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Opinion

Editorials of The Times

Posted May 30, 2018 10:57 p.m. EDT

Bad Blood

Joe Bryan, a former small-town high school principal from central Texas, is serving 99 years in prison for the brutal murder of his wife, Mickey, in 1985 — a crime he probably didn’t commit. Bryan has been locked up for about 30 years. He has no clear prospects for release other than periodic opportunities at parole, which he has been denied despite being a model prisoner and having a spotless disciplinary record. Many of the prison guards who know him best are convinced he’s innocent.

So why is Bryan still behind bars? Because of some tiny specks of what may or may not have been blood on a flashlight that may or may not have been planted in the trunk of his car — a piece of evidence prosecutors introduced at trial through the testimony of an expert witness who may or may not have known what he was talking about.

As a two-part series published by The New York Times Magazine and ProPublica lays out in damning detail, there was essentially no other physical evidence or motive tying Bryan to the crime. By all accounts, the Bryans had a happy marriage. On the night of his wife’s murder, Bryan was attending a principals’ conference 120 miles away. Prosecutors dismissed or ignored many pieces of potentially exculpatory evidence, like an unidentified palm print in the bedroom where Mickey Bryan was shot to death, a cigarette butt on the kitchen floor (neither of the Bryans smoked) and the absence of any bloodstains in Joe Bryan’s car.

Despite all this, Joe Bryan was convicted on the word of a detective named Robert Thorman, who testified before the jury as an expert in what is known as bloodstain-pattern analysis. Drips, spatters, smears and sprays — the distribution of blood at a crime scene — can provide possibly useful information about what weapon was used, where a victim was positioned and whether he or she was moved before or after being killed. In Mickey Bryan’s case, Thorman testified that the apparent blood specks on the flashlight were “back spatter,” and showed that her killer had shot her at close range.

Through the 1960s, analyzing bloodstain patterns was the province of forensic scientists with years of training in fluid dynamics and high-level mathematics. The practice came to national attention in 1966, when it helped to exonerate Sam Sheppard, a neurosurgeon who had been convicted of murdering his wife more than a decade earlier.

But in the 1970s and 1980s, this kind of analysis became popular among members of law enforcement and others with little or no scientific training. People like Thorman got certified as bloodstain-pattern analysts after taking a weeklong course that now costs as little as a few hundred dollars. Pamela Colloff, who wrote the articles on the Times Magazine/ProPublica investigation of Joe Bryan’s case, enrolled in one of these courses, where the instructor told her, “We’re not really going to focus on the math and physics; it just kind of bogs things down.” Colloff passed the final exam, as did everyone in the class.

Thanks in part to such dubious standards, the interpretation of bloodstain evidence has become notoriously ambiguous. The same patterns can, like a Rorschach test, be read in very different ways; some trials feature two bloodstain “experts,” one on each side, who testify to opposite conclusions. A 2009 report by the National Academy of Sciences found that “the opinions of bloodstain-pattern analysts are more subjective than scientific,” and, “The uncertainties associated with bloodstain pattern analysis are enormous.”

And yet judges in many states have accepted these experts’ testimony as scientifically valid — not because of any concrete evidence that it is, but because other courts have accepted it before. In other words, it’s a good bet that there are other Joe Bryans sitting in prisons around the country because of highly unreliable forensic testimony.

That unreliability is not unique to bloodstain-pattern analysis. As DNA testing has revolutionized forensic science and helped to exonerate hundreds of wrongfully convicted people, it has also shined a light on the inadequacy of earlier methods. The National Academy of Sciences report found significant problems with the analysis of bite marks, tire treads, arson and hair samples. In 2015, the FBI released an initial review of hundreds of convictions it had won and found that over two decades, the bureau’s “elite” forensic hair-sample analysts testified wrongly in favor of the prosecution 96 percent of the time. Thirty-two of the defendants in those cases were sentenced to death, and 14 of those were executed or died in prison.

The scientific analysis of forensic evidence can be essential to solving crimes, but as long as the process is controlled by the police and prosecutors, and not scientists, there will never be adequate oversight. Changing this was the goal of a national commission established in the wake of the 2009 report. Unfortunately, Attorney General Jeff Sessions, who has long sided with prosecutors and rejected efforts to look more critically at forensic sciences, let the commission expire last year.

For now, any hope for greater scrutiny of bloodstain-pattern analysis lies with the influential Texas Forensic Science Commission, which agreed to examine Bryan’s case, along with another involving the use of bloodstain-pattern evidence. The commission, whose recommendations are watched nationally, in February imposed on Texas a requirement that bloodstain-pattern analysis be performed by an accredited organization, which should make it harder for prosecutors to introduce testimony by analysts with minimal training and qualifications.

Meanwhile, time is running out for Bryan. He’s 77 and suffers from congestive heart failure. He is currently being considered for parole again, with a decision expected within weeks. He should be released, and his conviction should be re-examined in light of the shortcomings of the evidence used to convict him. Because so much time has passed since Mickey Bryan’s murder, and many people connected to the investigation have since died, the identity of her killer may never be definitively known. That uncertainty should be the state’s burden to carry, not Joe Bryan’s.

Putin’s Russia, Always the Victim

After news came from Kiev, Ukraine, on Tuesday that a Russian journalist critical of Vladimir Putin had been shot dead, it did not take long for the Kremlin’s denial machinery to shift into high gear. Another case of Russophobia, cried government officials and their media acolytes, anticipating that Russia would be blamed. An attempt to mar the World Cup soccer tournament; a typical example of Ukraine’s “bloody crimes and total impunity.”

The reality turned out to be a bit more complicated when the journalist, Arkady Babchenko, appeared at a news conference the next day very much alive, and Ukrainian security services announced that his “murder” had been a sting operation to foil a plot by Russian security services to kill him. Ukrainian authorities certainly must explain why they felt it necessary to compromise journalistic integrity to stage this bizarre episode; they have doubtless supplied fodder to conspiracy theorists and cynical denouncers of “fake news” everywhere. One thing is certain: The Kremlin will seize on this official deceit to show the lengths to which its enemies will go to tarnish Russia.

That has been Russia’s reaction to all accusations of foul play, whether it’s the well-documented charges by the Netherlands, Australia and other nations that it was responsible for downing a Malaysian jetliner over Ukraine in 2014, killing 298; or the British accusation that Russia was most likely behind the poisoning of a double agent and his daughter in England; or the charge by American intelligence agencies that Russia meddled in the presidential campaign.

Each such accusation is met by a barrage of official denials on state television and mockery on social media. In the official version, Russia is always the victim of a dastardly and demeaning Western campaign; it was the Ukrainians who shot down Malaysia Airlines Flight 17 to make Russia look bad; it was the British who poisoned Sergei Skripal and his daughter Yulia, and when she gave an interview to Reuters, it was obvious she was coerced.

This is not so different from the response of President Donald Trump to the mounting evidence that aides and advisers to his campaign had numerous questionable contacts with Russian representatives seeking to aid his election. He claims it’s all a sinister plot by agents of the “deep state” or former President Barack Obama to plant “spies” to undercut his campaign. Such instinctive denials were a fixture of the Soviet Union, where the Communist Party treated any questioning of its infallibility as a crime. Speaking the truth was dangerous. Alexander Solzhenitsyn’s impassioned essay “Live Not by Lies” appeared the day before he was exiled in 1974; Mikhail Gorbachev’s most radical reform was “glasnost,” or openness. In Vladimir Putin’s Russia, bluster and lying have been restored to primacy.

There is virtually no chance that Russia will acknowledge any plot against Babchenko, any attack on Skripal, or any role in the downing of the jetliner, no matter how clear the evidence. What Russia gains by this is another question. The Kremlin may fool most of its people most of the time, but abroad, its feigned indignation is ever less credible — though not necessarily with Trump, who famously declared that he believed Putin when he said he didn’t meddle in American elections.

Putin, a veteran of the KGB, may believe that lying in defense of Russian honor is justified. But every new burst of denial and obfuscation only makes him and his Kremlin look more deceitful and dishonorable.

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