The NC SBI serology “scandal”: What you need to know

The state of North Carolina has been buzzing the last couple of weeks thanks to a series of articles run by both the Charlotte Observer and the Raleigh News and Observer about the NC State Bureau of Investigation that either insinuate or outright allege widespread, systemic, deliberate suppression of lab evidence that may have helped defense attorneys better defend their clients against charges brought against them by the state. The most damning of the articles came this week after an independent review of the SBI found some 230 cases where they allege that state law requiring all evidence be shared with the defense wasn’t followed. Both Observer news outlets have done a fantastic job sensationalizing their news stories for maximum effect, painting state investigators in the harshest possible light – which shouldn’t be surprising, considering that both Observer news outlets are affiliates of the liberal McClatchy news organization, and we all know how liberals feel about harsh punishments for criminals.

Keep that in miind as you continue reading.

We’ll start with a sampling of how the N&O reported the findings of the independent panel:

RALEIGH, N.C. The criminal convictions 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 in doubt because of faulty lab work by the SBI, according to a new, scathing report written by former FBI agents who examined the troubled agency’s blood work.

The questionable work is the result of “poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight,” the report says.

The new report outlines “serious issues” with the SBI’s blood analysis unit’s work between 1987 and 2003 in cases involving more than 269 people.

According to the new 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.

Of the questioned cases, 80 of the defendants are still in prison, the report says.

Three of the defendants have been executed.

Four are on death row.

Five died in prison.

The report says the SBI blood lab work in those cases is similar to that in the case of Gregory Taylor, a Wake County man who was recently declared innocent and set free after spending 17 years in prison for a murder he did not commit.

The Taylor case was the launching pad for State AG Roy Cooper to call for an outside panel to review pre-2003 cases. The reason for the 2003 cutoff point was that the SBI changed their blood analysis procedures at that time and information sharing has become more modernized so as to make it easier for the prosecutor to share all data available with the defense.  Sidenote: And wouldn’t it be nice if the defense were obligated to share THEIR findings with the state? Hey, a girl can dream, eh? …

Note in the N&O’s reporting above and in this piece – shamelessly titled  “For Executed Men, Audit’s Too Late” – how they insinuate that the three men who have already been executed were deliberately wronged by the state, and maybe could have been spared the death penalty, and in one case spared jail time period, had evidence from the SBI not been ‘deliberately’ withheld.   If you’re strictly a headline reader, you wouldn’t know that they mention in the piece that two of the defendants confessed to the murders they committed.  Not only that, but the N&O neglected to mention in the piece that the third convicted murderer, Joseph Timothy Keel, also confessed to his crime (killing his father in law).   In fact, Keel also had a prior conviction for manslaughter in the death of his infant son back in 1987.   The article also doesn’t note that the defense tried to argue that Keel was mentally ill at the time of the crimes.  The state successfully argued against that, citing the fact that he got his GED while in prison.  The staff writers also failed to point out that Keel’s own family believed he committed both murders.

You can read much more about the Keel case here

In the event of a confession from a defendant, defense attorneys often argue that the confession was “coerced” or “forced” by the police and/or detectiives. It’s clear that didn’t happen in the Keel case, and it’s clear it didn’t happen in the other two cases where the death penalty  has already been carried out – because other evidence existed outside of their confessions to directly implicate them in their respective crimes.

As for Desmond Keith Carter, he confessed to the murder of his elderly neighbor for $15 to support his drug habit after being informed that the butcher knife he used to stab her 13 times had been found across the street from where he lived.    Scroll down this page and read the details of the case and you’ll see that it’s pretty clear Carter was guilty as charged. Not even his attorneys argued against his confession – instead, they suggested that Carter’s offense should be considered second degree murder because he was on drugs at the time of his crime, and also suggested that “death penalty racial bias” was at play during his sentencing as Carter was black and his victim was white.

Also not reported in that article but pointed out by WRAL is that the “overstated blood evidence”  by the SBI was not even introduced at Carter’s trial:

Desmond Keith Carter was executed in 2002, a decade after he was convicted of first-degree murder in the death of his neighbor, Helen Purdy of Eden. [SBI Agent Duane] Deaver’s report said Item No. 8 confirmed the presence of blood. That overstated the results because a follow-up test was negative due to an insufficient sample to test. Carter confessed, and the Attorney General’s Office said a review of the trial transcript showed the item wasn’t introduced into evidence.

In the other case, John Hardy Rose, not only did he confess to the crime (murder, sexual violation of a corpse, and then torching the body) but the trunk of his vehicle contained blood that was consistent with that of his murder victim.  Even his attorney argued there was no question he murdered his neighbor, but the issue at hand was whether or not it was ‘premeditated or impulsive.’   Read this and tell me this sounds like a man who murdered on impulse:

After receiving a report that Patricia Stewart was missing and finding small drops of blood in her apartment, the police conducted several interviews with Rose, who lived in a nearby apartment. On January 13, 1991, the State Bureau of Investigation (SBI) performed a consent search of vehicles owned by Rose and his sister, recovering a pair of numchucks, a tire tool, jumper cables, a black sleeveless jacket, and a thermos, all of which tested positive for blood. Bloodstains were found that were consistent with Patricia’s blood type and inconsistent with Rose’s. On January 15, agents spoke again with Rose, this time in the presence of his mother. Rose’s mother told Rose that he needed to reveal any information he had regarding Patricia’s disappearance. Rose informed the agents that her body was located at his grandmother’s farm. A detailed confession followed.

Doesn’t sound like it was ‘impulsive,’ does it? 

So, after reading the Observer’s slanted reporting,  if you’re concerned that innoncent people were executed, don’t be.

Something else I don’t think you have to be concerned about is whether or not there were deliberate attempts to conceal evidence from the defense.  A careful reading of the independent report will show you that the reviewers found no evidence of deliberate wrongoing in terms of suppression of evidence, etc from the SBI analysts (page 28 – item 9).  On that same page and item number, the reviewers point out that the main issues were:

a. The absence of any written policy guidance prior to 1997;
b. Unclear and flawed policy guidance after 1997;
c. Minimal legal training;
d. Inadequate management oversight of reporting methods;
e. The absence of any internal legal review of lab reporting procedures, practices and policies
f. A mindset promoted by the Section Chief that the lab’s customer was law enforcement and reported results should be tailored primarily for law enforcement’s consumption.

In other words, the SBI analysts were pretty much left to their own devices in terms of how to report “negative confirmatory test results” because there really was no established procedure for doing so, something that will haunt the SBI for the foreseeable future as defense attorneys race to try and get their clients off the hook.

Not only is the report extremely informative, but so is Appendix B, which lists the 230 cases in question.  I read both the report and Appendix B and came away with a heck of a lot more information that I ever did or will from the Observer.  For example, on page 9 of the report, the review results were listed.  Out of 15,419 lab files (from Jan. 1987 – Jan. 2003) containing one or more serology tests, 932 cases (6%) were identified that contained blood result language similar to the Taylor case.    From those 932 cases, 230 – 7 of which were death penalty cases – “contained at least one instance where the lab notes reflected that a positive presumptive test for the presence of blood was followed by a confirmatory test that yielded results that were ‘negative’, ‘inconclusive’, or ‘no result’, but did not include this information in the final report. This represents 1.49% of the serology files from 1987-2003.”

Got that? At issue were less than 2% of the nearly 15,500 lab files pulled for consideration. Yet we’re supposed to believe that the SBI was plagued with system-wide problems as a result of intentional malice towards the defendants? I don’t think so.

Also on page 9 and 10, the reviewers pointed out that of the 230 cases, 40 involved investigations where authorities either could not ID a suspect or no charges were filed.  An additional 20 cases were either dismissed or the defendants were found not guilty. To my knowledge, you will not find this information in a single media report.

Other things you should know are listed on pages 10 and 11, where they list the 4 cases each category fell in.  Category 4 was the most troubling – and all involved SBI agent Deaver (who – of all the agents named in the report – is the only one I have a real issue with), but only five cases were at play in that category, one of which was the death penalty case of Desmond Carter, which I talked about earlier.  And category 1, which involved 85 cases, should not have even been included in the report, in my opinion.  The footnotes on that page note that the even the reviewers had a “considerable debate” over whether or not to include this category.  Here’s how the category was described:

The first category includes one or more report(s) that did not mention the negative, or in five cases inconclusive, confirmatory test but did ultimately state that the presence of blood was not conclusive. This language was used almost exclusively by one Analyst. These reports are identified in this report as questionable because the reader would never know that a more sensitive and reliable test was conducted without reference to the lab notes, which were not routinely produced. The reader would be alerted, however, that the presence of blood was not considered conclusive, a clue that might alert a more experienced Attorney that a confirmatory test was conducted.

Hey, *I’M* not even a defense attorney and even I would have picked up on that “clue” –  any attorney who couldn’t shouldn’t be practicing law, IMO, nor should the state be blamed for the defense’s gross ignorance in these instances.  Three defendants in this category are currently on death row and another has been executed already:  Joseph Timothy Keel, who I wrote about earlier.  In one of those death penalty cases – Christopher Lunorer Roseboro (rape/murder) – Appendix B notes that there was a DNA match: “swabs from victim matched blood of suspect Roseboro.”  It also notes that Roseboro’s attorney requested a complete file back in 2001.  Not only that, but Roseboro’s attorney got the SBI agent to admit on the stand that the SBI tests did not confirm evidence of blood, which kinda undercuts the belief that Roseboro was convicted on the basis of the blood analysis of the crime scene.

The second of the three death row cases is that of John Robert Elliott, convicted of the brutal 1st degree murder of a two year old.  Read about his case here and let me know if you feel like he was unjustly sentenced.  The third death row inmate in this category is Terry Lee Ball, convicted of the attempted murder of a minister and the murder of that minister’s wife.  The case is pretty gruesome.

I could go on and on but I’ll stop there.  The point is not to make it as though there have never been any issues at the SBI as it relates to blood analysis results, but that 1) we’re talking about a tiny fraction of the tens of thousands of cases brought to court by prosecutors, 2) it’s clear from the report that the lack of reporting of the “negative confirmatory results” were not deliberately withheld but instead it was left up to the judgment of the analysts in that fraction of cases as to whether or not to mention it (which has changed since 2003), 3) in the most serious cases – the death penalty cases – there is irrefutable evidence outside of the blood test analysis that proves these guys were/are guilty of their crimes, and 4) overall, we should still have a reasonable amount of confidence in the SBI’s findings, especially considering the changes that were made in 2003.

So yes, let’s have the reviews of whatever cases defense attorneys find should be brought back up for review; I guarantee you there is not a DA out there who wants an innocent person to be in jail.  Every article I’ve read quoting DAs suggests that they welcome the reviews because they, too, want to make sure the right people are in jail for their crimes.  I suspect that a vast majority of the cases reviewed are going to be found to have had other evidence that contributed to the conviction of the defendants and that only a tiny handful will be overturned.  We’ll see.  It’s going to be a massive headache for the state, but it’s imperative to try and get this right if for no other reason than to stop the shamelessly slanted reporting by the Observer, which is unfortunately causing a lot of people to have zero confidence in the SBI.

I don’t pretend to be a legal expert – not even close.  I’m not even saying that my analysis is completely flawless.  But I AM a concerned citizen, and it doesn’t take a legal expert to read the report and the appendix, do a little digging on the cases of those given the most serious of all punishments, and come to the conclusion that the media is deliberately painting this story in the worst possible light by leaving out important kernels of information that might lead its readers to different conclusions.   While it’s true that the public is not best served when its SBI doesn’t have a clearly defined set of rules on how to go about reporting “negative/inconclusive confirmatory test results,” it’s also NOT served when the mainstream media frames their reporting of it around a predetermined narrative, leaving out key facts, which in turn does not allow the reader the opportunity to come to their own conclusions.

Fortunately, the SBI has taken steps since 2003 to overhaul their identification test system and information sharing abilities, which should give the public more confidence in the process.  On the other hand, as the shoddy, misleading reporting on this story confirms, we’re still waiting for the local mainstream media to do a meaningful overhaul of their own.    Let’s not hold our collective breath.

Update – 11:42 PM: A great point from my NC friend Beregond via his Twitter page:

That the two papers involved have editorialized a number times against the death penalty is something else they forgot to say

Convenient ….

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