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Forensic Science
Worst Practice
The disgraced pathologist Michael Heath collected some maggots from the body of Russell Crookes where it was discovered in a wood, run by Hadlow Agricultural College, in May 1998. Crookes had been missing for almost a fortnight. Despite standard practice that Heath should have known, he didn't bother to sample extensively for maggots from different areas of the body or record the environmental conditions adequately, even though forensic entomology was obviously the best hope to establish a post-mortem-interval.
Heath made matters worse. Not only had he failed to sample the maggots extensively, as should have been done, but he failed to obtain the obvious data that was required to help calculate the post-mortem-interval. The point of sampling from different areas is that different species could be discovered and that would enable a more accurate post-mortem-interval to be calculated.
After ensuring that the maggots have been sampled correctly, fixed and live samples are handed over, environmental conditions, including the temperature in the maggot-mass, ambient temperature and under the body too must be established and recorded properly too. Then the maggots have to be reared to optimum standards in order to establish the various species, activity and hence the most accurate post-mortem-interval. None of that occurred in this inquiry.
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Disastrous
Disgraced pathologist Michael Heath has a long history of inadequate investigations and testimony. He made a complete mess of the case against a teenage agriculture student from Kent. If ever an example were needed of the need for an integrated approach to various forensic science disciplines, Neil Sayers' case was it.
It was a very complicated investigation as a maggot-infested, partially burned and mutilated body was discovered several days after Sayers' friend and fellow student Russell Crookes went missing in May 1998. Obviously, forensic science offered the best prospect of unravelling the mystery, but Heath's conduct robbed it of the opportunity to do so when it mattered most.
Sayers is either a liar and a vicious killer, or a very wronged young man. Various scientific investigations ought to have been conducted during 1998. The police chose not to. That was their right. They had a confession from Sayers' co-accused, Graham Wallis, but this wasn't really a confession; it was an accusation. Wallis blamed Sayers for virtually everything, but the facts were also consistent with another explanation.
Wallis had acted alone and then, knowing what had happened, inserted Sayers into his confession to cut a better deal for himself. Forensic science could have resolved many issues in this case over a decade ago, but it wasn't given the opportunity it deserved by the police, prosecution or even Sayers' defence. Despite great difficulties, it still can, although it is far harder than it could have been and now it will cost a great deal more than if it had been investigated adequately as it should have been in 1998.
Extensive Error-Strewn Pathology
Heath had the best opportunity to establish the pathology evidence. He conducted the first post-mortem examination and claimed that the body of Russell Crookes had suffered extensive fire-damage. Extensive compared to what? Examination of the evidence leaves only one conclusion. Heath was completely wrong. Body fat had not even been rendered into the fire, which would have fuelled it and the dissection conducted by Heath proved that far from suffering extensive fire-damage, flesh was red raw.
This showed that the temperature reached inside the body was not even high enough to allow the body fat to drip into the fire – hardly consistent with a blaze that caused extensive fire-damage. A competent pathologist ought to have recognised both this and that the fire-damage varied throughout the body. There was surface damage consistent with the wick-effect (clothing acts as a wick that raised the temperature in the areas under the clothing and resulted in greater damage), but Heath's inadequate explanations proved disastrous.
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Shameful
The disgraced pathologist Michael Heath fell from favour five years ago. Incredibly, not one case that had found its way to the Criminal Cases Review Commission (CCRC) resulted in a quashed conviction and it had taken almost five years for any of the convictions that it referred back for appeal to be heard. Despite Heath being thoroughly discredited – the starting point of the CCRC's review – only two cases were referred back for appeal due to Heath's evidence, but neither Mushtaq Ahmed nor Kenneth Noye benefited from that.
Cases that did not involve 'obvious' medical issues did not get a look in. The CCRC's review was limited in its scope, ignoring pathology-related issues. Neither Neil Sayers' case, nor Michael Stone's were investigated further, let alone considered for referral back to the Court of Appeal. Medical issues played little or no part in Sayers' case, but Stone's arguably did. At the very least, it suggested that other vital evidence should have been obtained, which justified a thorough review of the case to resolve other scientific issues that could prove Stone innocent. In a different manner that applied to Sayers' case as well.
As the then President of the Queen's Bench and current Lord Chief Justice, Baron (Igor) Judge of Draycote, said: “Even if Dr Heath's evidence was challenged at trial, it does not follow that the convictions will all be unsafe. Some will remain safe, even if his evidence lent support to the Crown's case. Some, of course, and this is one, will not.”
As will be shown soon Stone's is a case that refuses to fit neatly into any box regarding Heath. Either Heath got it wrong, in which case, that is surely worth reviewing, or he was right, but if so that raises other issues that strongly suggest that further investigation and testing is required at the absolute minimum, regardless of the CCRC's decision not to refer his conviction back for appeal.
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Disgraced Pathologist
Michael Heath's career as a forensic pathologist ended in disgrace as he lost his status as a Home Office forensic pathologist, following a disciplinary tribunal in 2006. However, the limitations of Heath's conduct, expertise and evidence had been known about since the 1990s. It took him almost a decade to secure the status of Home Office pathologist, because he repeatedly failed his exams. That emerged in a cross-examination of him during an inquest nine years before the Home Office Pathology Advisory Board tribunal that ended his career as a top forensic pathologist.
Among the conclusions that the tribunal, chaired by John McGuinness QC reached was the following damning indictment of Heath's methods: "We think that his reference to these statements is an extremely good example of Dr Heath vigorously advancing forensic pathological conclusions based on an unacceptable level of speculation without evidential foundation and demonstrating a degree of inflexibility when confronted with reasoned contrary opinions by colleagues which might be dangerous to the objective presentation of expert testimony."
Heath has become notorious for intransigence and inflexibility of his opinions, but evidence of this had existed for several years. It had been ignored even when there were several proven examples in forensic case-work that went far beyond differences in expert opinion.
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Limited Scope
It's been almost five years since a Home Office Pathology Advisory Board tribunal concluded that the pathologist Michael Heath was guilty of: "vigorously advancing forensic pathological conclusions based on an unacceptable level of speculation without evidential foundation and demonstrating a degree of inflexibility when confronted with reasoned contrary opinions by colleagues which might be dangerous to the objective presentation of expert testimony." So what has happened since then?
Heath immediately resigned from the Home Office's register of forensic pathologists. The then Attorney General, Baron (Peter) Goldsmith watched developments carefully. The Criminal Cases Review Commission (CCRC) began a review of all of its cases where Heath had been involved. Its Commissioner, David Jessel, not a panel of qualified forensic pathologists, or even one, conducted the review of fifty-four cases. He focused on medical evidence. Why? There were other issues as well that were related to forensic pathology that may have affected the safety of convictions.
Only eight cases were deemed worthy of further investigation by Jessel. Three were referred back to the Court of Criminal Appeal, but one of those, Simon Hall, was on the credibility of the fibre evidence, rather than Heath's conduct. Heath's role in Hall's case was marginal anyway. The same could not be said of the convictions of Mushtaq Ahmed and Kenneth Noye, but it made little difference. They lost their appeals as well.
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Incredible
The Criminal Cases Review Commission (CCRC) had failed to ensure that its review was conducted by a panel of qualified forensic pathologists. Instead it trusted the review of Heath to a former journalist who was one of its Commissioners. David Jessel reviewed fifty-four cases, concluding that just eight should be subjected to further review. Of those only three were later referred back to the Court of Criminal Appeal by the CCRC – the notorious Kenneth Noye, Mushtaq Ahmed and Simon Hall, whose conviction was sent back for appeal for reasons other than Heath's pathology.
Significantly, all three convictions were not overturned, meaning that despite the fall from grace of a forensic pathologist that judges concede is notorious for vigorously advancing opinions that are not supported by evidence and being inflexible about it when confronted with properly reasoned arguments that contradict his opinion, not one conviction was overturned as a result of the CCRC's review.
This is incredible, but it has not led to a further more detailed review of Heath's cases that takes the possibility that similar facts may affect the safety of convictions into account. Despite repeated efforts by us, the CCRC refused to understand, let alone act on the points that we raised in this respect five years ago. We even gave them a detailed summary of the cases and issues where Heath's pathology had been found wanting by a court or inquest tribunal.
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By the Boot-laces
10 year-old Nienke Kleiss was raped and strangled with the lace of her 11 year-old friend, Maikel Willebrand's boot in the Beatrix Park in Schiedam in 2000. "In order to do that he had to untie the laces," Dutch DNA expert Richard Eikelenboom said. "It had very long strings. The shoe-strings were pulled around the neck and they were pulled very, very strongly, so now you have the information to work on – DNA on the fibres. We were doing contact DNA from them."
This was vitally important. It meant that there was a fair possibility that the killer's DNA would be on the lace. Eikelenboom tested the lace using Low Copy Number techniques and discovered alleles that did not belong to either victim, so what did this mean? Eikielenboom showed me profiles and evidence to illustrate his points.
"I'm sure the perpetrator put his hand here and pulled the cord here, but now we have DNA of her and of Maikel," he said. "Maikel of course has left a lot of DNA there. You are familiar with contact DNA? If you want my DNA, more force has to be applied. It's not very logical to get DNA if I touch the place, if you find anything at all." But as Eikelenboom had pointed out, this was different. The DNA evidence and the way that Kleiss was murdered required severe contact with the lace to apply the force required to strangle, which meant that the killer was likely to have deposited his DNA on the lace.
"I took samples at ten locations of the shoe-lace which was used to strangle Nienke," Eikelenboom said. "I got DNA not matching the two vicims and I would think well that could be coming from the perpetrator, because why would an unknown person, not being the father or mother, or other person touch the shoe-lace of this boy exactly at the locations where the perpetrator touched it? It's not very likely, so we thought, let's have a look at the locations where we found common alleles, not matching the two victims."
He did so, finding that these alleles occurred in other locations from the crime-scene too. There was no possibility of an innocent explanation of all this DNA. They had the DNA of the killer and it did not match Borsboom. There was no doubt about it; Borsboom had been proven innocent by Eikelenboom's investigations, but this was covered up. Eikelenboom was not the Reporting Officer and Ate Kloosterman's report was very selective. It allowed Kloosterman to advance an explanation for the alleles that had not been deposited by either victim in court that he must have known stretched credibility at best. The profiles that would have proved innocence were not included in the report and Kloosterman must have known that it was ambushing Borsboom's defence. Borsboom was tried and convicted and served four years in jail for crimes he did not commit. This disgraces the Dutch criminal justice system.
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The Mark of The Killer
Dutch forensic scientist Richard Eikelenboom likes information. He conducted several scientific investigations in the Nienke Kleiss Inquiry looking for the DNA of the perpetrator. He knew that it would be complicated as there were two victims, Kleiss and her friend Maikel Willebrand. The body and crime-scene had been handled badly. Nevertheless, Eikelenboom struck partial gold. He found DNA that did not belong to either victim and its location indicated that it had been shed by the perpetrator. It should have made amiscarriage of justice impossible, but sadly, it didn't.
"The officers were not interested in his DNA," Eikelenboom said. "We found DNA on her shoulder of an unknown person and on the left boot of the victim. It was also on her bare shoulder and belly and on the lace used to strangle her. This was interesting.
Source level reporting means the scientist compares profiles obtained from items and reference samples. However, at source level, the expert is only concerned with whether there is a match to someone or not. Due to the small quantity of DNA that had possibly been deposited by the perpetrator, the evidence was not very strong at that level. Nevertheless, the question of how the DNA results that were obtained (the activity level) had got there in this case made it very interesting.
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The Road to Vindication
Kees Borsboom always was innocent. The real murderer, Wik Haalmeijer, eventually acknowledged it and, unusually, refused to allow the Dutch authorities to continue to cover up a shameful miscarriage of justice. He was asked to retract as the case had already been solved, but declined, insisting on DNA testing. It proved that Haalmeijer was indeed guilty of the rape and murder of 10 year-old Nienke Kleiss.
"The body was still warm with loads of DNA from the two victims," said DNA expert Richard Eikelenboom. "No scientist ever likes DNA mixtures from three persons, but in this case it was inevitable that we had to look for that. Another problem was with the large amount of blood and bronchial fluids from the victim, which made it very likely that the samll quantity of skin (epithelial) cells coming from the hand of the perpetrator would be obscured by it. When 90% of the sample consists of the victim's DNA, the 10% that was deposited by the perpetrator will probably not be detected even if it is there. In more than 85% of the samples that we test, the profiles come from blood or other body fluids. The chance of getting a DNA profile from epithelial cells in 2000 was only 16%."
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Proved Innocent
It took four years to prove Kees Borsboom innocent, but it happened in bizarre circumstances. Wik Haalmeijer raped and killed 10 year-old Nienke Kleiss and left 11 year-old Maikel Willebrand for dead after strangling him and stabbing him repeatedly. Willebrand survived to tell his remarkable story. Shamefully, the evidence to prove Borsboom innocent had been there all along and was ignored.
Haalmeijer was eventually arrested for the rapes of two women, but he had a surprise for investigators. He also confessed to the Schiedam Park crimes, which had shocked the Netherlands to the core in 2000. Despite requests to do so, Haalmeijer refused to retract and DNA testing not only proved that Borsboom was innocent, but that Haalmeijer was the real perpetrator. This was the Netherlands' first vindication case. It should also be a cause of shame for the Netherlands Forensic Institute (NFI).
Shameful
It was a complicated case scientifically as there were two victims and a perpetrator. This meant that the DNA would be mixed despite the number of samples. Nevertheless, there was enough material to prove that Kees Borsboom was innocent. "They come to me and say, 'This is our guy; now look, compare the DNA,'" Richard Eikelenboom said. "And I'm saying, 'This is tricky, look at his profile.' We looked at the database and got eighty partial matches, but when we compared the full profiles on the database to the partial matches, none fully matched; therefore there was no support for the hypothesis that the perpetrator was on the database. This proved to be true later on when Haalmeijer confessed. He had not been on the database when we originally checked it, or at the time of the murder."
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The 'Defence' Witness
It doesn't happen often, but the the Schiedam Park Murder offers many lessons and a victim who should have been a compelling defence witness. Maikel Willebrand was lucky to be alive. "Maikel was very, very lucky and very, very cool in the way he played dead and that's really the only reason that he survived, so he played dead," Dutch DNA expert Richard Eikelenboom said.
Eikelenboom played a crucial role in this case, but that came later. "A pool of blood was found at the crime-scene and DNA testing on the victims also yielded DNA profiles," said Eikelenboom. "Maikel was there bleeding for a certain amount of time, but he could still hear and see parts of the crime." Willebrand's quick wits not only saved his life, but provided a crucial witness to a horrible crime. It should have been the police's dream, but they made a terrible mess of it. An entirely preventable miscarriage of justice occurred and it almost happened to Willebrand as well.
Evidence
A decade ago the 11 year-old boy survived one the nastiest crimes in Dutch history. Stabbed eleven times, he played dead while Wik Haalmeijer raped and murdered his 10 year-old friend, Nienke Kleiss. He waited until the killer went away and ran out of the Beatrix Park in Schiedam straight into the arms of cyclist, Kees Borsboom, who would later be the victim of a terrible miscarriage of justice.
"I've worked in a lot of other rapes/homicides where we did not find anything, but she was raped and later on she was she was strangled with the lace of Maikel's boots," Eikelenboom said. "In order to do that the perpetrator had to untie the laces; it had very long strings. The shoe-strings are pulled around the necks of both victims and they were pulled very, very strongly, so now you have the information to work on, fibre DNA. We were doing contact DNA from them."
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The Partial Truth (Part One) |
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| Ricky Preddie and his brother Danny, were nineteen and eighteen years old respectively when they were convicted in August 2006 of the manslaughter of ten year old Damilola Taylor, which occurred in Peckham over eight years ago. Shortly after the verdicts were brought in the Home Office announced a review of the error that caused justice to be delayed. Sian Hedges, then working for the Forensic Science Service, missed crucial blood-staining that originated from Taylor on clothing and footwear of the Preddie brothers. It did not investigate whether Hedges committed perjury in the trial earlier this year that resulted in the acquittal of Hassan Jihad on all charges and the Preddie brothers of murder and robbery regarding her work on the case, which resulted in a miscarriage of justice as four boys were wrongfully accused of the murder of Damilola Taylor. In 2002 they were either acquitted by the jury or on the orders of the trial judge, a then Mr Justice Hooper. The accusation against those four boys and that the truly guilty evaded justice is a miscarriage of justice despite wrongful convictions not occurring.
When originally confronted with her error, Hedges had no answer other than that she had missed it. She repeated this in evidence. When pressed by Orlando Pownall QC, Hedges said: “I’ve been thinking about it overnight and I think it’s unlikely that I wouldn’t have seen it.1 My explanation is that I would have KM-tested2 it and produced a negative result.”
This suggests that either the staining which was clearly visible to the naked eye was not there when she examined the trainer, or the presumptive test was negative. Both interpretations are fanciful. Original photographs show the stains clearly and if the KM-tests were negative, where are her laboratory notes of the tests that she claims she would have conducted and why did she fail to come up with this explanation earlier? The question of how a presumptive test for possible blood-staining on a large area that was in fact blood could test negative also seems to have escaped her. Although false negatives can occur, they don’t in the circumstances of this case. It is a rare phenomenon that is unlikely to only be remembered as an afterthought.
Four innocent boys stood trial for the same crime in 2002. That trial collapsed due to the unreliability of the key witness referred to as Bromley. John Sentamu, now Archbishop of York, headed an inquiry into police handling of vulnerable child witnesses like Bromley that resulted in recommendations.
The Home Office review focused on how the vital evidence that secured the convictions was missed in the first place. There was no investigation into how the Damilola Taylor Inquiry was mishandled in the first place. Hedges’ error does not explain how the innocent original defendants were allowed to stand trial years ago. Neither the Metropolitan police, nor its police authority have announced any plans for an inquiry into what went wrong – errors that almost derailed justice permanently. Indeed had wrongful convictions been obtained then through highly dubious methods, the Preddie brothers would never have been brought to justice.
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Forensic Science
