So, when the National Academy of Sciences’ groundbreaking report on forensics came out in 2009, Gertner saw an opportunity.
The report was a rigorous examination of the forensics widely used in the nation’s courts and revealed troubling inadequacies with virtually every technique. It included a harsh assessment of bloodstain-pattern analysis and questioned the abilities of experts in it. A capable analyst, it said, must possess an understanding of applied mathematics, significant figures, the physics of fluid transfer, and the pathology of wounds—subjects that aren’t covered in depth in the field’s 40-hour workshops.
Using the National Academy of Sciences report as a launching pad, Gertner published instructions for attorneys arguing cases in her courtroom, the gist of which were: “If the evidence at issue is challenged in the NAS report, I will automatically hold a hearing.”
“If the courts routinely admit junk science,” Gertner said recently, “the lawyer with a finite amount of resources is not about to say I will spend this dollar on a challenge if it’s not going to make a difference.”
Other judges on the US District Court for Massachusetts did not follow her lead. “Everybody thought I was crazy,” she recalled with a wistful laugh. Gertner was used to being an outsider. She was one of a few women litigating criminal cases in the 1970s. Among her judicial peers, defense attorneys were a rarity.
Still, she was disappointed to see how few judges—on the federal bench or in state courts where the majority of spatter cases arose—saw the National Academy of Sciences report as a call to action.
Gertner, who retired from the bench in 2011 and now teaches at Harvard Law School, said the failure of the report to take hold in courts “was an institutional failure.” Lawyers failed. Trial judges failed.
Appellate judges failed.
She saved her strongest criticism for appellate judges who, she insisted, could raise the stakes of admitting bad science by shaming trial judges who do.
“If you were reversed by the court of appeals for allowing in junk science,” she said, speaking as a former trial judge, “you are bound to be more critical the next time you have this issue.” But appellate judges are loath to overturn forensic-related precedent, even in the face of advancing scientific understanding.
“Precedent is like a child’s game of telephone,” Gertner said. “You start off saying something. You whisper it down the line and you continue to whisper it even though it no longer makes sense.”
For attorneys, convincing appellate judges to break ranks has proven Sisyphean.
Last year, Geneva Williams, a defense attorney in Iowa, used the concerns raised in the National Academy of Sciences report to argue that her client’s former lawyer was ineffective for failing to challenge the admission of bloodstain evidence at his trial. Her client’s conviction, she said, should be overturned. The court rejected her argument.
“The admissibility of such evidence is determined by the Iowa Rules of Evidence,” Judge Richard Blane wrote for the Court of Appeals of Iowa, “not a research journal.”
The expert who testified at the trial was a former IABPA officer who studied with MacDonell.
[ QUESTIONING THE REAL-WORLD VALUE OF RESEARCH ]
While the National Academy of Sciences report fell flat in the courts, its findings roused the Department of Justice. The department and other federal agencies began doling out millions to researchers to enhance the scientific bona fides of forensic disciplines like bloodstain-pattern analysis.
Starting in February 2010, the DOJ’s research arm, the National Institute of Justice, offered a pool of grant money for a study of the fluid dynamics of blood.
The call for proposals landed in the inbox of Daniel Attinger, a fluid dynamics specialist at Columbia University in New York. Attinger, who wears round, frameless glasses and sneakers with his suits, had been training computers to recognize fluid stains: first, to differentiate between Coke and Diet Coke, then between cabernet and merlot.
But “bloodstains,” he recalled thinking, “had more important stories to tell.” He just didn’t know anything about them.
So Attinger read everything he could and then, like so many before him, made the trek to Corning to learn from the man who had propagated the very technique the National Academy of Sciences report now questioned. He went to MacDonell’s house.
The two men huddled in MacDonell’s kitchen, talking about Attinger’s research ideas, MacDonell’s methods, and the practical needs of investigators in the field. “What he knew, he was able to explain clearly,” Attinger said of MacDonell. “He also had a clear understanding of what he did not know.” In the unknowns, Attinger saw potential.
That summer, Attinger attended one of MacDonell’s final 40-hour workshops. By fall, Attinger’s team won a grant of just over $632,000 from the DOJ to start their studies.
In 2013, Attinger published his first blood-spatter paper in the journal Forensic Science International. One of his three coauthors was a now-retired Canadian police officer who had been an assistant teacher in MacDonell’s workshop.
The paper showed that the hypotheses that underpin bloodstain-pattern analysis remained largely untested. And, it said, analysts’ assumptions and errors could make their conclusions rife with uncertainty. Analysts failed to properly account for gravity when using bloodstains to calculate victims’ locations. They assumed things about how speed influences blood patterns that had never been scientifically proven.
But Attinger’s paper had a solution: It posited fluid dynamics research as a promising way to refine the accuracy of bloodstain-pattern analysis.
Once published, the article didn’t attract widespread concern, but it did attract more funding.
Today, Attinger, now at Iowa State University, has been studying the technique for eight years and has received over $1.3 million in federal grants. Other scientists have received grants, too. The NIJ alone dedicated $175 million to forensic research between 2009 and 2017.
A review of Attinger’s research reveals some investigation of fundamental questions, like trajectories of blood in flight. But his experiments are highly simplified and extremely specific when compared with the complex problems faced at crime scenes. “The key in doing meaningful experiments,” he said, “is to start from the simple, understand it and then go to the complex.” A recent paper, for example, examined distortions of bloodstains on perfectly flat-lying military fabrics, results that Attinger and his coauthors said could be generalized to any woven fabric that had been laundered four or more times.
Such studies frustrate forensic experts like Ralph Ristenbatt, an instructor of forensic science at Pennsylvania State University and a 15-year veteran of the Office of Chief Medical Examiner in New York City. “These are great academic studies,” he said, “but what do they lend to real-world problems?” Ristenbatt said he isn’t sure researchers will ever be able to model lab experiments as complex as real life, so they may not be the best way to address the chasm between analysts’ training and the conclusions they draw at crime scenes.
“There’s this belief out there that you can look at the patterns of blood at a crime scene and it’s the be-all end-all,” he said, “when in reality bloodstain-pattern analysis is just one tool in the toolbox of what we call crime-scene reconstruction.” The very idea that bloodstains will “tell the story for us,” he said, is “misguided.”