Thursday, December 26, 2019

All roads for Mark Lundy head to Texas and back to London's Privy Council

All roads for Mark Lundy head to Texas and back to London's Privy Council

New Zealand Courts can't deal with the Lundy case just as they could not deal with the Thomas, Watson, Tamihere, Pora, Haig and Maney cases. Small town complex, need to support the police? You decide.

A popular view of the Law in Texas may have been for years symbolised as 'hang em high.' But that view internationally is changing. The arch-villain in the Lundy case is a Texas IHC clinician Dr Rodney Miller who cooked up all the controversy in the Lundy case. The Mark Lundy case is identified by many as relying on 'junk science.' But what is not widely appreciated is that it wasn't only questionable science but the entire process that led to its use, there is nothing about its use that does not ring an alarm. Both the NZ Court of Appeal (COA) and the Supreme Court (SC) refused to hear arguments against its validity relying on new evidence since the Lundy retrial, after which they used the IHC to uphold the conviction. That should be cause for concern for every New Zealander whatever their opinion on the Lundy case might be. Lundy was not given fair appeals and whilst every New Zealander has the right to a fair trial, Lundy has never had one free of controversial science, and never has he been successful at any appeal here. The right to a fair trial is implicitly also the right to a fair appeal,

But let's consider the Texas connection to the Lundy case. First of all, when what was supposed to be fragile central nervous system tissue (CNS) found on Lundy's shirt, it wasn't recognized as being such but for some reason the shirt instead of being placed in the custody of the exhibits officer with every other exhibit, it was put into the safe of the officer in charge Grantham - who would later say he did that because he didn't want Lundy to find out about it. How Lundy was going to find out about the location of his own shirt, which he had freely admitted wearing, was never explained. That would result in the shirt traveling to a Texas with Gratham to Miller's lab. Despite worldwide literature saying their tests should never have taken place, they ‘proved’ the shirt had CNS (or perhaps something like it)in 2 microscopic spots. They didn’t do that with orthodox forensic science or anything anywhere near it.

The term 'forensic safety chain' is where evidence is kept safe from contamination, manipulation or deterioration.  As an example something like CNS, or suspected CNS would immediately be treated with formaldehyde or some similar product to prevent its deterioration for further deterioration because CNS immediately starts to degrade when its blood supply has stopped and contact with air is made. That stopping of deterioration is termed as ‘fixing’ or setting in place the condition of the specimen in order that it may be tested in as near its original ‘live’ condition as possible. In practical terms, the window to do that 'fixing' would be minutes rather than hours. The forensic safety chain was amok from the beginning and would never get on track - yet our Courts have continued to ignore that to the point of becoming impatient about it even after information came from Texas after the retrial that a stolen sample brain had been converted from its intended use to support retesting in the Lundy case. But that wasn't the first time Texas was raised in this case and will not be the last.

Here we go back to the beginning, well in fact 59 days after the Lundy shirt had been kept in Grantham's safe so that Lundy wouldn't find out about it. What you would think was the primary evidence had been overlooked. A cynic would say, however, that something that had happened in both the controversial cases of Arthur Allan Thomas and that of Scott Watson was happening again. Progress with the case wasn't being made and police needed evidence so the shirt got searched - or at least looked at by staff from the Environmental Science (and) Research (ESR). None could determine what 2 small stains were, some spoke of necrotic deterioration, some recorded notes to that effect (and later changed them), one, Dr. Teoh's opinion, was hidden - he said no man should be convicted on such deteriorated material. So right from the outset of the investigation if things had been bad, they had got worse and that would continue until long after the retrial.

To their credit, the ESR people said they could not test the shirt spots – that they were too far gone into deterioration. But 1 of those present, Temple Camp (who would later change his prognosis and be dropped as a witness after the 1st trial probably due to the vulnerability of his credibility) suggested a Dr. Miller, the Texas Pathologist mentioned earlier, with no forensic science experience. Grantham was desperate enough to use a trained monkey by then as there was other evidence in the case pointing away from Mark Lundy. That body of evidence is important and it is an absolute blight on the SC that they dismissed it with the simple comment 'not cogent'. We shall return to that evidence later and yes, its Texas connection to (fingernail) DNA exonerations a worldwide trend.

For 'cogency' as to the condition of the shirt material, we will take but 2 opinions (from many), 1 from a prosecution witness and a 2nd from a defence witness offered to the Privy Council as to the fragility of brain matter or CNS outside the body (noting again that when the NZ clinicians were looking at the shirt stain the alleged CNS had been out of the body for 59 days and not 'fixed' in formaldehyde:

Dr. Du Plessis for the Prosecution said at trial that brain tissue was one of the organs that start rotting most quickly or rapidly.

The evidence of Professor Sheard for the Defence before the Privy Council was that the subject specimens were poorly fixed and necrotic. Professor Sheard referred to research showing that brain proteins are subject to progressive degradation after they are removed from the body.

So the experts were in agreement to some extent. Here the case takes a twist. How could rapidly deteriorating CNS not be rotten after so long? The Crown experts, despite Du Plessis agreeing about degradation times. said that the shirt spots had been 'air-dried.' Most people would know that the month of August in New Zealand is deep winter - as cold and wet as it gets. Far from a suitable place to air-dry something outside a lab. So how did this material air-dry? No one can say short of it being speedily wiped on the shirt somehow or as it flew through the air. No effort was made to prove in the laboratory how it could have possibly air-dried. So the Jury was asked to buy into sheer nonsense that the Crown made no known attempt to prove the probability of.

Rather than troubling ourselves with that let's look at some literature and evidence given on the claim as to accidental smearing to enable air drying:

The Journal Endoscopic Ultrasound in 2014 “Preparation of Smeared Specimen” describes smearing as a well- crafted technique and one that should be performed by personnel who have the acquired skill to create a single layer of cells within a minimal to no distortion” The article notes that the significance of correct smearing cannot be over emphasised as smearing error leads to tissue lost, artefacts and interpretation difficulty.

So it is clear, the Crown alleges that Lundy was able to smear biological material onto a non-flat surface made of shirt fibre. If that could be believed as the Crown asked, then we are to assume that Lundy also had the necessary equipment to do so and took particular care in the preservation of material in a moist environment nowhere near a heat controlled lab.

So what really happens to allegedly air-dry samples for testing? The Journal of Cervical Cyteology 2000 says in relation to cell fixation that it creates critical problems.

“Immediate fixation of the cellular material, within seconds of specimen collection, is necessary to prevent air drying. Air drying obscures cellular detail and compromises specimen evaluation. Immersing the slide or spraying with fixative can prevent the problem.”

I don’t think that even the Supreme Court, who remember appear to have never even bothered to read the 65-page warning as to the use of IHC in a forensic setting, would believe that Lundy could have so easily achieved accidental air-drying as described above. But that claim had been before the Court and was in the trial transcript. Perhaps they just wished to avoid such information and keep Lundy’s case off the abysmal New Zealand record of wrongful convictions in major cases.

The Supreme Court needed to understand the perils of IHC and air-dried material before they used the Proviso supported by the IHC. Before upholding Lundy’s convictions and not ordering a retrial they may have more carefully read what the Privy Council considered on this from a Dr Whitwell who told that Court that the state of “preservation on the samples was extremely poor and that a diagnosis of its exact nature was impossible.”

Next, we go to Dako, the FDA approved the largest manufacture of the ‘stains’ or anti-bodies in the world to determine  the suitability of their product to be used on allegedly ‘air-dried’ material:

“……because the first steps of tissue handling arguably dictate the quality of the results, more than do any steps that follows.. necrotic degradation begins immediately once the tissue is separated from the source of nutrients, so the time to processing is often quite critical. For most IHC procedures, it is imperative that tissue not dry out."

We can see from this not only the improbability of the shirt stain air drying by itself or Mark Lundy somehow facilitating the process. But the literature is clear on the total undesirability and unsuitability of IHC testing on air-dried materials. So the implausible explanation forwarded by the Crown for dried out samples, in fact, did not solve a problem but created another – Dako says don’t use our product on air-dried biological matter.

So at this point, we are 4 steps along the way:
Critical evidence outside the forensic safety chain.
NZ specialists saying the material can’t be tested.
An explanation that degraded material was accidentally air-dried.
The manufacturer Dako saying don’t stain air-dried biological material with our product.

The next 2 steps encompass the correct stain being used on the alleged CNS. That is a stain specifically produced and approved for use with a specific tissue, brain, kidney or liver for example. Then the quantity of the dosage.

Before considering those steps here is a list as to why Miller should not have been doing forensic testing at all apart from his willingness to claim that anti-body stains were brain-specific when they were not, but also his increase of recommended dosages to achieve the readings he wanted. Simply if Miller was using a red dye in a basin full of water where it said 2 capfuls of dye was required to prove that the water was safe for some medical procedure where he had a required result in mind, he would simply keep adding more capfuls of dye until the colour changed. :

No forensic training or accreditation.
His lab did not have forensic accreditation and was not of a forensic standard.
He would not have been permitted to give his disputed evidence in Texas.
His record-keeping was poor.
His ‘assistant’ was the officer in charge of the case Grantham, just to dispel any thoughts of scientific impartiality which Miller no doubt had never heard of.
He wrote emails indicating his bias and ignored court directions not to discuss his evidence with prosecutors during breaks in his evidence. He did this by asking the prosecutors to ask him a particular question to lessen the impact of some evidence he gave.
He refused to co-operate with information requests.
Despite writing that he knew that the donor ‘bucket brain’ was donated for specific use as for scientific purposes he had no hesitation to do otherwise, therefore, violating statutory regulation.

Dr Miller makes no reference to occasions where he would change the dilutions rates from  those specified by the manufacturer. The GLAP (BioGENX){a stain} recommends a dilution rate of 1:100-200. Dr Miller used 1:6400. The manufacturer of NEFN recommends a dilution ration of 1:50-100. Dr Miller used 1:800. That in itself raises a concern that Dr Miller felt free to conduct a process approved solely by himself in order to enhance the prospects of achieving what he considered to be the desired results.

The 4 brain ‘specific’ stains used by Miller (All abridged for simplicity)

            Synaptophysin (Manufacturer Dako)

Dayle wrote: Monoclonal antibodies (SY 38) to synaptophysin have now localised it in  adrenal medullary cells, the paraganglia and the neuroendocrine cells of the gut, pancreas and, lung and pituitary.

Synaptophysin can be a valuable adjunct as a generic marker not only for neuroendocrine tumours.

The Dako datasheet confirms SYN stains for neuroendocrine cells (which have neurons or glial astrocytic cells from the CNS) and lists eight types of cell it will react with including gastrointestinal mucosa. Neither the brain nor CNS cells are mentioned. The data sheets specifically records ‘synaptophysin is not fully understood in terms of what proteins will exactly do.

S100 (manufacturer Lab Vision)

The manufacturer indicates that S-100 will stain positive for skin, melanomas and the paratext of lymph nodes for a variety of cells including paracortex of lymph nodes. SPC lacks specificity for CNS.

GFAP The journal of Neuroscience: Astrocytes: Biology and Pathology at 2209 states;

‘There is ample evidence that GFAP is not an exclusive marker of astrocytes…GFAP is expressed widely in many tissues by a variety of cell types.’

Neurofilament (NEFN manufacturer Dako)

According to the Human Protein Atlas website this protein is detected at low or medium expression levels in colon and soft tissue.

The manufacturers describe NEFN as labelling neuronal processes and peripheral nerves. It is not specific for CNS.

In short none of the brain, ‘specific’ markers were specific to the brain despite that is what the Jury was told in a very convincing way by the Crown. The Courts have allowed those fallacies to stand despite they would have been strongly considered by 2  Juries although completely false. The mention of glial cells and skin is particularly important. Animals like humans have a 2nd brain: the stomach brain which has glial cells as does the brain.     

Several observers of the tissue claim to have seen glial (also found in the brain as well as the stomach) and skin cells. That fits with animal DNA found in the DNA shirt wash, but again nothing supports the claims that Miller was using brain-specific markers. Our Courts have never dealt with that despite that it was before both the COA and SC but set aside.  One might wonder why that was so unfairly done. The only thing it achieved was the lie that IHC could be relied upon to uphold the convictions once the other junk science mRNA had been ditched – having done its job for the Crown and ensured Lundy was re-convicted.

Before closing on this very long post I will return to Texas wherein 2013, that state, passed a ‘Junk Science Law’. That was with considerable help from the Texas Innocence Project. From the Introduction.

“In the past decade or so, forensic science techniques have come under scrutiny, due to lack of nationwide laboratory standards, scarce research and methodology, incompetent and even unethical examiners, and overburdened laboratories. As a result, individuals and organisations, such as defence counsel, scientists, and the Innocence Project, have been advocating for reform not only within the discipline of forensic science but also within the justice system itself. Recognising the need for criminal justice reform, and continuing his mission to ‘bring about needed changes to the adult and juvenile criminal justice systems, in Feb 2013, Texas Senator, John Whitmore (Dem) authored Texas State Bill 344, allowing courts to grant convicted individuals habeas corpus relief based on faulty or discredited scientific evidence.’”

It goes on to speak about the ongoing tension between science and the courts and how the new law may provide insight into that conflict and the public’s understanding. Equally importantly it speaks about future-proofing the justice system. I take that meaning to include such persons as Miller, out to prove what those paying him wanted, ready to cut corners, break the law and lie to a Jury.

The Lundy case carries a vast overburden of deception and cutting of corners which our Courts appear to have turned a blind eye toward. NZ surely needs a ‘Junk Science Law’ or a Judiciary able to sort out the chaff from the wheat when police go shopping for evidence and find someone like Miller and ignore every corner he cuts – even appear to assist him in that.

But the Lundy case has a narrative of innocence that has been pushed off the page by junk science and lack of investigation by police. There is strong and compelling evidence of other offenders that the Supreme Court flicked away with the comment of ‘not cogent.’

For cogency in the Lundy case, we will look at the case of Lydell Grant who was last week exonerated for a murder he did not commit. DNA found under the nails of the victim was said by the state prosecutor’s science examiners to not exclude Mr. Grant. The Texas Innocence Project eventually got involved in the case, one of their first jobs was to retest the DNA. It found that not only was Mr. Grant excluded but the likely killer was identified. The District Attorney took the case over and within a short period arrested a man who confessed. Both Amber and Christine Lundy had the DNA of 2 unknown males under their nails, the police have never found those men and there is no record that the national database has ever been searched for a DNA match. The house was seen open late at night, unknown fingerprints were found – real evidence, not something dreamed up by the good Dr. Miller.

Friday, December 20, 2019

Supreme Court Fails In Lundy Case,

Today the Supreme Court rejected the appeal of Mark Lundy against the convictions for the deaths of his wife Christine and daughter Amber. In 140 paragraphs the Court either did not grasp the science of the case or chose to use support evidence which was not convincing.

The link to the decision can be found here:

It's a long read but I will summarise the main details and in some instances cite the paragraph.

Essentially the Court agrees with the Crown that material said to Central Nervous System (CNS) found in 2 spots on Lundy's was that of his wife. Not because the CNS tested for Christine's DNA but rather the shirt material around it did so. The Defence explained this by pointing out the error of only sampling shirt material around the spots (which although microscopice - the Court referred to as 'lumps'). No reason was offered why the lumps were not observed for some 54 days and why the shirt was never kept within the forensic safety chain afforded to all other exhibits. Instead the shirt was left in the safe of the Officer in Charge Grantham - who said he did not want Lundy to find out about it. He never explained how Lundy would have found out about it and what he could have possibly done anyway - such nonsense put this debacle of Justice afloat.

There is a scientific term for false appreciation of DNA called the DNA association fallacy which would apply if a shirt such as Lundy's was only tested in 2 spots rather than multiple spots to compare amounts of DNA found at each spot. In other words, in this case to show that Christine's DNA was only in the area of the spots and not elsewhere on the shirt. There is numerous scientific data on this which shows before a declaration can be made that DNA is in 'association' for example to only 2 spots on a shirt and not the shirt in entirety, other areas on the shirt must also be tested. Other papers describe the ready and common circumstance of spousal DNA found on partners clothing even after going through the wash. Apart from that the main point is that no DNA was found within the alleged CNS but rather in an elution wash used on the 2 shirt cut-outs, so no exclusion of DNA being over the entire shirt from co-habitation or transfer. Exclusion is a word you will read here again later. The Court framed that there was an inference that 'DNA evidence justified that the tissue was from Mrs Lundy's brain'. (para 10)

The Court referred to Lundy's first Trial where Defence conceded it was Christine's brain but that it was there by contamination because of the narrow time scope available to ML to have driven to his home in Palmerston North from Wellington, commit the murders, clean up and return. Note here that the Crown case has been fluid throughout - notably an exact time of death (TOD) in Trial 1 became an 'open' TOD at the retrial as being anytime between when mother and daughter were last seen alive until their bodies were discovered - some fifteen hours later. (para 15)

The Privy Council decision on this case some 60 odd pages from memory and exhaustive in it's detail was mentioned in only 1 para in the SC Judgement (para 17.) It's worth mentioning here that NZ Courts are yet to have acknowledged a Miscarriage of Justice in any of the major controversial murder convictions overturned in the last 40 years or so. Thomas was a Royal Pardon, Bain, Lundy and Pora all needed to go outside the Country to the Privy Council for remedy. Of those only Lundy has not been finally exonerated, along with Scott Watson whose case was rejected by the Privy Council but which was being prepared to return there when the late Greg King passed away. That case like that of Lundy's has significant issues with the science used, with both Lundy and Watson cases having at least 1 common ESR scientist who in both cases offered that word 'exclusion.'

(Para 18) records that Justice Kos at a hearing on the admissibility of a Junk Science mRNA noted that all witnesses agreed that the stained fabric agreed that the stained fabric (from the shirt) contained CNS tissue.  A lot different than all witnesses agreeing that stained fabric contained CNS tissue from Christine Lundy.

In (Para 90) The Court rejects that Christine may have sneezed mucus DNA onto exactly the same 2 places, Rather than explain the ridiculousness of the idea of 'onto exactly the same 2 spots' watch here:

In the same para the Courts speaks about the CNS being fresh enough to smear on a shirt without a probable and provable explanation why it was not deteriorated on contact with air as all other CNS found in the crime scene was. The following para (91) also on the shirt, confirms the soundness of the forensic safety chain without mentioning Grantham keeping the shirt outside the forensic safety chain, and not surrendering it to the exhibits officer who would evidence to say that in all his years in the police force that had never happened before. Remember Grantham was concerned that Lundy 'not find out about the shirt' - that he blinking well owned and told police he had been wearing.

Here comes that word 'excluded' in para (97); "Paint on tools found in the garage could not be excluded as coming from the same source as the orange paint on one of the fragments found on the bedroom and 4 of those taken from Mrs Lundy's body." Just this week an American Lydell Grant was freed pending a fresh examination of the case by a Texas District Attorney after retesting of Lydell's DNA which had been deemed to be unable to be 'excluded' as that being found under a murder victim's fingernails was retested by the Texas Innocence Project and found not only not to belong to Lydell,  but to match a known felon. "Not excluded" apparent in both the Lundy and Watson cases is fake and misleading evidence.

As for painted tools I think even children know that a mechanic's or dad's tools may have paint on the handles but never on the striking edge of a hammer or the blade of an axe.

Para (104) is an important para which displays illogical reasoning by the Court. "Killer must have been covered in blood and brain tissue left outside the master bedroom and the doorway and hall where Amber's body was found, suggesting that the killer shed exterior clothing before leaving the house." When in fact the killer or killers (remembering there was fingernail DNA found under both victims nails as in the case of Lydell Grant above) DNA of 2 unknown males was found under the nails of both Amber and Christine. The Court of Appeal offered that could have resulted from the pair shaking hands. Simply shake another person's hand to discover fingernails do not contact the other persons hands when shaking. That DNA came from persons police have never found, there is no evidence that police ever checked for matches on their data base or asked any of the 100 or so suspects to provide DNA. We have to ask why not. Just as we have to ask why Grantham, the man who hid the shirt, took back 21 hairs found in Christine's hands and 'lost them.'

In Para (126) where explaining an open ranch slider door noticed by a neighbour at the Lundy house around 11am shortly after Christine turned off her computer was of no moment: "It is more likely that Mrs Lundy had not yet shut the door before going to bed." That is she left the door open in the middle of winter, her husband away, until 11am at night with her young daughter sleeping alone in another room at a time where there had been recent burglaries in the neighbourhood.

Para (132) discusses motive. This where Mark, cold and calculating, takes advantage of Christine increasing their insurance cover from 200,000 to $500,000 and kills her and Amber. Good in theory but the increase had not taken effect on the 30th of August when the murders happened. And the alleged financial strife the couple were in needed to settled for $300,000. Other evidence would show that had the sale collapsed the vendor may well have sold at a better price, something that was later achieved

Para (134) excludes other offenders. That is despite the 2 unknown men not being found, or the donor of unknown fingerprints and footprints being located, the palm hairs ever being tested before they got 'lost.' And no DNA tests attempted from the fingerprints to match the DNA from the nails - or indeed the palm hairs conveniently lost.

Note that in Watson 2 hairs were found after around 6 searches. In Lundy hairs were found immediately and then lost - something can't be excluded from that.


Thursday, November 14, 2019

Meeting Mark Lundy

It’s hard to describe working at home to help a person you have never have met fight something you may come to believe is a wrongful conviction. There’s a risk in that, being wrong, exposed by lack of detachment and so on. But there is also another side, the genuine feeling of helping someone in a terrible situation. That work may begin with little more than a concern about a conviction – one that raises questions or doesn’t make to sense for a reason you may not at first be able to put your finger on.
What I’ve noticed from that in my experiences is that those men or women wrongfully convicted, despite what they’ve been through, or are going through, are often the kind of people that would give others a hand even if they weren’t like that before they were wrongfully convicted. There must be something about getting knocked down by a wrongful conviction that delivers a finer appreciation of looking out for others – well so it seems.
Friday I took an overnight trip to the centre of the North Island. I spent the night in the family home of 1 of Mark Lundy’s childhood friends in a part of New Zealand where some folks don’t lock the doors and strangers say hello in the streets. I got a glimpse at the reason why some of Mark’s friendships have held together, not just by one of his friends but by 2 of them and their families. Smart industrious people whose children are doing extraordinarily well as I feel certain would have been the case for Mark if 2 unknown men had not broken into his home and left their DNA and hair there along with a deep mystery which police have only scrapped the surface of.
A reader does not have to agree with me on that last sentence, but it is the reason rightly or wrongly I spent 100s of hours on the Lundy case followed by 1000s more once I believed he is innocent.
On Saturday morning like clockwork the 2nd friend arrived and I was a little late and delayed them on their 6.25am leaving time. I had gone deep into the night in the engine room of the Lundy supporters group – all paperwork was at hand with explanations and details. So was a strong debate on what the job was. One I’ve had before where I reject nailing the prime suspect using the DNA found at the scene. Finally a truce was made – Get Mark out of prison first. The debate would come up a few more times in the next 8 to 10 hours but more as something familiar, a little humorous but settled for now as to what I was doing.
At one point my host having said the previous evening they do not talk much about the case to Mark in order not to upset him said that I could ask him any questions I wanted at the visit. Not that I did really have any questions, I already knew a lot about the case particularly the improbability of forensic science said to hold the case together. I was curious about meeting Mark however, find out something about him other than what I read or seen in the news.
Marks 2nd friend drove. For at least the 1st hour nothing was mentioned about the case, for various reasons not excluding the desire not to excite another round on completing the investigation. I’ll give the 2 men factiousness names, the 1st Robert the 2nd Bill. They will probably read this so I must be accurate – Robert was determined, absolutely. Bill was a person for whom logic reined. They were old mates that poked fun at each other, not deterred by a relative stranger sitting in the car, trying to get a handle on them, how they thought and so on – no doubt just as they were doing with me. It was all safe talk in the beginning, about business, insurance and other such things until I brought up something about the case as I was switching my mind to realising if I did have any questions for Mark I had less than a hour to think about them.
It was then that I appreciated that Bill would not go down a rabbit hole as Robert might easily do on issues with the case – before climbing and shaking the dirt off. So they were a strong mix – ideas and logic at work, the good opposites that make progress. We arrived on time to the controlled entrance and carpark area before going through a higher security screen than I expected at minimum security before going through to meet Mark.
In person he is a big man who moves well. He doesn’t in anyway match the impressions given through the media. He is direct and engaging, a good speaker which made sense the strong support he had from his customers about his cheerfulness. At 60 he looked more than capable of doing a day’s work. He’s intelligent and insightful. Not that there was any reason to do so, but he clearly was not trying to make some impression on me – what you saw was what you got and he along with his 2 friends of over 50 years were soon jostling over the jokes they made about one another. That followed an exchange of hugs and in my case a warm shake of the hand.
I got to hear a lot about Mark’s short term plans toward parole, very well- reasoned. He would later say when discussing some men that we both knew that it was his impression that a lot of men that go to prison get in someway time locked as who they are by the age of when they were imprisoned. Although it wasn’t perhaps intended to be, I found it very insightful. I could see that Mark holds his own place in the prison, isn’t a pushover, but has his own mind – one that is focused on freedom. He did not once complain about his situation, not even a hint about what I imagine he must feel being in prison for nearly 20 years on junk science, so poor that it doesn’t even deserve the maligned label of junk science but something even worse.
After my debate with Robert over the possible outcome of Mark’s Supreme Court appeal I asked Mark what he thought. To my surprise he wasn’t either optimistic or bitter about it. He like Robert considered the Courts as mindful not to over rule lower Courts. This set off a big debate with Robert clearly enjoying the moment with an ally this time - Mark.
When that finished I asked what the plan was should the appeal fail. Mark quoted Jonathan Eaton, not regarding anything cynical about a prediction of the SC decision, but as to next steps if there was to be no retrial. I was happy with that. It showed a couple of things, most importantly that JE was in for the long-haul despite that I personally believe he is confident of a win at the SC, as I am. Secondly, because Christopher John Halkides and I are down the track on material to be used at a retrial or in the event of not winning at the SC. Mark has read a lot of that, and took some delight in speaking about the number of American exonerations that matched similar circumstances to his own case. In other words, I felt, he knew he was going to win if not in the short term – then later.
He went onto speak about how he is usually positive about any of the proceedings and how one of his family members is not, but at this point the family member is positive while he is not. I didn’t say so but I liked that.
At some point the conversation turned to prisoners with low iqs and how they fare in the criminal Justice system. Eventually in general conversation Mark revealed some of his experiences with men who had the iqs of 9 or 11 year olds and how he would write letters for them or guide them into work, understanding that the mentally challenged are more at ease with some sort of job to do. It will be a surprise that even in prisons, and even prisoners with a somewhat challenging public image can be functioning with kindness toward others left behind in the intellectual development.
I was surprised by this, but perhaps shouldn’t have been because some years ago I saw a video of Mark’s late father who made toys for children and stuck with his son. I’m always on about being objective and not subjective – but that video gave me a nudge about who Mark was, just as did a letter sometime back from Scott Watson who mentioned amongst other things making toys for kids and Christmas.
Scott and Mark know one another, I doubted that would ever be firm friends because their lives had been so different. At around 40 Mark was a businessman, already a carpenter, a father and husband who owned his own home. Scott on the other hand had just build a boat, was something of a rolling stone, had women in his life and was seriously considering sailing around the world. Neither man was to know that beast called injustice was about to lock onto them, neither could have been ready – but if Mark’s theory he volunteered by accident they were 15 years apart in life experience, one a few years into adulthood the other beginning middle-age when a man trap was set upon them. They may be more alike that they realise, in time if good overcomes bad, just the same - exonerated wrongly convicted men.

Wednesday, October 9, 2019

Gail Maney Imprisoned for not Lying

Gail Maney Imprisoned for not Lying?
Found the time to listen to the Pod Cast ‘Gone Fishing,’ all 8 parts – available from Radio New Zealand and put together by Amy Mass and Adam Dudding. Certainly, is a comprehensive Pod Cast if not completely searching.
Much to my surprise it wasn’t Gail’s situation and the role she was meant to have played in the death of Deane Fuller-Sandys that was the surprise, but the role of Stephen Stone. This was mainly the result of the complete doubt that Maney is guilty. Because the Crown case relies on the death of Deane in the garage of the home where Maney was living using very questionable witnesses (who told multiple stories), and the lack of hard evidence as to whether Gail had even met Stone before the death of Deane. Then there is evidence which always sounded like complete nonsense for a so called ‘hit.’ Stone showing off the body in a boot, also ‘forcing’ others at the scene to shoot Deane. Those aspects of the case are the fantasies of a mad man, we meet him a little later and his name is Franklin – the OIC of the inquiry.
Add to that, considering that Gail is meant to have ordered the ‘hit’, there is nary a word about how he was paid. No disrespect to Gail but people such as Stone described to be - very macho and dangerous tend to do their own thing and are not likely to be robotic, let alone ‘advertise’ their work. As with a lot of these sensational stories relying on shock and horror the little details do not line up or have the ring of reality to them. There are now also retractions from 3 of 4 of the main witnesses.
When the Court of Appeal (COA) dealt with the first of those from a woman name Tania Wilson, it said that she was an “unreliable witness”, which even in itself is something for a Jury – not the COA. The COA seem unable to consider at its worst Wilson admitted lying and at its best – exonerated Gail – in fact either version could result in a fresh jury finding Gail innocent. Our COA have a terrible record in terms of Miscarriages of Justice – off hand I can’t think of any of the major ones which the COA has overturned.
I think it is reasonable to doubt whether Deane was killed at all because of the lack of solid evidence and the unrealistic narrative of the key witnesses, none of whom gave a single narrative but rather keep changing what they had to say until Franklin felt he had put together a ‘complex’ case.
So, if I understand it correctly – if Stone did not kill Dean, then not only is Gail innocent but so must Stone be on the same evidence. There is an absolute dearth of evidence on 1 aspect of the case which was not dealt with in the Pod Casts or in the media that I have been able to find – which could be critical to Stone’s claim of innocence also for the death of Leah Stephens the 2nd person he was convicted of murdering.
This started off as a blog on the ridiculousness I saw in the police first going to Gail for help, and when she chose not to speak ended up being charged with murder. The ex-cop in charge of the case Franklin is forthright as to his opinion that if Gail had told police what they wanted to hear she would not have been charged, just like the 2 men who gave evidence (under immunity) and admitted raping and killing Leah as well as taking part in the shooting of Deane. I was unable to find it, but I seem to remember an Auckland police man named Franklin who was responsible for 3 Tongan girls going to prison for a robbery for which they were later cleared. Someone might know if it one and the same man?
Anyway, after that start on a narrow point of how police first tried to lure Gail as a witness only to later charge her with murder - the full ‘blast’ of the dangerousness and ridiculousness of the case against Gail became front and centre way beyond the simple but telling point – that Gail could have sung for her supper. Franklin putting together that scenario, that if she ‘gave the order’ (seems so stupid to repeat that nonsense) but didn’t believe Stone would do it, in other words prove the case against Stone – she would not have been in the dock.
How Franklin dealt with Maney was the same way he dealt with 2 men who admitted murder and didn’t spend a day in prison – but he seems not to comprehend the gravity of that talking on and on about the care he took and so on. Justice? No way.

Monday, September 30, 2019

Something laid bare about the Lundy murders.

In the States the FBI knew about the unreliability of 'hair comparison' tests long before they announced recognition of the problem along with how many wrongful convictions resulted - around a 93% failure. The world (but apparently not the NZ authorities) may have found out about that in the 2015 Obama P Cast, but the information was by then over 15 years old (but not for NZ testers), a time during which both Mark and Scott Watson were convicted.

That failure rate, its delayed announcement as a junk science is a very telling about the way police and prosecuting authorities have continued to use poor methods leading to false convictions long after the problem was identified. The Lundy case was within 2 years of that of Scott Watson where hair comparison evidence was the primary evidence - yet 22 years later no admission from ESR or the Crown as to its unreliability. In other words, Scott Watson remains in prison (where Lundy followed him 2 years later) on evidence that had a 93% failure rate.

In the Lundy murders the same type of hair evidence (but genuine crime scene evidence) was 'lost' because, on the face of it, the evidence would have shown the obvious. Not only did the hairs found in Christine Lundy's hands not belong to Mark Lundy but their DNA may well matched other DNA found at the scene - primarily under the fingernails of Christine and Amber. That DNA was discovered to be from 2 unknown males, yet there was other potential DNA available at the scene in the unknown fingerprints, also in other places around the home - particularly where the breakin occured,

That means that the person(s) responsible for the Lundy murders left their DNA and hairs in the house, evidence not investigated past the point that it meant that Mark Lundy was highly likely to be innocent if the mitochondrial DNA in the hairs in Christine's hands matched the DNA found under her and Amber Lundy's fingernails. Or even if it didn't match, because overseas cases now show that fingernail DNA not matching the convicted person, on its own, can result in exoneration.

Stripping all other detail from the Watson case - the 2 hairs said to be Olivia Hope's - did not come from her and the science proving that is known by both police and ESR. They have known that, just like in Lundy - for 2 decades. We can understand now why police went back to the Hope household for more sample hairs, we can also understand why the hairs found in Christine's hands were not tested - they were visibly able to be seen not to be Mark's - the man police had already decided was guilty.

At the recent Supreme Court hearing into the Lundy convictions Jonathan Eaton, QC for the defence, told the Court that when the Crown 'changed' the alleged time of death police never went back to suspects who had alibis for the earlier time of death - pointing out the extent of the unfairness in the way Mark Lundy has been treated, as we see similarly to Scott Watson whose Jury also heard a fantastic and unbelievable story but not the truth about the 2 hairs. Both stories supported by junk science and prison informants but not by properly gathered and tested DNA.

Saturday, September 7, 2019

Tide running out on the Lundy Convictions

Mark Lundy's recent appeal to the Supreme Court remains under deliberation. For anyone objective who attended the hearing there must be more doubt about Lundy's guilt than ever before. The 2 main points of the Appeal were whether the retrial had been unfair and secondly if the Proviso should have been exercised after certain scientific evidence was thrown out by the Court of Appeal (COA). The Proviso permits that notwithstanding that a trial may have been a Miscarriage of Justice, the court may decide to exercise the proviso of letting the verdict stand on the basis of 'inevitable guilt.'

The COA were satisfied that no miscarriage had taken place because of the association of Christine Lundy's DNA on Lundy's shirt near the contested spot of alleged human central nervous tissue (CNS.) In fact witnesses for both the Crown and defence had told the retrial Jury that the quantity or quality of DNA didn't not tell a specific story such as the COA held true. In fact a minor amount of DNA might indicate guilt whilst a large amount may not, the same issue goes to 'quality.' Unusual to say the least that the COA had not noted that witness evidence or indeed researched the matter themselves. Had they done so it seems they would have ordered a new trial for Mark Lundy.

The other point about a 'fair trial' putting endless legal argument aside is whether or not having heard evidence that the alleged CNS was more likely than not human had influenced the Jury. It would be naive to think it had not, it crossed the last bridge linking  Christine's DNA, CNS, human = murder.

The Supreme Court (SC) heard that the 'spot' did not contain Christine's DNA - a big problem for the Crown producing major doubt. For animal DNA to be found instead in the wash from the fabric surrounding the spot complicated 'guilt' even more. The SC heard of purchases of meat by Mark in the days before the killings. It also heard that there was no way of telling how long the spots had been on the shirt. Jonathan Eaton said that the weak signals of animal food chain DNA may have resulted from fatty tissue contact. In my opinion the weak signal is consistent with being the minority of DNA whilst Christine consistent with that of being the spouse. There were no animals in the Lundy household let alone animals considered part of the food chain.

That aside a lot of misinformation was remedied. Not in order here a few of things. Mark Lundy's tools were not used in the murders and the paint on the tools did not match the paint found on Christine. Furthermore Jonathan Eaton pointed out that there is not necessarily a connection between the attacker and the paint flakes because none were found on Amber. Furthermore he said that no one paints the blade on their tools an obvious point possibly not considered before. Phillip Morgan for the Crown had told the Court on day 2 that a witness Tupai was all over the place in his evidence and not sure the date when he saw the lights on a ranch slider open at the Lundy home at 11pm. The next morning he corrected that for the Court saying that the light on claim was confirmed by Tupai's phone bill but that he'd seen the lights on consecutive nights. Later Jonathan Eaton told the Court that it was recognized from the evidence that Christine was security conscious and it was unlikely she would have a door left open at 11pm. He followed that up by pointing out that at 11pm there was no doubt that Lundy was in Wellington.

Jonathan Eaton politely pushed over Morgan's 'theory' that because there was no sign of offenders moving about in the house that it must have therefore been Lundy - hardly logical at all. He also asked about the fingernail DNA of 2 male strangers found on the mother and daughter's hands, the untested 21 hairs found in Christine's hands along with the 40 fibres none of which matched Lundy's shirt or clothing, the lack of blood in his car and so on and the stupidity about the jewellery box being taken into ML's car covered in blood.

So the law was interesting regarding what a fair trial is, and when the proviso might fairly be used. Overall, it's hard to argue that ML has ever had a fair trial - there has always controversial or hidden evidence. However the best thing to emerge was the real narrative as to why Mark Lundy looks completely innocent - including that when the Crown tried to prove their 2 trip theory and fuel consumption they relied on manufacturer's fuel consumption specs. Which reminds me that the COA would not consider fuel consumption figures arising from tests on a race track, saying that a race track and street roads don't compare - clearly the COA had not read the details in the file that Mark was clocked at speeds of 140 to 180 ks per hour on his madcap home to his family managing to average 100ks per hour.

The truth is seeping out.

Friday, August 23, 2019

Lundy at Supreme Court.

The basics of what I know of Lundy at The Supreme Court appeal next week.

The test for the Lundy case at the Supreme Court (SC) is whether guilt is inevitable after some junk science was thrown out by the Court of Appeal (COA) which the Crown relied upon to gain a conviction at retrial - but since claim it wasn't necessary after fighting all the way to the SC for its admission and used for the damning closing lines 'no man has the right to have his wife's brain on his shirt.' The Crown's prolonged arguments for the admission of the discarded evidence was noted by the SC at the leave to appeal hearing compared to the Crown's position that the evidence was of no significance.
For the Crown other non forensic science, never used in any Court worldwide before the Lundy trial or since, is said to prove the 'inevitable' guilt. It becomes an important hearing after defence counsel say that the COA got DNA evidence wrong - if interested google DNA on a spouse's clothing. A critical feature is now that the alleged Central Nervous Tissue (CNS) is known to contain animal DNA from the food chain and none of Christine's DNA.
What may emerge more clearly for the 1st time is not only a breakin (police say was staged), a neighbour seeing a ranch slider open at around 11am on a cold winter's night (police say doesn't matter - despite being near the time when Christine turned her computer off, previously said to have been 'manipulated' by Lundy in evidence since discarded), untested (lost) hairs found in Christine's hands along with fibres unmatched to any clothing owned by Lundy, there were also fingerprints found in the area of the breakin unable to be matched to any person who had visited the home in the previous 3 months, unknown DNA of 2 males found under the nails of both Christine and Amber but none of ML's. There was no attempt as far as I know to link DNA from the prints, to that of mystery hairs (Lundy provided his own hair as a sample and did not match), or to that of the fingernail DNA.
The 2 men have never been found to be discounted from blame despite that mother and daughter's movements were well known to police with last contact outside the home a around 6pm at a McDonald drive through where no physical contact was likely to have been made. As far as I know the McDonald staffer was never tested as the potential point of transfer, it would be unlikely that mother or daughter would have touched him let alone scratch him in some way.
Multiple peer reviewed papers show that fingernail DNA lasts approx 6 hours under the fingernails as the hands are used, washed etc. The Crown now say (conveniently one could say) that time of death was around 3am where as previously they said it was 7pm the previous evening.
By sheer 'coincidence' both those times (the earlier with a big unrealistic push, the reason for the Crown to abandon it along with a woman who claimed to have seen Lundy running away from the house in the evening dressed as woman) happen to be times when possibly Lundy could have been in Palmerston North.
The original slide taken from the shirt stain was unable to be tested because of degradation, but apparently some of the 'same' matter on the shirt was, found to contain animal DNA but none of CL's. The discarded science was said to by a narrow margin prove that the DNA was human - the crown had 'wanted' it be proved as being not only human (certainly not animal) but also female. A reasonable person might be concerned that 2 biological samples said to be from the same source would not match, 1 being said to be rotten and the other somewhat magically preserved, and that a biological sample would not contain the DNA of it's owner.
With that evidence (and enormous amount more) Jonathan Eaton QC will argue that Lundy's guilt is not inevitable and the COA should have ordered a retrial after discarding the junk science mRNA. There is also some significant concern about the Texas quasi Scientist which the COA would not hear, but which perhaps the SC will. That material, provided by an Attorney of the American Supreme Court, is more significant than what the Jury heard from one forensic scientist that the Texas lab was dirty and not operating to the standards required for forensic testing accreditation.

Friday, August 16, 2019

Time for a change to false imprisonment by design in New Zealand

Follows details of efforts made in the States to even out a false imprisonment rate of around 4%. Like NZ, people of colour, no doubt along with those from the lower socioeconomic stream, the less educated and the mentally unwell, all get the rough end of the stick in cases of false imprisonment. Fortunately in NZ the 'plea bargaining' is benign compared to the States where 18% of the innocent plead guilty. Something which can only happen because of pressure from police and prosecutors. These figures transposed onto the incarcerated in NZ would mean around 400 persons falsely imprisoned for all crimes. Not just the controversial murder cases that become well known here

We still have nothing of this type of initiative happening in NZ and the Criminal Conviction Review process, once implemented, won't be as active as police and prosecutors are in certain American states at sorting out false imprisonment. It needs to be remembered that false imprisonment is not accidental. It wasn't in the Thomas case or any of the others. It was deliberate and no one in authority paid a price for that. They got away with it without even a slap on the hand.

Saturday, July 27, 2019

A Joe Parker v Ruiz fight number 2?

Andy Ruiz roughed up Anthony Joshua big time, the shorter man was right in Joshua's face with no stepping back. Joshua beat Joe Parker on points. Joe didn't let go in the way Ruiz did against Joshua, Parker talked about that after the fight the fight he had with Joshua, now we see what may have been.

Immediately on Ruiz beating Joshua,  Parker's stocks grew bigtime. The guy with no quit doesn't like to lose, that's what he took to Joshua - the written off underdog was going to bite. I think any such match between Andy and Joe is likely, Ruiz will want to show Parker the canvas to avenge his loss and Parker will want to do the same because of the feeling the fight was close, but maybe a hometown decision.  Parker is unfinished business for Ruiz. They need to fight.

Sunday, July 14, 2019

The biggest mistakes in the Scott Watson case?

The few police and Crown officials that it increasingly looks like that framed Scott Watson made 1 obvious mistake - planting (or accidentally mixing up to rephrase it to a nicety) 2 blond hairs rather than 'find' some short brown hairs as well that could or did belong to Ben. Why? because no realistic thought was given to the scepticism that would attach to 2 hairs 1x15cm long, and the other 25cm long, not being found despite up 6 or 7 searches including specific searches of Scott's boat the Blade itself by ESR technicians. That was after police had searched themselves. One of the later searches in the lab was removing each hair from a blanket off the blade with tweezers, the concentration that requires would readily reveal recognition of 2 long blond hairs among 400 hairs much shorter dark hairs. It wasn't zombies at work but a scientist and technician working on an important case.

The seizure warrant of the Blade indicated the search was for bodies or body parts, exactly the right sort of language to ensure a warrant. After which followed the parade of the Blade towed through the town and port of Picton, creating strong symbolism, a couple missing and a local boat seized - for many of the public and some of the press it may have been considered as game set and match. Just where the details of 'bodys and body parts' emerged from is unknown, but it was sworn in the documents so must have a source to be legal - a situation I understand that has not been explained satisfactorily. It could have simply been police making it up, or 1 of the many undercovers working the area at the time being told that by an informant. Whatever the situation was it became the first strike against Scott Watson in a case which would always lack evidence, need prison narks, media propaganda, dodgy science and a co-operative Court to gain convictions.

Those 2 hairs as readers know, are according to police, the Crown, and at least 1 previous Minister of Justice the glue that 'holds the case' against Scott together. Those 1st searches of the Blade (whether or not the warrant details were believed to be authentic or not, I'd say not) were for blood, hairs, any other sign of the missing couple, or a murder scene. 21 years later nothing - except recognition of 1 big mistake - few people can believe with any certainty that the 2 hairs could survive their secrecy for so many searches only to be magically found together at the same time some 3 months after the couple's disappearance.

People have asked before, the excellent question what about Ben's hair? The excuse I have read was apparently the cost of testing, an unfortunate truth that Justice in New Zealand can rely on cost - something which can result in shortcuts. Shortcuts in this case by design, a single hair from Ben - without a pedigree of multiple failed searches as was required for the 2 hairs alleged, but never proven to be Olivia's, could have satisfied public doubt - at least in the short term until the nagging truth of a suspect ketch, the couple being seen alive on another boat after they were alleged to be dead set in, as it inevitably has.

So we are not considering that Scott is guilty because on the hair evidence he is not, the 2 hairs prove that independently along with information yet to be made public, although each point alone proves Scott's innocence. They also prove 1 mistake. If police were fitting up Scott deliberately or 'mistakenly,' 2 hairs backed up by the proof of a hair or hairs with Ben's nuclear or mitochondrial DNA intact, would have at least provided less concern after the 'mystery ketch' debacle. A human sheds between a 100 to 150 hairs per day, in a fight for their life they are likely to lose more hair as well. One of the police theories inadvertently helps reveal the 'mistake' - the Blade not arriving at Eerie Bay until the evening of New Years day and therefore having allegedly sailed to the Cook Strait and back quicker than a speed boat could. That theory needs to ignore that no screams were heard aboard the Blade where it was moored in the Furneaux Inlet, also for the couple to board unseen, no voices of the couple heard talking as they boarded or later in the cabin, but nevertheless alive on the Blade when it left its mooring and not protesting the departure around 7.30am. A man intent on kidnap or murder would not anchor anywhere near other boats let alone raft up to 2 boats with people on board, chat with the skipper of 1 before later the next morning go aboard hoping for a further drink. Nor would the couple, sensing a change in the purpose of their 'host,' co-operate by being silent. They would have made noise and lots of it,  knowing others on the boats next to them would have heard. Ben was a big man and Olivia was feisty, but we are asked to believe they were co-operating in their own peril. Considering all that was true for a minute, that meant that up to 20 hairs or more from both Ben and Olivia would have been on the Blade and easy to find in such a small area.

So discovery of Ben's hairs, that must have inevitably been on the Blade if the police theory is right, was a certainty and in fact not a big job at all. There was animal hair on the blanket and therefore in the 2 bags where the hairs were carefully put into an environment that ensured their contamination, something no scientist or technician would do to evidence, but would do with hairs which were already eliminated as being from Ben or Olivia. That was the purpose of the blanket search, a confirmation of the searches for hairs on the Blade showing no potential hairs belonging to Olivia,  the reason all the hairs were put together and not collected in the way in which evidentiary hairs would be gathered 2 years later in the Lundy case where the position of each hair taken from Christine Lundy's hands was shown in a drawing, before being placed in a separate evidence tissue for later examination -  investigators knew they would more likely than not have been the offender(s). No, in Watson they went straight into 2 bags after being taken carefully off the blanket by 2 ESR staff in essentially what was at the time considered to be the final confirmatory search that Ben and Olivia had not been aboard. Let's not pretend those staff were untrained, working in isolation and not involved in the Watson inquiry because they were, and they found no blond hairs leading to the logical explanation that if none of Olivia's, easier to find hairs were there, then there were none of Ben's as well. A stupid if possibly deliberate mistake.

Thinking about this further. Search of the boat by ESR for hairs and blood or body fluids, nothing found, but blanket taken for further search just in case. Further search completed by 2 technicians uplifting each individual hair off the blanket - confirming the results of the boat search - a double or triple check (if including police searches), but no hairs belonging to Olivia. Probably a logical step at the outset when a search was going on for a suspect ketch, with 100s of people reporting sighting it, some saying they saw Olivia and Ben aboard, arms tied behind their backs before the investigation fatally turned. We don't have the complete details of the blanket search either aboard the Blade, or in the lab, other than what those that did the searches said in evidence, there was no video recording as there would not be the day Vintiner 'found' 2 blond hairs at a time she had other blond hairs in the lab from the family home of Olivia, controvening accreditation rules. What we do know is that during the blanket search, hairs could have been easily processed into order, animal hair removed, then hair sorted by colour under microscope for finer detail - that's what would have happened if 2 blond hairs had been seen either on the blanket or on the Blade, it was critical evidence. Remember when the 2 hairs were found months after the crimes, they were immediately separated not put back in the bags to be looked at later.

Vintiner gave evidence for hours, a lot about her experience in what is now considered to be junk science 'hair comparison' methods. But 'hair comparison' does have a place in forensic science, if the victim had blond hair then sort blond hair out without mixing, short brown hair, dark or black hair and so on - do the same for further testing. One thing we know in abundance is that a lot of evidence was hidden in the Watson case, statements destroyed and altered, job sheets gone so it is a natural step to consider that is also likely with the 'hair searches.' The hair search on the Blade was well recorded with hairs of interest properly and separately gathered noting where they were found, that has not been hidden but the truth of that has never been properly acknowledged for its indication of what motivated the later searches. Vintener would claim she was busy as the reason it took weeks to search again, too busy to deal with the crime of the decade? No, it was a clear indication as to what happened in the Lab, the smoke and mirrors from which 2 hairs suddenly appeared when the investigation needed them. Just like the Crewe garden bed yielding a bullet shell after it had already been searched, and the room of David Bain producing a glass lens after it had been searched only to be found late at night by a detective not tasked with searching.

There were no blond hairs ever seen on the Blade by scientists and police, or on the blanket search by scientists in the lab where all the hairs were lifted individually with tweezers, or in the later of the first of 2 searches of 2 bags of hairs taken from the same blanket and treated without concern for contamination - because none were Olivia's, and if Olivia's were not there then neither were Bens. And that may be the biggest mistake in the Watson case, the belief that eventually the public would not see that the police and ESR had tricked a Jury not only by police accepting the impossibility of the 2 hairs not being seen in multiple searches but would compensate natural doubt of that with witnesses who claimed Scott had 'confessed,'  others that said that he talked about killing women in their presence - but who showed no concern for that fact and continued to socialise with him. As is hinted above there was an even bigger 'mistake' yet to be revealed which shows without doubt that Olivia's hairs were not those offered in evidence and therefore were not on the Blade or blanket. Without the first mistake, the 2nd would have possibly been harder to find - but was always going to emerge 1 day, because the mistakes completely fit together while the Crown case never has.

Sunday, June 30, 2019

Lundy case hugely misunderstood.

Mark Lundy's case is due back in the Supreme Court later this year. The submissions by Jonathan Eaton QC and his team are a masterclass. From carefully reading them it is apparent how poorly the NZ courts have understood the case.

From the outset some of the public believe that Mark had his wife Christine's brain or spinal matter on his search. However it has never been proven that what was on the shirt sleeve was brain or spinal matter, let alone being human. No need to repeat the dodgy science used in the case which remains mired in controversy despite the Courts apparently apprehending otherwise.

What is less well known is that of the 2 marks, on the shirt Mark had voluntarily told the police he had worn earlier in the day on the night of the murders, all that was left for testing was a dab slide taken from the shirt sleeve. Internationally that dab slide was said to hold material that could not be tested. Consequently it was sent to an American who did not test the slide material because of its condition but instead tested 2 pieces of material cut out from the area around the small stains which were about the size of a pinhead.

That wasn't the reason for the trip of course and it has taken many years for it to become known that the area tested was already said to have been 'consumed' in unsuccessful earlier testing in NZ. I think everyone accepts that an empty glass contains no liquid - the empty glass in this case somehow became full again, something never heard by either of the Lundy Jury's.

What was said to have been taken from the empty shirt spots was material later fixed in paraffin which under 'testing,' not designed or approved for that purpose, was said to have located brain material. In a test 14 years later that material would be found to be from the animal food chain, cow, beef or pork. To overcome that somehow the Crown found a 'expert' who was able to say the material was human by the margin of 58% to 42% with an unknown success or failure rate. That evidence, heard by the Jury at Mark's retrial, allowed the prosecutor to say 'no man should have his wife's brain on his shirt.' Post trial that evidence was ruled inadmissible.

However the Court of Appeal said that didn't matter and they exercised the proviso which the Law says can be done so when guilt is inevitable. Unfortunately that test was changed by the COA to one of beyond reasonable doubt - a world first in British, Australia and New Zealand Courts, It is difficult to understand how the Court could make such a mistake and first look, that might have been deliberate to keep the controversial case under a lid.

Later it can be seen why that decision is important, and to do that we have to again go back to the paraffin blocks said to contain material which NZ scientists said had been consumed. Those paraffin blocks were tested for Christine's DNA but it was not found. However the NZ COA, not deterred by that made another major 'mistake', because elsewhere on the shirt was found Christine's DNA, just as would happen with any male's shirt from his partner and vice versa. However it needed to have been within the spot where the animal DNA was found, to have been directly associated with Christine as being her own - within the biological material not near it.

So let's go over that again, 2 small spots completely inconsistent with blood splash that left the silhouette of Christine's killer on the wall. A silhouette for which there is precious little information. I have not heard of any reconstruction of that silhouette for which it might have been determined the size of the offender, a relatively easy process but not something it is known that investigators looked into. Nevertheless the 2 small spots were consumed in testing by NZ scientists who found nothing incriminating within them, however the spots go along with the shirt to America and hello there is something there again, and the slide taken from those spots also in America is not tested despite that the material on it is visible upon it under microscope.

Wednesday, June 26, 2019

A New Zealand first in Watson and Lundy?

Scott Watson and Mark Lundy are as different as chalk in cheese, not only physically but by their backgrounds at the time of their imprisonment. Scott was finding his way in life after his teen years in which he got into relatively minor trouble with police. His life had become the sea, in fact his links with the sea are lifelong. He had become a capable quasi engineer able to have built his own boat the Blade, a 26 footer. He worked in boat yards and sailed the coast having a girlfriend in the far north. He was such a casual bugger that he even told investigating police that'd he smoke dope on NYE 1997, information police would use against his friends he socialised with that day unless they co-operated with police. Mark on the other hand was married, with a young daughter and active in many community activities, he and his wife Christine had a passion for dancing, as did their daughter the 7 year old Amber. The Lundy's were the operators of a small business selling kitchens, hard working with Christine 'doing the books' while Mark dealt with customers who found him reliable and helpful. He preferred to let Christine do any debt collector such was gentle and obliging character. He was a builder by trade and when arrested for the murders of Christine and Amber he was renovating the house the family owned. He was essentially a salesman on the road who would put the packages together for customers orders and displayed his goods for sales in several stores where he would call into service orders on road trips away from home. Scott on the other hand at the time of his arrest was at home on his boat and where ever he sailed. His most recent trip had been to see his girlfriend in Whangarei, a rare enough event in any country where a young man would sail to visit his girlfriend and pickup work in the boatyards which had become his trade. It might be fair to say the sea was in his blood as he and his family had lived aboard a yacht for some years doing much the same as Scott found himself doing as he matured into a young man. So both builders of the type who could turn their hands to any sort of work but little else in similarity until their lives changed forever.

It's the changes that happened to both men which ultimately mean they shared a common experience. That experience until recently was not known to either man, both of whom are in minimum security prisons, one in the north island and the other in the south. I doubt that they given each other much thought over the years Mark is essentially a fish out of the water in prison while Scott has been more openly resistant to his imprisonment. No doubt both had an interest in the progress or lack of progress of the other's fight for freedom. While the 2 must hate what has happened to them, they have shown that in different ways. Scott with art,  some disdain and some rejection of the system, Mark with study and somewhat isolation of his generally outgoing personality. The 2 would unlikely ever be friends and may not have sympathy for one another in terms of their cases. Unfortunately, or perhaps very fortunately ticking along in the cases of both men has been a time bomb not understood fully by either, nor until recently their legal teams both of which have changed over the years. That ticking bomb has been forensic science out of the same bottle but applied to each case differently in order to get the same result - convictions on evidence which cannot now withstand scrutiny.

Christine Lundy died with 21 hairs in her hands and another red, to red brown hair on her buttock, that has never been evidence against ML. It has in fact been evidence never properly investigated despite being carefully handled to avoid contamination, collected with a high degree of forensic caution which recognised the potential value of finding a clue to the killer(s) of Amber and Christine. One area that was not gathered or stored with forensic caution was the shirt of Mark Lundy told police he had been wearing the day leading into the night they were killed - something in itself a guilty person would not do, just as Scott would not have revealed to police his dope smoking had he considered it would used to bring pressure on witnesses to lie. On that shirt there would later be found to be 2 microscopic spots or 'stains', one of which was said to be human brain after being rejected by forensic scientists worldwide as too necrotic to be tested, this after never being kept in forensically proper conditions but rather in a non-temperature controlled safe away from other exhibits. Human brain degrades on contact with air something which mankind have known for centuries and the ancient Egyptians even longer. It was that alleged brain which saw ML convicted, while  evidence of other offenders including not only the 21 hairs, but male DNA under both victims fingernails along with signs of breakin of the home, witnessed by a neighbour, where fingerprints were discovered that did not belong to any person who had visited the house in the 3 months prior to the killings.

We don't know how, or indeed if, Ben Smart and Olivia Hope were killed, there is an assumption that they were with no evidence in support apart from 2 hairs and the inevitable prison narks recruited to verbal an innocent man. There is no evidence that Ben and Olivia ever met Scott, no evidence that they were seen together or leaving Furneaux Lodge as a group on a naiad. So we now turn to evidence ignored in Lundy - hairs. There were about 400 removed from the Blade, many in isolation as scientist's carefully did their work. Then something unusual happened, a blanket from aboard the blade with visible signs of hair on it was bundled up and taken ashore. Consider that 2 years later a police officer would lift each hair from Christine's hand, wrap it in an individual tissue record a description and make a sketch as to where it had been located from - no chance of contamination in that process, the hairs never tested but rather eventually lost. How convenient.

In the Watson case, the same forensic science institute (ESR) bundled up the Watson hairs on the blanket and put it into a store from where it was later removed to have 2 technicians carefully lift each individual hair before apparently mindlessly putting them all into the 2 plastic bags where they would freely be contaminated by one another. Those technicians were looking for long blond hairs, everyone in NZ following the case knew that Olivia had long blond hair - none were found. So if there were no long blond hairs they were simply bagged - had the 2 long blond hairs been found they would have been isolated and not mixed with the 100s of other hairs but treated triumphantly as gold for the investigator's with the big gut instinct. In 2 later examinations of the hairs in a different room on a bench still the 2 long blond hairs were not found. So 3 searches and nothing found in ESR labs, not to exclude the careful searches aboard the Blade which must have satisfied ESR scene specialists that no hair of Olivia present or they would have been separated like the Lundy hairs. On a 4th search and after 2 visits to the Hope household for sample hairs - suddenly 2 blond hairs found, 'miraculously' at the same time the sample hairs were in the same lab in a breach of international forensic science protocol. Perhaps anywhere else in the world that 'evidence' would be rejected but not in New Zealand where authorities were on a mission to convict Watson come hell or high water, as they would do a few years later to Lundy in order to solve a second double murder mystery. There appeared to be more at stake than the lives of 2 innocent men with all their differences and dedicated family and friends supporters who have stood by both for 2 decades.

As readers will know ML was convicted using controversial non-forensic Immunohistochemistry (IHC), never used before or since in a criminal Court. IHC was the 'bright new thing' that didn't endure forensic process or methodology. In a forensic setting it is a 'junk' science. As readers will also know SW was convicted on the strength of the 2 hair evidence which all parties agreed may have been contaminated. I think that 'may' is now seen as an unacceptable risk of contamination in case like Lundy as well as Watson, of having no strong supporting evidence and plenty of evidence showing both men as innocent.

What is less known (although increasingly less so) is that the 'hair comparison' tests in Watson resulted in around 98% false conviction in FBI cases where hair comparison was used. It is simply a scientist claiming to have developed powers of discerning between hair and able to 'confirm' the probability that 2 or more hairs are from the same source - absolute codswallop. While the same tests if done in Lundy would have excluded him on  hair colour alone (he doesn't have red hair),  let alone DNA or mitochondrial DNA (mtDNA) testing, it was simply not done at all. Although in Watson both DNA and mtDNA was used because police had a different objective, find hair to prove Watson guilty, and in Lundy ignore hair that would prove ML innocent.

Both cases use the word absorbed when speaking of potential evidentiary samples used, or potentially used, in testing. Scientifically, that means evidentiary material is absorbed in the process of testing. Both cases have extensive work, I will call footwork for the forensics, which is recorded and placed on file to be referenced by scientists doing any tests on particular material. It has been recently found that both case files contain 'footwork' not disclosed to the Jury that indicate both men are innocent, and not just because hair testing was not done in 1 case when it should have been. In Lundy there is a case note that confirms there was nothing on the shirt to test using IHC so therefore there can be no legitimate result excluding all the crime scene evidence which points away from ML. Similarly in Watson there is a case note which any modern day scientist would know negates the '2 hair' evidence and which was known to ESR in 1998.

When talking about a 'modern day' scientist. The principal scientist in both cases was the same person, Sue Vintiner. As a ESR scientist to this day. Sue will know that both these cases have serious flaws which she intimately knows about. but which she has never reported to the Court as is her job as witness first and foremost for the Court. Not only did she give evidence excluding both matters but when the understanding of the  so called science evolved, she did not notify either the Crown or the Defence. To this day she remains silent while 2 quite different men suffer the same fate - false imprisonment.

Why were the documents kept from the Court? Because individually they both destroyed the credibility of the Crown's allegations and arguably would have left the Court no alternative other than to discharge both men. When the 2 documents are considered together not only can it be seen that what I say above, that in Lundy tests were not done which would have excluded him, while in Watson the test results would be set aside as unreliable to the extreme but that the Crown kept that information secret from the Court with the compliance of ESR - purportedly an independent organisation from police, its potentially biggest customer.

For many people the Watson convictions don't make sense because they are 'boaties', know the sea and know boats but they were told to take a hike or that they were mistaken. In Lundy few people understood IHC but there would have been comfort to a Jury that the 'expert' found brain. Years later when the Crown case was in trouble they sought an American opinion to confirm that the DNA was both human and female. The result was probable animal DNA but neither Y or X chromosome was confirmed, so a new junk science was found called MRNA which was thrown out at the recent Lundy Court of Appeal hearing.

So 1 case had an informed public and many eye witnesses contradicting the Crown case. The 2nd had unknown fingernail DNA, mtDNA and nuclear (personal) DNA, and potential fingerprint DNA and hair evidence of which no attempt was made to link together because even 1 link would mean Lundy was not guilty, just as the secret documents mean both men are innocent on the Crown's own hidden evidence. Perhaps a New Zealand first but frightening enough that evidence in 2 cases was exploited in different and opposite ways to get the same result - innocent men found guilty.