Intelligent. Kenyan.

Published: 2 years ago

Made in Kenya: Forensic Files

This essay is taken from Brainstorm’s third e-book, Ha!Kuna Matata: Security in Kenya, which is available for free. DOWNLOAD IT HERE to read more such essays.

by Sophie Gitonga

I’d never met a murderer before – and it never featured on my to do list.

Pete (not his real name) was a guest at the Kamiti Maximum Security Prison, his home for several years. He was convicted of murdering his wife, and for that he was sentenced to the gallows. His sentence was later commuted to life imprisonment. His call was a surprise. I tried to convince him that he had the wrong number, but he had done his homework. He knew about the DNA laboratory where I worked and the kind of work we did. He had the right number. He told me why he had called – he was mounting an appeal against his conviction and he needed my help.

He was disputing the outcome of the DNA results from the evidence collected in the investigation of his wife’s murder. The evidence linked him to the murder, yet he was categorical that he had nothing to do with it. Being impartial and having no vested interest in the outcome of an investigation is an important skill to learn and use. You need to go against your natural inclination to rush to judgement until you have weighed all the facts and information. I was sympathetic towards Pete, and felt that there had been a miscarriage of justice, given the reputation of the Kenya Police Service in the area of criminal investigation.

On the other hand, it was possible that Pete was after all guilty of killing his wife, and that he knew he could poke holes in the police investigation and was using me as a pawn to get out of his current predicament. Still, I decided to hear Pete out. He invited me to visit him in prison and I agreed, a little too quickly. He sounded calm, decent even, over the phone.

I did not know what to wear on my day out to prison. I hadn’t told anyone I was going because I didn’t want to be talked out of it, so I couldn’t get an opinion on what to wear. I figured pants would be best – it is easier to run away very fast when you are wearing pants (and of course no jeans because, well, in American movies, the prisoners wear denim and you don’t want the guards thinking that you are one as you are trying to leave). A black pantsuit would have to do; I could pass off as a lawyer in one.

In the cab, I willed my heart to keep beating at a steady pace. We got to the entrance and the driver was shooed away, cabs were not allowed on prison grounds. I was required to turn off my cell phone and leave it at the reception. The catcalls began almost immediately I left the reception, “Sister! Rasta!” (I have dreads) and I thought to myself: This is how I’m going to die and no one will even know because I didn’t tell anyone where I was going.

After going through another reception, I got a proper pat down body search, much unlike those benign wand waves you experience at malls. This was a contact sport. I was relieved when she didn’t tell me I had a breast tumour following the groping. Power suits meant nothing in here. I ambled through a dark hallway and there it was, the proverbial light at the end of the tunnel that led me to the room where I would meet Pete. There were four wardens in the room, there to monitor my conversation with Pete, I supposed, and to make sure there was no monkey business. I was okay with that.

Pete walked in. He was towering and dark skinned. He had huge hands, one of which I shook gingerly. His face was surprisingly gentle. Was this the guy who had allegedly snuffed the life out of his wife? He was a model prisoner, rewarded for his good behaviour. He had access to the computers in the wardens’ offices – that was how he had found my number. It was also how he studied. He was studying Law.

Pete spoke of how his previous appeal had been rejected, the grounds for which were not entirely clear to me. He handed me all the documents he had relating to his case, and came back to point about the DNA tests, why he doubted their accuracy, and whether the right interpretation was used to arrive at a conclusion. He was sure that a review of the evidence would exonerate him. My responses to him were cautious and clipped; I knew it would be premature of me to agree with him before I read the case. I was eager to get back to the office and pore over the case.

Pete’s marriage was tumultuous; he drank heavily and beat his wife with equal fervour. He worked as a mechanic, and she as a hairdresser. They had two children. She had walked away from the marriage on several occasions, only to return. This was the anecdotal testimony provided by their neighbours and his wife’s family. He did not dispute this. He admitted that he and his wife had altercations on numerous occasions, but this did not mean that he killed her.

On the night in question, he had been working late and decided to catch a drink in the neighbourhood close to home. His wife worked in the same neighbourhood, so he’d occasionally pick her up and they’d go home together. He didn’t have an alibi on this night though. He drank alone and doesn’t remember if there were any witnesses to corroborate his testimony. Much later, at about 11 pm, he made his way home. He did not find his wife at home, but that wasn’t unusual to him. He slept, only to be awoken by loud banging on his door. His wife’s body had been found in a bush close to home. She had been strangled. It was also possible that she had been raped and killed.

There was no photographic evidence or sketches included in the papers I had, and when I asked Pete about this, he doubted that they existed because previous attempts to get them had availed nothing. Thus, there was no way of reconstructing the scene or the crime itself as it happened. The police talked about the position of the body, and it was ‘close’ to their home, and the bar where Pete had been drinking the night before. There was no disclosure about the general surrounding of the area where the body was found, the time, weather condition – nothing. It was anyone’s guess.

A post mortem was conducted to determine cause of death, which was ruled as asphyxiation. Vaginal swabs were collected to determine if the victim had in fact had been raped, though evidence to corroborate an assault or lack of one was never sought. The vaginal swabs were declared sufficient. The victim’s fingernails were bloody and torn, and it was believed that she fought off her assailant(s), and that her fingernails contained the evidence of that altercation.

Given his history of violence, Pete was naturally the primary suspect in his wife’s death, and he was arrested. He asked to see his wife and pay his respects. This was granted and he was able to see her at the mortuary. That was the last time he saw her. The police questioned Pete and he maintained his innocence. He was held anyway, because he was “assisting” with investigations. I’ve never quite understood why a suspect, if guilty, would want to help the police nail him.

Pete never underwent a physical exam, and he was never asked to submit to one. This was a classic Sherlock Holmes moment that was missed; the police seemed to have no interest in checking whether other evidence could corroborate the fingernail evidence. Pete maintained then, as he does now, that he had no physical injuries on his person that would suggest that he was in a fight. The police had decided that Pete was the culprit though, and that was enough.

Pete never underwent a physical exam, and he was never asked to submit to one. This was a classic Sherlock Holmes moment that was missed; the police seemed to have no interest in checking whether other evidence could corroborate the fingernail evidence. Pete maintained then, as he does now, that he had no physical injuries on his person that would suggest that he was in a fight. The police had decided that Pete was the culprit though, and that was enough.

The defendant had no opportunity to call in his own expert witness who would challenge the DNA results, nor could he have the same samples also analysed in an independent lab. This was where I came in. I told Pete that a reanalysis of the sample would not be possible because after so many years and what was presumed to have been an open and shut case, all physical evidence had been destroyed. Without it, there’s wasn’t much I could do.

*

Pete’s case reminded me of another high profile case, that of Tom Cholmondeley. This heir of British aristocracy, very rich and fond of shooting, was charged with the murder of an alleged poacher who had trespassed onto his land. This was the second man Tom had been accused of killing (the charges in the first incident were dropped due to lack of evidence). The charge of first degree murder was reduced to the lesser offense of manslaughter. In my opinion, this was partly due to lack of evidence, but mostly due to fear of the backlash that would result if Tom was acquitted in this case too.

I had the opportunity to speak to one of Tom’s lawyers, and he was flabbergasted that this case could even proceed to trial with so little evidence. Another debacle courtesy of team Kenya Police. From what I’ve read, by the time the police arrived at the crime scene (Tom’s expansive ranch), night had already fallen. Where they sighted evidence, they moved it so that they could get a better view of it. Problem. When the lighting was too poor to actually conduct a scene investigation, the police left the scene unsecured, with a promise to return the following day to continue the investigation.

The post mortem analysis carried out on the victim indicated that he had been shot twice, once in the buttocks (non-lethal) and another shot that was fatal. Tom fired the buttock shot and ballistics evidence corroborated this. The other shot was fired by a different gun, and possibly by a different person. The police did not pursue this line of questioning. They relied on the testimony of another witness. Tom and his legal team mounted a spirited defence. In the end though, the court of public opinion found him guilty and the judge sided with the public.

*

In Kenya, it seems your guilt or innocence is determined by emotions, who you know, and how much money you have. Justice and fairness are foreign concepts in our criminal justice system. The legal burden of proof lies with the defendant. The preponderance of evidence (the much lower standard of proof used in civil cases), seems to trump reasonable doubt in criminal cases, even when the doubt is clear and legitimate.

Edmond Locard theorized that every contact leaves a trace. By this he meant that every physical contact between people or things left something traceable that could confirm that the contact took place. This principle was so convincing that back then, law enforcement adopted it in crime investigation. If this evidence could be located at the time the crime was committed and analysed, then it would provide critical information about the identity of the perpetrator.

Enter forensic science. The determination of criminal culpability was not sorcery, it needed backing that was impartial and testable, and not subject to whims. Scientists were then called upon to help the criminal justice system (police, lawyers, judges and wardens) in ensuring that the right person was held responsible for the commission of a crime by analysing the evidence and testifying to the accuracy of those results.

It is my contention that forensics in all its forms, as judicious as it is, does not solve crime. The successful resolution of a crime is a team effort. Every step from the crime scene to the courtroom needs people at the helm who know what to do. A degraded, improperly labelled, poorly preserved sample will not yield a result simply because the analyst holds a PhD, or because the equipment he uses was manufactured in Europe. Evidence tampering cannot be undone in the laboratory.

Furthermore, though evidence is the linchpin in a criminal investigation, it only serves as an investigative tool. For example, the presence of semen on a woman’s panties is not a conclusion of sexual assault. It is a conclusion of sexual intercourse with a male who is currently unknown. If the victim is going to claim rape, there has to be evidence to support her claim, and this additional evidence has to be sought and its probative value determined by the investigating detective. The detective still has to ask the questions who, when, where and how, and what he gathers from this has to add up with what the evidence shows.

In another example, if analysis of blood stains on your clothes reveals that the blood is human in origin and not from the slaughter of a chicken, as you had earlier claimed, then you are in the awkward position of having to answer how the blood got onto your clothes. If a DNA test goes on to show that the blood is not yours but someone else’s, then your assertion that you cut your finger and wiped your hand on your shirt cannot be sustained. Evidence points you in a certain direction, and someone has to go out, find the perpetrator, arrest him and charge him with something.

This is why I get puzzled when I hear the prosecution ask for more time to carry out investigations to link a suspect to a crime, especially after they have already arrested and detained the suspect. How are they able to charge someone with a crime yet have insufficient evidence to show that this suspect committed said crime? And where exactly do they hope to find this extra evidence? One of the first things you learn in forensics is that evidence is very transient, and thanks to TV shows like CSI, criminals are learning how to conceal or destroy it, so the sooner a crime scene technician can locate the evidence, the higher the chance of successful resolution.

In the courtroom, scientific evidence makes a better witness than most eyewitness accounts. The former doesn’t perjure itself, doesn’t forget crucial facts, is impartial, and in some cases can be retested. For most lay people, the challenge is in understanding the significance of scientific testimony, because it is so heavily laden with jargon. The prosecution will have the expert from their lab who will testify to this and that but because the defence lawyer does not understand what was said, he or she cannot challenge this testimony. Miscarriage of justice occurs, then, if the triers of the fact cannot raise reasonable arguments against the evidence or testimony produced. Again, this is not something that can be fixed by well-equipped forensic labs.

We require the entire criminal justice system working in tandem. Everyone needs to know his or her role and have the necessary deftness to accomplish it. Possible immediate solutions for Kenya include provision of the right resources in the right quantities at the right time to the already existing forensic laboratories. With the right support, these labs can cater to the needs of the 40+ million Kenyans who would seek those services.

If capital investment is too great for the government to shoulder, outsourcing forensic services to accredited labs is also an option. Outsourcing has worked well in other areas like education, infrastructure development, and health care provision, and could possibly work well in this field too.

When I think about Pete and Tom, I fear for myself because as a potential victim, I have no recourse in our current judicial system. I could be a victim of crime and the perpetrator would be let off the hook due to lack of evidence, or may never be identified due to incomplete investigation. I could be a victim of police who could inaccurately implicate me in a crime, and I would be twiddling my thumbs in remand waiting on them to collate sufficient evidence against me.

Collective vigilance remains necessary. Kenyans have only recently begun to enjoy freedoms under the Bill of Rights. Knowing what your rights are is important, because these situations could happen to anyone.

Sophie Mukwana is a forensic scientist. Follow her on Twitter @SophieHMK

This essay is taken from Brainstorm’s third e-book, Ha!Kuna Matata: Security in Kenya, which is available for free. DOWNLOAD IT HERE to read more such essays.

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