A Sussex County defense attorney says the number of drug cases affected by evidence tampering in the state drug testing lab could reach the hundreds.
“This is unprecedented in Delaware history,” said defense attorney John Brady. “Occasionally you have a police officer who compromises evidence, but we've never had a lab compromise evidence, review and return.”
The Office of Chief Medical Examiner's Controlled Substances Laboratory is under investigation by Delaware State Police and the Attorney General's Office after officials discovered drug evidence sent to the lab for analysis had been removed or replaced with other drugs. Public defender Brendan O'Neill said most cases involved Oxycontin but at least one involved marijuana. Sgt. Paul Shavack said the lab has been closed, and officials are working out a plan to provide drug analysis elsewhere.
If it were not for a Kent County drug trial held in January when drug tampering was discovered, Brady said, problems with the lab would not have surfaced.
The total number of cases in question so far is 21 throughout all three counties, Brady said, noting they could date back to 2010. As police agencies across the state continue to inventory their cases, however, Brady said he expects the number of cases in question to rise.
“It wouldn't surprise me if it gets to triple digits,” Brady said.
In Massachusetts where a chemist claimed to have tested drug evidence when she never did, Brady said, there were more than 1,000 cases compromised over an 18-month period. A second Massachusetts chemist at a different lab was arrested in 2013 and charged with evidence tampering and possession of controlled substances.
Brady said he handles more than a dozen drug cases a year, and he is reviewing past cases to see if any could have been affected by mishandled evidence.
Sussex County Superior Court cases continued this week, although no trials on the schedule would have been affected by charges of tampering with evidence in the state's Office of Chief Medical Examiner.
Deputy Court Adminstrator Karen Taylor said Sussex County Superior Court has received no direction to handle drug cases differently despite a Feb. 24 request by state prosecutor Kathleen Jennings to stay pending trials for 60 days if drug evidence was submitted to the state's controlled substances lab.
“There hasn't been any effect as of now,” Taylor said. “They've been doing trials as usual, but none was drug related.”
No trials are scheduled next week, when case review and final case review are scheduled, she said.
About 85 percent of the drug cases in Superior Court are handled by the public defender's office. O'Neill said his office would ask for dismissal of any cases in which evidence could have been compromised.
“It's not the defendants' fault that there's a problem with the drug-testing lab,” he said.
Shavack said there are 53 employees with the Office of the Chief Medical Examiner; six are assigned to the Controlled Substances Lab. He said that the lab employees continue to work within the medical examiner's office and have been assigned to other duties not related to lab analysis.
The Attorney General's Office has also declined to release further details on the case because it is under investigation.
On Feb. 27, Delaware Republicans weighed in, questioning how improprieties could have continued in the lab since 2010.
“The fact that this situation has continued for as long as it has without detection is a sad commentary on those in the leadership of both the Medical Examiner's Office and the Attorney General's Office who works closely with the ME to ensure the conviction of dangerous criminals. Yet, the attorney general is nowhere to be found,” said John Fluharty, executive director of the Delaware Republican Party.
The Attorney General's Office could not be reached for response.
Speaker of the House Pete Schwartzkopf, who worked with the Delaware State Police for 25 years, said compromised evidence has huge implications for future drug trials.
“The trust is gone,” he said. “When you are questioning, then what's a jury going to do?”