Charlotte News & Observer


Oct 02, 2010


SBI agent Deaver likely to face a judge about his testimony

SBI agent Duane Deaver will likely face a judge to explain why he shouldn't be sent to jail for making shifting explanations about criminal blood tests.

The N.C. Innocence Inquiry Commission, meeting in private Friday, voted unanimously to initiate the process that could result in Deaver's being held in contempt. At issue: his different statements about blood tests which, in part, led to an innocent man's being locked away in prison for 17 years.

The commission is asking its chairman, Superior Court Judge Quentin Sumner, to hold a contempt of court hearing for Deaver. If Sumner consents, which is likely because he voted for the recommendation Friday, he could either appoint another judge or hold the hearing himself.

Deaver would be asked to explain why he shouldn't be held in criminal contempt of court, a misdemeanor that can carry 30 days in jail and/or a fine of $500. Philip Isley, Deaver's lawyer, said, "We look forward to any such hearing in this case." He declined to discuss specifics.

Friday's vote to pursue contempt charges was a bold move for the commission. The first board of its kind in the United States, the commission was established in 2006 to examine claims of innocence. So far, Wake County man Greg Taylor is the first person exonerated through the unique process.

Mike Klinkosum, one of Taylor's lawyers, said he was heartened by the commission's move.

"It is finally coming to light what Agent Deaver has been doing in his testimony for years," Klinkosum said.

In October 2009, a federal judge called Deaver's testimony in another case "false" and "misleading.'

The state legislature created the innocence commission to be a judicial body with special powers. Those who testify at its hearings are placed under oath and could face penalties of perjury if they lie.

The most likely question a judge will consider in Taylor's case is simple: Did Deaver lie to the commission in September 2009 about blood tests performed on Taylor's SUV in 1991. During that hearing, Deaver said he did not perform more sophisticated tests to determine whether a stain on the SUV was, in fact, blood. Commission members weren't provided copies of Deaver's lab notes and didn't press him further about the tests then.

Extra tests confirmed

But in February, Deaver's statements shifted dramatically. At that point, Taylor's attorneys had studied Deaver's lab notes from the case and saw that he'd performed several sophisticated tests. Furthermore, some of those indicated negative results.

When pressed in February, Deaver acknowledged the extra tests. He said it was policy at the SBI not to report results of these more sophisticated tests.

An audit commissioned soon after Taylor's exoneration found a longtime practice in the SBI's blood analysis unit of omitting results of sophisticated tests. That practice became policy in 1997. Auditors flagged 229 cases tainted by the practice.

Test results overstated

At the center of the five cases deemed most serious: Deaver. In these, the auditor, former FBI supervisor Chris Swecker, found that Deaver had overstated test results or reported results contradicted in his lab notes.

Deaver will likely face civil lawsuits for his work as a blood analyst. Defense lawyers say his behavior in the cases cited in the audit should prompt a criminal investigation.

A shining star

It's a long fall for Deaver, considered a shining star at the SBI since he joined the forensic crime laboratory soon out of college in the late 1980s. Over the years, he testified in hundreds of trials and became the agency's point person for bloodstain pattern analysis. That unit was suspended this summer, amid criticisms that its work is unscientific.

In the past six weeks, Deaver has been suspended from the SBI pending an internal investigation into his role in the practice of withholding critical blood test results.

A spokeswoman for the SBI said Friday that Deaver remains on paid leave while the investigation continues.

If Deaver is found guilty, it will be a black eye for an agency already embattled. No SBI agent has ever been charged with perjury or lying to a court.

Klinkosum called for an investigation into whether Deaver obstructed justice.

mandy.locke@newsobserver.com or 919-829-8927

Duane Deaver
North Carolina SBI Agent Duane Deaver

THE TAYLOR CASE AND CONFLICTING COMMENTS

In September 1991, Greg Taylor, a Wake County man, was accused of killing Jacquetta Thomas, a Raleigh woman whose battered body was abandoned in a cul-de-sac in Southeast Raleigh. Crime scene investigators collected samples of a dark substance staining the fender of Taylor's SUV; they wanted to know whether the stain was blood.

Two months later, SBI serologist and blood spatter expert Duane Deaver reported to Wake County prosecutors that he found chemical indications for the presence of blood on the fender of Taylor's SUV. Deaver did not mention performing more sophisticated blood tests that concluded the substance was not blood.

It would take 18 years for the truth to seep out:

Days before the innocence commission hearing, Kendra Montgomery-Blinn spoke with Deaver on the phone and asked about his reports. She asked if he was able to test beyond the basic, presumptive test. Deaver indicated no.

"We would have tested that further if there'd been additional sample. Because it wasn't done, means it was gone," Deaver said.

Montgomery-Blinn asked: "The sample got used up during this testing?"

Deaver responded: "Wherever we end, that was the end of it."

Later in the conversation, Montgomery-Blinn asked if there was anything else tested that was not reflected in his lab reports. Deaver indicated there wasn't.

In 2009, the N.C. Innocence Inquiry Commission reviewed Taylor's claim of innocence. At a hearing in September, Deaver denied performing confirmatory blood tests.

Commission member Charles Becton asked Deaver: " ... [B]ut you could not do test number two?"

Deaver: "That's correct."

This year, Taylor's lawyers discovered Deaver's notes from his 1991 analysis. He had performed confirmatory blood tests on two samples from the fender. According to his notes, those tests were negative.

On Feb. 2, Deaver tried to explain his analysis to Wake County prosecutors Colon Willoughby and Tom Ford. According to notes of the meeting taken by Ford's assistant, Deaver said he got no results from his confirmatory blood tests.

On Feb. 12, at a hearing that resulted in Taylor's exoneration, Deaver testified that supervisors taught him to exclude negative test results from his final lab reports.


Police/Prosecutor Misconduct
Truth in Justice