Legal tangle may slow SBI reforms

First few of the challenges surface as Cooper sets out to revamp SBI.

Staff writersAugust 20, 2010 

The task of reforming the State Bureau of Investigation, as Attorney General Roy Cooper promised to do, will be complicated by civil lawsuits, potential criminal investigations and other attempts to hold the agency accountable for decades of misconduct.

Cooper promised reforms following a growing flood of bad news about the agency. A damning audit showed that lab analysts had misrepresented or hidden test results in 230 cases involving blood work. That audit followed a News & Observer series showing that SBI agents twisted reports and court testimony when facts threatened to undermine their cases. A 2009 audit found that an SBI field agent was working unsupervised while he ignored evidence of a suspect's innocence.

On Thursday, the first few of coming legal challenges surfaced. A police union called for a federal probe. A judicial body announced it may investigate whether an SBI agent perjured himself last year.

Cooper has tasked new SBI director Greg McLeod, his longtime lobbyist, with a number of changes: an independent ombudsman to handle complaints; a review of the DNA section; better supervision of agents in the field; more advanced certification for the lab, and a culture of openness and truth seeking.

Piecemeal change won't turn the SBI around, said Jim Cooney, a Charlotte lawyer who has represented police departments as well as death row inmates. The SBI's very credibility is at stake, but the agency's failure to deal with problems for years shows that the agency is not capable of reforming itself, Cooney said.

Criminal investigations require a high degree of specialization and expertise, Cooney said, but the SBI, the state's largest investigative agency, has been treated as just another branch of the Attorney General's Office.

"You don't need a lawyer or legislative assistant to run it, you need an investigative professional, someone with management experience to run a law enforcement agency of this size and complexity," Cooney said. "It's beyond me why there isn't a nationwide search going on."

Deaver's problems

On Thursday the North Carolina Innocence Inquiry Commission said it may soon convene to discuss the possibility of holding SBI agent Duane Deaver in contempt of court for possibly false statements he made before the commission last September.

Deaver, who was suspended Wednesday, told commissioners at a hearing to determine the innocence of Greg Taylor that he did not perform sophisticated, confirmatory tests on a stain found on Taylor's SUV.

Deaver's lab notes showed otherwise. The commission, a judicial body, could hold Deaver in contempt of court if they find he perjured himself.

Taylor was declared innocent of murder in February; he had spent 17 years in prison

It's not only defense lawyers who are calling for federal criminal investigations into whether agents have falsified evidence or committed perjury.

The N.C. Police Benevolent Association called for a criminal investigation into agents and leaders at the center of allegations that they distorted blood analysis in more than 200 criminal cases.

John Midgette, executive director of the association, said the behavior warrants both a federal civil rights investigation as well as a determination as to whether agents broke state law.

"Undoubtedly, no further laboratory analysis can be trusted to a lab under the current control of SBI leadership," Midgette said.

George Holding, U.S. attorney for the Eastern District of North Carolina, has heard those calls but won't discuss them.

"This audit raises very serious questions, but I am not able to comment at this time on whether there will be an investigation of civil rights violations," Holding said.

Federal prosecutors can investigate those in power for civil rights violations when they find that the suspects denied someone his liberties with criminal intent. It's unclear whether the practice of withholding crucial blood evidence was criminally motivated.

David Rudolf, a Charlotte lawyer, has sued the SBI on behalf of Floyd Brown, a mentally disabled Anson County man locked up for 14 years on a confession that Rudolf says was fabricated by an SBI agent.

The audit could spur more civil suits, if defendants could prove the withheld blood evidence was critical to their conviction.

It's unclear how many of those cases there are, but Rudolf anticipates that lawyers will be asking that question in hundreds of cases.

"Depending on how many cases these phony lab people testified in, there could literally be thousands of people whose convictions are called into question," Rudolf said.

Joseph.neff@newsobserver.com or 919-829-4516

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