Six years of stupidity: Synopsis of the Lucia de Berk case

Synopsis/reconstruction of the Lucia de Berk case

The story starts in 2001, at the Juliana Children’s Hospital, The Hague.

When will it end? Will it be a happy end? Read on…

Synopsis/reconstruction of the Lucia de Berk case

The story starts in 2001, at the Juliana Children’s Hospital, The Hague.

When will it end? Will it be a happy end? Read on…

* Supervisors at the hospital are suspicious because of a small cluster of deaths and the repeated presence of a particular and striking nurse in the shifts when the deaths occur; there has been some gossip among some colleague nurses, too, concerning her past. Actually, an intensive care ward has just been closed for economization reasons and the cluster is probably due to a change in case-mix on the ward in question. There is also nervousness among the staff because of reorganization, merger, possible job losses.

* After a lull, a new event (Achraf) raises suspicion again to high levels. Gossip increases.

* Lucia is deliberately given heavy night shifts while Amber’s situation is rapidly deteriorating though the responsible specialist is not aware of this and has told the parents that she can go home [to die?] soon.

* Amber dies on Lucia’s shift, the hospital goes into Red Alert. Press release, newspaper items, letters written to parents of dead children. "Sorry, it seems we may have a serial killer here, but don’t get angry, we are in full control of the situation". Some days later the police are also involved. 9-11.

The police come to law-psychologist and ex-statistician Henk Elffers with the story, thinking that it is probably much ado about nothing. He convinces them that it is NOT chance, something really is going on! It is indeed not chance as he understood it, his formulation of "chance" is the wrong one. His analysis is inappropriate. Moreover the data he was given were biased, and moreover, (adding insult to injury) he blundered in his calculations. He ALSO resolved all possible data-analysis choices available to him, in the way most damning to Lucia, whether by luck or bad judgement, we shall never know. Though repeatedly hearing the extensive scientific arguments against his methodology he never retracted them.

In the meantime the hospital authorities have come up with lots more deaths and incidents at other hospitals. We had a serial killer, now we also have the people she killed. It just remains to get the proof. How did she do it and why?

After a year, someone comes up with the digoxin theory and a (provably wrong) reconstruction is given of how Lucia poisoned Amber with digoxin. The situation right now is that there is good reason to believe she did not die of this at all [Dasgupta – top world authority on digoxin poisoning]. Uges: "the mystery is not what Amber died of, but how come she was still alive". The available material was of "such bad quality that the actual cause of death is idle speculation". De Wolff, alone, does still support the digoxin theory as cause of death, but he rules out that it was administered by Lucia. There are still the mysteries of where did the piece of gauze come from, which was found at the second autopsy, but so far not claimed by anyone, and from which a sample of bloody fluid was squeezed out. And why was the last real blood sample taken of Amber, taken while she was still alive, get thrown away the week _after_ a murder investigation starts?

At the first trial, Richard de Mulder [colleague and collabororator of Elffers, a lawyer with an MBA and a computer hobby] supports Elffers’ analysis and conclusion, and convinces the court that "the coincidence needs explanation". They understand this as follows: "Lucia needs to explain the coincidence". She is unable. Five possibilities offered her by Elffers "by way of example" do not give her any help. The fact that Lucia denies killing, and cannot explain her presence, shows she is a liar and a killer, and the fact that no evidence can be found of how she killed anyone else, shows how refined a killer she is. The fact that the times of death were unpredicted and that no common cause could be found provides a link between them (!). The diary provides a motive – a compulsion – because of a coincidence between a diary entry and a death of a terminally ill aged cancer patient on her ward. The non-coincidences are not reported.

In 2002, Lucia is convicted of only 4 of the murders and 2 of the attempted murders, with which she was originally charged. She is given a life sentence.

Both Lucia and the prosecution appeal. The prosecution wants more murders pinned on Lucia. This requires even stronger reliance on the statistics since other key parts of the evidence have significantly weakened in the meantime. However moral probabilist Meester and computer scientist and logician van Lambalgen insist that there is not a single well defined probability in such a case. The judges obligingly remove reference to any particular probability and any particular calculation-method from their summing up. The fundamentally wrong argument of Elffers and de Mulder, based moreover on wrong data, remains in its entirety, but in verbal form and carefully avoiding use of the words "probability" or "statistics". The first page of the summing-up reports that indeed, no statistical probability calculation is used in the conviction. Exeunt statisticians.

Lucia is convicted for 7 murders and 3 attempts (still less than she was charged with). The court increases the sentence to life, followed by detention in psychiatric care. The evidence from Strasburg, further destroying the digoxin argument, arrives too late for the trial. It is lost in a drawer at the Netherlands Forensic Institute for two years.

In 2006, the Supreme Court removes detention in psychiatric ward after the life sentence, since Lucia has not pleaded that she was mentally disturbed when doing the crimes. (She still declares her innocence).

In 2006, Committee Posthumus II ("Evaluation of closed cases") does take Lucia’s case into consideration and passes the dossier to a committe of Three Wise Men, recruited from the larger committee. The "three wise men" are to report to the Public Prosecution Service and they have a Public Prosecutor as chairman, a professor of criminal law and part-time judge, and a retired policeman from the board of Rotterdam’s Feyenoord football team, as advisory members. They are instructed by the "entrance committee" – i.e., by themselves – to see if errors have been made in the police investigation. They are not instructed to look at errors made by the prosecution. There can be no errors made by the judges, since the case has now been to the ultimate authority, the Supreme Court. They can in principle make a recommendation that the case be reopened. This advice would then be considered by the Supreme Court. The Supreme Court has the power to send the case to be reopened by a normal appeal court.

The Supreme Court will only request reopening of the case if "new evidence" is available, of such import, that had it been available to the judge during the trial, it would likely have impacted the judge’s conclusion, or if new evidence shows that key evidence gathered by the police was not actually legal. The Three Wise Men have not instructed themselves to see if there is new evidence. Nor can they conclude that the wrong conclusions were drawn from existing evidence (this is legally speaking impossible, since the case is legally closed). They are only to see if police procedures were imperfect. They might conclude that there were failings in police procedure but they could easily imagine that this did not impact the verdict significantly, if they are not to evaluate the judge’s arguement anyway.

As said, the three wise men will report to the Chief of the Public Prosecution Service, not to the Supreme Court. The Chief Public Prosecutor will consult with the Minister of Justice before acting in this situation. Both he and the Minister of Justice believe that the system in the Netherlands works perfectly. Moreover they believe that public faith in the system was already too badly shaken by the events which led to the installation of committee Posthumus II. That committee is part of an operation to restore public faith in our system, which is not subject to any of the faults which have beset the systems of other countries in recent years. They will be highly reluctant to allow public faith to be shaken by the reopening of yet another case.

Posthumus II only received requests to consider 25 cases, and only took up 3 of them. These small numbers are said to confirm that the system is indeed working very well, as was expected; the public’s worries were unfounded and public faith in the system can be restored. (In the UK, the CCRC receives about 2000 cases per year, admitting about 25; almost all of these 25 finally lead to overturned convictions). The criteria for consideration by Posthumus II are however extremely stringent. It is only admitted that police investigators could err, by misinterpreting scientific evidence, thereby inadvertently leading public prosecutors astray. The only members of the "public" who were allowed to submit a case are established scientists who have done significant new research on it.

A recent survey (summer 2007) shows that the Dutch public is actually highly satisfied by the justice system in the country (fourth European place). The scandals which led to installation of the Posthumum II committee have had no impact on this at all. I hope that the chief public prosecutor and the minister of justice will take this to mean that no harm whatsoever need be done to public faith in the system by reopening this case too.

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