NC:SBI Analysts are Advocates for the Prosecution…

…well that is what the arti­cle below contends.

If only a quar­ter of the infor­ma­tion in the fol­low­ing arti­cle is true, it indi­cates the North Carolina foren­sic lab sys­tem is in need of an extreme overhaul.

Witness for the pros­e­cu­tion: Crime lab is loyal to law enforce­ment
SBI ana­lysts, in lock­step with police and pros­e­cu­tors, seek con­vic­tions — often at the expense of sci­en­tific truth.
By Mandy Locke and Joseph Neff

At the State Bureau of Investigation, most foren­sic sci­en­tists are cops. So are their bosses. Their bosses’ bosses are pros­e­cu­tors, the chain stop­ping at Attorney General Roy Cooper, the state’s top lawyer.

This arrange­ment often forces ana­lysts to become advo­cates, in lock­step with police and pros­e­cu­tors, shap­ing evi­dence needed to deliver a conviction.

Inside the lab, which pro­duces foren­sic sci­ence analy­sis for police and sher­iffs, ana­lysts push past the accepted bounds of sci­ence, a (Raleigh) News & Observer inves­ti­ga­tion reveals. The prob­lem is preva­lent, a review of lab pol­icy, pro­ce­dures and ques­tion­able deci­sions in at least a dozen cases shows.

The work of the SBI crime lab has been under fire since February, when Greg Taylor, an inno­cent man, was freed after judges learned an SBI serol­o­gist with­held cru­cial evi­dence that proved a stain on Taylor’s SUV wasn’t blood.

Problems at the lab run deeper than blood. State law puts sci­en­tists at the lab on the prosecution’s team, instead of assign­ing them as inde­pen­dent seek­ers of fact. Analysts some­times don’t run DNA or blood tests that might threaten pros­e­cu­tors’ the­o­ries. And they shield them­selves from scrutiny, fight­ing against turn­ing over records and for­bid­ding defense experts to observe their work.

Heather Coyle is a DNA expert who worked in Connecticut’s crime lab before tak­ing a pro­fes­sor­ship at the University of New Haven. She started rais­ing ques­tions about the SBI after being hired by defen­dants to review the North Carolina lab’s work.

“Science tells us ‘when in doubt, let go,’” Coyle said. “The SBI’s phi­los­o­phy is ‘when in doubt, con­vict.’ What they do is hardly science.”

Such bias is not sur­pris­ing, given that the lab is con­trolled by a law enforce­ment agency; North Carolina is one of 38 states where the lab reports to police or pros­e­cu­tors. In 2009, the nation’s most renowned sci­en­tists warned against such a setup in a wide-ranging study that included dozens of top lawyers, pro­fes­sors and judges.

One of their top rec­om­men­da­tions: Forensic sci­en­tists shouldn’t report to law enforce­ment or prosecutors.

“The best sci­ence is con­ducted in a sci­en­tific set­ting as opposed to a law enforce­ment set­ting,” said the report from the National Academies, which advises on sci­ence, med­i­cine and engi­neer­ing. “Forensic sci­ence serves more than just law enforce­ment; and when it does serve law enforce­ment, it must be equally avail­able to law enforce­ment offi­cers, pros­e­cu­tors and defen­dants in the crim­i­nal jus­tice system.”

In North Carolina, defense attor­neys, cit­ing prej­u­dice and slop­pi­ness by SBI ana­lysts, often seek their own costly experts to exam­ine evi­dence. Many inde­pen­dent experts, like Coyle, find grave mis­takes. The cost of that extra review often falls to taxpayers.

The lab, with its pri­mary loca­tion in Garner, costs tax­pay­ers $12.7 mil­lion a year and employs 181.

Attorney General Cooper, a Democrat, said that the lab is where it needs to be and that poli­cies can safe­guard against bias. He said remov­ing the lab from his con­trol would make it more dif­fi­cult for some lab units to get crit­i­cal law enforce­ment data.

“You don’t want to hob­ble law enforce­ment by remov­ing key tools such as tech­nol­ogy to pre­vent them from solv­ing crime,” Cooper said.

Meanwhile, juries have sent some defen­dants to prison with slanted foren­sic reports. The wrongly con­victed, such as Taylor, won­der what they did to deserve prej­u­dice from the state’s scientists.

“My hope would have been that the SBI just took a per­sonal vendetta against Greg Taylor and tried to do this to me and nobody else,” Taylor said. “Deep down, I kind of felt this wasn’t the case. I didn’t want it (to hap­pen) to 100 peo­ple or 10 peo­ple or two peo­ple. I didn’t want any­one else to go through this.”

Helpful hints

For every case the SBI works, police deliver a set of clues along with boxes and envelopes of evi­dence from the crime scene. They offer a story of sorts, a set of assump­tions made early in an investigation.

It’s a faulty arrange­ment, accord­ing to the National Academies report, one that col­ors which tests are per­formed and their results. The dia­logue between police and SBI lab ana­lysts con­tin­ues for months.

“We encour­age our ana­lysts to call local law enforce­ment and say, ‘Tell us what you got, what’s going on with the inves­ti­ga­tion,’” said Jerry Richardson, direc­tor of the lab.

Analysts are expected to log calls with police and pros­e­cu­tors. Sometimes those calls don’t get noted. Memories of infor­ma­tion swapped get foggy.

In 2009, SBI ana­lyst Russell Holley was called to Durham dur­ing a pre­trial hear­ing to explain why he chose not to test for blood on sev­eral pieces of evi­dence col­lected at a con­ve­nience mar­ket where a clerk had been slain. Holley had not even opened the pack­ages in which Durham police had shipped the blood sam­ples. Without his test to cer­tify the sam­ples were prob­a­bly blood, ana­lysts wouldn’t per­form DNA tests to deter­mine whose blood it might be.

Lisa Williams, who rep­re­sented the defen­dant in the case, said the blood might have pointed to another assailant and wanted to know the results. She found it curi­ous that Holley chose not to test the evidence.

During a 2009 hear­ing, Williams asked whether Holley had talked to a Durham police detec­tive, accord­ing to a tran­script. Holley acknowl­edged he had talked with Durham police but couldn’t remem­ber what they had dis­cussed. Holley did not log the details of those con­ver­sa­tions, as required.

“I’ll never know if he was advised to not look into that evi­dence,” Williams said. “You can’t help but wonder.”

A jury later con­victed the defen­dant, Keith Kidwell, of first-degree murder.

Cooper defended com­mu­ni­ca­tion between law enforce­ment and ana­lysts, say­ing that he expects them to stay in con­tact to bet­ter solve crimes.

Analysts are told, how­ever, that they must let pros­e­cu­tors know before speak­ing with defense attorneys.

Pleasing pros­e­cu­tors

SBI exam­in­ers are delighted when they can deliver what pros­e­cu­tors seek.

Durham pros­e­cu­tors turned to the SBI to try to repli­cate the blood pat­terns found in the stair­well where Kathleen Peterson was found dead in 2001. Back at the lab, ana­lysts tried to fig­ure how Michael Peterson had pushed his wife and beaten her.

Finally, ana­lysts nailed it, find­ing an exper­i­ment that helped them see a blood pat­tern sim­i­lar to that on Peterson’s shorts. The two ana­lysts high-fived, a film of the exper­i­ment shows.

It’s impor­tant that pros­e­cu­tors think highly of ana­lysts. They depend on pros­e­cu­tors to pro­vide favor­able feed­back on their court­room tes­ti­mony as part of a cer­ti­fi­ca­tion require­ment for the lab.

ASCLD-LAB, an inde­pen­dent group that works to ensure proper pro­to­cols and prac­tices at crime labs, requires that ana­lysts who tes­tify in court be observed once a year, either by super­vi­sors, fel­low agents or by court officials.

This require­ment does not cover field ser­vice exam­in­ers, includ­ing blood­stain pat­tern ana­lysts such as Duane Deaver and Gerald Thomas, whose tests in a Davie County mur­der trial drew ridicule. No super­vi­sor is required to mon­i­tor their court tes­ti­mony, and prob­lems have gone unad­dressed for years.

The major­ity of the time, exam­in­ers turn to pros­e­cu­tors to pro­vide feed­back on their testimony.

In hun­dreds of feed­back forms reviewed by The N&O, pros­e­cu­tors offered glow­ing responses. They checked boxes cer­ti­fy­ing the ana­lyst spoke clearly and remained calm. The pros­e­cu­tors also affirmed that the analyst’s tes­ti­mony was rea­son­able and within the bounds of accepted science.

Ann Kirby, a for­mer Johnston County pros­e­cu­tor who now works in the Craven County District Attorney’s Office, offered her praise of drug ana­lyst Lisa Edwards in 2003.

“If Lisa Edwards gets any bet­ter on the wit­ness stand,” Kirby wrote, “the Johnston County defense bar is going to try and have her banned from the county!”

Demonizing the defense

To SBI ana­lysts, defense attor­neys are often the bad guys. Training man­u­als and direc­tives paint defense attor­neys as trick­sters who are dri­ven to let crim­i­nals go free.

“Tell the D.A. in advance of any weak­nesses in the case so that the trial of the case can be planned to min­i­mize the weak­nesses’ impact,” says a 2007 man­ual used to teach ana­lysts how to tes­tify in court.

The N&O showed Cooper the train­ing man­ual on July 29.

“There’s some lan­guage in this doc­u­ment that should not be there, and there should be a thor­ough review of it,” he said.

Robin Pendergraft, the for­mer SBI direc­tor, said she had never seen the man­ual when The N&O asked about it. She said she found it interesting.

Cooper replaced her shortly after her inter­view. On Wednesday, new SBI Director Greg McLeod sus­pended use of the manual.

Until recent years, ana­lysts were dis­cour­aged from speak­ing with defense attor­neys about a case before trial. Now, ana­lysts are advised to speak with defense attor­neys only after noti­fy­ing the pros­e­cu­tor, so that he or she may choose to be present for the conversation.

Greenville lawyer Ernest “Buddy” Conner expe­ri­enced the align­ment with pros­e­cu­tors in 2004 when he called to ques­tion an ana­lyst about a lab report he sus­pected was faulty.

Conner, a vet­eran defense attor­ney, was cer­tain his client, Leslie Lincoln, had noth­ing to do with her mother’s killing. He was sure the SBI lab report would con­firm that. Instead, it locked on Lincoln as the sus­pect. A blood­stain found near her mother’s bed bore Lincoln’s DNA pro­file. It was a match so sure that sta­tis­ti­cally, it could belong to no one but Lincoln.

Conner couldn’t believe the results and called the lab to ask the ana­lyst to double-check her work.

Conner said he was told that the lab wouldn’t rerun the test at his request. Only if a pros­e­cu­tor or judge demanded it would the lab repeat the test, Conner said he was told.

Conner said he was so flab­ber­gasted by the resis­tance that when he went to court, he asked the judge to order that the evi­dence be sent to an inde­pen­dent lab for a retest.

Only then did the SBI ana­lyze the tests further.

When it did, ana­lysts found an egre­gious error: The ana­lyst had swapped the victim’s sam­ple with Lincoln’s. The DNA at the crime scene was her mother’s, not hers.

The ana­lyst, Brenda Bissette, was removed from lab duties, records show. She soon resigned.

Lincoln, who was acquit­ted, has filed a law­suit against Bissette and local police and pros­e­cu­tors. Bissette declined to comment.

“I will never under­stand why they didn’t jump at the request to make sure they were right,” Conner said. “What would it have cost them?”

Trouble with DNA

DNA is an exact sci­ence. Every per­son has a unique pro­file that belongs only to him or her.

But at crime scenes, per­fect sam­ples can be hard to find. In sex­ual assaults, the victim’s pro­file has mixed with the rapist’s. Often, the evi­dence is degraded, and sci­en­tists can only get a good look at a frac­tion of the 16 unique iden­ti­fiers that make up one’s DNA profile.

Crime labs adopt their own pro­to­col on what con­sti­tutes a match between a sus­pect and a mixed or par­tial sample.

At the SBI’s crime lab, the thresh­old is low.

“We are not here to estab­lish guide­lines on just how many is enough,” said Mike Budzynski, a vet­eran ana­lyst who is in charge of the DNA sec­tion. “There are no min­i­mum stan­dards as far as I’m concerned.”

According to an admin­is­tra­tive order, see­ing a suspect’s pro­file at one of 16 unique iden­ti­fiers in the mix­ture is enough.

Such stan­dards are low, and far below other labs’ prac­tices, said Coyle, the DNA expert from Connecticut.

“It is highly irre­spon­si­ble to make any con­clu­sions with this level of evi­dence,” Coyle said. “It’s highly cir­cum­stan­tial. The ben­e­fit of the doubt should always be given to the defendant.”

Most labs, Coyle said, won’t con­sider any­thing a viable match unless three or four of the iden­ti­fiers are con­sis­tent between the mixed crime scene sam­ple and the suspect’s profile.

Budzynski said it’s up to pros­e­cu­tors to deter­mine how much weight to give the DNA evi­dence they offer.

The only thing that linked Johnny Maness to the rape and slay­ing of Ruthie Morgan, an elderly hog farmer in Moore County, was a match to one of 16 loca­tions on a mixed DNA pro­file extracted from her body.

As DNA goes, these are extremely low odds. It means that one in 25 white peo­ple in North Carolina would have had just as much like­li­hood of being linked to the semen mix­ture found in Morgan. Later, fur­ther analy­sis with a new sta­tis­ti­cal for­mula set the odds to one in 98 white peo­ple; a dif­fer­ent sam­ple showed odds of one in 30,000.

Maness’ lawyer said her expert dis­puted that later analysis.

Maness swore that he was inno­cent but pleaded guilty to second-degree mur­der in 2009 to avoid the death penalty. Police had found Maness’ DNA on a cig­a­rette butt in the victim’s truck, which was not linked to her mur­der. Maness had worked odd jobs for Morgan and admit­ted to hav­ing sat and smoked in her truck previously.

Before tak­ing the deal, Kim Stevens, Maness’ attor­ney, asked the dis­trict attor­ney to request the SBI to run the male por­tion of the mix­ture pro­file in the state’s DNA data­base. She wanted to see if ana­lysts could find another sus­pect who matched with higher cer­tainty than Maness.

Peter Strickland, assis­tant dis­trict attor­ney in Moore County, said he asked the SBI to run the test. He doesn’t recall get­ting a response.

Amanda Thompson, the ana­lyst in the case, said that she asked Strickland for a writ­ten request from the defense attor­ney before she per­formed fur­ther work. Before that hap­pened, Thompson said that Maness agreed to plead guilty and that she never reviewed the case further.

Stevens, an assis­tant cap­i­tal defender in Winston-Salem who rep­re­sented Maness, said she never knew she needed to write another let­ter. She is befud­dled by any hes­i­ta­tion or resis­tance to per­form extra analysis.

“I don’t know why they wouldn’t want to be absolutely sure,” Stevens said. “They were will­ing to take a man’s life over this.”

Defense fights back

Over the past decade, defense attor­neys have grown increas­ingly wary of reports gen­er­ated by the SBI. They hire their own experts to double-check evi­dence they don’t have the exper­tise to understand.

The SBI has met this trend with resis­tance, accord­ing to train­ing man­u­als, direc­tives and court testimony.

A 2008 memo issued to all ana­lysts advises that can­celed ver­sions of lab reports are not con­sid­ered part of the packet of mate­r­ial turned over to defense attor­neys. That means that any changes in the reports before they are sent to pros­e­cu­tors and defense teams are not dis­closed — unless they are specif­i­cally requested.

The lab also has resisted turn­ing over other mate­r­ial that defense attor­neys say is cru­cial to help­ing rep­re­sent their clients. Examiners don’t like to be chal­lenged. And their bosses don’t like them being ques­tioned or observed.

They are wary of defense experts. Included in ana­lysts’ train­ing man­ual is a memo pre­pared for pros­e­cu­tors across the state by Michael Parker, now dis­trict attor­ney in Stanly County.

In the memo, Parker warns against “defense whores.” Parker goes on to promise pros­e­cu­tors that the SBI will vet the defense expert, find­ing back­ground infor­ma­tion on him for prosecutors.

The SBI’s attor­ney some­times goes to court to fight orders com­pelling that infor­ma­tion be pro­vided to defendants.

John Watters, a lawyer at the state Department of Justice who has rep­re­sented the SBI since 1993, fights requests for infor­ma­tion not specif­i­cally listed in the dis­cov­ery law that ensures that defense attor­neys have access to inves­tiga­tive reports.

Cooper said he will ask his new SBI direc­tor to review the prac­tice and prob­a­bly will assign more lawyers to assist the SBI with such matters.

Watters is par­tic­u­larly resis­tant to defense experts observ­ing tests in the crime lab. The phi­los­o­phy was put into pol­icy in 2009, ban­ning any observers from the lab.

Jerry Richardson, head of the lab, defended the pol­icy, say­ing ana­lysts needed to work in soli­tude so they won’t be swayed by observers.

But SBI offi­cials even resist obser­va­tion when the test would con­sume all of the evi­dence, leav­ing none for defense tests.

In May 2009, Watters argued at a hear­ing that the defense’s sci­en­tists could con­t­a­m­i­nate the lab. He also insisted that the lab isn’t equipped to han­dle a rush of out­side sci­en­tists observ­ing their case work.

“I’m telling you that the thing that con­cerns us most is the prece­dent this would set, and the poten­tial for harm,” Watters said. “I think if you look at the dis­cov­ery statute, since their incep­tion, we’ve never been a test­ing lab­o­ra­tory for the defen­dant. We are the state’s laboratory.”

News researcher Brooke Cain and data­base edi­tor David Raynor con­tributed to this report.

The most amaz­ing part of the arti­cle is the following:

Coaching for convictions

SBI ana­lysts are coached on how to tes­tify in court. A 2007 train­ing man­ual that was in use until Wednesday cap­tures a prej­u­dice toward pros­e­cu­tors and against defendants:

“A good rep­u­ta­tion and calm demeanor also enhances an analyst’s con­vic­tion rate.”

“From time to time, a defense attor­ney may insist on mis­pro­nounc­ing an analyst’s name. The ana­lyst should cor­rect the mis­take only twice. That will be enough to make sure that the judge and jury real­ize what is hap­pen­ing. If it con­tin­ues, the ana­lyst should not become upset. The defense attor­ney will even­tu­ally be hurt by this tactic.”

Defense attor­neys will “put words into the analyst’s mouth to try and raise inaccuracies.”

“If the answers are favor­able to the defen­dant and harm­ful to the prosecution’s case, ‘SPIT IT OUT ANYWAY.’ If pos­si­ble bring out the infor­ma­tion dur­ing direct exam­i­na­tion. Such tes­ti­mony should be given in the same tone of voice whether dur­ing direct or cross examination.”

Mandy Locke

Read more: http://www.charlotteobserver.com/2010/08/12/1616799/crime-lab-is-witness-for-prosecution.html#ixzz0wRjFhavN

So the prob­lem isn’t that there is a insti­tu­tional bias that is “pro-prosecution”, rather the prob­lem is that there is a WRITTEN policy.

I don’t know what a lab with these poli­cies should be called, but it cer­tainly isn’t foren­sic sci­ence. There is no way a lab­o­ra­tory with this type of envi­ron­ment could be impar­tial seek­ers of the truth. It’s time for North Carolina to scrap their cur­rent foren­sic sys­tem, and start with some­thing com­pletely new.

Apparently this is the per­fect exam­ple of why foren­sic labs need to be out of the con­trol of police and pros­e­cu­tors’ offices.

The cit­i­zens of North Carolina deserve better.

Originally posted on CharlotteObserver.com.