Wednesday, October 9, 2013

Mark Lundy: (Aftermath 2); New Zealand Herald reporter who attended the Privy Council hearing analyzes the Law Lord's decision on an issue by issue basis; (Must Read. HL).

STORY: "Law Lords: Why Lundy evidence doesn't add up," by Jared Savage, published by the New Zealand Herald on September 9, 2013.

GIST: Reporter Jared Savage, who was at the Privy Council hearing in London in June, takes a detailed look at why Mark Lundy's murder convictions were quashed on an issue by issue basis. Here's a taste: (The brain tissue issue): "The most damning evidence against Lundy at his 2002 trial was that two specks of tissue found on his polo shirt were brain tissue. The samples were found by the Institute of Environmental Science and Research (ESR) 59 days after the bodies of Christine and Amber were found and pathologists suggested the material might contain cells found only in brain or spinal cord tissue. But the samples were so poorly preserved that they were unable to state this categorically. The police took the stains to Texas pathologist Dr Rodney Miller. He was also unable to positively identify the tissue under a microscope but conducted an immunohistochemical (IHC) procedure, from which he categorically stated the tissue was from the brain or spinal cord. The IHC procedure had never been used before in this manner, and was powerful evidence that went unchallenged. At the original trial, the defence conceded the matter was brain tissue and the only issue was how it ended up on the shirt, possibly by accidental contamination during the police investigation. One of the grounds of the Privy Council appeal was that the expert evidence given by Dr Miller, and others who relied on his opinion, was "fundamentally flawed". Affidavits sworn by Professors Phillip Sheard, Helen Whitwell and Kevin Gatter - all experts in immunohistochemistry - concluded the tissue was poorly preserved and it was impossible to reach any conclusion as to the nature of the material. They concluded the IHC procedure was an "uncontrolled experiment" which could not produce a reliable outcome.(What the Privy Council said): "The fresh evidence "at a minimum" raised questions about the use of IHC in the forensic setting of a criminal trial. "[IHC's] widespread and successful use as a diagnostic tool is undisputed but its acceptance as a means of establishing a scientific proposition as an element of proof of guilt remains untested by any experimental or empirical means," said the Law Lords. "While these might not avail as a basis for excluding the evidence of Dr Miller, they certainly sound on the question of what impact the new evidence might have on the safety of the appellant's conviction."

The entire story can be found at: 

The complete decision: (All fifty pages); Must read! HL.


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