Murder charge dismissed for Durham man
Posted December 10, 2010 1:25 p.m. EST
Updated December 10, 2010 7:26 p.m. EST
Durham, N.C. — A Durham man accused of murder and jailed for more than a decade saw his charges dismissed Friday after alleged mistakes by the State Bureau of Investigation.
Derrick Michael Allen's lawyer, Lisa Williams, argued in court that the SBI violated her client's constitutional rights because the agency failed to share everything it found in blood tests.
Allen's case is 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.
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.
Allen has maintained his innocence and was released on bond in September after spending more than a decade in prison.
Assistant District Attorney Mich Garrell argued Friday that the case needed to go to trial and not be thrown out on the basis of the SBI problems.
Garrell also cited two doctors who found evidence of sexual assault on the child.
"There is independent evidence, completely independent of the SBI," he said, adding that the SBI had nothing to do with the homicide charge against Allen.
SBI agent defends work
Jennifer Elwell, the SBI agent who did the testing in 1998, took the stand Friday and said she disagreed with the audit, which was performed by two former FBI officials.
"Neither one of them had forensic biology experience, and neither one of them really understood the testing that we did," Elwell said.
Williams asked Elwell if she was implying that North Carolina Attorney General Roy Cooper picked incompetent people to do the review.
"I am not going to speak for the attorney general. If you would like to call him and subpoena him, you can ask him," Elwell said.
A spokeswoman for Cooper said Friday that the attorney general stands by the audit and that Elwell remains suspended from case work pending a review.
"I think it’s also important to note that the review commissioned by Attorney General Cooper was not intended to examine scientific procedures but rather whether or not test results were fully shared," said Cooper's spokeswoman, Noelle Talley.
Elwell defended her work, saying she followed procedures in place at the lab at the time. She said the particular blood test in question can yield results that are inconclusive and shouldn't be reported as negative. That test is no longer used, she said.
Williams pointed out that it's not that Elwell didn't follow the rules at the time, but the policies were flawed.
Williams also added that Elwell was removed because 32 of her cases, including Allen's, used the former testing methods.
"I was removed from casework, and this was all that was told to me," Elwell said.
"The whole issue is about fully disclosing test results. Today, full SBI lab results including bench notes are available electronically, and we’ve also shared complete files for all of the historic cases covered in the report so that prosecutors and defense attorneys have the information they need to review each case on its merits," SBI Director Greg McLeod said Friday. "The SBI is moving forward to implement all of the recommendations made in the report."
Elwell said on the stand that she had not read the full SBI audit. She would not comment to WRAL News about how much of the report she had read.