The acting director of the SBI crime lab says that Judge Orlando Hudson got a fact wrong in the 46-page order released last week that found egregious errors in tossing out murder and sex assault charges against a Durham man.
Joseph R. John Sr., the acting State Bureau of Identification lab director, wrote to Hudson, the senior resident judge in Durham County, to alert him that he might not have known "the true state of affairs" in an aspect of the case dealing with whether evidence still exists.
Hudson issued a written finding that, after a two-day hearing in December in which SBI agents testified, the evidence in the case had been destroyed by the SBI.
"The Court is unable to determine when such items were destroyed based on an intentional suppression of information by the State Bureau of Investigation and by the Office of the Durham County District Attorney," Hudson wrote. "Any independent testing of these items is now impossible."
It was not a major thrust of his ruling.
John wrote that he researched the issue after reading the ruling.
"It is neither my intent nor desire to comment in any manner upon the Court’s Order," John wrote. "However ... I must report that examination of evidence here in the Lab and of Lab records indicates that no submitted evidence in the above‐referenced cases has been 'destroyed' by the State Bureau of Investigation."
He said that the SBI still has blood samples taken from the victim, a 2-year-old girl, and from the defendant, Derrick Allen.
All of the other items from 1998 case, including clothing and other evidence that had been submitted for testing, were long ago returned to the Durham Police Department, John wrote.
Durham District Attorney Tracey Cline said that the other evidence also has not been destroyed.
"The evidence is in the property room at the DPD and has been available for testing by the defense since 1999," Cline said.
The SBI did not ask Hudson to amend his ruling, which is already being appealed by the state.
Cline has indicated she disputes portions of the ruling that implicated her in withholding crucial evidence from Allen. She said she is considering whether filing a motion seeking changes is appropriate.
The judge's ruling on the destruction of evidence stems from testimony at a two-day hearing in December.
In that hearing, a letter was introduced as evidence from the state medical examiner's office -- which is separate from the SBI -- that said its specimens in the case had been destroyed. The medical examiner conducted an autopsy.
In the hearing, Allen's lawyer said that attempts to ascertain whether the SBI still held any evidence had been rebuffed -- and that the state had not disputed assertions that the evidence was gone.
An SBI analyst who handled the evidence, Jennifer Elwell, was asked about an SBI policy that says items "may be destroyed" after five years.
Elwell testifed that no one had asked her to check to see if the items in this specific case had been destroyed. But Elwell indicated that she didn't think that would have happened, pointing out that the policy says "may" and is not definitive.
"Were you aware that I had a private investigator call the SBI and they refused to disclose the information to him?" Allen's lawyer, Lisa Williams, asked Elwell in the hearing.
"No, I was not," Elwell said.
"Is that the policy of the SBI to refuse to do that?" Williams asked.
Elwell responded: "I do not know."
In the hearing, the state did not bring in other testimony or evidence to show whether the case's evidence existed or not.
UPDATE 1: Williams says today she is surprised to hear that some of the evidence is at the police department.
Williams writes: "I made a specific discovery request to determine whether or not the samples from the child were destroyed. The State did not disclose the information. I had my PI to contact the lab and the ME on November 1, 2011. The SBI would not tell us [if] they had destroyed the samples. I obtained a court [order] ordering the State to say if the samples were destroyed. They did not provide the information. The hearing occurred on 12/9 and 10 because Cline told Hudson they were ready and would provide the information... The evidence before the court was consistent with the evidence either ... being destroyed or the State completely ignoring the court order."
UPDATE 2: John says the SBI did not make any specific requests of the judge because he believes the agency does not have the legal standing to do so.
UPDATE 3: Hudson said in an interview that he intends to amend his ruling to relflect that some of the evidence in the case has not been destroyed. He said it does change any of the fundamental aspects of his ruling. "It won't change the substance of the order," Hudson said.
Click below to read the SBI's letter to Hudson.