Motions pile up as attorneys seek to erase drug convictions

Nearly 10,000 could be cleared
The Controlled Substances Lab remains closed as investigators look into drug evidence tampering. BY DHSS
May 19, 2014

For nearly three months, de­fense attorneys have waited to see how the Attorney General’s Office would handle its investiga­tion into evidence tampering in the state lab.

With no new information forthcoming, the state’s Public Defender’s Office has moved forward with 100 motions a week seeking to erase more than 8,000 drug convictions made between 2010 and 2014 – a period when drug evidence sent for testing at a lab with the Medical Examin­er’s Officer went missing or was replaced with something else.

Another 800 pending drug cases will be handled on a case­by- case basis as they move through Superior Court, said Robert Robinson, chief attorney for the Sussex County Public Defender’s Office. On May 2, he said state prosecutors pulled all plea bargins offered to drug defendants.

“Right now we’re trying to get to square one and find out what’s going on,” Robinson said. “It’s been more than two months. There’s only so much investiga­tion they can do.”

Robinson said he has received several brief letters from the At­torney General’s Office stating investigators were looking into discrepancies in the drug test­ing lab.

“We’d get a little information in one letter, maybe some more in the next, and then we may get another letter that contradicts the information,” Robinson said.

On April 30, the Public De­fender’s Office hand-delivered 112 motions for postconviction relief to the Attorney General’s Office in Wilmington.

All of the motions request relief based on violation of the defendant’s rights under Brady v. Maryland, which requires pros­ecutors disclose evidence even if it would benefit the defendent.

Under the Brady rule, pros­ecutors should have notified defendants there were problems with processing drug evidence.

State Prosecutor Kathleen Jen­nings said the Attorney General’s Office has identified 146 pending cases in which drug evidence was tampered with.

“Those numbers continue to rise,” she said during a briefing at Legislative Hall May 14. She said 75 defendants have been notified of problems with evidence in their cases.

Jennings blamed a frequently absent chief medical examiner for allowing a culture where lax security and little accountability prevailed, she said.

“We didn’t know anyone was stealing because that’s not some­thing done openly,” Jennings said.

Chief Medical Examiner Rich­ard Callery has been suspended with pay from his $198,000 a year job since Feb. 25. Evidence spe­cialist James Woodson, described in court records as a custodian who handled drug evidence sent to the lab by police agencies, was suspended with pay in April from his $42,000 a year job.

Sussex cases

So far, about 90 motions for Sussex County convictions have been filed by the Public Defend­er’s Office, Robinson said.

At 100 motions a week, it could take defense attorneys nearly two years to address all the drug cases possibly affected by evi­dence tampering.

Robinson said many people have called the Public Defender’s Office asking questions. Of the 8,000 defendants, some are in prison while others are on proba­tion or parole.

He said did not know how many people are serving life or long sentences for nonviolent drug offenses, but Delaware law classifies certain drug offenses as violent felonies “even though no one was necessarily hurt.” The statute lists manufacture, deliv­ery and possession with intent to manufacture or deliver a narcotic drug in the same three-strikes­you’re- out category as violent crimes such as rape, murder and assault.

“If you get busted growing marijuana in your yard three times, that would be a mandatory life sentence,” Robinson said.

Even if a person does not re­ceive a stiff prison sentence, collateral damage for receiving a drug conviction is serious; many people have difficulty finding a job with a felony on their record, he said. Prosecutors should be sure without a doubt that a per­son is guilty, especially when long sentences are involved, he said.

“We have people doing life sentences. The prosecutors are OK with putting people away for the rest of their lives,” Robinson said. “Am I going to expect 100 percent certainty from them? You betcha.”

Lab in shambles

Robinson said public defend­ers think there may be more than problems with evidence tamper­ing in the drug lab.

“This is the same office that does autopsies, tests blood samples from defendants and victims. They also do DNA test­ing … this is a mess,” he said.

“We feel like there’s something more going on judging from the actions of the prosecutors, but we’re not getting any informa­tion,” Robinson said. In an exhibit included in the motions that have been filed, Deputy Attorney General Caro­line Cleary writes about how the door to the drug lab was often propped open and left unat­tended. She wrote, “The door to the locker was left open at times, and even when locked, the locker could be accesed by any OCME employee who had a pass key and pass code.”

“To leave stuff open or unat­tended, it’s almost like you’re asking for it,” Robinson said. “Like hiring a bunch of high school kids to run a liquor store – do you thing any beer is going to go missing?”

DHSS Secretary Rita Landgraf recently said the office has no surveillance or alarm system. Employees are given only fin­gerprint checks before they are hired; she recently told a legisla­tive committee future applicants should undergo criminal, finan­cial and drug checks before they are hired.

Since the scandal broke in Feb­ruary, the Department of Justice has tried to distance itself from the Medical Examiner’s Office, Robinson said.

But instead of letting the De­partment of Health and Social Services handle the discrepan­cies in the independent Medical Examiner’s Office, the Attorney General’s Office and Delaware State Police took over the inves­tigation.

“They put crime scene tape around it and didn’t let anyone in or out,” Robinson said. “I think it’s going to be hard to claim that they didn’t have anything to do with that lab.”

Besides, he said, the Depart­ment of Justice freely uses the lab for its investigations; if the Public Defender’s Office wants to challenge a result they have to rely on a private lab for results, Robinson said.

Defense attorneys continue with their cases as they move through the system; many up­state cases have been dismissed at the last minute, Robinson said.

Defense Attorney John Brady said a drug case he was handling, scheduled for trial the third week in May, ended May 7 when Sus­sex County Superior Court Judge Henley Graves dismissed all charges. His client – a man with no prior drug offenses charged with suspected crystal meth pos­session during a traffic stop – left the courthouse very happy, Brady said.

Although it appears favorable outcomes for drug defendants may be on the horizon, more information from the Attorney General’s Office would benefit the judicial process, Robinson said.

Jennings said releasing more details could put at risk the in­vestigation into wrongdoing at the ME’s office.

This lack of information, however, makes many wonder whether there are more prob­lems than the Attorney General’s Office is releasing, Robinson said “Using an analogy, there’s this big dam that people have poked their fingers in to try to plug the leak and eventually they’re going to run out of fingers,” he said.