Sunday, May 15, 2016

Let Lundy go.- he's innocent.

At the outset of this blog piece I must apologise to Dr Pang the Pathologist in the Lundy case. I have been scathing in exploitation of his reliance on smell at autopsy and now admit I have been quite wrong to ignore the very nature of autopsy procedures, the investigation in every facet of the entering a body, searching, observing and measuring is critical for both scientific and forensic purposes. I now endorse part of Dr Pang's evidence which I have  previously mocked him on line for - his reliance on the greatest computer or diagnostic tool of all - the use of human reasoning and faculties and senses to record observations.

In the context of retrials in Murder cases in NZ, at least in the last 2 major retrials Lundy and Bain,
where the Crown have felt the need to 'change' aspects of their forensic case they employ scientists or pathologists for example to review the work of their witness from the first trial.

To prove murder in the Bain case the Crown needed to get the rifle which killed Robin as far away from his temple as possible when the fatal shot was fired into Robin's brain. They did this by calling at least 2 additional Forensic Pathologists to review the work and findings of the original Pathologist Dr Dempster. Dempster was the man who examined Robin's body first hand and noted the soot wound to his temple, the down side of the wound where the barrel touched the temple and the upside of the wound where more gas and soot escaped in an upward direction. The Crown needed to get the rifle barrel as far from contact as possible in order to disprove suicide and prove murder. Without rehashing the details here, such a task was impossible because of the soot surrounding the wound, from the moment soot leaves the barrel with other debris it spreads, the further the distance the greater the spread. The 2 specialists brought in tried to convince Dempster that he was wrong in his finding encouraging him to give similar evidence to theirs that the barrel was some distance from temple even if the soot samples photograph around the wound said otherwise. The 2 experts failed miserably and so after did the whole case.

The soot to the temple of Robin Bain matches to 2 similar situations in the evidence in Lundy. Firstly a tiny speck that reached Lundy's shirt in isolation from a blast of escaping blood, according to the Crown, which came from the shattered skulls of either Lundy's wife or young daughter Amber. I've written about the improbability of that before so it's the second situation that I have read to become more familiar with. That is, the Time of Death (TOD) of the 2 deceased. It seems so bewildering and obviously wrong  that when reading about it I expect at some point to close to where I am reading where all would be revealed and the sinister stupidity of the TOD in the Lundy case - changed between trials by 8 or so hours will be supported by strong evidence. I still can't find it. But here goes a lay persons trip through what evidence I have available to read concerning a TOD that shifted from 7pm in the evening to after 3 the next morning. I reference throughout the narrative a 2013 paper which I have previously published 2 blogs below, includes photos of stomach contents of deceased whose TOD was known along with when they had consumed their last meal. The paper studied and reported on 100 cases.

Starting with the original pathologists at the first trial Dr Pang whose methods were criticised at the Privy Council and whose finding contributed toward the PC deciding to quash Lundy's first conviction, then a reviewer of his work Dr Sage who disagreed with Pang's first trial testimony just about completely but leant weight to the possibility that the TODs had occurred not at 7pm but rather at 3 or after the next morning. Thirdly, and more briefly, a defence expert Dr Horowitz, who didn't agree that the death could have been at 3am, ie eight hours after the last meal was consumed. Dr Horowitz was comfortable to offer a time of death reliant on known factors and an estimated that at 800 kilocalories in the stomach would emptying at 4 kilocalories a minute - after digestion began. He gave a maximum lag time, that is the period of time a full meal is in the stomach before it begins to digest as 2 hours, but reasonably a lot less. Pang in the first trial said 30 minutes lag time. Horowitz pointed out that fluids leave the stomach first then solids are reduced in the digestion process. He said hours before stomach was empty. On the basis of eating at 6 to 6.30 the stomachs should have been empty, but on the Crown's case at 3am the next morning - digestion had not even begun. How Lundy can be convicted is beyond reason. However, to push on.

I confirm 2 personal positions at the outset and will return to that at the end.

The first, offered by a researcher, that the stomach contents at 7pm (the original fixed TOD) in the evening can not have been the same at 3am the next morning (the reviewed, new TOD.)

The second, is that the first TOD was near to the actual TOD of around 11pm or earlier, and that 3am was too late to even be realistically practical on the known facts and the paper I shall refer to as the 2013 paper which is not guesswork but recorded known events. Why I say earlier is that there is doubt about the computer turn off time and who turned it off. It must be remembered the Crown claimed that the computer had been tampered with by Lundy to show an incorrect computer time. The computer was in the hands of Kleintjies who gave incorrect evidence on times on the switch on of the Bain computer - he had one fixed point, guessed another and brought it to a point which suited the Crown. He is no expert, his work in 2 cases has been a sham. Added to that we don't know who killed the Lundy's and therefore assuming that the computer was turned off by Christine is not a fixed point.

Starting with Pang's first reports on the stomach contents of the dead mother and daughter. Here is if not word exact very close:

The same for both ie

'No free fluid present in stomach, there is a large meal consisting of chips and probably fish. No obvious signs of digestion. No smell of gatric fluids.'

In all that has been written, said in evidence - Pang's description above is uncontested. In fact it is backed up 2 police officer present during the autopsies and it remains a major fault in the Crown case.

Pang recorded from his autopsy that the duodenum's were both empty, meaning as his report states, that digestion had not started. The duodenum is the first part of the small bowel.

When Sage gave evidence he criticised Pang for not having recorded core body temperatures of the bodies, also for not testing limb movement so as to estimate the onset of rigor mortis. Sage has a history of over 9000 autopsies. He was a 'star' of the show. When giving  evidence on the procedure of cutting into the duodenum he said that unlike Pang his procedure contained closing off the duodenum in order that there was no chance of material escaping into the stomach without observation. He used the opportunity to speak to take the Jury through a professional approach to undertaking the role of pathologist in a murder scene. It was all a bit pushed. He was not answering questions but rather projecting his own experience over that of Pang. Accordingly, if the self-promoting narrative was taken into account, his opinion and the critical control over his procedures was therefore superior to Dr Pang pathology procedure.

Reverting to Bain for a moment, there was a repeat of pathologists reviewing the Crown's case in order to support it, exactly as Sage was doing in Lundy. The Crown attempt to change a case they had stuck with for over a dozen years, bolster it with opinions that were deemed not necessary in the first trials but seen to necessary in the 2nd. A procedure by which they seek to side-line to some extent their previous star witnsses and indeed their own cases if you think about it.

Sage could certainly waffle on about his own importance. At one point in cross examination he even began explaining the Law. What he didn't and couldn't do was shake Pang's, and the 2 police (Detectives, Oram and Cullen) who attended the autopsy, initial confirmation of the stomach contents and visual description of them. If you refer here to the 2013 Indian paper, along with the percentage of probabilities of the condition of the stomach contents over a number of known cases those descriptions needed to be in, at least, the catagory 2 descriptions where stomach contents were 'mashed' (my word) in partial to full digestion and presenting as a goo of some type and certainly not identifiable in the way Pang was able to do.

Where Sage did cross lines against Pang was in a critical area, or  I should say, attempted to cross lines with Pang, that was regarding the duodenum examination. Sage said that when he performed his procedure he sutured off the duodenum in order that no internal matter escaped, he was saying that he obviously removed a section and opens it above a receptacle so as to carefully note any contents. Although Sage didn't perform the autopsy in the Lundy case, the different procedure he used allowed him to criticise the 'open' method Pang used of cutting into the duodenum to observe the contents presumably in situ.

According to the new Crown case, and the version, given by Sage, Pang's procedure may have failed to give an accurate position as to whether digestion had started, not once but twice: that is in both individual autopsies. So a point overlooked by the Crown for 15 years or so, something they were clearly happy with, suddenly was incorrect or at least 'may' have been not once, but twice. At no point in presumably the whole of Pang's pathology career had any audit or oversight of his work criticised his inspection of  the duodenum during autopsy. No doubt he had given evidence in many trials including, presumably, murder trials. Then why in the Lundy case? Only 1 reason because they had to shift the deaths forward approx 8 hours. Must remember here that Sage provided only a qualified 'may' in criticism, no more positive than that. However, whatever Sage said does not overcome the photos and findings of the 2013 Indian report, less than 2 years old at the time of the retrial, and which has photographic records showing stomach contents before and during the digestion process. Those photos show in clear definition that the stomach contents of Amber were not digested, that they were still recognizable and confirm the opinion of Pang that digestion had not begun. Pang's opinion was not guess work because he opened both duodenum and saw that no stomach contents (waste) had entered there. That was good for the Crown when they wanted a 7pm TODs but it didn't suit 3am TOD's so they put Sage on Pang's shoulder, fair enough - but how could Sage even justifying a criticism of method shift the TOD, he couldn't. He couldn't because he had not opened the duodenums or seen what was inside. Maybe each of the duodenums were photographed, it seems that of course they would have been - but remember the authorities threw out those photographs in what I consider was an abuse (one of many in this case) of due process.

To recap on my apology above about a pathologist using his own senses in observing the processes during post mortem and to refer again to Pang's initial reports on the contents of both stomachs.  He also said no smell of 'gastric ,' which I now accept as legitimate. Part of the reason for that acceptance is from the evidence of Sage. When asked about gastric smells during autopsy, those smells of course becoming the third supporting plank used by Pang, Sage gave a remarkable answer with bullcrap all over it. He said he only smelt for alcohol. I take that as an authority that smelling is legitimate at least both for Pang and Sage and the NZ Crown when recording autopsy data. Again, to repeat this endorses Pang's initial statements that digestion had not begun for at least 3 reasons.

Solid recognisable food with no free fluid present in stomach.
No transfer into the duodenum.
No smell of gastric acids.

For all his highly paid educational tour for the Jury and Court, Sage was unable to shake any of those observations made at the time of the autopsy. He was able to say 'may' about the possible reverse transfer from the duodenums but without casting doubt on solid recognizable food with no free fluid present or the presence of smell he effectively had not changed any facts supporting the TODs, only offered a presumption that would only effect 1 of 4 confirming factors (the 4th of course being the lack of free fluids with describing the solid recognizable food.)

Before going a little further into what Sage said and didn't say. His credibility took a big dent for me when he said he only smelt for alcohol. Any person alive and breathing knows that if you walk into a garden only intending to smell the roses when a smell of fresh cow dung filters through from behind a nearby belt of trees behind which cattle craze - then you smell that no matter how much you might only which to smell the roses. By this stupid comment, reducing the Court and Jury to idiot like status, that smells are not recognizable one from the other to human senses Sage convinced this observer that Sage has a constant recognizable smell in his nostrils and it is bullshit.

Having 9000 autopsies behind him had not given Sage, from his evidence in the retrial anyway, to explain how many cases there were peer reviewed that had resulted in leakage back from duodenum of a deceased person found at autopsy. He then might have been able to explain, because he was all for explaining things even the Law which is not his profession, why the procedure had not been modified in instructions from the Governing authority which overlooks best practice for autopsy. Or indeed how in this case it had flown under the radar until he happened along. More so, I didn't read at any point how he compared the accepted facts, full stomach, no free fluid etc, smell with his proposition that something 'may' have happened which could have only resulted if digestation had started. His evidence on this was borderline to the extreme and didn't support a 3am TOD because at best one unknown factor among 4 cannot outweigh the others which all pointed to Pang being right in his observation of the duodenums, and not least earlier TOD before 3am, even before 11pm.

Jumping to back to Harowitz for a moment, when he was asked about the incisions into the duodenums and the expected result - no doubt in order to either support Pang for Sage, he returned with a question as to how deep the cuts had been. He said he needed to know that before he commented. This of course brings in a full range of other questions that were not disclosed or answered in the Courts, such as:

What situations can or do duodenums reverse flow back into the stomach.
Can such a thing happen in either a living or dead person.
Under what circumstances is it recorded that any such flow happens or may happen.
After violent death and the trauma surrounding it, is there impact on the duodenum whether it is full, partly full or empty which might affect a change (emptying) after or during death.
And of course other things, not least of which would be if, having present all the other signs of non digestions as described by Pang - would A/reverse flow render the physical evidence into the stomach contents or B/ have anyway changed an appreciation that physical signs showed no digestion had begun, including smell of course, and now perhaps very importantly thanks to Sage.

On that last point Horowitz was willing to accept all the physical signs and go with a time when the stomachs would have been empty by - after midnight.

Sage's 'may' was far from qualified. Something I think it was important for the Judge to tell the Jury.

Additionally all of the above should have been compared to the findings of the 2013 paper which on the face it show that Pang was right about digestion and desperately wrong about TOD. His evidence, but more particularly the Court and the Jury would have benefited immeasurably in having the opportunity to know that the stomach contents in this case precluded to a high degree, in comparison to a paper that studied times of last know meals, times of death and concluded for all money that the contents of stomachs of the deceased in this case had they been killed at 3am would have either been empty or presented as unregonizable for definition as particular food - such as fries, potato chips, fish as is the case here.

Something else it was important for the Judge to tell the Jury was to differentiate between the non contested list of injuries to the 2 victims and the TODs. One was not controversial while the was and remains. The non controversial injury list precise and accurate as it appeared to be did not lend any credibility to Pang's shifting times of death. The Jury could accept without question the injuries but needed to cautiously warned about the times of death, right down I consider to what the Crown had said in the first trial with supporting witnesses who were suddenly gone because their evidence would have acquitted Lundy in the retrial - with a special note that the defence had only been given 2 weeks to respond to a late shift in the Crown's position 2 years in the making and kept silent from the defence. I'm not sure the Judge had his mind around this question, he asked from the bench how to pronounce duodenum, a sure sign that he wasn't conversant with digestion. If he didn't know how could the Jury reasonably follow.

All of this is unacceptable in a trial for a man's life before adding to it the following where it gets worse.

Stepping back from what Sage and Pang say in particular, because they are the advocates for  TOD change to fit at 3am in the morning – we have the sole photo of some items taken from Christine’s stomach which are dramatically opposed to the photos in the 2013 paper at any point following a period within a few hours of eating. Looking at those photos and at a closer meaning as to the known time of eating and an contested statement by Pang and 2 police officers of undigested stomach contents we suddenly can extrapolate a completely new, and patently wrong, extension of Pang and Sage’s shift of deaths time.

If the stomach contents are still undigested and recognizable in the stomach of someone who ate 9 hours earlier, as the Crown contended, in other words not semi digested, but still recognizable in the way Pang described  - then there is no scientific study which shows that undigested foods after a 9 hour period since eating would still not have been fully  digested a further  9 hours later- despite any chance of some small amount of digested matter back transferring to the stomach because the deceased are found on their backs or later laid on their backs for removal from the scene. That is an unprecedented estimated minimum 18 hours for full digestion.  I note here the equally important information of whether the duodenum contracts after death in all cases following violent death or remains open to potentially back transfer is not included in anything I have read from the Pathologists at the Lundy trial or in the closing address from the Judge - most importantly not from Sage with all his autopsy experience. The Crown are saying that Christine and Amber, on at least this  1 occasion, would have taken 18 hours to fully digest their food – but that proposition has no study papers in support. That figure is preposterous,  there is no study provided which shows digestion delayed by 9 hours suddenly increases from the point of stomach contents being recognizable at nine hours when less than half way through an alleged digestion process.

If I can later attach the evidence of Horowitz here I will. His evidence was classic. He would not accept times or facts without evidence. He repeated again and again until it became quite simple to understand the digestion process. He excluded stress as being relevant in this case to a change in digestion times, he accepted that because 2 stomachs were being dealt with the conclusions could ve made more accurately from Pang's contents descriptions. Horowitz was able to explain that is no difference in the speed of digestion of fatty foods compared to less fatty foods that it is only that the former empties more slowly than carbs or protein because of the greater number of calories. How is evidence was overlooked is unbelievable, along with the 2013 Indian paper had it been produced, even a reluctant Jury would have acquitted Lundy for simply being in Wellington when his family were killed. So it all comes back to a song sung by the prosecution in their closing, a mantra of bewitching those lost in the facts 'that no man has the right to have his wife's brain on his shirt.' A chorus of distortion which the Judge having heard the evidence should have stopped, because he knew the 'brain on shirt' was contentious and that 1 American called by the Crown said it had faint traces of animal central nervous system material.

Before closing here, I ask any reader to consider how joints of wood come apart when the glue is dry, that paint falls off walls when it becomes dry but the Crown in this dried out case want the public to believe that central nervous system material less than a millimeter thick and dried out by some miracle still stuck to a shirt. Think about that along with the stomach contents at the same time.

1 comment:

  1. Oh yi yi, simple observations by a couple of pathologists within hours of these grisly crimes eliminate family members who 22 years on still fight to recover their status as citizens with nil criminal record. Truly amazing, but the wheels of justice grind fine as well as slow.
    The hall of infamy in these cases is to be well described and populated.
    Are any of you listening?