The Bulldog and the Helix Page 10

  Over the next few months, I would be invited to test-fire the new Smith & Wesson 9-millimetre sidearms that were just coming into service, to join the local Crime Stoppers board of directors, and to receive a private two-hour session on the RCMP situational-shooting simulator, called FATS. And when Port Alberni was hit with a rash of pipe-bombings on Halloween night, Murray knew he could call me at home. When I advised Murray I was to spend a week in Vancouver working at the Times’ parent office (Sterling News) in early December, he also arranged a tour of the RCMP forensic lab. By now, Murray knew I was familiar with forensic DNA and that I understood how critical it was to the Jessica States investigation. At the RCMP lab, I had a chance to learn about the latest forensic techniques from the men and women who made them work.

  THE HIGHEST-PROFILE CASE

  On Saturday, January 4, 1997, with members of the States family in attendance, Port Alberni RCMP held a news conference to provide an update on the investigation. Dale Djos told assembled media members that investigators had thus far collected 708 tips from as far away as Nova Scotia, opened 2,408 case files, and generated 3,445 computer files, but to date, had no firm suspects. Investigators had also collected 153 voluntary blood samples from men who had been in the vicinity at the time of the crime, and had collected 455 exhibits.

  By now, Djos said, investigators were resigned to a long-term, highly technical pursuit. When asked if there was any significant, non-technical, non-genetic evidence that could establish identity, Djos replied that “he was not prepared to discuss that.” When asked further, however, if, based on the evidence at the crime scene, investigators were inclined to suspect a predatory sexual psychopath as opposed to an impulse-killer triggered by drug and alcohol use, Djos was prepared to venture an opinion. “I would lean more toward the drug-and-alcohol-induced impulse killing,” he said.

  This was despite the fact that such a killing might be expected to generate a lot more physical evidence, he noted, especially when it was committed in a crowded area in near-daylight conditions. The Operations Support officer for the Port Alberni detachment, Corporal Lee Omilusik, interjected to observe that, in either case, it was quite amazing that, to date, not a single witness had reported seeing or hearing anything at the time of the crime. Omilusik, himself a youth softball coach, was asked if this indicated that the killer was very careful and methodical. “Either very careful or, as the States family has indicated, Jessica may have known the person,” he said, adding, “Or he was very lucky.”

  Djos said it was entirely possible that that the suspect had committed previous violent crimes, possibly even murder. That raised the issue of a centralized genetic data bank for sexual offenders. “It would certainly be beneficial in cases like this. It is currently in the works, but it will be some time before it comes on line,” Djos said, referring to the legislation that was proceeding through Parliament.

  But under current laws, he explained, police could not simply go “fishing in the genetic data pool.” Stored genetic information could at that point only be accessed by warrant on just cause. As contemplated at the time, genetic samples would only go into such a data bank if charges had been laid. Djos further noted that the E Division Serious Crimes Unit had commissioned a psychological profile to assist in identifying the suspect. As the officer in charge of the budget, Djos was asked how long the RCMP could continue to maintain a nine-member task force. As long as it takes, he said, adding, “This is, in my mind, the highest-profile case in the province.”

  A Double Landmark

  ON FEBRUARY 13, 1997, a month after the States news conference, Tommy George, who had attended the same school as the person soon to be arrested for the States murder—two of the students the school principal had early on considered sociopaths—pleaded guilty in a provincial court in Nanaimo to a reduced charge of manslaughter. The Crown counsel from Port Alberni, Steve Stirling, advised that he would seek dangerous offender status for George when the case went to sentencing on May 8 in BC Supreme Court before Madame Justice Downs.

  JUST THREE WEEKS later, at 8:00 AM on March 14, 1997, exactly one month short of twenty years since the murder of Carolyn Lee, Gurmit Singh Dhillon was taken into custody to be charged with first-degree murder. On that Friday morning, Inspector Andy Murray contacted me at the Alberni Valley Times to announce the long-awaited arrest and to advise that a major news conference had been scheduled for that afternoon. Murray said the Lee family had been advised of the arrest, noting that the past twenty years had been an emotional roller-coaster ride for the bereaved family.

  “It is important that the community understand that this is a twenty-year-old case, and the RCMP has been working on it continuously ever since the time her body was located,” Murray said. “This was a team effort, from the work of the initial investigators through the efforts of the Port Alberni GIS, and the BC Integrated Homicide Unit.” Murray then revealed that the Integrated Homicide Unit, already known widely as IHIT, had been involved since the previous year, when the unit began. He talked about how the DNA warrant law, or Bill C-104, introduced on July 13, 1995, empowered police to demand a blood or saliva sample for the purpose of DNA analysis. “It is a result of forensic evidence that we were able to make this charge today,” Murray said. “DNA evidence was a critical factor in this case.”

  I asked Murray, for the record, whether the investigators had established any connection between the Carolyn Lee murder and the killing of Jessica States, just nine months earlier. “We have pursued that aspect,” Murray advised, “and at this time Dhillon is not considered a suspect or a person of interest in the death of Jessica States.”

  Thanks to Murray’s call to the Times, when the press conference began at 1:00 PM, my story was already on the street, released at the paper’s normal early-afternoon time of publication. I had a twenty-four-hour head start on the big dailies—at least, the ones with a Saturday edition. In 1997, major media outlets still sent reporters and camera crews to press conferences in semi-distant communities, if the story was big enough. There was absolutely no doubt that cracking a twenty-year-old murder case with DNA was a big story. The TV outlets would file immediately, and the announcement of the landmark arrest would lead the news cycle. My follow-up story on the press conference would run on Monday.

  At the press conference, RCMP media spokesman Sergeant Peter Montague broke the news. In his presentation, Montague noted that at the time of the Lee murder in 1977, RCMP investigators weren’t aware of DNA as a forensic tool. He emphasized that, while the investigators of the day had no idea that the samples they’d collected at the crime scene would one day create a genetic profile to link a suspect to a crime, they had collected and preserved those samples to the best of their ability, using available technology. “That’s why we place so much emphasis on crime scene evidence,” Montague told the assembled media. What he didn’t say was that it was probably a sheer stroke of luck that the genetic samples had been saved at all. According to the practices of the day, it was far more likely that crime scene swabs and smears, once analyzed, would have been disposed of as a matter of course.

  Montague also revealed another significant landmark: Gurmit Singh Dhillon was the first suspect arrested as a result of an investigation by IHIT, which had only been set up the previous year to re-examine evidence from unsolved homicides using new forensic technology. Montague suggested that citizens could look forward to some significant arrests in the near future as investigators applied the new forensic science to historical cases. “There are three hundred unsolved homicides in BC, dating back to 1920,” he noted.

  Like Murray had done in our meeting earlier that day, Montague cited the 1995 DNA Warrant legislation that now empowered police to compel a genetic sample from a suspect. “We will now be able to solve many more crimes thanks to this legislation,” Montague said, adding that this was the quickest law ever passed through Parliament. “There is no such thing as a statute of limitations on an indictable offence,” he continued. “And
if you can get DNA out of a fossil, you can get it out of a twenty-year-old [evidence] sample.”

  Montague stepped onto contentious ground when he declared that DNA profiling is virtually infallible. “This [technology] is not only promising, it’s an absolute. [DNA analysis] is the most important innovation in the history of modern police work.” That contention would come under fire when Dhillon went to trial nearly two years later. Montague advised that Parliament was still debating the creation of a DNA data bank, where genetic profiles of known offenders would be kept, to assist police in future investigations. That law would eventually receive Royal Assent five days after Dhillon was convicted. Montague also noted the switchover from RFLP to PCR technology at the E Division Lab. “As we speak, the lab is being expanded,” he said. “We will be hiring more technicians and more scientists to increase our ability to process evidence.”

  Ed Watson, from CHEK TV, asked the same question Murray had answered earlier, a question no doubt on everyone’s mind: was Dhillon a suspect in the murder of Jessica States? Montague stated for the record that he was not.

  My follow-up story that ran on Monday, March 17, was headlined “DNA Legislation Cited as Break in Carolyn Lee Case.” A sidebar featured an assemblage from over the years of front-page headlines in the Times related to the case, along with the now-familiar picture of Carolyn, arms linked with her sister Brenda. The sidebar recounted the disappearance of Carolyn Lee and the discovery of her body the next day, along with a recap of the advances in DNA technology and law. The story explained that Dhillon had been remanded in custody by consent and was to appear in Port Alberni Supreme Court on April 2. I wrote, “The matter is expected to be prosecuted by a team made up of local Crown Counsel David Kidd and Darrill Prevett. Mr. Prevett is the Provincial DNA Information Co-ordinator and is called in to prosecute cases in the province involving DNA evidence.”

  ENTER “THE DRAGON”

  When Dhillon was arrested, his family retained Victoria lawyer Russ Chamberlain to represent him at trial. Chamberlain had established a reputation as a formidable defence lawyer, and he wasted no time setting the tone for the upcoming fight. Knowing what they were in for, the prosecution team wasn’t about to be intimidated, according to Dale Djos. “[Chamberlain] came over to Port Alberni like a bull moose. He phoned [Constable] Shelley Arnfield and said he wanted access to all files. She said, ‘Do you realize how many cabinets full of material there are?’ Then we charged him by the page for every copy. He was pretty ripped about that. He figured he was going to come in and bulldoze his way around.”

  “We charged quite a bit for each copy,” Dan Smith noted. “We were required to disclose evidence. We’re not required to disclose it for free. There is a schedule of fees to be charged, and we sent that bill to Mr. Chamberlain.”

  This was Shelley Arnfield’s only involvement in the Carolyn Lee case. There was a reason for that, she explained. “The reason I was elected to be there while he went through the file was because I knew nothing about it. So he couldn’t pump me for info; he couldn’t get me to say things out of school. I couldn’t answer any questions.” Arnfield said Chamberlain originally demanded “the file.” By that time, there were boxes and drawers stuffed with the twenty-year paper trail.

  “He was invited to come in and view it and to copy anything he wanted. So we wheeled a photocopier into the room, and he started going through the file. I think he was overwhelmed by how much stuff there was.” Whenever Chamberlain found a relevant document, Arnfield would make one copy for him and one for the GIS, to keep track of what information he was using. “Not knowing any better, he wanted a copy of the timeline. I gave it to him, and I got shit later from Dan [Smith] and Dale [Djos]. They said, ‘He’s not entitled to that.’ I thought, under ‘full disclosure,’ we had to give him everything.”

  This was one more lesson in Arnfield’s education. While the raw materials contained in the files were fair game, the timeline as developed by the investigating officers over the years was considered “work product,” and work product was considered off the table in the disclosure process. “I screwed up. But clearly, it didn’t come back to bite us in the ass.”

  Smith said the disclosure process has evolved since 1997. “Work product is still off the table—you don’t have to disclose it. But in my view, there’s nothing wrong with disclosing it. Things that would be wrong to disclose would be privileged information. For example, legal opinions that we got from our lawyer or private information such as witnesses’ addresses, and that kind of thing. Today, we wouldn’t put the file into the room with the lawyer. He gets a disk with the file that we have vetted.”

  On Monday, April 21, Dhillon appeared for a bail hearing in Nanaimo Supreme Court. The suspect was released on his own recognizance on a $250,000 bond posted by two family members, who resorted to term deposits and sureties. Dhillon was ordered not to leave Vancouver Island without the permission of his parole officer, nor to apply for a passport. He was to live with his sister in Nanoose Bay, to maintain steady employment, and to report to Port Alberni RCMP three times a week. Further restrictions included that he not be in the presence of any female under the age of eighteen, with the exception of his sister’s niece. He was further ordered to abstain from all alcohol and drugs, and to submit to a Breathalyzer or urinalysis on the request of a peace officer.

  CONSENT DNA SAMPLES IN QUESTION

  The Liberal government of the time, led by Prime Minister Jean Chretien, attempted to pass a new law creating a DNA data bank to store the genetic fingerprints of those convicted of serious crimes. While Bill C-104 had given law enforcement a powerful new weapon, in the DNA warrant, to investigate serious crimes, the federal justice ministry intended to take the new technology further by creating a DNA data bank of convicted offenders. That stored information could be used to re-investigate previously unsolved cases or to link previously sampled offenders to new crimes.

  Just prior to Dhillon’s preliminary hearing, Liberal MLA Barry Penner (Chilliwack) took the unusual step of rising in the BC Legislature to call on the federal Liberal government to pass Bill C-94, the DNA Identification Act, before calling an election in the fall. “I’m urging the Justice Minister to take speedy action and bring forward the DNA Identification Act for debate,” Penner told the House. “It will take time to get this program up and running, and we can’t afford to wait.”

  Penner’s plea was in response to Dhillon’s arrest, which was the direct result of a DNA warrant. The Alberni Valley Times ran the story, with an update from DNA analyst Stefano Mazzega on the switchover from RFLP to PCR analysis at the E Division in Vancouver.

  Mazzega had completed his Bachelor of Science in 1978. After graduation, he sent in an application to the RCMP as part of a series of query letters. “They [the RCMP] called me . . . and in January 1980, I signed on as a civilian trainee in hair and fibre analysis, and I qualified a year after that.” The new lab tech didn’t have to wait long for a major case.

  “One of the first cases I got involved on was Clifford Olson . . . That was really jumping in with both feet.” Between November 17, 1980, and July 30, 1981, Olson had abducted, raped, and murdered eleven children, both male and female, between the ages of eleven and eighteen years old. As the result of a controversial plea bargain deal, the killer’s wife received a total of $100,000 in exchange for his confession. He died in prison in 2011.

  Mazzega began training in DNA analysis in 1993. By then, the RCMP was using a slightly improved RFLP process. Prior to the advent of DNA analysis at the Vancouver lab in 1993, the facility had been divided into two units: Hair and Fibre, and Serology. When the new technology was introduced, the three disciplines combined to form a single unit. Mazzega noted that, by then, the RCMP already had DNA capacity in Ottawa and Edmonton, and the single-lab system had already been tried and proven.

  In similar fashion, when improved PCR technology became available, it was first installed and tested in the Ottawa lab. The new technique w
as now well understood as being far superior to the original British process, especially for cold cases. “For RFLP, you needed a bloodstain the size of a dime to get a profile. And it would take you about six months to get a complete result,” Mazzega explained. “The PCR was extremely sensitive, to the point where you could get a profile off a single hair root, if it still had some tissue attached. And you could turn it around in a week if you had to. So it was a huge step forward.”

  And as the law surrounding forensic DNA evolved, the new technology provided investigators with a more reliable method of obtaining evidence they could actually use in court. As Mazzega pointed out, RFLP analysis was great for those consent samples taken by a doctor or a certified technician. Typically, the donor provided that convenient dime-sized spot of blood and/or a generous swab of epithelial tissue from inside the cheek.

  But the 1994 R. v. Borden case had thrown all of those consent samples into a grey area, making it imperative that the RCMP acquire the capacity to analyze cast-off samples from the most minute quantities of material—bloodstains, body fluids, skin particles, dandruff, dried saliva—the everyday shedding and oozing of daily life. Sometimes an undercover officer would provide a veritable smorgasbord of human sloughings from a potential suspect.

  Mazzega told the Times that, until the new equipment was validated, the Vancouver lab would continue to use the older RFLP process. Until certified, any profile produced under the new technology would be subject to court challenge, he explained. For the moment, he said, the lab would likely add only four new technicians to handle evidence. That number would increase should the DNA data bank bill be passed in Ottawa as hoped.

  “I’m still training on the new technology,” Mazzega said. “We’re still trying to provide the [DNA analysis] service, but some of our work is being sent out to other labs.” The lab was expected to be fully validated and operational on the PCR technology by September 1997.