The revelations that came to light earlier this year involving the disappearance of drugs sent to the Office of the Chief Medical Examiner for testing has thrown countless criminal cases into disarray and raised troubling questions.
It remains the focus of an ongoing investigation.
Just as disturbing, but getting little attention outside the criminal justice community, is the failure of the Medical Examiner’s Office to aid in the prosecution of those charged with drug crimes downstate. Logistics, performance, and agency culture have conspired to create a situation where Kent and Sussex county prosecutors cannot count on the Medical Examiner’s Office to function as an effective partner.
The Medical Examiner’s Office plays a key role in the fight against illegal drugs. When a law enforcement officer discovers an apparent illegal controlled substance, he or she uses a field kit to confirm their suspicions. If the test is positive, the evidence is seized, logged and stored in a secure facility at a state police troop or local police station. Periodically, these substances are transported to the only drug testing facility in the state - the Medical Examiner’s Office in Wilmington.
Once there, the evidence is tested in a clinical setting to confirm the field test - a necessary step for successful prosecution. Delays in getting this work done have become problematic, causing postponements of trials or the outright dismissal of drug charges.
Even if the test results are delivered on time, the participation of the Medical Examiner’s Office is not necessarily finished.
If the defense stipulates to test results - concedes that the positive test results are accurate - the case moves forward. However, if the defense questions the results, someone from the Medical Examiner’s Office must testify regarding the chain-of-custody, the testing procedures, and the credibility of the results.
Usually, the defense would be hesitant to challenge testing results. Doing so potentially gives the prosecution a chance to dramatically emphasize to jurors that the accused was illicitly in possession of a controlled substance. But what downstate defense attorneys have quickly learned is that the Medical Examiner’s Office cannot be counted on to provide that critical expert testimony.
In fact, it is a virtual certainty that no one from the Medical Examiner’s Office will appear for cases involving lesser drug charges tried in Family Court or the Court of Common Pleas. Prosecutors are creatively trying to work around the handicap, citing defendants for related charges, like “possession of drug paraphernalia,” that do not require the Medical Examiner’s Office input.
Even for Superior Court cases, where the most significant drug offenses are adjudicated, a subpoena may still not be enough to guarantee an appearance by a member of the Medical Examiner’s staff.
Part of the problem is a Wilmington-based staffer must sacrifice most of a day when traveling downstate for a single court appearance. Still, Medical Examiner staffers that do not show up in court potentially waste not only the expense of the testing they previously conducted, but all the resources devoted to arresting and prosecuting the accused.
Although the Medical Examiner’s Office works with law enforcement, it is not part of the criminal justice system but is rather an agency of the Department of Health and Social Services. The difference in institutional culture, some law enforcement officials have complained, results in a Medical Examiner’s Office that often does not observe the protocols needed to ensure the trustworthy handling of criminal evidence.
Operations in the Medical Examiner’s Office drug testing section have been suspended during the current investigation, with those services being temporarily performed by private labs in the interim. The state will spend millions of dollars defending criminal cases that have been called into question by the missing drugs scandal in addition to the vast amount of resources that have already been squandered by years of the agency’s testing and testimony shortcomings.
I propose permanently reassigning the office’s drug testing duties - either to an existing law enforcement agency or a new service established for this purpose. Drug testing facilities should be maintained in each county, with staffing, training, and equipment sufficient to deliver timely results and ensure effective participation in the prosecutorial process.
Such changes are not likely to be inexpensive, but given the crisis of confidence fostered by the actions of the Medical Examiner’s Office, it is an investment we cannot afford to neglect.
Rep. Steve Smyk
R-Lewes-Milton
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