Australian lawyer gives new hope to Burmese men convicted of the Koh Tao murders

[rooster59]

Australian lawyer gives new hope to Burmese men convicted of the Koh Tao murders

An Australian Lawyer has shed a glimmer of hope into the otherwise dismal lives of the two Burmese men awaiting execution on death row in Thailand’s notorious prison, Bangkwang, AKA the Bangkok Hilton.

Zaw Lin, 22 and Wai Phyo, 22, were handed down the death penalty on Christmas Eve 2015 for the murders of Hannah Witheridge and David Miller in September 2014, crimes the two men say they did not commit. The two men have many supporters around the world who continue to campaign to prove their innocence and regularly post on social media, however one man, Ian Yarwood has taken one step further by penning and open complaint letter to Khun Suthon Vongsheree the Director of The Bureau of Laboratory Quality Standards, Department of Medical Sciences, Ministry of Public Health Thailand.

The letter, which follows. highlights the issues surrounding the DNA testing that the chief judge in the case said he solely based his guilty verdict on and asks for an investigation into the handling of the DNA that was the centre of the verdict and sentence.

This complaint is a very serious matter as it not only affects the defendants in this case but also casts real doubt upon the operations of the Accredited Laboratory and its ability to conduct DNA analysis and interpret DNA profiles in criminal trials in Thailand.

it reads as follows

Dear Khun Suthon Vongsheree

PUBLIC PROSECUTOR OF KOH SAMUI PROVINCE v ZAW LIN & WAI PHYO – BLACK NUMBER CASE 2040 /2557

INTERNATIONAL LABORATORY ACCREDITATION COOPERATION (“ILAC”) – ISO 17025

ACCREDITED LABORATORY THE SUBJECT OF THIS COMPLAINT:

SUB-DIVISION OF BIOCHEMISTRY INSTITUTE OF FORENSIC MEDICINE POLICE GENERAL HOSPITAL (“Accredited Laboratory”)

I refer to my initial facsimile letter and email dated 13 January 2016 and our subsequent exchange of emails on various dates in May 2016.

I confirm that I understand that the Bureau of Laboratory Quality Standards (“BLQS”) granted accreditation to the Accredited Laboratory.

I note that BLQS is a signatory to Mutual Recognition Arrangements (“MRAs”) with both ILAC and Asia Pacific Laboratory Accreditation Cooperation Inc (“APLAC”), which MRAs provide inter alia that BLQS is to have a complaints procedure.

I confirm that it took 132 days for you to reply to my initial email and that you did so only after Mr Michael Fraser, APLAC Secretary wrote to you twice at my request. In the circumstances, I have taken the liberty of sending a copy of this current email to

Mr Fraser. I also request that you provide me with an acknowledgment at your earliest convenience confirming receipt of this email. I understand that it might take some time to conduct an investigation but, with respect, an acknowledgment of receipt should not take 132 days.

I note that the reason you provided for your delayed response was that I wrote to the BLQS general email address rather than to your direct email address. With respect, I do not find this reason very satisfactory but I will send this email to both the BLQS general email address and to your direct email address.

I note from one of your emails that you stated that you do not know who I am. I advise that I happen to be an Australian legal practitioner and an Australian citizen who was born in South East Asia and who has spent a considerable amount of time traveling in South East Asia in general and in Thailand in particular. I am not a Thai lawyer and I do not “act” for the two Burmese defendants, Zaw Lin and Wai Phyo in my position as a legal practitioner. The last sentence has a specific meaning for the Legal Practice Board of Western Australia. The defendants are not my clients but I used my letterhead in my first letter for your ease of reference.

I advise that I do have express oral authority from the defendants to write this notice of complaint, which authority I obtained via some of their prison visitors. Mr Fraser kindly advised me that oral authority is sufficient. As you can imagine it is impossible for the defendants to communicate with me via emails or facsimile machines. Mail to and from the prison is also censored. In the circumstances, I do not have authority evidenced in writing.

I advise that, to the best of my knowledge, some of the Thai lawyers who represented the defendants in their trial and in their appeal are in the process of preparing a separate letter of complaint. I do not know how long it will take the Thai lawyers to complete that task or whether they will ever complete the task so in the meantime it seemed appropriate for me to send this notice of complaint given that the defendants have been languishing in prison for more than 600 days now.

Please note that any complaint from the Thai lawyers is likely to be more comprehensive than this notice of complaint as I do not have and I am not permitted to have: copies of any documents filed as evidence in court; and a copy of the so-called “transcript” from the court. I expect that the Thai lawyers will be providing copies of these documents and transcripts to you. However, I trust you will agree that you should be able to conduct an investigation without this supporting material especially as you should be able to obtain copies of the Accredited Laboratory’s documents from the Accredited Laboratory itself.

It is worth noting that there is no verbatim transcript of the proceedings in Thai courts, unlike in most Western courts. It appeared that the secretaries of both ILAC and APLAC were unaware of this until I brought it to the attention of Mr Fraser in May 2016. The “transcripts” produced by Thai courts consist of what the relevant judge records as a mere paraphrase of the answers of witnesses and without the important context of the questions that the witnesses were answering. In the circumstances, one can easily appreciate that such a transcript has very limited use for your investigation or for any possible further investigation that APLAC might wish to conduct.

The most important document that the prosecution produced to the court was a “DNA table” which according to the prosecutor demonstrated matches between DNA found on the female victim and the DNA of the defendants. I do not have that table and I have not sighted the table. However, I advise that I did discuss the table with the Melbourne DNA expert Jane Taupin who was at court in September 2015 but who was never called to give evidence – a serious mistake by the defence lawyers. Jane Taupin told me that she was shown the table by the defence lawyers but that in her expert opinion she considered that the table was quite meaningless.

I have been advised by Jane Taupin and others that the documents produced by the Accredited Laboratory for this trial lacked any stamps from a relevant Accreditation Body (ie BLQS). I have been advised by the Secretary of ILAC, Ms Jennifer Evans that as such they are referred to as “Unendorsed Reports”, which might or might not have been produced under the auspices of the ISO 17025 accreditation.

NOW TAKE NOTICE THAT this notice together with my email/letter of 13 January 2016 serve as a formal complaint to BLQS regarding the procedures of the Accredited Laboratory.

The defendants in this case were found guilty of murder by the Koh Samui Court on the 24th December 2015 and sentenced to death. The basis of their conviction depended on key DNA evidence and the interpretation and conclusions resulting from analysis conducted by the Accredited Laboratory. The defendants complain the procedures carried out and the interpretations reached were completely flawed in that they did not comply with international standards for DNA analysis as prescribed pursuant to ISO 17025, BLQS Supplementary Guidelines and other standards prescribed for both analysis and conclusions such as SWGDAM Guidelines, ILAC Guide 19 and the International Society for Forensic Genetics.

PARTICULARS

* No original mixed semen samples were ever made available to the defence for independent examination. The police and prosecutor only ever made “amplified” DNA evidence available to the defence but without the original samples one could not be sure of the original source. Only 5 microlitres of the original mixed semen would have been necessary for the test so there was no valid reason that none was made available to the defence lawyers.

* No case file notes were provided (ISO 17025:2005 reference 4.13.2; ILAC Guide 19 section 3.5 Records; BLQS Supplementary Guidelines)

* No chain of custody of the forensic samples was ever proved by the prosecution, which meant the prospect of contamination, substitution, change of condition and misidentification could not be excluded.

* Records were not produced to allow another scientist to reach the same conclusion from the data (ISO 17025: 2005 reference 4.13.2; SWGDAM 2010; ILAC Guide 19 section 3.5)

* Standard operating procedures were not provided (SWGDAM 2010; ILAC Guide 19)

* Validated statistical methods were not provided (SWGDAM 2010; ISFG 2012)

* Statistical methods were not used at all; neither the likelihood ratio or RMNE or any other method (ISFG, 2006; SWGDAM, 2010)

* Statistical weight for inclusions not provided (SWGDAM 2010, section 4.1)

* Neither technical nor administrative reviews provided (SWGDAM 2010)

* Analytical thresholds for DNA profiles not provided (SWGDAM 2010)

* Types of DNA mixtures not described – resolvable (major and minor contributors) or unresolvable (ISFG 2006; SWGDAM, 2010)

* Assumptions of numbers of contributors not described (ISFG 2006; SWGDAM, 2010)

* Low level DNA not described (ISFG, 2006 and 2012)

* Assumption of ‘drop out’ not described (ISFG, 2006 and 2012)

* Description of artefacts not provided (ISFG, 2006 and 2012)

* No statistical databases provided (SWGDAM 2010 section 4.5)

* Saliva not identified from female deceased (ILAC Guide 19 Sections 4.8 and 4.9)

* Accreditation status of the Accredited Laboratory was not documented or noted on provided documents (ILAC Guide 19 Section 4.9)

* The Accredited Laboratory in its evidence and lack of supporting documentation, has incorrectly interpreted the comparison of reference samples with medical samples. It did not conduct any statistical analysis in reaching its conclusions and thus breached all accepted International DNA testing protocols.

Furthermore, the Unendorsed Report provided to the court by the Accredited Laboratory consisted of a one page table replete with date changes, alterations, crossings out and devoid of any accreditation stamps, clearly in contravention of the standards provided in ISO 17025.

Further, the Accredited Laboratory conducted a comparison of reference samples to medical samples from the female deceased, and reached a conclusion of a match despite there being no data regarding the match nor provision of an explanation as to what criteria it relied upon to reach such a conclusion. The interpretation of DNA profiles is based on an assumption of the number of contributors (which is never assured) and the statistical probability of the frequency of each allele and its permutations and combinations. Also if low level, there should be estimates of ‘drop out’ probability. This is a far more complex issue than simply ‘matching’ alleles in reference samples and crime scene samples which appears to be what has happened in this matter, contrary to all International DNA testing protocols.

As an example of the incorrect interpretation of the DNA profiles, from the DNA table produced for the analysis of the medical samples, where there are 2 contributors to the ‘anal’ swab, at vWA there is an ’18’ allele, which neither defendant could have contributed. So either one or both of the defendants would be excluded according to any international guidelines. There is a possible ’18’ at vWA for the vaginal sample, but it is not designated – for whatever reason. This may/may not have been considered to be an artefact, however without case notes it cannot be determined

Moreover, the Scientific Crime Detection Division Royal Thai Police laboratory (a second police laboratory) conducted the analysis of the reference samples from the defendants as well as that of 3 cigarette butts alleged to connect the defendants to the female deceased. This laboratory is not accredited by BLQS yet the Accredited Laboratory used data from the latter to compare with the medical samples from the female deceased.

Finally, it should be noted that the entire analysis of the medical samples from the female deceased was completed in less than 12 hours. Such a time frame is unrealistic if the relevant ISO 17025 and ILAC standards have been complied with.

This complaint is a very serious matter as it not only affects the defendants in this case but also casts real doubt upon the operations of the Accredited Laboratory and its ability to conduct DNA analysis and interpret DNA profiles in criminal trials in Thailand.

Further, could you please advise whether or not the Accredited Laboratory conducted its testing in this matter under the auspices of its accreditation by BLQS given that the DNA table produced by the Accredited Laboratory was an Unendorsed Report. Could you also please advise whether you think it appropriate for the Accredited Laboratory to produce Unendorsed Reports as evidence in trials of murder and rape.

To that end, the defendants in this matter require you to investigate the facts in this case and to report your findings.



Yours faithfully

Ian Yarwood LLB, B Com

Admitted to the Supreme Court of Western Australia

& the High Court of Australia

I advise that I intend to forward copies of the court judgment in this case in Thai script and an English translation to your office and to the APLAC Secretary in the near future as supplementary material in support of this complaint.

Source: http://www.samuitimes.com/australian-lawyer-gives-new-hope-to-burmese-men-convicted-of-the-koh-tao-murders/

-- Samui Times 2016-06-25

[saakura]

I think they should just do a face saving exercise for all sides, arrange a prisoner exchange of sorts and send these boys back home.

[daveAustin]

Good effort to keep this in the light. Hope it doesn't get swept under the carpet.

[boomerangutang]

If the court doesn't want to see the letter, it will just put it aside by the waste bucket. I once went to Thai Imm (after losing a passport and then applying for a new one). I had a letter from my consulate (which took me days to get and 1,000's of baht in expenses) which I handed over to the top Thai official. He took a half-second glance at it, and rudely set it aside with a frown, as if it meant nothing.

The letter from the lawyer re; the KT case: will it be translated to Thai? Thai officials won't spend one second trying to read anything in English.

In the bigger picture: Thai officialdom (including the PM and justices and RTP) don't want to deviate from their ironclad plan: to scapegoat the B2 and continue to insist on zero mention of the Headman's people. The appeal process will result in scrapping the death penalty for the B2, but will instead keep the scapegoats in jail for a long time.

[JLCrab]

What can you do if you're a defense lawyer and the report says "inclusion"? Well, before you try any last-minute strategies of claiming your client left their DNA at the scene by accident or during a previous visit (as you might with fingerprints), you'll probably want to obtain your own test, but this has the same self-incrimination effect as if you put your client on the stand, and in any event, further DNA testing will only cause delay and additional expense.

About the only thing you can do is attack the lab for its (lack of) quality assurance and proficiency testing, or use a "Chewbacca defense" (thanks to the South Park TV show for this phrase) and try to razzle-dazzle the jury about how complex and complicated the other side's evidence or probability estimates are.

http://web.archive.org/web/20061009203657/http://faculty.ncwc.edu/TOConnor/425/425lect15.htm

[Dexlowe]

I think they should just do a face saving exercise for all sides, arrange a prisoner exchange of sorts and send these boys back home.

No. That would mean confirming their wrongful conviction. These young men deserve to be completely exonerated and compensated.

[StealthEnergiser]

What can you do if you're a defense lawyer and the report says "inclusion"? Well, before you try any last-minute strategies of claiming your client left their DNA at the scene by accident or during a previous visit (as you might with fingerprints), you'll probably want to obtain your own test, but this has the same self-incrimination effect as if you put your client on the stand, and in any event, further DNA testing will only cause delay and additional expense.

About the only thing you can do is attack the lab for its (lack of) quality assurance and proficiency testing, or use a "Chewbacca defense" (thanks to the South Park TV show for this phrase) and try to razzle-dazzle the jury about how complex and complicated the other side's evidence or probability estimates are.

http://web.archive.org/web/20061009203657/http://faculty.ncwc.edu/TOConnor/425/425lect15.htm

I assume you don't find lack of quality assurance is an important factor in this.

[petedk]

This is Thailand.

We don't need "help" from abroad.

I am sure the Thai prosecutor couldn't care less about this.

[Bunnychow]

In related news Aussie lawyer sued for deformation and libel by Thailands ministry of science

[boomerangutang]

If your puppy poops in the house, you can sit down with the pup and eloquently explain the drawbacks with pooping indoors. The puppy may sit there, gaining eye contact, but no amount of reason and statistics is going to change its ways.

[JLCrab]

<snip>

I assume you don't find lack of quality assurance is an important factor in this.

The Defense has already submitted a near 200 page appeal. If it ain't in there, I don't see how the Judges are going to make any decision based upon this supplemental information that they wouldn't have made based upon the appeal document as previously submitted. Maybe save it for the Tika/Supreme Court appeal, if that occurs.

Edited June 25, 2016 by JLCrab

[lust]

In related news Aussie lawyer sued for deformation and libel by Thailands ministry of science

Defamation, not deformation..

[Dexlowe]

All due respect to Mr Yarwood. He has outlined the problems with this case very well. But ....... as this comment from him suggests, he's not likely to get much of a response:

"... but, with respect, an acknowledgment of receipt should not take 132 days. "

Gawd, what a mess.

[JLCrab]

If your puppy poops in the house, you can sit down with the pup and eloquently explain the drawbacks with pooping indoors. The puppy may sit there, gaining eye contact, but no amount of reason and statistics is going to change its ways.

Another one from the Analogy generator:

http://www.museumofhumor.com/Analogy.htm

[waldroj]

This will only open the eyes of those who want to see justice done - the others will choose to stay blind!

[Bunnychow]

In related news Aussie lawyer sued for deformation and libel by Thailands ministry of science

Defamation, not deformation..

Feel better now

[Dexlowe]

<snip>

I assume you don't find lack of quality assurance is an important factor in this.

The Defense has already submitted a near 200 page appeal. If it ain't in there, I don't see how the Judges are going to make any decision based upon this supplemental information that they wouldn't have made based upon the appeal document as previously submitted. Maybe save it for the Tika/Supreme Court appeal, if that occurs.

The big questions are, what's in those appeal documents, has everything been adequately covered and have the defense lawyers done their homework properly (in terms of pro forma legalities). Yarwood's letter, if nothing else, gives more gravitas to the B2's complaints of injustice, while also serving to maintain public pressure on the prosecutors who should not be given - and do not deserve to be given - a moment's peace.

[boomerangutang]

<snip>

I assume you don't find lack of quality assurance is an important factor in this.

The Defense has already submitted a near 200 page appeal. If it ain't in there, I don't see how the Judges are going to make any decision based upon this supplemental information that they wouldn't have made based upon the appeal document as previously submitted. Maybe save it for the Tika/Supreme Court appeal, if that occurs.

The big questions are, what's in those appeal documents, has everything been adequately covered and have the defense lawyers done their homework properly (in terms of pro forma legalities). Yarwood's letter, if nothing else, gives more gravitas to the B2's complaints of injustice, while also serving to maintain public pressure on the prosecutors who should not be given - and do not deserve to be given - a moment's peace.

If Yarwood's letter put forth anything which might implicate the B2, then Thai officialdom would be lauding it, publishing it, and lavishing praise on Yarwood. Yet, because it backs up the claim that the conviction is a sham, it will be stuffed in a dark place.

[JLCrab]

<snip>

<snip2>

The big questions are, what's in those appeal documents, has everything been adequately covered and have the defense lawyers done their homework properly (in terms of pro forma legalities). Yarwood's letter, if nothing else, gives more gravitas to the B2's complaints of injustice, while also serving to maintain public pressure on the prosecutors who should not be given - and do not deserve to be given - a moment's peace.

Under Thai Criminal Procedure, the Defense has 30 days to submit an Appeal following a conviction. The Defense was granted four 30-day extensions. Now you are questioning the capability and competence of the Defense.

[Dexlowe]

Under Thai Criminal Procedure, the Defense has 30 days to submit an Appeal following a conviction. The Defense was granted four 30-day extensions. Now you are questioning the capability and competence of the Defense.

With justifiable reason, sadly.

However, I advise that I did discuss the table with the Melbourne DNA expert Jane Taupin who was at court in September 2015 but who was never called to give evidence – a serious mistake by the defence lawyers.

[JLCrab]

Re an overly nested post above that, if the Yarwood letter added to the culpability of the B2 it would be welcomed and lauded by the Thai officialdom: Maybe the Headman can pay Mr. Yarwood enough to write another letter.

And to a second overly nested post above that it was a mistake by the Defense to not call Ms. Taupin: That is Mr. Yarwood's conclusion. It also may have been considered by the Defense that some of Ms. Taupin's presumed testimony might have gone in the wrong direction.

Edited June 25, 2016 by JLCrab

[smedly]

This is critical and is something I have repeated at least 40 times on TVF forum concerning this case and the DNA evidence, also the rest of this report/complaint punches so many holes in this prosecution case that it is lighter than air.

quote -

* No original mixed semen samples were ever made available to the defence for independent examination. The police and prosecutor only ever made “amplified” DNA evidence available to the defence but without the original samples one could not be sure of the original source. Only 5 microlitres of the original mixed semen would have been necessary for the test so there was no valid reason that none was made available to the defence lawyers.

In the west this alone would have made the so called evidence inadmissible and the case would have been dismissed, also the police and al others involved would have been subject to an extensive investigation to find out what happened to this DNA evidence and why it was not produced, the fact is, if they cannot produce it then the assumption is - it never existed

[smedly]

What can you do if you're a defense lawyer and the report says "inclusion"? Well, before you try any last-minute strategies of claiming your client left their DNA at the scene by accident or during a previous visit (as you might with fingerprints), you'll probably want to obtain your own test, but this has the same self-incrimination effect as if you put your client on the stand, and in any event, further DNA testing will only cause delay and additional expense.

About the only thing you can do is attack the lab for its (lack of) quality assurance and proficiency testing, or use a "Chewbacca defense" (thanks to the South Park TV show for this phrase) and try to razzle-dazzle the jury about how complex and complicated the other side's evidence or probability estimates are.

http://web.archive.org/web/20061009203657/http://faculty.ncwc.edu/TOConnor/425/425lect15.htm

what on earth are you talking about, if the prosecution cannot produce the original samples of DNA they claim matches the defendants then in effect there is no DNA evidence and as with fingerprints you cannot claim they existed at a crime scene and then fail to produce them. Why don't you get this, it is very basic logical stuff and very easy to understand

[JLCrab]

Mr. Yarwood per his own website is an expert in Reverse Mortgages.

http://www.reverse-mortgages-perth.com.au

[JLCrab]

What can you do if you're a defense lawyer and the report says "inclusion"? Well, before you try any last-minute strategies of claiming your client left their DNA at the scene by accident or during a previous visit (as you might with fingerprints), you'll probably want to obtain your own test, but this has the same self-incrimination effect as if you put your client on the stand, and in any event, further DNA testing will only cause delay and additional expense.

About the only thing you can do is attack the lab for its (lack of) quality assurance and proficiency testing, or use a "Chewbacca defense" (thanks to the South Park TV show for this phrase) and try to razzle-dazzle the jury about how complex and complicated the other side's evidence or probability estimates are.

http://web.archive.org/web/20061009203657/http://faculty.ncwc.edu/TOConnor/425/425lect15.htm

what on earth are you talking about, if the prosecution cannot produce the original samples of DNA they claim matches the defendants then in effect there is no DNA evidence and as with fingerprints you cannot claim they existed at a crime scene and then fail to produce them. Why don't you get this, it is very basic logical stuff and very easy to understand

What I get is that the Samui Court made a decision, The decision is now under Appeal. I have said many times myself on here that, particularly for a capital murder case, the Prosecution did not make a case proving guilt beyond a reasonable doubt. And so what?

[smedly]

<snip>

I assume you don't find lack of quality assurance is an important factor in this.

The Defense has already submitted a near 200 page appeal. If it ain't in there, I don't see how the Judges are going to make any decision based upon this supplemental information that they wouldn't have made based upon the appeal document as previously submitted. Maybe save it for the Tika/Supreme Court appeal, if that occurs.

no but the rest of the world can see clearly what went on here

but it is very likely that this is all included in the appeal

[Caveat Emptor]

Good to see the KT two get all the help they can but this letter is really only for international consumption.

The author is a foreigner and the fact he's a lawyer is no no consequence except perhaps outside Thailand. As a foreigner he's attacking the system here and pointing out mistakes, shortcomings etc so no Thai official will give him or his letter any credence.

[Dodgydownunder]

Well done Mr. Harwood. Turn up the heat and watch them (Thai authorities and Mr. Big mouth head honcho) squirm. Really believable reason given for not acknowleding Mr. Harwoods original email.........NOT!

[JLCrab]

Mr. Yarwood says in his letter that he has no standing in the case. The Thai authorities could and maybe should acknowledge his letter with greater attention but they have no obligation to do so. He also does not represent any of the DNA lab authorizing ngo's.

Edited June 25, 2016 by JLCrab

[glenmohr]

I remain convinced that the Thai authorities will be seeking the extradition from Australia of the admirable lawyer Ian Yarwood.

However about a year ago a junta spokesman was asked how many applications they had made for extradition. The answer 12, And then asked how many responses had occurred from foreign countries, answer none.

Mr Yarwood LLB is very safe on that evidence, however given that the main charge against him would be deformation he must be careful and not have any accident that would lend the charge some merit.

And what has happened to that young rich kid with the deformed left arm??