Wait­ing for Lundy

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.

Weekend Herald - - Re­view - MILLER IS

What’s tak­ing them so long? The three wise and solemn beaks of the Court of Ap­peal sat for a week in Oc­to­ber last year in an art­fully wood­pan­elled court­room in Molesworth St, Wellington, and heard the ar­gu­ment for and against the dou­ble­mur­der con­vic­tion of Mark Lundy. It was dur­ing those far­away, hal­cyon days when New Zealand was with­out a gov­ern­ment, and Win­ston Pe­ters amused him­self with coali­tion talks.

I hoofed across Molesworth one day to Par­lia­ment and had a cup of tea with Jacinda Ardern. She laid out too few bis­cuits. We rem­i­nisced about the elec­tion cam­paign. In­cred­i­bly, she didn’t let me in on the se­cret of her preg­nancy. All an­cient his­tory — but the Court of Ap­peal re­mains sus­pended in that dis­tant age. Eleven months on, Jus­tices Helen Winkel­mann, Mark Cooper and Raynor Asher are yet to make a peep.

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.

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.

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.

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.”

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. 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.

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. Tem­pleCamp worked on the Lundy case.

He cred­its Miller as some kind of ge­nius (“a bril­liant sci­en­tist”, “an in­ter­na­tional

The Court of Ap­peal re­mains sus­pended in that dis­tant age. Eleven months on, Jus­tices Helen Winkel­mann, Mark Cooper and Raynor Asher are yet to make a peep.

ex­pert”) and makes grand claims about the dura­bil­ity of the tell­tale 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.” He said IHC didn’t come close to meet­ing those re­quire­ments in his opin­tion.

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”.

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”.

The redacted pa­per­work - which Ware raised in his af­fa­davit to the Court of Ap­peal - 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 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.”

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.

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 an­tipsy­chotic 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 Photo / Mark Mitchell

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.

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, 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 - the first time he’d spo­ken with me­dia - 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.”

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, 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, “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.”

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.

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?

The Lundy fam­ily: Chris­tine, Mark and Am­ber.

Mark Lundy is sup­ported after col­laps­ing at the fu­neral of Chris­tine and Am­ber in 2000.

From left: Prose­cu­tion coun­sel Philip Mor­gan QC and de­fence coun­sel David His­lop QC at the re­trial in Wellington, 2015; long­time Lundy sup­porter Ge­off Le­vick; Mark Lundy leaves the High Court in Wellington.

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