The Price of Innocence
Page 28
However, perhaps the most astonishing recommendation of all appears in paragraph 944 of the report:
the committee is clear in its view that the absence of an agreement for there to be no further comment on mark Y7 following the settlement was a serious omission . . . The committee considers that the Executive should have insisted on the inclusion of an agreement for no further comment to be made.
Extraordinarily, a parliament built upon the principles of openness and accountability has been reduced to saying that buying silence might have been the best way to avoid problems!
The two weighty volumes that comprise the inquiry report look impressive but they offer few answers. For that reason, most media coverage of the inquiry has been critical of what had been achieved and many journalists have concluded that the full truth about what is known as the ‘Shirley McKie case’ will probably never be known.
But much of the truth, in the form of the full Mackay report, the Lockerbie papers and the 1,200 documents refused under the Freedom of Information Act, does exist, locked deep in Lord Advocate Elish Angiolini’s desk or scattered about the filing cabinets of the Scottish Executive’s justice department.
Only a full and independent judicial inquiry, armed with powers of document recovery and examination of witnesses under oath, into the facts and the politics of the matter, rather than into the identification of the fingerprint of Shirley McKie, will finally unlock access to those vital sources of information. Then, at last, the truth might be told – the truth the parliamentary inquiry did not find, and, it appears, sometimes did not even want to look for.
Appendix
Supplementary Memorandum in the Fingerprint Identification Cases of Shirley McKie and David Asbury
This report, prepared by the American fingerprint expert Pat Wertheim in February 2001 as part of the first civil case, is included to allow readers to make their own informed comparison of the fingerprints shown in plates 14 and 15 in the centre of this book.
My qualifications for the conclusions presented in this report are that I have been a fingerprint expert for over twenty-five years; I have attended and passed every major fingerprint course offered by the FBI; I have attended numerous other basic and advanced fingerprint courses, seminars, symposiums and conferences; I have been accepted as an expert witness by dozens of courts in Texas, Arizona and Pennsylvania, as well as outside of the United States; I have taught advanced fingerprint identification courses throughout the United States, Trinidad and Tobago, New Zealand, the Netherlands, England and Wales; I have presented research papers at twelve consecutive international fingerprint conferences of the International Association for Identification; I have presented research papers at international fingerprint symposiums hosted both by the FBI and the Israel National Police; I presented a research paper at the recent training conference in honour of the centenary celebration of the Fingerprint Branch of New Scotland Yard and I have published dozens of fingerprint articles in regional, national and international journals and publications.
I have examined the original fingerprint evidence in Shirley McKie’s case, including the powdered mark still in place on the door frame and the inked fingerprints of Shirley McKie, plus three sets of charted court enlargements prepared by the SCRO prior to her trial on charges of perjury. Mere mistakes alone cannot explain the facts of this case.
In the first place, any competent fingerprint expert trained in fingerprint pattern recognition would recognize that the mark on the door frame is, in all probability, that of a right thumb. This is indicated because a large number of bifurcations toward the top of the mark all open to the left, thus causing the ridges to slope downward to the right near the top of the mark. While this phenomenon is not unheard of in the forefinger, it is rare in that, and especially in the middle, ring, or little fingers, and it is definitely in contradiction to a left thumb. A left thumb, opposite of the right thumb, would normally have bifurcations opening to the right, and ridges sloping downward to the left near the top of a mark. In fact, the phenomenon is strong in the mark in this case to indicate a right thumb, and yet it was identified to Shirley McKie’s left thumb, which clearly shows the opposite tendency and, in Shirley McKie, is quite a normal left thumb.
On pattern alone, a competent expert would eliminate the mark from Shirley McKie’s left thumb. In the second place, there are very clear points (ridge endings and bifurcations) appearing in the mark that do not exist in Shirley McKie’s left thumb. Likewise, there are very clear points in Shirley McKie’s left thumbprint that do not appear in the mark. It is utterly impossible for such obviously different points to exist in two prints such as these if they came from the same finger.
In the third place, the ‘sixteen points’ charted by the SCRO in the court productions are, for the large part, non-existent in the mark. While the inked print does have sixteen clear points charted, no more than five could be considered actual ‘points’ in the crime-scene mark. However, even those five are not in such substantial agreement as to be considered reliable. The other eleven points charted in Shirley McKie’s inked print simply do not exist in the mark by any stretch of the imagination.
In the fourth place, the mark is a single touch and is only smeared in one small area approximately four ridge-widths across, near the very top of the mark. When the SCRO experts represented the mark as several overlaid touches, or too smeared to be dependable in the top two thirds, they clearly misrepresented the nature of the mark. The ridges are clear and continuous from side to side all the way through, bottom to top. In addition, the furrows (the spaces between the ridges) are open and clear all the way through, from side to side and bottom to top, with the exception of the small smeared area noted above. This mark is quite clearly made by a single touch with only minimal smearing at the point of heaviest contact near the tip.
In the fifth place, the SCRO prepared three sets of charted court enlargements using progressively cropped and degraded photographs of both the mark and the inked print. In the final set prepared, an inked thumb print of Shirley McKie’s is used which itself is smudged in the area of the identification. The only assumption can be that this was done in an attempt to mask the very clear differences between the two, which are obvious to any true expert. Preparation of more than one set of charted court enlargements is simply not done, and the rule of best evidence absolutely requires that the entire mark be presented in the photographs used, and that only the clearest images be presented. The facts that cropped and degraded images were used and that the charts grew progressively worse through the series when viewed in order of production number leads one to believe that a conscious effort was afoot to hide the differences between the mark and Shirley McKie’s print.
If the experts were truly senior experts, then they should have known better than to make any of the above noted errors. In my role as a defence consultant for other solicitors in other cases, I have seen absolutely brilliant work come from the SCRO, including some of the experts involved in the McKie case. Therefore, I have to assume they knew very well how to do proper work and the errors in this case were not ‘mistakes,’ but were intentional in nature.
Furthermore, the disagreement between experts in this case cannot be written off as a ‘difference of opinion.’ While it is true that the court considers expert witness testimony to be ‘opinion’ testimony, this in no way excuses error on the part of the expert. If such serious error were excusable, why have the police presented fingerprint evidence in court for the last century as absolute evidence?
The term ‘opinion testimony’ in a court of law is applied to any testimony given by an ‘expert’. The other type of testimony, called ‘fact testimony’, is that testimony given by eyewitnesses or other lay persons with personal knowledge of the case. That an expert witness gives his ‘opinion’ in court relies on a different meaning of the word ‘opinion’ than that used in normal conversation. Different people may have different opinions outside of court on politics or religion or th
e colour of one’s socks, and that is perfectly allowable. But if two [fingerprint] scientists present different ‘opinions’ in court, one is correct and the other is quite simply wrong. For example, if an expert mathematician were to testify in court that two plus two equal five, that testimony legally would be considered ‘opinion testimony’, but it would still be wrong. Likewise, to say that this case represents a simple difference of ‘opinion’ is equally wrong.
Independent experts brought in from northern Europe to reexamine the case have completely agreed. The mark from the scene of Marion Ross’s bathroom door frame not only was not left by Shirley McKie, these independent experts have confirmed that the error is so serious in nature as to preclude the possibility of honest mistake by competent, cautious experts.
The mark on the sweets tin, which was identified as having been made by Marion Ross, is likewise too gross an error to dismiss as a ‘mistake’ or a ‘difference of opinion’. Indeed, in evidence, a photograph of the mark was found that was sharply in focus and quite clear in all minute details. However, the photograph selected for court charting was one that was taken out of focus. The mark is just as clearly not that of Marion Ross as the other was not that of Shirley McKie. In fact, in the SCRO’s charted enlargements of the mark on the sweets tin, point number seven in the chart of the mark designates a horizontal ridge on an adjacent mark, not even part of the mark in question. In comparison, point number seven in the inked print of Marion Ross designates a vertical ridge in Marion Ross’s print. Quite obviously, a vertical ridge in the print absolutely cannot equate to a horizontal ridge in the mark.
Regarding the mark erroneously attributed to Shirley McKie, a careless fingerprint officer may have made a snap judgment in honest, though inexcusable error, based on only the five points mentioned as actually charted. But no true expert could have prepared those erroneous charts without being aware of the fallacy. Likewise, only an inexperienced or terribly careless fingerprint officer could have make the identification of the mark on the sweets tin to Marion Ross, but no true expert could have prepared those erroneous charts without being aware of the error.
The transparency of the errors in this case preclude the possibility of honest error on the part of competent, cautious fingerprint experts. One of those factors – honesty, competency or caution – is clearly missing from both of these cases. While that may be my ‘opinion’ in the legal sense, in the scientific sense, it is fact.
Web Index
A comprehensive and fully referenced index to this book and copies of all documents referred to can be found online at www.shirleymckie.com.
List of Illustrations
1. Marion Ross’s bungalow in Irvine Road, Kilmarnock, where she was found murdered on the evening of 8 January 1997
2. Shirley McKie (fourth from left in front row) at her detective training course at the Scottish Police College, Tulliallan
3. Deputy Chief Constable David Mulhern, who was appointed interim chief executive of the new Scottish Police Services Authority in September 2005 and was confirmed in the post in December 2006 (Scotsman Publications Ltd)
4. Allan Bayle and Pat Wertheim giving evidence at the parliamentary inquiry (Scotsman Publications Ltd)
5. Iain McKie and Dr Jim Swire holding a press conference in Edinburgh in March 2006 (Scotsman Publications Ltd)
6. Shirley, her brother Stuart, Iain and Iain’s wife Mairi leaving the High Court in Edinburgh after the settlement, 7 February 2006 (Scotsman Publications Ltd)
7. Pauline McNeill, the Labour MSP for Glasgow Kelvin and convener of the Parliament’s Justice 1 Committee, which undertook the parliamentary inquiry into the Scottish Criminal Record Office (Scotsman Publications Ltd)
8. Shirley as pictured in the BBC’s Frontline Scotland programme (Scotsman Publications Ltd)
9. The extended McKie family. Shirley’s mother, Nancy, is at the centre of the picture.
10. Michael Russell, Alex Neil MSP and Shirley at the post-settlement press conference in the Scottish Parliament held on 8 February 2006 (Scotsman Publications Ltd)
11. The four SCRO experts – Charles Stewart, Hugh Macpherson, Fiona McBride and Anthony McKenna – pictured during a break from the parliamentary inquiry. McKenna did not give evidence at Shirley’s trial. (Image courtesy of The Herald & Evening Times Picture Archive)
12. Arie Zeelenberg (behind) and Peter Swann (in front) at the parliamentary inquiry. Swann is holding one of the boards he used to demonstrate his theories to the inquiry. (Scotsman Publications Ltd)
13. From top to bottom: The Lord Advocate Colin Boyd QC, Justice Minister Cathy Jamieson MSP, First Minister Jack McConnell MSP and Deputy First Minister Nicol Stephen MSP (who took over from Jim Wallace MSP in June 2005) pictured in their places in the Scottish Parliament during statements about the settlement and the SCRO given by the justice minister and the lord advocate on 17 February 2006. (Image courtesy of The Herald & Evening Times Picture Archive)
14. The fingerprint (Y7) found at the murder scene and wrongly identified as Shirley’s left thumbprint.
15. Shirley’s actual thumbprint.
16. Marion Ross (Sunday Mail)
17. Shirley McKie in late 2006
1. Marion Ross’s bungalow in Irvine Road, Kilmarnock, where she was found murdered on the evening of 8 January 1997
2. Shirley McKie (fourth from left in front row) at her detective training course at the Scottish Police College, Tulliallan
3. Deputy Chief Constable David Mulhern, who was appointed interim chief executive of the new Scottish Police Services Authority in September 2005 and was confirmed in the post in December 2006 (Scotsman Publications Ltd)
4. Allan Bayle and Pat Wertheim giving evidence at the parliamentary inquiry (Scotsman Publications Ltd)
5. Iain McKie and Dr Jim Swire holding a press conference in Edinburgh in March 2006 (Scotsman Publications Ltd)
6. Shirley, her brother Stuart, Iain and Iain’s wife Mairi leaving the High Court in Edinburgh after the settlement, 7 February 2006 (Scotsman Publications Ltd)
7. Pauline McNeill, the Labour MSP for Glasgow Kelvin and convener of the Parliament’s Justice 1 Committee, which undertook the parliamentary inquiry into the Scottish Criminal Record Office (Scotsman Publications Ltd)
8. Shirley as pictured in the BBC’s Frontline Scotland programme (Scotsman Publications Ltd)
9. The extended McKie family. Shirley’s mother, Nancy, is at the centre of the picture.
10. Michael Russell, Alex Neil MSP and Shirley at the post-settlement press conference in the Scottish Parliament held on 8 February 2006 (Scotsman Publications Ltd)
11. The four SCRO experts – Charles Stewart, Hugh Macpherson, Fiona McBride and Anthony McKenna – pictured during a break from the parliamentary inquiry. McKenna did not give evidence at Shirley’s trial. (Image courtesy of The Herald & Evening Times Picture Archive)
12. Arie Zeelenberg (behind) and Peter Swann (in front) at the parliamentary inquiry. Swann is holding one of the boards he used to demonstrate his theories to the inquiry. (Scotsman Publications Ltd)
13. From top to bottom: The Lord Advocate Colin Boyd QC, Justice Minister Cathy Jamieson MSP, First Minister Jack McConnell MSP and Deputy First Minister Nicol Stephen MSP (who took over from Jim Wallace MSP in June 2005) pictured in their places in the Scottish Parliament during statements about the settlement and the SCRO given by the justice minister and the lord advocate on 17 February 2006. (Image courtesy of The Herald & Evening Times Picture Archive)
14. The fingerprint (Y7) found at the murder scene and wrongly identified as Shirley’s left thumbprint.
15. Shirley’s actual thumbprint.
16. Marion Ross (Sunday Mail)
17. Shirley McKie in late 2006
>