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While an independent review of the N.C. State Bureau of Investigation Forensics Laboratory has SBI officials searching for a new lab director, assistant district attorney Lee Bollinger said his confidence in the SBI lab isn’t shaken.
The independent review, conducted by Chris Swecker, a North Carolina attorney and former assistant director of the FBI’s Criminal Investigative Division, examined procedures and practices of the forensic lab between January 1987 and January 2003.
Swecker’s review of the state forensics lab found 230 cases, three of which are Brunswick County cases, in which presumptive serology tests were used.
Bollinger, who prosecuted two of the three Brunswick County cases listed in the independent review conducted at the request of Attorney General Roy Cooper in March and released last week, said fallout from the review would likely be twofold.
First, Bollinger said defense attorneys would begin to file motions for appropriate relief from the trial courts for their clients who were mentioned in the independent review, or who were convicted or pleaded guilty in a case where SBI serology tests were used.
“Second of all, you’re going to see attacks in the courtroom on the professionalism of the SBI laboratory,” Bollinger said.
Bollinger has been prosecuting murders and rapes in Brunswick, Columbus and Bladen counties for 20 years
“My confidence in the SBI lab…in serology and DNA testing has not been shaken,” he said, adding a blood or DNA analysis should be able to “stand on its scientific merits.”
For defendants whose cases were examined in the independent SBI serology lab review, Bollinger said they could file a motion for appropriate relief in the trial courts. The burden of proof in the motion is on the defendant. Bollinger said there are elements that are more difficult to prove when a defendant enters a voluntary plea.
Bollinger prosecuted two of the cases listed in the SBI independent review.
Mark A. Pendergrast pleaded guilty to second-degree murder on Jan. 10, 2000. He was sentenced to 22 years and one month in prison. Pendergrast is currently incarcerated.
According to the case review summary, analysis of items gave chemical indications of the presence of blood, but does not reflect the negative confirmatory test result for one item.
Louis Harm Ash pleaded guilty to second-degree rape March 31, 1991, and is currently serving a life sentence in prison.
According to the case review summary, “Indications for the presence of blood were detected…however, insufficient evidence was observed to allow for conclusive identification for blood on this item.”
In both of these cases, Bollinger said the defendants entered voluntary guilty pleas. Also in both cases, Bollinger said the blood evidence was for the presence of blood and did not tie a victim or a defendant specifically to a crime scene.
Bollinger said the SBI review does not nullify other and even stronger evidence in the case, which a judge would be required to review during a motion for appropriate relief.
If the defendants or their attorneys file a motion for appropriate relief, they must prove by the preponderance of the evidence they should receive appropriate relief, at which point a judge could dismiss the motion, rule on the motion, order a new trial or adjust the sentencing, Bollinger said.
“The big hurdle for the defense in the Ash and Pendegrast cases would be setting aside a voluntary plea,” he said.