Retired SBI officials question analyst's firing
Posted April 4, 2014
Raleigh, N.C. — Two former State Bureau of Investigation assistant directors on Friday said they don't believe the grounds the agency used to fire a blood analyst from the state crime lab three years ago amounted to firing offenses.
The analyst, Duane Deaver, is appealing his January 2011 termination in the state's Office of Administrative Hearings. The three-day hearing concluded on Friday without Deaver testifying – his lawyers are submitting a five-hour deposition he gave last year – and it's unclear when Administrative Law Judge James Conner will rule on the case.
SBI officials cited three findings in the decision to fire Deaver:
- The North Carolina Innocence Inquiry Commission accused him of intentionally misleading the panel during a 2009 hearing on Greg Taylor, who was later determined to have been wrongly convicted in a Raleigh murder case.
- At the end of a 2009 video demonstration of blood spatter analysis in a case, he said, "That's a wrap, baby."
- While on leave in late 2010 while the SBI investigated questions of his performance raised in an outside review of the state crime lab, he didn't notify his superiors or seek their approval before assisting a criminal profiler in filing a formal complaint against a South Carolina Law Enforcement Division agent who was providing a profile in a western North Carolina case.
Marshall Tucker, who was Deaver's boss but has since retired from the SBI, said that he thought Deaver deserved "something less than termination" for his actions but that he was overruled by SBI director Greg McLeod.
McLeod testified Thursday that the potential for a contempt charge against Deaver for possible perjury before the Innocence Inquiry Commission was "unprecedented" and undermined Deaver's credibility. He also said Deaver violated agency policy by providing confidential SBI investigation files to an outside group in the profiler complaint and that he exhibited unprofessional conduct in his comment in the 2009 video.
On the same day he issued Deaver's termination letter, Tucker signed off on a report stating that an SBI review of the perjury allegation was unsubstantiated.
"I don't believe it was perjury," Tucker testified Friday, adding that it didn't diminish the fact that the commission ordered Deaver to provide a reason why the panel shouldn't find him in contempt of court.
"This committee filed the order. That couldn't be ignored," Tucker said.
He "wrestled with" the decision to fire Deaver, but he ultimately agreed with McLeod's decision. "The conduct did support termination," he said.
Bill Weis, a former SBI assistant director who also has retired from the agency, said Deaver was authorized to share information with the profiler as part of his training, adding that he doesn't think the information Deaver provided was confidential. He said it would have been better if Deaver had told a supervisor of the complaint being filed against the South Carolina agent, but he doesn't believe that was a firing offense.
Likewise, Weis said, the comment in the 2009 video should have been addressed by a reprimand, not termination.
He also testified that other SBI agents were never fired for offenses such as having a personal and business relationship with a drug suspect or being accused of child sex abuse.
Deaver's lawyers argue that the SBI made him a scapegoat while the agency was under legislative and public scrutiny for the policies and procedures of the state crime lab.
A 2010 independent review of the crime lab concluded that SBI analysts had 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, but an internal review later cleared him of any wrongdoing.
State officials have asked that Deaver not be reinstated, if Conner determines that Deaver was unjustly fired, citing court rulings that found he misled jurors in Mike Peterson's 2003 murder trial.
Peterson, a novelist and one-time Durham mayoral candidate, was granted a new trial in 2011 in the death of his wife a decade earlier. A Superior Court judge and the state Court of Appeals determined that Deaver's exaggeration of his expertise and his overstatement of the accuracy of his blood-spatter tests denied Peterson's right to a fair trial.
Similar to the questions surrounding the perjury allegations before the Innocence Inquiry Commission, officials said Deaver's actions in the Peterson case would justify his dismissal from the SBI.