Judge: SBI report was 'intentionally misleading'
Posted March 10, 2011
Durham, N.C. — A State Bureau of Investigation report in the murder case of a Durham man was prepared in an “inaccurate, incomplete and intentionally misleading manner,” a Superior court judge wrote in his ruling to throw out the charges.
Judge Orlando Hudson threw out the case against Derrick Michael Allen in December after a defense attorney argued that the SBI violated Allen's rights by not sharing everything it found in blood tests.
Hudson’s written ruling was made public on Thursday afternoon.
Allen, 31, was charged in 1998 in the death and sexual assault of a 2-year-old girl. An autopsy showed the girl died of shaken baby syndrome.
His case was among 200 cases that an outside audit said were mishandled by the SBI. The audit revealed agents failed to report correct blood evidence in the cases.
Hudson was critical of SBI Agent Jennifer Elwell, who is now suspended, and former Assistant District Attorney Freda Black saying the two "decided to stop further testing of items for DNA testing because they believed further testing of physical evidence of the case would not prove inculpatory to the defendant Derrick Allen and could possibly inculpate others."
Current District Attorney Tracey Cline was also mentioned in the ruling. Hudson wrote that Black and Cline “knew some information they intentionally failed to disclose was exculpatory information and that their suppression of favorable material information was a violation of Mr. Allen's Constitutional Rights.”
Black defended herself Thursday against Hudson’s statements.
“I disagree with the judge's ruling as it applies to me. I have not misrepresented myself before any court in 25 years of being an attorney which includes the Derrick Allen case,” she said.
Hudson also noted evidence that has been destroyed or is missing since the case started.
"It is no longer possible for Mr. Allen to ever receive a fair trial,” he wrote.
Hudson wrote that Allen was coerced into entering an Alford plea with the threat of the death penalty. In an Alford plea, the defendant accepts responsibility for the crime without admitting guilt.
Allen has maintained his innocence and, because of questions raised by the audit, he was released on bond in September after spending more than a decade in prison.
Prosecutors have said they worry other cases will be dismissed because of troubles in the SBI's blood-analysis unit.
SBI Director Greg McLeod said Thursday that the testing and reporting methods used in the Allen cause are no longer used.
“As noted in the judge’s order, the SBI Crime Laboratory provided the bench notes as part of discovery in 1999 in addition to providing the lab report. The testing and reporting methods at issue in this case were phased out nearly 10 years ago and replaced with modern DNA technology. Because the decision to appeal is up to the district attorney, it would be inappropriate for us to comment further,” McLeod said in a statement.