page 1 1 Monday, 23rd November 2009 2 (4.06 pm) 3 (The following evidence was taken via video link) 4 PAT WERTHEIM (recalled) 5 THE CHAIRMAN: Good morning, Mr Wertheim. Thank you for 6 coming back for the Inquiry. May I just say of course 7 that you remain under oath, as I am sure you recognise, 8 and I now ask Mr Holmes to continue his 9 cross-examination, please. 10 Cross-examined by MR HOLMES (continued) 11 Q. Thank you, sir. 12 Mr Wertheim, the first brief set of questions I have 13 for you relates to another presentation that we have 14 seen. We heard evidence from Ms McBride recently that 15 for an expert carrying out any sort of comparison by 16 being presented with an image in the witness box and 17 being asked about individual points is not ideal. 18 Would you agree with that? 19 A. I would agree that it's not ideal but if presented with 20 something in the witness box I would certainly take a 21 look at it to see if I was willing to comment. 22 Q. In fact, during your own evidence to this Inquiry you 23 marked up a ridge count on two images that had been 24 prepared by Mr Swann. 25 Do you remember that? page 2 1 A. Yes, I do. 2 Q. Do you remember that you marked from the core of Y7 on 3 both those images to the characteristic that we have 4 been calling the Rosetta characteristic? Do you recall 5 doing that? 6 A. Yes, sir, I do. 7 Q. Having had some notice of the issues that you are likely 8 to be asked about, have you looked again at the images 9 that you marked up? 10 A. No, I have not. Let me explain because when I was shown 11 those marks in the Inquiry originally I believe 12 Mr Moynihan asked me to comment on the chart on page N 13 and as I was flipping through I saw the chart on page M 14 and then looked at the chart on page N and could see the 15 difference and at that point I asked Mr Moynihan if the 16 chart on page M and the chart on page N represented the 17 same chart, the same Rosetta point. I received an 18 affirmative response from Mr Moynihan that they did and 19 that's the point at which I did the ridge count and 20 showed that they were off. 21 Subsequently, I was advised that those charts 22 represent different or they are trying to show different 23 things and for that reason, obviously, I was counting to 24 different points on those two pages but before doing 25 that exercise I asked Mr Moynihan and he had confirmed page 3 1 with me that they were supposed to be the same chart so 2 the error was somewhere in communication. 3 Q. So am I to understand that the difficulty is that on one 4 chart you have marked from the core to the Rosetta and 5 on the other chart you have marked from the core to 6 something other than the Rosetta? Is that why the ridge 7 count differs? 8 A. Apparently, that's correct. 9 Q. Would you agree then that it was a mistake to come to 10 the conclusion, as you did, that Mr Swann does not check 11 his own work on the basis of what you marked up? 12 A. Yes. 13 Q. Again, would you agree that it was probably also a 14 mistake for you to post on the Internet the evening 15 after you gave evidence, drawing attention to the 16 mark-ups that you had done, describing Mr Swann as an 17 expert, in inverted commas, and stating that you were 18 "gob-smacked" that the other expert had not checked his 19 own work? 20 A. I was proceeding on the assumption that Mr Moynihan's 21 information was correct that M and N represented the 22 same Rosetta point. They do not and I withdraw any 23 statements I made based on that erroneous assumption. 24 Q. If I can move on to asking questions about the mark XF, 25 firstly, can I ask is it your opinion that mark XF was page 4 1 made by David Asbury? 2 A. XF is the gift tag mark? 3 Q. That is correct. 4 A. Yes, that is David Asbury's fingerprint on that gift 5 tag. 6 Q. Is it your position that XF, as stated in your own 7 notes, is "legit" -- it is legitimate? 8 A. If that was the word used in my notes then, yes, I stand 9 by that. 10 Q. Is that to say then that XF does not seem to you to be 11 forged, fabricated or mishandled in any way? 12 A. After reviewing my notes that were provided by 13 Mr Moynihan when I was there last, I note that my notes 14 reflect that the fingerprint identified to David Asbury 15 appears to have been developed with superglue on the 16 surface where it was found, which is to say the gift 17 tag. In that regard, then, that fingerprint represents 18 an actual touch of the skin on that finger to the gift 19 tag. 20 Q. You were aware of that when you first examined XF in 21 April 2000 when you went to visit the Procurator Fiscal, 22 were you not? 23 A. I believe my notes reflect that, yes. 24 Q. Why is it then that you have invited speculation in the 25 intervening years that XF was fabricated? page 5 1 A. I never said that XF was fabricated. I said that some 2 of the components in the image needed explanation and 3 some of the components in that image were consistent 4 with fabrication. That was based on looking at the 5 image having forgotten my original examination in my 6 notes. I might explain -- (interruption: phone ringing) 7 I might explain that on my original examination 8 which is reflected in the notes I would have concluded 9 that the print was a legitimate print, a touch of the 10 finger on the surface where the print was developed, and 11 I would have then not thought any further about it. 12 Apparently, in the intervening decade I'd forgotten 13 about that. 14 Excuse me just a minute and let me turn this thing 15 off so I don't have it ring on us again. 16 So my apologies for forgetting about that. Having 17 looked at the image itself in the build-up to this 18 Inquiry and without benefit of my earlier notes, I 19 commented that there were components of that image that 20 I still had questions about. 21 Q. But do those questions still remain having had the 22 opportunity to see the gift tag again? 23 A. Oh no. I believe I withdrew all of those objections and 24 agreed with the legitimacy of that print when I was over 25 there testifying last time. page 6 1 Q. You have made quite a number of comments in the 2 intervening years; is that fair? 3 A. That's fair. 4 Q. Did you give an interview to the Scotsman newspaper in 5 2006 regarding XF? 6 A. I probably did. I have no independent recollection of 7 it but if you've got the newspaper article I'd be glad 8 to consider that. 9 Q. If I can quote from that, did you say to the reporter 10 that: 11 "Marks on the photograph are highly similar to those 12 that show up when a print is faked and that unlike the 13 vast majority of fingerprints left at crime scenes, 14 which are smudged and incomplete, Asbury's was as clear 15 as those taken in the more clinical setting of a police 16 station." 17 A. I'm sorry, repeat that again, please. I was trying to 18 follow you there. 19 Q. Did you say to the reporter interviewing you that: 20 "Marks on the photograph are highly similar to those 21 that show up when a print is faked and that unlike the 22 vast majority of fingerprints left at crime scenes, 23 which are smudged and incomplete, Asbury's was as clear 24 as those taken in the more clinical setting of a police 25 station." page 7 1 A. I might have said that, yes, and by -- what I meant or 2 what I would have meant by that is the fact that 3 normally when you're handling a surface you don't leave 4 a flat, well-centred impression of a finger. Most of 5 the fingerprints developed on evidence and other items 6 are smudged, they are a little sideways. For example, 7 Y7 is canted up towards the top right of the finger. 8 That's normal. It's not normal to see a fingerprint 9 flat and dead centre as XF is. That was one of a number 10 of factors but I will repeat again that having been 11 shown my notes by Mr Moynihan at the Inquiry and having 12 heard of the other -- I believe, actually, if I go back, 13 Mr Moynihan showed me the other report on XF and I 14 withdrew my comments even before he showed me my notes 15 but having seen my notes again, I withdraw the comments 16 and I would withdraw what I said at the interview there 17 with the Scotsman. 18 Q. Does that apply to the Internet comments that you have 19 made regarding XF as well? 20 A. I will withdraw all comments that I made regarding the 21 suspicious character of XF, no matter where those 22 comments were made, and apologise for having misled you, 23 Mr Holmes. I will state that I will confirm my notes as 24 presented by Mr Moynihan, which apparently agree with 25 the other report that the Inquiry has received on XF page 8 1 also. 2 Q. So there are quite a number of Internet quotes that 3 appear to be authored by you. First of all, can I ask 4 if those bearing your name were, in fact, authored by 5 you? 6 A. I believe they probably were because I know of no-one 7 else using my name. If you'd like to go through them 8 one at a time, I'd be glad to withdraw them one at a 9 time and apologise for them one at a time. 10 Q. I don't think we need to go through them one at a time, 11 Mr Wertheim, but if I say to you that there are a number 12 of quotes from the CLPEX website which are attributed to 13 you between about 2006 and 2009, would you accept that 14 you posted on the subject of XF during that time? 15 A. If you say so, sir, I'm not going, argue with you. I 16 don't have the list in front of me that you do but I'll 17 withdraw every comment I made. I'll apologise for them. 18 If you'd like me to go on the Internet and post a 19 retraction, I'd be glad to do so. 20 Q. What I am concerned to discover, Mr Wertheim, is what 21 your position is on XF because you have said today that 22 you had forgotten having examined XF at all; is that 23 correct? 24 A. Yes, it is. It was the notes that Mr Moynihan showed me 25 at the Inquiry when I was in the witness box under oath page 9 1 and the notes which I had forgotten about, the originals 2 of which I no longer own, and that refreshed my memory 3 and convinced me that I had said it, seen that print and 4 reached that conclusion. 5 So since you're still confused about my position, 6 let me restate it and I hope I get it clearly this time: 7 the fingerprint designated FX (sic) on the gift tag 8 represents and is an original touch by David Asbury on 9 that gift tag. 10 Q. Thank you for clarifying that, Mr Wertheim. 11 My confusion doesn't lie in what your current 12 position is but rather the changes that your position 13 seems to have gone through over the years. In 2006 you 14 post in answer to a question whether XF was examined by 15 Fingerprint Experts at the time: 16 "Yes, it was. I saw it in the Procurator Fiscal's 17 office in spring 2001. I notified David Asbury's 18 solicitor there was a serious problem with the gift tag. 19 I raised the issue of possible fabrication five years 20 ago when I first examined the evidence. I risk my 21 reputation by going public with this information." 22 So does it appear from that quote that you were 23 aware, at least at the time that you were making that, 24 that you had previously examined the gift tag? 25 A. You've got to separate the gift tag itself, the actual page 10 1 gift tag, from the photograph of the gift tag and I 2 apologise for having an imperfect memory, Mr Holmes. I 3 have not remembered every detail from the last decade 4 and I'm trying to make it clear to you, based on the 5 photograph only, without reference to the image or 6 without reference to the original gift tag. Based on 7 the photograph and the image, there are questions that 8 arise. There are inconsistencies with normal prints and 9 consistencies with fabricated evidence. 10 Those questions were answered in my original 11 examination in 1999 and they are reflected in my notes 12 from 1999 because somewhere along the way I gave those 13 notes to someone else, probably one of Mr Asbury's 14 attorneys. Frankly, that's another fact I had 15 forgotten. I don't remember who I gave those notes to. 16 But without benefit of those notes I had forgotten 17 about that and relied on the image, that is to say the 18 photograph of the print, and those old concerns raised 19 themselves in my mind again. My position has changed. 20 I have an imperfect memory and I apologise sincerely for 21 confusing you over that. 22 Q. Mr Wertheim, it is a fairly important detail to forget 23 when you are inviting speculation that members of the 24 Identification Bureau have committed what is a fairly 25 serious offence, is it not? page 11 1 A. I never alleged the offence. I said there were 2 consistencies with fabrication. I've never accused 3 anybody of fabricating evidence directly in this case. 4 I said there were questions that need to be answered and 5 you are right, it is a very serious question to raise, 6 just as the question of erroneous identification is a 7 serious question to raise. 8 Q. Again, have you ever made any accusation that the police 9 lied as a result of your failure to remember that you 10 had examined XF on the gift tag? 11 A. If you have such an allegation there, I'd be glad for 12 you to read it to me. 13 Q. On 28th June 2007 there is post from you that says: 14 "Let us hypothesise that the police investigators 15 interviewing David Asbury about Marion Ross's murder 16 lied when they told him that they had his fingerprint on 17 the gift tag. Now, let's assume, as many believe, that 18 David Asbury had not been in Marion Ross's house after 19 the fix-up project was completed months earlier. He 20 knew that the police could not have his fingerprint on a 21 gift tag, but he was cornered. And unlike Shirley 22 McKie, he was not strong enough to call the police liars 23 or tell them they were wrong about the fingerprint. In 24 the verbal tennis game that followed the police lie 25 about finding his fingerprint on the gift tag, Asbury page 12 1 made up a lie of his own about how his fingerprint got 2 there. Then the police were placed in 'check'. So they 3 manufactured Asbury's fingerprint on a gift tag to 4 support their original lie used to encourage a 5 confession. But now, they cannot allow that gift tag to 6 surface, thus the rumours ..." and here you use the name 7 of another poster "... has heard about it having gone 8 missing. If that scenario is correct, and I believe it 9 is, why should the police lie and evidence fabrication 10 be completely ignored and Asbury's responding lie be 11 grounds to put him in prison for life?" 12 Those are fairly serious allegations, firstly, about 13 the Identification Bureau fabricating the fingerprint on 14 the gift tag -- 15 A. I beg your pardon, Mr Holmes, the whole thing was 16 hinging on the first three words that you read. 17 Q. Yes? 18 A. "Let us hypothesise". 19 Q. Yes? 20 A. Again, I will repeat, having completely forgotten my 21 notes and having completely forgotten that I had seen 22 the original gift tag, I was offering speculation, 23 hypothesising, basing it on assumptions, and in that it 24 clearly says that it's based on hypothesis and it's 25 assumption and if this happened and if this happened, page 13 1 and I withdraw all of that. If you want to go through, 2 I will withdraw every one separately. I withdraw it and 3 I apologise for it. 4 Q. You do say, Mr Wertheim: 5 "... if that scenario is correct, and I believe it 6 is ..." 7 A. And at the time I wrote that I did believe that it was. 8 Q. These are very serious allegations to make against the 9 police and against the officers who recovered XF on the 10 basis -- 11 A. My sincerest apologies to them, Mr Holmes. 12 Q. You may have answered my next question already. It 13 appears that by 2007 you had forgotten not only that you 14 were of the opinion that the mark was legitimate but 15 that you had also forgotten that you had seen the gift 16 tag at all? 17 A. That's correct. 18 Q. You also posted the same year: 19 "The watch is a red herring. The piece of missing 20 evidence of great importance is the gift tag that 21 allegedly has David Asbury's fingerprints on it. That's 22 very significant because it would place Asbury in the 23 house about the time of Marion Ross's murder, months 24 after he had finished working on the home improvement 25 project." page 14 1 What evidence did you have that there was any 2 evidence at all in the case missing? 3 A. I had no recollection of the gift tag. I had been told 4 by -- or at least as I recall I had been told by 5 Mr Asbury's solicitors that they had tried to locate the 6 original gift tag, XF, and that it had gone missing. 7 Q. You must have looked at the mark, the photograph of the 8 mark, in some detail in order to advance the theory 9 about how it could have been in some way fabricated. Is 10 that correct? You must have had more than a cursory 11 examination of it, surely? 12 A. Of the photograph, yes, but I've withdrawn that 13 allegation. 14 Q. How, during that process, during your examination, your 15 detailed examination of the photograph, did it not occur 16 to you that you had on an occasion previously examined 17 the original production? 18 A. Because I had an imperfect memory, Mr Holmes. Sometimes 19 a person sees a thing which has no significance at the 20 moment and several years later might be asked about it 21 and without having remembered the thing because it had 22 no significance at the time he saw it, he might 23 speculate on some other motive and that's apparently 24 what has happened in this case. I saw it in 1999. My 25 notes clearly reflect that in 1999 it was legitimate. page 15 1 At some point after that I was asked about it. I had 2 forgotten about the 1999 examination. I no longer had 3 the notes and I commented on it and for that I apologise 4 and I withdraw the allegations. 5 Q. It would appear that in 2008 the position has moved on 6 further still because on 21st March there is a post 7 bearing to be written by you that says: 8 "Let's put something else on the table here, 9 although I think I've already put it on the table. It 10 is my belief that the finger mark on the gift tag bears 11 characteristics of fabrication. Could it be that the 12 plain impression of David Asbury's thumb print from a 13 fingerprint form was copied onto acetate, or lifted with 14 tape, and placed over the gift tag and then photographed 15 to make it appear that the print was on the gift tag? 16 Could it be that during a police interrogation, David 17 was shown such a fabricated photograph, which led him to 18 'confess' to being at Marion Ross's house a few days 19 before her murder, when in fact he was never there after 20 completion of the building project six months earlier? 21 Could that explain why the gift tag mysteriously 22 disappeared from the vaults at the PF's office years ago 23 when I went armed with a court order to allow me to 24 examine ALL of the evidence?" 25 Firstly, you seem to have forgotten at that stage page 16 1 that you examined the gift tag and that you declared it 2 legitimate and that you are advancing a theory at least 3 that the mark was fabricated and that the police 4 officers interviewing Mr Asbury lied. 5 Is that a fair assessment of what is going on in 6 that post? 7 A. That would have been at the time. Withdrawn and 8 apologised. 9 Q. You also state in that post that XF is a thumbprint. 10 Clearly it is not. You would accept that? 11 A. Yes. Now, having been given the other things, I agree 12 with you. 13 Q. But in addition to that you seem to remember at this 14 stage that you went to the Procurator Fiscal's Office to 15 examine the mark. Is that fair? 16 A. Yes, sir. 17 Q. In fact, you go -- 18 A. I don't know how many times I have to withdraw it, 19 retract it and apologise for it. If you really want to 20 go through and read every single time in the history of 21 the past decade that I have said it I will withdraw and 22 apologise for each one individually, if the blanket 23 withdrawal and apology that I made in September in 24 person doesn't do it for you. 25 Q. It is not the fact that you are simply repeating these page 17 1 allegations, Mr Wertheim. It is the fact that your 2 position seems to move on and become ever more detailed. 3 You see, you state in that post that you had gone to the 4 Procurator Fiscal's Office with a court order. 5 A. I did that three times, yes. 6 Q. Is that correct though? Is that actually the position 7 or is that something else that you had forgotten about 8 until that stage? You did go with a court order; is 9 that what you're saying? 10 A. Yes, sir. 11 Q. Which court issued that order? 12 A. I don't know. It was in possession of Mr Asbury's 13 solicitor at the time. 14 Q. The only part that you don't remember at the stage 15 you're making this comment is that you have actually 16 seen the gift tag and that you found no evidence that 17 the mark was fabricated; is that right? 18 A. I'm sure there are many other little details that seemed 19 insignificant to me at those visits to the Procurator 20 Fiscal's Office that I will have forgotten. I'm sure 21 that's not the only one. 22 Q. It's hardly an insignificant detail though is it, 23 Mr Wertheim? 24 A. No, I agree and I apologise profusely. You can rest 25 assured, Mr Holmes, that if I had remembered that I page 18 1 would have made none of those statements. 2 Q. Where does the allegation then come from that the gift 3 tag has gone missing? 4 A. The allegation is withdrawn, sir. 5 Q. There is another matter that you cover in a subsequent 6 post when again you repeat that the tag has gone missing 7 and that the fingerprint cannot be confirmed regarding 8 its circumstances on the tag in the photograph. 9 "Now for the heart of the matter: Iain McKie had 10 absolutely nothing to do with the quashing of the 11 conviction -- I did. I discovered the error, others 12 verified that it was an error, and the court quashed the 13 conviction based on my report." 14 What you are speaking about there is David Asbury's 15 conviction; is that correct? 16 A. I would presume so. I don't know the context in which 17 that was said. I believe what you're referring to is 18 the fact that QI2 is an erroneous identification, that I 19 discovered that, that others verified it and that 20 Mr Asbury's conviction was quashed based on the fact 21 that the identification of QI2 was wrong. Is that 22 correct? 23 Q. Firstly, the comment comes directly after another 24 repetition of your comment about XF, saying the tag has 25 apparently gone missing and the fingerprint cannot be page 19 1 confirmed, et cetera but, secondly, what I am interested 2 in is your claim that Mr Asbury's conviction was quashed 3 on the basis of your report. That cannot be correct, 4 can it? 5 A. Could you explain that, please? 6 Q. Was Mr Asbury's conviction not quashed because his 7 appeal was unopposed? 8 A. Well, that may be then. I mean, you're asking me 9 questions from a public chat board five/six years ago, 10 four years ago, three years ago -- 11 Q. Last year, Mr Wertheim. 12 A. -- which is -- 13 Q. Last year, Mr Wertheim. 14 A. All right, last year. 15 Q. Finally -- and this is a post from this year -- you seem 16 to remember yet further details when you say: 17 "In 2000, I went to Scotland to view the fingerprint 18 evidence for David Asbury at the request of his lawyers. 19 There were two crucial pieces of evidence linking David 20 to the murder of Marion Ross. First, his thumb print 21 was found on a Christmas tag on an unopened gift, I 22 believe from Miss Ross's den ... 23 "What of David's fingerprint on the gift tag? We 24 have a photograph of that gift tag taken using a light 25 source. But in 2000 when I went to examine the gift tag page 20 1 itself, the tag in the evidence envelope in the 2 prosecutor's vault was NOT the gift tag in the 3 photograph. David's fingerprint in the photograph 4 looked suspiciously like the plain impression of his 5 thumb from the bottom of an inked print card." 6 You go on to give a number of reasons why it 7 appeared -- 8 A. And I withdraw and apologise for that comment also. 9 Q. Again, it appears by July 2009 your recollection of that 10 visit has again improved because you remember this time 11 again going to the Procurator Fiscal's Office, you 12 remember again having some form of court order, you 13 remember this time that there was a similar-looking tag 14 in evidence at the Procurator Fiscal's Office, you 15 remember what was on that tag, you forget again that XF 16 isn't a thumb but, overlooking that for now, your 17 recollection seems to have improved. It's very detailed 18 and yet you fail to remember at the time that you are 19 commenting and inviting speculation that XF is 20 fabricated, you fail to remember, again, that you have 21 examined it and you yourself were of the opinion at the 22 time that XF was a legitimate mark. 23 A. And I withdraw that comment and I apologise for it. Do 24 you have any more then? 25 Q. No, I don't think so, Mr Wertheim. All I can ask you page 21 1 about this is: do you consider it to be productive to 2 encourage rumour and speculation about one of the marks 3 in this case? 4 A. Sir, that Internet chat board website is a discussion 5 area for fingerprint professionals. Questions were 6 being asked and questions were being answered. I might 7 point out that I have always posted under my own name in 8 that regard and as you clearly have there. The critics 9 use aliases, as do some of those who take my side and I 10 don't know who all of those people are but I do know 11 that the post you have attributed to me I have taken 12 credit for and if I've made a mistake in it I withdraw 13 it and I apologise for it. If you would like me to post 14 that on the Internet I would be glad to do that for you. 15 Q. I will move on, Mr Wertheim. Just a couple of questions 16 regarding the other experts that you aware of that have 17 seen Y7. 18 Of the experts to whom you sent images of the mark, 19 were those marked images or were those unmarked images? 20 A. All of the images that I sent out were unmarked. 21 Q. Did you in any way disclose the fact that your view was 22 that a mistake had been made at the time when you were 23 distributing these materials? 24 A. I know that when I gave the images to Dave Grieve and 25 David Ashbaugh in March 1999, I gave them original page 22 1 images, unmarked, of Y7; I gave them original inked 2 prints that I had taken from Shirley McKie; and I gave 3 them each the marked-up chart or a copy of a marked-up 4 chart prepared by SCRO as if Y7 were a correct 5 identification. So when I gave those to Dave Grieve and 6 David Ashbaugh, I gave them unmarked images and I gave 7 them a copy of the SCRO chart and I gave them those 8 images without comment, except that I asked them if they 9 would look at those images and talk to a lawyer. They 10 both agreed. 11 Subsequently, Mr Ashbaugh found it necessary to 12 leave Scotland before he had a chance to talk to, I 13 believe, Donald Findlay but Mr Findlay, I believe, was 14 the one who talked to Dave Grieve. 15 At the time Mr Grieve and Mr Ashbaugh saw those 16 images, they had not a clue what my examination had been 17 nor what my conclusions were. Subsequent to that, I 18 should say, following Shirley McKie's trial and 19 acquittal, I mailed out a number of other copies of the 20 image to other experts who asked for them; I mailed a 21 number to England; I mailed a number of other copies 22 around the US; I mailed copies to Australia, copies made 23 from my negatives and my inked prints that I had taken 24 from Shirley McKie. 25 At that point I don't believe there was any need for page 23 1 secrecy in saying that I believed it was an erroneous 2 identification because at that point I'd already 3 testified to it. It was a matter of public record. 4 Nonetheless the images I sent out were all unmarked. 5 Q. I take it you have not been present when any of the 6 individuals you sent images to examined Y7? 7 A. No, I was not present when the images which I mailed out 8 were viewed by the recipients of them. I discussed the 9 case in classes I taught and, of course, in those cases 10 I would have been present when people were examining the 11 prints. 12 Q. But so far as the individuals to whom you sent copies of 13 the images, you have no way of knowing what their 14 examination entailed? 15 A. That's correct. 16 Q. Finally, I would like to ask you about some of the other 17 comments that you have made. Firstly, you say in a 18 statement that you gave to the Mackay team when you were 19 speaking about QI2: 20 "As in the McKie print, these differences are either 21 gross incompetence or a clear attempt to pervert the 22 course of justice." 23 Firstly, is that accusation in relation to my 24 clients, the former SCRO officers who identified that 25 mark? page 24 1 A. That comment is in regards to anyone who did an 2 examination, claimed that QI2 was in fact Marion Ross's 3 print and then refused to re-examine it or retract their 4 position. 5 There are only two explanations for why anyone would 6 call QI2 Marion Ross's fingerprint: one explanation is 7 that it was gross incompetence; the other explanation is 8 that it was fraud. 9 Now, if you have a third alternative I would be glad 10 to discuss that with you. 11 Q. No, Mr Wertheim, I just wanted to check that you were 12 going to stand by the accusation. Of course, the 13 accusation is that it is either gross incompetence or 14 fraud, in your opinion; is that correct? 15 A. Yes, sir. 16 Q. You made a presentation in which you ask whether the 17 mis-identification of QI2, if it is so, was done through 18 incompetence or something more sinister and you give 19 examples of indications of intent. 20 Clearly, your view was that this mark was 21 mis-identified intentionally. Is that still your view? 22 A. I don't know the full context in which you're reading 23 that. 24 Q. This is in the context of a presentation that you gave. 25 A. To whom and when and where and what was the full page 25 1 comment? 2 Q. As I understand it, we're not going to be able to show 3 you the document. 4 A. I stand by my statement with QI2. It is not Marion 5 Ross's fingerprint. No competent Fingerprint Expert 6 would ever believe that QI2 was made by Marion Ross. 7 Therefore, if a person claiming to be a Fingerprint 8 Expert says that QI2 was made by Marion Ross, there are 9 two possibilities that occur to me: number 1, that 10 person is not a competent expert; or, number 2, that 11 person is not being accurate in what he says and you can 12 call that a lie if you want. 13 Q. Does that remain your view despite the fact that there 14 were independent experts who supported the 15 identification? 16 A. Yes, sir. 17 Q. You say elsewhere that there was clearly malicious 18 intent. What do you base that on? 19 A. I base that on the fact -- well, now wait a minute, let 20 me go back and say clearly malicious intent in what 21 sense? What is the context in which I made that 22 statement? 23 Q. This is, again, from a report, Mr Wertheim, authored by 24 you. I am afraid, again, we're not going to have the 25 facility to show you a copy today. page 26 1 A. Okay, can you tell me the date of the report and to whom 2 I made it? 3 Q. (Pause) This is a PowerPoint presentation that bears to 4 have been authored by you. The beginning of it refers 5 to the mark on the sweets tin. There are several 6 photographs of the tin with QI2 on it. On page 9 of 7 that PowerPoint presentation, there are bullet points in 8 which you identify indications of intent. The third 9 bullet point down on that page is: 10 "Clearly, malicious intent was present in the 11 preparation and presentation of these two related 12 cases." 13 What do you base that on? 14 A. Well, you're asking me about one bullet point on one 15 slide in a PowerPoint presentation and I have no idea 16 what the previous slides or the bullet points or what 17 the whole point of that statement was. I mean, you sort 18 of pulled it out of context on me there, Mr Holmes. 19 THE CHAIRMAN: Would it assist if Mr Holmes read the whole 20 of that slide to you, just in case it brings back some 21 recollection? 22 MR SMITH: I don't know if I can assist, sir, but for the 23 purposes of Mr Wertheim I think the presentation is a 24 presentation that was prepared for the purposes of the 25 civil case involving Shirley McKie. There was a page 27 1 PowerPoint presentation that Mr Wertheim did carry out. 2 I don't know if that assists in recollection. 3 THE CHAIRMAN: It may well do. Thank you. 4 A. That could well be then. I'm still lacking the complete 5 context there but I will repeat my statement that no 6 competent examiner would reach the conclusion that QI2 7 was made by Marion Ross and, therefore, if a person says 8 that QI2 was made by Marion Ross either he is not a 9 competent examiner, in which case he still may be of the 10 honest opinion that it was Marion Ross's print but he's 11 not competent to know the difference or if he is a 12 competent examiner he could not reach that conclusion 13 and honestly stay with it. I don't know how to make it 14 any plainer than that. 15 Now, in regards to -- would you read that bullet 16 point again? 17 THE CHAIRMAN: I think it would be better if he read all 18 three bullet points, Mr Wertheim, so that you can follow 19 it more clearly. 20 MR HOLMES: Okay. The three bullet points on that page 21 read: 22 "1. The circumstances and court presentation of 23 fingerprint evidence in the case of Shirley McKie lead 24 to a conclusion of perjury." 25 A. Can you repeat that, please? page 28 1 Q. "The circumstances and court presentation of fingerprint 2 evidence in the case of Shirley McKie lead to a 3 conclusion of perjury." 4 A. Okay. 5 Q. "2. That the circumstances and court presentation of 6 the fingerprint evidence in the case of David Asbury 7 lead to a conclusion of perjury." 8 The third bullet point is: 9 "Clearly, malicious intent was present in the 10 preparation and presentation of these two cases." 11 My question is what do you base that inference on? 12 MR SMITH: I am sorry to interrupt, sir, but I think it's a 13 little unfair to the witness. There is a previous slide 14 that is headed, "Indications of intent". 15 THE CHAIRMAN: I think it should be read as well. It is not 16 very clear unless you read it within the context. 17 MR HOLMES: The previous slide, Mr Wertheim, has four points 18 on it. You say at the top of it "Indications of 19 intent". 20 The first bullet point says: 21 "Out of focus photograph of mark was used though in 22 focus photograph was available." 23 The second one says that: 24 "Points charted in inked print do not match 25 corresponding details in the mark." page 29 1 The third point says that: 2 "Obvious ridge ending in mark above core clearly 3 does not exist in Marion Ross's print." 4 The fourth says: 5 "If done by a competent expert the final conclusion 6 must be that it was perjury." 7 So is your allegation that the SCRO officers who 8 gave evidence during both of these trials were lying? 9 A. My allegation is that either they are incompetent or, if 10 they were competent, they had to have known the 11 conclusion that they were testifying to was wrong. 12 Q. You appear quite certain there, Mr Wertheim, that the 13 conclusion is not one of a lack of competence but that 14 the conclusion is that these officers perjured 15 themselves, am I -- 16 THE CHAIRMAN: I think in fairness to the witness, what he 17 has said is, if done by a competent expert, the final 18 conclusion must be that it was perjury. So it is based 19 on the assumption for the moment that it was done by a 20 competent expert and then, as Mr Wertheim said, then it 21 must be perjury. 22 MR HOLMES: Apologies, sir. That does indeed exist in that 23 last point there. 24 A. I believe Sir Anthony has summed up my position clearly. 25 Thank you, sir. page 30 1 Q. On the first of this month and, again, we go back to the 2 Internet chat board, did you post in response to a 3 question about whether fingerprints lie: 4 "No, fingerprints do not lie. A fingerprint is what 5 it is. Sometimes humans make mistakes. Sometimes 6 humans lie." 7 Did you post that, first of all? 8 A. I believe I did. 9 Q. What is that intended to convey? 10 A. I believe it speaks for itself. A fingerprint is a 11 mark. It's ridges and furrows. It neither lies nor 12 tells the truth. It is simply there. The 13 interpretation of that mark can be correct or the 14 interpretation can be incorrect. The person giving the 15 interpretation can tell the truth or the person giving 16 the interpretation can attempt to deceive. It says 17 exactly what I meant it to say. 18 Q. So your position comes to this: if this Inquiry agrees 19 with you and finds that Y7 was not correctly identified 20 as the fingerprint of Shirley McKie and that QI2 was not 21 correctly identified as the fingerprint of Marion Ross, 22 then those who made that identification are either 23 incompetent or they are lying. Would that be correct? 24 A. Yes, sir, that's correct. 25 Q. On the other hand, if this Inquiry finds that Y7 was page 31 1 correctly identified as having been made by Shirley 2 McKie and that QI2 was correctly attributed to Marion 3 Ross, you were just an expert offering his honest 4 opinion? 5 A. That is my honest opinion. Y7 is not Shirley McKie's 6 fingerprint. QI2 is not Marion Ross's fingerprint. 7 Q. So you can be incorrect but you are just an expert 8 offering your honest opinion but if someone of the 9 opposing view is correct(sic) they are either 10 incompetent or they are liars. Is that your evidence? 11 A. If I am wrong about Y7 and QI2, then you may call me 12 incompetent, sir. 13 MR HOLMES: Thank you, Mr Wertheim. 14 THE CHAIRMAN: Now if you will bear with us just a few 15 moments longer, perhaps, if I could ask, first of all, 16 Miss Grahame if she has any questions she wants to ask. 17 MISS GRAHAME: I would like to clarify just one very small 18 matter regarding the suggestion about a court order 19 having to be obtained by the defence. 20 THE CHAIRMAN: Yes, if you want to ask that you may. 21 Cross-examined by MISS GRAHAME 22 Q. Good afternoon, Mr Wertheim. I would like to clear one 23 thing up with you, if I may. You have explained how 24 your recollection of going to the Fiscal's office and 25 seeing the gift tag is perhaps slightly flawed and I page 32 1 wonder if I can suggest to you that maybe another 2 element of your recollection may be flawed. 3 You have said in evidence today and it is something 4 that you have mentioned before, that the defence 5 solicitor for David Asbury told you that he had obtained 6 a court order to gain access to Crown productions and 7 labels. 8 Do you remember saying that? 9 A. Yes, ma'am. 10 Q. You see, the Crown policy is to allow access, once 11 suitable arrangements are made, for the defence and for 12 defence experts to see anything that is going to be used 13 in court and they are happy to make arrangements for 14 those documents and items to be viewed, either before 15 the case goes to trial or just before when it's in 16 court. 17 I am wondering if it's possible that you have maybe 18 misunderstood what the solicitor said when he said he 19 had a court order because we have nothing in the papers 20 to suggest that any court order ever had to be obtained 21 to allow access to those items? 22 A. I may be mistaken in the document. The solicitor -- and 23 I don't recall his name. He was a young man -- and I 24 went to the Procurator Fiscal's Office, as I recall, on 25 three separate occasions. page 33 1 On the first occasion, I was denied access to 2 anything. On the second occasion, a couple of days 3 later I was given access to a limited number of items. 4 Then I returned to the US and returned to Scotland a 5 couple or three weeks later -- I don't remember the time 6 interval -- and on the third visit then I was given all 7 of the evidence in the case. Now, that's my 8 recollection. I know in the US it would require a court 9 order to do that. I don't know that that's the right 10 term in Scotland. I apologise. 11 Q. So it is perhaps a misunderstanding between yourself and 12 the solicitor; would that be fair to say? 13 A. Yes, ma'am. 14 MISS GRAHAME: Thank you very much. I have nothing -- 15 A. I am sure the solicitor would remember it more 16 accurately than me because he knows the Scottish system. 17 MISS GRAHAME: Thank you. That clears that up for me. 18 THE CHAIRMAN: Mr Smith, have you any matters you want to 19 raise? 20 MR SMITH: Yes, sir. There are a few matters I would like 21 to raise. The question of Mr Wertheim's qualifications 22 and experience. I can deal with that just in a couple 23 of questions. Second, the methods used in the US 24 regarding expert testimony, in particular Daubert 25 hearings. He might be able to give some assistance with page 34 1 that and also some questions I have relating to some 2 factual information. It may be recalled I asked 3 Mr Leadbetter if Mr Wertheim's position was X then what 4 was his position. I would just like to hear primary 5 evidence on that and also a couple of questions that 6 have been raised by Mr Holmes and, to a lesser extent, 7 by Miss Grahame, I would like to clarify a couple of 8 matters relating to -- 9 THE CHAIRMAN: Very good. You have raised some matters 10 there and you may ask them. 11 Cross-examined by MR SMITH 12 Q. Mr Wertheim, when you were required to give evidence in 13 the Shirley McKie case in the High Court in Glasgow, at 14 that stage -- we have available your CV -- would I be 15 right in saying that at that stage had you approximately 16 200 hours training by the FBI in latent fingerprint 17 analysis? Would that be correct? 18 A. I believe that would be correct, without having the 19 benefit of my CV in front of me but I believe that would 20 be correct. 21 Q. In addition to that, I think we could see for ourselves 22 if we had it in front of us, that you had a number of 23 hours of training in other aspects of fingerprint 24 examination and also in other forensic skills, if I put 25 it that way. So a large number of hours of training by page 35 1 a number of organisations at the time you gave evidence 2 in the McKie case; is that right? 3 A. That's correct. I might say that I'm at a little 4 disadvantage because obviously I don't have a screen in 5 front of me that displays the things that the Inquiry's 6 looking at. It would have helped considerably with 7 Mr Holmes' cross-examination and I would like to state 8 for the record that I was willing to return to Scotland 9 or I could have had this but it was the 10 Inquiry's decision to do this by video conference. So 11 with that as a sort of a foundation, I will say that if 12 you've got the copy of my CV in front of you and those 13 are the numbers reflected on that, then I will accept 14 that as accurate. 15 Q. Thank you. 16 I would like to ask you, if I can, a little bit 17 about what we have heard described as Daubert hearings, 18 where I think we understand from other evidence in the 19 Inquiry this relates to almost an examination, a 20 preliminary examination, by the courts in the 21 United States into not just the particular experts but 22 into the kind of expertise that they are speaking to. 23 Is that something that you have had any personal 24 experience of, giving evidence in a Daubert hearing? 25 A. Yes, sir. page 36 1 Q. Could you explain to us what that experience was, what 2 your role was and what the court was trying to achieve? 3 A. The original intent of the Daubert hearing was to allow 4 a court to examine the basis for a new or novel science, 5 one that was not widely accepted. That was the original 6 intent of Daubert. 7 However, the US Supreme Court wording of the Daubert 8 decision allowed it to be expanded to attack -- 9 Q. Hold on just one moment. There's something happening 10 with the line here. 11 A. Oh, on the screen? 12 Q. Just hold on. 13 THE CHAIRMAN: We just need someone to press "no", I 14 think. I think we are in business now. Sorry about 15 that. 16 MR SMITH: If you could continue with your answer, please, 17 you are describing the wording of the Supreme Court 18 decision. 19 A. To summarise Daubert, the original Daubert hearing was 20 held to determine the validity of statistical evidence 21 used to analyse birth defects as having been caused by a 22 specific drug. It was a civil case, it was not a 23 criminal case. The statistical method used by the 24 defence, or I should say by the plaintiff, by the 25 Daubert family, was challenged by Merrell Dow page 37 1 Pharmaceutical. The Daubert family alleged that a drug 2 taken by Mrs Daubert had caused birth defects in the 3 baby. Merrell Dow alleged that their testing, their 4 phase 1, phase 2, phase 3 studies, showed that the drug 5 was safe and yet the Daubert family provided a 6 statistician who presented a statistical analysis of 7 Merrill Dowel's own evidence to show that there was a 8 significantly higher incident of birth defects among 9 women who used this drug. 10 Now, the problem was that the statistical 11 methodology used by the Dauberts' statistician was not 12 an accepted methodology, it had never been published 13 either in any textbook or in any articles, the 14 statistician hired by the Dauberts had not had any other 15 statistician review the work, and ultimately the Supreme 16 Court threw out the Daubert statistician and said that 17 did not meet the test of science. In that decision, 18 Merrell Dow was specifically addressing new and novel 19 techniques or methodologies such as the new and novel 20 statistical approach used by the Daubert statistician, 21 it never been used for any other purpose, it was 22 invented for that case alone, the methodology was not 23 peer reviewed, it was not validated. The Supreme Court 24 held that in a new and novel scientific methodology, 25 first of all, the court should ask: has this methodology page 38 1 achieved general acceptance in the relevant scientific 2 community; secondly, what is the error rate of this 3 science; third, is the methodology tested and validated; 4 and, fourth, has it been published and peer reviewed. 5 Now, I may have those out of order but those were the 6 four criteria that the Supreme Court said should be used 7 to evaluate a new methodology. 8 Subsequently, when DNA came into its first usage, 9 the Daubert decision was used to challenge DNA evidence 10 on the grounds that it was a new and novel science. 11 There were a number of DNA decisions in most States and 12 most federal jurisdictions in the US before DNA became a 13 generally accepted science. At that point, Daubert 14 challenges began to be filed against other disciplines. 15 The first was against questioned documents or document 16 examination and the document examiners lost the first 17 Daubert challenge filed against document evidence. 18 Subsequently, when the first Daubert challenge was 19 filed against fingerprints, it was the Byron Mitchell 20 case out of Federal Court in Philadelphia and in the 21 Byron Mitchell case, the FBI had presented the evidence. 22 The FBI assembled a team of outside experts to assist in 23 defending the science of fingerprints. I was fortunate, 24 I was honoured, to have been chosen by the FBI as part 25 of the team and subsequently I attended the hearing in page 39 1 Philadelphia in July -- as I recall, it would have been 2 the week of probably July 7, 8, 9, 10, somewhere 3 thereabouts in 1999 in Philadelphia -- and I testified 4 in that first Daubert challenge on fingerprints. 5 I have subsequently testified in, oh, one or two or 6 three other Daubert challenges to fingerprints as well. 7 Q. Can I ask you this: the challenge that was being 8 presented, was that a wholesale challenge against 9 fingerprint evidence or was it a particular aspect of 10 it? 11 A. The first one, the Byron Mitchell case, was a wholesale 12 challenge to all aspects of fingerprint identification. 13 Subsequent challenges have narrowed the focus but that 14 first challenge was a broad-based attack on everything 15 we do. 16 Q. Can I ask you this on a particular matter: there has 17 been a lot of evidence before this Inquiry relating to 18 distortion, movement, et cetera, as a justification for 19 differences between, for example, Y7 and the prints that 20 are Shirley McKie's. On that particular aspect, is 21 there published literature relating to any studies into 22 distortion and movement and so on and so forth? 23 A. Every training course deals with distortion. There has 24 been a recently published article on distortion, it's 25 been within the last year in the Journal of Forensic page 40 1 Identification authored by Alice Maceo -- M-A-C-E-O. 2 Alice Maceo has done a tremendous amount of research 3 using a video camera mounted below a glass plate and 4 studying the deposition of the fingerprint with 5 twisting, with rolling, with pressure, with slippage, 6 from every kind of distortion she can devise and 7 watching it filmed and then comparing the final print as 8 it would be powdered and lifted to the motion as it can 9 be viewed which resulted in that deposition. I'm not 10 sure that Miss Maceo has ever applied her analytical 11 techniques to Y7 or QI2. 12 Q. I would like to ask you if I can just a little bit about 13 the differences in the methods of presentation in your 14 experience of fingerprint evidence in the United States. 15 Obviously we have all seen the comparison in the 16 charting enlargements that was presented to the court in 17 Shirley McKie's case and you looked at that yourself. 18 As far as that is concerned, have you ever seen anything 19 like that in your experience of evidence in the 20 United States, anything that is a comparison with a 21 number of lines, whether 16 or any other number, going 22 in to try and justify a position? Is that something 23 that is used? 24 A. In the history of fingerprints that has been, up until 25 the last few years, that has been the standard way of page 41 1 demonstrating an identification to the court, a large 2 chart with a photograph of the crime scene mark or the 3 latent print on the one side and on the other side the 4 inked print and then each of the points, which is to say 5 ridge ending, bifurcation or splitting ridge, and dot. 6 Each of the points then has a line and is assigned a 7 number so that you can compare point 1, point 2 and 8 point 3. That is standard. 9 What was not standard about those productions is 10 that the top half of Y7 was chopped off. That's from 11 the earliest training I got. I was taught that you 12 don't crop the latent print. You include the entire 13 unknown, the crime scene mark and the latent print. In 14 some cases, you might crop off part of the inked print 15 because the inked print may be large rolled and you may 16 be comparing it to a small piece of latent so you are 17 only comparing the relevant portion of the inked print, 18 but you have to compare the entirety of the latent 19 print. 20 The other thing that was not standard was that the 21 charts prepared by SCRO dealing with Y7 were degraded. 22 The images were very unclear. Now, the inked prints 23 were very clear. That half of the chart of Y7 was 24 clear. The ridges, the furrows, the sweat pores, 25 everything in the inked prints was clear but everything page 42 1 in the latent print had been degraded. Whether that was 2 intentional or not, I don't know, but I have to believe 3 that if the charting machine was capable of producing a 4 crystal-clear inked print, it should have been capable 5 of producing a clear latent print. So to present a 6 chart with an unclear print that has been cropped, that 7 is not acceptable. 8 Q. But the purpose of the kind of demonstration that you 9 refer to in the US I take it it was to try and 10 demonstrate to the jury how they could see a match 11 between the latent and the inked. Is that right? 12 A. That's correct. 13 Q. It is not a question of just saying, "Well, I'm an 14 expert, I can see it" or "This is just a demonstration 15 but we can't really see what's going on here, but I'm 16 telling you I have seen it and it's right". You see the 17 difference between the two? 18 A. Yes. If I'm an expert, I should be able to show you why 19 I see what I see and what I believe. Being an expert 20 does not allow me to see anything differently from what 21 you see. Being an expert allows me to understand and 22 interpret what I see but there's no way that training 23 will allow me to see something that's not there. Thus 24 when we prepare a chart for court it's not to show 25 things that I see that you can't see, it's to help me page 43 1 explain to you how I've interpreted the evidence. But I 2 can't simply sit there and say, "I'm the expert. 3 Believe me". I have to be able to explain to you, to 4 educate you, if you will, to teach you how to be an 5 expert in just this one print. If I'm going to a jury, 6 I may not be able to make them fingerprint experts for 7 the whole science of fingerprints, but it's my goal to 8 make them an expert for that one fingerprint that they 9 have to evaluate in the jury room. 10 Q. In that regard, do challenges to a prosecution in the 11 United States, is that something that happens -- how 12 would you describe it -- regularly, frequently? Can we 13 get an idea of how experienced fingerprint experts are 14 to deal with challenges or to challenge the prosecution? 15 A. Without having ever kept track or done a survey, I would 16 say that I'm probably reviewed by a defence expert on 17 average two or three times a year. They'll come into 18 the lab, they will look at the evidence, they'll 19 photograph it or I'll meet them at an attorney's office 20 and present it to them. It's not uncommon. 21 Q. You see, what I am trying to do is compare the position 22 in Scotland as I understand it. The challenge that you 23 presented in your evidence in Shirley McKie's case was, 24 frankly, the first certainly in living memory that there 25 was a direct challenge being taken to court. Now, that page 44 1 is something that clearly happens on occasion in the 2 United States in different States, that there are actual 3 challenges presented in court. That must be correct, is 4 it? 5 A. No, I would not say that that's common because those 6 cases are generally resolved ahead of time. I've never 7 known a case -- I've never had a case where a 8 Fingerprint Expert came to court and said I was wrong 9 and, while I have done other defence cases, in the vast 10 majority of those cases I have concluded that the 11 Fingerprint Experts were correct. Following the Shirley 12 McKie trial, I was contacted by other defence attorneys 13 or solicitors in Scotland to look at additional cases 14 that the SCRO had done and in the rest of the cases that 15 I looked at I concurred with the SCRO's conclusions in 16 those cases. So I would have never appeared against 17 them in those cases. 18 Having a situation like we did here where experts go 19 head-on in court is rare in the United States. 20 Q. I would like to ask you just a few very short questions 21 just to clarify some matters. The first of these 22 relates to the attack by Mr Leadbetter against you in 23 his statement. I am sure that you have read the 24 evidence in which I cross-examine Mr Leadbetter, so I am 25 guessing not much of this is a surprise to you, but he page 45 1 accuses you in his statement of having misled the US 2 courts when you first gave evidence in the 1970s because 3 of, I think in summary, a failure to disclose to the 4 courts that you only had a couple of weeks' training 5 before giving evidence. 6 On the first occasion you gave evidence in a court, 7 did you disclose to the court that you had only had that 8 limited training and experience in latent fingerprint 9 examination? 10 A. Oh, yes. The state of training in the US back in the 11 1970s was not good. There were some police agencies 12 that had excellent training programmes. The police 13 agency that I worked for in the 1970s was the Kerrville 14 Texas Police Department -- K-E-R-R-V-I-L-L-E -- and they 15 sent me to a two-week course following which they 16 blessed me as their fingerprint expert. My job after 17 that included the classification, filing and searching 18 of fingerprints, as well as comparison of unknown prints 19 with known prints. But when I first testified, which 20 would have been 1978 or 1979 -- I had taken my training 21 in 1976, when I first testified, I did not mislead the 22 court. It's up to the court to decide whether to admit 23 my evidence. I have never inflated my qualifications. 24 Q. So it would be disclosed to the prosecution, to the 25 judge, to the defence? page 46 1 A. And to the defence attorneys. 2 Q. Everyone. So they knew what the state of your training 3 and experience was? 4 A. Yes, absolutely. 5 Q. Can I ask you as far as Shirley McKie's inked 6 fingerprints are concerned, when you took fingerprints, 7 inked examples from her, do you recall if you took any 8 rolled prints from her? 9 A. My recollection is that I began with a full set of 10 rolled fingerprints taken in the way that a jailer would 11 normally fingerprint a prisoner; in other words, all ten 12 fingers rolled completely from side-to-side. I began 13 with that full set of fingerprints to document all of 14 the fingers and because I wanted to compare Y7 to each 15 of her fingers just to assure myself that maybe the 16 wrong inked print had not been used on the charts. So I 17 did take a full set of rolled prints. I don't believe 18 I'm currently in possession of that. I believe I must 19 have either given it to Angela McCracken or Donald 20 Findlay or somebody else down through the years, but 21 it's my recollection that I took a set of rolled prints, 22 but because the charted enlargement focussed on the left 23 thumb, then I took many impressions of the left thumb 24 trying to duplicate the angle and direction of touch and 25 pressure to match the angle and direction of touch and page 47 1 pressure of Y7 to facilitate more comparison of similar 2 areas of the thumb. 3 Q. Can I ask you this, and this is to do with the question 4 of whether you discussed with Mr Grieve, and indeed 5 Mr Ashbaugh, your opinion before you gave them the 6 images to look at. As far as Mr Grieve is concerned, 7 both of you gave evidence in the High Court, I think, in 8 Glasgow relating to your respective opinions about Y7. 9 Did you discuss with Mr Grieve your opinion and what his 10 opinion was at any time prior to you giving evidence to 11 the High Court? 12 A. No, sir. 13 Q. I think you had a lot of hanging about to do in Glasgow 14 waiting for the trial to begin. Did you spend time in 15 the company of Mr Grieve? 16 A. I spent most of two weeks in the company of Mr Grieve. 17 Q. During that entire period of time that you were in his 18 company you tell us that you didn't once discuss with 19 him what his opinion was and you didn't tell him what 20 your opinion was about Y7? 21 A. No. I think we both assumed that we had reached the 22 same conclusion by virtue of the fact that Donald 23 Findlay had called both of us to testify, but we did not 24 discuss our conclusions nor how we got there. I might 25 add that when I first gave those images to Mr Grieve and page 48 1 Mr Ashbaugh they thought, at least now in retrospect 2 having talked to them after Shirley McKie's trial, they 3 thought that I had been doing an examination for 4 fingerprint forgery and that I was asking them to review 5 the fingerprints for science of forgery, because that 6 was the original call from Iain McKie and that was my 7 discussion with Angela McCracken prior to my visit to 8 Glasgow, was that Shirley McKie was alleging that her 9 fingerprint had been forged on the doorframe. 10 Therefore, when I left Edinburgh and took the train 11 to Glasgow, the Ashbaughs and the Grieves remained 12 in Edinburgh. I went to Glasgow, I looked at the print, 13 I realised it was not a forged fingerprint, but I 14 reached a conclusion it was an erroneous identification. 15 When I returned to Edinburgh and gave them the prints, I 16 did not do anything to correct their belief that I was 17 looking at a fingerprint forgery. I intentionally left 18 them with only the impression they had had before I went 19 to Glasgow and I never -- Mr Grieve and I scrupulously 20 avoided talking about that case until after Shirley 21 McKie's trial was over. Only then did we discuss it. 22 Q. The final matter I wanted to ask you about was the 23 question of the quashing of Mr Asbury's conviction. If 24 you take it from me that, whilst Mr Holmes is right to 25 say that the prosecution did not resist, the Crown page 49 1 didn't resist the appeal, the Crown were in possession 2 of a report which agreed that QI2 was wrongly identified 3 as being of the late Marion Ross. Before you examined 4 QI2 and said that it was an incorrect identification, 5 are you aware if anyone else had come to that conclusion 6 by looking at it? 7 A. I'm not aware of that. 8 Q. I am really trying to just understand what I think was a 9 veiled criticism against you for your suggestion that it 10 was your opinion that led to the acquittal, but I am 11 right in saying that you said, I think after being 12 funded by the Panorama programme I think to come across 13 and examine QI2, you said it was wrong. That was 14 communicated by the solicitors to the Crown. The Crown 15 then obtained their own report and, once they obtained 16 their own report, the conviction of David Asbury was 17 quashed by agreement of the Crown. 18 Is that your understanding of the sequence of 19 events, Mr Wertheim? 20 A. Yes, with a couple of minor points there. I believe the 21 funding for my trip to Scotland was not by Panorama but 22 was by the programme Frontline Scotland. 23 Q. I beg your pardon. You may be right about that. 24 A. But I was led to believe that my report alone was the 25 basis for the appeal and the quashing of his conviction. page 50 1 If I'm wrong on that, I apologise if there was a second 2 report that I'm unaware of. 3 MR SMITH: Thank you very much. I have no further 4 questions. 5 THE CHAIRMAN: The only remaining matter is to see if 6 Mr Moynihan has any questions arising that he wants to 7 ask and then we can let you go in peace. 8 Re-examined by MR MOYNIHAN 9 Q. Mr Wertheim, just to tidy up this question about XF and 10 the history in particular with contact with the 11 Procurator Fiscal, do you have a copy of the report that 12 you prepared for the Inquiry with you just now? 13 A. Not in front of me. My apologies. 14 Q. That is okay. Don't worry, I can help you. I have as 15 part of it, it's section 8 of your report. For us, the 16 report itself is FI0118 and part 8 begins on page 54. 17 This is a report that you prepared on 30th March 2000. 18 You may want to write that date, 30th March 2000. The 19 date on which you visited the Procurator Fiscal's 20 Office, your notes say, and saw the gift tag was 21 25th April 2000 -- so some three and a half weeks or so 22 after this first report. The first report is dated 23 30th March 2000. On 25th April you subsequently saw XF. 24 In the report of 30th March 2000, what you actually 25 wrote in paragraph 18 was: page 51 1 "With regard to the mark labelled [and I will take 2 it short] XF in Crown production 98, I've compared that 3 mark to the inked prints I took from David Asbury. The 4 mark is clearly the print of David Asbury's right index 5 finger. However, the image of the mark on the gift tag 6 in the photograph of XF in Crown production 98 leaves 7 some unresolved questions. In order to evaluate that 8 mark fully, it would be necessary for me to examine the 9 gift tag itself with the mark still in place on it. To 10 this date, I have not been given access to that piece of 11 evidence." 12 Would you accept what I have read that that may have 13 been the position on 30th March 2000? 14 A. Yes. 15 Q. I happen to have seen, but I don't have on this 16 particular computer, some correspondence with the 17 defence solicitors, who were by then an Edinburgh firm 18 called Moore & Company, who set up with the Crown Office 19 the opportunity for you to see XF on 25th April and you 20 wrote the notes that I actually showed you in the 21 Inquiry on that day. 22 A. Yes, sir. 23 Q. I will come back to that particular period in 2000. 24 The next document that you lodged as part of your 25 statement to the Inquiry is at section 9 and is a report page 52 1 dated 6th October 2003; so it was written three years 2 later. In that at paragraph 23 -- this is by now 3 page 67 of the document for us -- what you write in 4 October 2003, and I will take it shortly, is essentially 5 a repetition of what you had said in March 2000. What 6 you wrote is: 7 "With regard to the mark labelled [and I will take 8 it short] XF in Crown production 98 I have compared that 9 mark to the inked prints I took from David Asbury. The 10 mark is clearly the print of David Asbury's right index 11 finger. However, the image of the mark on the gift tag 12 in the photograph [and, again, I will take it short] of 13 XF and Crown production 98 leaves some unresolved 14 questions. In order to evaluate that mark fully, it 15 would be necessary to examine the gift tag itself with 16 the mark still in place on it. To this date, I do not 17 believe that any such independent examination of the 18 gift tag itself has taken place. In light of the issues 19 presented by Crown production number 99, I believe a 20 complete review of the gift tag itself is fully 21 warranted." 22 Then you sign. It would appear that your memory 23 lapse had occurred by the date of this report in 24 October 2003? 25 A. Yes, sir. You've narrowed it down very well. It must page 53 1 have and again I apologise. There's no excuse for the 2 memory lapse, except that all I can suggest is that in 3 April 25th of 2000 it was insignificant enough that it 4 didn't make it back into long-term memory and I'd 5 forgotten about it. 6 Q. That's okay. One final thing I just wanted to ask you 7 about is we understand -- again, I haven't viewed it -- 8 that in the BBC programme in May 2000 that brought to 9 light the QI2 that you may have been photographed or 10 filmed outside the Procurator Fiscal's Office making 11 some comments about XF. Do you have any recollection of 12 that interview to tell us whether that was before or 13 after the time that you, in fact, examined the gift tag? 14 Do you have any recollection of it at all? 15 A. I seem to remember Shelley Jofre and I believe Allan 16 Bayle went with me on at least one occasion to the 17 Procurator Fiscal's Office, but I don't recall whether 18 the interview was before or after the examination. 19 Q. We will leave it there. What I will do for the others 20 is I will show them the correspondence that in fact 21 comes after 30th March 2000 and plugs the gap between 22 30th March 2000 and 25th April when you actually saw the 23 gift tag and that may assist. As far as I can 24 understand from that correspondence, you gained access 25 as a result of correspondence between the defence page 54 1 solicitors and the Crown and not as a result of a court 2 order. 3 A. I accept that. 4 MR MOYNIHAN: I have no further questions then. Thank you, 5 Mr Wertheim. 6 THE CHAIRMAN: That, I think, brings to an end your 7 evidence, Mr Wertheim. It only remains for me to thank 8 you for, first of all, coming to Scotland to give 9 evidence and for giving evidence in this way today. 10 Thank you very much for that. 11 I think I should also thank Digby Brown who have 12 made the facilities at this end available and beyond 13 that I am sure the sun is shining in Arizona, which it 14 certainly is not in Scotland. I wish you well. 15 A. I would gladly trade you some sunshine for rain. 16 THE CHAIRMAN: We could give you the rain. Thank you very 17 much. Goodbye. 18 (5.40 pm) 19 (Adjourned until 9.30 am the following morning) 20 21 22 23 24 25