DNA test a shock after years in cell

Staff WritersMarch 27, 2011 

  • The audit that revealed withheld evidence in 229 cases was one element of scrutiny of the SBI in the past year. The News & Observer reported in August that some agents had bullied vulnerable defendants and that some analysts had twisted their reports to help prosecutors.

    One of those 229 defendants cited in the audit, Derrick Allen of Durham, has had his charges dismissed because the SBI and prosecutors withheld evidence, conduct a judge has labeled flagrant, intentional and deceptive. Allen served 12 years in jail.

    Last week, the N.C. Conference of District Attorneys said it had reviewed 147 relevant cases and "found no cases where the guilt of the defendant was called into question." In 17 other cases involving a guilty verdict, the files have not yet been located.

North Carolina's district attorneys assured the public this week that there is no need to worry about the outcomes of blood cases cited in an audit of the State Bureau of Investigation in August.

There's no question of the guilt of any of the defendants, they said.

Chris Foye begs to disagree. Foye, who has spent 19 years in prison, said he pleaded to charges in a murder he didn't commit rather than risk the death penalty in a trial in Kinston.

Foye didn't know that the SBI had identified another man's DNA in the victim's panties, information that would have changed how his lawyers handled the case. He didn't admit his guilt but acknowledged there was evidence that could have led to his conviction.

"I absolutely never saw any report about DNA," said William Gerrans, one of Foye's lawyers. "If I had, I would have never let Chris plead."

Gerrans, a defense attorney with 29 years of experience, was one of two lawyers on Foye's case. It's a case that has haunted him more than any other in his career.

Foye's case and others call into doubt the prosecutors' assurances that there is no need to worry about last year's independent audit, commissioned by Attorney General Roy Cooper, which found that the SBI crime lab withheld or misreported blood test results in 229 cases. The SBI said this week that it has identified an additional 74 cases with similar problems.

In Foye's case, the SBI failed to report that a confirmatory test for blood was inconclusive. But the auditors also pointed out the DNA evidence that shocked Foye's lawyers, which should have been turned over as evidence helpful to Foye's case.

In dealing with cases from the audit, district attorneys will be forced to re-examine old cases and revisit evidence in addition to missteps in the serology unit at the SBI lab. In some cases, such as Foye's, district attorneys will be asked to defend decisions made decades ago on evidence that is shaky, discredited or lost to time.

"Looking back, there's a lot we may have done differently and maybe should have," said Branny Vickory, the current district attorney for Lenoir County. "But that's the problem with old cases. You have what you have."

Bloody footprints

On the morning of Aug. 20, 1991, Bobbie Jean Morgan's 9-year-old son found her in a pool of blood on her bedroom floor. She had been beaten on the head, and her neck had been slashed, severing her carotid artery and chipping her spine. She was five months pregnant and wearing aT-shirt. Her panties and jeans were found on the floor.

Chris Foye lived in the same apartment complex with his girlfriend, who was Morgan's sister, and their two children. The victim, her sister, Foye and the children once had shared the apartment, but Morgan had recently moved into a nearby unit.

Police identified three suspects: Foye; George Truitt, the victim's boyfriend; and Henry Morgan Jr., the victim's estranged husband.

The case against Foye began with information from two of Foye's aunts, who said he had confessed to them. One aunt said she took Foye to a "root doctor" in Bailey, a small town near Wilson, to get a potion to prevent him from being arrested. The root doctor told police that Foye had told him details of the murder.

Police also developed physical evidence against Foye: They inked his feet and had him walk on long sheets of paper, to see if Foye's feet could have made the prints left by a socked foot in Morgan's apartment. An FBI analyst said that the "size, shape and contour features of the toes, foot pad, arch and heel, reflected in the socked foot impressions ... correspond with the right foot of Christopher Foye."

While the FBI said it was not an "absolute identification," the evidence strongly suggested it was Foye's right foot.

Bill Bodziak, a retired FBI analyst and author of the textbook "Footwear Impression Evidence," said socked footprint impressions can be useful evidence for a jury. Socked footprints can be used to exclude suspects or to say the suspect could have made the footprint. Bodziak said it would be good policy to use footprint analysis on all suspects in a case and not just one, which appears to be the case with Foye.

Foye said he cooperated with police, answering their questions, giving them blood samples and taking a polygraph, which was inconclusive. He said one of his aunts disliked him, but has never understood why the other aunt, whom he was close to, said that he confessed.

His lead lawyer, Bill Spence of Kinston, was convinced he would get the death penalty, Foye said. He said he was faced with choosing between execution and being eligible for parole in 15 years.

"When you have a lawyer ... who tells you if you go totrial you are going to get killed, how do you proceed with that?" Foye said.

Other suspects

Police also had leads that led them to Truitt, Morgan's boyfriend, who was married but separated at the time.

Police found a letter from Bobbie Morgan to Truitt in a wastebasket in her kitchen, apparently never delivered, indicating trouble in their relationship.

Truitt was expected

The children, who slept through the murder, told police that Truitt and their mother often fought, that he was mean to her and that she expected Truitt to come over that night.

In an interview Thursday, Truitt recalled their relationship as pleasant and promising, with talk of marriage. He assumed he was the father of her unborn child.

Kinston police grilled him for about a month after Morgan's death. He submitted a blood sample and answered their questions. Then, and now, Truitt said he had nothing to do with Morgan's death and never went to her apartment that night as planned.

Truitt never knew that SBI analysts matched his DNA to the panties found in Morgan's bedroom. No one from law enforcement has ever asked him about it, he said. Case files show no evidence police even knew of the DNA results.

Truitt said he's not surprised traces of him were found. He suspects they had intercourse just days before she died.

Truitt said he doesn't know who killed Morgan, but he was surprised when police arrested Foye. He had hung out with Foye, who was living with Morgan's sister.

"We all played cards and got along real good," Truitt said. Morgan and Foye "never had any problems," he said.

What was shared?

Police also looked at Bobbie Morgan's husband, Henry Morgan Jr. The couple had been separated five years. Morgan's sister told police that Morgan drank heavily, acted crazy and "jumped on Bobbie" during their time together. Recently Bobbie Morgan had stopped him from coming over because he kept trying to take custody of his son from her.

A Craven County deputy interviewed Morgan, Truitt and another man and analyzed the interviews on a Psychological Stress Evaluator.

"Henry Morgan was deceptive throughout the interview and deserved close scrutiny as a prime suspect," the deputy wrote.

Henry Morgan could not be reached for comment.

Don Jacobs, the district attorney who handled the case, said he is aging and can't recall cases two decades old. He insisted that he shared all information with defendants.

"If the report is in that file, they were able to see it," Jacobs said. "Since 1975 I had an open file and demanded that everything we had be made available to the defense, long before the legislature passed open file discovery."

Gerrans is certain that he never received or reviewed any DNA evidence.

"Back then, they didn't give us anything," Gerrans said. "We couldn't make copies back then."

Vickory, who was an assistant working in the district in 1992 but was not involved in Foye's case, said he finds it hard to believe that evidence would not have been known by Foye's attorneys.

Until or unless he hears of new evidence in the case, Vickory believes the conviction should stand. He said he wishes some leads had been pursued more heartily back then. He acknowledged that the socked footprint analysis may not meet the standards of modern forensic science.

Still, he says the testimony offered by the aunts and the root doctor is enough to convince him of Foye's guilt.

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

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