By Fredrik S. Heffermehl
OSLO, Jun 24 2015 (IPS)

When he died at the age of 80 on Jun. 18 in Oslo, Fredrik Fasting Torgersen had divided Norway for 56 years and the “Torgersen case” had attracted international interest in forensic science circles, among them the U.S.-based Innocence Project.

The case has a lot to tell us about evaluation of evidence, and how to avoid wrongful convictions.

At 24, Torgersen was convicted as the murderer of a 16-year-old woman found brutally killed in a basement in the house where she lived. He served 16 years in jail, but always insisted on his innocence and enjoyed a wealth of support.

Fredrik S. Heffermehl

Norway’s chief prosecutor (Riksadvokaten) and the judiciary have time and again turned down appeals for a reversal, but they are increasingly alone in their view; criticism from scientists, authors and the general public has grown steadily.

Torgersen had a prior record with the police when, just after midnight on Dec. 6, 1957, he was arrested in the centre of Oslo, suspected of having stolen a bicycle. During interrogation, the police station received a report of a young woman found dead in the same area. The police immediately suspected Torgersen and, in the coming weeks and months, collected everything that could appear to prove their theory.

The police were so convinced of his guilt that obvious exculpatory evidence, such as the lack of blood splatter on Torgersen´s clothing, was ignored.

Today, it is generally recognised that police must not focus on one suspect too early, and that material deemed “uninteresting” by the police must be made available to defence attorneys and the court.

Yet, the aspect of the case that seems to call for a revolution, in no way limited to Norway, has to do with evaluation of evidence. Courts lack training essential for assessing probabilities correctly.“Judges (and defence attorneys) must be trained in basic scientific methodology, logics and elementary statistical principles. Only then will they be able to unmask apparently impressive expert testimony not underpinned by empirical research on the real world and its variations”

At the original trial of Torgersen in 1958, the prosecutor presented three forms of technical evidence and a series of experts who told the court that unique aspects of this evidence (a bite mark, traces of faeces, and some spruce needles) amounted to total probability, indisputable proof, that Torgersen had been at the crime scene and left a bite mark on the breast of the murdered woman. The court relied on “likenesses” as conclusive evidence against him.

It applies all over the world – courts fail to see the difference between similarities and probabilities.

A bite mark tells that the killer had teeth, meaning it could be anyone. Unique traits are needed. When a dentist testifying against Torgersen told the court that the teeth had met “edge-to-edge” and that this clearly pointed to Torgersen, the defence attorney asked: “How unusual, one in two, in ten, in fifty, or one in a thousand?” The dentist could not tell, but the court did not understand what was at issue.

If the court had understood, this type of question would have been asked not only once, but again and again in the case, in all other cases in all courts, everywhere. Likeness in itself tells nothing. To draw conclusions about probability and uniqueness, one always needs to know normal frequencies.

This was the key discovery made in 2001 by the Oslo professor of criminal law, Ståle Eskeland, who, after 20 years on the case, leads a very broad effort for reversal of the Torgersen conviction.

Eskeland has explained this elementary rule of conclusions theory to the courts repeatedly, but they seem unable to grasp it. Courts have continually upheld the Torgersen conviction without even the smallest comment on the probability argument.

In a recent debate, a leading defender of Torgersen, Professor Per Brandtzæg, Norway´s most internationally quoted scientist, supported Eskeland. In a rebuttal, the former director of the Norwegian Courts Administration, Tor Langbach, insisted that the courts are critical, they ask questions.

He seems to miss the point. Not only must the courts ask the experts questions, says a professor of law in Oslo, Leif Petter Olaussen, they must ask the right questions.

To do so, judges (and defence attorneys) must be trained in basic scientific methodology, logics and elementary statistical principles. Only then will they be able to unmask apparently impressive expert testimony not underpinned by empirical research on the real world and its variations. 

Olaussen refers to an example of the horrific consequence of not asking the right question. Ten years ago a court found an employee in a kindergarten guilty of sexual abuse. Some rumours had circulated (children are fanciful) and, based on testimony from two doctors about unusual red marks around the vaginas of the small girls, the court concluded that improper conduct had occurred. Someone must have done it, and the most likely was Mr. NN (!), who was then whisked off to jail.

The court should have inquired about the research basis for calling red marks unusual. There was no such research at the time, only ten years later. Red marks are normal. The judgment was reversed.

Torgersen died in peace, he felt acquitted by both public and experts and knew that a solid group would continue to take his case forward. Just one week before he died, a new request for reversal was submitted by two heavyweight attorneys, Cato Schiøtz and Pål W. Lorentzen.

After 64 years, the file is enormous, but the case is still very simple – the lawyers found no valid evidence against Torgersen, but a whole lot that exculpates him.

One day, Norway and the world will thank Torgersen for a lifelong effort in the service of justice. (END/COLUMNIST SERVICE)

Edited by Phil Harris   

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service. 

Excerpt:

Chang Sen-wen, owner of a pharmacy in Dapu township demolished by Miaoli county government, speaking to protesters in August last year. His body was found under a bridge near his home a month later. Credit: Dennis Engbarth/IPS.

By Dennis Engbarth
TAIPEI, Jan 20 2014 (IPS)

The Taiwan farmers victory in a landmark court case in a years-long battle has delivered a shock to government officials and given a morale boost to citizen campaigns.

The win followed a bitter resistance campaign against expropriation of farmland that has already cost two lives.

The verdict will encourage a drive by civic groups and opposition lawmakers to revamp the controversial Land Expropriation Act.The verdict will encourage a drive by civic groups and opposition lawmakers to revamp the controversial Land Expropriation Act.

The dispute in Dapu in Miaoli county has been the most high-profile case in Taiwan of resistance to ‘zone expropriations’ in which large zones are subject to compulsory sale to government for projects which use part of the land for infrastructure and sell other portions to raise funds for construction or local government finance.

At present, there are 95 cases pending of zone expropriations involving over 7,600 hectares. Resistance campaigns are taking place over the planned expropriation of 3,000 hectares for an ‘aviation city’ near the Taiwan Taoyuan International Airport, for 447 hectares of designated farmland for a ‘knowledge-based industrial park’ in Hsinchu county, and for 236 hectares for a station on a mass rapid transit line between the airport and Taipei City.

“Many large-scale zone expropriations of excellent farmland have taken place all over Taiwan usually under the pretext of creating new towns or industrial zones without consideration of actual need, and the land is often sold for speculation,” said Taiwan Rural Front (TRF) chairman Hsu Shih-jung.

“The result is the rapid erosion of Taiwan’s best farmland,” said Hsu, adding that the verdict “exposed the ills of the zone expropriation system and is a benchmark for land justice.”

In 1999, Miaoli county government mayor Liu Cheng-hung ordered the zone expropriation of 156 hectares, mostly high quality rice fields, to expand a nearby technology park, even though the proposed optics factory there needed only 28 hectares. The expropriations proceeded despite cancellation of the optics project.

The case in Dapu made international news in June 2010 after a Taiwan citizen reporter filmed Miaoli county government excavators, protected by hundreds of police, destroying hectares of green rice paddies ready for harvesting.

Public revulsion over the destruction of the rice fields and the subsequent suicide of grandmother Chu Feng-min fuelled a protest campaign to ‘Return our Land’. The protest was led by the Dapu Self-Salvation Association and the TRF.

Despite negotiations with the central government and the legal proceedings, Miaoli county excavators, protected by hundreds of police, tore down the homes of the last four resisting households, including the pharmacy of Mr Chang Sen-wen, on Jul. 18 last year.

The TRF responded with a protest sit-in joined by more than 10,000 citizens. A month later Chang Sen-wen was found dead under a bridge near his home in an apparent suicide.

On Jan. 3, a panel of three Taichung High Administrative Court judges found that the compulsory purchase of land belonging to Ms Peng Hsiu-chun, Chang’s widow, and eight other citizens in four households and the Jul. 18 demolitions were “illegal” and voided the expropriation order approved by the Ministry of the Interior (MOI).

Lawyer Chan Shun-kuei, who represented the Dapu residents, told IPS that the MOI and the Miaoli county government were unlikely to win a reversal from the Taiwan Supreme Administrative Court.

“The MOI’s commissions on land expropriation and urban development and the Miaoli county government were unable to provide documentary evidence that there had been substantive discussion about the alternatives to expropriation or whether the expropriation was necessary for the public interest,” Chan said.

At a news conference held at the National Taiwan University Alumni Club in Taipei City shortly after the judgment, the TRF’s Hsu Shu-jung said the verdict “came too late to save grandmother Chu Feng-min and Chang Sen-wen.”

“We want our land and homes to be returned to us and for Liu Cheng-hung to apologise and explain why he forced my husband to die,” declared Peng Hsiu-chun, who added that she would apply for redress through the National Compensation Act.

Hsu told IPS that the late Chang Sen-wen had asked him, “What crime did I commit that the government is treating me in this way? What gives the government the right to decide whether I live or die?”

Citizen Congress Watch Board member and former convenor Ku Chung-hwa told IPS that “the controversies over Dapu and several other expropriations and the callous attitude of executive agencies have led judges to gradually finally realise the necessity to stress environmental rights.

“Civil society has won a battle and the government will need to pay at least some heed to the requirement for substantive and transparent hearings and may find it difficult to stonewall revision of the Land Expropriation Act,” Ku said.

Besides prohibiting further use of zone expropriations, draft revisions to the Land Expropriation Act submitted by opposition Democratic Progressive Party legislators on behalf of TRF and other civic organisations would mandate that the purpose of the law is to “protect the people’s right of survival and property rights,” mandate substantive assurance of public interest and necessity, and democratic and transparent public review.

Professor of land economics Tai Hsiu-hsiung of Taipei’s National Chengchi University told IPS that Taiwan’s excessively low tax rates had pushed local governments to use this method to first finance public infrastructure and then use zone expropriations get land for sale to improve their overall fiscal balance sheets.

Human rights have taken a step back in India, activists say after the Supreme Court overturned a ruling of the High Court that had earlier lifted the ban on gay sex.

The Delhi High Court ruling had in effect suspended application of Article 377 of the Indian Penal Code (IPC). The article, which criminalises homosexuality, was introduced in India in 1860 under British colonial rule, echoing conservative Victorian values of the age. The 19^th century law indicts homosexuality as going against the law of nature by indulging in “unnatural acts”.

The Delhi High Court ruling was in response to a petition filed in 2001 by the Naz Foundation, an NGO in Delhi, that challenged the constitutional validity of the article on the grounds that it criminalises homosexual acts even between two consenting adults.“The court has overturned a verdict, it hasn’t overturned a movement."

Some religious leaders including Hindus, Muslims and Christians challenged the Delhi High Court ruling before the Supreme Court. The Supreme Court this week upheld their appeal and quashed the verdict of the High Court. The Supreme Court noted that the LGBT community in the country is “miniscule”.

The author of A Suitable Boy, Vikram Seth, who is open about his sexual orientation, minced  no words when he said in an interview with news channel NDTV, “I was not a criminal yesterday, but I am today.” He called the Supreme Court ruling “barbaric”.

Many people in India, not necessarily from the LGBT community, believe the upholding of Article 377 is a step to once again criminalise the LGBT community, and is a violation of human rights. “It shows a medieval mindset,” said Indira Jaising, additional solicitor general. She argued that India has lost an opportunity to correct a centuries-old wrong.

The unexpected verdict initially stunned activists, but the impact is sinking in now. Tripti Chandon of the Lawyers’ Collective in Delhi which represented the Naz Foundation told IPS there is a “slim chance” to reverse the judgment by filing a review petition. “We’ll do that,” she said.

Usually the same judges sit to re-examine a petition. But in this case one of the two judges who delivered the ruling retired the day after pronouncing the verdict.

The “unnatural act” stamp can also affect heterosexuals because oral sex is included. “So are we condoning voyeurs in the private domain?” Chandon asks.

She points to the case of Prof. S. Ramchandra Siras of Aligarh Muslim University near Delhi who was filmed by some intruders with a spy camera when he was with his partner. He was suspended by the university on the basis of this ‘evidence’ of his moral turpitude.

“Fortunately, that was in 2010, after the Delhi High Court verdict, and lawyers successfully fought the case in the Allahabad High Court on the premise that he could not be penalised. He was reinstated by the university. The punishment should have been given to those who barged into his private quarters to take photographs illegally.”

Siras, who had expressed  a desire to work for the gay community died soon after, under ‘mysterious’ circumstances.

Malobika, founder member of Sappho for Equality, a lesbian empowerment group in Kolkata, told IPS: “The Supreme Court verdict is a setback not only for the LGBT movement, but for democracy as well. For the last four years we have been slowly building up the trust for inclusiveness, and people were coming out more courageously about their sexuality in our society. But now they will go underground for fear of harassment.”

She fears that without the legal back-up, police harassment as well as societal pressure will rise. Openly gay people will find it difficult to find jobs, she said. Lesbians will find relationships more difficult due to  society’s conservative mindset, she said. “Basically under Article 377 IPC we are criminals.”

Pawan Dhall, a founding member of Varta, a voluntary organisation on gender and sexual education in Kolkata, told IPS: “The  verdict will have a far-reaching and adverse impact on  public healthcare. Today, the thrust of the HIV/AIDS programme worldwide is on the MSM [men having sex with men] community, along with the commercial sex workers. We fear that people from the MSM community who came to take care of healthcare needs may prefer to be invisible again.”

Dr Dilip Mathai, vice-president of the AIDS Society of India, said in an interview in the Times of India, “The homosexual act will not disappear but the community seeking help will reduce drastically.”

The Supreme Court judgment quoted data from 2006 furnished by the ministry of health and family welfare, indicating that of the estimated MSM population of 2.5 million in India, 10 percent are at risk of HIV infection.

The Supreme Court has placed the onus of changing the existing law on parliament. Activists do not hold much hope that parliament will move swiftly when only about five months are left for the next general election. They fear that apprehensions over a conservative backlash may hinder any positive action.

However, several of the ruling Congress party’s representatives have said a review petition should be encouraged with a greater number of judges. Representatives of some other political parties have also expressed outrage at the verdict.

Meanwhile activists vow to continue the struggle for recognition. “The court has overturned a verdict, it hasn’t overturned a movement,” said Malobika. “We’ll overcome the hurdle at one time or another.”

A rash of recent rape cases has sparked local criticism of the weakness of the justice system in the Democratic Republic of Congo, where inadequate resources and simple incompetence mean survivors of sexual violence hold little hope of obtaining justice.

“In the final week of July, we recorded more than 12 cases of rape committed against very young girls – some of the victims were just six years old,” said Father Jean Okutu, the parish priest at Sacré Cœur Church in Mushie Territory.  “The perpetrators were adults, all civilians.”

A total of 16 rapes of young girls have been reported in recent weeks in this remote administrative district of western DRC, and the mothers of the survivors have joined forces to complain about the failure of the local and provincial judicial system to prosecute their assailants.

Maria T.*, whose eight-year-old daughter was one of the victims, told IPS that despite being treated at the Sacré Cœur parish dispensary, her little girl still complains of pain in her genitals and abdomen. “We have to go to a bigger medical centre to be sure that we won’t face more consequences later on. But we don’t have money,” she said.

Elodie K.’s ten-year-old daughter was also raped. “We need strong measures to protect young girls in Mushie. We also need the identities of all the victims to be carefully protected to ensure that they can grow up normally and have a chance to get married one day,” she said.

“The government should even consider relocating these children, or letting them study overseas at the state’s cost, to ensure they are protected from taunts and isolation by other children their age.”

According to Bandundu’s attorney general, André Mvunzu, the province has already put in place a programme to fight impunity for sexual violence.

“Twelve perpetrators of the rapes recently recorded in Mushie have been arrested and are currently in detention there. They will face trial and the court’s rulings will send a clear message to all,” he told IPS.

Mushie resident Jean Pierre N.* is sceptical. “When we hear the attorney general on the radio, we get the impression that he doesn’t have a clue about how his own judicial administration is working. Of the 12 accused that he stated are in detention, eight have escaped – including the two men who raped my daughter.”

Nzundu told IPS that security at Mushie’s prison needed to be improved, as it was not the first time detainees had escaped.

Jacques Katchelewa is head of a non-governmental organisation working to promote gender equality and food security in Mushie. He fears that if the judicial system fails them, the families will turn to informal arrangements for compensation for the crimes committed against their daughters.

“This runs counter to the law in terms of ending sexual violence,” he said. “The only way victims and families can get justice is if the local court is strengthened. In Mushie, the court has just one magistrate who cannot, all by himself, sit and rule on cases of sexual violence. We need to reinforce the team of judges.”

Congolese law requires a panel of three judges to hear such cases.

Father Okutu shares Katchelewa’s concerns about the effectiveness of the justice system in Bandundu. “I’ve appealed for justice to be served in these rape cases. The provincial attorney general has responded by sending a second magistrate to support the one who is here.”

Mushie’s local prosecutor’s office is subordinate to the provincial attorney general’s office in the provincial capital, the city of Bandundu, 500 kilometres away. It is intended to bring justice a bit closer to the people, but it lacks resources – as do local residents.

“The victims’ families are too poor to pay court costs. I’ve already had to take on the cost of medical care for most of the girls,” Okutu told IPS.

“Litigants who experience problems should write to the Minister for Justice and Human Rights and to the High Council of the Judiciary to explain their difficulties in order to obtain justice and so that magistrates will be deployed to Mushie,” said Jean Paul Nyumba, an advisor to the justice minister’s office.

But Nyumba, himself a lawyer, lamented the fact that there is a shortage of magistrates in many parts of the country while there are many idle magistrates in the capital, Kinshasa.

Joseph Ntayondezandi Mushagalusa, a lawyer and former national attorney general, said a dose of realism is required.  “The problems with the justice system are the same across the country,” he told IPS.

For example, Mushagalusa told IPS, “Even with the recruitment of 2,000 new magistrates in March 2012, the DRC’s judiciary has only 4,000 members. With the population standing at nearly 80 million, we have just one judge for every 20,000 residents of DRC.

“And that’s without accounting for the many magistrates who are not working, such as those who are assigned new posts, but for unresolved logistical and practical reasons, never report to their new assignments or abandon them.”

The provincial governor, Jean Kamisendu Kutaka, has appealed for help from the broader population. “Everyone needs to help the government fight against the different forms of criminality that are raging in the province. It calls for more vigilance. Every citizen has the obligation to expose crimes. It’s the only way to make criminals afraid,” he said.

Nine women in the northern Côte d’Ivoire town of Katiola have been convicted for carrying out female genital mutilation – the first time that a 1998 law banning FGM has been applied.

The women were found guilty of excising thirty girls aged between 10 and 15 in February. They were each sentenced to a year in prison and ordered to pay a fine equivalent to roughly 100 dollars.

“We have been waiting a long time for a boost in the fight against this scourge,” said Rachel Gogoua in the Ivorian economic capital, Abidjan, where she heads the National Organisation for Children, Women and the Family (ONEF), a non-governmental organisation that campaigns against FGM.

“The time for awareness-raising is over: now we need to sanction perpetrators.”

The Katiola court handed down the sentences on Jul 18, but in view of the women’s ages – ranging between 46 and 91 years old – decided none will actually have to spend time in prison. Gogoua told IPS she feels the convicted women should serve at least a token amount of jail time to drive home the message to others still practicing excision in many parts of the country.

“The law forbidding these practices was passed in 1998 and we have carried out extensive public education about it. In the end, we have to realise that these women are making fools of us. They are well aware of the law, but they defied it under the pretext of customary practice and tradition,” said Gogoua.

Despite the 1998 law, genital mutilation is still widespread in Côte d’Ivoire, according to the United Nations Children’s Fund (UNICEF). Based on surveys carried out in 2006, UNICEF estimates that 36 percent of Ivorian women have undergone excision, making it one of the worst affected countries in Africa.

Female genital mutilation is the complete or partial removal of the external genitals of a woman, according to the World Health Organization. This can involve the vulva, the major and minor labia, the clitoris, as well as the urinary and vaginal tracts.

The practice is most common in the northern and northwestern parts of the country, where nearly 88 percent of women are affected, and in the west, where the prevalence rate is 73 percent, according to UNICEF.

Massandjé Timité, 33, is originally from Marandallah, in the north.

“I still feel the pain from my excision today, 15 years later,” she told IPS. “It was a terrible trauma. The wounds healed very slowly, and with each day that passed, I feared the worst.”

Timité said that to evoke tradition to justify the continuation of FGM is to make a superficial argument. “When an excision is clumsily executed, as it was in my case, no one comes to help you. Does tradition accept that a woman should lose the very thing that allows her to give life?”

Despite numerous awareness campaigns and repeated promises by excisors, FGM continues to be practiced.

“Amongst us, the Wobé (an ethnic group in the west), it’s a shameful thing to be called ‘zoégbé’ (an un-excised woman),” explained Cécile Gnowahou, 26, who went through the procedure when she was 11.

“You don’t have the right to marry and you are often ridiculed in the village. In this context, our parents hear the message, but the cultural reality overrides it. This is a custom that has existed since before our parents’ grandparents’ time,” she said.

“Excision causes much more harm than one thinks,” said Gnowahou. “Sometimes it even leads to the victim dying, yet even when these things happen, it is amicably resolved between families.”

Gnowahou’s own experience illustrates the social dilemma that FGM presents many Ivorian women with. “Not only was I unable to get married following the prolonged bleeding that I suffered, but now times have changed and any man who knows about my status as an excised woman automatically rejects me,” she said.

But she believes that if the law against female genital mutilation is applied, it would begin to reduce the prevalence of FGM.

Her sentiments were echoed by Raymonde Goudou Coffie, Côte d’Ivoire’s Minister for the Family, Women and Children, who said that the successful prosecution in Katiola is only a beginning. The minister said the law would be applied in full against practices which affront human dignity, particularly that of women.