Tuesday, January 31, 2017

Lundy: how the Courts got it wrong.

Mark Lundy's case is one of those that falls between the cracks of public interest. Yet it remains one of the worst Miscarriages of Justice still on the books of the NZ Justice system. It may be the lack of public interest that has kept curiosity silent in this case, or perhaps just the apparent complexity and the horror of a father allegedly killing his wife and child.

Old friend complexity is the tool of injustice, especially when used in the orthodox way of having weak evidence support weak evidence - the archaic idea of the justice and proof being 'like the strands of a rope, where if one thread is broken the evidence may still stand.' In NZ our Courts have distorted the strands of a rope theory into a vehicle for injustice, it happened in the Thomas case with a cartridge case, in Watson with 2 hairs, Bain with a glass lens, Pora with a false confession and there are others. What these cases demonstrate is where a case is dismantled over time to the point where a single strand of what was once a complete rope holds a highly suspect case together. It is beyond this blog to deal with the others mentioned here in detail, but briefly each of those became controversial cases with 'mountains' of evidence in support that diminished to fragile single threads holding the weight of a Miscarriage of Justice together. How has this happened in NZ, not once but many times? Poor Judicial oversight and reasoning, perhaps even compliance through ignorance or by a deliberate effort to not understand the fundamental aspect of how injustice thrives within the NZ Court system.

We have to start with the shirt spots found on Lundy's shirt which were said to brain matter from his wife Christine. Instead of just taking the narrow view that has sufficed for our COA so far, but which was rejected by the Privy Council - we will look for surrounding data that either supports or which fails to support the 2 spots being brain matter. This is something the NZ COA failed to do constructively, they looked at the 2 spots in isolation and didn't weigh their known history. In other words they opened the book part way through not having satisfied themselves of the safety of reading a story beginning part way through. In fact they assumed the either knew the beginning of the book or that it didn't matter. Of course the beginning does matter with forensic evidence, where it was found and how it was treated. One reason why that has happened is because police have still not disclosed the paperwork surrounding the number of inquiries police made for help from legitimate forensic sources throughout the world.

Brain matter deteriorates quickly outside the human body, rapidly in fact. Quite quickly it may no longer be recognizable for what it is, also be unable to be tested to determine what it is. In the Lundy house where police and scientists went within hours of the murders they found a horror house of blood spattered walls and the bodies of Christine and daughter Lundy both with severe head wounds, possibly caused by an axe or similar. They also found what was obviously brain matter which was already degraded. Common sense, indeed life experience tells us how meat or other perishable items decay, most noticeably on the surface first then eventually inwardly. So here it must be remembered the brain matter found at the scene was recognizable and even for the un-initiated it would have followed that it was brain because of the obvious area of the wounds. Head wounds, brain matter already deteriorating to exposure outside the body and excised from life.

Some distance away is Mark Lundy, later in the boot of his car will be found a shirt allegedly with invisible microscopic marks on the left breast of the shirt. That shirt will eventually be taken from ML and stored as a potential exhibit. It will be the only exhibit item not given to the exhibits officer of the case, something he will later say had never happened before his police career. Eventually, a forensic Scientist Dr Teoh will be asked his opinion on the 2 spots. He will say that the 2 spots are too downgraded to be tested, this is days or weeks after the murders. Teoh will also comment in his report that no man should ever be convicted using such suspect 'evidence.' The officer in charge of the case Grantham will return the shirt to a safe which could be described as a incubator for further deterioration. So the shirt has never been in safe custody to that point and will remain that way even after Grantham is notified of the deterioration and must surely have understood one of the most commonly known facts that biological matter deteriorates from the outside to its centre when openly exposed to air, and of course temperature. Every test lab in NZ controls human body samples in a temperature controlled environment, but that didn't bother Grantham who would later taken the sample in a plastic bag on a 14 hour journey to the States for an unqualified American medical doctor with absolutely no forensic testing qualifications, or approval to test such potentially human samples - to test in his unapproved laboratory set up to detect potential cancerous cells from known sources.

So this is the beginning. The protocol of a safe custody chain for evidence was broken by the officer in charge, he also kept a slide sample lifted from the shirt and known brain matter taken from the scene. It could be argued he retained a tool kit of  prospective evidence which would deteriorate whilst in his care. He was advised by a specialist that he should send the samples to an FBI lab or similar who had experience in handling and identifying potential central nervous system material . Material which will ultimately be found to have no neurons and only a few glial cells. An estimate from the size of the stain lifted from the shirt was somewhere between the size of a grain of sand and grain of rice, genuine central nervous cell tissue equivalent to this size should have contained approx 700,000 neurons and 7 million glial cells, along with 50 million red blood cells. That is the starting point, what should be expected to have been on the slide if it was central nervous tissue. So this is step 2, the sample is inconsistent with being cns on 3 counts, 100s of thousands of neurons missing along with millions of glial cells and red blood cells. It cannot be tested in any Forensic Laboratory in the world because it presents without the fundamental certainties that it may be cns, no forensic scientist will touch it. Already we have 2 errors that our Courts have been willing to overlook. The pattern is set, prevarication, something the police will thrive upon, getting away with breaking a safe custody chain, ignoring specialist advice, ignoring what they know - the sample is missing millions of neurons, glials and red blood cells. Looked at another way their sample has a few what may potentially be glial cells but contains nothing which indicates that it is cns, even before that time the sample was not treated as required by the police manual for the handling of exhibits. Best practice, NZ standards and international standards are broken something which does not have the biological consistency in 3 important markers or indicators as to cns is being advanced, a car driving the wrong way in motorway traffic, a house attempting to be build from the roof down, a disaster unfolding and the Courts saying and doing nothing.

Next the American expert Dr Miller, without forensic qualifications or experience. In fact a tester for antigens and antibodies from known samples, liver, brain, bowel etc taken from known patients thought to be suffering cancer. In NZ this happens in Medlab, is common, possibly 1000s of tests per week, millions worldwide. Known samples looking for antigens and antibodies in order to help make a diagnosis. When Miller's evidence comes to NZ it is accepted by the Courts without concern that he is not qualified as a forensic scientist, not licensed to do so and operates from a similarly unlicensed for forensic testing lab, furthermore he is prevented by Law to give forensic evidence in his own country such is the observance to safe custody chains there. The only man that will do the test isn't a scientist and yet the NZ Courts accept his evidence, not once but twice.

On the second occasion the President of the Court of Appeal dissents in a  Judgement to allow Miller's evidence and he gives evidence a 2nd time, a chance to fly an aeroplane for which he has neither a pilot's license of the expertise. He has no charts for the sky's in which he will fly but he at least knows that the Court supports all the short cuts which have allowed him the opportunity to give evidence on something of which he is neither an expert nor qualified, a man's life is in his hands and Justice for his wife and child rests with a person whose status as a witness in his own country is zero. The trap is set.

I don't think I need to go further at this point on details. The injustice of the Lundy case is already exhibited here. Our Courts have been complicit in another injustice, they have turned a blind eye to broken rules, forensic procedures and testing, failed to comprehend that a body sample, if genuine cannot be missing millions of its natural parts and yet somehow be treated as a whole. The Courts have not been able to distinguish that when the roasting tray was taken from the oven that the lamb leg, or beef cut is not present and are ready to dine on a roast without its main ingredients, no matter that the person who cooked the roast was blind and that the oven had no power - The Court is blind itself to the injustice here it enables. They don't cast their own safety aside, in fact it is certain they would not accept a charlatan testing cells from themselves or loved ones for antigens or antibodies from a sample that may have come from anywhere.

In the last year I've had the opportunity to meet an advocate for Mark Lundy, Geoff Levick. It was from his unpublished book 'Lundy The Missing Pieces' from where I have taken some of the information used here. I have also corresponded with Professor Michael Horowitz of Adelaide University, an expert in many fields including diabetes and gastric emptying who has stated by times of death of Christine and Amber that Lundy is innocent, also Professor Chris Halkides a biochemist. Both who have either followed or given evidence in the Lundy case, have scores of publish peer reviewed papers and who are at the top of their respective fields. All 3 agree that Miller's evidence is a travesty of justice, bereft of meaningful content with no place in a Court room. Who is right? Going by the surrounding facts attending Miller's evidence ignored by NZ Courts, the handling of the shirt sample, even the consideration given to it's testing by someone without the expertise or qualifications - its the 3 men, not just because they have demonstrated their understanding of what it was claimed Miller could do with his testing, but because they know. like all the certified forensic laboratories worldwide contact by Palmerston North police that if it were even a horse race the Miller horse would never have got past the track scrutineers, not only did Miller not have a horse to begin with, he didn't have a horse blanket or even a picture of one.

Important footnote.

Almost 2 years after Mark Lundy was retried, and nearly 2 decades since the deaths of Christine and Amber, NZ police continue to refuse to release of the complete file to ML, and in particular all those forensic laboratories, forensic testers and organisations, none of whom would test the samples, replies to requests by police for help. Without doubt in those 'secret files,' police won't release, is information likely to prove not only that ML is innocent but that our Courts were absolutely wrong to use untested 'science' in order to convict a man who had no other real evidence against him. How can ML hope to appeal when evidence helpful to him is hidden? Only with some honesty from the authorities, also by the Courts returning to planet earth and ordering that the files be disclosed - even if only for their own information to see how badly they got it wrong.

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