Steve Braunias: Waiting for the Mark Lundy Court of Appeal decision

By Steve Braunias

Senior Writer·NZ Herald·

14 Sep, 2018 05:00 PM20 mins to read

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The Lundy family: Christine, Mark and their daughter Amber. Photo / File

It's coming up to nearly a year since the Court of Appeal heard the case of Mark Lundy, who was twice found guilty of the murders of his wife and daughter. Is there any chance he might gain his freedom? Steve Braunias reports.

What's taking them so long? The three

Impossible to read anything into the delay. It neither suggests sympathy nor antipathy towards Lundy's chances of freedom. All you can blandly deduce is they're making a careful and patient assessment. But there were times during that week in the Appeal Court when they really got stuck into Crown Prosecutor Philip Morgan, had him squirming, and raised serious questions.

Mark Lundy in the dock for day 12 of his retrial in 2015. Photo / Mark Mitchell

The victims were Lundy's wife Christine and their 7-year-old daughter Amber. Their heads were split open in their Palmerston North home sometime after midnight on August 30, 2000. Who could inflict such violence (police report, describing Christine: "There appeared to be a piece of skull on her left cheek")? Who could slaughter the innocent (police report, describing Amber: "The forceful blows appears to have occurred with her head no higher than 700mm from the floor")? Who could live with what they had done? Lundy, said the jury in his first trial, in 2002; Lundy, said the jury in his retrial in 2015.

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Not Lundy, said his defence at the Appeal Court. They argued the 2015 verdict was unfair. They counted the ways. There weren't all that many ways. There was talk the judge should have directed the jury to ignore Lundy's body language in a police video, which perhaps made him look shifty, false, insincere. There was talk that new evidence might have convinced the jury that Lundy didn't have enough petrol to drive from his motel in Petone to Palmerston North on the night of the murders. There were other useful arguments, but the central appeal against the conviction zeroed in on the very thing – in terms of physical evidence, the only thing – that put Lundy at the scene of the crime.

There are strong similarities with the Lindy Chamberlain case. The crucial evidence that put Chamberlain in jail for the murder of her baby Azaria were two small "sticky droplets" discovered in her yellow Torana hatchback. Forensic biologist Joy Kuhl said it was foetal blood that "could only have come from a child under three months". The theory was that Chamberlain had decapitated her own child. Later tests established the spray pattern in the car was a chemical sealant.

There are similarities with the Lundy case and the Lindy Chamberlain case, write Braunias. Pictured with Mark Chamberlain in 1988 as they appeal their convictions. Photo / File

Lindy, Lundy, and tiny traces of ... something. According to the prosecution, two small stains on Lundy's polo shirt came from his wife's brain. According to the defence, it was food, perhaps a nice hot pie. Two scientific tests supported the brain theory; one of them, Lundy's lawyer Jonathan Eaton QC told the Court of Appeal, ought never have been admissible.

He meant evidence from Dr Laetitia Sijens of the Netherlands Forensic Institute. I remember her very well in the retrial. She was reduced to tears in an aggressive cross-examination. Sijens gave evidence that seven out of 12 tests showed the stain tested positive for human. A lousy 58 per cent isn't exactly a scholarship result; it's barely a pass mark. Besides that, as trial lawyer David Hislop said in court, not a single forensic expert was prepared to come forward to support her methods or her claims that the central nervous tissue was human. "Sijens," trial judge Simon France memorably told the jury in his summing up, "stands alone."

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But that left the other scientific test. Dr Rodney Miller, a cancer researcher of Dallas, Texas, claimed to be able to identify the stain was central nervous tissue. In the first trial, Lundy's lawyer Mike Behrens more or less accused the police of tampering with the evidence. It was without foundation and went down like a lead balloon. In the retrial, David Hislop did not to challenge Miller's testing; it didn't matter whether it was central nervous tissue, he reasoned, because that's what you might expect in a nice hot pie. The stain was food. It only pointed to evidence of Lundy's appetite. Rubbish, responded the jury.

Lundy being supported after the funeral of his wife Christine and daughter Amber in 2000. Photo / Mark Mitchell

And so no one in a New Zealand court of law ever really attacked Miller's testing, or tried to discredit it, or even especially question it – until the appeal.

Miller is hardly infallible. This remains the only instance that his technique of immunohistochemistry (IHC) has ever been used in a forensic crime investigation. And he was working on blood or tissue samples so small and so degraded – it had been 59 days before police thought to analyse the shirt, and make slides – that one expert has described Miller's test as useless.

Miller claimed that once the brain tissue landed on Lundy's shirt, it was air-dried, or mummified, and could easily be tested after 59 days. He's backed up by Palmerston North pathologist Dr Cynric Temple-Camp, in his book The Cause of Death. Temple-Camp worked on the Lundy case. He credits Miller as some kind of genius ("a brilliant scientist", "an international expert") and makes grand claims about the durability of the tell-tale stain: "The dried brain-matter was preserved within minutes of the murder and was still preserved 59 days later and will still be so 59 years from now. Once it's fixed, it is preserved pretty much forever."

The method was disputed by Dr Philip Sheard, of the University of Otago. He presented an affidavit to the Court of Appeal arguing against Miller's findings. I emailed him Temple-Camp's remarks, and asked what he thought. He replied, "As a neuroscientist who uses IHC to examine nerve tissue virtually every working day, I can say that air drying never has and never will be used as a means of 'preserving' samples of brain tissue. Second, even where air drying is used as a means of preservation, an absolute requirement is that it must be rapid. How long did it take for this sample to dry? We have no idea. Does it matter? Absolutely. Quality of fixation is one criterion that anyone with any experience of IHC will say is profoundly capable of having a direct influence on the outcome of the investigation… Both failure types are catastrophic and, when they occur, render the investigation useless."

I asked Sheard whether he regarded the use of IHC testing in a forensic context to be junk science. He replied, "I wouldn't use the word junk. Forensic science requires robust, reproducible, reliable procedures…to deliver a definitive outcome."

Lundy listening to evidence during his first murder trial at the Palmerston North High Court. Photo / Mark Mitchell

he said that IHC didn't come close to meeting those requirements in his opinion.

In his affidavit to the Appeal Court, Sheard examined Miller's testing in the light of a US report, prepared by the President's Council of Advisors on Science and Technology, which investigated the validity of forensic methods. "Dr Miller has demonstrated the precise traits that the PCAST committee would seek to prohibit." He concluded that Miller's evidence amounted to a "significant failure…to approach the desired standards for forensic scientific methods as laid out by PCAST".

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Further doubts were raised in another affidavit, prepared by an attorney in Miller's own back yard. Mike Ware, the executive director of The Innocence Project in Texas, looked into Miller's attempts to head off any criticism of the degraded tissue found on Lundy's polo shirt. After the Privy Council ordered a retrial, Miller came up with an ingenious idea. He took receipt of the fresh brain of an 84-year-old former secretary with Alzheimer's (medical report: "She has been unaware of people for about a year") who had donated her body to science. Miller removed a sample, smeared it on fabric, and put it aside for 59 days – thus replicating the police procedure with the Lundy stain. His IHC testing correctly identified it as central nervous system tissue. The results were presented in Lundy's retrial and received little less than a standing ovation by other experts.

I called Ware at his office in Fort Worth. He explained that Lundy's legal team contacted him to see what he could find out about the so-called "bucket brain". He said, "I wanted to be able to provide to Mr Lundy's attorneys how this body, and particularly the relevant body parts, had been preserved. My understanding was that it was relevant to Miller's testimony that the brain was fresh, and not artificially processed in any kind of way."

I said, "Specifically, that it had not been preserved in formalin."

"Exactly," he said. The point being made was that if the brain had been preserved in formalin, it would prevent any degradation, and make a mockery of Miller's test.
Ware made inquiries. He didn't get very far. The paperwork he received was heavily redacted, but there is no evidence to suggest that the brain was preserved in formalin.

But he stumbled on something else: he discovered that Miller received the woman's brain without due permission from the University of Texas Southwestern Medical Center. It subsequently ruled that the "removal of the brain from campus was unauthorised...and a violation of policy and a violation of State Anatomical Board regulations".

Prosecution counsel Philip Morgan, QC, listening to defence lawyer David Hislop's closing address on day 35 of the retrial in 2015. Photo / Mark Mitchell

The redacted paperwork - raised with the Court of Appeal in Ware's affadavit - made brief mention of the woman's autopsy on January 15, 2014: "The cadaver was placed into a cooler…along with the bucket." The bucket contained her brain. The bucket was then driven across town and given to Dr Miller. A savage and appalling double murder in Palmerston North, New Zealand, partly solved by the unauthorised exchange of a brain in a bucket in Dallas, Texas.

Ware said, "As a legal matter, none of this would have been allowed into evidence in Texas, because it [the brain] was taken in contravention of what the laws provide."

I made another call to Texas. It was strange to actually talk to Dr Miller in person. He's assumed such a vital, powerful role in the Lundy murder case that he's become a kind of legendary figure, distant and mythical, existing in name only. We spoke for eight minutes. He had a warm, friendly voice, until he terminated the call. He denied the "bucket brain" was fixed in formalin, but would not be drawn on any further comment. Miller said, "All I will say is that I stand by my testimony, and other than that I can't really comment. I would love to. I would love to! I have many stories to tell. But I'm just going to have to keep my mouth shut for now."

The idea to involve justice campaigner Mike Ware came from Geoff Levick, Lundy's tireless advocate. Levick took an interest in the case in 2003. It soon became an obsession. He remains convinced that Lundy did not commit the murders, and knows the case inside out – better than Lundy himself.

Levick's investigations, researches and footwork laid the foundation for a legal challenge that overturned the 2002 conviction at the Privy Council. Lundy was released and tasted freedom in the months before his retrial. Levick put him up at his home in rural Kumeu. I'd visit the house that summer and we'd sit out on the back porch of an afternoon. Lundy was intense, weepy, anxious; as for Levick, he'd just been fired by the legal defence team, who had had a gutsful of his criticism of the way they were preparing for the trial.

"Geoff doesn't understand the trial process and the strategies you need to win a trial," David Hislop told me in an office at the High Court in Wellington, while the jury were considering their verdict. "Perhaps after the verdict – if the verdict goes the right way - we can try to mend some of those bridges." And then he laughed, really quite mirthlessly, and said, "If it goes the other way, he'll probably just shoot us."

Retired business man and friend of the Lundy appeal, Geoff Levick. Photo / Michael Craig

It went the other way. I think the only thing that stopped Levick from reaching for his gun might have been that he thought a bullet was too good for Hislop. He returned to his investigations and researches, and began preparing for the inevitable appeal. I've visited him a few times since then and there are always big fat manila folders lying around, stacks of new and old paperwork, marked PETROL and STOMACH CONTENTS and, of course, MILLER.

The last time I went out to Kumeu was with the notion of looking into any documentation that might answer the leading question: if not Lundy, who? Who were the other suspects? Who did the police interview, who else was on their radar? And what possible motive could lead a killer or killers unknown to inflict such violence?

Levick's long-held theory is that the killings were a debt collection gone horribly wrong. On the morning of the murders, a couple of heavies turned up unannounced at the house of a man who has permanent name suppression, wanting him to settle a debt; the man was involved in a business deal with Lundy, and they spoke for close to an hour on the phone that night. The bow being pulled here is that the heavies went to Lundy's house to demand the money from him, and that it all went crazy.

Either that, or the killings were random. Police drew up a long list of deranged suspects in and around Palmerston North. They disclosed their files to Lundy's defence team. They're now stored along with about 100 cardboard boxes of Lundy material in a shed next to Levick's stables. He used to run horses on the property until a flash flood burst the riverbanks – he told an unpleasant story of one of the horses trapped against a fence.

I spent the day in the draughty shed with a packet of biscuits and a thermos of instant coffee. I read observations made by Palmerston North police officers stationed outside the murder scene during that first week: "Anon male stopped to say that a male Maori with long dreadlocks killed his brother with baseball bat and was acting strange before the murders, standing over people and having all-day drinking sessions at Princess Tavern." All-day drinking sessions tend to make people act strange.

I read an anonymous letter accusing a man who no one in Christine Lundy's family had met or even heard of: "It was common knowledge that he and Christine were secretly meeting... He is very vain and fussy, likes fancy dress parties, fastidious in personal hygiene, terrified of pain, lazy and promiscuous, had many women during a single day, and part-owned a racehorse." Murderers are never that interesting.

Real suspects were thin on the ground. Among the best bets were two men who lived nearby. One had only just moved to Palmerston North for job prospects – that is, to join the Mongrel Mob. His prison support worker reported that he went missing for two days immediately following the murder. Police spoke to him, and he said he was in Te Awamutu, drinking.

Tim McKinnel, private investigator, was hired by Lundy's defence team. Photo / Duncan Brown

The other man had been involved in a stabbing in 1998, committed to a psychiatric unit, and released into the care of his parents. He was on anti-psychotic medication. "It knocks him out," his father told police, when interviewed a fortnight after the murders. "He spends most of his time at home, often asleep in the lounge chair or in bed... At night he usually has tea and goes to sleep." His mother said, "He hasn't undergone any behavioural or mood changes in the past two weeks." She added, "I wish he would."

All that was missing in this desperately vague trail of suspects was a nutter's confession. I opened the file prepared by Tim McKinnel, the private investigator hired by David Hislop, and read an email dated August 8, 2014: "[X] has confessed." Nutter.

It was pleasant work to go through the papers, gnaw on biscuits and drink instant coffee in Levick's shed in the countryside. It was my kind of embedding. I liked Levick, and wished I could chance across some small detail, something overlooked, that might help his cause to prove Lundy was innocent. But I had another thought in the back of my mind. What if I stumbled on some small detail, something overlooked, that leaned towards Lundy's guilt? I'd been visiting Levick for three years, and was sympathetic to his campaign; would I turn out to be his Judas? Betrayal is the dark underground stream that runs beneath journalism. I poured another coffee, and chanced across the untold story of a Palmerston North truck driver who thought he saw a man matching Lundy's description near the scene of the crime on the night of the murders.

Nigel Winiata was twice interviewed by police. He gave a statement about a month after the killings, and again 12 years later, before Lundy's retrial. He claimed he had seen something strange that night. It might have been nothing, just a random passer-by. But Winiata is the only witness to ever come forward who could possibly tie Lundy to the murder.

Lundy worked as a sink salesman. He was on a business trip in Wellington, and booked a room at the Foreshore Motor Lodge in Petone on the night his wife and daughter were killed. He called an escort to his room; she left at 12:48am.

In the first trial, prosecution worked on the theory that the murders occurred earlier that night, at about 7pm. Winiata told police he saw someone near Lundy's house at about 2:50am. When I spoke with him - his first media interview - he said, "I seen what I saw and at the time I was told, 'Nah, not possible.' The cops said to me, 'Nah, nah, wrong time-frame.' They basically fobbed me off."

The former home of Mark, Christine and Amber Lundy on Karamea Cres, Palmerston North. Photo / Marck Mitchell

In the second trial, police changed their mind about the time of deaths. The new hypothesis put the murders anywhere between around about 2am and when the bodies were discovered in the morning. Easy to see why Winiata was approached by police in 2014, and asked to tell his story again.

He claims he was sitting in his beloved Scania truck in the yard at the Foodstuffs supermarket chain. He was about to drive to New Plymouth. He looked up, and saw someone walking up the Bryce Place cul de sac, close to Lundy's address at 30 Karamea Place.

He said, "Cos I was working shift hours, you knew who was walking up and down the street – shift workers, there was one truck driver who used to walk to work, and I'd usually see a guy on a pushbike. Just three or four things that would regularly happen in the morning, and then when you saw something different, you'd think, 'Aw, okay, what's that?'

"So this particular morning I was sitting there writing my notes up and a person started walking pretty much straight in front of me. I just had me truck there idling, and I switched the lights up on full-beam, the big 100-watt spotlights, and lit up the street like broad daylight. And I saw this guy."

I said, "What did he look like?"

He said, "Big guy. Thick-set. Balding. Glasses."

I said, "You told the police he was carrying a bag?"

He said, "Yep. Yep. A sky-blue sports bag with white webbing."

I said, "So you're able to make out that fine detail in the spotlights. How come you switched them on in the first place?"

He said, "Aw, just because I saw something moving and I just lit it up, to see what or who it was."

I said, "And he was coming towards you?"

He said, "Yep. I just thought, 'A bit different,' cos of the way he was dressed. A bit weird. He had on track pants and sports shoes and I'm thinking, 'Well, hang on, he's got this bloody big Swanndri on over that.' It was a mismatch of clothing. I thought, 'Aw yeah, lots of fruitcakes walking around at three in the morning.' I mean, f***, I've been attacked in Whanganui at one in the morning by some nutter swinging machetes trying to bloody hack at me. There's all sorts out there at ungodly hours. So you're always aware of your surroundings."

I said, "You told police he ducked his head?"

He said, "Yeah, he put his head down cos of the spotlights, and turned right, and disappeared."

The grave of Christine and Amber Lundy at the Kelvin Grove Cemetery, Palmerston North. Photo / Mark Mitchell

A few minutes after the man turned a corner, Winiata saw a blue car. "It was a big car, either a Commodore or Ford, and it shot past."

But then I asked Winiata, "You mentioned he wore glasses?"

He said, "Aw, mate, I'm trying to think... It was so bloody long ago."

He hadn't mentioned glasses in his two police interviews. There were a number of discrepancies between the descriptions he gave police. On September 9, 2000, he said the man was short, and put him at 5'8" or 5'9". He also said, "Both of his hands were in the pockets of his jacket." On November 14, 2014, he said, "I believe he was quite tall – maybe a little bit shorter than me. I am 6'2"." He also said, "He carried a sports bag in his right hand."

A false lead? Something, nothing? That stain on Lundy's shirt – something, nothing? Those three wise and solemn appeal court beaks need to say something, anything.