Monday, February 9, 2015

When did the Crown decide they were wrong about the Lundy case?

Mark Lundy's retrial began today with the surprising news that the Crown essentially admitted they were wrong in details of the prosecution of the first trial which they bitterly defended until 2013. Clearly in one of the pre-trial procedures The Crown informed The Court that they wished to drop the original claim of the time of death of Lundy's wife and daughter and shift it further hours into the following morning. On the face of that, it is a risky move. The Crown are clearly saying that Mark Lundy is guilty but that the circumstances of the murders are different to those to which they persisted were correct throughout the original trial, appeal hearings right up until the 2013 Privy Council hearing where, among other things, The PC accepted a defence submission that it could have been 'bad science' that linked Lundy to the crimes and that a new Jury ought to consider those details.

While there appear to be risks for the Crown to change course after some 13 years they clearly consider that dropping the much doubted return trip in a limited time from Wellington to his home, to commit the killings, and then back to Wellington is not significant because they now know something different all these years later. Add to that, one of their witnesses who pin pointed the time of death to fit within the parameters of the drive either has a new time of death or has been dismissed from the case, along with the witness who claimed to have seen Lundy running from the house dressed as a woman in proximity to the former calculated time of death. Some critical observers will react with scepticism that the witness who backed up the incorrect time of death with a physical sighting of Lundy running away, clear enough for The Crown's satisfaction, had not manufactured her evidence for some reason to fit the what now must be seen as a manufactured original time of death. Furthermore, it must be noted that a NZ pathologist had said that DNA found on Lundy's shirt some time after the murders was degraded to the extent it should not be used to convict Lundy as the risk was too great. That advice was hidden from Lundy's defence team in the first trial by The Crown who went onto use a Texas expert whose methods scientists later said were impossibly flawed. Moreover, the defence say, that anyway - dna being found on a spouse's clothing is consistent with day to day living together.

The Crown in their opening address  persisted that the DNA was of a sufficient standard to be identified as that of Lundy's wife Christine. Not only that, they now have, beside their new scenario of when the murders happened, a prison inmate to say that Lundy told him that his daughter Amber was killed because she had witnessed the slaying of her mother. They argue that Lundy and Christine were running an insolvent business, didn't have a good relationship and that was the reason for Mark Lundy killing her. The strong emphasis on the marriage purportedly being in a bad way when according to the defence that was not the case, is troubling, when considering that The Crown are having another bite at the cherry having once stuck with their fairly implausible time scenario for over a decade. While The Court gave permission for The Crown to take a new tack it nags away that the Crown were once adamant about a high speed return trip, an eye witness, an expert witness determining the time of death only to now abandon them. It must have been a closely run decision for Justice France to allow The Crown to depart one case and start another, particularly if the issue of 'bad science' remains alive.

The defence have an apparent problem with paint flakes found on the victims which were a match to tools belonging to Mark Lundy. However, there are no tools produced  that are painted as solitary items, only as a manufactured run of thousands - most always in the same colour representative of the maker. On the other hand the most significant, and apparently fatal news for the Crown in today's openings was the assertion by defence counsel that in a test of scrapings taken from the nails of both mother and daughter, but not tested until last year,  it was disclosed to be the dna of two unknown individuals. Somehow the dna of the prime suspect, Lundy, was not found under the nails of his wife or daughter, but that of 2 unknown individuals was. Having written about 'prison stool pigeons' before, notably in the Watson case, the new direction The Court has allowed The Crown to take is one thing, but dna of 2 unknown individuals found under the victims fingernails, having been untested for a dozen years is quite another. A 'theory' of a high speed trip, and Lundy identified 'in drag' running from his house in apparent disguise despite being a very large and unfit man, now being abandoned, is not  giving confidence that the Crown have suddenly found the truth from the mouth of a prison inmate singing for his supper.

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