Tuesday, August 31, 2010

Truth, Justice and Forensic Evidence

by Diane Fanning

We all realize that statistics can be manipulated to prove points, that polls can be slanted by how a question is asked, that news reporting itself demonstrates bias by what the media chooses to cover, if nothing else. However, we expect forensic science to be the gold standard of truth--complete, objective, honest. We want to believe that. Learning that forensics, too, does not live up to its objective, TV-drama-polished image makes us all feel vulnerable to the vagaries of uneven justice.

North Carolina is facing that truth right now. It began with the 1991 discovery of the body of Jaquetta Thomas at the end of a cul de sac in Raleigh. In 1993, Gregory Taylor (above left) was convicted of her first-degree homicide. In February of this year, the North Carolina Innocence Commission three-judge panel exonerated Gregory Taylor in part because Duane Deaver, an SBI lab analyst who reported "chemical indications for the presence of blood" on Taylor's SUV, failed to mention in his final serology report that a more sensitive, confirmatory test for blood was negative. Taylor was released after spending nearly 17 years in prison, according to the commission, for a crime he did not commit.

In the aftermath of this revelation, the North Carolina Attorney General Ray Cooper ordered an independent review of the State Bureau of Investigation's Forensic Laboratory. The resulting report cited "serious issues about laboratory reporting practices from 1987-2003 and the potential that information that was material and even favorable to the defense of criminal charges filed was withheld or misrepresented. The factors that contributed to these issues range from poorly crafted policy; lack of objectivity; the absence of clear report writing guidance; inattention to reporting methods that left to much discretion to the individual analyst; lack of transparency; and ineffective management and oversight of the Forensic Biology Section from 1987 to 2003."

The report strongly stated that it "did not conclude, and the reader should not assume, that each case resulted in a wrongful conviction." We can only hope that is true. Of the 15,419 lab files reviewed, 230 cases were identified as containing lab reports that mentioned positive presumptive tests results but omitted the results of more sensitive tests.

In 40 of the cases, no suspect was ever charged. In another 20, the charges were dismissed or the defendants received a not guilty verdict. In those remaining, 249 individuals were convicted of crimes. Eighty are still serving sentences -- including four now sitting on death row. Additionally, five inmates died in prison and three were executed by the state. District Attorneys in the appropriate jurisdictions now have an itemized listing of the cases in question and a charge to investigate the circumstances in each conviction. 

The cases were divided into four categories. In the fourth and most serious group, confirmatory tests were over-reported or not reflective of the results contained in the lab notes. Only five of the cases landed in this category and all of them were handled by Special Agent Duane Deaver (right). 

It seems that Deaver is being painted as the chief villain in this mess. He has been relieved of his duties while an investigation looks into his actions. But did he really perform any differently than others? Or was Deaver simply following the procedures and policies as required to maintain his job?

As for the present and the future, the report pointed out that the review "focused mostly on historical practices and policies that are no longer in use..." and that as of March 2010, complete SBI laboratory files are now routinely provided via online access to every District Attorney's office in the state..." enabling them "...to provide appropriate and timely discovery materials to the defense in a criminal proceeding." 

So was Deaver merely following bad guidance? My experience with him tends to make me lean in that direction. I watched Deaver testify in the Michael Peterson case in 2003 for a book (Written in Blood, February 2004). I saw him face a cross examination that felt more like a witch hunt than a quest for justice. I interviewed him at length. He seemed genuinely committed to justice.

I know that Peterson's family is now demanding a new trial based on this report even though that case was not one of the ones found faulty in the independent review. Peterson, who claimed his wife fell down the stairs, was convicted of killing her with a blow to the head. The most pivotal testimony presented by Deaver--that the point of impact was a point in mid-air--was confirmed by the defense witness, Dr. Henry Lee. Other evidence, like forensic pathologist Deborah Radisch's testimony about red neurons, was far more compelling. 

Nonetheless, I imagine an appeal will be filed in the Michael Peterson case. And I suspect many other defense attorneys will pile on to that bandwagon in an attempt to discredit every piece of forensic evidence that ever came within walking distance of Deaver. 

Although I applaud all the efforts to dig into the 230 cases in question and find the truth, and although I suspect those investigations will lead to additional wrong and/or dubious convictions, I am not ready to demonize Special Agent Duane Deaver. It seems the system created these circumstances, and the blame cannot be laid at the feet of one individual -- it belongs to the bureau that created the system. Deaver looks more like a scapegoat than the devil to me.

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