The Future of Crime Solving: A Conversation with Kenneth Melson on Prosecutions, Forensic Science, and 9/11

[00:00:00] [SPEAKER_01] I'm Anya and today we're going to hear from a man with a fascinating career in prosecution and at various federal positions, including a few critical roles around forensic science.

[00:00:10] [SPEAKER_00] Content warning, this episode contains discussion of murder and rape.

[00:00:14] [SPEAKER_01] Saying that Kenneth E. Melson had a varied career is probably an understatement. He's done quite a lot and has worked on many fascinating cases.

[00:00:22] [SPEAKER_00] Mr. Melson started at the Arlington County Commonwealth's Attorney's Office in Virginia before joining the United States Attorney's Office for the Eastern District of Virginia as an assistant U.S. attorney. From there, he became the first assistant U.S. attorney, a leadership position in that office, and served as the interim U.S. attorney for the Eastern District of Virginia a few times.

[00:00:44] [SPEAKER_00] He worked all kinds of cases in his time at the United States Attorney's Office, including that of the would-be 9-11 hijacker Zacharias Moussaoui.

[00:00:53] [SPEAKER_01] Throughout this time, he developed expertise in the intersection between criminal law and forensic science. He even became the president of the American Academy of Forensic Sciences.

[00:01:05] [SPEAKER_00] He became the director of the Executive Office for United States Attorneys at the Department of Justice back in 2007. Then, in 2009, he became the acting director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, resigning two years later in the wake of the ATF's gun-walking scandal.

[00:01:25] [SPEAKER_01] After that, he went to work at the Office of Legal Policy, serving as the senior advisor on forensic science. He also served as co-chair of the White House Subcommittee on Forensic Science. So that's 37 years as a federal prosecutor and leader within key governmental institutions, not to mention 47 years as an adjunct professor at the George Washington University Law School. These days, he's working with the team at eSleuth AI to try to revolutionize crime-solving even further.

[00:01:53] [SPEAKER_00] Our interview with him is part of our occasional recurring segment, The Future of Crime Solving. It's a series where we speak with different figures associated with eSleuth AI. eSleuth AI offers a suite of new tools crafted to help eliminate backlogs and get cases solved, cold and otherwise. It employs artificial intelligence and machine learning technology.

[00:02:16] [SPEAKER_00] And its systems are Federal Bureau of Investigation Criminal Justice Information System compliant.

[00:02:23] [SPEAKER_01] Basically, what eSleuth does is take in case files and then provide suggestions on steps investigators may have missed, or further tasks to complete, in order to get closer to a conclusion.

[00:02:34] [SPEAKER_00] To help convince law enforcement departments around the country that eSleuth is the future of crime-solving, the company is working with an impressive array of former law enforcement officials. And they're willing to speak with us.

[00:02:47] [SPEAKER_01] In these interviews, we'll get into their careers. And we'll check in with how their efforts to implement this technology into real-world cases is going. Just as a note, eSleuth is not sponsoring us. We just thought they'd be great to talk to because the universally have extensive backgrounds with crime-solving. We're now trying to implement it in a new way. We were also interested in sort of following along live with the company that's seeking to introduce its technology to law enforcement agencies. It's an interesting opportunity to see their trajectory up close.

[00:03:16] [SPEAKER_01] I really appreciated this conversation with Mr. Melson. We learned all about what inspired him to become a prosecutor, how he came to build up such expertise in forensic science, his views on the 2009 National Academy of Sciences report on forensic science, how he got involved with eSleuth, and more. My name is Anya Kane. I'm a journalist.

[00:03:36] [SPEAKER_00] And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet.

[00:03:49] [SPEAKER_01] And this is The Future of Crime Solving, a conversation with Kenneth Melson on prosecutions, forensic science, and 9-11.

[00:04:40] [SPEAKER_01] Well, first of all, Ken, I just want to thank you so much for joining us today on The Murder Sheet. I really appreciate you taking the time.

[00:04:46] [SPEAKER_02] Well, I'm glad to be here.

[00:04:49] [SPEAKER_01] So I guess we're going to talk about a number of different things today, but to get started, can you tell the listeners just a bit about your background?

[00:04:57] [SPEAKER_02] Well, I've been interested for a long time in law enforcement and prosecution. And maybe I can take you way back because I think it's a poignant point with respect to today's environment. So going back to the first half of the last century, which was when I was born, I was in high school and grade school, and I watched a lot of TV back then. It was still black and white, and then transitioned to color.

[00:05:27] [SPEAKER_02] But I watched shows like The Lone Ranger and Zorro and Gene Autry and all those, which many of the listeners probably never heard of or have never watched. But the thing about them was they had good moral character, and they were nonviolent shows. So that instilled in me, I think, the same feeling, having a good moral character, looking out for the welfare of other people and so forth. And that's different than today.

[00:05:57] [SPEAKER_02] If you look at today watching TV, how many violent shows there are, how many violent series there are. And looking at the games kids play now, it's all violent. That wasn't so back then. In fact, I think those shows ingrained in me so much the feeling of wanting to be in law enforcement that on Saturday mornings,

[00:06:21] [SPEAKER_02] I'd get up wearing my holsters with the two guns because I watched Texas Rangers and walked down the driveway. And I anointed myself as the first chief of the Winnebago Avenue sidewalk police, where I would make sure the sidewalks were safe for neighbors walking up and down. And so that was kind of the beginning of my interest in law enforcement.

[00:06:49] [SPEAKER_02] And then as I went through high school and I was in several leadership positions, I thought being a lawyer would be even better because then you get to work with the police as well as the prosecution, which puts all that stuff together that the police come up with and give it to a jury. So I decided to go to law school.

[00:07:12] [SPEAKER_02] And in my first or second year of law school, a professor by the name of Jim Stars was looking for a student to help him with a book in forensic science. And so I was chosen to do that. And we worked for several years on gathering materials in forensic science and started one of the first forensic science courses in law school around the country.

[00:07:37] [SPEAKER_02] And so I taught there with him for a couple of years and then as an adjunct professor at the law school for about 35 or 40 years at the law school and almost that long in the Department of Forensic Sciences, where I taught forensic scientists the law with respect to what they were doing.

[00:08:02] [SPEAKER_02] So I went through that. And when I graduated from law school, of course, I wanted to be a prosecutor. And I went into the Commonwealth Attorney's Office in Arlington, which is a local prosecution office. They call them Commonwealth attorneys, not district attorneys. That was a great experience. I was there for 10 years, tried every type of case there is to try in the office and loved it because I worked closely with the police officers and the community

[00:08:30] [SPEAKER_02] because we were in a relatively small jurisdiction. And it created a great rapport between, I think, the Commonwealth Attorney's Office, the police department and the community. But then after 10 years, I decided I'd move on to the U.S. Attorney's Office in the Eastern District of Virginia, the Alexandria Division.

[00:08:52] [SPEAKER_02] And one thing that enticed me about that is I had a greater reach of the arm of the law because we had subpoena power throughout the United States, as opposed to in Arlington, it was the state of Virginia. So I worked there for a couple of years as an AUSA.

[00:09:11] [SPEAKER_02] And then I became the first assistant U.S. attorney, which is the second in command, the one that deals with day to day cases and problems and so forth. So I was the first assistant there for 20 some years.

[00:09:28] [SPEAKER_02] In fact, I was the U.S. attorney court appointed U.S. attorney on 9-11, which was a an episode that will remain with all of us for a long time because the Pentagon was in our jurisdiction. And the CIA and the CIA and others, we had a lot of those types of cases. And in 9-11, they hit, of course, the Pentagon. They hit the Pentagon, which we could see from our windows of our office.

[00:09:57] [SPEAKER_02] We became a focal point for the FBI to work on the 9-11 cases. And our district tried the Moussaoui case, which was one of the only 9-11 perpetrators that was convicted. So we had a really good experience there.

[00:10:19] [SPEAKER_02] And I stayed there until I got a call from the deputy attorney general who said, I want you to be the director of the executive office for U.S. attorneys. And the executive office for U.S. attorneys manages the budgets and allocates resources for all the 94 U.S. attorneys offices in the country.

[00:10:42] [SPEAKER_02] And the thing about that was he called me and said, we just lost our director. I want you to go to the national conference in a week, which meant that I had to learn the names and the districts of each of the U.S. attorneys around the country and be able to identify them by sight. So I had a little picture of them.

[00:11:08] [SPEAKER_02] And boy, did I wish I had some facial recognition software in my eyes so I could tell who is who. But I would drive around and have it on my seat next to me in the car doing things and looking down and saying, oh, I know who that is and who that is. But so I was in the director's office for the executive office for U.S. attorneys for a couple of years until there was a change of administration.

[00:11:34] [SPEAKER_02] At which point they asked me to leave EO USA and go to be the acting director of ATF. And that was a brand new experience for me, at least. I had done a lot of work with ATF agents and tried a lot of gun cases and other types of cases.

[00:11:53] [SPEAKER_02] So I was there for two and a half years or so when they moved me from ATF to the Office of Legal Policy, the Office of Legal Policy in the Department of Justice, which was like wonderful for me because what I was was the senior advisor on forensic science for the Department of Justice.

[00:12:17] [SPEAKER_02] And during that time, we worked very closely with other agencies in developing a group of individuals, a organization comprised of many people from around the country talking about advances in forensic science and where there should be research and things like that. So when I finally retired, I went to the Office of the Office of the Postal Service.

[00:12:45] [SPEAKER_02] And I was a contractor there and we worked in the general counsel's office on special inquiries and got a real insight into how inspector generals handle cases, the influence they have over the results of cases and things like that. So that was interesting to do that.

[00:13:05] [SPEAKER_02] And then I left in the Postal Service when the funding dissolved for the contractor position and moved down to rural Virginia, where I now have three horses, three dogs, three chickens and a wonderful wife.

[00:13:22] [SPEAKER_01] You got everything.

[00:13:23] [SPEAKER_02] Now, in between then, there was a lot that I've done with forensic science. Professor Starrs really gave me a second career, which was forensic science. So I started out teaching with him in the law school and in the Department of Forensic Science, a law and forensic science course. And we worked on his book during that time.

[00:13:52] [SPEAKER_02] But when I was in the Commonwealth Attorney's Office, I also became a board member for the American Society of Crime Lab Directors Laboratory Accreditation Board, which was very interesting because they accredit laboratories to specific international standards.

[00:14:12] [SPEAKER_00] This message is sponsored by Greenlight.

[00:14:14] [SPEAKER_01] Scammers are no joke. We've all gotten those sketchy emails and texts and calls. Sometimes it feels like we're all being bombarded by scammers. If you're like us, you've even had scammers try to get access to your relatives' confidential information.

[00:14:29] [SPEAKER_00] Families lost $12.5 billion to fraud last year. With Greenlight Family Shield, you can keep your family from becoming a statistic.

[00:14:37] [SPEAKER_01] This app protects your whole family from fraud and scams. I'm talking about your kids, your grandparents, your elderly parents. Greenlight Family Shield takes care of everything.

[00:14:48] [SPEAKER_00] Greenlight gives you up to a million dollars of identity theft coverage, financial account monitoring, and credit locking. They give you real-time alerts when fraud is detected.

[00:15:00] [SPEAKER_01] When it comes to scams, crime is up. It's rampant. We're living in a golden age of fraudsters. So fight back. Don't let these creeps steal your money, time, and peace of mind. Don't let them target your family. 6.5 million family members trust Greenlight to protect them.

[00:15:17] [SPEAKER_00] Greenlight Family Shield gives us complete peace of mind. We're able to use their dark web monitoring systems to ensure that our sensitive information does not end up on the web. We really appreciate getting their real-time alerts. It keeps us safe, and it puts the power back in our hands. We use Greenlight, and you should too.

[00:15:38] [SPEAKER_01] Scammers aren't waiting. Neither should you. Go to greenlight.com slash msheet right now to get started. That's greenlight.com slash msheet. Greenlight.com slash msheet. Everything's expensive. Prices are high, so we like to look for affordability and high value when we're shopping for clothes. That's why we adore our sponsor, Quince.

[00:16:01] [SPEAKER_00] Quince is perfect for your summertime wardrobe refresh.

[00:16:05] [SPEAKER_01] Seriously, all their pieces are 50 to 80% less expensive than what you'd find at their competitors. They keep costs low by cutting out middlemen.

[00:16:15] [SPEAKER_00] Wreathable European linen shorts and shirts starting at only $34. Soft t-shirts that you love wearing. Lightweight cotton sweaters for the bonfire. Quince has got what you need.

[00:16:27] [SPEAKER_01] Here's what I just ordered for the summer. I bought their 100% European linen fit and flare midi dress in deep navy. It came in super fast, and I love it. Honestly, most of the time I'm not daring enough for dresses without big sleeves to cover my arms, but this one I made an exception for. I absolutely love the way I look in this dress. I love the fit. It makes me feel super confident. Depending on how I style it, I feel like I could wear it on a fancy date night with Kevin

[00:16:55] [SPEAKER_01] or even just to a friend's summer barbecue. I adore the dark blue color and the A-line silhouette and the lightweight linen. It feels great. It fits great. And it's the perfect dress for summer. I have a feeling I'll be wearing it constantly.

[00:17:08] [SPEAKER_00] Elevate your summer wardrobe. Go to quince.com slash msheet for free shipping on your order and 365 day returns. Now available in Canada too. That's q-u-i-n-c-e dot com slash msheet for free shipping and 365 day returns. quince.com slash msheet.

[00:17:30] [SPEAKER_02] So if you ever have a crime laboratory present evidence to you, one of the first questions you ask is, is your laboratory accredited to international standards? And that's very important. The other thing I was doing later was the forensic science, forensic specialties advisory board,

[00:17:53] [SPEAKER_02] which accredits agencies that certify experts in these crime labs. So the combination of the two is very important for your listeners to realize that most of the crime labs, if not all of them should be accredited and they should have certified examiners within the lab. That gives confidence in the public of the quality of their particular work.

[00:18:22] [SPEAKER_02] And the courts look to those elements too in qualifying witnesses and their testimony. While I was at the ATF, a report came out from the National Academy of Sciences, being very critical of forensic science and the laboratories and the scientific bases for the examinations. And as a result of that, I was asked to head with one other individual,

[00:18:50] [SPEAKER_02] a group of people in the executive office of the White House on a forensic science committee. And as a result of that, we were able to bring people in from all over the country, professors, lawyers, judges, scientists, and create responses to the National Academy of Sciences report. And you can find our report online from the subcommittee on forensic science.

[00:19:20] [SPEAKER_02] So that was a good experience as well. And let me use some of my forensic science experience in leading that particular group. So those are, I think, many of the things that I've done relating to forensic science until I retired. But I'm still involved in what is called the Consortium of Forensic Science Organizations.

[00:19:46] [SPEAKER_02] And that organization is a consortium of the six largest forensic science organizations in the country. And we have a government relations expert who works with us to promote laboratory issues in Congress. So we go and we ask Congress for money for laboratories, for accreditation, for capacity building, and other things.

[00:20:16] [SPEAKER_02] And we've been working on that for, I've been on this, on and off for a long time. But it's a very important organization that really is the major spokesperson to Congress about forensic science in the United States.

[00:20:33] [SPEAKER_01] Wow. So you've done everything. You've done a lot of different things.

[00:20:39] [SPEAKER_02] Well, I have. And as I said, there are like two careers. So while I was a prosecutor, I also was a teacher at night. And I also was an EMT during part of that time. I'd come to work in my uniform after spending the night at the rescue squad. So it was a pretty exciting time. You know, there was never a time that I didn't want to go to work.

[00:21:04] [SPEAKER_02] And there was never a time that I counted the days till retirement. Wow. It was such a wonderful career.

[00:21:12] [SPEAKER_01] And you had like three jobs at one point. That's wild.

[00:21:16] [SPEAKER_02] Yeah.

[00:21:16] [SPEAKER_01] I'm going to go back and ask you about some of your early experience and then kind of move my way up. But with the Arlington Commonwealth Attorney Office, was that something where do you recall any cases that you were doing there in your early career as a prosecutor? Were you actually bringing in some of your insights into forensic science or any sort of murder cases of note or other cases of note that kind of come to mind where you were sort of starting to combine those two sides of your profession?

[00:21:42] [SPEAKER_02] The state courts handle most of the case. The state courts handle most of the cases that have some forensic science involved in it. One case was a capital case I tried where an individual broke into a woman's apartment in Arlington and bludgeoned her to death with a hammer. And that had a lot of forensic evidence in it. Fingerprints, blood, DNA, and so forth.

[00:22:09] [SPEAKER_02] So that was a very interesting case that brought it all together. But all the robbery cases, the burglary cases, almost all of them had specific issues concerning forensic science. I mean, you can hardly try a case nowadays without forensic science being involved.

[00:22:28] [SPEAKER_02] And that's why it's so important for both defense and prosecutors, other lawyers, judges, and police officers to know about forensic science. Because if you don't get the evidence at the crime scene, you may never get it at all. So you've got to know what to look for and have the ability to collect the forensic evidence at crime scenes or from victims.

[00:22:56] [SPEAKER_01] Yes. And we found just from speaking with our listeners that a lot of people who are civilians and who are potential jurors have come to really expect some level of DNA, CSI, forensic, something like that.

[00:23:10] [SPEAKER_02] Yeah. Well, they do. And so that creates a kind of a dilemma for prosecutors sometimes, because if they don't have that forensic evidence, you know, the jury is going to ask, well, where's that fingerprint? Where's the DNA? So sometimes the prosecutor has to explain or even call someone to explain why there isn't anything there like that.

[00:23:34] [SPEAKER_02] Particularly if the defense raises it, maybe an opening statement where they say there's no forensic evidence in this case. You can't convict him. You've seen CSI, what they can do. They didn't do any of that in this case. So it does create somewhat of a dilemma for prosecutors because of the knowledge, even though limited, of the jurors.

[00:24:01] [SPEAKER_01] Absolutely. And I also wanted to ask you about working on the, you know, you mentioned your office doing the case along the lines of 9-11. That being such an important and, you know, horrific event in our nation's history. What was it like to work on that in any capacity as as a prosecutor?

[00:24:21] [SPEAKER_02] Well, it really changed our office completely and each of us in it because we all had different roles within the investigation of 9-11. So we had FBI agents in our office, CIA people in our office. We had to transform the physical structure of the office to create SCIFs for the sensitive information and classified information.

[00:24:50] [SPEAKER_02] We had people trained to work on subpoenas for the FBI to follow up on their investigation. So it was really a transformation of our office at that point from trying a lot of white collar crimes and conspiracy cases and so forth to one that had such a high visibility.

[00:25:12] [SPEAKER_02] And it also created other issues like security issues because our office was then a potential target of terrorists because we had all that information concerning 9-11 and it was highly publicized. So it was exciting. We learned a lot.

[00:25:32] [SPEAKER_02] I remember driving in that day to the office from where I lived out in the suburbs in Virginia and hearing on the radio that the plane crashed into a tower. I said, well, I'm not surprised that that hasn't happened because they're so big and tall and there's so much congestion. Got into the office and heard that the second one was hit. And we knew right then that that was no accident nor was the first one.

[00:26:01] [SPEAKER_02] And I remember standing there with our staff, some of our staff watching TV as the towers fell. And that was just and at the same time, we could see the smoke from the Pentagon where the crash where they crashed into the Pentagon itself. So it was it was a day that will never leave our memory.

[00:26:24] [SPEAKER_02] I went over to the Pentagon and looked at the crime scene there and it was a horrendous hole in the Pentagon. You couldn't see any part of the plane. And it was just so sad. And so many of my friends in Arlington who are with the fire department and police department responded there that day. And they still feel the effects of that scene in that episode.

[00:26:49] [SPEAKER_01] Yeah, it's so horrifying. What was your role in terms of that investigation in terms of like you mentioned, everyone had their own sort of part to play in that?

[00:26:56] [SPEAKER_02] Well, I was the second and I was the first assistant. So I made sure that we had the facilities and the space and the equipment to do this job. And I made sure we had support staff that could support the assistant who's trying the case, who was from our Richmond office, who came up to try to actually try the case. And so I was involved in it that way.

[00:27:25] [SPEAKER_02] Mostly I didn't try any of the case. Dave Novak did, did a wonderful job, got a conviction. But I made sure that he had what he needed.

[00:27:36] [SPEAKER_01] Absolutely. I guess moving on to the forensics. So you mentioned this kind of National Academy of Sciences report that really continues to have reverberations within the world of forensic science and criminal trials. And it's something we hear about a lot, I guess, you know, in terms of that kind of a. It seemed to be very critical of a lot of elements of forensic science. Did you how did you feel about that report?

[00:28:03] [SPEAKER_01] I guess my did you feel it was a necessary maybe correction to some overstatements around forensic sciences? Or do you think it was too harsh or somewhere in between? What are your thoughts on it?

[00:28:17] [SPEAKER_02] Well, I think it was somewhere in between. We always questioned the depth in which they looked at some of these sciences. But in the end, instead of quibbling over what they said, I think most of us used it as a roadmap. All right. So here are these all these recommendations.

[00:28:40] [SPEAKER_02] Let's look at those recommendations and see if we can improve on what we're doing, regardless of whether the NAS report was correct or not. Let's see if we can improve. And that's what at CFSO and most of the prosecutors and forensic scientists, lab directors want is continuous improvement.

[00:29:01] [SPEAKER_02] So now, many years later, if you look at those recommendations, we have made huge progress on each of them, except for two. One of which was to create an independent cabinet position or office in the federal government to run forensic sciences. That would never happen.

[00:29:29] [SPEAKER_02] You could never get a new one established like that. Not only the cost, but the political part of the whole thing. And the other dealt with things that were not really laboratory related. But everything else that was laboratory related, we did a we've done significant improvements in forensic science with respect to that, such as accreditation. Now, about 98 percent of the publicly funded laboratories in the U.S. are accredited.

[00:29:58] [SPEAKER_02] We've got many people who are certified in their discipline to testify and they recertify, which means they have to show their competency. We've got tests that are given to scientists in the labs, quality assurance tests that they take to make sure that they are still competent to testify.

[00:30:21] [SPEAKER_02] Even the type of conclusions that are given by forensic scientists have become more accurate than they had been in the past. Of course, the science has improved, too. I mean, so they all went kind of hand in hand throughout the decades since the report.

[00:30:41] [SPEAKER_02] And even though the report has been raised a lot in court, there are very few cases that in which in which a court changed the admissibility of evidence because of that report.

[00:31:00] [SPEAKER_02] Because they have to look at the witness who is on the stand, the expert, evaluate their qualifications and have them explain the science to the jury in the court. And I don't know. There are very few that have done that. That have rejected a scientist because of the NAS report.

[00:31:24] [SPEAKER_01] Right. You know, when people this is something we hear a lot about in true crime, something I'm sure some of our listeners may think or may, you know, may have heard from other people is stuff like forensic firearms examination. Is that junk science or should we? Is that is that a overstatement from a report like this?

[00:31:43] [SPEAKER_02] Well, that's an overstatement. And they've done a lot of studies since then, blind studies with experts identifying shell casings and so forth. And. I think that the consensus now is that mostly the firearms identification is done pretty well and is more accurate than it has been in the past.

[00:32:10] [SPEAKER_02] Because they continue to improve their ability to analyze and the techniques that they use to analyze it. So they're using Nibin, for example, which is the ATF related software that helps match cases to begin with, shell casings to begin with.

[00:32:31] [SPEAKER_02] Much less like APIS, which is the fingerprint identification system that you put a latent print in and it comes up with maybe 10 possible latent prints that would match it. It helps resolve the issue and narrow the number of candidates that might be a match to the one you're looking at, the forensic evidence.

[00:32:53] [SPEAKER_01] Right. No, that makes a lot of sense. And and yeah, I just wanted to I think there's been so much fallout from that report within in terms of how the media covers some of these things. And maybe there's been an overcorrection in terms of like throwing the baby out with the bathwater, in my opinion, you know. But as you said, there's been improvements made. I do want to ask you, so going into forensics.

[00:33:19] [SPEAKER_01] So, you know, in terms of coming from the prosecutor's perspective and sort of teaching even the law to forensic scientists, what sort of things do you have? You know, did you come to consider throughout your career when it came to something like DNA, DNA evidence and like how important that became?

[00:33:38] [SPEAKER_02] Well, every prosecutor should be well versed in forensics. And one of the things you have to learn as a prosecutor is how to present the evidence to the jury so that they understand what you're talking about, because this is not this is almost like rocket science when you talk about DNA. And so you have to be able to explain it to the lay jury as to what this means and what the consequences of it are.

[00:34:05] [SPEAKER_02] So you've got to one of the things we keep telling prosecutors is you've got to meet with the expert well in advance so that you and the expert can talk about the testimony, how to relate it to the jury. It's kind of a lesson for the jury.

[00:34:23] [SPEAKER_02] With regard to how the science is conducted and what the results mean, the limitations on the science that are there so that the prosecutor doesn't over promise something to the jury that can't be delivered by the expert.

[00:34:41] [SPEAKER_02] Or creating an opportunity for the expert to go beyond their expertise and say something for which they were not admitted as an expert or which is really outside the scope of their expertise. So there's lots of things that the prosecutors need to know, as well as the defense to give adequate assistance of counsel.

[00:35:05] [SPEAKER_02] And certainly there are a lot of organizations which work with defense attorneys like the National Association of Criminal Defense Lawyers. They have forensic programs all the time. Very good ones for the defense attorneys. In fact, they do a better job, I think, than the government does for its own prosecutors.

[00:35:27] [SPEAKER_02] When I was in the executive office for U.S. attorneys, I noticed that they had no training courses for prosecutors on forensics or very limited ones. And so I asked them to do more to teach federal prosecutors about forensics. So it's in the National Association of District Attorneys has some, but their funding isn't enough, I don't think, to do the type of training that they should do.

[00:35:57] [SPEAKER_01] Yeah. And as you mentioned, it's so increasingly important. And one aspect of this that's interesting is just the kind of concept of collecting DNA from persons of interest, perhaps even before charges are laid or, you know, in the process of the investigation in order to clear them or possibly keep looking into that. What are some of the legalities around that and sort of your observations on that?

[00:36:23] [SPEAKER_02] Well, first of all, if you get evidence of DNA from a crime scene or a victim, you run it through CODIS. Hopefully there's a match and you've got your person. But oftentimes there's not a match. So if you develop a suspect and you don't want that suspect to know that they're a suspect, then there are a couple of ways that you can get a sample of his or her DNA.

[00:36:53] [SPEAKER_02] Because until you do that, you can't make a match. So there are a couple of ways to do that. You can do what we call a trash run. And that is picking up trash from containers out by the street or have the trash collection people work with law enforcement to segregate their trash, go through the trash and try and find DNA out of that, either of the relative or the defendant himself. And that happened in the Kohlberger case.

[00:37:23] [SPEAKER_02] They did the trash run. And it had the father's DNA, which then was a very close association with the forensic crime scene DNA that was recovered from the sheath of the knife. And that was able to make the law enforcement's belief in Kohlberger as the perpetrator stronger because of that DNA. Now you say, well, isn't that an invasion of my privacy?

[00:37:52] [SPEAKER_02] Well, the court has for a long time has said that the leaving something like DNA behind or your fingerprints behind or someone getting a recording of your voice or handwriting, you have no expectation of privacy. No reasonable expectation of privacy in those things because you expose them to the public all the time or you abandon it.

[00:38:18] [SPEAKER_02] So if you wanted a fingerprint from someone, you could go to a bar and retrieve the glass from the beer that he was drinking and get a fingerprint off it. You can also do that with DNA. And again, they've abandoned that by leaving it on the glass. And the same thing with the case where the individual was, this is after the suspect was aware, in for interrogation. And he sat in a chair with armrests on it.

[00:38:47] [SPEAKER_02] And when he left, they swabbed the chair and got his DNA. So that's one of the ways you can do it when you don't want the person to know that she or he is a person of interest. And when they become a person of interest, then there are other ways that you can do it. If you have a grand jury, that's why the federal system is so good, because the investigative grand jury can issue subpoenas.

[00:39:16] [SPEAKER_02] And you can issue a subpoena to someone to come in and give a DNA exemplar. It's not an arrest. It's just an order to come in. And you can take a buccal swab, so it's not invasive, like taking blood from you. So you can do it that way. Or you can get a search warrant for the DNA. Go out and get them, take the buccal swab, and do the DNA.

[00:39:44] [SPEAKER_02] Once you're under arrest, of course, in the booking station now, they'll take a DNA sample. So those are different ways in which you can get a DNA sample to compare against your crime scene sample.

[00:40:01] [SPEAKER_01] And increasingly with forensic investigative genetic genealogy, like even if you don't have, if it's totally a mystery who the person is, you can use familial DNA to possibly track them down in certain instances.

[00:40:13] [SPEAKER_02] Well, and that's a fantastic tool to be able to do that. How many unsolved murders have been solved or unknown individuals who have been killed, and we don't even know their identity to do that type of investigation. It takes a little different type of DNA than most crime labs have.

[00:40:38] [SPEAKER_02] But there are companies like Arthrum that can do that type of DNA typing. Then you have to have a genealogist, because they have to work the tree and everything. And a lot of crime labs don't have that.

[00:40:53] [SPEAKER_02] In fact, we're trying to get from Congress more money for the labs to be able to do their own typing necessary for investigative genetic genealogy, as well as hiring their own genealogist to create the tree. That takes it back to a person that is a close match and may be a relative. But that's okay. Then you look at the other people.

[00:41:19] [SPEAKER_02] You can eliminate them, because maybe they were overseas at the time of the crime occurred, or maybe they died before the crime, and there's one person left. And that gives you a person of interest, at which time you can try and obtain his DNA from a surreptitious manner, or get a subpoena or a search warrant to get his DNA or her DNA. And then you make the comparison.

[00:41:48] [SPEAKER_02] So FIG is extremely important. It will really help in cold cases.

[00:41:55] [SPEAKER_01] Absolutely. And, you know, you mentioned this in terms of just, like, the challenges around DNA in court. Have we seen, I mean, because we've seen so much success, right, in the media. You're always reading about cold cases that have been solved because of DNA and investigative genetic genealogy.

[00:42:14] [SPEAKER_01] Do you anticipate any, you know, legal challenges that are occurring or may occur in the future around use of DNA in terms of solving these crimes and using them in prosecutions?

[00:42:26] [SPEAKER_02] Well, there have been some cases where they've tried to suggest that doing the family tree like this and going through their family was an invasion of privacy of these individuals and the family and the relatives and so forth. And they have not been successful at all. The thing that's happening more often now is what's called activity level. I don't know why that sticks in my brain.

[00:42:53] [SPEAKER_02] But what's called activity level testimony. And that is because DNA has become so sensitive right now. So you have what's called touch DNA, where if you just touch something, you might leave some DNA. So DNA shows up on a woman's blouse, for example, who has been raped. And you find that person's DNA. Well, that might just be touch DNA.

[00:43:18] [SPEAKER_02] And the defendant could have innocently touched that shirt or that blouse at some time previous to the assault. Or it could have been his DNA that was left during the assault. And so you have to determine whether or not that which one that might be. And the defense will argue that.

[00:43:40] [SPEAKER_02] That's where you get to what's called TPPR or transfer, surveillance, persistence and recovery, which means that in every DNA case, there's going to be questions about transfer of DNA from a primary source to a secondary source. And how that transfer might affect the case, such as in the blouse. Was the transfer done innocently?

[00:44:08] [SPEAKER_02] Even now, there are cases that you may suggest that if someone puts their DNA someplace, you could pick it up and put it someplace else. So the DNA gets passed around, kind of. So the whole issue of transfer becomes very important. And there have been cases now that have arisen, one in Maryland, where the experts are either unwilling to testify to where did the DNA come from,

[00:44:36] [SPEAKER_02] as opposed to this is the defendant's DNA. So that's when we talk about the activity level. What was the activity of the DNA before it was found? Where did it come from? Some experts won't testify to that unless they've been specifically trained in that area. Others say, I can use my common sense and my training as it is now to talk about transfer.

[00:45:04] [SPEAKER_02] So in the Colbert case, again, you had that blood on the sheaf. And they could have talked about, well, maybe Colbert touched that sheaf sometime. But one of the considerations is the amount of DNA that they recover. Because when you transfer by single touch DNA, there isn't going to be a lot of DNA. It's pretty minuscule. And so if you get a lot of DNA on an object, it's probably not the result of transference.

[00:45:34] [SPEAKER_01] That makes sense. And there's, as you said, I mean, it's like there's not all DNA is going to be equally investigatively important. As you said, like a touch DNA on someone's shoes or whatever. I mean, who knows where that comes from versus like bodily fluids that are prevalent throughout the scene.

[00:45:51] [SPEAKER_02] Yeah. So then there, yeah, there's different quality DNA. I tried one of the first, the first DNA case in the Eastern District of Virginia. And we got the DNA from the condoms. The guys thought, oh, we're smart. We're going to use a condom in this rape. And then they left it behind at the crime scene. Well, that was pure DNA. You know, how stupid can you be? But it has gone much further than that. And there are instances where the DNA that you do recover are mixtures.

[00:46:20] [SPEAKER_02] So there's more than one person's DNA in it. And then you have to determine who's the major contributor of the DNA or a minor contributor. And then the question becomes, well, who was it that touched at the time of the crime? Touched the object at the time of the crime, the major contributor or the minor contributor. So it becomes very complicated. And they're still doing research on it.

[00:46:49] [SPEAKER_02] And it's still progressing.

[00:46:51] [SPEAKER_01] Do you think it's unreasonable for the public prospective jurors to expect there to be DNA in pretty much every murder case? It seems like when we cover a case that doesn't have DNA, or I should say there's no offender DNA that's clearly found that's enough to get a profile on. It seems like people are dismayed by that or they're shocked. And what's your experience around that?

[00:47:18] [SPEAKER_02] Well, it's going to depend on the type of case. I mean, if you have an assassination type case where you get shot by a rifle from across the street, there may be no offender DNA in the crime scene. But otherwise, there's always a potential for crime scene evidence, whether it's from under a person's fingernails or they're touching a light switch to turn it on or the doorknob to open a door to break and enter. So oftentimes there's DNA.

[00:47:48] [SPEAKER_02] And that's why the police have to have good crime scene investigators that are certified that can go into a crime scene and be able to examine that crime scene to their best of the ability. And so they can testify to a jury that, yes, I have looked for all these things. And we either didn't find any DNA or we found some that was a match to the victim. Yeah. Things like that.

[00:48:17] [SPEAKER_02] So you've got the crime scene investigator is the first responder for forensic science. They're the ones that find it. If you don't find it, then you may never find it. So you've got to do it then and collect it appropriately and then preserve it appropriately through a chain of custody.

[00:48:38] [SPEAKER_01] When it comes to when you're teaching forensic scientists and people in the forensics world, when you were teaching them like the law, were there any things that they almost struggled with or that they didn't realize or that there were like common themes in terms of what they needed to know in order to do their jobs more effectively?

[00:48:59] [SPEAKER_02] Well, most of them were interested in the science itself. And we were very lucky in our course because we were in Washington, D.C. And guess what? We've got all these federal labs around us. So we were able to get experts to come in and talk about these issues. And most of the law students really didn't know that much about forensic science. So they asked obvious type of questions.

[00:49:27] [SPEAKER_02] There are a number who ask critical questions. But we had experts that could answer those questions easily. And I think persuasively. The major change I saw in law school from when I started teaching and 40 years later or more is the difference in the makeup of the student body in our classes.

[00:49:53] [SPEAKER_02] There were fewer men, many more women in there who were interested in forensic science and in science and in being defense attorneys or prosecutors. So that was a startling, perhaps, change in the dynamics of the classroom and the court and the school.

[00:50:14] [SPEAKER_01] Yeah, no, I know law schools in general have, I think, flipped in terms of being in many cases, majority women going into it. Mm-hmm. So in terms of what you've been doing lately, we've talked about how DNA has been such a game changer in terms of crime solving. And now you're working with a company that's also seeking to make a change in terms of how crimes are solved.

[00:50:39] [SPEAKER_01] Can you tell me a little bit about eSleuth and sort of how you came to join that team?

[00:50:46] [SPEAKER_02] Well, I joined the team at the request of Scott Thomason, who's one of the, you know him, I'm sure. He used to be an ATF agent and was there when I was the acting director of ATF. And Bernard, too, Bernard Zaper, too, was at ATF when I was there. So it's kind of like a little reunion of getting us back together. But he asked me, I think, because of my prosecutorial experience and my involvement in forensic science.

[00:51:14] [SPEAKER_02] So it was that way that I got into it. And I can tell you, it's going to be a game changer if they can get departments to start adopting the eSleuth technology. But first of all, you have to have, it's not for everybody because not everybody has it digitized their records. Their records have to be digitized. Now, I know in one instance, eSleuth is going in and digitizing the materials for them.

[00:51:43] [SPEAKER_02] But they can't do that forever. And so you have the smaller states with a smaller law enforcement agency that may not be able to get it digitized. Hopefully, all the large and medium to large offices, law enforcement offices now have the ability to digitize their case records. But then you have to look at it from a prosecution point of view.

[00:52:12] [SPEAKER_02] What does the prosecutor expect out of this from eSleuth? And there are some states that have cold case units within their office. And the prosecutor is headed up. So they're going to be working with the investigators on identifying cases that could be solved by linking all these various attributes from different cases together.

[00:52:39] [SPEAKER_02] So the thing that I'm involved in a little bit is once they get all this information and eSleuth software puts together an affidavit for probable cause or an arrest, what is done with that?

[00:52:58] [SPEAKER_02] Because obviously, you know, a judge, when you say AI to a judge nowadays, they're going to think of these cases recently where defense attorneys or other litigants, not necessarily defense attorneys, other litigants have filed documents, pleadings that have cases identified by AI that don't exist.

[00:53:23] [SPEAKER_02] In fact, one judge has written an opinion with cases that don't exist. So they're going to be a little skeptical about eSleuth bringing all these facts together. But here's the difference in investigating these cold cases. You get this information on eSleuth, but you have to follow it up.

[00:53:48] [SPEAKER_02] You have to go and follow the lead and either confirm or disprove it. So everything that's in that affidavit produced by eSleuth should have had human eyes on it and a corroboration that it's true. So you should not expect from eSleuth to have the same problems that you do in AI doing legal research. And that's the great ability.

[00:54:16] [SPEAKER_02] Now, the other thing I would suggest to any officer that's using eSleuth as basis for the probable cause affidavit is to go through a prosecutor. Let them look at it. Let them massage it a little bit so that it sounds right for the court and it flows appropriately as far as the probable cause is concerned.

[00:54:39] [SPEAKER_02] Many states, like in Arlington County, for example, you can go to a magistrate judge and he'll look at a search warrant and say fine 99% of the time. So what you want it to hold up later, right? You don't want to get the evidence and then have it suppressed.

[00:54:56] [SPEAKER_02] So to take it to a prosecutor working hand in hand with her will enhance the possibility that your affidavit will be upheld as having probable cause and your search and your evidence not being suppressed.

[00:55:15] [SPEAKER_01] Where do you see eSleuth being a game changer? Can you tell me about how you visualize that if departments start using it? Where does it have the potential to sort of fill in some of the gaps that currently exist in solving these cold cases?

[00:55:30] [SPEAKER_02] Well, number one, the advantage of eSleuth will be bringing in elements of various different cases that are the same that lead you to maybe not this particular case, but another case that may then resolve the case that you're looking at. You know, so many times I was just watching a TV show the other day and they were talking about a cold case.

[00:55:55] [SPEAKER_02] And so you watch the detective walk down these aisles of all these boxes, these and she pulls out a box and all the stuff in it and starts going through it. Well, eSleuth is going to do that in the matter of minutes if everything is digitized and can reduce the amount of time and investigation that is spent on it. And in these cold case units with prosecutors offices, they'll be working hand in hand.

[00:56:22] [SPEAKER_02] So by the time eSleuth comes up with everything, there ought to be a game plan between the prosecutor and the officer as to how to approach the case and when to make an arrest.

[00:56:33] [SPEAKER_02] So I think that in the next step, what I would hope to see is that every time somebody is arrested and a new case occurs, that they digitize it and they get it into the system so that eSleuth then can look for other characteristics that are similar in older cases that might reflect or shed light on the current case that just occurred.

[00:56:58] [SPEAKER_02] To perhaps identify serial murderers or rapists or whatever. So there's a great capacity for the use of eSleuth in criminal investigations. I'm excited about it. I wish I could go back and be in a cold case unit and use it.

[00:57:17] [SPEAKER_01] Absolutely. It's an exciting thing. As you said, it's not generative in the sense that it's going to be just bringing in random stuff. It's like you have to – it doesn't replace a detective. A detective needs to do all these things and ensure that everything's looking good.

[00:57:35] [SPEAKER_01] But it seems like to me, as it's been described to me by some of your colleagues, it's really more of bringing up suggestions of like, oh, this evidence needs to be analyzed or you should resubmit this to the lab or things like that you can act upon.

[00:57:50] [SPEAKER_02] But there are other things like I think that examples used is the Corvette has been identified in three different cases. So maybe you follow up on that Corvette and you could find that the Corvette had been demolished before the crime even occurred. Or it could have been one identified in the crime that you're looking at and you can trace the ownership of it back to an earlier crime.

[00:58:15] [SPEAKER_02] So there are lots of details that can be brought out through eSleuth that you might – a detective, after hours and hours at looking at documents and sorting through things or looking at a computer screen and looking at digitized evidence, would miss.

[00:58:34] [SPEAKER_01] In terms of your own work with eSleuth, what do they have you doing? Are you sort of like speaking with law enforcement agencies to talk about it from a prosecutor's perspective? What is sort of the activities you're engaged in with this?

[00:58:48] [SPEAKER_02] They have an advisory board and I'm on the advisory board. And that's a very important element, I think, of eSleuth because they want to run this by individuals who have experience in laboratories. There's one from Secret Service and prosecution and detectives and so forth so that they get a good concept of what is needed and what will work and what won't work. And so the advisory board is an important aspect.

[00:59:16] [SPEAKER_01] You know, have you guys been having an easy time of convincing law enforcement agencies to maybe give this a look, give it a try?

[00:59:24] [SPEAKER_02] So Scott just sent me an update and indicated that at least two relatively good-sized departments have signed on to eSleuth and there may be another one coming on pretty soon. So it'll catch on. Once they show success in one or two departments, it'll catch on pretty quickly, I think.

[00:59:47] [SPEAKER_01] Yeah, because we're like, why don't we have this?

[00:59:49] [SPEAKER_02] Right, right. And they might even be able, through Congress, get resources for purchasing eSleuth or some other. You can't give a grant for a particular entity, but you can say for upgrading cold cases with artificial intelligence, you can apply for a grant to purchase equipment.

[01:00:13] [SPEAKER_01] And I just want to say, again, this has been a great conversation. I'm so – thank you for making the time and sharing your insights. Is there anything I haven't asked you about about eSleuth or about any element of what we've talked about that you wanted to mention?

[01:00:27] [SPEAKER_02] I don't think so. I made some notes here to talk about things, but I think we've covered it all.

[01:00:34] [SPEAKER_01] Great. Well, I just want to say we appreciate you so much for doing this. Thank you.

[01:00:38] [SPEAKER_02] Well, I appreciate you letting me do it with you.

[01:00:42] [SPEAKER_01] Thanks so much to Kenneth Melson for talking to us. We really appreciated the conversation.

[01:00:46] [SPEAKER_00] Thanks so much for listening to The Murder Sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail dot com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[01:01:05] [SPEAKER_01] If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet. If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com slash murdersheet. We very much appreciate any support.

[01:01:30] [SPEAKER_00] Special thanks to Kevin Tyler Greenlee, who composed the music for The Murder Sheet, and who you can find on the web at kevintg.com.

[01:01:40] [SPEAKER_01] If you're looking to talk with other listeners about a case we've covered, you can join The Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening.