Another UK miscarriage of justice?

[catsmate]

In 1993 Susan May, then aged 48, was convicted of the murder of her aunt, Hilda Marchbank, at the latter's home in Royton. Ms. May was her aunt's principal carer and visited her several times a day; it was she who discovered the body and called the police. Initially the murder was thought to be a burglary gone wrong, but several weeks later Ms. May was arrested.
Two appeals against the conviction failed and she served 12 years in prison for the offense. She was released in 2005, the first person in the UK to be released at her earliest parole date without admitting guilt

The case is now being re-examined by the UK's Criminal Cases Review Commission after her lengthy campaign to clear her name (backed by >100 MPs and peers).
The CCRC will investigate whether her case should be referred back to the Court of Appeal for a rare third hearing.

The principal evidence against Ms. May was an allegedly "blood-stained handprint" found at the murder scene. However re-examination of this evidence, commissioned by her supporters, carried out by Arie Zeelenberg, a fingerprint analyst and former head of the Dutch national police fingerprint service, casts serious doubts on this.
His report concluded that "There is no evidence that the finger marks... attributed to Susan May were placed in blood". This was based on examination of high resolution photographs of the marks not seen by the jury. Photographs shown to the jury show the marks only after they were treated with Iodine and other chemicals. Prior to this the marks were described by police as "almost invisible" to the naked eye. There are no results of any testing of the marks that show they were in fact blood.

Further:
"In fact there is overwhelming evidence that they were not comprised of blood but instead of sweat and a minor residue of another unknown substance". The broken lines of the ridges and spots around the pores are characteristics found in sweat marks, he said. If the finger was covered in blood it would have spread evenly over the ridges.

This directly contradicts the original trial evidence where it was stated that Ms. May's fingerprint was found in a "blood-stained hand print" and that there was "quite a lot [of blood]" as a result of Ms. May allegedly beating her aunt's face prior to suffocating her.

 

[Rolfe]

Arie Zeelenberg was one of the independent experts who was successful in proving that the fingerprint found in the home of murder victim Marion Ross did not belong to the detective Shirley McKie.

Miss McKie was persecuted by the Scottish criminal justice system because she had not been in the house and wouldn't say she had. The system was concerned to eliminate doubt about the fingerprint evidence in general, because two other fingerprints were crucial to the investigation. She was charged with perjury, strip-searched and locked in a cell in her own police station.

Eventually it transpired that not only was that print a misidentification, so was the crucial print that convicted David Asbury for the murder. He was acquitted on appeal.

The system never admitted Shirley was telling the truth, even after she was awarded £750,000 in compensation for the police having basically ruined her life and driven her to the edge of suicide. The police refuse to re-open the original murder case, even though a probable suspect is already in jail for another similar crime committed only a few miles away, a year or two later. Gosh, I wonder why not?

So here we go again. I know Shirley McKie's father. I wonder what he thinks about this one.

Rolfe.

 

[gumboot]

Seems to be a widespread problem. New Zealand has had a high number of cases recently overturned by the Privy Council, and there's a number of other very high profile cases where the miscarriage of justice is blindingly obvious. It's somewhat troubling that our right to appeal to the Privy Council has now been removed, as we're a very small country and I don't trust our judges to be impartial when assessing the activities conducted in another courtroom by a fellow judge they're more than likely friends with.

It's actually not so much the errors in historic investigations that troubles me. That's bad, of course, but our forensic technology has improved rapidly in recent years, and in many miscarriage cases (not all, mind you), you can attribute a lot of the mistakes to the way the newly emerging forensic technology was being used and understood (or not understood). Now, with significant advances, we can see the mistakes.

What troubles me the most is the reluctance with which the judicial system and the government accept blindingly obvious evidence of mistakes. There's a dogged desire to uphold flawed historic findings.

There's a good example with David Blaine in NZ. Convicted of murdering his entire family, he had his sentence quashed by the privy council and was found not guilty in a retrial. And yet the government of today is doggedly refusing to give him compensation for having lost decades of his life in prison.

Another example is Peter Ellis; convicted of child molestation while a preschool teacher. The prosecution's entire case consisted of the testimony of two toddlers (one of whom now denies anything ever happened) and expert testimony from a child psychology expert whose theories have now been utterly refuted. Despite this, our appeal judges still resolutely refuse to rule a miscarriage of justice. One even acknowledged that the expert witness' testimony was entirely wrong but still wouldn't rule a miscarriage, despite that expert witness being the entirety of the prosecution case (her expertise dictated how the childrens' testimony should be interpreted).

What's particularly troubling is that, as the article alludes to, those who continue to deny guilt for crimes are less likely to get an early parole, but those who are genuinely innocent aren't going to admit guilt, so they tend to stay in prison longer.

 

[Rolfe]

I meant to ask, do you have a link to a detailed account of the Susan May case? I would genuinely like to ask Iain McKie what he thinks about it.

As to the whole "remorse" thing and parole, look at the tragedy of Stefan Kiszko. He was provably innocent even at the time of his original trial, but was badly defended. He stayed in jail far beyond the time when he would normally have been paroled, because of his refusal to admit guilt. He died not long after he was released - released with little support after 16 years in jail I believe. The only good thing about that one is that the real killer of Lesley Moleseed was tracked down and convicted, more than 30 years after the murder.

The original evidence proving Kiszko's innocence is pretty damning (to the investigators). His lawyers simply didn't spot it. They seem to have believed he was guilty, and entered some sort of plea in mitigation against his wishes, even though he was pleading not guilty.

It's the same with the Lockerbie case. My book which is coming out later this year shows that once again the police and the prosecution had evidence which demonstrated the accused to be completely innocent, but failed to analyse it. That evidence was actually presented in court, as raw unanalysed data. Once again the authorities are flatly refusing to consider this, and are instead spending their time trying to track down supposed "accomplices" to a modus operandi that provably didn't happen.

Sion Jenkins is another victim who spent about eight years in jail for a crime he quite obviously didn't commit, with the police systematically soliciting adverse character evidence against him to bolster their fatally weak case. They didn't get much of that, but they did get David Southall, a doctor whose evidence has been instrumental in a number of very questionable convictions. He has also been refused any compensation for his years in jail and his ruined career on the grounds that he isn't "provably innocent" - in other words, they haven't found anyone else for the crime. Of course, they're not looking.

Wasn't it the same with Lindy Chamberlain, that the system bent over backwards to avoid even thinking about the possibility that she might have been innocent? (Not a British case, but still pretty relevant.)

Rolfe.

 

[gumboot]

Wasn't it the same with Lindy Chamberlain, that the system bent over backwards to avoid even thinking about the possibility that she might have been innocent? (Not a British case, but still pretty relevant.)

I think the judicial system probably worked as it should have in the case of the Chamberlains, but as with many of these cases, the investigators building the initial case didn't do as competent a job as they could have.

It was another example where forensic technology was very new, and understanding of it relied heavily on expert testimony, but the experts were often guilty of overstating and exaggerating the certainty and accuracy of the technology.

What's interesting to me is that many of these cases are from the same time period; the 1980s and 1990s, which is when we saw the introduction of a lot of new forensic technology. I think for a time people viewed these technologies as absolute, and infallible. You see this with the Chamberlain case, where the experiences of the head of the Dingo Foundation (who had studied Dingoes for years) was rejected in favour of the "scientific proof" of the prosecution's expert witness - who had no special knowledge of dingoes whatsoever.

Since then, I think we've got a better understanding of how these forensic technologies work, and their limitations, and they're seen as just one piece in the puzzle.

It's amazing how many of these cases involve conviction essentially off a single piece of forensic evidence (in the case of the Chamberlains; alleged blood in their car).

 

[Rolfe]

Fingerprint evidence has a pretty long pedigree, but the McKie case pretty much turned it on its head. The assumption had been that when an "expert" said a print belonged to a certain person, that was that. It could not be questioned. What was uncovered in the McKie case was that the original identification hadn't been confirmed by internal QC, but people had been leaned on and bullied to fall into line.

It was then revealed just how much fingerprint experts could disagree depending on what method they were using, and that the original identification had been made not only using largely imaginary points of coincidence but by ignoring features which were clearly different on the two prints.

In the end it was Arie Zeelenberg, Pat Wertheim, another American expert and a Norwegian expert, plus experts from Grampian police, Lothians and Borders police and several experts from England, against the four Strathclyde experts, who were clearly poorly trained and not all that expert in fact.

Nevertheless the police authorities, the Crown Office and the Scottish government repeatedly briefed and spun against Shirley and gave the Strathclyde "experts" a free pass. It was absolutely shocking, and it has never really been resolved. Shirley accepted a large payment rather than fight the last round through the court.

Rolfe.

 

[Nessie]

I do not know much detail about any of these cases. The part for me that is most maddening is how difficult the Judicial system finds it to admit mistakes, resolve them quickly and say sorry.

There is a disturbing lack of standards with the appeals system whereby people sadly cannot expect to be treated with much decency.

 

[Rolfe]

It was another example where forensic technology was very new, and understanding of it relied heavily on expert testimony, but the experts were often guilty of overstating and exaggerating the certainty and accuracy of the technology.

I think a great deal of the problem in many cases is experts who behave as if they are working for the prosecution. (Of course, the same can happen in reverse with experts retained by the defence, but they are often treated with more scepticism by judges and juries.) Dogmatic statements of certainty may be accepted by the court because they believe the expert to be impartial when, in reality, they're not.

This was a major factor in the Lockerbie trial, where five or six "experts" were pretty much lining up to tell the court that the exploding suitcase could not have been the one on the bottom of the stack of luggage, but had to be the one second from the bottom. It was entirely opinion, and the conclusion was anything but self-evident from examination of the sheet of aluminium they were referring to.

In fact, when the entirety of the evidence they had right in front of them is analysed, it becomes clear that the exploding suitcase was after all the one on the bottom. Better still, this conclusion is self-evident from the examination of the suitcase fragments. They simply didn't look at what they had.

My impression is of people who weren't actually as bright as you'd hope people in these sorts of jobs would be. As a result, rather than work the thing through from first principles, cross-referencing all available data, they found it easier to take the line the police were suggesting to them, and tailor their interpretations to that hypothesis.

The main forensic investigator in that case only had an HNC - not even a degree. But they gave him an OBE and he signed all his reports with "OBE" after his name, which rather glossed over his lack of academic qualifications.

I think it's human nature to agree with the proposal that's first presented to you. If a cop or a lawyer comes to you with a pre-conceived interpretation of the evidence and asks if you agree, it's a lot easier to go along with it than to form your own contrary opinion independently. Then opinions get entrenched and minds become closed, and people go to jail.

I think there can also be "expert-shopping" going on. In the Billie-Jo Jenkins murder case, the prosecution wanted testimony that the fine spray of blood on Sion Jenkins's jacket couldn't have been deposited there as Billie-Jo exhaled her last in his arms. I understand a lot of paediatric respiratory experts refused to take that line for them, but in the end they dredged up David Southall. If I recall correctly, they even had to get an adjournment to find him and bring him to court.

Wasn't there another situation where someone was presenting themselves as an expert in identifying individuals based on impressions of their ears? The whole thing was his own invention and was unaccredited, not peer reviewed and not known to be repeatable. Nevertheless he was called in several cases because he was saying what the police wanted to hear. It was some way down the line before someone asked, just who is this guy and what are his qualifications for saying this?

Rolfe.

 

[Rolfe]

I do not know much detail about any of these cases. The part for me that is most maddening is how difficult the Judicial system finds it to admit mistakes, resolve them quickly and say sorry.

There is a disturbing lack of standards with the appeals system whereby people sadly cannot expect to be treated with much decency.

I think in your position you really ought to be familiar with the details of the McKee case. The blame cannot be laid entirely at the door of the judicial system. It was the police themselves who persecuted Shirley, one of their own, and briefed against her. They refused to listen to any suggestion that she might be telling the truth, insisting that it was "unthinkable" that a fingerprint identification could be mistaken.

Latterly, when any reasonably intelligent lay person following the case could see quite clearly that the identification was wrong, and when the experts from the USA, the Netherlands, Norway, England and the other Scottish forces all agreed a mistake had been made, they still briefed journalists and politicians against Shirley, and clung to one single elderly and discredited expert who had changed his testimony back and forward but was prepared to back their case.

You simply can't separate the police and the judicial system in this. In fact, if the police came clean and admitted they'd made a mistake and they'd now changed their minds, I think the judicial system would have to follw. The problem is, they don't.

Rolfe.

 

[Rolfe]

Not having a link to the case Gumboot started the thread about, I had a bit of a google and found Susan May's own web site about the case.

http://www.susanmay.co.uk/

It's very amateurishly put together, but that's often the case with web sites of this nature. It's strange that this isn't a case I've heard come up before in this context.

Rolfe.

 

[catsmate]

I meant to ask, do you have a link to a detailed account of the Susan May case? I would genuinely like to ask Iain McKie what he thinks about it.

I know someone, with whom I worked when I did some criminal law stuff years ago,. who's involved in it. He emailed me about the case because he knows I'm interested in the failings of forensic science. I'll see what I can get, if you're interested.

As to the whole "remorse" thing and parole, look at the tragedy of Stefan Kiszko. He was provably innocent even at the time of his original trial, but was badly defended. He stayed in jail far beyond the time when he would normally have been paroled, because of his refusal to admit guilt. He died not long after he was released - released with little support after 16 years in jail I believe.

One thing that interests me about the May case is the relatively quick parole, despite refusing to admit guilt. This suggests some doubts within the system about the conviction.

Wasn't it the same with Lindy Chamberlain, that the system bent over backwards to avoid even thinking about the possibility that she might have been innocent? (Not a British case, but still pretty relevant.)

The Chamberlain case epitomises to me the three systemic failings:

1. Failure by the investigators to consider they could be wrong in their beliefs
2. Failure by the forensics "experts" to understand and apply the science correctly
3. Failure by the judicial system to accept the possibility of error and to apply proper standard for scientific evidence

I think the judicial system probably worked as it should have in the case of the Chamberlains, but as with many of these cases, the investigators building the initial case didn't do as competent a job as they could have.

They didn't do an even basically proper investigation, a case was theorised and facts were selected, or arranged, to support it.
The whole thing started with the NT AG overriding the coronial investigation, which was shown to be predominantly correct. Eventually.

It was another example where forensic technology was very new, and understanding of it relied heavily on expert testimony, but the experts were often guilty of overstating and exaggerating the certainty and accuracy of the technology.

Actually no. Most of the forensics used in the Chamberlain case were pretty simple and well understood. They were just applied incompetently and in a biased manner to support a preconceived case and with no ability for the defense counsel to rebut. Even one of the manufacturers of a test kit used stated that it had been used wrongly and didn't support the conclusion given in court.
In fact we're now seeing quite fundamental challenges to supposedly reliable forensic science, like fingerprint comparison.

What's interesting to me is that many of these cases are from the same time period; the 1980s and 1990s, which is when we saw the introduction of a lot of new forensic technology.

I think it's more the delays in actually getting cases re-heard or appealed. I suspect that the rate of wrongful convictions isn't much better today.

I think for a time people viewed these technologies as absolute, and infallible.

This is an ongoing problem. Improvement in genetic testing are actually worsening the problem, things like LCN DNA analysis are too sensitive and can be presented to an ignorant jury as overly suggestive.

Since then, I think we've got a better understanding of how these forensic technologies work, and their limitations, and they're seen as just one piece in the puzzle.

I would absolutely disagree with this. Juries are made up of people with very little scientific knowledge (especially statistics) and can easily be overly impressed by dubious science presented by glib counsel.

It's amazing how many of these cases involve conviction essentially off a single piece of forensic evidence (in the case of the Chamberlains; alleged blood in their car).

Which was improperly tested and then destroyed.

I do not know much detail about any of these cases. The part for me that is most maddening is how difficult the Judicial system finds it to admit mistakes, resolve them quickly and say sorry.

I consider that problem tertiary to the problem of dubious investigations and dodgy science with no oversight, judicial or otherwise.

IThere is a disturbing lack of standards with the appeals system whereby people sadly cannot expect to be treated with much decency.

Agreed.

I think a great deal of the problem in many cases is experts who behave as if they are working for the prosecution.

Yes. Or are overly impressed with themselves (I promise, no more diatribes on celebrity pathologists) and their capabilities.

(Of course, the same can happen in reverse with experts retained by the defence, but they are often treated with more scepticism by judges and juries.) Dogmatic statements of certainty may be accepted by the court because they believe the expert to be impartial when, in reality, they're not.

And dubious statistics.

My impression is of people who weren't actually as bright as you'd hope people in these sorts of jobs would be.

Very true. Last year I did some work with a certain UK police agency (recently renamed ) against my better judgment but I owed a favour to someone. They were awful. Not only did they lack understanding of IT forensics they also didn't understand how limited their skills were.
And these weren't trainees, they were supposedly educated and trained "experts".
In the end, after I talked to their boss (who wasn't receptive) I did a simple test; a basic Windows PC, no third party tools, with ten hidden files for them to find, less than half an hour to set up. The average score amoing the team? 3.6/10, the highest was 7/10.
I wrote a report, not that I expect it'll do much good.

I think there can also be "expert-shopping" going on. In the Billie-Jo Jenkins murder case, the prosecution wanted testimony that the fine spray of blood on Sion Jenkins's jacket couldn't have been deposited there as Billie-Jo exhaled her last in his arms. I understand a lot of paediatric respiratory experts refused to take that line for them, but in the end they dredged up David Southall. If I recall correctly, they even had to get an adjournment to find him and bring him to court.

Yep. This is pretty well known within the fields, hence I no longer do such work.

Wasn't there another situation where someone was presenting themselves as an expert in identifying individuals based on impressions of their ears? The whole thing was his own invention and was unaccredited, not peer reviewed and not known to be repeatable. Nevertheless he was called in several cases because he was saying what the police wanted to hear. It was some way down the line before someone asked, just who is this guy and what are his qualifications for saying this?

This sounds familiar. A US cop named Iannarelli pushed this idea some years ago, no qualifications and no testing. Some US (and Dutch IIRR) experts accepted it as a variant of the concept of 'impression evidence' but most considered the lack of large scale testing and the numerous variable to make it problematic.
I believe it failed in the US courts as not meeting the Daubert standard for scientific evidence.

 

[Rolfe]

Last year I did some work with a certain UK police agency (recently renamed ) against my better judgment but I owed a favour to someone. They were awful. Not only did they lack understanding of IT forensics they also didn't understand how limited their skills were.
And these weren't trainees, they were supposedly educated and trained "experts".

This impinges on something it took me a while to realise while I was looking at the Lockerbie evidence. I kept seeing things that seemed fairly obvious to me, but which weren't being mentioned in the various reports. I initially assumed that these expolsives experts knew stuff I didn't, and there was good reason why these things weren't significant.

It was only when I got hold of the full forensic report that I realised how superficial the analysis had been. It was simply a volume of raw descriptive data with very minimal interpretation. Some of that minimal interpretation is obviously wrong. Other clear inferences were simply not drawn at all.

Twice, in court, errors in interpretation were pointed out to the scientist involved, and his response was more or less a blank stare.

After a bit the feeling that someone was deliberately trying to manipulate the process has strong competition from the feeling that everyone involved was simply too damn stupid to realise how wrong they were.

Rolfe.

 

[Nessie]

I think in your position you really ought to be familiar with the details of the McKee case. The blame cannot be laid entirely at the door of the judicial system. It was the police themselves who persecuted Shirley, one of their own, and briefed against her. They refused to listen to any suggestion that she might be telling the truth, insisting that it was "unthinkable" that a fingerprint identification could be mistaken.

Latterly, when any reasonably intelligent lay person following the case could see quite clearly that the identification was wrong, and when the experts from the USA, the Netherlands, Norway, England and the other Scottish forces all agreed a mistake had been made, they still briefed journalists and politicians against Shirley, and clung to one single elderly and discredited expert who had changed his testimony back and forward but was prepared to back their case.

You simply can't separate the police and the judicial system in this. In fact, if the police came clean and admitted they'd made a mistake and they'd now changed their minds, I think the judicial system would have to follw. The problem is, they don't.

Rolfe.

I also think that case took far too long to resolve. I include police mistakes in my criticism of how slow the Judicial system is to accept mistakes and apologise.

 

[Nessie]

......
I consider that problem tertiary to the problem of dubious investigations and dodgy science with no oversight,

........

Indeed but a system where the police and courts are under pressure to detect and convict means either completely overhaul the system or speed up appeals and have an overseer to make people apologise and admit mistakes. The latter is more practicle.

 

[Rolfe]

I also think that case took far too long to resolve. I include police mistakes in my criticism of how slow the Judicial system is to accept mistakes and apologise.

I don't think it was ever really resolved. Shirley was offered the full amount she sued for, so she had little choice but to settle out of court. The police and the Crown Office continued to insist her accusers were pure as the driven snow, and hint that she had really been in the house, even after the settlement.

Rolfe.

 

[gumboot]

They didn't do an even basically proper investigation, a case was theorised and facts were selected, or arranged, to support it.
The whole thing started with the NT AG overriding the coronial investigation, which was shown to be predominantly correct. Eventually.

While I agree with your summary of the three failings, I don't think your above statement is entirely accurate. You paint a picture of an investigative team that decided from the outset that there had been murder, and forged ahead blindly on that assumption. I don't think that's necessarily accurate.

To begin with, the investigative team were initially divided in their opinion, and the head of the investigation believed the Chamberlains at first.

Secondly, the original coroner's finding was that the baby was killed by a Dingo, but he still ruled that a person had been involved in the incident, based on the evidence of the clothing.

"...the body of Azaria was taken from the possession of the dingo and disposed of by an unknown method, by a person or persons name unknown..."

In my mind this is indicative of a lack of understanding of Dingo behaviour, and left open a sliver of doubt that foul play was involved.

I certainly think the prosecution settled into the position you describe above as far as the trial went, but I don't think the evidence supports the idea that they'd taken that position from the outset, and I think their original investigations were carried out in good faith.

 

[Nessie]

I don't think it was ever really resolved. Shirley was offered the full amount she sued for, so she had little choice but to settle out of court. The police and the Crown Office continued to insist her accusers were pure as the driven snow, and hint that she had really been in the house, even after the settlement.

Rolfe.

OK as resolved as anything like that can be. The standard of fingerprint identification has been changed and improved. As for the hints, yes there are police officers who were there that day who are sure she was in the house, so that issue will never go away completely.

 

[Rolfe]

Which day would that have been, then?

ETA: I should maybe put that better. Logs were kept of all personnel entering the house. Shirley McKie was not logged as entering the house. The logs were known to have missed some people, but these people were all seen by multiple police personnel, because the property was always under police guard.

Initial allegations were that she had been in the house at a date in late January. Subsequent examination of the fingerprint demonstrated that it must have been placed before the date in question. Police went back and tried to allege she had been in the house at an earlier date, but the evidence she wasn't there at the earlier time was even more watertight than the evidence she hadn't been there at the later time.

At the perjury trial, all logs and all witnesses as to the identity of those entering the house were led in evidence. Much cross-examination ensued. There was no evidence of Shirley McKie having been in the house, and evidence that if she had been, this would have been witnessed. The prosecution entirely failed on this point.

Later, police passed on tittle-tattle to the press alleging she had been in the house because she was having an affair with a married colleague. This evidence was never tested in court, never brought to court, and appeared to be entirely fabricated in order to cast doubt on Shirley McKie's evidence even after it had been accepted by the court.

This is not the sort of thing that encourages confidence in our police service.

Rolfe.

 

[gumboot]

I don't think it was ever really resolved. Shirley was offered the full amount she sued for, so she had little choice but to settle out of court. The police and the Crown Office continued to insist her accusers were pure as the driven snow, and hint that she had really been in the house, even after the settlement.

Rolfe.

Well, it looks to me like there was a Public Inquiry, and their findings were published, which seems pretty resolved to me. The inquiry's findings were published online. (You probably know all this)

Those on any side of an issue who are convinced they know "the Truth" often continue to cling to their version of events when properly conducted investigations contradict them. That's how people are.

 

[Nessie]

Well, it looks to me like there was a Public Inquiry, and their findings were published, which seems pretty resolved to me. The inquiry's findings were published online. (You probably know all this)

Those on any side of an issue who are convinced they know "the Truth" often continue to cling to their version of events when properly conducted investigations contradict them. That's how people are.

I am sure that accurately describes those who still say she was in the house. I think that since there is no evidence she was there it should be accepted she was not.