"BUT DR. ROBBINS DID COME BEFORE THE COURT AS A GENUINE EXPERT IN TERMS OF DRAWING COMPARI-SONS BETWEEN DIFFERENT PRINTS AND NOTING SIMILARITIES. SHE DEMONSTRATED HOW MEASUREMENTS COULD BE MADE AND WHAT MEASUREMENTS ARE SIGNIFICANT. SHE OBSERVED THE ODDITIES OF SHAPE AND THE CONTOURS OF MARKINGS WHICH WILL ASSIST IN AN IDENTIFICATION. COUNSEL FOR THE ACCUSED, NIELSEN, SEEMED TO HOLD THE VIEW THAT IF A WITNESS COULD NOT QUALIFY AS A SCIENTIST THEN HE OR SHE COULD NOT QUALIFY AS AN EX-PERT. EXPERTISE, HOWEVER, IS INVALUABLE IN A MULTITUDE OF TECHNICAL PROCEDURES, INCLUDING THE MEAS-UREMENT OF FOOTPRINTS AND THE IDENTIFICATION OF SIMILARITIES IN SHAPE. SO LONG AS DR. ROBBINS CON-FINED HERSELF TO THE AREA OF TECHNICAL EXPERTISE WITHOUT THE GLOSS OF A SCIENTIFIC THEORY AROUND IT, THEN HER TESTIMONY WAS WHOLLY ADMISSIBLE.
IN FACT, SUCH WAS THE NATURE OF HER TESTIMONY. WHEN SHE TESTIFIED BEFORE THE JURY SHE DESCRIBED THE MEASUREMENTS SHE HAD TAKEN TO COMPARE THE FOOTPRINTS MADE BY NIELSEN IN PAINT ON BROWN PA-PER WITH THE FOOTPRINTS ETCHED IN BLOOD. SHE DESCRIBED UNIQUE FEATURES OR CHARACTERISTICS WHICH AP-PEARED IN BOTH PRINTS, BUT SHE SHIED AWAY FROM ADVANCING A SCIENTIFIC THEORY THAT THE FOOTPRINTS OF NO TWO HUMAN BEINGS COULD BE THE SAME. ON THE CONTRARY, AFTER EXPRESSING HER OPINION THAT NIELSEN WAS INDEED THE AUTHOR OF BOTH SETS OF PRINTS (BASED ON SIMILARITIES IN MEASUREMENT AND MORPHOLOGY), DR. ROBBINS DECLARED THAT "IT IS POSSIBLE, BUT HIGHLY REMOTE" THAT A PERSON OTHER THAN NIELSEN HAD BEEN THE AUTHOR OF THE BLOODSTAINED FOOTPRINTS. THERE CANNOT BE A MISCARRIAGE OF JUSTICE IN ALLOWING THE JURY TO HEAR ADMISSIBLE EVIDENCE, WHICH IS WHAT THEY HEARD FROM DR. ROBBINS."
MANITOBA COURT OF APPEAL: HUBAND J;
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Steve Weinberg wrote in an article published by the Centre for Public Integrity published in a previous posting that Robbins was able to get away with her flawed science in the courtroom because of the "goodwill" of judges;
In Weinberg's words: "Prosecutors around the nation used to retain the services of a University of North Carolina-Greensboro anthropology professor named Louise Robbins, who said she could match crime-scene footprints to the footwear of perpetrators. Few other forensic scientists endorsed the validity of Robbins' techniques. But prosecutors called on Robbins over and over, banking on the good will of the trial judge to certify her as an expert. Robbins helped convict defendants across the nation until her technique was shown to yield results that were no better than chance would have produced."
It is instructive to examine how three justices of the Manitoba Court of Appeal leaned backwards to find a justification for accepting Robbins "expert" evidence in a murder case - while finding that there was no scientific basis for it;
I find it utterly alarming that the three justices Manitoba's highest court could not see the risks in exposing the two accused men to Robbin's evidence - with all of the prestige that her presence in the courtroom would bring - while ruling that she had no relevant scientific expertise which would be helpful to the jury; (The Ontario Court of Ontario did not demonstrate such folly when dealing with barefoot morphology evidence in the Dimitrov Case which is the subject of a previous posting on this Blog);
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The case involved appeals launched by Barry Craig Nielsen, and Jerry Carl Stolar, against their murder convictions at the hands of a jury.
Justice Huband noted in his October 11, 1984 decision for the unanimous three judge panel that: "Two former City of Winnipeg police officers, Barry Craig Nielsen (Nielsen) and Jerry Carl Stolar (Stolar), were convicted of the second degree murder of Paul Clear, after a jury trial conducted before Scollin, J. Nielsen and Stolar have both appealed.
"Both accused raise a defence of alibi, although neither chose to testify. There was strong physi-cal evidence suggesting that Nielsen and Stolar were at the scene when the murder took place. There were footprints in the area which might be attributed to Nielsen. Certain fingerprints and palmprints of Stolar were found on the murder victim's car. There was evidence, consisting of a tire print, that Nielsen's car was at the murder scene."
Hubard also noted that: "There were signs of struggle and commotion about the area. A great deal of blood was on the concrete roadway, and some of the blood was also found in the area of soft mud. Footprints at the scene indicated that two persons had dragged Paul Clears body from where he had been bludg-eoned, to a second motor vehicle at the murder scene. One of the assailants was wearing shoes, an impression of which was clearly imprinted in the mud. The other assailant had bare feet. His foot-prints appear in the mud, but, in addition, that person walked in the blood on the concrete roadway, and left very clear footprints, in blood. One of the tires on the right hand side of the second motor vehicle also drove through a patch of blood, and as the tire continued to roll forward when the vehi-cle left the scene, the tire left several distinct imprints, in blood, on the concrete roadway."
Specifically referring to the footprint evidence, he ssid that: "On March 13, 1982, a set of bare footprints in white paint on brown paper was obtained from the accused, Nielsen, in order to compare his footprints with the bare footprints in blood on the pavement at the scene of the murder. Comparisons between the prints were carried out by Dr. Louise Robbins, a physical anthropologist on the faculty at the University of North Carolina, and by Dr. Owen Facey, a scientist on the staff of the Metropolitan Police Forensic labo-ratory, London, England. Both Dr. Robbins and Dr. Facey came to the same conclusion. Based on a large number of measurements and shape characteristics, Dr. Robbins expressed her conclusion in these terms:
"The measurements, the number of measurements that fall within the range of variations of the series of footprints and especially the shape contour -- and I'm not talking about shape (indicating) fea-tures, but the shape contours of the footprint -- I might add with re-gard to the number of shape features that are examined, there is 67 I believe. So, 43 measurements and 67 shape features plus the acetate tracings, indicate that the person who made the footprints on the brown paper was the person who made the footprints in the colour photographs."
Question: "All right. Now, this is an opinion?
Answer:
"Yes, sir, it is.
Question:
"It is possible, is it not, doctor, that someone else other than the au-thor of the white footprints could have been the author of the blood-stained footprints?
Answer:
"It is possible, but highly remote."
Robbins was backed up by Dr. Facey, who'se evidence was described as follows by Justice Huband in his decision for the Appeal Court;
"Dr. Facey, a forensic investigator with Scotland Yard, noted the similar features of the two sets of prints, and concluded that it is mathematically unlikely that those characteristics would be found in any other person in a population the size of metropolitan Winnipeg.
"So that when you take all the different features into consideration, one ends up with the feeling that really, if you confine yourself to the male population of Canada -- sorry, male population of Winnipeg, it's so unlikely that you're going to find anyone else with this particular set of characteristics on both feet, that the person who made this set of prints also made the red prints in these two photo-graphs."
Question:
"There is a possibility, but you say it's very remote?
Answer:
"Yes, we never rule out the possibility that there is someone -- I haven't looked at all the people's feet in Winnipeg; it's just not possi-ble."
The absurdity of the bare-feet morphology evidence is evident in the passage of the Appeal Court decision where Huband observes: "One of the assailants of Paul Clear was in bare feet. It could well be sheer coin-cidence that when police officers attended at the Nielsen home six days after the disappearance of Paul Clear to obtain a statement the accused, Nielsen, was bare-footed. The evidence however goes further. It would seem that being unshod was not at all unusual for him. For example, the victim's mother, who had known Nielsen for some twelve years, testified that, "He went barefoot quite of-ten"."
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Now for the Court's ruling on the footprint evidence;
First, the grounds of appeal as set out by Huband:
"The accused, Nielsen, raised several issues on appeal, but the main thrust focused upon the footprint evidence. It was argued that Nielsen's footprints were illegally obtained on March 13, 1982, so that they might be compared to the footprints in blood at the scene of the crime. Further, objection was taken as to the admissibility of expert evidence from the two Crown witnesses, Dr. Robbins and Dr. Facey. These issues will be considered in due course, but I should preface that consideration by indicating that even if the footprint evidence were excluded on one ground or an-other, it would not make any difference to the outcome. Even without the footprint evidence the case against Nielsen is overwhelming. There is evidence of motive. The evidence is compelling that Nielsen's car was at the scene of the crime. The analysis of fibres adhering to the tarpaulin in which the victim's body was wrapped and buried, make it a virtual certainty that Paul Clear was conveyed to the gravesite in the Nielsen station wagon. The footprint evidence simply confirms an already convincing case. In my view, even in the absence of the footprint evidence, no reasonable jury, properly instructed, could come to any conclusion other than that Nielsen was guilty of murder as charged;
Second, the ruling on admissibility;
The admissibility of footprint evidence as to footprint comparisons: Counsel for Nielsen sought to exclude the evidence of both Dr. Robbins and Dr. Facey, the two expert witnesses called on behalf of the Crown, on the subject of footprints. The essence of the argument is that the process of comparing and identifying footprints has not yet achieved scientific acceptance. It was urged that opinion evidence should not be admitted when it is still uncertain whether there is professional consensus that the opinion emerges from valid scientific study.
At first blush there seems to be merit in the objection. Dr. Robbins, as well as Dr. Facey, first testified in a lengthy voir dire which was held to determine the admissibility of their evidence. Dr. Robbins is an anthropologist. She has been involved in the examination of footprints in anthropo-logical field studies where it becomes important to determine whether footprints represent one or two persons, or are part of a larger grouping of our ancient ancestors. Her interest in feet and foot-prints has also taken a more modern turn. She has collected and analyzed footprints from over' 1,000 individuals, and has become involved in identification and evaluation of comparative prints for investigative bodies, including the Federal Bureau of Investigation in the United States.
In the process of giving voir dire evidence Dr. Robbins expressed the view, flowing from her studies, that each individual has a unique footprint; that a combination of factors consisting of measurements and contours will be sufficient to provide absolute identification.
Whether this view is scientifically correct is open to question. There is simply not enough data and not enough scientific study of that data to establish the scientific validity of Dr. Robbins' opin-ion. There are grave dangers in allowing evidence to be tendered under the rubric of scientific opin-ion when its authenticity is still moot. Those dangers were expressed by O'Sullivan, J.A. of this court in his dissenting judgment in Regina v. Medvedew (1978), 43 C.C.C. (2d) 434, at 447:
"In the United States the general test for determining the admissibility of expert evidence in a case of a newly developed scientific technique is that set out in Frye v. U.S. (1923), 293 F. 1013 (at p. 1014):
'Just when a scientific principle or discovery crosses, the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must sufficiently established to have gained general acceptance in the particular field in which it belongs.'
"I do not know whether that test has been adopted in Canadian Courts or not but to me it makes sound sense and expresses a view in accord with the prin-ciples of the common law."
"But Dr. Robbins did come before the court as a genuine expert in terms of drawing compari-sons between different prints and noting similarities. She demonstrated how measurements could be made and what measurements are significant. She observed the oddities of shape and the contours of markings which will assist in an identification. Counsel for the accused, Nielsen, seemed to hold the view that if a witness could not qualify as a scientist then he or she could not qualify as an ex-pert. Expertise, however, is invaluable in a multitude of technical procedures, including the meas-urement of footprints and the identification of similarities in shape. So long as Dr. Robbins con-fined herself to the area of technical expertise without the gloss of a scientific theory around it, then her testimony was wholly admissible."
"In fact, such was the nature of her testimony. When she testified before the jury she described the measurements she had taken to compare the footprints made by Nielsen in paint on brown pa-per with the footprints etched in blood. She described unique features or characteristics which ap-peared in both prints, but she shied away from advancing a scientific theory that the footprints of no two human beings could be the same. On the contrary, after expressing her opinion that Nielsen was indeed the author of both sets of prints (based on similarities in measurement and morphology), Dr. Robbins declared that "it is possible, but highly remote" that a person other than Nielsen had been the author of the bloodstained footprints. There cannot be a miscarriage of justice in allowing the jury to hear admissible evidence, which is what they heard from Dr. Robbins."
"The expert testimony of Dr. Facey was not, even at the voir dire stage, clothed with the re-spectability of science or a scientific theory. Be noted the many similarities between Nielsen's foot-prints and those found on the concrete roadway, and he concluded that it was highly probable that they were made by the same person. Besides length and width, there are other indicators which will assist in identification, such as whether the toe pad leaves a mark, and whether the "stem" leading to the toe pad also leaves a mark or impression. The number of factors which corresponded led him to the conclusion that it was highly probable that the footprints were made by one and the same per-son. Dr. Facey's testimony was technical and based upon the unique knowledge and experience he had accumulated as a forensic scientist, but it was not put forth on the basis of an unproved scien-tific theory. It was admissible evidence, and it no doubt added to the already cogent body of evi-dence pointing towards Nielsen's guilt."
Harold Levy...hlevy15@gmail.com;
