Where did things go so wrong with the crime lab at the State Bureau of Investigation? And why?

As someone who has represented ­persons charged with committing crimes for almost 40 years, I have read most of the articles about the SBI ­controversy with high interest. And it seems to me that too many times the analysts ­forgot, in the words of the old labor union song, “Which side are you on?”

To restore the lab’s credibility, the analysts need to answer that question by saying, “I belong to no side, other than the side of scientific accuracy and truth.” Too often, instead, at least some of them have withheld from defendants information which might have been beneficial to their cases, or ­tailored their testing to reach outcomes consistent with the state’s theory of the case.

Over the past several months, the widespread discussion of the SBI ­scandal has coincided with issues ­surrounding the Racial Justice Act — which provides that if racial considerations were a significant factor in the imposition of a death sentence, the defendant is entitled to have the sentence converted to life without parole.

The combination of those two factors has prompted a growing number of people to call for the end of capital punishment in North Carolina. That, in my opinion, is a long overdue step.

In any case, how did we get to a place where the SBI lab is now being viewed as placing greater priority on seeking convictions than seeking truth? Can we get to the point where the capital punishment system makes decisions involving life and death in a way that is blind to racial prejudice?

I would like to share some thoughts on this current crisis of confidence in the justice system and how we can regain the people’s faith that our criminal law is being administered with fairness and integrity.

The SBI lab controversy has its roots in two fundamental aspects of the American criminal justice system.

Adversary System

First, unlike most of the countries of Europe, the United States has decided that the best way of arriving at the truth is through the use of the “adversary system.”

That is, if a person is charged with a crime, the state is represented by a lawyer advocating for the state’s position and the person charged is represented by a lawyer advocating for his position. The testimony of witnesses is subjected to questioning by both sides, and the members of the jury decide how much, if any, of the testimony they believe.

The notion of the “crucible of adversarial testing” as a path to the truth, however, brings some problems with it. Since the main players are split into two sides, there are “winners” and “losers.” It goes against human nature for one side to help the other side win in any sort of activity.

So I believe that some SBI lab analysts thought that in an effort to help their side prevail in a case, they would withhold test results that were inconsistent with the state’s theory of the case. Wrongly, they saw a difference between an affirmative falsehood and lying by omission.

A 2007 memo by the SBI reveals that this winners/losers mindset was acceptable. “The DA is human,” it says, “and does not want to lose a case any more than an analyst does.“

The SBI lab was established in an era when it was normal and expected to think that the lab analysts and the prosecutors were in a partnership to get convictions. This notion is illustrated by a passage from a memo written by Richmond County District Attorney Michael Parker: “Also, give your expert plenty of notice so that he can plan to be available during the defense testimony and aid you in cross-examination.”

Please be assured that no SBI lab analyst has ever offered to assist me in cross-examining a state’s witness!

It is difficult for the average person to understand that in the adversary system there are people who fulfill various roles. Defense lawyers are often asked, “How can you represent someone who is guilty?”A long time ago, a woman asked me, quite seriously, “How can you look at yourself in the mirror in the morning when you represent murderers?”

My role in the system is to ask a question that is pretty important: “Have we made a mistake in charging this person with this crime?”

I never have condoned perjury or advocated for something that I know is false. And I never will. But I do consider it to be my job to prod and pull at the state’s case to see if it holds up in its accusations.

Justice and Politics

A practical reality that, in my opinion, runs a close second to the use of the adversary system as creating a context which encouraged the problems at the lab is that the criminal justice system’s main actors — attorneys general, district attorneys and judges — are vulnerable to popular elections to get and keep their jobs.

As we all know, in the age of cable news, the Internet and Twitter, “instant political accountability” is the norm. In the 21st century, “right now” is not fast enough. In my opinion, the individuals who are critical to the proper administration of justice should not have to worry about losing their job at the next election because they made a proper, but unpopular, decision.

A comment made by a judge in Carthage is ­forever burned into my brain.

I was trying a capital case in 1992, and the judge had to decide if under the law there was sufficient evidence to allow the jury to decide if my client should be put to death. The judge properly ruled there wasn’t and imposed two life sentences.

After the trial ended, the judge and a bailiff were walking to the elevators. They didn’t know I was behind them, and I heard the judge say to Bailiff Lineberry, “I wonder what the newspaper will print tomorrow, ‘Judge Strikes Death Penalty,’ or ‘Judge Imposes Two Life Sentences’?”

Judges, in my view, shouldn’t have worry about what newspapers will say if they make legally correct decisions.

So if losing cases means losing votes and therefore losing jobs, it is hard for our law-enforcement ­leaders to resist the temptation of letting political considerations play a role in their decisions.

Roy Cooper, North Carolina’s attorney general, is dependent on the voters’ approval to keep his job. I hope that he does the right thing, whether or not it is popular, to resolve the SBI controversy.

Prejudices Often Prevail

Speaking of politics, the truest thing I have ever heard about the death penalty is, “Capital ­punishment is as much a part of the political system as the criminal justice system.”

Death penalty cases are emotionally gut-wrenching for all concerned. Quite often, the level of suffering, tragedy and desire for vengeance is so high that decisions about whether the defendant should die are not based on a rational process.

In my opinion, who receives a sentence of death does not depend as much on what they did as where they did it, to whom they did it, and how good their lawyer was. Unfortunately, the shame of racial discrimination is not yet a thing of the past in America, and the connection between race and capital punishment is strong.

The intent of the Racial Justice Act is to allow a defendant to avoid being executed if race played a significant role in the decision to impose death.

I personally do not believe that prosecutors make conscious decisions about whom to try capitally based on the color of the defendant’s or victim’s skin. The problem is much more subtle than that.

I believe there is only one genre of literature — autobiography. By that, I mean everyone sees things through the perspective of his or her own life and experiences. Jurors are the same. I believe they tend to identify with people, defendants, witnesses or victims who are like them in looks, beliefs, backgrounds or whatever.

Usually people are careful about discussing the issue of racial bias during jury selection. Occasionally, a candid juror will say what I suspect other jurors believe but do not admit.

I’ll never forget, and in a way I’ll always admire, the truthfulness of a juror I questioned several years ago in a murder trial in which the defendant was black and the victims white. I had questioned the gentleman about various things and then asked him if there was anything else he wanted to say.

“Well,” he replied, “it won’t do your client any good for me to be on the jury.”

I asked him what he meant, and he said, “I’m white. He’s black. I’m prejudiced.”

I thanked the juror for his candor and took him off the jury. I often wonder how many jurors who have sat on a capital case felt the same way but ­didn’t tell me.

Play by the Rules

I think the SBI scandal and the Racial Justice Act have a common link, which is unsettling. They both involve shattering our beliefs about how things should work. We want to believe that analysts place science first and jurors make decisions unaffected by appearance. As we have seen, that is not always the case.

How do we fix it? What can be done to restore integrity and credibility to our justice system?

First, I think Attorney General Cooper has to admit that if he wants to see a credible lab, he can’t be the boss of it. In my opinion, the lab should reside in the one branch of government designed to be neutral, the judicial branch, and it should be located at a place known for a commitment to science, like Research Triangle Park or Centennial Campus at N.C. State.

Prosecutors, just like defense lawyers, should have access to their own scientific experts. But they should not be analysts who wear two hats in the system.

Attorneys general, judges and district attorneys should not be elected, although I do support initial appointment followed by periodic retention elections.

We should relegate the death penalty to a thing of the past. Some people may be able to justify it in theory, but in practice it is unfair and unworkable.

Even with some of the problems it creates, I would not eliminate the adversary system as the basis for seeking the truth.

As Roy Cooper and ­others work toward addressing the concerns which have come to light about the SBI lab, I hope they remember that what most citizens want is quite simple. They want the SBI, like all agencies of government, to play fair and play by the rules.