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.


Monday, June 3, 2019

The over ambition of the Watson Miscarriage of Justice

One thing which is plain in the Watson case (Marlborough Sounds Murders of Ben Smart and Olivia Hope) is the sheer size of the scale Rob Pope and his team needed to extend themselves to in their endeavour to frame Scott Watson and make it appear there were no other trails they did not fully investigate. I believe time will prove they over extended themselves in a manner that was not only unlawful but which has shown itself to be ill conceived and poorly thought through - or to capture a single word, reckless. Why would police be so reckless one could ask. Arrogance in this case.

Despite that before the Watson case Pope lost the 'poisoned professor' case where it was revealed he endeavoured to have witnesses change their accounts, we could say Pope had his modus operandi still intact. He was not dismissed from the police force in that instance, nor face an internal inquiry known to this writer. There are other factors to consider and the Thomas case is an excellent example as it remains the most significant Miscarriage of Justice accepted by the public. In Thomas, the Commissioner at the time was calling the shots, it was he whom by letter ordered that police did not investigate Len Demler's new partner. Even after all these years her version of events by timeline was exceptionally easy to break down. Of course when the balloon went up years later with the Royal Commission of Inquiry saying that the shell case was planted, police did nothing. To add insult to injury a couple of decades later our current Commissioner of Police would speak out in support of the Thomas head of inquiry Hutton at the later's funeral. I say, all of this goes to cycles that continue to repeat themselves in cases like that of Scott Watson's. When the Lundy convictions were quashed at the Privy Council a new officer was put in charge of the case, perhaps as a public display of police wanting to be seen as doing its job properly. For all the intent expressed by that move, the new officer in charge went down exactly the same track and, like his predecessor,  did not investigate strong evidence as to the real offenders.

New Zealanders often react with horror with some of the police shootings we see on video coming from America, the homeless being shot, the handicapped, the innocent. Despite that horror New Zealander may feel relieved that the same does not happen here when indeed a version of it does and has for decades, the setting up of the innocent. Pope arose from that arena with his conduct in the poisoned professor case completely ignored, if he had not already met Paul Davison QC he was soon to make that acquaintance of a man who, whilst now a High Court Judge, had the trophies of  the Tamihere convictions, and would later have both Watson and Teina Pora. I'll let readers decide what they think of that combination or indeed how it was ever able to come about then be ignored by the powers that be for more than 2 decades, even after the wheels fell off the Pora case, and now that of David Tamihere.

I don't think there is much that needs to be traversed in fine details of evidence about the Watson case other than to say what is now known. I'll make a short list:
Witness statements hidden or altered.
At least 80 suspect ketch sightings with the real number being in the 100s.
Co-operation between police and ESR which resulted in incomplete evidence given to the Court on the issue of the fundamental evidence in this case - the 2 hairs.
Evidence of the couple being alive after the were said to have been killed.
A witness tip as to where the bodies may have been which was ignored around a period when the Cook Strait was searched to, in my opinion, reinforce in the public mind, that the police theory was correct 'but the search for bodies unsuccessful because of the deep water.' Whereas the witness position indicated was not in deep water and chances were high that tide shift would not have had an impact.
Witnesses being convinced that Scott Watson had killed Nancy Frey and that police 'really needed' to put him away. Many of those witnesses changed their accounts, as did others who police knew had broken the law in minor ways.
That police had already investigated the '2 trip' theory and knew there was no evidence in support of it after which Paul Davison raised that 'evidence' after all witnesses had given evidence, allowing for no cross examination or normal planning of a defence after the depositions (preliminary) hearing.
The destruction of photographs, statements and job sheets.
The hiding of evidence and the list goes on and on.

The only flaw being that trail that was left carelessly behind by police who 'cleansed' the file, ignored or threatened witnesses. That trail is now in the hands of the defence and one day, soon I hope, will be in the hands also of the public.