MR BLOOD SPATTER

On 11:22 a.m. on Tuesday, June 20, having lost his motions to either have the case dismissed or for a mistrial to be declared, Brian Legghio began his defense of Michael Fletcher. He had a star witness of his own to lead things off, Professor Herbert MacDonell, who wrote the book, literally, on bloodspatter evidence.

MacDonell made a marvelous first impression. Tall and thin with a neat gray beard, he came across as a combination of favorite uncle and the best, most memorable college professor you ever had. He had a folksy charm, with just the right amount of self-deprecation—here was a witness who obviously took himself seriously but at the same time didn't have that inflated air you usually get from professional witnesses with extensive curricula vitae.

Where Dr. Dragovic had come across as combative and insufferable and had irritated the jury no end, MacDonell won them over from the start, transfixing them with his combination of folksiness and scientific acumen expressed in the kind of everyday language even the non-engineers on the jury could understand.

By the time the direct examination was over and the court recessed before cross-examination, the Miseners would be disconsolate. Legghio would lead MacDonell through an alternate theory of events that would seem to shred Townsend's case, and when the Miseners walked, they had the look of deer staring at headlights.

Confident of a looming guilty verdict when Townsend rested his case and Legghio began his, they soon would fear the worst.

MacDonell told the court he came from upstate New York and then he recited his lengthy and extensive background—director of the Laboratory of Forensic Science, which he founded in 1977; Master of Science degree in analytical chemistry from the University of Rhode Island; former head of the

chemistry department at Milton College in Wisconsin; professor of criminalistics at Corning Community College in New York for 32 years; professor of criminalistics at Elmyra College for 12 years; a research chemist at DuPont in Philadelphia and Corning Glass in New York; attended numerous seminars and courses in crime-scene investigation, including those at MIT in infrared spectroscopy; forensic scientist at the Rhode Island State Crime Lab for two years.

It went on—he had more than 100 published articles, books or chapters of books in the field of forensics to his credit over a 40-year period; had provided forensic consultation in 18 foreign countries; had membership in numerous professional societies and associations, including being a fellow of the American Academy of Forensic Science since 1964 and a Distinguished Member of the same group, and membership in both the British and Canadian Forensic Science societies; and founded the International Association of Bloodstain Pattern Analysts in 1983, which had grown to more than 650 members worldwide.

On and on the recitation went. Oh, wait, an aw-shucks correction to make sure he hadn't overstated anything. "I should reflect back. I think I said I was a Distinguished Member of the Academy. I'm a Distinguished Member of the International Association for Identification. As yet, I'm not a Distinguished Member of the Academy."

And then came the eye-popper, or, more accurately, the ear-popper that caught everyone's attention.

Legghio asked MacDonell if he had authored any books, as opposed to articles, on the subject of bloodstain pattern and pattern interpretation.

Oh, yeah, it just so happened there was this 77-page book. The US Department of Justice asked him to submit a grant proposal in 1969 and the result was two years of research and a book for the FBI titled, Flight Characteristics and Stain Patterns of Human Blood, the text on blood stains and one which has undergone several revisions and has been retitled Bloodstain Patterns. It has been translated into Spanish and German and at the time of the trial was being translated into Dutch.

This was the book that Townsend's bloodstain expert, David Woodford of

the Michigan State Police Crime Lab, had pulled out of his briefcase and referred to during his testimony just days before.

Since the book was published in 1973, MacDonell testified, he had conducted 54 seminars based on its findings for more than 1,300 police professionals, including those of the FBI and Scotland Yard, and lectured on the topic throughout Europe, Iceland, New Zealand, Australia, the Bahamas and elsewhere. Typical of the tenor of his responses, MacDonell interjected a bit of folksy charm during his recitation of countries and lectures. "In Europe, I would say France, Germany, Spain, Switzerland, Hungary, and of course England and Scotland, which I like to keep separate, being Scottish."

Finally, MacDonell said he'd been qualified as an expert witness in bloodstain patterns in more than 200 trials in 28 states, including Michigan, and in more than 100 other trials as an expert in fingerprint identification and firearms. And he'd testified throughout Canada, in Europe, Bermuda, Grand Cayman and Australia.

Legghio then offered MacDonell as an expert witness. Townsend had no objections and Judge Cooper approved. And things went downhill fast for the Miseners.

(It wasn't brought up, but MacDonell had been involved in several famous cases over the years. His interpretation of the murder scene led to the indictment and criminal trial in 1969 of the Chicago police who murdered Black Panther Fred Hampton in his sleep and then claimed self-defense; that story was recently produced as an A&E special. His testimony in an appeal won the recent acquittal of a Canadian named Clayton Johnson, wrongfully accused of murdering his wife and subject of an NBC "Dateline" show in January of 2001. And MacDonell was responsible for the acquittal of Susie Mowbray in a 1998 retrial of her murder conviction in the death of her husband in 1988; MacDonell had written a report for the prosecution before the first trial saying Mowbray couldn't have shot her husband, but the prosecutor wrongfully suppressed the report, and he testified at the retrial.)

*

MacDonell had never met Fletcher. He was contacted about becoming a member of the defense team by co-counsel Marla McCowan—"the young lady over there with the strawberry-blond hair," MacDonell interjected—by phone on September 16, 1999.

The next month, MacDonell received some documents and photographs and began his own investigation, which would culminate in visits to the crime scene on Hazelwood and a drastically different interpretation of events—and the forensic evidence—than that arrived at by Woodford and others on the prosecution team.

Legghio asked MacDonell for his operating definition of bloodstain pattern. "They are patterns made with blood and we're dealing now specifically with

geometry, the geometric shape of a red stain or, later on, darker maroon and possibly even black. I realize that you have seen diagrams and sketches showing angles of impact.… I'm not sure they would have been done accurately because of the testimony, which was inaccurate in that regard."

MacDonell then asked to give a short dissertation on how and why the liquid known as blood behaves as it does. He got up from the witness stand, got a clean sheet of paper and began diagramming for the jury.

"The first thing I want to correct is what has been published in some fairly decent books but is totally wrong," he told the jury, while beginning to sketch, further reinforcing his image as the ultimate authority. "This is a medicine dropper, a pipette, a burette, your finger, your nose. Blood is flowing either out of it, or around it. The blood starts forming like this, and as it starts forming it gets bigger. Now, I'm not going to talk about the inverse square laws and things in Newtonian physics. You all know that when an apple grows big enough, at some point it's heavier than the support of its weight and it falls. Newton did that back in the 1600s. You also know that if your faucet is dripping, it starts dripping and dripping and the reason it drips is because the weight of the water exceeds what we call surface tension.

"So, to understand surface tension, you have to know the physics of it. This is now the beaker. You can tell it's a beaker and not a glass because it's got a lip. It's full of water, let's say up to this level," continued MacDonell at his folksy,

professorial best. "We all know Archimedes' principle of flotation. Whether you know it technically or not, if you put in a piece of iron, it sinks because it's more dense than water. But I can 'float' a piece of steel, a plate of steel, or a steel rod on the surface of water—when I say 'float,' I say it with quotes because it's not floating, it's surface tension.

"You see, down below here we have molecules that are all pulling in and out of the surrounding area by what are called Van der Waals forces. They're attracted to each other, something like the center of a bicycle, the spokes all pulling in. However, the little guys up here on the surface can only reach out across the surface and down, there's nobody up above. So there is this attraction, this pulling together almost like a skin, and the physicist, not being too creative thinking in terminology, said let's call the tension on the surface 'surface tension.'"

Where was this perfectly executed lecture heading? He drew a series of liquid drops showing how they build in size and begin falling away from the faucet, or beaker lip or whatever it was they are attached to. Just before breaking away, the drop is held by a thin thread, and then it falls free. "It is perfectly round. There has never, ever been or ever will be a teardrop. There is no such configuration … You will never see a teardrop, they do not exist. I'm sorry, it just doesn't happen. Because the interelectory forces are pulling in all directions … So, that's the way you form drops, that's the appearance of drops, and there are textbooks that are misleading because they say blood falls in a teardrop shape."

And then MacDonell walked away from the jury and resumed his place in the witness chair. The real point, of course, wasn't the physics lesson, per se. It was to demonstrate MacDonell's mastery of the subject, his ease of expression, his self-confidence, his ability to correct textbooks that contradict him. It left observers, and the jury, with the impression—no, the knowledge—that guy knows his stuff.

Legghio then brought the lecture to its corollary point, one to do with the evidence. Which was, how does the physics of surface tension and all that science come to bear on analyzing blood evidence at the scene of a crime?

MacDonell explained: Blood will form uniform drops if left to the forces of gravity and surface tension. Smaller than uniform drops mean an application of outside force, and the smaller the drop, the more the force. Drops of one size might mean the victim was hit with a baseball bat traveling at 25 feet per second. Much tinier drops, smaller than a millimeter, come from the huge forces generated by bullets.

And then they got to the crux. MacDonell, with the court's permission— witnesses normally are not allowed to hear or see other witnesses unless they have already testified, but in his capacity as an expert witness an exception was made—had sat in on Woodford's testimony of the day before about castoff blood and the size of its droplet components.

Legghio: "Do you recall at all his answers as to what size castoff droplets of blood could be?"

MacDonell: "I'm sure it was three to six millimeters in diameter." Legghio: "Do you agree with that testimony of Mr. Woodford?"

MacDonell: "No. That's much too large. You can get some that large, but in all the castoff experiments we do … You get spots very much smaller, much smaller than that. The only way you would get that would be to have something like a baseball bat and just swing it very slowly."

And, of course, everyone knew they were dealing with a gun here, not a baseball bat, so what was Woodford talking about?

Legghio had MacDonell look at some of the crime-scene photos of blood stains that had been introduced as evidence by Townsend. About all that MacDonell and Woodford would agree on is that the spattered blood had come from Leann's ear. Then MacDonell began a series of questions once again designed to reinforce the already solid impression that Woodford was a rookie— almost a rank amateur—compared to the good professor when it came to who knew what about blood. In fact, whatever evidentiary point Legghio was leading to would be lost when the court would recess for lunch, but the evidentiary point was irrelevant—another lecture was the purpose.

It included this bit of narrative from MacDonell about how to determine the trajectory of a drop of blood while discussing People's Exhibit 96:

Legghio: "The drop under the word 'pattern'—you say that is about one millimeter?"

MacDonell: "Yes."

Legghio: "How do you know that?"

MacDonell: "I have a calibrated eyeball. It is, well, maybe 1.1 wide and approximately two in length. That would be about—I'm estimating—about an 18-degree angle of impact. No, it's about a 22-degree angle of impact. You can do that very quickly. There's nothing magic about it. You take 1.1, divide it by two equals .55, and that's the sine of the angle of impact, so we hit arc sine and we get—oh, I meant 33, just over 30, not 23. This is now 33 degrees, 33.4, and I did that to demonstrate how easy it is, whether you understand trigonometry or not. And most of my students have at one point in time—they haven't used it much—but it's a very nice application of mathematics.

"And when you've got the angle impact like that, you can then say 'All right, it struck at this angle' by putting a protractor. And then as you project these back, you can come to a point in space which is at or above the origin of spatter."

Judge Cooper interceded: "Apparently this particular presentation will take some time this afternoon, yes?"

Legghio: "It will, Your Honor."

Cooper: "All right. We'll recess for lunch. Members of the jury, we'll give you until 1:30. My favorite thing to do is to tell you get in the car, go far. Do not, do not go to the cafeteria, do not wander in this building. Do not discuss this case amongst yourselves or with anyone else. Don't allow anybody to discuss it with you. Don't listen to the news on the radio. Don't watch the news on television. Do not pick up any newspapers regarding this particular case. See you back in the jury room at 1:30."

The jury departed, the spectators walked out. It was 12:10 p.m. and MacDonell had been on the stand less than an hour. It had been a very fruitful 50 minutes. The foundation was well laid for the important conclusions and inferences yet to come.

Pat Carter, a friend of the Miseners, an electrician who would see every

minute of the trial, came up to a reporter. He was forlorn. "Is that the heavyweight witness you were talking about? He's got quite a way with a courtroom, don't he?"

Yes, indeed. And Carter hadn't seen anything, yet.

*

1:50 p.m. The jury walked into its box and Legghio continued with a subtle dig at Woodford.

Legghio: "You were present in the court yesterday, again, with the judge's permission, and you had an opportunity to listen to Mr. Woodford's testimony, correct?"

MacDonell: "Yes, I did."

"You heard the phrase 'gravity drops'?"

"Yes … The proper term is "passive drop," which means just a free-falling drop that is created by gravity breaking away from a source of blood."

Legghio handed MacDonell the shirt Fletcher was wearing when police arrived at his house following the 911 call. MacDonell said it looked like the same shirt he'd seen when it had been sent to his laboratory in New York on November 30, 1999, at Legghio's behest. Coincidentally, the shirt had been personally delivered by Woodford, with MacDonell examining it by stereo binocular microscope.

Legghio: "Did he assist you or direct you where is it you should conduct your visual examination?"

MacDonell: "Yes, he—well, I spread this out and I was having a problem finding any spatters, any stains that looked like blood, so he found one which I concurred looked like it could be a stain caused by blood. It was the right color. The fiber optics are very high intensity, so you can virtually make a shirt of this color appear very, very light, and that allows more contrast between—if there is a stain of any kind that's darker than the material, it enhances the contrast.

"So, I looked at that and ultimately took a photo micrograph through the stereo binocular microscope—it was a Polaroid shot—and then I looked further. He informed me, as I recall, there were two spots on here, but could not find the

second one. That was the only one I photographed. He believed them to be the result of projected blood, which would be, in that size range, consistent with the energy of a gunshot or high-velocity impact spatter. I disagreed with that at that time. It is on the surface of the fibers, and that's why I took the photograph, the photo micrograph, to show it."

Legghio had him remind the jury how many times he has examined similar articles of clothing in criminal investigations or trials. "A great many. I would say hundreds of times. I won't say thousands of times, but I've looked at garments hundreds of times."

Legghio: "So, that's the picture of one stain that you said looked visually consistent with a blood stain on the shirt?"

MacDonell: "Yes. It could be a blood stain. It's a stain."

"Did you see any other stains that appear to you to be blood stains on that shirt?"

"No, I didn't."

"You were in the courtroom yesterday and today, correct?" "Yes."

"You heard Mr. Woodford's testimony?" "Yes."

"Did you hear his testimony that he found just all kinds of little specks of blood on the shirt?"

"There are pins there [on the shirt] and I looked with a 20-power microscope and high-intensity elimination, and I was unable to see anything except where the pins go through the cloth. I'm not saying there's not something there, but with this kind of equipment, I ought to be able to see it."

"So, do I understand your testimony, then, when you were in Corning, New York, and you had what you consider to be acceptable or near-perfect laboratory conditions, the only spot or stain that you saw on the shirt is the stain that you captured in that photograph marked 'Defendant's LL'?"

"That's correct."

Having attacked Woodford's conclusion that there were numerous small blood stains on the shirt, Legghio then attacked a more important conclusion

made by the prosecution's blood expert that the one stain they agreed on got there as a result of high-velocity bloodspatter, the kind of fine-misting generated by a bullet expelling microscopic droplets of blood at high speed.

MacDonell said that while he still wasn't convinced the spots were blood, he was certain they had not resulted directly from high-velocity bloodspatter.

"It has to be a surface transfer," said MacDonell. In other words, the blood hadn't spattered on Fletcher's shirt directly. It had spattered onto something else, first, and then Fletcher's shirt had come into contact with it.

"How can you make that distinction?"

"Well, the dark areas are shadows. That's where the light does not penetrate down into the garment so you can see the weave pattern more clearly. On the surface, right in the center on two top fibers that are jumping across, as you can see, there is blood on each side of a depression which has no blood in the fiber, here. If it were projected as a round ball, which it would be in the air, these areas down in here would be stained as well as just the surface. And then there are other little lighter spots on the top of the weave that, again, are consistent with contact but not with projection."

"Is it your opinion, then—let me ask this. Do you then disagree with the opinion by David Woodford that whatever you saw on that shirt was high- velocity impact spatter?"

"It's not that. It's transferred blood. I disagree with that, yes."

Woodford's testimony—and Townsend's case—appeared to be unraveling.

*

Thirteen days after Woodford's appearance in Corning with Fletcher's shirt in hand, MacDonell flew to Michigan to visit the murder scene. He walked through the entire house, but naturally enough spent most of his time in the bedroom where Leann had been shot.

He examined the ceiling and other places that police might have missed spots of blood. He examined the floor, the walls, around and under the windows, camera and tape measure in hand.

He found what he was looking for, he told the jury. "I found several small

stains of blood. I found one stain on the north wall, which would be on the wall where the bedroom door is. It was near the light switch, which is just inside the room … And there was one stain there which had all the physical appearance of a blood stain. I went over to the window, which was on the opposite wall, the south wall, and in the easterly part of the south wall I looked at these windows and found three other small stains.

"I of course measured all of these, I photographed them, and then I sampled the very smallest of all these four stains I had found, and I took that back to my laboratory and performed a presumptive test for blood on it."

Legghio offered to make a sketch of the room on the large white board, then asked MacDonell if he preferred to make the sketch, himself. "I don't know how good an artist you are," said the professor. "I'm not bad."

"I can't spell, so…" responded Legghio, drawing laughter from the audience in reference to his verbal scuffles of two days earlier with Dr. Dragovic.

MacDonell got up and went to the board and outlined the room, putting in doorways, the bed, light switches, windows and the like, all the while recounting dimensions for the jury—of room size, door width, etc.

And then he drew, in red, the four stains of blood he found—three on the window screen on the south side and immediately below the light switch on the north side.

Legghio then moved to have three photos taken by MacDonell of the stains admitted as Defense Exhibits MM, NN and OO. Exhibit OO was a close-up of the blood stain by the light switch.

"Clearly it is heavier on the bottom," said MacDonell. "By gravity, there is more blood on the bottom. It is coming down, that is clear from the point, as well, so having the geometry of the drop I can tell it's descending. It's eight degrees to the left of vertical."

And the significance of the picture of the drop and the angle from which it landed?

"They do show directionality, which goes back toward the bed, in that general area … it comes up at an eight-degree angle going up toward the bed … It's clearly coming down from the right to the left."

That the blood came from the direction of the bed was crucial. The prosecution's theory was that Leann had been shot while kneeling on the floor. If MacDonell could establish a different point of origin, the prosecution's theory would be proven wrong at the start of the defense case. What's more, police photos showed a large blood stain on the bedspread, which had been in place on the bed when they arrived. It was the prosecution's contention that the blood had gotten on the bedspread after Leann was shot on the floor, that the force of the bullet had jerked her body over to the bed, where her profusely bleeding ear had come into contact with the spread before she fell to the floor.

MacDonell said the prosecution was wrong. It was simple physics, he said; the force of the bullet, while carrying plenty of killing power, was incapable of propelling Leann's body from where the prosecution said it was—kneeling on the floor—to the bed against the wall.

Legghio asked, "Now, Professor, do you recall the testimony yesterday that the prosecution's expert opined that Mrs. Fletcher was on her hands and knees, approximately nine and a half inches away from the bed?"

"Yes, sir, I heard that."

"And do  you  also  recall  that  Mr.  Woodford  had  testified  that  Mrs.

Fletcher … was anywhere between 14 inches to 18 inches off the ground?" "Yes, I remember that."

"And do you further recall the testimony that the height of the bed here is approximately 22 and a half inches?"

"One-half."

"Do you agree that a single .45-caliber shot to the head, no exit wound, would cause the head to thrust nine and a half inches—without even discussing the height differential—thereby creating the contact blood stain?"

"Only in Hollywood. No. That doesn't happen." "How do you know that?"

"Physics."

"Okay. But you weren't in the room and you weren't there when the bullet went in the head."

"Right."

"So how is it that you can arrogantly state you know that the head or the body didn't move nine and a half inches?"

After several objections by Townsend, MacDonell testifies that he has fired many bullets into recovery tanks for testing purposes and into a variety of substances. Bullets, he says, "do not impart a destruction that moves the object being shot."

Legghio: "You talked about Hollywood. Is there such a mental concept that you shoot somebody, they jump back with the force of the bullet?"

MacDonell: "Yes, especially in Dirty Harry. Never happened in real life." "Dirty Harry, Arnold Schwarzenegger–type movies?"

"Yes."

"Is there a scientific principle upon which you base your opinion that Mrs. Fletcher's head could not have moved nine and a half inches from point of impact toward the bed?"

"Yes. Again, from physics, and also having seen people commit suicide and see that they do not get blown one side to the other. With a .357 Magnum, for years the most powerful handgun made, Mr. Bud Dwyer committed suicide on camera. He shot in the mouth, the energy transfer was such that there was no noticeable movement other than he dropped immediately, which is what people do.… From the physics, the deformation of the projectile, the disruption of the tissue, intracranially specifically, will transfer the energy levels so low that you probably won't see the head move, even if the bullet does not exit. That is physics."

"My question is this: Can a bullet, even a large bullet, ever push the body or portions of the body? I mean, is there enough energy when that bullet goes in that it actually pushes the body or pushes the head?"

"No. It cannot. You have what is called the kinetic energy from the bullet. We know the weight of the bullet in grains—in this case 230. Seven thousand grains to a pound. We know its velocity is 855 feet per second and we take kinetic energy equals velocity squared times the mass or the weight. When you calculate the amount of energy … and apply it to a head absorbing it—the head weighs nine or ten pounds—you cannot move the head hardly any noticeable

amount."

MacDonell buttressed his theory that Leann had been shot while sitting on the bed, and produced photos he had taken of a human model he hired at his laboratory. The model, while leaning over to pick up the single bullet not yet in the clip—while holding the gun and the clip in the same hand—could have shot herself in such a way that accounted for all the various types of blood smears and their angles as shown in police photos.

The photos were admittedly awkward, but who was to say that a novice gun user wouldn't end up in an awkward position while trying to pick up a bullet while attempting to load it in a clip? In any event, from Legghio's perspective, it was better to have an awkward theory than one that defied the laws of physics.

MacDonell's direct examination ended—or seemed to—moments later, after one final, crucial point, one that refuted prosecution testimony that the crime scene had been tampered with.

Townsend claimed that blood found under the gun was evidence that Fletcher had placed it there.

Legghio: "Can you indicate to the members of the jury whether that causes you any concern that underneath the gun were found blood stains?"

MacDonell: "No. When the shooting occurs, blood is projected and therefore it will travel faster than gravitation for a moment, until air resistance slows it down. But it merely has to be projected on the carpet before whatever is on top of it fell or was dropped, and that's not at all unusual."

Legghio announced the conclusion of his direct examination of Professor MacDonell at 3:15. Judge Cooper ordered a ten-minute recess before the cross- examination would begin.

The Miseners walked out in shock. Said Pat Carter: "Doesn't look very good, does it?"

MacDonell, who wrote the FBI's book on blood evidence, had refuted nearly every conclusion Woodford had made crucial to the prosecution. There weren't a lot of flecks of blood on Fletcher's shirt; the blood that was there wasn't from high-velocity blood mist; it was a violation of the law of physics to claim both that Leann had been shot while kneeling on the floor and that her bleeding ear

had come in contact with the bedspread; and the fact that the Smith & Wesson was found atop some blood was not evidence of a contaminated crime scene.

It was a case that would be won or lost on the forensics, Legghio had said before trial, and his expert had seemingly destroyed Townsend's.

*

Several months after the trial was over and a verdict rendered, MacDonell would say when asked about Woodford for this book:

"He's not a bad guy. He just doesn't know what he's talking about. He doesn't know the subject. What he testified to, he was honest as far as he knows, but he just doesn't know what he's talking about. When he came to my lab, I had fiber-optic illumination on the shirt and he couldn't show me what he claimed was there. It's funny, I couldn't see it under ideal laboratory conditions. Make sure you write that it's not the science at fault. The science is clear. This isn't like forensic psychiatry, where they can't even agree on what day it is. This is very clear science. It's the people doing it that make mistakes.

"Woodford's not adequately prepared to give expert testimony on bloodstain interpretation. It's clear from his reports and his testimony that he does not understand the subject. He shouldn't give testimony unless he improves significantly."