CSI: Junk Science with Josie Duffy Rice

Josie Duffy Rice and Sarah discuss the role of junk science in the criminal justice system. It is a big turkey to carve up and Josie serves Sarah a bleakly empowering feast.
 
 Here’s where to find Josie

Josie on Twitter
Josie's website

Correction (February 22, 2022): The initial release of this episode included the suggestion that medical examiners do not need MDs. In the unedited conversation, Josie corrected herself on this point, but we inadvertently removed it in the edit. The episode has since been edited to remove any confusion regarding this point.

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Some articles referred to in this episode:

• https://www.propublica.org/article/texas-forensic-science-commission-blood-spatter-evidence-testimony-murder-case-joe-bryan
• https://www.youtube.com/watch?v=wTa-PWdjX-Q
• https://features.propublica.org/blood-spatter/joe-bryan-conviction-blood-spatter-forensic-evidence/
• https://forensicdental.wordpress.com/2012/01/04/bitemark-analysis-problems-disclosed-10-years-ago-by-cbs-60-minutes/

 Links:
 
https://twitter.com/jduffyrice
http://www.josieduffyrice.com/
http://patreon.com/yourewrongabout
https://www.teepublic.com/stores/youre-wrong-about
https://www.paypal.com/paypalme/yourewrongaboutpod
https://www.podpage.com/you-are-good
http://maintenancephase.com

Transcript

Sarah: And it just seems ridiculous that we're soldiering bravely forward with the system that we invented before sciences that we now know it even existed. 

“Since no two people have identical fingerprints, fingerprinting has long been considered a foolproof way of fingering the guilty. What is it? It's never been tested. It's never been shown to be accurate, and one of the main reasons they were wrongly convicted in the first place was bad forensic evidence. If “the best” by their own emission can make such a glaring error in a high-profile case when they knew the world was watching, what is happening in the counties and in areas where we don't “have the best of the best?””

Sarah: I'm Sarah Marshall and this is You're Wrong About. Today's episode is CSI Junk Science. We are going to junk science and we are going with Josie Duffy Rice. Josie Duffy Rice is a journalist writer, podcast host and consultant whose work is primarily focused on prosecutors, prisons, and other criminal justice issues. Currently she's a co-host of What a Day. She's also the creator and cohost of the podcast, Justice in America. I am so excited to get to talk to her about junk science, because she is writing a book about all of this right now, and we get to go out to coffee with her and hear about all of her most unbelievable research.

I am so excited about this episode because junk science is one of my passions. As a person who lives in the world today, I think it's an area of systemic injustice where the truth is both very obvious and sometimes funny, or funny if it wasn't so sad, or funny because it's all so terrible. Josie is someone who is qualified and passionate to tell us exactly what is going on in this world of faulty forensics. You may notice a thread is emerging in the episodes that we've been doing recently. We had the True Crime episode with Emma Berquist last fall, and now we're continuing into well, true crime outside of cable and supermarket books. True crime of the kind that is happening all around us every day. Thank you so much for listening. Thank you for being part of this conversation. Thank you for coming out to coffee with us. Here's the episode. 

“How many years did other people in authority know that forensic evidence was wrong, and how long had they known it, and why are they fighting it so? Where is the truth?”

Sarah: I have been thinking about calling this, You’re Wrong About CSI, because I feel like that stands in for American’s blind faith about forensics.

Josie: Yeah, I love it, I love it. Junk science in particular has been interesting to me because really what I recognized about the criminal justice system is that it's based in storytelling. The ways in which people end up in the system and get convicted of crimes is ultimately rooted very often in what kind of stories the system talks about itself and what kind of stories we tell ourselves. 

Sarah: When we are using science in a way that essentially is contrary to its actual goals, we will generate unreliable evidence about the guilt of other people, but reliable evidence about our own more nebulous guilt as humans’ beings.  

Josie: Yes. I think that's right. What we are always searching for is some certainty. So much of this to me is fascinating, especially in this moment where we see the battle of science playing out all the time because of COVID right. Since March of 2020, I think you can really see how people weaponize science and how uncomfortable people are with science, not being certain when scientists sort of started to say, we're not sure how scary that is for people and how the mix of science and politics. It makes it really difficult to discern what's right. What's actually real and what we should be doing. 

Sarah: To me, there's something very powerful and disturbing about the idea that we love the idea of evidence so much, and we want it so badly that the desire means that we accept evidence as a matter of faith, which is contrary to the concept of evidence.

Josie: Yeah, absolutely. 

Sarah: You've brought in a big turkey to carve up. What are we going to talk about? How do you divide up the subject? 

Josie: I mean, I think that when people think about forensic science, they probably think mostly of DNA fingerprints. These are the tangible parts of a criminal charge or criminal evidence that we think of as being the proof.

Sarah: I think of David Caruso taking off his sunglasses. 

Josie: Exactly. Right, the NCIS, the CSI, the SVU. I mean, even non-police-oriented movies, all these movies we all love. All of them that involve a criminal case tend to involve forensic evidence.

Sarah: I feel like even Pretty Little Liars has teenagers understanding how DNA works.

Josie: Exactly. The National Institute of Justice defines forensic science and names 12 categories. And that includes toxicology, crime scene evidence, arson evidence, firearms, there's odontology, which is teeth analysis, basically like forensic dentistry. Then there's like the ways that we analyze those categories. The main one of those is pattern matching evidence. And I think that's probably the biggest category of forensic science that is a real problem. 

Sarah: This is the breast of the turkey. 

Josie: Yeah, this is the breadth of it. 

Sarah: I insist I'm using this turkey metaphor. I'm sure it's going to get weird.

Josie: I love it. Let's go with the turkey. Let's make it happen. The most common type of pattern matching evidence is DNA analysis. What DNA we found at the scene; we tested the DNA of this guy. It matches 99% match, which is a variation on watching Maury or any sort of story where we're trying to find a relative, or you're trying to prove if you're the father or you're trying to prove whether this person is the culprit. But there are lots of other kinds of pattern matching evidence as well and so when we say pattern matching, we're saying here's one thing, we're trying to see if this other thing matches it. I mean, it's pretty straight forward. 

There's fingerprint analysis, right. Matching fingerprints to the prints of a suspect. There is microscopic hair analysis, which says we found hair in one place, we're trying to prove it's the hair of this person. There's firearm analysis. It looks at whether or not bullets and shell casings come from a certain gun. Shoe prints, tire tracks, is this the car that we see the tire tracks in the driveway of the house where the guy is dead.

Sarah: My Cousin Vinny defense famously. 

Josie: Yes. Handwriting, you know and that comes in a lot with forgery and identity stealing those kinds of crimes, right? There's also like bite mark analysis. We find bite marks on a victim's body, and we try to match them to someone else's teeth prints. All of these ways that we think about proof. So, when you find a conclusive match, what they call it as individualization, you know, this bullet matches this shell casing, or this shell casing came from this gun, it could not be any other one. For years this is literally a ton of the evidence that was used in cases to convict people. I think it's worth noting off the bat, if you have a trial, if you even get into the pattern matching evidence part of a criminal case, plea negotiations are complicated or whatever it is, maybe at that point you bring them in. But generally, you think of this as like trial preparation, prosecutor is going to need to prove their case to the judge or to a jury that this evidence proves that this person did something wrong.

Probably this person has decided to go to trial, which means that they're claiming they're innocent, or at least that they're claiming there are extenuating circumstances to their actions. When we're in a system where at minimum 90% of things are pled out before they go to trial, people tend to only go to trial if they're refusing to plea or they're really asserting their innocence, this is a really big generalization. So, you know, criminal cases are complicated, the reasons people make decisions, they do are always complicated, but it's not to say that people who plea are definitely guilty. It's just to say that people who decide to go to trial believe that the other side can't prove that they did something. When this evidence comes up and it's being used it correlates with, to me a higher chance that it’s inaccurate, you know, you're talking about cases in which the defense is saying, I didn't do this. 

They're not presenting bullet casings in front of a jury if the defendant has said, yeah, I actually did do this, I'll take the plea. In our heads, that is the beginning of a criminal case, but generally in the criminal system, it's not only rare it's after pretrial motions, it's after prep. There's just so much that goes into before the trial even begins. It's not just the quality of the evidence that's a problem. It's the times that we use it, because it's the times in which someone is really saying, this was not me. There are so many other forms of junk science that seem surreal to me because they're so absurd and they really just indicate to me how the criminal justice system has completely flown the coop. So, good example, relying on dogs like dogs sniffing.

Sarah: I just got a mental image of a dog in a judge's robes with a gavel, it's like a golden retriever. 

Josie: We do know that you can train dogs to find somethings. We do know that you can train dogs to help find a dead body or something and we have taken that to be an indication that dogs can do way more than we really think that they can probably do.

Sarah: I feel like I have to have told you this story before because I'm obsessed with it. 

Josie: Tell me, I can't wait.

Sarah: Okay. There was this amazing story about this cadaver dog handler named Sandra Anderson, who worked in the upper Midwest in the nineties, I think, through the early aughts. She always found evidence. She had this cadaver dog named Eagle who was a Doberman mix who just always found evidence. And so when they had a cold case, they were like, get Sandra and Eagle, they always find evidence. You can see where this is going. 

Josie: I can see it from a mile away. 

Sarah: Right. And so what of course happened was that she was getting bone fragments sent to her from a guy that she had, who worked, I don't know if it was the coroner's office, but somewhere where he had access to bone fragments in Louisiana, he was supplying her with fragments. Then she would keep bone fragments in her pant leg, shake one out at a crime scene and be like. “Eagle’s alerting. He found a bone fragment!” And put her own blood on a hacksaw that she planted in the basement of another guy. It looked really bad, and I have to imagine her rationale was like, this guy looks really bad. He definitely did it. I've decided he did it and said, I'm going to supply just like Al Pacino in that Alaskan movie. 

Josie: Wow. This is an incredible story. I'm now looking at pictures of Sandra Anderson and Eagle. I think that law enforcement is a job where many people go in, not thinking, you know what, I want to do is plant evidence at crime, but lots of people end up doing that. Junk science is a real problem, right, but it's not the problem. The problem is that we function in a system that encourages the worst of law enforcement in so many ways. Scent lineups are a kind of common practice where basically a dog is introduced to a scent sample that has been collected from a crime scene or collected from a piece of evidence. Then they try to match that with sometimes like things in containers that have similar scents in them that maybe belong to like different people. They are basically trying to like match one smell with another. I don't think I have to emphasize that dogs can't tell us how sure they are. We can't be sure what they are thinking. 

It's not to say that maybe the dog never picks the right sample it's to say that we are relying on a very inexact practice to determine guilt of someone. We are taking one skill that dogs have. Sure, they're better at smelling than we are. They can maybe find a dead body, faster than we're going to be able to smell one out. That is a very different thing than being willing to match scent. Dogs can't say to us, I actually don't know how to do that. 

Sarah: I would also imagine that the handler/dog relationship, you're communicating a lot to them that you might not be aware that you're saying through your body language.

Josie: Yeah, absolutely. I mean, that's a huge part of it. So, scent lineups, which basically like connect the smell of a suspect to the smell of something on the crime scene, right. I mean, in a weird way, they reflect what you see in all sorts of lineups, including eyewitness line ups, which again is another example of junk science. We know now that eyewitness lineups are very unreliable, people often pick the wrong person. We saw it recently, I think, in the case we were talking about this a few weeks ago, Sarah. In the case of the woman who wrote Lucky by Alice Sebold to pick the wrong person during a lineup and was coerced by prosecutors to still testify against the guy that they had identified.

There is a perception, I think, in particular with eyewitness lineups. Something horrible happens and you have to go in and identify a witness. There's a perception that like in moments of crisis, we are more observant than we are other times. That's just not necessarily the case. Because you're in a state of panic does not mean you're more likely to identify the right guy. And what we know is that people don't do a very good job of identifying people who aren't the same race as them, right? There's like drastic confusion that happens when we ask people to identify someone in our lineup. It happens all the time that they identify the wrong person. We also see like case after case where the police manipulate pictures in a photo lineup, for example, they'll remove a suspect's tattoo, or they will light the skin color to make them look more like the person that the witness has suspected. We also know that like very often, if a witness comes in and says, I actually can't identify, I don't know, I don't know if he's in this lineup. They are pushed to think harder. 

Another really crazy form of junk science to me is hypnotism, which has been used in cases in our criminal justice system over the years. Where they hypnotize a witness, and they ask them a question and they say something under hypnosis that brings back a memory that they didn't know they had or whatever it is.

Sarah: Very big in the satanic panic and must be noted. 

Josie: Exactly. This idea of recovered memory, right. That witnesses and people who have been victims of crime, or for whatever reason have been told they're victims of crime or whatever it is, can be basically manipulated into having memories. I didn't remember this before, but I remember it now, it's come back to me. I have this recovered memory because prosecutors or police are saying to you, this happened to you. Do you remember this happening to you? You start to be convinced that it, maybe it did, right? Like you said, it has happened a lot in satanic panic, you see it a lot in child abuse cases, you see it in a lot of cases that sort of needing a memory from a child, especially if they're an adult now. It's just another example of how unreliable we are at assessing our own ability to interpret events. 

Sarah: The term recovered memory is so broad and I think has so many different meanings at this point that it feels like we need further sort of subcategories of description. Because that could mean that you have a therapist who repeatedly hypnotizes you and asks you to just keep talking and say whatever comes to mind and is like I know you've been abused. This was a trend that happened in the eighties where therapists were trained with this idea. If you are fucked up to use the clinical terminology, then there's some kind of memory of trauma that you have buried and you need to unearth.

Once you abreact it out and re-experience it, then you'll be free and speaking as someone who is, you know, using pop psychology of this moment and understands that I have trauma to work through and I need therapy. I just am like this, and I can't snap out of it. That's tough to accept, but I mostly accepted and then also I think that there are so many things that we want to believe as humans, and we want to feel that we can have greater certainty about things. We keep coming back to these very human desires and I feel like to me, it's important to make the distinction between, I don't expect every single human being to know how to avoid wrongful conviction and to police their desires and longings in that direction. I just think the people who put on robes every day or have some kind of really important official, expert role within the legal system should work really hard at doing that. 

Josie: If we are going to have a criminal justice system, we want it to err on the side of being way too careful to not convict someone rather than like way too encompassing of all the possible ways that you could convict someone. That again is like why junk science I find really interesting because it mirrors the same, the bigger issues in criminal justice to me because it lays bare the willingness to believe anything as long as it will result in a conviction. 

Sarah: I feel like these are all based on the idea that we have buried within us access to objective fact, which I don't think is true. I think our memories are very unreliable. They can sometimes be extremely good, often they're not. It also occurred to me, even if we could replay a crime as it happened, in a courtroom in front of jurors, people still wouldn't agree over what they had just watched. 

Josie: We forget almost every single thing that happens to us. In fact, by tonight, we will have forgotten most everything that happened to us today. 

Sarah: Thank God we're recording this conversation or else I would forget all the stuff you're telling me.

Josie: I know, you shape all of your perceptions on your memory, right? Our entire viewpoint of the world is framed by, shaped by our memory, we believe our memory. We like to tend to generally trust ourselves. It's really uncomfortable to think about how random and unreliable. I'm like trying to think of a better word for unreliable, but I can't, and unreliable our own memories are right. 

Sarah: Yeah. It's it opens up a lot of weird questions about like truly the nature of the self.

Josie: What has always just infuriated me about the ubiquity of junk science and so many cases is it seems to be taking advantage, not only of a defendant who is drastically at risk, but of the people who are responsible for determining his future, his or her future. Another one that I think probably will resonate with more people than any of the others in terms of their own experiences, breathalyzers. Breathalyzers are seen as science; you breathe into this machine. It tells you exactly how much alcohol is in your system and if you're too drunk to drive, you know, if you blow a 0.07 in many states, you can walk away and if people have 0.09, you can't right. You're arrested.

Sarah: I would contend that if I put ‘izer’ at the end of anything, it would sound science-y right. If you came to my house and I would be like, okay, this is the takeoff shoes, elizer area. 

Josie: You're very fancy, very remarkable. 

Sarah: I got to do what this robot says.  

Josie: When they're working their absolute best, maybe they're somewhat reliable, but they're like a scientific machine handed to a law enforcement agent that is not actually an expert at calibrating it, using it necessarily. There's a lot of user error. The difference between what it is at its best and what it is on average is pretty drastic and I always was like surprised The New York Times did and wrote an article a couple of years ago where they were like breathalyzers aren't reliable and I thought it was going to be a huge thing, you know, and it turns out it barely made a splash.

But you know, a million Americans a year arrested for drunk driving. These are machines that are used regularly to determine whether or not someone has been, which it's also just such a crime with such moral implications. You hear that someone arrested for drunk driving, and it feels selfish, reckless, very fucked up. The reality is that the breathalyzer is not reliable enough to really be able to determine with certainty that someone has been actually driving impaired. I think The New York Times article that came out, this was in 2019 that was written, said that the breathalyzers generate wrong results, quote, with alarming frequency, they're marketed as precise to the third decimal place and that is spoiler alert. Very often, not true.

Sometimes results were 40% too high, between 2018 and 2019 judges in a couple of states, Massachusetts and New Jersey namely throughout 30,000 breath tests after it's starting to realize these weren't super reliable, but to be clear breathalyzers are still used everywhere. I mean, this did not end breathalyzers and most people didn't read this article. Often, sometimes you're not, you haven't been pulled over, right. You show up to like a traffic, do you guys have those? What are they called? 

Sarah: Oh yeah. The checkpoints. 

Josie: The checkpoints, right. You show up to a checkpoint, you show up to, it's not always like you looked like you were driving drunk, so he pulled you over. Often, it's like, you have to blow a straight reading in order to keep driving and people are finding out that like they've been accused of driving drunk when they have not. 

Sarah: I feel like there's this dual lobster trap effect. I think that is how lobster traps work, it has to be because if it's a trap you can't leave, you can enter but you can't go, so yes. You know, once you become a part of the system, once you have a breathalyzer test that suggests that you've been drinking too much, then you are in the trap now. There's this very foundational idea, the way we think about the system in America, that once you're in it, you deserve to have the most uphill climb imaginable to try and get out. Then also that once we start believing in something as a people, we can't just like snap our fingers and start unbelieving in it. It would be great if we could, but it's actually hard for us to do, even when we're trying.

Josie: Once you start thinking that you can't trust anything, a system like this fall apart. You can see how, for example, what we know about how cops spend their time, is that they don't have to spend their time looking at violent crime. They're not really out there getting murderers every day, but a lot of their time is spent doing traffic control. Part of their reason that they can justify spending so much time doing traffic work is because they say that there are a lot of people driving drunk.

Part of the reason they say there are other people driving drunk is because a million people a year are convicted of that crime. Part of the reason a million people a year are convicted of the crime is because they're blowing more than 0.08 on a breathalyzer and once you start to unravel are those breathalyzers reliable. Then you really start to have a conversation about is this how police should be spending their time? All of these forms of evidence are undergirding other choices and systems that we also take at face value because of what the results of the junk science tells us. I mean, it's bad enough that the science is bad with the sciences holding up is even scarier to me.

“You can’t help but be so angry. I've missed many funerals, many weddings, graduations. I think we have to first realize that a small town likes to believe in the authority. Not that they wanted to hear what they heard, but the fact that they were hearing it, then it caused a doubt, not only about my character, maybe about Mickey's character but did he really kill Mickey?”

I will start with the story that has really stuck with me. One of them is a story of this guy, Joe Bryan in Texas. Pam Colloff is a writer for ProPublica and The New York Times magazine, she used to write for the Texas Tribune. I'm like her biggest fan, so there's that. 

Sarah: I will be secretary of her fan club and you can be president. 

Josie: She's an incredible writer who really has focused a lot of her time and efforts on junk science in particular. The case is about a man named Joe Bryan who lived in a really small town called Clifton in central Texas. This is the eighties. He's married to a woman named Mickey Bryan. They both work in education. She teaches at the elementary school, and I think he's a principal of the high school. They're known around town. They're loved around town. They have no kids. They're just this really normal couple in Texas. It's October in 1985. Joe Bryan goes to a conference and he's across the state at this point.

One night his wife has shot and killed, and nobody really realizes until the next day, she doesn't show up to work. People get worried. They go to her house, and they find her dead. I mean, this is in the middle of nowhere. There doesn't seem to be any really clear reason someone would shoot her. I mean, it must've been a very shocking crime. Joe Bryan is in Austin, he's at the Texas Association of Secondary Schools Principals Annual Conference, he's there and someone pulls him aside, an executive director of the organization pulls him aside and says your wife has been killed. He's like shocked. Basically, what happens in this case, I think really embodies a lot of what we see in forensic science, which is that the people who are working on this case are small town cops.

This is not the FBI storming in to figure out who killed Mickey Bryan. These are local police officers, local law enforcement, who don't always have the resources, the training, or the background to be analyzing crime scenes, frankly. For most police officers in the country, they're in places where there are very few murders ever. This is not like every police officer is the ones you see in CSI or SVU. 

Sarah: This seems like changing a tire where it's like, yeah, I technically know how to do that. But I don't have to do it even every year.

Josie: Right. I think a lot of times it's like you changing a tire and a lot of times it’s like me changing a tire, which is like, I have no idea how to do that.

Sarah: What does YouTube say? What does YouTube say about how to enter a crime scene?

Josie: Right, exactly. I can imagine that like showing up to a crime scene and knowing that evidence needs to be analyzed, that doesn't make me capable of analyzing that evidence. 

Sarah: It's just all this stuff that you have to do a job constantly to like, I think, see all the little blind spots that you have as a novice. 

Josie: That's right. Joe Bryan goes home. The local police bring in some Texas Rangers. They bring in a detective with another police department in a different county and his name's Robert Thorman and he's trained and says he's trained in forensic discipline called bloodstain pattern analysis. People who are bloodstain pattern analysts come into a crime scene. They see where the blood has splattered over here and they look for like patterns among blood, on a crime scene of someone having been shot. 

Sarah: My first thought always about this is that this is Dexter's job. I think first episode of Dexter, he's like, here's exactly what happened. 

Josie: I forgot about that. Yeah, I should watch more Dexter. 

Sarah: Of course, he's I guess, supposed to be extra great at it because he's a practicing serial killer, but yeah.

Josie: Right, because he's a killer. What that is basically people who come into a crime scene and look at what has happened with blood in particular when a gun is involved, when a gunshot is involved, what happens with the person's blood that will give them an indicator of what happened during the shooting. Where they shot at close range, where they shot far away, where did the blood hit the wall? All of these are questions that this forensic discipline looks into. The reason this story is particularly interesting to me is because Pam Colloff really looks into what it means to be an expert, and the reality is that if your expertise is reliant on bad science, is it an expertise.

Here's a guy who went to a training class, usually, which is maybe about a weeklong, maybe less, people who go to these training classes tend to be a cop or detective or whatever it may be. They don't tend to have any like scientific background. They're not scientific experts, right. They're going to a class where they are taught a practice that isn't actually reliable. Then they go and they offer their expertise in cases. You see it all the time in trials. I am an expert at firearm forensics, I'm an expert at matching firearms and bullets. I've testified in 200 cases, and you hear that and you're like, yeah, you must be an expert. But if in 200 cases, your evidence is bad, it doesn't really matter. 

Sarah: Maybe you're like really good at testifying. You're good at sitting there and saying stuff. This reminds me of we're going on a little journey, I promise it's going somewhere. A YouTube video I watched recently by the YouTuber, Big Joel, who I think is great about the new Aladdin and how we get into this question of like, what does make me a prince mean? Because if you make someone a prince, but they don't have a place that they are prince of, and you don't have evidence of that, and they're not related to anyone who's in power, then what is the power? Everyone's like, well, he's a prince, if it looks like a prince and it walks like a prince, it's a prince.

I feel like that's how courtroom expertise works as well. If people in the past believe, or if you look like people's idea of an expert, then you're an expert. Also, you have that, I know there's a term for this, but the thing where when you first learn about something, you're like, wow, I know all about this. Then if you keep going with it, then I think the more, you know, the less sure you feel about stuff. 

Josie: Yeah, absolutely. My goal has been to make people more comfortable with the idea of not knowing because I think not knowing is very scary for people. To really engage with how unreliable and unfair and brutal the system is. You really have to be able to grapple with the lack of clarity. That's a story about bloodstain analysis, which I think is just one of the many kinds of junk science that is unreliable. When I say unreliable, it doesn't necessarily mean that there isn't an expert who could come into a certain scene and be able to tell something by the evidence.

It's just to say that what they might be able to tell may not align with like the prosecution's theory of what actually happened. It's one thing to say, it seems like she got shot from this side because the blood is over here. It's another thing to say, it seems like she got shot from the side, it must've been someone she knew or else she would have run, or there are all these kinds of ways in which we extrapolate. From the little evidence that you actually can determine from some of this stuff that makes junk science even more junky. 

Sarah: This reminds me of my beef with Sherlock Holmes, or I feel like we continue to have. I love Sherlock Holmes, obviously we all do, but I feel like we have this expectation that a true detective that there are in the world these people. Even if there aren't that many of them who can look at someone and be like, I've deduced that you had mushroom soup earlier today and you went to this school and you fear terriers or whatever. Yeah, and I just don't think people can, I think it's like gambling. Some people are really good at gambling, but do they know what's going to happen, no. 

Josie: Also, the truth is that there's a lot at play here that also is reflective of the ways we fool ourselves. Right, I don't think that most expert witnesses who deal in pattern matching evidence who get up there and think I am bullshitting everybody. 

Sarah: Right. 

Josie: I think they believe that when someone tells you that you're an expert in something over and over again, and that you have filled all the qualifications of experts, it's very easy to be sure in what you did. It reminds me of like, I think everybody has that friend who's always thinks the worst thing is going to happen and then whenever you're like, but I wouldn't jump to that. They're like, well, I was right that one time. 

Sarah: Remember the time I didn't wear my lucky sock and got in a bus accident. 

Josie: These are ways in which like you convince yourself; you have more certainty about the situation than you do. 

Sarah: Which feels good even as it's do mongering. 

Josie: Law enforcement, including this guy Robert Thorman, basically finger Joe Bryan for the crime. It's a shocking result for the people in the town. These are people who don't seem to have any skeletons in their closet. There's like a couple more elements of the case that make people think he's involved. Bottom line is that they conclude that she's been killed by someone she must've known and so all of these played into the fact that a couple of years after that Joe Bryan gets convicted of murdering his wife and is sent to prison where he remained until just a couple of years ago. This was in 1985, so we're talking about over 30 years, I think over 35 years of this man serving a sentence for murder for a murder that he almost definitely did not commit.

Sarah: This would involve him traveling hours and hours to, and from the murder scene in the middle of the night, right. 

Josie: Right. The reason that I think about this story, when I think about junk sciences because I think what's important to remember is that forensic science, what we believe to be reliable, forensic science and reliable experts in forensic science. When they tell us something, it allows us to suspend our other beliefs to a dramatic extent. Joe Bryan was across the state. He was in Austin that this would have required him to leave his hotel in Austin, drive hours and hours to his town, a hundred miles away from Dallas, kill his wife, drive back.

We have no motive. We have no idea of why he would want to do that, and we have nobody who saw him leave his hotel at Austin. He was there the night before. He's there first thing in the morning, I mean, in general, that's really hard to believe. One of the only ways you would be maybe willing to believe that as a jury member, or even as a prosecutor, is if someone is telling you, this is what the evidence says, the evidence says he killed his wife.

Sarah: Yeah. I mean, I know that in many of these actual trials that happen there is sinisterness of some kind, there is some kind of intent more nefarious than we must get to the bottom of this. But I feel like there's also alongside of that is this thing of like so desperately wanting to be freed by a higher power and not wanting to be the ultimate authority on something. I think plenty of people do want to be the ultimate authority on something and that worries me as well. But this thing where you're like, well, this is a real head scratcher. It's really hard to know what to think but the science says that this guy did it, so my hands are tied. 

Josie: Yeah, exactly. I think that's exactly right. It's very difficult to ask a jury full of people to determine beyond a reasonable doubt someone's guilt, especially in a case like this. There's a lot of reasons why someone should be like what. I always think back to a case about a guy who left his child in the car on purpose. You always hear about those horrible cases where a child is left in the car and dies and how horrible that is for the parent who made a mistake. But this guy was accused of doing it on purpose and I remember that when it first happened, when they interviewed the witnesses who watched him, who were there when he found his child, they describe how he was distraught, and he was horrified and how sad it was and how they describe him as having a very genuine reaction. Later after he's been arrested and accused, their perception of that moment changes drastically.

All of a sudden it seemed fake. They thought something was up and it's the same thing with Joe Bryan, right? Here was this beloved high school principal and not only was he accused of killing his wife, but he suddenly found his whole small town had turned against him. They had reshaped their own perception of him into someone who could do this. They had basically marked him as a murderer. It's really remarkable what our brains will do when we think about science as something where it's like, well, it doesn't matter how I interpret it. This is what the science said. Actually, the science is dependent on interpretation. There are elements of a criminal case that maybe are more reliable or that we should be focused on, or that there are other things that we should be prioritizing that don't get prioritized because forensic science tends to take up all the space in the room.

“Can you tell me about learning that Robert Thorman had signed an affidavit saying that he was in fact incorrect in some of his testimony? Yes, I was elated and humbled about the fact that it had to be difficult for him to admit that he was wrong, hoping that his confession that he was wrong will help other people incarcerated in prison who had junk science that convicted them. But you also have to realize that he didn't have the proper training that he needed to do what he did.”

We talked about blood stain analysis, which I think is one that shows up in a lot of those shows. Another big one that I think about a lot is bite mark evidence. I brought up earlier forensic odontology. That could mean something like if you can't identify a corpse, you're trying to match their teeth records to maybe people who are missing and try to see if that's the right person, but forensic odontology can also encompass bite mark analysis, which means that a crime happens. Maybe the victim was bitten, bite marks involved somehow and there is someone who comes in and says these bite marks match this guy. I always, even before I started looking at junk science, I thought that was weird. I was like, how can they possibly be sure.

Sarah: You really can't test it against anything, right? You can't ask someone to re-bite someone under the same circumstances.

Josie: Exactly. Radley Balko who writes for the Washington Post and has been looking into junk science and looking at it for years, he wrote a book with a guy named Tucker Carrington. It's called, The Cadaver King and The Country Dentist. It focuses on one main case in Mississippi, but really is looking at these experts in Mississippi, one of whom really deals in bite mark analysis. His name is Michael West. For years he was the go-to bite mark analysis guy in Mississippi criminal cases. As you can imagine, Mississippi does not have the fairest or best criminal justice system in the country. The problems in the criminal justice system are reflective of all of the problems in Mississippi, right?

Low investment, dated practices, racism, austerity, all of this plays into the problems that you see in the criminal justice system there. So, this guy, Michael West being the guy that they go to, to analyze bite marks. The stuff that he basically ended up getting away with is unbelievable. In 1992, there was a woman named Louise, I think you pronounced her last name, ‘Keko’, she's killed. This is actually in Louisiana, not Mississippi, but they brought him in from Mississippi for this case. She's killed, the primary suspect is her husband. I'm telling a lot of cases where the husband seems to actually be innocent, but it is true that most of the times when a woman is killed it's by someone she knows and often her partner. It's not crazy that the primary suspect is her husband, right? They were estranged, they had a bad relationship, but there is no physical evidence tying him to the scene. He says he didn't do it. 

This case goes unsolved for about a year and then the sheriff calls in, Michael West to do bite mark analysis. No bite marks were found on her during the autopsy though, which does present a problem of bringing in a guy to do bite mark analysis on her body. Basically, they exhume her body 14 months after her death and Michael West said that under a special UV light using a technique that he's the only person who knows how to use. He might find something that hadn't been seen previously. They exhume the body so he can look at it. He says, under alternative light, the pattern of a bite mark has appeared. They found a curve pattern that matched four of her ex-husband's teeth to the perfect match on her shoulder. There was also the problem that he couldn't photograph or document what he'd seen.

Sarah: This is like how Mormonism was invented. 

Josie: Yeah, exactly. We have all the documents that we're not going to share them with you. He said that he had actually tried to preserve the bite mark in formaldehyde, but it had quote unquote faded away. He argued this in front of a jury, and he was an expert, and this man was convicted.

“No forensic science is more controversial and no practitioner more suspect than a former bourbon street bouncer named Dr. Michael West. While bite mark analysis has been allowed into evidence for decades, its degree of accuracy has never been scientifically validated in the laboratory.”

This is a guy who has pulled up bodies sort of been in swamps for months and said that he can tell you that there is a bite mark on it, and it perfectly matches this person. We're not talking about, oh, it could match this person. He's sitting in front of a jury saying there is a 0.001 chance this isn't this guy. He is using numbers that we associated with DNA analysis. He's using them with bite mark analysis, and he is telling juries that he is positive that this guy is the one who did it, or the one who bit the victim. This is sending people to prison for the rest of their lives.  

Sarah: I assume he's using the supercomputer of his brain to calculate these odds, right. I feel like there's such a world of difference between being like, it could be the defendant's teeth versus like, oh, it is. This person has been roommates with alligators and snapping turtles for like six weeks at this point, like really.

Josie: With a lot of his evidence, there's not really a database you're running it against. You're not putting it in the machine and matching it to all these other people most of the time and if you're not pattern matching evidence. These odds are made up odds. 99.9, according to what, even if this is the bite mark, according to what.  He seems like one who there's at least an argument to be made that he knew he was bullshitting, but I don't think it was probably always that way. What you often see in these cases is that working in law enforcement is hard in a lot of ways, and it can be depressing in a lot of ways. One of the things that it does is it can really convince you that everybody is hiding a crime or capable of a crime, that your instincts are pretty perfect because you thought it was a guy and it ended up being this guy, another example of confirmation bias.

It's not just that like someone like Michael West or someone like these experts who these detectives who say they're experts because they've testified on these cases. It's not just that they have confirmation bias about the evidence is that they have confirmation bias about the suspect. This leads them to look at any evidence in light of what they think this guy would have done and the reason they have confirmation bias about the suspect is because they've seen a lot. They start to believe, I think. If we think this guy, did it, he did it. This is a perspective that I think really pervades law enforcement and drives so much of the wrongdoing we see in that field. So much of the injustice, there are tons of more cases about pattern matching evidence, I could go on forever. I mean, the FBI's hair analysis department had to basically admit that there were countless cases, dozens, hundreds of cases, where they had probably used fake evidence because they were matching one hair follicle to another, which turns out not to actually be something that you can do. 

Sarah: With DNA or were they just like these follicles are identical?

Josie: This is not like getting DNA from hair. This is looking at a follicle under a microscope, looking at another follicle, under a microscope and saying that they must've come from the same head. 

Sarah: A follicle is when you pull out a hair and it's got a little sack attached to it, right? Or is it just the hair itself?

Josie: No, I think it's just the hair itself. I mean, I remember this happened with Casey Anthony. They found it one hair in her car. This happens all the time, found a hair on the scene and I think more recently as DNA analysis has gotten more sophisticated. You're trying to get DNA from the hair, but very often, historically, it's just analyzing, did this hair come out of this head? It turns out that not every person has immediately identifiable hair that couldn't be matched to anybody else. Even under a microscope. 

Sarah: Yeah. They're not cabbage patch, kids. They're hairs. I mean, I feel like that's something that could be like a nice, it's like harmony, it's harmony for other evidence. It's like, well, these hairs look pretty similar. But who can say thank you? 

Josie: Yeah. In this case, the FBI is microscopic hair comparison unit that's what it was called. Found here matches and 2,500 cases over 20 years and the FBI starts reviewing these cases a few years ago and they publicly acknowledged that the unit had given flaw testimony in 95% of those cases, 95%, 

Sarah: When you do that kind of oversight and you're like, oh man, we really messed this up for decades, do you have to do anything else aside from that? How does that work?

Josie: It depends on a lot of stuff. Is there a prosecutor willing to revisit the case? Is this the only evidence that led to the conviction? Like in other words, there is not a guarantee right to be retried. Now often if you appeal then probably maybe hopefully a judge or a court will grant your appeal and allow you to be retried, but that doesn't always happen. It's not a guarantee, so when the FBI starts reviewing the cases that they had and this microscopic hair analysis unit that of the first 268 cases that they reviewed, 32 of the defendants had been sentenced to death. 14 of those 32 had already been executed. Even if the FBI had said everybody that we testified in, you're out of prison, get out. Harm has already been done; you've already been in prison for years. You've already lost tons of your life. Like even in times when people are willing to say this evidence actually wasn't reliable, it doesn't erase the fact that someone was sentenced according to evidence, by someone who said they were an expert, and they weren't. 

Sarah: I feel we've been through a trial there's already harm. Even if they're like not guilty, it's like, well, I've just lost all my money and I've spent however many months on this. 

Josie: Yeah, fingerprint analysis is the original forensic evidence. I think it was in the early 20th century where there is a case where they use fingerprint analysis, and it was like a huge deal.

Sarah: This is what we had before DNA, they're like CD-ROMs or something. 

Josie: Yeah. So, fingerprint analysis is more reliable maybe than like bite marks or the hair analysis, but it's still not as reliable as people tend to think it is. In 2016, the President's Council of Advisors on science and technology, which was called PCAST released a report. It was basically a report saying like forensic science and especially pattern matching evidence is not nearly as reliable as we have thought it was. It obviously had major implications or should have had major implications on tons of evidence used in cases and tons of evidence that had already been used. The report found that the science around fingerprint matching is foundationally valid but that it still has a really big, false positive rate, ranging from like 1in 306 to 1 in 18. 

Sarah: Oh my God. 

Josie: Right. It's like 1in 306 as a jury member. Those might be odds you're willing to take 1 in 18 is a very different case, right? When the standard is beyond a reasonable doubt, you might remember the story of this guy named Brandon Mayfield. In 2004, during the Madrid terrorist bombings, they pulled a fingerprint off of a bag that was uncovered near the scene of the crime, near the scene of the bombs. They sent this fingerprint to law enforcement around the world. The FBI finds a match and they find this guy, Brandon Mayfield, and he lives in Oregon. He's never been to Spain. That is obviously a false positive, but he got arrested. 

Sarah: This is like the most Oregon thing ever to be accused of committing a crime in a country you've never been to.

“Just two months earlier terrorists have bombed four commuter trains in Madrid killing almost 200 people. An international investigation led to Brandon Mayfield, Mona's husband, an American lawyer who converted to Islam. Mayfield was arrested after this smudge partial print found on a bag of detonators was matched to his.”

Josie: You know, what's wild about this case is that the Spain had written a letter. FBI says we have a match. Spain writes a letter, and they say like, we actually don't think it's him. It doesn't make any sense, okay, and FBI arrested him anyway, a month later. 

Sarah: Listen, Dana, the aliens pulled this off somehow when we're going to get to the bottom of it. 

Josie: And that's exactly it, right. They're willing to talk themselves into knots to make a scenario where this guy who by all accounts has nothing to do with this terrorist attack in a different country to country where he's never been, is not tied to any of the like people or issues or anything. The fact that the FBI would arrest him is so scary to me because that could happen to really anybody. So that's just an example of fingerprints where it's not just that there are false positives. Law enforcement is willing to act on those false positives even when it's very clear, they're false positive. 

Sarah: I have a question for you based on a pattern that's emerging already in our stories, which is like, why do you think that people, to me surprisingly quick to believe that someone who has no motive, nothing that would suggest they would do anything like this committed a crime that is both logistically very difficult for them and also doesn't appear to benefit them in any way? 

Josie: Often law enforcement, prosecutors, et cetera, their job is to quote unquote, catch the bad guys, you know, keep crime off the streets. They start to believe that anybody is capable of anything. You see it all the time when people talk about motive. They were jealous of this person who they worked with, or they were jealous of their ex, or they had this childhood trauma that rose up in this moment and led them to kill. Even though there was no reason, no motivation, no connection, no belief. I think popular culture does that too. You want to see the movie where you don't expect the ending, et cetera, et cetera. I think it is a combination of belief that you can never really know what a person is capable of doing.

People do crazy things for crazy reasons all the time. The difference between possible and likely is so why. Is it possible that Brandon Mayfield somehow got really into this group of people who wanted to do this Madrid terrorist bombing and there was no evidence of that? He sent his bag over to them and put like, sure, maybe it's possible. Is it remotely likely in any reasonable conception of anything, no? The ways in which regular civilians interact with the criminal justice system and understand it and that includes in popular culture. It makes all of us believe that there's way more randomness and uncertainty among what's likely to happen to you then there really is. We rely on this evidence to show us what people did, but this evidence that we rely on in its own way is dependent on what we think people would do. 

Sarah: It seems weird on the face of it, but the more I think about it, the more it makes sense that we would find comfort in the idea that why would someone kill somebody? It's like, well, this inner evil that was always there emerged and they snapped and that's just what people are like. When I think in reality there is often a much longer narrative to speak of the only trial that I know of having occurred in the nineties, the OJ Simpson trial. It's like, if you take the perspective that he's guilty, then how could we have known? Well, you really could have, you could have figured out where this was all going years and years in advance, and it implicates us as a society that we don't notice the crimes that we're building towards. 

Josie: The last thing I'll say about this is that DNA analysis is also a pattern matching evidence, right. You're taking DNA from one person and you're seeing if it matches and a sample of DNA, a sample found on our crime scene. What I think is worth noting by DNA is that it's certainly more reliable than all of these other forms of evidence and if you have well-preserved and also single source DNA, it is pretty reliable. Overwhelmingly reliable and by single source DNA, I'm saying if you have DNA from one person, in one sample and you're comparing it to one person DNA in another sample, that is a pretty reliable practice. The problem is that there are other forms of DNA samples. There is simple mixture DNA, which involves DNA from two individuals.

Then there's complex mixture DNA, which includes samples from multiple people and typically DNA analysis is either a single source or a simple mixture, which means it's more objective. If you're looking at a complex mixture sample, it's very difficult to separate out one person's DNA from another's, then you're back to not being able to rely on the analysis. Even DNA analysis should be scrutinized, not every single time, but just saying DNA matches on the scene doesn't mean much. Another example of that is trace DNA. There is a great podcast, I guess I probably am not allowed to say that because I was a consulting producer on it, I'm like giving myself a compliment.

Sarah: Oh, I'm sure that's part of why it was great. No, you can say that. 

Josie: It's called a Suspect and it was hosted and produced by a guy, Matt Shaer, who's a friend of mine and it's about a man in Seattle who was at a party, a Halloween party in 2008, only black guy there. He did not know anybody else at the party was held at an apartment complex of younger kids, right out of college who are like working in tech and lived in this apartment complex. The party was like moving from apartment to apartment. There are a lot of people there everybody's drunk. The next morning, one of the women who was hosting the party is dead and this guy gets fingered for the crime. One of the reasons they accused him of the crime was because they found his DNA on the scene. It was a party, number one, it's not super shocking, not like maybe his DNA was on the scene. 

Sarah: When I go to a party, I make sure to take all my DNA back home with me, it's very rude to leave it at the apartment. 

Josie: Nothing ever comes off, but they did find his DNA on the scene. They weren't wrong. What they found on the scene was trace DNA, a sample of DNA that was like smaller than what the eye could see basically. A tiny particle that's tinier than a tiny particle and they concluded that he killed this woman. If you present that to a jury, if you say, yeah, his DNA is on the scene, here's what this sample shows, here's what his DNA shows, same guy. It would not be surprising at all for them to convict people over that. 

Sarah: This is like US Weekly headline writing, where it's like Jennifer Aniston is very sad and it's like, how do we know that? Someone said it, there you go.

Josie: But it's also to show how much our DNA gets up everywhere. You walk by someone on the street, trace DNA could definitely be on them, right.  

Sarah: Hopefully we're more conscious of that than ever. I assume that everywhere I go, I'm just leaving this little trail of breadcrumbs. 

Josie: But you know, Emanuel Fair, who the podcast is about, sat in jail for a decade being accused of this murder. This is not an example of junk science, but this is junk science adjacent. When someone dies and especially under questionable circumstances, right, we tend to send their body to a coroner to someone that then will determine a cause of death and that cause of death will determine what police do going forward. At least for me, whenever I heard the word coroner or whatever, I watched SVU, you know, it's always a very technologically advanced room with, it seems to be full of like really cool computers and all these tools and then she says like probably died about six o'clock, probably strangled, whatever.

Sarah: Lividity in the tissues Lenny, he was on his back when he died, whatever. Yeah, I just made that up.  

Josie: It is always something like that. Now, I think it's worth noting, it's not that everything that coroner is a medical examiner is do is unscientific because some of it is based in science, but it is the actual role that is less of a science-based role than I think we're thought to believe. I thought coroners were doctors. 

Sarah: I definitely thought that. 

Josie: But it turns out that in a lot of places, number one, the county coroner is an elected position, and you don't have to have any expertise whatsoever. I think the assumption has always been that like only people who would have expertise would take these jobs or be interested in them. I think it is true that typically we're talking about people who maybe have previously worked in a morgue or previously worked with frankly dead bodies. It's unlikely and I think it's fair to say it's unlikely that I'm going to randomly run for coroner. The job asks for a certain kind of person with a certain kind of expertise, but that doesn't erase the fact that we're talking about people who often don't have the training or the expertise to determine cause of death beyond reasonable doubt.

There's not really a regular standard or a regular body coming in to determine whether or not a coroner or medical examiner is qualified to be analyzing the cases that they're taking. This could have all sorts of consequences, many of which I don't even have to describe because I'm sure people listening could imagine them, but it's particularly notable when you think about what kind of connections to law enforcement, medical examiners and coroners have. So just recently within the past couple months, there is a report released, I think by the University of Washington, that determined that there've actually been many more people killed by police shootings then records show. 

Maybe twice as many and part of the reason that there's such a disparity between people who have been killed by police and what the numbers say about who has been killed by police is because coroner's determining cause of death. This is another way of saying that coroners and medical examiners have protected police by determining a different cause of death then like what actually happened.

Sarah: It is like the one thing maybe Law and Order did depict correctly that we have these experts who belong to the police and the prosecution essentially, or if they don't belong to them, then it's like they know each other, they're working in the same ecosystem. To me, it's weird having a system where trials are adversarial, but the prosecution has the experts essentially and that defense is like, well, find your own goddamn experts. 

Josie: A huge part of the problem prosecutors have at their disposal, other arms of the state, or at least state sanctioned bodies. Like law enforcement, like the coroner, like the medical examiner as functionally working on their side, the same goes for like crime labs. You see it all the time with crime labs. The truth is that they're not objective. It is a, yet another kind of obstacle, many defendants have to face. Or I think what's actually often common too, is that medical examiner is determining something with suicide that feels questionable or determining something was natural causes that feels questionable. A lot of people who die in police custody or die in a police interaction are said to have died of “excited delirium”, which is not an actual thing. 

Sarah: That's something Victorian women die of in novels.

Josie: Yeah, exactly. We're talking about science that is similar to what they had in like the 1400s. That's just to say that because of coroner said it or medical examiner, it's worth finding out who those people are. I think it's also worth noting that in some states, including California, sheriff's and coroners are the same people, you elect a sheriff coroner, sheriff-coroner. 

Sarah: I mean, that's a cool title, but it's still a conflict of interest.

Josie: It's a huge conflict of interest. First of all, I don't think someone has the time to be very good at both of those jobs and have the expertise necessary for me to elect them. But second of all, you can imagine what happens when a Sheriff's deputy is accused of killing someone. 

Sarah: They are like no I didn't, case closed. 

Josie: I have investigated myself and that is not what happened. The person charged with making the decision of what's scientific and what's not is the judge. A judge is not a scientist. They don't know. Very often when we are deciding people's futures, we're flying blind and so are the people in the room that are charged with making objective, accurate non-partisan decisions. In an actual scenario like that, probably what should happen is that a judge should break for the day, at least the day, go and do some research. You couldn't do enough research to like actually to become an expert, but at least could come back and say I've made a slightly more informed ruling about whether or not this evidence is reliable or not. So often when we are determining someone's future, we are asking people who have a pretty good grasp sometimes on the law or a pretty good grasp sometimes on procedure, but how irrelevant that is when we're talking about a topic of which they know nothing. 

Sarah: The American legal system is based on essential the British legal system, rightish. 

Josie: I think ish, I think ish is right. 

Sarah: Ish. But anyway, it's like even dating from the beginning of the US legal system, science at that time was like, you know, a feather in Iraq will follow the same rate in a vacuum. It's like, okay, that's nice and in the first Sherlock Holmes story, Sherlock Holmes is very preoccupied with the idea that he might have invented a test that will tell you if a bloodstain is blood or not. Is it blood or is it a juice? So it just seems ridiculous that we're soldiering bravely forward with the system that we invented before science as we now know it even existed. 

Josie: I think it's very hard for people who are not, especially not in the sciences to understand that science is always evolving, that what we understand today could be very different than what we understand in 50 years. Not every single time we're talking about, you know, this is the best scientists in the world at the beginning of COVID were giving advice that was based on less information than they have now. When people change their minds, they're accused of lying or just trying to like to win political points or whatever it is.

When like the actual reality is that like people's understanding changes, the more information they get and you also think about how like scientific analysis has been used to perpetuate our most depraved institutions, right? Phrenology, eugenics, black men are more dangerous or more likely to rape has been seen as scientifically based for lots of this criminal justice systems existence. If you are the defendant and you are facing the entire power of the state, and you are saying like, I didn't do something, how overwhelmingly an enormous burden that is given all the different kind of ways in which your guilt can be assumed. We tend to think the more types of forensic evidence that can be collected and analyzed the better. I'm just not sure that's true. It's very symbolic to me how a system like this is created and perpetuated, which is confirmation bias, holding systemic analysis to a much lower standard than we hold any other kind of like scientific evidence. A lot of people believing that they have supernatural knowledge of something that they actually don't.

Sarah: I think we all or not all of us, but certainly I, and a lot of other people are really drawn to the idea of surrender to some kind of higher power. I think that the way we deal with that, like sometimes we need to remind ourselves to keep it in our personal lives, because the idea of science as this higher power within legal system or the law is a higher power, which I think is an idea that I have felt very drawn to at times.

I think I feel that about the American legal system at this moment with like all the information that I have. The way season 2 Steve Brady felt about his relationship with Miranda, which is, and I quote, there's good stuff here. I have like real reverence. I remember feeling, January 6th of last year, I was very shocked that I felt the sense of violation about people essentially taking over a government building. I think you can even have that reverence and like love of the law and still be like, this is a car that we have been driving for 240 years and that is too long to not do some structural changes. 

Josie: In the interest of fairness and honesty, I think it's worth mentioning that not every time that junk science is used is the outcome wrong. You think about cases in which the right guy was put away and there was that expert witness who testified. It creates, I think what Radley Balko referred to as a guardian angel complex in people. Once you start to say, this evidence is not reliable, this is not good. You are presenting as fact something that at best is a maybe. Peoples are very outraged by that.

The experts in this field who have made careers out of this who have like, believe their own hype, start to say, do you know how many child killers I've put away? I am responsible for justice and all of these cases and you're trying to tell me that I'm not. It's hard to tell people, presenting this evidence as fact is inaccurate and therefore it is wrong to do that. Even if you're testifying against someone who did the wrong thing, our system does not say that. People who are guilty no longer have the right to accurate testimony. These are the same people, prosecutors, law enforcement, et cetera, who tend to say, if I get to the right result, it doesn't matter how I got there. 

Sarah: Right, and that we've doubled up on blind spots and it feels like there's this idea of, well, both these systems are objective. So, we can just completely take our hands off the wheel in a sense. 

Josie: Every year here comes this list of people are being exonerated and it analyzes like what went wrong? Was there a prosecutor misconduct? Was that based on bad science? Why was the wrongful conviction happening? But it really undersells and underestimates how many people are wrongfully convicted? How many of those people will never have their evidence re-examined or their case reheard? How many of those people pled guilty because that was a better call or a less risky than going to trial, where they're going to face 30 years instead of two? So, they are not entitled to ever even appeal their sentence because they pled and how many people just get lost to the system, these kinds of mistakes define their whole life.

We're talking a lot today about innocent people or people who are wrongfully convicted. As a rule, I don't actually like to focus on innocent people that much, because I think innocent people get a little bit too much attention in the system. What you learn is that there are a lot of guilty people who maybe still shouldn't be in a system like this. When I think of junk science, I just encourage people to not think of it as an isolated problem, but indicative of the broader failures, the broader rot of what we consider to be, the quote, unquote, best criminal justice system in the world. They need to change the system, reflects a need to change ourselves too. 

Sarah: Maybe we've reached what is probably my favorite kind of conclusion, which is I would call bleakly empowering, which is like, this is all of our responsibility. It's all of our problem, hooray. 

Josie: Yeah, I think that's right. This is important for everybody. What we end up focusing on is like what the defendant did and whether or not they're deserving of a system better than us and I would just argue that we all are. 

“Do not ever quit, if you're truly innocent, don't ever quit. Keep fighting it because the only way to correct a justice system is to keep fighting it into bringing out the warts and moles and everything else that are there, that they can correct them. It's not always perfect, but it's all we have. We can't quit, we have to continue to work with it.”

Sarah: Thank you for listening to this episode. Thank you to our incredible guest, Josie Duffy Rice. If you want to send her tips about junk science in your neighborhood, go to josieduffyrice.com. If you want to support this podcast and listen to some bonus episodes, go to patreon.com/yourewrongabout. Thank you to Carolyn Kendrick, our wonderful editor and producer. If you're interested in the clips you heard in this episode or in any of the articles that we referenced in this conversation, you can find them in the show notes, check them out, see you soon.