NY county closes crime lab over drug test errors

[February 19, 2011]  MINEOLA, N.Y. (AP) -- New York county officials shut down their crime lab Friday because, they said, police officials knew that examiners were producing inaccurate measurements in drug cases even before a national accrediting agency placed the lab on probation.

Nearly 9,000 drug cases dating to late 2007 are currently being reviewed for signs of errors after a spot check last week of nine cases involving ketamine or ecstasy revealed that six of them were inaccurately analyzed.

Officials immediately closed the drug section. On Friday, Nassau County District Attorney Kathleen Rice and County Executive Edward Mangano said new revelations that police supervisors were aware of problems with ecstasy testing as far back as September prompted the closure of the entire lab.

Det. Michael Bitsko, a police department spokesman, said county police are conducting an internal investigation "of the forensic evidence bureau, including the potential of supervisory awareness related to the testing inaccuracies."

Besides analyzing drugs, the lab handles ballistics, blood alcohol and other police evidence, ranging from homicide investigations to larcenies. Rice said evidence in all current cases will be sent to an independent lab for analysis, but contended there has been no finding of wrongdoing or that evidence outside the drug section had been compromised.

She said the decision was being made "out of an abundance of caution."

Defense attorneys have filed motions in more than a dozen cases questioning whether their clients received fair treatment, and Rice conceded that it is possible that some convictions could be overturned.

"Possibly," Rice said earlier this week. "We don't know."

Problems first surfaced in December when a national accrediting group placed the lab on probation -- the only lab in the country facing that sanction. The American Society of Crime Laboratory Directors/Laboratory Accreditation Board cited 15 failures of the lab to comply with nationally recognized standards, including improper maintenance of equipment and instruments, failure to properly mark evidence, failure to properly store evidence, failure to secure the lab and inadequate record-keeping.

After that, lab supervision was transferred from the police department to the county medical examiner's office, which began investigating where the problems lie.

County officials, already under the thumb of a state fiscal watchdog because of a looming $176 million deficit, could not immediately estimate how much outsourcing lab work would cost. Samples from new arrests are now being sent to an independent lab, which also will conduct a spot review of almost 9,000 drug arrests in the county since 2007.

The current situation, Rice said, makes it "impossible for our prosecutors to offer narcotics evidence to the court with the fairness and integrity that I believe are required and that the community deserves."

She said every one of approximately 2,700 felony drug cases will be submitted for retesting to ensure the quantity and quality of the illicit drugs used in prosecutions were accurate.

The independent lab, Willow Grove, Pa.-based NMS Labs, also will review 10 percent of all 9,000 felony and misdemeanor cases analyzed by Nassau lab technicians since 2007, also checking for accuracy. Nassau County authorities could not immediately estimate what the outside lab work will cost, nor how long it might take, and a spokeswoman at NMS Labs said the privately held company does not comment on contractual agreements.

The review will go back to November 2007, county officials said, because that was the last time the national accrediting group gave the facility a passing grade.

Marc Gann, president of the Nassau County Bar Association, attended the news conference by Rice and Mangano and approved of their decision.

"I think you look at the faces of the county executive and the district attorney when they make these announcements and that tells you that it is a complete and total nightmare for them," he said. "They recognize that the public has no faith in the system right now."

Dr. Pasquale Buffalino, who was named the lab's interim director in December, said the facility had been severely understaffed, with only three examiners to analyze an average of 6,000-7,000 cases annually. That includes not only drug cases, but blood-alcohol analysis for drunken driving arrests and evidence analysis of other crime scenes.

He said normal staffing for a lab the size of Nassau's would require seven to 10 examiners and that he was already getting ready to hire more examiners.

Many of the challenged court cases are not expected to result in full exoneration, but some defendants' convictions could be reduced from felonies to misdemeanors if the amount of drugs they were possessing turns out to be less than what prosecutors contended in court, attorneys said.

Defense attorney Brian Griffin said his office has been getting many calls from clients wanting to know where they stand.

"I have a client who agreed to take a plea in a cocaine case," Griffin said. "He lost his job because of the arrest and conviction. It changed his life, obviously not in a positive way. Now to hear there are deep-rooted problems that predate and postdate my client's testing? It's a great concern."

Griffin questions whether his client indeed had cocaine in his possession and whether it was accurately analyzed. He said the fact his client believed he had cocaine is beside the point; authorities have to certify that any substance used in a prosecution is indeed an illicit drug.

"That's what we call burden shifting," he said. "The fundamental rule in the Constitution is that the government has the burden of proving its case. It's not on the charged citizen to disprove anything."

William Kephart, president of the county's Criminal Courts Bar Association, had lobbied for the lab's complete closure until all questions are answered. He said Friday that officials "made the right decision, but it's a sad day for Nassau County."

Attorney Bruce Barket, a former Nassau County prosecutor, noted a 2009 report to Congress found crime abs across the country were under fire. A 255-page report from the National Academy of Sciences urged the creation of national standards of training, certification and expertise for forensic criminal work.

"The difficulties or the issues that were raised in the Nassau case are typical of problems that exist all across the country with police," Barket said.

[Associated Press; By FRANK ELTMAN]

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