Lundy - 2 unfair trials?

When I read parts of the Crown's closing address in the Lundy retrial I was troubled. The Prosecution closing address was heralded as 'brilliant' or similar by Steve Braunius of the NZ Herald. He had reported on the trial from day one and wrote that the closing was something of a surprise package, he would later write after the verdict that he thought Lundy was innocent. That caused me to think of what a closing address actually is in reality. In theory it is surely a summation of facts and circumstantial evidence with a cross to reasonable speculation built from those facts. Fair enough really, apart from the fact that in the Lundy retrial the brilliance of the closing was speculation based on speculation rather than fact. What the Crown had needed to bring to the trial was clear, and undeniable evidence beyond reasonable doubt that material found on Lundy's shirt was the DNA of his wife. They couldn't do that, so they weaved a picture instead, a mirage.

First of all there is clearly still a defence for Lundy if  such DNA had been found on his shirt. However, all that I heard or read was that material found on his shirt was claimed by prosecution experts  to have been Christine's DNA with defence experts saying that it categorically wasn't Christine's DNA or that it wasn't conclusively proven by the Crown (or the experts called by the Crown) testing procedures, to be her DNA. Before going on this is a suitable time to recall that Mark Lundy had been given a retrial partly on the basis of a hidden opinion by a Crown advisor of his expert view that the DNA was too degraded to be reliably relied upon to maintain a conviction against Lundy. Accordingly, the Crown were tasked with accepting that view and either deciding not to hold a retrial or find 'fresh' evidence proving the NZ pathologist was wrong whilst the American scientist whose evidence the ultimately relied upon was right. By finally deciding on a retrial they needed to find someone who could take the material into 'safe' territory as something that could be relied on to give a reliable testing result. By all accounts, having chosen the retrial, they didn't manage to get a universally reliable testing result using peer reviewed methods. More about this later, in the meantime back to that closing.

Had there been an absence of any concerns about the validity of opinions regarding the claim that Lundy was found to have his wife's DNA on his shirt I don't think there is any argument that the closing was appropriately able to make purchase of that as a fact. However, no such unequivocal facts exist. What does exist are certain claims and counter claims. I have to ask myself how the hell does the Prosecutor get away with such mesmerising mantras as to the effect of 'he [Lundy] had no business having his wife's DNA on his shirt.' Is there an assumption abroad in the NZ Judiciary that it is all right for a Lawyer to summarise a case to a Jury without the normal qualifications that Lawyers are usually most careful to employ, as looks the case here? Of course 'may have been' or 'you might think having heard the witnesses' is a far less compelling narrative, but in the Lundy case correct because it avoids confusion, it extends doubt where doubt actually exists. I seem to recall evidence that the DNA may have been animal DNA if DNA at all.

So where is the line that the Prosecution appear to have breached? Now that the case is under appeal I look forward to perhaps seeing that line tested. If there were ever a case when a Judge should have insisted on a Prosecution closing being based solely on fact, rather than speculative extensions built from uncertain forensics, Lundy surely should have been that case. After 14 years or so there is no conclusive proof that Lundy had his wife's DNA on his shirt, not conclusive beyond reasonable doubt according to Dr Stephen Bustin called by the defence whose article "The MIQE Guidelines: Minimum Information for Publication of Quantitative Real-Time PCR Experiments" has been cited over 3000 times.

Below there is a comment from where I have gathered "The MIQE Guidelines: Minimum Information for Publication of Quantitative Real-Time PCR Experiments" from Chris Halkides on another post here which refers to the Lundy case. A click on Chris Halkides name reveals his professional interests in reviewing the credentials of Dr Stephen Bustin as a defence witness. This adds to the disquiet about the Lundy closing and verdict. Quite clearly is shows that Dr Bustin, a leader in his field, would never go where the Prosecutor went with his story, because it was a hopeful explanation that could convince a Jury of something that was doubtful. The Prosecutor said unequivocally that it was Christine's DNA yet a leading researcher whose publication on real time experiments, that has been referenced over 3000 times, could not agree with the test methods relied upon by the Prosecutor's witnesses and consequently the results which the Prosecutor, wrongfully it may be argued on Appeal, was claimed to be conclusive by the Crown. It was never conclusive, not in the first trial and not in the second so how was Lundy given a 'fair' trial when the Judge allowed the Crown to close using speculation based on speculation and not fact. It's not fair in my opinion and touches upon a grey area in our system where reality can depart and be replaced by fiction. It is a fiction that the DNA found on Lundy's shirt was proven to be his wife's DNA. It will also be a fiction if the Court of Appeal 'place' themselves in the mind of Juror's and determine that the Jury having 'heard all the evidence and counter evidence, having been warned by the Judge about [opinion] evidence to use their common sense when addressing its value either for the Crown case, or against it' were the Judges of those sole 'facts.' First of all they weren't facts and secondly therefore, the Prosecutor ought not have been allowed to set them out as facts. This grey area of 'Juror's mind' is a modern day witch craft, if some of the Jurors were capable of distinguishing theory from facts there is no test that allows a conclusion that there were some who were not - and that therefore to avoid the 'grey' the Judge should not have allowed the Prosecution to claim that it was 'Christine's DNA' only that the Crown had opinions that it was.

Obviously the qualifications would have weakened the force of the 'brilliant' closing, however, would have left little room for doubt as to what any Juror 'might' have thought. Relying on that to be spelt out by the Judge later, was not only too late, but too dangerous. Am I being too cautious? I don't think so, I wanted  to see a fair trial - Lundy was entitled to it by Law. Were opinions sent abroad from the Courts through media and other snippets that Lundy had his wife's DNA on his shirt? They were, and I know that having read the subject on Kiwi Blog, letters to the editor, and even reports of it having been spoken about on talkback radio - Lundy had his wife's DNA on his shirt, end of story.

So the 'fact' is deeply within the public mind but who knows to what extent, (and that is the question for the COA if this is a point on appeal,) whether or not it was challenged by the Defence at the time or rebutted in the Defence's own closing - the extent of the damage to a fair trial cannot be known, nor can how deeply planted the Prosecutor's mantra was in the Jury's mind, or that of some Jurors. It was speculation based on opinion that was divided that the matter was DNA at all, let alone belonging to Christine,  further speculation by the COA as to the affect is arguably improper. As I referred earlier, in the wider picture should the Crown be able to cite as facts things which are not conclusive at any time - or more particular in support of a very weak case. No, a 1000 times no. The Prosecution can use what they have honestly, not repeat something over and over to a Jury painting a picture using paint that 'may' exist but which can brought to life with brilliant oratory to a Jury whose capacity of differentiating 'fact' from 'speculation' can only be unknown.

Just as an aside here and given thought whilst pondering great oratory, Peter Williams QC, now in fact Sir Peter Williams QC, fairly regarded as a brilliant legal strategist and orator, interesting to consider that had he been involved in Lundy's defence he may well have objected loudly and in front of the Jury, as well as in chambers, that the Prosecution were trying to take advantage of conclusive evidence that didn't exist, and continued to do so each time the Prosecutor made the claim about the DNA again, and again, in his closing. I also 'speculate' (because this is not fact, but rather an attempt to show the damage that can be caused by a Court remaining passive, assuming the thoughts, prejudices, biases or comprehension capacities of Jurors and how that might be corrected in summing up) that Sir Peter might also have argued strongly in his closing that the Crown wanted the Jury to believe something which the Crown had not proved, and they did that to show that Mark Lundy could have killed his own beautiful daughter whom the Jury had heard he loved deeply. On return of a guilty verdict he may have asked to poll the Jury (if such is still allowed) or even asked them if they accepted as 'fact' that there was conclusive evidence of Christine's DNA having been found on Lundy's shirt.

Of course these speculative comments about William's approach, had he been involved, are an speculative illustration of what can happen when opinion is allowed to be confused with fact, despite the way it may be attempted to be put back in order later. More is needed from the Courts, more was needed from the Court in the Lundy case. The Prosecutor should not have been allowed to speculate on speculation - it was too damn dangerous. Something else that lingers about the Jury trial are the relatively common 'guesstimates' that NZ scientists give in evidence at times. From memory in the Lundy trial one expert gave evidence that the DNA was 4million times 'more likely' to have come from Christine that any other person. Well, I've worked out some similar arithmetic that the particular scientist was 4 million more times likely to be wrong if he or she calculated such resolutions not using peer reviewed methods.

Remember also, the NZ pathologists who said the DNA was too degraded to be relied upon and whose opinion was withheld, wrongly by the Prosecution in the first trial - not only was his opinion not put the Jury, or revealed to the Defence - but the Prosecution went onto 'find' a scientist who would say that it was Christine's DNA using a method which was not reviewed at all by his peers at the time, let alone accepted. Trial 2 arrives and the Prosecution forensic witnesses are at loggerheads with the views of an peer accepted expert's opinion who said that he would be very reluctant to accept the RNA work against Lundy if it was offered for publication.

I freely admit that I have the scantest ability to clearly follow the testing and procedures that Dr Busten has been able to set out as a model  sought for over 3000 references, a number more than the entire number of homicides in New Zealand over the last 20 years or so, and that the speculative reference that Sir Peter Williams might have made to the Jury that the Crown stretched the science in an attempt to prove something that didn't happen - that Mark Lundy killed his beautiful daughter, could have influenced me as a Juror to conclude that Mark Lundy didn't get a fair trial.

We know from media reports that the appeal is based around the forensic evidence. Well and good, but there will be others beside myself who will be interested to see how it is that in a trial it can be said that a man had DNA belonging to his wife on his shirt when the proof of that is inconclusive.

Cheers to Professor Chris Halkides for the following:

Chris Halkides has left a new comment on your post "Lundy resentenced; but is it over?":

I have recently had a chance to review the credentials of the defense's two main expert witnesses against the RNA evidence. Both are very good, but Dr. Stephen Bustin's credentials are superb. He has written books on the subject of how to quantitate nucleic acids (DNA and RNA) by polymerase chain reaction. His article "The MIQE Guidelines: Minimum Information for Publication of Quantitative Real-Time PCR Experiments" has been cited over 3000 times. He said that he would be very reluctant to accept the RNA work against Lundy if it were offered for publication. I don't see how it could get any clearer than that.