Absence of evidence is not evidence of absence. Dr. Carl Sagan
Seven Hairs - pubic and bleached
I heard sniffles in the gallery. Sniffles could mean tears of emotion, but these days it usually just meant someone was coming down with a cold.
It was flu season in Winnipeg, the middle of February, when the unending cold weather starts to mow down the weak, stressed and tired.
The Judge continued his charge. “Now you will recall that Mr. Ogilvie testified as to what contamination is about… the word we have heard a lot about in this trial, and what that word meant in the context of the hair and fiber section and in that regard he explained how hair could appear on an object as a result of cross transfer or secondary transfer. He explained how cross transfer happens when two items are placed together and materials exchange between them. Secondary transfer is an indirect transfer by way of an intermediate object. In other words, transfer occurs when the material on one object is picked up by the third object.”
He was talking about the hair. Oh, how we remembered the topic of hair during the trial.
It was as if we were in a biology class. “The hair grows from the scalp. Cells are being created which causes hair to grow. It grows for a period of time then ultimately it goes into the third phase of the hair life cycle which is the telogen phase, T-E-L-O-G-E-N. In this stage the hair has reached the end of its growing cycle and is ready to fall off. It will fall off with very little force applied, such as in the shower or something. Third stage, marks the end of growing phase and ready to fall off (cathagen), the balding stage.”
There was a murmur at the explanation of “balding”.
This talk of hair took almost an entire week.
The week had begun with photographs of hair. James Rojais Anis, a patrol sergeant with the Winnipeg Police, who had taken extensive training at the Police College in Ottawa in the photography of blood spatter, exhibit preservation, and fingerprinting, was called to the stand.
Crown Brian Bell began his examination. “Sergeant, do you recall that you and I met in June 19, 2009 about this particular matter?”
Anis replied, “Yes, I do.”
“What was your goal in creating the photographs here?”
“It was to replicate the actual exhibits in a photograph.”
Then he took out a large, blue Duo-Tang booklet of 29 color photographs. They were enlarged photographs selected from a contact sheet of all the exhibits found in the shed of the crime scene. Seven of these were of the seven slides of hair.
Almost immediately, the Defence began to object vigorously. When his debate became quite heated, the jury was excused.
The Defence had issues with the reliability of the coloration of the slides, the possible changes in the hair. Since the hair exhibit was over 25 years old, he suggested that there had been possible distortions that would be magnified and weighted by the photographs. Even though he didn’t object to the slides of the original hair being submitted since they were evidence, he objected to the submission of the photographs. He was vehement.
The Crown calmly told the Judge that because the seven microscope slides were extremely small, they needed to be magnified for the convenience of the jury. And even though the photographs might not be an exact representation, they were done by an experienced photographer.
After hearing both sides, the Judge ruled that the photographs themselves met the accuracy and reliability necessary. After what seemed an exorbitant amount of time, the blue Duo-Tang booklet of 29 color photographs was finally submitted as evidence.
The jury was called in and the examination of the witness continued.
True to his word, the judge told the jury. “Just let me say at this point in time, you will have, in due course, marked as an exhibit, the original slides. It’s going to be the original slides that you will want to examine. The booklet of photos as you heard Mr. Bell say earlier, are your assistance. It will be the actual slides that you’ll also want to take care to examine in due course. …”
In the absence of the jury, Donald Burgess Ogilvie was called as the next witness on the stand. But before he could utter a word, Simmonds was on his feet. “The court is aware, that this area has been extremely contentious and therefore, I’m not sure there is an expertise in this area.”
That debate was on. Was Ogilvie an expert or not?
We were dismissed for lunch.
After lunch the jury was called in only to be dismissed again.
All day Wednesday, and even the beginning of Thursday, we were into voir dire mode with Ogilvie coming and going as needed.
We heard that Ogilvie had testified about 150 times in court – more than half involving hair comparisons. During his career he had received 50,000 samples completed the examinations and given testimony. He had testified at all trial levels in British Columbia, Alberta, Saskatchewan, Manitoba and the three Territories. He had given evidence – opinion evidence with regard to human hair identification, animal hair, textile fibers (manmade or other), and physical matching.
But was Ogilvie’s expertise dated? Was Trichology – the field of study of hair that dates back to the mid-1800s – allowable as a credible science in forensics where it had been used for hair comparisons?
“My learned friend is now in a position in which somehow or other he wants to, without offering him as an expert, offer him as an expert, and with the greatest of respect, it needs to be clear - he either is or he isn’t.” Simmonds argued.
Bell withdrew the word “expert” but then tried to introduce Ogilvie as someone who was going to speak about evidence with the professionalism of his training and experience, observing the hair slightly beyond what a layman might do but not as an expert would.
Bell explained over and over that these kind of “non-expert” observations would be needed for the supporting narrative later on. He argued that Ogilvie should be allowed to give “opinion evidence.”
End of Wednesday, the Judge finally made a ruling. “In the context of an area so replete with potential danger, an area that has been so often the subject matter of caution by the courts, I am hesitant to permit an expert to be qualified in the circumstances such as Mr. Ogilvie, where he has little current knowledge of the present-day standards and techniques used in the area of microscopy. His opinion would significantly skew what it is the jury will hear. Accordingly, I have come to the determination that I am not prepared to qualify Mr. Ogilvie in the area requested by the Crown for the purpose of the opinion evidence that the Crown seeks.”
Ogilvie had been demoted.
It was clear, however, even though he wasn’t an expert or allowed to give opinion evidence, he would be allowed in as a witness, the head of the RCMP Hair and Fibre Section in Winnipeg in 1985. He was important to the continuity of the evidence, the chain of custody that had to be established.
Still in voir dire, the Judge invited the Crown to summarize the exhibits that would be presented.
With great detail, Bell took Ogilvie through the photo book of the seven slides, examining each one meticulously – paying special attention to the notations.
The first hair was on the shroud or sheet that had been used to cover Candace’s body when it was taken to Seven Oaks Hospital. It had four hairs on it which Ogilvie identified as three hairs coming from Candace, and one from an unknown source. The unknown hair was a pubic hair.
The second hair was found on her Melton, maroon-colored bomber type jacket. Melton is a woolen cloth with a short nap that just loves to catch wayward hairs. There were 24 human scalp hairs on it. The one he chose was from an unknown source also pubic.
The third hair was off the jacket but it was a scalp hair, about four inches long, that was bleached very close to the root, becoming a warm tawny color.
The fourth hair was also off her jacket, a scalp hair a little over five inches long that was also bleached close to the root.
The fifth hair was found on her sock. This one was a pubic hair, about two inches long and similar to the other pubic hair.
The sixth hair was found on the log. This was a scalp hair, a little over four inches long, and it too had been bleached.
And the seventh hair came from the jeans – a scalp hair, shorter than the others, but was also bleached close to the root. It was of a reddish-brown hue.
Seven hairs that told a story of someone spending quite a bit of time with our daughter in the shed, so much so that the hair naturally falling from his head landed on Candace’s jeans and two on her jacket. Was he sitting on the log so that the hair landed there as well? Was he watching her as he sat there? Why the pubic hair?
There was something about the seven hairs, the similarities between them that caught Ogilvie’s attention.
“I had meetings with the police because some of the hairs in question appeared to have been artificially bleached. This would have been visible to a lay person, such as a detective, so the potential was there that it could be useful in their investigation or if they did arrest someone, whether or not they should seize a known standard from that person.”
Simmonds still wasn’t satisfied. He became more specific. He did not want there to be any reference to whether the hair had been bleached or dyed.
“If he’s not an expert then he’s not able to give an opinion with respect to questions of dyes or bleaching or things of that nature – obviously….” Simonds argued.
“Why?” asked the Judge.
“He is seeing it, based upon what he’s told the court, at 100-degree magnification. So, it’s not like a little observation. He’s looking at it in a particular way and in our view will give the same aura of some kind of expertise despite the fact that he doesn’t have it.”
There was another long argument that we didn’t understand.
Finally, they arrived at a compromise. Simmonds gave permission that he would not object to the phrase “similarities including color” to be used in the supportive narrative still to come.
The Judge ruled that no one was to use the words “dyed or bleached”.
Simmonds looked triumphant – and I did not understand the significance of it all.
I just knew that this was the first time the Judge had ruled against the Crown and in favor of the Defence.
Court was dismissed.
I stood up.
Ordinarily, the accused and I were shielded from each other, but this time my step forward coincided with his looking around the side of the prisoner’s box, allowing our eyes to lock.
He was smiling at me. He was delighted.
Little did we know how important this discussion of hair was to the over-all narrative of the case.
It was during this voir dire interrupted week, that my three siblings came in from the West Coast.
First of all, they weren’t terribly impressed with our Winnipeg winter but braved the freezing, -18C temperatures to walk from their hotel to the courtroom every morning. They looked so cold, still rubbing their hands as they walked in and sat down, looking a little bewildered with the whole discussion about hair.
Secondly, they weren't very interested in this discussion of hair.
My sister, Luella, and her husband, Jake, had come to stay with us during the preliminary hearing; so she had a good understanding of the trial process and the issues involved. I had come to rely on my sister’s ability to grasp the details and help me debrief. Together we could usually reconstruct what had happened during the day.
To see her as confused as me was a great comfort. So we abandoned discussions about the trial and began to just enjoy our family gathering and catching up on each other’s lives.
As they left Thursday – mid-morning when we were in the middle of another session with Ogilvie – I asked them one more time what their understanding was of the proceedings.
“It didn’t make sense – none of it,” they told me. And it didn’t. It had been endless talk about hair, a whole week of it.
After my family had left, the real examination of Ogilvie began.
With the jury in the room, we waited for court to begin.
“Mr. Ogilvie, please report to courtroom 230.”
He didn’t come.
We waited. The jury was in. It was time for the Crown to examine the witness.
They called for him a second time. He still didn’t come.
I wouldn’t have blamed him for leaving. Even contempt of court would have been easier than the grilling he had had to endure.
Finally, the door opened.
With amazing calmness, the witness moved to the witness stand.
“Please state and spell your full name for the record.”
“Donald Burgess Ogilvie.”
He seemed small standing in the witness box, careful and polite.
“Would you care for water?” the Clerk asked.
He set the glass down and remained standing.
Finally it was official. The jury was watching.
Cautiously the Crown began his examination.
“I understand, sir, that you have a Bachelor of Science degree, University of Manitoba, in 1968 with a major in zoology and a minor in botany; is that correct?”
“And you worked in the Hair and Fiber Section; is that correct?”
“Yes, that is correct.”
“And that was up until 1975 and I believe at that point you became the section head of the Hair and Fiber Section at the forensic laboratory, here in Winnipeg. Is that right?”
“Yes, that is right.”
“Mr. Ogilvie, can you tell the court, please, when you first became involved in this matter?”
“January 18th, 1985.”
“And what happened on that particular day?”
“On that particular day I received five large items from Sergeant Bellingham of the Winnipeg police identification section.”
“Now I understand, sir, among the five things you received on this day. There was something described as a large metal gear and hoist?”
“Yes. That was one of the items.”
“And a couple of big pieces of log; is that correct?”
“That is correct,” Ogilvie answered
A few days later on January 22, 1985, he received more items, a colored maroon blue bomber type jacket, and a pair of blue jeans, a sock and twine. After the autopsy had been concluded, he received the last exhibit described as either a sheet or a shroud. He had collected a total of 125 hairs, 52 hairs were of particular interest, 24 from the jacket, 22 from the blue jeans, four from the twine and one from the sock, another from the log beside the body.
Since his expertise at the time was more to do with hair, he returned the twine.
He also received what are called “standards” – samples of hair from known people, such as Candace and from our family members, and a person called Audrey Moreno. I remember the police had asked us to give samples of our pubic hair.
Out of the courtroom, we had heard from the original investigators that Ogilvie was able to group them all and identify them as belonging to someone known. But there were seven human hairs that did not belong to anyone – completely unique. The seven hairs were dyed with two distinct applications, they said, which is why at the time they had assumed it was a woman who had taken Candace, never thinking that a man would dye his hair in this fashion.
In court we learned that in total Ogilvie received 58 other exhibits which he catalogued carefully.
He went on to describe the science of hair, the different parts, and the different stages.
The Crown asked, “You mentioned, sir, that you looked at pigmentation of hair. Is there any other coloration of hair that, that may catch your eye or be remarkable when you’re examining a hair?”
Ogilvie answered. “Yes. I would look at the presence or absence of any notable or discernible, rather, bleaching or dyeing.”
“Are you able to, sir, differentiate between animal versus human hair, can you do that?”
“What about hair from someone's scalp, head hair or pubic hair?”
“…. it has the characteristics generally of that area and lacks some of the characteristics of a different area.”
“Are you familiar with the, the phrase secondary transfer or cross transfer, Mr. Ogilvie?”
“Certainly. The term a transfer of hair, a primary transfer, for example, if two people were in contact with each other and one person transferred some of his hair to let's say, for example, an item of clothing of the other person, that would be a primary transfer. A secondary transfer occurs when someone loses a hair and then someone else comes along and picks up that hair somehow. For example, if the hair was on the floor they might pick it up on a sock.”
The challenge of every lab is to control the transfers.
Bell asked Ogilvie about the condition of the laboratory in which he worked, and the kind of lighting used by the RCMP at the time.
“Is it like CSI?” Bell asked, referencing the fictional U.S. television show where forensic science is used to solve crimes, typically at a rapid-fire pace. Some prosecutors have expressed frustration at how the show paints an unrealistic picture of forensic sciences that people can carry with them into the juror's box.
“No, completely not like CSI,” Ogilvie smiled.
The cross-examination of Ogilvie was brutal. Yet the man answered all the questions that ripped apart his reputation and his expertise as a Trichologist with great calmness and dignity.
I was remembering how the expertise of a Trichologist came under fire during James Driskell’s trial in 1991, James Driskell was convicted of murdering a friend, Peter Harder, a small-time Winnipeg thief. Police found three hairs in Mr. Driskell’s van that an expert said matched those taken from Mr. Harder’s body.
But, as time went on, it turned out that hair analysis was proven to not be a very reliable tool in determining guilt or innocence. Instead of delivering a 4,500-to-one probability as first thought, it was later found out that hair comparisons are no better than 50:50 probability.
Later DNA analysis found the hairs in Driskell’s truck had not come from Harder. In fact, they had come from three different people. James Driskell spent 12 years in prison because of this error.
From that point on - the consensus was that all microscopic hair comparison evidence should be received with great caution.
The Defence was also going to make sure of that.
At one point, coughing from a jury member started to interfere with the process. The Judge stopped the proceedings and asked if someone needed to take a break.
The jury foreman took a quick poll. “We'll keep going.”
They were handing out lozenges. Even the Judge was struggling with a cold.
Eventually one of the jury members became so ill, and her coughing so disruptive, the jury did need to exit to give her relief. The next day we were dismissed because of her illness reminding us of the fragility of each jury member and the vulnerability of the jury process.
Miraculously, our family had not gotten ill at all.
Here is another blog of random thoughts.
All your life will ever be: March 2011
We are becoming part of the court community. Late one night I received a call.
“Do you remember me?” she asked introducing herself as one of the cashiers at the Woodsworth Cafeteria adjacent to the Law Courts Building.
“Of course,” I answered.
Our friends and family all quite enjoyed the cafeteria on the main floor of the office building. It was huge, spacious, airy, with massive windows and long tables that we could just gather around at any time.
The coffee of all flavors cost next to nothing, so it became a habit to bring our bag lunches into the cafeteria, buy a cup of something to drink, and eat together every day.
We managed to live quite inexpensively for the five weeks of the trial.
We also formed casual relationships with many of the staff at the Law Courts. There was the Court Clerk who seemed to go out of her way to look after us, reserving seats for us in the courtroom, making sure we could see, could hear, and even put chocolate Hershey’s Kisses on our gallery chairs on Valentine’s Day.
The security guards became our friends, sometimes waving us through rather easily, realizing that our big bags didn’t carry artillery or automatic weaponry but just sandwiches, yogurt and bottles of water.
On occasion we might have caused concern, especially the time when our nephew was playing peek-a-boo with his toddler crawling on the rug. However, the security cameras didn’t show the toddler on the floor. They showed only this young man with a rather striking five o’clock shadow jumping up and down making faces at the hidden camera. Then they came to check on us, their faces drawn, their hands on their belts, but soon realized what had happened and stayed to joke with the young folk.
At the front door security station, they also offered a way for us to avoid the media cameras outside – which we appreciated but never had need of.
Anyway, the cafeteria cashier called last night. She too had found life hard. She was reaching out. I think she missed our group coming through.
It reminded me again that there are many losses around us - expressed and unexpressed grief . We all need comfort, We all need that touch of connection – that shared experience.
Long you live and high you'll fly and smiles you'll give and tears you'll cry and all you touch and all you see is all your life will ever be. Pink Floyd
By the way to protect the vulnerable in this story - I am changing their names.
Thank you for reading this first draft. I do apologize for the formatting.
Please write me at email@example.com for any comments - corrections, insights or alerts.