Saturday, July 18, 2020

Scott Watson, freedom finally in sight?

In what may be the last exercise of the Royal Prerogative of Mercy (RPOM) Scott Watson has had his first win after 22 years battling the Judicial for freedom. A trial, appeal to the Court of Appeal, another to the Privy Council before his first RPOM application all failed. Largely because of the infamous "2 hair" evidence. That evidence has dominated in this case, but it now lays wounded.
The great and famous science accomplishment is in tatters.
What we don't know yet is if the Crown will try to defend it, if they decide not to it would be most unusual but then again the evidence, the way it was found, and where it came from has always been unusual. The claim was always that it was found on Scott's boat but that was a lie. It was found on a blanket taken from Scott's boat after it had been searched and would take a further 3 months to turn up.
But from I understand while it was said to have come from the boat on the blanket there is new evidence to say otherwise. Evidence of malfeasance leading to an understanding of the fantastically unbelievable Crown case weakly, as it now stands, held together by 2 blond hairs and little else.
The case had the customary prison stoolies, witnesses who said one thing and later another, high drama and police spread rumour through police 'friends' in the media.
I expect the case to fall hard and heavy, its once apparent strength now a deadly and fatal weakness. I recall when the successful RPOM was filed ex-police claimed that the public didn't know what police knew about the case. What a load of a trollop, trials in New Zealand are public events where the evidence is heard, To suggest that there was other secret evidence that the public didn't know about was true - that however was evidence the police had hidden and which is now known about. One ex-police officer said he had "no time" for some of Scott's supporters - as though the faults were with Watson supporters and not the police. Well, that has changed.

Sunday, April 5, 2020

Light in the time of The Covid

So Covid comes.
Not a teller's version but real, lethal at the door.
There was something in the bookshelves that spoke of Covid but I could not remember what.
In was in there downstairs somewhere amongst old friends and strangers alike.
It escapes even though perhaps just metres away.
When Covid walked something called out from another place, persistent.
I needed to think of the name, then I could go nearer the bookshelf and see as though I was not a stranger from the dark, rudely peering at someone else's life.
I did not move in that direction for days.
I put the thought in a box as an envelope to store, when the night spoke once again, bringing me awake.
What was the name?
Don't go near the book it is too far away, another century, private.
Think instead of mother alive before the first great war, and father born during the greatest war that ever began.
Of where they went together and could often not meet.
The Spanish Flu meant nothing to a child growing up over the road from the Army Camp with its empty barracks, memories of marching and soldiering arms.
Think of their composure under death, separation by war.
More war, then father coming home with heavy hands and fractured heart we could not see,
his uncle long gone in European battlefields, couzins the desert took fighting for the pride of Ngati Pukenga. Warriors each.
Still, he did not speak when drawing his pictures to make a perfect world, a piano, and furniture maker he was, hands soft and caring upon the wood and charcoal alike.
There was no life in the empty barracks just away from our house behind where the mountain stood in its own watch, scoured for scoria, rock, long after its eruption of boulders and lava.
Then suddenly, there it was.
Love in the Time of Cholera, in the bookshelf waiting with the saints and ghosts of writers.
Then I saw, that now it shall be Covid that dies, blistered in the light.

Monday, March 9, 2020

North and South lays it on the line over Lundy case.

The latest North and South magazine article by Mike White (March 2020) is an in-depth investigation into the Lundy case. It's called 'Anatomy of a Scandal' and states that the story will make you question our justice system.
It's around a 2-hour read. There is much startling information in it, too much to reveal here but 2 of the strongest things which struck me was the finding on a second search a bracelet in Mark's car, one which friends of Christine's said was not hers. Mark innocently told police that it was Christine's probably about as observant as most men when it comes to clothes or jewelry. It was too small for Christine as it turns out, but the disturbing factor is like in the Scott Watson case, the 'extra' searches to find the highly visible bracelet right in the middle of the front seat, are like 2 blond hairs in a sea of much shorter brown hairs which took many, many searches to find in a lab.
The second strong issue is how our courts blocked much defence evidence from experts giving uncontroversial evidence such as fuel-consumption on a vehicle similar to Lundys, only to allow the Crown to produce 2 different types of junk science, and throw 1 type out after the retrial and then say it had no impact on the Jury in the second Lundy trial. How could they know that? Mind readers?
Whether you believe Lundy may be guilty or not it is every citizen's business that he has never had a fair trial or indeed there was never a fair investigation. I'll let Mark have the last say on that from a letter quoted in the article and written just before Christmas: "'Somewhere out there is a man with a particular Y-STR DNA profile ......A guy who left fingerprints and a palm print in our house, who has a wry smile on his face this Christmas. The Supreme Court gave him a very special present.'
It's not right folks.

Saturday, February 8, 2020

Alan Hall: always innocent.

There are 2 disturbing things about the diagnosis of Alan Hall as suffering from autism which led to his sentence of life imprisonment for the stabbing death of Arthur Easton, killed at the door of his own home. A crime that it has always been clear he didn't commit. He never fitted the profile of a young tall and powerfully built Maori or Polynesian man. Alan was a small European man who was said to have learning difficulties. Something obvious to police on both counts - so what did they do? Because he apparently changed his story more than once they pressed ahead and charged him using the fact that he lied as a significant pointer toward his guilt. Here are some pointers to autism
Abnormal body posturing or facial expressions.
Abnormal tone of voice.
Avoidance of eye contact or poor eye contact.
Behavioral disturbances.
Deficits in language comprehension.
Delay in learning to speak.
Flat or monotonous speech.
Inappropriate social interaction.
From what I recall reading about Alan was that he was somewhat a loner and lived with his mother. He led a quiet life of the somewhat bewildered. The quietness could be a clue to trouble with speech and language comprehension. He may have also rocked himself or concentrated at length on a single activity. He is described in the link as not showing emotion to the Jury, something which could lead to a Jury to believe he, or someone like him, was not showing remorse. An odd statement overall as if Alan was not remorseful, it was consistent with innocence. The article describes an autistic person not showing emotions even despite feeling them - in other words appearing as if a cold fish in his own murder trial.
I have followed this case for years, always concerned by the victim's son's description of their father's attackers who they fought off at their front door. I later read that Alan's main supporter was his late mother who sold the family home to fund a fight to have his conviction overturned. Alan was paroled fairly smartly, I doubt that he admitted guilt, but the prison authorities and Parole Board must have had concerns about his guilt. But foremost the arresting police ignored that Alan was different from the attacker's description given by the 2 brothers. They were neither the same height or race. No doubt Alan didn't represent any danger to other inmates or prison staff - but still, there he was, going through depositions, a trial and an appeal without anyone batting an eyelid, especially those investigating police who took Alan's confusion over some missing items as a sign of guilt. Hello!, what about his size, his white face and the fact he came across at least a little confused.
The police and the Courts let down Alan Hall, his late mother, and the Easton family. Police wanted a conviction and they got it - but justice was never involved. A word Alan would probably be unable to spell. This leads me to the second disturbing feature of this case its characteristics shown in another infamous case.
There was another man (well, a boy at the time actually) sentenced to life imprisonment and battered by the parole board for not admitting guilt. He too was from South Auckland. His name is Teina Pora, and like Alan, it has been written about before on this blog. Later in life, he was diagnosed with Feotal Alchohol Syndrome Disorder (FASD).
Equally innocent as Alan, Teina had gone to the police station to falsely finger 2 gang members for the murder of Susan Burdett. The reason for doing that was to gain a reward. Somehow he confessed to willing police after which he asked if his baby daughter would still get the reward. He had no compunction in sending 2 innocent men away for life and may not have comprehended that he too would be sentenced to life for a crime he had not committed. Within the prison, he said to have been a nark, a dangerous thing to which his alertness to must have been diminished. Here are some life long symptoms of FASD
Abnormal facial features, such as smooth ridge between the nose and upper lip.
Small head size.
Shorter than average height.
Low body weight.
Poor coordination.
Difficult with attention.
Poor memory.
Teina is certainly a short man but had been a promising league player. However, his confusion as to the trouble he was in with police certainly is evident even in the edited tapes of the long interviews he was put through whilst being refused a lawyer. At the time he was just a teenager, later it was said that his intellectual age at that point was around that of an 8-year-old. Upon his release, he forgave family members who had given false evidence against him for a reward. His background had been the pits, his alcoholic mother dying young.
But here again, he was a victim of the system. Another murder case to be solved, no concern for arresting police that Teina in his 'confession' could not show police where the murder happened, nor describe the victim.
The police in charge of these 2 cases must have also suffered from FASD or Autism if unable to tell they were arresting the wrong young man in Alan's case, or wrong child in Teina's case. They have never been censored let alone prosecuted. The leader of their police district at the time is now New Zealand's Commissioner of police who spoke highly at the funeral of a police officer who planted evidence in another South Auckland case which Arthur Thomas was wrongly convicted of on - well, planted evidence.
Tim McKinnell, an ex-police detective who helped exonerate Teina Pora is the man advancing Alan's case. I am sure that will be successful. One must wonder why it is someone like he, with insight, logic, and honesty is not New Zealand's Commissioner of Police, or why men such as he does not appear to feature much in the NZ Police hierarchy.

Thursday, January 9, 2020


Guest post from Phillip (assumed name) on why Mark Lundy's 2nd trial was no fairer than the 1st.


                                                         Lundy Cops Cheat

It is incredible that the police would even consider that a scenario involving a 7:00pm time of deaths to be a realistic possibility, particularly when there was no possible way that Lundy could have made a return trip between Petone and Palmerston Nth and carry out the murders between 5:38pm and 8:13pm, and when there was clear evidence that Christine was still alive at 10:52pm. The police will have assumed on day one of their investigation that the killings probably took place at 11:45pm because the next door neighbour, who was first interviewed just 4 hours after the bodies were discovered, heard a commotion outside at that time. He was interviewed again three days later, and for a third time on 24th September.

Mark would have been routinely listed as a suspect. A few days would have passed before the telephone listings arrived from Telecom and they must have been hugely disappointed to find that Mark had a clear alibi for 11:45pm because the listings showed calls were made from Petone on Mark's cellphone at 11:26pm and 11:46pm. Little wonder then that the prosecution opted not to mention the time of 11:45pm to the jury at either of the two trials. Instead, they claimed that the murders took place at 7:00pm during the first trial and "After 2:00am" at the retrial. The change of time shows that the police used false evidence at the first trial because there was clear evidence available which cleared Mark from being culpable, but the use of this false evidence – the claimed manipulation of the computer clock and the high-speed trip to the Lundy home – both of which never happened, meant that the first jury was misled.

The time available for the supposed high-speed trip from Petone and back was not 3 hours but 2 hrs 48 mins according to Telecom listings of phone calls he made from Petone. Police must have done the arithmetic and therefore knew the trip both ways was clearly impossible but proceeded anyway with a 7:00pm time of deaths. Dr. Pang's original estimate of time of death was just one hour from the 6:00pm meal because digestion had not begun, which suited the police case, but he had to change it for the retrial to a new estimate of "up to fourteen hours" to cover the new time of death of 3:00am next day. Why did the police suppress from the jury the time at which the next-door neighbour heard a commotion outside which he described as something falling over and a smashing sound at 11:45pm?

Friday, January 3, 2020

NZ's Worst Convictions 2020

What lingers in 2020 on the list on NZ's worst convictions and what may happen to them this year.

A conclusion or a step toward a conclusion.
Heading this list are 3 with oldest first:

David Tamihere convicted of the 1990 murders of 2 Swedish tourists largely on the evidence of 3 secret prison witnesses. After his convictions, the body of one of the tourists Urban Hoglin was found buried inland wearing his watch which police had claimed to have found in the home of Tamihere after the secret witnesses had claimed Tamihere told them he'd dumped the bodies at sea. Despite that Court of Appeal (COA) denied Tamihere's appeal. 2 years ago 1 of the 3 witnesses was convicted on 8 charges of perjury relating to the case by private prosecution, the 2 other witnesses are being searched for by the private prosecutors remarkably without police being willing to help.
The case against David is a wreck now and he has an application filed under the Royal Prerogative of Mercy (RPOM) which must surely result in either a pardon or referral to the COA to get it right this time.

Peter Ellis. The Supreme Court is pondering the 1993 case of Peter Ellis and the situation whereas the right of appeal ceasing with death but Justices Joe Williams and Susan Glazebrook threw a curveball into the arguments from both sides when they suggested that New Zealand didn't need to follow decisions set in any other country, and could establish an entirely new rule based on Tikanga Maori, being the Maori way of doing things and preserving culture. Specifically that the mana of dead is to be protected. Hence it could settle the issue of what is broadly seen as Peter being falsely convicted in a manner of interviewers inviting children to agree with an interviewer's suggestions or to make up and say things which appear incomprehensible with no supporting facts.
For the Court to claim credit for this seems mischievous because the Chief Mokomoko was pardoned in 1993 for being allegedly involved in the murder of the missionary Karl Volkner in the 1800s by the Justice Minister of the time Doug Graham possibly using the Royal Prerogative of Mercy, which is still law, whatever the case Mokomoko was pardoned lifting the burden from his family and seeing his mana restored.
A second chief Kereopa said to be involved in Volkner's death was pardoned in 2014 as part of the Ngati Rangiwewehi Treaty of Waitangi settlement.
Clearly, Peter should be posthumously pardoned to restore his mana, that of his family and finally relieve the NZ Justice system of a long term contempt by many New Zealanders over Peter's prosecution.

Scott Watson Another case made a mess of my the COA shortly enters its 3rd year of review by way of RPOM. A mystery ketch said not to have existed is tracked and confirmed by both witnesses and nautical experts. A 'mystery man' has been explained and it is not Scott Watson. A claim by the Crown that Scott made a 2nd trip ashore, after the Crown failed to prove Scott had ever met the couple let alone have them come aboard his yacht the Blade is debunked. That is despite the COA inventing evidence of the '2nd trip[ that never happened when dismissing the Watson appeal 2 decades ago. In the meantime, the 'magic and telling' critical evidence of 2 hairs said by 'comparison analysis' to belong to one of the victims, Olivia Hope, has been shown to be a junk science method - also revealing that the 2 hairs could not be those of Olivia.
Like the Tamihere case, where it is said perjury goes to the heart of a conviction, junk science does so equally devastatingly,  it can be expected Scott's case will be resolved in some fashion by the RPOM either by a pardon or a referral to the COA.
Scott's case remains of high public interest since a number of books and documentaries including the most recent 'Doubt,' the deepest look into the case so far where the NZ public got to hear from witnesses who saw the mystery ketch but were never called by police, being ignored instead and one whose account was changed without her knowledge.

On the horizon cases:

Rex Haig. Any changes by the Supreme Court by virtue of posthumously pardon for Peter Ellis or even arguments against in a negative decision may open the door for Rex's family and possibly supporter Mike Kalaugher. It was Kalaugher, who along with Arthur Taylor, successfully prosecuted witness C in the Tamihere case and letting the public know his name, Robert Conchie Harris - now recognised as a life-long police informer who gained early parole for lying about an alleged 'confession' by Tamihere.
There is a long term issue remaining with the Haig case and that is the office of the Solicitor General refusing to confirm that it knew that the primary witness against Rex had confessed to the murder he later accused Rex of committing.

Gail Maney prosecuted for the disappearance of a fisherman, Deane Fuller-Sandys in a case where the body was never found but items, probably belonging to the man was on the shoreline or washed ashore. She is now having her case looked at by Auckland Lawyer and QC Julie Anne Kincaide with Tim McKinnell the ex-police detective that opened up the Pora case. Maney's convictions for Fuller-Sandy's death and that of Leah Stephens have been described as one of the worst yet miscarriages of Justice, and I think the public is going to be in for a shocking surprise. Men high on the suspect list for the murder of Leah Stephens were granted immunity for evidence against Gail and a man still in prison for the murders of both. Stephen Stone. Police had offered Gail immunity but she refused to give false evidence for a crime she didn't know about and 1 that may not have happened. Gail's case besides having no physical proof that can withstand scrutiny relies on the premise that she somehow had the capacity to 'order the death' of Fuller-Sandys by a man she hadn't met at the time. The case matches Watson for police malfeasance and many of the cases of the others here for the COA's rubber stamp of dodgy as convictions.

Mark Lundy. The case was thrown out last month by the highest Court in one of the most poorly understood uses of 'junk science' imaginable. The court flattered itself with the misunderstanding of a forensic junk science immunohistochemistry (IHC) crowning itself as the only Court in the world thick enough to allow IHC to be used. Not only that, but the Court explained what IHC did as a function in clinical biological testing on the known matter before saying that IHC, therefore, was able to do the same in a forensic science setting where the biological matter was unknown, aged and rotten. While ignoring hard fingernail DNA evidence taken from the nails of the 2 victims and analysed as coming from 2 unknown males. Victim fingernail DNA is resulting in scores of wrongful conviction cases in the United States to be overturned. Ironically, it was in the States where an attempt was made to use IHC evidence, but it was rejected at trial and upheld in the State appeal court. The case with a very little public objection to the double murder convictions is thought to be over for Mark Lundy. Nothing could be further from the truth.


Thursday, December 26, 2019

All roads for Mark Lundy head to Texas and back to London's Privy Council

All roads for Mark Lundy head to Texas and back to London's Privy Council

New Zealand Courts can't deal with the Lundy case just as they could not deal with the Thomas, Watson, Tamihere, Pora, Haig and Maney cases. Small town complex, need to support the police? You decide.

A popular view of the Law in Texas may have been for years symbolised as 'hang em high.' But that view internationally is changing. The arch-villain in the Lundy case is a Texas IHC clinician Dr Rodney Miller who cooked up all the controversy in the Lundy case. The Mark Lundy case is identified by many as relying on 'junk science.' But what is not widely appreciated is that it wasn't only questionable science but the entire process that led to its use, there is nothing about its use that does not ring an alarm. Both the NZ Court of Appeal (COA) and the Supreme Court (SC) refused to hear arguments against its validity relying on new evidence since the Lundy retrial, after which they used the IHC to uphold the conviction. That should be cause for concern for every New Zealander whatever their opinion on the Lundy case might be. Lundy was not given fair appeals and whilst every New Zealander has the right to a fair trial, Lundy has never had one free of controversial science, and never has he been successful at any appeal here. The right to a fair trial is implicitly also the right to a fair appeal,

But let's consider the Texas connection to the Lundy case. First of all, when what was supposed to be fragile central nervous system tissue (CNS) found on Lundy's shirt, it wasn't recognized as being such but for some reason the shirt instead of being placed in the custody of the exhibits officer with every other exhibit, it was put into the safe of the officer in charge Grantham - who would later say he did that because he didn't want Lundy to find out about it. How Lundy was going to find out about the location of his own shirt, which he had freely admitted wearing, was never explained. That would result in the shirt traveling to a Texas with Gratham to Miller's lab. Despite worldwide literature saying their tests should never have taken place, they ‘proved’ the shirt had CNS (or perhaps something like it)in 2 microscopic spots. They didn’t do that with orthodox forensic science or anything anywhere near it.

The term 'forensic safety chain' is where evidence is kept safe from contamination, manipulation or deterioration.  As an example something like CNS, or suspected CNS would immediately be treated with formaldehyde or some similar product to prevent its deterioration for further deterioration because CNS immediately starts to degrade when its blood supply has stopped and contact with air is made. That stopping of deterioration is termed as ‘fixing’ or setting in place the condition of the specimen in order that it may be tested in as near its original ‘live’ condition as possible. In practical terms, the window to do that 'fixing' would be minutes rather than hours. The forensic safety chain was amok from the beginning and would never get on track - yet our Courts have continued to ignore that to the point of becoming impatient about it even after information came from Texas after the retrial that a stolen sample brain had been converted from its intended use to support retesting in the Lundy case. But that wasn't the first time Texas was raised in this case and will not be the last.

Here we go back to the beginning, well in fact 59 days after the Lundy shirt had been kept in Grantham's safe so that Lundy wouldn't find out about it. What you would think was the primary evidence had been overlooked. A cynic would say, however, that something that had happened in both the controversial cases of Arthur Allan Thomas and that of Scott Watson was happening again. Progress with the case wasn't being made and police needed evidence so the shirt got searched - or at least looked at by staff from the Environmental Science (and) Research (ESR). None could determine what 2 small stains were, some spoke of necrotic deterioration, some recorded notes to that effect (and later changed them), one, Dr. Teoh's opinion, was hidden - he said no man should be convicted on such deteriorated material. So right from the outset of the investigation if things had been bad, they had got worse and that would continue until long after the retrial.

To their credit, the ESR people said they could not test the shirt spots – that they were too far gone into deterioration. But 1 of those present, Temple Camp (who would later change his prognosis and be dropped as a witness after the 1st trial probably due to the vulnerability of his credibility) suggested a Dr. Miller, the Texas Pathologist mentioned earlier, with no forensic science experience. Grantham was desperate enough to use a trained monkey by then as there was other evidence in the case pointing away from Mark Lundy. That body of evidence is important and it is an absolute blight on the SC that they dismissed it with the simple comment 'not cogent'. We shall return to that evidence later and yes, its Texas connection to (fingernail) DNA exonerations a worldwide trend.

For 'cogency' as to the condition of the shirt material, we will take but 2 opinions (from many), 1 from a prosecution witness and a 2nd from a defence witness offered to the Privy Council as to the fragility of brain matter or CNS outside the body (noting again that when the NZ clinicians were looking at the shirt stain the alleged CNS had been out of the body for 59 days and not 'fixed' in formaldehyde:

Dr. Du Plessis for the Prosecution said at trial that brain tissue was one of the organs that start rotting most quickly or rapidly.

The evidence of Professor Sheard for the Defence before the Privy Council was that the subject specimens were poorly fixed and necrotic. Professor Sheard referred to research showing that brain proteins are subject to progressive degradation after they are removed from the body.

So the experts were in agreement to some extent. Here the case takes a twist. How could rapidly deteriorating CNS not be rotten after so long? The Crown experts, despite Du Plessis agreeing about degradation times. said that the shirt spots had been 'air-dried.' Most people would know that the month of August in New Zealand is deep winter - as cold and wet as it gets. Far from a suitable place to air-dry something outside a lab. So how did this material air-dry? No one can say short of it being speedily wiped on the shirt somehow or as it flew through the air. No effort was made to prove in the laboratory how it could have possibly air-dried. So the Jury was asked to buy into sheer nonsense that the Crown made no known attempt to prove the probability of.

Rather than troubling ourselves with that let's look at some literature and evidence given on the claim as to accidental smearing to enable air drying:

The Journal Endoscopic Ultrasound in 2014 “Preparation of Smeared Specimen” describes smearing as a well- crafted technique and one that should be performed by personnel who have the acquired skill to create a single layer of cells within a minimal to no distortion” The article notes that the significance of correct smearing cannot be over emphasised as smearing error leads to tissue lost, artefacts and interpretation difficulty.

So it is clear, the Crown alleges that Lundy was able to smear biological material onto a non-flat surface made of shirt fibre. If that could be believed as the Crown asked, then we are to assume that Lundy also had the necessary equipment to do so and took particular care in the preservation of material in a moist environment nowhere near a heat controlled lab.

So what really happens to allegedly air-dry samples for testing? The Journal of Cervical Cyteology 2000 says in relation to cell fixation that it creates critical problems.

“Immediate fixation of the cellular material, within seconds of specimen collection, is necessary to prevent air drying. Air drying obscures cellular detail and compromises specimen evaluation. Immersing the slide or spraying with fixative can prevent the problem.”

I don’t think that even the Supreme Court, who remember appear to have never even bothered to read the 65-page warning as to the use of IHC in a forensic setting, would believe that Lundy could have so easily achieved accidental air-drying as described above. But that claim had been before the Court and was in the trial transcript. Perhaps they just wished to avoid such information and keep Lundy’s case off the abysmal New Zealand record of wrongful convictions in major cases.

The Supreme Court needed to understand the perils of IHC and air-dried material before they used the Proviso supported by the IHC. Before upholding Lundy’s convictions and not ordering a retrial they may have more carefully read what the Privy Council considered on this from a Dr Whitwell who told that Court that the state of “preservation on the samples was extremely poor and that a diagnosis of its exact nature was impossible.”

Next, we go to Dako, the FDA approved the largest manufacture of the ‘stains’ or anti-bodies in the world to determine  the suitability of their product to be used on allegedly ‘air-dried’ material:

“……because the first steps of tissue handling arguably dictate the quality of the results, more than do any steps that follows.. necrotic degradation begins immediately once the tissue is separated from the source of nutrients, so the time to processing is often quite critical. For most IHC procedures, it is imperative that tissue not dry out."

We can see from this not only the improbability of the shirt stain air drying by itself or Mark Lundy somehow facilitating the process. But the literature is clear on the total undesirability and unsuitability of IHC testing on air-dried materials. So the implausible explanation forwarded by the Crown for dried out samples, in fact, did not solve a problem but created another – Dako says don’t use our product on air-dried biological matter.

So at this point, we are 4 steps along the way:
Critical evidence outside the forensic safety chain.
NZ specialists saying the material can’t be tested.
An explanation that degraded material was accidentally air-dried.
The manufacturer Dako saying don’t stain air-dried biological material with our product.

The next 2 steps encompass the correct stain being used on the alleged CNS. That is a stain specifically produced and approved for use with a specific tissue, brain, kidney or liver for example. Then the quantity of the dosage.

Before considering those steps here is a list as to why Miller should not have been doing forensic testing at all apart from his willingness to claim that anti-body stains were brain-specific when they were not, but also his increase of recommended dosages to achieve the readings he wanted. Simply if Miller was using a red dye in a basin full of water where it said 2 capfuls of dye was required to prove that the water was safe for some medical procedure where he had a required result in mind, he would simply keep adding more capfuls of dye until the colour changed. :

No forensic training or accreditation.
His lab did not have forensic accreditation and was not of a forensic standard.
He would not have been permitted to give his disputed evidence in Texas.
His record-keeping was poor.
His ‘assistant’ was the officer in charge of the case Grantham, just to dispel any thoughts of scientific impartiality which Miller no doubt had never heard of.
He wrote emails indicating his bias and ignored court directions not to discuss his evidence with prosecutors during breaks in his evidence. He did this by asking the prosecutors to ask him a particular question to lessen the impact of some evidence he gave.
He refused to co-operate with information requests.
Despite writing that he knew that the donor ‘bucket brain’ was donated for specific use as for scientific purposes he had no hesitation to do otherwise, therefore, violating statutory regulation.

Dr Miller makes no reference to occasions where he would change the dilutions rates from  those specified by the manufacturer. The GLAP (BioGENX){a stain} recommends a dilution rate of 1:100-200. Dr Miller used 1:6400. The manufacturer of NEFN recommends a dilution ration of 1:50-100. Dr Miller used 1:800. That in itself raises a concern that Dr Miller felt free to conduct a process approved solely by himself in order to enhance the prospects of achieving what he considered to be the desired results.

The 4 brain ‘specific’ stains used by Miller (All abridged for simplicity)

            Synaptophysin (Manufacturer Dako)

Dayle wrote: Monoclonal antibodies (SY 38) to synaptophysin have now localised it in  adrenal medullary cells, the paraganglia and the neuroendocrine cells of the gut, pancreas and, lung and pituitary.

Synaptophysin can be a valuable adjunct as a generic marker not only for neuroendocrine tumours.

The Dako datasheet confirms SYN stains for neuroendocrine cells (which have neurons or glial astrocytic cells from the CNS) and lists eight types of cell it will react with including gastrointestinal mucosa. Neither the brain nor CNS cells are mentioned. The data sheets specifically records ‘synaptophysin is not fully understood in terms of what proteins will exactly do.

S100 (manufacturer Lab Vision)

The manufacturer indicates that S-100 will stain positive for skin, melanomas and the paratext of lymph nodes for a variety of cells including paracortex of lymph nodes. SPC lacks specificity for CNS.

GFAP The journal of Neuroscience: Astrocytes: Biology and Pathology at 2209 states;

‘There is ample evidence that GFAP is not an exclusive marker of astrocytes…GFAP is expressed widely in many tissues by a variety of cell types.’

Neurofilament (NEFN manufacturer Dako)

According to the Human Protein Atlas website this protein is detected at low or medium expression levels in colon and soft tissue.

The manufacturers describe NEFN as labelling neuronal processes and peripheral nerves. It is not specific for CNS.

In short none of the brain, ‘specific’ markers were specific to the brain despite that is what the Jury was told in a very convincing way by the Crown. The Courts have allowed those fallacies to stand despite they would have been strongly considered by 2  Juries although completely false. The mention of glial cells and skin is particularly important. Animals like humans have a 2nd brain: the stomach brain which has glial cells as does the brain.     

Several observers of the tissue claim to have seen glial (also found in the brain as well as the stomach) and skin cells. That fits with animal DNA found in the DNA shirt wash, but again nothing supports the claims that Miller was using brain-specific markers. Our Courts have never dealt with that despite that it was before both the COA and SC but set aside.  One might wonder why that was so unfairly done. The only thing it achieved was the lie that IHC could be relied upon to uphold the convictions once the other junk science mRNA had been ditched – having done its job for the Crown and ensured Lundy was re-convicted.

Before closing on this very long post I will return to Texas wherein 2013, that state, passed a ‘Junk Science Law’. That was with considerable help from the Texas Innocence Project. From the Introduction.

“In the past decade or so, forensic science techniques have come under scrutiny, due to lack of nationwide laboratory standards, scarce research and methodology, incompetent and even unethical examiners, and overburdened laboratories. As a result, individuals and organisations, such as defence counsel, scientists, and the Innocence Project, have been advocating for reform not only within the discipline of forensic science but also within the justice system itself. Recognising the need for criminal justice reform, and continuing his mission to ‘bring about needed changes to the adult and juvenile criminal justice systems, in Feb 2013, Texas Senator, John Whitmore (Dem) authored Texas State Bill 344, allowing courts to grant convicted individuals habeas corpus relief based on faulty or discredited scientific evidence.’”

It goes on to speak about the ongoing tension between science and the courts and how the new law may provide insight into that conflict and the public’s understanding. Equally importantly it speaks about future-proofing the justice system. I take that meaning to include such persons as Miller, out to prove what those paying him wanted, ready to cut corners, break the law and lie to a Jury.

The Lundy case carries a vast overburden of deception and cutting of corners which our Courts appear to have turned a blind eye toward. NZ surely needs a ‘Junk Science Law’ or a Judiciary able to sort out the chaff from the wheat when police go shopping for evidence and find someone like Miller and ignore every corner he cuts – even appear to assist him in that.

But the Lundy case has a narrative of innocence that has been pushed off the page by junk science and lack of investigation by police. There is strong and compelling evidence of other offenders that the Supreme Court flicked away with the comment of ‘not cogent.’

For cogency in the Lundy case, we will look at the case of Lydell Grant who was last week exonerated for a murder he did not commit. DNA found under the nails of the victim was said by the state prosecutor’s science examiners to not exclude Mr. Grant. The Texas Innocence Project eventually got involved in the case, one of their first jobs was to retest the DNA. It found that not only was Mr. Grant excluded but the likely killer was identified. The District Attorney took the case over and within a short period arrested a man who confessed. Both Amber and Christine Lundy had the DNA of 2 unknown males under their nails, the police have never found those men and there is no record that the national database has ever been searched for a DNA match. The house was seen open late at night, unknown fingerprints were found – real evidence, not something dreamed up by the good Dr. Miller.