PASSAGE OF THE DAY: "Mr Eastman served more time than the high profile case of
Perth man Andrew Mallard, who received a $3.25 million payout in 2009
after spending 12 years behind bars for a murder he did not commit. Mr
Mallard was cleared in 2006 and received an ex gratia payment of
$200,000 upon his release. Alice
Lynne "Lindy" Chamberlain received $1.3 million in compensation in 1992
after she had been wrongly convicted of killing her nine-week-old
daughter, Azaria, at Uluru in 1980. She spent about three years behind
bars before her sentence was overturned. A coronial inquest in 2012
found a dingo had killed the child."
STORY: "Eastman compensation case clear to proceed," by reporter Michael Inman, published by The Canberra Times on November 22, 2018.
GIST: "David Harold Eastman's bid to sue the ACT government for wrongful imprisonment is back on. An
ACT Supreme Court jury on Thursday returned a not guilty verdict on
whether Mr Eastman had murdered Colin Winchester in January, 1989. Lawyers
have speculated Mr Eastman could be eligible for up to $20 million in
compensation if he were to win a payout via the courts. David Eastman has been found not guilty of the 1989 murder of AFP assistant police commissioner Colin Winchester. The ACT government could, however, settle the matter out of court and provide Mr Eastman with an ex gratia payment. Governments can make ex gratia payment to compensate a person without having to admit liability. Mr Eastman served 18 years, 11 months behind bars for the murder after being found guilty at trial in 1995. A
2014 inquiry, however, found the trial had been a miscarriage of
justice and the full bench of the Supreme Court quashed the conviction. Mr Eastman's retrial for the murder began in June and ended with a verdict of not guilty on Thursday. The civil case, launched in 2015, had been stayed pending the outcome of the criminal proceedings. Mr
Eastman filed an ACT Supreme Court lawsuit alleging the territory is
liable to pay him compensation under two sections of the Human Rights
Act. Court papers, filed by Mr Eastman's lawyers, Ken Cush and
Associates, at the time, said the civil claim came as a result of their
client's unlawful detention and wrongful conviction. It alleged
the former Treasury official's imprisonment caused him deprivation of
liberty, lost income, to suffer mental harm, damage to his reputation,
and he had expended legal cost and time in fighting to reverse his
conviction. He has also asked for interest and costs. "[Mr
Eastman's] imprisonment and detention was unlawful by reason that the
deprivation of his liberty was not on grounds or in accordance with
procedures established by law," court documents said. The
government, in its defence, argued Mr Eastman's detention had been
lawful and the Human Rights Act did not give rise to any cause of
action. Mr Eastman served more time than the high profile case of
Perth man Andrew Mallard, who received a $3.25 million payout in 2009
after spending 12 years behind bars for a murder he did not commit. Mr Mallard was cleared in 2006 and received an ex gratia payment of $200,000 upon his release. Alice
Lynne "Lindy" Chamberlain received $1.3 million in compensation in 1992
after she had been wrongly convicted of killing her nine-week-old
daughter, Azaria, at Uluru in 1980. She spent about three years behind bars before her sentence was overturned. A coronial inquest in 2012 found a dingo had killed the child."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "As
the head of the Sex Crimes Unit, Fairstein was instrumental in the
wrongful conviction of five black teenagers accused of raping a white
woman jogger in Central Park in 1989. It was a case that made headlines
across the country and captivated television audiences, a story fueled
by racial tensions and racist rhetoric. Fairstein
was personally involved in securing the false confessions that formed
the prosecution’s entire case. Her conduct was so reprehensible that
then-appeals court Judge Vito Titone called her out by name in his dissenting opinion
in defendant Yusuf Salaam’s unsuccessful appeal, which details her
calculated efforts to isolate and induce a confession from the
then-15-year-old suspect. The
Five served six to 13 years in prison before their convictions were
vacated following the confession of a serial rapist, confirmed by DNA
evidence, in 2002. Fairstein has never apologized or changed her
position on their guilt. (Nor has Donald Trump,
who in 1989 took out full-page newspaper ads in New York City calling
for the return of the death penalty after the teens were arrested.) Only
four months ago, in a letter to the editor of the New York Law Journal,
Fairstein maintained that “the
questioning [of the Central Park Five] was respectful, dignified,
carried out according to the letter of the law and with sensitivity to
the young age of the men.”
STORY: "Writer Linda Fairstein's past as a prosecutor overseeing the Central Park Five case causes award controversy," by reporter Steph Cha, published by The L.A. Times on November 27, 2918. Steph Cha is described as a novelist, editor and attorney who has been a member of Mystery Writers of America since 2013.
PHOTO CAPTION: "Author
Linda Fairstein, center, signs her ninth crime novel, "Bad Blood," to
Donna Hanover, left, with novelist Mary Higgins Clark, right. Fairstein
has been named a Grand Master at the 2019 Edgar Awards"
GIST: "Mystery
Writers of America announced the recipients of its 2019 Grand Master
Award on Tuesday, but the announcement has been met with more outrage
than celebration. The
Grand Master Award, presented at the annual Edgar Awards banquet in New
York, is one of the most prestigious distinctions in the mystery genre,
an honor held by the likes of Stephen King, Walter Mosley and Agatha
Christie. Next year, the award will go to Martin Cruz Smith and Linda
Fairstein. I’d heard of Smith, but not Fairstein. And really, I should
have known her name. Not for her internationally bestselling Alexandra
Cooper series, but because in her former life working for the Manhattan
district attorney’s office, she oversaw the prosecution of the Central Park Five. She shouldn’t be the toast of a black-tie literary gala — she should be notorious. As
the head of the Sex Crimes Unit, Fairstein was instrumental in the
wrongful conviction of five black teenagers accused of raping a white
woman jogger in Central Park in 1989. It was a case that made headlines
across the country and captivated television audiences, a story fueled
by racial tensions and racist rhetoric. Fairstein
was personally involved in securing the false confessions that formed
the prosecution’s entire case. Her conduct was so reprehensible that
then-appeals court Judge Vito Titone called her out by name in his dissenting opinion
in defendant Yusuf Salaam’s unsuccessful appeal, which details her
calculated efforts to isolate and induce a confession from the
then-15-year-old suspect. The
Five served six to 13 years in prison before their convictions were
vacated following the confession of a serial rapist, confirmed by DNA
evidence, in 2002. Fairstein has never apologized or changed her
position on their guilt. (Nor has Donald Trump,
who in 1989 took out full-page newspaper ads in New York City calling
for the return of the death penalty after the teens were arrested.) Only
four months ago, in a letter to the editor of the New York Law Journal,
Fairstein maintained that “the
questioning [of the Central Park Five] was respectful, dignified,
carried out according to the letter of the law and with sensitivity to
the young age of the men.” Here’s what Mystery Writers of America had to say
about Fairstein’s legal career, in this cheery news release on Tuesday
morning: “Linda Fairstein became a sex-crimes prosecutor during a time
when sex crimes were almost impossible to prosecute. In her 30-year
tenure at the Manhattan DA’s Office, she was a pioneer in the war
against rape, fighting for historic changes to the criminal justice
system and for justice on behalf of victims of the most heinous crimes.”
It’s not like they didn’t Google her. They just neglected to mention
her most famous case, the one that’s become synonymous with
prosecutorial overreach and misconduct. Shortly
after the announcement, author Attica Locke — whose “Bluebird,
Bluebird” won the 2018 Edgar Award for best novel —took Mystery Writers
of America to task on Twitter, begging the group to reconsider its
decision to name Fairstein a Grand Master. Locke,
whose television writing credits include an upcoming Netflix series on
the Central Park Five directed by Ava DuVernay, has long been familiar
with the case, but didn’t realize until recently that Fairstein had
reinvented herself as a crime writer, or that so few crime writers
seemed to know about her background. I
was one of the clueless until I saw Locke’s thread, and I’ve been
entrenched in the mystery world since my first book came out in 2013.
I’ve attended countless book events and conferences — it’s very likely
I’ve been in the same room as Fairstein — and have been editing the
crime section of the Los Angeles Review of Books since 2015. There are
certainly big-name authors I don’t run across, but I tend to hear the
gossip. I knew about Anne Perry’s background (see the movie “Heavenly
Creatures”) and that former L.A. prosecutor Marcia Clark was publishing
mystery novels. I find it disturbing that I never heard a word about
Fairstein’s history. Her
presence among us should be the scandal of every conference — it
probably would’ve been earlier if there had been more crime writers of
color when the Five were exonerated in 2002. But at some point, her
background must have become old news, an uncomfortable thing the larger
crime world has been happy to ignore. How many of us have been polite to
her on accident because the rest of us were polite to her on purpose? Tacit
approval is one thing, of course; the Grand Master Award is another.
Mystery Writers of America has made a lot of fuss about diversity over
the last few years, and I do believe that the mystery community has made
some meaningful strides toward inclusion. But we’re apparently still at
a place where the board of Mystery Writers of America thinks calling
the white prosecutor who oversaw the conviction of innocent black boys
“Grand Master” is a good idea. It’s also worth noting that the
Edgar Awards banquet will take place in April, almost exactly 30 years
after the Five were wrongfully arrested and imprisoned. After
Locke’s thread spread widely, Mystery Writers of America said via
Twitter: “We are taking seriously the issues raised by @atticalocke .
Our Board is going to discuss these concerns as soon as possible and
make a further statement soon.” It seems as though the blowback has
taken the board by surprise. On the one hand, the lack of foresight is
breathtaking. But on the other, it sure did look as if everyone was cool
with Linda Fairstein for a while there. Mystery
Writers of America is now in a tough spot. Many crime writers have
already called for the revocation of Fairstein’s award. Meanwhile,
Fairstein is sparring with Locke on Twitter, and I doubt she or her
supporters would be happy to see the organization cave to the pressure.
While the mystery writing community has changed somewhat over the last
few years, it has long been embarrassingly white and, if not outright
conservative, less than progressive in its collective values (hello hero
cops and beautiful dead girls). Fairstein has made a name for herself
writing legal thrillers about a sex crimes prosecutor who serves justice
and saves the day. She's made enormous profits with these stories, and
has been astoundingly successful in shaping her own narrative and
retaining the respect of her community. Whatever
Mystery Writers of America decides –– and let's remember that the loss
of a reward is not comparable to the loss of freedom –– this debacle
will show our divisions. Fairstein's actions can no longer fly under the
radar. We all have to deal with her now."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "The
people who were harmed by the Motherisk laboratory deserved better than
this,” said the plaintiff’s lawyer, Kirk Baert. “This isn’t the last
word by any means. We will be seeking leave to appeal to the Ontario
Court of Appeal and I am confident we will obtain it.” Sick Kids made millions from
Motherisk’s hair tests, which were used for decades in a handful of
criminal cases and thousands of child protection cases, primarily by
child welfare agencies as proof of parental substance abuse. In many of
these cases, satisfying the criteria for compensation the Divisional
Court has outlined will be challenging, because Motherisk did not follow
proper chain-of-custody procedures and did not have a records retention
policy from 2005 to 2010. Baert argued in court last
week that despite Lang’s findings, the defendants in the case —
Motherisk’s founding director Dr. Gideon Koren, former lab manager Joey
Gareri and Sick Kids, which housed the lab until it was shut down in
2015 — continue to deny that the tests were unreliable and failed to
meet forensic standards in every case, making these significant “common
issues” for the roughly 9,000 individuals who tested positive for drugs
or alcohol from 2005 to 2015."
STORY: "Parents lose second bid to launch class-action suit against Motherisk over flawed hair tests," by Investgative Reporter Rachel Mendleson, published by The Toronto Star on November 27, 2018.
PHOTO CAPTION: "A
government-commissioned review by retired judge Susan Lang found
Motherisk’s hair testing testing was deemed “inadequate and unreliable”
for use in court from 2005 to 2015."
GIST: "Despite
the “knee-jerk denials” of Motherisk experts and the Hospital for Sick
Children, it wouldn’t be hard to prove in court that the lab’s drug and
alcohol hair tests were broadly unreliable. However, establishing this
fact wouldn't advance individual cases enough to make a national
class-action lawsuit the right approach for thousands of families
seeking compensation. That is the finding of a Toronto Divisional Court, which has upheld the decision of
a Superior Court judge not to certify the class-action lawsuit because
of the highly individualistic nature of the claims by those who say they
lost their children or were wrongly convicted due to the flawed
testing. “In
this case, the class members were not harmed by the tests being
systemically unreliable. Rather, only class members who can show that
they received a false test result and that the false test result caused
them to suffer an adverse outcome in legal proceedings will have
compensable claims,” Justice Fred Myers wrote in a unanimous decision,
which makes clear that Motherisk victims face a “very difficult” road. But
the battle is not over for the plaintiff, a Toronto mother who claims
access to her son was limited for several years because of Motherisk’s
faulty testing. The testing was deemed “inadequate and unreliable” for
use in court from 2005 to 2015 in a government-commissioned review by
retired judge Susan Lang, following a Star investigation. “The
people who were harmed by the Motherisk laboratory deserved better than
this,” said the plaintiff’s lawyer, Kirk Baert. “This isn’t the last
word by any means. We will be seeking leave to appeal to the Ontario
Court of Appeal and I am confident we will obtain it.” Sick Kids made millions from
Motherisk’s hair tests, which were used for decades in a handful of
criminal cases and thousands of child protection cases, primarily by
child welfare agencies as proof of parental substance abuse. In many of
these cases, satisfying the criteria for compensation the Divisional
Court has outlined will be challenging, because Motherisk did not follow
proper chain-of-custody procedures and did not have a records retention
policy from 2005 to 2010. Baert argued in court last
week that despite Lang’s findings, the defendants in the case —
Motherisk’s founding director Dr. Gideon Koren, former lab manager Joey
Gareri and Sick Kids, which housed the lab until it was shut down in
2015 — continue to deny that the tests were unreliable and failed to
meet forensic standards in every case, making these significant “common
issues” for the roughly 9,000 individuals who tested positive for drugs
or alcohol from 2005 to 2015. However, Myers said, in light of
Lang’s findings, “I doubt that proof of the systemic issues will be a
particularly difficult piece of litigation,” because the defendants
“cannot ignore the reality that ... a party will be able to point to the
evidence unearthed very publicly on these points if they arise.”
Koren’s lawyer, Darryl Cruz, said in an email on Tuesday that the Divisional Court made the right decision. “While
it is tempting to look to the Lang Report as a way to simplify a case,
that report was never directed at questions related to civil liability.
Proof of concerns related to the general reliability of any testing will
not make advancing individual claims easier,” he said, adding that a
class-action is “clearly not the preferable procedure” in this case."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "There
were many reasons not to hold a retrial after the first miscarried,
damaged irreparably by deeply flawed forensic evidence. There was the
exorbitant cost to the taxpayer, Eastman’s age (he turned 73 during the
trial) and the time since Winchester's murder, to name a few. Acting
Justice Martin, the head of a judicial inquiry that found Eastman’s
1995 conviction should be quashed, considered a retrial would be both
unfeasible and unfair. Who would convict him? Would a judge jail him again if so? Ageing
witnesses or those dead or unable to attend court became a feature of
Eastman’s fresh trial. There were 127 live witnesses for the prosecution
and a further 41 pieces of evidence from those unable to take the
stand. For those unable to attend, their police statements, or
transcripts of their evidence at the first trial or the inquest were
read out by two prosecutors in a deadpan role play, neither daring to
put their own inflections on the evidence. Some
witnesses were more frail than the last time they gave evidence in the
trial of Eastman. Some entered court with the help of a walking stick.
Others grizzled on the way in and out, or apologised for the aches and
pains that slowed their movements."
STORY: "The inside story of David Eastman's murder trial," by reporter Alexandra Back, published by The Canberra Times on November 22, 2018.
SUB-HEADING: "The
behind-the-scenes story of the retrial that led to David Eastman's
acquittal - and the big changes compared with the first time he faced a
jury."
GIST: "On
June 4, 2018, David Harold Eastman began a second chance at justice.
The scene where the man formerly convicted of the cold-blooded killing
of Canberra's most senior police officer would begin this once
unthinkable scenario was an unceremonious back entrance at the rear of
Yarralumla’s Albert Hall, among the garbage bins. The former public
servant was ushered inside by his lawyer while hundreds of potential
jurors queued at the front. The first trial in 1995 was a
shambles, marked in part by the chaos Eastman himself brought upon it.
As the trial judge remarked at the time, Eastman had committed forensic
suicide, dooming himself to conviction. A judicial inquiry nearly 20
years later found there had been a substantial miscarriage of justice.
Acting Justice Brian Martin declared a retrial would neither be
feasible, nor fair. He made that conclusion and another - that
while he was almost certain of Eastman's guilt, he retained a nagging
doubt. The 2018 jury also had a doubt, and on November 22, on their
seventh day of deliberations, they returned a unanimous verdict of not
guilty to the murder of Australian Federal Police Assistant Commissioner
Colin Winchester. The man: Eastman's
temper is infamous, perhaps one explanation for why tension grew around
his name as the trial crept closer. There is a long list of people he
has offended or physically assaulted, including a fellow student while
at university. He once assaulted a female journalist and punched the
deputy registrar of the Administrative Appeals Tribunal (he had an
assault conviction overturned on appeal on a technicality), and another
time crushed a secretary's hand in a door. In
September 1992, Eastman forced staff to wheel him from the court after
he refused to move in protest. During the first trial, Eastman routinely
attacked his lawyers, in one particularly vitriolic stream of abuse
describing one barrister as "this evil, twisted little dwarf". In
fairness to Eastman, it has been a long time since his poor behaviour,
or his rage and anger, made headlines. But the court’s memory is slow to
fade. During the retrial this year the question that was often on the
mind of those familiar with his in-court antics was how was the
notorious disrupter behaving now? In the event, the former
Treasury official was a model defendant, at least in public. An
unexplained turnaround from his former theatrics..
With newfound
discipline, he did not sack one lawyer, at odds with the carnage of a
case he left behind after sending his defence team packing 11 times
during his first. Instead of throwing a jug at a judicial officer, as he
did to one magistrate in 1992, he sipped water from a plastic cup.
Where he once abused the “corrupt shit” of a judge and swore at the
prosecutor, this time he was silent and restrained. He thanked the jury
and judge at the verdict. Eastman’s
intemperate actions at the first trial gave way to a studied if never
fully relaxed ability to sit back and let his lawyers do the talking
this time around. That meant trial number two was professional, smooth,
and mostly uneventful. The 73 year old, in his daily uniform of
black sneakers, neat cuffed jeans, pressed collared shirt, and navy
sweater, sat placid and alone at the back of the court, each day
unpacking a bottle of water and a notebook from a tattered plastic Aldi
bag, and jotting on the occasional Post-It note for his lawyers. Was this almost timid, elderly man the same one who spent 19 years in jail for the brutal murder of a respected police chief? The public will only ever know a portion of why this jury came to the conclusion it did. Eastman
- whom one witness described as suffering a persecution complex before
the defence objected to the opinion - still had grievances and sought to
communicate them, but now it was via a delicate word from a sheriff or
lawyer. A complaint about a sniffing journalist in the public gallery,
and another about a member of the public sitting too close behind him. Eastman
the accused was emotionally inscrutable but when it came to the
evidence his steely gaze did not waver, even when graphic images of
Colin Winchester’s slain body paused on the screen in front of him. One
witness had to be ushered from the room by the sheriffs while
complaining loudly about why Eastman was allowed to “eyeball” him but he
couldn’t return the favour. The question about Eastman's
behaviour at the first trial was whether he was deliberately acting out
to get a retrial on appeal, believing the bad press would mean a second
trial would never take place, or whether he was simply out of control, a
product of his mental health. Maybe
he was out of luck when the ACT director of public prosecutions in
office at the time made the unpopular and unlikely decision to prosecute
Eastman for a second time. The
unanswered question now is what tamed him? Was it age and weariness?
Treatment of his mental health? Or was it the base fear of being sent
back to jail? The jury: When this latest jury was
empanelled on June 4, Acting Justice Murray Kellam, a retired member of
the Victorian judiciary, told the 500-odd crowd that whoever did not
think they could perform their duties as a juror on this case could
leave. The tactic must have been effective because the 16 finally chosen
were dedicated to the enormous task before them. Their impassive faces
would break only to share the occasional joke with the judge or lawyers.
They sat patiently for months absorbing the mountains of material
before them. They
also became friends. Three months into the trial, the jurors asked
whether they could meet socially, outside of courtroom hours. There was
talk of a picnic in Tidbinbilla. A diplomatic Acting Justice Kellam let
them down gently, while thanking the members for their integrity and
honesty. The jury lost one of their number early on after a member
of the public dobbed her in. Despite all his warnings not to talk about
the case outside the jury room, a note to the judge from the anonymous
citizen suggested the juror had been boasting about her role in the
Eastman trial at a local massage joint and about how she had already
made up her mind - not guilty. The juror was dismissed, the remaining members left to guess why. Another juror later fell sick and was also excused. The
jurors to their credit remained attentive until the last moment. When
it came time for the ballot and for the jury to be whittled down from
the remaining 14 to 12, in a sad moment, one of the more studious jurors
was selected to leave. She shook her head in bitter disbelief. October
11 was the last day the trial was to sit in the old Supreme Court
building and a constant buzzing noise gave one juror a headache. It
could not be fixed and the other jury courtroom was just as bad. The old
building seemed to have given up so the judge abandoned the day’s work
and sent everyone home for an extra long weekend. On October 15,
the trial moved into the new court room. It was fitting that Eastman,
whose history is intertwined with the ACT Supreme and Magistrates Court,
should also appear as defendant in the new building. The trial: There
were many reasons not to hold a retrial after the first miscarried,
damaged irreparably by deeply flawed forensic evidence. There was the
exorbitant cost to the taxpayer, Eastman’s age (he turned 73 during the
trial) and the time since Winchester's murder, to name a few. Acting
Justice Martin, the head of a judicial inquiry that found Eastman’s
1995 conviction should be quashed, considered a retrial would be both
unfeasible and unfair. Who would convict him? Would a judge jail him again if so? Ageing
witnesses or those dead or unable to attend court became a feature of
Eastman’s fresh trial. There were 127 live witnesses for the prosecution
and a further 41 pieces of evidence from those unable to take the
stand. For those unable to attend, their police statements, or
transcripts of their evidence at the first trial or the inquest were
read out by two prosecutors in a deadpan role play, neither daring to
put their own inflections on the evidence. Some
witnesses were more frail than the last time they gave evidence in the
trial of Eastman. Some entered court with the help of a walking stick.
Others grizzled on the way in and out, or apologised for the aches and
pains that slowed their movements. Others seemed shocked to be here
again while many struggled to recall with precise detail unmemorable
everyday events from 30 years ago. The jury took in mountains of
evidence and submissions, more than 5000 pages worth of transcript. But
the public will only ever know a portion of why this jury came to the
conclusion it did. A veil of secrecy came down on the trial early on. Closed
sessions and various suppression orders knit into a poorly constructed
quilt of prohibited communication about various names and incidents
tendered during the trial, many detailing the suggestion it was the
Mafia behind the killing. The orders - countless, clouded - will
live on in perpetuity unless otherwise ordered, though so too will the
names and details of much of what has been suppressed, already on Google
or Trove, or books or documentaries. Or in one case, the witness whose
name and evidence was detailed - unsuppressed - in Acting Justice Martin's 2014 report. Before
the trial began, the judge partly agreed to an application by the
defence to suppress Eastman’s image and banned publication of photos of
Eastman from before January 2016. This was lifted following the trial. During
the trial, the judge went on to reject the media's request for access
to innocuous photographs tendered as exhibits, and another request for a
transcript of the barristers’ closing addresses. The media's
attempt to fact check during the trial with another request to see an
exhibit was reluctantly allowed, but only with the defence and Crown’s
support. On August 29, still early days, the public was excised
from hearing what the Crown said was evidence of Eastman admitting the
killing. The court turned silent disco as jury, judge, lawyers,
barristers and Eastman placed headphones over their ears to listen to
mutterings recorded by police bugs planted in Eastman’s flat. The rest -
including the media responsible for keeping the public informed - sat
in a silent open court. Requests to the judge for the media to
access the recordings were rejected. At the trial’s end, the media also
requested access to a number of exhibits, including the audio of
Eastman’s alleged confessions. That appears unlikely to happen. When
the trial shifted to the new courtroom, the judge allowed Eastman the
luxury of not sitting in the dock for accused people, segregated from
the court by a small barrier. He was allowed to sit with his lawyers
near the bar table, up until the verdict. We will likely never know the reasons the jury came to their decision. This
is the constraint of the criminal system. It is illegal for jurors to
disclose details of their deliberations. The question now turns to what
happens next. Will there be a fight over compensation? It seems likely.
Almost certainly, this will not be the last we hear of David Eastman."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "The court argued that Woods posed a future threat because of a
previous robbery with Reneau. This assessment was based in part on a
1998 testimony from psychiatrist Dr. James P. Grigson, who carries the
nickname "Dr. Death." Grigson's influence in the case has been
controversial. His method for determining an inmate's likelihood to
reoffend was questioned by Woods' lawyers as they argued that Grigson almost always concluded that defendants would be future dangers. A 2004 article,
which looked closely at Grigson's career, states that he often did not
even meet with the defendants he recommended for death. Grigson was
eventually expelled from both the American Psychiatric Association and
the Texas Society of Psychiatric Physicians for his predictability
methods, which the boards deemed unscientific. Now that the appeals court has made its decision, it will now set an
execution date for Woods."
POST: "Texas is Trying to Execute a Man for a Murder He Didn't Commit," by reporter Zuri Davis, published by Reason.com on November 27, 2018. (Zuri Davis is assistant editor at Reason.)
SUB-HEADING: "The Texas Court of Criminal Appeals denied a recommendation to relieve him of execution.
PHOTO CAPTION: "Can a state sentence someone to death for a murder that they didn't commit? According to Texas, the answer is "yes."
Read the Wikipedia entry at the link below: "James Grigson (January 30, 1932 – June 3, 2004), nicknamed "Doctor Death" by some press accounts, was a Texas forensic psychiatrist who testified in 167 capital trials, nearly all of which resulted in death sentences.[5] He was exposed as a charlatan and expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians in 1995 for unethical conduct. ]In capital crime
cases, Grigson, throughout his career, was typically a testifying
expert for the prosecution. Under Texas law, for death to be imposed the
jury must believe the defendant not only to be guilty of the crime
charged, but likely to commit additional violent crimes if not put to
death. In almost every case, Grigson testified (often after meeting the
defendant for just a few minutes, or not at all) that the defendant was an "incurable" sociopath who was "one hundred per cent certain" to kill again.The Randall Dale Adams case" One of the most notable, at least after the fact, appearances of Grigson in court occurred in the 1977 case of Randall Dale Adams,
who was accused of murdering police officer Robert W. Wood. Adams was
found guilty, and, on the basis of Grigson's testimony, was given the death penalty. Grigson told the jury that Adams would be an ongoing menace if kept alive. Adams' conviction was unanimously upheld by the Texas Appellate Court. His death sentence, as a result of a 1980 United States Supreme Court decision, was commuted to life in prison by Texas Governor Bill Clements. The case was profiled in the 1988 documentary film The Thin Blue Line. In 1989 the Texas Court of Criminal Appeals in Ex parte Adams overturned Adams' conviction on the grounds of malfeasance by the prosecutor and inconsistencies in the testimony of a key witness.The prosecution in Texas declined to go to a new trial, and Adams was
eventually freed, after having spent approximately 12 years in prison.The Cameron Todd Willingham case:In 1991, Cameron Todd Willingham
was accused of the capital murder of his three children due to arson.
Grigson testified that Willingham was an incurable sociopath despite
having never met him.
His testimony helped prosecutors secure the death penalty, but
Willingham's guilt has since been called into question due to modern
fire science and a witness recantation. Willingham was executed in 2004. Expulsion: In 1995, Grigson was expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians for unethical conduct. The APA stated that Grigson had violated the organization's ethics code
by "arriving at a psychiatric diagnosis without first having examined
the individuals in question, and for indicating, while testifying in
court as an expert witness, that he could predict with 100 per cent
certainty that the individuals would engage in future violent acts".
Grigson unsuccessfully sued the APA to block his expulsion. After Grigson's expulsion, the medical director of the American
Academy of Psychiatry and the Law said that Grigson "oversteps the
bounds of his professional competence" and that he was testifying in
court about hypothetical situations containing insufficient detail for a
sound professional opinion to be formed. Grigson officially retired from the psychiatric profession in 2003. ]Death: Grigson died in June 2004 from lung cancer, most likely in Texas."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
UNDERSTATEMENT OF THE YEAR: "University of Sydney Law School professor David Hamer,
who has written in the past about the Eastman case in the context of the
effectiveness of criminal procedure, said it would serve as a useful
reminder of the infallibility of the legal system. “It is a pretty
graphic illustration that the system isn't perfect,” he said."
PASSAGE OF THE DAY: "From
the finer points of evidence law and hearsay, to the age-old conundrum
of jury trials and outdated investigation techniques, the Eastman case
has plenty to keep legal eagles interested, according to one Australian
National University academic. Anthony
Hopkins, a senior lecturer at the ANU College of Law, said the Eastman
trial - the 20-year legal saga which culminated in a verdict of not
guilty on Thursday - was a unique and remarkable case. “I think it
raises deep questions about the extent to which we can fact-find so
long after an event, but in other contexts, like say child abuse, it's
often the case that we need to factually interrogate evidence that's
decades old,” he said. “[The
Eastman case] is almost singularly unusual, not so much that there
could be a miscarriage of justice and someone could spend a long time in
prison and then be released, but that this was followed by a retrial.”
STORY: "David Eastman case a boon for legal eagles," by reporter Sally Pryor, published by The Sydney Morning Herald on November 22, 2018. (Sally Pryor is a reporter at the Canberra Times);
GIST: "The David Eastman case will give generations of academics and law students something to pore over in years to come. From
the finer points of evidence law and hearsay, to the age-old conundrum
of jury trials and outdated investigation techniques, the Eastman case
has plenty to keep legal eagles interested, according to one Australian
National University academic. Anthony
Hopkins, a senior lecturer at the ANU College of Law, said the Eastman
trial - the 20-year legal saga which culminated in a verdict of not
guilty on Thursday - was a unique and remarkable case. “I think it
raises deep questions about the extent to which we can fact-find so
long after an event, but in other contexts, like say child abuse, it's
often the case that we need to factually interrogate evidence that's
decades old,” he said. “[The
Eastman case] is almost singularly unusual, not so much that there
could be a miscarriage of justice and someone could spend a long time in
prison and then be released, but that this was followed by a retrial.” He
said the fact that the jury had taken so long to arrive at a verdict -
31 hours over seven days - was reassuring, in a way, for the legal
system. “There can be no doubt that they've applied their minds to
this, and that the system allows and encourages a degree of pressure to
be put on to keep thinking, keep trying,” he said. “In some ways,
it supports the faith we have in the legal system and the process of
trial by jury, that they have clearly given such thought and
consideration to the evidence in working towards a verdict. “I think it would have been perhaps more challenging if they'd come back immediately. The rest of us stand on the outside and we don't really know the full extent of the evidence that they've seen and considered. You could pick over this forever, even just thinking about the process of trying to appeal your conviction.” University
of Sydney Law School professor David Hamer, who has written in the past
about the Eastman case in the context of the effectiveness of criminal
procedure, said it would serve as a useful reminder of the infallibility
of the legal system. “It is a pretty graphic illustration that the system isn't perfect,” he said. “That's
no great surprise, because if you think about what the system is trying
to do, it's trying to conduct a historical inquiry where inevitably
you've got limited evidence, and the prosecution has to, with this
limited evidence, prove its case to a very high standard. “We
can't demand absolute certainty because that would be impossible to
achieve. Proof beyond reasonable doubt doesn't demand absolute
certainty, and that means that there are going to be errors.”
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "Martin’s
inquiry showed that much of the scientific evidence presented at trial
was deeply flawed, primarily because of an unscientific approach, and an
advocacy role, adopted by the expert imported from Victoria to examine
gunshot residue. Some of his findings were untenable; some could not be
replicated, and it seemed doubtful that some reported experiments had
been carried out at all. It emerged that investigating police knew their
expert had been dismissed from Victoria Police for scientific
misconduct and the defence was not told."
STORY: "The weaknesses of a complacent justice system," by Jack Waterford, published by The Sydney Morning Herald on November 24, 2018. (Jack Waterford is a former editor of The Canberra Times and
has been involved in the Eastman case from the night of the murder, and
was involved, from 1994, in arguing that the case against Eastman was
flawed and that his guilt had not been established.)
GIST: "One
of the good things about the Australian criminal justice systems is
that it admits that witnesses, juries and even judges can make mistakes.
There are courts of appeal that will review evidence, judicial
statements of the law and outcomes – and that will not hesitate to
intervene if it appears that a mistake has been made. One of the
weaknesses of the Australian criminal justice system is that with many
of the most significant miscarriages of justice in Australia the
judicial system did not – seemed that it could not – recognise a
fundamental mistake and a serious injustice. It was too used to mild
correctives, and minor criticisms, but not to declarations that the
system had failed. That even the courts had failed. We cannot
thank the courts for the fact that a grave injustice to Lindy
Chamberlain and her husband was uncovered. They lost all of their
appeals until the chance discovery of some fresh evidence led to an
external review and exposure of just how flawed the case had been. Even
then, a player in this week’s Eastman case was on his feet arguing to
the last that the conviction should not be disturbed. In
Western Australia, a sequence of inquiries have seemed to suggest that
its judges vie with the cops for being unable to get murder matters
right, at great expense to innocent people. Courts and courts of appeal
repeatedly failed to find any error or problem with the convictions of
men whom we now know positively to have been innocent. These were men
such as Darryl Beamish, a deaf-mute from whom police claimed to have
extracted a voluntary signed confession. John Button - a man with a bad
stutter which was interpreted by police as nervousness about his guilt -
was assaulted by police during a 22-hour interrogation after which he
also 'confessed'. Scientific evidence against him was also
misrepresented. Andrew Mallard was convicted of murder after a long
unrecorded police interrogation and a brief recorded confession. This
was a case in which police were shown to have withheld evidence that
demonstrated Mallard’s innocence. In
Queensland, Kevin Condren’s conviction for murder, based on police
coercion and fabrication, was upheld on appeal and he served six years
before his conviction was quashed after an external inquiry. Graham
Stafford, also from Queensland, served 14 years, after a conviction for
murder based on flawed scientific evidence. In South Australia, Henry
Keogh served 21 years for murder before it was shown that police had
withheld exculpatory evidence (and later, evidence pointing to the real
murderer was discovered). Edward Splatt served seven years for murder
and sexual assault in the same state before a royal commission showed
that the conviction was untenable, scientific evidence was unreliable,
and that there had been contamination of the crime scene. Across
the ACT border in Queanbeyan, Ziggy Pohl served 10 years for the murder
of his wife, despite a lack of motive and steadfast details, and was
then released on licence. Seven years later, another man walked into the
Queanbeyan police station and confessed to having murdered Mrs Pohl
during a botched burglary. Despite
such instances of wrongful conviction, moves by politicians to enable
external reviews of contested convictions, whether along a model now
working successfully in Britain or otherwise, have not got far. Police
have zero enthusiasm, judges not much more. Politicians have tended to
want finality of cases, even at the expense of certainty. Nor have
judges, cops or lawyers thought that something was seriously wrong when
modern forensic systems - such as DNA, face recognition, and
surveillance technology - have regularly shown here, in Britain and the
US, that many old and apparently 'safe' convictions to be doubtful. What
distinguishes most such cases, is that justice was finally done only
after action outside the formal criminal justice system and then only
after action inside that system had failed. Fundamental flaws in police
briefs had survived the scrutiny of senior investigators, prosecutors
with a formal duty to be fair, experienced trial judges and learned
appellate judges. Experience has repeatedly shown judges to be reluctant
to look anew at old evidence, or to regard anything they thought could
have been or should have been discovered before trial as fresh evidence. And
there was a steady - if declining - tendency on the part of judges to
imagine that good honest policemen could never 'verbal' a defendant,
withhold evidence that might support a claim of innocence, or 'brick' or
'fit up' a suspect. Those who suggested it were putting their own good
characters on the line and giving prosecutors the option of telling
jurors about any previous convictions they might have had. They
generally assumed that scientific evidence was the detached and
objective conclusions of independent experts, rather than, as shown in
many cases, the partisan advocacy of tame witnesses who had taken sides. All
these weaknesses were on display in the case in which David Eastman was
charged with the murder of Australian Federal Police Assistant
Commissioner Colin Winchester nearly 30 years ago. These weaknesses saw
Eastman convicted 24 years ago because of scientific and other evidence
that did not stand up to (nor get) proper analysis. This week Eastman
was found not guilty of a murder for which he spent nearly 20 years in
jail for. It was not a good look for the Australian Federal Police, for
the prosecution system, for an ACT judicial system which had repeatedly
turned Eastman’s arguments down, and for an ACT government which was
generally deaf to representations about Eastman’s innocence. Had any of
these branches of government worked properly, ACT taxpayers would be
tens-of-millions of dollars better off.
Colin
Winchester’s murder was more than a mere murder. It was an
assassination, crying for exemplary investigation. It did not want for
resources. The biggest and most extensive police investigation in
Australian history did not set standards anyone else would want to
follow. If AFP detectives cannot get such a case right, people are
entitled to wonder about the safety of more run-of-the-mill convictions. In
fact, the case showed that the AFP, the ACT, its hierarchy of courts
and judges, and its politicians were not immune from the problems
besetting other states and territories. Indeed, the AFP, being a
smallish and rather inbred force, and the ACT, as a small city-state
tended to have fewer, rather than more checks and balances than other
jurisdictions. This was because so many of the players knew each other,
often under different hats, and had at many times acted for or against,
or in league with various of the players. A
good many of the magistrates, and even a good many of supreme court
judges had at one time or another acted for David Eastman, the man
accused of the murder. Two had previously been directors of public
prosecutions at the time of the prosecution and had wisely disqualified
themselves from matters involving him. The husband of another judge had
given evidence against the man at the original trial (before his wife
became a judge). Others had been bruised (one literally) by
previous encounters with Eastman, or had indicated their general view of
the matter in previous hearings. They were often strangely eager (and
relieved) to accede to suggestions that they disqualify themselves. Even
the supply of additional judges, whether from the Federal Court or the
ranks of the retired judiciary was not inexhaustible, and many soon
showed themselves quick to come to conclusions and slow to see that
there was often more than a molehill of genuine argument in every matter
presented as a mountain by Eastman. Almost
every proposition raised in non-stop Eastman litigation was arguable,
even if it did not win. Eastman was a good advocate, with a strong
command of the law. His litigation was designed both to agitate
fundamental matters (the safety of his conviction) and specific matter,
individual points about errors in previous, lower court judicial
reasoning. For 20 years, the courts could provide no justice for Eastman. None
showed much concern about evidence of systemic police harassment of
Eastman, known to be mentally unwell and to have a quick temper, in the
hope that it would induce him to do or say something that could make his
guilt plain. Investigators also took seriously psychiatric advice, if
obtained at a distance, that Eastman was dangerous as well as unstable,
and went out of their way to warn anyone with whom he associated with
that they were at risk. The harassment was obvious, and publicly
reported, but Eastman’s complaints, including directly to judges, were
ignored. Some of the judges believed that Eastman was constantly
focused on such matters as a way of distracting from his probable guilt.
Others, including the prosecutor and the first trial judge, thought
that Eastman was putting on any symptoms of distress, in the hope of
forcing the trial to abort. Responding to his complaints, they believe,
was “playing his game”. Their determination not to be “baited”
accentuated Eastman’s frustration, and made the conduct of the trial
more difficult. It also heightened jury antipathy and made his
conviction almost inevitable. Eastman hardly helped himself by failing
to cross-examine some of the key evidence because of snits with the
judge. Rod Campbell - the late legendary Canberra Times
court reporter who attended every day of a very long inquest and a
six-month trial and any number of other judicial engagements - ended up
concluding that a jury could have properly convicted Eastman on the
evidence as presented in court, particularly after the judge’s summing
up. But, he thought the prosecution case would have been a lot weaker
had it been properly tested. He always had a nagging doubt. So did Brian Martin, the retired judge from South Australia and the Northern Territory who conducted the review,
who recognised that there was a strong circumstantial case against
Eastman. But it left him with a nagging doubt, and he recommended that
the verdict be quashed, with no retrial to follow. He found the first
trial had involved a serious miscarriage of justice, even if he was
reluctant to blame anyone. He was critical of police, and - in initial
draft findings - scathing of the prosecution. In the final report,
however, he tempered his criticism of the DPP and thought shortcomings
of the prosecution, including the failure to produce exculpatory
evidence to the defence, as probably accidental and unintentional. Martin’s
inquiry showed that much of the scientific evidence presented at trial
was deeply flawed, primarily because of an unscientific approach, and an
advocacy role, adopted by the expert imported from Victoria to examine
gunshot residue. Some of his findings were untenable; some could not be
replicated, and it seemed doubtful that some reported experiments had
been carried out at all. It emerged that investigating police knew their
expert had been dismissed from Victoria Police for scientific
misconduct and the defence was not told. Police said they had told
members of the prosecution staff, but none of them had any memory of
this and claimed they had not known. The defence claimed that
other exculpatory material was not shown to them; prosecutors denied any
policy of withholding evidence or said that if the defence sought
additional material it would have been provided. In some cases, there
were doubts about whether prosecutors had passed on material, because
Eastman frequently changed legal representatives, and in the passage of
materials from team to team, things might have gotten lost or out of
order. There
were other flaws, still unexplored. The 'proof', for example, that
Winchester was killed by a particular Ruger rifle said - though not
proved - to be associated with Eastman, depended on spent .22 shells
found at the scene. But no one proved that these had contained the
bullets that killed Winchester, or even that the shells had been
recently fired. The passenger seat in Winchester’s car contained boxes
of ammunition he had just been given in preparation for a hunting trip
in NSW. Senior
investigators, upset about the murder of a close friend, were very
unprofessional in trampling over the crime scene, ignoring the pleas of
the scene of crime officers. They are still in denial about its ill
effects. Others made early and unwise solo searches of Winchester’s
office for clues. The full litany of investigative errors or misconduct
is yet to be catalogued, because the full files have not been made
available to independent scrutiny. One can be sure that if no external
inquiry is announced soon, that documentation of the full debacle will
mysteriously disappear. The flaw with a good deal of the overseas
expert evidence, from FBI, Israeli Police and British laboratories, was
that its confirmations took the form of saying that “if the tests were
performed as is stated, and the findings were as stated, then the
conclusions are probably right”. When one foreign expert volunteered
that he suspected that the Australian expert was too much of a jack of
all trades to be an expert in any of them, prosecutors helped him, and
the Australian carefully recrafted their evidence to conceal any
differences of opinion. The defence team was blissfully unaware, even
if, according to prosecutors, they would have been given copies of the
notes had they asked. I have argued elsewhere that the police
investigation was flawed by tunnel vision, and what some people call
confirmation bias. There was also an all too common AFP tendency to cut
corners and to be all too clever for words. It was not detached, and
internal police politics determined too much of the police tactics,
especially a decision to focus on Eastman at the expense of all other
lines of inquiry once senior detectives developed a hunch that he was
the killer. That
was a hunch which arose long before objective evidence to support it.
It may have influenced the eager-to-please actions of some of the
experts. From then on, the top team was looking for material which
supported its conclusion or seeking to dispute, reject or ignore
anything which did not support their hypothesis. It was not investigated
with all the patience, professionalism, detachment, or, at the end of
the day, integrity it needed. The
DPP, like his predecessors, and the AFP resisted all efforts, including
by several unsuccessful judicial challenges, to have an inquiry.
Neither participated in a search for the truth; both were present only
to defend their reputations, usually by stonewalling. Both were very
slow to produce; even slower to produce anything which showed them in a
bad light. Even when it was clear that evidence the original prosecution
had argued to be critical was wrong, DPP insisted that the case against
Eastman, based on other bits of circumstantial evidence could still be
maintained for probable conviction. He was wrong. Having a new
trial served another purpose. While anything legal was on foot, the DPP
and the AFP could resist any call for an external inquiry. Neither have
ever conceded any flaws in what they did. The public, or the jury, was
failed the prosecution system, not the other way round it seems. The
AFP was loyal to the original investigators, with a mind closed to
other possibilities. It did not re-examine its case, search for new
evidence, one way or another, or use fresh forensic devices to freshen
the evidence. It was take it or leave it. The jury, ultimately, was not
satisfied. More than a few cops had anticipated this, but the AFP now
had an alibi – that the case had foundered because of the ineptness of
the lawyers, and technicalities. The
case is not suddenly ancient history, of no relevance to today or with
no lessons for current AFP investigators, who are using new
investigative tools, are better educated and are differently focused,
particularly on terrorism. AFP culture has not undergone a fundamental
change – something may manifest by the absolute reluctance of police to
admit that anything was wrong. Many involved in the investigations went
on to more senior positions, several to commissioner level, including in
other forces. The AFP, which at senior levels over recent decades
has become dominated by an inbred self-replicating network of good old
boys has never been keen on retrospection, examination of conscience or
external inquiry. It is the only Australian Police Force not subjected
to real external reviews since it was established 39 years ago. By now
its weaknesses, idiosyncrasies and hostility to any system of
accountability it cannot manipulate, outstare or ignore have become part
of its DNA. Being joined with other paramilitarised agencies in the
over-powerful, and under-accountable, department of home affairs will
potentiate its weaknesses, not its strengths. How sad that the
history shows how poorly organised the law and the courts are in
preventing serious injustices because of systemic faults in the AFP and
the criminal justice system. Once the prestige of the ACT Supreme Court
was among the highest in the land, with several of its members ending up
as chief justices of the High Court. Its judgments are now not much
cited outside the ACT. Once having the most modern technical systems in
the land, it has recently opened new quarters with facilities already of
a lower standard than elsewhere, unworthy both of the national capital
or of a city of highly educated and fairly litigious citizens. In the
incestuous ACT, too many judges and magistrates are to be seen
hobnobbing with ministers, senior bureaucrats, or sitting on worthy
committees with representatives of interests appearing before the
courts. Even more lamentable has been the timorousness of the ACT
executive in dealing with either the brotherhood and sisterhood of ACT
AFP voters, or with the senior police establishment. The AFP is highly
political, with media units used to push the police barrow, and ample
capacity to leak matters embarrassing to politicians. It was shown, for
example, when the world became aware of police concerns about the
interactions between a minister, her staff, and the CFMEU - then a
target of a deeply politicised police inquiry (one which, typically, has
come to nothing). Real
law reform, or investment in the justice system is not on the ALP
agenda, local or federal. It might frighten the horses. Problem is, as
the Winchester case shows, the horses have long bolted."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "In a series of tweets, Mr Quaedvlieg said, as ACT police chief, he had
spent “many spellbound weeks reading the old reports”. “The
case [against Mr Eastman] was always circumstantial, however some of
the avenues of inquiry were fascinating, especially the theory that two
Calabrian hit men had travelled to Australia to undertake a mafia
assassination on Winchester as retaliation for ‘ratting’ them out,” he
said. “When I read the evidence as presented at the 1st trial, my
leaning was [Mr Eastman] was guilty but knew it was hard to prove beyond
a reasonable doubt. The retrial verdict reflects that view. “ Mr
Quaedvlieg said that, when he read all material, he thought “other
avenues needed to exhausted to negate them fully.” “For
the record, while I don’t think that avenue of investigation was
exhausted to the point of negation, I don’t believe Winchester was a
‘dirty cop’. “The evidence points to the contrary, but the Italian
organised crime entities involved may have wrongly believed otherwise.”
STORY: "Investigators did not 'exhaust' mafia theory: former police chief," by reports Alexandra Back and Michael Inman (court reporter), published by The Sydney Morning Herald on November 23, 2018.
GIST: "Investigators
did not “exhaust to the point of negation” the theory that Colin
Winchester’s assassination had been the work of the Calabrian Mafia, a
former Canberra top cop said Friday. Roman Quaedvlieg was the chief of ACT Policing when the re-trial of David Eastman for the murder was ordered in 2014. Mr Eastman was convicted and sentenced to life for the murder after a 1995 trial. He spent almost 19 years behind bars before his conviction was found to be unsafe and quashed, and he was released from jail. On Thursday, Mr Eastman, 73, was acquitted of the 1989 murder after a five month re-trial. Mr
Quaedvlieg - one of Mr Winchester's successors - took to Twitter to
share his insights into the case, specifically the theory that Mr
Winchester had been killed by the Calabrian mafia, after the news of the
not guilty verdict broke. The
retrial heard Mr Winchester had previously worked on an operation
observing the Calabrian mafia growing cannabis in Bungendore - men who
believed they were under protection from authorities. The cannabis
growers were later arrested and put before court, and the theory went
that they believed Mr Winchester had betrayed them. A portion of the mafia evidence during the re-trial was heard in a closed court. In a series of tweets, Mr Quaedvlieg said, as ACT police chief, he had spent “many spellbound weeks reading the old reports”. “The
case [against Mr Eastman] was always circumstantial, however some of
the avenues of inquiry were fascinating, especially the theory that two
Calabrian hit men had travelled to Australia to undertake a mafia
assassination on Winchester as retaliation for ‘ratting’ them out,” he
said. “When I read the evidence as presented at the 1st trial, my
leaning was [Mr Eastman] was guilty but knew it was hard to prove beyond
a reasonable doubt. The retrial verdict reflects that view. “ Mr Quaedvlieg said that, when he read all material, he thought “other avenues needed to exhausted to negate them fully.” “For
the record, while I don’t think that avenue of investigation was
exhausted to the point of negation, I don’t believe Winchester was a
‘dirty cop’. “The evidence points to the contrary, but the Italian organised crime entities involved may have wrongly believed otherwise.” Prosecutors
during the retrial had dismissed the mafia theory, saying the murder
was the work of an amateur and that Mr Winchester's death served the organisation no purpose. Meanwhile, there have been no wild celebrations by Mr Eastman - who is truly free for the first-time in almost 30 years Mr Eastman became an immediate suspect after the murder, and was questioned by detectives the following day. Although he was released from prison in 2014, he had been subject to bail conditions since then. The
former Treasury official did not front the waiting media for a jubilant
press conference outside the court after the verdict, instead
preferring to quietly slip away through a backdoor. Mr Eastman
spoke privately to a number of close supporters immediately afterwards,
although those conversations have not been made public. Through lawyers he politely declined a request for comment by The Canberra Times shortly after the acquittal. It
is unknown how Mr Eastman spent his first full day of freedom in three
decades, other than he has kept his head down in preparation for the
litigation of a civil claim. The fallout of the verdict on Friday
centred on the decision to pursue the re-trial, with a peak ACT legal
body saying it was a waste of taxpayers' money and did not serve
justice. The ACT Bar Association criticised ACT Director of Public
Prosecutions Jon White SC's decision to mount the retrial despite an
inquiry's recommendation a new trial would "not [be] feasible and would
not be fair". Mr White declined to respond to the association's criticisms. The
full bench of the ACT Supreme Court in 2014 quashed Mr Eastman's 1995
conviction for the murder and ordered he face a re-trial over the
assassination. The
court, comprised of Justices Steven Rares, Michael Wigney and acting
Justice Dennis Cowdroy, found Mr Eastman did not receive a trial
according to law. The judges said it had not been convinced that a
new trial would be unfair and had even been necessary as a strong
circumstantial case of murder of a senior police officer existed against
Eastman. The court heard he should not "escape having a jury decide whether or not he is guilty of that crime". "Weighing
all the relevant factors and considerations, we have concluded that the
interests of justice require that we order a retrial," Justice Rares
told the court in August 2014. Despite the court's orders, the
ultimate decision on whether to conduct a retrial fell to the Director
of Public Prosecutions, Jon White, SC. Bar president Steven Whybrow said there had been little justification in pursuing Mr Eastman the second time. "A
judicial inquiry had raised real questions about the fragile forensic
evidence and the effluxion of time had further undermined the
prosecution case and the accused’s capacity to challenge it," Mr Whybrow
said. Mr
Whybrow said Mr Eastman's age (he turned 73 during this latest trial),
the 19 years he already served in custody, and the cost of the retrial
all weighed against the prosecution. "Perhaps most significantly
Acting Justice Brain Martin, who undertook the judicial inquiry into the
original conviction, specifically expressed the view that even though
he thought Eastman was probably guilty, he still had a nagging doubt
(probably the same doubt the jury entertained) and in any event a new
trial would be neither feasible or fair," he said. "The slaying of
Colin Winchester was of course an abominable and serious crime that
justified the significant resources that went into the inquest, police
investigation and the original trial. "The heinous nature of the
crime could not alone justify the retrial of the main suspect
particularly where a judge has said such a trial would not be fair and
where he had a nagging doubt about guilt."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE OF THE DAY: "Justice Brian Martin, who, years later, inquired into that
original investigation, prosecution and trial, called Mr Eastman's
conviction a "substantial miscarriage of justice". His decision in 2014
summarised the flaws: "The issue of guilt was determined on the basis of
deeply flawed forensic evidence in circumstances where the applicant
was denied procedural fairness in respect of a fundamental feature of
the trial process concerned with disclosure by the prosecution of all
relevant material. In addition, evidence of inadequacies and flaws in
the case file and case work of the key forensic scientists were unknown
to everyone involved in the investigation and trial." Justice
Martin also chided the police and Office of the ACT Director of Public
Prosecutions' inability – even then, almost two decades later – to
understand the case's weaknesses. They contended the evidence remained
overwhelming; the judge said it clearly wasn't, and that the passing of
time had weakened it further. He said a retrial "would not be in the
best interests of the community", and recommended that Mr Eastman be
pardoned. Nonetheless,
for reasons never adequately explained, the DPP pursued a further
trial, despite the warning it was not in the public interest and would
likely fail."
EDITORIAL: "Eastman saga ends. Now to learn from it," published by The Canberra Times, on November 23, 2018.
GIST: "The
saga is over. Twelve of David Eastman's peers have judged him. After a
six-month trial, six days of deliberation and, at least initially, an
inability to agree, the jurors found him not guilty of murdering ACT
police chief Colin Winchester in 1989. Mr Eastman is a free man. Yet
his extraordinary legal battle is not quite finished. Mr Eastman spent
more than 19 years in jail for the killing and is expected to pursue
compensation for that imprisonment, worth potentially tens of millions
of dollars. The costs of this crime, and of the botched investigation
and prosecution that ensued, continue to mount. David Eastman has been found not guilty of the 1989 murder of AFP assistant police commissioner Colin Winchester. Meanwhile,
Mr Winchester's family and friends will likely never see justice served
on the police chief's killer. This is no happy ending. The
injustice began with Mr Winchester's murder almost 30 years ago. The
federal police, no doubt affected by their comrade's death and craving a
conviction, made poor decisions. Confirmation biases undermined their
work. Justice Brian Martin, who, years later, inquired into that
original investigation, prosecution and trial, called Mr Eastman's
conviction a "substantial miscarriage of justice". His decision in 2014
summarised the flaws: "The issue of guilt was determined on the basis of
deeply flawed forensic evidence in circumstances where the applicant
was denied procedural fairness in respect of a fundamental feature of
the trial process concerned with disclosure by the prosecution of all
relevant material. In addition, evidence of inadequacies and flaws in
the case file and case work of the key forensic scientists were unknown
to everyone involved in the investigation and trial." Justice
Martin also chided the police and Office of the ACT Director of Public
Prosecutions' inability – even then, almost two decades later – to
understand the case's weaknesses. They contended the evidence remained
overwhelming; the judge said it clearly wasn't, and that the passing of
time had weakened it further. He said a retrial "would not be in the
best interests of the community", and recommended that Mr Eastman be
pardoned. Nonetheless,
for reasons never adequately explained, the DPP pursued a further
trial, despite the warning it was not in the public interest and would
likely fail. The ACT government, rightly, supported the DPP's
independence. One wonders, though, whether the DPP acted independently
from the police, or whether it faced pressure to pursue Mr Eastman over
what had become, to many police, a personal matter. The best way
to honour Mr Winchester would have been to recognise, from the start,
the potential for the investigation to stray in the way that it did, and
to assign the task to disinterested outsiders. It is now too late
for that, but it is not too late to learn. It is time for the police
and the DPP to examine, and to admit to, the flaws in their decisions.
Neither have yet shown publicly they are prepared to do that; at every
step, they have dismissed criticisms of their handling of the case. Hopefully, Thursday's verdict will change that."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
PASSAGE IF THE DAY: "The 2014 inquiry was poring over the forensic evidence used
to tie Eastman to the murder scene. It was crucial evidence at the 1995
trial. Gunshot residue found in Eastman’s car boot was said to be a
precise match to that found at the scene of Winchester’s death. The
analysis was lauded by prosecutors as strong and unchallenged
evidence of Eastman’s guilt, and the trial judge later described the
police work as “one of the most skilled, sophisticated and determined
forensic investigations in the history of criminal investigations in
Australia”. The lead forensic witness, who cannot be named, was
presented to the
jury as completely independent, his veracity and expertise without
reproach. That all came tumbling down in a single afternoon. A secret
tape,
never heard before, was played through the court speakers. Lawyers
glanced at one another in expectation. The recording was made by a
detective working the Winchester murder,
Thomas McQuillen. He had begun to have reservations about the case’s
lead forensic investigator. So he secretly taped their conversations.
The audio betrayed any notion that the star forensic witness was
impartial. “I’m working with you. As far as I’m concerned I’m a, I’m a
Crown
witness, a police witness,” the supposedly independent forensic expert
told McQuillen. “I’m not going to see the brief suffer.’” Then, speaking
about other forensic scientists who had reviewed the
evidence and disagreed with his findings, he said: “If we don’t put a
brake on these turkeys, I mean, we don’t want these bastards putting
that sort of stuff in writing. They’ve got to be told, you don’t say I
do not agree. You ask questions all right.” Eastman’s defence was never
told any of this. In fact, their attempts at trial to discredit
the crown’s lead
forensic witness were openly and successfully ridiculed by the
prosecution. Had they been told of the witness’s behaviour, Eastman’s
defence may have had cause to begin questioning the forensic evidence
more thoroughly. Had they done that, they would have realised it was
deeply flawed. The expert had made embarrassingly basic errors. He mixed
up evidence
taken from Eastman’s car and the crime scene. The mix-up was ridiculed
by the inquiry’s senior counsel assisting, Liesl Chapman SC: “For a
forensic scientist, it doesn’t get any worse than that.” He accidentally
destroyed evidence, overstated his conclusions and
used a deeply flawed database of ammunition types – prepared by a
student – to reach the conclusion that the gunshot residue in Eastman’s
boot and that at the scene were one and the same. The inquiry found
later in 2014 that: “The issue of guilt was
determined on the basis of deeply flawed forensic evidence in
circumstances where the applicant was denied procedural fairness in
respect of a fundamental feature of the trial process concerned with
disclosure by the prosecution of all relevant material."
STORY: "Colin Winchester's murder and how the case against Eastman collapsed" by reporter Christopher Knaus, published by The Guardian on November 22, 2018.
SUB-HEADING: "Eastman was convicted of the murder in 1995, had the conviction
quashed in 2014, faced a retrial – and has now been found not guilty."
PHOTO CAPTION: "Colin Winchester, the highest-ranking officer to be murdered in Australia’s history."
GIST: "The courtroom was eerily quiet on the day David Eastman’s murder conviction began to unravel. It was late summer 2014 and, outside the walls of the ACT supreme
court, the city was flooding. Torrential rain and wild storms were bringing trees crashing down on to houses, flooding schools, swelling stormwater drains and grounding flights. But the court pressed on. The end was in sight to its almost six-month inquiry
into Eastman’s 1995 conviction for the assassination of Colin
Winchester – the Australian federal police assistant commissioner who
commanded the ACT’s police force. It was a crime for which Eastman had spent almost 19 years behind bars and a case that, for many years, gripped the nation. Winchester returned to his Deakin home late from work, about 9.15pm
on 10 January 1989. As usual, the police chief parked his car outside
his widowed neighbour’s home, a small gesture to make her feel safe. Winchester’s killer waited in the darkness. Two shots were fired as
he moved to get out of his car; the first to the back of his head, the
second to his right temple. Inside, his wife Gwen heard noises “like
sharp stones coming up on to the front of the window”. She walked outside to find her husband slumped behind the steering
wheel. Winchester remains the highest-ranking officer to be murdered in
Australia’s history. Rumours swirled about the involvement of the powerful Calabrian mafia,
known as the ‘Ndrangheta or honoured society, who Winchester had
double-crossed in a 1980s undercover sting that brought down their
cannabis crops near Bungendore, in New South Wales. A vast, all-consuming police investigation instead shifted its focus
to Eastman, a Treasury official, who was furious with police for
refusing to drop an assault charge against him. The public watched every step of the case. First as Eastman was charged with murder in 1993. Then as he was
convicted in 1995 and sentenced to life imprisonment. And on and on, as
Eastman used every possible avenue of inquiry and appeal to free himself
from prison and clear his name for a murder he said he never committed. But on that summer afternoon in 2014, the court’s public gallery was all but deserted. National interest had long ago waned and Winchester’s murder was fading from the consciousness of most Australians. The 2014 inquiry was poring over the forensic evidence used
to tie Eastman to the murder scene. It was crucial evidence at the 1995
trial.
Gunshot residue found in Eastman’s car boot was said to be a precise match to that found at the scene of Winchester’s death. The analysis was lauded by prosecutors as strong and unchallenged
evidence of Eastman’s guilt, and the trial judge later described the
police work as “one of the most skilled, sophisticated and determined
forensic investigations in the history of criminal investigations in
Australia”. The lead forensic witness, who cannot be named, was presented to the
jury as completely independent, his veracity and expertise without
reproach. That all came tumbling down in a single afternoon. A secret tape,
never heard before, was played through the court speakers. Lawyers
glanced at one another in expectation. The recording was made by a detective working the Winchester murder,
Thomas McQuillen. He had begun to have reservations about the case’s
lead forensic investigator. So he secretly taped their conversations. The audio betrayed any notion that the star forensic witness was impartial. “I’m working with you. As far as I’m concerned I’m a, I’m a Crown
witness, a police witness,” the supposedly independent forensic expert
told McQuillen. “I’m not going to see the brief suffer.’” Then, speaking about other forensic scientists who had reviewed the
evidence and disagreed with his findings, he said: “If we don’t put a
brake on these turkeys, I mean, we don’t want these bastards putting
that sort of stuff in writing. They’ve got to be told, you don’t say I
do not agree. You ask questions all right.” Eastman’s defence was never told any of this. In fact, their attempts at trial to discredit the crown’s lead
forensic witness were openly and successfully ridiculed by the
prosecution. Had they been told of the witness’s behaviour, Eastman’s defence may have had cause to begin questioning the forensic evidence
more thoroughly. Had they done that, they would have realised it was deeply flawed. The expert had made embarrassingly basic errors. He mixed up evidence
taken from Eastman’s car and the crime scene. The mix-up was ridiculed
by the inquiry’s senior counsel assisting, Liesl Chapman SC: “For a
forensic scientist, it doesn’t get any worse than that.” He accidentally destroyed evidence, overstated his conclusions and
used a deeply flawed database of ammunition types – prepared by a
student – to reach the conclusion that the gunshot residue in Eastman’s
boot and that at the scene were one and the same. The inquiry found later in 2014 that: “The issue of guilt was
determined on the basis of deeply flawed forensic evidence in
circumstances where the applicant was denied procedural fairness in
respect of a fundamental feature of the trial process concerned with
disclosure by the prosecution of all relevant material. “In addition, evidence of inadequacies and flaws in the case file and
case work of the key forensic scientists were unknown to everyone
involved in the investigation and trial.” Eastman was freed late on the evening of 22 August 2014.
He lay beneath a blanket in the back seat of a station wagon, hiding
from the cameras as he was bundled away from the prison where he had
spent the past 19 years of his life. The inquiry head, Brian Martin, a former Northern Territory supreme
court chief justice, said he was “fairly certain” of Eastman’s guilt but
said he still had a “nagging doubt”. Martin recommended Eastman not be
tried again. The ACT supreme court and local prosecutors took a different view. Prosecutors maintained that, even without the forensics, there was
plenty to prove Eastman’s guilt. He was allegedly seen scoping out the
area around Winchester’s house, had a burning hatred of police and
Winchester, had uttered threats and bought a gun police believed to be
the murder weapon. They said the case against Eastman remained
overwhelming. This year, almost 30 years after Winchester’s death, it came back to the ACT supreme court for retrial. Jurors heard new evidence about the mafia’s possible involvement, though the evidence was taken largely in secret. Now-ageing witnesses were brought back, again, and the crown once
more tried to build a circumstantial case pointing to Eastman’s guilt.
The retrial was wholly supported by the Winchester family. The jury spent seven days deliberating. At one point this week, it
looked as though it would not reach a verdict. But on Thursday morning,
the news came through. A decision had been made. Eastman was not guilty. His legal aid lawyer, Angus Webb, said of the decision: “Justice has been done.” Winchester’s widow, Gwen, died without any semblance of closure. She
passed away several months after Eastman’s conviction was quashed and he
was released. The remaining family say they are deeply disappointed
with the decision. They have been subjected to speculation, rumour,
innuendo and legal proceedings since Winchester was shot dead. John Hinchey, the ACT’s former victims of crime commissioner, said police would be similarly upset. “They would be heartbroken, I would believe, and grief-stricken,
again,” he told reporters outside court. “It is another day of mourning
for the AFP and the Winchesters.” Eastman himself has not spoken publicly." For most of the 2014 inquiry, he was rumoured to be sitting in prison, quietly listening in via audiolink from afar. It was a notable difference from his behaviour in the 1995 trial.
Then, he clashed openly with the trial judge, prosecution and his own
lawyers, who he repeatedly sacked only to be left self-representing
during critical parts of the hearing. “It would not be an exaggeration to describe it as chaotic,” an appeal court noted in 1997. Eastman made “vile, foul-mouthed, vituperative comments” to the judge
and prosecutor, and he was removed from the trial for a time and placed
in a separate room with a two-way video link. “His honour was able to supervise the sound control so that the
volume could be turned down when the appellant’s abusive language
warranted such action,” the appeal court noted. Eastman, who has been found to suffer a paranoid personality
disorder, has tried, unsuccessfully, to claim he was unfit to plead in
the 1995 trial. He said police deliberately placed him under immense pressure during
their investigation, hoping he would crack and make a confession. The resources deployed against Eastman were vast. Police bugged his apartment and tailed him everywhere. It was deliberately overt and “in-your-face” surveillance at times, the inquiry found. Police knew of Eastman’s personality disorder, and were advised to
keep regular contact with their suspect, in the hope of tipping him over
the edge. They falsely accused him of “homosexual activities with boys” and
would often knock on his door unannounced to “return property”. On one
occasion, police stuck their foot in the door when Eastman tried to
dismiss them. They monitored him during him his daily swim at a Canberra pool and had a female officer sunbathe in the pool every day. The lead detective on the case, Richard Ninness, explained the tactic. “He’d usually go to the Olympic swimming pool in Civic and we
orchestrated a situation with the policewoman, she was sunbathing at the
pool on a daily basis,” he said. “He struck up a rapport with her and invited her on an outing and he
took her to the war memorial and we knew in advance where they were
going.” When he returned to his car from the war memorial, police were waiting for him. Ninness would even swim at the pool at the same time as Eastman, to keep eyes on him. “I used to go to the swimming pool and he used to swim at the same
Olympic pool … it was important that I keep some sort of visual, even
though I didn’t talk to him, that he actually saw me there and my
presence,” Ninness said. Eastman frequently complained of harassment and his lawyer, Stuart
Pilkington, wrote to the police to tell them his client did not want to
participate in an interview. In response, Pilkington said he got a drunken call from Ninness. He told the inquiry: “Detective Sergeant Ninness said words to the
following effect: ‘I got your fucking letter. If I want to talk to your
little cunt of a client, I’ll fucking well talk to him whenever I
fucking well like. You can stick your fucking letter where it hurts
most’.” The inquiry found the strategy was deliberate and “inappropriate”, even for the attitudes accepted in the 1980s and 1990s. “The harassing and provocative conduct was undertaken with the
deliberate intention of provoking the applicant into saying something
incriminating, which could be recorded on listening devices in his
home,” the inquiry found. The jury’s verdict on Thursday once again leaves the Winchester case
open, again. It means the murderer of the highest ranking police officer
in Australia’s history remains at large."
PUBLISHER'S NOTE: I am monitoring this
case/issue. Keep your eye on the Charles Smith Blog for reports on
developments. 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: http://www.thestar.com/topic/charlessmith.
Information on "The Charles Smith Blog Award"- and its nomination
process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html
Please send any comments or information on other cases and issues of
interest to the readers of this blog to: hlevy15@gmail.com.
Harold Levy: Publisher; The Charles Smith Blog;
Two Blogs Now: The Charles Smith Blog; The Selfless Warriors Blog: I created the Charles Smith Blog in 2007 after I retired from The Toronto Star to permit me to keep digging into the story of the flawed pathologist and the harm he had done to so many innocent parents and caregivers, and to Ontario’s criminal justice system. Since then it has taken new directions, including examinations of other flawed pathologists, flawed pathology, and flawed science and technology which has marred the quality of justice in courtrooms around the world. The heart of the Blog is my approach to following cases which raise issues in all of these areas - especially those involving the death penalty. I have dedicated 'The Selfless Warrior Blog’ (soon to appear) to those exceptional individuals who have been ripped out of their ordinary lives by their inability to stand by in the face of a glaring miscarriage of justice. They are my ’Selfless Warriors.’ Enjoy!
