The conviction of two Burmese migrants has prompted international criticism over a flawed police investigation.
The idyllic Thai tourist island of Koh Tao, famed for world-class diving and snorkeling in emerald clear waters is for most visitors a blissful sojourn in paradise. However, the murders of two British backpackers, brutally bludgeoned to death on Sairee beach on September 15, 2014, gave the world a glimpse of a darker side.
The controversial trial of two Burmese migrant workers who were found guilty of murder and sentenced to death on December 24, 2015 by the Koh Samui provincial court in southern Thailand has triggered a storm of protest in neighboring Myanmar and a steady flow of criticism from international jurists and human rights organizations.
One of the defense lawyers, Nadhsiri Bergmann told The Diplomat: “This was a groundbreaking case. It was the first time a Thai criminal defense team had ever challenged police forensic evidence” The defense lawyers are already working on numerous points of appeal against the sentences on behalf of the two Burmese, Zaw Lin and Wai Pytho.
Coverage of the case and serious doubts raised about Thai police credibility had been closely followed on Burmese social media, based on a Thai website with detailed reporting on the trial.
Inside Myanmar, anger and indignation erupted over what they perceived to be a perverse verdict by the three Thai judges. Daily demonstrations besieged the Thai embassy in Yangon and border checkpoints.
The roots of this seething sense of cumulative injustice over the alleged ill-treatment and abuse of their migrant workers in Thailand reached a tipping point with this case.
Meanwhile, the International Commission of Jurists, Amnesty International and Human Rights all expressed concerns over the conduct of a murder case that has attracted world-wide attention.
Even British Prime Minister David Cameron became involved in 2014 when the U.K. media first reported the flaws of the Koh Tao police investigation. U.K. police were sent to Thailand on a mission to aid the local police investigation.
This investigation was pressured by the Thai military leaders urging “quick results” in order to restore the battered reputation of Thailand’s tourist industry, and especially the safety of its tropical paradise islands.
The local police on the island got off to a bad start with their failure to seal off the crime-scene. The body of Hannah Witheridge was moved before any DNA tests had taken place. Found nearby was the body of the other murder victim, David Miller, also from the U.K.
Hannah’s sister Laura Witheridge, who visited Thailand in 2014 after the murder, denounced “police bungling” of the case on a Facebook post a few days ago that has since been blocked by Thai authorities.
In the verdict delivered by the Thai judges, DNA tests conducted by a police forensic laboratory were cited as the key evidence in the case that convinced them that the two young Burmese bar workers on Koh Tao Island – Zaw Lin and Wai Phyo – were guilty.
However, Thailand’s top forensic pathologist, Dr. Pornthip Rojanasunand, in her capacity as a defense witness, cast serious doubt over the competence and credibility on the police investigation in collecting DNA evidence. She pointed out that police officers at the crime-scene had not tested for DNA pools of blood on the beach, nor had they tested the murder weapon, a garden hoe, for the DNA of the accused.
The defense lawyers obtained a court order instructing the Thai police to hand over all DNA samples and the murder weapon for further DNA testing by Rojanasunand, the head of Thailand’s Central Institute of Forensic Science, a body independent of police control.
The murder weapon was re-tested. The results revealed that two males were linked to the hoe, but they did not match the DNA of the two Burmese accused.
The prosecution’s DNA evidence was used by the prosecution to claim that the two Burmese workers had raped the female victim prior to the murder on the beach. The alleged semen samples that allegedly matched the DNA of the Burmese migrants were not made available to the defense experts. The police claimed that the all-important evidence was mysteriously “used up” or was otherwise unavailable for re-testing. The defense found this suspicious given the prime role of this evidence, but evidently the judges did not.
The cornerstone of the prosecution case about the alleged DNA match was presented to the court as a one-page document with hand-written additions and crossing –outs.
According to the prosecution, this DNA sample was the smoking gun that proved the two Burmese had raped the British victim. The fact that the sperm data was in part hand-written, crossed out, dates and times were inconsistent was highlighted by the defense.
Internationally respected forensic specialist Jane Taubin, who advised the defense team on DNA issues, analyzed the prosecution’s DNA evidence. In response to questions from The Diplomat she stated: “A one page report with a table of DNA results, with no guidance to interpretation, no assumptions or limitations, no chain of custody, no conclusions, handwritten alterations, no discernible standard to what the report adheres, is not a suitable document to provide to a court.”
Widely known in the forensic science world for her expertise on DNA evaluation, Taubin explained “contrary to popular mythology on crime TV shows, DNA testing is not simple.” She added, “It is not possible to determine from a DNA profile whether any or all of the components were contributed by semen, sweat or saliva.”
In reality, DNA results may be far from conclusive and ultimately dependent on evaluations of statistical probability, rather than any certainty. In other countries, defense challenges have led to DNA evidence being rejected by the courts, and the prosecution case collapsing.
In the celebrated Italian murder case against Amanda Knox, the Appeals Court in Rome in 2011 rejected tainted DNA evidence, and eventually the Supreme Court in Italy provided complete vindication of Knox in 2015.
Thai Justice on Trial
The judgment of the Koh Samui Provincial Court is sprinkled with references to DNA testing carried out by the police forensics in Bangkok, as conforming to the international standard ISO 17025 as the justification for a verdict. The court took the view that the DNA evidence was so solid that it outweighed the admitted flaws of the police investigation.
Defense lawyer Nadthasiri Bergman argued that the DNA did not follow international standards at all. “It was not possible to follow ISO 17025 standards, and achieve these results in less than 12 hours. This was a critically important point for the defense which seems to have been totally ignored by the judges in their deliberation and conclusions reached pertaining to the judgment.”
Jane Taubin asked the police to provide key documents about the analysis and interpretation of DNA laboratory profiling, but these were never produced.
The defense case that police-tested DNA could be tampered with subject to error was rejected by the judges, and the plethora of doubts cast by the evidence of Pornthip, Thailand’s most respected forensic scientist, were brushed aside. As a forensic pathologist, Pornthip gave evidence on the integrity of the DNA investigation and collection, but not on the complexities of evaluating DNA testing.
The most qualified DNA expert Jane Taubin, a key consultant for the defense team, was strangely never called to give evidence.
With such a multitude of unanswered questions left hanging in the Koh Tao case, the Thai government’s eagerness to assure tourists that Koh Tao Island is once again a safe destination, is unlikely to have been achieved by this trial.
Laura Witheridge, who visited Thailand with her family to find out more about the case in 2014, posted on her Facebook page “the vast majority of the Thai police are corrupt, and Thailand is a dangerous trap,” indicating she believed that Thai people not Burmese, were guilty of murdering her sister.
After the trial, the Miller family in Koh Samui took the opposite view, telling the media that “justice had been done.”
The trial is over but the swirling controversy of the Koh Tao case has sowed has ratcheted up the tension in Thailand-Myanmar relations. The Myanmar government is demanding a review of the evidence.
Koh Tao’s reputation as a mafia-controlled island of fear during the police investigation had been reported by several U.K. newspapers.
Many residents both Thai and expatriate spoke in whispers to British reporters that the real culprits are still on the loose and being protected by a very wealthy Koh Tao tycoon, while the two Burmese languish behind bars.
This was a case that has put Thailand’s justice system on trial. The verdict has failed to convince many Thai and foreign observers that the two Burmese migrant workers are anything more than innocent scapegoats, who happened to be relaxing on the wrong beach at the wrong time in a paradise lost.
Alan McKenzie is a freelance journalist with a background in criminal and human rights cases in the British courts.