Former SBI chief says agency's reasons for firing analyst shaky
Posted April 2, 2014
Raleigh, N.C. — A former State Bureau of Investigation director on Wednesday questioned the agency's reasoning for firing a discredited blood analyst three years ago.
Robin Pendergraft was the first witness for Duane Deaver, who has appealed his January 2011 termination in the state's Office of Administrative Hearings.
In his nearly 25-year career at the State Bureau of Investigation, Deaver went from being a rising star – he was the go-to guy for blood stain analysis – to being a lightning rod, the symbol of a system accused of withholding evidence.
A 2010 independent review of the crime lab concluded that SBI analysts had frequently misstated or falsely reported blood evidence in about 200 criminal cases during a 16-year period ending in 2003.
Some of the most egregious violations found were linked to Deaver. In two of the cases, for example, Deaver's final blood analysis reports said his tests "revealed the presence of blood" when his notes indicated negative results from follow-up tests.
Deaver's lawyers note, however, that SBI officials never included those allegations in their decision to fire him. Rather, they used the following findings to determine that he had violated agency policies:
Pendergraft, who left the SBI in 2010 and now heads the Medicaid fraud investigations unit for the Attorney General's Office, said the allegation of perjury before the Innocence Inquiry Commission should have been investigated further before any disciplinary action was taken against Deaver. The other two claims, she said, don't amount to offenses for which someone should be fired.
"I would have preferred that he would have notified someone that was going on, but I wouldn't have fired him for it," she said of assisting in the complaint against the South Carolina agent, adding that Deaver was under orders at the time not to contact anyone in SBI.
Pendergraft acknowledged that the "That's a wrap, baby" comment was inappropriate, given the professional standards the agency tried to uphold, but she said, "Whether or not it's a termination offense in itself, I would say no."
Assistant Attorney General Charles Whitehead, who is representing the state in Deaver's appeal, argued that the high standards set by the SBI required that Deaver be fired for his conduct.
"Working for the SBI as a law enforcement officer, you are held to a higher standard," Whitehead said in his opening statement. "Something that may not get you fired if you're an IT person in the Department of Transportation may get you fired at the SBI, Department of Justice because they have this higher standard, these tougher rules in place."
Defense attorney Philip Isley said, however, that the SBI found Deaver so toxic after the outside review – he was "akin to plutonium" – that they went searching for any reason to end his 25-year career.
Deaver's boss said on the same day that he fired Deaver that he found no evidence of perjury in the Innocence Inquiry Commission hearing, Isley said in his opening statements. He also noted that the "That's a wrap, baby" video sat around for two years with no disciplinary action.
A five-person SBI panel also has unanimously recommended that Deaver be reinstated, Isley said.
"He's been a scapegoat subjected to a witch hunt," Isley said. "We're going to prove the grounds do not provide the state with the ability to dismiss our client for just cause."
At the start of the hearing, Isley asked Administrative Law Judge James Conner to block the state from introducing evidence of another high-profile trial with which Deaver was involved.
Courts have ordered that Mike Peterson, a novelist and one-time Durham mayoral candidate, receive a new trial in the 2001 death of his wife. A judge ruled in December 2011 that Deaver had misled jurors in Peterson's 2003 murder trial regarding his expertise and the accuracy of his blood spatter tests.
Isley argued that, because that information came months after Deaver was fired and was never cited as a cause for his termination, it shouldn't play a role in the case. Whitehead said the Peterson case would come into play only if Conner rules that Deaver was unjustly fired and would serve as the SBI's basis that he not be reinstated.
Conner said he wants to see how the case plays out before ruling on any evidence related to the Peterson case.