Judge upholds SBI’s firing of Duane Deaver

akenney@newsobserver.comAugust 26, 2014 

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Former SBI Agent Duane Deaver looks back at his wife, Karen, during the last day of a three-day hearing before the Office of Administrative Hearings in Raleigh on Friday. Deaver was in court challenging his 2011 firing.

CHUCK LIDDY — cliddy@newsobserver.com Buy Photo

— An administrative judge has upheld the state’s firing of a State Bureau of Investigation agent involved in several messy court cases, including an overturned murder conviction.

James L. Conner II sided with the SBI on all three causes it listed for firing Duane Deaver, handing the agency another victory in a war of appeals with its former employee.

The decision isn’t the end – the matter now goes to the State Human Resources Commission – but the ruling issued Tuesday amounted to a thorough endorsement of the SBI’s arguments.

The judge found fault with Deaver’s attorney’s theory that the former agent was a scapegoat for broader problems at the SBI, as a “means of deflecting public criticism,” Conner wrote. Deaver was fired in 2011 following a barrage of controversial cases and critical media reports.

The agent failed to report the result of blood tests helpful to Greg Taylor, who spent 19 years in prison for a murder he did not commit. A judge also ruled that Deaver committed perjury in the 2003 murder trial of Durham novelist Michael Peterson, who was awarded a new trial.

“It may well be that others at the SBI should also have been terminated or otherwise disciplined. However, the evidence for (Deaver) fell far short of showing disparate treatment,” Conner wrote, saying that it is Deaver’s duty to present such evidence if he has it.

Deaver didn’t testify during the three-day hearing, leaving much of the talking to a parade of current and former SBI officials. But his lawyer said Tuesday that he would continue to try to regain his job.

“We’re going to fight as hard as we possibly can, and continue to fight as long as we possibly can,” said Philip Isley, an attorney for Deaver.

He said the case could continue past the commission and on to Superior Court and the state’s Court of Appeals.

“This is … the third inning of a nine-inning game,” he said. “We’re going to move forward, per the procedure.”

‘Misleading testimony’

Conner also rapped knuckles for what he saw as a “distasteful disregard” for the state’s judicial system on the part of Deaver, via his legal counsel.

“Contempt dripped from the lips” of Deaver’s lawyer during discussions of Superior Court Judge Orlando Hudson, Conner wrote.

Hudson in 2011 vacated the murder conviction that put Peterson behind bars for eight years, ruling that Deaver conducted unscientific experiments and misled the jury about his experience and credentials.

In his ruling Tuesday, Conner also criticized Deaver’s team for its comments about the N.C. Innocence Inquiry Commission.

The commission – composed of judges, law enforcement officers and lawyers – had accused Deaver in 2010 of misleading it, charging him with contempt after he testified before it about bloodstain analysis in Taylor’s overturned case.

The innocence commission’s contempt charge against Deaver was dismissed after mediation, but it is one of three reasons the SBI listed for Deaver’s firing. The judge found also that Deaver’s “misleading testimony” was a violation of SBI rules.

“None of this reflects well on (Deaver), who was seeking reinstatement to a position of trust in service to our system of justice,” Conner wrote.

Breaking other rules

The administrative judge also sided with the SBI on the two other causes it listed for the firing.

Conner found that Deaver had “willfully violated” an SBI rule when he distributed a confidential criminal analysis by attaching it to a complaint about another law officer. He also broke the rules by becoming involved in that complaint without his boss’s permission, Conner wrote.

The judge also agreed that comments by Deaver captured on video were “unbecoming.” In May 2009, the judge wrote, Deaver was recorded saying, “Beautiful. That’s a wrap, baby,” after a fellow agent managed to replicate a stain on a T-shirt.

SBI officials said the comment was unprofessional and hurt the credibility of the SBI for the jury in a Davie County murder trial. Deaver was not fired for the underlying experiment, which many bloodstain pattern experts have derided as pointless and unscientific.

Taken as a whole, Conner found, those allegations were “just cause for dismissal.”

The case’s next stop is the State Human Resources Commission, formerly known as the State Personnel Commission. The commission next meets Thursday, but its agenda did not list Deaver’s case as of Tuesday afternoon. The commission meets again Oct. 9.

Once there, the parties may again argue their positions, but the time limit is 10 minutes unless the commission votes for an extension.

Staff writer Joseph Neff contributed to this report.

Kenney: 919-829-4870; Twitter: @KenneyNC

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