Winnipeg Free Press

Winnipeg Free Press (Newspaper) - September 10, 1998, Winnipeg, Manitoba Murder Case tests guides for scientific evidence defence lawyers motion in fort Frances homicides based on Morin inquiry by Dan Lett staff reporter Morin bad evidence fort Frances double homicide Case will become the first murder trial in Canada to test recommendations from the inquiry into the wrongful conviction of Guy Paul Morin. Lawyers for James Daniel Perlett charged with two counts of first degree murder have submitted a motion to have the judge caution the jury and any witnesses giving forensic evidence to use specific and accurate scientific language. The motion comes directly from a series of recommendations made by the commission of inquiry into proceedings involving Guy Paul Morin who was wrongfully convicted of the 1984 murder of nine year old Christine Jessop. The commission which made its final report Public earlier this year said Morin was the victim of the misuse of forensic evidence that upon closer examination did not implicate him in the crime. Some forensic evidence had been compromised in the testing Laboratory yet was entered As evidence against Morin. Morin was acquitted at his first trial in 1986, but the Crown appealed the verdict and he was convicted at a second trial. Morin was finally exonerated in 1995 after Dan tests indicated he could not have killed Jessop. The Morin commission recommended that judges give witnesses and juries special instruction on the use of scientific language and that forensic experts police and prosecutors develop specific guidelines on the use and presentation of such evidence. Daniel Brodsky the Toronto lawyer representing Perlett said this Case is a perfect venue to test some of the most important recommendations from the Morin inquiry. But he said he could not comment on details of the Case because of a court imposed publication ban. Frequent culprit however he said scientific evidence has become one of the most abused forms of testimony used in murder trials and is a frequent culprit in cases of wrongful conviction. What we Are trying to do Here is reel in witnesses who Are prepared to go beyond their expertise Brodsky said. On March 22, 1996, Carol and Jim Perlett were shot to death in their fort Frances Home. Their son James Perlett 19 at the time was taken to Hospital with a gunshot wound to his Abdomen. He was released from Hospital five Days after the incident. After a five month investigation James Perlett was charged with two counts of first degree murder. A Long preliminary hearing with numerous pre trial motions and a change of venue to Thunder Bay have delayed proceedings until this fall. Both defence and Crown counsel agreed on a publication ban out of concern that Media coverage would influence the relatively Small Pool of prospective jurors in Thunder Bay. Brodsky said he is awaiting the judge s ruling on the scientific evidence motion. Jury selection is to go ahead sept. 28, after which a trial Date will be set. Brodsky said the motion attempts to restrict the language used by scientific witnesses so the jury does not give any forensic evidence More weight than it is Worth. The Morin commission made 14 recommendations on the use of such evidence and strongly advised police prosecutors and forensic laboratories to quickly establish guidelines on the analysis description and presentation of forensic evidence. The commission report said there Are now no Standard guidelines for the interpretation of forensic evidence and its use in either charging or trying suspects. The commission said that in Many instances hair and Fibre comparison analysis is regularly misused in trials to implicate a suspect when in fact it cannot conclusively Point a Finger at anyone. When testifying about the similarities Between hair and Fibre found at the crime scene and samples taken from the accused scientific experts have been allowed to use language such As it could have been his hair or it could have been his fibres language which is neither specific nor relevant to the question of guilt or innocence the commission noted. In some instances this evidence was presented to support the Crown s theory implicating a suspect when in fact it did t prove anything about the crime the report noted. The commission concluded that in most instances such evidence was valuable As an exclusionary tool but had limited Utility As an inclusion Ary this Type of evidence is widely used in courts throughout Canada and the United states a situation that worries academics and lawyers who Campaign against the systemic causes of wrongful conviction. Osgoode Hall Law professor Dianne Martin co director of the Toronto based innocence project which investigates cases of possible wrongful conviction said the misuse of scientific evidence is one of the most pervasive causes of miscarriage of Justice. Many of Canada s most famous wrongful convictions such As in the Morin and David Molgaard cases have involved the mishandling of forensic evidence Martin said. In the Molgaard Case the Crown presented a semen Sample found at the crime scene As evidence. Forensic technology at that time was limited and could determine Only whether the semen came from a secretory of blood Antigens or a non secretory. Forensic testimony indicated that although it did not conclusively tie Molgaard to the crime it could have been Milgard s semen. Or. James Ferris a noted forensic pathologist engaged to review the Molgaard Case in the mid-1980s, reported that the conclusions drawn from the serological evidence were flawed and did nothing to implicate Molgaard. The same conclusion was drawn by . Criminologist Neil Boyd who said forensic evidence used at trial exclude " " i jail if Morin inquiry urged precision in use of forensic evidence at trial recommendations from the Morin inquiry regarding scientific evidence a admissibility of hair comparison evidence trial judges should undertake a More critical analysis of the admissibility of hair comparison evidence As circumstantial evidence of guilt. Evidence that shows Only than an accused cannot be excluded As the donor of an unknown hair. Is unlikely to have sufficient probative value to justify its reception at a criminal trial As circumstantial evidence of guilt. A admissibility of Fibre comparison evidence evidence of forensic Fibre comparisons May or May not have sufficient probative value to justify its reception at a criminal trial As circumstantial evidence of guilt. However the limitations upon the inferences to be reliably drawn from forensic Fibre comparisons need to be better appreciated by judges police Crown and defence counsel. A admissibility of preliminary tests As evidence of guilt evidence of a preliminary test such As an indication of blood does not have sufficient probative value to justify its reception at a criminal trial As circumstantial evidence of guilt. A trial judge s instructions on science where hair and Fibre comparison evidence or other scientific evidence is tendered As evidence of guilt the trial judge would be Well advised to instruct the jury not to be overwhelmed by any Aura of scientific authority or infallibility associated with the scientific evidence and to clearly articulate for the jury the limitations upon the findings made by the experts. A the use of appropriate forensic language forensic testing facilities should endeavour to establish a policy for the use of certain uniform language which is not potentially misleading and which enhances understanding. This policy should be made Public. A language to be avoided by forensic scientists certain language is demonstrably misleading in the context of certain forensic disciplines. The terms match and consistent with used in the context of forensic hair and Fibre comparisons Are examples of potentially misleading language. A other specific language to be adopted certain language enhances understand ing and More clearly reflects the limitations upon scientific language. For example some scientists state that an item May or May not have originated from a particular person or object. This language is preferable to. Could have originated from that person or object not Only because the limitations Are clearer but also because the same conclusion is expressed in More Neutral terms. A the scientific method the scientific method Means that scientists Are to work to vigorously Challenge or disprove a hypothesis rather than to prove one. A policy respecting correction of misinterpreted forensic evidence a forensic scientist May leave the witness stand concerned that his or her evidence is being misinterpreted or that a misperception has been left about the conclusions which can be drawn or the limitation upon those conclusions. An obligation should be placed on the expert to ensure that these concerns Are communicated As soon As possible to the Crown counsel. Where communicated to Crown counsel an immediate disclosure obligation to defence counsel is triggered. Ericsson $ i. W yes ;