The following article by Rebecca Davis was first published by the Daily Maverick on 14 August 2014.
Forensic expert Dr David Klatzow has been one of the most vocal and consistent critics of South African police handling of crime scenes and evidence. Speaking on Wednesday about his new book, ‘Justice Denied’, Klatzow wasn’t mincing his words about the quality of local forensic investigations.
One of the DNA Project's "Don't disturb a crime scene" social media messages launched during the Oscar Pistorius Trial
David Klatzow has a simple message for anyone accused of a crime in South Africa: don’t expect to get a fair ride.
“I’ve written a book about this because it seems to me that we have a problem in this country, ” Klatzow told an audience at the Cape Town Press Club on Wednesday. He said that there is a justifiable expectation that the state, with its powerful resources, should be able to handle the processing and interpretation of forensic evidence correctly: “One would expect the state to get it right.”
But the reality, Klatzow says, is often depressingly different. He cited the example of Fred van der Vyfer, charged with the murder of his girlfriend Inge Lotz in 2005. Van der Vyfer was ultimately acquitted with the aid of Klatzow, who was hired by the accused’s family to look into the forensic evidence which the state claimed fingered van der Vyfer.
Though questions continue to swirl around who killed Lotz, if not Van der Vyfer, Klatzow remains adamant that “there is not a shred of evidence that proved he did it”. But he says it is frightening to consider what could have happened if van der Vyfer had not been from a wealthy family.
“Fred, had he not had the resources to throw R9 million at the case, would be sitting in Pollsmoor Prison,” Klatzow says, despite the fact that the state’s case against him was “nothing but smoke and mirrors”.
Van der Vyfer’s case is one of a number that Klatzow cites to support his assertion that “dishonesty and incompetence” characterise many police investigations in this country. But the silver lining – if you can call it that – is that this is not a South Africa-specific problem. Klatzow says that in the course of researching his new book, Justice Denied, one thing became apparent: “We are not alone in this deplorable situation”.
Convictions of innocent people based on inaccurate or fraudulent evidence given by police forensic experts has a long history internationally. One example Klatzow gives is that of Dr Hawley Crippen, who was hanged for the murder of his wife in 1910: one of Edwardian London’s most sensational cases.
After the disappearance of Crippen’s wife Cora, Dr Crippen claimed she had returned to America. But there were a number of things that didn’t look good for Crippen. For one, he ran off with his attractive young secretary. For another, when police searched his house for the fourth time, they found human remains buried under the brick floor of his basement. The pathologist used by the prosecution, Dr Bernard Spilsbury, testified that a piece of skin revealed an abdominal scar which was consistent with Cora’s medical history. Crippen was duly found guilty of the murder of his wife and hanged.
In 2007, however, the tissue slides used by Spilsbury were re-examined and DNA extracted from them. These tests reportedly established that the body parts were those of a man.
“On the say-so of a dogmatic pathologist, Crippen went to the gallows for a murder he did not commit,” Klatzow says. “I kick off the book with that because nothing’s changed.” (It should be noted that the idea that Crippen was innocent remains controversial.)
During Apartheid, Klatzow says, police would often produce versions of events after police shootings which were clearly incompatible with the evidence. He recalled the case of the Gugulethu Seven, a group of Umkhonto weSizwe members killed by police in 1986. Klatzow’s investigation showed that contrary to police evidence, the men had been shot at close range. One policeman claimed he had shot one man while the man was “running forwards, right to left”.
“Then why are all the bullet holes in his right hand side?” Klatzow asked.
Apartheid may be over, but Klatzow says that police incompetence and wilful deception in crime scene investigations endure. He calls the aftermath of the killing of mining magnate Brett Kebble “the worst-handled crime scene” he has encountered, saying police wanted to valet Kebble’s car before evidence had been extracted from it.
Klatzow has harsh words, too, for the handling of the Oscar Pistorius crime scene. First policeman Hilton Botha was allowed to walk all over it, he says. Then a policeman handled the gun without gloves – and when alerted to this, wiped it clean and puts it down again. A bullet fragment in the toilet bowl was missed. And to top it all off, Pistorius’ watches were stolen.
“This is handed out as the best our police can do,” Klatzow said. He added that if Pistorius were to be convicted, it would be in spite of the police work on the case, not because of it.
Klatzow also hit out at the state’s forensic laboratories, saying it could still take two years to get a blood sample back, and up to eight years for toxicology results.
“If you have a spouse to knock off, now’s the time to do it,” he said. “And do it with poison.”
But not everyone agrees that the picture is as negative as Klatzow makes out.
“I reckon that there are issues, but I like to be constructive,” Vanessa Lynch, the founder of South Africa’s DNA Project, told the Daily Maverick on Wednesday. She points out that when it comes to old cases, police could only rely on the forensic evidence available at the time.
“In the past, hair shaft analysis was considered to be cutting edge,” Lynch says. “It’s subsequently been recognised that it’s an inexact science. As we’re exposed to more and more forensic processes, we are able to get closer to the truth.”
Lynch acknowledged that substantial challenges remain, but she maintains that forensic evidence – and particularly DNA – is one of the firmest forms of criminal evidence in existence (as opposed to, say, eye-witness testimony). While the Pistorius case was dominating headlines, the DNA Project attempted to use it as a way of educating the public about the need to keep crime scenes undisturbed. “When you don’t disturb a crime scene, forensic evidence has the power to determine exactly what happened,” the DNA Project’s website instructed.
One of the DNA Project’s major initiatives over the past years has been to campaign for the establishment of a database of DNA to be used by police in the investigation of crimes. They succeeded: in January this year the DNA Act was passed. When fully implemented, it will require police to take DNA samples from criminal suspects arrested for serious offences, as well as parolees and convicted offenders. These will be entered into a database and DNA collected from crime scenes will then be compared.
When the act was promulgated, skepticism was expressed as to whether it will ever be effectively implemented – including from Klatzow. Lynch says there have been delays, but “things are moving in the right direction”.
Police still need to be trained to take DNA swabs, and the members of the National Forensics Oversight and Ethics Board appointed. This latter step is crucial, she says, because its members will be ensuring that the act is not a “paper tiger”. But applications for board membership closed in March, and its members have still not been announced.
“Despite that, there’s still movement,” Lynch says. She says the Cape Town forensics lab has set up the necessary systems already to be able to process DNA samples when they start arriving. “The back-end stuff is happening.”
Lynch has a parting shot for critics of South Africa’s forensic work. “At least we have a forensic infrastructure,” she says. “It may require tweaking, but that’s a helluva lot more than some places.” DM