Landmark exoneration almost never happened
Posted March 17, 2010
RALEIGH, N.C. — Nearly two years ago, North Carolina's groundbreaking innocence panel received the evidence it needed to free a man who spent 16 years in prison after he was wrongly convicted of murdering a prostitute.
Yet he stayed behind bars while commission investigators overlooked the evidence. Uncovering it took a chance brainstorm by a defense lawyer, repeated questioning of a crime lab investigator and a nudge from an unlikely source – the prosecutor who sent the man to prison.
Last month, Greg Taylor was the first person to be exonerated by the 3-year-old North Carolina Innocence Inquiry Commission, a landmark for the only state-run agency in the country dedicated to proving a convicted person's innocence.
The handling of the crucial blood test, however, has prompted a sweeping review of how the state runs its crime lab and shows just what kinds of kinks the panel has to work out as it goes about seeking to free innocent.
The jurist who came up with the commission thinks the panel should overhaul its personnel.
"It was a very horrendous oversight," said former state Chief Justice I. Beverly Lake Jr., who formed a coalition in 2002 that recommended the panel's creation. "It's very definitely a critical failure on the part of whoever had that information."
Taylor, who has maintained his innocence, agreed Tuesday to allow Raleigh police to perform DNA tests on the clothes he wore at the time Jacquetta Thomas was killed in September 1991, saying the tests will add more proof of his innocence. Raleigh police said Wednesday they are not disputing Taylor's innocence but want to test all evidence as they reopen the case.
When Taylor was convicted in 1993 of killing Thomas, prosecutors relied partly on a lab report that indicated blood was found in his SUV near the slain woman's body. However, the report used at trial didn't mention that a second test for blood was negative. The negative result was contained in more extensive, informal notes that the State Bureau of Investigation kept filed away until Taylor's case came before the innocence panel.
The eventual discovery of the notes would set Taylor free, but an Associated Press review of audio recordings, interviews and court filings shows how they almost never surfaced.
If the defense had "not found the blood evidence, we would have lost and Greg would have spent the rest of his life in prison," Joe Cheshire, one of Taylor's attorneys, said in an e-mail.
The negative blood test was listed in informal "bench notes" by the state investigators and turned over to the innocence panel in July 2008 as part of a file on the case.
Taylor's lawyers received an unusual favor from Assistant District Attorney Tom Ford, the man whose arguments they were trying to unravel. Ford said the state investigators told him in July 2009 about the additional, negative blood test. He then told a commission investigator where to find the results in the bench notes, which he said weren't given to him during the original trial.
"There was a test that was not recorded, that wasn't reported ... from the SBI to us," Ford says on a recording the conversation with the commission staff. "And you need to know that. It's in the notes down at the bottom."
Ford said he was just doing what was right.
"I did what I thought was my duty," he told the AP. "I thought it was important for them to examine it closely."
At Ford's urging, the agent who took those notes, Duane Deaver, was called to testify before innocence commission's eight members. But Deaver's testimony was confusing, and at one point, he even denied he'd done a second test.
Deaver did not immediately return messages left Wednesday at home and work.
During this initial phase of the exoneration process, the committee focused on another man's confession to the crime, while evidence about the presence of blood received little attention. Still, the commission recommended Taylor's case for the final step of the process, a review by a three-judge panel.
Despite the other man's confession, Taylor's lawyers didn't yet have all the evidence they'd need. Convincing the judges of his innocence would require taking apart almost every aspect of the prosecution's case, from discrediting eyewitness testimony to proving there was no blood on Taylor's SUV.
Taylor's lawyers weren't aware of the bench notes. But Deaver's confusing testimony had still set them on the path to digging up the right document.
During a late-December strategy session, attorney Mike Klinkosum wondered aloud why Deaver hadn't used a common procedure called a takayama test to verify that blood was on Taylor's SUV. Attorney Chris Mumma perked up because she remembered Deaver using the word "takayama" during his testimony.
When they met again on Jan. 3, Mumma dug through the files from the commission, then ran down the hall, test results in hand, to Klinkosum. In the handwritten bench notes, Deaver had written the word "takayama" with a negative sign beside it, meaning the analyst couldn't prove blood was on the SUV.
"I think we just found a bombshell," Klinkosum recalled telling Cheshire, his co-counsel, on the phone.
Deaver testified again in February, as the defense team made its case to the three-judge panel. This time, he said he didn't include all the test results in his lab report because the state investigators gave agents specific wording to use that didn't include all results. He also testified that the lab reports were turned over to the courts regularly, but the informal bench notes were not.
That testimony has led Attorney General Roy Cooper to order an outside review of the state crime lab by two former assistant directors of the FBI.
The innocence panel's executive director, Kendra Montgomery-Blinn, declined to comment on the blood evidence, saying in an e-mail that because the commission is a neutral, fact-finding agency, it doesn't "present evidence in the same manner that an advocate would."
But even after attorneys found the bench notes, Mumma said the commission staff didn't understand their importance. "The commission was designed to handle difficult cases and difficult evidence. The staff has to be up to the task," she said.
Wade Smith, a defense attorney who's a commission member, said the commission "is in uncharted territory because it's the only commission of this type in all of America. And it is having to find its way and invent itself."
If the commission has made mistakes, "we're going to be happy to know about it and thrilled at a chance to do better," he said.
Taylor has taken a remarkably philosophical view of the delay in setting him free, saying he wouldn't judge how the commission handled his case.
"It's not my place to be a Monday morning quarterback about how investigations are conducted because I'm not an investigator," Taylor said.