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July 13, 2021
Pod Save The People
Explore the Options (with Brandon L. Garrett)

In This Episode

DeRay, Kaya, Sam, and De’Ara cover the underreported news of the week, including spelling bees, Afghanistan, California jails, and vaccination marketing. DeRay interviews law professor Brandon L. Garrett about his book “Autopsy of a Crime Lab: Exposing the Flaws in Forensics.”

Transcript:

DERAY MCKESSON: Hey, this is DeRay in Pod Save the People. In this episode it’s me, Sam, Kaya, and De’Ara as usual talking about the news that you don’t know from the past week. And then I sit down with Professor Brandon Garrett, who’s at Duke University School of Law. I learned so much about forensic. His book Autopsy of a Crime Lab: Exposing the Flaws in Forensics, will blow your mind, you must read it. I could talk to him for hours, he is truly changed the way I think about so much, here we go.

My advice for this week is rooted in an experience we had, I had to make a decision in the organizing work that I do. And people often talk about trusting your gut, but what they don’t remind you is that part of it is also to explore all the options, to make sure you talk things.

We had a decision to make about a path forward and we talked it through, we thought it through as a team, it was a heated discussion, but we were able to have our ideas be in conflict without us being in conflict. And the decision that we rested on was the right decision in the end, but it didn’t look right in the moment, there were a couple things that look like they could have been past forward and that’s often how it is, but make sure you talk it out, make sure you think through the options.

And we rested in a place that was, oh my gut, that we should but I wanted to make sure that there wasn’t something that I was missing. So make sure you think it out, also trust your gut, here we go.

KAYA HENDERSON: Hello, hello, Pod Save the People family. We’re excited for another episode, my name is Kaya Henderson, @HendersonKaya on Twitter.

SAM SINYANGWE: And I’m Sam Sinyangwe, @samsway on Twitter.

DE’ARA BALENGER: This is De’Ara, @DeAraBalenger on Twitter.

KAYA HENDERSON: This week a lot of stuff is happening around, the Billionaire Space Race with Elon Musk, Jeff Bezos, and the Sir. Richard Branson, competing. I guess they’re not competing anymore, right? Because Sir. Richard has won, and that he’s the first person to propel himself into space on something or another, right? He’s the first one to go on the tourist flight to space, right?

DERAY MCKESSON: Yep first tourist flight to space.

KAYA HENDERSON: There’s been a lot of conversation about this Billionaire Space Race, and so I was wondering what you folks think about it?

SAM SINYANGWE: It is wild to me to see these billionaires spending obscene amounts of money, hundreds of millions of dollars, billions of dollars, investing it with the singular goal of putting themselves in space, that is the thing, right? They want to be the first to space, apparently Richard Branson is now the first to space. And they want to make private space travel a thing, right? And to me it is–

First of all nobody should have billions of dollars in the first place to waste it all on just putting themselves in space for some small amount of time, right? Usually they’re in space for a few seconds, a few minutes here and there and that’s it, right? All of this investment and putting yourself into space for that small amount of time so you float around and laugh for a bit and go back down to Earth. And that money could have been spent in so many different ways, it could have helped so many different people, so that’s wow to me.

The other piece is, the premise of it seems to be off base as well because there is this notion that they are pioneers in space travel and that because of the advancements that they are making and the investments that they’re making, it’s going to pave the way for ordinary people like you and I to go into space too and have a colony on the moon, or go to Mars like looks like they’re in vision, right?

But the reality is those places are not fun places to be on, I don’t care how advanced or how much money you have, right? You saw the Martian? One small thing, one cut in the space suit and you’re gone, right? You go outside, you can’t eat anything but like frozen or dried food.

KAYA HENDERSON: Sam, you don’t really go to space, huh?

SAM SINYANGWE: It sounds like the worst experience to me that’s what they’re paying for. Like best case scenario you survive, that’s the best case scenario and barely. So I don’t know what the hype is all about in terms of that small bit of time, it’s all about the cloud to say, I went to space, and nobody should have that amount of money to invest that much in that.

DERAY MCKESSON: It’s sort of wow, 600 people have reserved $250,000 tickets to go to space with Virgin, including Tom Hanks, DiCaprio, Beiber, and Lady Gaga. And I bring up lady Gaga, because I learned today that five years ago, Branson and Virgin they were going to shoot lady Gaga into space and it was supposedly this whole thing, she trained for it, and it didn’t happen because the test flight crashed, so here we are again.

Like you said Sam, the best case scenario, you’re going to go up and see the moon and then turn back around, but the margin for error here is high. And I even think about the space shuttles that take off with NASA and the other governments, they aren’t even 100%. We’ve all watched one of those things tank and you’re like, “Oh, this isn’t good.” So this just makes me nervous but it is like what a phenomenal example in the middle of a climate crisis and all this other stuff happening that you just think, “Should be into space?”

Of all the lists of people I’ve seen, I haven’t seen a single black person on any of this lists, not a single black person’s name on none of this lists. So I can’t wait to see who is the first black person, I was like, ” Should in the space.” We got enough drama–

KAYA HENDERSON: Right here on earth.

DERAY MCKESSON: Joy riding in space is just not it.

KAYA HENDERSON: Speaking of celebrities, Lance Bass, the former NSYNC singer, was supposed to go flat to the International Space Station, but in fact he’s gotten kicked off the flight because they didn’t raise the $20 million that the Russians were charging for the trip, so they kicked him out of the thing. He was supposed to be doing a reality show and whatnot.

To Sam’s point, this is an obscene amount of money, it really is. While there’s a whole lot of ego and silliness involved. But this actually ushers in a new era in terms of trying to help find resources that will help us with climate change. There are some benefits to this, right? Besides people just going to space for a weekend vacation, right? This will enable more scientists, more researchers, to do experiments and to have more access to potential resources that can help us with issues like global warming. But for now we’re not talking about that, all we’re talking about is the three rich boys and who’s going to get there first.

SAM SINYANGWE: I didn’t see any scientist on that flight. No scientists, no experiments were performed, none of that additional value for a human kind was generated.

KAYA HENDERSON: I’m just trying to help the people out a little bit.

SAM SINYANGWE: You really did. I was like, “Did I read announce it correctly?” You really–

DERAY MCKESSON: You had a try on that, honestly.

KAYA HENDERSON: I did, come on.

DERAY MCKESSON: And it does look like there’s a person of color there.

SAM SINYANGWE: You never know with these photos. Again, like I said, I’ve not seen a single black person sign up for the space flights and that is not a surprise.

KAYA HENDERSON: There’s this quote from a historian, a space historian and he says, “The United States has a tremendous tradition of people taking their money and doing really inventive interesting things with it,” and I really support that. But as a historian I always try to put these things into perspective and I think, “Well, it’s great that people have spent a ton of money to do something that NASA did in 1961.”

SAM SINYANGWE: The last thing on this before we go into the news it is that wild, there is this idea that humans will one day colonize the moon and Mars, and it’ll be this great place, but climate change is getting so bad here and it is, right? But the worst case scenario for the Earth is that it becomes the moon or Mars, that’s literally if we do the worst, if we messed everything up it will be like as bad as the moon or Mars, so the whole premise is off, I don’t get it.

DERAY MCKESSON: It is like, should we really be supporting colonization again? Been there, done that.

[INTERPOSING VOICES]

Right. It didn’t work out for us, no need to take it to another planet, maybe why people should not be the people leading the expeditions, been there, done that, maybe we should figure out something new.

SAM SINYANGWE: We saw avatar.

DERAY MCKESSON: Right.

SAM SINYANGWE: So my news is actually back down to Earth focused on the war in Afghanistan, which is still happening. So it’s been about 20 years now since 9/11, almost 20 years and the war in Afghanistan has been ongoing, the longest war in US history. And the Biden administration has announced that by August 31, they intend to end the war in Afghanistan, formally declare the war over and they won’t say mission accomplished but they’re saying the objective has been realized.

So that is big news, right? We often don’t hear about or don’t even talk about what’s going on in the Middle East, what’s going on in Afghanistan, what’s going on in Iraq, what’s going on in all of the other places in which the US military maintains a presence, maintains a lot of taxpayer resources and weaponry, et cetera, and in many places has seen a lot of resistance to that and opposition to US Military imperialism across the globe.

In Afghanistan, for 20 years there’s this ongoing fight with the Taliban. Now it appears that there might be, when the US leaves the Taliban there are these fears that they will retake over. But I wanted to bring this to the conversation because we often don’t hear about or talk about what’s happening in all of the places where the US maintains a military presence, especially Afghanistan.

I remember 9/11 was 20 years ago, when we first got into this war I was 11 years old, now we all grown, so this has been like a generational experience, there are many folks who are serving who weren’t even alive when the war began, so it’s good to see that there’s going to be a troop drawdown. Now what that means in practice is, there are still going to be US troops on the ground in Afghanistan even after August 31, but there is a dramatic reduction.

So when you look at historically over the course of the 20 year war, there was a height of 100,000 US troops at the height of that war and that has declined down to about 3,500 troops today in Afghanistan. Now based on this announcement, they are hoping too and projecting to reduce that down to between 650 troops and 1,000 troops by August 31. And those troops are supposed to be guarding the US embassy as well as the airport. And that’s what the announcement is, so still going to be US troops, a small number, relatively. But this does signify a pretty large reduction over time in general and even relative to where we are today.

KAYA HENDERSON: I’m not a military strategist, or a State Department official, or what have you, but it seems to me from a layman’s perspective that this is an unwinnable conflict for us, and so on the one hand President Biden is saying, “I don’t want to continue to sacrifice American lives when there’s not a clear win on the horizon,” and I can appreciate that.

There’s also the issue of, there are lots of Afghan translators and interpreters who have helped the United States and their fate seems to be in limbo. I was watching some news program, and many of them are on the run because the Americans have effectively abandoned them. And Mr Biden has said, “Anybody who has helped us, there’s a place for you here.”

I saw a story about this one interpreter who applied for a visa to the United States five years ago, he doesn’t have a job anymore because he’s not translating for the military so he can’t feed his wife and his three kids. He’s on the run because the Taliban or whoever know that he was working for the Americans and he’s like, “Listen, I don’t have a whole lot of time, somebody needs to get me and get out of here.” And apparently, there are thousands of Afghans who supported the United States Military and there is not a clear pathway for them.

And at the end of the day for me, if you’re talking about 20 years ago, before the United States was in Afghanistan, the Soviet Union was in Afghanistan, like literally same playbook, same thing go in to avoid terrorism stay there for 20 years or whatever without actually helping to build infrastructure, leave and then the next superpower comes in some years later.

And so, the question for me is what about the regular people? What happens to the fate of the Afghani people when the political powers continue to rage and there’s no deep, deep investment and in nation building? In fact, President Biden said, “We are not nation building.”

OK, so we’ve occupied a country for the last 20 years and now we’re just out. And we hope that the leaders there will fix it up. It feels yucky, and at the same time if it’s an unwinnable war, how long do we keep our men and women stationed in Afghanistan? It’s a hard call to make I think.

DERAY MCKESSON: What this does to you that it’s such a reminder of the way the spirit of colonization works, that you come into a country you take over everything, and then when you leave and things fall apart it becomes this notion of like, “Look, those people can’t control it, they don’t have–” And it’s like you destabilize it, you were the power vacuum for so long in such an incredible way and I was reading that the Taliban still controls a third of the country. So it’s like, you went in with this it’s like, “No no, no, you’re going to leave the Taliban is already strong, we’re strong, remain strong.”

And now the other governments in the region are negotiating with Taliban anyway, so it’s like, “You didn’t nation build, you didn’t build infrastructure, you just participated in the destabilization.” And while it is good that we’re getting out, it is just a reminder of how this is both not new, this has happened before, this just like keeps happening, and hopeful that there’s a respite one day where this is not the way that we do foreign policy across the country.

I know what I’m talking about Haiti, but there is something to be said for a continuity of government. I’ve been thinking more and more about the presidential shifts, every four years, so get Trump four years were like, what is foreign policy? And we will be making up for those four years for a very long time. And I don’t know what the fix is structurally, but when you get a real bad dip, it is just a nightmare, not even like a theoretical nightmare, it’s a legitimate nightmare for a lot of people.

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KAYA HENDERSON: My news today connects a very important Black girl magic event that happened this weekend with a really important historical story that is not always told. And this is about the National Spelling Bee. So Zaila Avant-Garde, a little Black girl from New Orleans won the Scripps National Spelling Bee on Thursday night. And it was amazing to watch. I was in an airport restaurant and I was like, wait, I think the little black girl just won the spelling bee. And sure enough she did.

With the $50,000 prize. And if you haven’t already heard, she has three or four different Guinness World Records for her basketball skills, dribbling and juggling. And spelling is kind of her side hustle.

And she’s probably the most amazing 14-year-old you’ve ever seen. One of the people who inspired her is a little black girl named Magnolia Cox. And Magnolia Cox was a young African-American woman from Akron, Ohio who went on to compete in the National Spelling Bee in 1936.

In fact, she was crushing it in Akron and had won all of the spelling bees. She was the Akron Spelling Bee champion. She had also been in a national competition. And she and another little black girl named Elizabeth Kenny of New Jersey, they were both selected to participate in the National Spelling Bee in Washington.

And this was a huge moment for folks in acronym and for Black people. And you know how we do, right? Time for Magnolia to go to Washington to compete in the spelling bee. We put together. We have red parties. We bought her some new clothes and new suitcase and did our hair and had her all gussied up and ready to go.

In fact, what she experienced both on her way to Washington and into Washington were tremendous, tremendous instances of segregation and discrimination.

In fact, the Akron newspaper folks tried to prepare the family and the reporter who went with them for the segregationist garbage that they were going to encounter in D.C. And it was everything from– they were riding on an integrated train, but when they got to Maryland they needed to be moved to the colored section.

Two, the fact that they were staying in Washington at the home of very prominent African-Americans, but only because the Willard Hotel which is kind of the big fancy hotel in town and where all of the other spelling bee participants were staying, well, that the white spelling bee participants were staying would not allow Magnolia and her mom to stay there.

In fact, when she went to the actual competition or right before she went to the competition, they had a dinner at the Hamilton hotel. And they made her and her mother walk through the back door and through the kitchen in order to get to the dinner for the finalists for the National Spelling Bee.

And then of course, when she got on the stage, she’s up here crushing it. She’s killing it word after word, after word, after word. In fact, she had a dictionary that in segregation times Black kids didn’t have the same kinds of resources as white kids.

That might still be happening now, but we’re not talking about that. But in Magnolia’s dictionary, there were some words that ended up in the spelling bee that she didn’t know. They weren’t in her dictionary, so she hadn’t studied them. And little sister still slayed.

And then when it looks like she’s going to win, the system does what the system does, they ended up giving her a word. The word was nemesis. And while nemesis now is a regular noun, nemesis is actually a proper noun. It’s the word of a Greek goddess. And proper nouns are not supposed to be used.

In fact, no capitalized words shall be given was part of the rules. And so, when Magnolia misspelled the word, her white teacher kind of said to the judges. Oh, no, no, no, no, no, first of all that word shouldn’t be here. And you’ll are just mad because this little black girl is about to win.

And she called it out on the air. It was on CBS. And she called it discrimination. She said the judges were uncomfortable with the idea of a Black winner. And of course, the judges ruled against her and Magnolia had to come home. But she had a stiff up her lip. She stood there, she took it. Her teacher cried, but she went back to Akron.

And was still loaded and fed in and celebrated. Ultimately though, she really suffered from this experience. There was supposed to be college scholarships. There were supposed to be all of these things that never materialized. And she ended up dying at the age of 53 in 1967.

But, when she stood on the stage of the spelling bee on Thursday night, Zaila Avant Garde told reporters that she thought of Magnolia and what she had endured 85 years earlier. And so, I love these connections.

One, I’m just super proud of Zaila avant-garde and what she accomplished with the spelling bee. And I’m even more excited that she knew the history and was able to connect the history and bring out this little known story so that we know that little black girl has been spelling it up for decades.

SAM SINYANGWE This was so cool to see Zaila win the spelling bee because it’s just like blew up so quickly. All of a sudden, you’re seeing videos everywhere. It wasn’t even just like the spelling bee videos, it was videos of her playing basketball and being amazing. And like doing all of these other tricks and just having a repertoire of skills.

That wasn’t limited to spelling, wasn’t limited to that competition. She’s just an amazing person, an amazing talent in so many different ways. And then to hear the many ways in the many barriers that have prevented that historic moment from happening in the past.

The people who came before her who were denied that opportunity, who there were so many different attempts to stop from even having a chance. This is a story that was about a spelling bee which is not– often we hear these stories about not having access to your schools, the big, big things, health care.

But it’s like all the things. It is like the opportunity to be in a competition around spelling. It is around like the opportunity to go to D.C and to do that in a way where you are not demeaned and put in segregated facilities, segregated public accommodations. And all of that is compounding.

And it’s a reminder of like the daily indignities of racism and white supremacy. The ways in which that has created barriers that have prevented so many achievements from happening to date. And now we’re starting to even learn about those histories, those stories.

In context that, I didn’t think to ask questions about or even didn’t think that I would learn more about. So I think it’s really cool to see this. It’s really cool to see Zaila just rocking it killing it, like blowing up so fast.

I can’t wait to see what she does, what she goes often does because clearly this is like not even a start for her because she’s been started. But it’s certainly not a finish.

DERAY MCKESSEN When I add to this, she’s such a great example of what humility really means. Humility, and my father would always say humility is power under control. And she just has such a beautiful embrace of her own power. She’s like, Yeah, I’m a good speller, I’m a great basketball player.

You are like, I love it. Just like an incredible sense of self so young. I also love that, her last name is Avant Garde. And her father changed it from Garde and emerge to John Coltrane which I love.

SAM SINYANGWE Yeah.

DERAY MCKESSEN And this idea like, for years Coltrane found a whole host of other avenues for success. I know Chi you said it, but I just wanted to read off. Is that because she’s a gifted basketball player already. She already has three world records, one for the most basketball’s dribbled simultaneously. It was six basketballs for 30 seconds.

The most basketballs bounces, 307 bounces in 30 seconds. And the most bounced juggles in one minute, 255 using forward basketballs. She also becomes the first winner of the spelling bee from the Louisiana.

deray mckessen So shout out to her it is so interesting how quickly these things move because all of a sudden she was at the SPs. Oh my God. It was like she just won the spelling bee like five minutes ago. She’s at the SPs.

It’s cool. And it’s col to see just a community of Black people support her. The only thing that I was annoyed by on the internet was people calling her a woman. And you’re like, she’s a girl. She’s a young woman. She’s is a child.

KAYA HENDERSON Not in high doll yet.

– Yes, so stop doing the like the woman. You’re like, let her be a kid. And let her be the dopiest kid that we’ve ever seen. Don’t make her grow up faster than she needs to. My news is an article called Waiting For Justice in calmatters.org. It’s about the California justice system.

I’m really surprised by things by one of the things that I will tell you is that, is not as much data about the judicial process as you’d think.

So like, they’re not amazing data sets about judges decisions to set bail. It’s not amazing data about how long people are waiting for trial. This is not enough. And this article is about the sheer number of people who were stuck in jail waiting for court cases.

And I think that part of the reason I’m bringing it here is that it surprised me a little bit that we can’t even track this stuff. It’s like the people are in jail and we clearly don’t have great information on that. But what was interesting is that their investigation show they’re at least 1,300 people who have been incarcerated in California jails longer than three years without being tried or sentenced of anything.

And of those, 332 people have been waiting in jail for longer than five years. They even know one man is in the Fresno County jail, he’s awaiting trial in a double murder for nearly 12 years. Almost 4,000 days from his original arrest.

And as you can imagine, most of the people held in jail before their trials are Black and brown. Many have low income. And we have people who talked about bail before and the problems with bail. What I didn’t know is that California’s Judicial Council guidelines recommend that a felony case is wrapped up within 12 months.

But here’s the thing, the courts in California delivered great data to track that. So like, while they put that out as a guideline, they don’t know whether it is 12 months or not. The CalMatters folks couldn’t even get data from all the court systems. And there’s a host that literally like don’t know. So they know that the state’s courts closed only about 3/4 of felony cases in that time frame. Even that data was incomplete.

CalMatters also look for records from all 50 County Sheriff’s departments in about 33 provided records which showed 5800 people who are behind bars for longer than a year without being sentenced for a crime.

I was just going through it and looking at it. And it is just a reminder that like how do you prepare a defense? How did you do this stuff when you’re held, whether it was bail or something else or maybe it was a postponement?

It makes sense to me that the plea deals are happening at a record rate. It makes sense to me that people aren’t getting a fair shot because this is just so wild. And there’s not even good data so that you can back into it so people can advocates so people where to press.

And it renews my belief that one of the roles that we should be electing people in and fighting for appointments will be like the clerk of the courts. The people who just manage the data processes of the court system to just get this better so that we can actually be more precise.

And I think about these judge elections. And I was going to bring another piece of news here about a new data on how judges make decisions. But so much of that too is whose hold the judges accountable? What data are you using to hold judges accountable outside of individual cases?

DERAY MCKESSEN I don’t know. So I wanted to bring that here.

KAYA HENDERSON This is nightmarish. Especially because for many of these people, you don’t know if they’re innocent or guilty. And if you’re innocent and you’ve been sitting in jail for three years, this brought to mind Kalief Browder, the young man in New York who was accused of stealing a backpack and waited for three years most of the time in solitary confinement and literally like ended up committing suicide as a result of his experience.

If you didn’t do it and you sit-in jail for three years or whatever, at the end of the day, all anybody is going to say is I’m sorry. And Derek Chauvin got a trial pretty quickly. That’s a felony case.

And so I feel like there just– is the same like lack of will when people are poor and colorful. But we actually know how to systematized things and how to move processes along. And so to me this is absolutely unacceptable.

And until somebody really crusades against this, where’s the Innocence Project or where’s somebody who is going to grab a state and suggest an expressway to get through these cases? Or where’s the group that’s going to sue for people’s right to a speedy trial? That’s a constitutional right, what’s going on? This seems crazy that nobody’s doing anything about this.

SAM SINYANGWE Yeah, Kaya, to your point, not only is it crazy, but it explains so much of what is actually happening in the context of the broader system of mass incarceration in the criminal justice system. So jails are of the pie, if you will, of mass incarceration.

Like most people are held in County jails. And they’re held usually under a year, but as we’re seeing many people are held way longer than you might even think. And of those people, millions of people who are just cycling through these jails, 3/4 of the people in jail at any given time have yet to be convicted of anything. 3/4s.

So you have the system, the biggest piece of witch is the County jails. And you have all of these millions and millions of people cycling through this system, the vast majority of whom have not even been convicted of a crime. That’s the system that we have.

And people don’t really realize that. That is what characterizes the system of mass incarceration. And when you compound that with all of the issues with data collection, not only are these systems doing a terrible job even tracking what’s happening in the context of jails.

Let alone notifying people, making sure that people who are eligible for release are getting released on time because a lot of people because of that terrible record keeping they end up in jail for much longer than they otherwise should have been in jail.

And beyond that, you have an entire sort of framework that is holding people who are innocent until proven guilty in jail on these extremely obscene levels of bond that you have to pay thousands of dollars, Tens of thousands of dollars in order to get out.

That predominantly impacts people who don’t have the money. So the people being held are people who have yet to be convicted of a crime and who are too poor to pay their way out of jail. And that’s the system that we’ve constructed.

And so we have to be dismantling that system. We have to be pushing it. In Colorado, there was an effort to pass legislation that ultimately failed due to two Democratic votes in committee that would have released a substantial proportion of people who are currently being held in jail in Colorado.

And so there are similar bail reform bills being considered across the country. And that’s such an important piece of this because that is what is responsible for holding so many people for so long. And then you have all those other issues that then make that even worse for people with their health beyond that.

KAYA HENDERSON What was also interesting is to hear them say that, oftentimes after two or three or four years, they simply don’t have the evidence to prove the case. And so the case gets dismissed. Meanwhile, people’s whole entire lives are wrecked.

There’s the example of the young man who has lost his job and his wife is divorcing him and you know his life is crumbling apart. And he’s sitting in a cell for 23 hours a day. And we don’t know if he did it or he didn’t do it.

And that just– You all know this, I’ve told you this, but I’m about to confess it on the whole entire podcast. I am deathly afraid of all things related to jail. And like this is my worst nightmare. I didn’t do it and I get arrested and I’m sitting in jail for a year or two years or three years because you can’t bring it to trial.

In America in 2021, although I guess America in 2021 has showed us some other obscene things. So I don’t know.

DERAY MCKESSEN Also, the other thing that I didn’t appreciate, I’m working on a case now and what the prosecutors said in public is like DNA evidence, did it all. And then you dig a little deeper and you realize that’s just not true.

But you imagine how they say to you, they’re like, Kaya, we have DNA evidence that you did it. And you’re like, I didn’t do it. But they’re like, we have DNA evidence. Imagine hasn’t gone to court yet, you plead out because you’re just like, well, they got DNA evidence.

And you’re like they use all these tricks to get you. And you’re like– But how do you intervene. It makes me so– it is frustrating to now end.

KAYA HENDERSON The question of clerks and judges and the– Because it’s not jails who are keeping the people, it’s the court system that it’s not operating the way it ought to operate. And I don’t know where the locus of control sits to make changes in that system. But it seems everybody is like, Yeah, this shouldn’t be. But what’s the remedy I think is the thing that left knee unsatisfied with this article.

DE’ARA HENDERSON Yeah, my news this week is from NBC. And it’s just a joyful happy one which I’m always looking for. But it’s about juvenile reworking his hit. Back that thing up into a pro vaccine situation, vaccs that thing up.

So if you haven’t seen this video, please check it out. It’s on YouTube. You’ve probably already seen it by now, but I just loved it. It made me feel good. And it also, I think, as we see numbers growing with the delta variant, I think it’s important to realize that we still are really behind particularly in the southeastern states when it comes to vaccination numbers.

So places like Mississippi, Georgia, Alabama, we really do need to get the numbers up there. So not that this juvenile vaccine that thing up is going to be the solve to get us there. But I definitely think things like this that kind of touch on the cultural aspects of things I think are extremely helpful.

So check that out. I think this song is actually part of a promotional partnership for BLK or Black– I don’t know what they’re going by, but it’s a dating app. So no endorsement of the dating app. I don’t know anything about this dating app. It’s for connecting black men and women. But I will say that I did very much like this rework of vaccs that thing up. All right, you’ll.

DERAY MCKESSEN Hey, you’re listening to Pod Save the People. Don’t go anywhere there’s more to come.

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[MUSIC PLAYING]

DERAY MCKESSEN And now my conversation with Professor Brandon Garrett, the author of a new book, Autopsy of a Crime Lab, Exposing The Flaws In Forensics, must listen.

DERAY MCKESSEN Professor Garrett, thanks so much for joining us today on party of the people.

BRANDON GARRETT Thank you.

DERAY MCKESSEN Now, I am fascinated to talk to you because I have a tone of questions. And we have not spoken before. Your new book, Autopsy of a Crime Lab, Exposing The Flaws In Forensics, I’ve seen like Radley Balko write about this a little bit, but I still have a tone of questions.

So before I start with those, can you just give us a lowdown about how you got to study this? Like what your journey to the topic?

BRANDON GARRETT Sure. Like most lawyers and I wasn’t so good with math or science. I was more into words and numbers. And all of a sudden, fast forward, 20 years since law school and I’m working with statisticians and crime labs and forensic scientists. And that’s not what I originally planned.

I originally went to law school because I wanted to sue police. And this was like many police brutality and racial profiling crises ago. But I was in New York at around the time of the Amadou Diallo shooting and the street crimes unit and the Abner Louima case.

And so I was working on lawsuits or reforming police and compensating victims of police brutality. And I ended up, after law school, at the law firm of Cochran Neufeld and Scheck. And so Johnnie Cochran, obviously well known. And he had met Barry Scheck and Peter Neufeld through their work in the OJ case including the use of DNA in that case, but Berry Scheck and Peter Neufeld had founded The Innocence Project.

And their experience had been that people who are exonerated by DNA often didn’t really have lawyers representing them when they wanted to sue police and prosecutors to get compensation. And so that was my introduction to forensics.

And there some of those cases, the one slice of it was this is a triumph of forensics. DNA freed these people. Forensics good, traditional evidence bad. DNA freed them. They falsely confessed, the eyewitnesses got it wrong. Informants got it wrong.

What I learned over time though was that although DNA set these people free, problematic forensics often played a role in their wrongful convictions too. That was the beginning of my wake up call on what is still wrong post DNA with forensics in this country.

DERAY MCKESSEN Can you just level set with us like what is a crime lab? And I ask because I don’t want to make any assumptions and all I know about crime labs is CSI and I might be wrong. So what is a crime lab?

BRANDON GARRETT Crime labs aren’t as glamorous looking as on CSI. People don’t trust another. And there aren’t so many people all around working on cases together. There aren’t like the big screens or anything. It’s good for all of us if like TV makes our jobs look really cool.

And as lawyers, we benefit from that. It’s great when the lawyers get to be the heroes on TV. And maybe it’s been good for people going into forensics work to have other jobs made to look all glamorous.

But crime labs can just be like an extra room or two in a police station. They are a lot of really small what they call cop shops. Larger labs maybe regional labs or labs or big cities or state crime labs which may be a pretty big building.

A big chunk of what they do. And they don’t mean this literally although sometimes it’s turned into that is doing drugs. Given the war on drugs, think about the quantities of drugs that sometimes get seized. It has to be tested.

And they’re testing blood alcohol, in terms of DUI cases. So that’s like half of what the average lab does is testing substances that are seized. The other half is trying to link evidence to individuals and or to firearms.

There are a lot of gun crime in this country a lot of guns. And so, there’s efforts to look at the expended bullets or casings under a microscope and see if you can link them to weapons. A lot of people leave fingerprints still.

And fingerprinting has been around for a long time and you think like more criminals wear gloves. latent fingerprints. They look at the fingerprints and try to compare them to fingerprints in the database. There’s some stuffs like fibers and hair and other types of patterns that they try to compare.

And then there’s like a surprisingly small chunk given how much people hear about using DNA. But a lot of crimes there’s no biological evidence to test you can’t really do much DNA. Other crimes especially sexual assaults DNA can be really, really powerful.

Labs also spent a lot of time just uploading DNA labs for STs and to add to DNA databanks. So there’s a lot of kind of databank work that labs do. Most of these labs are part of law enforcement. Whether budget comes from law enforcement. Sometimes they’re even though they’re part of a prosecutor’s office.

There are very few independent labs where it’s like what we think of as like a science lab that’s independent. For the most part, they work for their clients, are the police. And that’s where their money comes from. And that’s how they see their role as an arm of law enforcement to help solve crimes.

DERAY MCKESSEN I know that there have been an effort before to separate them from being under the offices of the police department because like what’s true is true. It is the fingerprint or it’s not, it either is the DNA or it’s not.

Did that go anywhere? Is that going anywhere? Do you think that they should be split or do you think they should be together?

BRANDON GARRETT I think they should be split. And the National Academy of Sciences is the leading science organization in the country, they made that recommendation really forcefully in 2009. So the recommendation has been around for a while.

There are very few labs that are independent. I talk in my book about the Houston Forensic Science Center which is a leading example of an independent lab that’s doing it right. But just making the lab independent in terms of its budget and its leadership is not really enough if it keeps doing work in a way where there’s no quality control.

No one wants to buy a product from a company that’s independent and not part of a big chain, but it just sells you a lousy product. No one wants to get a test from an independent clinical lab that gets it wrong all the time. Would rather go to the public hospital that actually knows how to do a stress test right. And so independence is could be important, but it’s definitely not enough.

And unfortunately whether labs are independent or not, for the most part of this country, they don’t have good quality controls. They’re not like clinical labs, whether it’s a stress test or COVID test, where they’re doing blind checks.

They’re testing the testers and they catch mistakes if there’s some problem with the equipment or someone isn’t well trained. They figure it out and get to the bottom of it. We don’t do that when people’s lives are at stake in criminal cases.

And for too long we’ve had labs do stuff and they are called forensic science labs sometimes. But there’s not a lot of science in their process or in the work they do and that’s a deeper problem.

Why as a society we care more about getting strep tests or cancer screenings than fingerprint comparisons or firearms in solving serious crimes? It’s hard to say but maybe even some of the different conversations can turn the right way.

Criticism is like why are police doing so many deadly things in traffic stops and minor crimes? Why can’t they focus on solving serious crimes? If you want to solve serious crimes you need to get the science right get the forensic science right.

DERAY MCKESSEN Now you also wrote about bite marks, what’s the story with bite marks? I’ve heard people say that bite marks don’t matter. That this is like fake science. But I’ve also seen a lot of TV shows. It seems like the bite mark that was the linchpin of why the case got solved?

BRANDON GARRETT Bite marks have become pretty notorious. And the larger scientific community is sort of horrified that this is even a thing. It’s not clear whether there’s any accuracy even to the decision when you look at some abrasion or reddish skin or something on someone’s body. Whether it came from a human bite or not.

Most of us don’t get into biting situations too often in our lives. Although, if you’ve had a toddler. Both of my kids went through a phase where they were biters. And if you get bit the skin turns red right away it’s hard to see anything there.

And there have been notorious cases where these forensic dentist came in and said it was the defendant’s teeth to the exclusion of all others. He made that bite and it turned out later that actually insect bites.

When you’re talking about a body that’s been lying outside after a murder, all kinds of things happen to the skin, obviously. And so there’s just been a whole chain dozens of exoneration’s in these cases.

Courts are for the most part, not been responsive they let it in. Although the Texas forensic science commission and said there’s no reliability here. Bite marks comparison shouldn’t be used. And there is information in teeth, but one important thing to understand is like when we’re talking about bites and the reddish abrasion on the skin.

The skin isn’t a good way to preserve information from teeth. There’s a different use of dentition when bodies were found, dentists can get brought in to compare to the molds that they have like in a dentist’s office to identify human remains.

But that’s different because you have a lot of information. If you have the full set of teeth, there’s some sense that might be quite reliable. Or at least a lot more because you have you’re comparing four sets of teeth to four sets of teeth.

And bites, we don’t bite with very many of our teeth, and the front teeth are the ones that we bite with. And the ones that don’t have a lot of information on them. They’re all like molars they’re not complicated.

When they’ve done some very limited studies, asking these forensic dentists to take test questions basically. Their rates have been astronomical like worse than chance.

And I’ve said, they haven’t been properly tested. They know it’s a study, they know they’re being tested. And so for those reasons, the scientists including the National Academy have said like it’s not clear that they’re there.

It’s not clear that there’s any reliability to what they do. And unfortunately they don’t say that in court they say you know we’ve collected these teeth with the defendant. They’ve adopted some more roundabout cautious language just in recent years because of all the criticism.

But they’ve shown no sign of stopping, and they tend not to work in crime labs they tend to be dentists that kind of sideline and get paid extra to be experts in criminal cases. And again like there are no statistics.

We have no idea how rare common it is to have any particular aspects to your teeth. And we have no idea whether there’s any accuracy to the connections that they’re making between a mold of someone’s teeth and some reddish abrasion on a victim’s body.

DERAY MCKESSEN I’ve been just personally interested in and as an organizer in the difference between the corner and the medical examiner because it blew my mind when I first learned that we elect corners. I was like that is wild. Garret you talked about what does it mean to be qualified? What’s your take on this?

BRANDON GARRETT It’s amazing that the corner versus the medical examiner, the difference is medical examiners are supposed to be hired as someone who’s a pathologist, who has training, who can say some things about the cause of death. There are a lot of concerns with the methods there. And we saw some of those aired out in the Derick Chauvin trial. And what happened after George Floyd’s murder. And when he had an independent pathologist brought in.

And there was just a really interesting recent study that Dr. Hatfield draws. Some colleagues worked on showing a pathologist can be biased by information about the race of the victim. And they get all kinds of information that’s not necessarily relevant to cause of death that can bias them.

You really worry about their independence and their bias. When it’s a police officer that’s being investigated for a role in a homicide. But all that said that’s with like medical examiners that are trained in pathology.

There are questions about how good pathologists are? And they look they acknowledge there’s a lot of uncertainty as to how someone died. But then you have elected corners who don’t have to have any medical background.

That could be just the person who runs for office and wins. And sometimes obviously, we’re a democracy. And it’s good to have someone who the people trust to serve the people as their representative. But a Corner isn’t supposed to be the people’s representative. I mean it should be someone who knows something about how to identify a cause of death and not someone who wins an electoral contest.

But here around the country we have Corners who may have no qualifications. It could be like a local funeral home director or anyone. And that’s pretty shocking I like you I couldn’t believe it because I mostly lived in cities where there was a medical examiner that had like a more professional office.

I had no idea that so much of the country had this corner’s system.

DERAY MCKESSEN You complicated this for me in the book the role of DNA. So she watching TV, DNA was sort of– that was the gold standard. It was like this is the difference between true and false.

And you seem to suggest that, like, the way the labs run are like– There are other things that can influence the way that we think about true and false with regard to DNA, what does that look like for you?

BRANDON GARRETT So some DNA cases are simple. And I started the same way you did. And a lot of the cases I worked on early on and then I wrote about in my first book were DNA exoneration’s. A lot of those were sexual assaults where it’s just like there’s female DNA and there’s male DNA.

And there’s a mixture, you isolate the male DNA. This is not that male someone else was. Like that is straightforward they talk about those is like silver bullet DNA cases. Where you can isolate the person who committed the crime that’s the one who did it.

But, most crimes if you’re testing like the handle of a gun, you don’t know how many people handled that gun and it may be a mixture and you may not even know how many people contributed to the mixture. Maybe real interpretive question, is this suspect.

Someone who could be included in that mixture when you have hits that suggest well maybe like three or to five people might have touched that handle and their DNA may be there. And the strength of DNA is also a limitation that we can do testing on cells.

Like very few cells can be enough to generate a DNA profile. But that means just breathing on something. So crucial that a couple of reasons why it’s crucial that police wear masks. But a crime scene if you have officers standing around talking to each other near the evidence, that’s enough for their breath to provide enough DNA that it can alter the sample.

And so it’s a great thing that DNA can be used to test such small pieces of evidence, but it means that it can be contaminated really, really, really easily. And so they’ve been hard questions about how to unravel those mixtures. There are companies that have proprietary algorithms.

Lawyers have said, we need access, we need to know how, and you unpack this mixture because you say my client contributed and I need to understand the statistics. And companies have said, Oh, no, no, that’s our business model. We can’t disclose it. It’s proprietary.

There’s a really interesting case where the two proprietary algorithms one was the prosecution, one was the defense. They came to different conclusions about the evidence. DNA can be a really powerful tool and can tell you a lot, but then in so many cases where the evidence is messier and there’s a DNA mixture, all of a sudden DNA gets really, really tricky.

DERAY MCKESSEN So one of the things that you do in the book that is excellent and very few people do this well is you weave all these stories in. They just help it come alive. I can even pick one story because they’re all wild to me.

BRANDON GARRETT Oh, thank you.

DERAY MCKESSEN But did you have a story that resonates with you? There’s like this one section where I was like, OK, and another story, and another story. I’m like we need to– I don’t know what the fix is, but the labs don’t seem like they are the fix. But is their story that for you highlights exactly why we need to pay more attention to crime labs?

BRANON GARRETT One of the stories that really meant the most to me because I got to spend some time with him here where I teach at Duke University was the story of Keith Harward. And part of it is that I came across this case before I knew that he had asked for DNA testing when he was still in prison.

And I came across this trial by accident. Not exactly I mean I was reading old Virginia murder trials to see whether I was coming across the same problematic testimony. That I come across an innocent people’s trials.

And just reading these kind of trials, I pulled off the shelves at random I saw all kinds of troubling testimony. And it made me think that the stuff that happened to these innocent people who are exonerated by DNA wasn’t unique.

It was just the way forensic analysts were testifying throughout the 80s 90s. And his case stood up because we were talking about benchmark comparison was a benchmark comparison case. And the dentist seems so sure they said it was a very, very, very likely that it was his teeth.

But there was also like blood typing at the time and they said, Oh, Yeah, blood type is consistent. And there’s more than one dentist. And they all said, Oh, Yeah, all these dentists we all agreed it’s totally his teeth. Dentist didn’t work at the crime lab. They were all brought in by the police. And they’re all biased by each other. And they were all wrong.

But his case also unpacked larger issues at the lab because the crime lab didn’t have like bite mark people. That’s sort of a sideline thing that dentists do. But the state crime lab was thought of as one of the larger professional labs.

It was one of the first labs and it was the Virginia lab was one of the first in the country to embrace DNA. Like this is a good lab. While the blood typing turned out to be false.

And Keith Harward’s blood type was not consistent with that of the victim. The report was altered and then that raises the question, well, they did it one innocent guy’s case how about others.

Well, in fact, knew that. I recognized the guy’s name that the same analyst at the lab testified. And another person who’d been exonerated in other Virginia trial did the same thing, played down the differences and made the evidence sound like it was consistent with his blood type. And actually it was not.

And to its credit, the lab did an audit to re-examine cases, but they didn’t have a list of who had this person testify about blood type and going back to the 80s. These labs often don’t really have good records. They just don’t have the resources.

And it’s not like a real scientific lab or a hospital where they pull the patient records and who is seen by this doctor. Who got a hip replacement from this doctor. We need to go through all those hip replacements going back 10 years because this doctor was putting them in wrong. They can’t do it.

And so when these problems come to light, often, the audits that result, if any, are really thin. And we have no idea how many other people may have been affected. And so you don’t have that kind of accountability in most places.

And we’re seeing it right now in Massachusetts. They’re re-opening tens and tens of thousands of cases affected by drug lab misconduct. They’ve realized that really all the work that these two major drug labs did was flawed. And just identifying the cases, figuring out how to make it right for people. Really hard to do after things go wrong.

We’re seeing another scandal in D.C right now around their firearms unit. They need to figure out who had firearms testimony from those examiners. And reopen all those cases. I hope they do it. They haven’t agreed to do it yet. And that said even if they agree to do it it’s going to take time.

Every individual story is a story not just about one person whose life was destroyed. Keith Harward spent more than three decades in prison for a crime he didn’t commit. But then there’s this question mark how many other people were there who were in the exact same position whose stories we don’t hear?

DERAY MCKESSEN One of the things that I also learned in the book is the power of judges to intervene. What does that look like?

BRANDON GARRETT Evidence has become somewhat modernized. And judges are supposed to really look at whether someone’s really a reliable expert before they call them an expert and let them take the stand.

And if you think about trials, you’ve seen like victims in the movies or whatever witnesses normally all they can talk about is what they saw or what they heard. Otherwise, it’s hearsay. Witnesses are supposed to just talk about what they perceived.

Witnesses definitely don’t get to just offer their opinion. And say, by the way, not only did he look kind of suspicious to me, but it’s my opinion he’s the murderer. Witness can’t do that. Their opinions are relevant.

Well, experts get to give their opinions. And the only reason why we let experts give their opinions is supposedly they have expertise. Supposedly they can use reliable methods to form conclusions about what they saw or heard about what they perceived.

Judges are supposed to do reliability gate keeping. In most states and definitely the federal courts, they follow a rule that came out of a case called Daubert, where they’re supposed to look at a bunch of different factors and screen whether an expert is really using reliable methods and doing it in a reliable way.

And yet, forensics have gotten a pass. And for the most part, even if defense lawyers say like, how do we know how reliable a fingerprint expert is? What do we know about the research? How often do fingerprint experts get it right versus wrong?

Studies have often said, well, we don’t need to ask those questions. That’s very interesting. But I’m sure they don’t get it wrong very often. And we’ve been using fingerprints for 100 years. So what’s the big deal?

And so you ask them, well, how about a bite mark evidence? Oh, you know, we don’t know how reliable it is. There are no studies we have no idea, but we’ve been using that in court for at least a few dozen years. So what’s the big deal?

And you know you go discipline after discipline. And judges have just sort of said, Oh, reliability, very nice. It would be nice if we knew about how reliable this stuff was. And we don’t. But we’ve been using it. So let’s keep using it.

I think it’s an embarrassment that judges haven’t taken their role seriously especially in criminal cases. We have a battle of experts frequently in civil cases. We have high paid experts on both sides.

And judges here on one point of view they have another point of view. And sometimes they say, wait a minute I don’t think there’s enough research to allow an expert to make these claims about whether this chemical could have caused birth defects or whether this chemical could have tainted a water supply. The studies aren’t there.

Well, in criminal cases, they don’t ask whether the studies are there. They just sort of say, Oh, sure. Let the jury weigh the evidence. The jurors I’m sure kind of cast a critical eye if there are any issues here. Here and there judges, especially as part of scientific panels have said like, my colleagues on the bench, they’re not looking at the evidence they’re not looking at forensics.

I keep telling them that it’s part of their job, lawyers keep telling judges it’s part of your job. And judges are just really reluctant to exclude evidence in criminal cases. Many of them were former prosecutors themselves. It’s a little cognitive dissonance there. They put fingerprint experts on the stand. They put the ballistics people on the stand.

Another piece of it, though, is that whenever they have raised questions about forensics. The forensics community has often gone ballistic, put real pressure to say look you don’t mess with our forensics. You shouldn’t be asking these questions. It’s not your job. Trust us, we get it right.

DERAY MCKESSEN There’s so much more we can talk about. One of the last questions I ask about forensics is. Is there any way doing the right thing? Is there a model somewhere that you see?

BRANDON GARRETT Yes, forensics could be like other types of tests where we test the testers. We should know how good these experts are. If someone says I’m expert at linking firearms. Well, do we have any statistics, do we know what the method is, do we know how reliable firearms work is.

It’s actually OK if we don’t as long as we give this person realistic tests and see like, OK, we’ll give you 100 different shell casings. And see which ones you correctly match. So we know we know how good you are.

And that way this person could tell the jury, yes, I’m an expert. I passed with flying colors when you give me a hard bullet casings give me easy ones. I link them correctly.

Now I suspect that for firearms actually in particular. And for other methods, that’s not going to happen. But we’re going to learn that many of these people who they are experts, they don’t know how good they are. They never get tested. And they may be wrong.

They may be confident because no one ever checks their work. No one’s ever told them whether they’re getting it right or wrong. When they’ve done some of these studies to look at error rates and some of these fields their rates have been really, really high.

And also a lot of people say that the evidence is just inconclusive because they know they’re been tested. And they think that well it’s not wrong or right if you say the evidence is inconclusive.

So we need to test these people. It’s been really interesting in some fields where people sort of have professional credentials. And they feel like a star and then they actually get tested. We’ve learned a lot of humbling things about experts.

The TSA learn this. They’ve run fake and real bombs to see whether the people who look at screens all day at the airport. It’s like actually doing forensics work. You’re looking at screens it’s tedious. You’ve got to keep things moving but the stakes are really high.

The first time like 95% of the bombs went through and didn’t get detected. There was a scandal, there was a leadership checkup at the TSA. They had different training, different procedures.

They ran the same test a couple of years later, and 75% got through. That was better but still not good. And so the same thing with clinical laboratories they do serious proficiency testing to find out how good cancer screeners are for example.

Because if they’re looking at flies all day and they missed that some of the cells are cancerous. That’s someone’s life, that could have been treatable cancer. And there’s federal law that says that the clinical labs have to be subject to that kind of rigorous testing because lives are at stake.

Well there’s no federal law, there’s no state law for crime labs. They are regulated. We need to regulate them like we would a real scientific lab and take them seriously as scientists they want to be taken seriously as scientists in court.

They want to be testified as experts and say that they are reaching conclusions about evidence. Well we should take them seriously as scientists provide them the resources sure but also regulate them.

So they have to be subject to real quality controls just like real labs. And we have people spending decades of their lives in prison because of forensics. We all take forensics really seriously. We all assume that this stuff is infallible.

I’m sure that most people would convict someone if the fingerprints matched, if the gun matched. But we actually have no idea how good that match was. The expert says it’s an ID or a serious identification.

They say, I’ve never made a mistake in my experience. And they testify with confidence. They describe their equipment. And their years of experience. And they’ve worked on thousands of cases. They’ve never got it wrong. But they actually have no idea how often they get it right or wrong because they’re never tested. And that’s what we need.

DERAY MCKESSEN Everybody, you should have already gotten this book. You see on this book yesterday. The book is that good. It’ll blow your mind I have a million more questions for a time we consider front of the I can’t wait to have you back.

BRANON GARRETT Thank you thank you.

DERAY MCKESSEN Well, that’s it. Thanks so much for tuning in to Pod Save the People this week. Tell your friends to check it out. Make sure to rate it wherever you get your podcasts whether this Apple Podcasts or somewhere else. And we’ll see you next week.

Pod Save the People was a production of Crooked Media. It’s produced by Brock Wilbur and mixed by Bill Lancz executive producer is Jessica Cordova Kramer and myself. Special thanks to our weekly contributors Kaya Henderson, De’Ara Balenger, and Sam Sinyangwe.

 

 

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