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Crime and Science Radio Rewind: Judging Science: Evidence and Courts with Marcia Clark

 

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Courtesy of SUSPENSE MAGAZINE May/June/July 2018

Suspense Magazine May June July 2018 Cover Online copy

Marcia Clark: Judging Evidence

Interview by Jan Burke

Listen to the Interview

Former Prosecutor Marcia Clark is a person most people know. Whether you are an avid reader of thrillers and have been enjoying Marcia’s fantastic character, Rachel Knight; or you are one who is interested in the world of crime and punishment; or even if you are one who loves sitting in front of TruTV to watch high-profile cases play out in the courtroom, Marcia Clark has become a household name in one way or another. 

Recently, Marcia sat down with Jan Burke, host of Crime & Science Radio, to have an in-depth discussion regarding all areas of law and order. From the rules of evidence to some of the ways forensic science is used in the plots of her riveting legal thrillers, everything is covered.

Jan Burke (J.B.): Thank you for joining us, Marcia. Today we’re going to talk about some of your experiences as an attorney, your books, and the perceptions and misperceptions people have about the law, evidence, and science in the courtroom. To begin, how old were you when you decided to become an attorney?

Marcia Clark (M.C.): I did not start out to be one, actually. I took Poli Sci as an undergrad and soon found out the degree was basically worthless…

J.B.: I majored in the lucrative field of history, so I completely understand.

M.C.: I thought I was going to work in the State Department in the foreign office, which is what I wanted to do. And because I spoke various languages, I thought they would find that useful. Instead, they asked me if I could type. They really don’t like girls. I know a woman who works in the State Department now who says they still don’t like girls, so that’s interesting…

I floated around for a year or two and wound up saying: “Lawyer. I think that works.” And I applied at the last minute to law school and took the LSAT, hung over. I wasn’t exactly your most devoted fan of the law, but I became one.

J.B.: So you weren’t one of those people who in second grade stood up and said, “Objection!” to their teachers?

M.C.: I said all kinds of things to my teachers, actually, but not that one. That would have been a nicer one. But that’s a story for another day, Jan. When I was a kid I wanted to write. I liked writing, I liked acting, but I didn’t have faith in my ability to earn money doing either one of those, so…

J.B.: Which law school did you attend? 

M.C.: Southwestern, here in Los Angeles.

J.B.: And ended up working in defense?

M.C.: Yes, I started out as a criminal defense attorney. No way was I going to work for “THE MAN.” The thought of being a prosecutor never even entered my head. I clerked for a defense firm for about two years and then I worked as an associate for about a year and a half. When it came to the point where it seemed I was always defending violent criminals, I realized that I’d rather prosecute. In fact, I felt like I did not want to practice law anymore at all unless I was a prosecutor. So when I went in for my interview, the D.A. at the time was John Van de Kamp, I told him that I thought I was done with law if I couldn’t be a prosecutor. 

J.B.: So, you’ve worked in this field for quite a while and created Rachel Knight in your books. In what ways does the real life of a D.A. differ from what you see in books and on the screen?

M.C.: One thing for sure, is when it comes to books or TV, we all cut out the boring parts. Writing motions, doing research…not really sure how you could take that and make it exciting. Reading. Yeah, she’s still reading…. Typing. Yeah, she’s still typing…. We cut out all of the necessary but boring routine stuff. 

A D.A. is out in the field more, especially when speaking of the special trials unit. The thing with special trials is that we pick up the case the day the body is found, which means we’re out on the streets with the cops and detectives a lot. We interview all witnesses on every case. I never took a case to trial without talking to all witnesses first—outside; where they were—especially at crime scenes if I could, so they could walk me through, show me what they saw, where they saw it from, etc. That usually put me in a better position in court. 

J.B.: That is a whole different level, the special trials unit for the L.A. County D.A.’s Office. I’m assuming this is a division that not every jurisdiction has?

M.C.: Or even every prosecutor. In L.A., the thing unique about special trials is we do that kind of vertical prosecution from the bottom up. Because they handle all the high-profile, complex cases, they need that time to go out in the field and get that information. Most prosecutors get the ordinary cases very shortly before the jury trial commences, which counts for the pressures that are most common. Other jurisdictions do it differently. I’ve heard New York actually does have, as a matter of routine, the prosecutors going out in the field with the detectives. I don’t know that’s true, but since everyone does things differently I would imagine the bigger offices where there is more crime would have less opportunity to do that. Because it would require an office with a lot of prosecutors to be able to do this kind of prosecution. The D.A.’s office in L.A. is the biggest in the world. Makes sense, the county is huge. If it were a state it would be the 7th largest in the U.S. 

J.B.: What would make it a special trials case? Would it be based on the high-profile and complexity of the case?

M.C.: Cases that will attract a lot of media attention. The Menendez brothers, for example, was a special trials case. Phil Spector. Those are the kinds of things that rate being a special trials case.

J.B.: We all have seen everything from L.A. Law to Law & Order, not to mention reading the legal thrillers out there. Can you name a few of the errors and clichés in those that make you go nuts. Such as, watching a legal drama where everyone in the room is riveted, yet you break out laughing because of the blatant error? 

M.C.: You know what you and I have laughed most about is the forensic stuff they do. Like finding an eyelash in a field that can be traced to just one person. And I say, “Really? Out there in the field with the alfalfa you found an eyelash? Wow!” 

They will also have those prosecutors arguing with the judge about what piece of evidence should or should not come in. You don’t really get to do that. They also strut around the courtroom which in real life most judges would never allow you to do. (Although some will, as we know.) There’s a certain level of showmanship for the sake of drama where an attorney will argue with a judge, whereas in real life the judge would say settle down. Not to mention the rulings. Judges offer rulings on TV that I wish in my wildest dreams I could get in.

J.B.: One of the things I’ve noticed with both the forensic science shows and courtroom dramas is the amazing amount of science that has not passed any rule of evidence I know about, getting in. I don’t even know if most people are aware of the rules of evidence. Not to mention the rules about what you can do to an arrestee to get a confession. 

M.C.: Exactly. You really aren’t allowed to beat them with phone books. That cracks me up on TV, having cops out there beating the suspect up and getting a statement that will later nail him in court and all will be fine. Which, of course, would never happen; that is the anomaly. Cops, by and large, do not do things like that and do not get away with them if they do. You need to read them their rights, you need to get a valid waiver because you can’t get the statement in without it. And on TV the statements always come in so clean. The suspect admits or denies. Easy. But in real life, if you get the statement, a confession is a “yes, but…” An approach avoidance. “I did this but I didn’t do that.” Which means the best thing for the prosecutor is not to use it at all. Unless you think you can’t prove the case without it. They don’t show reality and I think if they did, and what the prosecutor has to do to overcome, it would make for a better story. 

Then there’s the other thing you were talking about, the rules of scientific evidence. You don’t just get to put in scientific evidence because you want to. It has to pass muster. You usually have to have a hearing if it’s something new in the field. In the very beginning, when DNA was new, you had to have these incredibly long hearings where you had to show that the DNA testing methods were accepted in the scientific community. It was no easy thing to prove. So there are quite a few hoops to jump through before this stuff gets into evidence. 

J.B.: The person in a show who has discovered some new way of processing something, like photo-manipulations, really drives me crazy. The court certainly wouldn’t like you bringing in doctored photos.

M.C.: And they won’t let you. Not to mention, the defense will object. Even if it’s just a blowup, the defense can and will look at it to see if it’s distorted in some way. You don’t just get to do whatever you want.

J.B.: In the real world there are these tests that must be done on evidence, so the judge is going to ask you to bring in experts. I assume the defense gets to bring in their experts to say something is not reliable or accepted?

M.C.: Yes, each side gets to bring in their experts and the judge must make a ruling; basically saying it is or is not reliable, or accepted by the community, or meets the standard for admission into evidence, which requires testimony from both sides before a ruling can be made. Towards the end of DNA acceptance, the defense was more and more getting into the position of, “Never mind calling the witness, it’s not worth it. It will just come in.” And they would just kind of make a record by cross-examining the prosecution’s expert. We’re at the point now when the DNA evidence does all come in, but there will be new methods of DNA testing that will require the same expert testimony before its allowed in, in the future. PCR testing was relatively new when we were working on Simpson and that required all kinds of hearings: you were allowed to use it to exclude people but not to identify. 

J.B.: I think this week in the news they were talking about the third trial of some individual and how they had an expert at “touch DNA” who has apparently testified sixty times. That may sound like a lot, but when you look at the whole country, that’s not many trials. I think that is one of those areas when we speak about DNA and how small of an amount you actually need. I think a lot of people don’t understand forensic science. Things change. You can always find yourself feeling very sure about something in one decade, and yet a decade later it changes. I know the FBI goes through this with everything from hair evidence to bite marks; they even once thought fingerprints could be challenged?

M.C.: They don’t get too far with that, however, because proving two people have identical fingerprints is quite a reach. And fingerprinting has been around so long that if we really had a problem with people having identical fingerprints, we would have seen this happen by now. The fingerprint databases are so huge; they’re vast, in fact, and we aren’t finding people with the same fingerprints.

But with DNA being so new and the databases not nearly as vast, although they’re growing every day, the biggest challenge used to be that the databases were so small you could not justify that no two people could have the same DNA. Of course, as time moves forward, I think we are becoming certain of that fact. But the databases are still not nearly as big as the fingerprint databases.

J.B.: I think a lot of people have, for better or worse, watched trials on TV and probably noticed that there will be experts that contradict each other. How do you choose your forensic expert, or do you live with the guy the lab sends over to you?

M.C.: Usually you have to live with the guy they send over to you. LAPD has a crime lab and the one who is assigned to you is the one you get. The only time you might get to choose outside that box is when their tech has a problem, can’t testify, or it’s a heavy-duty case. Not necessarily a high-profile case, but one that offers serious charges like murder. In that case, they might let you find another expert to back up what you have already done. Typically evidence goes straight to LAPD, especially now that they have a crime lab with a DNA lab up and running. Back when I began, before Simpson, we had to use Cellmark because the LAPD did not have a crime lab and were not set up to do DNA testing. Because there was such a big challenge in the Simpson case, we ended up sending our samples to not only Cellmark but also the Department of Justice. At one point, even before that, I wanted to agree to let the defense expert, Ed Blake, do the testing. I knew he was a good guy and we could share all of these results. But the defense didn’t want to share these results…

J.B.: Mmm. How funny…

M.C.: Typically, though, your jurisdiction has their own place. I think in the south part of California, in Riverside, they use Biotech. But whether it’s a private lab or one associated with the police station, you can reach outside that and get other experts—but only in very unique cases. 

J.B.: When we see defendants in courtroom dramas, they are quite often suave, well-behaved, in suits. But I would assume they are not people who represent the “average bear” brought to trial. Tell us, in your experience, the criminal mind and demeanor of the types of people who came before you, more often than not.

M.C.: I love that, too, that they always have the cool, charming types. Not to say that type of defendant doesn’t appear, but it’s rare. That kind of defendant is normally a sociopath. They are not necessarily a serial killer, but they commit crimes for pleasure, fun, and sometimes for profit. That kind of defendant is more in control of the instrument than your typical defendant. Typical defendant is: Johnny tells Eddie, let’s go rob that liquor store, and then they grab someone’s gun and go do it. And then, BOOM! They get locked up immediately because they’re idiots and wind up in court. Typical of these defendants is poor impulse control, and that poor impulse frequently finds its way into the courtroom. They’ll give hard looks to witnesses, pop off and say things in front of the jury, yell at their lawyers, and basically do things that are bad for them. 

J.B.: In a book or on TV you have to create a worthy antagonist. Not much of a story if it’s the Johnny and Eddie type.

M.C.: People ask me all the time about my books, “Are these the cases you handled?” I always say that if I told you the real story of real cases the book would be over in two pages. They went to rob a liquor store. BOOM! Story over. 

J.B.: Let’s talk about legal terms. People hear words that have legal meaning that they misunderstand sometimes. (For writers out there, I recommend getting yourself a great legal dictionary.) For example, I see a lot of confusion between homicide and murder and between murder and manslaughter.

M.C.: And that is a really common one. Homicide means that you have an indication of criminal agency. Somebody died at the hands of another, but whether what they did falls under first degree, second degree, or homicide is a separate issue. Homicide just means that a criminal agency is involved in the murder; someone is dead and didn’t get there naturally. If this is not true, then it’s deemed a suicide. If it is a homicide, you then move to the question of what kind/type of crime it was. Was it murder? First degree means it was a premeditated murder; there was some planning before the act was done. But as the jury instructions will tell you, planning does not require any particular length of time. If I pick up a gun and say, “I’m going to shoot you,” and then do it, that’s premeditation. In that one breath, that’s enough; first degree is an intentional killing and doesn’t require any particular length of time. 

Second degree can be a rash impulse. The kind of murder that occurs in the course of a fight or argument, which is not premeditated. Then you have manslaughter. Voluntary manslaughter is a killing where there is some type of mitigating influence. By that I mean, something that makes it less than murder. We are all familiar with killing in the heat of passion. For example: If you are in a bar fight and someone throws a bottle at you and you hit him over the head with a bottle and kill him, that’s most likely involuntary manslaughter. The other way you can receive manslaughter is if you believe, even if that belief is unreasonable, that you must defend yourself. Such as the George Zimmerman case. The theory behind this form of manslaughter is someone is threatening you and you honestly believe you need to defend yourself with force. But if it’s not a reasonable belief; there is no justification. This is called unreasonable belief in the need for self-defense. That, too, can get you manslaughter. Now if you have reasonable belief, that’s a complete excuse and you are not guilty of anything.

J.B.: And will you be the one collecting the evidence and coming to that conclusion? Who determines the charges to be filed? 

M.C.: The decision on what to file is also something specific to the special trials unit. The ordinary cases go through what is called the “Complaints Division” downtown. In branch court, they’re called filing deputies. All they do is when the cops bring in their reports and say, “I want to file charges against Joe Smith,” the filing deputies look at the reports and decide what they have there and decide what charges to file. When you are in a specific unit, like special trials, the detectives come right to me and say what they want to file against Joe Smith, such as, we think he’s good for murder. I review the reports, what we have, and I decide whether or not I agree with the detectives and then file whatever charges I see.

J.B.: I’m assuming this can lead to tension? When the cops believe they have a case every time?

M.C.: Not all of them. Some are reasonable. They will come in and say it’s a little skinny now but review the reports and tell me what you think I’m missing. Frequently, in those situations, I do a reject pending. Which means I reject the case pending further investigation, but that means it’s not really rejected. I’m just saying go out and get more stuff. If you’re working with reasonable police officers and you’re reasonable, it’s fine. 

On some occasions you will have someone chomping at the bit, snorting fire out of his nose, etc., who states: “I have Joe Smith for murder and you have to file this.” I have gotten into it on one or two occasions with detectives. Once they even went over my head and went to the big honcho and said, “I think we’ve got it and she’s wrong.” They backed me but, needless to say, it was a very uncomfortable time and a lot of tension and anger. They come in believing in their case and they should! Unless they come in and say they just need to show they’re working with a D.A. and looking for a reject pending which they’re fine with, that’s another story. But if they come in really believing there should be a specific filing, then they ought to be behind their own case. That’s why you need checks and balances. You can’t just have one person making all the decisions which is why it’s good to have a prosecutor on the outside saying, “Look, if I take this to trial the defense is going to say you’re missing x, y, and z.” For example, your eyewitness isn’t strong. Or he’s a gangbanger from the rival gang of the defendant who will say anything to nail the defendant, etc. Then they need to go find me corroboration.

J.B.: Getting back to some of those terms. What does reasonable doubt really mean? I think we’ve reached a point where people think anything can be proven with physical evidence. And that this evidence is always available, testing is available, and if you’re not bringing it in then you didn’t look hard enough for it.

M.C.: You’re right, it is a very big problem. You have these cases that get highly publicized with tons of evidence. There’s hair, blood, DNA, saliva—everything you can imagine and you have it all. That’s cool. But it is not common. First, not all crimes provide evidence; a burglary very seldom leaves you more than fingerprints and you rarely get those. Or you’re relying on an eye witness living down the street who got a glimpse of someone…good luck with that one. Juries have a skewed look at things. They believe we should always have DNA and a wealth of physical evidence. And maybe someday we will. Maybe one day evidence collection will reach the point where we will be able to get electro-static footprints out of dust, and all that cool stuff, but we’re not there yet. Most cases don’t provide such things and as a result juries wind up equating lack of physical evidence with reasonable doubt. 

But, here’s the thing, Jan. I handle criminal appeals across the state of California from the northern tip to the southern tip now, so I have a better chance to see, overall, what juries are doing than I ever did before. I see them convicting without physical evidence all the time. But in other cases, juries may come in and decide they simply like a defendant more than they like the prosecution or the victim. I just handled a case, which was quite interesting, where they charged three defendants with murder and the three defendants came off better than the victims did. The jury ended up acquitting two and convicting the third on manslaughter. Ordinarily, a case like that where the victim is unarmed and the defendant went and got the weapon used, would have led to murder convictions across the board. But this jury did not cotton to the victim and it went the other way. That wasn’t about physical evidence or lack thereof at all. 

That’s why reasonable doubt bothers me because it is a very elastic term. The problem is a jury can say reasonable doubt when really, objectively speaking, isn’t what they’re doing. What they are doing is converting “reasonable doubt” to “reason to doubt.” People find a reason to doubt that the sun is going to rise tomorrow. Apocalypse tonight and the sun doesn’t rise. That’s a reason to doubt. But is it reasonable? No. But that’s what happens with juries which is sometimes why you end up with odd verdicts. They come out and say there’s reasonable doubt and the people watching say, “What? There was a reason.” Well, you’re right, but the jury found a reason to doubt.

J.B.: Now, what does circumstantial evidence mean?

M.C.: Keeping it simple, circumstantial evidence is, say, a fingerprint. Why? Because you have to deduce from the fingerprint that the person who left that print is guilty of the crime. You didn’t see him do it, because that would be direct evidence, so that’s the short version of it.

J.B.: Which means most all evidence is circumstantial? 

M.C.: Yes. Anything short of the defendant saying, “I did it,” or an eyewitness picking them out of a line-up is circumstantial.

J.B.: Here’s another one I believe people don’t quite understand: Legally insane.

M.C.: Here’s the thing. It is a very high standard to prove someone is legally insane. You have to prove they did not understand the nature or quality of their act, and that they could not control their behavior. Basically, they did not know what they were doing. You’re talking about a person walking into a bar, shooting three people, but actually believing that he was spraying flowers with insecticide. You know what I mean. It’s that level of disorientation or lack of reality in what he’s doing and very, very few criminals can meet that test. It is very rare. Legally insane really does mean a person who does not understand or appreciate the nature and quality of his act. And who does that really fit?

J.B.: So those sitting at home saying you must be crazy to want to take someone’s life…that’s not the standard. 

M.C.: And if it were, you would have to rule everybody legally insane because what sane, rational person decides they have to kill somebody. No matter what that person might have done to you, do you really have to kill the person? We used to have a test in California a long time ago called “Irresistible Impulse.” That was where they said, if a defendant had an irresistible impulse and could not control himself and stop himself from committing the crime then he was legally insane. But the problem with that test is, was it really an irresistible impulse or was it just an impulse they didn’t resist? Well, isn’t that all crime? An impulse you didn’t resist?

J.B.: I am waiting for the day neuro-science brings us to a whole new understanding of how the brain works. We’re starting to see it now, in fact.  

M.C.: True. They are doing some interesting testing now with the psychopath and showing the empathy center in their brain is inactive. There is really a physical difference between them and “normal” people that you can see.

J.B.: And they respond differently to various violent images, even differently from other criminals, even those criminals who committed violent crimes.

M.C.: Yes, people seldom appreciate that the psychopath is only 2 to 5 percent of the population. Very small; you would even call it statistically insignificant. The majority of criminals are not psychopaths. They’re messed up, don’t get me wrong, I’m not saying they’re the picture of mental health, but they’re not psychopaths.

J.B.: Just a couple left on my list. What about hearsay? People don’t understand that a lot of times.

M.C.: Lawyers don’t understand that one a lot of times, either. Hearsay requires its own study. Simply defined, it is a statement made out of court offered for the truth of the matter asserted. Even if you’re on the witness stand and you want to testify as to something you said to someone else during a crime; that can be hearsay. If you are not offering a statement to prove what you’re saying is true, then it’s not hearsay. For example: If you asked me, “Marcia, what are you doing?” That is not hearsay; that is a question. What truth are you asserting? There is nothing you’re proving with that statement. It might do other things, but what it is not is hearsay. 

Generally speaking, we do have exceptions which is where the confusion comes into play. For example: If I am the prosecutor and a defendant made a statement during a crime like, “Lay down or I’ll shoot you in the head,” I am allowed to put his statement on. The witness is going to say that the defendant said, blah, blah, blah. And you are going to say that what the defendant said to the witness is hearsay so how can the witness testify to it? He can because it is a party admission. Under section 1220 of the Evidence Code, that statement comes in if the prosecution is proving it. The defendant cannot do that. If he wants to put in his own statements, he has to take the stand and find a way to put it in. He cannot elicit his own hearsay; only the prosecution can do it. So that’s where it gets confusing because you have all these exceptions where this side can bring it in and this side can’t, etc. That’s why there are a lot of arguments about it. There is no hard and fast rule when it comes to the hearsay rule.

J.B.: Another thing…plea bargains. People don’t often understand why attorneys go for plea bargains rather than trials. As taxpayers they should understand, but maybe you could explain a bit about why plea bargains are necessary to the system.

M.C.: Well, I believe that if we didn’t have plea bargains, the system would collapse. There is just no possible way to have the resources to take all cases to trial. I mean, there are thousands and thousands of cases. It boggles the mind just to think of how many are in the system in L.A. County, alone. Now, defendants want plea bargains because it limits their exposure. If they go to trial they face the maximum sentence possible for all of the charges they get convicted of. If that amounts to, say, 99 years to life, and the prosecutor says I’ll give you 25 to life, then yeah, he’s going to save himself the grief of going to trial and risking the (what we call) twelve-headed monster convicting him of everything.

We wish to thank Marcia Clark for taking time out of her busy schedule to do this in-depth interview. For those who wish to check out more about “Killer Ambition,” head to http://www.suspensemagazine.com. And take a moment to check out http://www.suspensemagazine.com/CrimeandScienceRadio.html where Marcia and Jan posted additional links. 

Originally aired on Crime & Science Radio; October 2013. 

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Crime and Science Radio Rewind: Dr. Mike Tabor: Taking A Bite Out Of Crime

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This show originally aired on Crime and Science Radio on 7-26-14. This transcript is courtesy of Suspense Magazine.

To listen to the original podcast go here:
http://www.dplylemd.com/csr-past-details/dr-michael-tabor.html

mtabor

Dr. Mike Tabor: Taking A Bite Out Of Crime

Dr. Michael Tabor has a long list of talents, from being a respected suspense/crime author, to a doctor, and a public speaker. Beginning his career as a family dentist, the good doctor’s work took a unique turn in 1983 when he delved into the highly specialized field of forensic dentistry. Being one of only a handful of forensic dentists in the U.S., Dr. Tabor became a highly sought after expert in this field, performing identifications/examinations on homicide victims, as well as aiding police officers and medical examiners in the prosecution of thousands of crimes.
Dr. Tabor sat down with D.P. Lyle, MD and Jan Burke, to be interviewed on “Crime & Science Radio.” He talks in-depth about everything from his early background and how he got into the field of forensic odontology, as well as his work on some high-profile cases, such as the autopsy of James Earl Ray. He speaks poignantly about his work helping to identify victims of the 9/11 tragedy, and tells readers what to expect from his upcoming titles. 

D.P. Lyle, MD (D.P.L.): Welcome Mike. Being a forensic odontologist (which is a big word for dentist), can you tell people what attracted you to this field in the first place?

Dr. Michael Tabor (M.T.): In addition to dentistry I also have a passion for football, and for 25 years I have been a back judge for high school football in Tennessee. One day, while in my officiating role, our new state medical examiner at half-time came up and said, “You know, I’ve got an interesting body that’s just been pulled out of the Cumberland River here in downtown Nashville that has numerous gold fillings in their teeth, and I have no clue where to begin. Would you like to help me?” And 20-odd years later, here we are on “Crime & Science” radio. True story.

D.P.L.: There’s a big difference between doing fillings and extractions in the office and then moving into forensic odontology, did you have any special training (like they do now) at that time; or did you just kind of learn by the seat of your pants the things you needed to know and how you were going to approach this field?

M.T.: Actually, there weren’t many training programs at that particular time. I had the good fortune, however, to be mentored by three good friends—all of whom were giants in the field then. One, Doctor Richard Souviron, in particular, I had the pleasure of meeting when he served as my opposing expert witness in the first bite mark case ever admitted into a Tennessee court of law. This was just a few years after he testified in the Ted Bundy case, which literally made this “David vs. Goliath” in the Nashville court case. What was strange about it is that afterwards we became the best of friends and have enjoyed a great relationship since then. 

Jan Burke (J.B.): You’ve obviously had a long and storied career. I wanted to bring up that you have served as a past president of the American Board of Forensic Odontology. It is clear you’re dedicated to high standards in your field. Could you tell us a bit about the recent study/report by the American Academy of Forensic Sciences that spoke about how to maintain these high standards? In other words, what’s in and what’s out in forensic odontology? 

M.T.: I have to start by saying I certainly respect the Academy and certainly appreciate all suggestions they have for the field of forensic odontology. It’s important to note that forensic odontology is not a specialty of dentistry, it is a specialty of forensic science. When it comes to jurisprudence, everyone from toxicologists to document examiners…we all want to get it right. We want the best possible chance of solving a mystery using our specific field. We have many recognized disciplines within the realm of forensic science and anytime the American Academy comes out with concerns, ideas or suggestions the American Board of Forensic Odontology, as well as the odontology section of the Academy, pay very close attention. 

We’ve made several changes when it comes to the ways our diplomates consider and come up with their opinions for courtroom testimony. We’ve seen roughly 10 cases or so during the last few years that involve people on death row, who have been found guilty of a capital offense, have their conviction overturned since the refinement of DNA analysis. In other words, the wrong opinion was given at the onset and a person was falsely imprisoned as a result. We still maintain that bite mark analysis, when used by a properly vetted expert—and that’s the key term right there, a properly vetted expert witness—adds value to the case. Yet, we are going a step further now, because we want to make sure that we don’t have ten more of these cases appear over the next decade. 

I think one thing that happens, take The Innocence Project, for example, is that people are quite quick to point out these ten cases and fail to mention scores and scores of other cases where bite mark evidence was used properly,  and as a result was a key tool in achieving the right verdict that the jurors came up with. We pride ourselves in knowing this very small niche of forensic science, but there are lots of other witnesses, evidence, and factors that jurors have to consider. It was not the forensic dentist that put this person on death row. Jurors will also review the medical examiner report and one side will have an expert stating that a death was the result of, say…shaken baby syndrome, while another well-respected expert offers the opinion that it is not SBS but death by SIDS, for example. Then jurors have to decide if this is a homicide, suicide, and the list goes on. We recommend that every board certified forensic odontologist seeks a second opinion before trial, and we’re really trying to make sure we adhere to the recommendations and principles the Academy has suggested.

D.P.L.: Can you speak about what is required in order to enter the field?

M.T.: Interestingly enough, only knowledge in the profession of dentistry and an interest in the field of forensic odontology is required. Most of my training, and even up to this day, a lot of it has been on-the-job training. I am proud to announce for the first time however, on this show, that we are getting ready to change that because the field is linking arms with forensic anthropology. And, what better place to have it done than at The Body Farm in the University of Tennessee at Knoxville. Starting soon we will offer the first post-graduate degree program in the U.S. where you can earn a masters degree in forensic human identification. We are actually linking arms because we do have a lot of overlap between the fields; forensic anthropology focuses more on age, sex, and race, whereas odontology deals with comparing a known to an unknown, which is how forensic dentistry really started out. There are 32 teeth in the human body and each tooth has five sides, the possible combinations according to what the math professors tell me is five to the thirty-second power which equals a number bigger than the actual number of people living on earth. So let’s just say that the field is going to be around a long time. 

As these programs grow and develop, hopefully forensic dentistry will increase and there will be more courses available to take. Right now we have one in San Antonio and another in Detroit, with a new one starting in Las Vegas. But this in Knoxville will be the first of its kind, and not just for dentists. This is available to dental hygienists, crime scene investigators—anyone with an undergrad degree who wants to further their education in human cadaver identification. We are pretty excited about it.

J.B.: That is worth being excited over, and we are honored that you chose to announce it here. Now, some people are not really sure what a forensic odontologist does, so can you give us a brief overview of what the work entails?

M.T.: I’d be happy to. First off, most all major cities are affiliated with or have a certified forensic odontologist on staff. We only have 105 in the U.S., so there aren’t a whole lot to go around. But the National Board of Medical Examiners, which is the credentialing service for all medical examiner offices in the U.S., recognize the importance of having a forensic odontologist in their morgues. As a result, when each office has to get recertified, one of the points the Board checks on is whether the office is affiliated with a board certified forensic odontologist. If they’re not, they get a ‘ding’ and you can only have so many of those before losing your credentials. It’s like a medical school not being accredited with the AMA; they might just as well not exist.

When it comes to the job requirements, we compare knowns to unknowns. Basically, there are three ways to identify a person: DNA, fingerprints, and dental records. So, say we have a body brought into the morgue. We have to know from the investigator, before we can lend some credible info, who they think the person might be. If they have no idea, we start at the end of the fence and work backwards by making a chart of each of the 32 teeth, and each of those five sides and record any type of fillings there are, what surfaces have been fixed or altered, etc. We x-ray and photograph and make a complete record, just like when it’s a live patient. Our next step is to enter this information into NCIC or NAMUS. These are national databases, with NAMUS being accessible to the general public and NCIC being for law enforcement officials only. These databases record any and all distinguishing characteristics on a body that is currently being held in medical examiner’s offices. We keypunch in our data which goes into national and international databases and searches for a match. It also calls up information on missing persons across the country to attempt to locate a match. 

More often than not we are trying to identify victims from auto accidents, house fires, plane crashes, etc., where the body has been harmed to the point where age, sex and race cannot be determined. That’s where dentistry becomes so valuable. Teeth are virtually indestructible, yet even if a body has been lying on the bottom of the ocean for a hundred years, when they are brought up the teeth will look exactly the same as the day they died. You can’t say that for fingerprints or DNA. We can compare the knowns that come from teeth analysis with the unknowns and use this to identify a victim.

D.P.L.: You mentioned anthropologists earlier. Are both forensic dentists and forensic anthropologists called out to a crime scene at same time? Do they work in tandem? 

M.T.: When it comes to bones that are discovered, say, in the woods, often the anthropologist is called upon first. They are such bloodhounds they can find things no one else can. We wait and take the info the anthropologist gathers, such as the person was six-foot-two, African American, male, etc., and we will use that to try and match their data with a missing person. From then on, we work together. 

Along these lines, the book I wrote is the story of the most bizarre case I ever worked on in my career, which was actually at The Body Farm in Tennessee. I was working there with Dr. Bill Bass (the founder), and Dr. Murray Marx, and his contingency. It was there that they were actually able to develop the age, race, and sex characteristics of a body yet it still remained a John Doe for decades. At the farm what they developed was a system/program called TSD (AKA: time since death.) They have studied and honed their skills for identification by taking a body that has been donated to science and placing that body in a field (inside a protected area, of course), subjecting the body to all environmental conditions. They study and photograph the body on a regular basis to determine even more information such as, what it looks like in the decomposition process (i.e., the insects, the maturation levels of the insect larvae). They record wind speeds, humidity, temperature changes, etc., and from all that they are able to provide a very valuable tool to investigators; in addition to the norms of age, sex, and race, they are able to determine how long this body (or discovered bones) has been there. The time since death is very important to everyone from investigators to crime writers. 

J.B.: You were involved in identifying the 9/11 World Trade Center victims. How did it come about that you got involved with that? What did you do as part of the team? 

M.T.: That was the year I was serving as president of the American Board of Forensic Odontology. A member who held the same position in NY that I held in TN spoke to me and addressed the enormity of the aftermath. Death investigations were going on just like always, before and after 9/11, and these facilities were quite taxed. Quite a large percentage of experts volunteered their time to assist New York’s medical examiner with this task of trying to identify the victims. 

We first worked to accumulate accurate flight manifests so we could attain various medical and dental records for those on board the planes. When you reach a number of victims north of 25 to 30, you need to use a computerized system to organize records and data. We utilized a software program called WIN ID that was written by one of our diplomates, Jim McGivney. We entered all the information we collected and the antemortem (before death) records into the database, and began identifying remains. We had information from the manifests, port authority records, data given from wives and husbands whose significant others didn’t come home that night, firefighters and police officer records, etc. We also had people who jumped from the buildings, choosing to end their lives instead of having to experience the inferno that would have taken them. We ended up identifying approximately one-third, 1,000 out of the 3,000 who died that day, with many being identified from just the dental records. 

We had rehearsed being on what is called a Mass Disaster Dental ID team, and learned how we would grid off an area and how we would set up ID logistics if a 747 went down and hundreds of people perished. There were days, if you remember, where we didn’t know if we were going to find 3,000 or 30,000 people in the aftermath. In fact, if the planes had hit 30 minutes later, the total would have been even more horrific. It took us approximately 11 months to a year before we had the chance to sift through each bit of evidence and enter it into the postmortem database and let the computer do its’ work. Amazingly, we were pleased to be able to identify a third of them. People will ask, “How come the other 2,000 weren’t identified?” But, to be honest, some just didn’t even exist; they were vaporized by the crash. And, as you might imagine, there was a lot of comingling of remains…but we were (and are) just trying to get it right. To put this into perspective, jumbo jets have two black boxes on board. These are nearly indestructible and yet no black boxes were recovered. 

J.B.: The 9/11 tragedy was horrific. How did it effect you personally?

M.T.: Well, I have given about two or three talks a month for the past 13/14 years. Yet it took quite a while for me to even be able to talk about this without getting choked up. We have little to no training when it comes to dealing with the emotional impact of such a tragedy. I have seen lots of things in my 39-something years and most have been pretty ugly. But I never saw or experienced anything like 9/11 that stayed with me, and still won’t go completely away. 

Buddies would talk about PTSD and their time in Vietnam and I had a hard time getting my arms wrapped around that emotionally. But after spending time at Ground Zero, I can say that it is for real. We were not used to dealing with this; having to walk through a sea of people holding up pictures of their missing husbands, wives, or their only sons and daughters…people coming up to us, pulling on our arms and saying, “Please help me.” 

After our work was done, we were told to prepare ourselves for when we returned home and our close family members commented on changes they saw in us, changes in our spirit. And they were exactly right. They did send us all through a psychological debriefing workshop before we left. Part of it to address the enormity of the situation and part was to help us deal with the emotional aspects that we were ill-equipped to deal with. The last thing is that red, white, and blue that still flutters among all of us and having to deal with the fact that a foreign entity came to our country and did that to us. 

I had a dream many times in that first year after 9/11 where I was driving on a certain road in Nashville and saw a 727 going, nose-down, behind a hotel. I woke up when it hit the ground and exploded. This is a prime example of PTSD. Like opening the body bag and seeing the firefighter still clutching his axe…it gets to you.

D.P.L.: Sobering. Thank you. I hope everyone appreciates you sharing that information. Moving on to your writing, you worked with Dr. Cyril Wecht on a case with quite an infamous name attached to it, that of James Earl Ray. 

M.T.: I’ve actually worked on two cases with Cyril. My third book “Grave Mistake” will focus on one of those. I think the one you’re referring to, however, is the forensic autopsy of Ray. In a nutshell, Ray was serving his life sentence after confessing, recanting, re-confessing and re-recanting to killing Martin Luther King, Jr. 

He actually died in prison of Hepatitis C that he had gotten from being stabbed by a fellow prisoner with a broken Coke bottle. Tennessee law states that if you die in prison you have to have an autopsy done by the state medical examiner. I was called one day by our local M.E. and asked to come down to the office. I thought it was a little odd, needing me to confirm the identity of someone everyone already knew. Of course, just a few years before, there were so many naysayers and conspiracy theorists dwelling on the JFK assassination that a court order was finally gotten to exhume the body of Oswald so it could be re-identified using forensic dentistry. Oswald was in the military and had records on file, so this wasn’t a difficult process. Ray’s family had decided that as soon as the autopsy was complete, they would cremate the body. The family hired Dr. Wecht to oversee the autopsy on their behalf.

The second case I worked with him on was a tragic accident; a van holding six prisoners was in an accident and all were burned alive when the van caught fire. A wayward medical examiner ended up misidentifying bodies based on seat locations. These victims lived all over the United States, so Wecht and I worked together to sort out which body really belonged to which family. It is a true puzzle that we had to solve backwards. It was a wonderful experience getting to know him, work with him, and I cherish the time I get to spend learning more from him.

D.P.L.: Time to talk about the book. Please tell us about “Walk of Death.”

M.T.: “Walk of Death” came from me finding my most favorite thing to do in the world, write down exactly what happened on a case. 

I had a cold case murder that I worked on for over a decade before finally solving. It began in 1998 and wasn’t solved until Christmas of 2010. That’s when my wife told me, “You’re gonna write a book on this.” It was actually bizarre. You cannot make this stuff up. The case involved a staged death utilizing a pair of killers, a hitchhiker, and a life insurance policy. The plan gets a little sloppy, and law enforcement does not know who is buried in a grave. The next ten years are spent trying to put a name with an unknown face. 

This was the first time in a Tennessee court of law (and I believe in the entire U.S.) where a jury has to find someone guilty, without anyone in the courtroom knowing who the victim is. That will get you an upside-down jury. After all, you usually have someone weeping, yelling, angry about killing “Uncle Joe,” and talking about the family. Here, you have a body but it’s very hard to get emotional sympathy from jurors. Using forensic dentistry helped solve the crime, but I can’t tell you the whole thing or you won’t want to read the story. 

J.B.: And you are now working on your third title?

M.T.: Actually, I just finished the second one which is called “Out of the Darkness” and involves a bite mark case in a murder trial that I testified at in Arkansas, and the controversy around the evidentiary value of that bite mark evidence in this particular homicide. The third, based on the case with Dr. Wecht, will be “Grave Mistake.” 

Talk about sending readers running to the library. Dr. Michael Tabor is an unforgettable interview; a man whose background and incredible work on cases has not only created amazing thrillers, but has also made the realm of forensic odontology one of the most fascinating to learn about. For more information, check out http://www.drmiketabor.com or listen to other fantastic interviews from “Crime & Science Radio” with Doug Lyle, MD. and Jan Burke at https://crimeandscienceradio.com.  

Originally aired on Crime & Science Radio; July 2014. 

Subscribe to Suspense Magazine: http://suspensemagazine.com/blog2/subscribe/

 

Crime and Science Radio Says Goodbye—Sort of

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After over 3 1/2 years, Crime and Science Radio is no more. It was a difficult decision but Jan and I decided it was time to put our radio show to bed. It’s mostly a time issue—-we don’t have enough. Does anyone? And we feel we’ve fairly well covered the field of forensic science in the 67 shows we have done. We’ve had many amazing guests who took time to share their expertise and thoughts with us—-and you.

But don’t despair. All the shows are archived so they live on and are available for you to listen at any time. Here is the link to the past shows:

http://www.dplylemd.com/crime–science-radio.html

 
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Posted by on April 4, 2017 in Crime and Science Radio

 

Crime and Science Radio: Facial Recognition and Other Biometrics with FBI Senior Photographic Technologist Richard W. Vorder Bruegge

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BIO: Richard W. Vorder Bruegge is a Senior Photographic Technologist at the Federal Bureau of Investigation where he is responsible for overseeing science and technology developments in the imaging sciences.  He has an Sc.B. in Engineering, and an Sc.M. and Ph.D. in Geological Sciences from Brown University. He has been with the FBI since 1995, where he has performed forensic analysis of image and video evidence, testifying in state, federal and international courts as an expert witness over 60 times.  Dr. Vorder Bruegge was chair of the Scientific Working Group on Imaging Technology (SWGIT) from 2000 to 2006 and chair of the Facial Identification Scientific Working Group (FISWG) from 2009 to the present.  He is a fellow of the American Academy of Forensic Sciences (AAFS) in the Digital and Multimedia Sciences Section.  In 2010 he was named a Director of National Intelligence (DNI) Science and Technology Fellow for his work in facial recognition.  He is currently Chair of the Digital/Multimedia Scientific Area Committee in the Organization of Scientific Area Committees (OSAC).

LISTEN: http://www.blogtalkradio.com/suspensemagazine/2017/04/01/crime-and-science-radio-with-special-guest-richard-bruegge

Link will go live Saturday 4-1–17 at 10 a.m. Pacific

LINKS:

Biometric Center For Excellence (BCOE): https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/biometric-center-of-excellence/modalities

Facial Identification Scientific Working Group (FISWG): https://www.fiswg.org

FBI Caught On Camera: https://www.youtube.com/watch?v=u5Oj2FDwLXs

 

Crime and Science Radio: Dangerous Instincts: An Interview with Senior FBI Profiler (Ret) Mary Ellen O’Toole Ph.D.

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BIO: MARY ELLEN O’TOOLE, Ph.D. has spent her career studying the criminal mind. One of the most senior profilers for the FBI until her retirement in 2009, Dr. O’Toole has helped capture, interview and understand some of the world’s most infamous people including:

•Gary Ridgway, the Green River Killer

•Derrick Todd Lee and Sean Vincent Gillis, both serial killers in Baton Rouge

•The Collar Bomb Case, a bank robbery and murder of a pizza delivery man

•Ted Kaczynski, the Unabomber

•The Polly Klaas child abduction

•David Parker Ray, a serial sexual sadist

•The Red Lake School Shooting

•The Monster of Florence serial murder case

•The Zodiac serial murder case

•The bombing during the 2002 Olympics in Salt Lake City, UT

•The mass murder in Florence, Montana in 2001
Dr. O’Toole also worked the Elizabeth Smart and Natalee Holloway disappearances, the Columbine shootings and many other high profile cases. Her law enforcement career spanned 32 years, beginning in the San Francisco’s District Attorney’s Office when she was a Criminal Investigator. Dr. O’Toole worked as an FBI agent for 28 years, spending more than half of her Bureau career in the organization’s prestigious Behavioral Analysis Unit (BAU)—the very unit that is the focus of the hit crime series “Criminal Minds.”

During her time in the unit, Dr. O’Toole developed an expertise in Criminal Investigative Analysis (CIA) as well as offender behavior. She has provided assistance to law enforcement and prosecutors on a wide range of violent and criminal behavior including serial and single homicides, sexual assaults, kidnappings, product tampering, school shootings, arsons and bombings and extortions. Dr. O’Toole is also a trained FBI hostage negotiator and has a unique expertise in the areas of targeted school violence, workplace violence and threat assessment.

Dr. O’Toole is recognized as the FBI’s leading expert in the area of “psychopathy.”  Her work in psychopathy has put her on the forefront of mental health and law enforcement efforts to apply the concepts of this personality disorder to both violent and white collar offenders and their behavior and crime scenes. She lectures internationally on the application of the theory of psychopathy to real life situations. She continues to lecture at the FBI Academy on psychopathy and interviewing. She has served as adjunct faculty to the FBI’s Prestigious Leadership Development Institute (LDI) at the FBI Academy and also frequently lectures at the Smithsonian Institution about everything from Sherlock Holmes to personal safety. She is a Fellow with the American Academy of Forensic Sciences.

LISTEN: http://www.blogtalkradio.com/suspensemagazine/2017/03/04/crime-and-science-radio-with-special-guest-mary-ellen-otoole

Link will go live Saturday 3-4-17 at 10 a.m. Pacific

LINKS:

Mary Ellen’s Website: http://maryellenotoole.com

Mary Ellen on Facebook: https://www.facebook.com/drmaryellenotoole/

Mary Ellen on Twitter: https://twitter.com/maryellenotoole

Dangerous Instincts: How Gut Feelings Betray Us: https://www.amazon.com/Dangerous-Instincts-How-Feelings-Betray/dp/1594630836

Dangerous Instincts: The Washington Post: https://www.washingtonpost.com/lifestyle/style/dangerous-instincts-fbi-profiler-explains-the-dangers-of-that-nice-neighbor/2011/10/17/gIQAkvNCDM_story.html

Learning How To Read People: http://www.theironjen.com/learning-how-to-read-people-dr-mary-ellen-otoole/

Psychopathy: FBI Law Enforcement Bulletin: https://leb.fbi.gov/2012/july/psychopathy-an-important-forensic-concept-for-the-21st-century

Orlando Shooter Profile: CCTV America: https://www.youtube.com/watch?v=VhTjGAsUuzk

Why Are American Cops So Bad At Catching Killers?: https://www.themarshallproject.org/2015/04/02/why-are-american-cops-so-bad-at-catching-killers#.PFh6oYRhF

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Vintage Computer Games, Missing Aircraft, and an Amazing Forensic Resource: An Interview with Douglas White of the National Institute of Standards and Technology’s National Software Reference Library (NSRL)

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BIO: Douglas White leads the National Software Reference Library project for the National Institute of Standards and Technology.  He has 25 years of experience with distributed systems, distributed databases and telecommunication protocols, real time biomonitoring, real time video processing, system administration and network monitoring. He holds both a B.A and M.S. in computer science from Hood College. He has
given lectures for the American Academy of Forensic Sciences, the Federal Law Enforcement Training Center, the High Technology Crime Investigation Association, the Digital Forensic Research Workshop and other digital forensic conferences.

LISTEN: http://www.blogtalkradio.com/suspensemagazine/2017/02/04/crime-and-science-radio-with-special-guest-douglas-white

Link will go live Saturday 2-4-17 at 10 a.m. Pacific

LINKS:

Digital Forensics Rescues Retro Video Games and Software: https://www.nist.gov/news-events/news/2016/09/digital-forensics-rescues-retro-video-games-and-software

NSRL website: www.nsrl.nist.gov

NIST Forensics topics: www.nist.gov/forensics

Video lecture on the Cabrinety-NSRL effort: https://www.loc.gov/preservation/outreach/tops/white/white.html

Interview that includes the FDA story: https://blogs.loc.gov/thesignal/2012/05/life-saving-the-national-software-reference-library/

Blogs by SUL staff including Henry Lowood and Charlotte Thai: https://Howtheygotgame.stanford.edu

Video: The NSRL Library: http://www.nsrl.nist.gov/video/nsrl_shelf_walk.mp4

 

Crime and Science Radio: Car Crashes and “Crime Hot Spots” — Studying Patterns To Prevent Crime

Join Jan Burke and me on Crime and Science Radio Saturday 1-7-17 as we welcome Greg Collins and Dr. Kevin M. Bryant to discuss Car Crashes and “Crime Hot Spots.”

Planning & Research Manager

Greg Collins

Greg Collins is the Research and Analysis Manager for the Shawnee, KS Police Department.  He is primarily responsible for CALEA accreditation, policy review and updating, grant management, overseeing the Crime Analysis function, and managing police department volunteers.

Greg joined the Shawnee Police Department as a sworn officer in 1991.  In addition to road patrol duties, Greg has worked as a D.A.R.E. officer, detective, patrol sergeant, training sergeant, and traffic safety unit supervisor.  Greg has also been a member of the department’s Special Tactics and Response team, and a field training officer. Greg transitioned to his current civilian position in June 2008.

Greg holds a B.A. in Management and Human Relations from MidAmerica Nazarene University and is an IACP Associate member.

Dr. Kevin M Bryant is a professor and chair of the Department of Sociology and Criminology at Benedictine College in Atchinson, Kansas. Bryant completed training and was certified in advanced crime mapping by the National Institute of Justice (NIJ) in 2011 and is currently working toward recertification.

LISTEN: http://www.blogtalkradio.com/suspensemagazine/2017/01/07/crime-and-science-radio-with-special-guests-greg-collins-and-dr-kevin-bryant

Link Goes Live Saturday March 4, 2017 at 10 a.m. Pacific

LINKS:

National Institute of Justice: http://www.nij.gov/Pages/welcome.aspx

Hot Spots Policing: https://www.crimesolutions.gov/PracticeDetails.aspx?ID=8

Data-Driven Approaches to Crime and Traffic Safety: https://www.crimesolutions.gov/ProgramDetails.aspx?ID=479&utm_source=Eblast-GovDelivery&utm_medium=Email&utm_term=LawEnforcement&utm_content=CSprog479-07112016&utm_campaign=CSreleases

Smart Policing Initiative: http://www.smartpolicinginitiative.com

Evidence Technology Magazine: http://www.evidencemagazine.com

 
 
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