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."
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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.
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. https://academic.oup.com/jlb/article/2/1/149/808685 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.
https://www.msn.com/en-nz/news/world/dna-test-frees-texas-man-from-life-sentence-and-leads-to-confession-of-a-new-murder-suspect/ar-BBYfNse?ocid=spartandhp&fbclid=IwAR3uti5XgCoRriBVXxCC761pYtF-1gxR2_wrovNbawrcEr0G04yW4LSm-JE
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