North Carolina's Lab Work Comes Under Scruitny

Presented By

Bonnie M. Wells

August 19, 2010

Asheville

CITIZEN-TIMES

Report Slams North Carolina's State Bureau Of Investigation's Lab Work

RALEIGH — Analysts at North Carolina's crime lab omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions — one of a Graham County man — and another where two men were convicted of killing Michael Jordan's father, according to a scathing review released Wednesday.

The government-ordered inquest by two former FBI officials found that agents of the State Bureau of Investigation repeatedly aided prosecutors in obtaining convictions over a 16-year period, mostly by misrepresenting blood evidence and keeping critical notes from defense attorneys.

The review of blood evidence in cases from 1987 to 2003 by two former assistant directors of the FBI calls for a thorough examination of 190 criminal cases, stating information that could have helped defendants was sometimes misrepresented or withheld.

“It impacted the decisions that were made — it could have,” report author Chris Swecker said Wednesday. “Let me step back and make sure you understand: It could have resulted in situations where information that was material and favorable to the defendant was not disclosed.”

The state lab processes evidence for agencies across Western North Carolina including the Buncombe County Sheriff's Department.

“It does cause concern; hopefully, none of our cases will be affected by this,” said Buncombe County Sheriff Van Duncan.

One of the cases flagged in the report was the case of John Hardy Rose, of Robbinsville, who was convicted of first-degree murder in 1992 and executed in 2001 for the slaying of Patricia Stewart in Graham County.

Stewart's body was found on Jan. 16, 1991. She had been stabbed in the head and strangled, and her body was set on fire and buried in a shallow grave in Rose's grandmother's property near Lower Wolf Creek in eastern Graham County.

An SBI analyst reported that an item in the investigation gave chemical indications for the presence of blood and said that there wasn't enough quantity in the stain to test further. In fact, the analyst had conducted two followup tests, one of which was negative and one of which was inconclusive. Neither was reported.

Rose confessed to the slaying; testing on other items found in Rose's car revealed blood consistent with victim Patricia Stewart.

The report does not conclude that innocent people were convicted, noting the evidence wasn't always used at trials and defendants may have admitted to crimes. But it states prosecutors and defense lawyers need to check whether tainted lab reports helped lead to confessions or pleas.

Attorney General Roy Cooper ordered the review in March after an SBI agent testified the crime lab once had a policy of excluding complete blood test results from reports offered to defense lawyers before trials. The existence of the policy was later confirmed by a former SBI director. Agent Duane Deaver's testimony led to the exoneration of a murder convict imprisoned nearly 17 years.

Cooper said Wednesday that he will send the cases cited in the report back to the counties where they were tried for review. “This report is troubling. It describes a practice that should have been unacceptable then and is unacceptable now,” he said during a news conference.

The review found 230 cases in which eight SBI analysts filed reports that, at best, were incomplete. Of those, 190 resulted in criminal charges. The report says the lab may have violated federal and state laws mandating that evidence favorable to defendants be shared with their lawyers. It also bolsters defense attorneys' long-held argument that the lab is in the pocket of law enforcement.

Besides the executions, the report urged a closer look at the cases of four people on death row and one whose death sentence was commuted to life.

The cases also include the 1993 murder of James Jordan, father of the NBA star, who was sleeping in his car along a highway when he was killed. Two men were sentenced to life in prison. The review states an SBI analyst reported that an examination of the scene indicated the presence of blood, but didn't say that four subsequent tests were inconclusive.

The problems detailed in the report follow similar story lines: Lab results that contradicted preliminary tests indicating blood at a scene were routinely kept from defense lawyers. Those secondary results were in analysts' handwritten notes, but not in evidence presented at court.

The report blames the flaws on factors including poorly crafted policy and ineffective management. It recommends looking at cases that were overstated or falsely reported to determine whether mistakes were deliberate, negligent or the results of typographical errors or confusion over reporting policy. There was no written policy until 1997, according to Swecker.

“Before that, how analysts reported results depended on the analyst's subjective judgment,” he said.

The lab's operations have changed substantially since 2003, when it began using more modern blood testing. Prosecutors also now have online access to all lab files and can make them available to defense attorneys.

Deaver is linked to the five cases the report characterizes as the most egregious violations, and it accuses him of overstating or falsely reporting blood test results, including one in the case against Desmond Keith Carter, who was executed in 2002. In two of the cases, including Carter's, Deaver's final report on blood analyses said his tests “revealed the presence of blood” when his notes indicated negative results from follow-up tests. His notes indicate he got a negative result because he didn't have enough sample left for the confirmatory test.

In three other cases, the review said Deaver's reports stated further tests were “inconclusive” or “no result” while his lab notes reflected negative results.

The Attorney General's Office said Carter confessed to the crime, and the evidence in question wasn't introduced at trial, the report said.

Deaver still works for the SBI, although no longer in the crime lab. He didn't return a message left at his office, and nobody came to the door of his home Wednesday afternoon.

Swecker and co-author Mike Wolf reported they couldn't determine how Deaver's mistakes happened, and they leave open the possibility that he didn't purposely misreport results.

Attorney David Rudolf, who has represented clients who have sued the SBI, said new trials should be given in all cases in which Deaver's testimony played a significant role.

Cooper said new SBI Director Greg McLeod is implementing the report's recommendations, including automation of historical lab files; posting lab policies and other rules on a website; and an ombudsman to review lab issues or mistakes.

Comments By

Bonnie M. Wells

The above article is precisely the reason I am opposed to the death penalty as it stands today.

Oh, I'm not in favor of keeping killers, rapists, and their likes alive, but I'd rather keep them all alive than see one innocent person executed ..... or one innocent person imprisoned, for that matter.

I know it is common practice across this nation for prosecuting attorney's to use the threat of the death penality in order to gain confessions, and that too is wrong in my opinion.

Everyone is so gung ho about modern DNA and how wonderful it is, but there again, I've seen prosecutors get convictions in cases where the DNA didn't match the accused, and nothing else matched either. I'm still wondering about those cases, and probably always will be.

There is no honor in getting a conviction on an innocent person -- in fact there is great shame in it, for what it actually means is that the system that is supposed to serve and protect us, has failed miserably. If they lock up an innocent person, then they have aided and abbetted the guilty. How does this benefit anyone --- except them, of course. It guarantees them more cases in the future - more defense attorney fees, more court fees, more appeal fees --- but it does not help the citizens of our nation, and it goes a long way toward explaining the apathy and distrust that our people have in 'the system.'

A few years ago, I met a young man through one of the yahoo groups that I am a member of and we began writing to one another and discussing 'our' cases. He worked a case in England that he just couldn't let go of, while I worked several here in my area that I couldn't seem to let go of either.

It took Scott Lomax five years, but he did it. He proved that Barry George was an innocent man, and now Scott has written a wonderful report/book titled When Pathologists Get It Wrong. I'll add a link to it at the end of this page. It is well worth considering.

Also, already posted on this web site long ago, is a series of articles that run along with the above article. It is called The Justice Withheld Series by The Seattle Post-Intelligencer.

In my opinion, the defense attorney's of our nation are not without blame in this mess also. They should not depend on the prosecution to be forthcoming as far as exculpitory evidence is concerned. Any attorney worth his pay should be digging and demanding anything and everything that the prosecution has, and it should be viewed and reviewed prior to the trial. In too many cases the defense attorney's are willing to let too many things slide.

For example, I know of a case in which there were at least a dozen hairs found on a murder victim. They didn't match the victim and they didn't match the accused, so they were disregarded! Honest. No DNA testing was done except that which concluded they didn't match either person.

Meanwhile, I had another suspect .... but no one cared. He was never questioned or investigated.

There was one witness who might have been able to help the accused but the prosecuting attorney laughed at her description of a man she'd seen with a woman whom she thought was the victim, and so, she was not permitted to testify. Meanwhile, the man she saw fit the description of my suspect to perfection .... no one cared.

They got their conviction .... I'm still not convinced .... but, no one cares if an innocent man sits in prison while the guilty one continues to murder people. And all I can do is wonder .... why?

August Story Page

The Justice Withheld Series

Scott Lomax // When Pathologists Get It Wrong

Starlight Inner-Prizes.Com

Bonnie M. Wells