The News Journal, delawareonline.com
BYLINE: Sean O’Sullivan, The News Journal
Delaware State Police Sgt. Paul Shavack shows evidence envelopes and tape used to assure chain of custody for samples used as evidence in court cases.
(Photo: ROBERT CRAIG/THE NEWS JOURNAL)
In the latest revelation about security breaches at the scandal-plagued Office of the Chief Medical Examiner, defense attorneys charge colored rolls of tamper-proof police evidence tape were found in the drug evidence vault, hinting at how a thief or thieves were able to easily steal drugs from the facility for years without attracting attention.
Such rolls of security tape, which are used by police officers to seal evidence containers and signal if there was unauthorized access, are not supposed to leave the possession of a police officer or a police department.
A thief could have opened drug evidence envelopes, removed drugs and then resealed the envelope with the appropriate tape, covering up any obvious signs of tampering.
In other revelations, Delaware Public Defenders charge in a brief that an internal audit by the Office of Chief Medical Examiner was botched and ended up further contaminating drug evidence before the Delaware State Police shut down the drug testing laboratory on Feb. 20.
Finally, while two employees of the Medical Examiner's Office have been arrested as a result of the theft investigation, public defenders and conflict attorney Patrick Collins have raised questions about a third office employee.
The News Journal is withholding the woman's name because she has not been charged, but defense attorneys allege she had been accused of stealing by a previous employer and allege that she kept a personal storage box in the drug evidence vault and was able to find "missing" drug evidence that others could not locate.
The new details came in a court filing last week by Assistant Public Defenders Nicole Walker and Beth Savitz. Public defenders are arguing to Superior Court Judge William C. Carpenter Jr. that the security breaches and sloppy procedures at the drug lab were so widespread and egregious that none of the evidence that passed through the facility between 2010 and February 2014 can be trusted and all pending prosecutions should be tossed out.
At least 52 instances of theft have been uncovered by investigators.
If public defenders, along with Collins, are successful then some 200 pending drug cases could be tossed out and thousands of convictions might be reopened and overturned.
The revelations about the evidence tape and the botched review of drug evidence were new and had not come up during a July hearing before Carpenter.
According to the defense brief, a state police investigator found "red tape, white tape, every type of tape, clear ... tape" inside the vault used to store drug evidence at the Office of the Chief Medical Examiner's Wilmington headquarters.
Police agencies in Delaware each have their own colored tamper-proof evidence tape – for example, state police use blue tape and Wilmington police use clear tape.
Sgt. Paul Shavack of the Delaware State Police said rules may vary from police agency to police agency, but state police view evidence tape as "sensitive" and rolls of that tape are never supposed to leave the possession of a trooper or a state police facility.
According to the defense brief, a lab employee reported seeing a roll of blue evidence tape in the area of the vault but it "disappeared" shortly after she saw it.
The Office of Chief Medical Examiner used white tape to reseal evidence envelopes after they were opened for testing, but those tape rolls should have only been in the testing lab where envelopes were opened and not in the vault where drug evidence was stored.
According to witnesses, red evidence tape was kept in the vault area and was only to be used by police officers to seal evidence envelopes if they were not properly sealed when turned over to the drug lab for testing.
Public defenders also charged in court papers that a person who led an internal audit after the first problems with thefts were discovered on Jan. 14 further tainted and muddled the chain of custody by not following proper procedures.
According to testimony from lab employees, the person leading the audit reopened evidence envelopes at the same spot where they had previously been opened and resealed by Office of the Chief Medical Examiner chemists. "It is Forensics 101 that when you reopen an evidence envelope you do so at a different spot than where it had previously been opened and resealed," according to a lab employee, in order to properly track the number of times an envelope has been legitimately reopened and resealed.
This was explained to the person running the audit, but "It is not clear whether he ever comprehended this or changed the manner in which he was opening the evidence envelopes," according to defense attorneys.
That internal audit ended Feb. 20 when the Delaware State Police moved in to close the lab and secure the contents of the drug evidence vault.
Finally, public defenders and Collins have raised questions about a lab employee who was hired in 2008 as a receptionist or administrative assistant but within weeks was moved to a position of authority in the drug testing lab that included access to the drug evidence storage vault. According to defense attorneys and a preliminary report by the state attorney general's office, this employee was not qualified to work in the lab and left her previous job amid allegations of theft.
Lab employees told investigators the woman kept a personal storage box in the vault "and instructed others not to touch it." She also was known to frequently talk on her cellphone at work where employees overheard her talking about a number of personal problems including financial difficulties, according to testimony in July.
Employees told investigators that they found it odd how the woman, who was described as "terrible at her job" was able to quickly find "missing" drug evidence when other employees could not locate it in the vault.
This woman, who left the lab in 2013 after a change in managers, also had unsupervised access to the vault area on weekends "to catch up on work," according to Collins in July.
The attorney general's office has argued that all drug evidence from 2010 to February 2014 is not tainted beyond repair and that a state police audit of the drug evidence and testing by an outside lab gives the evidence the credibility needed for use at trial.
Prosecutor Joe Grubb argued in July that if no signs of tampering were detected during the state police audit and an outside lab determined the amount of drugs in the evidence bag matches the weight and description of what police reported that they seized at the time of arrest, then the evidence should admissible.
Defense attorneys, however, charge that the audit may have missed signs of tampering and that the thief or thieves may have started pulling drugs from other drug envelopes, to replace drugs that were stolen, when they feared detection.
In one case, the outside lab discovered that there were 50 more bags of heroin in one evidence envelope than what police reported. The discrepancy was not discovered by the state police audit and investigators could not explain how it occurred. Prosecutors ultimately dropped the charges in that case.
The attorney general's office declined to comment on the latest defense brief but the state will be filing a formal written response within a month.
Collins said he will be filing a legal brief in the matter by Sept. 12.
Carpenter is expected to make a ruling that he said, "may have an effect on hundreds if not thousands of cases" sometime in October.
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