The hearing held on the 13th of March consisted mainly of the examination of defence witnesses.
Mrs Fytrou, a geneticist-biologist with a PhD in genetics was the first witness called to testify. Mrs Fytrou explained the unprofessionalism and lack of scientific validity that characterize the forensic procedures, as well as the fact that the secondary transfer of DNA is a scientific fact and is considered very common.
Presiding Judge: Have you performed a DNA test and came across contamination?
Fytrou: It is very common. Yes, it happens, of course it happens. This is why there are safety precautions, but in my case these are not so strict since no one’s life is on the line (…). This is why we always repeat the procedures and verify tests results. I would have prioritized an independent re-testing of item 33, which is the hat, since it has particular significance for this case, but this did not happen. I went to the laboratory and asked about this and I was told they would verify test results only after the prosecutor asks for this. But a non-verifiable test result is inconceivable if a scientific process is to be adhered to. I do understand they do not operate the way we do, their role lies somewhere between authority and science, which in itself is not entirely scientific.
Presiding Judge: During the trial of first instance you mentioned that the substance on the hat is not described as DNA in the report. I want you to elaborate on that.
Fytrou: This is another matter, equally important. In this particular case, as you see, there were hairs collected from the hat. Instead of taking them immediately for testing, they examined the phase of their cellular division. They went through this whole process. Why did they not treat the sample collected from the hat in a similar way? I would scan my samples and get everything to the microscope immediately, because had I not collected any cells, any later findings would be the result of contamination. And I repeat: contamination is not rare it is in fact very common.
Presiding Judge: Are you saying there might have never been any cells on the hat?
Fytrou: It is very probable. (…) The more sensitive the method the more probable the contamination. This is why it’s so terrible that the rich biological material collected from the defendant’s body was added to the same chemical solution along with the poor biological material collected from the hat, without having clarified first, whether there had been cells on the hat to begin with. These two were merged into the same solution, in the same lab, by the same technician. For me that was wrong.
Mrs Fytrou went on explaining how the tendency of each person to leave DNA cells behind plays a major role in secondary DNA transfer. It does not depend on the time a DNA sample was left on an object but on a person’s tendency to discard DNA, meaning there are people who easily discard epithelials and others who don’t.
”In science secondary transfer is a fact, but as the field of science evolves, the conditions within which DNA transfer occurs are better understood. So, it came as a surprise when I read in the report that the forensics scientists were certain of the validity of the test result.”
At the same time she pointed at another determining factor, namely the subjectivity of interpretation, which in order to be avoided, the sample coming from a suspect and the sample collected from a crime scene must never be tested together:
”I don’t know if you have ever witnessed how primary results are created in a laboratory. Some graphs come out of the machine which are then interpreted and placed on a table as numbers. There lies the subjectivity of interpretation. There is a limit that is not stable and it depends on the analyst to decide where that limit is placed and above or below that limit the peak is seen as valid or invalid. The analyst has the power to determine the peaks on the table, which is why he/she is not permitted scientifically to know what he/she is looking for. This is considered very important and is adhered to internationally.
In this particular case it seems that the analyst was already given the suspect’s profile and was just looking to establish a connection. It is contrary to professional deontology and it certainly is counter-scientifc to have knowledge of what one is looking to prove, because it is natural and human if one knows what to look for they are more likely to find it. When you have this expectation, then there is the danger of personal interpretation of the electrograph.”
Then followed the cross examination of the witness by the prosecutor.
As the trial unfolds and the lack of evidence against Theofilou becomes clearer through the deconstruction of the charges against him, the prosecutor becomes increasingly hostile against defence witnesses.
In this particular case the prosecutor guided the civil action. At some point the prosecutor turned to the civil action counsel and suggested to call her colleagues inside the courtroom in order for them to participate in the cross examination. The lawyer representing Alpha bank was among them, despite the fact that he failed to be present after the first two hearings.
The stance of the prosecutor raises important legal questions in terms of violating basic principles of justice.
Concisely, the prosecutor asked persistently whether the method followed by the forensics lab is acceptable for DNA testing and interrupted the witness constantly as she tried to explained that the method described on the report was not actually applied because there is no mention on whether any cells were actually collected from the hat.
Prosecutor: Is the method followed by the police scientifically accepted?
Fytrou: It is accepted but it is only the only scientific method that is accepted and they have failed to perform what is stated in the description.
Prosecutor: That is not what i’m asking you, I am asking whether it is accepted.
Fytrou: If this is what you are interested in, I will submit this paper to you…
Prosecutor: Just tell me whether it is acceptable
Fytrou: This is exactly what I have been trying to tell you, there are many who do not accept the validity of this method. I am handing you a study by Mr. Georgiou from Patras University, who does not accept this method (…)
Prosecutor: Have you ever been to the lab?
Fytrou: Yes, and this lab does not have accreditation for DNA testing (the prosecutor interrupts her)
Prosecutor: Ok ok, leave that…
Fytrou: But the lab does not abide by regulations for the protection against DNA transfer. Before 2012 it did not even have have a license as a general laboratory.
Prosecutor: How do you conclude that the DNA test occurred on the same day, is it because there is one report? An autopsy could last for days but only one report is created in the end.
Papadakis (Theofilou’s attorney) intervenes: They are obliged by law to have a primary report when another test is conducted at another time.
Prosecutor: Tell me how did you derive the conclusion that both were tested on the same day? Where is it written? I don’t see it anywhere.
Paparrousou (Theofilou’s attorney) interverned: Because they fail to do their job right.
Prosecutor: Is it because they were included in the same report under the same date?
Fytrou: You do not understand, they were included in a report describing one and only chemical reaction. For example sample 33 was tested once. When objects are tested at different times, they write different reports.
Paparrousou intervenes: The scientists are required by law to create two separate reports.
Fytrou: This is the first time I am seeing a report which does not detail the time of testing.
Fytrakis (Theofilou’s attorney): How many people could have come in contact with the hat if we consider that the object followed that route (described earlier)? Shouldn’t there have been more samples on the hat?
Fytrou: Yes, there could be more samples.
Paparrousou: On the hat there was the DNA of another person but nobody would tell us what it is… Could the two hairs collected from the hat have been analyzed?
Fytrou: Yes, of course. The roots of the hair might not be attached, but as an object it could still have DNA. For example, as I am touching my hair, I leave my DNA on them. But, the hairs were not analyzed.
Paparrousou: Are the scientists high ranking police officers?
Paparrousou: Does the police code apply?
Fytrou: I imagine that it does. Since I am asking whether they re-test and they answer that they only do so following a prosecutor’s request, it seems they walk a tightrope among science and prosecution.
Papadakis: Hypothetically speaking, if Theofilou’s DNA was actually on the hat, does that mean that beyond a shadow of a doubt Theofilou was one of the perpetrators?
Fytrou: Of course not. It does not even mean he wore the hat, let alone being the perpetrator. Not even close.
Concluding, Mrs. Fytrou noted that the sample was not taken from Theofilou by biologists, but simple police officers who do not have the required knowledge on extracting and protecting DNA, thus affecting the credibility of the sample.
Next was Mr George Karathanasis, an expert who wrote a report on the laboratory analytical methods and a comparative examination of the digital evidence. Mr. Karathanasis is also a professor of this very subject at the Judicial Academy.
Mr. Karathanasis began his testimony by saying that according to his laboratory and digital examination of CCTV footage, as well as the photos from the robbery which depict the perpetrator with the cowboy hat which supposedly is Theofilou, compared to photographs of Theofilou on the day of his arrest, concludes that this is not the same person.
Mr. Karathanasis’ testimony was postponed for the following hearing because the prosecutor encouraged the civil action to request for more time to study the report of Mr Karathanasis in order to be able to pose questions.
Next was the author George Alexatos, who met with Theofilou in order to discuss Theofilou’s literary work and their forthcoming publishing. The meeting took place in Exarcheia a day before the robbery on Paros. The witness confirms that Theofilou was tanned and not shaved- contrary to the bank robber.
Also the writer remembered emphatically that the ends of Theofilou’s fingers were covered in red paint.
Next was the testimony of a participant in the Immigrants Social Centre in Exarcheia who testified that during the time of the robbery Theofilou was actually at the Social Centre helping out with renovations. As he mentioned Theofilou had participated in the social centre as a language teacher for a long time, helping immigrants to learn Greek.
When asked why he and other witnesses did not testify initially, the witness reminded the court that this is what Theofilou wished for, since he was facing charges for membership to the CCF and any involvement of the Social Centre which has been raided on many occasions by the police could have resulted in the centre being targeted, causing problems to undocumented immigrants there.
Theofilou’s presence at the immigrants centre was confirmed by another witness who owns a nearby cafe and saw him there daily, since his shop provided the coffee to the people who participated in the renovations. The witness also said that on the last day of renovations they ended at his cafe. He even confirms it was the same day as the robbery since it was the day he was closing his coffee shop for the summer.
Next was another language teacher from the Immigrants’ Centre along with Theofilou who claims she saw him a few days earlier at the anti-racist festival. According to the witness he was not shaved and his skin was quite tanned-contrary to the robber. Theofilou had said very characteristically to her ”everyone gets darker at the anti-racist festival”.
The possession of the infamous bullet proof jacket was explained by the director Demetra Mitsaki, who created a short film titled ”Finishes” based on one of Theofilou’s literary works. She had given him 500 euro for make up, wigs and a bullet proof jacket, which were needed for the shooting. Because of his arrest and the confiscation of what he bought by the police, the movie was cancelled and instead came out in an animated form.
Seeing the charges falling apart, the prosecutor kept asking constantly why they did not get a fake bullet proof jacket- to which she received the answer that there is no such thing in the market since the real thing could be acquired at very low cost.
Next spoke one of the four appeals judges who has been asking questions suggestive of Theofilou’s guilt since the beginning. The judge asked persistently how is it possible to find such a cheap bullet proof jacket because- as she mentioned- her son plays paintball and told her that this equipment is very expensive. The film director responded by saying that cheap ones can be found and all it takes to confirm this, is a simple search on ebay. The witness also confirmed that Theofilou was tanned and unshaven.
An English language translation of the reporting from the 11th Appeals Trial Hearing of anarchist-comrade Tasos Theofilou will be published on Insurrection News in the coming days.
International Solidarity with Imprisoned Anarchist-Communist Comrade Tasos Theofilou! Fire To The Prisons And The Judiciary! Freedom For Tasos Theofilou!