It's Saturday night you're in your front yard working on your moped. Your dad is sitting on the picnic bench chatting with you as you install a new starter. You and your friend Alan saved up all year so you could each buy a bike. Neither one of them is in great condition, but now that school is out, you have all summer to fix them up. After a little while, your friend Shauntay arrives at your house and he says, hey, allensbach bike has a flight, 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 Allen's red rags, 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 Allen'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 enchanté get to Allans, Shauntay heads inside to help Allen with the bike another flat, you say when Allen comes out of his house, don't even start. Allen says, tossing you a can of soda, you hang out for a bit and then the three of you start walking Allen's bike toward your house.

You're teasing Allen about how often his moped has 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 now? Allen says, we don't mess with that shit. 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. Stephen, I want to take a moment to say, as the covid-19 pandemic continues, we hope you're all staying healthy and safe. We're all in this together. You don't stop running until you get back to your house, you look around making sure no one shooting at you and then you catch your breath. You, Shauntay and Allen 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 shit. When it happens, the adrenaline finally wears off and you start working on Allen's bike. There's a nail on the head 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, Allen grabs his bike and begins to walk it back down the street toward his grandmother's house.

Once Alan gets to his street, he sees the green car that stopped to ask for drugs, but now its front end is just demolished. It smashed into the side of a house a few doors down from his grandmother's. There's smoke and chaos and police just everywhere. Over the next few days, you expect to see Allen riding his red rass after all the tires 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 Allen to come to the police station to help with the investigation. She expected Allen 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 Allen, wondering if he's OK. Out of the corner of your eye, you see some people walking toward you and it's four police officers.

At first you freeze, overcome with fear and then you take off. They took Alan for no reason. What's going to stop them from grabbing you and doing the same thing? But you're 14 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 going to disappear, just like Alan. You're put in an interrogation room. You tell the officers what happened that night, the night the guy in the green car got shot, her uniform told them 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 going to tell us what Alan did. You're going to 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 going to 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 going to 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 going to have to testify at Allen'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 Allen from the feeling that it's your fault he's still sitting in jail.

The day Vallens trial, you and Shauntay 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 Allen. 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 cutups to see if there was gunpowder residue present.

The officer testifies the defendant's right hand tested positive for antimony and barium, two chemical elements that are present in gunpowder residue. There is no doubt in my mind that the defendant shot the gun that was used in this homicide. This is insane. You think, you know, Alan didn't have a gun. He was with you when those shots rang out. How could 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 you 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 17 years old, Allen is convicted of murder and sentenced to 15 years to life in prison. The gunshot residue that the police and prosecutors claim was found on Allen'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 caused his two friends, Shauntay and Antônio, into giving false testimony, saying that Alan committed the crime. Alan is now in his 40s and he is still in prison. He's been there for over 25 years serving a sentence of 15 to life for a murder he did not commit. I'm Josh Dubin, civil rights and criminal defense attorney in Innocent's 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 coerced confessions are used to convict innocent people. On another podcast in our field, wrongful conviction, false confessions. Now, the coerced confessions of Shauntay and Antônio were certainly factors in convicting Allen at his trial. But today our focus is on faulty forensic science and gunshot residue. Certainly has 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, Harry White and Arthur Luxenberg literally put everything on the line to successfully represent them.

Since then, they've championed the rights of over 50000 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. Weitzel, Luxembourg. Take it personally when there's a miscarriage of justice anywhere, and therefore they feel a sense of responsibility to support wrongful conviction podcasts.

You can learn more about them by visiting Waitz Luks Dotcom. That's w e l you X.com. In 1933, 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 Teodora Gonzalez, demonstrate his new technique for testing gunpowder residue. The test became known by many names, the dermal nitrate test, the glove test.

But my favorite might be the paraffin gauntlet test. The officers watched as Gonzalez poor white hot liquid paraffin wax over the fingers, hands and wrists of his lab assistant.

A glimmer of discomfort flashed across the assistants eyes as the hot wax coated his skin. Next, Gonzalez delicately wrapped the layer of cotton around the cisterns, fingers and hands, layer after layer of wax.

Then cotton were added until Glove's 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 was fired, the hot, melted paraffin will open up the pores mixed with the oils in the skin and cause the poorest 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 hands 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 contained sulfuric acid. Drop by drop, he coated the interior of the gloves with the mixture. Minutes later, dark blue specks the size of pinpoints began to form. And Gonzalez explained that these blue dots indicated the presence of thermal nitrates from gunpowder residue. All the police officers huddled 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's 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 that 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 13 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 1967, a wider study concluded that rust colored fingernail polish and residues 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 in the science behind testing, gunshot residue has changed.

By the time Allen was arrested in 1994, at 16 years old, officers used the 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 Allen 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 Allen, whose story we talked about at the beginning of this episode.

Now, Allen's full name is Raymond Carl Allen. Warren and Joanna might refer to him as either Allen or Raymond, but don't get confused, OK? Because Raymond and Allen 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 Allen. What was he like as a 16 year old living in Dayton, Ohio?

Allen was, by all accounts, a normal teenager. He had a few brothers and he's very close to them. He was close with his mother, very close to his grandmother, had lots of friends in the neighborhood, would spend time with them. Allen loves working on cars. So that was something he spent a lot of time doing, both fixing cars and painting them, playing basketball. And now 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.

OK, so I want to get into the details of the crime a little bit. So police officers arrive on Elm Street the night when he had been fixing his moped in 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 Allen is a suspect in the first place.

So I think it's a matter of circumstance for boys. They worked on their scooters for a period of time after they heard the gunshots. And then in order to go home, Allen had to essentially go through the crime scene because it happened on the street he was living on with his grandma. So Allen that night told the police about this encounter with the victim. And the police asked him if he was willing to come down to the 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 Allen 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 residue. And I honestly think once that gunshot residue test came back, they just became laser focused on Allen. So tell us a little bit about that test.

What exactly did gunshot residue testing entail at the time when Allen went down to that police station?

So gunshot residue testing. The idea behind it is that one of person shoots a firearm, particles will be emitted that will land on their clothing or their hands or 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 specifically, they test for three elements in most circumstances, and that's led 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 that 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 has never touched or been near a gun could falsely test positive.

So, Juwanna, 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 AA test is used in Raymond's case is problematic because we can't know if those two elements came from gunshot residue or what they came from brake linings or some other substance that has those same elements as gunshot residue.

So you mentioned that the AA 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 science progressed in any significant way since they test gunshot residue?

Testing generally has progressed somewhat that a test is no longer really in favor because of its limitations. And there was a switch over in the mid 20s to a test called SFM Edes and that test was better in 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 function 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 sample with all of the elements in other substances so that they can actually eliminate other items.

OK, so that sounds like it does have the potential to be a more accurate test 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 the scientific community 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 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 at 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, 40 police cars or excuse me, twenty six police cars, and they found gunshot residue particles and 14 of them.

So this kind of transference is very common, unfortunately.

So, you know, in hearing this, I got to 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? 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 point Allen'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 Allen Shotgun Allen was a victim of a shooting or Allen handled ammunition. Well, 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 barium 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 as a result of this bogus gunshot residue evidence, Alan gets sentenced to 15 years to life. He's only 17 years old. I mean, what options did he have to seek recourse? 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 in 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 and 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 and evolution with gunshot residue was happening. But he did 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 nineteen ninety nine, Chante 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 twenty eight, Antonio gave a very similar statement saying, again, I was scared and this is a lie. And I did not come forward 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 counsel 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 Alan'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. Once you have that piece of evidence, you become fixated on a suspect. And our courts, our 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 residue 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 and 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, 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 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 is 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 wrongful convictions? How do you approach forensic science? Are there 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 Alan is now and what options are left for him at this point. Allen had litigated a motion asking for a new trial, and we stepped into that litigation on his behalf in 2014 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 Allen to challenge his conviction and hopefully one day go home.

Look, Joanna, I my heart sort of 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 15 tries and go the way we need them to go because our clients are innocent and we know they're innocent and can be so frustrating. What's your reaction when you have setbacks like this?

I know that 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 20 plus exonerations that we know about, and I see that those are never easy, right?

They come after setback 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 in that 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.

Next week, we'll explore the junk science of tool mark identification with science journalist Tim Requiring. 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 and signal company No. One, executive producer, Kevin Mortise and senior producers Capricorn Habour and Brett Spangler.

Our music was composed by Ralph.

You can follow me on Instagram at Doob and Josh follow the wrongful conviction podcast on Facebook and on Instagram at wrongful conviction and on Twitter at wrong conviction.

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