PUBLISHER'S NOTE: I have been paying considerable attention to the constantly unravelling Joe Bryan case which has been highlighted by Pamela Colloff in her ProPublica/New York Times series. It's worthwhile looking at another notorious Texas blood splatter case - which ultimately ended in the exoneration of Brad Jennings. The background is found in an excellent story (November 2, 2017) by reporter Steve Pokin. I have followed his report with Maurice Possley's enlightening analysis account of the Jennings case in The U.S. Registry of Exonerations.
Harold Levy: Publisher: The Charles Smith Blog;
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PASSAGE OF THE DAY: "At trial, Nash testified that the Highway Patrol found microscopic blood particles — an "atomized mist" — of Lisa Jennings' blood on the bathrobe her husband wore the night she died. This type of blood pattern, Nash told jurors, must have come from a gunshot and since Brad Jennings was wearing the robe with the atomized mist, he must have shot his wife. At trial, Nash said, "There is a science to all of this."That's debatable. In recent years, the field of blood-spatter analysis has been heavily criticized for not having much science to it at all. National studies have concluded that several forensic sciences, such as those focused on blood spatter, bite marks, handwriting, tire tread and footprint impressions, ballistics and arson are unreliable because they are not grounded in scientific research. The gold standard in forensics is DNA evidence, according to a study by the National Academy of Sciences published in 2009. DNA serves as a double-edged sword; it is used not only to convict the guilty but to free the innocent. It has cleared thousands of suspects and led to 342 exonerations, including 20 people who had been sentenced to death. These exonerations have led many to ask: How can our criminal justice system — based on the premise that it is better that a guilty man go free for lack of proof than an innocent man be convicted — allow a growing number of innocent people to be sent to prison? Often the answer involves the two issues Jennings' lawyer is raising: faulty forensic analysis and the lack of disclosure by prosecutors of evidence that would have been helpful to the defendant."
STORY: "Uncertainties associated with bloodstain-pattern analysis are enormous, national study," by reporter Steve Pokin, published by The Springfield News-Leader. Thanks to Dr. Michael Bowers of CSIDDS (Forensic Science and the Law) for drawing our attention to this story.
https://csidds.com/2018/07/27/almost-junk-forensic-science-of-blood-spatter-expertise-its-not-as-simple-as-its-taught-in-class/
SUB-HEADING: "The 2009 study found that "imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence."
PHOTO CAPTION: "Robert Ramsey, who represents Brad Jennings, says blood-spatter analysis is "almost junk science."
GIST: "A
record number of U.S. prisoners were released in 2016 because they were
wrongly convicted, often after being locked away for decades based on
false or misleading forensic evidence, according to research compiled by
the National Registry of Exonerations. Last year,168 people were exonerated. In 1989, the first year the registry kept a tally, there were 23. Some are cleared too late. Mark Collin Sodersten was exonerated in 2007, a year after he died at age 48 in Corcoran State Prison in California. It
was discovered that prosecutors and law enforcement authorities never
disclosed to defense attorneys that there were tape-recorded statements
from two key prosecution witnesses that contained inconsistent
statements, as well as admissions of lying and the coercive
interrogation of a witness. Fifty-seven of the 168
exonerations in 2016 involved defendants who sat in court, presumed
innocent, as a so-called forensics expert provided evidence that years
later was deemed unreliable or inaccurate. What is blood spatter evidence and how it was used to convict Brad Jennings?
Many in criminal justice believe the actual number of wrongful convictions is far higher. The
Dallas County jury that convicted Brad Jennings in 2009 of murdering
his wife relied heavily on blood-spatter evidence presented by the
Missouri State Highway Patrol. Jennings and his
current attorney, Robert Ramsey, believe the jury got it wrong because
key evidence was withheld from Jennings' defense lawyer at trial. Jurors
also got it wrong, Ramsey argued in court filings and in an interview
with the News-Leader, because blood-spatter evidence presented by Sgt.
Dan Nash, of the Highway Patrol, was inaccurate. Efforts to prove Jennings' innocence continue today — eight years after he was sent to prison. Ramsey
will be able to present his own blood-spatter expert at a hearing for
Jennings on Nov. 7-8 in Rolla. Ramsey wants to do this despite calling
blood-spatter evidence in general "almost junk science." Ramsey
explained in an interview that his expert had better credentials and
more training than Nash. In court filings, he says his
expert will expose "numerous glaring errors" in the state's
blood-spatter conclusions. At trial, Nash testified
that the Highway Patrol found microscopic blood particles — an
"atomized mist" — of Lisa Jennings' blood on the bathrobe her husband
wore the night she died. This type of blood
pattern, Nash told jurors, must have come from a gunshot and since Brad
Jennings was wearing the robe with the atomized mist, he must have shot
his wife. At trial, Nash said, "There is a science to all of this." That's debatable. In
recent years, the field of blood-spatter analysis has been heavily
criticized for not having much science to it at all. National
studies have concluded that several forensic sciences, such as those
focused on blood spatter, bite marks, handwriting, tire tread and
footprint impressions, ballistics and arson are unreliable because they
are not grounded in scientific research. The gold standard in forensics is DNA evidence, according to a study by the National Academy of Sciences published in 2009. DNA serves as a double-edged sword; it is used not only to convict the guilty but to free the innocent. It has cleared thousands of suspects and led to 342 exonerations, including 20 people who had been sentenced to death. These
exonerations have led many to ask: How can our criminal justice system —
based on the premise that it is better that a guilty man go free for
lack of proof than an innocent man be convicted — allow a growing number
of innocent people to be sent to prison? Often the
answer involves the two issues Jennings' lawyer is raising: faulty
forensic analysis and the lack of disclosure by prosecutors of evidence
that would have been helpful to the defendant. This
failure to disclose exculpatory information is called a Brady
violation, named after a convicted man whose case was the subject of
a 1963 U.S. Supreme Court decision. According to an August story in the New York Times magazine,
a 2002 study by researchers at Columbia Law School reviewed 2,700 death
sentences across the nation and found that 351 convictions were
ultimately overturned in state appellate courts. In about 20 percent of those cases, the state failed to disclose evidence at trial. "The
Catch-22 of Brady is that you have to find out they're hiding something
to have a claim," said Kathleen Ridolfi, lead author of a separate
study of wrongful convictions for the Northern California Innocence
Project, according to the Times story. Bias and subjectivity: The 2009 National Academy of Sciences study of forensic evidence was the most extensive done in the United States. "In general," it stated, "the opinions of bloodstain pattern analysis are more subjective than scientific. "...
Extra care must be given to the way in which the analyses are presented
in court. The uncertainties associated with bloodstain pattern analysis
are enormous." The report concluded that those
interpreting blood patterns in court proceedings should have, at
minimum, an understanding of applied mathematics, the physics of fluid
transfer and the pathology of wounds. A follow-up
to the 2009 study confirmed the shortcomings of many forensic sciences —
without focusing specifically on blood spatter. The 2016 Report to the President: Forensic Science in Criminal Courts addressed "cognitive bias" as a problem. "Cognitive
bias" is the way in which human judgments are shaped by factors other
than those relevant to the decision at hand. It includes "'confirmation
bias," where individuals interpret information, or look for new
evidence, in ways that conform to their preexisting belief or
assumption. The report cited a study that
showed fingerprint examiners can be influenced in their
interpretations if they know what other forensic examiners already
concluded. The study's authors recommended that
those working in forensic labs have minimal exposure to other
crime-scene evidence and things like confessions or eyewitness
identifications. In the Jennings case, not only did
the detective, Nash, reopen the case and serve as lead investigator, he
also directly participated in testing evidence in the crime lab. Nash
testified that he was with Jason Wycoff, a DNA specialist with the
Highway Patrol, when they tested Jennings' bathrobe for blood. According
to the trial transcript, Nash said as a "general rule," the lab did not
allow investigators to be present during testing. He said: "Jason and I decided that the best way to do this was to do it together. "The
first thing we did was we laid the robe out on a table. And we divided
the robe into quadrants. Basically sections. So that we would work in a
section at a time."
According to the transcript,
Wycoff also said it was unusual to have a law enforcement officer
present as he tested, adding that Nash told him he wanted to see what
kind of blood pattern there was on the robe, if any. The
News-Leader asked a patrol spokesman what the policy was in 2007
regarding whether detectives could be in the highway patrol crime lab
during testing — as well as assist in the testing — and what the policy
is today. The spokesman declined to comment because the Jennings case is
still pending. The newspaper then filed an
open-records request on Oct. 6 for the current policy and what the
policy was in 2007. The highway patrol had not responded by deadline. Mistakes uncovered by DNA: The 2009 National Academy of Sciences study linked faulty forensics to wrongful convictions. "In
some cases, substantive information and testimony based on faulty
forensic science analyses may have contributed to wrongful convictions
of innocent people. "This fact has demonstrated the
potential danger of giving undue weight to evidence and testimony
derived from imperfect testing and analysis. "...
Further improvements in forensic science practices should reduce the
occurrence of wrongful convictions, which reduces the risk that true
offenders continue to commit crimes while innocent persons
inappropriately serve time." DNA analysis has been used to highlight the excesses and sometimes tragic consequences of more unreliable forensic methods. For
example, in 2002 the FBI used DNA to re-examine 80 cases in which a
hair examiner determined that a defendant's hair was a match with
collected evidence. In nine of those cases — 11 percent — the DNA test showed the hair came from someone other than the defendant. In
1980, a man named Santae Tribble was wrongfully convicted at age 17
in large part based on the testimony of an FBI hair analyst who found a
match "in all microscopic characteristics." Tribble spent 28 years in prison
and was on parole when his attorney had the 13 hair samples re-tested
using DNA technology unavailable when Tribble was convicted. None of the 13 hairs belonged to Tribble. One belonged to a dog. The
2016 report concluded that bite-mark forensics not only cannot match a
bite mark to an individual but cannot reliably tell if a bite mark was
made by a human being. Even fingerprint identification, thought by many to be infallible, is not always reliable. Its
subjective nature was brought to the world's attention when a
fingerprint was recovered at the scene of the 2004 bombing of a Madrid
commuter train. An FBI examiner concluded the fingerprint matched with
"100 percent certainty" the prints of Brandon Mayfield, a Portland,
Oregon lawyer who is Muslim. Authorities held him for two weeks as a "material witness." Spanish authorities were unable to confirm the fingerprint match. The FBI realized it made a mistake. According
to the report, the error occurred primarily because the FBI examiner
subjectively focused too much on the similarities between the two prints
and less on the differences. Authors of the 2016
study suggested a requirement for fingerprint examiners — that
they complete and document their analysis of the fingerprint found at
the scene before comparing it to the fingerprint of the suspect. Certified in blood spatter: At the Jennings trial, Detective Nash told jurors he was certified in bloodstain pattern analysis. That was true at the time of the trial, but he was not certified in 2007, when the analysis was done. Nash was certified in August 2008 after attending a one-week workshop. He testified at the Jennings trial in August 2009. The News-Leader obtained some of Nash's training records through an open records request. Nash
declined to speak to the News-Leader, saying he was prohibited by
Highway Patrol policy. His attorney, Timothy Davis of Branson, did so on
Oct. 1.Davis told the newspaper it was not just
Nash at the highway patrol who concluded the blood spatter on the
bathrobe was caused by a gunshot. Sgt. Roger Renken, who performed crime-scene investigations for the patrol, did, as well, Davis said. "Mr. Renken made his own interpretation of the bloodstain patterns found by the Missouri crime lab," Davis said. Renken
wrote a report on March 1, 2007, which was entered as evidence in
Jennings' 2009 trial, and concluded that the fatal wound "was less
likely self inflicted and more likely inflicted by an unknown person." But he also said his conclusion was based on information from Nash about the case. Renken did not testify at trial. Nash did; he talked at length about blood-spatter patterns. During
the trial, Nash never stated and was never asked what the rate of error
is in concluding the atomized mist of blood on Jennings' bathrobe
"must" have come from a gunshot. According to the
2009 study, that is a major shortcoming in blood-spatter analysis and
other forensic sciences: Error rates are not known. It
would require scientific testing and the peer review of studies
where experts were asked to identify the sources of various "atomized
mists" of blood — in which the cause of the stains were various and
already known. The controversy of convictions: In
a 1996 conviction in Texas, attorneys trying to free a man from prison
argued that a blood-spatter expert was wrong when he concluded that a
stain must have been caused by a gunshot to the chest. They argued that it could just as easily been the result of an attempt at CPR on someone with a collapsed lung. According
to highway patrol records, Nash was trained in blood-spatter analysis
by Tom Bevel, a former police officer who worked 27 years with the
Oklahoma City Police Department. Bevel is president of Bevel, Gardner and Associates Inc., a forensic education and consulting company in Norman, Oklahoma. Bevel
has a master's degree from the University of Central Oklahoma in the
administration of criminal justice and is a graduate of the FBI National
Academy and a charter member of the FBI Scientific Workgroup on
Bloodstain Pattern Analysis. In addition, Bevel was
the pivotal witness in the 1996 conviction of Warren Horinek, a former
Fort Worth police officer, who was found guilty in Texas of murdering
his wife. Horinek said he was innocent and told police his wife killed herself. She died from a gunshot to the chest.
According to a 2010 article in the Texas Observer,
Horinek said the flecks of his wife's blood found on his white T-shirt
came from chest compressions he administered doing CPR while trying to
save her life. Like in the Jennings case, the
couple had been drinking. Horinek had downed at least 11 Coors Lights
and he sounded intoxicated when he called 911. On the tape, he can be heard applying CPR. The police, medical examiner and prosecutor believed he was innocent for various reasons. Horinek initially was not charged, according to the Texas Observer story. The
parents of Horinek's wife were convinced she would not have killed
herself, in part because she was a successful attorney with a budding
career. They used a little known Texas law that allows private citizens
to bring evidence to a grand jury. They did that and Horinek was indicted. The
local prosecutor refused to pursue the case, so the judge ordered two
private attorneys to act as special prosecutors. The dead woman's
parents hired Bevel. In a bizarre role reversal,
the regular prosecutor, the police investigator and the medical examiner
testified for the defendant. According to the
Texas Observer, Bevel testified — as Nash did at Jennings' trial — that
the specks of blood must have come from a "high velocity occurrence"
such as a gunshot. Jurors believed Bevel; Horinek was sentenced to 30 years in prison. Jim
Varnon, one of the officers who responded that night, was convinced an
innocent man went to prison because of a misinterpreted blood stain that
carried far too much weight. Varnon enlisted the
help of two blood-spatter analysts who signed affidavits that CPR on
someone with a collapsed lung — due to a gunshot — could also have
caused the misty blood on the T-shirt. One of the analysts had been
Bevel's teacher. At the appeals hearing, the jury
foreman said he and fellow jurors were inclined to find Horinek not
guilty — until they heard from Bevel. The appeal failed. Horinek remains in prison, according to Dave Mann, who wrote the story and is now with Texas Monthly."
The entire story can be found at:
https://www.news-leader.com/story/news/local/ozarks/2017/11/02/uncertainties-associated-bloodstain-pattern-analysis-enormous-national-study/709086001/REGISTRY OF EXONERATIONS: "On Christmas Eve 2006, 50-year-old Brad Jennings and his 39-year-old wife, Lisa, returned to their home in Buffalo, Missouri, after an evening with family. Both had been drinking and they were quarreling. Not long after midnight, Jennings called police and reported that he found Lisa shot in the head in their bedroom. The Texas County sheriff’s office as well as the Texas County coroner concluded that the death was a suicide. A .38-caliber revolver was found under her body. About two months later, Lisa’s younger sister reached out to the Missouri State Highway Patrol and met with Sgt. Dan Nash. She said she believed Jennings killed Lisa and asked him to re-open the investigation. Nash obtained the file from the sheriff’s office. He found a crime scene photo that showed only a single drop of blood on Lisa’s right hand, which was the hand that the sheriff’s office believed she used to fire the gun. Nash concluded that there should have been more blood as a result of “blow-back” from the gunshot. Jennings was questioned and denied killing his wife. He turned over a black bathrobe and slippers that he was wearing at the time he found his wife. A forensic analysis revealed microscopic traces of blood. DNA testing revealed the blood was from Lisa. Jennings said the blood was transferred when he embraced her when came into the room after hearing the gunshot. On July 27, 2009, police arrested Jennings on charges of second-degree murder and armed criminal action. In November 2009, Jennings went to trial in Texas County Circuit Court. The prosecution contended that although the couple had been married for 18 years, their relationship had deteriorated in recent years. In the months before her death, the prosecutor asserted, Lisa told friends she was going to move into her own apartment and end the marriage. On Christmas Eve 2006, Jennings and Lisa, their two children, and Lisa’s adult daughter, Laci Deckard, had dinner with Jennings’s mother and then returned to the Jennings home. After 10 p.m., Deckard, the children, and Jennings went upstairs to bed, while Lisa stayed up to watch a movie. Deckard testified that sometime after 1 a.m., she was awakened. Lisa was crying and Jennings was accusing her of being involved with another man. Deckard said she left to avoid the argument. Lisa was in a bathroom by the master bedroom, and Jennings was on the living room couch wearing his bathrobe and slippers. Deckard said that when she got home, she called and her younger sister answered, screaming that their mother was dead. Jennings then took the phone. When Deckard asked what he had done, he told her to come back to the home. Sheriff’s Deputy Kyle Heidler testified that when he arrived at the home shortly after 2 a.m., Jennings was wearing a shirt, jeans, and shoes, and was drinking a beer. Lisa’s body was in the master bedroom closet. She was shot in the head. Ballistics testing linked a bullet to Jennings’s revolver, which was under Lisa's leg. Dr. Keith Norton, a forensic pathologist who performed the autopsy, testified that Lisa was killed by a contact gunshot inflicted just above and behind her right ear. Norton said the muzzle was so near Lisa's head that gasses from the gun barrel ripped her scalp apart and left soot on her skull. Norton testified that such wounds result in “blowback”—body and blood particles that fly back through the air onto the gun and the hand holding it. Sgt. Nash, who had some training in blood pattern analysis and crime scene reconstruction, testified that blood spatter blowback covered nearly four feet of the wall, yet only one blood droplet and no brain or skull matter was found on Lisa’s right hand. Nash concluded that Lisa did not commit suicide because her hand and arm—as well as the gun—did not have the blood and tissue that should have been there had she pulled the trigger. DNA testing identified Lisa’s blood on Jennings’s robe. Tests also indicated the presence of microscopic “atomized” blood on the robe, consistent with blowback from a weapon fired from a distance of three feet or less. The bloodstains on the robe were consistent with a shot fired from a height of 15 to 20 inches. Lisa’s right hand—her dominant hand—was positive for the presence of gunshot residue. Jennings’s hands were negative for gunshot residue, which the prosecution contended was because Jennings washed his hands before police arrived. A paramedic testified that in suicides by firearm, the gun is usually found in the victim’s hand, and that if it falls, it does not land under the victim. Jennings testified and denied shooting Lisa. He told the jury that after arguing with Lisa, he went out to his shop to tinker and have a beer. He said he came back, filled some Christmas stockings, and went to check on Lisa. He entered the bedroom and found her in the closet. He moved her body, held her briefly, and then called 911. He exchanged his robe and slippers for new clothes before anyone arrived, but said he “didn't really know why.” During closing argument, the prosecution said Lisa had gunshot residue on her hand because she was near Jennings when he shot her. Jennings had no gunshot residue, the prosecutor said, because he changed clothes and cleaned himself up. Jennings’s defense lawyer urged jurors to question why no gunshot residue test was performed on Jennings’s robe. “I would have done it in a heartbeat,” the lawyer said. On August 19, 2009, the jury convicted Jennings of second-degree murder and armed criminal action. He was sentenced to 25 years in prison. In September 2010, the Missouri Court of Appeals upheld the convictions and sentence. In 2012, Jennings’s sister, Marsha Iler, hired J. Dwight McNiel, the former Christian County Sheriff, to review the evidence. McNiel suggested that she attempt to retrieve the police file of the case to determine if a gunshot residue test had ever been conducted on Jennings’s robe. In December 2015, attorney Lindsey Phoenix reviewed the police file and found two canisters labeled “GSR, black robe Right” and “GSR, black robe Left.” Ultimately, the police confirmed that gunshot residue tests had been performed on the robe and were negative. In 2016, attorney Robert Ramsey filed a state law petition for a writ of habeas corpus seeking a new trial because the prosecution failed to disclose the negative gunshot residue test on the robe. During a hearing, the prosecutor denied having seen the test results. Nash claimed that the lab’s procedure was to notify the prosecution directly of all test results. He denied ever seeing the fax of the report that was sent to him. On February 9, 2018, Circuit Judge John Beger granted the petition and ordered a new trial because the gunshot residue report had not been disclosed. Jennings was released on bond that day pending a retrial. In April 2018, the Missouri Court of Appeals upheld the decision granting Jennings a new trial. On July 12, 2018, the Missouri Attorney General’s Office dismissed the charges. In August 2018, Jennings filed a federal civil rights lawsuit seeking compensation.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5357
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/
Harold Levy: Publisher; The Charles Smith Blog;
Harold Levy: Publisher; The Charles Smith Blog;
