2011-11-04 Overlooked evidence in the Assange trial

Authored by Bella Magnani

Since the 100-page Swedish police protocol file leaked onto the internet in February 2011, it has been widely known that the SKL (Sweden's national forensic laboratory) failed to find any chromosomal DNA -- either male or female -- on the torn, used condom that Complainant AA gave to police 12 days after the event as evidence of her allegations. For anyone who doubts this fact, it's on page 77 of the police protocol (FUP), attached below [pdf].

Now, at that point -- 25 October, 2010 -- one would hope that a competent and impartial investigations team would turn toward investigating how this forensic finding came about. Sweden takes very seriously the issue of making false claims or presenting false evidence in sex crime cases, which is punishable with a 2-year prison sentence. In this particular case, however, the lead investigation officer, Mats Gehlin, simply asked the SKL to run the test again (page 81 of the FUP). In fairness, the first result does mention a tiny speck that might be "something," which a second test later found to be a very small sample of mitochondrial DNA.

This is significant for two reasons: first, mitochondrial DNA is not uniquely identifying in the same way as chromosomal DNA; and, more importantly, a sample which contains mitochondrial DNA but no chromosomal DNA can only come from hair and nails. And, of course, a used condom should be awash with chromosomal DNA from both participants -- but this one has none.

Its second significance -- and far more important to Julian Assange's battle against extradition to Sweden -- is that Marianne Ny, the Swedish prosecutor, was in possession of these forensic facts (which could bring into question the credibility of AA's testimony and, perhaps, by extension the testimony of Complainant SW, given that it was AA's close personal friend and political colleague Irmeli Krans who wrote SW's witness statement) for some time before she issued the Interpol Red Notice and the European Arrest Warrant seeking Assange's surrender. Yet here is how Ny describes allegation 2, the "deliberately torn" condom incident, on the face of the European Arrest Warrant (EAW):

2. Sexual molestation - On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.

In view of the forensic evidence, this could be construed as deliberate misrepresentation on someone's part, and one might ask whether Marianne Ny ought herself to be the subject of some sort of investigation into abuse of legal process. But who is asking that question? Not the Swedish authorities, nor the British courts (this is an EAW case, so they are not allowed to), and not a single UK mainstream newspaper or journalist -- supposedly the people holding power to account on our behalf -- has even mentioned this lack of DNA evidence or its implications for the case. Honourable exception: The Telegraph, once, back in February; since then, nothing.

So what's going on? The case being heard by the British courts is solely about the legal technicalities of the extradition request. The UK judges are prevented by the EAW system from even considering the evidence behind an EAW, except in wholly exceptional circumstances (and Assange's case, we are told, isn't exceptional); all of that is to be left for the courts of the requesting Member State to deal with. Surely, then, there's no question of contempt of court if the UK media discuss the facts of a case which may or may not be brought to trial in a foreign jurisdiction at some point in the future?

Isn't that what journalists are meant to do -- investigate and present the truth to their readers? When was it decided that the restrictions placed upon our judges by the EAW system should also extend to our press? This matters because, even when UK courts do give the underlying evidence behind an extradition request some cursory scrutiny, there's an overwhelming imperative towards mutual recognition of disparate judicial systems built into the Framework Directive. The full High Court judgment [pdf] handed down this week states that: "The evidence in the file showed that the condom was examined by the Swedish National Laboratory of Forensic Science. The conclusion of the expert was that there was nothing to indicate that a tool had been used, but that the damage to the condom was created by the wear and tear of the condom" (para 94), but this gets lost in the middle of a long and complex explanation of various legal authorities regarding "deception" in rape cases and how the conduct described on the face of the EAW therefore meets the requirement of dual criminality (paras 79-96). If judges' hands are tied so that they can only examine the legal niceties of the warrant procedure in this way, who then is to provide the scrutiny a Europe-wide fast-track extradition system needs, if not the press?

And such scrutiny is now doubly urgent. Given the other conclusions reached by this High Court judgment, does it set a dangerous precedent making it much more likely that EAWs will be used purely on the say-so of the police or an investigating prosecutor from now on?

And yet the omerta that has descended over the forensic findings of the Assange extradition case is total -- almost global; try Googling for any news story anywhere that mentions the lack of DNA on the torn, used condom with which Assange is alleged to have sexually molested AA. Honourable exception No. 2: Guy Rundle in the Sydney Morning Herald.

Reading through the full High Court ruling makes one thing crystal-clear: the EAW system is designed to place mutual recognition and trust in the ability of other Member states' justice systems to reach a fair result -- above any consideration of the facts in individual cases. Is this what we are all meant to do from now on: simply trust that those who administer the law as it is enshrined in our bright, shiny new EU Framework Directive are always right, and therefore beyond question and scrutiny?