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Probe: Toxicology Lab Results Questioned In '08

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
The group representing Indiana prosecutors knew as early as 2008 of problems in the Indiana State Department of Toxicology lab that could jeopardize hundreds of cases but failed to inform defense attorneys even as they continued to use the results in trials, a newspaper investigation has found.

The Indianapolis Star found that former lab director Michael Wagner met with Steve Johnson and Deborah Reasoner of the Indiana Prosecuting Attorneys Council shortly after he took over the lab in August 2008 and told them he had found problems and planned to launch an audit of test results.

But defense attorneys say Johnson made no effort to notify them that tests could be in question, and prosecutors continued to use the results — often critical to winning convictions or leveraging plea agreements.

"When somebody hands the prosecution evidence that testing might be unreliable, you can't hide that," said John Tompkins, an Indianapolis defense attorney who concentrates on drunken driving cases.

An audit of lab results showed 200 of 2,000 positive marijuana test results from 2007 to 2009 shouldn't have been reported to prosecutors because of errors. That audit is continuing into other categories, such as cocaine and alcohol.

The problems have raised concerns that some convictions might be tainted and that hundreds of cases might need to be reexamined.

Johnson told The Star he had "grave concern" over the first wave of audit results but that he wasn't alarmed by Wagner's 2008 concerns and didn't think they warranted disclosure to other attorneys.

"In terms of the entire mess he found," Johnson said, "I don't know if he ever went into much detail."

Wagner, the first forensic toxicologist to head the public lab in more than a decade, said he spotted red flags soon after he took over and that the facility "didn't meet minimum industry standards for forensic science."

He said it is "not standard procedure to walk in and do an audit" and contends he made his concerns clear.

Wagner said he alerted officials to problems at the lab again during a training meeting attended by prosecutors and police officers on Feb. 12, 2009. He told prosecutors they shouldn't go to trial with test results from 2007 or 2008 without checking with him first and that the tests in those cases might have to be redone.

Tim Sledd, the chief deputy prosecutor in Lawrence County, attended the training program but did not recall Wagner saying anything that would raise concerns about widespread problems with test results.

"I would remember," Sledd said, "if I was told the test result information coming to us was suspect or that we needed to use caution as we moved forward."

Other prosecutors, however, appeared to take heed.

In an email sent less than two weeks after the training session and provided to The Star, former Marion County deputy prosecutor Ed Zych told the toxicology lab he had heard from another prosecutor that he should check with Wagner "because there have been some problems with older tests."

In four other emails obtained by The Star, prosecutors for cases in three different counties requested a review of test results or lab workers reported performing reviews for prosecutors.

Johnson has said it's too early to tell how many cases might be affected and that not all errors would affect test results. Even a change in results wouldn't necessarily invalidate criminal charges or convictions as long as the level of alcohol or drugs remained above the legal limit, he said.

But Larry Landis of the public defenders council said defense attorneys likely would encourage clients with positive test results to accept a plea bargain to secure a lesser sentence. About 90 percent to 95 percent of impaired-driving cases result in plea bargains.

IU began notifying prosecutors in March of specific cases with questionable test results and a description of the lab's error. Spokesman Larry MacIntyre said about 200 such letters will go out.

MacIntyre said prosecutors will need to assess the legal significance of the errors and inform defense attorneys because the lab doesn't have the defense attorneys' contact information.

Defense attorneys are skeptical they'll get the full story.

"I am genuinely distressed at the state of ethics in my profession," Tompkins said.

NewsHawk: Jim Behr: 420 MAGAZINE
Source: timesunion.com
Author: AP
Copyright: 2011 Hearst Communications Inc.
Contact: Times Union
Website: Probe: Toxicology lab results questioned
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