The F’d Up Finale
Written by Brandi Abbott
On F’d Up this season we’ve learned a lot about how broken the criminal justice system is and how fucked up the NC SBI Crime Lab has been. There has been some reform based on everything that has come to light, but there is still a long way to go.
After Alan Gell’s case in 2004, the governor signed a bill that required DAs to provide all of their files from their cases to defense attorneys if they ask for them. The attorney general at the time, Roy Cooper, made changes to the SBI Crime Lab. He installed an ombudsman to address concerns relating to the crime lab or its employees. Documents and ASCLD-LAB reports were posted for transparency, but none of the results or repercussions from internal investigations seem to have been made public. The governor at the time, Pat McCrory, moved the SBI Crime Lab from under the purview of the attorney general at the time, Roy Cooper, to the department of justice so that it was under the purview of the governor and the name was changed from the NC SBI Crime Lab to the NC State Crime Lab.
In 2016, Roy Cooper ran for governor and narrowly beat Pat McCrory, which put the crime lab back under his control. Right after the audit report was released, the governor at that time, Bev Perdue, signed a bill making it a crime for lab workers to withhold results.
The North Carolina SBI Blood Stain Pattern Analysis unit was suspended during the audit. To this day it has still not been reopened and analysis of bloodstain patterns is outsourced.
When Priya and Jess went into detail about the history and missions of the crime lab in NC, they didn’t mention that all of the information was from the current crime lab’s website. According to their site they and other forensic labs across the nation are now subject to the ISO/ISE 17025 accreditation standard. ANAB is authorized to perform this accreditation but no one can confirm whether or not they’re the one’s doing the accreditation for the NC State Crime Lab. One would hope not given that ANAB merged with ASCLD LAB who spent years accrediting the SBI Crime lab while it was full of misconduct. Priya checked out some public documents on the state crime lab’s site and found an update on the preservation of biological evidence. They now preserve evidence in capital cases until the convicted person is executed or dies and if a convicted person receives a life sentence, the evidence is preserved until they die. But if a person pleads guilty in a crime – evidence is only preserved for three years! Three years doesn’t seem like very long given how often coercion of confessions occur.
Priya says that she’s visited the site often over the course of doing research for this podcast, and that recently a lot of information that used to be easy to access like policies, accreditation reports and the like are not as easy to obtain. Policies can only be accessed if you sign in with a Microsoft account and you have to email the lab to get accreditation reports.
Another reform is the forensic advisory board that is now in place and includes forensic scientists from a couple of different states, however, they could benefit from a commission like the one Marvin Schechter is on in New York that includes more people who are involved in the justice system or are impacted by forensic science, like defense attorneys.
Their website includes the minutes from their board meetings up until a year ago, but if they’re still meeting, they don’t seem to update the site any longer. The new director of the lab, Vanessa Martinucci, does have a forensic background which is a big deal considering their past employees. She has a Masters in biology and was a supervisor at the Houston Forensic Science Center.
People Priya and Jess have talked to who were or are affected by the lab has said a lot of this hasn’t helped to fix the huge systemic issues that have happened. Instead, it seems as though they’re making changes to distract from their issues.
People had been trying to enact change in North Carolina even before Greg Taylor’s exoneration. Chief Justice I. Beverly Lake had been noticing problematic issues in NC cases, the same kind Chris Mumma was noticing when she was clerking for him. Because of these concerns, in 2002 Chief Justice Lake established the Criminal Justice Study Commission, the purpose of which was to review police and prosecution procedures for factors that helped lead to wrongful convictions. This commission helped to birth the Innocence Inquiry Commission - which ultimately led to Greg Taylor’s exoneration. In very sad news, Chief Justice died last month, but he leaves a legacy of trying to make the world a better place.
Chief Justice Lake, along with Darryl Hunt and others, helped in getting the Racial Justice Act enacted in 2009. As you may recall from an earlier episode, the Racial Justice Act allowed death row inmates and those still on trial to challenge their sentence if they thought it had been negatively impacted by their race. They also discussed that in December of 2012, three defendants who had been on death row had their cases reheard because of this act and their lives were saved. F’d Up covered three cases on the past episode but there was actually six. As you may remember from that episode, the three that were discussed had their sentences reduced to life in prison and this was only possible because they filed their grievances prior to 2013 when then governor Pat McCrory signed a repeal of the Racial Justice Act. This repeal affected all of the cases.
One of these cases was Tilmon Golphin, a black man, was pursued by the police through the woods where they eventually caught him. A perspective juror who was black overheard two white jurors say that Tillman never should have made it out of the woods. The black juror brought this up and the prosecutor questioned him about it. He was struck from the jury but the two white people were not. Overall, five of the seven qualified black people were removed from the jury. Tilmon was ultimately sentenced by a jury of 11 white people and one black person. This was in Johnston county which had billboards boasting that it was “KKK country” up until the 80s.
Another case was Rayford Burke who was black and was sentenced to death by an all white jury. The prosecutor drew attention to Rayford’s size and race in a negative fashion and called him a “big black bull” during a plea for the jury to find him guilty.
Quintel Augustine is also black. In his case, the prosecutor wrote handwritten notes about each perspective juror. For a perspective white juror who admitted to drinking, they wrote “drinks, country boy, okay” but described a perspective black juror who admitted to drinking as a black wino. For a black female juror they made the note that she was from a “respectable black family” but made no such note for any of the white jurors about their potential “respectable” families.
In the case of Marcus Robinson there was a perspective juror who was black and a high school graduate. The prosecutor asked this juror if he repeated grades or had trouble reading, but never asked any of the prospective white jurors the same question. This prosecutor admitted he was not particularly racially fair.
Christina Walter’s trial involved the prosecutor asking prospective jurors if they ever felt they had been burgled. Two white perspective jurors who had had some minor property crimes and felt it wasn’t a big deal ended up on the jury, whereas a black prospective juror was struck when they said they didn’t feel like a victim over their car being broken into and a radio stolen. Out of 14 qualified black jurors, 10 ended up being struck.
Cassandra Stubbs, the director of the ACLU Capital Punishment Project, said that one of the things that was so remarkable about the Racial Justice Act was that before when one suspected prosecutors were acting discriminatory, there was no opportunity to question them. With the RJA they had to testify about and answer to their actions. As of August of 2019, the RJA is back on the table. The state Supreme Court heard all six cases that fell under the RJA. A couple of choices were on the table. Do the four defendants try and get back life without parole or do they try and get new hearings since it’s already been proven that there was racial bias in their cases.
According to the NCCADP, for the other two cases the court will decide whether people on death row who filed claims under the RJA will get their chance to present their evidence in court even after the repeal. They went on to say that three of the six defendants were sentenced to death under an all white jury. The NCCADP breaks down a study done in Michigan that was covered in the death row episode to say that qualified black jurors were struck from capital juries at twice the rate as white jurors. Even when other factors are brought in, the disparity can only be attributed to race. Defendants found direct evidence of discrimination such as prosecutors’ notes of potential jurors where the notes included descriptions such as “blk wino” and “thug”.
Cassandra Stubbs is the director of the ACLU Capital Punishment Project and represents one of the defendants, Marcus Robinson. She spoke with a reporter at the Real News Network and said that even though the NC Supreme Court didn’t re-sentence them to death and did not enter a new order about their life sentences, after they remanded, all four prisoners were moved from the prisons around the state where they had been serving their life without parole sentences. Without any reason at all, these four defendants were moved back to death row. If the court rules in the defendants favor, they can get new hearings and present significant evidence that race played a factor in their sentencing. The RJA attorneys said that the states highest court must take on this crucial issue and if it doesn’t, it will send the message that the state is willing to execute people after overwhelming evidence of racism in their trial has come to light. Cassandra said never before had any state sanctioned dismissal of comparable allegations and proof of racial bias. The state’s position is that since the RJA has been repealed we should all just forget about everything and move on, but the court cannot.
Attorneys for the NC Attorney General’s office did not dispute the evidence of racism and said that racism in capital trials is serious and must be dealt with. However they asked the courts to deny the cases and leave the lower courts to deal with it, though they haven’t been doing a great job so far. As of right now, the courts have not ruled and it’s unclear when that’s expected to happen.
The New York Times Editorial Board wrote an article about the RJA, which showed that the actions of the prosecutors in these capital cases were unconstitutional. The practice of being able to strike black jurors from cases with impunity was banned by the Supreme Court in 1986 after a case named Batson v. Kentucky. However, just because the Supreme Court banned the practice, it doesn’t mean prosecutors stopped doing it, just that they tried to hide it better. The article said that especially in places like North Carolina, this wasn’t the behavior of a few bad apples, it was standard operating procedure. There was a document distributed to NC prosecutors in training that apparently listed 10 “race neutral” explanations for striking a juror in case a judge asked. Categories included inappropriate dress, physical appearance, attitude, body language, and hair. If this is too subtle for you, the document was titled “Batson Justifications Articulating Juror Negatives”. This is especially important as prosecutors receive no repercussions for their actions, except under the RJA.
As mentioned earlier, in August of this year attorneys from across the state argued before the state Supreme Court on behalf of the six individuals who are on death row and filed claims under the Racial Justice Act. Cassandra told a reporter for the NCCADP that everyone who filed a RJA case is entitled to a hearing on their RJA claims. This was because of a case decided after the Civil War called “Keith”, which is the best name!
Cassandra said in the case of Keith, a war criminal who massacred boys and men ages 13-60 was given amnesty by the NC Supreme Court because of due process. He was given a defense by the NC Legislature. A few years later the NC Legislature came in and repealed that act, and he successfully invoked the defense that was given to him by them. The Supreme Court ruled that he was entitled to it, and a repeal could not take it away. So essentially, the question is will a law that protected confederate soldiers and has never been overturned protect these cases. When the court eventually rules on all of this, according to the NCCADP, the outcome could affect nearly 150 other prisoners who petitioned under the RJA but never got their day in court. Lawyers for the prisoners who filed claims said the law may now be gone but they still should have a chance to prove that their client’s punishment was racially motivated. There’s a group of former judges, prosecutors, and law enforcement officials who have a hope that the court will use this as an opportunity to strike down punishment in NC all together.
A series of articles written by Radley Balko, he sought solutions from experts who work in the areas of law and forensics. Radley wrote that the legal system is too reluctant to revisit cases. As Priya has mentioned before, she’s of the opinion that retesting old cases with updated science is her idealistic solution to so many issues. Money is a huge obstacle with this but I would bet there are those who don’t want even more of their mistakes to come to light. Within the past 10 years there have been attempts to correct some of the issues with forensic science.
In 2013, Congress and the Obama administration created the National Commission on Forensic Science, a panel of lawyers and scientists whose job it was to come up with standards and protocols in this field. However the Trump administration allowed the commissions’ charter to expire in April of 2017 - which is unsurprising since he doesn’t even believe in science. Radley found in speaking with his experts that the one resounding answer for reform has been what has come up again and again that all forensic labs should become independent of police and prosecutors. However, according to the experts Priya and Jess have spoken with, police and prosecutors don’t want to give up their “aces up their sleeves” especially as they are provided with little to no cost. Radley found that people he reached out to agree that if we keep this current system, then defense attorneys should be given the same amount of funds to provide their own experts.
Forensic pathologist Judy Melinek told him that local pubic defender offices need to be funded at the same level as prosecutor’s and need to be given the same amount of access to forensic evidence. She also suggested that the laws should be changed to where defendants can appeal their convictions if scientific advancements indicate that they were wrongfully convicted based on faulty scientific testimony. Radley discussed the fact that many fields of forensics have come under scrutiny in recent years such as blood stain pattern analysis, hair fiber analysis, ballistics testing, and fingerprint analysis. Eyewitness testing has also been shown to be much less reliable than most people think and juries give them too much consideration. Bloodstain pattern analysis has been criticized as being more subjective than scientific. Steps have been made in the right direction using something called “fluid dynamics and physics”.
Sandra Guerra Thompson, a law professor and the director of the Criminal Justice Institute at the University of Houston Law Center is a founding member of the board of directors of the Houston Forensic Science Center. The crime lab in Houston was once affiliated with the police and underwent a huge scandal similar to the North Carolina SBI Crime Lab. However, the response from their scandal was for the crime lab to be replaced with the Houston Forensic Center which is an independent lab. Texas has also created an influential science commission that in 2016, rendered bite mark evidence, a type of junk science, inadmissible. Sandra told Radley that the more information an analyst gets from law enforcement officials, the more likely they are to produce a false positive. Good scientists know that cognitive bias is a threat and take precautions to keep it from corrupting their work. Many of Radley’s experts suggested the idea of a case manager to benefit labs. As analysts receive information such as race, a case manager, who would preferably have a scientific background could be the go between for analysts and law enforcement and would decide what information needs to be distributed to the analyst. Barbara A. Spellman, a professor of law, and former professor of psychology from the University of Virginia suggests that for every case of which there is forensic evidence could have three forensic evidence who would examine the evidence together. By lottery one would be the consultant to the plaintiff, one to the defendant, and one would testify at the trial. Radley mentioned that a few of his experts cited the Houston Forensic Science Center as the ideal model of an independent science driven crime lab. That lab has already implemented the case managers and the shield analysts from being able to expend any bias. Sandra suggests that labs should be transparent and all documents including accreditation and even budget reports should be posted on the website and easy to find. She also suggested independent labs across the board, not just for eliminating bias, but also because she’s learned that independence enables labs are able to be transparent without needing approval from law enforcement and they eliminate the appearance of pro-police bias. She says that having scientists (who are not affiliated with police) collect the evidence from crime scenes restores the public’s trust, especially in officer-involved shootings.
Another of Radley’s experts is Fred Whitehurst who Priya spoke with about his personal experiences in the FBI Forensic Lab. He was the whistleblower in a scandal there and ultimately turned his experience into an organization to help whistleblowers. Whistleblowers should be protected so that they’ll be more comfortable coming forwards. ASCLD-LAB had reporting protocols that involved using your own name and handwriting your complaint so that it essentially discouraged anyone from coming forward and “tattling”.
Fred and a gentleman named John Lentini, another one of Radley’s experts in fire and arson – they were in complete agreement: suggesting that analysts be held accountable if their expert opinions led to a wrongful conviction. John also suggested that prosecutors be held accountable for intentional Brady violations - which is where prosecutors are required to hand over any and all evidence that could potentially exonerate the defendant. John told Radley he wants the court to reverse the Connick v. Thompson decision so that prosecutors will be held accountable for these violations.
As John Lentini told Radley, and perhaps this answers some of the questions about Brady violations. Priya said she’s all for prosecutors being held liable for their wrongdoings, but she had no idea what the Connick v. Thompson decision was, so she looked it up: apparently the Connick in this is Harry Connick Sr. - the father of Harry Connick Jr. And the Thompson in this case was John Thompson who, in the 80s, was charged - with another guy - for killing someone. And in this case, a fucking lot of fuckery happened.Including Connick allegedly withholding evidence that blood that was not the victim’s was found on or around the body - and that blood did not match John’s blood. John was innocent.John sued and won $14 million dollars a million for each year he was wrongfully imprisoned. But, you know, no one liked that - and nothing Priya read suggests this, but my theory is that John was a black man in Louisiana who was a shining example of a bunch of white prosecutors fucking up. So, his win was appealed. The case went all the way to the Supreme Court. And despite popular opinion that there were an awful lot of shenanigans in that case, the Supreme Court ruled in Harry Connick Sr.’s favor, and, well, prosecutors can legally withhold Brady materials. Obviously, Queen Ruth Bader Ginsburg dissented in this case. Because of course she did.
Prosecutors are almost immune when it comes to wrongdoing. They’re immune to civil cases and are rarely disciplined in cases of misconduct. An article written in March of 2019 looking into accountability for prosecutors in California, mentions that the CA State Bar rarely investigates prosecutors. They mention that a lack of resources may contribute to this. They looked at a study that found in California from 2004-2009 there were 707 instances where a judge found that a prosecutor committed misconduct. Only six of those resulted in a public sanction by the state bar. This problem isn’t isolated to California: in Massachusetts only two prosecutors were publicly disciplined between 1980 and 2016. There were at least 142 instances during that same period of time where a judge reversed a guilty verdict or dismissed charges due to prosecutor misconduct. Over 1,400 non-prosecutors have been disciplined in Massachusetts over the last 15 years. In Louisiana, the first professional sanction against a prosecutor didn’t occur until 2005. New York Governor Andrew Cuomo approved a bill in the spring of 2019 to set up the nations first independent commission to investigate reports of misconduct by prosecutors. The bill received support from many black and latinx democrats who saw it as an answer to systemic racism. The commission will be made up of 11 people who can investigate attorneys and determine whether their conduct is unprofessional or unlawful. Prosecutors have been fighting this and calling it unconstitutional, even filing suit against it. The article discusses the different types of unethical stuff prosecutors do and mentions that they have a “whatever it takes mentality”. The article also notes that when someone is accused of a crime they cease to be seen as a person by the legal system. It says that without plea bargaining our criminal system couldn’t process the nearly 11 million arrests that occur every year, and without misconduct way fewer people would plead guilty. We live in a culture that doesn’t trust defense lawyers. Marvin Schechter told Priya that people often ask him how he can defend guilty people to which he replies “how can I not defend innocent people?” Our system promises innocent until proven guilty but that doesn’t seem to be the case. The defense attorneys fight for that promise, but exonerees are left with broken promises from the system. They’re presumed guilty from the beginning and often are even after being exonerated. They deserve a public apology and the victims deserve a promise that the justice system will do everything they can to find the person actually responsible for the crime.
Priya and Jess asked their experts if they had a “wis hlist” of reforms they would like to see. On Chris Mumma’s list was restrictions or controls on the use of jailhouse informants. In many of the cases this podcast has covered, jailhouse informants were used and were lying. The I Beverly Lake Jr Fair Trial Act was put up for a vote. It included concerns about the reliability of jailhouse informants and suggested that no one should be convicted based on the word of a jailhouse informant alone, there should be other corroborated evidence. Regulating the use of jailhouse informants should be done nationwide and Connecticut is currently doing work in this area. The new rules there include requiring pre-trial hearings on whether their testimony should be allowed and forcing prosecutors to disclose any deals with informants and their history of testifying in other cases. A bill was signed in July that will create the nation’s first statewide system to track the use of informants and the benefits they receive in exchange for their testimony. California, Connecticut, Oklahoma, and Utah all require juries to be given instructions to scrutinize informant’s testimonies.
Also on Chris’ wish list was a more cooperative post-conviction review and resolution process and repercussions for prosecutorial misconduct. This item was on a few of their expert’s list. Kim Cook’s and Saundra Westervelt’s list includes that the state helps an exoneree readjust to life after exoneration. They suggest reparations for the exonerated person and their family, compensation within a reasonable about of time, expungement of the crimes for which they were convicted immediately upon release, access to healthcare including mental healthcare, free education and training for employment, assistance finding employment, and adjustments to social security, they also want officials and advocates to remember the harm done to the victims or family of victims at the heart of the original conviction case. They suggest reparations that may assist in their healing in the form of: time to ask questions about how this happened, answers to be provided by the judicial body overturning the conviction or someone in a position of authority who does not continue to maintain the exoneree’s guilt, an opportunity to meet the exonerated person if both parties agree, financial compensation to help with costs from the wrongful conviction, access to healthcare to assist with physical or emotional trauma, and extension of the statute of limitations for rape and sexual assault cases to allow the identification of the actual perpetrator. Priya goes a step further and says that the evidence should be preserved for a long time. This is especially true as it’s not always easy for survivors to come forward.
Marilyn Miller said she would like to see the adoption of common sense standards set by The Organization of Scientific Area Committees for Forensic Science (OSAC). The standards they set include minimum requirements, best practices, standard protocols, and other guidance to help ensure the results of the forensic analysis are reliable and reproducible. She would also like to see the accreditation of forensic science programs in higher education. Marilyn was also asked about some of the things she was grateful for. The standards set by OSAC is one of those as well as lawyers who understand the power of forensic science done properly and 25 years of cool students.
The impact of the results of the audit will be felt for a long time as prosecutors and defense attorneys examine cases up to two decades old. Chris Mumma is still dealing with the reverberations today. In episode two we learned that the Center on Actual Innocence rejects 95% of the cases that come across their desk as they have to pass a series of rigorous tests. When Chris takes on a case, it means not only that there’s credible evidence that the individual is innocent but it seems to mean the individual is definitely innocent. When she takes on a case she completely dedicates herself to the case. Chris had been dealing with the SBI Crime Lab since 2006 and is still dealing with the repercussions of their misconduct. On May 5th 2008, a boater on the Catawba River in Mt Holly, NC called 911 after seeing a car that had run off an embankment and a body near it. When police arrived, they discovered the body of Ira Yarmolenko, a 20 year old UNC Charlotte student, lying dead next to her car. She had three ligatures around her neck and 100 yards down the embankment a man named Mark Carver and his cousin Neal Cassada were fishing. DNA found microscopic skin cells that “matched” Mark in Ira’s car.
This is touch DNA which is really unreliable because it’s something you could leave just by picking something up in the store. Mark and Neil were charged with the murder of Ira and ultimately placed under house arrest. Being charged with a murder you didn’t commit sounds like it would be extremely stressful, so it’s not that big of a surprise that the night before his trial, Neil had a heart attack and died. Prosecutors offered Mark a deal where he would get four to eight years in prison, and, as he was innocent, he turned down their offer and the case went to trial. Like we’ve seen before, the defense thought the case was really weak and didn’t bother to provide any evidence. At this point, it was 2011 and the 230 cases from the audit had happened but that was evidently not enough for the defense attorneys to be diligent. A year earlier there had been a publication of updated guidelines that were relevant to the evidence reported at the trial. Had the DNA testing been reported at the trial, none of it would have been reported as matching Mark but instead he was sentenced to life in prison.
Chris Mumma took on Mark’s case in 2013 and after a number of delays, the hearing began last spring. On April 8th, 2019, former SBI Special Agent Mark Booty testified. He said that in the lab in 2010 everyone was panicked about the audit report that had just come out but inexplicably inside the lab, agents were ignoring scientific advancements that could have helped Mark. He told the court that they were trying to save their jobs and that they weren’t focused on science at the time. A couple of years prior to the trial, Chris Mumma pointed out the similarities between Mark and Greg’s cases where the biggest reason for the conviction was proximity to a dead body. Priya says that, on a personal note, it was great watching the headlines over the summer because in June the judge set aside Mark’s case and he walked out of the courtroom a free man. However, he still has an ankle monitor and was not found not guilty. Mark will likely have to suffer through a new trial, but maybe justice will prevail and the charges will be dropped. Of course this means that after a decade, there has been no investigation into who actually murdered Ira. Mark and Neal have always been the only suspects so it’s likely that, as with Greg, there won’t be any investigation, meaning there will be no justice for the victim and her friends and family. There are many similarities between Greg and Mark’s cases including the minuscule evidence and offers of plea deals. Chris refers to Mark as her “Greg Taylor 2.0”. It was Greg’s case that sounded the alarm that something was drastically wrong in the SBI lab, which plunged the lab into chaos. The chaos that resulted in no one paying attention to the evidence that could have cleared Mark and his cousin. Chris says that it’s almost ironic that the exoneration of one of her clients could have lead to the wrongful conviction of another.
In Radley Balko’s articles that were referenced earlier, Judy Melenik suggested that if the courts are following the laws placed before them by legislatures then it’s time to find legislatures who are serious about criminal justice reform and who are ready to pass laws that fund forensic labs and require the legal system to give the wrongfully convicted another chance at overturning those convictions and seeking retribution. Jess and Priya advises us that DAs are elected officials and that the best thing we can do is "vote the F’d Up people out”.
To close the podcast, the F’d Up crew share their final thoughts on what they’ve covered this season. Keith says that in doing this podcast he’s been most surprised about the justice system’s willingness to pick and choose evidence to which Priya says that they don’t treat someone as innocent until proving guilty. It’s more like they decide the person is guilty and just work towards proving it. When asked what reform she would like to see since doing this podcast, Jess said for her it’s that the prosecutors are held accountable. Priya says that that’s also a huge deal for her and that behind the scenes of doing the podcast she’s learned that you have to be very clear in asking for a lawyer. You can’t say something like “I may want a lawyer now” you have to clearly invoke your right for a lawyer, and she wants more people to know that. In closing they want us to know the most important thing we can do to help is vote.