“If that was a murder, he’s smarter than all of us in crime scene and all of us in homicide all put together, because he left no evidence ofj Moreover, Parrish says Horinek’s tone on the 911 tape is compelling evidence. About a minute into the call, Parrish says, “You can hear the adrenaline kick in.” Horinek’s tone does change. His sentences sharpen, and his voice is panicky, desperate, insistent that he needs help. It sounds like he just walked in on a suicide. STILL, THESE ARE THE SAME ARGUMENTS that Varnon and Parrish and homicide Sgt. Paul Kratz made during Horinek’s trialand they didn’t work. If Varnon was going to make headway on overturning the murder conviction, he had to confront Bevel’s blood-spatter testimony. He had always doubted Bevel’s analysis. It’s well known in the crime-scene can leave flecks of blood on a shirtwhich Bevel testified was not possible. “There are many things that can cause that fine mist of blood, not just a gunshot wound,” Varnon says. Varnon took his poster boards to upstate New York and presented the case to Herb MacDonell, a renowned forensic scientist whose groundbreaking research on blood patterns in the early 1970s made the field more scientific. He is often called the father of modern bloodstain analysis. \(Bevel himself studied for a time dent’s testimony suspect. In 2005, he asked a prominent analyst who’d worked in his lab, Anita Zannin, to examine the case. After studying all the documents and evidence, she concludedand MacDonell later concurred after his own analysisthat Bevel’s initial testimony was utterly incorrect. Zannin and MacDonell contendin a report and two affidavitsthat blood spots smaller than one millimeter aren’t necessarily the result of a gunshot, as Bevel testified. Flecks that small can often result from CPR or someone with a punctured lung trying to breathe. To prove it, MacDonell set up an experiment at his lab in Corning, N.Y., in which a student placed a small amount of blood in his mouth and then simply breathed on a white shirt. The result was a bloodspatter pattern similar to the one found on Warren Horinek’s shirt. There is no way to reliably determine if the spots on Horinek’s shirt were the result of a gunshot or of CPR. For that reason, Zannin and MacDonell say, blood spatter never should have been used as key evidence against Horinek. Bevel has defended his work in the case. But in a recent interview with the Observer, Bevel backed away from his testimony that the size of the blood spots is what matters. Bevel now has two different reasons why he believes Horinek is guilty. The first is the appearance of the blood spatter. Blood that a person breathes out has a lighter color and a more bubble-like appearance because it contains more air, Bevel contends. Because the blood on Horinek’s shirt is a normal color, it’s likely the spatter resulted from a gunshot wound, not CPR. But these bubbles aren’t always present. So Bevel also concedes that the lack of bubbles on the shirt doesn’t necessarily eliminate CPR as a cause. He now agrees with Zannin and MacDonell that blood spatter from CPR can sometimes look very much like spatter from a gunshot wound. That leads him to the second reason he believes Bonnie Horinek was murdered: the lack of a blood spatter trail. If the specks on Warren’s shirt had come from blood that Bonnie breathed out of her nose and mouth, then there would be a trail of spatter leading back from the shirt toward her face. “You have to look at the context of this scene,” Bevel says. If the spatter came from CPR, then “you should be able to find more of that type of spatter between where the shirt reportedly was and the mouth and the nose.” He doesn’t remember finding any. The problem with that reasoning is that Bonnie’s chest, neck and face were soaked with blood, which could easily have obscured any small spatter she breathed out. And Bevel concedes he can’t be 100 percent sure what happened that night. “There has to be a foundation with which you’re able to call it,” he says. “In this particular case, in my opinion, the best explanation is that it is from a gunshot. In science, there is no 100 percent. It just doesn’t exist. You look at the data, the possibilities, what is found, what isn’t found, and you try to identify the best explanation.” That isn’t enough to base a murder conviction on, Zannin and MacDonell say. Though they can’t be sure, Zannin and MacDonell suspect that the blood spots were the result of CPR. For one, a single gunshot is unlikely to produce the amount of spatter seen on Horinek’s shirt. Secondly, if Horinek had been leaning over Bonnie while delivering mouth-tomouth resuscitationas the 911 recording and police testimony indicatethe left shoulder of his shirt would have been perfectly aligned with the gunshot wound in her chest. That’s where the blood spatter appeared. Also, the bullet punctured her lung, which makes it likely that Bonnie would have breathed flecks of blood on anyone giving her CPR. These experts’ conclusions add up to a chilling irony: In effect, Horinek’s attempts to revive Bonnie resulted in blood spots thatin the hands of the wrong expertled to his conviction. AFTER WORKING ON THE HORINEK case for more than three years, bloodstain expert Zannin contacted Waco attorney Walter Reaves, who handles innocence claims pro bono. Reaves became convinced that Horinek had been railroaded. He gathered affidavits from Varnon, Mike Parrish, Zannin, and MacDonell. In May, he began the legal process to get Warren out of prison by filing a writ of habeas corpus. These post-conviction writs are always a long shot, especially in cases without testable DNA that can conclusively prove innocence. Horinek remains hopeful, though. “I think this is going to work,” he says. After already serving 15 years, Horinek also will come up for parole for the first time next year. In the meantime, he waits in prison, one day blending into the next. It could be worse. The flaws in forensic evidence have likely sent many other innocent people to prison, and unlike Horinek, most of them don’t have former district attorneys and police officers working to free them. Instead, many wrongful convictionswhether due to faulty blood-spatter analysis, misread fingerprint matches, shoddy lab analysis, or junk arson science disappear into the shuffle of the criminal justice system. No one knows about them. And there’s little chance they’ll ever be overturned. READ Dave Mann’s series on faulty arson forensics at txlo.com/burnpatterns AUGUST 20, 2010 THE TEXAS OBSERVER 111
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