A tarnished gem

A scathing audit of the SBI’s crime lab that alleged analysts mishandled evidence in high-profile cases dating back to 1987 has attorneys locally and across the state questioning the once-crown jewel of criminal investigations.

“The SBI is what we count on to make our cases,” said Branny Vickory, the district attorney of Judicial District 8A, which includes Greene and Lenoir counties. “I am afraid now the problem DAs are going to have is that the public are just going to blow off anything the SBI lab says for awhile until they get that mantle of respect back.”

An independent review on the SBI’s crime lab released Aug. 18 by N.C. Attorney General Roy Cooper alleges analysts reported the results of presumptive tests which yielded “positive indications for the presence of blood” but omitted the results of subsequent confirmatory tests where the results were “negative” or “inconclusive.”

Cooper requested two former FBI inspectors, Chris Swecker and Michael Wolf, conduct a review of the lab’s Forensic Biology Section after the N.C. Innocence Commission in February absolved Gregory Taylor, a Wake County man imprisoned 17 years for murder.

Swecker and Wolf identified 230 cases, out of the around 900 they examined in their report, where SBI crime lab agents misreported the results of forensic tests for the presence of blood, an error rate close to 25 percent.

SBI abuse

In these cases, Swecker and Wolf found numerous cases, including as many as 10 in Greene and Lenoir counties, in which SBI agents wrote reports that suggested a substance was or could be blood when, in fact, subsequent and more sophisticated testing revealed it was not.

In addition, Swecker and Wolf conducted a limited review of the SBI lab’s DNA section, which consisted of five cases they found “serious errors on the part of DNA analysts.”

Only one of the 10 connected cases tried in Greene and Lenoir counties has witnessed any action.

Due to the uncovering of DNA and blood evidence the original defense attorney of Christopher Foye, William Gerrans, filed to appoint new counsel to represent Foye, serving a life sentence in Vanceboro’s Eastern Correctional Institution for the 1991 bludgeoning death of Bobbie Jean King Morgan.

Gerrans said in his petition — approved by Superior Court Judge Paul Jones — that “Foye was not provided with discovery regarding DNA testing or any blood analysis” done by the SBI lab in 1991 and that “he would have never advised Foye to avoid a capital trial and plead to second-degree murder if (the defense) would have been provided with the information in the Swecker-Wolf report.”

“I have personally seen SBI abuses in cases,” Gerrans said. “It has been their institutional attitude in many ways for a long time.”

Although Swecker and Wolf’s report was limited, Gerrans feels it revealed systematic flaws in the review of physical evidence that could implicate all analysis performed in the SBI lab.

The Kinston trial lawyer, now of Gerrans, Foster and Sargeant, P.A., said the report raises serious issues about laboratory reporting practices from 1987-2003 and the potential that material and even favorable information to the defense or criminal charges was withheld or misrepresented.

He stated in his motion to Jones — who appointed Chapel Hill attorney Kristin Parks to work Foye’s case — factors that contributed to this error in the system range from poorly crafted policies, lack of objectivity and transparency, absence of clear report writing guidance, inattention to reporting methods that left too much discretion to analysts and ineffective management and oversight.

“It disturbs anyone who works in the criminal justice system,” said Gerrans, who has a second case listed in the report. “No prosecutor wants to think they relied on shaky or even questionable evidence to put someone away forever. I certainly hate to think that happens to one of my clients.”

Gerrans, along with Parks wonders in how many other cases analysts possibly misguided defendants and their attorneys.

“The scary thing is thinking about how many times this has happened across the sate and how many times a case may have to be reopened to look into what has happened,” said Parks, who intends to begin reviewing Foye’s file in the next couple of weeks. “It is not just this section of the lab. There are several sections of the lab that have some significant problems that cross into all kinds of cases. This is something that has gone on for a long time and I hope that the group formed to look at how to make the SBI lab work better in the future has some good recommendations.”

Fixing the problem

Cooper has since appointed a new director of the SBI, Greg McLeod. McLeod has fired Jerry Richardson, the chief of the SBI Crime Lab since 2002, and ordered three veteran blood and DNA analysts to step away until he investigates their parts in a 16-year practice of withholding critical evidence in lab reports.

Vickory said he will review each case from Judicial District 8A mentioned in the report and compare the SBI’s lab and field files to decide the significance of the withheld evidence, if the court should reopen the case and maybe take it back to trial.

“If there is anything that stands out and suggests somebody is not guilty of the crime, I would come immediately before the court and bring it to their attention,” Vickory said. “If I found evidence I felt showed we wronged a person, I could ask the court to set aside a conviction.”

Vickory said exoneration could take a felony off someone’s record and possibly give some restitution from the state to any defendant proven to be wrongly accused.

Unlike some highly skeptical defense lawyers, Vickory does not harbor ill will towards SBI blood analysts. He said they were just following reporting policies in place at the lab back then, which dictated — in an effort to synthesize bench notes to a one to two page report — analysts did not have to report a substance on an item as blood unless they got a confirmatory test.

“It doesn’t mean a person is not guilty because that information was not given to defense attorney. It means it was a bad practice in those days,” Vickory said.

Vickory said he did not understand that protocol, but also noted a negative confirmatory test could also mean did not have enough blood in a sample to confirm it was blood, even though common sense suggested a sample recovered from a blood-ridden crime scene was blood.

Vickory said prosecutors rarely use blood analysis anymore as DNA technology introduced at the turn of the century has increased investigators’ ability to link a suspect to a crime. With blood, it’s 95 percent accurate, whereas, with DNA, it’s nearly 100 percent.

“The SBI is being made out to be these devils or antichrists, but I don’t think they tried to stick an innocent person in prison,” Vickory said. “They could be (an) antichrist trying to pin something on somebody or it could be his or her opinion there was not enough sample to get a confirmatory test. The bad thing is they did not report it out that way.”

Vickory feels good about the improvements Cooper has made so far to the SBI, but he wants Cooper to do a complete review for every section of crime lab.

“I just have not been able to buy into the fact they are cheaters, liars, thieves or crooks, but at the same time I really have my eyes open at the way they were reporting these things,” Vickory said of the SBI. “All of this could have been solved, every bit of it. If it was a mistake, somebody, the defense lawyers or the prosecutors, would have picked it up if we had been able to understand the way those bench notes looked.”

Wesley Brown can be reached at 252-5591-075 or wbrown@freedomenc.com.