SBI’s rule not just bad, but unfair!

As SBI Agent Duane Deaver testified at Gregory Taylor’s February 2010 hearing before the three judge panel, he was merely following established protocol by withholding from the 1993 jury, blood test results that would have been favorable to murder defendant Gregory Taylor. This revelation spewed forth from the front page of October 13, 2010 edition of The News & Observer in an article titled “SBI vet wrote bad rule for tests.” Whoever wrote that headline was generous towards the SBI director by merely stating that the rule written for the lab test was "bad." The truth of the matter is that it was downright unfair. The rule, which had been in practice for decades, and put in writing in 1997, embraced the practice of reporting positive lab results and withholding negative results… a practice which placed defendants at a definite disadvantage.

Prosecutors were aware of this policy and the general mindset in the lab, and in all likelihood, pushed for it. The SBI lab, instead of being an honest broker when it came to analyzing evidence, was instead a biased arm of the prosecution engaging in approved hocus-pocus with evidence in order to help the prosecution win a conviction. The 25 year veteran SBI agent who wrote the policy, Mark Nelson, retired from the SBI in 2002, and is currently a senior program manager at the National Institute of Justice in Washington, DC. The written policy put in place by Mr. Nelson was approved by officials in the Attorney General’s Office.

To suggest that prosecutors were unaware of the prejudicial and misleading policy and practices of the SBI lab, is not within the realm of belief, especially in light of the existence of 1997 policy. It was the prosecutor’s drive to win convictions at all costs that resulted in such a policy being implemented in the first place… especially the more inept prosecutors like Tom Ford who heavily relied on winning a conviction by using perjured testimony in exchange for promises of leaner sentences.

For a specific example of the gross injustice of the practice, consider the following. If a presumptive test for blood was positive (indicating that blood, along with other substances might be present), but the confirmatory test was negative (meaning that no blood was present and that the positive presumptive test was due to a non-blood agent), then the lab report was to read that the tests “revealed chemical indications of blood.” This would lead a reasonable person to believe that the substance tested contained blood. The scenario just mentioned is exactly what transpired in the Gregory Taylor case. And the so-called “blood on the bumper” evidence was a significant piece of the pie that resulted in Gregory Taylor’s conviction.

What is truly disheartening is the observation by Bob Gaesslin, a professor of serology at the University of Illinois in Chicago. He acknowledged that such incomplete and misleading reporting of test results is “not completely forthcoming, but people have always done it.” Mr. Gaesslin, who has written authoritative serology books used by law enforcement, I believe, is accurate in his assessment of prevailing practices in courts nationwide.

My eyebrow is raised with his comment about why juries are not told about negative confirmatory tests when presumptive tests for blood are positive. He states: “I don’t know whether we think that people aren’t going to understand the report if we put them in, or if it’s an effort to not give the cross examiner a lot of cannon fodder…” The answer is negative with regards to the first part of the statement. A person of average intellect should have no difficulty understanding the difference between a presumptive and confirmatory test and their implications. Laboratory techs should be able to satisfactorily explain this to the people seated in the jury box. Regarding the second part of his statement, he is absolutely right on… the person testifying about lab results unfavorable to the prosecution try to hide the truth from the defense attorney. By misleading the defense attorney, there is no doubt going to be very little in the way of cross examination. That is the sole reason why the court does not hear about negative confirmatory test results, when presumptive ones are positive… to mislead the defense, the judge, and the jury.

Regarding the misleading practice, Mr. Gaesslin concludes, “but everyone does that and they still do it.” This statement is sad but true. And the reason for this has to do with the "win-at-all-costs" attitude of many prosecutors, which has supplanted and made a complete and total mockery of its supposed “minister of justice” role.

As a proximate result of the uneven playing field, many innocent people are languishing behind bars at taxpayer expense, while funneling hard earned taxpayer dollars into corporations with financial interests in the correctional system and maintaining full occupancy. The politicians and media, alike, have no qualms about the unjust incarceration of innocents because they are in very large measure the poor, disenfranchised, and people of color… those within a capitalistic society who are expendable… a society with a tenet of “selective justice based on Class and Color” which pampers the well-heeled and crushes the downtrodden who are caught up in the criminal system.