Scientist in Mark Lundy trial obtained research brain against the rules

by Mike White / 11 June, 2018

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Mark Lundy.

Mark Lundy. Photo / Mike White

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Further concerns have been raised about scientific testing that led to the conviction of Mark Lundy for murdering his wife and daughter.

An article in an American magazine has exposed how brain material used by a crucial Crown witness in Texas was obtained in violation of strict regulations about how such body parts should be handled.

Moreover, a leading American forensic pathologist has labelled the testing that was central to Lundy’s conviction as “crazy”, “ridiculous” and “bullshit”.

Mark Lundy was convicted of killing his wife, Christine, and seven-year-old daughter, Amber, in their Palmerston North home in 2000. The highly controversial case against Lundy was largely based on two minute specks found on his shirt, which police argued were from his wife’s brain.

To ascertain this, they took the shirt samples to Texas, where pathologist Dr Rodney Miller, a director of Dallas laboratory ProPath, claimed he could determine what the material on the shirt was. He used a diagnostic technique called immunohistochemistry (IHC) on the samples and pronounced the specks were brain or central nervous system tissue.

IHC had never been used forensically before, Miller wasn’t a forensic pathologist, nor did he work in a forensic laboratory. And given it had been months after the murders that Lundy’s shirt was tested, it was argued the material on it would have been too degraded to provide accurate results. But the jury found Lundy guilty and he was ultimately sentenced to life in prison with a minimum non-parole period of 20 years.

However, Miller’s techniques and findings were strongly challenged at the Privy Council in 2013, with Lundy’s conviction eventually being overturned and a new trial scheduled.

Mystery over brain used in test solved

In the lead-up to Lundy’s retrial in 2015, Miller sought to prove his original analysis from 2001, by smearing brain tissue on fabric, leaving it for several months, and conducting IHC tests to prove the brain could be detected. These new tests appeared to support his original conclusions.

However, exactly where the brain for his new testing came from has always been cloaked in mystery. In a just-released article in Dallas’s D Magazine, by journalist Jessica Pishko, the brain is shown to have come from an 85-year-old woman named Sue who donated her body to the University of Texas Southwestern Medical Center, as part of their Willed Body Program. The large medical centre says such bodies are used for “the training of medical personnel and the advancement of medical science through education and research.”

In January 2015, Miller contacted a friend, Dr Ruth Ann Word, a professor of obstetrics and gynaecology at the medical centre, regarding his need for brain tissue. Word told Miller she had access to corpses through the Willed Body Program, and delivered the brain of Sue, donor number 64039, to him in a plastic bucket. There was no documentation with it, nothing to certify whose brain it was or when it had been removed, and nothing that officially verified its movements.

After Lundy was convicted again at his retrial, inquiries by Dallas attorney Mike Ware discovered the brain had been given to Miller without permission. An internal investigation found Word’s actions violated both the medical centre’s protocols and State regulations. Miller has not been accused of any wrongdoing. 

It appears Word obtained the brain via a University of Texas Southwestern Medical Center researcher, Dr Marlene Corton, who wanted other samples from the corpse. The brain ended up with Word, who took it to Miller, and part of the spine was sold to the University of Toledo for $800 minus a bulk discount, according to Pishko.

Following the investigation, Corton had her rights to use tissue or specimens free of charge from the body donation programme, removed.

“Had we known the brain tissue was being taken off campus, we would have handled it accordingly and had proper documentation of all specimens as required by the State Anatomical Board,” Corton was advised by the Willed Body Program’s manager.

Where did donor 64039's brain go?

However, much still remains unknown about what happened with the brain. Word, Corton, Miller, and the Texas State Anatomical Board did not comment for Pishko’s story. The University of Texas Southwestern Medical Center only said that actions have been taken “to ensure similar transfers will not occur in the future”.

It also remains unclear what happened to the brain after Miller concluded his tests. In evidence at Lundy’s trial, Miller said he only used tissue the size of a grain of rice. Whether the remainder of the brain was returned to the medical centre, cremated or thrown away is unknown because no documentation, if there was any, has been released.

Miller has defiantly stood by his testing in the face of criticism and claims of contamination at his laboratory, despite accepting he is not a forensic pathologist, and previously admitted he knew “squat” about ISO standards for accredited forensic laboratories.

His crucial role in the case was made clear when the New Zealand police presented him with the District Commander’s Commendation award in 2016, with the acknowledgement: “Dr Miller’s evidence was the vital component in the successful prosecution and conviction of Mark Lundy.”

Brain tests "crazy"

Miller has always insisted it wasn’t necessary to be a forensic pathologist because the IHC tests were straightforward, and the results were clear that the specks were brain tissue. “The findings are so obvious that I would consider error rates not to be an issue with this specimen,” he told a High Court pre-trial hearing in 2014.

However, an expert approached by Pishko for her story, Brain in a Bucket, has reacted with astonishment that such tests were used forensically, and resulted in a man’s conviction.

“This is crazy,” Dr Bennet Omalu, a forensic pathologist, neuropathologist and professor of medical pathology at the University of California, Davis, wrote to Pishko. “This is simply ridiculous…If this was the only evidence that linked him to the crime, then this is a travesty of justice. Simply unbelievable.”

Omalu is best known for his work on the effects of head injuries on sportspeople. The story of his findings was made into a book and also the 2015 movie Concussion.

Pishko details how Omalu followed up with several other emails, including one that simply read: “IT IS BULLSHIT.” 

Lundy supporter: Why was IHC test allowed?

Mark Lundy supporter Geoff Levick says the revelations about the brain Miller used to provide evidence for Lundy’s retrial, simply raise more questions about the scientific testing that underpins the Crown case against Lundy.

“But the main question is, why on earth did our court, alone in the world, first and last, allow immunohistochemistry in the courtroom.”

Levick says the technique has never been used forensically again, and IHC is not listed in any major international review of forensic science because, “it is very, very, very subjective; very, very, very variable; and it’s never conclusive.”

Mark Lundy appealed his conviction in October 2017. The admissibility and validity of further novel scientific testing done on the two specks on his shirt in the Netherlands was a central argument of his appeal. The Court of Appeal is yet to release its decision.   

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