Investigations into the Policies, Procedures, and Practices of the N.C. SBI Forensic Laboratory

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In March 2010, North Carolina Attorney General Roy Cooper commissioned former FBI agents Chris Swecker and Michael Wolf to investigate the policies, procedures, and practices of the SBI forensic laboratory. The state mandated independent review of the North Carolina SBI forensic laboratory occurred after questions arose as to whether lab serologists improperly withheld or incorrectly recorded lab results in criminal investigations. The investigation, covering the years between 1987 and 2003, cited 230 cases with possible mishaps.  A common theme in the review was that the reports mentioned positive indications for blood but omitted negative indications from differing tests.

The review provoked features in the Charlotte Observer and The [Raleigh] News and Observer, which caused a public outcry and ensuing accusations.  A year after the state mandated review, two men with ties to the embroiled forensic laboratory have provided defenses to the review’s assertions.

The Review of the SBI Forensic Laboratory

Although the review did not identify any systematic problems it claimed that serious issues arose from certain factors at the forensic laboratory, including: poorly crafted policy, lack of objectivity, reporting methods that gave too much discretion to individual analysts, lack of transparency, and ineffective oversight.   In addition, the review made certain recommendations. Concerning the 230 potentially erroneous cases, Swecker suggested that the respective District Attorney’s offices and defense counsels review the potentially erroneous cases to determine whether harm resulted. Additionally, there was a push for greater transparency of the SBI forensic lab’s policies and test procedures. There was also a suggestion by high-ranking state representatives that the current accrediting agency was insufficient and that a new one may be required.

A Former SBI Serologist’s Inside Perspective

Having spent over 30 years with the SBI, Bill Weiss performed multiple duties, from field investigation to lab analyst. During the period in question, Weiss spent several years as an SBI Forensic Lab Serologist. Equipped with an insider’s perspective, Weiss was shocked from a purported “biased attempt” by Swecker to judge a laboratory with which the author “had little knowledge” and of a science that the author had little understanding.

Weiss contends that Swecker failed to gain valuable and accurate information by not giving lab analysts opportunities to explain their reports. This lack of discussion occurred even when serologists were accused of “overstating” or “incorrectly” recording information. By limiting input, Weiss believes that Swecker restricts lab analysts professional, informed judgments.

Swecker may also have authored his review of the SBI forensic laboratory without considering the era being studied. His report criticized the often-utilized SBI laboratory phrase “chemical indications of blood,” as misleading and unfair. Weiss claims that this was the scientific standard during that era. By questioning the accuracy of this phrase, Weiss believes it suggests that the lab report’s readers do not understand what “indication” means. He defines it as “to hint” or “to suggest.”

According to Weiss, accusations for the failure to disseminate discovery were wrongly placed on the SBI lab. He points to N.C. Gen. Stat. § 15A-903, which orders prosecutors to provide defendants with complete discovery and for the “investigatory agencies” to give complete investigation files to those prosecutors. Weiss argues that since pertinent bench notes, holding all additional information, were included in the files sent to prosecutors a failure to produce discovery would have been the prosecutor’s responsibility.

It has been questioned whether Swecker fully comprehended the scientific process he was reviewing. Weiss points to forensic misstatements and errors in Swecker’s review of Takayama blood tests. For example, Swecker repeatedly labeled those tests as “more sensitive” to detecting blood than Phenolphthalein tests. This is inaccurate because Phenolphthalein tests are, in fact, much more sensitive. Additionally, Weiss claims Swecker “incorrectly assumed that a negative Takayama test means that there is no blood present.” Rather, Weiss explains that a negative result could either mean the tested substance is not blood OR it is blood but an extenuating factor has interfered with a positive result.

ASCLD/LAB’s Investigation of the SBI Forensic Laboratory

Ralph Keaton also worked for the SBI lab during the period in question. He retired in 1995, leaving the lab’s second highest position to become the Executive Director of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB). By accrediting over 400 labs worldwide, the most in the United States, ASCLD/LAB is the largest forensic lab accrediting agency in the world. This Society has been and remains the SBI’s Forensic Laboratory’s sole accrediting agency.

Keaton defends against suggestions that ASCLD/LAB failed to properly oversee the lab. In response to accusations that the SBI lab analysts’ reports were inaccurate and intended to hide exculpatory information, ASCLD/LAB conducted its own investigation into the SBI forensic lab. The investigation refutes much of Swecker’s claims.

ASCLD/LAB’s investigation found that lab reports during the era in question were supported by examination documentation. Proof was never found of any intentional attempt to conceal blood test results. ASCLD/LAB also found that the grammar and vocabulary used in the blood test reports, such as “chemical indications of blood,” were consistent to phrases used during that era and were believed to convey the message of an “unconfirmed indication of the presence of blood.” The investigation also supported Weiss’ contention that positive results in a Takayama test confirmed the presence of blood, while a negative test result did not prove a lack of blood.

Even though ASCLD/LAB’s investigation did not reveal any erroneous or intentionally misleading lab reports, the agency still quests for continuing clarity and transparency in the manner that test reports are written by accredited labs. As science advances Keaton claims that ASCLD/LAB’s standards also advance.

These changes can be seen when comparing 1993 lab test reporting standards to 2010. The latter requires that written reports must be generated for all work done by the laboratory with the significance of associations being communicated clearly and qualified properly. The former standards only require that reports “fall within the range of acceptable opinions of knowledgeable [forensic scientists] or be supported by sufficient scientific data.”

Keaton admits that it is not possible for an accrediting agency to review anything more than a “sampling” of a serologist’s work. However, even if mistakes occasionally occur in a lab, ASCLD/LAB asserts that it is “far less likely” that mishaps will occur if laboratories “rigorously adhere” to the Society’s accreditation standards.

Anthony Klish will graduate from Campbell Law School on Friday, May 11.  He may be contacted at aa*********@em***.edu.