LUCIA De B. IS INNOCENT

# A gross miscarriage

edited by Michaela Wouters ***** 2008

In June 2004, Lucia was convicted of 7 murders and 3 attempted murders by the Court of Justice of The Hague.
For her crimes, she received both a life sentence and an order of TBS (i.e. she was made a ward of court with mandatory psychotherapy) – an unusually harsh penalty even for one found guilty of such crimes. [Under Dutch law TBS equals proven diminished responsibility, involving a reduced sentence. After a period of imprisonment, the psychotherapy is intended to return the prisoner to society. Clearly, the notion of therapy followed by being released is not in keeping with a life sentence]
Viewed in the cold light of day, the trial result beggars belief, particularly taking into account the following facts:

• there is no hard evidence
• there are no witnesses – nobody saw her do anything at all
• there is no tangible evidence
• Lucia was never caught doing anything suspicious
• poisonous substances or other means by which the murders were supposed to have been committed were never found in her possession
• there was no motive.

There is, however, plenty of rumour and suspicion and it appears that the judgement was based on these. No consistency seems present in the accusations that caused her imprisonment. The only hard fact that made Lucia a suspect at all was her presence at ‘so many’ deaths(1). The Juliana Kinderziekenhuis (JK) hospital in The Hague initially conducted a statistical calculation to assess the likelihood of a nurse being around ‘so frequently’ at times of death without being guilty.
They(2) reached the conclusion that “it cannot be coincidence”. Later on, the police consulted Professor Elffers. He obtained the same result – “it cannot be coincidence”. According to Professor Elffers's calculation, the chance that Lucia was innocent, when present at these deaths was 1 in 342 million. A medical expert (referred to as Professor E) also made a deposition stating that, while each death taken in isolation might be considered to have resulted from natural causes, considering all of them together, they must be viewed as unnatural(3) Professors Richard Gill and Piet Groeneboom performed an independent calculation based on the same data only to come to a figure of 1 in 9(4).

They've taken into the equation(5) that the statistics would not be the same for all nurses; that they in fact depend on the nurses' locations and shifts and are related to their character and experience. At the Summing Up, both the prosecution and the judge referred to Lucia as cunning and untruthful. They concluded that she must be incredibly clever since she had not only been able to cover up her crimes so perfectly that no evidence remained but could also cast herself perfectly as an ordinary, nice, loving person and good nurse. It was asserted that she suffered from a compulsion to kill – derived from several entries in her diaries where she used the word compulsion(6).
Lucia explained that by this, she had meant her inability to resist giving Tarot card readings to her patients. She explained that she was very interested in tarot and had been for a long time. But she believed such ‘alternative patient support’ to be improper and therefore something that she had to fight and keep secret at all costs.
The Pieter Baan Centre(7) examined her mental state and found that Lucia did not and does not suffer from any mental impairment that might have induced her to commit murder. In direct contrast with the court, however, they did find the “messing around with Tarot cards” to be in keeping with her personality.
Despite exhausting and humiliating interrogations, Lucia denied everything. Had she confessed, however, and put up her hand to committing these murders so as to relieve seriously sick children and elderly people from their suffering, to name but one reason, she could have expected a considerably reduced sentence. Lucia was fully cognisant of this fact, which her lawyer pointed out to her many times. Yet she refused to plead guilty when she had done absolutely nothing wrong. Thus, Lucia de B was condemned to the heaviest possible stretch in the absence of even a shred of evidence to prove her guilt. How is it possible, we wonder, that the judiciary of a country so famous for its legal system and human rights record can permit this?

Lucia worked at the JK Hospital at a time of considerable uncertainty, disorder and consequent staff insecurity. This was a result of the merger between JK and RK hospitals(8). During this time there was talk of too many children dying but there are no hospital mortality figures to substantiate the rumours. On the contrary, during Lucia's employment, the mortality rate was actually lower than in previous and subsequent periods (9).
People started to speculate, though, and a scapegoat was sought. By sheer chance, Lucia was found often to be nearby during resuscitations. This was suspicious, it was decided. It was said that ‘people’ could tell you a thing or two about her, too. The deaths of patients she'd been involved with(10) became viewed through coloured lenses.
The rumour and hearsay influenced both police and prosecutors who, rather than carrying out a fact-finding investigation, were determined to prove one way or the other that Lucia was a murderess. It's a classic case of tunnel vision(11) or framing. Not only was her entire past dug up and chewed over, it was made public before a prosecution was even pending. And guess what? Lucia's background turned out to be different from that of most of her colleagues! Before a judge had even become involved, this injudicious leaking of personal information caused the Dutch media to describe her as the “Angel of Death(12)”.
In England, such a trial by media prevents cases from being heard, or at the very least changes the process considerably, as the jury would be considered prejudiced. But in Holland the case still ran.

Lucia's character was blackened shamelessly. She was depicted as a kind of witch. Blatant lies and half truths were circulated. Pointing the finger was a lot easier than proving that she had committed murder. Deliberately or accidentally, the police and the media influenced scientific experts and even the court with this prejudice. A list of some 30 ‘suspicious’ deaths in the four hospitals where Lucia had worked was compiled(13).
To arrive at murder, however, the list had to be culled dramatically as it was impossible to connect Lucia with many of the deaths in any way at all.

Interestingly, these culls – deaths initially listed and then removed – were never investigated. The assumption seemed to be that if Lucia hadn't been near, there was no reason for concern. Conversely, whenever she'd been around, the cause of death was simply assumed to have been unnatural. Unexpected or inexplicable death equalled murder. Incomplete files were interpreted from an entirely different angle than their writers had intended, irrespective of whether they were current or years old. Doctors were expected to give pertinent accounts of the deaths of children and elderly patients who had suffered from multiple, serious illnesses. More often than not, these doctors had not treated the patients themselves(14).
Both the Bench(15) and the Court of Justice(15) accepted this bizarre line of thinking. The judiciary had convinced itself by other methods, too, ones hardly to be considered objective, that Lucia was a murderer so specific proof was not required.
When the case was heard by the Court of Appeal, the prosecution had to bend over backwards to demonstrate just how Lucia could have killed her victims. Far-fetched theories managed to do so in only a single instance of ‘murder’ and one of ‘attempted murder’. The line of argument included in the court decision, while carefully constructed and exhaustively worded, was logically inconsistent and barely convincing to an objective outsider. Other than in these two cases, no-one so much as bothered to try and explain how Lucia could have committed the so-called crimes, let alone without leaving a trace. Instead, the prosecution relied on an obscure construct called link or chain evidence – the cases deemed proven are seen as the train engines that automatically pull along the wagons, i.e. the other cases may be considered similar to those presented. In other words, line up sufficient unproven cases behind cases for which there is an ostensibly plausible explanation and you have yourself an apparently convincing story.
Notwithstanding the chain argument, the Public Prosecution Service did have to unleash a considerable amount of spin on the evidence to turn Lucia into a credible suspect. For example, the hospital's statistical analysis was refined by an academic on the basis of the same data. He came up with the erroneous result of “a chance of one in 342 million” – but added ifs and buts like “provided you have no gripe with this particular nurse”(16). This and other provisos included by the statistician were not taken into account.

One psychologist who never met Lucia at all, (let alone examine her) dared to label her “a classic psychopath” at an early stage in the police investigations(17). An FBI agent was flown in to impart his knowledge of serial killers, which he did, completely ignorant of anything about Lucia or her case. Other self appointed contributors explained in their own words in great detail why Lucia entirely satisfied the criteria of a serial murderess. The fables which had been freely brought into circulation were used as illustrations without ever being verified.
Although the Dutch police continue to say that Lucia is associated with a house fire in Canada, the Canadian police report states that absolutely no indication for arson or violent behaviour was found. This document is never referred to in the trial although the statement of association between Lucia and the house fire and the suggestive presentation of questions to the Canadian police force continues to hang over the procedings.
Other ridiculous rumours such as: poisons found at her home, that she was member of a witchcraft club, that a cross was burned onto her chest, that she published her own obituary, continue to circulate without censure or punishment of those responsible. Even though all these tales have been proven untrue they reinforced an impression of a strange, hysterical person so that even now people still say “the evidence isn't sound, but that person is still no good”.

Anyone who makes the effort to translate and read the judgement of The Court of Justice of The Hague can't fail to be hit by its tone of blind hatred towards Lucia and to the contempt given her lawyers. The judges became so emotional that they condemned Lucia to a life sentence plus TBS(18): the harshest sentence ever given since in 1870 when the death sentence disappeared from Dutch criminal law.
Even the Supreme Court declared that it did not understand how a sentence meant to remove someone from society for ever can be combined with a measure to be meant to reintegrate someone back to that society (TBS), and, on 28 February 2006, referred the case to the Court of Justice in Amsterdam. However, the Supreme Court gave, remarkably enough, its explicit approval to the evidential argument as described above!
In June 2006 the Court of Justice in Amsterdam condemned Lucia to the life sentence and dropped the TBS. They say this was based on an account of the facts as presented about which it specifically declared that it was not permitted to speak! At this hearing the Pieter Baan Centre clearly demonstrated that there was no correspondence between Lucia's personality and the facts as presented.

After this pronouncement Ton Derksen, writer of the book Lucia B, reconstruction of a miscarriage of justice appealed to the Buruma commission in order to take Lucia's case to the Posthumus II commission. The Buruma commission granted this request and formulated four points of interest which they said would be further considered.

The points of interest that the Buruma Commission have decided to address are:

• Have all the factors appertaining to the coincidence calculations concerning the number of deaths been properly taken into consideration, in other words can there nevertheless be no talk of coincidence?
• Did the experts have correct and complete information for their research?
• Did the experts know at the time of the research that the digoxine tests (on which the whole conviction is based) were not valid for this research situation?
• How is the compulsion story proportionate to the diary data and the personality research?

The case has lain with the Posthumus II commission since October 2006. It is clear that the Posthumus II commission has committed to a very restricted line of study and that the core of the case will not be laid bare by their approach. In our opinion their investigation does not address the findings of our committee which is now internationally supported. In fact Posthumus II does not examine the core of this case at all and cannot be laid to one side.

1. This was the only hard fact in the police investigations and later on, also in the criminal proceedings. →
2. ‘They’ were A.D. Her calculations were adopted as his own by hospital director Smits. →
3. The first incredible probability of 1 in 7 billion was derived on an excel spreadsheet in the hospital on 4th September. Even well-respected statisticians have been unable to reproduce the rationale behind by which it was created. →
4. Both are professors of mathematical statistics. Professor Gill currently has the Chair of Mathematical Statistics at Leiden and Professor Groenenboom, now retired, had the Chair of Mathematical Statistics at Delft. →
5. This point should have been researched but was not. As things stand, a woman was sent to prison for life for 10 murders on the basis of an amateur calculation based on a random gathering of unfounded assumptions. Even now, no thorough academic research into this issue has been undertaken although the literature is full of “unexplained clusters of cases”. Nurses will tell incredible stories of the exceptionally large number of deaths or, conversely, exceptionally few they've experienced during their shifts. What is clear is that nurses are assigned shifts according to their experience and, more crucially, that they themselves are able to influence their roster. A cautious person can avoid shifts expected to be tough while a brave or driven nurse might jump at the opportunity to gain more experience. Furthermore, terminally ill ‘choose’ to die during the shifts of nurses in whose presence they feel comfortable and relaxed. Elffers refused to examine data from different time periods or different wards because he said that such possibilities existed! He mentioned some and said they needed to be excluded, but all the court did, was to ask Lucia if any of the possibilities could explain the deaths. Lucia responded in court that she did not believe that the three items which Elffers had written down ‘by way of example’ were reasons, and no further attention was given to this part of Elffers' statement. →
6. Compulsie is not a commonly used word in Dutch and generally has sinister implications. In English, however, the word is free from such innuendo. It should be borne in mind that Lucia had been to school in Canada, was fluent in English and employed many anglicisms in her Dutch diary writing. →
7. For some time in between the original trial and the retrial, on the direction of the court, Lucia was kept under observation at the Pieter Baan Centre. →
8. Smits was director of both. →
9. In fact if the period during which Lucia worked is taken in account (i.e. whether or not she was on shift), there were the same number of deaths in equivalent periods before she worked there and while she was employed by the hospital. The hospital director was not aware of this fact because he didn't realize that her ward had been renamed. As a result, he failed to compare the deaths that occurred during Lucia's employment with any other data at all. →
10. The words present on the ward do not mean that Lucia need have been involved, merely that she need have been on duty. This was interpreted very flexibly indeed. Since there is an overlap in staff of at least half an hour from one shift to another, it was also considered appropriate to connect incidents in the shifts before and after hers. By this logic, if Lucia worked one shift a day, she could be connected to anything at all. →
11. tunnel vision is an increasingly famous concept in the Netherlands following a number of previous scandals (Schiedam, Putten...) that have also been associated with police tunnel vision. →
12. And foreign media followed. →
13. Director Smit called round his colleagues at the other hospitals where Lucia had worked and said “we have a killer. Give us the murders she committed at your place” →
14. Most of the medical experts who gave expert witness at the trial had no connection whatsoever with the hospitals concerned, let alone with the patients, and based their judgements on the medical dossiers. These tended to be incomplete as they were put together retrospectively, after years had passed. →
15. In the Netherlands, the first trial is at a Bench (rechtbank), the next is at a Court (hof). There are about twice as many benches as courts in the NL. →
16. Elffers's report mentions explicitly that a correlation is not necessarily a causation. “By way of example” (his own words), he gave a list of five alternative scenarios. ALL alternatives had to be ruled out, he said, prior to focussing on the statistics. Bizarrely, the court interpreted this as a call on Lucia to explain the correlation herself! The judge asked Lucia questions regarding three of the five items on the list of examples. Namely: Were you a bad nurse? Were you specifically assigned to more difficult cases? Did you get different shifts from your colleagues? In each case, Lucia answered, “no, Your Honour”. The other two alternatives to be ruled out were 1) another nurse was also present each time and 2) someone was trying to set Lucia up. Since no-one else had been accused in this respect, 2) was ignored while 1) was ignored since presumably it had been easy to check that this was not the case. This whole argument is documented explicitly in the summing up, without any reference to Elffers or statistics, however. But the coincidence which could not be mere coincidence is referred to. No argument or rationale for this statement is given. →
17. Even while saying this to the police, his evidence was released to the press and reported in the trial. He has never retracted the statement. →
18. TBS means that you are detained in a psychiatric clinic. In principle, if you get better you may be released. But only people with a proven psychiatric disorder can be sentenced to TBS. Since the court found no psychological problems associated with Lucia's alleged crimes and since Lucia herself did not plead diminished responsibility, it is strange how this was accepted. →