Unspeakable Acts

by Sarah Weinman

  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.”

  Attinger freely admitted that his years of work have had little impact on practices of blood-spatter experts at crime scenes. “I would say there’s been no change,” he said. But he saw no reason for law enforcement to hit pause until techniques improve.

  “I have trust in the US justice system,” he said. The technique’s limitations, he said, “are known by both the prosecution, the defense and, hopefully, the judge.”

  Attinger now appears to be a part of the very industry he was hired to scrutinize.

  In 2015, he co-taught an advanced bloodstain-pattern analysis course to members of the Las Vegas Metropolitan Police Department. His partner was Craig Moore, the retired officer who coauthored his first blood-spatter article. Attinger taught an introduction to ballistics and the fluid dynamics of bloodstain-pattern analysis, while Moore taught the practical application of the discipline. “An advanced class is designed for a person who will be testifying in court,” Moore said. Attinger said he had “no opinion” as to whether the students were qualified to act as expert witnesses after completing the course.

  He is also a dues-paying member of IABPA. In June, Attinger spoke at the first South American IABPA conference. “A whole continent is eager to do #forensics with bloodstain patterns,” he tweeted afterward. “Go for it!”

  One month later, Attinger settled a lawsuit with Iowa State University, whom he had sued after student complaints about verbally abusive conduct led to an internal investigation and sanctions against him. He claimed the process violated school policy and his constitutional rights. Attinger denied the allegations, saying he is “very articulate and honest in the feedback” he provides to students. “Some people do not like to receive honest feedback and not everyone is called to be a researcher.”

  The settlement allowed Attinger to remain at Iowa State and work full-time on research and related activities, but only until 2021, when a current grant expires.

  Today, Attinger talks a lot about his new idea: he’d like to develop a computerized, handheld device that analysts could use to read bloodstains at crime scenes—even if they didn’t understand the complex science behind them.

  Ristenbatt said the justice system would be better served by more educated investigators who could grasp the limitations of different forensic techniques. Ristenbatt also used to teach introductory blood-spatter courses, but said he stopped when he realized his students were holding themselves out as experts. “The easiest way to control it is not to do it anymore,” he said.

  In 2016, the Texas Forensic Science Commission—a state panel consisting of seven scientists, one prosecutor, and one defense attorney—opened an inquiry into two cases that turned on bloodstain-pattern analysis. At the center of one is Joe Bryan, a beloved high school principal who has been in prison for 31 years over the killing of his wife. The bloodstain-pattern analyst in that case, a local police officer who took a 40-hour class with one of MacDonell’s former students, recently acknowledged that his conclusions were wrong.

  Ristenbatt gave an impassioned speech to the commission, calling for
mandatory educational requirements for analysts, including a four-year degree in natural or forensic science. In February, the commission announced it would require accreditation for all bloodstain-pattern analysts testifying in court starting in May 2019. Commission decisions only affect Texas courts, but have influence across the country.

  In the meantime, experts in the old methods—the ones that got their start all those years ago in Corning—keep testifying.

  “I think if you were to do a study,” Ristenbatt said in an email, “of all the people who call themselves bloodstain-pattern experts and you looked at the genealogy, if you will, of how they’ve obtained their training, it’ll all likely come back to Herb MacDonell through some means.”

  [ “I AM VERY SATISFIED.” ]

  MacDonell still lives in the big red house in Corning. He is 90 and uses a stair lift to descend to his laboratory. It takes, he said with characteristic precision, exactly 31 seconds to reach the last step.

  The stairs lead to a long hallway lined, floor to ceiling, with fading photographs of MacDonell’s students, their changing hairstyles and glasses a vivid timeline of his decades of teaching.

  The laboratory now has the fluorescent-lit feel of a high school chemistry classroom. The rows of bottles, still there, are covered in layers of dust. The whole room has a yellowed tint to it, like stepping into one of the old photographs on the wall.

  Behind the lab, in a large office, MacDonell carefully catalogs his legacy. A thick book details every student who attended a Bloodstain Evidence Institute. A glass display case showcases mementos from police departments across the country. Stacks of VHS tapes chronicle courtroom triumphs and TV appearances.

  Today, MacDonell’s demeanor is much the same as it was in his earliest videos. He is confident, sometimes curt. Little gets under his skin as much as people who refer to his field as “blood splatter” instead of “blood spatter,” a phrase he said he coined (“Splatter is splash. Spatter is not splash,” he said). He is keenly aware of his impact.

  “Overall,” MacDonell said, “I am very satisfied with my life’s accomplishments and have few regrets.”

  When asked to pinpoint the proudest moment of his long career, MacDonell’s answer comes easily: Susie Mowbray’s exoneration. Mowbray was imprisoned for nine years over the killing of her husband. At her retrial, MacDonell used blood spatters to reconstruct the crime, testifying her husband’s death was a suicide and discrediting the expert who testified for the prosecution at her first trial. The expert was MacDonell’s former student.

  MacDonell has testified against his own students numerous times. Asked recently whether he ever considered changing his course structure, or certification process, after seeing students give faulty testimony, MacDonell answered in the negative. “You can’t control someone else’s thinking,” he said. “The only thing you can do is go in and testify to the contrary.”

  Leave it to the lawyers to cross-examine, to the trial judges to exclude, to the appellate judges to overturn.

  According to MacDonell, this June marked 50 years since he first testified about blood-spatter analysis. To honor the occasion, he planned to pour himself a glass of single-malt scotch and toast Shaff, the client whose case unleashed modern American bloodstain-pattern analysis on the world. Sitting in a home maintained as a shrine to his accomplishments, MacDonell could rest assured his legacy would be protected in the courts for years to come.

  Herbert MacDonell died on April 11, 2019, five months after this story was originally published by ProPublica in December 2018.

  “I Am a Girl Now,” Sage Smith Wrote. Then She Went Missing.

  By Emma Copley Eisenberg

  On the late afternoon of November 20, 2012, just a few weeks shy of her 20th birthday, Sage Smith stepped out of the neon pink–walled apartment in Charlottesville, Virginia, she shared with two friends. After a tough and tumbling childhood, things finally seemed to be falling into place: She had moved out of her grandmother’s house, was taking classes, had just reconciled with her dad. And she had just started openly identifying as a transgender woman.

  At night and on the weekends, Sage and her roommates gussied up and went out to dance at Charlottesville’s only queer club or to the strip of bars near the University of Virginia. Her friend Shakira had started taking estrogen injections, and Sage wanted to start, too. Sage changed her gender on Facebook to “female.” “I am a girl now #Respect it,” she wrote to a friend on Facebook on November 9, 2012, and to a family member on November 18: “Look I am transitioning and I am your niece.”

  Sage walked toward the 500 block of Main Street. She stopped to talk to a friend and told them she was going to meet a man. She didn’t come home that night, nor the next morning, nor the day after that.

  Sage has been missing for more than four years and is now considered murdered, but the Charlottesville Police Department says they’re no closer to knowing what happened to her—or if they have any new information, they’re not sharing it. The prime suspect was the man she was supposed to meet, who skipped town just days after Sage’s disappearance, before police could interview him in person.

  After years of trying to locate him, police suddenly cleared him of suspicion in 2015, only to change their minds again. The CPD says it has aggressively pursued the case, which has been difficult, and if people have information they haven’t shared it with police. A new police chief took office last year and he promises the case is getting a fresh look—but if anything new has come to light, Sage’s friends and family certainly don’t know it.

  “There’s a bigger issue there,” said Lieutenant James Mooney, the detective who’s stayed with the case the longest, and who blames the lethargic pace of the case on the fact that Sage was black and trans and poor. “Only a very small fraction of our community has taken interest in Sage.”

  Sage was memorable, and stories about her abound. Like how she ended up doing a Vogue-style shoot with a UVA student on the Route 7 bus. Like how she once helped carry an old man’s groceries to his car while wearing a miniskirt and three-inch heels. Like how every clubgoer leaned closer when Sage spoke, as if they were campers pulled to a fire, according to Jason Elliott, Mr. Pride of America. But Sage’s family and friends say, unlike those afforded to missing white girls, the investigation into her disappearance was slow, slapdash, and followed a zigzagging logic that makes little sense to anyone. And they’re in search of a better story.

  THE UNIVERSITY OF VIRGINIA IN CHARLOTTESVILLE WAS built by the enslaved and worships Thomas Jefferson, a pragmatic and brutal slave owner. Charlottesville’s public schools closed for five months in 1958 rather than comply with the federal order to desegregate. In the mid-1960s, a middle-class black neighborhood called Vinegar Hill was razed—under the guise of “urban renewal”—because of its proximity to downtown, which developed into a commercial corridor that would put the city on the map for education, culture, and tourism. What were once black-owned homes are now a major roadway, hotel, and Staples that border a brick-paved pedestrian shopping mall.

  These days, Charlottesville can claim the titles of one of the top 10 best American cities for book lovers and the “happiest city in America.” But happy for whom? This past May, a crowd led by noted white nationalist and UVA alum Richard Spencer gathered in Charlottesville’s Lee Park to protest the removal of a statue of the park’s namesake, chanting, “You will not replace us.”

  Home values and rents are high, but the number of affordable housing units is low. The median income in Charlottesville is about $50,000 a year, yet nearly a third of its residents do not earn a wage that allows them to pay for food, clothing, housing, and transportation. Just 20 percent of Charlottesville’s population is black, but they make up 80 percent of those stopped and frisked by police. Just 6 percent of UVA students are black, yet people of color make up the vast majority of staff in UVA’s on-campus cafes and cafeterias.

  In 2011, the author of a report on poverty put it plainly: “When you look
in the middle of the city of Charlottesville, you see a big orange dot, and that’s where all the poor people live.”

  Sage grew up in that orange dot, raised from the age of three by her grandmother, Miss Cookie, in her apartment in what was then called Garrett Square, an affordable housing complex. Miss Cookie was a dedicated parent and a prominent community figure, serving on the tenants’ association board and resident patrol.

  When Sage was 12, a wrought-iron fence went up that made the complex residents feel like prisoners, so Miss Cookie moved Sage to a house in Charlottesville’s Fifeville neighborhood. That’s when they met Shakira Washington, who lived two doors down, and who would soon call Miss Cookie “grandma,” too.

  “[Sage and I] got into an altercation,” Shakira said. “Our families came out of the house and stopped it. We were together every day after that.” Shakira is trans and was already asking her middle school teachers to use female pronouns.

  One day, Sage came to Miss Cookie and said there was something she needed to confess—then asked Miss Cookie not to be mad.

  “And she said, ‘Grandma, I’m gay.’ And I said, ‘You aren’t telling me anything that I don’t already know.’” They sat there hugging for a long time.

  Although she often struggled in school, Sage became the first in her family to graduate high school. She took cosmetology classes, braided out of her home, and swept hair at a salon. Foster care—where she had been since Miss Cookie returned her to her mother, who was subsequently deemed unfit—paid for her to have her own apartment, so she asked Shakira and another childhood friend, named Aubrey Carson, if they would move in and share it with her.

  Sometimes they went to parties that catered to men on the down low. They also hosted parties at the apartment on Harris Street and invited men and other friends over. They had a tight friend crew that also included Aubrey and three women named Alexis, Tiffany, and Chelsea. Sometimes they hooked up for fun, other times for money. The guys they met came from all walks of life; many of them were married. If either Sage or Shakira was going to hook up, they would text the other. One time, Shakira recalls, a UVA professor arranged for her to come over to his house in a fancy neighborhood and when the man left the room, she heard a knock on the window. It was Sage, outside in the bushes, watching her to make sure she was okay.