News: CJ Exclusives

Attorney: Libel lawsuit could be attempt to protect crime lab, DOJ

First Amendment lawyer Bussian suggests case against N&O actually sought to block critical coverage of crime lab's failures

Attorney John Bussian, at left, representing the News & Observer, hands documents to Wake County Superior Court Judge Graham Shirley during a pre-trial hearing on Aug. 10 in a libel case involving the newspaper. (CJ photo by Dan Way)
Attorney John Bussian, at left, representing the News & Observer, hands documents to Wake County Superior Court Judge Graham Shirley during a pre-trial hearing on Aug. 10 in a libel case involving the newspaper. (CJ photo by Dan Way)

A lawyer defending the News & Observer of Raleigh against a libel suit filed by a State Bureau of Investigation special agent suggested in court Wednesday that the case actually might be an attempt by the state to protect the image of the Department of Justice and State Crime Lab that were under the management of Attorney General Roy Cooper.

“This lawsuit is really being driven not about a recovery for damages” by plaintiff Beth Desmond, who claims the newspaper libeled her with false reporting about her testimony at two trials related to a 2005 Pitt County murder, “but by a need for political damage control,” John Bussian told Wake County Superior Court Judge Graham Shirley.

Desmond was a firearms examiner in the State Crime Lab, whose various divisions were beset with slipshod work. The N&O ran a four-part investigative series in August 2010 chronicling the problems, growing questions about the accuracy of forensic sciences, and the implications for the administration of justice.

Bussian suggested to Shirley that there were officials who wanted to cover for the state Department of Justice and the crime lab, “right down to concealing” the existence of an inspection report by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, a national accreditation agency that found major problems in the North Carolina crime lab.

Among those findings were questions about Desmond’s lab work on bullets from the Pitt County case, and testifying with “absolute certainty” at trial they were fired from the same type of gun even though her lab report said they could have been shot from other models of guns.

Bussian and fellow defense attorney Mark Prak contend Desmond’s absolute certainty claim deprived the Pitt County murder suspect of his defense that a second shooter fired the fatal shot.

“To say ‘I’m absolutely certain’ is something no reasonable, reputable firearms examiner could or should do,” Prak said. “They’re putting their finger on the scales of justice.”

Bussian’s oral argument echoed his July 29 written motion for reconsideration to admit the ASCLD/LAB report into evidence to bolster a constitutional press protection that truth is a defense in a defamation lawsuit.

“The report is an important element of defendants’ proof that Agent Desmond’s lawsuit is, in fact, motivated by a desire to deter the press — if not silence it altogether — from reporting accusations of serious misconduct” by the crime lab, the motion stated.

The report’s findings would show Desmond’s analysis and testimony in the Pitt County cases “created the impetus” for DOJ and SBI to conceal the report from the public and press, and with Desmond wage a concerted effort at political damage control through the lawsuit, Bussian wrote.

DOJ issued “a lengthy series of press releases that touted the supposedly positive results of various internal and external ‘reviews’ of the Crime Lab” while avoiding mention of unfavorable evaluations, including the ASCLD/LAB inspection and report, Bussian wrote.

At the same time, the court filing said, crime lab, SBI, and DOJ personnel “encouraged the pursuit of a lawsuit” ostensibly to clear Desmond’s name, but designed to exonerate the lab and SBI from the criticisms in the N&O series. Jerry Richardson, the crime lab assistant director at the time, paid $100 to a web page financially supporting Desmond’s lawsuit.

“I think it would be difficult for anyone to deny the problems that existed” in the crime lab, Shirley said. “But to argue that this is damage control for that” might be a tough sell to a jury.

Shirley did not rule on the matter Wednesday, and said he likely would not before the trial starts the week of Sept. 26. Instead, rulings on the admissibility of disputed evidence and witnesses might occur “as things are known” at trial, Shirley said.

He told lawyers for both sides he was “going to do my best to keep that door closed” to a long stream of trial witnesses, in his words “to protect the jury from hearing a lot of irrelevant stuff.”