Did Justice France abort the Lundy retrail.

http://www.nydailynews.com/new-york/nyc-crime/judge-tosses-types-dna-testing-article-1.2065795

The above link shows an New York Judge has ruled that 2 dna procedures for testing render results for being used in a prosecution inadmissible.

That's a good step, bad science, or details that are complex for a Jury should be inadmissible. If there are doubts about the validity of results from a testing procedure, or results that would be on the balance of probabilities difficult for an entire Jury(or even a Judge) to follow - the evidence should beruled out.

I think I know what happened in the Lundy case. Test procedures were used which gave debatable results on which Lundy was convicted. Those procedures were used again in the retrial. There were pretrial motions to have evidence ruled inadmissible because the dna procedures used were too risky, unproven over a wide range of cases, or peer reviewed to an international standard.

What I don't know is if there was a pretrial motion to have the retrial put aside and an order sought for him go free. The reason for that is obvious. The Crown found a new case against Lundy because their old one proved to a pile of rubbish. Anyone tight in a relationship, personal, business or friendly knows that if 1 party is exposed as untrustworthy or incompetent in their work the nature of the relationship is changed, in fact may become irreconcilable in it's validity. Because we don't know if there was a pre-trial motion to dismiss the charges against Lundy, attention is brought to bear on if Justice France considered that the changes the Crown made to it's case were fair or not, if indeed they it was safe for the trial to continue.

2 things are clear in the Lundy case, his conviction can only rest upon the car trip he allegedly made back to his home where the Crown say he killed his wife and daughter with a machete or similar in the first instance and the alleged evidence of his wife's dna (Crown say brain matter) on his shirt. Justice France would have been aware before the trial of the controversy regarding both matters and which the Privy Council quashed Lundy's first convictions. With that in mind Justice France was tasked in being alert to that which had failed in the first trial and resulted in a Miscarriage of Justice to ensure that Lundy got a fair second trial (The Crown itself having ignored the option to simply not proceed a second time) and that the public interest in the case was maintained.

Let's look at that again. The Crown relied upon a car trip having taken place, relied upon science to prove that Lundy's shirt provided evidence of his guilt beyond reasonable doubt. When the Crown prepared for the retrial they rather belatedly gave notice that the essence of their first case was to be abandoned in 2 distinct ways, they no longer claimed a specific time of death, they had a freshly claimed position of the previously disputed unreliability of the testing sample taken from Lundy' search. Immediately Justice France would have observed this highly controversial change and presumably considered if it fell within precedent of the boundaries in which the safe administration of Justice falls. That is his job, he oversees the complete trial, the management of witnesses, their evidence, evidence admitted to the trial, any concerns about the validity of evidence and whether it is first of all sound and admissible or whether it may be in danger of not being understood properly by the Jury, or indeed by the Court itself, whether it could be unfairly misinterpreted as not only too complex but also not of proven and peer accepted relevance in a trial where a man's life was at stake.

All of this fell upon Justice France, in didn't matter what arguments may have been raised by either the Crown or the Defence for or against the science, it was for Justice France to decide. In his decision as a principle of our Law and the way it evolves he was required to look closely at the specific areas of concern individually and then in continuity of other evidence. Here we go back to the 2 keys of the Crown case with which they endeavored to convict Lundy a 2nd time. The 2 planks - a car trip, and what was allegedly found on Lundy's shirt and the strength and weaknesses of the analysis of the handling and testing of that material.

Looking at the first of those planks the car trip Justice France was required to consider all the supporting evidence both that which it was proposed would be offered at the 2nd trial and that which had formerly been offered at the 1st. Which in the case of the alleged car trip was dramatically changed along with the time of deaths, in fact there were few similarities between the old allegations and the new. Such things as an alleged 'sighting' of Lundy being seen running from his home dressed as a woman were gone in a puff of smoke. The precision as to the timing of the deaths no longer existed, it had gone from a tight gambit to an open ended one. The only thing in common with both the first and the 2nd scenarios was that Lundy was not observed by a single witness. Let's be clear the car trip Lundy allegedly took in the early evening compared to the 'new' allegation that it was in the early morning of the following day had no supporting evidence, none at all. Even the dna evidence we will turn to later didn't support either trip claimed by the Crown if indeed it can be accepted as being of unimpeachable value itself. Weak evidence doesn't become stronger because of 'support' of other weak evidence. Remember no one saw Lundy make that trip, saw his car leave the motel or return or his car enter or leave the vicinity of his home. Lundy is of distinct size no one saw him either on the streets of Wellington or his home town in the hours before and after Amber and Christine were killed.

Now the 2nd plank and arguably the more contentious than the mystery trip - the matter found on Lundy's shirt, its handling and testing. Firstly mentioning of course the hidden evidence from the first trial which saw the conviction overturned. That is the evidence from the a pathologist that said that the alleged brain material was too down graded to test. As I learn more about the Lundy case it is clear all the literature agrees that brain matter deteriorates quickly. The first pathologist said that Lundy should not be convicted on such a deteriorated sample. The head of the case hid that information from the first trial and the defence. His actions there were deliberate, he would have considered that he might not get a conviction if the Jury and Court knew what the pathologist said. It goes deeper than that, if one pathologists in NZ held that view there wasn't a 2nd in NZ prepared to support that the test material was suitable for reliable examination. No doubt Grantham looked but found no one. I don't know how Grantham explained the withholding of this evidence, but he was because of his non disclosure, responsible for the first trial verdict being set aside. Any reader will have their views on a situation where evidence helpful to an accused man is hidden.

The question for France however was no different, he had to consider if the cornerstone of the first conviction could fairly, and in the interests of Justice, be used again. When considering that he had to look at the contest as to the validity of that evidence and consider it along with the other changed details of the case. In a pretrial motion in which the validity of the testing of the shirt material was challenged it appears that witnesses for the defence conceded at some point that the testing procedures if on an 'air dried' basis could be acceptable. The Judge needed to consider that along with the conduct of the Crown in the first trial and if what would be the pivotal evidence of the dna, was supported by other independent evidence of guilt - in that event, there was no confession, no witnesses, in fact there was only the 'changed' times of death, the changed times of the alleged car trip, all very weak in themselves. If there was a short fall in the Crown case between what they had earlier said, compared to what they wanted to say at the 2nd trial, that didn't support the controversial evidence and it would have been wrong for the Judge to reason one supported the other.

When there are cracks in the validity of a conviction history shows they seldom are mended, as a rule of thumb they mostly deteriorate as the 1st pathologist said of the shirt sample. I've been recently reading more about the Lundy case mainly because of grave doubts about the validity of the American scientist's work on the shirt sample and secondly because the Crown case was allowed by France to change so much - in other words present a fresh case in place of an abandoned one they held onto for over a decade. It doesn't make sense, something is fishy.

I think there is only one place to look for the cause of the concerns about Lundy being convicted on a new scenario when the original now lies abandoned as false. It strikes as a travesty in every sense that must be at the feet of Grantham because he afterall was the 'boss.' It was he, untrained in science, who looked overseas for an expert to conduct tests that NZ scientists would not. But firstly he hid the information given to him by the first pathologist to observe the samples and who basically said it would be unjust to rely upon testing them. If that information had candidly been placed on the Court file, instead of hidden, no one would be able to observe today that Grantham had acted improperly. It would have been above board and not secret with all the connotations of how secrets that favour the Crown are seen as leading to Miscarriages of Justice as did this, at least in the eyes of the Privy Council. Justice France needed be mindful of that throughout the trial - that Grantham had willfully withheld evidence from the Court in the first trial and even if Crown Law or police were prepared to allow his continuance as head of the case then it fell upon Justice France to observe the public interest carefully along with ensuring Lundy was tried fairly.

I can say that I am now aware that there was samples taken from the crime scene which were too downgraded to be tested, one from the phone and another from a place mat. A reader must remember that the crime scene was in control of police within hours of the homicide and the shirt much later. We are now asked to accept what deteriorated in the crime scene had not deteriorated on the shirt many months later. I don't know how this was dealt with at the retrial or if Justice France commented on it in his Judgement for Miller's forensic work on the shirt to be allowed. Common sense cannot reconcile the 2 points in opposition of one another, suitable of the shirt test months after the murders but not suitable in the crime scene within hours of the murders? Don't think so.

I've blogged before about the special handling that Grantham gave to Lundy's shirt. He never allowed its custody to be handled by the exhibits officer, in fact I gather it was kept secret from the exhibit officer who gave testimony that he had in his experience never had an item of evidence been handled in a separate way. Grantham gave some comment about this which I have blogged about before, at the very least he saw the shirt as the golden fleece of the case, or at least an item that would become the golden fleece, he nurtured its acceptance as evidence by not disclosing a fundamental report on its unsuitability as a reliable foundation for a conviction. He must have known he was misleading the Court in the first trial, equally Justice France must have been acutely aware of the Privy Council's comments on the shirt. It was, and remains, the hot potato.

Something else which has come to my attention is that the esr have correspondence from Grantham dating to before the first trial asking for samples of Christine's brain material. What I don't know is if those samples were tested for neurons and blood before being released. I do know that Grantham has denied ever receiving them, at this point I don't know how that has been resolved between ESR and Crown Law but a public statement would be helpful. I have been told that the samples were released to Grantham 2 weeks before his trip to America to met Miller to hand over the Lundy shirt.

Diverting back for a moment. That shirt with it's alleged brain matter on it was revealed as having been 'dampened' at least twice before being taken to America. The first was when a damp laboratory slide was scrapped across marks on the shirt, the second time when the shirt was dampened and squeezed out of water which was gathered for testing for dna residue. A reader should remember that brain matter deteriorates rapidly outside the body (recall here that such matter within the crime scene was unsuitable for testing because of rapid deterioration) and that deterioration is accelerated by moisture. What had been tested in NZ, dampened, and not air dried, would over a half a year later respond to Miller's procedures despite no certainty of how the samples had been handled by Granham along with unknown scientific analysis as to what happens to samples transported by plane half way around the world in what most likely were uncontrolled climatic and air conditions. All this faced Justice France.

Even such a imprecise combination was complicated further because there were arguments to and fro about the test procedures and handling. One can assume that not a single witness had all the combinations put before them and asked if the uncertainty of the combination was safe to put before a Jury. The only thing I can see that Justice France can have been certain about was the original pathologist's statements, that warning about the condition of the sample remained at the top of the pile built by Grantham and Miller, along with the knowledge that Grantham having failed to convince another NZ scientist, to carry out the test the first pathologist refused to do, knew the NZ scientific community gave Grahtham's quest no support.

Did Justice France look at the alleged car trip to support the highly controversial dna evidence, then look at the highly controversial dna evidence to support the unseen mysterious car trip. We don't know at this stage, but common sense is that heap of rubbish is not supported by unclear evidence or the other way around.

A reader must remember that the material on Lundy's shirt was possibly residual, unable to be washed out by Christine's use of cold wash washing powder, it was also possibly from cooking animal meat on a bbq, it was down graded from the beginning. There is information that Miller's claims of air drying a sample are inconsistent with scientific literature which say the only human items which can be successfully air dried for testing are blood, bone marrow, cervical scrapings. If that could be overcome in Justice France's mind (assuming it was put before him in the pre-trial motion) he also needed to consider that we know happened to the samples before they went to America, in particular the wetting and wringing out before entering the cross fire of the scientific opinions one of which, at least as the trial proceeded was supported by having been referenced over 3000 times internationally (an impeccable confirmation of opinion), the conduct of Grantham. What was before Justice France was fluid, it began with pre-trial arguments that culminated as Justice France allowed the prosecution to repeat in a soulless and unsubstantiated mantra that Mark Lundy had no right to have his wife's brain on his shirt when there was absolutely no reliable proof that he did. Justice France by then had let the tiger out of the cage, he'd let controversial evidence be shaped into a damaging beast, in my opinion he let the trial be aborted.

I can't see the Lundy case going away. I remain concerned as many others will do about the nature of the new evidence, not only that but the handling of the shirt, the hiding of evidence. I want to know more about the mystery man Miller and the audit controls on his testing procedures and if Justice France inquired of them to satisfy himself that which was too down graded for testing in NZ became miraculously changed. I want to see reconciled  the confusion as to whether Grantham was given slides of Christine's brain matter before he went to the states. It's not over until these questions and other arising from them are solved. Check out the link above and see how an American Judge took a different view as to controversial testing procedures and consider whether it was that Judge or Justice France that has best served Justice.

Footnote: I concede I may not every point here correct in fine detail and am happy to correct them. I also note that I have asked about the samples allegedly been given to Grantham 2 weeks before his trip to America being tested before released, and if those tests were for blood and neurons because Miller has said that 'his' samples showed neither - another deep mystery in this case that would have alerted the Court to the precariousness of the safety of the trial.

2nd Footnote: I have since read the Judgement on the Defence application to stop the Crown presenting various scientific evidence regarding stains on Lundy's shirt. That Judgement was presided over by Justice Kos and not as I had thought by Justice France. Of the 2 samples taken by Grantham to Miller in America one was too degraded for testing purposes and one was not, the sample first preserved by ESR was downgraded but a second preserved some months later was not. I think the Judge referred to that as a curiosity. but didn't find it unacceptable enough to exclude the evidence. There was material found in the murder scene too down graded to be reliable for testing, of two specimens sent to the States 1 was not suitable for testing. I would have 3 out of 4 being positive for testing was acceptable, but 1 out only 1 out of 4 looks to be inviting trouble. Kos used the fact that the 2 from the crime scene that were below testing standard to accept that only 1 of 2 taken to the states was acceptable. That's a lot of optimism, if the buyer of a 4th new car out of which 3 previously had failed safety tests was happy to go on a long trip in which life or limb was in danger in the event of a breakdown it's hard to imagine he'd share Kos's optimism.