Either does the 1 sure thing in the Lundy case take much to work out, that which has been buttressed inside the case for 16 years - the scientific evidence attempting to place guilt beyond reasonable doubt has not worked. The claim that his wife's brain matter was found on his shirt on patches identified as having been her dna has not been proven. Dna which could only have attached there by a cough, saliva, a sneeze or transported by other body fluid, of course not excluding blood. It's important to remember the blood or other body fluid being required to show first of all if Lundy killed his wife and daughter in a manner which contemporaneously transferred matter from deep in Christine's brain onto his shirt in 2 smalls spots, with one taking the role of background and the otlher according to police, pressed into the shirt and the dna stain but holding no blood or neurons. So the sure thing is that the forensic proof is not, and never has been clear proof beyond reasonable doubt of Lundy's guilt. The forensic 'proof' hasn't worked so far, deep into the second decade since Christine and Amber were killed.
When someone's head is split open with an axe causing their immediate death, one has to wonder what splattered out from the pressure of released blood and other fluids containing the unbloodied brain matter. I shall try to explain that again as I understand it. Fluids spilt from Christine as she was murdered and landed on the shirt of her husband, when those fluids spilt out - necessarily from her brain so did 2 small spots of her brain - all apparently in order by the police account but there was no blood or neurons in the sample. Some fluid, at some time, had become hardly visible as a stain and the brain matter was pressed onto the shirt to be found later, becoming then the greatest doubt as to the guilt or innocence of Mark Lundy. That alleged brain matter once taken from the shirt and put on a slide would never again look to be a match to its source on the shirt. From the shirt to the slide there was an unexplained change in appearance of the sample. Remember the deposit found on the shirt was pressed in, no doubt if a person with the nefarious intent of placing a sample on Lundy's shirt because they believed he was the murderer they would indeed have to make sure the sample stuck - pressing it on would be one way to do that, there might be others but pressing is certainly an answer if the evidence was planted. If it wasn't planted then answer isn't so clear, and attempts to do so have been awkwardly constructed. Haven't worked in fact.
Some followers of the Lundy case, and I am only relatively recently one of those, will note that the former hot topic of the debate as to the Lundy's alleged drive home to Palmerston North and back to Wellington. I detect that interest in that debate has gone, that for some Lundy's polo shirt is the only answer. I'd even say that many don't care about the details of the trip because of the shirt and who can blame them. Others dismiss the drive for other reasons, more important and consistent with the evidence, Lundy was never seen on this trip, or entering and leaving his house. There were strong submissions on this by defence counsel at the trial which were quite compelling. The Judge instructed the Jury if that evidence was accepted by them then they should acquit Lundy, of course they didn't. That can only have left the forensic evidence as the reason for the conviction - therein lies the grave question, was Lundy convicted on strong forensic evidence or not. The answer looks to be no.
Remembering that Lundy is again serving a life sentence for a crime now said to have been committed at a different time than that claimed at his original trial, also now it is no longer said that he tampered with the family computer times to lay a false time trail. It is now said he committed the crimes at an later time than that set by Dr Peng - previously Dr Peng was a world expert in smelling the stomachs contents of the dead in order to establish their times of death. The evidence of a woman who saw Lundy purportedly dressed as a woman running off from his home early in the evening leaving his wife and daughter dead is gone. All of that out.
So what is left? Only that 1 thing which there is certainty about in this case now - the absolute uncertainty of the forensic evidence against Lundy, in particular the evidence found on his shirt some 2 months after the deaths. If all previous telling evidence against Lundy as listed above from the first trial is gone the shirt remains the only evidence, controversial, seemingly flawed perhaps, changed in appearance from when it was first observed until the time it went onto a slide only to be said by several witnesses as not recognizable as the same alleged Central Nervous System matter found on Lundy's shirt.
Before going into that in greater detail I first need to say that Witness X happened along for the second trial, he said he was at pains to contact police when he discovered that Lundy was going to be retried. Witness X was a paid informant goal bird. He got right on the phone to his police handler and told him about Lundy's alleged confession to him. Like the Thomas, and Pora miscarriages of Justice in the past there was suddenly in the Lundy case a stool pigeon singing for his supper. Frankly, any case that gets hit with a credibility problem at least ought to avoid the temptation of rolling out a confession from someone with a history of selling information to police. It's a blight on the desperation of this case and for many it will draw comparisons as to what appears to be wrong, or at least doubtful about the forensic evidence, as hotly contested as it is. There is plenty that makes no sense about the forensic evidence re the shirt. Only one NZ Judge, the head of the Court of Appeal has ruled against it in an appeal by Lundy that it should not be used. That Appeal was against a pre-trial decision by Justice Kos who said the controversial forensic evidence could be admitted, relying on the trial judge to explain it fully to a Jury.
Going back in time to Lundy's successful appeal to the Privy Council. It was that court that made comment about the forensic procedures adopted by the prosecution's witnessDr Miller, it is correct that the testing procedures are controversial, novel, and virtually without written support or peer review. Not only that, but also the handling of the samples - which seems to have been of little exact concern to the Courts so far. Why is that? Well, one reason no doubt is that the Lundy camp have been conservative in not pushing what others may feel is obvious. I'll list those things here.
1/'Chunks', as Simon France J put it to the 2nd Jury, of Christine's brain were found on a phone and a table mat immediately after the killings, a least within hours of discovery of the bodies. That brain matter (also called Central Nervous System or CNS) was too down graded to be tested. Central Nervous System tissue is highly fragile out of the body and subject to rapid deterioration. I do not know if those samples bore blood and neurons but am trying to find out.
2/The same day of the killings Lundy's car was seized along with a blue striped polo shirt he had been wearing. 2 months later spots were found on the shirt said to be brain matter, unlike the 'chunks' found immediately in the crime scene the shirt spots also deteriorated according to the Pathologist Dr Teoh. Heat, facilitates deterioration of CNS material, so the spots wrapped in fabric were not deteriorated according Dr Miller many months but those exposed in air at the crime scene were. That's a big change right within the Crown case. Samples inside the house found shortly after the murders deteriorated, others smaller (and therefore with less mass to withstand deterioration) were capable of providing test results, Results which the NZ Pathologists Dr Teoh said would be too unreliable to present as evidence.
3/Before advancing to those test results and procedures. We have to consider the conduct of the Officer In Charge DS Grantham. At the first trial Grantham did not disclose to the Court or the defence as he was required, that an ESR Scientist wrote to investigators saying that the shirt samples were too deteriorated to be used to support a prospective life sentence. If Grantham had of accepted that Lundy would never have been convicted, if Grantham was abiding by the rules he would have told the Court of the evidence, and of course the Defence. He never did. That police have continued to allow Grantham control of this case, and that Crown Law have seemingly supported that, it is fair to say that Grantham himself invites special scrutiny as to his honesty. I don't know what explanation Grantham ever gave or even if he did offer an explanation. Which ever was the case I'd like to hear it, but more importantly it was something Kos and the COA should have turned their minds to in some way for comment. Something has been sanitised here, for the Lundy case is a real event and as part of that event Grantham withheld evidence.
4/DNA maybe transferred by coughing, spitting or sneezing according to Simon France J in his summing up. See para [74] a where he points out that Central Nervous System matter is not transferred from the body other than through a wound. So the small patch of DNA on Lundy's shirt which was said to contain Central Nervous Sytem matter (brain) belonging to his wife could have only come from Christine's brain by that situation. How it became embedded on a backdrop of body fluids of some type will never be clear, as will not how it was pressed in somehow. What we do know is the alleged CNS sample (Central Nervous System) did not test for either blood or neurons. Repeating here, at this stage we do not know if the brain matter found at the scene which most certainly belonged to Christine and which by appearance and general agreement was brain matter, but which was deteriorated too much for testing, did in fact provide either proof of containing blood or neurons. In a room where there was extensive blood spatter, that is a must know for this case.
5/Before getting to the controversial test procedures used by Miller it's important to note that it is claimed that there were written requests by Grantham to ESR for samples of Christine's brain, and reports that the same were released to him on the 16th of January 2001 just before his trip to meet Miller. This trip was after Grantham's failure to find support for testing in NZ of the samples he had been could not provide satisfactory results. I understand that Grantham has provided no record of having been given or not given the samples from ESR but has apparently denied having received the samples. In context, that is something that needs clearing up and is something I have found no record of either Kos or the Court of Appeal having been asked to consider.
6/Evidence was given at the retrial, and possibly the original trial that Grantham did not surrender exhibits said to contain Christine's CNS - choosing to handle them himself in order to keep the inquiry tight or words of similar meaning he gave in evidence. I may be wrong but I take that to mean he didn't trust other police. One reason a police officer might not trust other police, in fact possibly the foremost reason could be that the first officer knew his activities, if known, could be reported.
7/It remains fairly well known that an accused person's counsel are generally reluctant to make accusations against police of foul play in case it is reflected upon their client by a conservative Jury. If that was the case here, and assuming the information is correct, then it looks like Lundy was let down in a matter that could have helped the Jury in the second instance consider all details surrounding the handling of pivotal forensic exhibits, and in the first instance the courts when considering the admissibility of the shirt evidence. Again why hadn't the CNS matter deteriorated on the shirt but had done so immediately on the phone and bed side table. Why did material taken from the shirt and placed on a slide look unrecognizable to experts as being the former. Why was the shirt CNS without blood or neurons. Miller said that answer to the neurons question was easy it came from part of the brain with less neurons but isn't a small amount of water in a large container still water, doesn't all CNS have neurons? If I'm incorrect about that later question I hope someone will let me know.
8/ Here is what Kos said in his decision to allow the admission of Miller's evidence:
[80] Fourthly, it is a curiosity – but I think no more than that – that the dab slide specimen 3003/2, taken from the same area as the stain contained in specimen 3003/3, is so degraded (whereas specimen 3003/3 is not). Even more curiously, the same observation applies to dab slides SO45/1 (taken from tissue material on the telephone on the bedside table adjacent to Mrs Lundy’s body) and dab slide SO51/3 (taken from tissue material on a mat from the same bedside table). The latter dab slides have nothing to do with exhibit 3003 (Mr Lundy’s shirt). The reason may, it seems, have to do with the deeper lodgement of the tissue material in 3003/3 and 3003/4 within the fabric fibres. It is possible that has protected the material from degradation. Dr Du Plessis was of that view, although it was not shared by Dr Smith and Professor Ironside. While the degradation of the dab slide material (all three slides) is curious, I am left with a clear impression that it says nothing material about the reliability or otherwise of specimens 3003/3 and 3003/4. As Dr Du Plessis noted, forensic neuropathologists such as he are often confronted with the assessment of brain material that has been decomposing for some months. While those may be significantly degraded (and more so than the material in specimens 3003/3 and 3003/4), much pathological information can still be obtained from such specimens.
I'm glad that Justice Kos found something curious in one sample surviving from 4, that is 2 from the house and 1 from the shirt that didn't. I also find that curious. However, unlike the Judge, I don't think Professor Du Plessis explanation gave a plausible answer about that curious point. Speaking about 'deeper lodgement' in the thin material of a shirt but which could still be seen, as a reason why only 1 sample out of four was not degraded is a big stretch. Because the Judge willingly noted the 75% percent positive for failure but could accept only the 25% negative (for the Crown) which was the reverse of his test on certain RNA evidence written about here later (and no doubt within the knowledge of those familiar with such things) where a test on the false positives rate for the tests the Crown chose to rely upon in examining the samples 3330/3 and 4 were over 50 percent. I can't help but feel the Crown where getting away with one here. 4 samples, 3 degraded, 2 of those samples within hours of the homicides, the 3rd at an unknown point in time but certainly before Millers tests in 2001 while the fourth miracously survived, tucked in or smeared on Lundy's shirt. Doesn't work, even a bit.
Justice Kos may not have known about the facts revealed by DS Grantham at the retrial about locking those exhibits away in his own safe, a practice said by the exhibits officer as unprecedented in his experience. Kos certainly knew that the specimens put on the slides were no longer recognizable as having come from the shirt. I wonder if he thought about whether 1 hadn't, at least not at the time when Christine and Amber were killed. Regardless, of whether Kos already knew about that later evidence about the handling of the critical exhibits, surely as he was about to speculate on reasons he could have turned his mind to the evidence of Dr Teoh as to his impression of the matter which would be ultimately tested by Miller, that the samples were too downgraded to provide reliable results. As the first person to comment about the suitably of the samples for testing he was, and is the utmost authority on the matter. He didn't say that some parts were deteriorated and others weren't. He was explicit, and by reasonable cause completely correct, the samples were not reliable test items, that is until they were handled in an unprecedented way.
8/ Here is a report of what Grantham said about the sample treated outside the care of the exhibit officer.
Earlier,
Mr Grantham told Crown prosecutor Ben Vanderkolk that,
realising the importance of a key blood sample on a glass slide and
the need for it to be examined by a range of experts, he kept the
slide in his personal custody.
realising the importance of a key blood sample on a glass slide and
the need for it to be examined by a range of experts, he kept the
slide in his personal custody.
He had
told Mr Behrens how he uplifted the exhibits room keys from the
desk of the exhibits officer to do that.
desk of the exhibits officer to do that.
"It
was known to just a select few," Mr Grantham said. "I didn't want
anybody talking about it it outside the inquiry group. I certainly
didn't want the accused to know about it."
anybody talking about it it outside the inquiry group. I certainly
didn't want the accused to know about it."
Of course we know Lundy wasn't active inside the inquiry group, so it's difficult to know what Grantham was saying. Certainly doesn't provide the option of surrendering to the idea that not only did 75% of the samples fail to prove reliable for testing, but 1 of 2 in the special custody of Grantham survived a period of time extended into months. Remembering that at the coal face, the middle of the inquiry were the ESR Scientist Dr Teoh made his observations that all chance of reliable testing were extinct That, until after the Grantham custody and his apparent lack of being able to disassemble what Dr Teoh had said with the critical support of any NZ scientists
9/What did Granthan introduce at the retrial? First of all a lack of being willing to fess up for the withheld evidence. But we found out more about the science on specimens treated without organised procedures. Here is Dr Miller being reported from evidence about his laboratory which was not approved for forensic examinations. Consequently that could mean that Dr Miller would have been unable to present his methods and evidence in an American Court - a question I gather that may never have been challenged in the NZ Courts. In all fairness it looks as though Miller's evidence should never have been allowed. Not because of any single point in particular but rather because of a continuity of points that began with DS Grantham having first treated the samples in a manner outside normal protocols. That Grantham also failed to reveal the critical evidence of Dr Teoh, the very person at the coal face of firstly examining that cns/dna resulted in the foundation of what Dr Miller would later receive into his Lab as of too uncertain history to be reliable speaks loudly of reasons for alarm.
He thought the samples did not degrade because the material was spread thinly on fabric and "air dried" quickly, almost like mummification.He thought the samples did not degrade because the material was spread thinly on fabric and "air dried" quickly, almost like mummification.
Miller was challenged on the cleanliness of his laboratory and steps taken to avoid contamination between samples.
He said specimens were dealt with separately and equipment cleaned with water or paper towels. Some equipment was treated with hot water between uses.
Contamination was a very serious issue and steps were taken to avoid it, he said. Surfaces did not have to be sterile for his type of work.
"There was nothing that happened in my lab that would explain the appearance of that on the shirt," he said.
He said he did not do cleaning duties in his office.
He agreed his laboratory was not accredited to do forensic work but he said what he did on the Lundy specimen was routine for the type of work they did.
Miller was challenged on the cleanliness of his laboratory and steps taken to avoid contamination between samples.
He said specimens were dealt with separately and equipment cleaned with water or paper towels. Some equipment was treated with hot water between uses.
Contamination was a very serious issue and steps were taken to avoid it, he said. Surfaces did not have to be sterile for his type of work.
"There was nothing that happened in my lab that would explain the appearance of that on the shirt," he said.
He said he did not do cleaning duties in his office.
He agreed his laboratory was not accredited to do forensic work but he said what he did on the Lundy specimen was routine for the type of work they did.
Mr
Behrens also asked Mr Grantham about burglary reports from the
area, including a missing blue-handled screwdriver, and items removed
from a car.
area, including a missing blue-handled screwdriver, and items removed
from a car.
The
officer in charge of exhibits, Detective David Thompson, formally
introduced the raft of 100-plus trial exhibits.
introduced the raft of 100-plus trial exhibits.
He
told defence counsel Steve Winter he did not go into the Lundy
house until about three weeks after the murder, though he had uplifted
exhibits from the site without entering the house.
house until about three weeks after the murder, though he had uplifted
exhibits from the site without entering the house.
He
said he did not know Mr Grantham had uplifted his exhibit room key
- which he believed to be the only one - to put a forensic slide into
the fridge.
- which he believed to be the only one - to put a forensic slide into
the fridge.
He
would not have expected that to happen.
The
forensic slide referred to was never in his custody, he said.
(Sorry about the change in letter size from here on in)
Looking at the dissenting Judgement of the President of the Court of Appeal E France J and that of Kos J in the application to exclude Dr Miller's evidence are some interesting comments that challenge if the Courts got in right in allowing the evidence.
Looking at the dissenting Judgement of the President of the Court of Appeal E France J and that of Kos J in the application to exclude Dr Miller's evidence are some interesting comments that challenge if the Courts got in right in allowing the evidence.
In para [20] of his Judgement Kos says: Function of the Jury is not to determine the outcome of scientific contests - but to decide simply whether the Crown has proven each essential element beyond reasonable doubt.
This despite it being clear that the Jury were going to have to Judge a scientific contest. Everything about the forensic evidence was a contest, on the one hand Miller's methods and on the other hand the criticism of them. Not only the criticism but that the Court appeared to willing to let pass unnoticed that, as in the example Kos gave, the curiosity of 3 samples degenerating and one not doing so. Essentially, on this point I think the Court was wrong to overlook the chain of events that led to the samples being taken to the unauthorized, for forensic testing, clinic of Miller. That started with the phone and place mat 'chunks' not surviving outside the body and 1 of 2 allegedly pressed onto the shirt not surviving over a period of not hours but for months. Miller put this down to being air dried or mummified, if one sample on the shirt mummified then why didn't the other. These are all matters not commented upon by the Courts. Additionally, wasn't it also material for the Jury to know that the President of the COA considered that the Court should not have allowed the evidence? That by any measure was relevant to the Jury's consideration. If a single Juror was doubtful and had known that no less than the COA President was also doubtful they may well have held their ground under the weight of all the conflicting opinions.
At [25] Koss said that the Privy Council had said in allowing Lundy's appeal that type of testing used (Immunohistochemical {IHC} analysis was unique in the setting of a criminal trial and ventured the question whether it should be admissible.
At [13] in the dissenting Judgement of the COA Ellen France referred to Kos's judgement where he said that the Netherlands Forensic Institute (NFI) RNA analysis was sufficiently reliable 'by a relatively narrow margin'. He also said that the Jury would not be 'drowning in a sea of science.' In fact this whole case has drowned in a sea of science - a 'relatively narrow margin' is exactly what Dr Teoh sought to avoid when he discarded the samples as unfit for testing. Of 4 samples he was 75% correct. On the 4th of those it's transmission to the unregistered clinic, after being secreted away in a safe away from other exhibits and the knowledge of other police.
At [15] E France J said that parts of DNA used by a specific cell are converted into RNA and RNA then assists in the creation of protein molecules 'in effect directed by the DNA.'
At [75] (a) France J in summing up 'Mr Sutherland made up a glass slide of a bit of tissue he saw on Lundy's polo shirt. When the experts look at that slide it does not look at all as to what is on the shirt.' Samples changed in appearance, to go with samples been stored inappropriately, 1 has a life more extended than the other - a curiosity as Kos put it. Are curiosities and changing appearances not the mystery that Dr Teoh said should be preserved rather than be used to potentially send a man to prison. I think so. Too much doubt, too much mystery and too much concern as to the handling of the samples. All of that before we get to the novel testing procedures.
Just on that summing up, lets look at some other points made by the trial Judge that add to the doubt as to the admissibility of the evidence.
At[88] summing up he pointed out that Dr Venneman observed poor practices at Dr Miller's Lab. A reason for confidence or a reason to exclude the evidence? at [30 to 31] when speaking about the lawyer's addresses he did not say that the alleged late night from Wellington to Palmerston and back needed a positive sighting but at [51] said that 140kph speed average was questionable. By then however the Jury may have already drowned in a sea of science. At [84] he pointed out that Ms Wichman (USA) said she detected small amounts of animal DNA on the shirt consistent with animal spatter, confirming an aspect of the defence. An important aspect because it was a explanation for the CNS tissue on his shirt.
A reliable record of the forensic contest was delivered E France J in her dissenting opinion. An opinion it would be interesting to see how the NZ Supreme Court or the Privy Council might view the Judgement. She clearly pointed out as important Para [38] Dr Vennermen watched the work of Dr Sijen of the Netherlands Forensic Institute. And commented that the NFI use of the 'brain plex' reaction (ie the method used to RNA) is novel and is only validated by the NFI Itself - (my emphasis). Secondly, that the 50% threshhold use by the NFI had not been properly validated. This threshold was argued by Dr Sijen would eliminate the false positives identification for brain tissue overall. Dr Vennerman referred alsonto the lack of stability of RNA compared to DNA.
In Para [17] the Judge referred to a book written by NZ Scientist Dr Sandiford. From the text 'Forensic Science and the Law' - 'that unless a DNA result is taken from an obvious body fluid stain such as a bloodstain, a question may be raised as to what cells contributed to the DNA profile.'
She continued 'This is because even though a DNA profile from a swab of a skin surface, the DNA itself cannot on its own indicate the cells from which the DNA was extracted and profiled. This is important where small amounts of DNA have been detected and DNA profiles obtained.'
That no doubt for E France J was very instrumental to clearer understanding of the issues in her dissenting decision which I am sure will be referred to many times in the future. She did the critical homework.
Later from the Judgement. 'Oxygen typing with RNA analysis is relatively new, used in about 10 cases forensically. Evidence before us is that 2 labs use RNA testing being the NFI and ESR NZ. No evidence as to use by ESR in testing. Dr Sandiford reports ESR use it to distinguish between body fluids.'
[52] Limited peer review and publication - 5 articles of which only 1 dealt with RNA profiling for oxygen tissues - in which the authors explained that the process was complicated when little cell material was present. RNA has emerged as a sensitive human specific method for the simultaneous inference of several body fluids and cells.
Continues: RNA molecules less stable tha DNA molecules. E France decided from the single article, and other contributions of data, that the technique, while 'promising' was still experimental in terms of its application forensically.
[56] Dr Sijen accepted that no international standards had been set for RNA profiling.
[58] RNA organ typing can't be said to be generally accepted in its use in forensic cases.
[59] The brainplex method has never been undertaken before in a forensic context. Only validated by the NFI itself. Dr Vennerman and Dr Sijens both of unquestioned expertise disagree on the process.
[60] E France disagrees withi Kos's view that the process was 'hard science' and that the retesting of samples could prove results wrong. - overlooking (IMO as the writer commenting) that any result that might be disproved 'later' does not establish the reliability of the testing procedure. What will it mean in 20 years for Lundy if the unreliability of the testing is proved.
Harrison and French in their majority decision in the same COA Judgement.
at [78] Morgan (the prosecutor) emphasized that the stain was located on the interior bicep of Lundy's shirt. My comment, what apparent value is that?? :Later they agree with Kos at [82] where they express some expected comfort from the benefit to the Jury of forensic evidence 'expressed in cautious and conservative terms.
How 'cautions and conservative terms' overcomes intelligible science to a reasonably informed Jury threatens belief. In refusing to consider evidence of one scientist Professor Busten the court said that it would not be ideal for itself to be hearing complicated scientific evidence effectively as a court of the first instance. I suppose that means the court was unable to follow complicate science without a guarantee of some sort that the argument would be cautious and conservative terms. I read a lot of crap, that would rate up there.
I shall finish shortly here in the hope I have not from my own confusion in reading this case confused others, with a little more from the Judges summing up in the trial and then of reflection of the COA dissenting Judgement.
In para [13] the Judge offered that an important witness Tupai could be criticized as uncertain when he gave evidence of seeing the Lundy homes conservatory door open before the time Lundy had allegedly left Wellington. I didn't read any criticism from him about the uncertainty of the unseen car trip, or indeed the multi headed forensic proof. In the same para the Judge said he didn't want to be seen as steering the Jury in way or the other, although he had just steered them away from what Tupai had said. An eye witness no less, not as close as Dr Teoh forensically, but right next door.
I think E France J, President of the Court of Appeal got it right in declaring it a draw in the forensic battle epitomised by the positions of Vennerman and Sijen and voting to disallow the shirt evidence which is on the one hand difficult to follow and on the other highly suspect for its lack of continuity of logical truth and proven procedure. Her referrals to the writings of Dr Sandiford uncovered that the exact known use by ESR NZ is for organ typing to distinquish body fluids indicating that wasn't practical support for the work of Dr Sijens. There are reasons to be concerned that Dr Sijens peer support is from the organisation NFI that she works for. One article explained the RNA profiling process was complicated when little cell material was available..mRNA has emerged as a sensitive, human specific method for simultaneous inference of several body fluids and cells. Fluids were dried out in the only sample that 'survived' into the hands of Dr Miller. Leaving one to think that Ellen France J has had the last word on what is known about RNA profiling. Her Judgement should perhaps have been considered by a higher Court before trial, or at least should be now.
We should not forget the evidence of Mrs Wichman of finding traces of animal CNS on Lundy's shirt, nor should we forget the 'curiosity' that Kos J identified about the 75% sea of un-testable specimens and the lone 'specially handled' survivor.
For a quick look as to whether the Jury were able to absorb the detail of the forensic sea it is noted they returned to ask at least one question. A question that directs what they grappled with. They wanted to see the Lundy interview tape again, a very telling example of what influenced them. On that tape parts of it were redacted by request from the Crown, parts which clearly showed that police had formally believed in what Hislop said was the broken promise they gave the Jury in the first trial. The Jury should have seen all of that tape, where Lundy was being yelled at for events claimed by police at the time but which were later abandoned - just as this case should have been.
Once again, happy to receive any correspondence on this. I freely admit that I must not have the intelligence of the average Jury member as according to the view of the majority decision of the COA. By their question it looks like the Jury struggled as I have to assemble the rafts of scientific detail in order. As a practical person, I prefer the good sense of Dr Teoh, the man who inadvertently sent Grantham off on a secret crusade and who returned with bluster and even more uncertainty. In a scientific world were samples have naturally deteriorated it seems only a fool ventures to use new science partly created from the gut instinct of a police officer half a world away.
A reliable record of the forensic contest was delivered E France J in her dissenting opinion. An opinion it would be interesting to see how the NZ Supreme Court or the Privy Council might view the Judgement. She clearly pointed out as important Para [38] Dr Vennermen watched the work of Dr Sijen of the Netherlands Forensic Institute. And commented that the NFI use of the 'brain plex' reaction (ie the method used to RNA) is novel and is only validated by the NFI Itself - (my emphasis). Secondly, that the 50% threshhold use by the NFI had not been properly validated. This threshold was argued by Dr Sijen would eliminate the false positives identification for brain tissue overall. Dr Vennerman referred alsonto the lack of stability of RNA compared to DNA.
In Para [17] the Judge referred to a book written by NZ Scientist Dr Sandiford. From the text 'Forensic Science and the Law' - 'that unless a DNA result is taken from an obvious body fluid stain such as a bloodstain, a question may be raised as to what cells contributed to the DNA profile.'
She continued 'This is because even though a DNA profile from a swab of a skin surface, the DNA itself cannot on its own indicate the cells from which the DNA was extracted and profiled. This is important where small amounts of DNA have been detected and DNA profiles obtained.'
That no doubt for E France J was very instrumental to clearer understanding of the issues in her dissenting decision which I am sure will be referred to many times in the future. She did the critical homework.
Later from the Judgement. 'Oxygen typing with RNA analysis is relatively new, used in about 10 cases forensically. Evidence before us is that 2 labs use RNA testing being the NFI and ESR NZ. No evidence as to use by ESR in testing. Dr Sandiford reports ESR use it to distinguish between body fluids.'
[52] Limited peer review and publication - 5 articles of which only 1 dealt with RNA profiling for oxygen tissues - in which the authors explained that the process was complicated when little cell material was present. RNA has emerged as a sensitive human specific method for the simultaneous inference of several body fluids and cells.
Continues: RNA molecules less stable tha DNA molecules. E France decided from the single article, and other contributions of data, that the technique, while 'promising' was still experimental in terms of its application forensically.
[56] Dr Sijen accepted that no international standards had been set for RNA profiling.
[58] RNA organ typing can't be said to be generally accepted in its use in forensic cases.
[59] The brainplex method has never been undertaken before in a forensic context. Only validated by the NFI itself. Dr Vennerman and Dr Sijens both of unquestioned expertise disagree on the process.
[60] E France disagrees withi Kos's view that the process was 'hard science' and that the retesting of samples could prove results wrong. - overlooking (IMO as the writer commenting) that any result that might be disproved 'later' does not establish the reliability of the testing procedure. What will it mean in 20 years for Lundy if the unreliability of the testing is proved.
Harrison and French in their majority decision in the same COA Judgement.
at [78] Morgan (the prosecutor) emphasized that the stain was located on the interior bicep of Lundy's shirt. My comment, what apparent value is that?? :Later they agree with Kos at [82] where they express some expected comfort from the benefit to the Jury of forensic evidence 'expressed in cautious and conservative terms.
How 'cautions and conservative terms' overcomes intelligible science to a reasonably informed Jury threatens belief. In refusing to consider evidence of one scientist Professor Busten the court said that it would not be ideal for itself to be hearing complicated scientific evidence effectively as a court of the first instance. I suppose that means the court was unable to follow complicate science without a guarantee of some sort that the argument would be cautious and conservative terms. I read a lot of crap, that would rate up there.
I shall finish shortly here in the hope I have not from my own confusion in reading this case confused others, with a little more from the Judges summing up in the trial and then of reflection of the COA dissenting Judgement.
In para [13] the Judge offered that an important witness Tupai could be criticized as uncertain when he gave evidence of seeing the Lundy homes conservatory door open before the time Lundy had allegedly left Wellington. I didn't read any criticism from him about the uncertainty of the unseen car trip, or indeed the multi headed forensic proof. In the same para the Judge said he didn't want to be seen as steering the Jury in way or the other, although he had just steered them away from what Tupai had said. An eye witness no less, not as close as Dr Teoh forensically, but right next door.
I think E France J, President of the Court of Appeal got it right in declaring it a draw in the forensic battle epitomised by the positions of Vennerman and Sijen and voting to disallow the shirt evidence which is on the one hand difficult to follow and on the other highly suspect for its lack of continuity of logical truth and proven procedure. Her referrals to the writings of Dr Sandiford uncovered that the exact known use by ESR NZ is for organ typing to distinquish body fluids indicating that wasn't practical support for the work of Dr Sijens. There are reasons to be concerned that Dr Sijens peer support is from the organisation NFI that she works for. One article explained the RNA profiling process was complicated when little cell material was available..mRNA has emerged as a sensitive, human specific method for simultaneous inference of several body fluids and cells. Fluids were dried out in the only sample that 'survived' into the hands of Dr Miller. Leaving one to think that Ellen France J has had the last word on what is known about RNA profiling. Her Judgement should perhaps have been considered by a higher Court before trial, or at least should be now.
We should not forget the evidence of Mrs Wichman of finding traces of animal CNS on Lundy's shirt, nor should we forget the 'curiosity' that Kos J identified about the 75% sea of un-testable specimens and the lone 'specially handled' survivor.
For a quick look as to whether the Jury were able to absorb the detail of the forensic sea it is noted they returned to ask at least one question. A question that directs what they grappled with. They wanted to see the Lundy interview tape again, a very telling example of what influenced them. On that tape parts of it were redacted by request from the Crown, parts which clearly showed that police had formally believed in what Hislop said was the broken promise they gave the Jury in the first trial. The Jury should have seen all of that tape, where Lundy was being yelled at for events claimed by police at the time but which were later abandoned - just as this case should have been.
Once again, happy to receive any correspondence on this. I freely admit that I must not have the intelligence of the average Jury member as according to the view of the majority decision of the COA. By their question it looks like the Jury struggled as I have to assemble the rafts of scientific detail in order. As a practical person, I prefer the good sense of Dr Teoh, the man who inadvertently sent Grantham off on a secret crusade and who returned with bluster and even more uncertainty. In a scientific world were samples have naturally deteriorated it seems only a fool ventures to use new science partly created from the gut instinct of a police officer half a world away.
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