Unspeakable Acts

by Sarah Weinman

  O’Rourke’s El Paso district includes University Medical Center, where Laura Sandoval was held. “At that point you are miles into the United States,” he said, “but she was not able to benefit from Miranda warnings or have an attorney.” O’Rourke’s legislation, called the Border Enforcement Accountability, Oversight, and Community Engagement Act, is cosponsored by Steve Pearce, a Republican congressman from New Mexico—Sandoval is his constituent. It calls for a slew of changes at CBP, including the establishment of an independent ombudsman to investigate complaints, an oversight committee, and subcommittees made up mostly of residents from the northern and southern borders to weigh in on how the agency is conducting itself in their communities. The legislation would also require the US Government Accountability Office to issue a report on CBP’s interior enforcement practices—including at its checkpoints—and their practices’ impact on civil, constitutional, and private-property rights.

  Most importantly, CBP would have to reveal how far into the United States its current activities extend. The agency divides the United States into 20 sectors, and each sector chief has the authority to set up checkpoints anywhere up to the 100-mile limit as long as they sit along a route that ultimately leads to a border crossing. But the chiefs are not required to report where they deploy resources, so the exact boundaries of enforcement are impossible to know.

  O’Rourke’s bill has languished in committee; he hopes that in November, voters in Texas will give him a new mandate to press the issue on the national stage. But he faces an uphill battle. Despite the evidence proving otherwise, CBP officials continue to argue that their interior enforcement efforts are crucial to America’s safety. In 2016, Mark Morgan, then the chief of Border Patrol, defended the use of interior checkpoints before the House Subcommittee on Border & Maritime Security. “The security of the border cannot be achieved by only enforcement activities located at the physical border,” he testified. “Checkpoints greatly enhance our ability to carry out the mission of securing the nation’s borders against terrorists and smugglers of weapons, contraband and unauthorized entrants.”

  SINCE IT HAS THUS FAR PROVED IMPOSSIBLE TO REFORM CBP through political consensus, critics of the agency are increasingly turning to the courts. Over the decades, judges have repeatedly upheld the constitutionality of CBP’s warrantless searches and seizures. In a 1985 case, United States v. Montoya de Hernandez, the Supreme Court ruled that the detention, observed bowel movement, and cavity search of a Colombian woman would be justified if “customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband.” In an earlier case, United States v. Martinez-Fuerte, the justices ruled that CBP could stop anyone at its checkpoints across the country without cause. (These have become known as “suspicionless checkpoints.”)

  But there are some limits. In a 1973 case, Almeida-Sanchez v. United States, the Court found that random stops and searches by agents on patrol—as opposed to those at checkpoints—were unconstitutional. Most recently, a federal judge in Massachusetts rejected the Trump administration’s bid to dismiss a lawsuit filed last year by 11 people who had their laptops and cell phones seized by officers at airports and border crossings around the country. That case will most likely be the next challenge to CBP’s authority to reach the Supreme Court.

  The newest front in the legal battle over the border zone is located in Michigan. CBP considers the Great Lakes a maritime border, which means that all of Michigan lies within the 100-mile border zone, and anyone can be subjected to a warrantless search at any time. Miriam Aukerman, a senior staff attorney at the Michigan chapter of the ACLU, remembers being stunned when she discovered that CBP was operating throughout the state. “This exceptional power was given based on the idea that they patrol the border, not the whole state, which we think is unconstitutional,” she said.

  In 2015, Aukerman started inquiring with CBP to find out more about the scope of their practices in Michigan, but the agency refused to answer any of her questions. “Their position is, ‘We might be operating anywhere in Michigan, but we won’t tell you,’” she said. “The residents of Michigan have the right to know whether they’re going to be subjected to warrantless searches regardless of where they are in the state.”

  Since then, Aukerman has sued CBP for a broad range of information relating to its authority within the 100-mile zone, from citizen complaints to incident reports and policy materials. “We want to know who they’re stopping and where, and we’re really interested in seeing how far from the border it’s happening,” Aukerman said. She expected it would take years before CBP handed over all the documents the ACLU had requested, but her resolve was buoyed by what they’d uncovered so far.

  I visited Aukerman at her office in Grand Rapids. A preacher’s daughter with a wide, earnest expression, Aukerman clicked through a spreadsheet on her computer, showing me the hundreds of pages of CBP apprehension logs they had obtained. Already the data was revealing a troubling pattern, she said. Instead of using its vast resources to protect America’s boundaries from illegal activity and terrorists, as officials so often claim the agency is doing, Border Patrol is stopping American citizens and legal residents far from the border. In Michigan, Aukerman said, Border Patrol often worked in tandem with the police. Traffic stops for speeding or other infractions often lead to inquiries about citizenship status and a call to CBP. Of the people stopped by agents whose immigration status was recorded, nearly one-third were US citizens. Of the people who said they were foreign citizens, only 5 percent had crossed the border in the past 30 days. At least 82 percent of the foreign citizens apprehended were Latino, she said. “There’s a real concern about how this turns into racial profiling.”

  Similar practices had already been uncovered in New York, where CBP has ramped up its interior enforcement over the past decade. In 2011, Families for Freedom, a nonprofit immigrant rights organization, obtained documents through FOIA litigation showing that agents at a single Border Patrol station in Rochester had wrongfully arrested nearly 300 US citizens and legal immigrants during a four-year period. The only way that CBP measured its effectiveness, the group found, was through its apprehension rates. Agents in Buffalo were offered cash bonuses, prizes, and extra vacation time if they boosted their arrest numbers, fostering a dragnet approach to enforcement that targeted people of color.

  Among the documents she had obtained from CBP, Aukerman was disturbed to find a complexion code chart, which categorized skin color on a scale from “white to sallow to olive and black.” The document raises real questions, she said, about what CBP is doing with racial data. “It’s the fact that they’re thinking in those categories at all,” Aukerman said. “Because immigration is really about national origin and what your citizenship is. We’re a very diverse country, and whether or not you are here lawfully doesn’t depend on the color of your skin, but what’s on your paperwork.” (CBP confirmed that complexion is one of several “appearance annotations” that are entered into their system.)

  Ultimately, what Aukerman is fighting for is the geographic data—CBP has refused to turn it over so far—so that she can map where Border Patrol is targeting people, along with their racial background and citizenship status. Aukerman told me that after she gets what she needs from the FOIA lawsuit, she and her colleagues will decide on the next legal step. She would like to see agents’ authority limited to enforcement at the border, as it was before the Second World War.

  But the constant presence of CBP has already had a profound impact on Latino communities in Michigan. Elvira Hernández, Aukerman’s office manager, no longer leaves home without her US passport. Hernández, who is in her 40s, was born in Mexico, but grew up in a small farming community outside Grand Rapids; she became a US citizen in 1995. For many years before taking the job with the ACLU, she assisted seasonal farmworkers in Michigan with legal defense. Because of the heavy profiling by police and immigration enforcement in communities li
ke Grand Rapids, Hernández said, she is afraid that if she were stopped by CBP or ICE, she would be detained until she could prove her citizenship. “I’m brown with dark hair,” Hernández said. “They’re not going to take my word for it.”

  OUTSIDE THE CAFE IN ALBUQUERQUE, THE SUN HAD BEGUN to dip behind the mountains. Sandoval and I had been talking for nearly two hours, and an employee had started stacking chairs around us, preparing to close up. Sandoval pulled her cup of coffee closer and frowned. “I don’t know why this is so difficult for me to get past,” she said. “I’ve become a different person, a reclusive person.” In 2014, University Medical Center agreed to a settlement of $1.1 million for its role in Sandoval’s cavity search. Two years later, CBP settled for $475,000 without admitting guilt. The agreement mandated that CBP personnel in El Paso receive training on searches and Fourth Amendment law to combat abuses. (A CBP spokesperson said that the agency “takes all its responsibilities with training seriously and complied with all provisions in the settlement.”)

  Shortly after the agreement was reached, the ACLU sent out an advisory letter to more than 100 hospitals and medical facilities near the southern border, clarifying that medical personnel cannot be forced to conduct such searches. “While courts may afford somewhat more latitude on searches within border regions, all such searches are still bound by constitutional limits,” the letter read. A spokesperson for University Medical Center said the hospital no longer conducts searches or X-rays for CBP without informed consent or a warrant from a judge.

  Sandoval said she was glad to hear that the hospital had changed its policy, but she still worried that CBP would subject others to similar treatment. She has not been back to Juárez. “It’s not because I’m afraid to go to Mexico,” she told me. “I’m afraid of coming back to my own country.”

  This article was published by the Texas Observer in October 2018, in partnership with Harper’s and the Investigative Fund at the Nation Institute.

  How a Dubious Forensic Science Spread Like a Virus

  By Leora Smith

  The prosecution’s star witness—a forensics specialist named Herbert MacDonell—set out an array of props before the jury: a medicine dropper, a mirror hastily yanked from the wall of the courthouse bathroom, and a vial of his own blood, drawn that day at a nearby hospital.

  It was a strange sight in the 1985 Texas courtroom, and the jurors, the judge, and even the defense attorneys watched, rapt, as MacDonell laid the mirror flat and then climbed up on a chair, holding the vial and dropper.

  MacDonell’s expertise lay in an obscure discipline known as bloodstain-pattern analysis. He claimed he could reconstruct the events of a crime by reading the bloodstains left behind.

  Like a professor performing a classroom demonstration, he dipped the dropper’s tip into the blood and, with a practiced hand, released a single drop onto the mirror. It landed with a muted thud, forming a perfect crimson circle.

  Blood landing on a flat surface should not spatter, MacDonell told the jurors with satisfaction. He let another drop fall onto the white shirt he was wearing. Blood lands differently on fabric, he showed them.

  A defense attorney shot up from his chair in protest. This was a murder trial. There was no mirror at the crime scene. No medicine dropper. The demonstration was not reliable science, he argued. The judge disagreed.

  MacDonell’s testimony would be pivotal to proving the Fort Bend County prosecutor’s theory that 21-year-old Reginald Lewis had murdered his family, shooting his mother and two brothers and setting his father on fire. MacDonell had identified dozens of minuscule blood spots on Lewis’s clothing, and he said they placed Lewis at the scene during the crime.

  The jurors gave Lewis four 99-year sentences.

  “MacDonell kind of took over the courtroom,” Lewis’s attorney, Donald Bankston, recalled, his disbelief still fresh. “It was almost like having Mr. Wizard.”

  But MacDonell’s testimony that day did more than mesmerize the jury. It gave bloodstain-pattern analysis its first toehold of legitimacy in Texas courts, spreading it quietly, but surely, further into the justice system.

  Two years later, Texas’s First Court of Appeals ordered a retrial because of evidentiary flaws (two retrials ended in hung juries), but it expressly rejected Lewis’s argument that bloodstain-pattern analysis was a “novel technique” that should never have been admitted and was not “scientifically recognized” or reliable.

  “MacDonell’s studies are based on general principles of physics, chemistry, biology, and mathematics, and his methods use tools as widely recognized as the microscope; his techniques are neither untested nor unreliable,” Judge James F. Warren wrote for the court. To support his decision, Warren cited four other states—Tennessee, California, Illinois, and Maine—that had already affirmed bloodstain-pattern analysis’s use at trial. Two of those states had based their decisions on court testimony by MacDonell.

  Warren’s hearty defense of MacDonell and his methods percolated through Texas’s courts, reassuring hundreds of the state’s judges that bloodstain-pattern analysis was reliable enough to be admitted at trial. They would allow it, again and again.

  Over time, a parade of spatter experts, often trained by MacDonell—or by someone he trained—dazzled juries across the country with their promise of scientific surety, often tying bows of certainty on circumstantial evidence. Judges in Minnesota, Idaho, and Michigan would rely on the Texas court’s decision when deciding to admit blood spatter in their own states in the 1990s. Those decisions, in turn, would be relied upon by other states.

  Blood-spatter testimony spread through courtrooms across the country like a superbug.

  Its path—the steady case-by-case, decision-by-decision acceptance of a new forensic science by the justice system—is one that’s rarely, if ever, been retraced. But it reveals the startling vulnerability of judges, and juries, to forensics techniques, both before and after they’ve been debunked.

  Although the reliability of blood-spatter analysis was never proven or quantified, its steady admission by courts rarely wavered, even as the technique, along with other forensic sciences, began facing increasing scrutiny.

  In 2009, a watershed report commissioned by the National Academy of Sciences cast doubt on the whole discipline, finding that “the uncertainties associated with bloodstain pattern analysis are enormous,” and that experts’ opinions were generally “more subjective than scientific.”

  Still, judges continued allowing spatter experts to testify.

  Subsequent research, funded by the Department of Justice, raised questions about experts’ methods and conclusions. But little changed.

  All along, attorneys like Bankston continued challenging the admission of bloodstain-pattern analysis. But they came to learn that a forensic discipline, once unleashed in the system, cannot easily be recalled.

  [ THE BIRTHPLACE OF BLOOD SPATTER ]

  About a four-hour drive northwest of New York City, down a quiet winding road, a house with bright red siding peeks through the trees, nondescript except for its fitting hue. At first glance, the home is typical. A side door opens into an overstuffed kitchen, where a stairwell descends to the lower level.

  Down those steep stairs, in a sprawling warren of rooms, forensic history was launched more than a half century ago.

  Modern American blood-spatter analysis didn’t originate in a federal crime laboratory or an academic research center. It started in Corning, New York, in MacDonell’s basement. Decades before blood-spatter analysis gained fame in TV series like CSI: Crime Scene Investigation or Dexter, MacDonell spent countless hours in his home laboratory, incubating and refining the technique.

  Then he spent a lifetime helping it spread.

  MacDonell built his first basement laboratory in 1935, when he was seven, setting up some test tubes on a marble slab by the furnace in his childhood home.

  But it wasn’t until the 1950s, when he was pursuing a graduate degree focusing on analytical chemistr
y, that he got a firsthand taste of real forensics while working in a Rhode Island state crime laboratory. After graduating, MacDonell took a stable job as a chemist for the local corporate giant Corning Glass Works, best known for its CorningWare casserole dishes. But in his off hours, he taught forensics at a nearby community college and began moonlighting as a consultant.

  In 1968, the focus of MacDonell’s career began to narrow when he testified for a defendant in a New York murder trial. Steven Shaff, a veterinarian, had shot a former employee but claimed it was an accident. The prosecution said the man was sitting in his car when Shaff shot him. Shaff said the victim had thrown open the car door and knocked the muzzle of Shaff’s gun, discharging it accidentally.

  When MacDonell studied the crime scene, he found blood spattered along the inside edge of the car door—an area only exposed when the door was open. It was proof, MacDonell testified, that Shaff’s story was true. The jury still found Shaff guilty of manslaughter. MacDonell was disappointed, but the case was a revelation: he could decipher a crime through blood left behind—and it whetted his appetite for more.

  A year later, MacDonell successfully applied for a Department of Justice grant to continue his study of bloodstains. In 1971, the DOJ published his findings in a report titled “Flight Characteristics and Stain Patterns of Human Blood.” It would come to be known as the founding text of modern American bloodstain-pattern analysis, and its author the preeminent expert.

  MacDonell described blood spatters as a long-overlooked well of information. With a trained eye and a “natural scientific attitude,” he believed, investigators could analyze bloodstains at crime scenes to determine critical evidence such as where the victim was standing during the bloodshed and the kinds of blows—punches, shots, stabbings—inflicted. He documented his work in pages and pages of photographs of blood spattering on different surfaces: neat circles on a plastic wall tile, sprawling splotches on a kitchen towel.