Thursday, October 19, 2017

Mark Lundy: On-going appeal. (Last day); "Mark Lundy's appeal judge explores possibility brain tissue came from a pie gallery," Stuff.co reports..."Mark Lundy's Court of Appeal hearing has turned to discussion of what goes into meat pies and if they contain central nervous system tissue. But the Crown says none of that matters, as experts said tissue found on one of Lundy's shirts was fresh and "smearable"..."A suggestion by his lawyers at the retrial was that the tissue, which the Crown says came from Christine's brain, came from a chili beef and cheese pie he ate the day before the bodies were discovered. Justice Raynor Asher explored that submission in the Court of Appeal on Thursday with Crown lawyer Philip Morgan, QC. "The pie contained ground beef," Asher said. "Ground beef includes central nervous system tissue, presumably. "He picks up a fork and two drops spill on his shirt." Animal and Christine's DNA were both found in one of the two stains on the shirt. Morgan said the pie theory was unlikely to be true, because experts said the tissue had to be fresh. "How unlucky can you be to be eating a chili beef and cheese pie and get a piece of beef on your shirt, which has miraculously transformed itself into being fresh and capable of being smeared, and Christine Lundy's DNA has got on the same spot in a large quantity. "It's not just once, but twice." Asher said he was surprised at the emphasis on the tissue having to be fresh and smearable. "I seem to successfully smear food on occasion into my shirt." Justice Mark Cooper said he was more concerned about a submission from Morgan that a piece of evidence that suggested the tissue was more likely human than animal was not overly important. "If it is inadmissible, then what effect did this have on the trial? "Can this court be sure that the jury would nevertheless have convicted [Lundy]?"

STORY: "Mark Lundy's appeal judge explores possibility brain tissue came from a pie gallery," by reporter John Galuszka, publ...

Motherisk; Hospital for sick Children Toronto; "Lawyers spar over whether class-action into Motherisk drug-testing scandal should go ahead," reporter Rachel Mendleson reports in The Toronto Star..." Whether the class-action will proceed is now in the hands of Superior Court Justice Paul Perell, who reserved his ruling on Thursday. His decision will play a key role in shaping what promises to be years of legal wrangling in the fallout from the problems at Motherisk. Already, some 275 plaintiffs are named in a series of individual lawsuits against Sick Kids and the major players at the lab, the court heard. “This class-action is for the thousands of families who have received an apology but no compensation,” Rob Gain, a lawyer for the plaintiff, told the court, at the outset of the two-day hearing to determine whether the case meets the bar for class-action certification."..."Gain argued that a class-action is the best way to ensure access to justice to a vulnerable group of people who suffered a shared harm due to Motherisk’s faulty tests, ranging from parents who briefly came under the scrutiny of a child welfare agency to cases where children were removed permanently. “When you’re dealing with the child protection regime . . . and there’s a test result from the lab showing drug or alcohol abuse, it is not discretionary what a Children’s Aid Society does. They must act,” he said. “That act is common to the entire class.” However, that rationale was rejected by the defendants, who include Sick Kids, Motherisk’s founder and longtime director, Dr. Gideon Koren, and former lab manager Joey Gareri, who argued that a class-action is not appropriate because the circumstances in each case are highly individualized."..." Sick Kids initially defended the reliability of Motherisk’s testing, but reversed course in the spring of 2015 after the hospital learned it had been misled about Motherisk’s international proficiency testing results, and closed the lab. Sick Kids CEO Michael Apkon issued a public apology in October 2015. Koren retired in June of 2015, and is now working in Israel."

STORY: "Lawyers spar over whether class-action into Motherisk drug-testing scandal should go ahead," by reporter Rachel Mendleso...
Tuesday, October 17, 2017

Massachusetts Breathalyser tests: Major development: Report finds exculpatory information concealed from defence by state police agency hat certifies the reliability of breath tests. Defence lawyer predicts "ten of thousands" of cases could be affected. Associated Press reports that Officials sought to downplay any comparison with the case of Annie Dookhan, a former state drug lab chemist who was convicted of falsifying drug tests and tampering with evidence, resulting in the dismissal of thousands of criminal cases. (We've heard that before. HL): Major shake-up in Office of Alcohol testing..."The 126-page report concludes that the Office of Alcohol Testing, which is overseen by the Massachusetts State Police, "made serious errors in judgment" in responding to requests for documentation sought by defense attorneys on behalf of clients — a process known in legal parlance as "discovery." Those mistakes, the report said, "were enabled by a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions."...The investigation began after defense lawyers complained the office was withholding the documents, which included worksheets related to the calibration and maintenance of the breath testing machines used by police departments. Attorneys representing some 750 defendants originally questioned the reliability of the Draeger 9510 Alcotest machines, introduced in Massachusetts in 2011. Joseph Bernard, a Springfield attorney, later filed a motion claiming that exculpatory materials — meaning evidence that could be favorable to a defendant — had been intentionally withheld. Bernard praised the report and said it could be a catalyst for reopening the cases of not only defendants he represents, but tens of thousands of others. "This impacts every single breath test that was ever conducted on that machine," said Bernard. "This is a colossal issue."

STORY: "Report slams agency for holding back OUI  (operating under the influence) data," published by  The News Tribune (Associat...

Mark Lundy; New Zealand: On-going appeal against convictions for murdering wife and daughter: His lawyer says heart of appeal is that jury should never had heard mRNA evidence relating two spots on his polo shirt..."He (Jonathan Eaton QC) said Lundy had become a "guinea pig" for a method of analysis that had never been used anywhere in the world before, and had never been used to identify unknown material in the 16 years since the first trial. "When you've got that level of complexity, this is an issue that should have been thrashed out by the experts, through peer review and conferences. "Not in front of a jury, saying 'right well there's our conflicting views, you work out if it's reliable or not'." Eaton said it was highly unusual to have a murder conviction resting on such controversial evidence, that had even been branded as unreliable in the 2015 retrial. He argued there was a duty to make sure all evidence submitted in court could be relied upon."..."Mark Lundy was first convicted of their murders in 2002, and his first appeal attempt actually resulted in the court increasing his prison sentence to 20 years. After a long campaign, his conviction was quashed by the Privy Council in 2013, which ruled there were problems with the analysis of the brain tissue, as well as time of death. Lundy and his lawyers tried to have the mRNA evidence of brain tissue on his shirt thrown out before his retrial, but his team failed to successfully challenge the evidence in both the Court of Appeal and Supreme Court. In a 2015 retrial at the High Court in Wellington, Lundy was again convicted of the murders."

QUOTE OF THE DAY: ""The courts are dropping the ball on the admissibility of new science..."And hence we have the UK Law Com...