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Some question whether SBI should evaluate materials in Silk Plant Forest review

by Keith Barber

In December 1995, store clerk Jill Marker was brutally assaulted while working at the Silk Plant Forest shop in the Silas Creek Crossing shopping center. Winston-Salem police recently announced the discovery of physical evidence gathered at the crime scene that was never tested for forensic evidence. (photo by Keith T. Barber)

Based on personal experience, Christine Mumma said she has grave concerns about the reliability and objectivity of the State Bureau of Investigation Crime Lab in Raleigh. That is why Mumma, the executive director of the NC Center on Actual Innocence, believes that evidence recently uncovered by the Winston-Salem Police Department’s internal review of the 1995 Silk Plant Forest-Jill Marker assault case should first go to an independent lab for testing.

“Depending on what testing is going to be performed, the sequence of which lab receives the samples first could be important,” said Mumma. “The lab with the greatest likelihood of obtaining a [DNA] profile through access to more sensitive testing should be given first shot at working with the evidence, so that their chances of obtaining a profile are not diluted. With each round of swabbing, you decrease your chance of obtaining a profile.”

Mumma served as co-counsel for Greg Taylor, the Wake County man who was exonerated by a three-judge panel in February after spending 17 years in prison for a murder he did not commit. The SBI crime lab played an integral role in Taylor’s conviction, which is why the Winston-Salem Police Department should rely solely on independent testing facilities to glean forensic evidence from Marker’s clothes, a piece of cardboard with blood and hair on it and cigarette butts recovered from the scene of the crime in 1995, Mumma said.

Police Chief Scott Cunningham confirmed in an e-mail last week that the department had already sent the items to the SBI Crime Lab “to capitalize on their expertise and on the sequencing of the examinations we want done.”

Cunningham said the SBI Crime Lab will screen the items for possible hairs and particle evidence. Then, the items will be sent to LabCorp, a Burlington-based testing facility, for blood work and “to ascertain if blood-based DNA exists,” he said.

COOPER ORDERS INVESTIGATION OF SBI LAB

In the wake of Taylor’s exoneration, Attorney General Roy Cooper announced that his agency had authorized an outside review of SBI Crime Lab cases and practices going back 20 years.

Cooper enlisted the aid of two former assistant directors of the FBI — Chris Swecker and Mike Wolf — to lead the outside review. In a press release, Cooper said Swecker and Wolf will examine the lab’s historic practice and policy on “disclosure of lab analyses as well as its internal methods and reporting of scientific analysis.”

In the Greg Taylor case, the issue of the SBI lab’s credibility came into focus after Duane Deaver, a veteran SBI crime lab analyst, presented a report to Wake County prosecutors in 1991 that said a test of a substance found on Taylor’s truck indicated the presence of blood.

The alleged presence of blood on Taylor’s truck proved pivotal to the jury finding him guilty of the 1991 murder of Raleigh prostitute Jacquetta Thomas, Mumma said.

Deaver actually had performed a test that revealed the substance was not human blood, but he never shared the results with prosecutors or defense lawyers. Deaver said what he did was standard SBI procedure.

The negative results were contained in Deaver’s bench notes, Mumma said, which the defense could have subpoenaed.

Cooper said SBI standard operating procedure has changed over the years.

“Today, analysts’ lab reports and bench notes are electronically available to prosecutors to be shared with defense attorneys through the discovery process,” Cooper said. “Bureau officials are in discussions with state prosecutors to ensure that they are accessing the information needed in criminal cases.”

Still, the SBI’s credibility has been damaged, Mumma said. Cooper’s announcement has renewed a call by defense lawyers and innocence advocates to make the state crime lab an independent state agency and remove it from the direct control of the SBI and the state attorney general’s office.

Despite the investigation, Cunningham said he has full faith and confidence in the SBI’s practices.

“The SBI lab work is excellent,” he said. “The current issues involve how it was reported back to other entities. We and other agencies are not going to stop using the SBI pending the outcome of the investigation as that would be impractical in that investigations would get backed up too far.”

Winston-Salem City Manager Lee Garrity said he has no reservations about using the SBI Crime Lab either.

“Based on what I’ve been told, the SBI’s procedures have changed,” Garrity said. Garrity also addressed public comments made by former Forsyth District Attorney Tom Keith in 2007. Keith, who resigned his post last November, told the Winston-Salem Journal that he was directing the police department to send cigarette butts taken from the crime scene to the SBI Crime Lab for testing. On Monday, Garrity said the police department never received such an order from Keith.

Keith did not return calls for this story.

Darryl Hunt and the SBI

Darryl Hunt is skeptical about the SBI Crime Lab’s ability to remain impartial in criminal investigations. He has good reason to feel that way.

Hunt served 19 years in prison for the rape and murder of newspaper editor Deborah Sykes — a crime he didn’t commit. According to the Sykes Administrative Review Committee’s report, three months after Sykes’ murder in August 1984, police learned that Hunt’s blood type was “B,” and the rapist’s blood type was “O.”

Despite the lack of a blood match, Hunt remained in jail and was convicted the following summer.

During Hunt’s trial, SBI serologist Brenda Bissette testified that all bodily fluids recovered from Sykes’ body were from a blood type “O” secretor. Despite her findings, Bissette testified that the test results did not exclude Hunt as the rapist because type “O” secretor fluids masked any “A” or “B” secretor markings. The defense did not call a serology expert to challenge Bissette’s assertions.

“I wouldn’t trust the SBI’s results unless there’s a third party looking over them, because they have proven that they will support a prosecution theory instead of the truth, ” Hunt said.

“They have a systemic problem inside of the SBI,” Hunt continued. “No matter how many people they send in there, they have a real problem. There needs to be some kind of accountability, especially when you can’t even receive information from the SBI unless there’s a court order and then it’s released.”

In the spring of 2003, Judge Anderson Cromer granted Hunt’s motion to retest the Sykes evidence for DNA comparison to a national database. It took the SBI more than eight months to deliver the results, Hunt said. When the results came back, police investigators linked the murder of Deborah Sykes to Willard Brown, who eventually confessed to the crime. Considering the SBI’s history, Hunt said he’s disappointed that Cunningham sent the newly discovered evidence in the Silk Plant Forest case to the state lab for testing.

“My bigger question is, why did it take this long to test this evidence?” Hunt asked.

What’s next?

The recently uncovered items of evidence were listed on inventory sheets that document physical evidence gathered by police investigators in 1995. The inventory sheets were provided to both the district attorney’s office and Kalvin Michael Smith’s defense lawyer William Speaks, Cunningham said, but no one ever asked that it be tested.

A Forsyth County jury convicted Smith of brutally assaulting Marker during an armed robbery of the Silk Plant Forest shop in December 1997. He is currently serving a 23 to 29-year prison sentence. Smith has steadfastly proclaimed his innocence. William Speaks did not return calls for this story.

Cunningham said if the items sent for testing contain a significant amount of forensic evidence, they will be tested to see if DNA profiles can be retrieved. If DNA profiles can be retrieved, they will be compared to Smith and Kenneth Lamoureux, an early suspect in the case.

According to the Silk Plant Forest Citizens Review Committee report, Lamoureux submitted to a polygraph examination in the early stages of former Winston-Salem police Detective Donald R. Williams’ investigation. Lonnie Maines, the former detective who administered the polygraph, wrote in his report that Lamoureux’s answer to the question, “Did you strike, push or assault a woman inside the Silk Plant Forest?” indicated “a great deal of deception.”

Despite the recent revelation of untested evidence, Cunningham said the case remains closed.

“There is not sufficient evidence to warrant a re-opening of the case at this time,” Cunningham said. “We are responding to the recommendations of the citizens review committee, reviewing their concerns and those of the public, and reviewing the entire case. If based on these actions, there is sufficient reason to re-open the case, then it will be. If there is not sufficient reason, then it won’t be.”

If evidence is found that indicates the guilt of any party, Cunningham said that evidence would immediately be turned over to the district attorney’s office.

“We are intent on ensuring that the right person (in this case and all cases) is held accountable for any offenses/crimes they commit,” Cunningham said in the e-mail. “We do not want an innocent person in jail/prison.”

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