Judge lifts temporary stay on drug trials

Evidence tampering to be reviewed on case-by-case basis
The Controlled Substance Lab is no longer handling testing of drug evidence after police determined evidence had been tampered.
April 11, 2014

Evidence tampering discovered in the Office of Chief Medical Examiner could delay scheduled trials, but judges will consider the problem on a case-by-case basis.

In a March 26 letter to State Prosecutor Kathleen Jennings and Public Defender J. Brendan O'Neill, President Judge James T. Vaughn wrote, “I think the time has come to return to an individualized consideration of each case.”

Jennings had requested a 60-day extension beyond a 30-day extension Vaughn granted a month ago.

Vaughn's decision was welcomed by O'Neill, whose office defends the majority of drug cases that were put on hold after police revealed drug evidence sent for testing at a lab within the Office of Chief Medical Examiner was missing or had been replaced with something else.

“I think we need to sort of get a handle on where this is going and try to identify how many cases are going to be impacted, and then take each case by itself,” he stated during a March 26 court proceeding.

In Sussex County, Deputy Court Administrator Karen Taylor said nine drug trials were continued in March as a result of the scandal. April cases will be considered on a case-by-case basis.

Delaware State Police and the Attorney General's Office announced a criminal investigation Feb. 21 into the Office of the Chief Medical Examiner. Four days later Chief Medical Examiner Richard Callery was suspended with pay from his $198,000 a year job. The Department of Health and Human Services is conducting an internal human resources investigation into Callery's activities.

Additionally, California firm Andrews International is auditing all operations at the Medical Examiner's Office: the drug lab, death investigations and DNA evidence, said Jill Fredel, director of communications for DHSS. The $250,000 contract is looking into how the lab handles drug evidence, and Andrews is providing a comprehensive review of the office.

“They will look at each area and make sure the protocols are appropriate,” Fredel said.

Sgt. Paul Shavack, director of public information for the Delaware State Police, said police continue to interview and examine secured drug evidence contained within the Controlled Substances Lab.

“There are thousands of pieces of evidence to physically examine, and we are making progress in this tedious and time-consuming process,” he said.

Shavack said there is no timeline for when the investigation will conclude, and no arrests have been made.

NMS labs in Willow Grove, Pa., is now handling Delaware's drug evidence and testing, Fredel said,

DHSS has a contract of up to $70,000 with NMS labs to test more than 250 illicit or prescription drugs, she said.

However, those costs could rise much higher. In the transcript from a March 26 court proceeding, state Prosecutor Kathleen Jennings said 103 samples of evidence have been sent to NMS at an estimated $400 per sample. Jennings said she anticipated the samples should be done in four weeks.

The 103 samples represent 30 court cases; Jennings said there are nearly 20,000 bags of evidence overall, but “far more items of evidence in all the police agencies throughout the state.”

Some cases involving drug testing are closed so they don't impact Superior Court, but they would impact the public defender's office, she said.

Delaware Republicans have questioned the lack of response to from the Attorney General's Office and the Governor's Office.

In March, Senate Minority Whip Republican Greg Lavelle spoke about holding a public hearing to discuss the situation in the Medical Examiner's Office.

“We still have a medical examiner who's now getting paid and doing nothing. And to let this simply float long behind human resources and personnel issues … I think would be to the detriment of the public.”

Sen. Robert Marshall, D-Wilmington West, said a public hearing may be held in April.