After an avalanche of bad publicity about the State Bureau of Investigation’s crime lab six years ago, Attorney General Roy Cooper announced changes on more than two dozen occasions about how the lab would operate.
But one assessment of the lab stayed private: a report produced by an independent accreditation agency in December 2010. Among other things, the American Society of Crime Laboratory Directors found problems with the way the ballistics lab – and one of its analysts – was documenting its work.
Only now, during a lawsuit brought against The News & Observer by that analyst, Beth Desmond, has that report surfaced. It has potential ramifications in the campaign for governor, where Cooper, a Democrat, faces incumbent Republican Pat McCrory.
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Desmond sued The N&O, which had written about her analysis of bullet casings and fragments for a murder trial, and reported that her testimony in that trial exceeded what she had written in her lab report. The N&O story also reported that some experts questioned her work in the case.
Her attorney, James Johnson, said the report raised procedural issues that were resolved less than a year later in a final report, which was made public at the time.
“They were focused initially on her case, and the other cases that had been reported on,” Johnson said. “But the attention eventually turned to procedural documentation issues that were not just about Beth, that were fairly common among the lab and other labs at the time.”
But the newspaper’s attorney, John Bussian, says the initial ASCLD report supports the contention that Desmond’s testimony contradicted or exceeded what she wrote in her report.
“It wasn’t inconsequential,” Bussian said. “The fact the government tried to suppress this report for political reasons is what you see reflected in Jim Johnson’s attempt to minimize this.”
A critical review
In a 2006 Pitt County murder trial, Desmond testified that eight casings found at the scene of a shooting had been fired from the same 9mm semiautomatic handgun, and that two bullet fragments had been fired from the same model of gun as the casings. She said she couldn’t determine if the fragments were actually fired from the same gun. The weapon was never found.
Outside the jury’s presence, Desmond testified before the judge “with absolute certainty” that the bullets were fired from the same type of gun. But her lab report was less conclusive, finding only that the two bullet fragments had characteristics consistent with the same type of weapon.
That testimony to the judge helped persuade him to permit a demonstration of the same make and model of gun in front of the jury. The testimony also effectively foreclosed the defendant’s defense about a possible second shooter on the scene.
The ASCLD inspectors noted Desmond’s lack of documentation in the lab. They noted there were no diagrams, sketches or photographs. They were unable to establish whether procedures were followed so other examiners or supervisors could support or refute her conclusions.
Inspectors said they couldn’t determine based on documentation if Desmond had sufficient data to support her testimony in court about the two bullets. They noted she had not conducted a specific kind of ballistics test; they also said that SBI analysts were linking bullets with casings without performing proper tests.
The lab had no record to indicate whether internal procedures were followed when a defense expert questioned the lab’s work. The ASCLD report concluded that in the ballistics division, three “essential criteria in the 2008 ASCLD/LAB accreditation manual do not meet accreditation requirements.”
“Based on the examination documentation in the case record, the inspection team was unable to determine whether or not the bullets were fired from a Hi-Point 9mm caliber pistol,” the report said. “In short, it is not possible to determine if the firearms examiner had sufficient information available to support the documented conclusions (report) and testimony.”
In a written response to ASCLD, lab director Joe John Sr. defended his agency. He said the SBI manual didn’t require sketches or photographs for firearms analysis and that the test Desmond hadn’t performed could have subsequently been done by another examiner to evaluate her work. He also said that while the agency had a policy on how to respond when another forensics expert calls the lab’s work into question, in this case it was defense attorneys and the newspaper challenging the work.
SBI didn’t agree
The ASCLD report was presented to the SBI in December 2010, but it was not mentioned in department press releases or made public.
The report was part of the fallout from a series of stories in The News & Observer in August 2010 about problems at the SBI and the crime lab, including its propensity to favor the prosecution rather than to work as a finder of fact. Shortly after that, an audit was released that Cooper had commissioned to review cases that had involved blood evidence. It found problems with 230 cases.
The newspaper coverage prompted ASCLD to make sure the lab was operating up to standards by conducting an interim inspection, which was an uncommon step between the mandatory accreditation inspections every five years, according to Michael Grubb, a San Diego police crime lab director who was chairman of ASCLD at the time.
Cooper’s justice department sent out nearly 30 news releases from 2010 to 2012 touting a long list of improvements in the crime lab. Also included was release of a report by a former FBI firearms expert who generally supported Desmond’s analysis in the Pitt County case.
That expert, Stephen Bunch, wrote a report saying his findings were inconclusive but that he leaned toward the notion that the bullets could have been fired from the same gun.
“My finding from this examination was inconclusive, with a ‘tilting’ towards the proposition they could have been fired from the same barrel,” Bunch wrote.
He also said at the time in an interview with The N&O that Desmond’s testimony before the judge had gone beyond the findings of her lab report. He said he would not have testified with certainty.
Cooper also hired a new director of the SBI and named John, a former judge, to run the crime lab, in an effort to address problems dating back to the 1990s. In an introductory address to crime lab employees, recorded on video, John reassured the ranks.
“I’m not here to fire anyone,” he said. “… The attention focused on this lab is not the fault of anyone in this room.”
John oversaw the lab’s formal response to the ASCLD critique and conducted an internal review of Desmond’s testimony and the newspaper stories. John didn’t include the ASCLD critique in his review of Desmond. In a memo on his findings, he strongly concluded there were no grounds to pursue “corrective action” against her. He said the articles were either misleading or inaccurate.
In a phone interview Tuesday, John was asked why the initial ASCLD report was never made public.
“All I can say is we challenged many of the statements in that ASCLD report,” John said. “I prepared a report strongly disagreeing with much of what they said. Ultimately, they concluded we had addressed any and everything they pointed out in their first report.”
In Desmond’s libel suit against The N&O and reporter Mandy Locke, her attorney persuaded Superior Court Judge Graham Shirley to exclude the ASCLD report from being entered into evidence in the trial, which is scheduled to begin Sept. 26. The newspaper has asked the judge to reconsider.
Bussian’s motion argues the SBI and the state Department of Justice tried to “conceal” the report when it was completed more than five years ago in an attempt at “political damage control.” The lawsuit is really more about defending the reputation of justice department officials than it is clearing Desmond’s name, Bussian said.
A November 2011 press release from Cooper’s office included a link to the final ASCLD report but not to the initial report, which was more detailed and specifically referred to Desmond’s work.
John left his job as crime lab director in June 2014. He is now running as the Democratic nominee for a seat in the state House representing Wake County, currently held by Rep. Marilyn Avila, a Republican from Raleigh.
McCrory’s campaign has criticized Cooper for past crime lab problems. Cooper’s office declined to comment on why the initial report was not made public when it was finished, citing the pending litigation.
Earlier this month, McCrory’s re-election campaign distributed by email a story published in the Carolina Journal, a publication of the John Locke Foundation. The story reported on a recent hearing in the lawsuit in which Bussian said the real purpose of the lawsuit was to deter the news media from reporting on misconduct in the crime lab under Cooper’s watch.
At the same time, the Republican Governors Association launched a TV ad campaign against Cooper that highlights problems with the crime lab.
The Republican-dominated General Assembly separated the lab from the SBI and moved the SBI under the supervision of the governor’s administration instead of the attorney general’s. Cooper still oversees the crime lab.
Cooper inherited many of the problems after he took office in 2001. All but 11 of the 230 tainted blood-evidence cases were closed before he became attorney general. Agent misconduct in criminal cases led to the state and its insurers paying more than $16 million to three wrongfully convicted men; the misconduct came before Cooper’s administration, but the AG’s office fought to defend the state in the cases.