Gov. Jack Markell signed a bill June 24 establishing a Division of Forensic Science to replace the Office of the Chief Medical Examiner – an office that has been under investigation since February when officials determined drug evidence sent for testing had been tampered with.
The measure passed by overwhelming margins in the Senate on June 19 and the House on June 24.
“Forensic science is at the core of our work in the criminal justice system,” Markell said. “This legislation will help us create a structure for forensic science that can support the criminal justice community in a way that is expert, timely, professionally independent and accountable.”
The bill, sponsored by Sen. Robert Marshall, D-Wilmington West, not only creates a new Division of Forensic Science, but also forms a commission to provide oversight and supervision for the new division. In its first order of action, the commission will consider whether death investigations should occur outside the division and will give the governor and legislature its recommendation by Jan. 31, 2015.
The establishment of a new division to replace the Medical Examiner's Office came following a June 19 report investigating mishandling of evidence. Thousands of convictions and current court cases could be affected; the report found a systemic failure that led to missing drugs from the state's Controlled Substances Lab under the Office of the Chief Medical Examiner.
“As of this writing, over 500 pleadings have been filed state-wide and more are expected. As a direct result of the office failures, over 200 drug charges have been dismissed and over 60 cases have been reduced,” states the Department of Justice in its preliminary report on its investigation into the Office of Chief Medical Examiner.
Details of the 46 cases in which evidence was compromised show about 60 pounds of marijuana is missing and more than 2,000 oxycodone pills disappeared between 2010 and 2013. More than 1,000 bags of heroin and about 2 kilos of cocaine and various prescription pills were also missing.
Defense attorneys are filing about 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 in the Medical Examiner's Office went missing or was replaced with something else. Drug cases still in the court system are being handled on a case-by-case basis; many have been dropped.
In earlier testimony, State Prosecutor Kathleen Jennings blamed much of the lab's failure on Chief Medical Examiner Richard Callery, who was often absent from his $198,000 a year job while doing consulting work for other states. Callery has been suspended with pay pending the outcome of a human relations investigation and a criminal one, although the report says the day-to-day management of the office were taken care of by Deputy Director Hal Brown. A different manager oversaw the controlled substances lab, the report states. Laboratory Manager Farnam Daneshgar has been suspended without pay after a grand jury indictment May 27 for possession of marijuana and drug paraphernalia and falsifying business records.
A witness interviewed for the report said Daneshgar left the office in 1990 after he was accused of declaring drug results without actually testing them – a process referred to as dry labbing. He was later rehired.
“Other witnesses claim that Daneshgar has engaged in other instances of “dry labbing” since his return to the office in 2006,” the report states.
Also suspended without pay is James Woodson a forensic evidence specialist hired in 2010; he was promoted to forensic investigator in 2013 and court records say he was a courier for drug evidence.
Woodson was indicted on one count each of trafficking cocaine, theft of a controlled substance (cocaine), official misconduct, and tampering with evidence. Woodson is accused of removing cocaine from an evidence bag at the controlled substances lab, said Attorney General Beau Biden.
Defense attorney John Brady said in an earlier interview he expects more arrests are forthcoming; Sgt. Paul Shavack of the Delaware State Police said the investigation is ongoing.
Facility not secure
Numerous other problems are outlined in the report including a lack of security. Keypads failed to record an up-to-date time of entry – a problem employees blamed on a Y2K glitch dating to the year 2000.
“Regardless of the origin or explanation, all door entries now show an entry date of Jan. 1, 1970, and do not provide an accurate date and time of access,” the reports states.
Other security failures include:
• Most employees' keypad access to the office were not deactivated when the employee left for a different job or retired.
• Video recorded by internal security cameras throughout the office is not saved; video recordings are replaced with new footage every week and the old images are lost.
• The door to the drug vault was often propped open with a wedge, the report states.
As for handling drug evidence and logging it in for the record, the report notes questionable practices. Data-entry errors were common, and employees handled drugs arbitrarily.
“A former office employee described an instance where a marijuana plant was submitted for analysis, but was not sufficiently dry to test. Rather than returning the evidence, the plant was placed in a dryer in a back stairwell at the office; all office employees have access to the stairwell,” the report states.
Other instances of poor handling include ripped packages and loose drugs occasionally found on the office floor.
While the report states the investigation has uncovered 51 cases of potentially compromised evidence stemming from 46 cases, Sussex County Public Defender Robert Robinson said he believes that number could be much higher.
“I don’t think there is any way of knowing how much compromised evidence there is because the record-keeping was apparently nonexistent. I’m sure there is a ton of discredited evidence, but I have no idea how attorneys can challenge it considering the complete failure of protections and protocol,” Robinson said. “I doubt there is any way someone can tell what evidence was “dry-labbed” and which wasn’t without retesting everything.”
The failure within the office has serious implications, especially for those serving time, Robinson said.
“It is important to remember that there are people doing long jail sentences, and in some cases life sentences, based on this evidence,” he said.