Evidence Fabrication in South Africa

[Louis van der Vyver]

SConner, According to the Author, there are no plans as yet for a US release.

There is a lot of speculation, questions and explanations about the title of the book.

I received one such question/opinion from an expert in the USA and referred it to the author and received the reply quoted at the bottom:

Received by email:

An interesting observation - I presumed the title "Fruit of a Poisoned Tree" came to the mind of Antony based on a US legal ruing, cited in a Supreme Court case, but from looking at the scripture quotation in the beginning, it appears it might not have.

The term "Fruit of the Poisoned Tree" in US legal jargon and is explained below. If as a result of something illegal, i.e. search without a warrant, illegal arrest, etc., the police then discover additional evidence that is incriminating, that additional evidence would not be allowed in court. Although in the case of Fred, all the evidence was either fabricated or otherwise misused or mis-evaluated, I thought you might want to know how the term is used. See further explanation below.

B.....

For instance - "The "fruit of the poisonous tree" doctrine is an offspring of the Exclusionary Rule. The exclusionary rule mandates that evidence obtained from an illegal arrest, unreasonable search, or coercive interrogation must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an illegal arrest, unreasonable search, or coercive interrogation. Like the exclusionary rule, the fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures.
The name fruit of the poisonous tree is thus a metaphor: the poisonous tree is evidence seized in an illegal arrest, search, or interrogation by law enforcement. The fruit of this poisonous tree is evidence later discovered because of knowledge gained from the first illegal search, arrest, or interrogation. The poisonous tree and the fruit are both excluded from a criminal trial."

After forwarding the above to Antony Altbeker he replied with:

The title is supposed to suggest a whole lot of things. One of those is the legal question of evidence obtained under unlawful circumstances. Of course, this is not what happened in Fred's case, but most readers won't know that until late in the book when i explain it. More importantly, I'm trying to suggest in the book that the conduct of the police has its roots in the organisational culture of the institution which, in turn, has its roots in the nature of policing in SA for the past few generations. There is also the biblical allusion, which, as you know, plays into a sub-theme of the book.

[pjsalicco]

Hello Pat,

This is unbelievable. What were they thinking!!!!! This is going to be an interesting year.......

Thanks for the update
Pete Salicco

[Pat A. Wertheim]

Here is another book review:
http://www.leadershiponline.co.za/artic ... soned-tree

A book of facts and prejudice

Few books have received as much media coverage in a very long time as Antony Altbeker’s Fruit of a Poisoned Tree on the sensational trail of Fred van der Vyver on a charge of murder – accused of having killed his Stellenbosch student girlfriend, Inge Lotz. The book does not only show how deeply flawed the investigation of the murder and prosecution process was, but it also controversially and disappointingly puts on trial religion, Afrikanerdom, apartheid and even the late advocate, Percy Yutar.

Way back in 1968, as a second-year journalism student at the then most Calvinist of all institutions – the Potchefstroom University of Christian Higher Education (PU for CHE) – I read a book that would change my attitude toward the death sentence for the rest of my life. Never again, not even the majority inside the parliamentary caucus of the then National Party in the mid 1990s, of which I was then a member, could persuade me otherwise.

The book was The Trial of Steven Truscott by Isabel LeBourdais, published in 1966, which dissected the trial and conviction in Canada of Steven Truscott for the murder of Lynne Harper in 1959. Truscott, who was only 14 at the time, was originally sentenced to death. It was later commuted to life imprisonment.

The book attacked the rapid police investigation and trial, calling into question a justice system that many people then considered infallible.

The book did enough to convince me that there was sufficient doubt that it could not justify taking the life of Truscott – in fact, that there can hardly ever be no doubt at all to justify such a sentence.

Intelligence and faith

It was against this background that, with a degree of excitement, I picked up Fruit of a Poisoned Tree to read. By the time I reached number 196 of the book’s 448 pages, and Altbeker’s premise that intelligence and faith are mutually excluding, I had some job to convince myself to finish the book.
This came after already gross generalisations about Afrikanerdom and its relationship to church and religion. Portraying, for instance, the Dutch Reformed Church as the only one of significance among Afrikaners and charismatic internationally linked churches among them as something very recent.

Fact is, that for example, the Apostolic Faith Mission (AFM) of South Africa, which is part of the worldwide Pentecostal movement, was founded in 1908.

Altbeker writes: “Fred’s intelligence and the depth of his faith have always seemed to me to stand in some contradiction.

“How is it, I have wondered again and again, that a man might be an actuary – a career in which a facility to finding and analysing empirical evidence is pretty much the only thing that matters – and yet believe in the literal truth of the Bible?”


Prejudice?

Throughout the book, the author seems to insinuate that prejudices, and particularly Afrikaner prejudices, are largely responsible for a botched murder investigation and prosecution. Could it be that, perhaps, it is Altbeker's own prejudices that brought him to this 'conviction'?

On page 192, he offers a piece of personal information that should be completely irrelevant to the subject matter about which he writes: “If I found the church service alien, it was because I am by nature, by conviction and by force of habit, an atheist. There is not, I think, a single grain of faith anywhere in me: not for a god or for any supernatural force.”

Against this background, I find it slightly cynical that Altbeker begins his book with a quotation from the Bible.
It is also not the only time that the reader is confronted with information, or rather an own opinion, which is irrelevant to the substance of the book. On page 282, Altbeker launches an attack (loaded with contradiction itself in terms of his self-confessed atheism) on Percy Yutar, who was the chief prosecutor in the Rivonia treason trail that would eventually see Nelson Mandela sent to jail for 27 years.

Stating that as a child, he attended the same synagogue as Yutar, he writes: “For liberal Jews, Yutar was something of an embarrassment. He was a man, I was given to understand, who had come to the conclusion that Jews in the Diaspora had to be seen as dependable friends of power, and who, in giving expression to this view by becoming a prosecutor for the apartheid state, had abandoned essential elements of Jewish morality.”

It may not fit in with Mr Altbeker’s apparent rigid – and may I say, misguided – perception of Afrikaners and their institutions as narrow-minded and verkramp by default. But at that same PU for CHE, in my final year, I took Professor Wimpie de Klerk – who was then deeply involved in organised Calvinism – to task in a reply on an exam paper. My gripe was that I was expected to argue that the evolution theory and the Bible were irreconcilable – and for me, it was not. He gave me a distinction!

In the end, however, I am pleased that I did finish reading the book. When in one's mind one filters out all the irrelevant and distracting issues, it does give a clear picture of how things can easily go wrong in our justice system – why we should always stay vigilant to ensure that the checks and balances stay firmly in place.

The main story line of the book does provide a gripping account of the unfolding court drama and the collapse of the case of the prosecution due to a botched and sloppy police investigation.

Truscott’s end


Media coverage of Albeker’s book triggered me to do some research again on Truscott.
It turns out that he had an unblemished institutional record and, in 1969, was released on parole and lived in Kingston with his parole officer, then in Vancouver, for a brief period of time before settling in Guelph under an assumed name. He married and raised three children.

Maintaining his innocence throughout, Truscott in November 2001 filed an application for a review of his conviction. On 28 August 2007, after review of nearly 250 fresh pieces of evidence, the court declared that Truscott's conviction had been a miscarriage of justice. He was at that stage 62 years old.

On 7 July 2008, the government of Ontario awarded him 6.5 million Canadian dollars in compensation.

Truscott came from a modest blue-collar family and one of the main thrusts of LeBourdais’ 1966 book was the extent to which the dice were loaded against an ordinary citizen when he comes up against the resources of the state.

It was widely reported, also by Altbeker, that Van der Vyver’s family has spent in the order of R10 million on his defence. In the process, they had to sell their farm.

Among the many speculations in Altbeker’s book, there is one missing: What would have happened to Fred if he had come from a family of modest or little means?


Piet Coetzer

Editor


Fruit of a Poisoned Tree by Antony Altbeker was published in South Africa in May 2010 by Jonathan Ball Publishers (ISBN: 9781868423330) and retails at R195
Back to Top

[Louis van der Vyver]

Here is another site where the book: "Fruit of a Poisoned Tree" by Antony Altbeker can be ordered from:

http://www.loot.co.za/shop/main.jsp?page=detail&id=11218002082928

Price already slightly reduced, but overseas postage unknown.

Regards,

Louis.

[Dogs Nose]

Try here, says worldwide free postage,

http://www.bookdepository.co.uk/book/97 ... soned-Tree

[SConner]

Thanks Dogsnose!

[Anonymouse]

Has anyone investigated I&n M%$@£h, the grief expert yet? Perhaps he can throw some light on Inge's death?

[Identify]

‘Police deceived court in Lotz trial’

November 12 2010 at 08:22am
By A’Eysha Kassiem
lotz_murder

Prosecutors in the Inge Lotz trial were “deliberately deceived” by police investigating her case, who “withheld information” from them that would have stopped the prosecution of Lotz’s boyfriend, Fred van der Vyver.

That’s according to Dup de Bruyn, SC, one of Van der Vyver’s three advocates, as his civil case for damages amounting to about R46 million gets under way in the Western Cape High Court.

Van der Vyver was charged with bludgeoning the Matie student to death with a hammer in her Stellenbosch apartment in 2005, but later acquitted. Now Van der Vyver is back in court, citing “malicious prosecution” against the Minister of Safety and Security.

Five years on, police are yet to arrest anyone else in connection with the murder.

Van der Vyver, who was dressed neatly in a dark suit before Judge Anton Veldhuizen yesterday, sat with his parents close to his advocates.

He is also expected to be called to the stand as one of four witnesses and was listed as the final witness.

The first witness, William Bodziak, a shoeprint expert from the United States, is expected to testify on Monday.

Addressing the court on what Judge Veldhuizen referred to as the “nub of the case”, De Bruyn said: “(Police) willfully made statements which were willfully false in material respects but for which the prosecution would not have been undertaken.”

Police had also “willfully made inadequate inquiries or none at all when the questions and inquiries cried out for investigation”.

“(They) dishonestly prejudiced the judgment of the prosecuting authority and in so doing, precluded an unfettered exercise of the prosecuting authority’s discretion,” De Bruyn said.

He said police had gone “beyond honest and fair statements of the relevant facts”. As a result, they had “actively assisted and identified themselves with the prosecution”.

De Bruyn said he also wanted to put on record that he had been denied permission by Western Cape Director of Public Prosecutions Rodney de Kock to consult with the prosecutors of the criminal trial.

Another advocate, Henri Viljoen, SC, told Judge Veldhuizen that police officers had “wrongfully and maliciously instituted a trial against Van der Vyver”.

“This case will be a little different because it was preceded by a long criminal trial,” he said. “This means that a lot of what was said there will be used here.”

Viljoen went on to quote from the judgment that was read out at the time by Judge Deon van Zyl who, along with two assessors, had unanimously found Van der Vyver not guilty. Viljoen said that the Van der Vyver family had experienced a difficult time while the trial was under way.

Judge Van Zyl said at the time that the State had failed in all respects to prove beyond a reasonable doubt that Van der Vyver had a motive to kill Lotz.

He had also hit out at police, saying that the testimony of more than one of the officers was “unreliable”, “evasive” and “dishonest”.

Turning to the witnesses who would be called, Viljoen said that they would specifically address the main points that were raised in the State’s criminal case when Van der Vyver was charged with the murder. This revolved around a bloody footprint and fingerprint evidence.

Van der Vyver is expected to testify about his relationship with Lotz and the effectiveness of security at Old Mutual, where he worked at the time.

aeysha.kassiem@inl.co.za - Cape Times

http://www.iol.co.za/news/crime-courts/ ... l-1.746599

[Tazman]

Has anyone investigated I&n M%$@£h, the grief expert yet? Perhaps he can throw some light on Inge's death?

Your reference to I&n M%$@£h intrigues me. I had heard him mentioned by several parties to the investigation, but I thought he had a solid alibi. Grief expert? Other than comforting his sister (or inciting her -- take your pick), what claim might he have to being a grief expert?

And who in the world is Carl Grigor?

http://www.news24.com/SouthAfrica/News/ ... l-20101114

Lotzes talk of SMS hell
2010-11-14 09:51
Marlene Malan and Julian Jansen

Cape Town – An Eastern Cape man has admitted that he is responsible for sending SMSes and harassing the mother of the murdered Stellenbosch student Inge Lotz by phone for the past 13 months. The man identified himself as Carl Grigor of Tarkastad.

Juanita Lotz on February 20 made a statement with police about offensive SMSes that she had been receiving day and night since October last year.

She said police had confirmed Grigor's identity.

Her husband, professor Jan Lotz, said on enquiry that he believed the motive was to "psychologically break" his wife.

"If we could confront the person who was really behind it, it would be very clear why this is happening. The nature of the allegations is sick. It would probably be better to stay out of his way. The harassment underlies the fact that until March 16 2005 (when Inge was murdered), we lived in love and harmony together. On that day Satan intervened in our lives. Since then, he has been attacking us like a crazy animal."


'Lied in court'


His wife said she had to decide whether to have the man behind the messages prosecuted. "He has no link to us or our family, he is being used as a pawn."

The SMSes attack her character and allege that she lied in her testimony in court in 2007, the case in which Inge's boyfriend, Fred van der Vyver, 28, was accused of her murder. He was later acquitted.

He is now suing the State for unlawful prosecution.

"Since October last year to February this year there was serious harassment, especially over Christmas and New Year," said Inge's mother. "It was resumed in October and November. I'm called many times, on my home and cell number, always around 22:00. On December 20, at about 22:32 last year there was once a younger male voice."

"The contents of the SMSes are untrue, degrading and it would be totally humiliating to repeat them."

Grigor told Rapport he identified himself because he was "seeking justice". He said he was a computer programmer and "older than 35". He denied knowing the Van der Vyvers.

"I described the murderer to them (the police). When I receive feedback, I SMS her (Inge's mother). I shoot her with an air gun, she shoots me with a 765. I will SMS her. If Juanita leaves me alone, I will leave her."

Inge's mother has denied responding to the SMSes.

Grigor became angry when talking to Rapport, saying that Fred van der Vyver was innocent and that he had forensic proof. He said all would be revealed in the court case.

"Lies were told in court, that is why I'm SMSing her."

Police did not comment on the story.



- Rapport

[Identify]

SAPS investigator ‘lied’

November 16 2010 at 08:54am
By A'Yesha Kassiem


SA Police investigator Superintendent Bruce Bartholomew “lied” in his police report when he said that he had positively identified the bloody shoeprint on the tiled floor of murdered Matie student, Inge Lotz with that of a Hi-Tec sports shoe belonging to her boyfriend, Fred van der Vyver.

That’s according to William Bodziak, a former special agent to the United States’ Federal Bureau of Investigation and an expert in shoeprint analysis, who yesterday told the Western Cape High Court that mistakes made by police during the investigation were “incomprehensible”.

Bodziak was testifying before Judge Anton Veldhuizen where Van der Vyver is suing the State for R46-million for “malicious prosecution” after he was acquitted of Lotz’s murder in 2007.

Bodziak told the court that Bartholomew had consulted him in terms of the bloody imprint and flew to Florida to see him. The two men had been corresponding via email after Bartholomew sought him out, said Bodziak - who was paid for a four-hour consultation.

Bodziak said that he had stressed in two separate emails that it was of utmost importance that Bartholomew present him with the “best evidence to examine” - which included the actual footwear and detailed photographs.

But when Bartholomew arrived with the footwear and two CDs which contained the photographs of the blood marking and particularly the heel area of the shoe which Bartholomew said contained “sand grains” , they were not scaled and were only “3x5 inches (7,5cm to 12,5cm) big”.

“Bartholomew alleged there were three small pieces of debris (sand) lodged in the shoe and I explained to him that the debris was too deep in the shoe to make a marking,” said Bodziak, adding that it was these grains of sand that Bartholomew had theorised as one of the main links between the marking in the blood stain and the shoe.

Bartholomew believed that the “three white spots” in the blood had been made by the sand which was lodged in a 5mm deep groove, he said.

According to Bodziak, Bartholomew had a ‘theory’ that perhaps the person who had been wearing the shoe stood on one foot while putting on the other shoe, thereby exerting pressure on the shoe which forced the sand to touch the ground.

“We made some impressions of the opposite shoe and were unable to make the (same) impression (that appeared in the blood marking).

“With normal weight, we tried to force the print of the entire area.

“We jumped off table tops … but the sand grains were just too deep.

“ it wouldn’t make an imprint because it is protected by a surrounding robust area (on the sole),” he said.

Bodziak said that after they had established that it was impossible to make a print of the area, Bartholomew had seemed very concerned”.

“He seemed to concede at the time that it was a flaw in his examination, said Bodziak.

Later, during the criminal trial, when Bodziak was contacted by Van der Vyver’s advocate, Dup de Bruyn, who is also currently representing Van der Vyver, he told the court that he had been “shocked” by Bartholomew’s report on their consultation.

Bodziak read out his e-mail response to De Bruyn at the time: “I was shocked and amazed at how many lies are maintained in that report.

“Only the shoes and very small pictures were shown to me, which were not suitable for examination.”

The report had also said that Bodziak had confirmed the print.

“There could be no identification based on the grains of sand. We spent a long discussion on this,” said Bodziak.

“Looking at the blood mark alone, you could not tell whether it was made by a shoe print at all.”

He said even an attempt to align the blood mark with the shoe indicated that it “did not correspond”.

Bodziak said on closer inspection it was discovered that the “three white marks” in the blood had in fact been made by “wipe marks” on the blood sample, where the police forensics team had wiped the staining agent, Amido Black.

The normal protocol was that it be rinsed, said Bodziak.

Dated photographs of the blood stain itself showed that its shape had been altered, he said.

“There was nothing that I could have agreed upon with Bartholomew,” he said.

While the trial was in progress he had also informed the State prosecutors in a conference call of their findings, Bodziak said.

“You don’t have to be an expert to see that some of the shoe markings in the blood were not there,” he said.

Bodziak will face cross- examination today.

aeysha.kassiem@inl.co.za

http://www.iol.co.za/news/crime-courts/saps-investigator-lied-1.831403

[Identify]

Daily Dispatch Online
People Who Can't Afford Forensic Experts Risk Jail

2010/12/02

FRED van der Vyver was saved from a possibly very long jail term because his parents believed in his innocence – and were able to raise more than R2million to prove it.

When Van der Vyver was charged with murdering his girlfriend, Inge Lotz, his family was able to hire three different forensic experts to prove he didn’t do it.

Forensic specialist David Klatzow estimates that the Van der Vyver family spent R2.6 million on the experts. “The average citizen living in a township will not have that kind of money. If you substitute Fred van der Vyver for some poor chap called Sipho or Arendse from the Cape Flats, the chances are Fred would be in jail now. That is the tragedy,” said Klatzow.

Van der Vyver twice brought a famous American expert on shoe prints, William Bodziak, to Cape Town.

Bodziak testified that a bloody shoe print on Lotz’s bathroom could not have been made by Van der Vyver’s shoe.

Even though Bodziak also told police investigator Bruce Bartholomew “over and over” that the bloody mark had not been made by Van der Vyver’s shoe, Bartholomew claimed in court that the footprint was a match, and even told the court that Bodziak had agreed with him.

The Van der Vyver family had to fly Bodziak over to refute this in person. Bodziak told the Western Cape High Court again this month that Bartholomew had “lied” to support his quest to prosecute Van der Vyver.

Police first claimed that Lotz had rented a DVD on the day of her murder, and that Van der Vyver’s fingerprint on the DVD cover proved he had been at the murder scene that day, because of when the DVD had been rented.

But Dutch fingerprint expert Arie Zeelenberg later testified that police had later lifted the fingerprint from a glass in Van der Vyver’s flat.

Klatzow said without money, Van der Vyver would never have been able to prove it was not his footprint in his girlfriend’s flat.

“It is vital that people become aware of the shenanigans of the police,” said Klatzow.

People who couldn’t afford their own lawyers and had to use Legal Aid, must pressure their Legal Aid lawyers to hire forensic experts if they felt the police were planting or fabricating evidence.

However, Legal Aid is mired in its own problems, including not paying experts, who then become reluctant to work for Legal Aid again, he said.

Overall, the picture is bleak. The State’s forensic laboratories are falling apart and it can take eight years to have a toxicology sample analysed for poison. It should take eight weeks, said Klatzow. He said government should hire people to check whether crime scene fingerprints had been doctored by the police.

“We should have a fund set up so that people could be employed to check these things – for the guys accused of committing a crime who say they were never there, and for those who complain,” he said. — Sowetan

http://www.dispatch.co.za/article.aspx?id=453644

[Pat]

http://www.capetimes.co.za/officer-blas ... -1.1056660

Officer blasted as a ‘weak witness’
April 14 2011 at 10:39am
Zara Nicholson

CONSTABLE Elton Swartz was blasted yesterday as a “weak witness and misleading” after admitting that his testimony during the Fred van der Vyver criminal trial “was wrong”.

Swartz also admitted that he had not followed proper procedure when lifting fingerprints from a DVD cover and glass at the Inga Lotz murder scene in March 2005.

He was testifying during Van Der Vyver’s case against the Minister of Police for malicious prosecution in the Western Cape High Court yesterday. Van Der Vyver is claiming R46 million after he was acquitted of Lotz’s murder in 2007.

Yesterday, Swartz was questioned by Van der Vyver’s advocate, Dup de Bruyn, about how he had lifted fingerprints from a DVD cover and glass.

During the criminal trial Swartz said his colleague Mariaan Booysens brought the DVD cover and glass to him at the kitchen counter.

But Booysen testified in the criminal trial that she had dusted the DVD cover and glass and placed them back on their original spot on the coffee table, and pointed them out to Swartz. Swartz maintained yesterday that Booysens had brought the items to him.

De Bruyn said: “In the criminal trial you said that she pointed the DVD cover out to you and that you took it to the kitchen where you lifted the prints.

“So was your testimony in the criminal trial wrong?”

Swartz said: “Yes it was wrong. It is possible that I just can’t remember what happened that day.”

De Bruyn then questioned Swartz about the notes he made of 11 fingerprint samples he took at the scene.

“The day you took the exhibits, you also had other cases. The exhibits were marked at the scene and needed notes to identify the various fingerprints. You could’ve done the notes at the scene, but you didn’t,” De Bruyn said.

Swartz said he had not made notes because he would have done it with his other cases when he got back to his office.

De Bruyn said the folios from Lotz’s flat were marked with “very specific times”, such as 10.40, 10.48 and 11.12.

Swartz said he could not remember the times he actually took the samples.

“These are very specific times, but it is misleading because these times are not correct. So you gave misleading information in your evidence?” De Bruyn asked.

Swartz replied: “Yes” and told Judge Anton Veldhuizen that he had guessed the times.

Police say Van Der Vyver’s print was found on the DVD cover, placing him at the murder scene.

De Bruyn ended his cross-examination, telling Swartz: “You are a weak witness. You were lax and did not do your work properly. The fingerprints were not taken from the DVD cover and we believe your statement is false.”

[Louis van der Vyver]

Further comments and updates on this case appear under a new heading "Victory For Fred van der Vyver"

here: http://clpex.com/phpBB/viewtopic.php?f=2&t=1697

But, it seems far from over yet!

Thank you.

[Big Wullie]

Hi Louis

Can you update us as to what is happening ?

Any further developments ?

Best Wishes

Wullie Beck

[Louis van der Vyver]

Hi Wullie - You are one of the staunch overseas supporters of this case although we have never met. We really appreciate your continued interest and support and I want to include the name of Iain McKie here as well. As per my reference above, this is what I posted on your new thread. I got the impression that this one had reached the end of it's life, but then I think it is important that it be revived from time to time for newcomers who may learn something from it.

From the article above:

“Police are planning to appeal an unappealable case."

And that is indeed what happened!

After we won the merit-part of the civil claim, The Minister of Police applied for leave to appeal but that was turned down by Judge Veldhuizen during September expressing the opinion that he did not believe that any other court will come to a different decision.

The Minister of Police then petitioned the Appeal court for leave to appeal, a normal process in our system, and this application for leave to appeal was granted about a week ago.

This protracts the whole process by at least another year.

We thank all involved, once again. I would like to mention the names of all our overseas experts who assisted through professional services of the highest quality one could ever expect to find anywhere, in alphabetical order: William (Bill) Bodziak, Mike Grimm, Paul Ryder (UK), Pat Wertheim, Arie Zeelenberg (Netherlands). We thank and salute you as much for what you did for us as for what you did for your professions and for science.

And also a word of thanks for to all of you who supported us in any other way, even if just being interested in the case.