This is a court of law, young man, not a court of justice.
(Oliver Wendell Holmes)
The following points of interest have been worrying me since Mark Lundy's conviction.
At his trial I was waiting for the Defence Solicitor to bring up the following facts. Did he? If so I missed them in the newspaper reports, but to be fair perhaps I missed some newspaper reports.
If I had been on the jury, I would have questioned the following:
1. According to newspaper reports there was an enormous amount of blood and brain spatterings around the room.
If, as I read, a witness saw a man running in that area (it was presumed running back to his car after the murders) - wouldn't he have been in an awful panic?
Wouldn't he have thrown himself in the car? Surely then there would have been some identifiable stains left in the car.
Would he have had time to change his clothes?
What about shoes?
If the room was such a mess there would have been stains around the floor of the car - accelerator, clutch and brake pedal area from footwear. Even if a covering had been placed over the seat, it would have been difficult to cover the whole pedal area.
If there was so much bloody mess in the room it would have been all over the murderer as well. How would the person have had time to clean up and change clothes before getting into the car to drive back to Petone, particularly if time was an essence?
Was this matter stressed enough in Mark's defence?
2. Why didn't Mark's Solicitor make more of the police officer going in to the exhibit room by himself which I understood was not allowed. If the police wanted a conviction it would have been so easy for a drop of body fluid or matter to have been put on the.
Did Mark's Solicitor make a point of accusing the officer for breaking their own rule?
Also, I understood the witness said that the man seen running had a business shirt and tie on - was I wrong, because it was a polo shirt in evidence with the matter on.
P.K. Palmerston North
Comment from the FACTUAL committee
We are receiving many e-mails, most, I am pleased to say are of support, and there is the inevitable hate mail. Few, however, have taken the time to critically look at the media reports, see past the sensational headlines and then submit logical and informed questions, as you have done. For this I applaud and thank you, as each critical summation assists in the objective summation of the colossal amounts of data we wade through.
I will endeavour to address your points as far as possible and welcome further queries or comments.
1. It has never been our intention to attack Mr Behrens' approach. Indeed far be it for me to do so. I also had concerns, at time of trial, and I tried to address these directly with him. I was swiftly corrected on my naivety of the principle of law in question at the time. I never doubted the defence team had full belief in Mark's innocence and did their best for him. The opinion has been passed that perhaps they were 'too confident'. Perhaps evident by the fact that the crown case took six weeks and the defence was only three days. Only three defence witnesses were called. Again far be it for me to judge and I will not do so. I will point out that Mark always had total blind faith in the police, the system and the lawyers. His reaction was always one of 'how can I help you catch who murdered my family' and 'whatever you think best'. He never asked for a lawyer during any of his police interviews as it never occurred to him that he could be considered a suspect.
The defence team also worked on short purse strings and with their hands tied behind their backs. What I, as probably most Kiwi's, did not understand, is it is not the defence lawyer's job to investigate anomalies. In theory the police are required to investigate both sides. It is the lawyer's task to discredit the crown case. To this day nobody has canvassed Petone for evidence. When the defence team applied for funds to check on anomalies they were often curtailed or denied. These tasks have now fallen on the FACTUAL team, who, have no funds and no investigative skills, but do have a will to find the truth.
2. You are quite correct about the enormous amount of blood. It was a horrific scene. The rooms in question were liberally coated, as was the offender! We know this as the wall adjacent to Christine had what was described as a blood shadow. That is, were the offender stood shielded the blood from the curtains. We also know that there were partial bloody footprints in the hall (no match available) and blood on the bathroom light switch confirming the offender/s carried trace elements.
3. Again you are correct that in an ensuing panic it would have been difficult, if not impossible to avoid contamination. I can categorically state there was no blood on Mark, his clothes, his shoes, his ring, his watch, his glasses, his car, his car keys, or his Petone motel. The police even removed the sink and shower traps, still no blood.
4. The drive times are themselves ridiculous enough, but add in the fact that he would have needed to clean up somewhere other than the house or the motel, and it becomes very sad indeed that the suggestion was made and believed.
5. Again you are correct. The 'eye witness' says she suppressed her psychic powers when she drew a sketch of the jogger in Rhodes Drive. Her sketch incorporated a business shirt and tie. The minute particle of tissue was indeed found on a polo shirt. The sketch did not show the jogger carrying anything in hand. Where were the supposed overalls, the jewellery box, or the weapon? This initial sketch was made after Mark's photo (wearing a business shirt) was in the paper. The witness returned to the police station some days later to modify the sketch, adding leather shoes and dark hands, as a result of what was described as 'psychic musings'. It was also added, as a result of a musing that the weapon and jewellery box were dumped in a skip-bin in Tawa. (Again factor this into the 58 min return trip to Petone and the credibility must surely be challenged).
6. Re the senior officer who entered the exhibit room unsupervised. This question has often been asked, and frequently avoided. Neither Mark, nor any of the FACTUAL team, have any ill feeling to the police about this matter. There is no evidence to suggest deliberate contamination and I know the defence team pondered the merits of making such an allegation. What is deeply regrettable is that an experienced office put himself in to a situation where such an allegation could be made. As one retired officer said to me "on day one at college you are told to beware the three "P's" - 'Piss, Prostitutes, and Property'. To mess with any of the three is an error of judgement and asking for trouble". An error of judgement that I am sure one officer will not make again!
7. As for the contamination on the shirt, the issue still remains but raises a number of questions. The statement that it was brain tissue still only evolves from Dr Millar's evidence. No one else in the world could state it categorically. The evidence has never been peer reviewed. The methodology has only ever been tested on a chicken one week prior. The methodology has never been used in court before. There are other issues relevant to this evidence that are being considered and I am sure there will be much more heard on the matter.
8. It is also regrettable that such an allegation was implied when other alternatives exist. It is perhaps a result of Kiwi's fascination with crime scene TV that they have blind faith in DNA evidence. Well fact one is that the NZ ESR scientists do not solve crimes in a 45 minute TV time slot. Fact 2 and perhaps more critical is that what most do not realise is that secondary transfer of DNA is so easy. Compare this to a finger print. If my finger print is on your keyboard at home then "I" was there - no question. If a DNA particle is found in your keyboard then I may not have been there. This is the fundamental difference between fingerprints and DNA. Try it - pick up your key board, turn it upside down and lightly tap it on the bench. See what comes out - you will be shocked! Is it all your DNA or did you shake hands with a friend before typing?
9. Returning to the defence lawyers, as you are obviously aware, Mr Behrens is now a judge. His assistant at trial has since entered practice with a new partner and devotes his time to establishing his new venture, but does assist us on occasions. We always welcome new input and legal advice would be no different.
Again thank you for your submission.
The FACTUAL Team
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