the choreography of the crime just from analyzing the bloodstains herb style themselves as a sort of modern day Sherlock Holmes. He even posed for the cover of one of his books and the trademark deerstalker hat and a pipe. In 1973, Herb started an unaccredited school right out of his basement, he named it the Blood Stained Evidence Institute. It took 12 years for her to get his moment to shine in January 1985, four people were found dead in their home.

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Twenty one year old Reginald Lewis was accused of shooting his older brother, his younger 13 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 Corning, 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 was convicted and sentenced to four 99 nine year sentences.

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Herb's recognition continued to grow. In 1995, he even testified for the defense of the O.J. Simpson trial. But bloodstain 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 a 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.

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Joining us today is Pamela Koloff.

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And Pam is a senior reporter at ProPublica and a staff writer for New York magazine.

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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 research in various disciplines of forensic science, blood spatter analysis has easily the craziest story of them all.

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And you researched this intensely. I want you to tell us more about her mcdonnel, the so-called grandfather of blood spatter analysis.

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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 40 hour class.

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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 mathematics into quote unquote, experts.

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So he turns these people with no training in physics or mathematics into experts.

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You don't have any training in physics or mathematics. And you took the class and became an expert, right?

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I went to Yukon, Oklahoma, where the police department was offering a weeklong class. I took it with about 20 law enforcement officers.

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And I was stunned at at what I saw. We were sort of rubber stamped through just the most basic basic concepts of bloodstain pattern analysis. And we would have to identify stains, according to this taxonomy, that the discipline has these particular kinds of spatters in 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, um, sort of like butcher paper to show us what blood stains would look like at a crime scene.

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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, no other context, please use that to say what had happened at the crime scene and 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.

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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?

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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?

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So with a dead body or cadaver, it should be common sense. There's no more blood flowing 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.

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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.

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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.

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That's exactly right. That's exactly right. The surface that blood falls onto makes a tremendous difference in what you can tell.

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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 the services, that because they're so diffused when they land on that material.

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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 10 or 15 tries to get the stain to look similar to how it looks at the crime scene or on the clothes of the accused. I mean, I saw one video where they finally get it. Right, right.

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They get it to look like it did at the crime scene after try after try after try and they start cheering and high fives.

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So if it's so hard to tell how a bloodstain got where it did, then what kinds of consequences will that have for someone that's been accused of a violent crime?

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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 that 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 they're struggling to breathe.

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That pattern of blood looks very similar to the kind of atomized blood that sprays when someone shot. And then an analyst for the state will be brought in and will 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 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, 100 percent what the answer to that is.

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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 ProPublica. And again, it's entitled Blood Will Tell the Joe Brown Story, and it tells the story of various ways bloodstain pattern analysis can go off the rails. And I want to say that it has a happy ending, but it's a tragedy, really.

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Right. I mean, you have a man that was loved by everybody. He's a high school principal. He spent 33 years in prison for the murder of his wife.

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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 Bryant case.

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Joe Brian was a beloved high school principal in a little Texas town called Clifton, Texas. And in 1985, 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.

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And there was no blood found in the car or anything like that. And who the blood belonged to, whether it was even human blood. All of this was was unknown, but the state took this and they brought in a bloodstain pattern analyst, a local cop who had 40 hours of training, and he threw 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.

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And his theory of the case was that Joe had held the flashlight in one hand, a gun, and the other he'd shot his wife, Maggie. The the blood had gotten on this flashlight. 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.

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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 and a life sentence.

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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 and was able to tell you were 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?

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So Joe was not exonerated. He was paroled. And the the state of his case, he had an evidentiary hearing in twenty nineteen with 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.

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And so he's been paroled and is still fighting to prove his innocence. Joe turns 80 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 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.

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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.

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I mean, you know, you read the stories about them getting out, but take it from me, having worked with scores of exonerations, not only my clients, but some of the Innocence Project's other clients, they're just never the same.

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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 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.

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And yet these wrongful convictions just continue being propelled by junk science. It's just astounding. Exactly, I was I was flabbergasted when working on the 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 is the academic work that's been done? Where is the anything?

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This is a discipline that when 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 it many, many, many things in a crime scene to help us figure out what happened.

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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.

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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 bloodstain pattern analysis. And this will become somewhat of a drumbeat in our series. We're going to continue to go back to this study that was done in 2009 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, the bite marks and, of course, blood stains.

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Right, Pam?

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The National Academy of Sciences actually made up of scientists who published 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 critical of bloodstain 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 have you have numbers and certainty to work with.

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So outside of DNA, the NASA study was really critical of all of these other disciplines of forensic science. And what it 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 analysis is more subjective than substantive.

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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.

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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, were 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 there was no effort on the part of law enforcement to change that. And for prosecutors, there was no incentive because a good bloodstain pattern analyst on the stand is a phenomenal witness, really connects with the jury and makes things sound very simple.

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That's gold that can make your case and that can take a circumstantial case and move it from gray to black and white.

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So like you said, many judges rule on a case based on precedent. And the precedent provides essentially a license for judges to accept blood stains, 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 here for the law of juries in case anybody is aching to read a legal textbook.

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But tell us about what Judge Nancy Gertner did.

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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're going to continue to see some of the disciplines that the NASS 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 end.

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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 from prosecutors about that.

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I mean, it's really shocking. That she got pushback not just from prosecutors, but also from, you know, her colleagues or fellow judges. She's a hero.

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And I think that her insistence on something as basic as fairness being controversial is really disturbing.

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Life doesn't always imitate art, especially when it comes to blood stains.

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It's important to remember that shows like Dexter and CSI are just entertainment. It isn't real life. And many of the techniques that we think are science are far from it.

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You might be listening to this, wondering what you can do to make sure that junk science like bloodstain pattern analysis stops being admitted to courts. In our show, notes were 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.

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You do it and do it as a conscientious juror when I pick a jury in a criminal case.

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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?

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More than half the hands in the room always go up. Remember these principles that 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 is proved beyond a reasonable doubt.

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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 science and our courts, we hope to get one step closer.

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Next week, we'll explore the junk science of arson with the Innocence Project co-founder and famed civil rights and criminal defense attorney Barry Scheck. Wrongful conviction, junk science is a production of lava for good podcast's in association with signal company no one expects, thanks to our executive producer Jason Flom and the team at Signal Company No. One, executive producer, Kevin Mortise and senior producers Capricorn Habour and Brett Spangler. Our music was composed by J. Ralph.

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You can follow me on Instagram at Duban.

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Josh followed the wrongful conviction podcast on Facebook and on Instagram at wrongful conviction and on Twitter at Grong conviction. For NPR ex.