Righting Wrongs
Poor practice of forensic science still has the power to ruin innocent lives. The former forensic pathologist Dr. Michael Heath is a very good example. The trail of devastated lives that he left in his wake illustrates the need – necessity really – for stringent standards in the regulation and control of the standards of work provided and also the consequences of the failure to provide an integrated approach between the various forensic science disciplines in case-work. The Fitted-In Journal is proud to have trod an often lonely furrow in regarding Heath’s career as a forensic pathologist. We have covered his cases in depth and also the aftermath.
Opportunities to stop him were wasted. Like his predecessor, the late Professor Sir Bernard Spilsbury, Heath betrayed a staggering level of professional arrogance. His opinions contradicted medical fact and the opinions of colleagues were ignored. Undoubtedly it resulted in some trials that should never have occurred, but that cannot be blamed on Heath alone. The Crown Prosecution Service (CPS) has a responsibility to ensure that only cases that meet the sufficiency and quality of evidence requirements proceed to trial, so how can it justify its failure to halt prosecutions where there was no evidence apart from Heath’s outlandish and sometimes ludicrous opinions. Even after colleagues shot down his ridiculous hypotheses, Heath would not budge and nor it seems would the CPS. It had a duty to prevent these inappropriate cases from coming to trial, but it repeatedly failed to do so. It must bear some responsibility too as it could and should have stopped Heath. Had it done its job earlier, perhaps Heath and other forensic pathologists would have got the message.
Belatedly, Heath got the message. Once his work and methods were found wanting, he resigned from the Home Office Register of Pathologists – a clear case of jumping just before the choice would have been taken away from him. He continued to work as an expert witness; he is registered as such with General Medical Council as a histopathologist. Heath, was at least chastened and addressed some of the character flaws that brought about his fall. It saved his job, which means that while it is highly unlikely that any lawyer would rely on him as an expert witness in a criminal trial, he can be called to inquests. But Heath should not be seen in isolation. There were others too, although forensic pathology has put its house in order with stringent assessments of the quality of work required to remain on the Register and the knowledge that colleagues will not gloss over incompetence or worse. Other disciplines and professions should follow suit, but it was a long hard slog to get to this point.
A Very Dangerous System
From the moment I was first told about it almost twenty years ago I was interested in the case of Gary Mills and Tony Poole – it had everything, yet despite a major documentary it never achieved the profile that it deserved. Among the serious issues in their case was the cause of death – there are many more – but suffice to say there is no doubt that the judge and jury were at best misled regarding the cause of death and the certainty that death was an inevitable consequence of the events of that night (January 5th-6th 1989) in Gloucester. The Court of Criminal Appeal judges, led by Lord Justice (Sir Philip) Otton, a Fellow of the Royal Society of Medicine, accepted all that and more, but concluded that it would not have made any difference.
However, those judges had gone beyond the permitted limits by deciding what were facts – they had no legal right to do, especially in this case. When the cause of death and inevitability of death occurring are not considered material issues in a murder case it is difficult to see what could be material issues. But there were other issues that grabbed attention, such as the absence of investigation of all the medical issues. In 1996 the appeal judges usurped the function of the jury and decided on a new cause of death. They did that despite having no greater medical expertise than a jury. This was plainly a matter for a jury to decide as was the credibility of an eyewitness, who had been prevented from attending a committal hearing due to a senior police officer perverting the course of justice and perjuring himself.
The appeal judges cross-examined the American expert Professor Donald Trunkey, forcing him to say that if a patient like Hensley Wiltshire was presented to him, Trunkey would have forcibly treated him. This was an outrageous trap. The judges knew full well that the law did not allow treatment without consent at the time, but it also did not allow refusal of treatment if it had been requested and there actually was evidence that Wiltshire did not refuse treatment. In fact, he positively asked to be helped. Either the judges knew this and ignored it, had not received all the paperwork, or simply did not read it, each of which is unacceptable. This evidence was obtained during a Police Complaints Authority investigation into Wiltshire’s death. If Wiltshire was denied the medical treatment that he wanted, that is utterly scandalous and for that issue to have escaped investigation for over twenty years is despicable.
Wiltshire visited that hospital twice that night and was not properly treated on either occasion. A set of an unusual circumstances combined to claim his life, but certainly neglect and inadequate procedures played a part. During his second visit Wiltshire was heard saying, “You’ve got to help me,” to a doctor. This was heard by a police officer, who made a statement to that effect, but it was not disclosed until the first appeal. It languished in the unused material and was not mentioned in the appeal, as defence lawyers did not know that an ambush by the appeal judges would occur. If the judges were not served with all the paperwork, why not? And if they were, then they must have known that they were ambushing a witness, knowing full well that there was credible evidence that Wiltshire had not refused treatment. This has never been investigated, let alone resolved.
How did Wiltshire’s plea, or demand for help even, turn into refusing treatment? He never signed a form refusing consent to be treated. There is no evidence of a verbal refusal of permission to treat him either. A doctor said in evidence that Wiltshire did not want to stay in hospital, but that doctor admitted that Wiltshire immediately said that he did not want to go back to the police station either. Clearly, Wiltshire was confused as his choice was either to stay in hospital or go back to the police station, but the choice was made for him by that doctor without establishing if he understood the decision he was supposed to make. Despite not wanting to go back to the police station, for the second time that night he was sent back to that station to police officers who had been told that he was shamming. He wasn’t. Deprived of the care and assistance that he needed, his condition deteriorated to the point of collapse and death.
And this happened in a case where Wiltshire should not have been in the police station any way. Flagrant breaches of the Police and Criminal Evidence Act (PACE) allowed police to keep him in custody, so Wiltshire appears not only to have been denied the treatment that he wanted, but was unlawfully held in the police station as well. Did he consent to be treated? Doesn’t his comment demanding help at the very least imply consent? And how did his consent to go to hospital for the second time that night turn into a refusal that justified his return to police custody within an hour or so? Finally, how did an unlawful arrest result in him remaining in the police station while his life ebbed away? Shamefully, these issues have never been resolved, or even investigated.
Hensley Wiltshire had been an uncooperative patient on his first visit to the Gloucester Royal Infirmary. He had both alcohol and drugs in his system. He had head injuries and was a repeat visitor when he returned. The effects of alcohol were wearing off; he was a far more reasonable patient and he apologised. As a return visitor, he should have been admitted to hospital if he wanted it. As a patient with head injuries, he should have been admitted and kept in hospital overnight at least. If that had happened, Wiltshire would have survived and the facts of what happened that night could have been established. At the very least, the law should be clarified, so this can never happen again. Twenty-two years after Wiltshire’s death, and several court hearings and investigations later, the medical and pathology issues remain unresolved. This case demonstrates the importance of the interpretation of scientific evidence and the role of the courts, but it is far from the only pathology-related case to suffer from wasted opportunities.
Wasted Opportunities
I also have a long-standing interest in Heath, stemming from conversations with eminent defence solicitors nearly twenty years ago, after I became involved in Mills’ and Poole’s case. My interest in forensic pathology blossomed from then on. I was advised to look into the work of three of them who were mentioned by all the solicitors; Freddy Patel, Michael Heath and Paula Lannas – a veritable rogues gallery of modern forensic pathology in Britain. The quality of their work was appalling, but this had been known for years. In Heath’s case, concerns had also been expressed by lawyers and judges in the 1990s and in the following decade too.
By the time Heath fell from favour in 2006 there were several findings against him by courts in a variety of cases and over different pathology issues. The continued use of these disgraced pathologists after concerns were raised demonstrates the dangers of over-reliance on the hired gun approach better than most. It also shows the need for thorough regulation and control better than most. Despite Heath’s disgrace, the consequences of his inadequate work have not been addressed even now. The CCRC was not and could not be the body to investigate that and failed to consider the issue of similar fact (namely the facts of a case being reviewed may be similar to a case where Heath was discredited, but not to the two tribunal cases – Kenneth Fraser and Steven Puaca).
The then Attorney General had the opportunity to investigate further, but Lord Goldsmith chose to abdicate that responsibility. Even now, five years after the Home Office Pathology Advisory Board Tribunal ended his career as a top forensic pathologist, there has been no investigation of cases involving Heath – this includes both possible wrongful convictions and also the possibility that he got the cause of death wrong in cases that should have been deemed homicides, but were not.
Vindication by Ignorance
Heath and Lannas share another claim to fame – infamy really. Steven Taylor spent ten months in prison on remand. Heath concluded that marks on his wife Beatrice’s neck were indicative of strangulation. They were not. Those marks proved that the dissection of her neck tissue had not followed correct procedures. It was well known among competent forensic pathologists that there were special techniques for dissecting such tissue. Nevertheless, it appears that Heath had forgotten this or was unaware of it. Mortuary technicians had dissected it wrongly and Heath rushed to the conclusion – the wrong one – that the marks produced in that dissection proved strangulation. It is an error that no forensic pathology student, let alone an experienced forensic pathologist should make. It is not necessary to take my word on that. Competent forensic pathologists agree.
“In summary there is a high degree of probability that the haemorrhages observed in the deep neck structures were produced during dissection by autopsy technicians prior to the involvement of the forensic pathologist,” an expert report said in 1997. “There are no other autopsy findings to support an allegation of homicidal strangling. Such an allegation cannot be sustained on the existing pathological evidence.” Dr John Clark agreed that the marks on Mrs. Taylor’s neck were post-mortem artefacts. The charges were dropped. The other forensic pathologist, whose report is quoted above was the President of the Clinical Forensic and Legal Medicine Section of the esteemed Royal Society of Medicine, Professor Derrick Pounder. He later said that it was a classical error that he could not imagine another forensic pathologist in the UK making. Sadly he was wrong.
Absurd as this must sound Lannas somehow managed to trump Heath’s incompetence in Taylor’s case. Heath at least has the excuse, albeit poor, that the original mistake – the incorrect dissection method – had been made by autopsy technicians rather than himself. Lannas cannot even claim that. Brian Buchanan stood trial at the turn of the millennium for the murder of his girlfriend’s baby, which had occurred in 1998. The only crime that occurred in that case was the ‘cack-handed autopsy techniques,’ of Paula Lannas, which in all probability had caused the marks that Lannas then claimed proved strangulation. Buchanan was acquitted in January 2000. She also made a mess of other cases including that of Serena Kayretli and her then husband, Vedat.
But for Lannas the end was nigh. Her colleagues complained to the Home Office’s Pathology Advisory Board. She fought the proceedings against her tooth and nail, preventing the tribunal from occurring because of a conflict of interest. She then refused to comply with the requirements to submit cases for evaluation and became the first pathologist to be removed from the Home Secretary’s Register of Forensic Pathologists in 2003. While Heath remains registered by the General Medical Council, Lannas is not. Her attempt to judicially review the decision to remove her from the Register failed.
If the consequences of their errors had not been so serious, it would have been comical, but another similar case in a different jurisdiction illustrates this theme better, as it was, or should have been patently obvious that no crime had occurred from other evidence. Former England cricketer and respected coach, Bob Woolmer, sadly died in his hotel room in Jamaica in March 2007, during cricket’s 50 overs a side World Cup in the West Indies. Conspiracy hypotheses – they had no basis in fact and sadly that includes the police’s case scenario – flourished. Members of Pakistan’s team including then captain Inzamam ul-Haq and the experienced batsman Mohammad Yousuf were singled out in part because of their religious beliefs. They and other players were accused by some of betting and not allowed to leave Jamaica without agreeing to provide fingerprints and DNA. They were treated as criminals by the Jamaican judicial system and influential media including the BBC’s Panorama and most shamefully of all by former Pakistani fast bowler Sarfraz Nawaz.
Both their investigation and that of the police were shamefully shoddy, but this case is ideal the need for an integrated approach to the investigation of cases throughout the criminal justice system. According to Nawaz the body-language of the players ahead of an important match indicated that something was wrong. Nawaz believed that Woolmer was about to blow the lid on corruption in Pakistan’s cricket and that he was murdered to silence him. The conspiracy buffs were then bolstered by the science-fiction of Dr. Ere Sheshiah – a pathologist who proved that utter incompetence is not restricted by international borders. There was not a shred of credible evidence provided by Sheshiah or Nawaz, proving murder.
In a theatrical television appearance Sheshiah declared that Woolmer had been the victim of manual strangulation. The rumour mill went into over-drive, but Sheshiah, like Lannas and Heath, apparently was not aware of basic forensic pathology techniques regarding the methods needed to dissect neck tissues. Cack-handed autopsy procedures had struck again, but Sheshiah added his own unique brand of incompetence to the mix. Woolmer wore a gold chain around his neck. It was still there when his body was discovered, so why if Woolmer had been the victim of manual strangulation, were there no marks caused by the chain on his neck? This does not appear to have occurred to Sheshiah or the proponents of the conspiracy hypotheses. However, there was other evidence which proved beyond doubt that this was not murder and that had been available to Sheshiah, the Jamaican police, Panorama and everyone else from the very beginning. Woolmer’s body was discovered slumped against the bathroom door of his hotel room. He had died in the bathroom. There were no signs of a struggle. If Woolmer had been murdered, how had the killer got out unless he could walk through doors or walls?
That alone meant that it was impossible for Woolmer to have been killed. Basic investigative skills should have revealed this. Had they adopted an integrated approach to the evidence, the error would not have occurred as no pathologist – even the most incompetent – could have concluded that manual strangulation explained the marks on Woolmer’s neck in all the circumstances of the case. Woolmer was an unhealthy man – death by natural causes was hardly surprising and that is what happened to Woolmer. A holistic view of all the evidence leaves no possibility of any other conclusion. Murder was impossible and this should have been obvious from the start. Indeed, it would have been if an integrated approach to all the scene of non-crime evidence and the pathological findings had been taken. That would have got to the truth and resulted in Woolmer’s family and the Pakistani cricketers being spared unnecessary suffering. They were completely innocent and had their reputations dragged through the mud needlessly over a crime that plainly had never happened.
Case Studies
The problems that have been detailed previously have living and breathing consequences – the victims of these shoddy procedures and practices. All of the cases cited above demonstrate the need for an integrated approach between the scientific disciplines and courts too. The case studies below emphasise that need further. Two occurred in Kent, but a third case in another jurisdiction where there is no doubt about the innocence of the accused, Kees Borsboom, graphically illustrates the flaws in that country’s system and the need for an integrated approach between the forensic sciences and the courts too.
People’s lives were wrecked on what amounted to the whims of a pathologist who was incompetent at best, or possibly worse. Heath had been disastrous for a decade and a half and even after his disgrace found work as a histopathologist, but awful pathology is not a phenomenon confined to Britain. The scandal of the Canadian forensic paediatric pathologist Charles Smith is another infamous example of an expert prepared to give evidence beyond the limits of science. But there are other issues too, such as the manipulation of inconvenient results. Forensic science should have no side. Both prosecution and defence lawyers have favourite experts. Reputation plays a part, but so unfortunately do the pressures of a results based industry – the criminal justice system. Both defence lawyers and prosecution ones too have desired outcomes. Success is measured for prosecuting lawyers – police too – in terms of convictions and for defence lawyers in terms of acquittals. Justice, sadly, can often be lost between the demands of competing interests. A good indication of this is a case where even when Heath was right, justice can still miscarry.
Michael Stone
Almost ten years ago I witnessed that happen before my eyes in the retrial of Michael Stone, which took place in Nottingham in 2001. A boot-lace had been used in one of Britain’s most notorious crimes – the murders of Lin and Megan Russell and attempted murder of Josie. Heath demonstrated how he believed the lace had been used to strangle poor Megan, on a police officer, for the judge and jury. It involved the murderer transferring around 25foot/pounds of pressure through the lace for several seconds. Megan’s neck also bore signs of this ligature pressure. It was plain that if Heath was right, the murderer would have had that pressure go through the lace and onto his fingers as well, to the point that it would have been painful. There was no evidence that the killer wore gloves. This was very significant as it suggested that the DNA of the killer was likely to have been on the lace, but before the trial started Stone’s defence made strategic errors. Stone paid the price.
Concessions were agreed before the trial, but Heath’s evidence should have changed everything. The DNA experts should have been asked if that changed their opinions on the likelihood of the ‘tourniquet hypothesis,’ but Stone’s defence lawyers failed to do that. Others concentrated on whether the lace had been used as a tourniquet by a drugs user. That was established largely through the evidence of a knots expert. Evidence of Stone’s drug use was also presented to establish why he would want the lace. It should have mattered little if it had been or not, as the key point was and remains the DNA and the interpretation of those results. It always had been. The tourniquet hypothesis and evidence was grossly prejudicial as there was no evidence conclusively linking the lace to Stone and the evidence that Heath gave meant that a far more significant line of inquiry had opened up. However, even before Heath gave the evidence that he did, it was possible to anticipate the significance of the results, based on some of the pathology evidence, but that did not happen. Either Stone’s defence lawyers did not grasp the significance of the DNA evidence and the mechanics of the crime – an integrated view of how the crime occurred and its impact on the DNA evidence – or they feared a nasty surprise that could undermine his defence, but their strategy proved disastrous in circumstances where the prosecution had in fact gifted the possibility of a vibrant defence as part of their own case. It could have been a spectacular own-goal, yet Stone’s then lawyers managed to prevent the own-goal and score one of their own instead.
Either Heath was wrong about the extent of contact that the murderer had had with the lace, in which case the demonstration for the jury grossly prejudiced Stone’s right to a fair trial, or the killer’s DNA was likely to be on it. This should have been a point of major significance to Stone’s defence lawyers at the time. I tried to tell them of the importance of what had been said, but they did not understand how an integrated approach to forensic science affected their client’s case and the junior barrister angrily refused to listen. Instead, they settled for sticking to a by then absolutely worthless concession that the Crown stipulate that there was no DNA or fingerprints of Stone at the crime-scene. That was no concession. It was undisputed fact and arguably completely missed the point even before Heath had given evidence, but after the pathologist’s testimony, the importance of what he had said and done should have been crystal clear and further consultation should have occurred. If that occurred – it almost certainly did not – it had no effect.
The important point was not just that Stone’s DNA had not been found on the lace, but that someone else’s had been in circumstances that strongly indicated the involvement of a killer other than Stone. I remained convinced that this was very significant as everybody knew even then that alleles, which had not been deposited on the lace by the victims or Stone, had been discovered on the lace. How could those alleles be explained away now that the extent of the killer’s contact with the lace had been established and was part of the Crown’s case? The prosecution cannot have it both ways. Either the killer’s contact with the lace was not significant, which possibly helped to explain the absence of Stone’s DNA on it, or it was as significant as Heath had said, which meant that further scientific investigations were necessary.
Establishing whether Stone was a good shedder of DNA or not was an essential starting point. Then, experiments should have been conducted to determine whether it was likely that Stone’s DNA would have been detected on the lace if 25 foot/pounds of pressure had been transferred through the lace onto his fingers and Megan’s throat for several seconds, but Stone’s then lawyers simply didn’t get it, or elected for tactical reasons not to investigate matters that could have proved him innocent, or at the very least significantly undermined the Crown’s case. It remains unclear if they even investigated the possibility that these alleles had been discovered on other crime-scene samples. Any client should be entitled to expect that such investigations would be conducted, especially if they could establish a reasonable doubt or even prove innocence, but even without such tests Heath’s evidence and demonstration ought to have been highly inconvenient for the Crown and again demonstrates the need for an integrated approach between the forensic sciences and lawyers too, who must be made if necessary to understand the potential of forensic sciences and new developments in existing sciences to establish the truth and assist their clients. Stone was entitled to expect better and so was society.
This case shows that the interpretation of the DNA results cannot be allowed to occur in isolation ever again. The pathology evidence was essential context and made a mockery of the agreed facts that there was no scientific evidence tying Stone to the crime-scene. The ‘foreign’ alleles were never properly explained, especially in the context of the pathology evidence. Nigel Sweeney QC’s explanation that an unknown drug-user had used the lace as a tourniquet and Stone – also a drug-user – had gained possession of the lace and then used it in the appalling Chillenden crimes was all they could offer without the slightest trace of evidence that this is what had happened. How was that evidence not more prejudicial than probative? However, there were other serious problems with this explanation after Heath had given evidence.
It had become Sweeney’s case that Stone had transferred around 25 foot/pounds of pressure through the lace onto both his fingers and Megan’s neck for many seconds, yet the DNA evidence not only showed no trace of him, but of someone else after such contact with the lace. How was it possible to reconcile these facts? Why had the unknown drug user’s DNA not transferred off the lace and onto Stone given such contact? Had any experiments been conducted to support Sweeney’s hypothesis and if not, why not? I raised these questions ten years ago and was ignored until now. Later, Low Copy Number techniques were conducted on the lace as well. The results were the same.
The unidentified alleles were obtained again and no trace of Stone’s DNA was found on it. Sweeney’s explanation did not survive an integrated approach to the scientific results as it backed up Heath for once, but that posed problems for the prosecution, or should have. If only Stone’s defence at the time, had appreciated the need for an integrated approach to forensic science and the law. The likelihood of Stone having used that lace in the manner demonstrated by Heath without leaving any trace of himself on it is minimal to put it mildly in the circumstances of this case.
All this emerges just from an understanding of the need for an integrated approach to the different forensic sciences and equally the interpretation of results obtained. That it has taken the best part of a decade for this to be appreciated and understood adequately is utterly shameful, as is the failure to ensure that necessary experimentation is conducted to test the validity of the Crown’s case, but this is not even the only time that this happened. During the decade before the significance of this development was understood, an important precedent of sorts had occurred – a case where there is not only no doubt about innocence, but one which should never have been allowed to happen, as the forensic science clearly proved the defendant’s innocence before his conviction.
Kees Borsboom and Wik Haalmeijer
Words fail regarding this precedent case in the Netherlands. Shamefully, the results were manipulated again, but unlike in Stone’s case the truth was known before Kees Borsboom stood trial. 10 year-old Nienke Kleiss was raped and murdered in the Beatrixpark in Schiedam (near Rotterdam) in 2000. Absurdly her 11 year-old friend Maikel Willebrand was suspected at first. It was an appalling way to treat a survivor of a terrible crime. Even after police abandoned that ridiculous and unsupported belief, they continued to treat the boy very badly indeed. Willebrand gave his account of the crime – he had survived by playing dead, but he heard the attack as it occurred. With Kleiss dead and the murderer, Wik Haalmeijer, having left the park, Willebrand ran for help, straight into the arms of passing cyclist Borsboom, who immediately called the police – very strange behaviour for the man police later insisted had attacked Willebrand and was the killer of Kleiss!
Borsboom had come to police attention for inappropriate behaviour; he had propositioned a boy, who went home and got his dad to come and confront the offender. The boy’s father was a police officer. It was agreed between the adults that they would meet later and Borsboom would get help. He never got the chance. The policeman checked Borsboom’s name with police records and discovered that he was a witness in the notorious Schiedam Park Murder case. He reported Borsboom’s behaviour towards his son to the investigators. They effortlessly moved away from Willebrand and onto Borsboom as their new prime suspect, but there were still problems. Willebrand’s evidence simply could not be reconciled with Borsboom as the killer either. The boy was interviewed again with the aim of resolving the conflict between Willebrand's account of the crime and Borsboom as the perpetrator in mind.
Willebrand had described the killer well; it matched Haalmeijer, not Borsboom and he never claimed that the man who helped him – Borsboom – was also the killer. These were not so much holes in the police’s case as yawning chasms. Police tried to get him to change his account. Willebrand courageously refused to budge from his recollections, which he knew to be facts, but still police and prosecutors would not listen, even though by then some already knew that Borsboom was innocent. The forensic science proved it and was demanding to be heard, but despite shouting loudly it could not penetrate the ears of a criminal justice system that was determined to play deaf, although the main blame for that rests with a senior forensic scientist at the Netherlands Forensic Institute.
Willebrand’s boot-lace had been used to strangle Nienke Kleiss and it would eventually play a part in vindicating Borsboom. Alleles that did not match Kleiss, Willebrand or Borsboom were discovered not only on the lace but elsewhere too, including Kleiss’ bare abdomen and shoulder. Dr. Ate Kloosterman of the Netherlands Forensic Institute knew this, but only included finding these alleles on her boot and nails, which were the easiest to explain by common access, although Kloosterman must have known that these were not the significant locations. The judges were kept in the dark as well as the defence lawyers, even after the scientist Richard Eikelenboom, then working at the same institute brought it to the attention of a prosecutor.
This shameful cover-up would never have been exposed, but for Haalmeijer. He raped two women and spontaneously confessed that he was the Schiedam Park murderer. DNA testing confirmed his confession. If ever a case illustrated the need for an integrated approach between eyewitness accounts, forensic science and case scenarios, this was it. Willebrand’s account flatly contradicted the case-scenario, but he absolutely refused to knuckle under, so his evidence was marginalised. Eikelenboom was ignored as Kloosterman and later the prosecutor too tried to bully him to maintain a scenario he knew to be wrong. They had the wrong man and he knew it. Eikelenboom refused to buckle under and should have been supported by Kloosterman and his colleagues, which never happened. After bringing it to the attention of the prosecutor Eikelenboom believed the assurances that it would be corrected in a court hearing. It wasn’t. The DNA proved Borsboom innocent from the start. The significance was concealed deliberately and if Haalmeijer had not been caught and confessed that system would have allowed a man they knew to be innocent to rot in jail indefinitely. Without admitting guilt and being treated for a crime he did not commit Borsboom would have been committed to a mental heath institute on completion of his sentence and probably never have been released, even though by then scientists and a prosecutor knew that they had the wrong man.
Neil Sayers
Kees Borsboom was vindicated seven years ago, yet the importance of this case to Stone’s in terms of the boot-lace was not appreciated then, which leads into the final case study, that of Neil Sayers. His case ought to be the highest profile of any that involves forensic science. It should have been investigated thoroughly over a decade ago – the failure to do so prevented it from being established then whether he was guilty or innocent. Establishing his innocence is not and should not be the duty of police or prosecutor in an adversarial system, but it is not the job of his defence lawyers either, believe it or not. Their duty is simply to establish reasonable doubt, but in this case, they did not do their job adequately.
His then solicitors, Berry and Berry, knew of the unreliability of Michael Heath a year earlier as they had represented Craig Kerwin, who was eventually acquitted of murder. In Kerwin’s case there was no pathological evidence whatsoever to support Heath’s conclusions according to his peers, Nat Cary and Vesna Djurovi?. The judge threw the case out without requiring the jury to hear it, as without Heath’s claims there was nothing to justify charging Kerwin. Sayers’ solicitor, Ian Reed, knew this or should have known, yet he instructed a pathologist almost as an afterthought. Incredibly, that pathologist was neither Cary nor Djurovi? even though the firm knew that they were both aware of Heath’s conduct in Kerwin’s case and therefore, his methods. Consequently, either of them could have reviewed Heath’s pathology and identified scientific investigative opportunities from a position of knowledge of Heath’s shoddy practices in a proven case in the same area.
Ironically, Wallis’ lawyers belatedly instructed Djurovi?, but it was too late to make a difference regarding the body, and Wallis had no interest in having his own account discredited. Meanwhile, Sayers’ solicitor had missed his chance. It would take years to put right. Their failure to investigate Heath’s previous cases and his conduct in this case had dire consequences as Heath’s pathology was allowed to make a scientific mess of Sayers’ case, affecting the work of experts in other disciplines. To establish the truth if that is even possible now would require innovative techniques and this process has begun, but is time consuming. Sayers will serve more than his tariff and there is no guarantee how much longer it will take to investigate the numerous matters arising from this case.
There were plainly pathology-related issues in this case, yet it escaped review previously. Heath eventually faced the Home Office Pathology Advisory Board Tribunal. The case against him was ably presented by Charles Miskin QC. Another of Miskin’s claims to fame is that he relied on Michael Heath as a witness of truth to prosecute Neil Sayers. Forensic pathology, or rather Heath’s practice of it affected other forensic sciences and prevented the truth from being established. The most obvious example of this is the treatment of the maggots. It beggars belief that a validated forensic science could be treated with such disrespect as occurred in this case.
Heath collected and sampled them from the decomposing remains of Russell Crookes, but not extensively and he failed to establish all of the relevant environmental data that would have assisted to calculate the post-mortem-interval as accurately as possible. The better practice would have been to instruct a forensic entomologist. That did not happen and it remains unclear what advice he gave police regarding the maggots. They were left to die in a fridge in a police station in Kent and ignored for five years. Heath’s failures regarding the maggots are detailed in Abysmal Practices at http://www.fittedin.com/forensic-science/205-abysmal-practices.html that was published in The Fitted-In Journal.
Sayers’ defence lawyers at trial failed to appreciate the significance of the maggots. They were the only scientific method of establishing the post-mortem-interval – in this case, when the body was likely to have been subjected to partial burning. Both they and the pathologist that they instructed, Peter Jerreat, could and should have performed better as well, although Jerreat was hindered by Heath’s lack of cooperation. The failure to develop an integrated approach between the entomology and pathology could have been disastrous. Sayers knew nothing of forensic entomology and pathology, but fortunately for him, I did. If the maggots still existed, they could be examined even five years later, but before that could happen, they had to be located and then Sayers’ solicitor had to request access to them to test if they still existed.
A solicitor, Kevin Hansford, had to be fired over it – he decided that the maggots would not exist and absolutely refused to ask the police about them. He was wrong and that was not his call anyway. Instead he submitted an application to the CCRC that was later used by that organisation to ignore the significance of pathology-related points that they did not want to appreciate or investigate as that could potentially have opened up other cases to wider investigation of the pathology-related issues than they were prepared to look at in their review of Heath’s cases.
The maggots were subsequently located in a fridge in a police station in Kent. They had been treated appallingly. The fixed sample had been thrown away and the live sample had not been observed adequately. The way these maggots were treated had dire consequences, as the evidence that they could have offered was lost – literally thrown away. Kent Police insisted on accompanying the maggots to the testing laboratory, which was at the Natural History Museum. They should have had no right to do anything more than ensure the continuity of the samples and even that was a bit rich considering the facts that they had not tried to obtain the evidence that the maggots had to give in five years and had treated them appallingly anyway.
The maggots were obtained and examined by the esteemed forensic entomologists, Dr. Martin Hall and Dr. Mark Benecke. Unfortunately, Heath’s poor practices struck again. Benecke and Hall were asked if the maggots could have survived an intense fire and quite rightly answered that they could not have, but the suggestion that the fire had been intense came from Heath and there was absolutely no pathological evidence to support it. Heath claimed that the body of Russell Crookes had suffered extensive fire-damage. Extensive compared to what? In actual fact, the fire-damage to the body was far from extensive. Photographs of own post-mortem examination proved him wrong. Beneath the surface damage, flesh was red raw and body fat had not been rendered into the fire. Consequently, the temperature generated in the body by the fire had not been high enough to cause body fat to melt into the fire and act as an accelerant. Nevertheless, Heath thought this damage extensive. If any conclusions could be drawn from this evidence, it proved that Heath had no idea what extensive fire-damage was. Heath’s poor terminology had affected the power of the entomology evidence to speak accurately yet again.
Nevertheless, the key to this case was fire-examination and the entomology should have played a vital part in establishing the truth about Graham Wallis’ account. Wallis claimed that the body was partially burned for around three hours shortly after the murder in May 1998. There were several visits to the fire-site after Wallis says that the fire had already happened. These involved different people on different days. Not only had they not seen the scorch-pattern that was later photographed, but associated fire-debris too. Sayers’ defence at trial had all this information and more, but chose not to use any of it, even though it plainly could have created a reasonable doubt. If Wallis had lied about when the fire occurred, as this evidence suggested, then at the very least he had also lied about every other subsequent event to the body of Russell Crookes and what had really happened during those missing three hours plus. It would have meant that Wallis had lied about very significant events indeed. Could such a source be considered credible if the jury had known this and can such a conviction be safe? Sayers is not looking for a second bite of the cherry – he never had the first bite.
Heath’s mistake regarding his terminology – describing the fire-damage as extensive without defining what that meant – had caused serious problems as it suggested that the fire had to have happened before at least one of those non-sightings of the scorch-pattern and associated debris. Could this non-sighting and the scientific evidence possibly be reconciled? Forensic science would have to intervene again with a cutting edge intervention from Professor Alfredo Piera of the University of Valencia to answer that. His innovative experiments on piglets established that the possibility that the maggots examined by Hall and Benecke could have survived the fire could not be excluded and that was of crucial importance. If those maggots could have been fire-survivors, then the date the fire took place could not be established by forensic entomology and that in turn meant that none of the trips to the fire-site, during which the scorch-pattern and associated fire-debris had not been noticed, could be eliminated. It meant that there was still no scientific evidence whatsoever that corroborated Wallis’ account of the murder and its aftermath. An integrated approach to the scientific evidence and witness testimony did not support the Crown’s case.
How could Wallis’ account of the crime and subsequent actions be reconciled with the other evidence, both from scientific analysis and from witnesses? It cannot, or at the very least it cannot without further scientific investigations. Other scientific techniques could have been deployed back in 1998 and subsequently. They offer the only chance of establishing which parts, if any, of Wallis’ account can be relied on. Further testing is required to resolve the many issues that arise in this case and it will cost considerably more than if an integrated approach had be used from the start – one that reconciles the inconvenient claims of witnesses, the use of forensic science techniques and judicial processes. It is the only way to establish whether Wallis’ testimony can be the basis of a safe conviction of anyone but himself, yet this requires a second bite of the cherry. Well, actually it doesn’t, as Sayers never had a first bite and if such poor understanding of the potential of forensic science has happened in this case, how many others have been treated in the same manner?
The Need to Know
Imagine this situation: a 19-year-old young man finds himself on trial for his life. He doesn’t know it yet, but in order to secure a fair trial he needs to not only understand all of those disciplines, but also how they can help him to undermine the claims of a cut-throat co-defendant, whose confession is not really a confession. Graham Wallis admits that he was present when Russell Crookes was murdered, but claims that Neil Sayers did everything sinister, ranging from stabbing Crookes several times to mutilation of the partially burned body. Wallis only admits to minor involvement, placing the overwhelming bulk of responsibility for Crookes’ murder onto Sayers, who protests his innocence. Having researched this case in depth, we believe that Neil Sayers did not have a fair trial. Forensic science should have been the crux of his case, but it hardly got a mention at least with reference to the crucial issue, the partial burning of the body.
Forensic entomology offered the only realistic opportunity to establish when the body was partially burnt. There was evidence, which gathered dust in the unused material, which suggested that Wallis had lied about that. Sayers needed Wallis’ account to be tested thoroughly. It was his only hope, but that meant not only relying on his lawyers to understand these sciences, but understanding them himself and being strong enough to insist that his lawyers get the necessary expertise to adequately challenge Wallis’ account. And just suppose that Neil Sayers knew about all these disciplines and mutilation and DNA as well, what possible reason could a 19 year-old student at an agricultural college have to know so much about forensic sciences unless he was planning a murder? His interest in forensic sciences would have seemed unusual – unnatural even. Thus, Sayers’ plight is if he didn’t know, then it was his fault for not knowing and he can’t have a second bite of the cherry, and if he did, then he had guilty knowledge that indicated he was planning murder. While the law does not allow a defendant to have a second bite of the cherry, it seems crystal clear to us that Sayers did not have a first bite.
Conclusion
I hope the need for an integrated approach between forensic science disciplines, evidence of witnesses and legal procedures, has been established. Forensic science has the potential to resolve miscarriages of justice – prevent some – and offer investigative opportunities, but it must be allowed to speak unfettered by the demands and needs of Crown or defence lawyers. It must have the power to halt inappropriate prosecutions in their tracks and initiate investigations into others if necessary, but forensic science depends on interpretation of results too and the integrity of practitioners.
Quality control is essential, especially of the work of experts. The Joyce Gilchrist Affair in Oklahoma illustrates the need for effective control not just over scientists, but over their perceptions too. She worked as an analyst for the Oklahoma City Police Department and her work reflected the needs of her employer as she thought them to be rather than justice. It resulted in several miscarriages of justice. Like Heath there are some cases where people were rightly convicted and others where miscarriages of justice have occurred as a result of her work. Without adequate regulation of the forensic sciences, scientists and also full disclosure of their work as well as results, this is inevitable, so regulatory powers must cover interpretation too.
It is not and must not be the function of forensic scientists to provide fanciful explanations to justify a flawed case-scenario according to the needs of the side that instructs them. The consequences of such an approach is devastating both in terms of criminal justice and the lives they ruin. There is no doubt about Borsboom’s innocence, yet Kloosterman’s conduct has not been addressed, even after Borsboom was vindicated by the conviction of Haalmeijer. The explanation that he offered was not supported by the evidence and he must have known that he concealed results that would have led to different conclusions. But there are other problems too. A solution must be found to the problem we identified earlier regarding the competing demands of the adversarial process that has prevented important evidence from emerging. Tactical legal considerations should not be allowed to hamper the interests of justice. If a defendant has been persuaded by legal counsel, albeit with good reasons, not to have tests conducted that could have created a reasonable doubt at trial or show that a conviction is unsafe, then it should be in the interests of justice to resolve that issue. This should not, in our opinion, be considered a second bite of the cherry, or at least not a bar to the justice of a second bite.
The Fitted-In Journal has considered these issues and after considerable research, we have reached the following conclusions. Forensic sciences have advanced at such a rate over the last twenty-five years that the possibility of them resolving previously intractable problems cannot sensibly be excluded. Are the interests of justice served by tactical considerations preventing either prosecution or defence from conducting tests that affect material issues? Are they served by lawyers not appreciating the importance of scientific techniques, as occurred in the Sayers case, or not wanting to risk an adverse finding, or the goalposts moving, as in Brian Moore’s case. Can it be justified that these techniques exist, but are deprived of the opportunity to shine. We think not, but what can or should be done about it?
We agree that there will be examples of defendants who have been convicted wanting to try their luck – demanding a second bite of the cherry, or having no merit. In the current economic conditions they cannot be allowed to take advantage, nor should they be permitted to in more prosperous times either. We propose a solution. A panel consisting of distinguished forensic scientists, medical practitioners, lawyers, judges, criminal justice system academics, regulatory bodies, journalists specialising in these issues and proven victims of miscarriages of justice should consider the issue. They can be retired people as well, but this panel should consider the following issues thoroughly before deciding whether legal aid funding should be provided.
First of all, the applicant must explain why he or she did not have the test that could have helped conducted for the trial. The panel will determine if the applicant’s explanation is acceptable. If they believe that the applicant is not simply seeking a second bite without adequate explanation or simply trying to abuse the system, they will then consider the further issues of the merit of having these tests conducted in terms of the case itself. They shall determine if there is a reasonable prospect that the test to be conducted could provide evidence that may have established a reasonable doubt in the jury’s mind, and could now prove a conviction unsafe or establish innocence. If the panel determines that the applicant has met that hurdle too by majority decision, then it shall recommend that legal aid be provided to ensure that those tests are conducted and that finding should be binding on the Legal Services Commission. There shall be a right of appeal against a refusal to a different constitution of the panel, but the applicant will have to prove why the previous decision was wrong. Of course the decision should be judicially reviewable as well.
Establishing such a panel with the necessary powers may require a change in the law too, but evidence gathered as a result of this process must be deemed admissible by the courts. We believe that such a panel will help to expose miscarriages of justice and cannot see any reason why this should not happen. It is, we believe, in the interests of justice, so we call on the Clinical Forensic and Legal Medicine Section of the Royal Society of Medicine, other organisations and individuals to join us and make this panel a reality. We ask our readers and supporters to lobby the government to ensure that it is as effective as it needs to be to serve the interests of justice.
Whether deliberate or incompetent, or for tactical reasons, the lack of an integrated approach between the sciences, evidence and judicial procedures has allowed justice to miscarry and even prevented it from being corrected. The consequences have been dire. Lives have been wrecked. That must stop. Evidence, however inconvenient, must be heard and it must be allowed to speak as it sees fit without being subject to tactical considerations. The interests of justice demand nothing less and only the integrated approach described above can achieve that.
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