Lundy retrial: when the Crown cheat.

Mark Lundy has been reconvicted of the murders of his wife Christine and daughter Amber. The verdict seems to have been greeted with general approval, with many comments across blogs speaking of their dislike for Lundy and voicing feelings about him they have held for years - the very sharp point being made that people go with feelings, even putting aside facts or misgivings if they have already formed an opinion. Of course the Justice system is meant to rise above that, Jurors are asked to put their feelings aside whatever they may, be to concentrate on the facts.

The facts in the case of Mark Lundy is that the Crown cheated. They withheld evidence in the 1st trial that DNA matter was too down graded to be relied upon, they used a computer expert willing to fit in with a scenario the police had of Lundy driving at breakneck speed back to his home to kill his wife and daughter before returning to his motel in Wellington. They produced a witness who claimed to have seen a fat woman running in the vicinity of the Lundy home around the time of the killings, a time confirmed by a pathologist who relied upon the smell of the stomach contents of the 2 deceased.

At the retrial the computer expert changed the time when he claimed the computer was last used by several hours, suddenly allowing the Crown to say that Lundy made the trip later than the Crown had claimed in the first trial. Not only that but the time of death also changed. As for the woman who saw the fat lady running away from the Lundy household she wasn't called to give evidence. Stepping back from those events it's easy to see that the computer witness changed his evidence to fit a new scenario from the Crown of the deaths occurring later rather than earlier, the time of death also changed to a situation in which Christine would have needed to have woken her daughter from sleep late at night to eat McDonalds bought hours earlier. No problem with that, anything could be changed and was.

But is that just. This wasn't simply a witness mistaken about the colour of a shirt or the model of a particular car driving past. This was a definitive time of death changing. What came with that? A plethora of experts confirming DNA found on Lundy's shirt in 2 small specks to have been brain or spinal cord dna. Experts for the defence countered that, none among either the Crown witnesses or the defence could confirm that it was human DNA. My observations were that of a sceptic, the blood spatter in the Lundy house was significant, reaching up the walls - but only 2 small specks on Lundy? Add to that scepticism the not one witness seeing Lundy or his car on the drive from Wellington to Palmerston North and back. Not one witness seeing anybody near the house, particularly not a very large man with mobility problems because of his size and weight.

Mark Lundy may have been found guilty a second time but the Crown case is still far from compelling. To me it's compelling impact is a deficiency in credibility, a 2nd bite at the cherry, that the Crown so adamant in their first trial scenario, had another go. I said cheated above. To clarify that the Crown cheated in the first trial by claiming a time of deaths that was specific, something in the   2nd trial they abandoned, they hid evidence about the DNA - that too is also cheating, they produced a witness offering compelling evidence of seeing somebody the Jury were invited to believe running away from the scene - that witness was not called at the second trial, they called an computer expert to claim that the Lundy computer had been manipulated, there was only 1 reason for that - to prove that Christine was not alive around 11am that night whereas in the 2nd trial, under their new scenario they needed her to be alive then because Lundy had an alibi that he was in Wellington at that time spending time with a prostitute.

Lee Hinkleman commented on an earlier Lundy thread here this morning, pointing out something quite obvious - that it would have been a very unhelpful alibi for Lundy to voluntarily claim he was with a prostitute because it would present police with the opportunity to call such evidence before a Jury presenting him by implication as an unfaithful husband in a troubled marriage. Justice France warned the Jury not to morally Judge Lundy in his closing address, something that would never have been the case if Lundy were the killer, and had been clever enough to realise spending time with a prostitute was always going to look bad for him. Indeed, Lundy already had an alibi -  that he was 150ks away from where the killings took place and it would have had to have been extraordinary luck for him not to have been seen somewhere on that trip and able to turn up to sales meetings the next morning as his usual cherry self.

On KiwiBlog yesterday Ed Snack having digested the Jury's finding concluding that it was obvious that Lundy had been fitted up in the first trial. Also, although he didn't like to admit so, he felt that the DNA could have been planted Lundy's shirt. I'm sure others have considered that possibly, the Jury as well. The profile of manufactured evidence, particularly planted evidence, is that is often out of context. In NZ cases where see in the Crewe case one example, a bullet casing found on a subsequent search by an officer not tasked with the job, the same in the Bain case where a lens was found 'after hours' belonging to glasses said to be worn by David but belonging to his mother. The lens was also found by someone not tasked with the job and who would admit at the retrial having misled the first Jury on other matters. In the Crewe case it was revealed that bullet casing had not even been manufactured at the time of the Crewe couple's death. In Bain, the police withheld from the Jury that the lens was not from glasses owned by David but rather his mother, something the Jury in their deliberations asked the Judge for clarification, additionally the lens was dust covered and had no blood on them in a room spattered with blood as high as its 3m ceiling, inconsistent in fact with the environment in which it was found. As Lundy's glasses, ring and watches all escaped being collectors of DNA in a very bloody murder scene it is at least with some inconsistency that there were only 2 specks found on Lundy's shirt which was not confirmed as human DNA. Ed Snack didn't make those points in his observations but it was probably something in his mind, that evidence is planted in NZ in some cases. Snack went onto say that he though Lundy most likely was correctly convicted.

Those musings are an indication of the psyche that has developed abroad in some of the public - that police only 'fit up' the bad guys. Quite a terrible statement of Justice in NZ. Of course Justice France would have directed the Jury on this matter. However, it remains in the background of the Lundy case, the Bain case and others that police and Crown cheated in these controversial trials and the Courts allowed such conduct. No one was ever charged in any of these cases and when the proof of the planting was established it was not a barrier to the Crown from continue further with the cases. In reality that will continue, at least until a one strike rule is established where it follows charges are dismissed. The public interest is not in a case continuing where rules have been broken or conduct of prosecutors or police has transgressed the Law, the public interest is in people like Ed Snack and others, particularly in police and prosecution, that no illegal or unfair conduct is permissible before the Law and that criminal misconduct will be greeted with charges.

It's only speculation in Lundy that the dna spots were planted, but it is not speculation that the Crown cheated in the first trial to the point it was declared a mistrial. Yet they were given another chance where key witnesses dramatically changed evidence. Before finishing this, there is another interesting aspect of the Lundy case that some correspondents have touched upon. That is, Lundy had no history of violence, his marriage was said to be happy and he was a devoted father. He spent his entire life before this case never having been convicted of any crime and was not known as violent. As far as I know he has never exhibited any violence in prison or whilst on bail awaiting his retrial - for many that will inconsistent, particularly for those that can put aside impressions of Lundy, with killing his wife and only child with a weapon that may have been an axe.

I have no idea if Lundy is guilty or not. I am not persuaded by the DNA alone, or by impressions of his personality - I think considerable doubt remains as to his guilt. Somehow, as these cases seldom do, I doubt this case will go away. He is going to spend a lot more time in prison, there will be not a few left somewhat troubled  that the evidence against him is less than substantial. It is easy to consider the Crown thought the same, otherwise to bring a prison 'stoolie' into the fold would not have been an option. It's the evidence of a 'stoolie' since recanted that keeps Scot Watson in prison, I wonder if this 'stoolie X' will recant, or if more may emerge about that DNA. On the other hand if it doesn't change, then at least some evidence will emerge supporting the Crown case so that this observer's doubt will be reconciled.