NCBA Task Force Explores Nassau Crime Lab Problems

Most criminal defense attorneys have represented someone accused of possessing and/or selling a controlled substance. For the most part, in cases such as these, the client’s guilt or innocence hinges on the credibility of the police officers who observed the possession or sale and the police officers who recovered the drugs. Did the police have the lawful right to stop and search the client? Did the observing officer truly see a “white rocky substance” at the time of the alleged sale, as is claimed? These are the questions that prosecutors, defense attorneys and judges often grapple with in drug cases.
Since December 2010, questions such as these have taken a back seat in courtrooms hearing drug cases throughout Nassau County. Before getting to the issue of probable cause and police officer credibility, criminal defense attorneys now find themselves asking the most fundamental of questions: Is the substance really what the crime lab report says it is,1 and, just as importantly, does the substance really weigh what the crime lab says it weighs?2 The pervasive pattern of mistakes uncovered at the Nassau County Crime Lab (crime lab) shakes the very foundation of drug prosecutions past, present and future in Nassau County. The closure of the crime lab in February 2011 by County Executive Edward Mangano and District Attorney Kathleen Rice only solidifies the notion that thousands of drug cases prosecuted in Nassau County must be reviewed and if necessary, re-opened and re-litigated.

Soon after the crime lab was shut down, Governor Cuomo took the necessary step of appointing New York’s Inspector General, Ellen N. Biben, to investigate what went wrong with evidence tested at the crime lab. Inspector General Biben has the task of answering vital questions such as: 1) Are the inaccuracies in the test results limited to narcotics testing or do they also include tests done on finger-print analysis, ballistics testing and blood alcohol results? 2) Who knew about the problems and when did they learn about them? and 3) Was there an attempt to cover up these problems and, if so, by whom? These vital questions must be answered by a fair and independent investigation. Answers to these questions will play a role in rebuilding a crime lab in Nassau County that assures that the failures of the past are not repeated in the future.
Simultaneous to Governor Cuomo’s commission of Inspector General Biben’s investigation, NCBA President Marc Gann, assembled the Crime Lab Task Force made up of some of the region’s leading attorneys in the areas of narcotics prosecution and defense, forensic testing and criminal laboratory standards. The Task Force was formed for the purpose of suggesting ways in which this problem can be dealt with immediately as well as in the future. After several meetings of the entire Task Force sharing ideas on the scope of the problem and general solutions to such, President Gann broke the Task Force into three subcommittees, as described below.

The first subcommittee is focused on the identification and review of narcotics cases that may have been undermined due to lab errors. This is the most immediate of issues needing to be addressed as nothing is more egregious in the world of criminal law than an innocent person sitting in prison. While the District Attorney has agreed to review felony narcotics cases from the last several years (approximately 3,000), a recent Newsday article has indicated that these problems may have existed as far back as 2003, putting the number of potentially affected cases much higher.3 Of course, this review raises a number of questions. Who should actually conduct the review and who should bear the cost?

Furthermore, when a potential case is identified, who bears the burden of bringing the case to the Court’s attention and who should pay for such judicial intervention? It is anticipated that many of the cases identified as potentially affected by the lab’s failings will be indigent defendants, those who could not afford an attorney at the time of their conviction or can no longer do so because of their incarceration. Appeals, motions to overturn convictions, re-testing; these processes take time and cost money, who should bear this burden and this expense? This subcommittee of the NCBA Task Force is currently exploring all of these issues and coming up with insightful procedures and solutions.

The second subcommittee will begin to formulate a blue-print for how a successful and trustworthy crime lab operates. Currently, most crime labs across the country are monitored and accredited by the American Society of Crime Laboratory Directors (ASCLAD). This is the organization that placed the Nassau County Crime Lab on probation in 2006 and again in 2010. While ASCLAD has its procedures and protocols that must be followed for a crime lab to keep its accreditation, many experts feel that more is needed.

For example, one of the questions being reviewed by this subcommittee is the role, if any, that law enforcement should have in operating and maintaining a crime lab? Think about it, the role of a forensic laboratory in a narcotics case is to independently test and weigh alleged controlled substances. The scenario is this: a police officer recovers a bag of alleged cocaine from a defendant, vouchers it, and sends it off to the police crime lab to be tested by other officers or civilian employees of the police department. Does that sound independent to you? I do not mean to imply that a police officer or civilian employee at the crime lab are falsifying results, but doesn’t’t it make more sense to avoid the appearance of impropriety by having an agency with absolutely no stake in the game do the testing? Of course, truly independent testing comes with a hefty price tag. It is estimated that the independent testing happening right now in Nassau County is costing approximately $100,000 per month. If the county were to rebuild its own lab, who should run it and who should pay for it?

Additionally, this subcommittee is compiling information regarding how a successful and independent crime lab operates. What are the right procedures? Who will ensure that these procedures are followed and what happens if they are not? These are not easy questions to answer and will take time and thought to resolve correctly.

Finally, the third subcommittee is focused on beginning to formulate a plan for the larger picture, specifically, recommendations for legislation to ensure that something of this nature and magnitude never happens again. All experts seem to agree that a necessary tool in avoiding this type of catastrophe in the future would be to amend the discovery statutes in the NYS Criminal Procedure Law to include more specific requirements regarding what the defendant is entitled to in these types of cases. Requiring, by statute, that specific documents be provided within a designated time-frame regarding the forensic testing of alleged controlled substances would ensure that lab technicians and law enforcement officials take more care in performing their laboratory tasks and documenting what exactly was performed. Forensic laboratory tests can longer be done in the seclusion of a police lab with little or no oversight as to what is done and what is turned over to the defendant. One way to ensure this is to legislate a modification in the discovery statute requiring the work of the lab on every specific case be disclosed in its entirety and in a timely fashion.

While the crime lab situation in Nassau County continues to change and develop almost daily, there is one constant that cannot be put aside or forgotten.
It is possible, in fact likely, that as you sit and read this there are individuals serving prison sentences because of faulty police and laboratory testing. The questions of how long did this go on, who knew about it and was it covered up will linger until the Inspector General’s investigation is complete. However, as that investigation continues, we as a legal community must join together to ensure that nothing like this will ever happen again. The NCBA Task Force is working diligently to address prior cases, debate current ones and put in place the right mechanisms for the future.

Daniel W. Russo is an associate at Collins, McDonald & Gann, practicing in the area of criminal defense, nutritional supplement law, civil litigation and real estate matters. He received his J.D. from Fordham University School of Law and is admitted to practice law in New York State and the Eastern District and Southern District of New York. He is a former Assistant District Attorney in Kings County.

1. I don’t mean to imply that the defense in a drug case never includes the accuracy of the lab report. That being said, it is quite rare that a criminal defendant has the substance tested independently because of the cost and logistics of such a process. For the most part, attacks on lab technicians in drug cases are focused on “chain of custody” arguments (who handled the drugs and in what order), lack of following procedure and protocol and inconsistencies between lab reports and technician notes. Rarely, at least until recently, did the defense bar challenge the actual scientific findings of the lab.2. The weight of the substance recovered is vital because in New York State (as in most jurisdictions across the country) weight determines the level of crime the defendant is charged with. For example, less than 500 milligrams of cocaine is a Class “A” misdemeanor, however, 500 milligrams or more is a Class “E” Felony. The level of offense the defendant is charged with determines what Court the defendant is prosecuted in, the plea bargaining parameters of the District Attorney’s Office and, perhaps most importantly, the potential sentence the defendant is facing after a plea of guilty or a conviction after trial.

3. See Kathleen Kerr, Lab woes go back earlier than disclosed, Newsday, May 21, 2011.