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.