Tuesday, March 22, 2016

Why it looks like Lundy got framed.

That the police changed their story is only 1 thing.

In assembling a list there look like two sources of information that give a clue as to why Lundy may have been framed. The first is the evidence and conduct of the officer in charge of the case Grantham, the 2nd is what the Courts have had to say about the retrial.

There is only 1 key issue, Lundy's shirt said to have either his wife's brain matter on it, or spinal cord matter from an animal arriving there from a food splash. There is no proven motive for Lundy, there are no sightings of him having been at his family home on either the evening or early morning in which it is known his wife Christine and young daughter Amber were killed. He was confirmed to have been in Wellington. There was no evidence found at the scene which link Lundy to the killings. He was not a violent man and there are no reports of any domestic situation between Lundy and his wife that was untoward. Not a single witness anticipated that there were problems within the family other than of a type facing any ordinary family.

So it is the shirt that matters. Matters from the time when if was confiscated from Lundy and matters to this day. Everything surrounding the shirt is still accessible to testing, whether Lundy has the resources to do that, or if funding could be provided by Legal Aid that shirt needs \more testing.

Proceeding towards his retrial, and on late brief the Crown gave notice that it was going to change it's allegations after 14 years of sticking to them like glue. Essentially, 90% of the original Crown scenario was gone or changed, an unprecedented situation in NZ and perhaps even the world. What remained was the shirt, bolstered by supporting evidence of a test procedure only used a handful of times in the millions of cases where defendants have been prosecuted world wide for murder since 2001. In short a novel system to bolster a finding heavily criticised by the Privy Council who ordered that Lundy's first conviction be set aside while leaving the decision of any retrial to rest with the NZ prosecution authorities. At that point the Court was introduced as the second or responding voice to the first source, the testing of and handling of Lundy's shirt.

The Court was asked to ruled the new supporting evidence of the original tests on Lundy's shirt as inadmissible. Here is the time to make the point that the Courts were never asked to consider the conduct of Grantham in respect of the way he handled the shirt, or secondly if Grantham had samples of Christine's brain released to him before he took the shirt overseas for testing. That testing, following  the refusal of any New Zealand scientist to test the shirt because, at least in part, that the original pathologist Dr Teoh, who when examining the shirt said that the material was too down graded to put a man's life at risk by trial. Here is the time to mention that 2 other deposits of Christine's brain found on a phone and table mat hours after the killing were also too down graded to be tested. Brain and stem cell material rapidly deteriorates outside the body, I do not know if the two samples found in the house were tested for neurons or not but of the 2 almost invisible spots on Lundy's shirt examined months later resulted in mixed results, 1 was too far gone to enable reliable testing (just like the 2 found in the house) the other tested, according to Miller, as being human brain matter - but which had no neurons. Every part of the human brain had neurons in greater number in  the outer hemisphere reducing toward the centre, even the lesser neuron capture in the middle brain tests in the millions for neurons - but somehow Miller's miracle sample, the only survivor had none at all. The defence had evidence which was essentially that the stains had tested for animal brain cell material, splattered animal fat from cooking.

This is where the understanding of why Lundy is convicted becomes incredulous. The single evidence against him, the shirt, is a changing mystery. It was never handled properly, was rejected as suitable test material at the outset and got taken to Texas. Before the officer in charge of the case took the shirt to Texas he first of all handled it in a way outside the rules of the police manual. He wrote to the ESR before he left for Texas asking for samples of Christine's brain but has apparently denied being the person who was provided the samples. Surely if a man is faced with going to prison for life, the sanctity of carefully handled material according to the rules is foremost - the very least required is the careful handling of exhibits by members of the police and analyzing scientists employed.

Grantham gave evidence that he put the shirt in special custody because he didn't want Lundy to find out about the spots on the shirt. This beggars belief. First of all there is no way Lundy was going to find out any details about the shirt until he was charged and reached Court for depositions. Police do not reveal evidence to suspects other than deliberately in order to get comment from the suspect or some kind of explanation. The tiny spots were not a secret, other police were not going to tell Lundy about them unless instructed to do so by Grantham - his comments, and handling of the shirt makes no sense but do cause concern. As does the question as to why Grantham 'searched the world' to find somebody who would test the shirt that NZ Scientists would not. Why did Grantham have confidence in Miller who was not a forensic scientist and had no practicing licence as a forensic scientist or an approved Laboratory - a man who presumably would not be allowed to give evidence on such matters in his own country? What ever answers are given to those questions they cannot genuinely dispel the concerns offered by Dr Teoh, or the equally worrying miracle of the single surviving specimen that had 'lost' its neurons.

Back to the second source creating both doubt and concern in this case: includes the Judgement by Justice Kos as to the admissibility or inadmissibility of Miller's evidence he said that it was a 'curiosity' that a single sample had survived, that it was a 'curiosity but nothing more than that.' I would agree that it doesn't look as though Kos was asked to consider whether ot nor it was also a curiosity that the officer in charge of the case had handled the surviving sample in a manner outside the instruction manual, that he had ignored local professional advice by those qualified to give such opinions and instead had gone fishing for another 'expert' of less professional standing to discover the miracle that only Grantham appeared to know existed in spots roughly the size of grains of salt (pause here to consider when looked at on the shirt compared to when looked at on a slide the alleged same material from the same source was unrecognizable in its second situation compared to his first - it's appearance had changed,) - one could think that surely the status of the evidence was more than a curiosity but rather a reason for alarm. It also doesn't appear that Kos knew about samples of brain being released to some person before Grantham's trip to Kansas, or indeed about letters requesting such samples. He should have been told if he wasn't. Such information may have or should have built the curiosity to the point where the evidence should have been disallowed. Not least because of it's late arrival in the piece, why Lundy's lawyers didn't seek the opportunity for a delay in order to provide time for further research must have been a marginal call - perhaps they did not know all the details that time since has provided.

What Lundy's lawyers did do was appeal the Kos decision to the Court of Appeal where in a minority Judgement by France E, the president of that Court, rejected the evidence in a Judgement of astounding clarity compared to the shorter majority Judgements which to my mind provided no answers to the 'curiosity,' the lack of status of Miller in this field of forensics or indeed the rejection of Teoh of the samples - which incidentally where withheld from the first Jury by one person - yes, Grantham. Where ever there is irregularity in the handling of Lundy's shirt or information about it comes back to 1 man. It appears no argument was raised by the defence concerning the handling of the shirt but the President of the Court of Appeal appears to have clearly understood, from what evidence before her, that the shirt evidence was not admissible.

The 3rd leg of Judicial input goes to the trial where from memory the trial Judge France J made no comment on the Kos observation of a 'curiosity' between live and dead specimens. France J when commenting about the conflicting evidence regarding the shirt was not permitted to disclose to the Jury the very important factor that the President of the COA had rejected the evidence. All that evidence was temporarily suppressed. Why a Jury were not entitled to the comfort of knowing that if they considered the evidence suspect (without even knowing about the odd handling of the specimens) then no less than the President of the COA had found it wanting.

The average person on a Jury is possibly unable to understand all the technicalities of the forensics in the Lundy retrial, but what they could have understood, and which imo they should have been told was the OIC had handled the exhibit in a non specified way, also that there were claims other slides had been released to him before he went to meet Miller. If a reader asks why a Jury should have been given that information then there is a simple answer which the Courts and Prosecution overlook unless it raised by the Defence. It's understandable that the Prosecution prefer that route (suppression) because it is obvious it weakens their case, but why France J left it aside is of concern. This observation is not directed at France J specifically even though in this specific case it could be seen as important that the Jury were not told all the relevants facts about the controversial evidence, that it was hidden is a blight on Lundy's conviction. I'll give one example why.

When convictions are eventually overturned on the grounds of a miscarriage of Justice in NZ, at least in recent years it has been by the Privy Council. This is true of Lundy, Bain and Pora. These cases are looked at in isolation, it appears nothing is learnt from them and others following on the same path can easily fall prey to Miscarriages of Justice because the Judiciary take no stand on it, in fact appear compliant. Thus the reason why Joe Karam ensured that the Jury in the Bain retrial knew about the conduct of ex detective sergeant Milton Weir who like Grantham hid evidence from the first jury, acted outside the protocols of the manual and misled a Jury. Whether that should have been left up to the Judge to decide in the Bain retrial was not left to chance, Karam ensured that the retrial Jury knew about the way Weir had acted before the first trial and during the trial. Here is a relevant time to compare what Weir admitted doing compared to what we know of Grantham's actions.

Weir searched a crime scene after hours even though his role was an a exhibit officer.
Grantham assumed the role of exhibit officer in terms of a single piece of evidence, although it was not his job.
Weir was told before the first trial that glasses said to belong to David were actually his mothers. Weir was told by a witness that he, the witness, had been mistaken and the glasses actually belonged to Margaret Bain. Weir told the witness he would have that put in evidence but never did. In fact Weir sat silent despite the Jury returning to ask about the ownership of the glassesk because David Bain had truthfully denied they were his.
Similarly Grantham was told by Dr Teoh that the samples on the shirt, like the samples on the phone and the table mat were too down graded to be reliable, but Grantham never told either the Court or the Jury that information in Lundy's trial. He sat silent as the reliability of the shirt evidence was gauged.

So the similarities: both men stepped outside their designated roles, both men held silent on vital information at the first respective trials. The courts in both situations, indeed the prosecuting authorities brought no charges against either man. In the Bain retrial however Karam made sure the 2nd Jury knew. In Lundy the 2nd Jury did not know because the Defence, the Crown or Judge did not raise it - there was no impeachment on Grantham for hiding material facts from the first trial. Additionally in the Lundy retrial Kos's comment about the curiosity of the brain matter samples was not mentioned to the Jury and the views of the President of the COA as to the admissibility of the forensic evidence were kept secret. Fair, in all the circumstances? Absolutely not. Have the Courts got their heads in the sand over such matters? Yes. The small light shining in the distance is that an ex Minister of Police charged under the Electoral Act had charges thrown out because evidence had been with held. A small step for progress but not for Lundy. In the case of the ex MP there was a prima facie case against him and he had been convicted, without the special miracle evidence of Miller there was no evidence against Lundy of note.

I include here the considered thoughts of 2 men who were involved in the Amanda Knox case to enlarge upon that shirt evidence.

charlie_wilkes wrote:

The Lundy case represents a challenge, but also an extraordinary opportunity. It should be possible to test substances other than brain tissue - like sausage residue - using Miller's technique. If a scientist could show that other substances will react and produce slides like the ones used to convict Lundy, the substantive case against Lundy would evaporate. The court would be under immense pressure to overturn the conviction. Would the prosecution then attempt a third trial, with the "brain tissue" evidence off the table? I doubt it.

I have discussed this with (withheld). It would be a complex and expensive project. I think someone should do it. Lundy's defense team was not up against a redneck with a dog that can be discredited with a simple test. They had to contend with a claim based on experimental research, performed by a medical doctor. No defense team can possibly address such a claim without a huge budget. A jury cannot be expected to evaluate the quality of such evidence. 

Miller needs to be debunked. The repercussions of doing so could extend far beyond Lundy. This case could be a big deal. It could help the criminal justice system recognize that forensic evidence must be regulated and vetted before it ever gets to a courtroom.

charlie_wilkes wrote:

You'd have to look at the details of his test. He extracted gunk smeared on Lundy's shirt and subjected it to a specialized staining test designed for medical diagnostic purposes in narrow, specific conditions. Lo and behold, it stained the same as CNS tissue. So it must be CNS tissue, eh? That was his scientific conclusion.

Then, in preparation for the re-trial, he took known human CNS tissue, smeared it on a shirt, did the same test and got the same result. This is his proof that it works, i.e., a positive control.

What no one has done - what has to be done - is a series of negative controls to ascertain whether this test would react to something other than CNS tissue, like a food stain from cooking sausage.

The presence of pig and cow DNA in this putative specimen of brain tissue, as confirmed by a university lab in California, suggests the likely result of such an assay...

Name withheld wrote:

(...)


With respect to Dr. Miller, he is very dismissive of criticism, and the technique he used was designed for a non-forensic purpose. His lab may have been the source of some female DNA found on the shirt. He publicly indicated his belief in Mr. Lundy's guilt. Deciding whether or not someone is guilty is the job of the CJ system: being the voice of the data is the job of the forensic scientist. I think that crowd sourcing some funding for the testing that Charlie suggests might be a good way to proceed.

In all reality it looks like Lundy got framed - twice.

2 comments:

  1. The forensic testing of the shirt was outsourced at least twice, from independent international sources. Doesnt that bring in jurisdictional issues with evidence mishandling, especially when those sources are not embedded in the justice system? I am curious as to how the shirt became the prime source of evidence, from what was reported from the crime scene as a butchery (may they rest in peace), one speck of inconclusive brain or animal tissue was all that transferred onto the suspect? That is highly unlikely,even if the killer cleaned themselves up, they would have had residue or other bodily fluid or DNA particles on their personal effects, vehicles, tools etc. The crime scene cannot be revisited, as the house was resold several years later, where the justice system should have put that on an indefinite hold until the evidence was overwhelmingly substantial. A speck should be enough to place a person at a crime scene, but not enough to weigh the outcome of an entire life sentence.

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  2. Yes there are jurisdictional problems. There are also accreditation problems. The way the shirt stain was analysed was using immunohistochemistry which is not a forensic science but rather a method of sample testing known cells for disease. IHC has no place in forensic science in the world, apart from one case in NZ - Lundy. It has been cited only twice in 15 years and both times the use of it in forensic science failed.

    There is enough evidence from the crime scene to acquit Lundy and point at 2 unknown offenders who left foot and finger prints and DNA under the victim's nails.

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