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Tuesday, December 14, 2010

Roy Cooper's North Carolina SBI Lab Changes Yet To Come: Imprisoning Black Men

North Carolina's SBI Lab Transformation Moving Far Too Slowly

One day last summer N.C. Attorney General Roy Cooper faced a bank of cameras and vowed to make reforms and change practices to restore the reputation of the State Bureau of Investigation and in particular to clean up significant problems at the SBI crime lab.

It was an impressive performance. Cooper had commissioned an audit of the agency's practices, brought in former FBI agent Chris Swecker to examine the lab's blood analysis unit and released information that showed hundreds of defendants may not have gotten a fair chance in court to prove their innocence. The audit's findings backed up investigative reporting by the News & Observer of Raleigh, and Cooper vowed to act on a number of fronts to fix the problems. Now there is new leadership at the crime lab and at the head of the SBI.

Yet an update last week indicated that the SBI's transformation has moved slowly. Some of the changes Cooper promised, including posting SBI lab policies on the Internet, have yet to be made. Other promised reforms now appear to be under internal debate, the N&O said. And state prosecutors who had asked for a full-scale audit of the crime lab are disappointed with the slow response.

What's more, an SBI lab analyst who has been suspended from case work said in court last week she had little interest in the FBI agent's scathing report on lab practices, including the withholding of test results favorable to defendants in more than 200 investigations. She described them only as one person's conclusions, and declined to say why she had not read the report.

Her testimony came in a hearing for Derrick Allen, who had served 12 years in prison on murder, sex assault and child abuse charges. Allen has always maintained he was innocent. He said he agreed under pressure to a plea deal only because he feared the death penalty. Allen's lawyer argued the state withheld blood test results, polygraph tests of a witness and other information that would have helped Allen defend himself.

Last week Superior court Judge Orlando Hudson dismissed the case against Allen and threw out all charges. He said the SBI's withholding of evidence was "extremely disturbing" and said Allen's rights had been violated by the crime lab's work.

While Cooper has taken steps to restore the SBI's reputation and make sure that its practices are based on a pursuit of truth and not just on convictions, Allen's story and those of other defendants wrongly convicted in North Carolina's courts demand swifter and firmer action. We must not tolerate a criminal justice system that condones withholding evidence, tampering with confessions, manufacturing of bogus scientific tests to support predetermined conclusions and otherwise trampling on the rights of the accused to defend themselves in court.

Fixing North Carolina SBI Lab Will Cost Money

Restoring the credibility of the North Carolina State Bureau of Investigation's crime laboratory after a blistering review of the lab's policies and procedures will cost the state, officials said Thursday.

An independent review found 190 cases that resulted in convictions from 1987 to 2003 in which SBI agents in the crime lab's blood-stain analysis unit omitted, overstated or falsely reported information about blood evidence.

Since the report was released last month, the crime lab director has been replaced, and Attorney General Roy Cooper has ordered audits of other parts of the lab. Defense attorneys say they will question the credibility of the SBI in court, and some lawmakers have said that they lab might need to be removed from SBI control.

"I was heartened by the actions that were taken, but it's also clear we have a long way to go," Rep. Rick Glazier, co-chairman of a special legislative committee looking into policy and procedure issues at the SBI, said Thursday.

The Joint Select Study Committee on the Preservation of Biological Evidence was formed last year to examine more technical evidence-preservation procedures. The committee, which also includes current and former district attorneys, court administrators and law enforcement authorities, heard Thursday from Cooper, new SBI Director Greg McLeod and Chris Swecker and Mike Wolf, the two former assistant FBI directors who conducted the independent review.

The committee expects to recommend changes in SBI operations to the General Assembly, which reconvenes in January. Glazier, D-Cumberland, said lawmakers should be prepared to spend money to carry out any needed reforms.

"The costs of not doing that are far greater than whatever those costs are going to be," he said.

McLeod said more training and more personnel will probably be needed to correct the deficiencies.

Cooper said it's too early to address the issue of an independent crime lab.

"I think that's an issue for tomorrow. That's an issue for the next legislative session. Today, I'm concentrating solely on fixing the problems," he said.

"We don't have all of the facts yet," he continued. "We haven't looked at all the other states and compared it to what North Carolina is doing. The key right now is for us to concentrate on the problems and get those problems fixed as quickly as possible and making sure the work that is done at the SBI is accurate and fair."

Both Democratic and Republican lawmakers say, however, that making the crime lab independent could remove perceptions that lab workers are aiding prosecutors seeking evidence to build their cases. Twelve other states already have independent crime labs.

“There is a cloud hanging over the SBI, and the only way to remove that cloud is to remove the crime lab from the SBI,” Senate President Pro Tempore Marc Basnight said in a statement this week.

"This is simply inexcusable," Rep. Nelson Dollar, R-Wake, said when the report was released in August. "We have to consider whether or not the SBI should remain under the Attorney General's Office or whether it should be an independent agency."

The special committee's co-chair, Sen. Ed Jones, said that quality control is his top concern. He suggested that another approach could be for other people in the SBI lab to double-check reports for accuracy.

“I’m open to any suggestions,” Jones, D-Bertie, said Monday. “I’m going in with an open mind to find out what happened and to keep it from happening again.”

House Minority Leader Paul Stam, R-Wake, a committee member, said he wants more information before deciding on lab independence but said there has to be some working relationship between lab workers and law enforcement because their charge is to solve crimes with integrity.

“These are the practical problems,” Stam said. “We want the final work product of the SBI lab to be beyond reproach all the time.”

North Carolina's SBI Lab Culture Resists Change

After an Independent Audit found that the North Carolina State Crime Lab had withheld or misreported test results in more than 200 cases, Attorney General Roy Cooper promised to change the culture at the State Bureau of Investigation.

"The lab cannot accept a lack of thoroughness,"Cooper said in August. "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." He and SBI Director Greg McLeod have vowed to fix problems throughout the bureau highlighted by a News & Observer series.

Cooper has a long way to go, as shown by the events that unfolded late last week in two courthouses across the state.

In Durham, a lab analyst testified that she viewed the state as her client, casting doubt on assertions that the lab serves both the state and the defense.

A defense lawyer complained that the SBI lab refused to answer a simple question in a 12-year-old murder case: Did the SBI lab still have possession of critical evidence?

In Charlotte, lawyers for the SBI downplayed allegations that an SBI agent had caused a mentally disabled man to be jailed for 14 years on a fabricated confession; they said it really didn't matter whether the SBI agent "elaborated" or "augmented" or even "smoothed out" the alleged confession.

But perhaps the biggest challenge toCooper's call to accept criticism and suggestions from outside the bureau came from testimony given by one of his agents.

No admission of error

SBI agent Jennifer Elwell, testifying in Durham about the case of Derrick Allen, rejected the audit that Cooper has embraced while admitting she had only read bits of it. She criticized the two former FBI supervisors who did the work, saying they didn't understand forensic science.

She refused to acknowledge that either she or SBI policy was in error, but Superior Court Judge Orlando Hudson ruled otherwise. He threw out charges that Allen killed and sexually assaulted 2-year-old Adesha Artis and specifically cited how Elwell's report was used to extract a guilty plea from Allen.

In 1998, Allen was charged with the murder and sexual assault of his girlfriend's daughter. The lead prosecutor said in court that the "most significant" piece of evidence in the case was the girl's "bloody panties."

Elwell conducted presumptive tests that indicated the stains could be blood. She ran two confirmatory tests on the underwear. In a positive test, microscopic crystals form on the item to confirm the presence of blood.

Sometimes tests were inconclusive, Elwell said: "Crystals did not form; they tried to form, but nothing happened."

And sometimes the tests were negative, as in Allen's case.

Her report did not say the test was negative. It said her test "gave chemical indications for the presence of blood."

Audit's criticism rejected

Elwell rejected all criticism of her work, saying the audit was just one person's opinion and not the opinion of the scientific community.

Allen's lawyer, Lisa Williams, asked whether the attorney general had hired two incompetent auditors.

"I am not going to speak for the attorney general," Elwell said. "If you like, you can call him and subpoena him and ask him."

During the hearing, Williams complained about how the SBI lab refused to answer simple questions.

Earlier this year, a private investigator for Allen called the lab to ask whether it still possessed evidence collected in 1998: the rape kit items collected from the girl and samples taken from Allen.

Williams said employees at the lab refused to answer.

The hearing in Durham also touched on the issue of whether the laboratory is independent or whether it tips the scales of justice in the courtroom by favoring prosecutors and police over defendants. A benchmark national report on forensic science has recommended that labs be removed from the control of police or prosecutors.

Different views of Agency's role

Joe John, interim director of the SBI crime lab, said his impression after a month on the job was that lab workers were not puppets of law enforcement. Lab analysts universally told him they believed "their customer was the criminal justice system as a whole."

But Elwell identified a different client Friday. She said the lab was drawing new guidelines to provide "a stricter standard of customer service for our client, that being the state of North Carolina."

Williams, Allen's lawyer, said the misconduct in Allen's case hurts everyone: Her client didn't get his day in court and neither did the victim and her family.

"If everyone does their job well, 12 jurors get to decide," Williams said. "Mr. Allen will not get an opportunity to be declared innocent by a jury" and Adesha's family won't know who's responsible for her death.

On Friday in Charlotte, lawyers for the SBI tried to win dismissal of a lawsuit filed by Floyd Brown, a mentally disabled man jailed for 14 years on murder charges. Brown's lawyers contend that SBI agent Mark Isley fabricated an elaborate six-page confession.

Defense says SBI Leaders Failed

If the state gets the case thrown out, Brown's attorney cannot inspect internal records at the Attorney General's Office to determine exactly what former SBIDirector Robin Pendergraft and other supervisors knew about Isley's actions, and when they knew it.

David Rudolf, Brown's lawyer, said the SBI had a track record of ignoring problems with agents and promoting them instead. He said that reflects a failure of leadership from Pendergraft and others.

"This went on for years under her watch," Rudolf said. "She enabled this kind of conduct to go on by not taking steps to stop it." Attorney General Cooper removed Pendergraft as director in late July, moving her to another job. Isley, the agent in Brown's case, hasn't seen any change in his job as a result of the lawsuit.

Last week, SBI leaders reiterated that they are moving methodically to carry the changes recommended in the audit.

After the audit, which included 32 of Jennifer Elwell's cases, she was prohibited from examining more cases at the lab. She is now helping rewrite lab policies.

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Sources: McClatchy Newspapers, WRAL, Google Maps

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