Wednesday 2 February 2011

Rogue Justice: Convicting the Innocent (Part I)

CNN broadcasted an hour-long documentary Rogue Justice: Hidden Evidence, an investigative report into the North Carolina State Bureau of Investigation, on Sunday, January 30th 2011. As I watched it, I was shocked and dismayed at what was going on in the state.

The government-ordered audit of the North Carolina State Bureau of Investigation found that the agency falsely reported blood evidence in dozens of cases, including three that ended in executions of three persons.

The inquiry, ordered by Attorney General Roy Cooper, found that SBI agents improperly aided prosecutors for over a 16-year period. The North Carolina justice system was shattered like glass on August 25th 2010 as an audit commissioned by Attorney General Roy Cooper revealed that the State Bureau of Investigation withheld or distorted evidence in 230 cases at the expense of potentially innocent men and women.

The full impact of the disclosure will reverberate for years to come as prosecutors and defense attorneys re-examine cases as much as two decades old to figure out whether these errors robbed defendants of justice. Some of the injustices can be addressed as attorneys bring old cases back to court. For others, it's too late: Three of the defendants in botched cases have been executed.

Duane Deaver, a veteran SBI analyst who performed the work in five particularly troubling cases, was suspended pending further investigation into his work.

According to the audit, SBI lab reports omitted or overstated important information about test results that would have been favorable to the defense. The report blames the flaws on ‘poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight.’

The state Supreme Court of the United States ruled in 1992 that lab notes are evidence that should be made available to the defense. According to the report, however, that did not happen for several reasons, including a mindset, led by a section chief, that the lab’s main customer was law enforcement and not defence lawyers.

I should add that in Canada, specifically in Toronto, Ontario, the crime lab there is one of the finest in the world. I know this because I studied forensic science at that lab back in the 1970s for nine months and later I produced and hosted a TV show on that lab. Defence lawyers can also submit material evidence to that Forensic lab for analysis. Further, in Canada, the prosecutor is required by law to disclose all the results of any investigation, be it by the police or the laboratory, to the defence without it being asked for by the defence.

Featured in the documentary were Greg Taylor, a Wake County man released from prison last year after spending 17 years in prison for a crime he didn’t commit, and Floyd Brown, a mentally retarded man that spent years locked up for a killing he had absolutely nothing to do with. In his case, he signed a confession that was actually written for him by a police officer and he was convicted solely on his confession and not on any evidence linking him to the murder of his mother. It was later established that as a man with the level of intelligence of a seven-year-old, he couldn’t have written the confession that had been written by a very intelligent man, to wit: the police officer.

"This report is troubling," said Cooper, who oversees the SBI. "It describes a practice that should have been unacceptable then and is not acceptable now."

The revelation came after a five-month review in which two former FBI agents pulled dusty case files from shelves to find the truths that analysts chose to keep to themselves. The two former FBI agents, Chris Swecker and Mike Wolf, examined more than 15,000 cases at the invitation of Cooper, a Democrat who has been attorney general since 2001. The exoneration of Greg Taylor, a Wake County man imprisoned 17 years for a murder he didn't commit, prompted the review. SBI analyst Duane Deaver admitted in February that he failed to report tests indicating a substance on Taylor's SUV was not blood. Deaver, who was suspended Wednesday, said that his bosses told him to write reports that way.

He was telling the truth. Swecker determined that the practice of not reporting results of more sophisticated blood tests was sanctioned by some analysts. In 1997, it became written policy. That policy remained in effect as recently as 2003.

Swecker said his findings signaled potential violations of the U.S. Constitution and North Carolina laws by withholding information favorable to defendants. Swecker stopped short of determining whether the hidden results affected guilt or innocence in the cases he examined; often there was other evidence in the cases that linked defendants to the crimes. Still, the withheld information could have made a difference in the sentences handed down.

"This is mind-boggling," said veteran Wayne County District Attorney Branny Vickory. "It is really a nightmare for everyone. I don't know how we are going to make this right." If the three men who were executed were innocent because they were framed by the police or the prosecutor with the assistance of the North Carolina State Bureau of Investigation, then their deaths can never be made right.

The News & Observer reported in a series, Agents' Secrets, that analysts across the laboratory push past the accepted bounds of science to deliver results pleasing to prosecutors. If this is so, then they are out of step with the larger scientific community and have fought defense attorneys' requests for additional information needed to review the SBI's work. Cooper last month dismissed SBI Director Robin Pendergraft after she struggled unsuccessfully to answer questions about SBI cases and policies.

"This is such a damning indictment on the SBI," said Staples Hughes, the state appellate defender, whose office oversees appeals of all defendants convicted by juries. "Why didn't they just say 'we lied.' That's what they did. Sadly, I'm not surprised."

Prosecutors and defense attorneys are scrambling to review the 230 problem cases cited in Swecker's report. At least 80 defendants are still in prison, a top priority for Prisoner Legal Services, said executive director Mary Pollard.

Swecker's report paints a picture of a renegade unit at the SBI crime lab acting without rules and with misguided notions about the science behind blood analysis. He found policies and practices out of step with the rules of serology. They were also far afield of fairness.

In serology, police used rudimentary presumptive tests at crime scenes to determine where blood might be. Those tests are fallible, prone to giving false positives. So analysts have the means to depend on more sophisticated, confirmatory tests to determine whether a substance is, in fact, blood.

Before 1997, the serology unit operated without report-writing guidelines. Analysts set their own criteria until 1997; that policy sanctioned the practice of not reporting negative or inconclusive results of confirmatory tests."There was anecdotal evidence that some Analysts were not objective in their mindset," Swecker wrote.

Tests used to confirm the presence of blood never yield ‘inconclusive results’, Swecker noted. Two analysts interviewed for the report told Swecker that despite volumes of warnings about the potential for false positives on presumptive blood tests, they didn't believe it because they had not gotten a positive result when testing plant material and bacteria known to signal false positives. Those two analysts believed that positive presumptive tests were absolute indications of blood. Eight analysts were involved in these bad practices. Some are dead and a few are retired. Four still work for the SBI, and another performs contract work for the agency.

Behind the five cases Swecker deemed most problematic: Deaver, a 23-year veteran of the agency. New SBI Director Greg McLeod suspended Deaver on Wednesday, pending further investigation.

The cost of these errors was tough for lawyers to comprehend. "This report reveals staggering lack of competence at the lab," said Mike Klinkosum, a Raleigh lawyer who represented Taylor in February and helped discover Deaver's withheld test results. "It's an abomination of the criminal justice system and an affront to all the decent law enforcement officers out there doing their jobs."

Cooper delivered copies of the report and a list of affected cases to district attorneys across the state little more than an hour before announcing his findings to the public. At least one met the findings with anger.

"We've been out here asserting things as fact that just weren't," said John Snyder, district attorney of Union County. "Now, when I've got jurors coming in, I've got to enter into a whole line of questioning I never should have been forced to do. They won't trust us." Snyder, called for an independent audit of the entire crime lab.

Cooper promised a more independent review would follow and that McLeod, the new director, would bring in experts. "The lab cannot accept a lack of thoroughness," Cooper said. "It cannot accept attitudes that are not open to the possibility that a mistake has been made. It cannot ignore criticism and suggestions from the outside."
The attorney general was aware of problems in the crime lab as early as 2005 when he wrote a letter to the director of the lab on May of that year in which he said in part;

“The purpose of this letter is to advise you of a discrepancy in casework by an analyst with the North Carolina Bureau of Investigation Crime Laboratory. The evidence in this case was received on October 18th 2002 and assigned to an analyst in the Forensic Biology Section. During the course of the analysis, the analyst extracted DNA samples of the suspect and victim and switched the samples. These samples were used in the analysis to conclude incorrectly that the suspect was the source of blood found at the crime scene.” unquote

The analyst was forced to retire but was his mistake done as a direct result of carelessness or was it done on the instructions of the law enforcement officers or the prosecutor?

Deaver's work - and the practices of the SBI - came under fire in February when Greg Taylor, a Wake County man, Greg Taylor was exonerated after 17 years in prison. Deaver withheld results of more sophisticated blood tests that yielded negative results. He reported to prosecutors that Taylor's SUV gave chemical indications for the presence of blood.

Deaver testified in February that supervisors told him to report his findings that way. According to the audit released Wednesday, the practice was widespread. Eight analysts completed their reports in a similar fashion.

"This is a damning indictment of the entire serology section," said Mary Pollard, executive director of Prisoner Legal Services. Her agency will begin reviewing the cases of 80 defendants who are currently in prison. "It is absolutely horrifying."

The criminal convictions or sentences of three people who have since been executed in North Carolina, and four more cases in which the defendants are now on death row, may be in doubt because of flawed reports.

Chris Swecker, a former FBI agent who audited serology work from 1987 to 2003 said in the report that the questionable work is the result of "poorly crafted policy; lack of objectivity; the absence of clear report writing guidance; inattention to reporting methods that left too much discretion to the individual Analyst; lack of transparency; and ineffective management and oversight."

According to the review, the cases involved SBI lab reports that were overstated, misleading or omitted important information about negative test results that would have been favorable to the defendants. The SBI's lab work is often powerful evidence in criminal cases, shaping decisions at the heart of a defense that include decisions about plea bargaining or how to cross examine witnesses.

The SBI has subsequently followed more updated procedures on blood analysis since 2003, and more recent work is not under scrutiny. "The tests that are examined in the bulk of this report are no longer in use," the agents wrote.

The serology unit has been under intense scrutiny since February when, in the case of Taylor, it was shown that SBI agent Duane Deaver reported to prosecutors that the fender of Taylor's SUV gave chemical indications for the presence of blood.

But according to lab notes discovered in 2009, Deaver had performed more specific tests, which registered negative results for the presence of blood. He never mentioned those results or the additional tests; at Taylor's hearing in February, Deaver testified that his superiors taught him to write his reports like that. The new report says that Deaver gave "inaccurate" testimony before the Innocence Commission in the hearings that resulted in Taylor's exoneration when he testified that he was following policies. There were no such policies then, the report says, though it was the SBI's practice at the time to omit negative results in some cases.

It actually had became the agency's policy in 1997.

One of the defendants who has been executed is Desmond Keith Carter, who had confessed to a March 1992 murder. The report says Deaver in that case "confirmed the presence of blood despite a negative confirmatory test." In other words, there was no evidence that blood was present. The questionable evidence wasn't introduced at the trial, according to the report. It makes one wonder why the man confessed to a murder he may not have committed.

Desmond Keith Carter (October 15, 1967 – December 10, 2002) was convicted of the 1992 murder of Helen Purdy and executed in 2002 by the State of North Carolina at the Central Prison in Raleigh.

I don’t know if the fact that a lab error was made in his case would have had an affect on the jury’s verdict but he should have been given an honest trial. In addition to the Deaver cases, the review found 35 cases where a report states there were indications of blood and that no further testing was done. But handwritten lab notes reflect confirmatory tests got negative or inconclusive results.

Preliminary, or presumptive, blood tests can give false reads; those tests often give positive results for substances such as metals, plants and animal matter. More sensitive tests are seen as confirmatory.

Swecker and Wolf examined more than 15,000 old cases involving serology work to identify the cases similar to the Taylor case.

The former agents said they could not conclude that each case had a wrongful conviction, but said each will need to be reviewed by defendants, prosecutors and, in some cases, the courts.

This will require an in depth review of investigative case which includes files that are located in the records of law enforcement departments across the state, court records, trial transcripts, laboratory files, appellate records, records of the Administrative Office of the Courts and any other relevant.

In order for justice to prevail, all parties to a trial must be honest and competent. It would appear that in North Carolina, those attributes were sadly missing in many of the cases brought to trial.

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