Anniversary

Thirteen years ago today Jeffrey Gafoor made history. Gafoor pleaded guilty to the murder of Lynette White. She was the victim of what was then (February 14th 1988) the most brutal murder of its type in Welsh history. Faced with overwhelming evidence Gafoor admitted that he had murdered Lynette. He had provided samples for DNA testing before attempting to take his own life in February 2003. Police officers from the Lynette White Inquiry Phase II saved his life.

Phase II was one of the best investigations ever. Led by Detective Chief Superintendent Kevin O’Neill, these officers and the forensic scientists, did a fantastic job. They knew that finding the real killer would come at a huge price to the force. No British police force had ever resolved a miscarriage of justice by convicting the real killer in the DNA age. Any force that did so knew that it would unleash a can of worms, the like of which British policing had never faced before. But still, they investigated doggedly and continued until they made history by bringing Gafoor to justice.

A Colossal Error

And then that storm was unleashed. Phase III investigated what went wrong – who was responsible for one of the most notorious miscarriages of justice ever. Thirty-four people were arrested and interviewed under caution on suspicion of offences including conspiring to pervert the course of justice and perjury. Twenty of them were police officers and 13 were told that they would face trial, along with two civilian witnesses.

But before they faced trial three of the alleged eye-witnesses were tried for perjury and conspiring to pervert the course of justice. Mr Justice (Sir David) Maddison ruled that they could not claim duress, as the law demanded that they must retract immediately, but to whom – police officers, the courts? Who? How could they be expected the courts or police after what they had gone through?

Mark Grommek, Angela Psaila and Learnne Vilday (the New Cardiff Three) were convicted – rightly as the law said, but wrongly according to justice and conscience. The court accepted that they had told the lies they were forced to tell and then they were prosecuted for telling them. They were each sentenced to 18 months in prison. This was and remains a huge injustice – the law could not have acted more inappropriately, but worse would soon follow.

Travesty

With 13 police officers and two witnesses due to face trial it was decided that eight former officers, including Graham Mouncher and Richard Powell and the witnesses Ian Massey and Violet Perriam would face trial first. The trial began in 2011. I was due to be a witness against Massey. Nicholas Dean QC and his prosecution team ensured that I would miss virtually all the trial for no good reason – actually there was a very good reason.

We were not meant to see what was unfolding. It would take a very long time to unravel, but unravel it would. The trial collapsed on largely spurious grounds. Disclosure was not what it should have been – that is unarguable, but whose fault is that? The straw that broke the camel’s back was the failure to disclose some documents – copies actually. The originals had been retained, and copies were taken.

The copies were meaningless. It was believed that they had been destroyed – evidence to that effect was given, but it was not true. A month after the sensational collapse of the trial the supposedly destroyed documents were discovered in the very boxes that they had been sent to police by the IPCC.

Unlawful

I had been kept out of the trial until it was far too late – we believe that was their intention all along. South Wales Police chose to cooperate with HMCPSI and the IPCC, both of whom were investigating aspects of the collapse of the trial. The terms of reference established that neither process was worth cooperating with as they would not establish why a notorious miscarriage of justice had been allowed to occur.

I chose not to cooperate and demanded the return of my work product, which was mine alone, as was the copyright on it. The Professional Standards Department unlawfully seized my work and distributed to others against my wishes in flagrant disregard of my rights and copyright.

The justification supplied a year late did not apply to me. Naturally the IPCC – itself an interested party and therefore not an impartial arbiter upheld the ludicrous justification – one that applied to criminal suspects not cooperating witnesses. Both HMCPSI and the IPCC failed miserably to explain why this appalling miscarriage of justice had occurred – inevitable really – as neither was concerned with that and nor was the Home Secretary, Theresa May. Her concern was to avoid a public inquiry.

Squaring the Circle

As early as the first week of the 2011 Police Corruption Trial it became obvious that the prosecution was lacklustre – notwithstanding that the prosecution team could talk a good talk. The defence case was a tried and tested method in such cases – deny that there had ever been a miscarriage of justice. The Cardiff Five were guilty, they claimed. But what about the DNA? What about Gafoor’s guilty plea? What about his insistence that he had acted alone?

Simple. None of that mattered. All that counted were his inconsistent accounts. He could only remember inflicting ten or twelve stab wounds and not the throat ones. So what? Well that meant it was possible that there was more than one attack. “Technically”, Angela Gallup said – the scientific equivalent of ‘and I can’t rule out the possibility that pigs could fly either!’

There was forensic pathology evidence and blood distribution pattern evidence that had an important story to tell. Lynette’s murder was never consistent with five killers and two witnesses charging around the crime-scene in darkness without leaving any trace of themselves or interfering with any of the evidence in the flat.

It simply flew in the face of any notion of logic.

The Final Insults

It served well in 2011 – so well that it was trotted out again in the compensation case in 2015. And as in 2015 the witnesses that could demolish this outrageous hypothesis were never called. We will be publishing Trials and Tribulations – Innocence Matters? soon. The aim is to reassert the truth – the Cardiff Five are, as they always were, totally innocent of any involvement in the murder of Lynette White, even though it is too late to matter to Yusef Abdullahi and Ronnie Actie.

Meanwhile, Gafoor had received a very lenient tariff in 2005 – just 12 years and 8 months, 13 years in reality once remand was taken into account. Consequently, Gafoor is now eligible to apply for release on parole. We will be publishing Bad Form – How Tariffs Protect the Guilty and Punish the Innocent soon to illustrate the grave flaws with the tariff system – one that sees no problem with treating the truly guilty more leniently than the innocent for the same crime. As Lloyd Paris – Tony’s brother – said, “Things are back to front!”

Guarantees

The families of murder victim Karen Skipper and her estranged husband Phillip who stood trial wrongly for her murder want a guarantee from the Secretary of State (Minister) of Justice that in the absence of compelling new evidence such as DNA, acquittals must be respected. They claim that the Crown Prosecution Service (CPS) could never have charged Mr Skipper, if he had been alive, on such evidence as Mark Evans QC allowed to use, especially as there was DNA evidence implicating another man, Evans’ client, so why was the defence allowed to do it without requiring a proof of guilt?

The victms’ families are shocked and disappointed that the criminal justice system allowed them to be victimised again with such poor quality evidence. A prison informer, Paul James had claimed at Mr Skipper’s trial in 1997 that Skipper admitted accompanying Mrs Skipper to Birdies Field that fateful night, but James refused to co-operate when called by Pope’s defence.

“I know that he [Mr Skipper] is dead and can’t defend himself,” James said, before the defence abandoned the attempt to get evidence from him and relied on statements he had made previously, along with evidence from earlier trials.

Quality

The quality of evidence did not improve. Mr Skipper’s neighbour, Pauline Horton, came forward after 13 years, claiming that she saw Mr Skipper following his wife towards Birdies Field in Cardiff on her last walk. She insisted that she was afraid of the Hell’s Angels, but neither Mr Skipper nor his friend David Davies were Hell’s Angels.

Horton accepted that both Mr Davies and Skipper had been perfectly nice to her. At best, she was, as prosecuting counsel Ian Murphy QC, had suggested, mistaken, but she would not countenance her evidence being rejected. “Don’t you call me a liar!” she told Mr Murphy angrily, but her evidence did not stand up. Perhaps there was a more sinister explanation of her evidence than Murphy suggested.

Scientifically Ludicrous

DNA from blood-staining on intimate areas of Mrs Skipper’s clothing linked Mr Pope, not Mr Skipper, to the crime. Mr Evans had claimed that the blood-stains had rehydrated from dew overnight and given the impression of fresh blood despite four scientists agreeing that direct contact was the most likely explanation and that rehydrated blood appears different from fresh blood.

Mr Pope’s explanation that Mrs Skipper’s dog bit him three weeks earlier after he removed a thorn from its paw and that Mrs Skipper had given him a tissue and transferred the blood to her pocket was rejected by the jury. It was a fanciful explanation and one that was flatly contradicted by the science.

Obscene

Mr Skipper had been eliminated as the source of that blood on the jeans fifteen years ago. At the time the prosecution claimed that it was not important. They had little choice as the prosecution was dead in the water if that evidence was acknowledged for what it was – proof of innocence. The prosecution in 1997 chose to ignore or minimise the importance of that evidence, which was seized on by Mr Pope’s QC, Mark Evans.

But the blood-staining was on intimate parts of Mrs Skipper’s clothing and was therefore quite obviously significant. It was clearly very inconvenient in the prosecution of Phillip Skipper.

If the significance of those blood-stains had been fully appreciated during the original investigation in 1996 or during Mr Skipper’s trial in 1997, it would have been crystal clear that Mr Skipper was innocent. That in turn would have ended his ordeal promptly and prevented a deplorable defence from being gifted to an unscrupulous man.

Nevertheless, Mr Pope was allowed to ignore Mr Skipper’s acquittal and accuse him twice more without any standard of proof.

“It should not be allowed”, said miscarriage of justice survivor Michael O’Brien. “A similar thing happened to me after I won my appeal. Phillip Skipper was entitled to be presumed innocent after his acquittal. Only compelling new evidence like DNA should allow an accusation like that against a person who has been acquitted or had their conviction quashed”.

Mr Justice (Sir Nigel) Davis at least had the good grace to stress that it was owed to the memory of Phillip Skipper to acknowledge his innocence.

by Satish Sekar © Satish Sekar (June 1st 2011)

Lectures

If we intend to keep handing out lectures on human rights to other governments, then we have to address our own failings. There are seven vindication cases in Britain in the DNA age. Two of them occurred in London, one in Hampshire, another in West Yorkshire, one near the border between Buckinghamshire and Hertfordshire and the other two were in Wales.

For legal reasons the Welsh ones could not be detailed[2] – there were trials in progress in both cases. John Pope had won an appeal, which led to a retrial in Newport before Mr Justice Roderick Evans. I covered that trial. The other trial was the Lynette White Inquiry Police Corruption Trial.

Both Phillip Skipper and the Cardiff Five had been vindicated, but were still facing unwarranted accusations. Nevertheless, the effects still need to be addressed in all vindication cases.

Shameful

Stefan Kiszko is dead and so is his remarkable mother, Charlotte. Both went to their graves without receiving assistance to rebuild their lives or even compensation. By todayʼs provisions, Kiszko was entitled to both, but he was long dead.

He lost over sixteen years of his life for a crime he did not commit and it was patently obvious early in the Lesley Molseed Inquiry that Kiszko was innocent. He could not produce semen, but that was on her clothing and was therefore an early and important clue.

The late Jack Dibb was charged over the Kiszko case as was his then subordinate Dick Holland and a forensic scientist Ronald Outteridge. The charges were dropped by a magistrate after Dibbʼs death. Years later a hit on the National DNA Database resulted in the identification of Ronald Castree as the prime suspect.

Thirty-two years after Molseed was murdered Castree was convicted. He still protests his innocence, but the real victim of the miscarriage of justice is Kiszko. He was wrongly labelled a pervert for exposing himself to school-girls. It later emerged that this was the justification for suspecting him in the first place, but that accusation was false too.

Years later, with Kiszkoʼs life ruined, the girls admitted that they had lied about him for a laugh! This illustrates the dangers of relying on the uncorroborated claims of immature people. The wheels of justice began turning at break-neck speed as a result of that and the subsequent obsession with Kiszko.

Appalling

Kiszko was failed disgracefully by the criminal justice system. His defence layers knew about the semen issue, but failed to present evidence at his trial that would have cleared him beyond doubt. The consequences were dreadful. He was attacked in prison and damaged irreparably by his ordeal. He never recovered and never saw Castree brought to justice.

While his defence lawyers at trial must take the lionʼs share of the blame and deservedly too, the rest of the criminal justice is not blameless either. The evidence against Kiszko was hopeless.

He was a vulnerable man coerced by inadequate interviewing methods into confessing to a crime he did not commit. Progress has been made in this respect. Confessions, especially from such vulnerable people, are not treated as the Holy Grail they once were.

Such advances are signs of an integrated approach to evidence having been developed, but too late for Kiszko. If the scientific evidence had been handled in a competent manner, the truth could have emerged in time to prevent that tragedy occurring.

Sadly it is too late to do anything for Kiszko or his mother, but his experiences must be recalled with disgust and a determination to learn from them. Nothing resembling this must ever be allowed to happen again.

Investigative methods must be fully integrated with advances in science and also current forensic science techniques. Rules of evidence must be adapted too. For evidence of innocence to be available early in this process, yet take sixteen years to emerge, while an innocent manʼs life was destroyed, is utterly unacceptable.

Post-Conviction Relief

Sean Hodgson, at least is still alive and eligible for both compensation and the inadequate after-care provided by the government through the Miscarriages of Justice Support Service (MJSS),[3] a misnomer if ever there was one. Hodgson served nearly three decades in prison for the rape and murder of Teresa di Simone. David Lace was the real perpetrator. His post-conviction confession was found to be unreliable, yet discrepancies in Hodgsonʼs account and the lack of scientific evidence were discounted. His new lawyers were told that samples to test no longer existed, but eventually testable material was located and Hodgson was cleared. Vindication followed soon, as Laceʼs confession was tested against scientific evidence. His guilt was proved, but Lace was long dead. Hodgson qualifies for assistance from the MJSS and is eligible for compensation too. Of seven vindication cases in Britain, Hodgson alone is eligible for both and alive to claim it.

Britainʼs Supreme Court recently produced a definition of a miscarriage of justice with reference to a compensation claim by Andrew Adams, but regardless of it, many victims of miscarriages of justice including the vindicated remain excluded from eligibility for compensation and after-care too.[4] There is no doubt that Colin Stagg is and always was completely innocent of any involvement in the murder of Rachel Nickell. It is hard to find a more blinkered investigation than that one. The honey-trap was more in keeping with Cold War intrigue than legitimate investigation of crime, yet it was attempted. It was quite rightly thrown out by Mr Justice (Sir Harry) Ognall in 1994 after Stagg had been in prison on remand for the best part of a year.

Stagg emerged to a vitriolic whispering campaign, fuelled among others by disgruntled police officers who felt aggrieved that the evidence they had gathered was not accepted. The honey-trap officer, referred to as Lizzie James, was compensated before Stagg after it affected her career – she left the police and country too over it. There never was any credible evidence against Stagg; it had to be generated through those unethical methods. It also helped to end the career of Paul Britton; he deserved nothing less. Despite his efforts to distance himself from the scandal, he is not a victim in this and nor are the officers who allowed that honey-trap to proceed and nor is the CPS either.

An integrated approach to crime investigation could have prevented the whole fiasco from happening. Stagg was not a likely killer. There was nothing in his criminal record or character traits that justified suspecting him at all and there was no scientific evidence against him either. Meanwhile, the real killer, Robert Napper, should have emerged as a suspect far earlier and at least two lives could have been saved if a rape allegation had been investigated competently. DNA testing eventually resolved the case beyond doubt by conclusively linking Napper to Nickellʼs murder, but this was a catalogue of errors in both investigations and that continued after resolution too.

Stagg has been paid substantial compensation and rightly so, but were the same thing to happen now, he would not be eligible. That is shameful, but it is in some ways worse that he does not qualify for assistance to rebuild his life. Any definition of a miscarriage of justice that does not include Colin Stagg, is an affront to common sense and justice too and any scheme to assist victims of miscarriages of justice to recover from their ordeal that does not help him is a disgrace. But it does not stop there.

In 2006 four young men should have received an apology from the Commissioner of the Metropolitan Police. A crass error by forensic scientist Sian Hedges was discovered during a review of the Damilola Taylor Inquiry. Original suspects Ricky and Danny Preddie had been eliminated due in part to the absence of blood evidence on their property. It later emerged that a training shoe belonging to Danny had clear traces of blood on it – the photograph proved it.[5] The blood was DNA tested and found to have been shed by Taylor. Fibre evidence also linked them to the 10 year-oldʼs death. The Preddie brothers changed their account of their movements as a result, but were convicted of manslaughter in August 2006.

Four years earlier four boys were acquitted by judge or jury. The case against them was a travesty. A witness referred to in court as Bromley was utterly unreliable to put it mildly, but there were other signs that something was badly wrong as well. A trawl of Feltham Young Offenders Institute produced so called evidence, some of which came from witnesses of the lowest possible order. Instead of helping those boys to rebuild their lives – one of them has been deported as a crime risk – they have been left to fend for themselves and are denied even an expression of regret, let alone apology. The effect the wrongful accusation of murdering Damilola has had on his life and subsequent conduct has not been considered on that decision or on the future. He is an adult now, living in the Democratic Republic of Congo, a country that is far from stable and to which he has little or no connection to any more, as he left it aged nine.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2] This article was part of a presentation made at a conference to medical practitioners, which included forensic    pathologists, in 2011. At the time two trials were taking place – the Lynette White Police Inquiry Police Corruption Trial and the retrial of John Pope for the murder of Karen Skipper. Both of these re vindication cases and ones that FIP has taken an interest in. Pope was subsequently convicted. The Police Corruption Trial was halted on the orders of the judge, following serious failures by the prosecution. This is ironic as the CPS imposed conditions on others, especially myself and Fitted-In while displaying extremely shoddy standards itself, which should have led to serious consequences for it. This is one of the reasons we still demand a Truth and Justice Commission into the whole of this case, rather than the deeply flawed processes that have occurred so far.

[3] Hodgson died in October 2012, aged 61.

[4] The sadly defunct Fitted-In Journal covered this issue in A Deafening Silence. Regrettably other media, including the Guardian and New Statesman, insist on ignoring this scandal, while claiming that it is the type of story that is important to them. We will republish it soon.

[5] See The Partial Truth Truth – Errors of Judgement at http://fittedin.org/fittedin/?p=743 for our coverage of this issue.

by Satish Sekar © Satish Sekar (June 1st 2011)

Cyclone of Injustice – Joyce Gilchrist

Joyce Gilchrist was once fêted – the go to analyst, but there was a hidden story. Gilchrist swept through Oklahomaʼs criminal justice system – a cyclone of injustice – leaving a trail of devastated lives in her wake. This included victims of miscarriages of justice and the original crimes too as well as the people of Oklahoma whose interests were betrayed by Gilchristʼs failures.

Among the cases that she got horribly wrong was that of Jeffrey Todd Pierce. He was convicted of rape, largely due to evidence manipulated by Gilchrist. Pierce had a strong alibi and no previous convictions. He lost fifteen years of his life for a rape he did not commit. There is no doubt that he is innocent as the real rapist Omer May Jnr. was identified by DNA testing, but May has not and never will be charged with the vicious offence that he committed.

Why? Because the statute of limitations ran out while Pierce was wrongly incarcerated. That is obscene. There should be no statute of limitations on justice, especially when it expired due the criminal justice system persecuting an innocent man. Whether it takes days, years, decades, or even centuries, there should never be a statute of limitations of any kind on the search for justice.

This is not the only vindication case involving Gilchrist. Even now, after her appalling practices were exposed at the cost of her job and others their liberty – possibly lives even – Gilchrist sees herself as the victim, outrageously claiming that she is being punished for alleging sexual discrimination, rather than her practices, which were hopeless at best and more likely corrupt.

Even the vindication of people like Pierce did nothing to chasten Gilchrist, let alone convince her that she was wrong. As with Michael Heath in Britain, the investigation into her practices slammed the lid shut on a scandal of epidemic proportions, especially regarding those who had already been executed.

Gilchrist could not have thrived in the grey areas of disclosure had there been an integrated approach between the forensic sciences and the judicial processes. Oklahoma put funds aside for DNA testing in the wake of the Gilchrist Affair, but the fallout was controlled, meaning a perfect opportunity to deliver important changes to the system that could have prevented repetition was needlessly lost.

The use of Police Laboratories is a case in point. There is no doubt whose side scientists working in those labs were on and were meant to be on. And that creates the conditions where ʻscientistsʼ like Gilchrist can operate, but Gilchrist did not function in a vacuum.[2]

The criminal justice system of Oklahoma is culpable too. Colleagues that opposed her were marginalised and accused of professional jealousy. Meanwhile, prosecutors loved her and senior jurists defended her tooth and nail. She flourished through this dark alliance of injustice.

She wrecked many lives with impunity and the system tolerated it and encouraged it even by failing to heed the warning signs repeatedly. At least eleven sentenced to death in her cases were executed.

Some were freed from Death Row, but the Gilchrist Scandal demonstrates the need for eternal vigilance throughout the forensic science and legal communities. Sadly, there are some experts who not only cannot be relied on to tell the truth, but are also not deterred from shoddy practices even with lives at stake.

Despicable

The death penalty has gone in Britain, but powers of life and death remain. Nothing illustrates this better than cases where there is no doubt about innocence because no crime occurred, or the real perpetrator was caught and convicted, or identified if dead. It does not even require a trial to ruin lives. For example the tragic story of Jaycee Lee Dugard claimed another victim.

Her step-father Carl Probyn witnessed the then 11-year-old girl being kidnapped by two people near her home in Lake Tahoe, California on June 10^th 1991. Nancy Garrido bundled Jaycee into the car that Probyn described, while her husband Phillip, a registered sex offender, drove the car.

School-children witnessed the kidnapping too. Probyn gave chase on a bicycle, but could not keep up with the kidnappers. After an eighteen year ordeal Jaycee was found alive on August 26^th 2009, having been kept captive by the fiendish couple for almost two decades. Her eighteen year disappearance had been resolved, but the girlʼs childhood had been stolen.

Garrido had repeatedly raped her and Nancy was culpable too. Jaycee had two daughters by him, both the result of the rape of a minor. The girls were told that Jaycee was their sister. They know the appalling truth now. The Garridos pleaded guilty to kidnapping and sexually assaulting Dugard on April 28^th 2011.

Investigative opportunities were missed and vital time was wasted, investigating Probyn, whose marriage to Jayceeʼs mother Terry was destroyed by the kidnap and suspicion directed at Probyn, who was not only innocent, but had provided solid investigative leads.

Consequently, Probyn is a victim of this disgraceful case too – nowhere near the same extent as Jaycee and her daughters – but a victim nevertheless. He was never charged, let alone wrongfully convicted or charged, but such accusations are soul-destroying.

There was smoke – hot air actually – but no fire there, although the suspicion still managed to burn Probyn, who lost his marriage and family to it.

The State of California let them all, especially Jaycee, down appallingly. She has been compensated and is trying to rebuild her life, but nothing can ever compensate her for that ordeal, or for the failed opportunities to rescue her.

Garrido was a convicted rapist and subject to probation visits and from police over the eighteen years. He had pleaded guilty to several counts of kidnap and rape and was jailed for 431 years on June 2^nd 2011. His wife got 36 years to life, agreeing to waive appeal rights.

While the overwhelming measure of sympathy and support must go to Jaycee, her mother, daughters, biological father and Probyn are victims too.

Vindicated

Horrid as it undoubtedly was to be wrongly suspected of involvement in such an offence as the kidnap of Jaycee Lee Dugard, it doesnʼt and cannot compare to actual incarceration for crimes committed by others. There are, according to the Innocence Project, over a hundred cases in the USA where the real perpetrator has been identified after a miscarriage of justice.

The American definition is however inadequate in our opinion as it does not include people like Probyn, but we have clearer examples that illustrate the point. There is no doubt about the vindication cases, yet there are no investigations of what went wrong – no attempt to understand how justice miscarried and why.

Not even attempts to establish if forensic science could have prevented it with one exception in Britain. But the USA is not alone. It has happened in Canada; it has occurred in Australia and New Zealand too and even in the Netherlands. Spain has suffered it too. Even China, Hungary, Belarus, Russia and a strange one in South Africa too have experienced them.

Absurd

This does not mention jurisdictions where the supposedly deceased people turned up alive and well later. Mpagi Edward Edmary spent eighteen long years on Death Row in Uganda for a murder he not only did not commit, but for a crime that did not happen. His cousin, Fred Masembe died on Death Row awaiting execution for this non-crime, untreated as he was there to be killed – an innocent man!

Meanwhile, George William Wandyake was alive and well, and even thought to have attended their trial. Why did the Ugandan authorities not demand proof that Wandyake was dead before trying, let alone convicting, innocent men of murder? Where was the compelling medical evidence justifying this prosecution?

It disgraces every concept of justice that this shambolic prosecution was allowed to pollute a court of law. It is also interesting that in all the discussion of human rights abuses in China, not a word is spent on vindication, despite a few cases where cases were solved by confessions secured by beating suspects until they confessed.

Notorious

A notorious double murder of police officers – they were executed – was solved in this manner. The defendant showed his injuries to the judge. He was sentenced to death, but it was suspended later.

Du Peiwu could easily have rotted in a Chinese prison for a crime he did not commit, but for sheer luck. The real perpetrators were arrested on other matters and confessed to the crime that Du had been convicted of.

It was a shocking miscarriage of justice in every way, especially regarding its victim. The man police officers tortured into confessing to a crime he did not commit was no ordinary victim of injustice. Du Peiwu was a fellow police officer, but that didnʼt save him.

Tolerating Injustice

There are other extraordinary cases of vindication in that jurisdiction too. If ever a criminal justice system cried out for an integrated approach between forensic sciences, investigative methods and court procedures, surely it was China.

These injustices were secured through torture, but let us not cast the first stone against China until we address the glaring flaws in our own system. We have tolerated rendition and the abuse of our citizens in the name of the ʻWar on Terrorʼ, while condemning other governments over their records.

By what right can we condemn other governments while tolerating these abuses and others that are ignored, undiagnosed even – abuses that shame and disgrace our society? We permit undeniably innocent people who have been wronged in our name to be treated shamefully.[3]

Let us remember Jaycee Lee Dugard and her family. They were betrayed by their own criminal justice system. No compensation can ever make amends. $20m does not return her stolen life and innocence to her.

It does not justify the failure to protect them – rights they had every right to expect and demand. Compensation does not, or at least should not, cater for their care needs. The psychological damage that has been done to them all needs to be addressed at state expense.

They were failed by the system that had a duty to protect them, so it owes each of them restitution to the lives that were stolen from them. And that duty extends to other innocent victims of injustice, especially the vindicated and that should begin here.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2] I intend to highlight the effect of Oklahomaʼs cyclone of injustice in a forthcoming book.

[3] I am currently researching a book on these cases and others like them, which I hope will be published next year.

by Satish Sekar © Satish Sekar (June 1st 2011)

Introduction

There can be no doubt that forensic sciences – and I use the plural deliberately – have advanced in leaps and bounds over the last quarter of a century. The programme CSI is science-fiction, that is fiction based allegedly on forensic science, but it does illustrate the importance of my main theme – the need for an integrated approach between these sometimes competing sciences and also between the sciences and the needs of lawyers within the adversarial legal system.

However, there is another urgent theme that must be addressed – the treatment of the innocent and what role medical practitioners have in helping to resolve the many issues that they face, but of course, those issues come later in the process. The first stage is the use of forensic sciences as an investigative tool that can correct or hopefully even prevent miscarriages of justice, which would avoid the need for any restorative justice.

In the past, competition between scientific disciplines and even the legal process caused unnecessary difficulties that contributed to the miscarrying of justice. That illustrated the need for an integrated approach between these disciplines and lawyers too, especially as defendants are held responsible for the conduct of their defence through their instructions. Today this means that they have to be aware of forensic science. With fingerprints and DNA that’s not a problem, but what about other disciplines? Forensic entomology, pathology, botany, fire-analysis, data-logging and pig-burning are equally important forensic sciences for instance?

Many may struggle to know who to instruct regarding such sciences, and in some cases what use it could be and that includes scientists or lawyers, partly because they are specialists, who know their area of expertise and try to avoid straying from their comfort zone. Therefore, I suggest, cases require an overview conducted by a forensic scientist, or expert, who can identify any forensic science that could assist to get to the truth and which expert or experts are best-equipped to provide answers.

The adversarial system suffers from the lack of an inquisitorial element, which can allow the truth to fall between the competing interests of prosecution and defence lawyers. The investigative process is of course meant to be inquisitorial, but what is the experience in practice?

The police investigate crimes, but they perform a task that does not include an objective investigation of the possibility of innocence, especially after arrest. It’s not their function. By that stage both they and the Crown Prosecution Service (CPS) have invested their reputations in proving the guilt of the defendant(s), so they have no interest in producing evidence of innocence. On occasion such evidence has been suppressed if discovered.

Once they have a confession and the CPS has charged the defendant, they often see no need to investigate further through forensic sciences, especially in the current economic climate, but this can be a false economy. The extraordinary case of Neil Sayers, (which will be covered in the forthcoming series of articles An Integrated Approach – Righting Wrongs) demonstrates this.

Forensic sciences can offer tests which could resolve issues in cases, but the competing interests at trial can lead to tactical decisions not to conduct tests or instruct experts. But it is far from one way traffic. Defence lawyers oppose the police and prosecution and have their own vested interests too. They also choose not to get certain tests conducted, if they fear that it could prove the opposite of what they want to show.

The end result – as happened in Sayers’ case – is that some tests that could have resolved vital issues were not conducted and experts were not instructed. This is not saying that he is necessarily innocent – just that he and anyone in his position should have the right to have their claims of innocence tested rigorously as the opportunity existed, but neither prosecution nor defence did so.

Everything changes after conviction, as it did for him. The tactical considerations governing the trial process no longer apply and the convicted defendant no longer has much to lose from instructing experts and getting tests conducted, but the law will not allow them a second bite of the cherry and that is entirely reasonable at least in certain circumstances. However, there are cases where unreasonable expectations are placed on defendants to the point that some did not get a first bite as they did not understand the significance and potential of forensic sciences to help them and the jury too.

Disorder

These developments and techniques demonstrate the need for an integrated approach between the various forensic science disciplines and also the criminal justice system as a whole. This theme recurs in Sayers’ case, but it would be a mistake to think that this only happens in the most serious cases like murder. It can and has happened in far lower profile ones. For example, it happened to a man facing trial for grievous bodily harm and violent disorder when he and his friends were the victims of a cowardly racist attack.

Three black men were racially abused and then attacked by a far larger group of racist thugs in Norwich in April 1989 – the Hillsborough tragedy occurred on that very day. Once the attack got serious and involved weapons from a nearby building site, Brian Moore, Terrence Alexander and Carlos White felt that they had no option but to defend themselves. They were joined in their fight by four white men who stumbled across the attack and helped the three black men to try to prevent them getting hurt.

Moore and his friends defended themselves with available weapons too and reported the incident to police later. Incredibly, they too were charged. That cost the CPS the witness testimony of the victims against the perpetrators, as the victims had been turned into defendants themselves, rather than witnesses by an outrageously crass decision by the police to charge them and another by the CPS to prosecute them. The same thing happened to the white men who helped Alexander, Moore and White.

The credibility of the black victims and the white men who helped them had been compromised as witnesses before the jury by those ludicrous decisions and it soon became clear just how unjust the decisions had been. The leader of the racist thugs, Jonathan Galbraith, was among those acquitted on the orders of the judge, His Honour Judge Binns, without being required to provide a defence as a result of those decisions.

Shortly afterwards, the evidence of Galbraith’s central role in the shameful events of that afternoon emerged. While Galbraith and other members of his gang savoured their ill-deserved freedom, a victim of the attack, Moore, was convicted of violent disorder and sentenced to two years imprisonment. White was acquitted, despite admitting hitting Galbraith on the head with a piece of wood, so what was the difference between Moore’s case and White’s for example?

That emerged during Moore’s appeal in July 1991, almost five months after he was incarcerated. The only evidential difference was that Moore allegedly banged Galbraith’s head on the pavement. There were witnesses for and against such an interpretation, but there was an obvious issue that has never been satisfactorily resolved. If Moore had banged Galbraith’s head on the kerb, surely the medical records would unequivocally prove that such an attack had taken place.

The jury heard no evidence about this. Galbraith had some head injuries. Moore had placed himself near Galbraith, but insisted that all he did was drag him out of the road, saying that Galbraith’s head may have hit the pavement, but it certainly was not banged intentionally, or violently. If true, he would be supported by the medical records, but Moore’s defence at trial kept Galbraith’s medical records out of the hands of the jury, because they believed that they would not have been helpful.

They may have been right at that time, but hindsight is 20/20. After Moore’s appeal succeeded on sentence only – they didn’t appeal on conviction, even though Moore maintained that he had acted in self-defence – the evidential reason for his conviction emerged. It had to have been based on the alleged head-banging incident, but yet again it demonstrated the need for an integrated approach to the case as a whole, especially between witness evidence, the judicial process and medical science.

Some of Galbraith’s hospital records had been disclosed, but the significance was not only not known at trial, it was impossible to predict. Moore’s case hinged entirely on this alleged incident. If he had banged Galbraith’s head on the pavement, one of two things should have happened.

Firstly, he should have been convicted of grievous bodily harm – he was charged and acquitted of that offence – and secondly the medical evidence should have been consistent with that accusation. How could violently banging a then defenceless man’s head on a pavement be anything less than grievous bodily harm and how could any lawyer be expected to think anything else?

Consequently, it was reasonable for Moore and his defence to believe that he had been cleared of banging Galbraith’s head on the pavement, when he was acquitted on the orders of the judge of grievous bodily harm. The first they could have known otherwise was when the appeal judges based his violent order conviction on that alleged incident.

The use of this incident to justify the conviction raises issues of double jeopardy at a time when it was an inalienable principle of British justice. Moore was not seeking a second bite of the cherry – he wanted a first bite. Legal aid was obtained to instruct the forensic pathologist, Dr. Iain West, and his conclusions showed that while Galbraith had head injuries, there was nothing consistent with violent head-banging on the pavement.

Moore’s case languished at the Criminal Cases Review Commission (CCRC) while the case against him seemed in tatters. He was free, so his case was not considered a priority. It remained gathering dust, unable to progress to review. West died in July 2001 without having been contacted by the CCRC, which eventually instructed an expert whose conclusions were vague.

Its expert would not rule out the possibility that head-banging could have taken place, but did not say that it had. The CCRC could have requested all of Galbraith’s medical records – it would have had a better chance of getting them – and then tackled the dispute between the experts, especially as West could no longer defend his opinions.

The dispute between West and the CCRC’s expert was not resolved. With West sadly deceased, it surely should have instructed other experts to resolve the dispute between the experts. Instead the CCRC moved the goalposts. Having decided that the evidence did not exclude the possibility of head-banging entirely, regardless of the strong opinion of West that it did and failing to resolve that, the CCRC claimed that the conviction could have been obtained by threatening gestures and behaviour allegedly made by Moore. It failed to say what these were and when they were allegedly made and what the evidence that suggested it had happened was.

Moore deserved a fair examination of his case to establish if there was realistic prospect of the Court of Appeal intervening. He did not get that. Shorn of the head-banging incident, the justification for the conviction provided by the three appeal judges had gone, as according to them, there is nothing else to distinguish Moore from his fellow victims of the racist attack, so surely there was a reasonable prospect that the Court of Appeal would intervene if asked to on the basis of new evidence regarding the unlikelihood that it had happened at all.

The Crown could not provide any medical or scientific evidence at all supporting its claim that it had occurred.  Moore’s case may not seem that important in the context of the others that resulted in sentences for more serious offences, but it is. It has deprived Moore of his good name and prospects. Nothing can restore his career now – an aspiring television presenter at the time, his career was wrecked by a case that yet again lacked an integrated approach to the law and medical science and witness evidence, which suggests that Moore’s conviction should not be considered safe.

At the very least the CCRC can legitimately be expected to resolve differences between experts in cases like this, especially as the solution is so obvious. Medical practitioners sometimes have powers of life and death. That’s obvious, but occasionally, so do forensic scientists, which may not be so clear. The classic example of this is the man termed by some ‘The Father of Forensics,’ Professor Sir Bernard Spilsbury.

It is clear from analysis of his work that he was prone to allowing his testimony to go beyond the limits of his science and for his prejudices to trump the interests of justice.[2] Nevertheless, in his day, Professor Spilsbury’s reputation was second to none, sending many to the gallows, but perceptions changed and had begun to do so even in his lifetime.

Perhaps fearing exposure and disgrace as his powers waned, Spilsbury took his own life in 1947. He is now seen by no less an authority than the eminent retired forensic pathologist, Professor Bernard Knight, as ʻa very dangerous manʼ.’

The consequences of Spilsbury’s reputation were extremely dire for some.[3] However, he made forensic pathology respectable and solved many mysteries – some of which were the most famous of his time.[4] Hawley Harvey Crippen, Frederick Seddon, George Joseph Smith, Major Herbert Rowse Armstrong and Alfred Arthur Rouse all went to the gallows on Spilsbury’s say so, but perhaps the most important of Spilsbury’s victims was Norman Thorne – executed for a crime he may well have been innocent of.

He coined a phrase that offers a stark warning of the risks of poor science and over-reliance on reputations, built on false foundations. “I am a martyr to Spilsburyism,” Thorne said days before he was hanged for a crime that probably never occurred – suicide was at least a possibility even if it suited Thorne’s convenience.

Thorne’s denunciation of Spilsburyism was years ahead of his time, but it should be remembered and today’s expert witnesses must also be aware of the consequences of inflexibility in their evidence. Once Spilsbury had made up his mind, nothing could change it, including evidence, which sadly finds an echo in some of today’s experts in many jurisdictions.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2]This review of Andrew Rose’s book Lethal Witness: Sir Bernard Spilsbury, Honorary Pathologist at http://www.telegraph.co.uk/culture/books/non_fictionreviews/3667415/An-over-celebrated-pathologist.html gives a flavour of the controversial pathologist’s methods.

[3] The Fitted-In Project will be publishing a pamphlet on the consequences of Spilsburyism and its legacy in 2016.

[4] For further information on the former Fellow of the RSM see http://www.timesonline.co.uk/tol/news/science/article5429780.ece

1 Mr Michael is now the Police and Crime Commissioner for South Wales. The position replaced Police Authorities with the exception of London, which transferred Police Authority powers to the Mayor of London.

]]> https://fittedin.org/fittedin/?feed=rss2&p=1032 0 https://fittedin.org/fittedin/?p=1027 https://fittedin.org/fittedin/?p=1027#comments Wed, 01 Apr 2015 16:00:30 +0000 http://fittedin.org/fittedin/?p=1027 Read more]]> By Satish Sekar © Satish Sekar (April 25^th 2011)

Suspicions

Before police investigating the rape and murder of Nienke Kleiss and attempted murder of Maikel Willebrand ‘discovered’ Kees Borsboom as a suspect, they believed that Willebrand was lying. The children had been playing in Beatrix Park in Schiedam. They were viciously attacked by a man. Kleiss tried to fight back, but the ten-year-old girl was no match for a homicidal Wik Haalmeijer.

Nor was the eleven-year-old Willebrand. He played dead and waited for Haalmeijer to go. Eventually he did and Willebrand sought help, which he received from passing cyclist Kees Borsboom – the man who called the police. The police did not believe Willebrand. The survivor – the crucial witness – was treated as their prime suspect. They thought that he had been too smart by playing dead.

His account did not fit the case-scenario that they had developed – a ridiculous one – so they thought that he was the perpetrator. It was absurd on every level. Willebrand was a child. There was no evidence that he had attacked his friend and there was clear scientific evidence that proved that someone else had been involved.

It was even thought by police that his injuries were self-inflicted. But then a coincidence occurred. Police discovered that their star witness Borsboom had exposed himself to a child – the child of a police officer. They decided that could not be coincidence. He becomes their prime suspect, but it was exactly that – a coincidence – a wretched one at that.

Miracle

The survivor was to all intents and purposes a defence witness, but Willebrand was marginalised. The surviving victim and therefore a key witness did not support the case hypothesis. Rather than admit that the hypothesis was the nonsense that it was subsequently proved to be, the victim/witness was marginalised and Borsboom was convicted in nearby Rotterdam.

Borsboom subsequently lost his appeal, but this was not the end of the story. Despite the indisputable evidence of innocence, he could have maintained his innocence to his dying day without being believed. It required a miracle and unusually it got one.

Both he and Willebrand would be vindicated by it. Wik Haalmeijer was arrested for two unconnected rapes. He not only admitted to those offences, but confessed to the Schiedammer Park crimes and insisted on DNA tests to prove his guilt. Nothing would induce him to withdraw his request. The DNA testing proved his guilt and also Borsboom’s innocence.

Unconscionable

The Dutch criminal justice has a good reputation abroad. Even activists, when told about the now notorious Lynette White Inquiry as the battle to free the Cardiff Three was nearing its conclusion in 1992, defended it. They said that it was impossible for justice to miscarry in the Netherlands as badly as it had in the Lynette White Inquiry for example.

Their outrage was limited to a peace activist who had been sentenced to two weeks imprisonment for daubing graffiti in an American base after breaking into it. They insisted that this was sentencing him twice for the same crime and they were outraged about it.

This, they insisted, was the worst miscarriage of justice in the Netherlands at that time. But they were wrong. The Dutch system was capable of miscarrying as badly as it had in Britain – worse even.

Vicious

On June 22^nd 2000 ten-year-old Nienke Kleiss was raped and murdered in Beatrix Park in the small town of Schiedam, which is within easy commuting distance of Rotterdam. She fought hard for her life and left vital clues to identify the perpetrator, but her efforts were wasted by police and the Dutch criminal justice system for four years as justice miscarried twice.

Her eleven-year-old friend, Maikel Willebrand, with whom she had been playing, was also viciously stabbed at the same time by Wik Haalmeijer. Willebrand survived by playing dead only to be absurdly accused of having inflicted the injuries on himself to cover up his crime – the attack on Kleiss. It was an utterly ludicrous allegation and an unconscionable way to treat a child who had been the victim of a vicious attack.

DNA testing would play a large part in this inquiry. It quickly proved that Willebrand had been telling the truth that he had been attacked himself and had played no part in the rape or murder of Kleiss, but police were still not prepared to listen to him at all.

They only moved on from Willebrand when they heard about a coincidence regarding the man who then became their new prime suspect Kees Borsboom – the man who had helped Willebrand after the crimes by reporting it to the police. And even then they would not accept Willebrand’s account because the boy would not turn on the man who had helped him.

Fanciful

DNA expert Richard Eikelenboom, then working for the Netherlands Forensic Institute (FSI) developed the DNA protocols that were used in the Schiedammer Park case. He knew that Low Template DNA had produced important results, quickly realising that both Willebrand and Borsboom had nothing to do with the crimes, but he was not the Reporting Officer and Ate Kloosterman’s report was very selective.

Kloosterman told the judge that the ‘foreign’ DNA results on Kleiss’ shoe and fingernails had been deposited by a child at her school. Unknown to the court there were compelling reasons to reject that explanation. Kleiss had been playing in water just before she was attacked and the surviving victim had told police that she had scratched her assailant – time would tell that she had.

The results on the shoe and elsewhere were also the same – it would have required an incredible coincidence for all of those alleles to have been deposited at various locations innocently, but Kloosterman knew the significance of the results well or should have done. It was obvious that they had been deposited by one person and not by Kleiss’ classmates. They had the DNA of the real perpetrator – enough to eliminate the entirely innocent Borsboom, but selective disclosure prevented that from happening.