Today, Explained - Written in blood

Episode Date: February 1, 2019

For 31 years, Joe Bryan has been in prison for a murder he says he didn’t commit. He was convicted based on bloodstain-pattern analysis, but ProPublica’s Pamela Colloff says it's way less scientific than you might think. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Support for this February 1st, 2019 episode of Today Explained comes from LinkedIn, the place where people go every day to make connections, grow in their career, and discover new opportunities. You can go to LinkedIn.com slash explain and get $50 off your first job post. That is LinkedIn.com slash explain. Terms and conditions apply. Apply. Joe Bryan was a beloved high school principal who lived in Clifton, Texas, which is about 30 miles west of Waco. And in 1985, his wife, Mickey, who is a teacher at the local elementary school, was shot to death in their home. Joe, by all accounts, was at a principal's conference in Austin, which was about 120 miles away. He was seen shortly before the murder and shortly after the murder at this conference. But because the murder took place at night, Joe's only alibi was that he was sleeping at the time.

The crime was initially investigated as a robbery, and Joe was not a suspect in that. But Joe became a suspect about a week later when his brother-in-law, the victim's brother, who had been borrowing Joe's car, told police that he found a blood-speckled flashlight in the trunk of the car. The key piece of evidence in this case, a blood-covered flashlight found in Brian's car four days after Mickey's murder. The case almost entirely came down to what is called bloodstain pattern analysis. It came down to one detective's interpretation of the bloodstains on this flashlight.

The flashlight also was found without any context. We still don't know whose blood it was. We don't know when the blood was deposited. We don't know how it was deposited. But this didn't matter. The person who became sort of the state star witness, who was a detective named Robert Thorman, a bloodstain pattern analyst, connected the flashlight to the crime scene by saying that the spatter pattern on the flashlight could only have been caused by a shooting. And he then tells a very elaborate story about how the killer must have held the flashlight in one hand and the gun that killed Mickey in the other hand. Again, there was no one who saw Joe and Clifton on the night that this occurred, and by all accounts, he was 120 miles away.

But this bloodstain pattern analyst essentially placed this flashlight that was in Joe's car at the scene of the crime, therefore tying him to the crime. Joe has always maintained that he was at the hotel where this high school principals convention was taking place and he was able to account for his time up until 9 p.m. that evening when he called Mickey to say goodnight and then he watched the country music awards and he was able to say what was on

the Country Music Awards. And he said he went to bed at 11 o'clock. Mickey was killed sometime that evening. We don't know whether it was midnight, 3 a.m., 5 a.m., but she did not show up to work the next morning. Joe was still at the conference that next morning. So the state's argument was that Joe had called Mickey, then had driven 120 miles through a very heavy rainstorm to Clifton, Texas, had murdered his wife with no motive whatsoever. They were never able to determine a motive. Had then disposed of all the evidence except for the bloody flashlight, had then returned 120 miles back to Austin, and had both left his hotel and re-entered the hotel without anyone seeing him do so.

Despite that, he was found guilty and sentenced to life in prison. When I spoke to people about their reaction, people had observed Joe and Mickey having what appeared to be a wonderful marriage. They were well known for walking through Clifton sort of at the end of the day before dinner, hand in hand. That was some time where Mickey and I could just be together without the phone ringing or without us having to be somewhere. And we would laugh and talk about the day, funny things that happened. I would tease her about her duck walk and go quack, quack. And she'd straighten her feet up and she'd tell me, well, at least I don't have a bunch of stuff trailing me.

And they would stop and talk to neighbors as they did that. So they were both very well-known within that small community. We walked about three miles a day, and it gave us time to wind down and relax a little bit and get reconnected again. What the character witnesses were saying was, we cannot imagine this man committing this crime. People said at first they were quite shocked. And then that eventually gave way to their, you know, belief in the criminal justice system and in law enforcement.

And many people said to me they didn't think that Joe would be tried and convicted if there wasn't something there, and that perhaps the jury had heard information that they had not heard. You people lived with me for 10 years. How could you believe this? You've seen me every day. You saw Mickey every day. You know I'm not that way. Why would you think that? What the prosecutors used was a lot of innuendo that suggested that perhaps Joe was gay. This was small town Texas, 1985. Rumors that your high school principal might be gay were pretty toxic at the time. And so this community that initially really rallied behind Joe gradually fades away. And when he was retried

in 1989, he really did not have that community support anymore. Joe had already been in prison for several years when Leon Smith, who is the editor-in-chief of the Clifton Record, the local newspaper in Clifton, Texas, when Leon becomes interested in the case. Leon is visited by the father of Judy Whitley. 17-year-old Judy Whitley was found dead on June 20th, four months before Mickey's murder. Judy's murder went unsolved. And Judy's father asks Leon Smith to please investigate this. And Leon becomes, like many of us who have looked at this case, obsessed with what happened, not just to Mickey Bryan, but also

to Judy Whitley. What came to light several years after Leon Smith began his investigation is that Judy Whitley was likely murdered by a man who had been a local police officer in Clifton named Lapp. Dennis Dunlap hanged himself in 1996, and an investigation was opened into Dunlap's possible involvement in Judy Whitley's murder. And local police later found that, in fact, he had committed this murder. They made that determination in the late 90s. In the course of that investigation, one of his ex-wives told investigators that he had bragged about, quote, being with Mickey Bryan on the night that she was killed.

Nothing happens in Joe's case, and essentially that information is just laid to rest, and Joe languishes in prison for many, many more years. In the course of my reporting this case, I discovered that the expert witness had, like many bloodstain pattern analysts who have been deemed experts by the courts, had received only 40 hours of training in this forensic discipline. And incredibly, I also found that people all over the country with just 40 hours of training have been allowed to testify as experts in criminal cases, which

sometimes hinge on life sentences or even death sentences. So the way in which the expert in Joe's case received his training was by taking a week-long class. I signed up for the class, and I spent a week receiving the same training that the expert witness in Joe's case had received. And I wrote a story that ran in ProPublica and the New York Times magazine that was rather skeptical of the prosecution's case against Joe. As soon as the story was published, the Texas Forensic Science Commission, which is a state body here in Texas, decided to take a new look at the case, and they found that the bloodstain pattern analysis in the case was, in fact, incorrect. Executive director of the Innocence Project of Texas, Mike Wade, says these are some of the reasons why Joe Bryan deserves a new trial. The testimony back in 1989 by the prosecutor's expert,

we now know was absolutely inaccurate. And several months later, the expert witness in the case, Robert Thurman, admitted that his findings in the case were wrong. And he wrote this in a sworn affidavit. Thurman says his testing techniques and therefore testimony may have been incorrect, but he did not purposely lie. In a perfect world that would get Joe a new trial, that's not really how our criminal justice system works. Joe had lost all of his appeals and in recent years, two attorneys in Waco, Walter Reeves and Jessica Freud took up his case. His lawyers introduced new evidence,

including this evidence that the expert witness in Joe's case himself said that he was wrong. And what's happening now is the highest criminal court in Texas, the Texas Court of Criminal Appeals, is looking at Joe's case and deciding whether or not he should be given a new trial. Joe Bryan is currently incarcerated in Huntsville, Texas at the Huntsville Unit, and he has been incarcerated there for 31 years. The Bosque County District Attorney's Office has fought his lawyers tooth and nail and have gone so far as to block DNA testing that the defense has asked for repeatedly over the course of several years now. And they maintain that Joe is guilty of his wife's murder. Pamela Koloff is a senior reporter at ProPublica.

After the break, she's going to basically call all forensic evidence into question. This is Today Explained. You know, making a daily podcast is, it turns out, pretty challenging. There's a lot of factors at play, the changing news, the deadline, team dynamics. But one thing that's great that today explained is that we're six people and an intern, and somehow we work together really well. Sometimes we disagree on what we're going to call our shows,

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post. Terms and conditions apply. Pamela, since you took this course and became just as much an expert on bloodstain pattern analysis as some of the people who testify in court drips of blood that are left behind at a crime scene are not just clues, but are effectively a text that can be read to offer insights about the crime and that can even be used to reverse engineer and reconstruct the choreography of the crime itself. And like, how exactly does it work? Well, one defense attorney described it to me as he said, everybody sees what they want to see in these bloodstains and that it's like, you know, using a Ouija board. But practitioners are taught how to interpret these stains. So they're taught to differentiate between a stain that, for example, might be a spatter that's caused by a gunshot

hitting a human body versus a drip trail that might be left by a person who's wounded walking out of a crime scene, that sort of thing. In looking at this, I came to see that bloodstain pattern analysis, like sadly many forensic disciplines, has the trappings of science, but it doesn't have any statistical foundation. There's no error rate. There are minimal studies that have been done. This is really an interpretive endeavor. And the overwhelming majority of the practitioners are not scientists. They're law enforcement officers. What is fundamentally vague or imprecise about this analysis? I think the question about bloodstain pattern analysis and a number of other forensic techniques is, where is the proof that this technique can actually do what it purports to do?

And in a year of asking practitioners that question, I never got a good answer. witnesses on either side who looked at the same exact bloodstains using the same exact methodology, had the same exact training, and came to two diametrically opposite conclusions of what happened at that crime scene. And we've seen this in numerous cases in which bloodstain pattern analysis has led to either wrongful or questionable convictions. There have not been studies that back up the finding that you can take bloodstains and reverse engineer a crime scene from these stains. So you're saying this foundational tool of our criminal justice system is basically bunk.

How did it become such a pillar of the system? It essentially came into the court system in the 1950s when it was first allowed into a case in California. when a man named Herb McDonald, who I sort of think of as the Johnny Appleseed of bloodstain pattern analysis, began doing these experiments in his basement laboratory in upstate New York and believed that bloodstain pattern analysis had huge potential for law enforcement. I'm going to show you a very important part of the blood dropping experiments, and that is nothing more than a medicine dropper that has been inserted into a two-hole rubber stopper.

He began testifying as an expert witness, first in one state, then in another. And each time he testified, this evidence was allowed in. And then that became legal precedent in that state that you could use bloodstain pattern analysis in criminal proceedings. But there was never any sort of scientific litmus test that was given to this. Because none of these people are scientists. Because most of the practitioners are law enforcement officers. And the thinking is, and again, this is true with many forensic disciplines, while it's been used in all these other cases for decades, why would we stop now? That's a little troubling to say the least.

So some precedent of bloodstain pattern analysis is used, it gets accepted and repeated, and all of a sudden it's sort of like codified into law, codified into the system. Yeah. Judges keep letting it in because other judges have let it in. And what's unfortunate is in the 90s with the rise of DNA analysis and cases being scrutinized in a way that they had not been scrutinized, is suddenly we learn that many of these forensic disciplines that we've been relying on, including bloodstain pattern analysis, are wrong. And we know this now from DNA testing, but that did not change what happened in the courts going forward. Has there been a push to stop allowing this as evidence? Yeah. In 2009, the National Academy of Sciences called into doubt the reliability of bloodstain pattern analysis and issued a pretty damning assessment of it.

It said some experts extrapolate far beyond what can be supported, that it's more subjective than scientific, and that the uncertainties associated with bloodstain pattern analysis are enormous. And that was a decade ago, and nothing has changed. And do we have any idea, like, the scale of how much damage this sort of culture of forensic evidence has done? The measure that we have for looking at the damage this has done are DNA exonerations. Of the 362 people who've been exonerated based on DNA testing in the U.S. to date, faulty forensics contributed to almost half of those underlying convictions. Bite mark analysis, which is still widely used in our criminal justice system,

which has been determined to have no scientific validity, has to date resulted in 31 exonerations. A judge exonerated Douglas Prade today. Prade has been in prison for almost 15 years for the shooting death of Dr. Margo Prade. A bite mark on Margo led to Prade's conviction. However, new DNA test results released last year showed the DNA on her body was not his.

Hair microscopy, which was widely used for many years by FBI analysts, resulted in convictions of 75 people who were later exonerated. These so-called elite examiners gave bad testimony in 95% of 268 trials reviewed to date, and that's just the tip of the iceberg. But I think it's important to note that the vast majority of cases don't have DNA evidence that could result in an exoneration. So we're really looking at just a sliver of what's going on in the criminal justice system. You continue to have really, really questionable testimony

being allowed into criminal cases where people's life and liberty is at stake. Nothing changes. And meanwhile, Joe's just still in prison. Joe Bryan is 78 years old. He has congestive heart failure. He's missed 31 Christmases. I've been incarcerated 31 years and four months.

I've missed many funerals, many weddings, graduations. Every day I wake up and I see the bars, and I'm reminded of what's happened to Mickey and to me. I don't necessarily have great faith that the last stop in his legal odyssey, the Texas Court of Criminal Appeals, will do the right thing. I don't know what will happen. We have a district attorney's office that won't even allow DNA testing to proceed in the case. Why are they fighting it so?

Where is the truth in Mickey's murder and in my conviction? The bottom line is they're willing to sacrifice me or anyone else for a conviction and they don't want to know the truth because the truth is not always popular. Because if we reveal the truth, which we're doing, then that tampers on someone else's hallowed ground and makes them look bad. And they've looked good for 30-something years, and they've made me look like a real villain. And I'm not the villain. I'm the victim, just like Mickey was. The thing that Joe has said to me over and over again is that he's not just seeking justice for himself, but he's seeking justice for Mickey. If I could go back, I would make Mickey go to Austin with me. And that his wife has still not received justice

all these years later for this horrific murder that she was the victim of. Pamela Koloff is a senior reporter at ProPublica. The audio of Joe Bryan in this episode comes from her ProPublica video interview with Joe. We reached out to the Bosque County District Attorney's Office, but they did not reach back. This is Today Explained. I'm Sean Ramos for him. Irene Noguchi is the show's executive producer. Bridget McCarthy, Noam Hassenfeld, Luke Vanderplug, and Afim Shapiro round out the team.

Siona Petros is our intern, and the mysterious Breakmaster Cylinder makes music for us. Today Explained is produced in association with Stitcher, and we are part of the Vox Media Podcast Network. I'm going to go. to make connections, grow in their career, and discover new opportunities. Try and find a better place to find the right person who will help you grow your business. I dare you. Or hurry to linkedin.com slash explain and get $50 off your first job post. That is linkedin.com slash explained. Terms and conditions apply.

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