December 4, 2007
By Thomas J. Lueck, The New York Times
The New York Police Department has begun to test thousands of drug evidence samples, as a review by the state’s inspector general has found that sloppy work by analysts in the department’s crime laboratory could have skewed drug evidence used by prosecutors.
But since the mistakes in the laboratory, the nation’s busiest, were found to have been made in 2002, some of the evidence has been destroyed, making any new tests very difficult, according to the review, which was released yesterday. Legal experts said this could open the door to appeals by those who want to have their convictions overturned or their sentences shortened.
The slipshod drug testing — which may have involved “dry-labbing,” or failing to test all the bags when many were seized — has been acknowledged by the Police Department, which transferred or disciplined three technicians who failed internal tests of their accuracy in 2002. Since 2002, the lab has been revamped and restaffed.
The department has said that the errors did not rise to the level of a criminal offense. But in March, the office of the state inspector general, Kristine Hamann, began its own investigation, and has now come to a different conclusion.
“The integrity of evidence is a cornerstone of law enforcement,” Ms. Hamann said yesterday. “These lapses were a threat not only to the prosecution of drug crimes, but to the public’s trust in our criminal justice system.”
She recommended that the Queens district attorney, Richard A. Brown, consider criminal charges against the three former analysts, known as criminalists, and against W. Mark Dale, a former director of the criminal laboratory who retired in 2004. Attempts to reach Mr. Dale by phone last night were unsuccessful.
The drugs seized by the police are often the most important evidence in prosecutions, which can also involve witness testimony, often from undercover police officers who made drug purchases. The amount seized usually affects the severity of sentencing.
Since May, the report said, the Police Department has recalled for review evidence from 3,000 drug testing cases, including those performed by the three former criminalists and others who worked in the laboratory in 2002. Five analysts and a supervisor have been assigned to the review.
But by late September, the investigation hit a roadblock, after a property clerk determined that evidence for 709 of the 3,000 cases had been destroyed. So far, the report said, 413 cases have been reviewed, and “the laboratory states that no significant discrepancies have been discovered that would compromise the original findings.”
The inspector general’s report said that the 2002 drug testing errors were not brought to the attention of state officials until March 2007, and that the five intervening years had left a cold trail of evidence that had been destroyed or contaminated, making it difficult to determine how accurate the original testing had been.
It said officials of the crime laboratory also failed to inform the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors, an oversight group it had pledged to keep informed of any lapses in testing procedures.
Ms. Hamann said yesterday that the five-year lapse made it impossible to tell if others at the city laboratory, which employs 100 criminalists, had taken shortcuts in the sometimes tedious process of drug testing.
“If there had been a thorough investigation at the time, we might know,” she said. “The N.Y.P.D. is now valiantly trying to catch up, but I don’t think anyone can know” the extent to which erroneous drug test may have been used in prosecutions.
Peter Neufeld, a lawyer and co-founder of the Innocence Project, a legal group based in New York that uses DNA evidence to represent people it thinks have been wrongly convicted, said the inspector general’s findings “undermine God knows how many convictions” in drug cases. He said he expected many motions to dismiss or to amend the severity of sentences that are based on the amount or weight of the illegal substance tied to a defendant.
Both the police and Ms. Hamann said yesterday that major strides had been made by the crime laboratory since 2002, which was the first year of Police Commissioner Raymond W. Kelly’s current tenure as the head of the department. (He also was police commissioner for slightly more than 14 months under former Mayor David N. Dinkins.)
Paul J. Browne, a spokesman for the department, said the laboratory’s management had been revamped and a committee of police officials and civilian forensic scientists had been set up to review its procedures. An inspection in October by the Laboratory Accreditation Board found that the lab satisfied more than 98 percent of the board’s criteria, including quality assurance, staffing and evidence storage.
But the report said senior officials in charge of the laboratory had been far too slow to respond when evidence of inaccurate drug testing was found in 2002, and allowed the same criminalists who failed internal tests to remain on the job. One was suspended after she failed a second internal test, but was responsible for 23 drug cases after she failed the first time, the report said, and another worked on 11 tests between his first and second internal tests, both of which he failed. Both criminalists should have been removed after failing a single test, the report said.
“The lab cannot conclusively state that no incorrect reports were issued by the three employees,” the report said.
Mr. Browne said advanced technology was being used to analyze the old drug evidence, even where the evidence had been destroyed or contaminated. In some cases, he said, the laboratory is taking scrapings from envelopes in which the now-discarded powder had been sealed.
The department has also changed its methods to avoid similar problems in the future, Mr. Browne said.