NC State Bureau of Investigation: Low-Hanging Fruit for the News & Observer

The investigative reporters at the Raleigh News & Observer have just released a series of stories about the North Carolina State Bureau of Investigation’s Crime Lab called Agents’ Secrets. The series outlines lots of very, very bad science by lots of very, very bad… I’m not going to call them scientists because the very idea makes my head hurt. In honor of what they have done to my science and my profession, let’s call them F–ktards of the Apocalypse, or FOTAs.

Where to begin, where to begin…

Everyone is talking about the stories of the SBI crime lab, which are horrific, but day one of the series was about the elaborate, detailed murder confession that one agent, Mark Isley, claimed he received from a man who is so mentally challenged that the state’s doctors have consistently deemed him incapable of providing such a “sophisticated” confession. Isley has stuck to his story that he was just writing down what the man said, “verbatim.”

Never mind the fact that the confession includes details such as the man claims he woke at 6 a.m. and took a bath, even though the man cannot tell time and lived in a home without a shower or bath tub. The man was held in the state mental hospital for 14 years while the state’s doctors tried in vain to make him competent to stand trial. Agent Mark Isley has been consistently promoted over the years. He is now in charge of the Medicaid fraud unit.

But back to the FOTAs at the crime lab. Day two of the series runs under the headline “Fantastic tales told in blood; a jury stunned by SBI’s acts” and tells of Gerald Thomas, a blood spatter expert at the SBI, and his mentor, Duane Deaver, the SBI’s blood spatter guru who designed their training program. The case in question was that of Kirk Turner who was on trial for the murder of his estranged wife, Jennifer Turner. Kirk Turner claimed that he killed Jennifer Turner in self-defense after she attacked him with a spear, stabbing him twice in the thigh.

Gerald Thomas’ first report, written immediately after the death of Jennifer Turner, read that a blood stain pattern on a t-shirt worn by Kirk Turner that was found at the scene was “consistent with a bloody hand being wiped on the surface of the shirt.” After meeting with prosecutors, Thomas changed his report to read, “This transfer pattern was consistent with a pointed object, consistent with a knife, being wiped on the surface of the shirt.” Same report. Same date on the report. Completely different conclusion that now fits the prosecutor’s theory.

Gerald Thomas and Duane Deaver then set out to video tape an “experiment” to prove their theory. In the video, Thomas and Deaver do not do repeated tests to see how various angles affected the deposition of the blood or what different scenarios might have influenced the outcome. They did it in one take.

With Deaver behind the camera instructing Thomas, Thomas carefully dips a knife in a tray of blood, flattens out his t-shirt against his torso to ensure that the pattern will be perfect and begins to slowly drag the knife across his stomach with Deaver instructing, “Nice, good curve. Turn your wrist in. Oh, even better. OK. That’s good.” Then, Thomas dips his fingertips in the tray of blood and, very slowly and very gently, taps a little more blood on the t-shirt to make the pattern complete. Because that’s how a man who has just slashed his wife’s throat in a fit of rage would do it, right? Deaver exclaims, “Beautiful! That’s a wrap, baby!”

View the video yourself here. Keep in mind that these FOTAs showed this in court.

Day 3: Objectivity Is Not Welcome Here

You know how I’m always harping on objectivity and how forensic scientists speak for the evidence and all that? Yeah, well… not at the North Carolina SBI lab. It’s actually in their training manual to be pro-prosecution:

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.

Another great instruction is

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

FOTAs… FOTAs… FOTAs… FOTAs… FOTAs… FOTAs… FOTAs… FOTAs…

This is presumably the same training manual that ASCLD/LAB has reviewed since it first accredited the SBI lab in 1987.

John Watters, the attorney at the state Department of Justice who represents the SBI, offers this bit of wisdom, “We’ve never been a testing laboratory for the defendant. We are the state’s laboratory.” Just to be clear, we are still in the United States, and forensic science is supposed to speak for the evidence, not the prosecutor.

Another thing that starts to become evident in this article is the pattern of the SBI’s strong resistance to reanalyzing evidence. This is a problem because the FOTAs don’t seem to take any notes, keep any records, or have any other trail other than their word which so often agrees with prosecutors. When evidence is finally reexamined at the behest of a court order or by an outside lab it far too often ends up clearing suspects or those who have spent years in prison. And no one at the SBI seems to be bothered by this.

One case cited in this article is that of Leslie Lincoln who was accused of murdering her mother based in part on DNA evidence that linked her to a blood stain found by her mother’s body. Lincoln’s defense attorney asked the SBI analyst to double-check her work. The analyst refused to do so without a request from the prosecutor or a court order from a judge.

Lincoln’s attorney, stunned by the insolence of the SBI analyst, went to court to ask that the sample be sent to an outside lab. The N&O article says that “Only then did the SBI analyze the tests further.”

As it turned out, the SBI had compared the victim’s sample against itself, not against Lincoln’s. Lincoln was in the clear. But the SBI’s refusal to check their own work is standard protocol, it would seem.

Here’s where I start to have a problem with the N&O’s approach. Remember Leslie Lincoln. We’re going to be coming back to her.

Day 4: FOTAs and Firearms Analysis

I can sum up the problems with the SBI’s firearms section with this photo:

These bullets were identified as being fired from the same firearm. For anyone with eyes, you can see the problem here.

For you real firearms examiners out there, this photograph was not taken on a comparison microscope. These bullets are on the same stage, side by side. There is no manipulation with optics or magnification here.

The alleged firearms examiner who made this identification, Beth Desmond, claims that she is absolutely confident that she made no mistakes in identifying these two bullets as being fired from the same gun. In the article, Desmond stated, “I take great offense to the fact that someone [is] saying I did something that was not straightforward or accusing me of anything. I am very proud of my work.”

In true SBI form, Assistant Lab Director Jerry Richardson refused to direct Desmond to review her work in the case when asked to do so by Fred Whitehurst, a former FBI analyst who reviewed the evidence and who took that picture of the two bullets above. When asked why the lab refused to revisit the examination, Desmond said, “We said no because we’re confident in our work.”

The SBI also refuses to use photography in their firearms scope work because, as they claim in a letter to the editor of the N&O, you can’t take pictures in 3-D, or some such nonsense. Which, as those of us who do take pictures in our analysis know, is complete and utter bullshit. For example:

And those are scans of photocopies of Polaroid photos that I took of unknown bullets that I identified to each other that were lead, not copper jacketed. When I was still in training.

There is absolutely no reason for any lab, anywhere, ever, to not take photos of their bullet and cartridge case comparisons. Cameras are cheap and can be easily fitted to even old comparison microscopes.

Now let’s talk about what’s wrong with N&O’s coverage, starting with their firearms coverage.

The SBI lab is Truly Awful and Should be Shut Down. But…

What the SBI has done and is doing is shameful and should be stopped. The fact that their lab directors are defending practices that would embarrass other forensic scientists just goes to show that the problems are systemic. The comments on the N&O’s website that are obviously from SBI analysts defending their practices also show it.

Firearms examiners should always take photos. If a defense attorney wants to have a look in your lab or observe how you do something, let them. If they ask you to re-examine evidence, do it. The crime lab is there to speak for the evidence, not the prosecutor. The fact that the SBI’s policy is to hide so much from the outside world is a huge red flag that things are fatally flawed in their lab and with their personnel. It is almost like they have declared war on the citizens they are supposed to protect and serve.

However, as much as I have been impressed with the N&O’s truly impressive investigative coverage in the past, their coverage here leaves a lot to be desired. It might be easy to ignore because of the overwhelming evidence of wrongdoing on the part of the SBI, but it gets downright disturbing at some points.

The article that talks about Beth Desmond’s clearly questionable conclusions cites two well-respected experts, William Tobin and Fred Whitehurst, and one completely new guy, Liam Hendrikse.

Liam Hendrikse claims on his LinkedIn profile to be an expert for the International Criminal Court in The Hague, but he is not listed on their most recently published Experts List. He is, however, a male model and financial advisor of some sort to some modeling website in Canada.

Liam Hendrikse claims in the N&O article that “Alarm bells are going off in our associations. The chances of a gun not matching a bullet recovered from the crime scene when it involves an American gun is highly likely. Our days of speaking with such certainty should be over.” This assumes that (1) you only find American made guns in America and (2) Liam Hendrikse is a member of some professional association.

I don’t know what “associations” Liam Hendrikse is a member of, but he’s not in the roster of members of the Association of Firearms and Tool Mark Examiners, which is the international professional association for the profession and which was not approached by the N&O.

Liam Hendrikse did show up at a meeting of the Association in Defence of the Wrongly Convicted (AIDWYC… I don’t know where they get the “Y” from) in Canada last year where, according to the minutes of the meeting, they discussed:

• There is potential for enormous human cost in the power of expert evidence.
• Potential for tremendous harm of flawed scientific evidence (as opposed to “appropriate science”)
• Expert language is very important, “we hear things differently than scientists speak them”
• Problem of speculation and going beyond the area of expertise

I’m sure that the AIDWYC has a perfectly good mission, but choosing one of them to speak as a representative “firearms expert”, and naming him as such, when the only person who seems to think he is a firearms expert is… him… doesn’t show very sound journalistic judgment.

Also, Hendrikse’s statement about the chances of a gun not matching a bullet involving an American gun is bullshit and illustrates an astounding ignorance not only of gun manufacturing in general but also of the types of guns generally available in America.

I did find another statement that Liam Hendrikse has volunteered to a website that is probably more representative of his true talents. This one was on MadeYouLookCosmetics.com:

I just wanted to say thanks again for doing an incredible job with my hair and makeup on Monday. Tristan has forwarded me the proofs and I was really, really happy with them – my skin looks so even and nice thanks to your magic! Actually, the whole day was enjoyable – it kind of felt like a field trip.

Take Care, Liam
-Liam Hendrikse (Model)

Soooo… yeah. A little too rushed to get somebody to say what you want, me thinks. You guys might want to slow down next time in your rush to emulate your colleague Andy Curliss and the folks down in New Orleans.

The Real Terror of What Happened to Melvin White

In another firearms-related story, firearms evidence is blamed solely for sending Melvin White to death row. The real story is much more sinister and should have the people of North Carolina much more frightened of their prosecutors and their judges.

Prosecutors presented three sets of bullets that were analyzed by the SBI and identified as having come from one gun. As with the case with Superstar Beth Desmond, no photos were taken and notes were sparse.

Here’s where things get terrifying for the average citizen: the three sets of bullets used by the prosecutors to convict Melvin White were collected from a murder scene in North Carolina, from behind a trailer where Melvin White used to live, and from a street corner in Tucson, Arizona near where Melvin White used to live. No gun was ever recovered.

Melvin White was convicted because bullets were found in various locations near where he once lived that were supposedly matched to bullets found at a crime scene. That’s all. Those bullets never should have been allowed into evidence. Period.

What I would like to know is why that prosecutor is still practicing law and why that judge is still sitting on the bench and why Melvin White’s attorney hasn’t had a stroke from screaming at the top of his lungs about the fact that every rule of evidence known to man has been broken in the prosecution of this case.

But the N&O claimed that “Melvin White’s life hinges on forensic science so controversial some judges won’t allow it in their courts.” The N&O puts all the blame on firearms analysis and firearms examiners in general, not on the prosecutors and the criminal justice system in North Carolina, including the SBI and the firearms examiners there, which is to blame for victimizing its own citizens.

And who did the N&O get to back them up on this claim without commenting on the problems of the chain of custody of the evidence or the prosecution of the case? None other than Adina Schwartz.

Dr. Adina Schwartz, Professor of Law at John Jay College of Criminal Justice and Henry Lee-equivalent to the firearms community, did not comment on the other issues of the case because she was not specifically asked to, I was told. We wouldn’t want Dr. Adina Schwartz, Professor of Law at John Jay College of Criminal Justice, to trip over her bread and butter for the sake of pointing out the truth.

Why The Rush to Press? Why Now?

On July 20, 2005, the Associated Press published a story with the headline “Lawyers’ group seeks inquiry of SBI crime lab.” There were a few cases at issue.

One was Leslie Lincoln’s case- the one I told you to remember; the one in which the SBI switched Lincoln’s murdered mother’s DNA sample and almost sent her to prison for her mother’s murder- which happened in 2003. Remember how the N&O said that a Leslie Lincoln’s attorney got a judge to order the sample sent to an outside lab and “Only then did the SBI analyze the tests further”?

Actually, according to the Associated Press in 2005, the sample was sent to an outside lab, LabCorp in Research Triangle Park, where the mix-up was discovered. I’m not sure if the N&O didn’t know about this or didn’t want to credit the Associated Press with finding the story in 2005.

Another case cited in the Associate Press article in 2005 was that of Francisco LaBoy who was being tried for murder in the death of his estranged wife, Kim LaBoy, in 2002.

According to another article, when investigators asked him about Kim’s death, Francisco LaBoy responded, “Shit happens.” While being interrogated, LaBoy’s “hands were bleeding from an unknown type injury on the tips of his fingers.” LaBoy’s own defense attorney said that it did not help his case that his first wife was stabbed to death or that his own brother died “mysteriously” after he became intimate with Kim LaBoy.

In LaBoy’s case the SBI lab had submitted a DNA report about Francisco LaBoy that indicated that he was a woman. The SBI also used up all the DNA evidence during analysis in violation of an earlier court order which meant that the prosecution could not proceed. Kim LaBoy had been raped and stabbed 51 times. Her murder will never be prosecuted because of the mistakes by the SBI.

The people of North Carolina should not be left thinking that their streets are overly-sanitized by the over-eagerness of the SBI to please prosecutors. When an innocent person goes to jail, a bad guy stays on the loose- and nobody is looking for him anymore. And when a crime lab screw up a righteous prosecution… a bad guy stays on the streets.

The main point of the July 20, 2005 Associated Press article was that the attorneys’ group was filing complaint after complaint with ASCLD/LAB, the prominent crime lab accreditation group, against the SBI. There is no indication of the complaints against the SBI in the N&O’s series.

There is acknowledgement that the SBI always has some corrective action they must take to meet accreditation standards for ASCLD/LAB reaccreditation, so it would appear that the N&O did find some source to tell them about that. It appears that source was ASCLD/LAB’s Executive Director and former Deputy Assistant Director of the SBI, Ralph Keaton. Keaton also had this telling comment: “We bend over backwards to help labs get there. We want them to pass.”

My question here is this: where was the N&O in 2005 when this Associated Press article came out proclaiming that an outside lab had proven that the SBI had switched Leslie Lincoln’s DNA sample and almost sent her to prison? And that there were other cases the SBI had screwed up as well? Where was anybody else in 2005 when this happened? Why wasn’t the press in North Carolina shouting this from the rooftops?

Why wasn’t this mentioned by ASCLD/LAB in the interview with the N&O? Why wasn’t Ralph Keaton asked about this by the reporters from the N&O? How many more complaints have been filed with ASCLD/LAB about the SBI? Why does ASCLD/LAB keep accrediting the SBI? The SBI has been continuously accredited since 1987.

How many more labs are there that ASCLD/LAB is hiding? San Francisco’s ASCLD/LAB accredited crime lab is starting to crumble. Their narcotics unit has already been shut down voluntarily by the city itself. ASCLD/LAB reaccredited the New York State Police crime lab even after it discovered that an analyst there had been falsifying lab results. Only the New York Inspector General’s Office looked into the matter further and found that an entire unit had been falsifying data for more than a decade. How many more labs is ASCLD/LAB hiding?

How much does Ralph Keaton, who left the SBI in 1995 and joined ASCLD/LAB, know about the problems at the SBI? How much does John Neuner, International Program Manager of ASCLD/LAB, know of the problems at the SBI? Neuner was the Division Quality Manager and Deputy Assistant Director of the SBI and retired in 2003. How much does Michael Creasy, ASCLD/LAB’s Quality Manager and former SBI Chemist who left the SBI in 2002, know about the problems at the SBI?

And why the hell has it taken so long for anybody in North Carolina to care that this is happening?

The case that evidently finally got people’s attention was that of Greg Taylor who was convicted in 1993 of murder based on a preliminary test from the SBI that said a spot on the exterior of Taylor’s truck was blood. The prosecution hammered away on that test that they said proved Greg Taylor was responsible for the murder of Jacquetta Thomas.

The confirmatory report was never turned over by the SBI. The confirmatory test showed that the spot on Taylor’s truck was not blood. There was nothing else connecting Taylor to the crime. Taylor spent 17 years in prison because of the FOTAs F-up. Greg Taylor was finally released in February of this year when all this came to light. Nothing like a completely innocent, sad-looking, photogenic white guy to make people pay attention.

The analysts at the North Carolina SBI have been helping to put people in prison and on death row for decades with bad science and bad attitudes. These same people have been doing this without apologies and, seemingly, without consciences. ASCLD/LAB has been sanctioning this travesty for more than twenty years, seemingly with full knowledge of what is going on. And none of this has happened all that quietly.

Which is why I wonder… why now? Why the rush to press? When Andy Curliss of the N&O was researching the corruption of former governor Mike Easley he actually researched. He made sure he had his story right. He was meticulous. It was important to him to be right, not to be first or to be famous.

This story was thrown together with a lot of flash and with opinions from a couple of real experts but with opinions from others who would just lend a sensationalist edge to the whole thing. It looks like this series was done in the style of the Law & Disorder series of the folks in New Orleans, but not nearly as thoroughly or as seriously.

There was plenty of gory truth to build real sensationalism with the incompetence and undeserved bravado of the SBI. But for some reason the time and research wasn’t put in; only the low-hanging fruit was taken. Plus, the N&O missed the big connection with ASCLD/LAB, the accreditation association that is pushing so hard to have legislation introduced in congress to make them the official accreditation body of the nation.

I don’t want the N&O to stop talking about this. I just want someone, somewhere to give a damn that this is a real, true, life-or-death situation.

I want someone at the SBI or in the legislature or in the governor’s office to care that what they are doing is sending their own citizens to prison and death row for no apparent reason other than to help prosecutors win cases. Moving lab directors around is not going to fix this.

Journalists are supposed to be unbiased and tell the story straight. They are supposed to work hard and get to the facts. So do that.

There has been a lot of hand wringing over Greg Taylor and a lot of people saying, “Well, gosh, this is so new” and “We just found this out”, which is bullshit. Greg Taylor was convicted in 1993. That Associated Press article was in 2005. God only knows how long attorneys have been filing complaints against the SBI and how long the SBI has been hiding evidence that didn’t fit prosecutors’ cases. The press hasn’t been covering it, so people can claim that they didn’t know.

So start digging, people. This was the low-hanging fruit. Imagine what is left to uncover.