Sunday, July 14, 2019

The biggest mistakes in the Scott Watson case?

The few police and Crown officials that it increasingly looks like that framed Scott Watson made 1 obvious mistake - planting (or accidentally mixing up to rephrase it to a nicety) 2 blond hairs rather than 'find' some short brown hairs as well that could or did belong to Ben. Why? because no realistic thought was given to the scepticism that would attach to 2 hairs 1x15cm long, and the other 25cm long, not being found despite up 6 or 7 searches including specific searches of Scott's boat the Blade itself by ESR technicians. That was after police had searched themselves. One of the later searches in the lab was removing each hair from a blanket off the blade with tweezers, the concentration that requires would readily reveal recognition of 2 long blond hairs among 400 hairs much shorter dark hairs. It wasn't zombies at work but a scientist and technician working on an important case.

The seizure warrant of the Blade indicated the search was for bodies or body parts, exactly the right sort of language to ensure a warrant. After which followed the parade of the Blade towed through the town and port of Picton, creating strong symbolism, a couple missing and a local boat seized - for many of the public and some of the press it may have been considered as game set and match. Just where the details of 'bodys and body parts' emerged from is unknown, but it was sworn in the documents so must have a source to be legal - a situation I understand that has not been explained satisfactorily. It could have simply been police making it up, or 1 of the many undercovers working the area at the time being told that by an informant. Whatever the situation was it became the first strike against Scott Watson in a case which would always lack evidence, need prison narks, media propaganda, dodgy science and a co-operative Court to gain convictions.

Those 2 hairs as readers know, are according to police, the Crown, and at least 1 previous Minister of Justice the glue that 'holds the case' against Scott together. Those 1st searches of the Blade (whether or not the warrant details were believed to be authentic or not, I'd say not) were for blood, hairs, any other sign of the missing couple, or a murder scene. 21 years later nothing - except recognition of 1 big mistake - few people can believe with any certainty that the 2 hairs could survive their secrecy for so many searches only to be magically found together at the same time some 3 months after the couple's disappearance.

People have asked before, the excellent question what about Ben's hair? The excuse I have read was apparently the cost of testing, an unfortunate truth that Justice in New Zealand can rely on cost - something which can result in shortcuts. Shortcuts in this case by design, a single hair from Ben - without a pedigree of multiple failed searches as was required for the 2 hairs alleged, but never proven to be Olivia's, could have satisfied public doubt - at least in the short term until the nagging truth of a suspect ketch, the couple being seen alive on another boat after they were alleged to be dead set in, as it inevitably has.

So we are not considering that Scott is guilty because on the hair evidence he is not, the 2 hairs prove that independently along with information yet to be made public, although each point alone proves Scott's innocence. They also prove 1 mistake. If police were fitting up Scott deliberately or 'mistakenly,' 2 hairs backed up by the proof of a hair or hairs with Ben's nuclear or mitochondrial DNA intact, would have at least provided less concern after the 'mystery ketch' debacle. A human sheds between a 100 to 150 hairs per day, in a fight for their life they are likely to lose more hair as well. One of the police theories inadvertently helps reveal the 'mistake' - the Blade not arriving at Eerie Bay until the evening of New Years day and therefore having allegedly sailed to the Cook Strait and back quicker than a speed boat could. That theory needs to ignore that no screams were heard aboard the Blade where it was moored in the Furneaux Inlet, also for the couple to board unseen, no voices of the couple heard talking as they boarded or later in the cabin, but nevertheless alive on the Blade when it left its mooring and not protesting the departure around 7.30am. A man intent on kidnap or murder would not anchor anywhere near other boats let alone raft up to 2 boats with people on board, chat with the skipper of 1 before later the next morning go aboard hoping for a further drink. Nor would the couple, sensing a change in the purpose of their 'host,' co-operate by being silent. They would have made noise and lots of it,  knowing others on the boats next to them would have heard. Ben was a big man and Olivia was feisty, but we are asked to believe they were co-operating in their own peril. Considering all that was true for a minute, that meant that up to 20 hairs or more from both Ben and Olivia would have been on the Blade and easy to find in such a small area.

So discovery of Ben's hairs, that must have inevitably been on the Blade if the police theory is right, was a certainty and in fact not a big job at all. There was animal hair on the blanket and therefore in the 2 bags where the hairs were carefully put into an environment that ensured their contamination, something no scientist or technician would do to evidence, but would do with hairs which were already eliminated as being from Ben or Olivia. That was the purpose of the blanket search, a confirmation of the searches for hairs on the Blade showing no potential hairs belonging to Olivia,  the reason all the hairs were put together and not collected in the way in which evidentiary hairs would be gathered 2 years later in the Lundy case where the position of each hair taken from Christine Lundy's hands was shown in a drawing, before being placed in a separate evidence tissue for later examination -  investigators knew they would more likely than not have been the offender(s). No, in Watson they went straight into 2 bags after being taken carefully off the blanket by 2 ESR staff in essentially what was at the time considered to be the final confirmatory search that Ben and Olivia had not been aboard. Let's not pretend those staff were untrained, working in isolation and not involved in the Watson inquiry because they were, and they found no blond hairs leading to the logical explanation that if none of Olivia's, easier to find hairs were there, then there were none of Ben's as well. A stupid if possibly deliberate mistake.

Thinking about this further. Search of the boat by ESR for hairs and blood or body fluids, nothing found, but blanket taken for further search just in case. Further search completed by 2 technicians uplifting each individual hair off the blanket - confirming the results of the boat search - a double or triple check (if including police searches), but no hairs belonging to Olivia. Probably a logical step at the outset when a search was going on for a suspect ketch, with 100s of people reporting sighting it, some saying they saw Olivia and Ben aboard, arms tied behind their backs before the investigation fatally turned. We don't have the complete details of the blanket search either aboard the Blade, or in the lab, other than what those that did the searches said in evidence, there was no video recording as there would not be the day Vintiner 'found' 2 blond hairs at a time she had other blond hairs in the lab from the family home of Olivia, controvening accreditation rules. What we do know is that during the blanket search, hairs could have been easily processed into order, animal hair removed, then hair sorted by colour under microscope for finer detail - that's what would have happened if 2 blond hairs had been seen either on the blanket or on the Blade, it was critical evidence. Remember when the 2 hairs were found months after the crimes, they were immediately separated not put back in the bags to be looked at later.

Vintiner gave evidence for hours, a lot about her experience in what is now considered to be junk science 'hair comparison' methods. But 'hair comparison' does have a place in forensic science, if the victim had blond hair then sort blond hair out without mixing, short brown hair, dark or black hair and so on - do the same for further testing. One thing we know in abundance is that a lot of evidence was hidden in the Watson case, statements destroyed and altered, job sheets gone so it is a natural step to consider that is also likely with the 'hair searches.' The hair search on the Blade was well recorded with hairs of interest properly and separately gathered noting where they were found, that has not been hidden but the truth of that has never been properly acknowledged for its indication of what motivated the later searches. Vintener would claim she was busy as the reason it took weeks to search again, too busy to deal with the crime of the decade? No, it was a clear indication as to what happened in the Lab, the smoke and mirrors from which 2 hairs suddenly appeared when the investigation needed them. Just like the Crewe garden bed yielding a bullet shell after it had already been searched, and the room of David Bain producing a glass lens after it had been searched only to be found late at night by a detective not tasked with searching.

There were no blond hairs ever seen on the Blade by scientists and police, or on the blanket search by scientists in the lab where all the hairs were lifted individually with tweezers, or in the later of the first of 2 searches of 2 bags of hairs taken from the same blanket and treated without concern for contamination - because none were Olivia's, and if Olivia's were not there then neither were Bens. And that may be the biggest mistake in the Watson case, the belief that eventually the public would not see that the police and ESR had tricked a Jury not only by police accepting the impossibility of the 2 hairs not being seen in multiple searches but would compensate natural doubt of that with witnesses who claimed Scott had 'confessed,'  others that said that he talked about killing women in their presence - but who showed no concern for that fact and continued to socialise with him. As is hinted above there was an even bigger 'mistake' yet to be revealed which shows without doubt that Olivia's hairs were not those offered in evidence and therefore were not on the Blade or blanket. Without the first mistake, the 2nd would have possibly been harder to find - but was always going to emerge 1 day, because the mistakes completely fit together while the Crown case never has.

Sunday, June 30, 2019

Lundy case hugely misunderstood.

Mark Lundy's case is due back in the Supreme Court later this year. The submissions by Jonathan Eaton QC and his team are a masterclass. From carefully reading them it is apparent how poorly the NZ courts have understood the case.

From the outset some of the public believe that Mark had his wife Christine's brain or spinal matter on his search. However it has never been proven that what was on the shirt sleeve was brain or spinal matter, let alone being human. No need to repeat the dodgy science used in the case which remains mired in controversy despite the Courts apparently apprehending otherwise.

What is less well known is that of the 2 marks, on the shirt Mark had voluntarily told the police he had worn earlier in the day on the night of the murders, all that was left for testing was a dab slide taken from the shirt sleeve. Internationally that dab slide was said to hold material that could not be tested. Consequently it was sent to an American who did not test the slide material because of its condition but instead tested 2 pieces of material cut out from the area around the small stains which were about the size of a pinhead.

That wasn't the reason for the trip of course and it has taken many years for it to become known that the area tested was already said to have been 'consumed' in unsuccessful earlier testing in NZ. I think everyone accepts that an empty glass contains no liquid - the empty glass in this case somehow became full again, something never heard by either of the Lundy Jury's.

What was said to have been taken from the empty shirt spots was material later fixed in paraffin which under 'testing,' not designed or approved for that purpose, was said to have located brain material. In a test 14 years later that material would be found to be from the animal food chain, cow, beef or pork. To overcome that somehow the Crown found a 'expert' who was able to say the material was human by the margin of 58% to 42% with an unknown success or failure rate. That evidence, heard by the Jury at Mark's retrial, allowed the prosecutor to say 'no man should have his wife's brain on his shirt.' Post trial that evidence was ruled inadmissible.

However the Court of Appeal said that didn't matter and they exercised the proviso which the Law says can be done so when guilt is inevitable. Unfortunately that test was changed by the COA to one of beyond reasonable doubt - a world first in British, Australia and New Zealand Courts, It is difficult to understand how the Court could make such a mistake and first look, that might have been deliberate to keep the controversial case under a lid.

Later it can be seen why that decision is important, and to do that we have to again go back to the paraffin blocks said to contain material which NZ scientists said had been consumed. Those paraffin blocks were tested for Christine's DNA but it was not found. However the NZ COA, not deterred by that made another major 'mistake', because elsewhere on the shirt was found Christine's DNA, just as would happen with any male's shirt from his partner and vice versa. However it needed to have been within the spot where the animal DNA was found, to have been directly associated with Christine as being her own - within the biological material not near it.

So let's go over that again, 2 small spots completely inconsistent with blood splash that left the silhouette of Christine's killer on the wall. A silhouette for which there is precious little information. I have not heard of any reconstruction of that silhouette for which it might have been determined the size of the offender, a relatively easy process but not something it is known that investigators looked into. Nevertheless the 2 small spots were consumed in testing by NZ scientists who found nothing incriminating within them, however the spots go along with the shirt to America and hello there is something there again, and the slide taken from those spots also in America is not tested despite that the material on it is visible upon it under microscope.

Wednesday, June 26, 2019

A New Zealand first in Watson and Lundy?

Scott Watson and Mark Lundy are as different as chalk in cheese, not only physically but by their backgrounds at the time of their imprisonment. Scott was finding his way in life after his teen years in which he got into relatively minor trouble with police. His life had become the sea, in fact his links with the sea are lifelong. He had become a capable quasi engineer able to have built his own boat the Blade, a 26 footer. He worked in boat yards and sailed the coast having a girlfriend in the far north. He was such a casual bugger that he even told investigating police that'd he smoke dope on NYE 1997, information police would use against his friends he socialised with that day unless they co-operated with police. Mark on the other hand was married, with a young daughter and active in many community activities, he and his wife Christine had a passion for dancing, as did their daughter the 7 year old Amber. The Lundy's were the operators of a small business selling kitchens, hard working with Christine 'doing the books' while Mark dealt with customers who found him reliable and helpful. He preferred to let Christine do any debt collector such was gentle and obliging character. He was a builder by trade and when arrested for the murders of Christine and Amber he was renovating the house the family owned. He was essentially a salesman on the road who would put the packages together for customers orders and displayed his goods for sales in several stores where he would call into service orders on road trips away from home. Scott on the other hand at the time of his arrest was at home on his boat and where ever he sailed. His most recent trip had been to see his girlfriend in Whangarei, a rare enough event in any country where a young man would sail to visit his girlfriend and pickup work in the boatyards which had become his trade. It might be fair to say the sea was in his blood as he and his family had lived aboard a yacht for some years doing much the same as Scott found himself doing as he matured into a young man. So both builders of the type who could turn their hands to any sort of work but little else in similarity until their lives changed forever.

It's the changes that happened to both men which ultimately mean they shared a common experience. That experience until recently was not known to either man, both of whom are in minimum security prisons, one in the north island and the other in the south. I doubt that they given each other much thought over the years Mark is essentially a fish out of the water in prison while Scott has been more openly resistant to his imprisonment. No doubt both had an interest in the progress or lack of progress of the other's fight for freedom. While the 2 must hate what has happened to them, they have shown that in different ways. Scott with art,  some disdain and some rejection of the system, Mark with study and somewhat isolation of his generally outgoing personality. The 2 would unlikely ever be friends and may not have sympathy for one another in terms of their cases. Unfortunately, or perhaps very fortunately ticking along in the cases of both men has been a time bomb not understood fully by either, nor until recently their legal teams both of which have changed over the years. That ticking bomb has been forensic science out of the same bottle but applied to each case differently in order to get the same result - convictions on evidence which cannot now withstand scrutiny.

Christine Lundy died with 21 hairs in her hands and another red, to red brown hair on her buttock, that has never been evidence against ML. It has in fact been evidence never properly investigated despite being carefully handled to avoid contamination, collected with a high degree of forensic caution which recognised the potential value of finding a clue to the killer(s) of Amber and Christine. One area that was not gathered or stored with forensic caution was the shirt of Mark Lundy told police he had been wearing the day leading into the night they were killed - something in itself a guilty person would not do, just as Scott would not have revealed to police his dope smoking had he considered it would used to bring pressure on witnesses to lie. On that shirt there would later be found to be 2 microscopic spots or 'stains', one of which was said to be human brain after being rejected by forensic scientists worldwide as too necrotic to be tested, this after never being kept in forensically proper conditions but rather in a non-temperature controlled safe away from other exhibits. Human brain degrades on contact with air something which mankind have known for centuries and the ancient Egyptians even longer. It was that alleged brain which saw ML convicted, while  evidence of other offenders including not only the 21 hairs, but male DNA under both victims fingernails along with signs of breakin of the home, witnessed by a neighbour, where fingerprints were discovered that did not belong to any person who had visited the house in the 3 months prior to the killings.

We don't know how, or indeed if, Ben Smart and Olivia Hope were killed, there is an assumption that they were with no evidence in support apart from 2 hairs and the inevitable prison narks recruited to verbal an innocent man. There is no evidence that Ben and Olivia ever met Scott, no evidence that they were seen together or leaving Furneaux Lodge as a group on a naiad. So we now turn to evidence ignored in Lundy - hairs. There were about 400 removed from the Blade, many in isolation as scientist's carefully did their work. Then something unusual happened, a blanket from aboard the blade with visible signs of hair on it was bundled up and taken ashore. Consider that 2 years later a police officer would lift each hair from Christine's hand, wrap it in an individual tissue record a description and make a sketch as to where it had been located from - no chance of contamination in that process, the hairs never tested but rather eventually lost. How convenient.

In the Watson case, the same forensic science institute (ESR) bundled up the Watson hairs on the blanket and put it into a store from where it was later removed to have 2 technicians carefully lift each individual hair before apparently mindlessly putting them all into the 2 plastic bags where they would freely be contaminated by one another. Those technicians were looking for long blond hairs, everyone in NZ following the case knew that Olivia had long blond hair - none were found. So if there were no long blond hairs they were simply bagged - had the 2 long blond hairs been found they would have been isolated and not mixed with the 100s of other hairs but treated triumphantly as gold for the investigator's with the big gut instinct. In 2 later examinations of the hairs in a different room on a bench still the 2 long blond hairs were not found. So 3 searches and nothing found in ESR labs, not to exclude the careful searches aboard the Blade which must have satisfied ESR scene specialists that no hair of Olivia present or they would have been separated like the Lundy hairs. On a 4th search and after 2 visits to the Hope household for sample hairs - suddenly 2 blond hairs found, 'miraculously' at the same time the sample hairs were in the same lab in a breach of international forensic science protocol. Perhaps anywhere else in the world that 'evidence' would be rejected but not in New Zealand where authorities were on a mission to convict Watson come hell or high water, as they would do a few years later to Lundy in order to solve a second double murder mystery. There appeared to be more at stake than the lives of 2 innocent men with all their differences and dedicated family and friends supporters who have stood by both for 2 decades.

As readers will know ML was convicted using controversial non-forensic Immunohistochemistry (IHC), never used before or since in a criminal Court. IHC was the 'bright new thing' that didn't endure forensic process or methodology. In a forensic setting it is a 'junk' science. As readers will also know SW was convicted on the strength of the 2 hair evidence which all parties agreed may have been contaminated. I think that 'may' is now seen as an unacceptable risk of contamination in case like Lundy as well as Watson, of having no strong supporting evidence and plenty of evidence showing both men as innocent.

What is less known (although increasingly less so) is that the 'hair comparison' tests in Watson resulted in around 98% false conviction in FBI cases where hair comparison was used. It is simply a scientist claiming to have developed powers of discerning between hair and able to 'confirm' the probability that 2 or more hairs are from the same source - absolute codswallop. While the same tests if done in Lundy would have excluded him on  hair colour alone (he doesn't have red hair),  let alone DNA or mitochondrial DNA (mtDNA) testing, it was simply not done at all. Although in Watson both DNA and mtDNA was used because police had a different objective, find hair to prove Watson guilty, and in Lundy ignore hair that would prove ML innocent.

Both cases use the word absorbed when speaking of potential evidentiary samples used, or potentially used, in testing. Scientifically, that means evidentiary material is absorbed in the process of testing. Both cases have extensive work, I will call footwork for the forensics, which is recorded and placed on file to be referenced by scientists doing any tests on particular material. It has been recently found that both case files contain 'footwork' not disclosed to the Jury that indicate both men are innocent, and not just because hair testing was not done in 1 case when it should have been. In Lundy there is a case note that confirms there was nothing on the shirt to test using IHC so therefore there can be no legitimate result excluding all the crime scene evidence which points away from ML. Similarly in Watson there is a case note which any modern day scientist would know negates the '2 hair' evidence and which was known to ESR in 1998.

When talking about a 'modern day' scientist. The principal scientist in both cases was the same person, Sue Vintiner. As a ESR scientist to this day. Sue will know that both these cases have serious flaws which she intimately knows about. but which she has never reported to the Court as is her job as witness first and foremost for the Court. Not only did she give evidence excluding both matters but when the understanding of the  so called science evolved, she did not notify either the Crown or the Defence. To this day she remains silent while 2 quite different men suffer the same fate - false imprisonment.

Why were the documents kept from the Court? Because individually they both destroyed the credibility of the Crown's allegations and arguably would have left the Court no alternative other than to discharge both men. When the 2 documents are considered together not only can it be seen that what I say above, that in Lundy tests were not done which would have excluded him, while in Watson the test results would be set aside as unreliable to the extreme but that the Crown kept that information secret from the Court with the compliance of ESR - purportedly an independent organisation from police, its potentially biggest customer.

For many people the Watson convictions don't make sense because they are 'boaties', know the sea and know boats but they were told to take a hike or that they were mistaken. In Lundy few people understood IHC but there would have been comfort to a Jury that the 'expert' found brain. Years later when the Crown case was in trouble they sought an American opinion to confirm that the DNA was both human and female. The result was probable animal DNA but neither Y or X chromosome was confirmed, so a new junk science was found called MRNA which was thrown out at the recent Lundy Court of Appeal hearing.

So 1 case had an informed public and many eye witnesses contradicting the Crown case. The 2nd had unknown fingernail DNA, mtDNA and nuclear (personal) DNA, and potential fingerprint DNA and hair evidence of which no attempt was made to link together because even 1 link would mean Lundy was not guilty, just as the secret documents mean both men are innocent on the Crown's own hidden evidence. Perhaps a New Zealand first but frightening enough that evidence in 2 cases was exploited in different and opposite ways to get the same result - innocent men found guilty.


Monday, June 3, 2019

The over ambition of the Watson Miscarriage of Justice

One thing which is plain in the Watson case (Marlborough Sounds Murders of Ben Smart and Olivia Hope) is the sheer size of the scale Rob Pope and his team needed to extend themselves to in their endeavour to frame Scott Watson and make it appear there were no other trails they did not fully investigate. I believe time will prove they over extended themselves in a manner that was not only unlawful but which has shown itself to be ill conceived and poorly thought through - or to capture a single word, reckless. Why would police be so reckless one could ask. Arrogance in this case.

Despite that before the Watson case Pope lost the 'poisoned professor' case where it was revealed he endeavoured to have witnesses change their accounts, we could say Pope had his modus operandi still intact. He was not dismissed from the police force in that instance, nor face an internal inquiry known to this writer. There are other factors to consider and the Thomas case is an excellent example as it remains the most significant Miscarriage of Justice accepted by the public. In Thomas, the Commissioner at the time was calling the shots, it was he whom by letter ordered that police did not investigate Len Demler's new partner. Even after all these years her version of events by timeline was exceptionally easy to break down. Of course when the balloon went up years later with the Royal Commission of Inquiry saying that the shell case was planted, police did nothing. To add insult to injury a couple of decades later our current Commissioner of Police would speak out in support of the Thomas head of inquiry Hutton at the later's funeral. I say, all of this goes to cycles that continue to repeat themselves in cases like that of Scott Watson's. When the Lundy convictions were quashed at the Privy Council a new officer was put in charge of the case, perhaps as a public display of police wanting to be seen as doing its job properly. For all the intent expressed by that move, the new officer in charge went down exactly the same track and, like his predecessor,  did not investigate strong evidence as to the real offenders.

New Zealanders often react with horror with some of the police shootings we see on video coming from America, the homeless being shot, the handicapped, the innocent. Despite that horror New Zealander may feel relieved that the same does not happen here when indeed a version of it does and has for decades, the setting up of the innocent. Pope arose from that arena with his conduct in the poisoned professor case completely ignored, if he had not already met Paul Davison QC he was soon to make that acquaintance of a man who, whilst now a High Court Judge, had the trophies of  the Tamihere convictions, and would later have both Watson and Teina Pora. I'll let readers decide what they think of that combination or indeed how it was ever able to come about then be ignored by the powers that be for more than 2 decades, even after the wheels fell off the Pora case, and now that of David Tamihere.

I don't think there is much that needs to be traversed in fine details of evidence about the Watson case other than to say what is now known. I'll make a short list:
Witness statements hidden or altered.
At least 80 suspect ketch sightings with the real number being in the 100s.
Co-operation between police and ESR which resulted in incomplete evidence given to the Court on the issue of the fundamental evidence in this case - the 2 hairs.
Evidence of the couple being alive after the were said to have been killed.
A witness tip as to where the bodies may have been which was ignored around a period when the Cook Strait was searched to, in my opinion, reinforce in the public mind, that the police theory was correct 'but the search for bodies unsuccessful because of the deep water.' Whereas the witness position indicated was not in deep water and chances were high that tide shift would not have had an impact.
Witnesses being convinced that Scott Watson had killed Nancy Frey and that police 'really needed' to put him away. Many of those witnesses changed their accounts, as did others who police knew had broken the law in minor ways.
That police had already investigated the '2 trip' theory and knew there was no evidence in support of it after which Paul Davison raised that 'evidence' after all witnesses had given evidence, allowing for no cross examination or normal planning of a defence after the depositions (preliminary) hearing.
The destruction of photographs, statements and job sheets.
The hiding of evidence and the list goes on and on.

The only flaw being that trail that was left carelessly behind by police who 'cleansed' the file, ignored or threatened witnesses. That trail is now in the hands of the defence and one day, soon I hope, will be in the hands also of the public.

Monday, May 27, 2019

The Lundy fingernail DNA and what it means.

The following was sent by an overseas expert interested in the Lundy case.

"During the four-plus decades Bush spent in prison or on parole as a sex offender, Suffolk County prosecutors resisted his attempts to re-adjudicate his case, even after a 2006 DNA test found that another man’s tissue, and not his, was under the victim’s fingernails."

Sometimes these apparently complex cases have been made that way in order to gain a conviction. The more evidence and the more experts the Crown call is often designed to get a weak case over the line. In Lundy there has been the constantly changing Crown case as more evidence has been revealed helpful to Mark Lundy. The imposter evidence mRNA is now gone, and in its place is left the most damning evidence against Mark Lundy as being material on his shirt from the food chain. So again what do we do but look back at the crime scene, and find fingernail from 2 men lodged under the nails of both Christine and Amber and they fought to escape. Fingernail DNA that was never investigated.

Thursday, May 23, 2019

Has the worm finally turned in Lundy?

The Lundy case has been pressured by misconceived subjective reasoning dwelt upon by the press as well as 'science' made deliberately complex while a crime scene was ignored - always the most important part of solving a crime. Think of the funeral scene, Lundy's weight etc, they all prove guilt, right? But if the science and other evidence is not complex why does in continue to be found legally wanting? One of the reasons is the decision by the Crown to go outside established forensic science and never return. It beggars belief that the Court has continued to allow that. A 'novel science' does not remain 'novel' for 19 years, it is either accepted by mainstream forensic science or is rejected. It may be safe now to say that is true.

In Mark Lundy's first trial it was accepted that the novel science IHC, if correct in its diagnosis, was as the result of contamination or planting. In the retrial it was accepted that if correct in its diagnosis, that the material believed to brain (or central nervous system CNS), then it was animal.

Here is the recent defence and prosecution oral submissions to the Supreme Court on Mark's leave to appeal application:

I think it is an excellent analysis by Jonathan Eaton QC, and one that continues to unfold as the case is broken into past the IHC. Follows here is a brief analysis of the submission which is interesting to read in full.

Eaton says that in Trial 1 that the shirt material was assumed to be human CNS (brain or spinal matter.) And what supported that were the following 'facts.'

1. Lundy seen by Mrs Dance running from the vicinity of his house dressed as a woman in the early evening.
2. The fast drive from Wellington and back to make a 7.30 Time of Death of Amber and Christine possible.
3. The 'manipulated' Lundy computer, altered by the cunning Mark Lundy preparing for his record breaking drive back to Wellington on which he was never seen.

All considered as being reasonable inferences of guilt by the Court of Appeal (COA) when Lundy appealed the verdict of his 1st trial.

Eaton says  those now abandoned 'facts' give context to the Lundy case about drawing inference from expert advice which is disputed. He then points out that after Lundy's success at the Privy Council that the Crown sensed a gap, a void between the DNA found on the shirt near the alleged CNS. This refers to the fact that while DNA belonging to Christine was found on Lundy's shirt near the CNS, none was found within the CNS itself. This information is problematic 18 years or so after the Lundy crimes. It is now understood that clothing of one family member or spouse is likely to have the DNA of other family members on it, that DNA can survive the wash and so on. There is also something now understood to be  the 'association fallacy,' that is that because DNA is found in association with body tissue or fluids it may not be linked. For example both might have arrived at different times. So finding Christine's DNA inside the alleged CNS was important and the Crown realised that.

What the Crown did was to set out to show was that the DNA was both human and female, a slam dunk if you like. Fair enough, but they failed. Firstly they used a test called FISH (Fluorescent in situ hybridisation) which didn't give the wanted result. Secondly, and to the Crown's credit, they went to NZ Environmental Scientific Research (ESR), who could also not confirm that the DNA was female or human. I say credit to the Crown because ESR is a forensic science facility. Next the Crown decided that they had the elution (wash from the shirt material taken from where the alleged CNS was) saved which it sent to California and got the result they didn't want - an analysis that it was animal CNS, a mixture of beef, cow and pork.

Eaton would say that all these measures indicated that the Crown fully appreciated the 'gap' in its case - the effort to prove the shirt material was human and female.

The next thing that happened was not dwelt upon by Jonathan Eaton in a way that the reader might appreciate immediately but is a picture that emerges from the Lundy case. The Crown having been outside the 'forensic safety chain,' and indeed an accredited 'forensic science', returned to another and just as 'novel' science mRNA to say that the material was more probably human that animal. Thought about carefully, the Crown having failed to find relief for its obsession that Lundy was guilty trudged back into the unknown and unproven world of 'novel' science and the Court allowed that despite that the defence fought tooth and nail against the mRNA, while the Crown did the same in its defence.

By the time the case got to the COA and the appeal against the conviction, the Crown were saying, as you will read, 'oh the mRNA wasn't needed.' I could say that is like a boxer claiming that he/she never landed a punch in an unsuccessful 12 round title defence after failing to knock an opponent down they claimed to be running away. The Supreme Court were getting more information about the Lundy case than what a NZ Court had before, an accurate narrative that spanned almost 2 decades with many changes in the position of the Crown. As Eaton said Mrs Dance was gone, as was the time of death, the computer manipulation and the madcap drive.

1thing the Court was interested in was the 'pure' CNS the Crown claimed to be on Lundy's shirt. Eaton pointed out that 'pure' CNS did not have skin flakes in it that might have been dandruff, and that a dab slide taken from the same shirt spot in New Zealand was said to necrotic or decayed, whilst the Crown claimed same material on the shirt was pure. For me the difference between the NZ dab slide and the alleged CNS is pivotal to this case. Not only is it illogical that 2 things from the same origin can be biologically different in presentation but that NZ forensic experts had essentially told the Crown the evidence was unreliable at best so the Crown went on a world wide search for someone to confirm what it subjectively 'believed.' The same place the Crown returned to when all those they approached from the forensic science community said they couldn't help - the Crown cheated again, so important was it that they were right and modern forensic science was wrong.

If there is a moral to this fallacy of the truth - the Lundy convictions, then the answer is easy: junk science is junk science whether it is the Scott Watson case or the equally bad Mark Lundy case.

In the 2nd Lundy trial the trial claimed a 'parallel' test where the testers who were not forensic scientists (again) and when given brain to test and told what it was,  later came up with the 'remarkable' conclusion that it was brain.


Saturday, May 4, 2019

Scott Watson and other recent Miscarriages of Justice.,

The police and the Crown have for a long time have kept an advantage they have no right to exploit. That is the separation of Miscarriages of Justice (MOJs). In any filing system in the world appropriate things go under a single heading. In New Zealand and no doubt in other jurisdictions MOJ's are not put in a pool or a single file of other similar cases, but deliberately separated and never further looked into. That serves a purpose of attempting to ensure the public (or indeed a Jury) don't associate one MOJ case with potential other MOJs, and serves to dilute the fact that police and Crown are a constant entity that has never changed in its response to MOJs. In fact sometimes public debate on the cases  serves a purpose for authorities where people vehemently support a conviction despite that there may be obvious flaws apparent; or concerns about a fair trial. Firstly authorities always delay remedy by denial, misleading evidence or statements and the absorbing of time while the victims of MOJs remain in prison and isolated, secondly they treat the results of each proven MOJ separately rather than cumulatively by saying police have learnt things, updated systems and claim certain things would not happen 'today.'

Not true as time shows.  There is solid proof that evidence was planted or tampered with in Thomas, Tamihere, Bain , and also in Lundy and Watson -  although these cases are in some instances separated by decades so the claims of 'would not happen today' are weasel words and there is no authority to overlook what police hierarchy will not do themselves, that is remedy MOJs - successive Police and Justice Ministers have failed to intervene when police go to sleep on MOJs. Sometimes citing as we will see later, the number of trials or appeals in which an MOJ is upheld.

In terms of the denial we saw the classic example a couple of years ago with the OIC of the Watson case, Rob Pope, 'explaining' that other people did not appreciate 'all the evidence.' All the evidence is for the Courts not for police to pretend, when a conviction looks shaky, that there is other evidence the public don't know about - we are democratic country with supposedly open justice system so what evidence was Pope talking about? The only hidden evidence that exists points to Scott's innocence, not guilt or it would have been crowed about for 21 years, like the '2 hairs' was.

First of all lets see some of the cases that should be in the pool of information on MOJs, to enliven comparison and scrutinise police methodology in suspect cases that has never changed:

Arthur Thomas, the planted shell case was made after the Crewe murders, but police never bothered to trace it to where it was sold and to whom after a private researcher tracked it down to the factory of manufacture. The reason, more probably than not, was because it would have led back to police so no doubt an investigation was never considered and no one independently ordered one. An unopened present is this case became the alleged reason for murder, (and how would Arthur know it was unopened or why would he care as by then both Jeanette and himself were in happy marriages), and does not compare to a shell known to be planted, and considered to have been planted by the Royal Commission of Inquiry that followed Arthur being pardoned for a crime he plainly didn't commit.

David Tamihere, there was evidence given that Urban Hoglen was killed and his body and that of Heidi Paakkonen dumped at sea. Urban's alleged watch was found in the room of David's young son. David was said to have had confessed to inmates in prison, one of whom he had never met. The inmates revealed horrific stories of the alleged sexual abuse of the couple before they were killed, (same as in Watson). Then the body of Urban was found buried on land, the watch still with his body, autopsy showed that his death was caused in a different manner that what the secret witnesses had claimed. David's appeal was turned down, no effort was made to trace the watch. Why, because we can imply that it had been planted, just like the shell case - in any event the body when found showed there had been perjured and planted evidence, but the Courts turned a blind eye. Advance to 2017 and a primary secret witness found guilty of multiple charges of perjury in the case after, not a police prosecution, but a private prosecution by Arthur Taylor and Mike Kalaugher. Tamihere is then left to have his convictions overturned while his captors, Crown, police and the Courts watch and offer no assistance.

Reg Haig, convicted of murdering a crew member on his fishing boat using the evidence of a witness granted immunity from prosecution, David Hogan. It would later be revealed that before the immunity was granted police properly (credit to them) provided evidence to the Crown that other witnesses had told them that Hogan had admitted the crimes, but the man still got immunity from the office of the Solicitor General in exchange for his evidence. The Crown solicitor that handled that case is now a judge, and the number of alleged confessions have been increased. Even after Rex's recent death the Crown will not disclose the full file to Jonathan Eaton QC see here:

Surely that Judge has an obligation to speak out.

Peter Ellis, children had suggested to them by investigators using a method of auto- suggestion that Peter has abused them at a pre-school where he worked.  Peter spent a decade in prison and would not admit the crimes (just like Thomas, Lundy, Pora, Bain and Scott Watson). The auto suggestion method was later abandoned worldwide as witnesses were seen to have been 'primed' as to what to say. Yet NZ police and Crown do nothing apart from ignoring the falsely imprisoned Peter Ellis - implication that it's up to him to undo the harm caused to him by the state.

We still have the case of a Dunedin woman since released on life parole and believed to be not guilty but who has said that she is afraid to speak out in her own defence against one of the police believed to have planted evidence in the Bain case. (This was in a book published by Ian Wishart that included these details, although I have also read about it in the mainstream press, and a recall a documentary.)

These cases are all symbolic of people being put in prison using great energy from the Crown, police and at times wilfully blind Courts, then when the case falls apart it is upon the victim to fight the system, rather than the system come to the rescue it just watches, one could say like a vulture. There are others - Pora also being an extreme case, a young man with learning difficulties 'helped' to confess to a crime committed by a police informer. Pora served 20 years for essentially trying to get a reward with a concocted and transparent story full of holes no police officer worth his/her salt would have believed. No help from the police or Court or Crown but rather an ex policeman Tim McKinnell who now says that another case, that of Gail Maney, convicted of murder when no body, was found 'could be bigger than the Pora case.' There has been no attention from authorities to aid McKinnell in looking at the Maney convictions, just the same old, 'nothing to see, none of our business' from the authorities.


In the article McKinnell describes the way police 'find' evidence, and also the way old cases are rejected by police because of the previous hearings:

He found some concerning similarities to Teina Pora's case too, particularly when it came to the way police managed witnesses. "We have what appears to be a rather prolific use of deals, inducements, threats; potentially offers of rewards, relocation and pay-outs."
McKinnel holds a map of the car park at Whatipu. Deane Fuller-Sandys was presumed drowned for years before police decided to open a murder investigation.
McKinnel holds a map of the Whatipu car park where Fuller-Sandys' car was found. Photo: RNZ / Luke McPake
Told of McKinnel's opinion, police said, "This matter was tried twice in court and Gail Maney was convicted both times. In general, police do not relitigate historical matters that has been through the courts and therefore we have no further comment."
Those comments by police are 'self imposed' rules or laws. Nobody would expect police not to reopen cases where there are problems or new evidence. But above shows that is exactly what police are saying they won't do 'in general'. One exception has been the Pora case where, after public pressure, police charged their 'own boy' Malcolm Rewa who has since been convicted of the rape and murder of Susan Burdett for which the young Pora spent his youth and early adult years in prison. So the police statement of not 'relitigating' historical matters is not estopped by Law, but rather by police themselves and uninterested Police and Justice Ministers. One would be correct in saying, no interest has ignited any response from police or the Crown since the star witness in the Tamihere case was convicted of 8 counts of perjury, in fact they just sit on their hands, as they did when Urban's body was found inland and still wearing a watch.

So a pattern is evident which stretches back 40 years, and no doubt further. Though the Thomas case remains contemporary point and Arthur has never received an apology. The man believed by many in the public to have planted, or to have had a hand in the planting of the shell case was spoken highly of by the current Police Commissioner Mike Bush at the man's funeral. Bush only withdrew or modified his comments after public pressure.

I add here Watson and Lundy who both have strong exculpatory evidence in their cases never heard by a Jury. Scott is in his 2nd year of an RPOM review and 21st of imprisonment. Independently during that time more critical evidence indicating his innocence has been found. At this point David Tamihere's case is under a similar review arguably with the strongest evidence possible - perjury. Mark Lundy has his case currently being considered for leave to Appeal to the Supreme Court, during a submission hearing on that case this week the Bench remarked that IHC (a junk science according to Jonathan Eaton QC) has a 'unhappy history'. These 2 cases, Lundy and Watson, both have hidden evidence, or evidence that was never investigation to a conclusion - in Lundy the evidence of 2 unknown men being in the death scene and whom left evidence there including fingerprints, DNA as well as hairs and fibres. In Scott's case the strongest evidence against him is now the strongest evidence of his innocence and has been on file for 21 years. In Scott's case the newer exculpatory evidence is hopefully now part of his RPOM but in the last few weeks it was bolstered immeasurably by evidence found  accidentally in another NZ case raised from an ESR file which has also been sent to Scott's lawyer, Jonathan Krebs

So the question is in Scott's case, what is the delay? One of things we are asked for is patience, yet there was no patience shown in the police inquiry to ensure they got the right man - they simply got the man they targeted with false evidence and ignored everything else. In Lundy police 'lost' scientific evidence and could not find the 2 strangers, there is no indication they looked. The support of that is that police 'lost' evidence that pointed away from Mark Lundy, and that a specialist who knew a way of potentially exculpating him from existing evidence before it was 'lost', didn't do the tests despite having almost a year of time to have done so - that was no accident, was in fact deliberate.

In a report that I recall reading last year, the Government have said they will create a Criminal Case Review Committee this year. Meanwhile people like Chris Watson, Mike Kalaugher, Keith Hunter, Warwick Jenness, Tim McKinnell and Geoff Levick soldier on from outside the system to get it right. A large portion of the public know that Arthur Thomas, Rex Haig, Teina Pora, Peter Ellis, Allan Hall, Gail Maney, Scott Watson, Mark Lundy and others never had fair investigations into their alleged guilt let alone fair trials.

A fair trial can never follow an unfair investigation. I'm impatient about both Mark and Scott's cases, Mark's case fortunately (although I don't believe he should be in custody) is at least before the Courts though we can't know the outcome. Scott's with equally strong evidence continues as he remains in custody after 21 years (4 years overdue for parole) and still not back within the Court system, despite a failed Court of Appeal Judgement (on the 2-trip theory) that may well have negatively influenced a Privy Council decision along with the now discredited hair evidence and an previous RPOM turned down without the hair evidence used to support the refusal, looked at again for changes in forensic process, or indeed in view of those case notes I mention. If someone else could find out about them, why couldn't a QC appointed by the Crown? No doubt because no one in authority encouraged her to do so and she didn't look,  giving meaning to the lack of encouragement or proper instructions. The same goes for the 'finding' of  the Thomas shell never fully investigated  right back to the Australian factory where it was made. Same with the 'confessions' made in Watson,  Haig, Mahey and Tamihere. None of these cases are isolated from one another as the same police force, Crown and Courts were involved and many times the same personnel both in police and prosecution.

Scott has asked his supporters for patience and that of course must be respected. To me that hopefully shows the seriousness with which the new plea is being treated but in another way it reminds me how poorly treated the wrongly convicted are, both when in prison and upon release. Scott's brother Tom has said that people should still write letters to the Minister or the Governor General if they so wish - encouraging a speedy result.