Friday, December 23, 2011

Expert bias, continued

The links in my previous post no longer work, so I am copying the articles in full here.  To refresh your memory, these are articles about the cases overturned in North Carolina because of the egregious misconduct by SBI Agent Duane Deaver.  One of the cases involved is the infamous Michael Peterson case, and he is getting a new trial.  The last of the 3 articles focuses on the District Attorney involved.

Novelist Michael Peterson will get new trial in wife's death
By Joseph Neff
The (Raleigh) News & Observer
By Joseph Neff 
Posted: Wednesday, Dec. 14, 2011

Michael Peterson reacts after Judge Orlando Hudson ruled that he will get a new trial. Hudson found that former SBI agent Duane Deaver misled the judge and jury in 2003, when his testimony helped convict Peterson in the death of his wife, Kathleen Peterson.

Michael Peterson's daughter Martha Ratliff hugs investigator Ron Guerette after Judge Orlando Hudson ruled that Peterson will get a new trial. Hudson found that former SBI agent Duane Deaver misled the judge and jury in 2003, when his testimony helped convict Peterson in the death of his wife, Kathleen Peterson.

Michael Peterson listens to witness Tom Bevel at his hearing.

Michael Peterson, the former Durham novelist convicted of murder in 2003, will get a new trial, a judge ruled today.

Judge Orlando Hudson found that former SBI agent Duane Deaver misled the judge and jury in 2003, when his testimony helped convict Peterson in the death of his wife, Kathleen Peterson.

Deaver misled the jury about the validity of his experiments at the trial, Hudson said.

Hudson also found that Deaver gave perjured testimony.

"Is a new trial required?" Hudson asked. "The answer is yes."

Peterson put his hand to his forehead and closed his eye as Hudson ruled. His family and friends crowding the court bench behind Peterson hugged each other, with several of his children quietly sobbing. 

Clayton Peterson said he has always believed in his father's innocence and was shocked as evidence of Deaver's misconduct accumulated over the six days of the hearing. David Rudolf, Peterson's attorney, presented video clips of Deaver's testimony at trial and then contradicted them with SBI records and expert testimony.

"I became increasingly angry and disgusted," Clayton Peterson said. "Seeing the evidence presented, I am just disgusted."

A bond hearing is scheduled for 2:30 p.m. 

Durham District Attorney Tracey Cline argued that Peterson should be denied a new trial because Rudolf could have discovered all the evidence about Deaver before the 2003 trial.

"The same information was available back in 2001," Cline said. "There is no new evidence that would make the jury reach a different verdict."

Cline declined to discuss whether she would pursue a perjury investigation against Deaver, given Hudson's ruling that Deaver presented "perjured testimony."

In general, perjury investigations are difficult, Cline said. 

A prosecutor must first establish the truth, Cline said. 

"And we have to show that he knew the truth and testified otherwise, and that is difficult," Cline said. 

SBI assistant director Erik Hooks said in an interview last year that he could find no instance of an SBI agent being charged with perjury. 

Read more:

SBI agents' testimony is critical of Deaver
By Joseph Neff
By Joseph Neff 
Posted: Saturday, Dec. 10, 2011

Modified: Friday, Dec. 09, 2011 Michael Peterson had the fourth day of his hearing in quest of a retrial Friday at the Durham County courthouse. CHUCK LIDDY -

The hearing into Michael Peterson's request for a new trial resumes Tuesday morning in the Durham courthouse.
David Rudolf, Peterson's lawyer, said his final two witnesses - an expert and a detective - will testify Tuesday. Rudolf said he does not plan on calling Duane Deaver.

District Attorney Tracey Cline did not specify whether she will call any witnesses.

DURHAM The pro-prosecution bias of former State Bureau of Investigation agent Duane Deaver was so strong that it angered and discomforted fellow agents re-examining evidence in the case of Greg Taylor, a Raleigh man later exonerated in a 1991 murder, two agents testified Friday.

Deaver repeatedly insisted Taylor was guilty, the agents said. Deaver was hostile to their efforts to re-examine evidence, they said. And Deaver was indignant when one agent refused to testify he could identify a stain on a car as blood solely by looking at a picture of the vehicle.

"Could I identify it as blood in the picture without testing?" agent Russell Holley testified Friday. "I can't do that."

The two agents testified at a hearing for Durham novelist Michael Peterson, who is seeking a new trial because of what his lawyer calls a history of misconduct and bias by Deaver, a key expert witness for the prosecution at Peterson's 2003 murder trial. Peterson was convicted of the murder of his wife, Kathleen Peterson, a Nortel Networks executive who was found dead at the bottom of a bloodstained staircase in their Forest Hills mansion.

David Rudolf, Peterson's lawyer, has spent the week tearing into the credibility of Deaver, arguing that Deaver had a pattern of fabricating evidence of guilt, hiding evidence of innocence, and tailoring his testimony to fit the prosecution theory.

The evidence Friday did not come from expert witnesses or defense lawyers, but from inside the SBI, an agency whose inner workings are seldom seen in public.

SBI agent Kristin Hughes, a forensic biologist and DNA expert, was assigned to re-examine the evidence in Taylor's case before a September 2009 meeting of the N.C. Innocence Inquiry Commission. Deaver had done the original lab work, and Hughes left repeated messages for Deaver asking for help to understand his lab notes.

"He was not willing to come over and help decipher his notes," Hughes said.

'Well, why not?'

Hughes then described a meeting she attended in August 2009 with Wake County prosecutor Tom Ford, Deaver and Holley.

Deaver showed up with "an attitude" and without his case file or notes, even though it is standard practice to bring case files to a meeting with prosecutors, Hughes said.

When Hughes and Holley asked where his case file was, Deaver was dismissive, saying "I don't have these any more."

Ford brought a photo of Taylor's truck, which was stuck in the mud at the crime scene. There was a small reddish-brown stain on the truck.

"Deaver said, 'That's blood,' " Hughes testified.

Holley disagreed. They needed lab tests, not a picture, to identify blood.

Hughes said Deaver quickly shot back condescendingly: "Well, why not? You're a trained analyst. You should have enough experience to say there's blood in the picture."

That stain was crucial in exonerating Taylor. A preliminary test for blood was positive. In his 1993 lab report, Deaver wrote that the stain contained "chemical indications of blood."

Deaver also ran a more specific, confirmatory test for blood that came back negative. He did not mention that negative result in his lab report. At Taylor's trial, police and prosecution referred to the stain as "blood." The stain was the only physical evidence against Taylor, who insisted on his innocence from his first encounter with police.

Ford did not return a phone message left at his home. Deaver and his lawyers have declined to comment.

New tests, different results

Holley, who examines blood and other body fluids, said he ran tests on the same item of evidence where Deaver noted chemical indications of blood. Holley said all preliminary tests came back negative, and he did not run confirmatory tests.

Holley also examined slides taken from a vaginal swab of the murder victim, Jacquetta Thomas. Deaver had written that there was no sperm present. Holley said he identified sperm; so did two lab trainees who looked at the slide at Holley's request. (The sperm was tested, but did not match Taylor, his friend with him the night of the murder or anyone in a national DNA database.)

Holley described the meeting with Deaver and Ford as "strange and uncomfortable."

Holley recalled Deaver was adamant Taylor was guilty, saying "I know he's guilty. Why are they doing this to us? They are dragging us through the mud."

Hughes said she had a similar recollection about a series of comments from Deaver: "He's guilty." "He did it." "He's where he needs to be." "He'd never survive a hearing." "This was all to see if they can get him out."

Neither Hughes nor Holley thought Deaver's comments were appropriate; forensic scientists are tasked with being unbiased, using science to find facts irrespective of whether the truth helps prosecution or defense. "I didn't care if he (Taylor) was innocent or not," Holley said. "If he was guilty, that's fine. If he's innocent, that's fine."

Holley said he wasn't able to say why Deaver found blood but not sperm, or why Deaver was so insistent on Taylor's guilt. But Deaver's behavior made the agents angry and uncomfortable, they testified.

"We got out of there as quick as we could," Holley said.

Confusing the defense

The final witness Friday was Chris Swecker, a former assistant director of the FBI who, following Taylor's exoneration, conducted an audit of blood cases handled by the SBI crime lab at the request of state Attorney General Roy Cooper.

Swecker and another retired FBI assistant director identified more than 200 cases where the official SBI lab reports did not reflect the results obtained in the laboratory. The most serious mistakes, where the official reports and lab bench notes contradicted each other, were contained in reports written by Deaver, Swecker said.

Under cross examination by Durham District Attorney Tracey Cline, Swecker said he found no evidence that any SBI employee had intentionally withheld or fabricated evidence.

The problem, Swecker said, was a cultural bias within the SBI in favor of the prosecution.

Swecker said he asked Deaver for whom he was writing his reports.

Deaver's answer: police and prosecutors. If he reported a negative test result, there may be a misunderstanding because tests can deliver a false negative. A negative test result did not necessarily mean there was no blood, he told the retired FBI agents. Who would misunderstand or be confused by a negative test result? Rudolf asked. The jury?

"I had in my notes that it would confuse the defense," Swecker said. "The defense might say there was not blood." 

Read more:


First hearing set on Cline's BY J. ANDREW CURLISS The News and Observer 

Lawyers have started attacking arguments that Durham District Attorney Tracey Cline made in a series of court filings late last month as she seeks to prevent Judge Orlando Hudson from handling criminal cases while she pursues a complaint of 
misconduct against him.

A first decision point on Cline's efforts to disqualify Hudson has been set: A hearing is scheduled for Monday. Hudson, the senior resident Superior Court judge, will not handle it. He has asked Carl Fox, the senior judge in Orange County and a former district attorney, to handle the arguments.

Cline has alleged in her filings that Hudson cannot be fair to her or her office based on his rulings in several recent cases, including the dismissals of two murder charges in part because he found misconduct by Cline. The district attorney says she has done nothing wrong. 

Cline wrote in court documents that Hudson's rulings have "raped" victims and are based in "fictitious findings." Cline disclosed that she has filed a complaint with the state commission that oversees judges' conduct, though her exact complaint is not public. The filings are similar to appeals that are ongoing before the state Court of Appeals in the dismissed murder cases.

Hudson disputes Cline's allegations, and said he welcomes any review.

Cline's writings have garnered national attention and brought criticism from judicial experts who called them an unprecedented attempt to sidestep the appeals or recusal processes.

Upcoming cases

In the meantime, cases that Hudson would be handling are coming up on the court calendar, prompting a new round of filings - and Monday's scheduled hearing.

Cline has filed papers seeking to remove Hudson from deciding an appeal by convicted murderer Michael Peterson, a former novelist whose case has been the subject of documentaries and intense media coverage. Peterson's bid for a new trial is scheduled to be heard next week.

In another, Cline wants Hudson off a post-conviction appeal being advanced by convicted rapist David Yearwood, who was featured in a News & Observer series of articles about Cline in September. The series, "Twisted Truth," reported that Cline had withheld evidence from defendants and had made misstatements to judges in several cases.

Cline said Hudson should be prevented from overseeing the Peterson case because he is commissioned to serve in another county until next year as part of the court system's regular rotation of judges.

Peterson's lawyer, David Rudolf of Charlotte, has responded in a filing that says state law provides wide latitude for appeals to be heard by the judge who presided at a trial, including that the law says a judge can take action "even though he is in another district or even though his commission has expired."

Hudson was the judge on the Peterson trial, which lasted three months.

The reason Hudson should remain, Rudolf wrote, is clear: He oversaw the trial and listened to the testimony. The issue in the Peterson appeal focuses on the work of an SBI agent whom Hudson qualified as an expert.

Rudolf said Hudson is in a "unique position" to assess new evidence he wants to bring forward.

Rudolf wrote also that the conduct of Cline and the district attorney's office is not at issue in Peterson's appeal and that Cline's allegations have no relevance to the case.

In the Yearwood case, Cline alleges that Hudson improperly appointed a lawyer, Heather Rattelade, to work for Yearwood and that Hudson is behind allegations Rattelade made about misconduct by Cline.

Cline and Rattelade have previously exchanged pointed court filings about the case, particularly about documents filed under seal that were obtained by The N&O that Cline has not been able to review.

Lawyer responds

In a response this week to Cline's efforts to remove Hudson, Rattelade wrote that Cline's request to remove the judge should be stricken from the record. She argues that Cline's filings are "unsupported by facts," are based in "inflammatory conclusory statements," and are designed to "shop for a more favorable judge."

The appropriate response, Rattelade wrote, is for the request to be dismissed or for Cline - not the judge - to step out of handling the case if there is some concern about partiality.

"District Attorney Cline's 'Request' should be stricken from the record because it is solely intended to disrepute and to destroy public confidence in the integrity of the Durham County General Court of Justice," Rattelade wrote.

Curliss: 919-829-4840 

Read more:


Marlene Newell said...

An excerpt from the 1st article above:

"Durham District Attorney Tracey Cline argued that Peterson should be denied a new trial because Rudolf could have discovered all the evidence about Deaver before the 2003 trial.

"The same information was available back in 2001," Cline said. "There is no new evidence that would make the jury reach a different verdict.""

Did Cline know about the misconduct by Deaver before the trial? Sounds like she did, and hoped the defense wouldn't notice, which they didn't. Defense attorneys take notice, DON'T take anything from the State's experts at face value.

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