The most common error was a failure of lab personnel to note in their reports the fact that a subsequent, more accurate test had shown that blood was not found after a less-accurate preliminary test indicated the presence of blood. Other errors included failing to mention inconclusive or negative results in repeated tests, making entries that contradicted the actual test findings, and claiming that no follow-up testing was done when it had been. The fact that such errors always favored the prosecution indicates they were intentional, not random mistakes or oversights.
North Carolina Attorney General Roy Cooper commissioned former FBI special agents Chris Swecker and Michael Wolf to conduct a comprehensive audit of SBI blood analysis cases between 1987 and 2003. Their investigation of 15,000 crime lab files, released in August 2010, revealed the 190 errors. [See: PLN, Oct. 2010, p.1].
Several high-profile cases led to the audit, including that of Kernerville dentist Kirk Turner, who killed his wife in what he claimed was self-defense after she attacked him with a 7-foot spear. Prosecutors alleged that Turner slit his wife’s throat with a pocketknife, wiped the blade on his shirt, then stabbed himself twice in the thigh with the spear to make the killing look like self-defense.
SBI bloodstain pattern analyst Gerald Thomas filed a report which indicated a stain on Turner’s shirt was a transfer bloodstain consistent with a hand being wiped on the shirt.
After he was told of the prosecutor’s theory of the case, however, he and his mentor, SBI analyst Duane Deaver, conducted unscientific tests to see if they could duplicate the stain using a knife. They were able to do so, but only if the knife had blood only on the very edge of the blade.
After the experiment, and without mentioning that he was changing the report, Thomas modified his report to state that the shirt stain was “consistent with a pointed object, consistent with a knife, being wiped on the surface of the shirt.” Kirk’s defense attorney was accidentally given a copy of the first, unmodified report and the change was discovered. Turner was acquitted at a trial in which the jury foreman said the jury was shocked at the SBI’s conduct.
“Politically, socially, religiously, I’m conservative; I’m a law-and-order man,” said the jury foreman, an insurance claims adjuster. “But I don’t know what other word to use but fraud” to describe the SBI’s actions.
The case that finally led the Governor and Attorney General to order an investigation into the SBI crime lab was that of Greg Taylor. Taylor spent nearly 17 years in prison for a murder he did not commit after Deaver said a substance found on the fender of Taylor’s SUV was blood. Deaver never told the defense – or the prosecution – that a confirmatory test ruled out the presence of blood on the fender.
Deaver even testified before the North Carolina Innocence Commission in 2009 that he had not performed the second test. However, copies of Deaver’s 1991 lab notes, discovered by Taylor’s attorneys in early 2010, showed that he performed the test and it was negative. At a February 2010 hearing, Deaver testified that his superiors at the lab ordered him to exclude negative confirmatory tests from his final lab reports.
Taylor, who was exonerated based on “clear and convincing evidence,” has since filed suit against Deaver and other crime lab officials, alleging that they deliberately withheld evidence from his defense counsel.
Deaver, 51, had been the principal training officer at the SBI blood lab for 22 years. He had been at the vortex of other controversial cases. For example, in one case he testified that he routinely ignored evidence that might be helpful to the defense and did not tell the defense about such evidence or include it in his reports. Another time he stated that, in criminal cases, he routinely testified that blood was present based solely on a preliminary test without doing a confirmatory test. The preliminary test is well-known to yield false positives.
Deaver even tried to testify that a defendant was the one, of several people present, who hit a man over the head with a 2-by-4, killing him, based upon the splatter patterns of pumpkins Deaver smashed with a 2-by-4. The judge refused to admit that testimony into evidence.
What made Deaver and the people he trained at the SBI crime lab so dangerous was their lack of scientific qualifications coupled with an intense self-righteousness. The National Academy of Sciences, the nation’s most prestigious sci-ence organization, examined crime labs nationwide in a 2009 report and recommended that analysts have a minimum of a bachelor’s degree in a science field such as biology or chemistry.
Deaver had a bachelor’s degree in zoology from North Carolina State University and took only two outside courses in bloodstain pattern analysis – one in 1987 at the Midwestern Association of Forensic Science and the other at Florida’s Valencia College. SBI analyst Gerald Thomas, 40, had a bachelor’s degree in political science from Greensboro College and a master’s degree in sociology from UNC-Greensboro. In 2008, he testified that he never even took classes in chemistry or physics. Thomas’ training was all in-house or at the Guilford County Sheriff’s Department.
Deaver’s boss, then-SBI crime lab director Jerry Richardson, had a bachelor’s degree in communications. He came to the lab after a failed attempt at a career in television, when he was looking for a government job.
“I knew TV was no way to make a living, and I wanted to make a living. A good, stable one,” he said.
Like many people who came to work at the SBI crime lab in the 1980s and 1990s, Richardson was a backyard scientist with little or no academic training in the sciences.
Instead of formal training, SBI trained its employees in-house. That would not be such a problem had SBI’s in-house practices not been so out-of-step with the practices of the rest of the national and international forensic sciences community.
But SBI lab workers were isolated from their professional peers. Deaver had never been a member of the International Association of Bloodstain Pattern Analysis, the Scientific Working Group on Bloodstain Pattern Analysis or the International Association of Identification. Such isolation allowed SBI workers to practice self-deception in the name of science and help convict the innocent with egotistical self-assurance.
According to Jed Taub, who retired in 2004 after 30 years at the SBI blood lab and now works as a forensic investigator for the Pitt County Sheriff’s Office, SBI blood analysts didn’t report a negative result in confirmatory tests because they believed the preliminary tests were infallible.
“We didn’t report the negative result of a confirmatory test because, really, it’s misleading,” Taub said. “We couldn’t be sure it wasn’t blood, so those tests don’t really matter.”
George Goode was sentenced to death for a 1993 murder after Deaver testified that he found evidence of blood on Goode’s boots. The stain was invisible to the naked eye. The test was preliminary and there was no evidence that a con-firmatory test was performed. In 2009, a federal judge reduced Goode’s sentence to life based in part on his lawyer’s failure to challenge Deaver’s findings. In so doing the judge said that Deaver had given “misleading testimony.” See: Goode v. Branker, U.S.D.C. (E.D. NC), Case No. 5:07-hc-02192-H.
It is accepted throughout the community of forensic scientists that a preliminary blood residue test, using phenolphthalein, can give false positives when other substances, such as plant and animal matter, are present. That is why analysts use a second, more accurate (but more expensive) test to confirm the presence of blood. SBI analysts, however, were trained to prefer the less-accurate preliminary test over the more-accurate confirmatory test because in-house experiments with vegetable matter were allegedly unable to produce false positives.
Stuart James is one of the world’s leading experts on bloodstain analysis. He was hired by Kirk Turner’s attorney to examine the evidence in that case. Following Turner’s acquittal, James has shown videos of SBI experiments in conferences and workshops in both the U.S. and Europe, with the result that every forensic scientist who saw them deemed the work unscientific.
“They thought it was a bunch of malarky,” said James. “They were aghast at it.”
Swecker, a former prosecutor, federal agent and high-ranking FBI official, described the SBI crime lab as a renegade agency with flawed policies.
“What surprised me was the sort of looseness there, specifically with policy regarding reporting results,” Swecker stated. “What that created was a very subjective environment with cases.”
Unfortunately, the ineptitude at SBI extended beyond the lab’s blood analysis work. For example, in the case of novelist Michael Peterson, who was convicted of bludgeoning his wife to death in 2003, evidence discovered by Peterson’s lawyers, but overlooked by the SBI, indicated that an owl may have killed Kathleen Peterson.
Kathleen’s body was discovered at the bottom of an outdoor staircase in a pool of blood.
Overlooked at the time of the investigation were owl feathers and lacerations to Kathleen’s scalp which neurosurgeon and owl expert Dr. Alan van Norman testified in an affidavit were inconsistent with a blunt instrument, but consistent with a large bird of prey. Microscopic owl feathers were also found embedded in Kathleen’s hands and a sliver of tree limb was found in her hair. Van Norman testified that he believed Kathleen became entangled with the owl and suffered fatal injuries while ripping it from the back of her head. Peterson, serving a life sentence, is seeking a new trial; Deaver had testified about blood evidence in his case.
In another case, Floyd Brown, 47, was convicted of beating a retired school teacher to death in 1993 based on a confession he gave to SBI Agent Mark Isley. However, the confession used sophisticated language and Brown had the mind of a 7-year-old boy and half the average IQ. In other words, Brown, who wasn’t able to recite the alphabet beyond the letter K, could not have given the confession that Isley claimed he had transcribed verbatim.
“The confession is a work of fiction,” according to Raleigh attorney Mike Klinkosum, who represented Brown until a state judge threw out the murder charge and ordered his release in 2007.
Further, the murder conviction of Derrick Michael Allen was dismissed in March 2011 after a state court found that a former district attorney had colluded with an SBI lab technician to prevent DNA testing of a piece of evidence they thought “would not prove inculpatory to [Allen] and could possibly inculpate others.” The report submitted by the SBI crime lab contained misleading findings which falsely implied the victim’s blood had been found on the evidence; the court criticized the lab for having “a pro-prosecution bias.” Allen served 12 years in prison.
Union County District Attorney John Snyder has said that he will review all past homicide cases, except those with a confession, to ensure they weren’t tainted with SBI crime lab error.
“The irony is, we have the best science being made in North Carolina, but down the road at the SBI lab we have bad science being used to take away someone’s liberty,” Snyder stated.
Then again, given the situation in the Brown case, perhaps he should include cases with confessions in his review.
The North Carolina Police Benevolent Association has called for state and federal criminal investigations into whether SBI personnel violated any defendants’ federal civil rights, and whether state criminal laws were violated.
“Undoubtedly, no future laboratory analysis can be trusted to a lab under the current control of SBI leadership,” said John Midgette, the association’s executive director. That seemed to be a call to establish a crime lab independent of the SBI, just the kind of solution recommended by the National Academy of Sciences. A bill introduced in the state legislature in March 2011 (SB483) would create “a separate, autonomous” state forensics laboratory that is separate from the SBI, answers to the Attorney General’s office and does not employ sworn law enforcement officers.
The North Carolina legislature has already passed a bill that creates an advisory board of forensic scientists to over-see the crime lab, and which requires the lab to meet international accreditation standards.
In July 2010, Attorney General Roy Cooper suspended bloodstain pattern analysis work at the SBI lab and removed Robin Pendergraft from the SBI director job she had held since 2001.
Charlotte attorney Jim Cooney, who has represented both police departments and death row prisoners, said the SBI’s failure to deal with its problems for so many years was an indication that it was probably incapable of reforming itself. He was also baffled as to why the state’s largest investigative agency was not being run by an expert in the field.
“You don’t need a lawyer or a legislative assistant to run it, you need an investigative professional, someone with management experience to run a law enforcement agency of this size and complexity,” Cooney said.
The current director of the SBI crime lab (now known as the North Carolina State Crime Laboratory) is Joseph R. John, Sr., a retired judge with no apparent forensics training. He is assisted by two deputy directors who have science backgrounds. “After spending months talking with individual analysts, viewing their work and reading comments from judges and attorneys regarding their testimony in court, I feel confident that lab scientists are focused upon analyzing the approximately 43,000 cases received annually in a responsible, accurate and ethical manner,” John wrote in a September 2011 editorial, while acknowledging past problems at the lab in “cases from the 1980s and 1990s.”
SBI analyst Duane Deaver was charged with contempt by the Innocence Inquiry Commission for giving false and misleading testimony, and fired in January 2011. He appealed. “I think I was treated unfairly, and I’m going to prevail,” Deaver insisted.
Indeed, on September 14, 2011, a state court judge dismissed the contempt charge as part of a mediated settlement agreement. Deaver acknowledged “the confusing nature of his testimony, and ... how the Commission could have been misled”; in exchange, the contempt charge was dropped.
Sources: Raleigh News & Observer, Charlotte Observer, Greensboro News-Record, Winston-Salem Journal, Ashville Cit-izen-Times, Huffington Post, www.wwaytv3.com, CNN, www2.journalnow.com, www.heraldsun.com, www.wral.com
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Related legal case
Goode v. Branker
|Cite||U.S.D.C. (E.D. NC), Case No. 5:07-hc-02192-H|