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Expert witness ‘tailored’ DNA analysis, Privy Council told

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Julian Washington

A forensics expert who gave evidence for the prosecution in numerous criminal trials in Bermuda was not impartial and used “suspect-centric, circular reasoning” when analysing DNA samples in a murder case, a court heard yesterday.

The Privy Council in London was told that Candy Zuleger, of now-defunct Trinity DNA Solutions in Florida, had “basically tailored her statistical analysis to the suspect” in the case against Julian Washington, who went on to be convicted of the 2012 gun murder of Stefan Burgess.

Barrister Amanda Clift-Matthews, for Mr Washington, made the claims after describing how Ms Zuleger swabbed four bullet casings found at the murder scene and created a “composite” DNA sample from them.

Ms Clift-Matthews shared technical details on how the analysis of that sample was flawed and said that Trinity lacked the necessary protocols to conduct the analysis, rendering the evidence Ms Zuleger gave at Mr Washington’s Supreme Court trial “meaningless” and without scientific basis.

Ms Zuleger told the trial jury that there was a 1-in-46 million chance that the defendant was not a possible contributor to the DNA found on the casings.

However, Ms Clift-Matthews said the DNA evidence was inconclusive and should have been discounted.

She added that Ms Zuleger’s report failed to indicate that there was any ambiguity about the results or flag up the “fact that the DNA was a complex sample”.

The barrister said there was “nothing on the face of the report to alert counsel on either side that it wasn’t a perfectly valid and scientifically sound report” and the flaws were only discovered after being "unpicked by an expert at this level of proceedings“.

Mr Washington, 34, was jailed for life for 24-year-old Mr Burgess’s murder almost a decade ago, but he was released from prison last month after the Director of Public Prosecutions accepted that there was a “miscarriage of justice” in his case.

He had lost an appeal against conviction at the Court of Appeal but took the matter to Bermuda’s highest court of appeal, in Britain, with the help of the Death Penalty Project charity.

Although the Director of Public Prosecutions accepted that the DNA evidence at his trial was flawed and Mr Washington is no longer in prison, the plaintiff requested yesterday’s hearing before a board of five Privy Council judges to enable there to be a written judgment in the case.

Ms Clift-Matthews told the court that there could be an “issue” with expert evidence given in criminal trials in Bermuda because expert witnesses do not have to make a declaration of impartiality.

“In Bermuda, you do not have the equivalent of the [British] Criminal Procedure Rules, which set out the duties of an expert witness,” she explained.

“You do not have the equivalent of the CPS [Crown Prosecution Service] guidance for expert witnesses which, again, sets it out very clearly what the duties of the expert witness are.”

She said experts in criminal trials in the United States had only a duty to their client and, although they had to tell the truth“, … you’d be surprised at how close to the wind some actually sail”.

Cindy Clarke, the Director of Public Prosecutions, told The Royal Gazette: “We do not accept that [there] is any issue with the use of expert witnesses in Bermuda criminal cases.”

She said the board was directed to the earlier Privy Council case of Myers, Cox and Brangman, which dealt with the “reception of expert evidence in Bermuda”.

As well as the murder conviction, Mr Washington was found guilty of the attempted murder of Davano Jahkai Brimmer, using a firearm to commit an indictable offence, and handling ammunition.

He always maintained his innocence and Ms Clift-Matthews noted that he had an alibi and a witness to support his alibi.

Ms Zuleger was given a contract worth almost $1 million in 2009 by the Bermuda Police Service to set up a DNA database and gave evidence at numerous criminal trials on the island until 2016.

Ms Clarke has said a review of 400 cases was launched in light of Mr Washington’s appeal.

Tom Poole, KC, for the Crown, told yesterday’s hearing that the review was continuing and was expected to conclude by the end of July.

He said if it was identified that there were “many more cases” in which there was flawed DNA evidence, they would become the “primary focus” of an inquiry into whether any resulting convictions were unsafe.

Cases where defendants were still in prison would be prioritised, Mr Poole added.

The Department of Public Prosecutions initially opposed having a written ruling, but changed its position last Friday.

Ms Clarke said: “We remain of the view that an oral hearing in this matter could have been avoided.”

She added that it was decided not to object if the board felt it appropriate to give a written opinion but added: “In short, we did not think it necessary for the board to give reasons in circumstances where the appeal had been disposed of by consent and where there are additional cost implications involved.”

The board will deliver its written ruling at a later date.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers

UPDATE: this article has been updated to include video footage of the Privy Council hearing