The Bulldog and the Helix Page 12
That same month, Arid Lacis, the electron microscopy specialist with RCMP E Division, received Exhibit 26, the vacuum cleaner bag containing the results of the initial police examination of Dhillon’s Blazer. Lacis was asked to examine and compare the contents of the bag with the dirt from the jacket (Exhibit 27). In particular, he was asked to examine the contents of the bag to determine if there were any beads similar to Particle no. 8—the single tiny iron bead—or the nineteen carbonaceous particles from the jacket. Microscopic examination of an extract from Exhibit 26 revealed fifty-one particles described as “dark beads.” Those beads, although not identical to the single iron bead and the nineteen carbon particles from the footprint on Carolyn’s jacket, were found to be “very similar” in their surface features and chemical composition to those found in Dhillon’s Blazer two weeks after the crime.
MEANWHILE, AS THE two-year anniversary of the Jessica States murder approached, Dan Smith provided local media with an update of the investigation to date. Speaking to the Alberni Valley Times on July 22, Smith noted that the nature of the killing was so horrific that even hardened sex offenders had come forward voluntarily to submit blood samples for DNA testing. Those who did not come forward were sampled under a DNA warrant, he later added. “We’ve spoken to 4,890 subjects and we’ve built 3,640 case files,” Smith said. “We have 871 (evidence) exhibits and we’ve received 968 tips.” The investigator confirmed that there had been rumours about possible suspects. However, since the killing, there had been several suicides involving men who were identified as living in the community at the time of the killing. Smith said those suspects had been DNA sampled postmortem—and clearly ruled out.
To date, police had collected 348 blood samples from “persons of interest” or males who were in the vicinity at the time of the crime. As of July 6, 1997, those samples had been processed on a priority basis, Smith noted, adding that he was still tracking down individuals from whom to obtain samples. Here Smith raised the point about the genetic anomaly Hiron Poon had observed in the suspect DNA profile, and which had initially led investigators to believe he was of non-Caucasian, possibly black/African, heritage. “We know the killer has a unique DNA stamp—something our lab people haven’t seen before,” he said, “But we don’t have any science which would tell us what characteristics this might produce.”
Smith said forensic investigators had also collected hair samples from the crime scene. While there was no way to be sure if the evidence came from the suspect for certain, those samples had been sent to the US Army lab in Maryland for mitochondrial DNA analysis. While the hair root contains the complete DNA profile of the donor, mitochondrial DNA found in the hair fibre provides only the DNA profile of the donor’s mother (known as matrilineal DNA). The US Army had pioneered mitochondrial DNA analysis and technology, mainly for the purpose of identifying bodies, and now offered the service to law enforcement. Even today, it is considered useful in determining maternally linked relationships and can prove helpful in identifying a suspect pool or a burned corpse, but it is not considered conclusive in a court of law. Smith said the RCMP had spent about $40,000 on mitochondrial DNA testing.
That same day, Stefano Mazzega provided the Times with an update on the changeover to PCR technology at the E Division’s forensic lab. Mazzega advised that since the time of Jessica’s murder, the RCMP had advanced two full generations in DNA technology. The first samples had been tested using the original RFLP process, then retested using the first generation of PCR technology, which was fully installed by September 1997. “We’ve changed to a refinement of PCR technology,” Mazzega told the Times. “Originally, we could study three or four loci (gene structures) per gel—now we can study nine. It’s called a Nineplex, and it’s now commercially available.”
Under the original technology, it was possible to exclude a suspect with a single gel. However, in order to make a ten-loci match, it was necessary to run at least three separate tests. The Nineplex process had the potential to speed up the processing of samples, but would require about six months of testing, Mazzega said.
DHILLON GOES TO TRIAL
The trial of Gurmit Singh Dhillon opened in voir dire (no jury present) on Tuesday, November 3, 1998, in the Supreme Court in Victoria. The jury—eight women and four men—had been selected the previous day. But on opening day, Dhillon’s counsel, Russ Chamberlain, and senior Crown counsel Darrill Prevett advised Justice Al Stewart that they would present evidence out of the presence of the jury for the first three days of the trial. Chamberlain set the tone for the trial during the voir dire session. Spectators were allowed, as were reporters, but Chamberlain stipulated that they could not report on the proceedings themselves. Brian Wilford, a staff reporter for the Alberni Valley Times, covered the trial. He wrote, “Mr. Dhillon, balding, silvering, and wearing glasses, was dressed in a black suit. He sat quietly through the proceedings. When he was released from custody on $250,000 bail, he was ordered to live with his sister in Nanoose Bay. Neither members of his family nor the Lee family attended Tuesday’s proceedings.”
As the investigator who had advanced the case forward through evolving DNA law and technology (and file coordinator), Dan Smith became the focal point of Chamberlain’s attack on the evidence and police procedure. “So much of the evidence that would point to a conviction hinged on the jury hearing the grounds for the DNA warrant. That was very vigorously defended,” Smith said. “As with all murders, it was a very complex case that stretched out over a long period of time, so it was very vigorously defended and very accusatory in tone. In other words, any little perceived thing that they could point to, to indicate a Charter violation, they certainly did.”
Smith noted that, early in the investigation, it felt like the goalposts provided by the Charter of Rights and Freedoms were still actively evolving. But by late 1998, a number of key Charter precedents had been established. It was during the voir dire that Justice Stewart threw out the consent sample. Now, because the overwhelming odds had been calculated by compounding the profiles produced using both the consent and warranted samples, the DNA case was at risk.
“Certainly, it was disheartening,” says Smith, “and certainly, I didn’t want to be responsible for a Charter violation that would result in this multi-year investigation being wasted.” But by now, Prevett had located a private lab in the Vancouver suburb of Richmond that did PCR analysis. With the balance of the trial now at risk, Smith made the first of two fast trips to the Lower Mainland.
By November 1998, PCR technology had improved markedly, along with the turnaround time. “I took the sample to the lab in Richmond, and they did the analysis on the weekend. It cost the Crown $10,000, and on Monday morning we were back in court with odds of one in 165 million. The science had progressed so much that they were able to accomplish in two days what it had taken us years to do during the course of the investigation.” The trial opened before the jury on Monday, November 9.
LYLE PRICE, CALLED as a witness for the Crown, said he cannot recall exactly when he was advised that, twenty-one years after the fact, he would be asked to relate the exact details of that wet day in the potato field, and then face aggressive cross-examination by a well-known and formidable defence attorney. “Somebody phoned me up and asked me if I could be in Victoria for a while,” he recalled. “I said I’d go—I’d testify. Of course, they prepped me before [testifying] and asked me some questions.” The coaching included how to handle himself during cross-examination. “They tell you, don’t answer anything that isn’t asked. It wasn’t rocket science. It was an interesting process, but a lot of waiting around. Of course, it would have been absolutely fascinating to have been in the courtroom the whole time, but you can’t do that.”
And that raised one question that lingers. Typically, after a witness testifies, they are allowed to attend the remaining proceedings, but Price was required to leave the courtroom. Price said he believes the Crown wanted to keep him in reserve for additional testimony, but h
e never returned to the stand.
In his opening remarks, David Kidd, the Crown counsel from Port Alberni, told jurors it had taken twenty years before DNA science had evolved to the stage where it could provide a match for the small and degraded samples retained by investigators in 1977. Kidd expressed his confidence that after hearing the DNA evidence, in combination with other evidence and witness testimony, the jurors would “have little difficulty concluding that Gurmit Singh Dhillon committed this crime,” as Wilford reported.
Kidd recounted the recreation of Carolyn’s last walk from the dance studio and the route that should have seen her arrive at her parent’s restaurant just minutes later. He then described Dhillon’s projected route from the nearby Alberni Foundry. Kidd spelled out the physical evidence that was collected at the time of the crime, with a brief outline of the improvements in technology, and the new laws created to allow police and prosecutors to use and to present DNA evidence under Canadian law.
On November 10, Sergeant Donald Blair, former head of the Port Alberni General Investigation Section and former lead investigator on the case, took the stand to testify on the early days of the investigation. Blair gave a steady and full account of the nineteen-hour search that ensued after his watch commander called him at home at 9:15 PM on the night Carolyn was reported missing: “But the white-haired retired officer’s voice caught, then dropped to a whisper when his testimony came to 4:15 PM April 15, 1977. The call came in from the watch commander telling him ‘the missing girl has been discovered.’ With the courtroom hushed, he paused and looked down for a few moments to collect himself, pushing back obvious pain from more than two decades ago.”
Sixteen years after the trial, in an extended telephone interview with me, Blair’s memory was no less detailed and, at key points, no less emotional than his testimony before the jury. Under cross-examination, defence counsel Russ Chamberlain emphasized that his client had been fully cooperative when police asked to examine his truck, noting that “no warrants were necessary.” Blair conceded that there was no direct evidence to disprove the alibi Dhillon had provided in his initial interview. But within the time sequence Dhillon outlined—his departure from the foundry between 6:30 and 7:00 PM, the trip through the free car wash, and beers at the Beaufort Hotel—Blair emphasized that there was a critical gap of at least a half hour, if not more.
Blair told the court he had timed himself driving from the most likely site where Carolyn would have been abducted to the abandoned railway siding where her body was found. With a driving time of five minutes each way, he maintained that the crime could have been accomplished in that critical half-hour gap. He conceded that the first bulletins he sent out to other police departments incorrectly stated that the tires on the suspect’s vehicle were possibly 750 x 16 or 750 x 17 Seiberlings and that the front tires may have been ribbed summer-tread tires, despite the conclusion of Jack Mackenzie, owner of Jack’s Tire, that the tires were definitely the smaller 700 x 15 Seiberlings. Mackenzie would later testify that he had no idea why police had considered the larger tires in their search.
AFTER A ONE-DAY break for the Remembrance Day holiday, Chamberlain ramped up the pressure in his cross-examination of Blair, suggesting that Dhillon was “another Guy Paul Morin.” (In that infamous case, Morin was wrongfully convicted, in 1992, of the murder of a child, Christine Jessop. After DNA analysis of the evidence, Morin was cleared of the murder in 1995, and an inquiry into the case by the province of Ontario concluded that police had skewed evidence to secure a conviction.)
While Chamberlain cited the DNA evidence as incontestable proof of Morin’s innocence, he would later contend vigorously that the new technology was fallible and of little worth in proving his client’s guilt. Chamberlain accused the RCMP of conducting their investigation with “tunnel vision,” after establishing the link with Dhillon’s tire treads. He said police “only considered information to convict.”
In his testimony, Ian MacDonald, the constable who had worked on the sexual assault case of Mildred Rose Mickey around the same time as Carolyn Lee was murdered, explained how Mickey had identified Dhillon’s vehicle. Chamberlain then pounced on the fact that, during the subsequent photo lineup, Mickey had unhesitatingly excluded Dhillon as her attacker. “As a last-ditch effort to nail him, you pointed him out to her,” Chamberlain said. “You were trying to get Dhillon at all costs, to the point where you were willing to throw out your integrity as a police officer.” Chamberlain said that the theme of the investigation was “get Dhillon.” Chamberlain would maintain this stance throughout the trial, as well as bringing into question the reliability of DNA technology and analysis.
Dan Smith took the stand the next day. During questioning from Prevett, the investigator placed into evidence numerous bagged items that had been collected at the crime scene twenty-one years earlier:
>one pair of light blue panties bristling with red and white identification tags
>a jade green sweater with dark-green and orange stripes
>white leotards
>various swabs and samples
>hair samples from Carolyn, from her parents, and from the accused
At this point, Chamberlain interjected that the samples also included hair that appeared to be blond. One item seemed to have special significance, although it was not revealed at the time: “Blue jeans in a box wrapped in brown paper and all of that in a plastic bag. Just back from the lab in Vancouver last week, said Corporal Smith, without saying why,” as Wilford reported.
What the court never heard was that the jeans worn by Carolyn had caused another mad scramble for analysis, a hasty round-trip to the Lower Mainland for Dan Smith, and a career highlight for one Vancouver cab driver. When Smith first began his testimony in the voir dire hearing the previous week, he spotted something he had not previously noticed in the evidence.
“The exhibits had been seized in 1977. I had gone through them, but I had not examined them physically,” Smith said. “It would have been pointless for me to do that because I am not an analyst. So there I am at trial, handing over exhibits in bags. Naturally, I was wearing rubber gloves when I handed over a pair of jeans. As I was doing that, I noticed a white stain on the leg of the jeans. I pointed this out to Prevett, who immediately asked for an adjournment.
“I phoned the lab. I had gone over the exhibit and noted they had not found any biological material on them. Nonetheless, there, staring at me, was a white stain on the leg. I asked if they could do a scan on this if I flew over there right away, and they said yes.” Smith rushed down to Harbour Air, where there was a floatplane waiting to take him to Vancouver. Along the way, he arranged for a taxi to be waiting at the dock.
“I got in the taxi and explained, ‘I am a policeman. I have to get to the RCMP lab at 37th and Heather, and I have to get there as quickly as possible because I am in the middle of a trial.’” Naturally, the cabbie was sceptical and Smith had to assure him this wasn’t some sort of trap. “I told him, ‘I’m not going to give you a ticket. I’m a murder investigator, not a traffic cop.’” Smith promised to wave his badge if they were pulled over by the Vancouver City Police. The cab driver told him, “‘I’ve waited for this moment my whole life,’ and off he went like a shot, driving like a maniac. He got me to the lab in no time, and as we were pulling up, I told him it would be about twenty minutes to get the lab work done and could he arrange to have another taxi to get me back to the floatplane? He said, ‘I’ll wait for you.’”
Disappointingly, the white stain had no evidentiary value, so it was a wasted trip, but it demonstrated how far the Crown was willing to go to bring in a successful prosecution in this prototype case. Smith said one only had to look back at the 1995 murder trial of former NFL star O.J. Simpson to learn how not to prosecute a case that turned on DNA evidence. While investigator Mark Fuhrman’s mishandling of the notorious “bloody glove” was the most glaring flaw in the prosecution’s case, Los Angeles police technicians and lab scientists also mad
e a succession of procedural errors while gathering state’s evidence, making Simpson’s acquittal almost inevitable. “We were somewhat better off in that we were not dealing with the American style of justice,” said Smith, “and we were well aware of the need to maintain continuity of exhibits and of all manner of techniques required to prevent contamination of exhibits. That was one of the major concerns in the O.J. case.”
AFTER LAYING OUT the Crown’s case before the jury, Smith faced another round of cross-examination from Chamberlain. This time, the defence counsel pulled out all the stops. “He was very vigorous in defending his client. Every question had an accusatory tone to it. You always felt like you were the accused. You’re definitely under attack, here. That played along for quite a while. I believe, at one point, David Kidd objected, and the judge agreed. I can’t even remember what the question was. I was just thankful that someone came along and said, ‘Enough’s enough!’”
Smith said he was well aware of Chamberlain’s reputation as anti-police and “a bit of a dragon” in court. While taking the brunt of Chamberlain’s courtroom fury, Smith said that he could appreciate that Chamberlain was an effective defence lawyer. “Mr. Dhillon certainly got a very good defence—the best defence that he could have hoped for,” he said. All told, Smith spent four days on the stand in the Dhillon trial, about half of that in cross-examination by Chamberlain. “Chamberlain was all over me as I defended the DNA warrant. He was on me like a pit bull on a poodle.”
At the end of Chamberlain’s cross-examination, however, Smith and Prevett were satisfied that Chamberlain had not been able to poke any holes in the chain of evidence. Still, there was always the possibility of an appeal, and if the appeal court overturned the validity of the 1996 DNA warrant, the Crown would be forced to call for a retrial. But by now, the higher courts had upheld the use of cast-off DNA evidence, and Smith saw his opportunity to collect a sample as the trial progressed. In the lobby of the Victoria courthouse, next to the sheriff’s office, was a coffee kiosk with a bench situated adjacent to the front door.