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August 18, 2010
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FBI says blood evidence flaws may have led to 3 SC executions

Overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions and another where two men were convicted of killing Michael Jordan's father

By Martha Waggoner
Associated Press

RALEIGH, NC — Analysts at North Carolina's crime lab omitted, overstated or falsely reported blood evidence in dozens of cases, including three that ended in executions and another where two men were convicted of killing Michael Jordan's father, according to a scathing independent review to be 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 Associated Press obtained the review of blood evidence in cases from 1987 to 2003 in advance of the report's release.

It calls for a thorough examination of 190 criminal cases, stating that, at times, "information that may have been material and even favorable to the defense of an accused defendant was withheld or misrepresented."

The report does not conclude that any 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.

The review by Chris Swecker and Mike Wolf, two former assistant directors of the Federal Bureau of Investigation, found 230 cases in which eight SBI analysts filed reports that, at best, were incomplete. Of those, 190 resulted in criminal charges and should be reviewed.

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 a long-held skepticism by defense attorneys, who have alleged the ostensibly neutral 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 contradict 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 "poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight."

The review 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.

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 that 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.

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

Among the report's recommendations are: automation of historical lab files; posting of lab policies and other rules on a public website; and the appointment of an ombudsman to review lab issues or mistakes.

In addition to the Deaver cases, the review found 35 cases where a report states there were indications of blood and that no further testing was done. But handwritten lab notes reflect confirmatory tests got negative or inconclusive results.

In a third category, the review found 105 cases in which reports omitted negative or inconclusive results, instead saying there were chemical indications for the presence of blood.

The review found 85 cases in the least serious category, which involved reports that didn't mention negative or inconclusive confirmatory tests but did ultimately state that the presence of blood wasn't conclusive. In 80 of the cases, just one agent used the language.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

The state Supreme Court ruled in 1992 that lab notes are evidence that should be made available to defendants. But that didn't happen for several reasons, including a mindset, led by a section chief, that the lab's "main customer was law enforcement," the report said.
 

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