|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.
|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.
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