Restoring Hop Sing's faith in forensic science

The following guest editorial was published by the Winston-Salem (NC) Journal on January 23, 2011.

Restoring Hop Sing's faith in forensic science

BY MARK RABIL

I first had faith in forensic science when I saw the episode of “Bonanza” in the 1960s in which the Asian servant Hop Sing proved Little Joe’s innocence of a murder charge through the ancient Chinese art of fingerprinting.

My faith in properly performed forensic science was reinvigorated in 2003 when DNA testing finally solved the 1984 Sykes murder by identifying Willard Brown as the rapist-murderer. Coupled with Brown’s confession that he acted alone, the court exonerated Darryl Hunt and the governor issued a pardon of innocence.

Most of us assume that if an innocent person is charged with a crime that he will be cleared by forensic science — as on “CSI.” This is what hundreds of innocent people who were wrongfully incarcerated thought, too. Crime victims and their families also believed in forensic science. What I have learned in my three decades of working in the criminal-justice system is that we can be blinded by the power of the words “forensic science” just as we can be fooled by faith in any human process.

DNA testing is now the gold standard of forensic science. In the last two decades, 265 innocent people have been freed by DNA, including 17 from death row. Seven of the 265 DNA exonerees are from our state. My faith in forensic science has been shaken, however, by the revelation that 50 percent of those exonerated by DNA were wrongfully put in prison by improper forensic-science methods or testimony.

In Raleigh last year, Greg Taylor was freed after 17 years by a three-judge court due partly to misrepresentations by the North Carolina SBI Laboratory. In line with the lab’s practices, SBI Agent Duane Deaver turned over only one test result that gave a “false positive” showing that there was blood on Taylor’s truck. That was the only physical evidence that connected Taylor to a murder. Deaver did not disclose subsequent, more reliable tests that showed there was no blood on Taylor’s truck.

In Durham, Derrick Allen was freed last year because the SBI laboratory failed to disclose serology tests that showed innocence. In 2009, George Goode’s death sentence was reduced to life because a federal judge found that Deaver gave “misleading” testimony. In the Goode case, the SBI repeatedly disparaged the defense attorney, who pointed out the false testimony for many years. Also in 2009, a Davie County jury found Dr. Kirk Turner not guilty of murder, in part because, as the jury foreman said, Deaver’s testimony was “fraud.”

I have also seen improper practices by the SBI laboratory in murder cases I have defended. In the Francisco Laboy case in Catawba County, the SBI lab violated several court orders by using all the alleged blood evidence during DNA testing and by continuing to conduct testing after the court ordered it to stop so that defense experts could have access to evidence.

In the Hunt case, the SBI lab expert testified in court in 1985 and 1990 that “masking” of the suspect’s bodily fluid by the victim’s fluid could have given a false impression of innocence. This enabled the prosecutors to argue that Hunt was still guilty even though his blood type was “B” and the suspect’s fluid sample from the rape kit was “O.” In 2004, I found out that the true rapist and killer’s blood type was “O,” and that the SBI had known since 1986 that Brown’s blood type was “O.” The point is, the laboratory analyst who testified against Hunt was an SBI agent — a sworn law-enforcement officer — and her badge gave her misleading testimony the ring of truth.

In reaction to Taylor’s exoneration, N.C. Attorney General Roy Cooper commissioned a study of the SBI lab by two retired FBI agents. They concluded that these questionable practices by the SBI lab’s serology section were used in 230 cases. Other sections of the lab are still being audited. More convictions could be called into question.

Shouldn’t forensic scientists speak the truth about their work? Shouldn’t their testing records be disclosed so that prosecutors, defense attorneys and jurors know what tests were performed? If mistakes like these are being made, citizens are not getting their money’s worth. Many guilty people may go free and many innocents may be wrongfully imprisoned or executed. The hard work of detectives and investigators will be flushed away because of bad scientific practices.

Scapegoating is not the answer. Earlier this month, the SBI fired Deaver — the agent who gave misleading testimony in the Taylor and Goode cases. This firing will not solve the underlying structural and cultural problems at the SBI laboratory. Creating an independent crime lab in this state would be a start. It would make Hop Sing proud.

Mark Rabil is the co-director of the Wake Forest Innocence & Justice Clinic.