Mind boggling. And scary.

It is difficult to understand how the same justice system can put so much energy into incriminating someone against whom there is so little evidence, while at other times bend over backwards to protect someone who is undoubtedly guilty, as in the Anu Singh case in Canberra.

Maybe our justice system isn't about finding the truth after all.

I worked for 28 years in laboratories mainly analysing blood. The image of profesionalism put out to the public does not match the reality. I would not trust any laboratory analysis which produced a result which could change the course of a person's life.

There was a telling statement in this article. It was "the best argument wins". It is essential that a defence should be the best that one can put together. This poor man had a poor defence.

Congratulations to Mary Garden for the article on Bedazzled by DNA. It is encouraging to see that people are now realising that there are problems with the first conviction based entirely on DNA evidence, especially when an alibi was ignored and no clear motive was established for the murder.

It is now very clear that the DNA evidence needs to be re-tested. Re-testing is a normal scientific procedure and is normally either mandatory or at least encouraged. Re-testing of the DNA work would at least clarify this bench mark case and show it to be either more or less reliable. If the Government is confident in the previous results used in the case there should be no problem with re-testing but there appears to be some reluctance for this. This reluctance should be of concern to everyone because the justice system should be clean and transparent.

The Andrew Fitzherbert Support Group was formed to help bring justice to this case. If you wish to know more please contact me at l.hamilton@qut.edu.au

Lloyd Hamilton
convenor
AFSG

I would agree that the DNA should be re-tested, but there is a lot in this article that I do not agree with:

Firstly the author is actually claiming powers of persuasion in excess of those of both the Crown prosecutor and the counsel for the accused. Surely counsel for the accused was not so ignorant that he or she didn't argue many of the above points to the jury?

Because it should be remembered that it was a jury that convicted, based on the evidence.

The first paragraph of this article reads:

"There were no witnesses, no motive established, no murder weapon found. It was celebrated as a landmark case as it was the first time in Australia someone was convicted of a crime on the basis of DNA evidence alone."

I hate to have to raise this, but DNA evidence is not magically presented to the jury: Witnesses go into the witness box and in response to questions from the Crown present forensic evidence, such as evidence regarding DNA. These witnesses are then subject to cross examination, to have their evidences tested by the defence. If the evidence of these witnesses was so flimsy the defence should have been able to tear it apart.

Motive or weapons are not crucial parts of any real murder trial. This is real life, not television. Motive is not evidence.

The person who was found guilty had several layers of appeal, first to the Court of Criminal Appeal and also to the High Court. If there was any reasonable doubt either Court would have sent the matter back for retrial. Lastly if the state attorney-general thought it appropriate they could order a judicial review of the verdict.

One difficulty with DNA re-testing is that it is nearly always called for by those who want to have a convicted person acquitted. I would have to say that these arguments would be more convincing if they also argued for an acquitted person to be retried on the basis of new evidence found by DNA testing.

Of course this isn’t to civil libertarians’ tastes.

By the way, readers may want to look for themselves at the reasons for judgement of the Queensland Court of Criminal Appeal, which can be found at:

http://www.courts.qld.gov.au/qjudgment/QCA%202000/101-/CA00-255.pdf

It is short, only 8 pages, but deals with some of the matters that the article's author tries to obscure. It is enlightening reason, as the Judges who heard the argumenst and wrote the judgement are not there to argue the case of either the Crown or the convicted, unlike Mary Garden.

The interesting point is that the appellant tried to claim fraud against him. If a motive is required, according to the author of this article, then where was the motive for the testing lab to act in a fraudulent manner?

It is clear that the Court accepted that Fitznerbert had lied to police in his interview: this is sometimes used as 'consciousness of guilt', otherwise Fitzherbert had no reason to lie about knowing the victim.

My last point: the author praises Fitzherbert for his palmistry abilities: She is willing to accept his skill in that 'science' (rolls eyes) but is not willing to concede that evidence tested by methods proven by scientific method should be so easily accepted. Or is Mary Garden actually saying that perhaps the Courts should accept palmistry as a valid means of reaching a criminal conviction?

Perhaps Mary Garden should have told us all a bit more of the background, instead of just her own views

Neither Fitzherbert nor the Chamberlains are the first people in Australia to be convicted of murder largely on the basis of questionable scientific evidence. And it is likely that they won’t be the last.

It has something to do with the psyche of our society, which elevates the image of the scientist to that of the uncompromising, incorruptible, all knowing, almost mystical, authority. After all, if these people in their white lab coats weren’t as pure as driven snow, our mobile phones and microwave ovens wouldn’t work and aeroplanes would fall out of the sky. Scientists have become our infallible clergy for modern times, and the authority of the clergy must be upheld at all costs.

When innocent people are convicted without much evidence, it reflects on our whole society. It shows that despite scientific progress we are not much different from people in Salem.

It has never been proven that Andrew Fitzherbert knew Kathleen Marshall or knew where she lived. The phone call Fitzherbert made a few days before her murder was to a phone number of the Cat Protection Society; he claimed he did not know that that was Marshall's (home) phone number, and the person answering the phone did not identify herself. The call was evidently a query about his membership application. His explanation is quite plausible.

I've quoted Laura-Leigh Cameron-Dow as to the problems with the DNA evidence as it was presented to the jury; according to her it should have been ruled inadmissible. Professor Boettcher, as I've also quoted, thinks the blood samples tested as male seem to have been more degraded than Marshall's which indicates they were left there earlier than the murder.

I don't agree with Andrew Fitzherbert's theory presented at his appeal (note he acted for himself) that the lab results were fraudulent or faked.

Enough question marks hang over this case, so what is the harm of re-retesting? As I said on 4BC Radio on Tuesday I don't know whether Andrew is innocent or not. But it is very dangerous to convict on DNA evidence alone. The most this shows in this case was that some man, with a similar DNA profile to Fitzherbert, was at the surgery at some time, maybe days even weeks before.

Note that in the appeal there is note that the 'alibi evidence was vigorously attacked by the Crown at the trial'. This was for Thursday night. Should the four reliable witnesses who saw Marshall on Friday afternoon be disregarded?? The alibi for Friday night was strong and the Crown spent very little time questioning this!

Was the defence weak? You'll have to read the transcript of the trial and make up your own mind.

This is my field. The discussion here is superb!

I would add two things:

1)"It has something to do with the psyche of our society, which elevates the image of the scientist to that of the uncompromising, incorruptible, all knowing, almost mystical, authority. After all, if these people in their white lab coats weren’t as pure as driven snow, our mobile phones and microwave ovens wouldn’t work and aeroplanes would fall out of the sky. Scientists have become our infallible clergy for modern times, and the authority of the clergy must be upheld at all costs." (Quote: Mick V.)

Note the above. It is true; and it must be acknowledged.
In my State this is VERY relevant. It has caused major problems. (I have no connection with any of the matters it has affected).

2) The legal 'system' is such that it will protect its decision to an extraordinary length. It becomes nothing to do with a convicted person; it has everything to do with protecting ITS verdict; not being seen to be wrong. Not to have its structure questioned.

I do not know if this man is guilty or innocent. However, it is no surprise to me that in this instance questions have been asked and deserve to be answered.

MaryG's theory that a man with "similar DNA profile" was in the surgery just highlights the unfamiliarity that many commentators have of DNA profiling. If the DNA in the surgery matched Fitzherberts, then it was Fitzherberts without a doubt. That placed him at a crime scene that he denied being anywhere near and even denied having contact. It's in the documents that Hamlet provided the link for (good work BTW). Someone with "similar profile" would not leave such a DNA profile, not even a brother or father! It is a matter of routine that DNA profiles of suspects and evidence are performed in different labs, so unless the DNA evidence was actually tampered with, that is a sample of Fitzherberts blood was added to it later, then it could be possible and hence the fraud allegation. However, Fitzherbert was the last person to give a sample, so how could that happen? The only other way was for someone to plant that blood sample before the police turned up. But Fitzherbert has never mentioned anyone siphoning off his blood and using it to frame him, so what is the most plausible explanation? I'll give you a clue: it isn't that the DNA test is wrong.

Lisa Faber (a forensic scientist who works for the N.Y.Police Department) says: "We never use the word 'match' ... the terminology is very important. We say 'similar' or 'come have come from' or 'is associated with'."

And as I've pointed out, all sorts of problems can arise in the collection of samples and mistakes in the lab. A recent Texan study found that error rate in forensic laboratories is about 1 in 10.

There are prominent critics of the way DNA evidence is used in courtrooms (e.g.Professor M Saks, Arizona University, Professor W Thompson, Uni California). Saks says there are two kinds of forensic science: 1. a dead body, let's see what chemicals are in the body? Straightforward science. 2. trace analysis: comparing a sample from the crime scene and a sample from a suspect. He says the latter is faith-based science, that there is no objective basis for making the link.

So if there is a dilemma at the heart of forensic science itself (and the 'experts' disagree), clearly DNA evidence needs to be treated with caution: it is NOT infallible.

Professor Thompson points out that DNA evidence is especially worrisome if it’s the only evidence presented. “There’s one chance in millions that any single person will win the lottery. But if you sell enough lottery tickets, somebody’s going to win,”. It is the same with a genetic lottery. “Even though there might be one chance in millions or billions that a particular person would by chance lose by matching, if you have enough people in the data base somebody’s going to lose, even if they’re innocent.”

And if Andrew Fitzherbert is such a liar, as the prosecution argued, then why didn't he simply make up a story about being at the surgery some days or weeks before the murder (he could have said he took their cat for treatment)?

Regardless of DNA evidence, if the witnesses are to be believed, Marshall was most likely murdered on the Friday night. That's where the focus should be. Fitzherbert's alibi 6 pm Friday - 1am Saturday was not challenged.

Mary Garden's excellent article "Bedazzled by DNA" asks a lot of "uncomfortable" questions which need some answers. The on-line opinion expressed by Lloyd Hamilton on 9/8/07 in forum.onlineopinion.com.au shows sound reasoning in view of the doubts surrounding this case. It is not too late to help Mr Fitzherbert in his struggle to prove his innocence at his own expense. Every Australian should have this right, after all, history shows that people have been convicted in the past for crimes they did not commit, and where there is doubt, there should also be the opportunity to redress a wrong.

MaryG, while Professor Thompson's statement may be correct, the chances that someone of "similar genetic profile" being in the same city at the same time and knowing someone by one degree of separation and also being involved with a murder are even more unlikely. You ask, if Fitzherbert was such a liar then why didn't he make up a story about taking the cat in to the surgery a few days before? Well, that is a point isn't it? Did he deny ever knowing Marshall BEFORE the DNA test was done? Or after? You see, if he denied it to police before he knew they had forensic evidence, then he cannot likely change his story can he? And the evidence has shown the story to be very likely to be false.

As for error rates, defining what an error rate is or means in a legal sense is also proving problematic. For instance, would you say that accidental contamination of a sample so that the profile matches the forensic scientist doing the work (or others who have handled the sample)is an error? It is the most likely scenario and yet legally it is meaningless because it would not result in a conviction.

A more interesting use of DNA in a murder trial, actually three trials of the same person for the same crime - lots of appeals etc, was the matter of Thomas Keir, eventually found guilty for the murder of his wife in 1988. It took 10 years for the DNA techniques to identify the bones found under his house as those of Jean Keir.

The DNA techniques in this trial being developed by the US Armed Forces DNA laboratory, to identify the remains of US military personnel found in Vietnam.

A good account of the series of trials can be found at:

http://www.lawlink.nsw.gov.au/scjudgments/2007nswcca.nsf/a16acdaf45f305714a256724003189f5/63d14a895442ce1cca2572e80082d2c6?OpenDocument

The interesting thing in this one was that the appeal system functioned to protect justice, not the conviction. The first trial was appealed, successfully, on the basis of 'the prosecutor's fallacy'. The second trial because some jurors acted contrary to the instructions given to them by the judge.

Eventually Thomas Keir was tried by a judge alone, who found him guilty, but then this decision was confirmed by a panel of three judges sitting on the NSW Court of Criminal Appeal. It was also the CCA who had previously sent the matter back for retrial, in spite of the CCA describing the Crown case as a very strong one.

There were no witnesses to the killing, the only motive was the alleged jealousy and possessiveness of Thomas Keir. Most of the evidence was forensic in nature, being fairly small parts of bones. The defence alleged that the DNA has been contaminated, but the Crown was able to show that this was not the case.

Few people championed Thomas Keir's cause, maybe because he was not an author or a spiritualist. He comes across as something of a brute; but the law does not depend on a person's attractiveness or intelligence for a fair trial. The Appeal system worked in his case, his trial was heard three times. No-one can doubt the fairness of the process.

They already had Andrew's DNA profile BEFORE they took his blood sample. How can they prove that his blood matched the crime scene sample and not the sample that they had already obtained from Andrew, unless they release the actual crime scene evidence for retesting.

If their case only needed to be based on DNA, why didn't they look for more to seal the deal? Why wasn't the car tested? Surely after such a vicious attack, (and if you knew Andrew, you would know that he wouldn't have had the physical strength to overpower a woman like that) he would have been covered in blood. He didn't walk home...

Witnesses who claimed to have seen Andrew approching her house holding a cat (the colour of which they couldn't agree on) were mysteriously absent from the trial. Witnesses that saw Kathleen on Friday testified, so why wouldn't they put up their star witnesses placing Andrew at the house? Why would that be?

It's scary, very scary. Make sure you keep every cell from your body. Never discard your cigarette butts in a public place. If you blow your nose on a tissue, don't throw it in the bin - burn it immediately. Someone could take that tissue, place it the scene of THEIR crime for collection as evidence, DNA intact, and tip off the police. You're forced to provide a "voluntary" blood sample to "eliminate yourself as a suspect" and BINGO - you've just been placed at the scene of the murder. If you decline the voluntary sample, they'll be back on your door step that night raiding your house for sheets, tissues, toothbrushes, hairbrushes and your coffee cup. They won't look for anything else that might actually corroborate your guilt, which by now is not in doubt, they just want that DNA.

I agree it is more difficult to "plant" blood, but if one DNA sample from this crime scene was enough to convict, a few cells off a cigarette butt, strand of hair or tissue would surely be just as effective. Go on, prove that you weren't there....