Joe Bryan: Texas: Back in action: On-going; (He is the subject of Pamela Colloff's outstanding series 'Blood Will Tell.' From Pro Publica "From his basement in upstate New York, Herbert MacDonell launched modern bloodstain-pattern analysis, persuading judge after judge of its reliability. Then he trained hundreds of others. But what if they’re getting it wrong? How a Dubious Forensic Science Spread Like a Virus." (Great read. HL)..."Over time, a parade of spatter experts, often trained by MacDonell — or by someone he trained — dazzled juries across the country with their promise of scientific surety, often tying bows of certainty on circumstantial evidence. Judges in Minnesota, Idaho and Michigan would rely on the Texas court’s decision when deciding to admit blood spatter in their own states in the 1990s. Those decisions, in turn, would be relied upon by other states. Blood-spatter testimony spread through courtrooms across the country like a superbug. Its path — the steady case-by-case, decision-by-decision acceptance of a new forensic science by the justice system — is one that’s rarely, if ever, been retraced. But it reveals the startling vulnerability of judges, and juries, to forensics techniques, both before, and after, they’ve been debunked."

STORY: "How a Dubious Forensic Science Spread Like a Virus." by Leora Smith, published by ProPublica on December 13, 2018.

SUB-HEADING: From his basement in upstate New York, Herbert MacDonell launched modern bloodstain-pattern analysis, persuading judge after judge of its reliability. Then he trained hundreds of others. But what if they’re getting it wrong?  (Leora Smith was a senior research fellow at ProPublica. She graduated from Harvard Law School in May 2017.)

BACKGROUND: (From Pamela Colloff: 'Blood Will tell.") Hi everyone —For six months now, we've explored the case of Joe Bryan.  But there remains a larger question: How did bloodstain-pattern analysis enter the criminal justice system, anyway? Back when I started looking into this corner of forensic science, ProPublica was kind enough to pair me up with a researcher named Leora Smith. Leora had just graduated from Harvard Law School and had joined ProPublica as a senior research fellow, focusing on legal research. I asked Leora if she could make a list of Texas cases in which bloodstain-pattern analysis had played a role. She quickly broadened her search to other states and soon saw a pattern emerge. Many cases relied solely on earlier cases to establish that bloodstain-pattern analysis was reliable. There was hardly any discussion of the actual science underlying it.  With the encouragement of our editor, Tracy Weber, we decided that it would be interesting to trace bloodstain-pattern analysis all the way back to its beginnings in the American criminal justice system. One case led back to another, which led back to another, which led back even further to another. And one name kept coming up in Leora's research: a forensic expert named Herbert MacDonell. MacDonell had popularized the idea that blood spatter at a crime scene could be interpreted, and that a skilled analyst could use those clues to reconstruct the crimes themselves. Leora dug into MacDonell's colorful career and visited him in his home in upstate New York. There, she saw MacDonell's quirky basement laboratory, where he had developed many of the concepts that are still taught to police officers in bloodstain-pattern analysis courses today — and which help secure convictions, even though this type of analysis is often as much guesswork as science. (MacDonell continues to believe the technique is reliable, and courts generally still permit it.) Bryan's case, like so many that have hinged on bloodstain-pattern analysis, can be traced back to MacDonell. The bloodstain-pattern analyst in Joe's case, whose conclusions we now know are wrong, was trained in the forensic discipline by a former police detective named Tom Bevel, and Bevel had been trained by MacDonell. By the time Leora finished her research, it was clear that there was another story to tell: about how an unproven forensic science spread through our criminal justice system like a virus. Leora wrote that story herself, and it's a fascinating and deeply troubling tale about how our criminal justice system works. I hope you'll give it a look."

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GIST: (Two passages from a lengthy article. Great read. HL);  “MacDonell’s studies are based on general principles of physics, chemistry, biology, and mathematics, and his methods use tools as widely recognized as the microscope; his techniques are neither untested nor unreliable,” Judge James F. Warren wrote for the court. To support his decision, Warren cited four other states — Tennessee, California, Illinois and Maine — that had already affirmed bloodstain-pattern analysis’ use at trial. Two of those states had based their decisions on court testimony by MacDonell. Warren’s hearty defense of MacDonell and his methods percolated through Texas’ courts, reassuring hundreds of the state’s judges that bloodstain-pattern analysis was reliable enough to be admitted at trial. They would allow it, again and again. Over time, a parade of spatter experts, often trained by MacDonell — or by someone he trained — dazzled juries across the country with their promise of scientific surety, often tying bows of certainty on circumstantial evidence. Judges in Minnesota, Idaho and Michigan would rely on the Texas court’s decision when deciding to admit blood spatter in their own states in the 1990s. Those decisions, in turn, would be relied upon by other states. Blood-spatter testimony spread through courtrooms across the country like a superbug.   Its path — the steady case-by-case, decision-by-decision acceptance of a new forensic science by the justice system — is one that’s rarely, if ever, been retraced. But it reveals the startling vulnerability of judges, and juries, to forensics techniques, both before, and after, they’ve been debunked. Although the reliability of blood-spatter analysis was never proven or quantified, its steady admission by courts rarely wavered, even as the technique, along with other forensic sciences, began facing increasing scrutiny.In 2009, a watershed report commissioned by the National Academy of Sciences cast doubt on the whole discipline, finding that “the uncertainties associated with bloodstain pattern analysis are enormous,” and that experts’ opinions were generally “more subjective than scientific.” Still, judges continued allowing spatter experts to testify. Subsequent research, funded by the Department of Justice, raised questions about experts’ methods and conclusions. But little changed. All along, attorneys like Bankston continued challenging the admission of bloodstain-pattern analysts. But they came to learn that a forensic discipline, once unleashed in the system, cannot easily be recalled...........................Today, MacDonell’s demeanor is much the same as it was in his earliest videos. He is confident, sometimes curt. Little gets under his skin as much as people who refer to his field as “blood splatter” instead of “blood spatter,” a phrase he said he coined (“Splatter is splash. Spatter is not splash,” he said). He is keenly aware of his impact. “Overall,” MacDonell said, “I am very satisfied with my life’s accomplishments and have few regrets.” When asked to pinpoint the proudest moment of his long career, MacDonell’s answer comes easily: Susie Mowbray’s exoneration. Mowbray was imprisoned for nine years over the killing of her husband. At her retrial, MacDonell used blood spatters to reconstruct the crime, testifying her husband’s death was a suicide and discrediting the expert who testified for the prosecution at her first trial. The expert was MacDonell’s former student. MacDonell has testified against his own students numerous times. Asked recently whether he ever considered changing his course structure, or certification process, after seeing students give faulty testimony, MacDonell answered in the negative. “You can’t control someone else’s thinking,” he said. “The only thing you can do is go in and testify to the contrary.” Leave it to the lawyers to cross examine, to the trial judges to exclude, to the appellate judges to overturn. According to MacDonell, this June marked 50 years since he first testified about blood-spatter analysis. To honor the occasion, he planned to pour himself a glass of single-malt scotch and toast Shaff, the client whose case unleashed modern American bloodstain-pattern analysis on the world. Sitting in a home maintained as a shrine to his accomplishments, MacDonell could rest assured, his legacy would be protected in the courts for years to come."

The story can be read at:

https://features.propublica.org/blood-spatter-analysis/herbert-macdonell-forensic-evidence-judges-and-courts/ 

PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com.  Harold Levy: Publisher; The Charles Smith Blog;