Former SBI employees at center of Greg Taylor's wrongful conviction still defend work / mlocke@newsobserver.comOctober 19, 2013 

  • Experts knock Deaver’s method

    Greg Taylor’s guilt hung on a critical factor: Was a muddy red stain on his truck fender found near the battered body of Jacquetta Thomas blood? At Taylor’s 1993 trial, prosecutor Tom Ford insisted the substance was blood, telling jurors in closing arguments that “physical evidence does not lie.”

    Seventeen years later, Ford’s argument unraveled. An SBI laboratory report issued in 1991 had led Ford to believe analysts were sure the stain was blood; Ford didn’t know that more specific tests had been performed that contradicted a preliminary finding that the substance on Taylor’s truck could be blood.

    LabCorp performed DNA tests in 2007 and found that the stain wasn’t blood.

    Taylor’s civil claim, brought against the state and five former SBI employees, hinged on whether the way analyst Duane Deaver had reported his findings on the blood was appropriate. In the end, scientific experts hired by the state to defend the lawsuit agreed they would have reported those tests differently, even in 1991.

    All of the following experts were retained by the state to explain and defend the work of the SBI. During depositions, however, each said they would have reported Deaver’s lab work differently. Here’s what they said:

    • Robert Gaensslen a retired professor of forensic science at the University of Illinois in Chicago, said he would have reported Deaver’s findings this way: “There is an indication that blood may be present, but the testing does not prove it.” Gaensslen acknowledged that the negative confirmatory tests were information that Taylor’s lawyers should have been provided because it could be construed as exculpatory.

    • Greg Matheson is a forensic science consultant and former director of the Los Angeles police crime laboratory. He testified that he would have written of Deaver’s results: “A presumptive test indicates the presence of blood, however, the test for human species provided no results.” He said he would have further clarified the report by saying why the confirmatory test may have been negative, including an insufficient sample or degradation of the evidence or “the fact that it’s not blood.”

    • Jill Spriggs is a forensic scientist employed by the Sacramento District Attorney’s Office who spoke at hearings led by North Carolina lawmakers in 2010. She and other leaders of a trade association had defended the work of the SBI. She said under questioning in the lawsuit that she would have reported the results of Deaver’s confirmatory tests by saying “presence of human blood could not be confirmed” or “substance could not be confirmed to be of human origin.”

    • Kermit Channell is executive director of the Arkansas Crime Laboratory. He said that his report in the early 1990s on results obtained by Deaver in Taylor’s case would have read simply: “No blood found.”

  • ‘It’s in the language’

    Under questioning from attorney Burton Craige, Duane Deaver testified in April that a careful reader would have understood that a second blood test in Greg Taylor’s case was negative. The report said two stains gave “chemical indications for the presence of blood.”

    Q: My question is, why didn’t you report the negative results of the Takayama test?

    A: It’s – it’s in the language of the report. The statement indicates the result of the testing and is indicative of the negative Takayama.”

    Q: How is the reader of this to know that, the reader of your official report?

    A: He can ask me.

    Q: Short of asking you, how would the reader know?

    A: I can’t say. It seems obvious to me.

After 17 years in prison, the past three have been dramatic for Greg Taylor. A three-judge panel declared him innocent of a 1991 homicide, and his case spurred a scathing audit of practices at the State Bureau of Investigation’s crime lab. The governor pardoned him, and he recently received a $4.625 million settlement from the SBI and its insurers.

Despite these numerous public acknowledgments of Taylor’s innocence and official wrongdoing, the SBI agents responsible for the case testified this year that they’ve done nothing wrong.

At the heart of the case against Taylor was a stain on his SUV that investigators believed to be blood. A prosecutor billed it as solid proof he had killed a Southeast Raleigh woman.

In 2010, 17 years later, Taylor learned that SBI analyst Duane Deaver performed specific blood tests that suggested the stain wasn’t blood, but made no mention of it in his report to prosecutors.

Ralph Keaton, the assistant SBI lab director at the time, said under oath in May that Deaver didn’t have to report the negative test results. Defendants are constitutionally entitled to exculpatory evidence, which is anything that could suggest their innocence. Keaton insists those negative blood tests aren’t information Taylor had a right to know.

“I do not believe so because I do not believe it’s exculpatory information,” Keaton said in a deposition. “I don’t think it proves anything.”

Taylor sued the SBI agents in 2011 over his wrongful conviction. Before the settlement, the lawsuit generated depositions and documents that reveal a number of other former SBI officials share Keaton’s view. They defended their work, even as Attorney General Roy Cooper and SBI leaders disavowed the former practices. Even SBI-hired experts called on to defend the lab’s work in the Taylor case say they would have worded their reports differently.

DNA tests performed in 2007, prior to Taylor’s innocence hearing, showed the stain was not blood. Still, the lead prosecutor in the case, questioned in May as part of Taylor’s lawsuit, continued to say that the stain on Taylor’s truck was blood.

They defended Deaver’s practices by saying other laboratories and analysts did it the same way in the late 1980s and 1990s. But Taylor’s attorneys found that laboratory policies at several labs around that time – including that of the Federal Bureau of Investigation – would have required disclosure of the negative tests.

Doubting a new test

The jury that sent Taylor to prison in 1993 had been told one thing was for sure: There was blood on the fender of Taylor’s SUV.

Taylor had abandoned his SUV in an isolated area in Southeast Raleigh after a drug-fueled bender; the next morning, police discovered the battered body of Jacquetta Thomas nearby. It seemed an obvious conclusion: The owner of the vehicle must have been involved with the killing.

The stain was the only physical evidence connecting Taylor to the crime.

Deaver ran a preliminary test that indicated two samples of the stain could be blood. A second, more specific test to confirm the presence of blood, known as a Takayama test, was negative on both samples. A third test to determine whether the substance was of human origin came up negative for one of the samples; the other wasn’t tested. In his official report, Deaver wrote that the samples gave “chemical indications for the presence of blood.” He reported nothing about the other tests.

Deaver’s explanation of his actions has shifted several times.

Testifying in February 2010 before the three judges who freed Taylor, Deaver said his bosses and lab policy dictated that he only report the positive results. There was no such lab policy at the time.

When interviewed this year as part of Taylor’s civil lawsuit, Deaver said he didn’t believe the results of the 2007 DNA test performed by LabCorp – and he challenged their work. A LabCorp DNA analysis had concluded that the stain from the SUV was not blood.

Deaver said he believed that his lab testing in 1991 had consumed all of the sample and therefore LabCorp’s analyst had no way to determine the stain wasn’t blood.

Based on his memories of the samples, Deaver said “that would be scientifically incorrect for her to test something that didn’t exist and say there’s no blood present because that would be wrong.”

The SBI fired Deaver in 2011. He has appealed his termination. Since then, he moved to Texas and works as a manager in a hospital’s environmental services division.

Standing behind Deaver

Joseph “Jed” Taub was Deaver’s colleague in the lab in 1991 and reviewed Deaver’s report. Interviewed under oath earlier this year, Taub said the report was complete and said that Deaver was under no obligation to report the negative test result to Taylor and his lawyers.

Taub, retired from the SBI, and other former SBI agents argued that the confirmatory Takayama test was prone to false negatives and didn’t need to be reported.

“The fact that, for instance, a Takayama was negative is not added information,” Taub said. “It’s merely the lack of further information.”

Robert Gaensslen was one of the experts hired to defend the SBI agents. Widely acknowledged by other forensic scientists as the foremost expert on forensic blood testing, Gaensslen has often said that the confirmatory Takayama test has a high rate of false negatives.

When deposed, Gaensslen said his experience with false Takayama negatives occurred in the classroom with novice students, and doubted it happened often in work performed by trained scientists.

“Where the high percentage of failures I was talking about used to come up was when we would teach the test,” Gaensslen said. “These were students obviously. This wasn’t casework but when we were having a lot of people try to do the test all at the same time. It’s a finicky test.”

Gaensslen testified that the presumptive test that Deaver reported is also prone to false positives: malt and vegetable extracts, metals such as iron or lead, and vegetables such as turnips and tomatoes can give false positives.

Mark Nelson, a biochemist in charge of the SBI’s blood testing at the time, defended Deaver’s report: “You can only report the results of positive tests.” He defended the “revealed chemical indications of blood” language used in Deaver’s report.

“I think it’s intuitively obvious to the most casual observers that ‘indications of blood’ does not mean it’s blood,” Nelson testified in his deposition.

In 2001, though, Nelson issued a policy at the SBI on what words to use when faced with a negative Takayama test: “Further testing failed to confirm the presence of blood.” Nelson testified that he changed the policy to cut down on calls from police and prosecutors. After seeing the reports mentioning “indications of blood,” they would ask whether more tests had been done.

Nelson now works for the U.S. Department of Justice, where he administers grants for DNA testing in government laboratories.

In the past three years, Taylor has tried to make up for the 17 he lost. He has traveled to beaches and mountains and spent time spoiling his two grandsons. Taylor visits with his aging parents, who fought to free their son. He’s taught himself how to use all the gadgets and gizmos invented during the time he spent removed from society. Recently, he landed a job as a programmer with a software company.

Taylor tries to push aside the hurt of the officials’ persistent denials they did anything wrong. He reminds himself that none of those men ever met him or had any personal grudges against him.

“They put themselves in this position all these years of being the good guys, they have a hard time realizing that what they did was take the law into their own hands and become the prosecutor, judge and jury,” Taylor said.

‘And I still would’

Tom Ford fought hard to block Taylor’s release in 2010. Ford, a veteran Wake County prosecutor, retired in 2011, but his bitterness toward the Innocence Inquiry Commission process that freed Taylor was clear during his deposition.

Ford was not a defendant in the lawsuit Taylor brought, but he was deposed about his involvement in the case in May. Ford told Taylor’s lawyers in his deposition that Taylor was freed after “a hearing that was based solely on fraudulent information.”

Colon Willoughby, Wake County district attorney, said Ford spoke for himself during the deposition and that his office has taken no formal position on the SBI analysis done in Taylor’s case. When asked in an interview whether he had doubts about Taylor’s innocence, Willoughby said: “It doesn’t really matter what I think.”

Ford acknowledged that Taylor’s lawyers had a right to know about the negative confirmatory test. He doesn’t, however, believe it would have made a difference to the outcome in the case and wouldn’t have changed how he prosecuted Taylor.

During the deposition, Taylor’s attorney, Spencer Parris asked Ford: “You’re saying you would have still argued that what was being seen was blood?”

Ford: “Yeah, absolutely.”

Parris: “Despite the fact that there’s no confirmation of that in any test?”

Ford: “Absolutely. Uh huh. And I argued it in good faith and with sincerity.”

Parris: “Yes, sir, you did.”

Ford: “And I still would.”

Neff: 919-829-4516

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