Peterson seeks relief, but Deaver will feel heat

Former SBI agent's work will be the focus of hearing

jneff@newsobserver.comDecember 4, 2011 

— When Michael Peterson returns to the Durham courthouse this week seeking a new trial, the author and convicted murderer will be sitting in the defendant's seat.

But former State Bureau of Investigation agent Duane Deaver will be the person under the most duress.

Deaver was a key expert witness at Peterson's 2003 trial, which ended in a life sentence for first-degree murder. A jury convicted Peterson of killing his wife, Nortel Networks executive Kathleen Peterson, who died in a pool of blood at the bottom of a blood-spattered staircase in the Petersons' Forest Hills mansion in December 2001.

Deaver testified for seven days as an expert in the arcane science of bloodstain pattern analysis. Deaver studied the staircase and performed a series of experiments to re-create the crime scene. He testified that Kathleen Peterson had been beaten to death and that blood on Michael Peterson's shorts proved he had killed her.

Since the trial, Peterson has been in prison. But things haven't gone well for Deaver, either.

Over the past two years, a stream of damaging information has emerged about Deaver: the exoneration of a Wake County man based in large part on Deaver's work in the case; a damning audit by former senior FBI officials; the suspension and disbanding of a bloodstain analysis team that Deaver trained and led; and a finding by a federal judge that Deaver gave misleading testimony in a 1993 murder case.

In January, the SBI fired Deaver, who is challenging his dismissal and fighting to get his job back.

Persuasive agent

Tonia Rogers, a juror in Peterson's trial, said Deaver's testimony was key to the jury's deliberations and verdict. Deaver testified that blood on the crotch of Peterson's pants could have only been deposited during an assault.

"That was very, very, very important," Rogers said. "Until someone can explain how else that blood got on the inside of his pants, he's guilty."

The Peterson trial was broadcast live on Court TV and became the subject of a six-hour documentary, several television shows and at least two books.

He has been less successful in overturning his verdict, losing appeals in the state appellate courts and in repeat visits to the trial court in Durham. Supporters have unsuccessfully advanced theories that an owl killed Kathleen Peterson, or that Durham police hid the presence of a tire iron that may have been a murder weapon.

Troubling testimony

Peterson's current bid has better odds than past attempts deploying the owl theory, but his case may get sucked into the drama roiling the Durham County courthouse.

District Attorney Tracey Cline, who is scheduled to defend the guilty verdict, riled up the Durham criminal bar by filing three lengthy motions alleging Durham's senior trial judge is leading a conspiracy to ruin her. Cline accused Superior Court Judge Orlando Hudson of "moral turpitude" and said his rulings have "raped" victims of the crimes involved.

Another judge will conduct a hearing Monday on whether Hudson should be removed from hearing criminal cases, including Peterson's. There may also be a hearing on whether Peterson's case should be delayed so the state Attorney General's office can step in to oppose Peterson's try for a new trial, as Cline has requested.

Peterson's lawyer has said he will oppose any attempt to delay the case.

In February, Charlotte lawyer David Rudolf filed a motion attacking Deaver and asking for a new trial for Peterson. Deaver was not a neutral scientist seeking facts, Rudolf wrote, but a tool of prosecutors more intent on winning convictions than seeking the truth.

Deaver had a longstanding practice, Rudolf wrote, of fabricating evidence of guilt, hiding evidence of innocence, "tailoring his testimony to whatever the prosecutor wanted or needed him to say, and committing perjury in order to advance his primary goal: to secure the conviction of the person on trial."

At the Peterson trial, Deaver testified that he was the SBI's most experienced bloodstain pattern analyst who trained other SBI agents in the field.

That experience and training will come under attack. Deaver testified at the Peterson trial that as of 2003 he had worked on 500 bloodstain pattern analysis cases, had written 200 reports, and testified in 60 cases.

But when the SBI investigated Deaver's record prior to his firing, the agency could only identify 47 cases where Deaver investigated blood spatter, according to court records.

Deaver's training in blood spatter consisted of two training courses in the 1980s. Since then, he has had no training outside North Carolina, nor was he a member of any forensic science organization that would allow him to keep up with advances in the field.

Rudolf hired national experts to review Deaver's work in the Peterson case, including Stuart James, perhaps the country's leading expert in the field.

In a sworn affidavit, James said Deaver's experiments lacked required elements of basic science: There was no data available for peer review, no written protocols of the scientific methodology, and a failure to consider all possible variables.

Deaver conducted 15 different experiments: stomping his feet in a pool of blood; attaching a bloody sponge to a Styrofoam wig head and dropping it to the floor; striking a bloody sponge attached to a four-by-four board, and more.

Every experiment, James wrote, "had no relevance to the case and proved nothing."

During one experiment, Deaver looked at a photo of a blood-stained wall at the scene and tried to adjust the blood transfers to fit the photograph, James said. "In my opinion, this was an attempt to make the experiment fit the scenario."

Bad cases pile up

Deaver's publicized troubles began in February 2010, when the N.C. Innocence Inquiry Commission declared that Gregory Taylor was innocent of a 1991 murder. Taylor had spent 17 years in prison.

Central to the exoneration was a lab report in which Deaver withheld the results of confirmatory blood tests that favored Taylor's defense. The purported blood stain on Taylor's truck was the only physical evidence linking Taylor to the scene.

Following Taylor's exoneration, Attorney General Roy Cooper ordered an independent audit of all such serology tests at the SBI crime lab.

Two former FBI leaders identified more than 200 serology cases from the SBI lab in which results were withheld or not fully reported to defense lawyers.

The audit singled out Deaver as responsible for the most serious misconduct, cases in which his lab reports contradicted his internal lab notes. In two cases, Deaver said blood was found when a confirmatory test for blood was negative. In the others, Deaver reported that test results for blood were inconclusive when his notes showed the results were negative. Each of these errors favored the prosecution and hurt the defendant's case.

The audit also mentioned the Johnston County case of former death row inmate George Goode, in which a federal judge ruled that Deaver had given false and misleading testimony. Deaver testified that he found a tiny amount of blood on Goode's boots that was invisible to the naked eye. In fact, Deaver ran confirmatory tests for blood that came up negative.

Deaver and his lawyer declined to be interviewed.

SBI tries to save cases

In the summer of 2010, after The News & Observer interviewed then-SBI director Robin Pendergraft about a 2009 blood-spatter analysis case involving Deaver, Cooper shut down all bloodstain pattern analysis work at the SBI.

In January, when they fired Deaver, SBI officials were careful not to cite any of Deaver's underlying work. They knew but did not mention how he exaggerated his work under oath at the Peterson trial. They did not cite his work in the exoneration of Greg Taylor or the finding of the independent audit.

Deaver has challenged his firing and wants his job back. The Attorney General's office, which oversees the SBI, is fighting Deaver on that front.

But at the hearing this week, the Attorney General's office could be defending his work in the Peterson case.

Peterson's lawyer said the attorney general can't take opposite positions depending on the court case.

"They can't say Deaver was correctly fired for his work for the SBI and in another litigation say we think Deaver was perfectly fine," Rudolf said.

Neff: 919-829-4516

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