SBI review renews call for death penalty moratorium
Two groups called for more investigation Monday following last week's scathing report on the investigative work done by the SBI's state crime labs.
The audit revealed flawed laboratory work performed by SBI analysts in criminal cases. According to the findings, the SBI withheld evidence, which may have tainted as many as 190 cases over a 16-year time span.
Eighty of the people convicted in those cases are still in prison, four are on death row, three were executed and five died in prison.
The NAACP and the People of Faith Against the Death Penalty are just two of the organizations that participated in a joint news conference Monday in Raleigh.
The groups say the SBI review should lead to more actions by state leaders.
Backed by several death penalty opponents, NC NAACP President Reverend William Barber spoke bluntly.
He says state authorities should go beyond the SBI lab report that shows sloppy SBI lab work may have led to wrong capital crime convictions.
"We have watched several African-American men, at the last minute, be released from death row and sent out of prison doors without a dime for their time, without so much as an official apology, a collective apology, from our elected officials," Barber said Monday.
Also in attendance at Monday's news conference was Pat McCoy, the brother of murder victim Kathy McCoy. He is upset because NC Attorney General Roy Cooper announced a re-investigation of several convictions based on the lab investigation results.
"My heart goes out to victims and their families who will now have to hear that justice wasn't done, and that the case they thought was closed must be reopened," McCoy said.
He's especially worried about findings that show omission of key crime lab work during murder investigations.
McCoy says families and victims suffer as a result. "Please don't dishonor their memory by building cases based on pseudo-science, sloppy work and misconduct," he added.
FBI agents, who examined more than 15,000 cases between 1987 and 2003, found that the SBI withheld blood evidence that may have kept convicted defendants out of prison.
"The full case files of each of these cases should be reviewed by both prosecutors and appropriate defense counsel," AG Cooper said.
Barber says the findings in the report are only the beginning.
"We believe that in some ways because it's preliminary, this is only the tip of the iceberg -- he and his co-investigator audited only one of five of the SBI labs, and so there's still much more work to be done," Barber said.
Baber says he wants NC to end its death penalty policy.
"We're calling the state to reflect, to repent and then to begin a movement toward repeal and a movement toward reform," he added.
Barber and supporters of a moratorium want all six of the SBI's crime labs investigated, not only the ones that were investigated in the report.
They also want Governor Bev. Perdue to commute all death penalty sentences to life sentences while lab work for those convictions is reviewed.
Finally, the group wants does not want any additional death penalty sentences during the expanded investigation.
Questions about SBI lab free Durham man
A judge ordered the release Friday of a Durham man convicted in 1998 in the sexual assault and murder of a 2-year-old girl.
According to ABC11 archived stories, Derrick M. Allen, 31, was 19 when Durham police charged him in the death of Adesha Sikia Artis. According to the transcript of a 911 call made by Allen, he claimed the child passed out while he was getting her dressed in a home they shared off Garrett Road.
An autopsy later revealed she'd been sexually assaulted.
Allen has always maintained he was innocent, and family members said in interviews with ABC11 in 1998 that they believed someone else in the home hurt the child.
Now, an audit of SBI crime lab cases has revealed that a key piece of evidence in the case against Allen - bloody undergarments - actually tested negative for blood.
Superior Court Judge Orlando Hudson ordered Allen released without bond on Friday. A date for his new trial has not been set.
Under Fire, NC SBI Blood Analyst Suspended
Duane Deaver, a veteran SBI analyst at the center of a growing controversy on how the agency reported blood evidence, has been suspended pending further investigation.
The move came Wednesday afternoon, hours after Attorney General Roy Cooper revealed an audit of the crime lab's serology unit calling into question convictions in 230 criminal cases, involving 269 people.
Deaver performed the work in the five cases an independent auditor deemed most troubling.
Deaver's work - and the practices of the NC SBI - came under fire in February when Greg Taylor, a Wake County man, 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, are 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 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 became the agency's actual 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." The questionable evidence wasn't introduced at the trial, according to the report.
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 has 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 ... 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 material," they wrote.
Ex-SBI agent Deaver's testimony could lead to reviews
Duane Deaver's work paved the path for Michael Peterson's new trial. His testimony also could force another look at the sentences of several other convicted murderers.
Judge Orlando Hudson ruled last month that the former State Bureau of Investigation agent delivered "perjured testimony" in Peterson's 2003 murder trial, where he was qualified as an expert and testified about why he believed Kathleen Peterson died from a beating. Peterson, the former novelist convicted of killing his wife, is out of prison and headed for a new trial, pending the state's appeal.
Three cases examined by The News & Observer show conduct by Deaver similar to that presented during Peterson's hearing in December: Deaver exaggerating his experience as a bloodstain pattern analyst and using methods that experts deemed unacceptable.
In one Wake County capital murder case, Deaver testified that he discarded the measurements and notes that formed the basis for his expert opinion - conduct an expert called "totally insane."
The cases, two of them involving inmates on North Carolina's death row, do not involve questions of innocence. But Deaver's testimony was important in helping convince jurors that the defendants committed first-degree murder - which requires proof that the crime was deliberate and planned - or that their crime was brutal enough to deserve the death penalty.
Lawyers for the killers likely will file challenges.
David Rudolf, Peterson's lawyer, investigated some of Deaver's work and methods in preparing for Peterson's hearing. He has written to state Attorney General Roy Cooper, asking Cooper to open an independent investigation into bloodstain pattern analysis cases worked by Deaver and the SBI agents he trained.
Rudolf noted that in 2010 Cooper suspended the work of the SBI's bloodstain pattern analysts and confirmed that there were no written policies or procedures to govern them. The SBI eventually ended its bloodstain pattern analysis.
"All of this occurred before the evidence introduced during the Peterson hearings this month, which indicate the problems with Deaver and bloodstain analysis by the SBI are far deeper than was previously known," Rudolf wrote.
Cooper responded late last week in a letter to Rudolf, saying the internal investigation into Deaver has not stopped.
"The SBI director has informed me that the SBI is continuing this investigation into Agent Deaver's other cases and blood spatter cases in general and the SBI would be glad to accept any information which you believe would be helpful to them," Cooper wrote. "In the past, I have not hesitated to utilize outside expertise when it is warranted and I will continue to monitor these matters to determine if it is necessary."
Deaver, 52, worked for the SBI for more than 20 years before being fired last January. He has a degree in zoology, and had two outside courses in bloodstain pattern analysis. He had never joined major associations of professionals who worked in that field.
Over the past two years, a barrage of damaging information has emerged about Deaver. A Wake County man, Greg Taylor, was exonerated of murder based in large part on Deaver's work in the case. Taylor's exoneration led Cooper to contract an independent review of the lab's reporting of blood test results.
That review by former senior FBI officials found more than 200 cases where official SBI lab reports did not reflect the results obtained in the lab. It singled out Deaver as the analyst in the most troubling cases.
In August 2010, as The News & Observer was about to publish a series about problems with Deaver and other SBI agents, Cooper ended the work of SBI bloodstain pattern analysts who were trained and led by Deaver.
Deaver's attorney, Philip Isley, said his client has done nothing wrong and deserves his job back. "I disagree with Judge Hudson's decision" in the Peterson case, Isley said.
Untested science
Rudolf identified at least seven capital cases where Deaver testified about bloodstains. One was George Goode, whose death sentence was commuted to life by a federal judge who in 2009 found Deaver gave false and misleading testimony in 1993.
A review of the transcripts of three murder cases shows similarities to Deaver's conduct in the Peterson case. In each of the cases, Deaver repeated his claims about his bloodstain experience - numbers discredited by an internal SBI investigation.
In 2001, Deaver testified in the Wake County death penalty case of Sharoid Wright, who was sentenced to life in prison for stabbing a friend to death.
Wright testified at trial that he was drinking malt liquor and smoking marijuana in a Raleigh park with his friend, Roshaun Floyd. They began arguing over who should accept blame for robberies they committed the day before in Orange and Chatham counties, and started fighting. Wright testified that he was losing the fight and pulled out a knife and stabbed Floyd repeatedly.
Wright said he began driving Floyd to WakeMed hospital but panicked and dumped him on the side of Interstate 40 instead.
Deaver's expert testimony contradicted Wright. Deaver testified that he found a pattern of six droplets on the inside roof of a car, above the driver's seat. Deaver said he was able to measure the droplets and identify the precise "point of origin" of the spatter, where the weapon came into contact with the blood: "four inches forward of the back of the door, three inches inside of the automobile, and two and a half inches down from the top of automobile."
That led Deaver to conclude that at least two blows were struck in the driver's seat. That indicated Floyd was stabbed in his car, contradicting Wright's account of a fight in the park and supporting a verdict of first-degree murder.
The concept of "point of origin" has long been unacceptable in bloodstain pattern analysis, said national expert Tom Bevel, who testified at Peterson's hearing. There is no way to look at bloodstains and arrive at a precise point in space, he said. The accepted term is an area in space - for example, a sphere-shaped area with a diameter of 12 inches.
On cross-examination, Wright's lawyer, John Britt, asked Deaver for the measurements he used to calculate that precise point of origin.
Deaver didn't have the measurements and couldn't remember them.
"Our policy is that we take our notes and when our - when our report comes back, we throw our notes away, and they were destroyed."
Britt was skeptical: "You make a report and destroy the data that you use to generate the report?"
"Yes sir."
"And that's your policy?"
"Well, they were notes," Deaver said. "I mean, yeah."
SBI Director Greg McLeod backed that up last week.
"From 1999-2004, Agents were authorized to destroy handwritten notes only after they verified that their final reports accurately reflected the notes, including all exculpatory information," McLeod said in a written statement.
Stuart James, one of the country's foremost bloodstain pattern experts, said he was appalled when he read Deaver's testimony.
"It's totally insane," James said. "He's throwing away scientific data so no one can go back and replicate his work."
At trial, Wright's lawyers questioned whether Deaver could be certain that the tiny stains were indeed blood.
"Based on my experience, they're blood, and I've looked thousands and thousands and thousands of stains," Deaver said.
But Deaver acknowledged he could not be certain. He had never tested the stains.
Inflated experience
Deaver's testimony at Wright's trial caught the attention of other Wake County prosecutors, who called on him to do some last-minute work during the death-penalty phase of the trial of Fernando Garcia, who beat a Raleigh woman to death in a North Raleigh apartment complex.
"It was only after seeing you testify in State vs. Sharoid Wright days earlier that we determined that the evidence missing in our presentation could be overcome with your knowledge and your ability to educate a jury on blood spatter," prosecutor Susan Spurlin wrote later in a letter. "We thank you and credit you with the presentation at sentencing that gave us the evidence to convince a jury that Fernando Garcia is not worthy of another chance in society."
Garcia did not deny killing Juliann Bolt, a stranger who was exercising in the apartment clubhouse. Garcia told police he forced her at gunpoint into a bathroom and tried to rape her. When she fought back, kicking him, Garcia told police that he lost control.
He beat her so badly that first responders thought she had been shot.
Deaver testified in the sentencing phase, when the jury chose to sentence Garcia to death instead of life in prison. After inflating his credentials and being qualified as an expert, Deaver testified that the blood stains showed the attack was sustained and that Bolt was conscious through much of it.
Superior Court Judge Howard Manning, who presided at the trial, said he thought Deaver's testimony in the Garcia case was probably not that important to the jury, given the viciousness of the assault.
Wake County District Attorney Colon Willoughby said it was unlikely that he would reinvestigate the Wright or Garcia cases unless a defense attorney files a challenge.
'It is like Voodoo'
Deaver also testified at the 1996 trial of Angel Guevara, who was sentenced to death for the 1995 killing of Paul West, a Johnston County sheriff's deputy.
Thomas Manning, Guevara's defense attorney, objected to Deaver testifying as an expert, calling him a "purported expert" with a "purported opinion" whose scientific conclusions were based on obscure and vague foundations. "It is like voodoo," Manning said. His objections were overruled.
Guevara testified that he shot West and beat him with a rifle butt and the deputy's pistol after the deputy entered his home without a warrant. Guevara testified that the second and fatal shot occurred when he and West were struggling over the rifle.
Deaver testified again about the "points of origin" of two bloodstains. The first, 27 inches off the floor and eight inches from a wall, was consistent with a beating. The second, a fine mist low on the wall, indicated West was shot at close range while lying on his back, Deaver said.
Johnston County District Attorney Susan Doyle said the case against Guevara was overwhelming, including ballistics, hair and fiber evidence, eyewitness testimony by a second deputy and Guevara's testimony. "The testimony of SBI Agent Duane Deaver was not critical to the prosecution," Doyle said.
But SBI agent David McDougal praised Deaver's work in a 1995 letter put into Deaver's personnel file: "Duane took time last Wednesday to do a bloodstain examination which will be an important part of the evidence entered in this case as it proves one deputy was beaten while he was on his hands and knees prior to being shot execution style."
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Sources: ABC News, McClatchy Newspapers, Newsobserver, Google Maps
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