Const. Swartz and Folien 1

Folien 1 became an extremely contentious piece of evidence during the trial. It had the potential to destroy the accused’s alibi.

On Folien 1 are identified fingerprints of the accused, Fred van der Vyver. If Folien 1 was lifted from the cover of the DVD that Inge rented at 3:07 pm on 16 March 2005, it would place Fred in at least Stellenbosch after 3:07 pm – at a time he said he was at work at Mutualpark in Pinelands (about 47 km away from Stellenbosch). Being in Stellenbosch after 3:07 pm would not necessarily make the accused guilty of murdering Inge but it would refute his account that he was in a secured environment at work during the afternoon of 16 March 2005. This is why Folien 1 became such an important piece of evidence.

Constable Elton Swartz and two other officers returned to Inge’s flat, 21 Shiraz, the morning of 17 March 2005, the day after the murder. Their purpose was to lift fingerprints on the scene. According to Swartz, he lifted prints from a DVD cover and he marked this lift as ‘Lift 1’ (which would become known as ‘Folien 1’). On his crime scene notes, he wrote ‘#1 – lifted from DVD cover found on coffee table’. Three hours after he took this lift together with 10 others, the lifts were taken into the AFIS system, and the labelling for each lift was completed in accordance with his crime scene notes.

The defence came in and said that the lift was not taken from a (or the) DVD cover but rather from a drinking glass. The implication of this is that the accused could have touched the glass at any time prior, e.g. the morning before he left Inge’s apartment, and this would not necessarily put him in Stellenbosch the afternoon of the 16th.

Leading defence experts Pat Wertheim and Arie Zeelenberg took it a notch further, claiming that the police intentionally mislabelled a drinking glass lift as a DVD lift. The police wanted to frame the accused. Mr Wertheim prominently states in his report that Folien 1 is “fabricated evidence” – this means that the police, with intent, took a lift from a drinking glass and marked it as having come from a DVD cover.

In the process Elton Swartz was slaughtered in court. The judge described him as an unreliable witness.

It did not help Swartz that in his initial statement he did not describe the double lift – the fact that he used two foliens on the cover. It also did not help that he admitted that he did not write all the details on the back of the lifts immediately at the crime scene as protocol dictates. It also did not help him that he admitted that he threw the first lift away (because it had no useful prints on it).

Now, let us look at some facts:

– There is ample evidence that Inge rented a DVD (The Stepford Wives) at 3:07 pm on 16 March 2005. The police have a photograph of the video store’s computer screen, confirming that Inge rented the DVD at 3:07 pm on 16 March 2005. The store’s clerk, Annemarie Thomas, also confirmed under oath that Inge rented the DVD from her on the 16th.

– The crime scene video, shot only hours after the murder, clearly shows a DVD cover on the coffee table next to Inge’s body. The cover was lying open with its flat sides down. The crime scene video does not show any other DVD covers in her flat. Photos of the DVD holder found in Inge’s flat confirms that it was of the same type as the DVD holders used by the video rental store. It wasn’t just any cover. It was a cover from that particular video store. There can be no dispute about the presence of this DVD cover on the scene.

– Apart from Elton Swartz, the duster Mariaan Booysens, as well as Captain Bruce Bartholomew, testified that they saw the cover on the coffee table – and that there were fingerprints visible on the DVD cover after it was dusted.

At this stage we can be absolutely sure that there was a DVD cover in her flat when her body was found – and that it was the cover of the DVD she rented at 3:07 pm.

Whether we want to believe Swartz or not, he testified under oath that he took a lift from this cover and that he immediately marked it as ‘Lift 1’ on the sticker on the folien – and cross marked it as ‘#1 – DVD cover found on coffee table’ in his crime scene notes. Mariaan Booysens also testified that she dusted a DVD cover. So we can be sure that not only was a DVD cover found on the scene but that it was at least dusted. There is general consensus that a lift was taken from the DVD cover. The defence says this lift was dishonestly disposed of and replaced by a lift from a drinking glass (marked as a DVD lift).

So let us now take Swartz out of the picture. But let us briefly ponder the perception: ‘Swartz is not a reliable witness’. What does this mean? It means that you cannot be sure about what he said. It does not mean he lied and it does not mean that he told the truth. Simply that you can’t be sure. It must be noted that the judge did not find that Swart lied. Simply that he was a poor and unreliable witness. Let us forget about the fact that he was young and that it was his first time in court, facing a brutal onslaught by a senior defence council while not being prepped well by the prosecutors. Let us look if there are scientific reasons to doubt Swartz’s version of events.

If we do not trust Swartz’s account, let us look what science tells us.

So let us ask:

1) Is there any reason to doubt that Swartz took the lift from a DVD cover?
2) Is there anything that exclude the lift as a DVD lift?
3) What is there that can support or refute Swartz’s claims of a double lift?
4) Are there any factors that would support the DVD notion?
5) Is there any merit in the new claim by the defence that the lift rather came from a drinking glass?
6) Are there scientific reasons to exclude a glass?
7) Considering context, are there any reasons to believe that Swartz either fabricated Folien 1 or that he made mistake?

Let us start with question 1. What did Swartz say, in short? He said that he took a lift from a DVD cover that was on the scene and that he marked this lift as Lift 1 – and that this is the same lift that became known as Folien 1. He took this lift from the scene to his office where hours later it was taken in on AFIS. AFIS was in the same building as his office and Superintendent Verhagen handled the lifts.

Let us look at whether there are any reasons to doubt Swartz’s account. Let us leave his testimonies aside. Let us look at science. What scientific reasons can be offered to say that we cannot and should not believe Swartz, or even to show that he made a mistake or that he fabricated evidence? In short, can we show that Folien 1 was not lifted from a DVD cover?

Firstly, the prints on Folien 1 firmly suggest that they were made on a flat surface. Foremost, this can be deduced because the index print on Folien 1 is the same length as the corresponding ten-print reference print. A print on a round surface would have foreshortened by about 5-6 mm. This can also be seen in the lack of congestion of ridges and the fact that the index finger was not curved towards the palm. See Professor Kobus Visser’s report here:

The prints firmly suggest that the object was not a weighted round object (such as a drinking glass). The lack of friction in the prints suggest that it was either a flat object that was simply touched, or if it was handled that it was a flat and light object. Weight would cause pull and friction in the ridges. There is no pull due to weight to be seen in the prints. Based on the sizes and shapes of the prints, there is every reason to favour a flat surface.

So, if we consider the object to be flat; does it take us closer to Swartz’s account or further away from it?

Ok, so what is there on Folien 1 that can exclude a DVD lift?

We know that there is nothing wrong with the prints being flat prints. The dried drops on Folien 1 are consistent with dried drops you will find on any flat and horizontal surface. The rim deposits are mostly symmetrical. There is no indication in the drops that they dried on a vertical surface. There is a fundamental difference between the background of Folien 1 and Folien 2 – and we know Folien 2 was lifted from glass. So that means Folien 1 must be from something different. Fact is, based on what we know, the background cannot exclude a DVD lift. So what is left?

The lines. Yes, we agree that the lines are strange and unusual considering a DVD cover. But, and this is the fact, both are possible on a DVD cover. We are not going through the argument here, as we explain it in great length elsewhere, but we have shown that due to rubbing over the edge the top curved line is possible. There are previous lifts by Swartz (of other cases) that will confirm this. We want to explain Folien 1 while taking Swartz out of the picture. So let us look at the bottom line. Imagine you dust the whole front cover of the DVD – then you place a lift over the bottom half of the DVD – then you remove this lift. The DVD cover will now only have powder over the top half because the lift over the bottom half removed all the powder. Now you place a second lift over the top half so that the bottom part of the lift overlaps the area cleaned before. When you remove this lift there will be a clear demarcation between the power lifted from the top half and the clean area left by the first lift – like we have on Folien 1. It is therefore very possible to get a curved line from a DVD cover. As we will see later, the same cannot be said of a drinking glass. There is no way that a round conical drinking glass could have made the top or bottom lines. Under no circumstances, even if we hypothesize.

So, if we consider that there is no aspect that specifically excludes a DVD cover; does it take us closer to Swartz’s account or does it take us further away from it?

What is there that can support Swartz’s double lift?

The fact that here are two partial (half) drops on the suspected lift line, show that a previous lift cut through the drops. There was a first lift. This would not only refute the one lift that a glass would have needed, but supports Swartz’s version of two lifts.

In this video Thomas Mollett proves under camera that Swartz’s double lift is possible and that it can yield a lift that looks like Folien 1.

So, the evidence in support of two lifts; does it take us closer to Swartz’s account or does it take us further away from it?

Now, we must remember that Swartz’s account was the original account, which was backed by other officer’s testimonies and paperwork, incomplete as it may have been. The claim by the defence that the lift was taken from a drinking glass was the NEW claim. Therefore, if you cannot prove that the lift was taken from a DVD it does not mean that the lift by default came from a drinking glass. The drinking glass theory must be able to stand on its own and be tested on its own merits. It was a new claim, and just as the DVD claim, it must be able to withstand its own scrutiny. The validity of the glass theory is not dependant on whether the lift came from a DVD cover or not. If it came from a drinking glass, one must be able to put a sensible and substantiated scientific argument on the table in support of this theory. It cannot rely on the rebuttal of another theory.

But let us look if there is any merit in the glass theory and if it takes us closer to Swartz’s account or not.

We discus all the various issues in great lengths on this website, and we are not going into all of them. We will look at only two firm exclusion criteria. The length of the prints and the lines.

When you put your finger on a round surface a smaller area of the finger’s cushion touches the surface – or at least less of your finger will touch than when you touch a flat surface. The print on Folien 1 did not foreshorten at all. It is roughly the same length as the known flat print. This is impossible on a round surface. This firmly excludes the lift as a round surface lift – and therefore it excludes a round drinking glass.

Both the lines on Folien 1 needs to be perfect circular (and concentric) arcs to be consistent with the edges of a conical drinking glass. They are not. This can be proved scientifically. And this firmly excludes a drinking glass.

So, if the lift was not taken from a drinking glass it does not mean it necessarily came from a DVD cover, but does it take us closer to Swartz’s account or does it take us further away from it?

Let us recap:

  • We can as scientific fact accept that the lift came from a flat surface
  • We can support Swartz’s double lift
  • There is no reason to exclude a DVD cover
  • There are factors specifically supporting the DVD notion
  • A drinking glass can be excluded on scientific grounds

If we take all of this into account, is there reason to doubt Swartz’s account? The DVD notion did not fail scientific scrutiny and the new glass theory did not succeed. Therefore, on reasonable grounds the DVD notion should stand.

Let us quickly look at the so called fabrication and ‘mistake’ claims.

During the appeals hearing in the Supreme Court of Appeal, the panel of five judges refuted any claims of fabrication. They could not find any logic in the claims that Swartz went to 21 Shiraz with the intent to fabricate evidence. He did not know the accused at the time. He did not know anything about the accused’s alibi. There could have been no conceivable reason for him to intentionally meddle with the evidence.

The advocates for the SAPS argued that at most it was possible that Swartz made a mistake. There seems to be a perception that the advocates said that he as a fact did make a mistake. This is not correct. They simply had to get the police off malicious intent, and it would have been enough for their case for them to argue ‘mistake’ – and therefore they argued “possibly made a mistake”.

But what is interesting, is that if Swartz did not fabricate Folien 1, it could not have been a mistake either – because WHERE IS THE GLASS THEN?

It is widely accepted that a lift was taken from a DVD cover. If there was a mistake, where is the DVD lift? There would have been no reason to hide it if a mistake was made. But maybe even a more important question, where is the glass that made Folien 1? If it was a mistake then there would have been no need or intention to dispose of the glass. There is not one single shred of evidence that a 80 mm drinking glass was in Inge’s flat before or during the time of dusting and lifting. She did not possess such glasses and even the 11 glasses Dixon claimed came from her flat, do not fit the dimension of 80 mm. The crime scene video does not show such a glass. Nor do any photos that were taken at the time. No such glass was ever produced.

Another theory is that the police tricked Fred to put his fingerprints on a drinking glass during a police interview, and that Swartz then took a lift from this glass and swopped it with the original Folien 1. The Supreme Court of Appeals rejected this theory. They rather thought that Swartz likely made a mistake by accidentally swopping Folien 1 with a lift from another crime scene that Swartz worked on the 17th. This is also completely illogical – what are the probabilities that Fred’s fingerprints would have been found by Swartz at another crime scene on the same day as he lifted fingerprints from his murdered girlfriend’s flat?

If we consider all of this, then one really need to ask if there is any reason to doubt Swartz’s version that he took a lift from the DVD cover that Inge rented at 3:07 pm, and that this very lift is Folien 1.

Folien 1 measured against the alibi: Regarding the alibi, we only have on person’s oral account that he was not in Stellenbosch that afternoon. And that is the word of the accused himself. Yes, nobody could prove that he left his workplace, but he could also not prove that he did not leave his workplace. Based on evidence (or the lack thereof) presented, the court found it “highly unlikely” that he left his workplace. Normally one can argue that the onus is not on the accused to prove that he did not leave his workplace but on the State to prove that he did, but in this case, there are fingerprints on an object that refutes his alibi – and one would expect him to offer more than simply his word. It is noticeable that to date no other person could in a court of law verify the accused’s whereabouts for a period of 105 minutes on the afternoon of 16 March 2005. Various alibi statements that were taken by a private firm more than two months after the murder to support Fred’s alibi were later recanted and even the judge attached no weight to them. The main alibi witness, Ms Shahana Toefy, who supposedly could vouch for the accused’s alibi, was pulled as witness at the last minute by the defence. In addition, in her statement she makes reference to a presentation that Fred did on the day she was vouching for. The fact is that Fred did the presentation on the 15th, the day before the murder. He didn’t do any presentation on the 16th. Seems like Shahana Toefy might have been talking about the wrong day. This means that no alibi witness, considered reliable by the court, ever spoke to the accused’s alibi in court. All we have is the accused’s word – this against scientific evidence that would suggest that his word may not be all that true.

If the accused was in Stellenbosch the afternoon of 16 March 2005 as Folien 1 would confirm, it does not make him guilty of murder, but he then needs to tell us what he did there. He must tell us if he saw Inge that afternoon and what the situation was when he left Inge’s apartment. It is reasonable to assume the DVD cover was in close proximity to Inge and his prints on it means that he was in close proximity to Inge that afternoon, and at least in Stellenbosch and not in Pinelands as he said he was. He must tell us what happened that afternoon.

Prof. Visser Report

Prof. Theron Report