By Mark Rabil
Have you been given a report from the SBI Lab (now the State Crime Lab) that says the results of DNA testing are “inconclusive”? Well, you should not necessarily believe it. The Tamera Bean noncapital murder case that was tried in Asheboro this month is a case in point. Defense Attorney David Botchin did a great job of doggedly pursuing the records in that case. This was a self-defense case in which the State contended the female defendant shot her boyfriend and staged the crime scene. In discovery, the SBI gave the DA and the DA gave the defense a report that said DNA testing on one of the shells was “inconclusive.” That was flat wrong: the defendant was excluded and the decedent was likely included. Read on to see why you cannot take the word of these lab reports.
It turns out three reports were written about the same SBI DNA testing in this case: the first report in 5/09 said defendant excluded as source of DNA; the second report in 6/09 changed the conclusion and said the results were “inconclusive” (the internal SBI lab “reviewer” made the analyst change the report, improperly); and the third report in 8/11 said defendant excluded. In the third report that was ordered by the court, the lab also added some language about how the sample was insufficient to submit to CODIS, a fact not in the first report, and intended to help the prosecution minimize the effect of the new report.
The State Crime Lab interpretation guidelines have gone through many revisions in recent years regarding the interpretation of mixtures and the reporting of inconclusives. (For the Crime Lab’s Interpretation Guidelines, you can visit the NCDOJ website or the NCIDS website or contact Sarah Rackley for assistance in locating the relevant procedures.) Counsel must remain alert to reporting language, however. According to the Ombudsman’s Report, the Crime Lab policy is that testimony should be based on the standards in effect when the testing was conducted, not the current standards (see p. 25). From the Bean case it isn’t clear whether analysts will identify whether the report was prepared according to the old protocols or the new ones. We also don’t know how many times a false inconclusive has gone misreported and undetected in other DNA cases or whether it is still happening in current cases. If you are working on a case where you think a false inconclusive may have been reported, contact IDS’s Forensic Resource Counsel (firstname.lastname@example.org).
Click here to read Mark Rabil’s August 29 guest column on the Bean case in the Winston-Salem Journal, as well as Judge Joseph John’s response and David Botchin’s response to the column.
Joseph R. John, Sr.
Actually my specific response to Mark Rabil’s column was a Letter to the Editor published by the W/S Journal on 9/9/2011 as follows:
Crime lab is fair
As a former judge and as acting crime lab director, I respectfully disagree with the Aug. 29 guest column by Mark Rabil, “Bring science and fairness to the SBI crime lab.”
Rabil buries the critical fact that the crime lab scientist, talking willingly and freely with the defendant’s attorney in the discovery process, volunteered that there had been a reporting language change. Had she not done so, the change likely would never have been identified, and the defendant’s case may well have suffered.
Science is not static, particularly in the rapidly developing DNA discipline. DNA expert John M. Butler writes that “as experience using various analytical procedures grows, interpretation guidelines may evolve and improve.” That is what happened here, and it was the lab scientist who correctly and properly made counsel and the court aware of it.
After the disclosure, it appears the judge and the parties essentially agreed to a court order directing preparation of a report reflecting the analyst’s actual expected testimony — not, as Rabil submits, a judge “hav[ing] to order a scientist to prepare an accurate report.”
I am proud of this lab scientist, who spoke the truth and reported the latest science. In nearly 43,000 cases annually, state crime laboratory scientists remain absolutely committed to the highest ethical and scientific standards and, yes, to fundamental fairness.
JOSEPH R. JOHN SR.
N.C. STATE CRIME LABORATORY