By Martin Galvin
Amongst forensic scientists one rule is paramount. “Garbage in equals garbage out.” The meaning is clear even to the most unscientific of laymen. Items must be properly collected, segregated and bagged. Contamination whether deliberate or negligent will rubbish the results of any forensic tests, generating worthless trash to be binned.
The British have been generous with examples. Paraffin tests for gunshot residue on the clothing of Bloody Sunday victims were rubbished because the items had been handled and contaminated by British troopers who fired shots. The nightmare of the “Birmingham Six” began with a credentialed English scientist neglecting to exclude varnish or playing cards as the source triggering the false positive he mistook for explosives.
Now the Diplock judge presiding in the trial of Sean Hoey has directed an investigation into the conduct of senior crown constables who trampled upon this paramount rule of forensic evidence and then conspired to cover-up their framework. Already any testimony which was to link the accused to Omagh has been excluded by the crown judge. Tampering with evidence has been both admitted and proven by photographs. The forensic framework has appeared to unravel witness by witness.
Will the Diplock court ignore the evidence and convict on the belief that the crown constables would not have gone to such lengths to frame an innocent man? Will the boasts of crown constables that there was nothing to stop them from jailing Mr. Hoey on planted DNA evidence be proven true, even as their testimony has been proven false?
The crown case was seriously compromised years before Mr. Hoey was charged. Sean Hoey was picked up and interrogated in September 1998, June 1999 and July 2003, before being charged and held without bail in September 2003. Several crucial events occurred. Constables boasted during this interrogation that there was nothing to stop them from planting forensic evidence to jail Mr. Hoey, despite his denials and account of his whereabouts. Constables confiscated clothes, toothbrushes, combs, and eating utensils, which would provide samples of My Hoey’s DNA as well as the means to make good on their threats.
Constables seized a number of rolls of black tape, used by Mr. Hoey in his work as an electrician. Pieces of this tape would later surface “Houdini-like” as the judge described, in a sealed evidence bag, and would be acknowledged by one of the chief crown forensic scientists as a possible source of DNA tainting other exhibits in the case.
The threats about planting DNA became more ominous after the September 2002 arrest of Martin Brogan and Mark Carroll. At a press conference the PSNI pronounced both men guilty of possessing explosives, which were in fact found miles away in sole possession of a British agent. DNA was touted by the PSNI as indisputable proof.
The indisputable proof collapsed after Aidan Carlin of solicitor Kevin Winter’s office, visited the lab unexpectedly and found documentation that British army personnel had unsealed the bags containing Brogan and Carroll’s clothing and rubbed the items with gloves containing traces of explosives. A second document detailed instructions to the scientists about falsifying the results of forensic tests to make a case.
No one was prosecuted, demoted or disciplined for a blatant conspiracy to frame innocent Irishmen. The crown’s imprimatur was clear. DNA and forensics was to take the place of confessions under torture or supergrass evidence as the grease of the Diplock court conveyor belt.
The crown case against Sean Hoey would consist almost exclusively of forensic evidence. DNA and fibers would be offered to link Sean Hoey to a number of the charged incidents. The unique design of these devices would operate like a signature linking Mr. Hoey to Omagh and the remaining incidents charged. Additionally an English expert Frederica Holmes would claim that she had listened to a tape of a telephone call made by Mr. Hoey from Maghaberry and identify it as the same voice which had called to give warnings.
The defense contended that any DNA link between Mr. Hoey and any incident was either planted from the items seized at Mr. Hoey’s home or tainted because the items were negligently mixed together. Moreover, neither the accent nor voice on the warning was Mr. Hoey’s, much it might sound so to Ms Holmes’ English ears. This case would not be a walkover with counsel intimidated by the number of charges. This case said lead solicitor, Peter Corrigan, was a forensic frame-up.
TAMPERED OR ALTERED
The crown case began to unravel almost from the start. British Army officers provided photographs of a timer used in Lisburn. The Lisburn timer was supposed to provide DNA evidence and establish a signature link between Mr. Hoey and the devices used in the other incidents.
Dramatically the defense barrister pointed out a piece of black tape on the device which matched the rolls of tape taken from Mr. Hoey’s home in September 1998. Earlier photographs and testimony proved that there had been no black tape on the item when it was collected. How had black tape taken from Mr. Hoey’s home in 1998 with his DNA made its way onto bagged and sealed evidence? The judge said the tape had appeared “Houdini-like” referring to the famous American magician who had staged escapes through impenetrable locks and chains. Had the British had tampered with the evidence? With characteristic English regard for semantics, the British officer quibbled that the evidence may have been “forensically altered”, although the distinction between altering and tampering with evidence is difficult to see.
It was a devastating blow. The crown had been caught offering planted or “forensically altered” evidence. Tape from Mr. Hoey’s home had been stuck onto a timer power unit and lunch box in which it was enclosed, to create a DNA link to Lisburn and a signature link to other incidents.
Attempts to explain the tape away backfired on the crown. A PSNI witness, Michael Hannigan said that in 1998 items were sometimes stored un-bagged, lying next to other items in the evidence store. Perhaps the tape was transferred in this way. Mr. Hoey’s barrister, Orlando Pownall, jumped on that claim and asked could not all items have been contaminated with DNA or fibers lying next to each other in the store room “Totally”, Hanningan was forced to admit. His admission seemed to “totally” destroy the crown’s case.
Forensic scientist Dennis McAuley would be forced to admit that Mr. Hoey’s DNA may have been transferred onto evidence negligently when tape taken from Mr. Hoey’s home was compared to tape recovered from charged incidents. The paramount rule “Garbage in equals garbage out,” would rubbish all crown exhibits whether the contamination had been deliberate or negligent. The crown intended to present a DNA link to Lisburn and then a signature link to other incidents. It presented instead proof constables had planted evidence with the signature link of such planted or tainted evidence, contaminating every other item of evidence in this case. At a minimum, if McAuley and Hannigans tortured explanation were to be believed, then the crown’s evidence had been irretrievably contaminated when tape and items seized from Mr. Hoey’s home were negligently stored alongside evidence collected at the scenes of various incidents charged.
Why would the crown fabricate evidence about Lisburn if it had untainted evidence about other incidents? How could witnesses who were prepared to frame Mr. Hoey about Lisburn and perjure themselves in order to do so, be credible about any charge or incident in this case or any other?
The planted black tape photographs were followed by testimony about Altmore Forest. This testimony would provoke the judge to order a perjury investigation from the bench. Constables had been ordered to re-write and falsify their witness statements, deleting details consistent with innocence and adding details making a case against Mr. Hoey. The defense uncovered the originals.
When Constabulary officer Fiona Cooper was confronted with her original statement contradicting her certified statement supplied to the court and defense, she broke down in tears on the stand.
Given the weekend to compose herself, she returned with a passport stamped Zambia covering the date of her statement. Cooper said she had been ordered to falsify her account and fingered her supervisor. Such fabrications had been directed from above.
Cooper’s supervisor, a top PSNI officer Philip Marshall, was shown his original statement which he had denied ever making .He then blamed the Omagh investigation team headed by PSNI Superintendent Baxter. A conspiracy to commit perjury and falsify evidence went back to them.
Altmore was supposed to provide another forensic link to Mr. Hoey. Instead it provided a confession from a top constable that he had falsified his own statement and directed others to falsify evidence admitting a cover-up which had been directed by the top Omagh investigators. This testimony is now being investigated for possible perjury. If the top Omagh investigators were ordering supervising constables to falsify evidence about Altmore and conceal it by perjury, what other evidence or testimony was falsified under their orders.
Following Cooper’s break-down the voice analysis testimony was dramatically withdrawn. Holmes had also authored inconsistent statements on her identification of Mr. Hoey’s voice as that heard in a warning call. Rather than face a cross-examination and perhaps, like Fiona Cooper finger others for her orders, she retracted her evidence and the crown prosecutor withdrew her from the witness list..
The jewel in the crown’s case was the charges about Omagh. Every news report identified the case as the trial of the Omagh bomber. The key evidence was to be the signature evidence that the other devices linked to Mr. Hoey’s DNA were so unique that they must have been made by the same person who constructed the Omagh device.
Dennis McAuley said he based his opinions on the wiring and soldering. He was challenged to show his expertise in this area and to show that there was any accepted scientific basis for his claims. After an embarrassing cross-examination of McAuley about the lack of foundation for his opinions, the court summarily excluded the testimony as mere guesswork, not worthy of consideration. There would be nothing to link Mr. Hoey to Omagh at the so-called Omagh trial.
The DNA findings, already undermined by evidence of being deliberately planted or at minimum negligently contaminated, would be further discredited. Crown expert John Whitaker conceded that he had found only Low Copy Number DNA. LCN DNA is not accepted as reliable in American or most other courts. Indeed there are only four laboratories, two in England, one in the Netherlands and a fourth in New Zealand, which would even accept the tests used by Whitaker. All others would view the tests as unreliable and the four are regarded as a tiny minority of skeptics. Whitaker’s had in fact identified the DNA of a 14 year old English schoolboy as part of the Omagh unit.
Whitaker is affiliated with the Forensic Science Service which, he claimed was accredited by the British Standards Institute. The defense then submitted a letter from the BSI showing that neither the FSS nor the LCN DNA tests were accredited by them. Whitaker admitted his tests would not be accepted in many courts.
Two experts Professor Dan Krane and Professor Allan Jamison testified that LCN could give a distorted result and was not scientifically reliable. Moreover the miniscule amount of material makes LCN DNA easily susceptible to taint and contamination.
McAuley’s admission that there was a real possibility of Mr. Hoey’s DNA being transferred from the tape to items in evidence, would be consistent with a finding of LCN, DNA.
Other crown witnesses would reveal a litany of improprieties further rubbishing the forensic evidence that made up the entirety of the crown’s case. A constable testifying about a mortar attack at Newry barracks, described the room where evidence was stored as a “complete mess”. Items often disappeared or were not logged. At least five bomb timers disappeared. Labels of stored evidence had been changed or written-over by unknown persons who apparently had unauthorized Houdini-like access to the evidence. A detonator introduced into evidence was acknowledged to have been missing for 5 years and suddenly reappeared. .A forensic scientist, Samantha Underwood, admitted that while gloves were worn to prevent contamination of items, lab coats were shared , re-used and cleaned only once a week, which could have made them susceptible to such LCN DNA contamination.
In a case based entirely upon forensics, any contamination of the potential evidence, whether deliberate or negligent, would rubbish the results of any forensic tests, as worthless trash to be discarded. In a fair trial, it seems clear that the entire crown prosecution of Sean Hoey should have long ago been binned.
There is a great deal at stake in the dock of the Belfast Diplock courtroom. The British believe that with 58 charges, including Omagh, the deck has been stacked too high for any Diplock judge to have the courage and independence to acquit .The constabulary bragged that nothing would stop them from jailing Sean Hoey on planted forensics evidence. Can even a Diplock court make good those boasts when the evidence has been so completely discredited? Can the crown establish a precedent for jailing Republicans on fabricated forensic evidence much as Diplock courts formerly used Castlereagh confessions under torture or supergrass perjurers? Will others like Declan McGlinchey be next? Will Republicans just say no to any endorsement or fealty to the re-named RUC who planted the evidence and perjured themselves to cover-up their framework?