Pitchforks and Torches

Attorney James Johnson represents Beth Desmond at a hearing on August 10, 2016.

As pressure for content increases, a reporter’s investigation becomes a witch-hunt.

On a simmering July afternoon in 2006, Beth Desmond peered through her microscope, carefully studying six bullet fragments collected from the scene of a murder. As a firearms examiner of one year with the State Bureau of Investigation (SBI), she examined each fragment diligently, looking for markings that couldn’t be seen with the naked eye.

Earlier that day, Desmond was sitting in a courtroom gallery, waiting her turn to testify on the fourth day of a murder trial. As she was listening to the witnesses preceding her, a police officer on the stand mentioned bullet fragments among the evidence, and Desmond was perplexed.

Desmond notified one of the assistant district attorneys that she had received only cartridge cases, not fragments, to examine for the case. After the attorney brought this to the judge’s attention, the attorney asked Desmond whether she could return to her lab to examine the fragments and present her analysis of the evidence the following day. Desmond affirmed that she could and then left with the fragments.

Back at the lab, with the six fragments meticulously mounted to her microscope, Desmond worked through the afternoon and early evening to complete her examination. Before writing her report, she asked a senior firearms examiner, Neal Morin, to review her work. Desmond had determined that four of the fragments were too damaged to be identified, but two had characteristics consistent with those of a Hi-Point 9mm handgun.

After examining the fragments himself, Morin reached the same conclusion. Desmond then wrote her report and left for the night.

Early the next morning, Morin re-examined the fragments to ensure the accuracy of Desmond’s report. He again confirmed her conclusion that four of the fragments were too damaged to be identified, but two had characteristics consistent with those of a Hi-Point.

In court later that day, Desmond presented her analysis of the evidence. She repeatedly explained to the district attorney and the jury that two of the fragments had markings consistent with the bullets of a Hi-Point. However, she clarified, she could only determine that the two fragments came from the same type of gun, not from the same gun.

Desmond’s testimony before the jury was highly technical. When the district attorney asked her whether she could use a gun on hand to illustrate how cartridges are ejected, the defense attorney requested to discuss the demonstration without the jury present. The judge then ordered the jury to leave the room, and the defense attorney asked Desmond whether she was absolutely certain that the fragments came from a Hi-Point. She stated that she was indeed absolutely certain.

Although Desmond’s testimony about the two fragments buttressed the prosecution’s case against the suspect Jemaul Green (who was later convicted), her testimony by no means secured the conviction, nor did her testimony significantly undermine the defense’s case. In fact, even when the defense appealed the conviction to a higher court, Green’s attorney never felt compelled to seek another opinion to contest Desmond’s analysis of the evidence.

Yet four years later, News & Observer (N&O) reporter Mandy Locke would effectively depict Desmond as colluding with the prosecution to secure a wrongful conviction. In an investigative report published on August 14, 2010, Locke wrote, “Independent firearms experts [. . .] question whether Desmond knows anything about the discipline. Worse, some suspect she falsified the evidence to offer prosecutors the answer they wanted.”

Suspected of falsifying evidence — a crime itself — Desmond was traumatized when she saw herself on the front page of the newspaper. Six years later, she still hasn’t recovered.

“I just want people to know the truth about me and my work.”

Before becoming a firearms analyst, Beth Desmond studied dance at Juilliard and performed with a professional dance company for almost a decade. As she began to sense her dance career coming to an end, she became interested in forensics because she had always had an affinity for solving mysteries.

In 1995, Desmond began studying at John Jay College of Criminal Justice. She attended night classes and graduated in five years. Her first job in the field was at the Westchester County forensics lab in New York. In February 2002, she relocated to North Carolina to accept a technician position with the SBI. A year later, she began the rigorous training process to become a firearms examiner and completed the training in 2005. She enjoyed using the microscope to search for patterns in the evidence, and she consistently received positive reviews from her superiors. However, after feeling defamed by the N&O and subsequent publications in 2010, her work began to trigger anxiety, eventually compelling her to transfer to another section in the SBI.

On September 1, 2011, Desmond filed a libel suit against Locke and the N&O. Despite the newspaper’s sustained efforts to discredit Desmond and have the case dismissed, the trial began last week.

No one from the SBI actively urged Desmond to file the lawsuit. After she filed, her co-workers sponsored a candy sale and organized a BBQ lunch to raise money to help her cover legal expenses. Altogether, her co-workers contributed about $5000, but that was only a fraction of her costs. Desmond has sold a diamond ring, cashed in the savings bonds she inherited from her father, and taken out a home equity loan to cover the remaining expenses.

“This has never been about the money,” Desmond says, “I just want people to know the truth about me and my work. This has been devastating for me.”

Desmond is visibly anxious. Even after years of conditioning as a professional dancer, she can’t conceal the tension in her gait and posture. She speaks with desperation and urgency. Though she sees a therapist, recovery from the distress she’s suffered will be long and difficult.

Despite the personal financial strain and the documented psychological trauma Desmond has experienced, the N&O’s attorneys contend that her lawsuit is not a sincere effort to recover personal damage but rather a devious attempt to recover political damage. Essentially, they have alleged a conspiracy theory in which Desmond is a pawn and in which officials as high up as Roy Cooper have connived to discredit the N&O’s scrutiny of the SBI.

At a hearing in August, N&O attorney John Bussian asserted, “The lawsuit is really more about defending the reputation of justice department officials than it is clearing Desmond’s name.”

As bad as it can be?

Mandy Locke’s article on Beth Desmond made the front page of the N&O with the headline, “SBI relies on bullet analysis that critics deride as unreliable.”

Locke’s original source for the article was Greenville (NC) attorney David Sutton. At the time, he was representing Jemaul Green’s girlfriend, Vonzeil Adams. Four years later, Sutton’s law license was suspended over multiple violations of conduct.

Adams was convicted of aiding and abetting voluntary manslaughter, in April 2010. During the trial, Sutton asked Fred Whitehurst, an attorney and former chemist, to take photographs of the two bullet fragments that Desmond had testified came from a Hi-Point. Whitehurst is not a firearms examiner, but he took the photographs for Sutton anyway.

Sutton was convinced Desmond’s analysis was erroneous, and Locke obtained Whitehurst’s photographs from Sutton after the trial. She queried Whitehurst about the possibility that Desmond was wrong. He told her that the photographs alone weren’t enough to determine such.

Nevertheless, Locke accepted Sutton’s interpretation of the photographs and became determined to present Desmond’s work as an example of incompetence or corruption in the SBI. In a story folder that circulated within the N&O newsroom a month before the article was published, Locke wrote, “Either Desmond has no idea how to evaluate firearms evidence or, worse, she ignored all the rules of the trade and fabricated the results to help police secure their victory.”

According to a brief Desmond’s attorney filed, Locke initially solicited opinions on the photographs from three respected firearms examiners, but none would comment. Eventually, she found three other experts to offer their opinions: Bill Tobin, a retired FBI metallurgist; Liam Hendrikse, a forensics consultant; and Stephen Bunch, a retired FBI firearms examiner.

All three experts told Locke that Whitehurst’s photographs raised questions about Desmond’s analysis but that a determination couldn’t be made without examining the physical evidence.

Locke requested an interview with Desmond, and Desmond consented without any objection. During the interview, Locke presented Whitehurst’s photographs, and Desmond explained that the photographs were misleading because Whitehurst — again, not a firearms examiner — had placed the bullet fragments facing opposite directions. To accurately compare the markings, Desmond explained, one needs to examine the fragments facing the same direction. (An N&O photographer would later tell Locke the same, according to the photographer’s testimony in a deposition.) Furthermore, Desmond explained that some markings weren’t even visible in the photographs and that one should examine the physical evidence before reaching any conclusions.

While researching the case, Locke learned that senior firearms examiner Neal Morin was the one other person who had examined the physical evidence. However, Locke never attempted to interview him, and she never informed her editors about him.

As the publication deadline approached, Locke emailed an N&O photographer to apologize for running late on the article. In his reply, he exclaimed, “Concentrate on writing the best damn piece you’ve ever done. I want you to compel our readers to gather pitchforks and torches.”

Locke finished her article and submitted it to her editors with one of Whitehurst’s photographs displaying the fragments facing opposite directions.

On August 14, 2010, four months after the Adams trial and four years after the Green trial, the N&O published Locke’s article questioning Desmond’s work. Whitehurst’s photograph was centered prominently on the front page of the newspaper, and the article’s subheading was a quote that read, “This is as bad as it can be.”

Strange Things

To win the libel suit against Mandy Locke and the N&O, Beth Desmond’s attorney, James Johnson, has to prove that Locke acted with malice, or a reckless disregard for the truth. His primary evidence is the testimony of the three experts Locke quoted in her article. All three have testified in depositions or affidavits that they did not make the claims about Desmond that Locke attributed to them.

In her article, Locke wrote,

Independent firearms experts who have studied the photographs question whether Desmond knows anything about the discipline. Worse, some suspect she falsified the evidence to offer prosecutors the answer they wanted. They said it is vital that the bullets be examined independently under a microscope.
“This is a big red flag for the whole unit,” said William Tobin, former chief metallurgist for the FBI, who has testified about potential problems in firearms analysis. “This is as bad as it can be. It raises the question of whether she did an analysis at all.

Again, all three experts denied that they ever claimed to suspect Desmond of falsifying evidence or that they ever questioned whether she knew anything about the discipline. As recounted above, they emphasized to Locke that they couldn’t reach a conclusion on Desmond’s analysis without examining the physical evidence.

The N&O has downplayed the three experts’ testimonies as “waffling.” In addition, according to a brief the N&O filed in court, Locke’s notes from the interviews contradict the experts’ testimonies.

Because Locke didn’t record her interviews, the actual content and context of those interviews remains a point of contention. However, email correspondence supports the three experts’ testimonies. For example, on July 27, 2010, more than two weeks before the article was published, Liam Hendrikse told Locke in an email, “The fact remains, that unless I physically examine [the fragments], I won’t know if ultimately SBI NC are correct or not.” A few days later, Bill Tobin told Locke in an email, “I don’t do [these types of] examinations, and most particularly don’t render opinions from photographs in an area in which I don’t function.” Similarly, on August 5, still more than a week before publication, Stephen Bunch told Locke in an email, “I wish I could see the actual specimens and then I could render a real opinion.” He went on to explain, “Strange things can happen though when one observes photos, so I hate to say anything with firmness.”

During the trial, Desmond’s attorney will likely highlight other elements of Locke’s article that may suggest a reckless disregard for the truth. For example, Locke opened the report with an embellished depiction of the relationship between the prosecution and Desmond, insinuating collusion. As explained above, Desmond only learned about the six bullet fragments while listening to another witness, and Desmond then informed an assistant district attorney that she had not examined them. She and the prosecution had no communication about the fragments prior to then.

Later in the article, Locke stated that “[Desmond’s] analysis would make or break the case against Jemaul Green” and that “[Desmond’s] report eliminated doubt about another shooter.” Both statements are also embellishments. The prosecution’s case was strong without Desmond’s testimony. Furthermore, following Desmond’s testimony, the defense remained undeterred in attesting that Green saw a second shooter at the scene. Even when the defense appealed the conviction to a higher court, they didn’t consider Desmond’s testimony relevant enough to seek a second opinion on the evidence she examined.

Given the critical claims Locke attributed to experts and her depiction of Desmond’s role in the Jemaul Green trial, most readers would finish the article and at least suspect that Desmond colluded with the prosecution to secure a wrongful conviction. Such a sensational story of injustice was exactly what Locke and the N&O needed for the final part of their “Agents’ Secrets” series.

The N&O’s Lawyer-up Strategy

After the N&O published Locke’s article, firearms examiner Stephen Bunch conducted an independent examination of the evidence, and he completed his report on December 8, 2010. In his report, Bunch supported Beth Desmond’s analysis, concluding that her opinion was “reasonable and warranted.”

Yet the N&O hasn’t retracted Mandy Locke’s article. Rather, they have lawyered up and spun the facts to protect Locke’s reputation — and the $25,000 journalism award she won for the “Agents’ Secrets” series.

Leading up to the trial, in print and in court, the N&O has diverted attention away from the article’s focus on Desmond’s analysis. Their strategy has been to zero in on Desmond’s one statement of “absolute certainty” and to mislead readers and the court into believing that Locke’s article was primarily about that statement.

Yet, as recounted above, the one time Desmond said she was absolutely certain that the fragments came from a Hi-Point was after the jury left the room. Each time she testified before the jury, she limited her testimony to her opinion that markings on two of the six fragments were consistent with those of a Hi-Point. Her statement of certainty, therefore, had no bearing on the jury’s verdict.

Furthermore, Locke scarcely mentioned Desmond’s statement of absolute certainty in the article. Even without that mention, the article would melodramatically depict Desmond as incompetent or dishonest. That’s why Desmond sued — not because the article criticizes a statement she made in court.

Prior to the trial, the N&O’s attorneys twice attempted to introduce into evidence an interim report from an outside agency that included criticism of Desmond’s testimony of absolute certainty. However, the author of the report appears to have read only Locke’s article about Desmond, not Desmond’s full testimony contained in court transcripts. Furthermore, the report does not substantially challenge Desmond’s methods of analysis, the actual matter of dispute. Consequently, the judge deemed the report irrelevant to the case and thereby inadmissible as evidence.

The N&O nevertheless published an article about the report, and the newspaper’s attorneys will undoubtedly still attempt to make the case about Desmond’s statement of absolute certainty.

After a hearing in August, Desmond summarized her position thus: “This case was always about Mandy Locke’s reporting that experts in my field said that I purposely falsified evidence (which is a crime). These experts never said that about my actual work/evidence.”

Desmond has had to fight every step of the way to trial. She struggled just to find an attorney who would take her case for what she might be able to afford. Her attorney James Johnson has mostly worked alone against the N&O’s team of attorneys and paralegals. They ran him ragged with depositions. They paid thousands of dollars to a psychiatrist in an attempt to discredit Desmond’s account of post-traumatic stress. They tried to have the case dismissed. They now gather together with Locke and her editors as a imposing force in the courtroom while Desmond and Johnson face the onslaught.

Desmond was only partly right when she said this case is about Locke’s reporting on what the experts said or didn’t say. Fundamentally, this case is about Locke’s regard, or reckless disregard, for the truth. Only a jury can decide whether she was reckless from a legal perspective. The rest of us, however, can decide whether she was reckless from a journalistic perspective.

Update: On October 18, after more than two weeks of listening to testimony and one day of deliberation, the jury determined that Mandy Locke and the N&O had indeed committed libel and were liable for $1.5 million in compensatory damages.

Author’s Note

I first read about the Beth Desmond case when Indy Week published an article about it in 2014. Though interested in following the story, I heard little more about it for two years.

Earlier this year, however, I met Desmond at a film festival in Raleigh, where I was presenting my documentary Unverified: The Untold Story Behind the UNC Scandal. After talking with her about her situation, I began to see parallels between the N&O’s handling of her case and their handling of the UNC scandal. I interviewed Desmond over coffee and decided to research more and write a story.

Acknowledging my bias against the N&O, I sought to understand their position on the case by attending a hearing. Watching the N&O’s attorneys strut about the courtroom, and listening to their haranguing, I thought to myself, “There’s no way they actually believe what they’re saying right now.” Indeed, I learned that much of their bluster was literally a fiction.

Over the next two months, I began reading court documents. I read Desmond’s and the N&O’s briefs filed two years prior, and I was particularly interested in comparing their competing representations of various witnesses’ testimonies with the testimonies themselves. After reading the affidavits and depositions, I concluded that Desmond’s brief more accurately represented the documented testimonies.

I am not a journalist: I am a writer. As a non-journalist, I willingly acknowledge that my point of view informs my writing. Like every writer who is honest about their craft, I see a situation from a particular point of view, and I then attempt to construct a narrative that illustrates that point of view.

“Pitchforks and Torches” is thus a story about the Beth Desmond case written from my point of view. Readers should examine the story critically and form their own opinions.

Rebecca Doran contributed research to this story, though the author remains solely responsible for its content.