When Superior Court Judge Orlando Hudson ordered a new trial for Durham author Michael Peterson, he uttered a phrase seldom used by a judge describing the conduct of an SBI agent on the witness stand: "perjured testimony."
Hudson ruled Wednesday that former State Bureau of Investigation agent Duane Deaver repeatedly misled Hudson and the jury at Peterson's 2003 murder trial.
Joseph Kennedy, an expert on criminal law at UNC law school, found Deaver's misconduct "mind-boggling" and was especially troubled because Deaver was an expert witness in a circumstantial case with no confession and no eyewitnesses. Peterson's guilt or innocence turned on forensic expert testimony, Kennedy said.
The jury had to rely on forensic experts to interpret complicated evidence such as the bloodstains on Peterson's clothes and on the staircase where his wife, Kathleen Peterson, was found dead.
"To perjure oneself as an expert in a circumstantial murder trial is the gravest sort of perjury that I can think of," Kennedy said. "If this doesn't deserve a perjury prosecution, I can't imagine one that does."
Deaver's "perjured testimony" occurred in Durham, where District Attorney Tracey Cline is the county's top prosecutor. Cline, who defended Deaver's work in the hearing, declined to say whether she would investigate Deaver, saying only that perjury was a difficult crime to prove.
Hudson expressed interest in an investigation, but North Carolina law does not allow Superior Court judges to appoint a special prosecutor for perjury. He could, however, charge Deaver with contempt of court and appoint a special prosecutor.
The office of Attorney General Roy Cooper, which supervises the SBI, is so entangled with Deaver in court that it will not answer questions about whether it would seek a perjury investigation - or about why it took the bureau so long to stop an agent whose work has now been discredited in multiple cases.
Similarly, SBI officials did not return phone calls. Cooper's spokeswoman, Noelle Talley, said neither the attorney general nor anyone at the SBI would discuss Deaver while litigation is pending.
In one case, the attorney general is fighting Deaver, who was fired in January and is suing to get his job back at the SBI. In another, the office is defending Deaver in a lawsuit brought by Greg Taylor, a Raleigh man declared innocent in 2010 by the state's Innocence Inquiry Commission.
Deaver's failure to report the results of blood tests was crucial to Taylor's exoneration, the first time in the United States that an independent agency overturned a conviction and declared someone innocent.
The Attorney General's office has also been asked to oppose the Peterson retrial decision on appeal.
Pattern of bias
The Peterson hearing provided evidence that SBI supervisors knew from the start of Deaver's career that he had a strong bias toward the prosecution. In 1988, soon after being hired, Deaver participated in a mock courtroom exercise to prepare him for testifying at trial.
His supervisor at the SBI crime lab noted several weaknesses, including "a strong bias towards the prosecution."
That was inappropriate; forensic scientists are tasked with being unbiased, using science to find facts irrespective of whether the truth helps prosecution or defense.
That same supervisor, Mark Nelson, told SBI internal investigators that "Deaver could never admit being wrong."
SBI records show that bias continued in recent cases.
In 2009, Deaver attended a meeting with a prosecutor and two SBI lab analysts to discuss the Greg Taylor case, which was scheduled to be heard by the Innocence Inquiry Commission. The two lab analysts had re-tested physical evidence that Deaver had tested in the early 1990s. Taylor had insisted on his innocence since his first encounter with police.
One analyst, Kristin Hughes, said she was shocked and angered by the pro-prosecution comments Deaver made at the meeting: "He's guilty." "He did it." "He's where he needs to be." "He'd never survive a hearing."
Hughes said Deaver tried to get the second analyst, Russell Holley, to testify that a stain seen in a photograph was blood. Holley refused, saying they needed lab tests, not a picture, to identify blood.
Hughes said Deaver shot back in a condescending attitude: "Well, why not? You're a trained analyst. You should have enough experience to say there's blood in the picture."
Diane Savage, a Chapel Hill lawyer, had repeatedly complained to the SBI starting in 1997 about Deaver's misconduct in the Johnston County capital trial of George Goode. A federal judge agreed, ruling in 2009 that Deaver had provided false and misleading testimony.
Much of the information on Deaver presented last week was developed during the SBI's internal investigation in 2010. Peterson's lawyer, David Rudolf, complimented the SBI on a thorough and comprehensive investigation.
But Rudolf was puzzled that the SBI failed to mention the serious findings from its investigation when the agency fired Deaver. For example, the SBI cited a comment Deaver made on videotape at the end of a bloodstain experiment: "That's a wrap, baby!" But the agency did not cite the underlying experiments, which have been uniformly derided by leading experts in the field.
"In my opinion, they fired him for the wrong reasons," Rudolf said. "The remark pales in comparison with his actual work and conduct."
54, not 500
Michael Peterson was convicted of the murder of Kathleen Peterson, a Nortel Networks executive who was found dead at the bottom of a bloodstained staircase in their Forest Hills mansion in 2001. Jurors have said Deaver's testimony was crucial to their deliberations and verdict.
At the 2003 trial, Hudson allowed Deaver to testify as an expert witness in bloodstain pattern analysis. Regular witnesses testify about facts. Expert witnesses can give opinions, and Deaver testified about his experiments and analysis of bloodstains in the staircase and on Peterson's clothes. His opinion: Michael Peterson murdered his wife on the staircase.
To support his expert qualifications, Deaver testified that he had worked on 500 bloodstain pattern analysis cases, had written reports in 200 cases and testified in 60.
The SBI searched its records and found 54 bloodstain cases that Deaver worked on.
Deaver testified that before the Peterson case he had worked on 15 cases where a fall allegedly occurred. SBI records contained none, according to Ron Guerette, a private investigator who reviewed all of Deaver's bloodstain cases for Peterson's legal team.
Deaver testified that his methodology and experiments were consistent with other experts. At the recent hearing, three national experts said Deaver's work in the Peterson case was unscientific and unacceptable.
'A dark hole'
N.C. Central law professor Irving Joyner said Cline, the district attorney, would be the appropriate party to launch an investigation into perjury or obstruction of justice.
"From the politics of the situation, I think she will not file charges," Joyner said. Prosecutors work on an ongoing basis with law enforcement agencies, including the SBI.
"The chief justice or governor should convene a commission to look into the betrayal of trust by prosecutors and investigators that has dumped the respect and credibility of the criminal justice system into a dark hole," Joyner said. "Its respect and credibility is at the lowest point I've ever seen."