The covert and defensive worlds of Spivack and Diaczuk

Prof. Rajiva Wijesinha, MP

While obviously opinions will differ on the professional skills as well as the intellectual and moral reliability of experts used for various purposes, the characters Philip Alston and Christoff Heyns have used in their interchangeable impersonations of each other seem particularly strange.

I have noted already that the Heyns Report records that ‘The government of Sri Lanka has discovered that Spivack in a technical representative for a brand of specialised proprietary software which was used to enhance the video (2009) and which was shared with two other experts. Hence the assertion of independence may be impugned on the basis of the prior collaboration between the experts.

Technical services

‘The recipient experts responsible for ballistics and forensic pathology both based their conclusion on the conclusions on the enhanced video provided by Spivack. Furthermore he does not at any point acknowledge the usage of the specialised software which has had a profound impact on the analysis.’

The consultants however, as previously admit to what the Special Rapporteurs suppress, and Diaczuk seems to admit that all he looked at was what Spivack sent on to him when he writes, ‘The video in question was initially received by traditional mail from Jeff Spivack on January 26, 2011 burned onto a DVD, along with stills and short segments that have been stabilized to facilitate critical review.’ While Heyns declares that his experts, or at least these three, provided their comments free of charge, he should also indicate whether any charges were levied for the technical services required to provide what is presented as stabilization ‘to facilitate critical review’.

More important perhaps is the actual standing of these characters. Spivack for instance, who might be characterized as the chief witness (and stabilizer) for the prosecution, seems a sordid money grubber if the complaint on what is termed Ripoff Report is anything to go by. That states;

‘Covert Sciences, Jeff S. Spivack if you deal with Jeff S. Spivack of Covert Sciences be warned Charleston South Carolina’

Electronic surveillance

We contacted Jeff S. Spivack of Covert Sciences to come to Atlanta to talk about using his services to detect any electronic surveillance in our offices. He met with us and we told him we wanted time to evaluate his proposal and services.

He insisted that we have him perform his services on that day and that he could not come back at a later date. We agreed on terms and he wanted to be paid that day.

We told him we do not do business that way and that he would have to send us an invoice that would be paid within 30 days.

He agreed and performed his services. Within a few days Jeff Spivack was calling us and insisting on payment now. We explained to him we would pay him in 30 days. He immediately applied for a warrant for our arrest for theft of services. We went to court and told the judge we would pay him which we did and the case was dismissed.

If you deal with Jeff S. Spivack of Covert Sciences be warned that you may have the same bad experience we had. He comes on strong and may have you in court on bogus charges costing you time and money to defend yourself for ridiculous charges. Be warned.'

Design experience

All this is pretty melodramatic stuff, and it is quite possible that Spivack is completely innocent. He himself wrote in his defence, without rebutting the story, but giving a rationale for his actions, that 'JH' is one Jerome D. 'Jerry' Hoffman, reportedly a convicted felon who was sentenced to two years in federal prison for an advanced fee mortgage fraud scheme in the early '70s....I don't take such an extreme measure as applying for a criminal warrant for Theft of Services lightly, and it should also tell you something that despite the best efforts of Hoffman's attorney at the hearing, the Magistrate Judge agreed and issued the warrant.' Spivack then may well have been justified in ensuring that he was paid, but one does hope that both Alston and the Current Me checked on this story and on Spivack's integrity before entrusting him with such grave responsibilities.

And, apart from the fact that anyone who names his firm 'Covert Sciences' must have some sort of psychological penchant for intrigue, it seems that his background was designing CCTV security stuff, which has been described as the lowest you can get in video technology and anyone can be involved in this area'. He does not seem to have design experience in video technology nor any qualifications in video or broadcast technology.

Firearm examination

Even funnier I think is Peter Diaczuk, who seems to have been involved in a delightful controversy with a lady called Adina Schwartz. His rebuttal of her testimony suggests a prickly character who shoots out in all directions. To quote from the 'Statement from Peter Diaczuk regarding Calif. V. Rose transcript' -

'I have written this letter in response to testimony given by Dr Adina Schwartz in the case of Calif v. Rose. While reading the testimony, I noted many inaccuracies in statements made about several of my colleagues from the Department of Sciences and myself that warrant correction. To that end, I have compiled the accompanying document that itemizes a combination of mischaracterizations and errors, page-by-page and line-by-line.

Since the topic of discrepancy in the aforementioned testimony involves the evaluation and examination of firearm evidence, it is relevant to be aware that I have been teaching the concept since my employment at the College in 2003....I am comfortable stating so because of my education from John Jay College (BS cum laude) and graduate studies, also at John Jay College and CUNY (Master's Programme and Doctoral Programme, respectively - completed all except two classes required for the doctorate to date). In addition, I own a comparison microscope for nine years, with which I have observed and compared thousands of bullets and cartridge cases....

Please note that the other members of the Department of Sciences who were mischaracterized as having practical knowledge of firearm examination are currently writing affidavits to that effect.

These individuals are: Michelle Boileau, Linda Rourke and Rebecca Bucht. While all three are knowledgeable in many areas of forensic science, none of them have performed firearm examinations, done research on firearm examinations or have any practical experience with the scientific examination of firearms or tool marks.

Respectfully submitted,

Peter Diaczuk'

Going through Diaczuk's assertions is heartening, because it suggests that academic infighting goes on all over the world. Let me just cite a few passages -

.... Page 1413 (page 14 of my PDF) line 13. Dr Schwartz does not teach a course in forensic science. She teaches a course that can be taken by students in the forensic science program as an elective. The course is under the umbrella of the Law and Police Science Department.

Page 1420 (page 21 of the PDF) line 5. I am not and never have been a student of Dr Schwartz. I have never registered for, nor sat in on any class that she has taught. I am not an AFTE member, and never told anyone that I was an AFTE member.

....Page 1447 line 24. Henrietta Nunno and Margaret Wallace are biologists who teach molecular biology. Neither has conducted any research on firearms, nor do they have any expertise about firearms. Their research is confined to studies of DNA related evidence. (this is clarified a bit on the subsequent page) Page 1452 line 2 Linda Rourke's research is in DNA ancestry and she does not have experience in firearm and tool mark examination. Ms Rourke does know the theory of firearm examination, and supports the theory of identification, however.

...Page 1455 line 23. Rebecca Bucht is doing her doctoral research on the constituents of duct tape. There is nothing in her research about firearm examination or related topics. Ms Bucht has no firearm examination experience, and limited experience with firearms in general, which is only within the past year while doing case work for Dr De Forest and me.

....Page 1457 line 20 Michelle Boileau has absolutely no experience with firearms.

....Page 1458 line 3. Michelle Boileau has never worked as a firearm and tool mark examiner Page 1458 line 17. To my knowledge, students no longer even try to "undertake to have a conversation" with Dr Schwartz on firearms because it is pointless since she is not open to opinions other than hers.

Military uniforms

Whilst I am sure Diaczuk had good reason for his condign dismissal of so many colleagues, it does make one wonder about the reliance Alston and Heyns place on his pronouncements, It should however be noted too that he is very tentative, as previously, in his conclusions, and summarizes his conclusions as, very simply, 'The three video sequences reviewed accurately depict firearms being discharged, and the recoil observed is consistent with the firing of live ammunition. I have not rendered opinions of either the wound pathology or the military uniforms, as neither are within my expertise. The conclusions reached are based upon the information available at this time, and are subject to modification if additional information is presented.' Despite all this he had, as though to hedge his bets, a paragraph in which he claims that 'Blank ammunition should not be regarded as 'safe' or 'harmless' to use at human targets, especially at close range and where unprotected by clothing.' This is in line with the tentative creature (except when it comes to Dr Schwartz) who wrote previously that 'the quality of the recording is poor, so I am trying to interpret minute details from a piece of evidence that is marginal at best' (which I noted previously lends credence to the view that this version, supplied to Alston, has been further tampered with).

I suspect that, in such a context, we should reiterate what Diaczuk said previously - 'Some questions may simply not be definitively answerable' - but unfortunately the agenda now being played out requires absolute assertions, and we have therefore got to treat as infallible three experts who failed previously to acknowledge that they were dealing with an edited video, and who persist in believing a video presented upside down must be seen as totally credible.