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August 31, 2010

NC's local prosecutors urging full audit of suspect state criminal lab work

There's lots of interesting and important criminal justice action and debate in North Carolina these days.  In addition to racial disparity debates roiling the administration of the death penalty, there is a broader on-going controversy involving the state's criminal justice lab.  This local article from this past weekend, which is headlined "DAs demand full SBI audit," provides some of the basics:

The N.C. Conference of District Attorneys wants a thorough accounting of all the problems at the State Bureau of Investigation crime lab. The district attorneys say they want an independent audit of all sections of the forensic lab so they might feel confident of the work they are presenting to juries.

"Restoring the public's confidence not only in the SBI lab, but our entire system of justice, is our paramount concern, and a full scale audit of the lab is a step in the right direction," said Seth Edwards, president of the conference and the district attorney in Beaufort County.

The request signals some tension between the district attorneys and Attorney General Roy Cooper, who has not called for a full-scale audit of the SBI, which he supervises. For years, Cooper and district attorneys have enjoyed close relations and have worked in tandem on many policy issues.

This month, the SBI has been attacked for delivering shoddy, unscientific work to prosecutors across the state. The News & Observer reported in a series that analysts pushed past the bounds of accepted science to deliver answers that prosecutors needed to secure convictions.

Last week, Cooper released an audit of the lab's blood analysis unit which highlighted a widespread practice of withholding critical test results that may have robbed defendants of a fair trial. Auditors highlighted 230 cases tainted by the practice. Already, legislators and defense attorneys have been calling for an independent lab, out of the hands of the SBI and the attorney general.

Senate majority leader Marc Basnight said Friday that the financial implications of sorting through all of the issues with the SBI won't be a problem or a concern for legislatures. Their priority: making it right. "I'm worried about the person who is locked up who may be innocent," Basnight said.

Edwards said the serology audit is not enough to fully understand problems across the lab. He said that "every case involving the SBI will be scrutinized unless and until a full-scale audit of the lab is performed."

Conference of district attorney officials sent their request to Cooper's office Friday morning.  A spokeswoman for the SBI said they have called for an audit of the firearms unit in addition to the DNA section.  New SBI director Greg McLeod said a new lab director will enhance the agency's performance. The conference also appealed to legislators to come up with whatever money is needed to pay for such an audit.

District attorneys across the state have worried about how to defend the reputations of their star witnesses  SBI analysts  after the public has heard about bad work at the lab.  Some, such as Union County District Attorney John Snyder, launched their own review of all homicide cases in their districts.

Notably, as detailed in this AP article headlined "NC DA: Death penalty moratorium OK in some cases," these matters are also starting to haunt the state's application of the death penalty:

The president of a district attorneys' group in North Carolina says he supports a moratorium on the execution of any death-row prisoners whose cases include evidence from the State Bureau of Investigations crime lab.

August 31, 2010 at 09:58 AM | Permalink


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Doug, we are undergoing a crisis of confidence in the criminal justice system in NC unlike anything I've seen in 37 years of trying cases. When the head of the DA's conference calls for a moratorium on executions, you know something major is going on.

Concerning the SBI lab controversy, I believe what happened is that the lab was set up in a pre-Brady era in which the lab was considered a tool of law enforcement, not an independent entity committed to science rather than prosecution. The lab is housed in the office of the Attorney General, which also represents the State in criminal prosecutions. So the lab analyst's boss, Roy Cooper, is also the prosecutor's boss.

Prosecutors got used to the lab analysts being on "their side" and the press has uncovered a memo to DAs saying that they should call on the SBI lab folks to help the prosecutor prepare for cross examination of the defense experts. I assure you no SBI analyst has ever helped me impeach the credibility of a State's witness.

I don't believe analysts were deliberately falsifying lab results, rather they were withholding disclosure of results which would benefit the defense in our effort to impeach the credibility of the testifying analyst. Falsehood by omission, if you will.

What has happened here is very bothersome because the public needs to have confidence that their law enforcement agencies play fair and seek truth, not convictions.

The only ultimate solution I see to restore confidence is to move the lab out of the office of the Attorney General to a neutral arm of government.

Bruce Cunningham

Posted by: bruce cunningham | Aug 31, 2010 10:17:52 AM

I disagree slightly. I don't think that there can be such a thing as a "neutral arm of government." The defense bar must be diligent in having each and every potential piece of evidence independently tested and judges have to get off their pocket books and agree to order it paid for. I don't trust cops to write down exculpatory witness statements in their reports. I conduct my own interviews and investigation. Why would I trust a state lab to turn over exculpatory info? Scientific investigation has to be part of a defense investigation too.

Posted by: Ala JD | Aug 31, 2010 12:23:46 PM

How can anybody know how dangerous this guy will be in ten years, let alone twenty, thirty or more? Risk should be established incrementally. Separately he should be held accountable, which does not change once established.

Posted by: Tom McGee | Aug 31, 2010 3:02:29 PM

Bruce: You'll have to let me know when the "pre-Brady era in which the lab was considered a tool of law enforcement, not an independent entity committed to science rather than prosecution" ends. In most jurisdictions I've dealt with, that description represents the status quo, not some historical reality.

Posted by: anon | Aug 31, 2010 7:09:20 PM

Sad but true, anon. As I've said many times, the notion of Brady disclosure of beneficial evidence to the other side and the adversarial system of criminal law is an oxymoron.


Posted by: bruce cunningham | Aug 31, 2010 9:30:20 PM

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