The case of Robert Kennedy

Arthur Eathorne, found murdered in his flat in 1990

In a recent Australian TV magazine feature on the Meredith Kercher case, the British journalist Nick Pisa said something I found a little odd. In his view, it seems, the case would never have come to court had the murder taken place in the UK, because the evidence is just insufficient.

Now, there are worse things in the world than being a little chauvinistic about standards of justice. But I don’t think that’s exactly what’s going on here. Many people who seek to defend Amanda Knox and Raffaele Sollecito do so, in my opinion, on the basis of a wholly unrealistic view as to how much evidence ought to be enough to convict someone in a court of law.

There’s a lot of evidence in this case. You only need to be able to to count to know that. Of course, for each item of evidence there’s a defence argument, with greater or lesser plausibility, that it doesn’t say what it might appear to say. But the whole purpose of taking the matter to court is to have those arguments adjudged. No prosecutor has ever dropped a case on the grounds that footprints found near a body which tests say were probably made in blood might actually have been made in fruit juice. Or that falsely accusing someone of a murder is a relatively normal thing to do if you are suffering from stress.

I thought I’d take a look at a British case which, in my view, was prosecuted on evidence which was far thinner than in the Kercher case.

Robert Kennedy is a former prostitute, convicted in 1991 of murdering a client. He has always maintained his innocence and has unsuccessfully appealed his conviction twice, the last time being in 2007.

The only physical evidence linking Kennedy to the scene of the crime, the victim’s home, came in the form of two cigarette butts. These were believed by police to have been left by the culprit because a taxi driver had called at the house a short time before the murder, and he testified that the ashtray in which the butts were found was empty at that time. The butts were not initially examined for DNA, but saliva on them was found to be of a type matching Kennedy and also matching about 25% of the population. This evidence was admitted at trial. Years later, the saliva was tested for DNA and it turned out not to be Kennedy’s, but that of an unidentified person.

The main evidence against Kennedy comes from two witness statements relating to a conversation that took place at Kennedy’s shared house. The first witness said that she walked into a room in the middle of a conversation between Kennedy and four other people. They were, according to her, discussing a murder that had happened locally. Since news of the murder had not yet broken in the media, it is unclear how they knew about it. The witness also recalled Kennedy mentioning something about an ashtray and then being told to shut up by someone else present. This is significant, because a large glass ashtray (not the one with the cigarette butts in) was missing from the scene of the crime and may have been the murder weapon. Witness number one also seemed unsure about whether the conversation had taken place on the day of the murder or the day before, but that does not seem prevented her testimony being accepted by the trial jury.

Witness number two was party to the same conversation, but did not hear the word “murder” used, only talk of some incident or other involving two men and a woman. She said that Kennedy had been told to “shut up”, but that this was not anything to do with him mentioning an ashtray. She couldn’t remember what night the conversation had taken place on. She also recalled seeing a pullover with blood-stains on it, but wasn’t completely sure whether that was on the same night.

According to the police, Kennedy had lied to them on two occasions. Firstly, he had at first denied, then later admitted, having had sex with the victim. I think it seems obvious that even an innocent person might have told that lie. Secondly, he told police that he had read in the newspaper that a large glass ashtray was missing from the scene (a fact that had indeed been reported in the media) and offered a description of it from his recollection, saying that it was oval and had a label saying “Hofmeister”. But enquiries with the makers of Hofmeister lager revealed that they had never produced an ashtray fitting the description given by Kennedy.

On remand, Kennedy had also been alleged to have confessed to three fellow inmates. One of these was applying for parole and had agreed with the police that he would try to get information for them by talking to Kennedy. A second was also applying for parole and told the police he had information about Kennedy but would not tell them anything further until he found out whether or not he was going to be released. A third had no parole hearing in process, but had given details about Kennedy’s alleged account of the crime which describing things which were known not to have happened. Kennedy’s story was that he had spoken to all three of the witnesses about his case, which is how they were able to concoct accounts for the police. But he denied having confessed to any of them.

The defence produced evidence that the victim had been wearing a wind-up watch which had stopped a certain time after the murder. Unless this was almost fully-wound when the crime occurred, Kennedy could not have been the murder, because he had a solid alibi.

Those are the facts of the case. It might seem to you like an enormous miscarriage of justice. After all, prisoners, particularly those who might be trying to bargain for a release, are not always reliable witnesses. The witness who heard Kennedy talking about a murder and an ashtray is clearly contradicted by another witness. And surely it is possible that Kennedy just made an honest mistake in describing the ashtray to police. Add this to the dispositive evidence in terms of the DNA and the thing about the watch, and there must be reasonable doubt. Mustn’t there?

I’m not saying any of that is wrong. But perhaps it makes incorrect assumptions about the normal standard of proof in criminal cases. Presumably, the jury heard and evaluated the witnesses, took the evidence before them into account and felt able to make a decision. “Reasonable doubt” is not the same as “no possible objections”.

In the Kercher case, as well as the DNA evidence which is currently the subject of debate, we have all the evidence of a staged break-in, footrprints made in blood (or, possibly, pear juice), Knox’s DNA found mixed with the victim’s blood, her false accusation that someone else committed the murder, two witnesses who saw Knox and Sollecito near the murder scene at times when they claim to have been elsewhere. Maybe the court will eventually decide that all the evidence was misleading. But the process is more-or-less the same as it would be for a British jury. How much do you trust the witnesses? How certain do you feel you need to be about the science? And, for prosecutors, the decision about whether to go to trial is mainly based on making a guess as to what the chances of conviction are, on that basis. I think the idea that all that evidence was never enough to even put before a court just doesn’t show common sense.

By the way, apologies to anyone who Googled in here expecting to find information about a link between Amanda Knox and the other Robert Kennedy.

R v Kennedy [2007] EWCA Crim 3132

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9 Responses to The case of Robert Kennedy

  1. Marlborough says:

    Ok, I can see the point of this comparison. You don’t need to be certain beyond any possibility of error about all the facts of the case, just confident about your overall decision. But then again I’m in the guilty camp as far as Amanda Knox is concerned, so I would say that. To put the shoe on the other foot if that’s the right expression: maybe Kennedy is a victim of an unfair system, just like Knox?

  2. Hi Maundy,

    From the abstract of an article (DNA profiling of trace DNA recovered from bedding Forensic Forensic Science International, Volume 159, Issue 1, 25 May 2006, Pages 21-26) on DNA profiling: “The results indicate that the DNA profile of an individual can be obtained from bedding after one night of sleeping in a bed. The DNA profile of the owner of the bed could also be detected in the foreign bed experiments. Since mixed DNA profiles can be obtained from trace DNA on bedding, caution should be exercised when drawing conclusions from DNA profiling results obtained from such samples.” This is a good example of mixed DNA that was not deposited simultaneously.

    If luminol gave no false positives, it would be classified as a confirmatory test for blood. Moreover, there are quite a few things that produce a reaction besides plant peroxidases If you think that all of the luminol-positive areas were derived from Meredith’s blood, then what is your explanation for the failure to observe Meredith’s DNA in all of them.

    On first impression, the case against Kennedy is not exactly overwhelming.

    • maundy says:

      Hi Chris. I’m not sure where bedding comes into either case. And I’m not sure what you are referencing with “mixed DNA that was not deposited simultaneously”. Is that about the bra-clasp? I agree that the traces would not have been deposited simultaneously.

      The luminol footprints were found in the vicinity of a large quantity of blood, and they tested positive (OK, presumptively) for blood. There only seems to be one footprint where Kercher’s DNA didn’t show up, but Knox’s did. That could mean it was Knox’s blood but the footprint matched to Knox, so the DNA need not be taken as haematic. Or it could be pear juice. Or it could just be that Kercher’s DNA was detected because you don’t always get a positive DNA test from very small quantities of blood.

  3. Hi Maundy,
    I was thinking about the mixed DNA between Amanda and Meredith, but my point would also apply to the clasp. Massei’s theory implies simultaneous deposition, and my point is that mixed DNA can be deposited at two different times. The study on bedding showed that the mixed samples that they observed had to be deposited at different times.

    Many substances, including Draino, give a positive reaction with luminol. The lack of DNA some of the footprints (I think it was three, but I am not certain) is bad enough, but not even doing a confirmatory test is worse, IMO.

    • maundy says:

      The Petricevic, Bright and Cockerton paper is about transfer of touch DNA, so it is not at all relevant to the mixed Kercher/Knox samples in bathroom and FR’s room, where there is far too much DNA for transfer to be a possibility. Nonetheless, I agree that mixed samples do not always mean the simultaneous deposit of DNA from two people. But the only alternative in this case is the deposit of a significant quantify of some DNA-bearing bodily fluid from Knox at one point, and a deposit of the same from Kercher at another point in time but in exactly the same spot, with one or both of those deposits being blood. And that has to happen three times in different locations. What can be ruled out, in case you weren’t aware, is that Knox left DNA by merely touching the bidet, the cotton bud box and FR’s bedroom floor. The quantity of her DNA is too large.

      I’m willing to believe you on Draino.

  4. Hi Maundy,

    You seem to be ignoring the possibility that Amanda deposited large amounts of skin cells in the sink or bidet. Moreover, sampling the blood trace all the way down to the drain plug was something that even Colonel Garofano (no friend of the defense) thought was questionable. There are other problems in the collection techniques used by the forensic police, but I will forego a discussion of them for the moment.

    In general, I would be far more hesitant that you are to draw conclusions from the amount of DNA in an electropherogram. A great deal depends on the total amount of biological material that is sampled.

    • maundy says:

      Chris, I’m ignoring the possibility that Amanda deposited large amounts of skin cells some time prior because it’s a bit daft. We’re talking about an amount of DNA medium that is very large in comparison to skin cells, and there is no evidence that she was in the habit of going round the flat sandpapering herself.

      Whether treating the whole smear as one trace was wise or not I don’t really know. But it doesn’t affect the conclusion – which none of the experts have doubted – that a considerable quantity of Knox’s DNA was present there.

  5. Hi Maundy,

    I am extremely hesitant to cite Colonel Garofano for anything having to do with DNA forensics, because some of what he has said is nonsense. However with respect to the wash basin he did say (DD, p. 370), “The fact that the sample was collected by wiping both the edge and the plughole is dangerous. You’re likely to find all sorts of stuff in the plughole.” In summarizing the defense’s arguments, Massei wrote (pp. 278-280, English translation) that the defense thought the mixed traces were meaningless: “All the more so since the samples had been taken using the same blotting paper which had been used for various parts of the bidet and the sink.

    Which type of body fluid did Amanda deposit in your account? Massei’s interpretation of some of the mixed DNA samples is similar to mine with respect to the source of Amanda’s DNA, but in his version Amanda is washing Meredith’s blood off and depositing her DNA at the same time. My point is that Amanda probably deposited DNA much earlier, and you have agreed that mixed DNA does not necessarily mean simultaneously deposited DNA.

    I strongly disagree with your premise, that the type of tissue or substance that is responsible for the deposition of DNA can be inferred from peak heights. The sample-to-sample variables include how much biological material was collected and the presence or absence of inhibitors of the PCR process. It is also worth pointing out that cheek cells are an excellent source of DNA, and the act of brushing one’s teeth and expectorating would seem to be a good way to deposit DNA. I trust you have read what Dr. Gregory Hampikian said with respect to inferring the presence of blood from peak heights. Recently I asked Dr. Dan Krane a similar question, and he said, “Inferring tissue source from peak heights is just plain silly — to the point of being absolutely outrageous. It hardly bears more comment than that, but if high peaks mean blood then what would you expect from semen which has a ten to one hundred fold higher concentration of DNA?”

    • maundy says:

      Hi Chris.

      I don’t think I have suggested, anywhere, anything about determining the origin of a DNA sample simply by looking at an electropherogram. The only thing I am suggesting you can tell that way – which you most definitely can – is rough information about the quantity of DNA present in the deposit. In this case, we can be sure that we are not looking at trace amounts of DNA, because the RFU values reported are too high. Going solely off the data, the DNA could have come from blood, saliva, skin tissue or whatever.

      The difficulty for the defence is explaining how these innocent deposits of DNA came to be made in the various places where Kercher’s blood was later deposited. A tooth-brushing scenario, for example, might be fine if we were only concerned with explaining the test results from the washbasin. But the reality is, we have to imagine Knox sort of missing when she spat, so that her saliva (we don’t need to worry about cheek cells, saliva will do) ends up in a streak between the washbasin and the bidet. Later, Kercher’s blood ends up streaked over the top in exactly the same pattern. And a stray blob of spit, perhaps, gets on Knox’s thumb and then gets transferred to cotton bud box. Again, in the exact same place that Kercher’s blood is later left by the phantom burglar. And we need to believe that Knox tends to walks around the house brushing her teeth, drooling in the corridor and in someone else bedroom, again in improbable co-location with later-deposited DNA from Kercher.

      Of course, it might be supposed that all these deposits do not come from a single incident. Maybe she brushed her teeth at 10 am, had a nosebleed at 10.30 and so on. But the improbability of her dropping her DNA in exactly the wrong location each time is still the same.

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