Evidence Reconsidered: Date of Clothing Purchase

First Posted January 17 2010
last updates Jan 5 2011

Among other points raised in a letter re-posted by Victims of Pan Am 103 Inc., Richard Marquise mused: “It was strange that of all the people in the world, Mr. Megrahi was in Malta the same day the clothing was purchased and was there the same day the bomb left on its fateful journey.” (emphasis mine)

I reminded him of the statement in the comments section at Professor Back’s blog, and posed the following five questions to him. Apparently he never caught them, as he never offered an answer. My own answers follow.
1) Is it not strange that of all the days in the subset November 23 and December 7 you and the investigation had to pick the latter as the best fit for the purchase, even though that choice requires badly misreading the actual evidence?
2) What did the SCCRC find about the Christmas light going up?
3) What do local weather records say for rainfall on Dec 7 vs. Nov 23?
4) What do football schedules (Rome-Dresden) say about Paul’s absence at 6:50 pm? What does Paul say?
5) Why doesn’t November 23 work again, aside from Megrahi not being there?
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1) A Choice of Two Days
Tony Gauci's initial recall of the date of purchase was vague - late November or perhaps early December, or a few weeks before the bombing. It was a football game played on the day (see below) that really narrowed it down to 23 November or 7 December 1988. He recalled the purchse as on a weekday, and specifically "mid-week." In his 2000 testimony, Gauci clarified this meant, exactly, Wednesday. [Day 31, pp 4820-21] Both possible dates were Wednesdays, so that's no help, but the distinction is crucial; as Marquise points out, Megrahi was on Malta on the 7th and so could possibly be the buyer (or to some minds, he clearly is).

If, on the other hand, this supposed purchase occurred two weeks earlier, it had to be someone else; Maltese immigration records and all sources on all sides agree Megrahi had a solid alibi for 23 November. We know the official decision - the purchase happened the 7th. And we know how that helps the prosecution case. But what does the actual evidence offered by Tony, and his brother Paul for that matter, and others, actually say on the subject?

2) Christmas lights
Paul Foot's amazing 2000 booklet "Lockerbie: The Flight From Justice" reports:

On 19 September, 1989, Gauci asserted in a statement to police: “At Christmas time we put up the decorations about 15 days before Christmas. The Christmas decorations were not up when the man bought the clothes.” On 10 September, 1990, Mr Gauci told DCI Bell of the Scottish police: “I’ve been asked to try again and pinpoint the day and date I sold the man the clothing. I can only say it was a weekday; there were no Christmas decorations up, as I have already said, and I believe it was at the end of November.” [p 21 - emphasis mine]

But ultimately another day was needed, a day by which the town would normally have its halls partly decked. By the time Mr. Gauci made it to trial in 2000, judging from the stretches of Q and A I’ve been going over, he was taking every opportunity to fudge the two versions closer together, on this issue and others. The Court’s summarized final opinion document (31/1/01) stated:

“In his evidence in chief, Mr Gauci said that the date of purchase must have been about a fortnight before Christmas. He was asked if he could be more specific under reference to the street Christmas decorations. Initially he said “I wouldn’t know exactly, but I have never really noticed these things, but I remember, yes, there were Christmas lights. They were on already. I’m sure. I can’t say exactly.” [paragraph 56]

Of course among the first things he remembered, that helped mark the memory, was the decorations “were not up when the man bought the clothes.” After this contradiction “had been put to him” by the defense, the Court continued, “he said “I don’t know. I’m not sure what I told them exactly about this. I believe they were putting up the lights, though, in those times.” [para 56]

Clearly the earlier version, before he became muddled with an awareness of contradiction, is more trustworthy, and the Scottish Criminal Case Review Commission, announcing a possible “miscarriage of justice” in 2007, found support for this. Among other alarming problems, they unearthed additional specific evidence giving a start date for the Christmas light erection – the 6th of December:

New evidence not heard at the trial concerned the date on which the Christmas lights were illuminated in the area of Sliema in which Mary’s House is situated. In the Commission’s view, taken together with Mr Gauci’s evidence at trial and the contents of his police statements, this additional evidence indicates that the purchase of the items took place prior to 6 December 1988. In other words, it indicates that the purchase took place at a time when there was no evidence at trial that the applicant was in Malta.

3) Weather records vs. Gauci's evidence
Gauci’s first statements to the police cited the weather as a clue to the day of the purchase. When the mystery shopper came in, it was raining enough for him to buy, in addition to the memorably random assortment of clothing, a single item of utility; an umbrella. From his first statement, 1 September 1989:

“I even showed him a “Black coloured (umbrella?) and he bought it. … The man said he had other shops to visit and he picked up the “umbrella” and he said he would come back shortly … [and] walked out of the shop with the “Umbrella” which he opened as it was raining.”

Remnants of a black umbrella were found in Scotland and presumed to be from the bomb bag. This looks like a good connection, but the items bought are covered in a separate post. For this post it establishes that Gauci’s story, however true or relevant it really was, featured significant rainfall.

During the 2000 trial, the issue was raised by defense for the first accused (Megrahi). They called as a witness one Major Joseph Mifsud, a Maltese meteorologist who gave evidence on 5 December 2000. He discussed rainfall records kept at the airport. Every three hours (usually), there was a measurement taken, entered in the "Rainfall" on the charts, showing as some entries discussed:
6 Dec 21.00 GMT - "Nil"
7 Dec 00:00 GMT – “Nil”
7 Dec 06.00 GMT – “Nil”
7 Dec 09:00 GMT – “T/R” Mifsud explained the mark “TR” as “a trace of rainfall, less than 0.5 of a millimetre.” This reading refers apparently to a one minute light shower recorded from 8:44 to 8:45 am GMT, ten hours prior to the alleged December 7 purchase. The closest time to that, for 18.00 GMT, Mifsud clarified, showed “a nil entry” for the airport. [Transcripts, Day 76, p 9192-93] All other samples aside from 09:00 were equally dry.
Above: Police records for Malta, December 1988. From Foot, Flight from Justice, p21. Maj. Mifsud testified to records the airport at Luqa (highlighted) and recorded TR (trace rainfall) Dec 7. Rain in Silema (highlighted) Dec 7 is the issue and it, like all others aside from the airport, was left blank. December 6 is similarly dry-looking - these blanks mean either “nil," or everyone else just took these day off.

Note in the chart how these are daily totals, and do not reflect changes in rainfall at points during the day, so the “TR” at Luqa could be used to argue for light rain at Silema around 7pm, even though its daily total shows as blank, or nil. In fact, Foot noted how some did argue “the blank referred to the period from noon on the previous day (6 December) to noon on the 7th. So it could still have been raining at the time the clothes were sold – at about 6.30pm on the 7th.” But this is obfuscation. The As foot noted, Mifsund was quite clear on what the hourly returns meant:

"Q. Just confirm with me, please, apart from the trace of rain that we discussed that fell or was measured at 9.00 in the morning of Wednesday December 7, did any rain fall at Luqa?
A. No, no rain was recorded. No, no rain was recorded.
Q. Up to midnight?
A. Up to midnight." [Day 76, p 9201]

The prosecution asked the witness it could rain in Silema, which is right on the coast, but not the airport, approximately four miles inland (southwest). He admitted “I do not altogether exclude the possibility that there could have been a drop of rain here and there,” and estimated “the possibility that there would be some drops of rain, about ten per cent possibility.” [Foot 21] It’s precipitously less likely to have been enough to warrant buying an umbrella, and only a major screw-up in records-keeping could explain such a rain on the 7th not being recorded.

It can’t be ruled out that Gauci was eventually made aware of this disconnect and pressured to shift his story. One can observe subtle changes in the witness' recall of rainfall over subsequent statements made to DCI Harry Bell, who was leading the Scottish police effort on Malta and was Gauci’s usual contact. Two of these later read in court include:

21 February 1990: “I have been thinking about the day the man bought the clothes, November, December 1988. He left the shop after having made the purchases and turned right down Tower Road. At that time, he had the umbrella raised and opened. When he returned to the shop, he came from the same direction, but the umbrella was down because it had almost stopped raining, and it was just drops coming down.” [p 4815]

10 September 1990: “I have been asked about the weather conditions that night the man made the purchase of the clothing. Just before the man left the shop, there was a light shower of rain just beginning. The umbrellas were hanging from the mirrors in the shop, and the man actually looked at them, and that is how I came to sell him one. He opened it up as he left the shop, and he turned right and walked downhill. There was very little rain on the ground, no running water, just damp.” [emphasis mine] [p 4817]

A decade later Gauci tried valiantly to minimize rainfall further in his pivotal trial testimony. The Court summarized his take into this finding, from paragraph 56 of their final opinion: [OoC 56] “When asked about the weather he said “When he came by the first time, it wasn’t raining but then it started dripping. Not very -- it was not raining heavily. It was simply dripping...” What the actual transcripts show is a little weirder. It was delivered in his native Maltese, and translated for the court.

”Q Do you remember what the weather was like when the man came to the shop?
A When he came by the first time, it wasn't raining, but then it started dripping. Not very -- it was not raining heavily. It was simply -- it was simply dripping, but as a matter of fact he did take an umbrella, didn't he? He bought an umbrella.” [Day 31, P 4741]

“Q … on the 1st of September of 1989 your memory was that the man purchased the umbrella, he didn't leave it for you to bundle up with the other things he had bought in the shop, but he left with the umbrella and put it up outside the door of the shop because it was raining?
A Exactly.” [p 4815]

"A It wasn't raining. It wasn't raining. It was just drizzling.
Q We'll come to --
A I can't remember the dates. I don't want to say -- I don't want to give out dates if I am not that sure, sir.
Q Indeed. What I am endeavouring to do, Mr. Gauci, with your help, is to illustrate --
A I always thank you, sir. I am here to help you, sir." [p 4816]

"A I don't want to cause confusion. I don't know dates." [p 4820]

It was barely raining, had just started, just stopped, drizzling, ground barely wet, etc. None of it fits well with December 7, when rain on Silema would be described as “maybe a few drops, but not that I noticed.” The records for November 23, not surprisingly, are a direct fit for his freshest memories. Major Mifsud, again, from the transcripts: [Day 76, Pp 9207-09] “Light intermittent rain at noon” was recorded, a condition that “persist right down the column until 16.15,” onto the next page to at least 18.00 GMT, 19:00 local, almost the minute of any alleged 6:50 purchase that day. This slot measurement shows .6 of a millimeters of rain was taken at the airport.

Results in Silema, a bare four miles distant, were likely the same - light but notable. And the buyer noticed enough to buy and use an umbrella. What this evidence shows then, is the unknown purchaser of 23 November, if he really existed, was a bit of a pansy regarding rain.

4) Football games and Paul’s absence at 6:50 pm
Tony Gauci's first statement of 1 September 1989 offered as a clue of the date “I had been working alone in the shop. It was about 6:50 pm just before closing time at 7pm." He was alone because his football fanatic brother had skipped out to watch a game at home. A portion of his first statement, read back in court, said:

“I cannot remember the day or date that I met this man. I would think it was a weekday, as I was alone in the shop. My brother Paul did not work in the shop that afternoon, as he had gone home to watch a football match on television. He may be able to recall the game, and this could identify the day and date that I dealt with the man in the shop.” [Day 31 pp 4792/93]

Indeed. Paul was spoken to and recalled the match he took an evening off early to watch - it was Rome vs. Dresden. It can be surmised he was rooting for Rome. “Paul Gauci was duly listed by the prosecution as a witness,” wrote Foot, but “was not called to give evidence” at the trial, that had just finished as he wrote [Foot p 21]. [Note: There was a separate Paul Gauci (one presumes) called, in connection with his company Big Ben (of Malta) manufacturing the "blue babygro" of the type found at Lockerbie, and selling some to the other Gaucis at Mary's House] In fact, Paul had the contents of his police records selectively ignored, it seems. Private Eye, the publishers of Foot’s booklet, obtained copies of these reports and shared part of one from 19 October, 1989. This recorded a meeting with DCI Harry Bell that made it clear why, despite his specific and useful memory, “Paul Gauci was not called to give evidence for the prosecution.” Paul stated that day, in support of Megrahi’s 7 December shopping spree:

“I was shown a list of European football matches I know as UEFA. I checked all the games and dates. I am of the opinion that the game I watched on TV was on 23 November, 1988: SC Dynamo Dresden v AS Roma. On checking the 7th December 1988, I can say that I watched AS Roma v Dynamo Dresden in the afternoon. All the other games were played in the evening. I can say for certain I watched the Dresden v Roma game. On the basis that there were two games played during the afternoon of 23 November and only one on the afternoon of 7th December, I would say that the 23rd November 1988 was the date in question.” [Foot p 21]

Despite Paul's, and his opinion's, absence from the trial, the issue of game timing was not ignored. Television records were called on, and they tell the same story but without stating an opinion on "the day in question."
- 23 November. Dresden and Roma. The broadcast was ... 16.55.45 to 18.44.00 hours local time.
- 7 December. Roma and Dresden. The broadcast was ... 12.55.30 to 14.53 hours local time.
The purchase Paul missed out on was about 1850 local, just as the November game had ended, or four hours after, if on December 7. On its own, that's not conclusive; he could have just gotten lazy and skipped the chance to help Tony for the last hours and for closing. But all things considered, Gauci himself felt the November game was the one that made him miss the fateful purchase.

5) Why doesn’t November 23 work again, aside from Megrahi not being there?

I almost left this section blank, to emphasize that I’ve seen no reasonable excuse yet offered as to how these clues add up to 7 December. Paul Foot’s 2000 booklet brilliantly outlined the evidence for 23 November, which I've drawn heavily from, and summarized:

But this evidence was no use at all to the prosecution of Abdelbasset Megrahi, who was certainly not in Malta on 23 November. Was there any other day he was in Malta and could have bought the clothes? Yes, he was staying in the Holiday Inn in Sliema on 7 December, 1988. So the thrust of the prosecution inquiries about the sale of clothes shifted from 23 November to 7 December. [p 21]

This may sound cynical, but in point of fact, DCI Bell, head of the Scottish police investigation in Malta, tacitly admitted as much in a 2006 interview. Speaking with the Scottish Criminal Case Review Commission, these excerpts were found in the Megrahi defense team’s grounds of appeal [pdf link  - p 229]

DI Bell SCCRC interview (25-26/7/06)
"...The evidence of the football matches was confusing and in the end we did not manage to bottom it out..."
"...I am asked whether at the time I felt that the evidence of the football matches was strongly indicative of 7th December 1988 as the purchase date. No, I did not. Both dates 23rd Nov & 7th Dec 1988 looked likely.
"...It really has to be acknowledged how confusing this all was. No date was signficant for me at the time. Ultimately it was the applicant's [Megrahi’s] presence on the island on 7th December 1988 that persuaded me that the purchase took place on that date. Paul specified 7th December when I met with him on 14th December 1989 and I recorded this..."

“Applicant” here refers to Megrahi, applying for his second try at appeal, which the SCCRC wound up granting. Note two aspects of his citation of Paul's 12/89 statement: it's mentioned immediately after the admission that it was Megrahi that decided it, as a supporting afterthought. Also this being an oral interview, he had the date of that meeting memorized, ready to call up. This is interesting, but inconclusive, evidence of a memorized and rehearsed spin. Paul’s “specifying” the 7th on that particular day conflicts with his own words, from two months earlier, that "the 23rd November 1988 was the date in question.” Do note that Mr. Bell deceptively places the days as equals, creating some unwarranted “confusion,” when the 23rd is clearly the better fit in all the regards addressed above. But whatever “fog of war” effect he may have suffered on the investigative front lines, Bell admitted he saw no good reason, aside from Megrahi’s absence and one mention by Paul, to dismiss the earlier purchase. And he and the investigation and ultimately the Zeist Court all dismissed the earlier purchase.

Further, Paul's apparent story change between mid-October and mid-December hints at - but far from proves - an intention somewhere to shift the scope onto Megrahi (and thus the date to 7 December), an intention that had somehow influenced Paul to report the other day despite everything.

Additions, Jan 5 2011
6) The Last Pajamas
This is a point I at first glossed over, mentioned by Edwin Bollier ("ebol" in comments, NOT "Ebol"). But it was also argued at trial, and to that I turn. The Opinion of the Court summarized it thus:

[66] Counsel for the first accused drew our attention to evidence which Mr Gauci gave that according to an invoice which he received, dated 25 November 1988, he purchased eight pairs of pyjamas about that time. Pyjamas sold well in winter and he used to buy stock “when it finished”. According to a previous invoice dated 31 October 1988 he had at that time bought sixteen pairs. Since the purchaser of the clothing had bought two pairs of pyjamas and Mr Gauci had renewed his stock around 25 November 1988, counsel asked us to infer that the purchase of the two pairs must have been made on 23 November 1988...

Being the last pairs, by coincidence, helps set an approximate date. Just before November 25 is consistent with one date and not the other. The inference is clear. There was most likely a sale of these pajamas shortly before the order, and the buyer of November 23 was recalled as buying some. Not a break one would expect, but again, it's there.

The judges were faced with further corroboration, in quadruplicate now, of the day they refused to see. So they found a reason to dismiss this one too, and continued their paragraph 66:

...We are unable to draw this inference. In the first place it was not put to Mr Gauci in evidence that this may have been the sequence of events. Secondly, Mr Gauci was not asked what the state of his stock of pyjamas was on or about 7 December 1988.

If it had been put to him, he would most likely have fudged it to support 7 December. On the second, he would have said that, but awkwardly, again contradicting his own better statements from a decade earlier. Thirdly, unmentioned, there was no documentary evidence for or against a December re-order that might, by luck, illustrate another sale of the last pairs on December 7. I don't see a reason to suspect there would be - Tony doesn't seem to specify the pajamas were the last in stock. But it would have been on the prosecution to show that. As Megrahi's counsel William Taylor put it:
Perhaps it's useful to look at it this way: It was open to the Crown to prove the next invoice;
they did not do so. They were alive to the point. And I can address you as judges rather
than as the tribunal of fact, just as the Advocate Depute did: If the Crown had led evidence,
it would not have created an inference as to the 7th of December.
The prosecution's (Crown's) failure to locate any mid-December re-order indicates there wasn't one, leaving one wondering why the judges left themselves wondering about one.

7) Harry Bell's First Reason
Considering the quote above by DCI Harry Bell, the date 7 December was clearly chosen to fit Megrahi. One must presume this decision was made prior to his citing it, in his police diary, as reason #1 to identify Megrahi. On the day of Tony's "ID," February 15 1991, Bell wrote in support that "He arrived in Malta on 7th December '88. This was the date of the purchase of the clothing." Nabbed. Bell that is, using criminally circular logic he thought would never be exposed. (This is explained in a separate post.)

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