The Lundy fingernail DNA and what it means.

The following was sent by an overseas expert interested in the Lundy case.

"During the four-plus decades Bush spent in prison or on parole as a sex offender, Suffolk County prosecutors resisted his attempts to re-adjudicate his case, even after a 2006 DNA test found that another man’s tissue, and not his, was under the victim’s fingernails."


https://www.usatoday.com/story/news/2019/05/22/keith-bush-innocent-prosecutors-move-vacate-1976-murder-conviction/3756361002/?fbclid=IwAR3PybcUPdQUIo8dQW9rDsD6Dry3odOsjYaOpuRa8AmDBeGwsRYAulFuid4

Sometimes these apparently complex cases have been made that way in order to gain a conviction. The more evidence and the more experts the Crown call is often designed to get a weak case over the line. In Lundy there has been the constantly changing Crown case as more evidence has been revealed helpful to Mark Lundy. The imposter evidence mRNA is now gone, and in its place is left the most damning evidence against Mark Lundy as being material on his shirt from the food chain. So again what do we do but look back at the crime scene, and find fingernail from 2 men lodged under the nails of both Christine and Amber and they fought to escape. Fingernail DNA that was never investigated.

Has the worm finally turned in Lundy?

The Lundy case has been pressured by misconceived subjective reasoning dwelt upon by the press as well as 'science' made deliberately complex while a crime scene was ignored - always the most important part of solving a crime. Think of the funeral scene, Lundy's weight etc, they all prove guilt, right? But if the science and other evidence is not complex why does in continue to be found legally wanting? One of the reasons is the decision by the Crown to go outside established forensic science and never return. It beggars belief that the Court has continued to allow that. A 'novel science' does not remain 'novel' for 19 years, it is either accepted by mainstream forensic science or is rejected. It may be safe now to say that is true.

In Mark Lundy's first trial it was accepted that the novel science IHC, if correct in its diagnosis, was as the result of contamination or planting. In the retrial it was accepted that if correct in its diagnosis, that the material believed to brain (or central nervous system CNS), then it was animal.

Here is the recent defence and prosecution oral submissions to the Supreme Court on Mark's leave to appeal application:

https://www.courtsofnz.govt.nz/the-courts/supreme-court/case-summaries/case-information-2018/Trans5LundyvQueen.pdf

I think it is an excellent analysis by Jonathan Eaton QC, and one that continues to unfold as the case is broken into past the IHC. Follows here is a brief analysis of the submission which is interesting to read in full.

Eaton says that in Trial 1 that the shirt material was assumed to be human CNS (brain or spinal matter.) And what supported that were the following 'facts.'

1. Lundy seen by Mrs Dance running from the vicinity of his house dressed as a woman in the early evening.
2. The fast drive from Wellington and back to make a 7.30 Time of Death of Amber and Christine possible.
3. The 'manipulated' Lundy computer, altered by the cunning Mark Lundy preparing for his record breaking drive back to Wellington on which he was never seen.

All considered as being reasonable inferences of guilt by the Court of Appeal (COA) when Lundy appealed the verdict of his 1st trial.

Eaton says  those now abandoned 'facts' give context to the Lundy case about drawing inference from expert advice which is disputed. He then points out that after Lundy's success at the Privy Council that the Crown sensed a gap, a void between the DNA found on the shirt near the alleged CNS. This refers to the fact that while DNA belonging to Christine was found on Lundy's shirt near the CNS, none was found within the CNS itself. This information is problematic 18 years or so after the Lundy crimes. It is now understood that clothing of one family member or spouse is likely to have the DNA of other family members on it, that DNA can survive the wash and so on. There is also something now understood to be  the 'association fallacy,' that is that because DNA is found in association with body tissue or fluids it may not be linked. For example both might have arrived at different times. So finding Christine's DNA inside the alleged CNS was important and the Crown realised that.

What the Crown did was to set out to show was that the DNA was both human and female, a slam dunk if you like. Fair enough, but they failed. Firstly they used a test called FISH (Fluorescent in situ hybridisation) which didn't give the wanted result. Secondly, and to the Crown's credit, they went to NZ Environmental Scientific Research (ESR), who could also not confirm that the DNA was female or human. I say credit to the Crown because ESR is a forensic science facility. Next the Crown decided that they had the elution (wash from the shirt material taken from where the alleged CNS was) saved which it sent to California and got the result they didn't want - an analysis that it was animal CNS, a mixture of beef, cow and pork.

Eaton would say that all these measures indicated that the Crown fully appreciated the 'gap' in its case - the effort to prove the shirt material was human and female.

The next thing that happened was not dwelt upon by Jonathan Eaton in a way that the reader might appreciate immediately but is a picture that emerges from the Lundy case. The Crown having been outside the 'forensic safety chain,' and indeed an accredited 'forensic science', returned to another and just as 'novel' science mRNA to say that the material was more probably human that animal. Thought about carefully, the Crown having failed to find relief for its obsession that Lundy was guilty trudged back into the unknown and unproven world of 'novel' science and the Court allowed that despite that the defence fought tooth and nail against the mRNA, while the Crown did the same in its defence.

By the time the case got to the COA and the appeal against the conviction, the Crown were saying, as you will read, 'oh the mRNA wasn't needed.' I could say that is like a boxer claiming that he/she never landed a punch in an unsuccessful 12 round title defence after failing to knock an opponent down they claimed to be running away. The Supreme Court were getting more information about the Lundy case than what a NZ Court had before, an accurate narrative that spanned almost 2 decades with many changes in the position of the Crown. As Eaton said Mrs Dance was gone, as was the time of death, the computer manipulation and the madcap drive.

1thing the Court was interested in was the 'pure' CNS the Crown claimed to be on Lundy's shirt. Eaton pointed out that 'pure' CNS did not have skin flakes in it that might have been dandruff, and that a dab slide taken from the same shirt spot in New Zealand was said to necrotic or decayed, whilst the Crown claimed same material on the shirt was pure. For me the difference between the NZ dab slide and the alleged CNS is pivotal to this case. Not only is it illogical that 2 things from the same origin can be biologically different in presentation but that NZ forensic experts had essentially told the Crown the evidence was unreliable at best so the Crown went on a world wide search for someone to confirm what it subjectively 'believed.' The same place the Crown returned to when all those they approached from the forensic science community said they couldn't help - the Crown cheated again, so important was it that they were right and modern forensic science was wrong.

If there is a moral to this fallacy of the truth - the Lundy convictions, then the answer is easy: junk science is junk science whether it is the Scott Watson case or the equally bad Mark Lundy case.

In the 2nd Lundy trial the trial claimed a 'parallel' test where the testers who were not forensic scientists (again) and when given brain to test and told what it was,  later came up with the 'remarkable' conclusion that it was brain.

Cheers.

Scott Watson and other recent Miscarriages of Justice.,

The police and the Crown have for a long time have kept an advantage they have no right to exploit. That is the separation of Miscarriages of Justice (MOJs). In any filing system in the world appropriate things go under a single heading. In New Zealand and no doubt in other jurisdictions MOJ's are not put in a pool or a single file of other similar cases, but deliberately separated and never further looked into. That serves a purpose of attempting to ensure the public (or indeed a Jury) don't associate one MOJ case with potential other MOJs, and serves to dilute the fact that police and Crown are a constant entity that has never changed in its response to MOJs. In fact sometimes public debate on the cases  serves a purpose for authorities where people vehemently support a conviction despite that there may be obvious flaws apparent; or concerns about a fair trial. Firstly authorities always delay remedy by denial, misleading evidence or statements and the absorbing of time while the victims of MOJs remain in prison and isolated, secondly they treat the results of each proven MOJ separately rather than cumulatively by saying police have learnt things, updated systems and claim certain things would not happen 'today.'

Not true as time shows.  There is solid proof that evidence was planted or tampered with in Thomas, Tamihere, Bain , and also in Lundy and Watson -  although these cases are in some instances separated by decades so the claims of 'would not happen today' are weasel words and there is no authority to overlook what police hierarchy will not do themselves, that is remedy MOJs - successive Police and Justice Ministers have failed to intervene when police go to sleep on MOJs. Sometimes citing as we will see later, the number of trials or appeals in which an MOJ is upheld.

In terms of the denial we saw the classic example a couple of years ago with the OIC of the Watson case, Rob Pope, 'explaining' that other people did not appreciate 'all the evidence.' All the evidence is for the Courts not for police to pretend, when a conviction looks shaky, that there is other evidence the public don't know about - we are democratic country with supposedly open justice system so what evidence was Pope talking about? The only hidden evidence that exists points to Scott's innocence, not guilt or it would have been crowed about for 21 years, like the '2 hairs' was.

First of all lets see some of the cases that should be in the pool of information on MOJs, to enliven comparison and scrutinise police methodology in suspect cases that has never changed:

Arthur Thomas, the planted shell case was made after the Crewe murders, but police never bothered to trace it to where it was sold and to whom after a private researcher tracked it down to the factory of manufacture. The reason, more probably than not, was because it would have led back to police so no doubt an investigation was never considered and no one independently ordered one. An unopened present is this case became the alleged reason for murder, (and how would Arthur know it was unopened or why would he care as by then both Jeanette and himself were in happy marriages), and does not compare to a shell known to be planted, and considered to have been planted by the Royal Commission of Inquiry that followed Arthur being pardoned for a crime he plainly didn't commit.

David Tamihere, there was evidence given that Urban Hoglen was killed and his body and that of Heidi Paakkonen dumped at sea. Urban's alleged watch was found in the room of David's young son. David was said to have had confessed to inmates in prison, one of whom he had never met. The inmates revealed horrific stories of the alleged sexual abuse of the couple before they were killed, (same as in Watson). Then the body of Urban was found buried on land, the watch still with his body, autopsy showed that his death was caused in a different manner that what the secret witnesses had claimed. David's appeal was turned down, no effort was made to trace the watch. Why, because we can imply that it had been planted, just like the shell case - in any event the body when found showed there had been perjured and planted evidence, but the Courts turned a blind eye. Advance to 2017 and a primary secret witness found guilty of multiple charges of perjury in the case after, not a police prosecution, but a private prosecution by Arthur Taylor and Mike Kalaugher. Tamihere is then left to have his convictions overturned while his captors, Crown, police and the Courts watch and offer no assistance.

Reg Haig, convicted of murdering a crew member on his fishing boat using the evidence of a witness granted immunity from prosecution, David Hogan. It would later be revealed that before the immunity was granted police properly (credit to them) provided evidence to the Crown that other witnesses had told them that Hogan had admitted the crimes, but the man still got immunity from the office of the Solicitor General in exchange for his evidence. The Crown solicitor that handled that case is now a judge, and the number of alleged confessions have been increased. Even after Rex's recent death the Crown will not disclose the full file to Jonathan Eaton QC see here:

https://www.noted.co.nz/currently/crime/rex-haig-case-concerns-over-how-immunity-was-granted-to-crewmates/

Surely that Judge has an obligation to speak out.

Peter Ellis, children had suggested to them by investigators using a method of auto- suggestion that Peter has abused them at a pre-school where he worked.  Peter spent a decade in prison and would not admit the crimes (just like Thomas, Lundy, Pora, Bain and Scott Watson). The auto suggestion method was later abandoned worldwide as witnesses were seen to have been 'primed' as to what to say. Yet NZ police and Crown do nothing apart from ignoring the falsely imprisoned Peter Ellis - implication that it's up to him to undo the harm caused to him by the state.

We still have the case of a Dunedin woman since released on life parole and believed to be not guilty but who has said that she is afraid to speak out in her own defence against one of the police believed to have planted evidence in the Bain case. (This was in a book published by Ian Wishart that included these details, although I have also read about it in the mainstream press, and a recall a documentary.)

These cases are all symbolic of people being put in prison using great energy from the Crown, police and at times wilfully blind Courts, then when the case falls apart it is upon the victim to fight the system, rather than the system come to the rescue it just watches, one could say like a vulture. There are others - Pora also being an extreme case, a young man with learning difficulties 'helped' to confess to a crime committed by a police informer. Pora served 20 years for essentially trying to get a reward with a concocted and transparent story full of holes no police officer worth his/her salt would have believed. No help from the police or Court or Crown but rather an ex policeman Tim McKinnell who now says that another case, that of Gail Maney, convicted of murder when no body, was found 'could be bigger than the Pora case.' There has been no attention from authorities to aid McKinnell in looking at the Maney convictions, just the same old, 'nothing to see, none of our business' from the authorities.

'https://www.radionz.co.nz/news/in-depth/378282/gail-maney-case-could-be-bigger-than-teina-pora-s-investigator-tim-mckinnel

In the article McKinnell describes the way police 'find' evidence, and also the way old cases are rejected by police because of the previous hearings:

He found some concerning similarities to Teina Pora's case too, particularly when it came to the way police managed witnesses. "We have what appears to be a rather prolific use of deals, inducements, threats; potentially offers of rewards, relocation and pay-outs."

McKinnel holds a map of the Whatipu car park where Fuller-Sandys' car was found. Photo: RNZ / Luke McPake

Told of McKinnel's opinion, police said, "This matter was tried twice in court and Gail Maney was convicted both times. In general, police do not relitigate historical matters that has been through the courts and therefore we have no further comment."

Those comments by police are 'self imposed' rules or laws. Nobody would expect police not to reopen cases where there are problems or new evidence. But above shows that is exactly what police are saying they won't do 'in general'. One exception has been the Pora case where, after public pressure, police charged their 'own boy' Malcolm Rewa who has since been convicted of the rape and murder of Susan Burdett for which the young Pora spent his youth and early adult years in prison. So the police statement of not 'relitigating' historical matters is not estopped by Law, but rather by police themselves and uninterested Police and Justice Ministers. One would be correct in saying, no interest has ignited any response from police or the Crown since the star witness in the Tamihere case was convicted of 8 counts of perjury, in fact they just sit on their hands, as they did when Urban's body was found inland and still wearing a watch.

So a pattern is evident which stretches back 40 years, and no doubt further. Though the Thomas case remains contemporary point and Arthur has never received an apology. The man believed by many in the public to have planted, or to have had a hand in the planting of the shell case was spoken highly of by the current Police Commissioner Mike Bush at the man's funeral. Bush only withdrew or modified his comments after public pressure.

I add here Watson and Lundy who both have strong exculpatory evidence in their cases never heard by a Jury. Scott is in his 2nd year of an RPOM review and 21st of imprisonment. Independently during that time more critical evidence indicating his innocence has been found. At this point David Tamihere's case is under a similar review arguably with the strongest evidence possible - perjury. Mark Lundy has his case currently being considered for leave to Appeal to the Supreme Court, during a submission hearing on that case this week the Bench remarked that IHC (a junk science according to Jonathan Eaton QC) has a 'unhappy history'. These 2 cases, Lundy and Watson, both have hidden evidence, or evidence that was never investigation to a conclusion - in Lundy the evidence of 2 unknown men being in the death scene and whom left evidence there including fingerprints, DNA as well as hairs and fibres. In Scott's case the strongest evidence against him is now the strongest evidence of his innocence and has been on file for 21 years. In Scott's case the newer exculpatory evidence is hopefully now part of his RPOM but in the last few weeks it was bolstered immeasurably by evidence found  accidentally in another NZ case raised from an ESR file which has also been sent to Scott's lawyer, Jonathan Krebs

So the question is in Scott's case, what is the delay? One of things we are asked for is patience, yet there was no patience shown in the police inquiry to ensure they got the right man - they simply got the man they targeted with false evidence and ignored everything else. In Lundy police 'lost' scientific evidence and could not find the 2 strangers, there is no indication they looked. The support of that is that police 'lost' evidence that pointed away from Mark Lundy, and that a specialist who knew a way of potentially exculpating him from existing evidence before it was 'lost', didn't do the tests despite having almost a year of time to have done so - that was no accident, was in fact deliberate.

In a report that I recall reading last year, the Government have said they will create a Criminal Case Review Committee this year. Meanwhile people like Chris Watson, Mike Kalaugher, Keith Hunter, Warwick Jenness, Tim McKinnell and Geoff Levick soldier on from outside the system to get it right. A large portion of the public know that Arthur Thomas, Rex Haig, Teina Pora, Peter Ellis, Allan Hall, Gail Maney, Scott Watson, Mark Lundy and others never had fair investigations into their alleged guilt let alone fair trials.

A fair trial can never follow an unfair investigation. I'm impatient about both Mark and Scott's cases, Mark's case fortunately (although I don't believe he should be in custody) is at least before the Courts though we can't know the outcome. Scott's with equally strong evidence continues as he remains in custody after 21 years (4 years overdue for parole) and still not back within the Court system, despite a failed Court of Appeal Judgement (on the 2-trip theory) that may well have negatively influenced a Privy Council decision along with the now discredited hair evidence and an previous RPOM turned down without the hair evidence used to support the refusal, looked at again for changes in forensic process, or indeed in view of those case notes I mention. If someone else could find out about them, why couldn't a QC appointed by the Crown? No doubt because no one in authority encouraged her to do so and she didn't look,  giving meaning to the lack of encouragement or proper instructions. The same goes for the 'finding' of  the Thomas shell never fully investigated  right back to the Australian factory where it was made. Same with the 'confessions' made in Watson,  Haig, Mahey and Tamihere. None of these cases are isolated from one another as the same police force, Crown and Courts were involved and many times the same personnel both in police and prosecution.

Scott has asked his supporters for patience and that of course must be respected. To me that hopefully shows the seriousness with which the new plea is being treated but in another way it reminds me how poorly treated the wrongly convicted are, both when in prison and upon release. Scott's brother Tom has said that people should still write letters to the Minister or the Governor General if they so wish - encouraging a speedy result.