Drug cases could hinge on upcoming hearing

WILMINGTON – A hearing that could determine the fate of thousands of past and present drug prosecutions tied to the scandal at the Medical Examiner's Office is set for Tuesday.

The Delaware Public Defender's Office will be making arguments to Superior Court Judge William C. Carpenter Jr. that any evidence that passed through the troubled and now shuttered Office of the Chief Medical Examiner is tainted beyond repair and should be thrown out.

Prosecutors and police have discovered at least 52 incidents of tampering or theft at the office between 2010 and February 2014, but prosecutors argue that only those cases should be considered tainted.

Carpenter said the outcome of this hearing and a previous hearing in July, "may have an effect on hundreds if not thousands of cases." All sides expect his ruling to guide all other claims related to the missing drugs scandal. Some 200 pending drug prosecutions could be affected and thousands of closed drug cases could be revisited depending on Carpenter's ruling.

Delaware Public Defender Brendan O'Neill said "the defense is asking the court to require the state to prove the reliability of evidence it is offering."

Given the "chaos" at the crime lab including security issues, competency issues and outright theft that has been uncovered by investigators, O'Neill said drug evidence that was handled there "is at a minimum questionable."

While public defenders Beth Savitz and Nichole Walker will essentially make the same general argument as conflict attorney Patrick Collins did at a three-day hearing in July, public defenders are taking a slightly different legal approach and will have a different focus.

While Collins focused on flawed procedures and problems at the Controlled Substances Laboratory – which is now part of the new Division of Forensic Sciences in the Department of Homeland Security – public defenders are expected to focus more on the audit/review of drug evidence by state police after the lab was closed down in late February.

In essence, they charge that the review conducted by state police, and subsequent re-testing by an outside lab, could not fix the problems with drug evidence.

State prosecutors have argued that if the drug evidence showed no signs of tampering and the amount of drug evidence in the envelope matches the amounts that police indicated they seized, the court can conclude there was no break in the chain of custody and the evidence is admissible.

Prosecutors have defended the state audit and the procedures that were put in place after the lab was closed, arguing it restored trust to the process.

At the July hearing it was revealed that the OCME tracking program was flawed and employees were not using it properly. The system did not accurately track who handled drug evidence and there were hours or days between when the police dropped off drugs for testing and when OCME acknowledged the drugs were submitted.

The system also generated false and faulty reports that could not be explained.

At the close of the July hearing, Carpenter indicated that he wanted attorneys to focus – and perhaps explain – how some 10 instances of tampering discovered during the state police audit involved evidence envelopes that, according to OCME records, indicate had never been opened at the lab.

Defense attorneys have alleged whoever was tampering with drug evidence was so expert at covering his or her tracks that the tampering may have gone undetected during the audit. They note in court papers that the case that uncovered the scandal involved an evidence envelope that a state police trooper examined on the witness stand and testified had not been tampered with, only to later find that dozens of blue Oxycontin pills had been replaced with a handful of pink heart pills.

Two employees at the drug lab have been arrested and charged in relation to the investigation of missing drug evidence. James W. Woodson, a forensic investigator, is accused of possession of cocaine, theft of a controlled substance and tampering with physical evidence. Farnam Daneshgar, a chemist, is facing two counts of falsifying business records, possession of marijuana and possession of drug paraphernalia. A preliminary report on the scandal by prosecutors also accused Daneshgar of reporting test results without performing tests in the past.

The investigation into thefts at the drug lab is ongoing, according to police and prosecutors, as is an investigation into allegations that former Chief Medical Examiner Dr. Richard Callery improperly used state resources to operate a private consulting business.

Homeland Security Secretary Lew Schiliro said ongoing restructuring and reform of the state's forensic testing services in the new Division of Forensic Sciences is proceeding well.

He said about 70 percent of the problems highlighted in a consultant's report have been addressed and he expects the lab will begin testing drug evidence again in September.

"I feel good about the progress we are making," Schiliro said, adding he hopes to go beyond fixing the problems to make the new division state-of-the-art.

Contact Sean O'Sullivan at 302-324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan