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A group of Robin Bain supporters has launched a petition to deny David Bain's application for compensation for time spent in jail for the alleged murders of five members of his family in 1995.
I have followed the David Bain case since I was a Kid. I have no opinion either way on the result of the case, but I do believe that justice has been served and the matter of innocence or guilt has been put to rest by the court.
This is my response to the counterspin website and petition which is being plugged in newspaper ads all over New Zealand today.
What struck me with this new campaign was how little credibility the arguments put forward have.
The site implies there are still questions about Bain's innocence even though the a jury has given its verdict. On top of this, the site rants about Joe Karam's involvement and seems to confuse Karam and Bain as a single entity in many cases.
My take on CounterSpin
(quoted from counterspin in italics)
I have always been of the opinion that if you have to start an article with;
"Honest belief and opinion",
it is probably because the facts surrounding an opinion don't support the argument behind it. This opener is also a desperate attempt to say 'please don't sue me for criticizing you Joe Karam'.
"This site has been put together to counter the spin surrounding David Bain that has been publicly promoted over the past decade or more by Joe Karam in his insistence that David is innocent of the murder of his family. In the retrial of 2009 certain elements unique to this case have produced a result that is unlikely to reflect the truth."
"The Not Guilty verdict in the retrial was obtained through prolonged and persistent promotion and persuasion of one side of the argument rather than a balanced judgment based on the evidence."
If you really wanted to counter the spin what were you doing when Karam was doing his prolonged persuasion? It's not your fault the police disgraced their investigation and that the media and Karam jumped on it and rode the story all the way to the retrial. A last ditch attempt.
This is where the argument goes from flimsy to limp;
"Some might argue that a jury verdict is the end of it and that we should simply move on, out of respect for the defendant's legal status of 'innocent until proven guilty', and also because it is potentially defamatory to suggest that David Bain is guilty. However:"
Innocent until proven guilty? I thought that was for people facing charges? He has been found not guilty. There are no charges pending and the investigation is closed. It would seem straws are being grasped at to qualify that remark.
"Joe Karam used defamatory statements about a now deceased victim of the murders to help win his case and our law currently does not allow families to sue for defamation on behalf of dead people. This situation seems highly anomalous and perhaps in need of rectifying."
Can't defame the dead, whether or not some one questions the law's validity. It is the law. In that alone this point loses its strength and credibility for any argument against Bain and potential compensation. That and Bain, who is the one applying for compensation, was not the person 'defaming the dead'.
"In light of the above, Joe Karam did not hesitate to file defamation suits against people who published unsubstantiated material about him, and has created an atmosphere of constant threat in the media which has had the effect of stifling constructive criticism of his campaign."
It is Karam's right to defend his reputation against unsubstantiated defamatory material published about him. Your 'atmosphere of constant threat' is merely supposition and you have offered no evidence to support it.
"Joe Karam defied a request from the Solicitor General in 2007 not to publicly discuss the case, by reprinting one of his books."
So was that a request? Was there any legal weight behind the request? If it was a request then there is nothing wrong with his approach.
"Joe Karam has persistently defied the general rule of sub judice by publicly promoting his ideas and opinions about the case in an attempt to win over the population to his cause. The outcome of the trial attests to his success in that endeavour, but do we want our justice system to be run like this? None of his books, media appearances or promotional pamphlets are a necessary part of the legal system for obtaining a retrial. In fact they are in contempt of the judicial process, and we should not be rewarding people who obtain legal outcomes via such a method."
This just makes me laugh. Karam has not defied sub judice as I understand the law (someone please correct me if I am wrong). When Karam was out on the campaign trail, Bain was guilty in the eyes of the law there was no trial pending which Karam could sway with his opinion. Other than that I can't make sense of what you are trying to say in this sentence. Are you saying we should stifle free speech? Because that is what would happen if we stopped people talking about trials after the verdict is handed in.
"Joe Karam would need to answer to all of the above before he can expect other people to answer to supposedly defamatory opinions about David Bain's legal status."
I think you have your wires crossed. While you might like this to happen, I think it is misguided to think that these questions warrant answering. I don't think the law will stop and answer your questions before proceeding against defamatory comments about Bain.
"There also remains the question of compensation, and if this goes ahead then more than a million dollars of taxpayer money could be handed out to a person whom 29% of the population think is guilty, according to A UMR poll of June 2009, and which stands as one of the worst mass murders in NZ history."
So are we deciding these things on polls now? So what then of the 71% who don't have an opinion or believe him innocent? Does the majority not matter? (I guess if the smacking referendum is anything to go by it doesn't)
"As a result of an agreement made in 1996, Joe Karam will receive half of any compensation paid out to David Bain. He may be on a campaign for justice but he is also lining his own pockets in the process, thank-you very much to you, the taxpayer. In many ways Joe Karam has made David Bain a career strand and is endeavouring to make as much money out of the case as he can."
I think the matter of where the compensation goes is for Bain to choose.. As Bain is not guilty in the eyes of the law, and he served time for the crime he was later found not guilty of, then he deserves to be compensated. Karam poured his life into the campaign and I am sure a lot of money. Maybe giving him half is Bain's way thanking him.
I became aware of this story after reading an article on the TV3 News Website
Thanks for the critique of CounterSpin. Yes, use of the phrase "honest belief and opinion' is specifically aimed as a defence against Karam filing for defamation the same way that a lawyer uses Without Prejudice to preface a letter that carries no legal weight. We simply want to save Karam time and money. It is clear that Karam spends a disproportionate amount of his life in a court room.
Legally 'innocent until proven guilty' also applies to retrials, so that, once a person is found not guilty in the retrial then it defaults back to the original status in which case the person is innocent again until found guilty should there ever be yet another trial. There is no separate legal status to apply to a defendant found not guilty in a retrial.
You should check out the meaning of Trial by Media: http://en.wikipedia.org/wiki/Trial_by_media. None of the books, pamphlets or media presentations Joe Karam made are a necessary part of the judicial process and are generally frowned upon, hence the Solicitor General's request. I notice you left this part out of your critique. A trial should be kept as much as possible within the confines of the court, but Joe Karam has taken it out into the public sphere in order to influence whomever he could and ultimately it appears to have influenced the jury who took little time in coming to a verdict and then displayed some inappropriate behaviour afterwards, suggesting their impartiality had been undermined. This was only evident AFTER the retrial and not before, so there did not appear to be any reason before the trial to question Karam's methods or set up a site called counterspin. It is also evident that Karam is not going to stop, planning as he is, a book release next year and an Innocence project where he may well apply the same dubious techniques he applied to the Bain case.
We think that the verdict of the Bain retrial was a mistake and that there is a lot to learn from it for society and the justice system.
If you hadn't noticed, in many respects this is Karam's trial, not David Bain's. Karam has taken legal and financial control of David's life and spoken almost entirely on his behalf . Without Karam the case would have remained with the original verdict.
There is a tricky balance between maintaining sub judice and allowing free speech. By creating CounterSpin we are attempting to redress some of the imbalance caused by Karam's free speech by using our own.
Karam poured his life into and made a lot of money out of a cause which many believe to be entirely false.
Your critique is welcome.
http://davidbain.counterspin.co.nz/ is an exelent sourse of info on the Bain case if you really want to find the identity of the real killer visit that site.
It was just a lucky guess when David Bain told the 111 ambulance officer they are all dead, despite later saying he only saw two bodies.
WAS IT DAVID OR ROBIN
Evidence pointing to David - VS - Evidence pointing to Robin
1. David's fingerprints in blood
on murder weapon.
2. The glasses implicate David, his lawyer said David
would not dispute that he was wearing them
on the weekend of the murders.
3. Brothers blood on David's
4. Opera Otago Gondoliers sweatshirt
was worn by David over weekend,
had blood stains on right shoulder
no explanation from David.
5. David's gloves were found drenched
with blood kicked under dead brothers
6. David Changed his Testimony
regarding rooms he visited
after ringing 111.
7. David heard Laniet "his words"
groaning an gurgling.
8. 3 separate witnesses said David
organized family meeting.
9. David had a Shooting Board
Consisting of Five Targets in his Room.
10.David told the police twice that the
green jersey was Arawa's
but at trial he said for the first time
that it was Robins and also for the first
time, that Robin was wearing it over
the weekend .
11. Too very credible witness said David a few years
before planned to use the paper run as
an alibi to assault a female jogger.
12.A friend of Arawa's said David not Robin was
intimidating the family with the rifle.
13.David washed all the killers blood soaked
14. Blood was found on David's duvet cover
and light switch in his room.
15.David had 3 unexplained separate
bruises on his head.
16.Dr Pryde who examined David said these
bruises were made in the early hours
of the Monday morning.
17. David told of a premonition where something
terrible was to happen.
18. The rifle mag was found on its thin edge
experiments showed that it was 100%
more likely that it was planted.
19. The timing of when David arrived home
easily puts him in the house when
the final shot that killed Robin was fired.
20.A girlfriend of David's and a prison guard said David
had unexplained scratches going from his
shoulder down his chest.
21. Davids palm print in blood was found
on the washing machine.
The one and only piece of evidence with experiments done by forensic people that pointed to Robin as the maker of the bloody sock prints, was criticized by the trial judge, neither experiments done by both sides at trial mimicked the way the prints would have been made. Mr. Hentschel from the ESR was the first man to measure the luminal footprints in the Bain house. His testimony was that he measured the prints with the biggest print 280mm long. Mr. Hentschel measured the prints only from the toe "area" to the heel "area", and therefore the full print could have been larger. He said that it was a complete print in that it comprised of the toes and the heel however he said that it was not the"complete toe and heal" he also said he measured the area of strongest luminance.
BALANCE OF PROBABILITIES = 99% DAVID BAIN GUILTY.
Bob Justice, is obviously a member of the counterspin group.
1. David's fingerprints were not 'in blood' on the murder weapon. There were found on the weapon in a holding position, not firing postion, and were thought to have been old prints from his previous use of the gun.
2. Weir, NZ Police, lied on the stand regarding the placing of the left lens. This lens was from David's mother's glasses, which was not an exact match to David's prescription. David had worn them on occassion. The lens had no prints, blood or anything on it to tie it to the murders. It was also covered in dust and an expert stated could not be used for viewing in that condition.
3. A small smear of Stephen's blood was found on David's shorts and an old minute blood stain, not tested, was found on his t-shirt. Both the cat and the dog were wandering free in the house with the bodies, and David had handled both, which could allow for this small blood transference. There was also blood all through Stephens room which, if David had been the murdered, would have distributed more than a mere smear.
4.The shirt in question had been sitting in a washing basket in the laundry and not worn by David that weekend. There was blood in the laundry where it is believed the murderer (Robin) changed his clothes.
5. The gloves were kept in a drawer in David's room, the same room where the gun was kept, and were available for any person to find and use.
6. David could not clearly remember anything after finding his mother's body. A psychiatrist assisted him to recover some of his memories, which enabled him to recall finding the other bodies. Under the circumstances, it is not unusual for the shock to cause memory lapse.
7. Expert opinion was given at retrial that indicated it was possible, due to Laniet's cheek wound, not being the first shot to her body, could have causing the draining of blood into her lungs, and resulted in a post mortem gurgling.
8. James McNeish's book states in at least 3 places that Sunday nights were used for family meetings, and there was nothing special about David asking Laniet to attend that Sunday night.
9. So, a shooting board with five targets happened to fit in the space he wanted to keep it in. He was an avid rabbit shooter. It has no connection to the murder.
10. The green jersey may have been worn by the murderer, however, this was not confirmed as the fibres were only regarded as similar. No expert stated they were the same as the fibres found under Stephen's nails. When David was asked to put the jersey on, in court, it was clearly far too small for him.
11. The hearsay evidence surrounding this accusation was deemed inadmissible by the judge because it was not reliable. The police were also accused of having inserted words into the witness statement, who said there was nothing sinister about David's 'teenage' conversation.
12. A friend reported just prior to the second trial, 15 years after the murders that David had pointed the gun at his sisters. This person did not come forward at the time of the murders, nor reported it to anyone at the time. The parent's made no attempt to remove the gun from David's possession, so either it didn't happen, or they regarded it as sibling play.
13. It is not known what exact clothes the killer wore, or if they were the clothes found in the washing machine.
14. The cat was seen by police in David's bed on the day of the murders, after wandering through the house freely. The cat and the dog were not tested for blood. There was blood on the light switch, it was not known whose, and there were no prints to confirm who left it there. There is no reason to presume it was David's. Robin kept his clothes in David's room.
15. David could not remember how he got the bruises on his head. He did know he didn't have them when doing the paper run that morning. However, it was known that David fainted and fell down between the bed and the wall, according to Police. They also stated they had to drag David out from this position. It was possible the bruises were received at this time.
16. Dr Pryde's evidence has been questioned by other experts who stated the bruises could not be 'timed' in the manner Pryde did.
17. Given his family's dysfunction, his fathers increasingly disturbed behaviour, the arguments between his parent's over money, building a new house and religious differences etc. It is not surprising David felt insecure and sensed all was 'not right'.
18. The information regarding the cartridge did not state it was planted. The privy council stated there was every possibility that Robin put the cartridge in that position, after the gun midfed (a misfed bullet was found near Robin's body) before shooting himself.
19. It is not known exactly what time Robin shot himself, it was close to David's arrival, but nothing indicates David arrived home before Robin was dead.
20. The doctor that examined David without clothes on the day of the murder found no scratches. The scratches seen by the prison guard were not able to be confirmed by the other guard present, and were found four days after the murder.
21. The palm print on the machine, when luminol tested showed a reaction, as did the washing powder used by the Bains, so there was no conclusive evidence the palm print was blood.
The carpet with the sock prints was not kept and burned with the house. The privy council believed the evidence was sufficient to possibly exclude the prints as being David's. David's foot measured 300mm and Robin's 270mm, the COMPLETE print found measured 275 mm, closer to Robin's than Davids. It was acknowledged that weight on feet could make the measurement longer, however, nothing could make it shorter, so the prints could not have been David's. There were other prints found that weren't complete, however, one was, which was enough to exclude David.
Robin had the motive to kill his family. He was noted by colleagues as being depressed, not coping, and unstable. He made several bad decisions such as publishing children's stories about killing their families in the school magazine. There were at least five accounts of suggest incest with both of his daughters. Laniet told friends she was going home to 'tell' about this abuse. It is believed, even if the incest was not true, that the allegations could have been enough to tip the, already unstable Robin, over the edge.