Scores of cases affected as officials tackle key questions
Lied to. Shocked. Total disbelief.
Those are a few of the words criminal defense attorneys in public and private practice are using to describe their reaction to the mess exposed this month at the St. Paul Police Department crime lab during a Frye-Mack hearing in Dakota County.
In 2009 a Rochester man was arrested and charged with Fifth Degree possession of heroin. At the hearing, his defense attorneys Christine Funk and Lauri Traub questioned technicians at the lab that tested the drugs. They wanted to know how the lab stores and tests drugs and the training the employees receive on the science and equipment.
The answers have turned the crime lab upside down and could upend thousands of cases that had evidence processed there.
Employees admitted that no written procedures exist for testing drugs and there is no required training for employees on how to conduct drug testing or use the equipment. There is no record of maintenance performed on any of the lab equipment and some of the equipment was found to have drug residue caked on. Like most in the state, the St. Paul lab is not accredited.
One defense attorney said you find more specificity in a recipe for chocolate chip cookies than the protocols the drug lab had for testing controlled substances.
Earlier this month the director of the lab was reassigned and all drug testing was suspended pending a review. Going forward, all drug testing for Ramsey, Dakota and Washington counties will be handled by the lab at the Minnesota Bureau of Criminal Apprehension in St. Paul.
Now that the problem is out, however, what to do next and what will happen next is still not clear. With cases potentially in the balance, defense witnesses, prosecutors and law enforcement officials in the affected counties are meeting to try to figure out how to proceed and to get a handle on just how many cases are out there.
The lab processed 50 cases a day for the three counties and the lack of oversight and quality control could stretch back a decade or more.
Kevin Kajer, the chief administrator for the state Board of Public Defense, said the first step will be to go through old cases to try to come up with a list of which ones involved drug tests at the St. Paul lab. But that won’t be easy.
“There could be cases where the lab was involved, but it didn’t play an integral part in the prosecution or the trial,” he said. “I don’t think anyone knows the number of cases we are talking about.”
Prosecutors and defense lawyers have identified three potential problems that must be addressed:
Problem: Old cases
The past cases are the ones the criminal defense attorneys are struggling with, said Steve Holmgren, the chief Public Defender for the 1st District. It was defenders working out of the 1st District that uncovered the problems at the St. Paul lab in the first place. The deficiencies uncovered at the drug lab calls into question the validity of past tests used as evidence to convict people, or by prosecutors as leverage to obtain plea deals
“Potentially there could be several petitions for post conviction relief filed,” he said. “But in many cases the person pleads guilty and the drugs that were tested were all used up [in the test], or have been destroyed by now. What do you do with those cases?”
Once a guilty plea has been entered it is next to impossible to get it pulled, said St. Paul criminal defense attorney Charlie Clippert.
“But in so many cases those guilty pleas were influenced by these lab reports that said, ‘Yes. This is a controlled substance.’ Then the prosecutor says this is the best offer I can give you and the client doesn’t know what to do’” he said. “If you throw out the reliability of those reports, there ought to be some recourse for those folks.”
Further, defense attorneys could make the argument that even if the drugs are retested and prove to be illegal substances, should the new tests be admissible?
“I don’t care if you retest it and they say it’s good. You had this sample sitting around in an incompetent lab. I would have questions about the chain of custody and we would have to debate if they were able to hold on to the drugs in the first place,” said St. Paul defense lawyer Tom Plunkett. “Does that evidence have to be thrown out all together?”
The BCA is figuring out if it will retest drugs from old cases, and if so, which ones, said spokesperson Jill Oliveira. Last week on listservs popular with criminal defense attorneys, the word was that the BCA was only going to retest drugs on First Degree charges, the most serious offenses.
“It’s those smaller cases, the Fourth of Fifth degree charges [for a small amount of drugs]. Those are the cases that are now in question,” said St. Paul criminal defense attorney Deb Ellis. “Even if they can, do they want to go back and re-test in those cases?”
Problem: Pending cases
In addition to the old cases, the courts must also stay on top of the current calendar. Many defense and prosecuting attorneys now fear that it will be impossible for the court to meet the speedy trial threshold for defendants in custody waiting for court appearances because the BCA is going to be overwhelmed by all the new requests for drug tests.
This will become a much bigger issue outside of Ramsey County, said Plunkett.
“In Washington and Dakota counties the prosecutors there are much more likely to charge out when a trace amount of drugs is found, like a baggie with residue on it. It’s not a useable amount, but it’s still unlawful,” he said. “With those kinds of cases it will slow everything down.”
The Ramsey County Attorney’s Office has already begun requesting continuances on a case by case basis in many cases where drug test results are part of the prosecution, a spokesperson said.
On average, the two BCA labs in St. Paul and Bemidji process more than 4,700 pieces of drug evidence a year, with 95 percent of those tests completed in 60 days. Oliveira said it’s impossible to know what the turnaround time will be now, she said, because the BCA doesn’t know the new volume that will be coming its way.
Prosecutors don’t want to dismiss charges against anyone, but they may not have a choice.
“The people waiting in custody have a legitimate claim,” Plunkett said. “The standard for a continuance on speedy trials is more or less “for good cause.” The state will say that this delay is out of our control. A defense attorney can say ‘It is well within your control. You should have known you were using an uncertified lab.’”
Holmgren said his office would oppose, with their client’s consent, any continuances filed by prosecutors in ongoing cases as a result of the backlog of new drug tests.
“For those people held on significant bail, if their case gets kicked out beyond 120 days, they should be released pending the new test,” Clippert said.
Problem: New cases
Approximately 20 labs in the state of Minnesota test controlled substances. Only four — the BCA, Hennepin County, Minneapolis and the Target Corp. — are accredited or certified.
In 2006, the legislature created the Forensic Lab Advisory Board, a volunteer 12-member panel with the mission of ensuring the “quality and integrity of forensic science services provided by laboratories, facilities or entities that conduct forensic analysis on physical evidence in connection with criminal actions.”
Part of that board’s duties is to develop a reporting system for allegations of professional misconduct and negligence in forensic labs that affects the integrity of the results of any analysis and investigate any allegations.
To date, however, the state has yet to give the board any money to conduct investigations or process complaints made about labs, said its chair Brian Kasbohm, a retired Hennepin County Sheriff’s Office deputy.
“We have been to the legislature several times since 2006 to get funding,” he said. “Our enabling legislation says we encourage every lab to be accredited and that it should be mandatory but because that comes with a fiscal note, we don’t get very far. If a complaint were to come in… we don’t have the funding to hire a consultant to investigate.”
The forensic lab board held its quarterly meeting July 19; the day after drug testing at the St. Paul lab was suspended and officials ordered a full review of the lab. The situation at the St. Paul drug lab was not on that meeting’s agenda.
Many defense lawyers are surprised that something like this hadn’t been uncovered sooner at any of the unaccredited labs in the state.
“I don’t know how it is that all these people were relying on this lab and this wasn’t found out sooner,” said Plunkett. “But for Christine and Lauri, we might have never have known. I’m disappointed at what happened here. It’s inconceivable to me.”
Accreditation for all the labs that perform tests on critical evidence used in prosecutions is the first step out of the hole and towards restoring the trust in the system, said Holmgren, the chief defender in the First District.
“The system in general needs to have some faith that these test are being performed correctly and the technicians are doing their job properly,” said Holmgren. “Prosecutors, defense attorneys and judges, we aren’t scientists. We rely on [the lab technicians] to be independent and to deliver accurate results. These labs shouldn’t be able to set up shop and operate how they see fit. There needs to be some oversight.”
The Frye-Mack hearing will continue in next month and the judge should decide on the admissibility of the evidence this fall.
Funk declined to comment on the case or the situation at the St. Paul lab for this story. She did say that more can and should be done to educate lawyers on the fundamentals and limitations of forensic science and how it is used in the criminal justice system.
“Practitioners enter the practice of law with a firm belief that forensic science is founded in science. However, unless they ask the appropriate questions, they cannot assure themselves that this is, in fact, true in any given case,” she said. “The education of prosecutors and defense attorneys in the fundamentals of science is paramount.”
Will it happen? Funk has doubts. “Unfortunately, years of budget cuts have resulted in diminished opportunities for lawyers to receive this education.”