MORE CROOKED FORENSIC "SCIENCE": SCIENTIST DISMISSED BUT INNOCENT MAN STILL IN JAIL

On April 12, 2005, this case was referred by the Governor of Queensland to the Queensland Court of Appeal but the court has not yet even SET A DATE to hear the matter! An innocent man sits in jail because a bureaucracy cannot get its act together. Polite emails to Peter Beattie, the Premier of Queensland, might help justice to get moved along in this extraordinary matter

The senior scientist of Queensland's John Tonge Centre forensic laboratory has reportedly been forced to resign this week over his dishonest and incompetent analysis of evidence in the cold case investigation of the murder of Natasha Douty on Brampton Island in 1983. Professor Leo Freney had previously described the case as his 'most memorable and satisfying', but his failure to follow accreditted procedures and refusal to acknowledge the possible mislabelling of one of the 14 year old forensic samples he analysed almost certainly led to the 1997 wrongful conviction of Sydney businessman, Wayne Butler.

From the start, the case was full of the sort of irregularities that makes the criminal justice system of the Sunshine State a national laughing stock - unless you happen to be one of its victims. Freney's DNA testing of stains on Ms Douty's beach towel was contradicted by ABO testing performed during the 1983 inquest. Mr Butler's DNA was not detected in earlier testing, with Freney obtaining his matches only *after* Butler had submitted a blood sample for comparison .

During the trial, Dr Bruce Budowle of the FBI was retained as an 'independent' consultant on DNA testing. Although this was to be the first Australian murder case to employ the ABI 'Profiler Plus' test kit, Budowle did not disclose that he was a co-developer of the kit and retained a major financial stake in it. Budowle is also responsible for the FBI policy of reporting DNA matches of likelihood ratio less than 5 billion to one as 'unique' - a policy considered scientifically unjustifiable by population geneticists.

But it was the recent re-examination of Freney's lab notes by Professor Barry Boettcher that revealed the extent of the deceit and errors that resulted in Butler's conviction. Not only had Freney employed unreliable PCR reamplification methods on previously amplified samples - a method not accredited by NATA or admitted in Victorian courts due to significantly increased contamination risk - he also failed to confirm the accuracy of sample tube labelling, in spite of results that strongly suggested that the PCR amplicons of one of Butler's blood samples had been incorrectly labelled as coming from a semen stain on Douty's towel. It was this sample that provided the evidence that convicted Butler.

Freney has been senior scientist at Queensland's John Tonge Centre through a decade of controversy, dishonesty and incompetence. This includes the wrongful conviction of Frank Button for child rape, the wrongful arrest of Joy Thomas for extortion, the failure of NATA accreditation testing in five key areas (including sample labelling), the abuse of donated bodies by JTC technicians and a 2002 walkout by forensic scientists who complained of major deficiencies in management, integrity and funding.

Innocent people currently in Queensland prisons due to the false evidence of JTC experts include Wayne Butler (murder), Patricia Byers (murder), Marc Renton (armed robbery) and Brett Griffiths (armed robbery).

Freney's resignation is believe to have been prompted by an upcoming Patrick Carlyon article in the Bulletin which exposes his failures in the Butler case. Below is a 2002 "Courier-Mail" article which also raised questions about the case.

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Blinded by science

Of hundreds of criminal cases involving forensic evidence and DNA, Leo Freney nominates the brutal Brampton Island murder of a woman in 1983 as his most memorable and satisfying. ``Butler was the best. It's the oldest murder solved. I knew I had solved it in 1997,'' Freney, a forensic scientist who heads the John Tonge Centre, told The Courier-Mail this week. Perhaps mindful of a perception of bias -- of being accused of seeing himself as a triumphant police detective instead of ``a man in a white coat working in a laboratory, approaching his task with cold neutrality, and dedicated only to the pursuit of scientific truth'' -- he immediately qualified his reply. ``That means, I thought I had solved it in 1997.''

As an expert witness in the trial of Wayne Edward Butler, a Sydney businessman accused of murdering Natasha Douty at Brampton's idyllic Dinghy Bay, Freney's testimony was crucial for the prosecution. If the jurors believed him and trusted nothing went seriously wrong in his forensic laboratory, the centrepiece of the Queensland Government-run John Tonge Centre, Butler would go down.

The body of Douty, a resort worker, was found near where she had gone to sunbathe one sunny September day in 1983. Her head had been severely bashed. A towel, stained by semen, covered her body.

The trial last April went for 11 days. At 11.04am, the jury retired to consider a verdict. They filed back into court in precisely 119 minutes. Some of the police in court had a horrible feeling the jurors returned so quickly because they wanted an acquittal. But when asked by Judge Helman, the foreman said: ``Guilty''. The defence was floored. Butler declared: ``I maintain my innocence, your honour.''

The record shows it was yet another spectacular victory for DNA. There had been no witnesses to the crime. No confessions. No persuasive evidence, apart from the deadly silver bullet: nanograms of DNA, Butler's DNA, matched by Freney in 1997 to the semen on the towel, leading to a conviction 18 years after the crime. It was only a decade or so ago that crime-scene underpants were, literally, sniffed by scientists to see if they had been worn or were fresh. Knicker-sniffing is no longer de rigueur in the lab.

This is the era of extraordinary advances in the profiling of DNA, which is revolutionising forensic science and the criminal justice system. The microscopic specks of our unique genetic make-up provide breathtaking opportunities to convict the guilty and exonerate the innocent. Now, molecules can be amplified a staggering 20 million times so that the fridge-door handle you momentarily touched last night would show your DNA profile.

The way the good news about DNA miracles is packaged, the average person might never doubt the evidence. When jurors are told, as they were by Freney in the Butler trial, that the chances of someone else having a matching DNA profile were 43,000 billion to one -- more than all the people presently alive, all who ever lived and all who may live thousands of years hence -- it is all over.

But what of the potential for junk forensic science to wreak havoc with justice? A simple human error behind closed doors in the lab would condemn an innocent person. All it would take in a laboratory with sloppy protocols is the unwitting transfer of less than half a nanogram of a suspect's DNA into material from the crime scene.

With nationwide laws granting the compulsory extraction of DNA samples from prisoners for matching with the crime-scene, the potential for human error rises in overworked, understaffed laboratories. In Queensland, police have helped take samples from more than 3600 inmates in the past 16 months and expect to have done all present inmates by June.

Dr Brian McDonald, PhD, a Sydney-based molecular geneticist who used to run his own DNA-testing lab, now studies the DNA results of former colleagues and gives expert evidence in criminal trials. His knowledge of DNA profiling and the mistakes -- and of the fuzzy lines that are meant to separate scientists from bias -- have made him sceptical about the so-called infallibility of a bold new forensic era. According to McDonald, human errors in the lab are inevitable. They are happening but you will rarely hear about it. The errors may never be obvious, even to the testing scientists. ``The implication of the mistake can be catastrophic for an accused individual,'' he says. McDonald says that deliberate contamination would, in most cases, be impossible to detect. ``The other major area for deliberate contamination is outside the lab prior to samples being received. The awareness that a person's DNA is relatively easy to obtain without their knowledge is becoming widespread. ``It would be my hope that everyone keeps a clear mind and doesn't jump from first, `whose DNA is it?' to `it must be them'. ''

McDonald also believes a pro-prosecution bias exists in sections of the forensic community. ``A large component of it is unwitting and is fuelled by the desire to `make sure the guilty person doesn't get away', '' he says. ``Am I concerned evidence is too readily accepted? ``Yes, I am and it is understandable that scientists and politicians laud the benefits and advances in the technology without necessarily addressing shortcomings.'' ....

At the John Tonge Centre, the air of infallibility over DNA profiling is pervasive. ``The only pothole is human error and I'm saying that would be very unlikely,'' says Freney. ``We have rigorous ways of checking and, to tell the truth, it would be very difficult for (a mistake) to get through the system, given our checks and balances.'' Freney lists a host of internal and external safeguards, including peer review, the highest-possible accreditation with Australia's foremost standards body and random controls which, he says, make mistakes near-impossible. He is himself an assessor of other laboratories; he knows, he says, what to look out for.....

The halo over the John Tonge Centre was given a nudge last year after the Court of Appeal's Justice Williams described a ``black day in the history of the administration of criminal justice in Queensland''. Frank Button had been convicted of raping a teenage girl on an Aboriginal settlement and jailed. His lawyers, months later, urged John Tonge's technicians to do more tests on evidence, including vaginal swabs and the girl's bedsheet.

The swabs had been repeatedly tested previously, but yielded nothing. On retesting, they yielded DNA that did not belong to Button. The sheets, which had never been tested despite being handed to the centre, also yielded DNA, identical to that from the retested vaginal swabs. The sheet was the one material which the girl and the rapist lay on together. If the John Tonge Centre originally had tested the sheet, it would have produced DNA from someone other than Button. In that event it is unlikely the prosecution of Button, whose conviction was quashed, would even have proceeded.

Freney, however, insists it was ``absolutely correct'' not to test the sheets in the first instance. ``We have to make a decision. If we tested everything, we would never finish. Scientifically, the sheet meant zilch and it still does, in the circumstances,'' he says. Not according to the Court of Appeal, which ruled ``it was the subsequent testing of staining on the sheets which gave the scientists their breakthrough . . . ''

Before the jurors had sealed Wayne Butler's fate for the murder of Natasha Douty in 1983, they heard reams of technical evidence. Back in the early '80s, DNA profiling had not been invented. So Freney, in 1983, tested the semen stains on the towel in the Douty case using the prevailing technology to determine blood groups. The result should have excluded Butler -- his was a completely different type -- but five years later when this became obvious, Freney told police for the first time that he did not believe his initial test was reliable.

Butler's lawyers tried to persuade the jury that blood from the sample Butler volunteered had been deliberately or mistakenly mixed with the semen, ``swamping it and thus giving a false match''. Judge Helman told the jurors if they had a reasonable doubt about the DNA, ``you must find the accused not guilty.'' During the trial, Freney was uncomfortably escorted through a litany of the laboratory's shortcomings, mistakes and gross errors as discovered and criticised by NATA in late 1998. Unsealed evidence, poorly documented case records, unrestricted access to exhibits, unacceptable labelling of reference bloods, potentially contaminating specimens in the refrigerator, it read like a serious indictment of the lab.

Comment from a reader of the above:

Wayne Butler is blood group 'B'. Mr Freney obtained an 'O' group status for the perpetrator of the Brampton Island Murder on no less than three seperate occasions, perhaps more, months apart. In all, at least five positive results for blood group 'O' were obtained. Mr Freney, however, admitted to only one (repeated) test on one date at Mr Butler's 2001 trial. Did Mr Freney perjure himself? I believe he will have to be accountable for that and more, very soon.

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