Unspeakable Acts

by Sarah Weinman

  In his report, MacDonell openly acknowledged the accuracy of his methods could not be quantified. “Final conclusions should be considered from the legal viewpoint of ‘proof within a reasonable scientific certainty,’” he wrote in the introduction. “Little attempt has been made to express data in this report in a statistical manner.”

  The uncertainty did not slow his momentum.

  Propelled by the report’s publication, MacDonell traveled to conferences and industry meetings presenting his research. He piqued the interest of prosecutors, defense attorneys, and police officers, who heard him, then hired him. Satisfied customers spread the word of his unnerving but seemingly useful techniques.

  Soon MacDonell quit Corning Glass Works to work full-time as an instructor and forensic expert for hire. He branded his unaccredited basement lab with an impressive title, “The Laboratory of Forensic Science,” and named himself its director. In time, MacDonell would testify and publish books and articles using this official-sounding moniker. Few realized the limited scale of the operation.

  A grainy VHS recording of a 1980s TV appearance showed MacDonell in a pristine white lab coat speaking with casual confidence about his grisly specialty. “Herbert MacDonell says he doesn’t work at home,” a local TV reporter said, “but rather lives where he works.”

  The cameras captured charts covering the laboratory walls and a battery of expensive-looking scientific equipment resting on white countertops. A sign reading EVIDENCE DO NOT REMOVE mostly obscured a pair of shoes in an open cardboard box. Differently shaped and sized bottles of chemicals filled the shelves along with a tiny, humanlike skull.

  In 1973, the Mississippi office of a DOJ-funded agency invited him to Jackson to spend a week teaching police officers how to analyze bloodstain patterns. MacDonell quickly realized police departments liked having their own in-house experts. “I must’ve got good reviews,” MacDonell recently recalled, “because they kept asking me, ‘Would I teach this for them?’”

  He began crisscrossing the country teaching 40-hour “Bloodstain Evidence Institutes” to groups of mostly law enforcement officers who trekked from small towns like Estherville, Iowa; Gulfport, Mississippi; Appleton, Wisconsin; and Sanford, Florida, to attend his courses. Although MacDonell would emphasize his own scientific education when acting as an expert witness, his advertisements assured students there were “no minimum educational requirements to be accepted into the class.”

  By 1982, MacDonell had taught 19 institutes in eight states (Mississippi, New York, Florida, Alabama, Indiana, Illinois, Louisiana, and Colorado), turning out scores of newly minted blood-spatter experts. He also gave single-day seminars in Germany, Italy, England, Switzerland, and Canada.

  At the end of each course, MacDonell administered an exam, handing out certificates to students who passed. He would eventually teach for 38 years and recalled only five students who failed.

  Then he expanded his offerings. He began teaching advanced courses to students who had already passed his basic course. Graduates of his first advanced class formed a new professional society—the International Association of Bloodstain Pattern Analysts—in 1983. The following year, IABPA published the first issue of the Journal of Bloodstain Pattern Analysis. MacDonell was named IABPA’s sole “distinguished member” in honor of his contributions.

  In the span of about a decade, MacDonell had created an industry in which he became the reigning expert.

  [ A GROWING FAME IN COURTROOMS ]

  As he forged legions of bloodstain-pattern experts, MacDonell’s star continued to rise. A steady stream of cases poured into the Laboratory of Forensic Science. With his help, a savant-like mythos developed around him.

  In 1987, Corning’s local ABC news affiliate ran a three-part series about MacDonell. “Herbert MacDonell,” the first episode began, “has been described as an American Scotland Yard, all by himself.” It was a line straight from the back cover of The Evidence Never Lies: The Casebook of a Modern Sherlock Holmes, a highly flattering book MacDonell coauthored about himself. Interviewers and attorneys often compared him to Holmes. MacDonell happily leaned into the image, adopting a curved pipe and deerstalker hat for the cover of a self-published book.

  Old courtroom footage, collected on VHS tapes by MacDonell, documented the deference he was shown. At a coroner’s inquest, a coroner introduced MacDonell’s testimony by waving one of his books before the jury and saying, “We have not called another expert of your caliber because we don’t have another expert of your caliber that we know of.” The coroner provided autographed copies of MacDonell’s book as a “nice memento” for each juror.

  Over time, MacDonell was called to testify in increasingly high-profile cases.

  During the hugely publicized 1981 trial of Jean Harris, a private-school headmistress accused of killing her ex-lover, “Scarsdale Diet” creator Herman Tarnower, MacDonell provided dramatic testimony for the defense. Holding Tarnower’s spattered bedsheets up before the jury, he explained the choreography of Tarnower’s death from the blood left behind. Harris was, nevertheless, convicted.

  In 1994, O.J. Simpson’s defense team hired MacDonell, in part to demonstrate that the notorious glove found at the murder scene did not shrink after being soaked in blood, a theory the prosecution suggested to explain its ill fit on Simpson’s hand. On the stand, MacDonell recounted how he’d placed an identical glove on a photocopier to record its size, then saturated it in blood drawn from his own arm. When the blood dried, he measured it again. The glove, he said, holding up ghoulish pictures for the jurors, had hardly shrunk at all.

  Lead prosecutor Marcia Clark cross-examined MacDonell for three days about the glove and his other testimony. She questioned the scientific rigor of his methods, suggesting he had inflated his résumé. Yet even these aspersions, cast on national TV, did not slow the acceptance of bloodstain-pattern analysis.

  Along the way, MacDonell’s reputation for eccentricity also grew. In his books, he described shooting dogs to record the resulting spatter and drenching a female student’s hair in human blood then having her shake it around to photograph the patterns. For decades, MacDonell collected his own fingernail clippings, preserving and pressing them between glass slides to study their striations, developing expertise in a field he called “fingernail identification.”

  These macabre experiments only added to his intrigue.

  “He’s the kind of guy that likes to have an audience,” recalled Martin A. Sells, a former DA in Columbia County, Oregon, whose testimonial once appeared on advertisements for MacDonell’s institutes. “He likes impressing you. But I never had a single doubt in my mind that he knew what he was talking about.”

  Judges, too, were impressed. They regularly allowed MacDonell to testify in their courtrooms, based on his expertise and the industry he himself had built.

  Eventually, defense attorneys began appealing convictions that relied in part on MacDonell’s testimony. They argued that MacDonell and his field were unscientific. But appellate judges almost never agreed. Again and again, they affirmed MacDonell’s right to testify as an expert. “His background and experience were formidable,” the Supreme Court of Tennessee wrote in 1982.

  In time, MacDonell’s students, many of whom only had 40 hours of training, started testifying as experts, too. Then the students of his students. They modeled their testimony after his. They invoked MacDonell’s name as evidence of their expertise. They borrowed his phrases, his descriptions, his experiments, to support their analysis. Judges borrowed the reasoning of other judges who had admitted MacDonell when they ruled to admit his students.

  In this way, over time, MacDonell’s testimony laid the legal bedrock for a field whose roots hardly reached farther than the lower level of his home.

  [ WINNING OVER JUDGES ]

  For a new forensic discipline to grab hold, it needs to get past the court system’s gatekeepers: the judges.

  Trial judges can refuse to hear evidence they deem unrelia
ble. At the appellate level, judges review decisions made at trial and can deem an individual expert unqualified or label a whole field unreliable, banishing it from trial courts below.

  Around the turn of the last century, judges rejected precursors to modern bloodstain-pattern analysts. Mississippi’s Supreme Court and the California Court of Appeal both affirmed decisions to exclude blood-spatter experts—in 1880 and 1927, respectively—on the grounds that their analysis added nothing to the jury’s own common-sense inferences.

  But courtroom attitudes shifted as MacDonell’s brand of expertise seeped in.

  In 1957, California’s Supreme Court accepted blood-spatter testimony from Paul Kirk, a man MacDonell cited as an inspiration. Kirk, a professor of biochemistry and criminalistics at the University of California, Berkeley, had worked on the Manhattan Project and was an early practitioner of bloodstain-pattern analysis. The court wrote that Kirk’s “inferences required knowledge and experience beyond those of ordinary jurors.”

  Kirk became the technique’s first flag-bearer. Nine years later, he would use blood-spatter analysis to help exonerate Sam Sheppard, a doctor who had been convicted of killing his wife in a trial so aggressively covered by the news media that the US Supreme Court condemned the “virulent publicity” surrounding it. That same year, the Alaska Supreme Court accepted bloodstain-pattern analysis.

  Then came a lull. Kirk died a few years after the Sheppard trial. Appellate courts mostly stopped talking about bloodstain-pattern analysis. Then MacDonell came along.

  In 1980, Iowa’s Supreme Court became the first to review MacDonell’s testimony. The judges didn’t examine the accuracy of his technique. Instead, they cited his “status as the leading expert in the field.” Finding his testimony reliable, they noted MacDonell’s discipline had “national training programs”; “national and state organizations for experts in the field”; “the holding of annual seminars”; and “the existence of specialized publications.”

  With seals of approval from some of the country’s highest courts, bloodstain-pattern analysis continued its spread.

  It moved east, gaining acceptance in an Ohio court of appeals, where both the defense and prosecution presented blood-spatter experts. Then south, as Tennessee’s highest court affirmed a trial judge’s decision to admit MacDonell as an expert. “Mr. MacDonell’s testimony was clear, understandable, and accompanied by demonstrations to the jury,” the court wrote. “He obviously knew whereof he spoke.”

  MacDonell’s students carried the technique west to Oklahoma and Illinois. When a defendant argued a police officer who studied with MacDonell did not have a sufficient understanding of science to testify as an expert, an appeals court in Illinois responded, “We again reject the defendant’s argument that this area of expertise requires substantial training in physics.”

  In Minnesota, a court affirmed expert testimony that bloodstains could reveal whether a victim was crouching or standing; in Idaho, that the stains showed a victim was walking away when shot.

  After a while, some judges facing the issue for the first time simply cited the decisions of their counterparts in other states.

  Acceptance of bloodstain-pattern analysis became almost inevitable.

  Throughout, a handful of judges expressed concern. In 1980, Judge Mark McCormick of Iowa’s Supreme Court singled out MacDonell in writing. “I am unable to agree,” he wrote, “that reliability of a novel scientific technique can be established solely on the basis of the success of its leading proponent in peddling his wares to consumers.”

  Judge Stephen Bistline of Idaho’s Supreme Court, in a vehement dissent in 1991, wrote: “The danger presented by expert testimony interpreting blood-spatter evidence is that the prosecution is provided with an expert who appears to be able to reconstruct precisely what happened by looking at the blood left at the scene of a crime. However, a quick review of the ‘science’ relied upon by the expert suggests that we would be better off proving guilt beyond a reasonable doubt without the help of such experts.”

  But the skeptics’ dissents and uneasiness could not contain the spread.

  By 2004, a Texas court of appeals wrote: “Have any courts held blood-spatter analysis to be invalid? The short answer is no.”

  Over time, growing layers of legal precedent protected bloodstain-pattern analysis, allowing it to flourish unhindered.

  Attorneys on both sides began presenting competing experts, assured they would be admitted. Some forensic scientists grew concerned by the number of police officers qualifying as experts based on a mere 40 hours of formal training.

  MacDonell deflected responsibility in one of his books. “The fault for permitting such individuals to testify as an expert must rest with the opposing attorney,” he wrote, adding that “a judge should be able to recognize unqualified charlatans.”

  MacDonell ran his last Bloodstain Evidence Institute in 2011. By then, he had taught 75 workshops and over 1,000 students. Some of them replicated his business model, running 40-hour workshops of their own. This new wave of blood-spatter entrepreneurs established fiefs in different corners of the country, advertising their services through the IABPA.

  In 2012, MacDonell, then 84, retired. That same year, two girls alleged he had sexually abused them when they were 11 and 16. One said the abuse occurred while she was a student at a summer forensics program taught in his home. MacDonell was charged in Corning town court with forcible touching, two counts of endangering the welfare of a child, exposure of a person, and aggravated harassment in the second degree. He pleaded guilty to the harassment and the remaining charges were dropped. MacDonell said recently that he’d done nothing wrong and pled to the charges on “the bad advice of my attorney.”

  Afterward, no lawyer could reasonably present MacDonell at trial as he was too easy to undermine on the witness stand. His career as an expert witness was over.

  But by that time, the field hardly noticed his absence. Others, many members of law enforcement who’d gotten their start as MacDonell’s students, had taken his place at the forefront of the discipline. And while the technique’s earliest experts, MacDonell and Kirk, had impressed judges with their extensive scientific backgrounds, many of the new wave of experts had little to no scientific education at all.

  [ A TECHNIQUE PUTS DOWN TENACIOUS ROOTS ]

  In 2006, federal judge Nancy Gertner handed down a sentence that still haunts her.

  A jury in her courtroom convicted a man named James Hebshie of burning down his convenience store to fraudulently collect insurance money. Gertner thought the prosecution’s most damning piece of evidence—that a state trooper’s accelerant-sniffing dog identified where Hebshie started the fire—was bogus. But Hebshie’s defense attorney never objected, even when Gertner interjected three times, offering him the chance.

  Without arguments before her, Gertner could not exclude the evidence. The mandatory minimum sentence was 15 years, and she had to impose it. “I was appalled,” she said.

  Before her 1994 appointment to the bench, Gertner worked for years as a defense attorney, scrutinizing and challenging forensic evidence presented against her clients. She later taught law students about the risks of forensics as a professor of evidence at Boston College Law School. But as a judge, she realized cases like Hebshie’s could render her powerless.

  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 pa
d, 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.”