Tuesday, June 3, 2014

Commentary; David Harold Eastman. (Aftermath 7; Inquiry report): What happens when the well known power of scientific evidence is unleashed in a criminal court without examination, transparency and restraint; Anatomy of a forensic massacre: Publisher's view;

PUBLISHER'S VIEW: Justice Brian Martin teaches us a valuable lesson in his report on the Eastman inquiry: We have to be mindful of the power of forensic science in the courtroom and  avoid the danger of  taking contentious forensic evidence at face value without properly investigating the records and the basis  upon which opinions are expressed. Judge Martin's indictment of the many failures to get the science right which stained the Eastman trial is nothing less than an account of a forensic massacre. At least, that's my view. Why not read what follows and make up your own mind?

Harold Levy; Publisher; The Charles Smith Blog.

David Harold Eastman didn't stand a chance when confronted with the well known power of scientific evidence in the courtroom. For a start,  as Judge Martin points out, after repeatedly emphasizing the reliability and importance of the  forensic evidence, "Counsel ridiculed defence  attempts to discredit Mr. Barnes and extolled the virtues of Mr. Barnes as a leading forensic scientist whose work had been 'critically examined' and confirmed and approved by independent overseas experts".  To make matters worse,  the trial judge  directed the jury that the critical evidence of Barnes concerning the gunshot residue  and his methodology had not been criticized and was supported by the overseas experts. In the judge's words, "This investigation must surely number as one of the most skilled, sophisticated and determined forensic investigations in the history of criminal investigations in Australia." But Judge Martin observes in his report  that "this inquiry has proved otherwise" and that the trial judge's view "highlights the danger  of taking contentious forensic evidence at face value without properly investigating the records and the basis  upon which opinions are expressed. Judge Martin then provides a point by point explanation  (frequently repeating the mantra "unknown to the defence")  of how  the most  skilled,  sophisticated and determined forensic investigation in the history  of criminal investigations in Australian history turned out to be an utter sham, and resulted in a terrible miscarriage of justice. Here it is: (Anatomy of a forensic massacre):

Unknown to the defence, Mr. Barnes gave evidence at the Inquest that lacked a proper scientific basis;

Unknown to the defence, Mr. Barnes, who gave critical evidence connecting the applicant's car to the scene of the murder, was  far from independent and objective. He regarded himself as a police witness and was  biased accordingly.

Unknown to the defence, Mr. Barnes regularly failed to comply with accepted forensic practice with respect to his case files and frequently failed to have his work peer reviewed. The failures of the scientist to comply with proper practices led to charges against him, of which the defence and the DPP (Director of Public Prosecutions) were unaware.

Unknown to the defence, overseas experts expressed concerns about Mr. Barnes and aspects of his work, including the database. Explanations by Mr. Barnes for perceived anamolies in the database were not accepted as satisfactory.

The evodence is overwhelming that Mr. Barnes lacked independence and was biased in favour of the prosecution. If disclosed and presented to the jury, that evidence would have been devastating to Mr. Barnes' credibility. Even considered in isolation, this evidence was highly important to the defence in its challenge to the reliability and credibility of Mr. Barnes. If such evidence had been coupled with the facts  underlying the disciplinary charges and  the matters proven by the audit of Mr. Barnes' case files, the entire complexion of the  forensic case would have changed dramatically. In stark contrast to the situation at trial where defece Counsel was struggling to find any chink in the armour of Mr. Barnes, it would have been the prosecution struggling to defend the integrity and reliability of Mr. Barnes.

In this context the views of the overseas experts concerning the emotional involvement of Mr. Barnes, and his role as an expert in too many areas, would have added weight to the suggestion that the jury could not rely upon the evidence of Mr. Barnes. The cumulativ effect of these matters is obvious.

Unknown to the defence, Mr. Barnes recognised there were deficiencies in the database. The defence and the DPP were unaware that the database was created by Mr. Strobel for the purpose of his thesis. The defence was  not informed that a second database was underway.

Significant information and material which could have directly and indirectly assisted the defence were not disclosed to  the defence. The failure by the DPP was inadvertent, but it was a failure with respect to a fundamental feature of a fair trial which left the defence without knowledge of material relevant to the forensic evidence at the heart of the prosecution case.

Conflicts within the forensic records, and between records and reports written by Mr. Barnes, permeate the entire forensic investigation. Making due allownace for the problems associated with the age of this matter, explanations by Mr. Barnes ranged from unsatisfactory to unacceptable.

The provenance of crucial exhibits is either non-existent or highly doubtful. Fundamental data was not   produced prior to trial. In some instances it is apparent that Mr. Barnes could not have undertaken the organic analyses upon which he claimed to have based his opinions. In other respects, the contemporaneous accounts strongly suggest that such analysis were not carried out and that Mr Barnes report was wrong.

These matters undermine heavily the opinions expressed at trial. Competent cross examination by a fully informed and prepared counsel would have destroyed Mr. Barnes credibility and exposed the conflicts, inadequacies and lack of data to support the opinions. The cumulative effect of those matters leaves no room for doubt that Mr. Barnes' opinion at trial that particles from the Mazda boot were PMC lacked a proper scientific foundation. 

Accepting that PMC was the ammunition used for the murder, at best the reliable evidence established that green flattened ball particles were found in the Mazda boot which were consistent with PMC and numerous other types of ammunition, including ammunition the applicant said he fired in rifles which he placed in the boot many months before the murder. In this situation, the presence of particles in the boot was still a piece of circumstantial evidence. Its weight depended on the jury rejecting as a possibility that the source of the particle was one of the rifles the applicant had placed in the boot.

As to the particle on the front seat of the Mazda (7E(a)) while SEM/EDX performed by Mr. Ross found primer residue consistent with PMC, he also located residue inconsistent with PMC.

 Analysed in this way, it is apparent that the presence of particles in the Mazda would have remained as a piece of circumstantial evidence capable of tending to connect the Mazda to the scene, but in a far less powerful way than the way in which the evidence was presented to the jury.

In essence, there was a failure by the AFP (Australian Federal Police) to comply with the duty of disclosure which was coupled with inadequacies and conflicts within the case file of which the defence were unaware. Similarly, the DPp and the AFP were unaware of those inadequacies and conflicts. Considered in their totality, if the Court of Criminal Appeal was faced with these circumstances, the Court would not hesiitate in finding that a miscarriage of justice had occurred..."


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Harold Levy: Publisher; The Charles Smith Blog;