Monday, October 14, 2013

Mark Lundy: New Zealand; (Aftermath 9); Reporter Mike White's superb "North and South" account of the central role played by Dallas, Texas pathologist Dr. Rodney Miller in securing his conviction;

PUBLISHER'S NOTE:  One of the Privy Council's  major reasons for ordering a retrial for Mark Lundy relates to testimony by a Texan pathologist  named Dr. Rodney Miller who, using a novel testing for fabrics (immunohistochemistry (IHC),   made the crucial finding that the two tiny specks of tissue found on a polo-shirt in Mark Lundy's car were brain tissue. The Privy Council  found that the conviction was unsafe after ruling that "At a minimum, that evidence raises questions about the use of  IHC in the forensic setting of a clinical trial. Its 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." In his January 2013 article published by the New Zealand publication "North and  South," investigative reporter Mike White  did a superb job of laying out the technical issues and setting out Dr. Miller's most certain conviction that his opinion was correct - and that the opinions of those who disagreed with him were not worthy of consideration. Reporter White's observations are reinforced by some of Miller's  comments which were set out in the  Privy Council decision:  "Professor  Helen Whitwell: "This indicates a lack of diagnostic quality and rigour by Doctor Whitwell. Her comments on my interpretation are wrong and I strongly disagree with her interpretation." Professor Sheard: "In relation to Professor  Phillip Sheard's criticism.........Dr. Miller was scathing."   Professor Kevin Gatter; "Dr. Miller professed to find Professor Gatter's failure to examine the slides for himself profoundly "shocking. He suggested that this failure was even more "egregious" because he had relied on the flawed opinions and misinterpretations of Phillip Sheard, "an Associate Professor of Physiology, (not Pathology)". Reading these comments brought to my mind some comments by Justice Stephen Goudge in his report on the public inquiry that  looked into many of Dr. Charles Smith's cases - including some where he strenuously attacked other "experts" who did not share his views. "Dr. Smith's sixth error was his unprofessional and unwarranted criticism of other professionals. In several cases,  Dr. Smith expressed opinions in court regarding other experts that were disparaging, arrogant and, most important, unjustified." Justice Goudge also cautioned pathologists, like Smith, from setting their opinions in terms of "certainty" - rather than disclosing the fact the techniques they use  may be untried or controversial -  and that other pathologists may reasonably  express contrary views in the circumstances.

Harold Levy: Publisher; The Charles Smith Blog;

STORY: "Lundy's Last Chance?" by reporter Mike White, publiahed by North South in January, 2013.

GIST: The case evolved around two tiny specks of tissue found on a polo-shirt in Lundy's car. Reporter Mike White writes  that:  "After initially being told by world experts there was no way of identifying exactly what type of tissues the stains were, police were pointed to a pathologist in Dallas, Texas, who claimed he was capable of conducting such testing. Rodney Miller tested the shirt stains using a technique called immunohistochemistry and confidently asserted they were brain tissue. Immunohistochemistry IHC is a test used in cancer diagnosis and research laboratories to help establish what cells are present.  However, it had never been done on fabric before, nor on a sample five months old; usually  all samples are tissues prepared specifically and swiftly for IHC testing - which is why other experts declined to help, not believing it was possible. At trial however, Miller's apparently ground breaking test proved the most convincing elements of the Crown's case. How else could Christine Lundy's brain tissue have got onto her husband's shirt unless he was the killer.  The defence claimed contamination or even police planting, and the only witness it called on the issue had limited knowledge of IHC and, crucially, hadn't even examined the slides that Miller claimed showed brain tissue.. In the end, Miller's evidence proved powerful and persuasive. After six weeks of evidence and seven hours of deliberation, the jury found Lundy guilty. He was sentenced to life imprisonement including 17 years without parole. The Court of Appeal increased this to 20 years. ........Miller has always bullishly stood by his findings and has even used this case publicly as an example of his skill. In 2008, he told North and South : "I can say with 100% certainty that the tissue on Mr. Lundy's shirt was central nervous system tissue. Not 99.999 per cent certainty - 100 per cent. Any appropriately trained pathologist or other scientist who examined the evidence that I did and reviewed the immunostains that I performed would come to the same conclusion that I did. If they did not, they are either incompetent, hopelessly naive or unwilling to believe the truth.""

The entire article can  found at:

 The entire Privy Council decision can be  found at:


Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.

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The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:

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