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Judge denies another delay in drug cases lab scandal

The News Journal,
BYLINE: Sean O’Sullivan, The News Journal

Blanket hold expires; cases now stand on own

The chief judge of Superior Court has denied a request by Delaware prosecutors for an additional 60-day delay in all drug trials due to the ongoing missing drugs scandal at the state's drug testing lab. / The News Journal/SUCHAT PEDERSON

The chief judge of Superior Court has denied a request by Delaware prosecutors for an additional 60-day delay in all drug trials due to the ongoing missing drugs scandal at the state’s drug testing lab.

A previous 30-day hold on all drug trials expires March 31. So, starting April 1, state prosecutors must seek delays in hundreds of individual drug cases across the state and offer far more detailed explanations to the court about why a delay is needed.

In February, President Judge James T. Vaughn Jr. granted a delay for all drug prosecutions set for trial in March in order to give prosecutors and police time to investigate incidents of drug thefts and tampering at the state’s Controlled Substances Laboratory inside the medical examiner’s office.

On Wednesday, Vaughn ruled that 30 days was enough and that from now on prosecutors must seek delays on a case-by-case basis.

“I think the time has come to return to an individualized consideration of each case,” Vaughn wrote State Prosecutor Kathleen Jennings and Delaware Public Defender Brendan O’Neill.

Vaughn’s ruling came hours after he held a teleconference with Jennings and O’Neill about the issue.

O’Neill opposed the first 30-day blanket delay and any extension, arguing the rights of defendants were harmed by such a broad policy.

“I think President Judge Vaughn’s decision is prudent,” O’Neill said Wednesday night. Jennings could not be reached for comment.

In a March 17 letter to Vaughn, Jennings wrote that “despite best efforts” the state has not been able to get test results completed by March 31 for some of the most serious pending drug prosecutions.

Jennings told the court that the thefts and tampering with drug evidence at the state lab caused significant harm to the criminal justice system and has been costly to taxpayers. She added that to force drug cases to trial, possibly without the key drug evidence being tested, could result in dismissals, which would be “an even greater harm to justice.”

The state drug lab was closed and drug evidence stored there seized by Delaware State Police on Feb. 20. No one has been arrested or charged.

In her letter, Jennings said the state is reviewing all the potentially tainted drug evidence and is “not able to assess the full scope or the character of the problem.”

Delaware Chief Medical Examiner Richard T. Callery was suspended Feb. 25 due to a departmental investigation of Callery and an unrelated state criminal probe of Callery for allegedly using state resources to conduct private business.

As of Feb. 26, Jennings wrote, there were about 500 drug cases with trial dates in Superior Court and perhaps 3,700 pending drug cases across the state.

Family Court and the Court of Common Pleas did not adopt a blanket 30-day delay, and have dealt with drug prosecutions on a case-by-case basis.

Prosecutors discovered problems Jan 14 at a Kent County trial when a trooper on the stand opened a drug evidence envelope. Instead of 65 blue Oxycontin pain pills, the officer found 13 pink blood pressure pills.

In her letter, Jennings said about 8,500 bags of drug evidence in the lab’s storage room are being checked by state police.

State police, New Castle County and Wilmington police also must re-examine at least 14,000 drug evidence envelopes tested by the state lab and returned to them.

In February, prosecutors indicated they had found at least 22 cases in which drugs were missing or tampered with. More cases have been discovered since, but authorities won’t say how many.

Sgt. Paul Shavack of the Delaware State Police said Wednesday that investigators are now well “into the thousands” in their check of drug evidence and investigators are conducting interviews.

“I still can’t provide a timeline on the investigation or the number of cases due to the continuing investigation,” he said.

Defense attorneys and judges, meanwhile, have been growing impatient with the passage of time.

Attorney John Brady said that last week, Sussex County Superior Court Judge T. Henley Graves announced he was going to dismiss a pending drug case against one of Brady’s clients because the state had allowed the case to linger for over 120 days and only sent the drug evidence out for testing the week before a scheduled trial.

Prosecutors protested, citing Vaughn’s February directive to stay all drug trials. Graves ultimately granted the delay in Brady’s case.

On Feb. 25, Public Defender O’Neill wrote that prosecutors should be required to answer some 30 questions before any delays were granted. This week, O’Neill said he has not received detailed answers to any of those inquiries.

In a follow up letter to the court, O’Neill wrote, “To date, the state has not provided any information other than the existence of an investigation and that evidence in 22 cases, dating from 2010 to 2012, was tampered with or missing. To protect the rights of the accused, the court should require the state to do more.”

On Wednesday, after the teleconference with Vaughn, O’Neill said prosecutors have answered some questions about how the state plans to move forward with some drug prosecutions. But he said the state’s answers about the investigation and problems at the lab remain vague.

“General information, only that,” he said, adding that prosecutors have not yet provided the detailed information he would like to see to justify additional delays in taking drug cases to trial.

In an online blog, Wilmington attorney Patrick Collins asked similar questions in a post titled, “Time for some answers in Delaware drug lab scandal.”

Collins wrote that it has been well over two months since the problem first was discovered and there has been little information released since February.

“Meanwhile, our overcrowded jails feature a population of inmates whose cases have been delayed or that have been convicted based on evidence that may not have been properly handled or tested,” he wrote.

“This is a time for transparency and communication, not silence,” Collins concluded.

In her March 17 letter, Jennings said prosecutors have worked to identify the 50 most important cases to make sure evidence is given priority for testing at an outside lab so they can quickly move to trial.

Jennings said the outside lab, NMS Laboratories in Willow Grove, Pa., has a capacity of 50 to 75 samples with a 4- to 6-week turnaround time, and the average drug case involves about three samples.

The state is trying to work with NMS to shorten that process and also is looking to find a second lab to speed the process of re-checking drug evidence.

Finally, Jennings reported to the court that the state has contracted with Andrews International LLC to conduct an audit of operations at the Office of the Chief Medical Examiner.

Jennings, in her letter, promised, “the perpetrator or perpetrators who tampered with drug evidence will be brought to justice” and in the meantime prosecutors “will continue to exercise diligence in moving this process forward and respecting the constitutional rights of the accused.”

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