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."


https://www.usatoday.com/story/news/2019/05/22/keith-bush-innocent-prosecutors-move-vacate-1976-murder-conviction/3756361002/?fbclid=IwAR3PybcUPdQUIo8dQW9rDsD6Dry3odOsjYaOpuRa8AmDBeGwsRYAulFuid4

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:

https://www.courtsofnz.govt.nz/the-courts/supreme-court/case-summaries/case-information-2018/Trans5LundyvQueen.pdf

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.

Cheers.

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:

https://www.noted.co.nz/currently/crime/rex-haig-case-concerns-over-how-immunity-was-granted-to-crewmates/

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.

'https://www.radionz.co.nz/news/in-depth/378282/gail-maney-case-could-be-bigger-than-teina-pora-s-investigator-tim-mckinnel

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.

Sunday, April 28, 2019

Lundy leave to Appeal to Supreme Court.

On the 2nd of May this year Mark Lundy's case goes to the Supreme Court for a short hearing to preview the written submissions by both the Defence and Crown. This will decide if Lundy's appeal goes to a full hearing. The Lundy case is high on the horror scales for a lot of New Zealanders, so not surprisingly feelings about the case overshadow the literal evidence. I'm going to try and break down the evidence to its barest simplicity, not because the case is complex but rather to make the point that it is a very simple case convoluted with feeling and questionable and confusing 'science.' One area that is straight forward is the crime scene of which little has been heard, it gives a constructive picture of evidence which points away from Mark Lundy to an unknown offender(s.)

Lundy's wife Christine and 7 year old daughter Amber were attacked to the head with what may have been an axe or tomahawk. The weapon whatever it was never found. In the part of Palmerston North in which the family lived there had been a number of recent crimes including burglaries of which one at  trial evidence was given of tools being stolen that included a tomahawk. Neighbours that night noticed unusual activity, one man's dog barked in the late evening in an unusual display that normally indicated someone possibly on the property, a local family that had been playing in the earlier evening the next morning noticed a fence paling broken - the most important witness was a man who had called his father overseas at around 11am and at that time noticed a ranch slider open at the Lundy home and a light on. The ranch slider being open was unusual because it was late winter and very cold. This man also heard what he thought was a woman scream.

When police were called to the house the next day Christine body was found naked on the bed with severe injuries to the left side of her head that had resulted in blood on the wall to the right of the bed. Noticeable was a blood shadow in the blood spray against the wall where it was clear the attacker had been standing, that would have resulted in the attacker being covered in blood. There is no record that police attempted to calculate the size of the offender by the size of the shadow where blood was absent. Mark Lundy is a very big man, well over 6ft and probably around 250 pounds or more at the time. Not much is known about his fitness but he and Christine were well known dancers and Amber was attending dance classes. That night, the 31st of August 2000 dance lessons were cancelled. So mother and daughter were home early in the evening, after obtaining Mark Lundy's permission by phone (he was on a business trip in Wellington). they brought McDonalds as a treat at the local drive through at 6.15pm. It would be fair to assume the meal was eaten on their arrival home.

Amber's body was found in the hall, she had also been attacked to the head with a similar (if not the same) weapon used against Christine. I do not know if evidence established whether Amber was running toward her parent's room in response to her mother's screams or away as she saw the attacker(s). Police took fingernail clippings from both victims. This was done by clipping the nails for later testing for DNA under the nails.  Years later it would be revealed that both had a mixture of DNA from 2 unknown males under their nails. Fingernail DNA has a limited life of being able to remain under the nails estimated at 6 hours as people both use and wash their hands in general life. The last known contact either victim had with any person was at the McDonald's drive through where it is unlikely DNA would have been exchanged with Christine when handed her order, and certainly no chance for Amber. The donors of that DNA have never been identified, this evidence was not heard by the 1st Jury.

21 hairs were gathered at autopsy from Christine's hands. So were numerous clothing fibres under her nails. On her right buttock was found a 'brown' to 'brown red' hair which had its root intact indicating that it had not been a shed hair but rather pulled. Although Lundy was arrested within months of his family's death, various hairs of interest were not tested for 14 months. The hairs of interest did not include the 21 hand hairs, by that time they had been released into the care of the officer in charge, Ross Grantham. So they were never tested and not been seen again, despite that the Court of Appeal inquired after them last year in 2018. When the fibres were tested they were found not to have come from any clothing connected to Mark Lundy. The hair with the root was said to have not had a root of sufficient quality to give a nuclear (personal) DNA result. There is said to be a record that the 21 hairs had no roots, however there is no doubt that they should have been examined by New Zealand's only 'hair expert' at the time Sue Vintiner of the Environmental Science Research (ESR.)

Sue Vintiner was involved in a 2nd controversial case, that of Scott Watson 2 years before the deaths of Amber and Christine. In Watson she used hairs without roots to find mitochondrial DNA from the maternal ancestry line of Olivia Hope. There is no reason to expect that she would not have been able to test the mitochondrial DNA of the 21 hairs to exclude Mark, Christine or Amber as the donor of the hairs. In fact they are excluded anyway because sample hairs were taken from Amber, Christine and Mark voluntarily provided samples of his own hair. However, the Juries were entitled to know that information, to hear confirmed by Vintiner they were not Mark's hairs. This is not the only dodgy piece of evidence handling in this case, I will write about others later.

Also found at the crime scene was evidence of a breakin of the house at a window near the sliding door the neighbour saw open. The window had been forced and there were fingerprints and footprints in the area which have never been traced. Evidence was given of a thoroughly cleaning of the area just days before the attacks. This was done the by housekeeper who cleaned the area which had been just used as a work area by Mark to contain dust as he worked on making a new wardrobe for Amber's room, the family's only child.

For Mark Lundy to be guilty some of that crime scene evidence needed to attributable to him in my opinion, in fact positive scientific proof traceable to Lundy. But this case has never furnished such proof. When Mark was asked what clothing he was wearing he told police frankly, and handed over the polo shirt he'd worn from a bag in the boot of his car. To recap this man willingly gave forensic samples, his clothing and his whereabouts that night to police. He embarrassingly admitted that he had spent time with a call girl visit to his Wellington motel. That would later be said to have been an false 'alibi', with the break in called 'staged' by police who just made that up without any proof.

Every major investigation has a officer in charge of evidence who appropriately stores and tracks the movement of the evidence as it is tested and so on. In this case Ross Grantham did not surrender the polo shirt to the exhibits officer, because he said he didn't want Mark Lundy to find out about it he would later tell the Court. Police in some of these controversial cases often give what appear to be stupid replies for particularly important questions, but Grantham's takes some beating. Mark Lundy already knew about his shirt, in fact he handed it over.

I think it was 46 days that Grantham held the shirt in his safe, there was no way of recording if he or anyone else moved it during that time. Equally importantly is that all through the crime scene central nervous system (CNS) material (brain) was found to have been deteriorated in a very short time after the killings, in fact within hours. That is entirely consistent with both animal and human brain which deteriorates on contact with air, the smaller the particle the quicker. When Grantham took the shirt to ESR (although one witness would lie about this) none could say it was brain and all agreed it was degenerated. That witness's name was Cynric Temple Camp who would recommend a immunohistochemistry (IHC) practitioner friend in America who was not a forensic scientist. Temple Camp  felt the American could identify 2 small stains on the shirt as brain. So 19 years of controversy would start as police stepped into an alternative world to that of 100s of years of developed forensic science.

Temple Camp last year wrote a book lamenting that his own notes of examination of the shirt spots where he said the spots were degraded should not have been written. He was in other words saying that case notes could be damning if one was inclined to be untruthful. He was not called at the retrial because his evidence was clearly a liability for the Crown after the Defence discovered the inconsistent case notes. After contacting Miller and essentially telling him what he wanted (proof that the marks were brain) Grantham took the shirt to America. Still it was kept outside the forensic safety chain in terms of temperature and preservation. Such was Grantham's lack of concern about such things there is no record that he even took advice from ESR as to how the shirt should be handled, but no doubt when ESR said they couldn't help him they told him the reasons why.

Miller ran a business that took known and preserved to fresh samples from live patients to test for disease and abnormalities using IHC, a staining process where antiagents stain to different colours if cancer or disease is present in a sample. Each type of sample, kidney, lung, brain etc has a specific stain produced for testing, but a specific stain may test positively to samples they are not designed for, particularly as different parts of the body contain the same types of cells, also if recommended limits of stain strength are increased. Miller cut the shirt spots from the shirt and then lifted the material before eventually embedded it into paraffin which he then sliced and tested. Before he put the lifted material into paraffin he 'fixed' it in a special appliance to preserve it. By now months had passed from the time of the murders, the shirt had never been kept in controlled conditions for example at a lowered temperature as happens with body parts for transfer. It had been simply left in a safe which can be compared to the Lundy home where known CNS was deteriorated in mere hours in a very cold crime scene. Later it would be argued that the tissue had been air dried in a flight through the air, no proof was ever produced to back that up and if Miller knew it was preserved there is no reason why he fixed it (preserved) it again in formalin.

Later from one of the shirt spots Miller got a positive result for CNS but not from the other, however that was not before he increased the dosage several 100%. You could say nuked it. That material that gave the positive results when put under microscope did not contain any neurons of which there are billions within the brain, Miller claimed it was because the material must have come from a part of the brain with 'less' neurons. This resulted in Mark Lundy's first conviction. That conviction was eventually overturned at the Privy Council after it was proven a 7.15pm time of death (TOD) was highly questionable and until then hidden evidence of a Dr Teoh who had looked at the shirt under the microscope back in NZ and said that no man should be convicted  on such marks which he stated where degraded. That evidence was (and still is) consistent with accepted knowledge worldwide of the deterioration of human tissue. Miller's evidence was also found to be short of the mark. He was not accredited to have undertaken the tests, he had used stains that were not accredited for forensic testing, he knew what he had to find, he would have been unable to give the same evidence in an American Court as it was inadmissible as Miller did not have a forensic science validation, neither did his lab, or the process used. He was a mechanic in a back street garage trying to match the work of surgeons in an operating theatre. Like the call girl liaison having been said by the Crown to been a created alibi Lundy, and the breakin (at a time according to the neighbour to have been when it was agreed by the Crown and Defence) also being staged, a police computer expert later discredited in the Bain case retrial, Kleintjes, who said Lundy had manipulated the family computer to a false shutdown time of around 11am was also rejected by the Privy Council.

Despite all this, the Crown decided to hold a retrial where again it pulled questionable tactics.  The Crown said it wanted to present 'new facts' something which the Court too easily accepted. It was only weeks before the trial and the Crown wanted to change the time of death, dispense with the computer expert, not call Temple-Camp, and a witness who had claimed to have seen Lundy running from the area of the house dressed as a woman was also gone. I've wondered why the Court accepted that when the Privy Council had said the following after an effort by the Crown, seeing that it was losing the case at the PC offered that the TOD's might have been later than the claim at trial as 7.15pm:
The PC responded in the following way. Para 108:

"Indeed, quite apart from the inherent unlikelihood of it wanting to do so, it is highly questionable that the prosecution would have been permitted to advance an alternative theory to on which it so firmly espoused, The Crown had committed its case unequivocally to a time of death at about 7 to 7.15pm and that was the case the defendant had to meet. It is at least strongly arguable that the defence could not be required, at a late stage, to answer a case which was quite dramatically different from that which had been presented against him."

I think there are 2 possible reasons why the NZ Courts ignored the PC's advice and allowed the Crown to substantially change its case, and will discuss a possible 3rd later. The 1st would be that Miller, paid by the Crown, had conducted parallel tests of his results using sample brain. Unsurprisingly his results were positive as still the antigens were not specific, were vulnerable to overdosing and the condition of the sample was never established that if it was fixed or not. In Britain similar tests were made by practitioners on sample brain which also positive. However, like Miller, the British practitioners were not forensic scientists as the Crown continued to pursue fitting a square peg in a round hole. The obvious thing was that the technicians started with what they knew was brain only to confirm that it was indeed brain. A thorough look at the file notes, show like Temple Camp years earlier that some of the technicians noted their samples as degraded. This was kept from the 2nd trial.

Blind testing is an international forensic standard to emulate the reality of material being analysed by a forensic scientist who does not know what he or she are testing. They are not told what the tissue is, are asked to test and report their results which are then compared for uniformity with other blind test results performed elsewhere on the same tissue.

In Lundy we got a meaningless parallel tests which our Court appear to have accepted without a protest. Something that would never have happened at the Privy Council. Why? Perhaps the reason is a question in the Lundy case about the shirt spot as to whether the material there, was introduced in the 45 days the shirt was kept in Grantham's safe, also why it was not totally degraded. There was also the question as to whether the tissue was human.

So before the retrial the Crown had the shirt material tested for human DNA, none was found that matched anyone in the Lundy family although human DNA was present in good quantities on a shirt that had been handled by numerous people many times and which after all was the shirt of a human being. However, in a blow to the Crown case a small amount of DNA from cow, sheep and pig was found indicating food from the animal chain. This problem for the Crown prompted a search for an 'expert' to confirm whether in fact the first test was accurate. Like the IHC another 'novel' but not forensic science was introduced mRNA, never used before or since, declared that more probable than not that the material was human rather than animal by a small margin. So the NZ Courts decided to allow another novel science to be admitted and the case was altered in a manner that the Privy Council described as would be 'dramatically' changed. Lundy's potential perils had been doubled with still no answer from the Crown about the Crime Scene evidence pointing to other offenders. 

Blind testing is a critical feature of forensic science and used to dissuade confirmation bias, in other words a tester is not told anything about the sample so that the tester does not make assumptions about what they are testing, its condition and so on. That never happened in the Lundy case, police broke the protocol in the beginning and even after the Privy Council decision made no effort to return to the safety of a forensic safety chain, or indeed move on from Miller. Miller was needed to prove (absent of all the crime scene evidence pointing away from Mark Lundy) the Crown case. He was only used after Forensic Services world wide turned down New Zealand police when they knew the history of the specimen. That it had never been fixed in formalin and showed signs of degradation - agreed upon by all the New Zealanders who saw it apart from the helpful Temple Camp who would later regret telling the truth in his notes before changing his story. There was a proposition that Miller's work would be emulated worldwide and become a new forensic tool, he bragged about it on his own web site but was not taken seriously by any forensic organisations, because his methodology was never approved and never could be.

A third reason why New Zealand Courts turned a blind eye to unaccredited 'science' may have been influenced by the fact that in 2014, 3 major cases, Bain, Lundy and Pora had been overturned after the New Zealand Court of appeal had failed to recognize them as Miscarriages of Justice. There may have been consideration that the reputation of the New Zealand Courts was on the ropes. Rather than head for conservative safety the Court allowed novel 'science' to be used again, not only IHC but also the mRNA. In the Bain case the PC was at pains to point out when squashing the convictions that it was up to NZ authorities as to whether a retrial took place or not, this was after the NZ Courts had resisted as to whether or not the PC had the right to order retrials or indeed order that there should be no retrial.

After a retrial in which there were no claims such as in the 1st by Grantham that Lundy had worn overalls to explain why there was no blood even found on him, his glasses or in his car, Lundy was convicted again, having had a 2nd trial that was not fair and never having had all the crime scene evidence pointed away from him prioritised as the Court was taken over by the hot shot Miller with his bragging and confidence, usually an anathema to New Zealanders. He was a pilot without a licence being allowed to fly a passenger jet a second time without the Court blinking an eyelid. Of course the only person who faced an incalculable risk was Lundy, the Court however did risk its reputation in the eyes of the Legal world. Even paint flakes found in Christine's wounds said to be from Lundy's tools in the first trial, by the 2nd trial were accepted not to be.

Long term Lundy supporter Geoff Levick, a retired businessman, with a science background and once an importer and travelling salesman felt no need to trust Miller and had studied IHC for years, travelled overseas to discuss its merits with forensic scientists, spoken to local IHC specialists and so forth. He understood that IHC staining was non specific that you could get a result for brain from stomach lining - that stomach lining of animals was part of the 'food chain' as described the American technician the Crown had hoped would confirm the spot material was wholly human. He understood that there would be human DNA on the Lundy shirt, even that of Grantham and no doubt Lundy himself, but animal, no way - not between washes of the shirt unless it was preserved and fatty which wouldn't be removed by traditional cold wash powders of 20 years ago which Levick had imported and sold himself. So he set an investigator onto the trail of the Miller 'sample brain.' Levick wanted to know if the brain had been fixed in formalin before being given to Miller, if it had the tests were worthless because the shirt material had not been fixed for months and kept in conditions certain for it to degrade and dry out - unless it was preserved meat.

The American investigator was Mike Weir, an attorney of the American Supreme Court, also the Director of the Texas Innocence Project in Texas, a state taking a leading role investigating malpractice in false convictions and with special laws written to enable false convictions to be more easily overturned. Weir quickly found cooperation from the medical school from where Miller received his sample, he found out that there had been offences committed in the transmission of the brain to Miller, that there was no permission to do so, that it was against the late donor's specific instructions as how it might be used by the medical school and that there was no evidence it had not been fixed in formalin before its removal - in other words preserved as was the norm.

In 2018 our Court of Appeal said that they would not consider the Weir affidavit, that it wasn't material and that there was no doubt that it was not brain, they were silent on the whether it was animal or not - despite that they would thrown out the mRNA testing. There remains considerable doubt as to whether if the sample brain was fixed or not, that is a critical aspect of this case, arguably the most critical after the pseudoscience. Furthermore, the affidavit went to the heart of the credibility of the Crown's most important witness who arguable had used stolen body parts and never revealed that to the Court, or that it was an offence within Texas that could lead to imprisonment. Though the primary problem was that in a system that requires paperwork for everything, warrants, evidence handling, authentications and so on - there was no paperwork and never would be after the Texas Medical school suddenly shut down communication on legal grounds.

A New Zealand Professor from Otago University, Phil Sheard, who had featured in the Privy Council hearing had on the face of it accepted the Miller 'parallel' tests with some reservations but not to do with Miller's credibility was sent the affidavit. His response was rapid,  he essentially withdrew his non objections to the process Miller had employed in his parallel tests. It should be noted that Sheard is an IHC specialist and tutor without a forensic background and therefore not someone who would comment on the lack of forensic safety or blind testing. The very reason displaying the lack of concern by the Court of Appeal to junk science. No forensic organisation in the world would use samples without a recorded providence and no forensic scientist would be permitted to do non blind testing whilst talking and in contact with others doing the same testing. No forensic scientist would withhold such pivotal information, and arguably no Court in the world (apart from NZ) would accept the kind of evidence without paperwork that was permitted against Lundy. Reminding here that IHC has never been accepted anywhere worldwide in a criminal court setting. there was once an application for it to be admitted in a civil case in America that was rejected with the rejection upheld on appeal.

In 2019 when deciding the 2018 Lundy COA hearing, the Court threw out the very dodgy mRNA - effectively meaning that the prosecutor in the Lundy retrial could not have told the Jury that no man had the right to have his wife's brain on his shirt because there was no longer evidence to suggest that the spot may not have been preserved animal material from the food chain as the Crown was told before the retrial. The same Court had shown proper interest in the 21 hairs but because it could not find what happened to them it said they were of no help - when in fact as written here earlier they are of tremendous help, even in their deliberate disappearance. When throwing out the mRNA as a novel science the Court quite bizarrely returned to its faith in the other novel science IHC and said that was enough to not order a retrial. Lundy's counsel Jonathan Eaton QC set out in Lundy's current written plea for leave to appeal to the NZ Supreme Court that the IHC should have been thrown out for the same reasons in 'novel science' counterpart mRNA was discarded. The Court had read the Weir affidavit and apparently were blind to the impact it would have had on a Jury. The Court already knew that Miller had stated he would not return to NZ to give evidence in a further trial, he may well have known of the Weir investigation and that his credibility was shot, if not that the Texas authorities would have an interest in him and his non accredited 'science.'

Before finishing I need not to remind the reader that this case has been dominated by IHC, deliberately in my opinion because there is no crime scene evidence against Mark Lundy. The decision of the Crown not to test the hair evidence for 14 months is ominous, and when tests eventually took place the 21 hairs were not included - the hairs from the hands of Christine Lundy. What the COA also did not turn its mind to was a more comprehensive inquiry into those hairs, one which Vintiner should have told the Court about in Lundy's 1st trial and also the 2nd. That the hairs excluded Mark Lundy even though she had never seen them - she knew about them as they were in the case file of the forensic crime scene evidence to which it was her job to familiarise herself with. One can argue that she did not want to as it would have compromised her credibility for a reason which follows.

I wrote earlier of Vintiner's evidence in Watson but did not mention there that she had never made mention of the '2 hairs' critical to that case having been treated with peroxide, despite in the case file that information exists. In a broader way internationally exists an appreciation that hairs treated with peroxide are notifiable as to being not suitable for testing because of the effects of peroxide on the cell plates of the hair. Basically no one would drink peroxide is sufficient to say. In Lundy however Ms Vintiner suddenly had the ability to recognize that Christine's hair had been dyed. So why was her evidence different in 2 major trials? You decide. Then also think about the following.

Mark Lundy was accused of staging a breakin of his home. I think we all realise what follows from that as being that he also put the fingerprints on the windows there and around the joinery, that he left brown to red brown hair on Christine's buttock to find, just like the fingerprints in the conservatory, like the 21 hairs in Christine's hands along with the fibres from someone else's clothes. He also removed a spray of blood from himself that left a shadow on the wall, as noted no blood was found on his watch, his glasses, in his car or in his motel after a scientific miracle happened, a single spot of CNS flew threw the air preserving itself on the way (overlooking here the NZ scientists who said it was rotten) and when tested something like 14 years later to bolster the Crown case was found to contain preserved food chain material.

Finally, and who were those people who cooperated with Lundy, giving him their fingerprints to place in the conservatory and how did he do that, who were the 2 men who gave willingly gave their DNA to Lundy to put under the nails of his wife and daughter as they lay dead with all his dreams, who gave him the 21 hairs, the fibres the brown to red brown hair pulled out with the root? That's a series of question for the New Zealand Supreme Court.

Wednesday, April 10, 2019

The mystery 'men' in the Watson case.

One of the clear fallacies in the Scott Watson case is the mystery man moniker. The Crown used the mystery man detail to exhaustion in the absence of other factual evidence. However looking behind those facts there is evidence of 4 mystery men none of who was Scott. It must be remembered that Scott was accused of being a sleazy mystery man in the bar but when the evidence is looked at there are at least 4 men, 2 of whom were clearly not involved, we call them A&B. There real names are known and were known to the police early in the inquiry. They conducted themselves in a moderately harmless and forward way on New Year's Eve, flirting with women, mostly very young teenagers.

Then there was the fellow at the bar we will call 'sleazy.' He was also seen loitering near the toilets and openly ogling young women and girls without any inhibition. Some people left the Lodge because of him, uncomfortable and concerned about their daughter in one case, and sister in another. This is the person that Roz McNeilly saw and described, her description was shared by other witnesses but no evidence on that topic was produced from them by the Crown at trial. Other people saw and described him as taller than Scott and with longer hair as the identikit picture of the time showed. The identikit picture has been recognized by people as a person on a ketch at Mapua days later.

We will call the 4th person 'talker' he was confident and forward, described as looking as though he could look after himself. Whereas A and B socialised together there seems little evidence of sleazy and talker being together unless upon the suspect ketch. But it was A and B who drew the police's first attention. After it became evident that they had nothing to do with the disappearance of the couple they were able to serve another purpose for police. One of them would 'become' Scott after police managed to somehow persuade a couple of witnesses they had seen Scott acting in a forward manner, like a 100 or more other males that night. Those that couldn't be persuaded were simply not called by police, whilst those that gave evidence changed their accounts to focus on Scott in a manner that allowed the prosecution to attribute all of A and B behaviour (and perhaps others) to Scott. The result of this was that the Judge was 'able' to say that Scott was driven to anger because he had failed to hook up with any female that morning. Even that idea does not bear scrutiny because there is a big difference in hooking up to becoming intent on murder.

At the very beginning of that idea, no one can seriously accept that a person uptight and contemplating possible murder would tie up to 2 other boats,  let alone get aboard a naiad without anyone on board remembering him or noting the difference between his sloop and a 2 masted ketch. However, that was the Crown's case. A jilted man prepared to kill a couple because young women rejected him. When A and B gave evidence the Crown were careful not to ask them any questions that would give a clue that it was them acting up with women in the bar and not Scott. It could well be to this day that they don't know that themselves. However that doesn't seem likely because they had pointed allegations put to them by police as to the way they had allegedly conducted themselves and what they'd said. Those allegations could well have resulted in them becoming more compliant with police and willing to stretch the truth. That happened time and time again in this case, smoking or possessing dope was overlooked for helpful witness who might just change their evidence 'to help' convict Scott who police said 'killed' the couple and also Nancy Frey. They were being good guys against a common, if innocent, enemy.

Meanwhile sleazy was a loner that night, keeping to himself, drunk, drinking bourbon and as his intoxication increased becoming less concerned about his conduct to young women to the point, as mentioned above, fathers and brothers left the bar with young women as the mood deteriorated. Some of those persons gave evidence, but like A and B, no evidence was adduced from them about sleaze pointing away from Scott. So A and B are a pair, while sleaze and talker are not. No one appears to have put the later together apart from out on the water when the suspect ketch arrived. It is not even clear that sleaze arrived on the ketch although there were at least 2 persons aboard. Talker may not have even gone ashore and certainly wasn't the person in the naiad with the couple. The confident man in the bar might have solely been either A or B, or B if we attributed the confident, almost arrogance. to B.

So what are we left with? Sleaze going aboard the ketch with the couple with talker already aboard and a early departure just after a scream was heard across the water. We do not know if that scream was Olivia's and should not speculate that it was, although it has never been explained by police. Within hours the ketch is seen in probable trouble with rope dangling in the water, suggestions by witnesses that it was 'talking' with another yacht hugging the coastline. Although Crown witnesses gave accounts of this situation, the Crown have never explained these sightings or indeed a ketch trailing rope in the water.

When that vessel is seen again after the Eyvonne and Ted Walsh group in rough weather noted it with the couple on board, it is traced to being berthed later with only the man whose identikit picture was released who is identified and the couple aboard. Later a second man (not Ben) is also seen according to witness accounts. But for followers of this case we are talking about Ben and Olivia alive when they were meant to be dead and weighed down in the Cook Strait. This is the point when it is absolutely clear Scott is innocent, so what did police do - hid the ketch again, changed statements and reports and said it was the Se Swalker.

An intricate web was weaved to show that the suspect ketch was actually another ketch - but that has been rejected by the witnesses or saw it, just as the Alliance was rejected by a majority of witnesses as being the suspect ketch seen at Furneaux Lodge, where the ocean going yacht, with brass portholes, canoe ends etc as the reports remains vivid in the minds of dozens of witnesses to this day.

So here is demonstrated several points, 4 mystery men - 2 are identified, the 3rd goes aboard the suspect ketch with the couple and sails early the next morning and is seen that same day and days after with the couple on board. The police say that boat was a the non sailing Alliance, when the couple are seen at Mapua on a ketch police will say no, that was the Se Swalker. Hopefully soon it will be appreciated by readers that Ben and Olivia were  alive on the 3rd of January (and probably afterwards), the police were rung with that information and the couple could have been saved as the ketch remained there for many more hours before sailing the next morning.

Monday, February 25, 2019

What happened to Justice in NZ?


What ever your positions are on the guilt or innocence of any of the cases I mention put that aside for sake of the argument about what it must be like for Tamihere, Pora, Thomas, Hall, Lundy, Bain and Scott Watson to see Rewa convicted this month for the murder Teina Pora spent 2 decades falsely imprisoned.  Who can know what Teina Pora might feel about the unprecedented event, he may not yet know himself how he feels as he still struggles to find his way after over 20 years of false imprisonment. Not surprisingly both men came from families where some members spent time on the wrong side of the law.

For the entire group it is probably fair to say they had a sense of anger. For Thomas, Bain, Hall, Lundy and Watson they were not looked past for other offenders. In all those cases other potential offenders were obvious, in fact in Bain the Jury answered the question was it ‘Robin or was it David?’ by find David not guilty when he finally had a fair trial. Len Demler who gained financially from the results of the death of his daughter Jeanette and her husband Harvey apparently brought no attention to himself or his new partner for not helping in the police search for the couple. In Lundy, probable offenders left finger and footprints behind, DNA, fibres and 21 hairs were found in Christine’s hands all of which were never traced, and with the hairs not used for mitochondrial traces. Alan Hall, http://i.stuff.co.nz/national/2779008/Group-asks-for-murder-case-review, never fitted the description of the attacker of Arthur Easton, a person described as a young Polynesian or Maori and not an older, much shorter European man, yet he still went to prison The Watson case, even today, has at least 3 suspects who were never interviewed, and 2 of who were since the disappearance of the couple Ben and Olivia were sentenced to life for murder.

In Pora it has been known for over a decade that Rewa was most likely the offender. In fact his name had been given to police by one of the victims pg. 114 (https://books.google.co.nz/books?id=gBrvZ2zsEMoC&pg=PA118&lpg=PA118&dq=malcolm+rewa&source=bl&ots=_bNEyok30k&sig=ACfU3U0V1WAVDXT5gmeoSltDmwRiY870NA&hl=en&sa=X&ved=2ahUKEwjIpLqX_dTgAhURWX0KHfUBB8Q4FBDoATAHegQIBBAB#v=onepage&q=malcolm%20rewa&f=false),  Arthur Taylor has the belief that Rewa had police protection: https://thedailyblog.co.nz/2016/08/15/exclusive-guest-blog-arthur-taylor-why-i-believe-malcolm-rewa-is-a-police-informant/ If that is true, and I am also aware that Rewa may well have been an informant, then Pora was not only sacrificial to solve a case of high public interest but that some police at least knew from the outset police had the wrong man. It has always been clear that the strongest evidence of Pora’s innocence was in his inability to take police to the Burdett house or even give a description of her. Millions of dollars were wasted on a story that had no foundation and allowed Rewa to continue his spree of crimes.

Meanwhile in Lundy there is good reason to believe the true offender(s) will be found having left both DNA and hair at the scene, along with fingerprints. While in Watson there are sound reasons to believe police could still find the perpetrators, some of whom have potentially been involved in similar crimes. To my mind the missing Swedish couple David Tamihere was convicted of killing is potentially solvable with a fresh look at the case and a deathbed confession which is now on record. Regardless, even the NZ Court of Appeal will struggle to say that David had a fair trial when at least one of the 3 main witnesses perjured himself after which that Court relied upon the evidence of the perjurer, Conchie Harris, to uphold the convictions.

Few NZers will believe that Arthur Thomas was guilty, and few would not accept that Arthur is owed an apology, such as that afforded Pora when police had no choice but to admit their wrong doing in that case. On the subject of ‘Arthurs’, with Arthur Taylor now released and rehabilitating himself on a good diet and exercise as he comes to terms with 40 years of imprisonment that had its beginnings in wagging school before being sent to a boy’s ‘home’ where he became trapped in what would eventually be a criminal lifestyle, may yet take a further interest in some of these cases and turn his attention not only to paid informers but their enablers.

Various Governments have pussy footed with police and Crown malfeasance for too long. We’ve had planted bullet shells, glass lens, hairs, paid informants and always the same excuses with only one constant – that nothing has changed. This year it was revealed again that the main informant against the late Rex Haig confessed to many people, yet police refuse to release the details. That means the potentially guilty man is still being protected by police and has ‘immunity.’ In fact, immunity should and can be reviewed as the process is a stay of prosecution as happened with Rewa after his 2nd acquittal. An acquittal now shown as having been highly unlikely to have happened if the innocent Pora had been released from prison and not left to rot to hide the darkness police employed to have him falsely convicted.

There was much argument about the sanctity of a ‘stay of proceedings’ and its usefulness in cases of immunity where the guilty person might otherwise go free. However, for the 1st time in NZ history to my knowledge, the power to ‘un-stay’ a stay was realised to be necessary because of, at least in part, police and Crown malfeasance. Without the stay being lifted the NZ public would never have seen a true and fair trial of Malcom Rewa. The Rewa case has broken the back of the institutionalised protection of the guilty, as have the prosecutions of Arthur Taylor, Mike Kalaugher, and Jenny Kalaugher of Conchie Harris who was ‘let go’ from a life sentence for 2 killings which he said were ‘like eating an ice cream’ in less than 10 years for lying his guts out for grateful police. Finally Justice peeks through the dark world that has becoming policing in all the cases mentioned here and many, many others. Time for a clean out, and public scrutiny of the enablers.

Saturday, December 1, 2018

Lundy and the sea of science.

Mark Lundy is soon to turn 60, just before then his papers for Leave to Appeal to the Supreme Court will be filed in what continues to be one of NZ's most controversial cases. One that will not go away. In the last 2 years the questions of guilt and innocent have returned to 2 shirt spots which are claimed to have contained Mark's wife's central nervous tissue 'associated' with her DNA. In other words a slam dunk of guilt according to our Court of Appeal.

Recently when doing a little work on another case of interest, that of Scott Watson, I spoke to a critic of Scott's. The critic was essentially a legal professional of some standing but not a lawyer. That person told me that Scott was guilty of another crime 'but the police didn't have the evidence.' That is one of the most astounding statements I've heard a person ever make about another, on that basis everyone in NZ is guilty of some thing or other, but the police don't have the evidence. It reminds of the 2 spots allegedly 'found' on ML's shirt. For 18 years they have been spoken about in tandem, yet 1 of the spots has no relevance because it has not given any conclusive test results. In fact, logically there are no scientific connections that link the spots except that police believe they are associated 'but don't have the proof.' The Courts have followed suit and this is how prosecutions can work, something is made from nothing, a link is inferred despite not being able to be proved and the Court does not object.

Of course if there is no precise proof then the 2nd spot is of relevance to the case against ML, it must rely on an unproven 'association' to DNA. Either, for that matter is the 1st - the one meant to contain Christine's brain matter. We need to look at that spot and the quandary the Courts has got itself into over that evidence. I used the word 'associated' DNA above. In fact ML has his wife's DNA on his shirt like possibly every other married man in NZ has his wife DNA somewhere on his clothes and vice versa. However the suspect material said to be CNS (central nervous system) had no identifiable DNA at all. The Crown were unable to prove the DNA was even human and in fact in tests it showed faint traces of being animal.

To reflect on that CL's (Christine Lundy's) DNA on the shirt in 2 particular areas - but the whole shirt not tested for DNA. The alleged CNS purportedly arriving on the shirt at the same time from an open wound - does not have her DNA inside. In fact it is missing millions of neurons the building blocks of CNS, and has traces of animal DNA. No one has, or can explain that in a way that points to ML's guilt. What should have been on the shirt was CL's DNA, and inside the spot should have been her DNA as well, both surrounded both with wound debris - a lot of it, because there was the blood shadow on the wall where of Christine's attacker. No scientist has ever been able to show that shadow fitted ML, or been able to explain how it can be said CL's DNA and the spot arrived at the same time - because that is what is needed to make the evidence relevant, that along with CL's DNA actually in the spot, not just surrounding it and with millions of neurons missing.

There is a lot of scientific papers about the association myths of DNA. One of the first points is that no one can tell when DNA arrives somewhere, so with a spouse it could be any time, even before a shirt for example was washed. Also the quantity has no significance, in 2 traces of DNA in the same area one cannot say that the larger amount is connected to the crime and the lesser is not. This is the corner our COA have painted themselves into. But there is also another factor.

In 2014 a Dr Miller, a man who has vowed never to return to New Zealand, and one must think because of concerns over 'brain samples' he acquired illegally, did a 'parallel' test to show his novel testing techniques could be relied upon. He took a sample brain that may have already been preserved and placed in conditions where he claimed it had 'air dried.' He then stained it using an IHC technique which tests known samples for disease or abnormalities, but he used to 'show' that it was brain despite that the stain was not brain specific (meaning would only react to brain.) Following which other IHC practitioners (neuropathologists) looked at the sample through a microscope. None of these persons were forensically trained, they all said it was CNS tissue by comparative testing using a subjective technique which has essentially fallen off the 'forensic scientist's check sheets now. The same process used in the Watson case where an 'expert' looked through a microscope and said that something compared with something else in respect of 2 different hairs to 'confirm' their probable source. That process later showed to have a 93% failure rate in FBI hair comparison testing methods conducted in cases where hair was used as conclusive evidence.

In the Lindy Chamberlain case, 'experts' said they saw blood in samples taken from under the dashboard of the Chamberlain family car after a staining process similar to IHC (and also novel) was used. Later the 'blood' was found to be underseal or noise suppressant material. In Chamberlain, like Lundy and Watson - no one could tell when the alleged 'blood' had arrived behind the dash. Just as in Watson no one knows when the alleged hairs of Olivia arrived in the lab (or more to the point if they are Olivia's hairs at all, or as in Lundy the alleged brain (less its millions of neurons and attended by animal DNA) arrived on the shirt compared to the known DNA which may have been from a sneeze or transferred from other clothing. Then why so little alleged CNS (no bone, sinew, skin or flesh) but an abundance of DNA during the course of a horrific killing?

So these are all things common in these controversial cases where someone is guilty 'but the police don't have the proof.' I challenge any reader to explain the Lundy shirt 'CNS' with no neurons. And I do that with confidence that Miller and police pulled a fast one in their 'parallel' test with their stolen brain. Why? Because Miller did not report results throughout his parallel test which indicated the donor's DNA was not present or when it began to 'disappear.' He also did not report when the neurons where present in the DNA or when they began to 'disappear.' Just as NZ 'scientist' did not report the presence or lack of peroxide in the 2-hairs in the Watson case, and still has not. And just as 'scientists' looked through microscopes and said underseal was blood in the Chamberlain case.

Forensic science can be daunting in the hands of some people, and can be misused. It has been misused in all 3 of these cases, CNS without neurons or DNA of the donor, mystery hairs confirmed as belonging to somebody by the eye of an expert using a now discredited method, panelbeaters underseal becoming blood.

In the sea of science that is the Lundy case, why hasn't one qualified person explained why CL's DNA is not contained in the spot claimed to be her brain (or CNS) material. When police chose to support Miller's tests with newer, fresher tests observed by others, why has nobody reported whether the brain used to emulate Miller's original test had neurons after it had been air dried and examined, or whether or not the Donor's DNA was still traceable? At some point along the way the alleged CNS on ML's shirt lost its neurons and identifiable DNA (if it ever had any of each) and picked up animal DNA. Surely the same must have happened to the donor (sample) brain or is this a case like the one the person explained to me about the Watson case 'they didn't have the evidence'? As a final point DNA denatured in some way by time or other processes can be reinstated, but that didn't happen in Lundy either.

Neurons in the brain and central nervous system:

https://www.nichd.nih.gov/health/topics/neuro/conditioninfo/parts

"The basic unit of the nervous system is a nerve cell, or neuron. The human brain contains about 100 billion neurons. A neuron has a cell body, which includes the cell nucleus, and special extensions called axons (pronounced AK-sonz) and dendrites (pronounced DEN-drahytz). Bundles of axons, called nerves, are found throughout the body. Axons and dendrites allow neurons to communicate, even across long distances.
Different types of neurons control or perform different activities. For instance, motor neurons transmit messages from the brain to the muscles to generate movement. Sensory neurons detect light, sound, odor, taste, pressure, and heat and send messages about those things to the brain. Other parts of the nervous system control involuntary processes. These include keeping a regular heartbeat, releasing hormones like adrenaline, opening the pupil in response to light, and regulating the digestive system."