"Laughable eyewitness testimony"

[Chris_Halkides]

There was talk that Luke showed no emotion when photographs of Jodi’s body was shown to the court. Your second link seems to suggest otherwise.

Your inference seems quite likely.

[Parky41]

“ The only place I could think to go was the path because that was the last place Jodi was going”

Except Jodi wasn’t going to the path, was she? According to Judith Jodi was ‘mucking about up here’ so why did Alice Walker think that the path is where she should look? What did Judith say to Alice in that first phone call? A logical question from Alice would obviously be “where was Jodi going” and from Alice’s testimony in court it doesn’t appear that the answer was ‘mucking about in Easthouses’.

They, they, they, not Jodi but they -- Do get it correct at least.

I will give you two clues here, one is "they" and the other is time - What was related to AW via her daughter? That LM had said he had not seen Jodi, now we add in time here, where would the time factor and relevance be of saying to her mother, Luke said he had not seen her and that "they" did not happen, so there would be no "up here" as there was no "they" - Pretty sure the worry and panic that set in around someone being wrong took priority, without the slightest thought process being applicable in that time frame - As in, barely time to sit, think, digest anything at all before LM is dialling 999. - So we are still at, no they, something wrong, checks made, Luke path, search, area where the couple would meet regularly, a place when met, if met, where there would then be this "they" to head off wherever "they" were supposed to be going together. - Get my drift?

Now for time and realism around those 54mins - Now we can cut that right down to what? Around 20mins of communication to several bodies from these people, each other, police, friends, before AW headed out of her house, after leaving her house, take off the travel distance, and we had around 8min from setting off together before LM is dialling 999. - So you see, there was no up here, no they, no chance of any thought process of moving off anywhere else from that path, BECAUSE LM is dialling 999. Very much why there was also nothing from JaJ's, of we did not get a chance to think of searching anywhere else, for there was NO need to be searching anywhere else, because LM went straight to the wall once, then again, over it and - bang. And to not and never forget that these were DF's attempts at trying to say, well they went to the path too without anywhere else, and that clincher, of "If it hadn't been for Luke then Jodi would still have been lying there?" Oops, he was the very reason why she was not because he knew exactly where to go in record breaking time, because of his special knowledge! Because, and let's face us, that poor girl would not have been lying there at all, if it had not been for LM?

It was dark then it was light, it was searching to not searching, to racing up a path because it was dark, no it was light, to dog doing nothing because one was racing up a path and did not pay any attention to anything his dog may have been doing - No wait, that cannot possibly be correct, for, from 10:59pm - 11:18pm he had only gotten as far as the area of the V break in that wall - Oh dear, do you see a problem with this utter nonsense of constant conflicting accounts, to try and excuse, explain and evade the stark reality of LM's special knowledge.

Will we deflect now into why on earth did they not have their torches on in the complex? That open playing field where again, that ludicrous notion of putting any torch on to shine around that open playing field, where darkness had just fell, where many and multiple people had been all over that open field over the course of that evening - Realistic at all to be doing that, when there had been no they anyway? No up here, just nothing but something wrong, caught up in a rapid series of events - Bang.

The police, the calls, something wrong, going to attend any minute, they arrive at Jodi's house to take further details to help around something being wrong, a young girl missing and bang. Barely 15mins later from knocking the door and that call comes through that a body has been found.

And all because of AW wanting to check the path, the verges properly - Gave cause to LM going to the wall directly and firstly, then to the next break, up and over, around 10steps and bang - Did you see anything of any cattle prod in the statements, from LM? No of course not, these were LM's actions, no one else's.

10:40pm to 11:34pm with only around 5mins of actually searching, what was supposed to be a path and verges together - 

[faithlilly]

They, they, they, not Jodi but they -- Do get it correct at least.

I will give you two clues here, one is "they" and the other is time - What was related to AW via her daughter? That LM had said he had not seen Jodi, now we add in time here, where would the time factor and relevance be of saying to her mother, Luke said he had not seen her and that "they" did not happen, so there would be no "up here" as there was no "they" - Pretty sure the worry and panic that set in around someone being wrong took priority, without the slightest thought process being applicable in that time frame - As in, barely time to sit, think, digest anything at all before LM is dialling 999. - So we are still at, no they, something wrong, checks made, Luke path, search, area where the couple would meet regularly, a place when met, if met, where there would then be this "they" to head off wherever "they" were supposed to be going together. - Get my drift?

Now for time and realism around those 54mins - Now we can cut that right down to what? Around 20mins of communication to several bodies from these people, each other, police, friends, before AW headed out of her house, after leaving her house, take off the travel distance, and we had around 8min from setting off together before LM is dialling 999. - So you see, there was no up here, no they, no chance of any thought process of moving off anywhere else from that path, BECAUSE LM is dialling 999. Very much why there was also nothing from JaJ's, of we did not get a chance to think of searching anywhere else, for there was NO need to be searching anywhere else, because LM went straight to the wall once, then again, over it and - bang. And to not and never forget that these were DF's attempts at trying to say, well they went to the path too without anywhere else, and that clincher, of "If it hadn't been for Luke then Jodi would still have been lying there?" Oops, he was the very reason why she was not because he knew exactly where to go in record breaking time, because of his special knowledge! Because, and let's face us, that poor girl would not have been lying there at all, if it had not been for LM?

It was dark then it was light, it was searching to not searching, to racing up a path because it was dark, no it was light, to dog doing nothing because one was racing up a path and did not pay any attention to anything his dog may have been doing - No wait, that cannot possibly be correct, for, from 10:59pm - 11:18pm he had only gotten as far as the area of the V break in that wall - Oh dear, do you see a problem with this utter nonsense of constant conflicting accounts, to try and excuse, explain and evade the stark reality of LM's special knowledge.

Will we deflect now into why on earth did they not have their torches on in the complex? That open playing field where again, that ludicrous notion of putting any torch on to shine around that open playing field, where darkness had just fell, where many and multiple people had been all over that open field over the course of that evening - Realistic at all to be doing that, when there had been no they anyway? No up here, just nothing but something wrong, caught up in a rapid series of events - Bang.

The police, the calls, something wrong, going to attend any minute, they arrive at Jodi's house to take further details to help around something being wrong, a young girl missing and bang. Barely 15mins later from knocking the door and that call comes through that a body has been found.

And all because of AW wanting to check the path, the verges properly - Gave cause to LM going to the wall directly and firstly, then to the next break, up and over, around 10steps and bang - Did you see anything of any cattle prod in the statements, from LM? No of course not, these were LM's actions, no one else's.

10:40pm to 11:34pm with only around 5mins of actually searching, what was supposed to be a path and verges together -

I’m not getting caught in the weeds.

“The only place I could think to go was the path because that was the last place Jodi was going”

There was no reason for Alice to go to the path unless she had been told that that Jodi had walked that way to Luke’s. No reason to look if she thought that Luke, as was alleged, always walked her granddaughter down the path. Who told her that Jodi was walking the path….Judith, Janine, who knows? No need to walk the length of the path if Jodi was simply going to meet Luke at the beginning to ‘muck about up here.

We are told that Judith asked Luke why he hadn’t phoned her back when Jodi didn’t turn up. Think about that. Doesn’t that suggest that Jodi was going to Luke and not Luke to Jodi and that Judith knew that.

[Chris_Halkides]

Gary L. Wells, Brian L. Cutler, and Lisa Hasel wrote a chapter on eyewitness identification for the book "Race to Injustice."  On pages 313-314 they listed the characteristics of a good lineup, which included:
"Fillers should match the general description that the eyewitness gave of the culprit, and the administrators should take any other measures that will ensure the suspect will not stand out.
Witnesses should be told that the perpetrator may not be in the lineup, and told not to guess."
[My paraphrase] The lineup should be double-blind.
"The lineup administrator should record a clear statement of the witness' certainty at the time of the identification."

The authors also point out that showing a witness a suspect's photo repeatedly can lead to "memory source error," which is when the witness remembers the face from the photo, not the crime scene.

[Chris_Halkides]

I would like to return to the subject of two witnesses in the Newbattle area, Mrs. Walsh and Ms. Fleming. "Leaving aside the issue of the timing of the photograph, the witness was confused about the image she had seen. In her statement she suggested that this was of a young man walking towards a house, but the newspaper contained no such picture of the appellant.

[101] Miss Fleming's police statement hinted at what may actually have occurred. She had informed the police that Miss Walsh, the sister of her partner, provided her with a copy of the Daily Record of 15 August 2003 on 21 August. Miss Walsh spoke to having seen this newspaper and to it featuring a picture of the appellant whom she recognised as the male she had seen. She accepted that she had then shown this picture to Miss Fleming. This demonstrated that Miss Fleming had been confused about how she came to see the picture and that she had manufactured a piece of evidence. The cross-contamination of the identification evidence between Miss Walsh and Miss Fleming was of particular importance, given the fact that no identification parade had taken place." Murderpedia

Sandra Lean wrote, On August 21st, police approached Mrs. Walsh again to confirm her "recognition" of Luke, taking with them the newspaper picture [which had appeared on the 15th]. The following day Ms Fleming said in a statement that Ms. Walsh came to her house around 6:25pm the previous evening and said, "I know I'm not supposed to talk to you, but take a look at this" and handed her the Daily Record..."

"Other studies have shown that misinformation can corrupt memory even more easily when it is encountered in social situations (Gabbert, Memon, Allan, & Wright, 2004). This is a problem particularly in cases where more than one person witnesses a crime. In these cases, witnesses tend to talk to one another in the immediate aftermath of the crime, including as they wait for police to arrive. But because different witnesses are different people with different perspectives, they are likely to see or notice different things, and thus remember different things, even when they witness the same event. So when they communicate about the crime later, they not only reinforce common memories for the event, they also contaminate each other’s memories for the event (Gabbert, Memon, & Allan, 2003; Paterson & Kemp, 2006; Takarangi, Parker, & Garry, 2006)."
https://nobaproject.com/modules/eyewitness-testimony-and-memory-biases

The prosecution's case is almost nothing but eyewitness testimony.  It is remarkable how poor in quality this testimony was.

[faithlilly]

I would like to return to the subject of two witnesses in the Newbattle area, Mrs. Walsh and Ms. Fleming. "Leaving aside the issue of the timing of the photograph, the witness was confused about the image she had seen. In her statement she suggested that this was of a young man walking towards a house, but the newspaper contained no such picture of the appellant.

[101] Miss Fleming's police statement hinted at what may actually have occurred. She had informed the police that Miss Walsh, the sister of her partner, provided her with a copy of the Daily Record of 15 August 2003 on 21 August. Miss Walsh spoke to having seen this newspaper and to it featuring a picture of the appellant whom she recognised as the male she had seen. She accepted that she had then shown this picture to Miss Fleming. This demonstrated that Miss Fleming had been confused about how she came to see the picture and that she had manufactured a piece of evidence. The cross-contamination of the identification evidence between Miss Walsh and Miss Fleming was of particular importance, given the fact that no identification parade had taken place." Murderpedia

Sandra Lean wrote, On August 21st, police approached Mrs. Walsh again to confirm her "recognition" of Luke, taking with them the newspaper picture [which had appeared on the 15th]. The following day Ms Fleming said in a statement that Ms. Walsh came to her house around 6:25pm the previous evening and said, "I know I'm not supposed to talk to you, but take a look at this" and handed her the Daily Record..."

"Other studies have shown that misinformation can corrupt memory even more easily when it is encountered in social situations (Gabbert, Memon, Allan, & Wright, 2004). This is a problem particularly in cases where more than one person witnesses a crime. In these cases, witnesses tend to talk to one another in the immediate aftermath of the crime, including as they wait for police to arrive. But because different witnesses are different people with different perspectives, they are likely to see or notice different things, and thus remember different things, even when they witness the same event. So when they communicate about the crime later, they not only reinforce common memories for the event, they also contaminate each other’s memories for the event (Gabbert, Memon, & Allan, 2003; Paterson & Kemp, 2006; Takarangi, Parker, & Garry, 2006)."
https://nobaproject.com/modules/eyewitness-testimony-and-memory-biases

The prosecution's case is almost nothing but eyewitness testimony.  It is remarkable how poor in quality this testimony was.

“ On August 21st, police approached Mrs. Walsh again to confirm her "recognition" of Luke”

The police had to approach Mrs Walsh because neither she nor Mrs Fleming appear to have thought that recognising a suspected murderer warranted them informing the police themselves. In fact it was a colleague of Walsh who eventually informed the police of her ‘identification’.

[Chris_Halkides]

If the police had constructed a proper photo ID to show Ms. Walsh, that would be one thing.  However, showing her the photo that appeared in the paper could have contaminated her memory, and she later did the same thing regarding Ms. Fleming.

"For instance, simply seeing an innocent suspect in a lineup can lead a witness to later misidentify that now-familiar suspect as the perpetrator. Because human memory is inherently malleable, an eyewitness’s memory will be contaminated after a first test, even if it and subsequent tests use pristine procedures."
https://www.psychologicalscience.org/publications/observer/may-2022-pspilive-eyewitness-testimony.html

[faithlilly]

If the police had constructed a proper photo ID to show Ms. Walsh, that would be one thing.  However, showing her the photo that appeared in the paper could have contaminated her memory, and she later did the same thing regarding Ms. Fleming.

"For instance, simply seeing an innocent suspect in a lineup can lead a witness to later misidentify that now-familiar suspect as the perpetrator. Because human memory is inherently malleable, an eyewitness’s memory will be contaminated after a first test, even if it and subsequent tests use pristine procedures."
https://www.psychologicalscience.org/publications/observer/may-2022-pspilive-eyewitness-testimony.html

I don’t know how showing the witness an article describing the arrest of Luke with a photograph of him and asking was that the youth she saw can be described as anything but prejudicial.

[Chris_Halkides]

I don’t know how showing the witness an article describing the arrest of Luke with a photograph of him and asking was that the youth she saw can be described as anything but prejudicial.

I agree.  Defenders of the police/prosecution here said words to the effect, "They are just guidelines."  This kind of thinking ignores the obvious question.  What good reason was there for ignoring them?  If no answer can be given, then the conclusion must be that they were deliberately flouted in order to obtain a conviction.

The author of a 2022 article at The Economist newsmagazine wrote, "The answer, as he and Dr Loftus argue in a recently published paper, is to test a witness’s memory as fairly as possible, and—crucially—to do so only once...Dr Wixted cited the case of Charles Don Flores, a prisoner awaiting execution for a murder committed in 1998. Initially, when shown a line-up that included Mr Flores, a crucial witness said none of the people matched her recollection. (She had recalled a white man with long hair. Mr Flores is of Latin American extraction, and had short hair then.) By the time the case came to trial a year later, she had changed her mind, and Mr Flores was convicted. His appeal on the basis of the witness’s change of mind has been denied. Dr Wixted, however, suggests she was likely to have been right the first time and wrong the second."

It is regrettable that the appeals process in the case of Mr. Flores did not recognize the discrepancy, and it helps explain why the highly problematic eyewitness testimony in the Mitchell case was not enough to generate a successful appeal. Another take-home message is that the appearance of Luke Mitchell's photograph in the press on 15 August was a major element in the Fleming/Walsh apparent sighting (Innocents Betrayed, pp. 130-131). The newspaper photograph also had some influence on Andrina Bryson, according to the appeal as found at Murderpedia: "The witness had seen a picture of the appellant in a newspaper the following day and had confirmed in evidence that this had added some weight to her identification." Mrs. Bryson had viewed a photo lineup on 14 August, if I am not mistaken.

[Kenmair]

Chris: do you believe LM is not guilty or are you just not convinced about the evidence that convicted him? I have now met 2 people who attended the trial, one who attended every day, and they have no doubt about the verdict.

It would seem the pro-LM camp consider that every single witness (apart from LM & CM) has lied, and that police corruption and media input were to blame without considering the totality of evidence that convicted him.

[Chris_Halkides]

KenMore,

Let's take the second paragraph first.  No, I do not believe that every witness lied, and the examples that I provided suggests that the witnesses' changing their stories has other explanations.  The two primary causes are contamination of memories (for which I have given examples and discussion) and the police cajoling/persuading witnesses to change their stories over time.  The latter is plausibly inferred from other cases (two of which I discussed upthread).  One cannot simply look at the final result (however strong or weak) without digging into how it was obtained.  Putting it another way, guidelines regarding identifications were adopted for a reason, that reason being to obtain the most reliable information possible.

Regarding the media, I would say that publishing Luke Mitchell's picture created profound problems for the investigation, and the investigators made things worse by using the photograph.  Regarding the question of possible police corruption, there is no bright line between an incompetent investigation and a corrupt one.  The evidence that this was at least a sloppy, biased investigation begins but does not end with the events of 1 July.

Even apart from the changing stories (itself a red flag), these were poor identifications.  For example, Ms. Bryson's descriptions of a man and a woman do not resemble Luke Mitchell and Jodi Jones.  IIRC only with time did Ms. Fleming or Ms. Walsh claim even to have glimpsed Luke's face.  Eyewitness identifications without one's getting a good look at someone's face should have been seen as non-probative.  The fact that both identifications were done by people traveling in cars is another problem, one that was particularly severe in the case of Ms. Bryson, who was traveling around a bend in the road.

On the side of guilt we have utterly untrustworthy identifications and the testimony of the search party.  There is no motive, apart from pure conjecture.  There is no reasonable murder weapon (who holds a knife using just one's thumb and forefinger?).  There is no confession.  On the side of innocence we have plausible alternative suspects.  There is no forensic evidence against Luke Mitchell.  There is a timeline that is dubiously short, one that becomes even tighter if you allow for the possibility that Jodi Jones' body was moved.  There is an alibi from Corinne Mitchell.  I trust that this answers the question from your first paragraph.

[Kenmair]

On the side of innocence we have plausible alternative suspects.  There is no forensic evidence against Luke Mitchell.  There is a timeline that is dubiously short, one that becomes even tighter if you allow for the possibility that Jodi Jones' body was moved.  There is an alibi from Corinne Mitchell.  I trust that this answers the question from your first paragraph.

I'm still not sure if you say LM is guilty? A few points: if the search party changed their statements to incriminate LM, would they not have all agreed to the same statement fro the start? As regards witnesses -  I couldn't recall exactly what clothing someone was wearing yesterday when I drove past them. As regards Corinne, unfortunately she has lied many times on podcasts and forums so can't be seen to be reliable source. She even changed her her initial police statement after being seen on CCTV. Even the great detective Forbes claims that more than half of mothers he spoke to claim they would lie to protect their son from murder.

I have walked the crime scene area many times - it is easy to cover this distance with time to spare, plus the time between 9-11pm to dispose of evidence and clean up. There is also no forensic evidence against any other person. There are no plausible alternative suspects - they were all interviewed and eliminated at the time despite Lean & Co's protestations. The totality of evidence firmly places LM as the only possible suspect, 3000+ police statements, 100 court witness statements, only one alibi from his mother and his brother unable to alibi him etc.

[Chris_Halkides]

There are other DNA profiles, including Steven Kelly's DNA profile; the official explanation for that is implausible on the grounds that Jodi and Janine were not living in the same house.  If the police or prosecution claim to have investigated other suspects, this claim must be weighed against the misleading or untrue things that they have said.

Your reconstruction has Luke Mitchell cleaning up between 9 and 11.  Yet none of the people who may have seen him said anything about seeing blood.  Nor is there any evidence of a cleanup/disposal.

You keep talking about the totality of the evidence without addressing the multitude of problems associated with it.  To take just one example, you said that you cannot remember what someone was wearing when you drove past them.  Ms. Fleming and Ms. Walsh did not get a good look at Mr. Mitchell's face, and they did not describe his hair color or color of footwear correctly.  Upon what information, then, is their identification based?  Ms Fleming claimed to remember seeing a photograph of Mitchell that never existed.  "Mr Findlay continued: 'What it does demonstrate is that people, however genuine, however honest, can sometimes make mistakes which can have very serious consequences.'" (from a story by Gordon McIlwraith found at TheFreeLibrary.com). I agree with Mr. Findlay.

[Kenmair]

There are other DNA profiles, including Steven Kelly's DNA profile; the official explanation for that is implausible on the grounds that Jodi and Janine were not living in the same house.  If the police or prosecution claim to have investigated other suspects, this claim must be weighed against the misleading or untrue things that they have said.

Your reconstruction has Luke Mitchell cleaning up between 9 and 11.  Yet none of the people who may have seen him said anything about seeing blood.  Nor is there any evidence of a cleanup/disposal.

You keep talking about the totality of the evidence without addressing the multitude of problems associated with it.  To take just one example, you said that you cannot remember what someone was wearing when you drove past them.  Ms. Fleming and Ms. Walsh did not get a good look at Mr. Mitchell's face, and they did not describe his hair color or color of footwear correctly.  Upon what information, then, is their identification based?  Ms Fleming claimed to remember seeing a photograph of Mitchell that never existed.  "Mr Findlay continued: 'What it does demonstrate is that people, however genuine, however honest, can sometimes make mistakes which can have very serious consequences.'" (from a story by Gordon McIlwraith found at TheFreeLibrary.com). I agree with Mr. Findlay.

No disprespect, but if you knew the local area you might see things differently. Of course there were many witness inconsistencies on botrh sides, but neither of us were at the trial to witness the full presented evidence where the jury gave a majority guilty verdict. I have not met anyone that was at court that doubted the verdict and have spoken to associates of SM who verify this. You/we can grasp at straws that may shed a tiny speck of doubt on the verdict, but no appeal has been anywhere near gaining ground in altering the original decision. If SL was to publish even parts of the 200 page statement of reasons from the SCCRC  then the whole sorry affair would soon collapse.

No credible Scottish lawyer will touch this case which is why it falls to Lean & Forbes to whip up those who are easily lead.

PS: If I was guilty of any crime I would have Findlay KC on my side - one of the sharpest legal minds around - but LM prefers Forbes and a small town local criminal defence lawyer.

[Chris_Halkides]

https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5182
I would like to focus on eyewitness testimony a little more before moving on to other matters.  In the Dean Gillispie wrongful conviction, Mr. Gillispie's photograph stood out from the others.  "The detective created a photo lineup in which Gillispie’s photo “was closer and larger than the other photos in the spread and, unlike the other photos, had a matte finish,” Judge Merz wrote."  Also, "The defense challenged the lineup as being unfairly suggestive because the photo of Gillispie had a yellow background while the other photos had blue backgrounds."  For more on the problems of memory with respect to eyewitness identifications, Chapter 5 in Mark Godsey's book Blind Injustice is a good read.  Mr. Godsey is a former prosecutor.  In the present case there was one badly flawed photo lineup, and one identification that had no lineup at all.  Astonishing.

Juries are indeed present for the whole trial, yet there are still wrongful convictions; therefore, being present is not sufficient to prevent a miscarriage of justice.  Jim and Nancy Petro's book "False Justice" gives some reasons.  One is that not all jurors understand finality in the criminal justice system, believing that if they make a mistake, that the appeals system will correct it.  Lindy Chamberlain lost all of her appeals, and only dumb luck led to her freedom.  Todd Willingham lost all of his appeals an was executed, yet several top arson investigators have found no evidence of arson.  Anyone pinning his or her hopes on being exonerated by the appeals system is naive.

BTW portions of the denial of the 2008 appeal can be found at Murderpedia.org, and the passages that I have read are predictable in their defense of the police and prosecution.  I do not recall seeing the SCCRC's decision, and until I do, I will withhold judgment on it.  But while looking for more information on it, I did find this piece of information in another thread here:  "The results indicated that although it was likely the DNA was attributable to semen, it was not possible to say conclusively that other body fluids were not also included."  Hmmm...